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In order to facilitate the proper functioning of the internal market and the achievement of decisional harmony in succession cases having cross-border implications, the EU Succession Regulation (ESR) has introduced uniform jurisdiction and conflict-of-law rules which are based on the last habitual residence of the deceased as a main connecting factor and designed to follow the principle of unity of succession and the Gleichlauf principle. However, before the adoption of ESR, many Member States concluded bilateral treaties with third States which, in regard to succession matters, contain jurisdiction and conflict-of-law rules that usually follow the principle of scission of succession by employing locus rei sitae for immovable estate and nationality (or domicile) of the deceased for movable estate as connecting factors. Bearing in mind that these bilateral treaties, pursuant to Art. 75(1) of ESR, take precedence over ESR if their scopes of application overlap, Member States courts bound by them have to apply jurisdiction and conflict-of-law rules that conceptually differ from those of ESR applied in the Member States not being bound by such treaties, which can impair the proper functioning of the internal market and diminish decisional harmony within the EU. Aiming to contribute to the assessment of this problem and provide certain guidelines for its solution, the study in the present chapter begins with a brief discussion on the grounding principles and rules of ESR and their comparison with those of bilateral treaties with third States to identify incompatibilities between them, continues with the interpretation of Art. 75(1) of ESR in conjunction with Art. 351 of Treaty on the Functioning of the European Union (TFEU) which regulates the relation between Member States’ international treaties with third States and EU law providing for the precedence of the former but also leaving the space for Member States to abstain from their application if they are incompatible with EU law, and outlines how such incompatibilities might be handled by relying on the settled case-law of CJEU concerning the interpretation of Art. 351 of TFEU and especially on the analysis of the recent OP case (C-21/22), which deals with the divergent conflict-of-law rules of the ESR and the bilateral treaty between Poland and Ukraine.

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EU Succession Regulation vs. Member State Treaties with Third States: Insights from CJEU Judgment C-21/22

  • 章节

  • 发表日期：

    2025年

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  • Slavko Đorđević,
  • Jovan Živanović

摘要

In order to facilitate the proper functioning of the internal market and the achievement of decisional harmony in succession cases having cross-border implications, the EU Succession Regulation (ESR) has introduced uniform jurisdiction and conflict-of-law rules which are based on the last habitual residence of the deceased as a main connecting factor and designed to follow the principle of unity of succession and the Gleichlauf principle. However, before the adoption of ESR, many Member States concluded bilateral treaties with third States which, in regard to succession matters, contain jurisdiction and conflict-of-law rules that usually follow the principle of scission of succession by employing locus rei sitae for immovable estate and nationality (or domicile) of the deceased for movable estate as connecting factors. Bearing in mind that these bilateral treaties, pursuant to Art. 75(1) of ESR, take precedence over ESR if their scopes of application overlap, Member States courts bound by them have to apply jurisdiction and conflict-of-law rules that conceptually differ from those of ESR applied in the Member States not being bound by such treaties, which can impair the proper functioning of the internal market and diminish decisional harmony within the EU. Aiming to contribute to the assessment of this problem and provide certain guidelines for its solution, the study in the present chapter begins with a brief discussion on the grounding principles and rules of ESR and their comparison with those of bilateral treaties with third States to identify incompatibilities between them, continues with the interpretation of Art. 75(1) of ESR in conjunction with Art. 351 of Treaty on the Functioning of the European Union (TFEU) which regulates the relation between Member States’ international treaties with third States and EU law providing for the precedence of the former but also leaving the space for Member States to abstain from their application if they are incompatible with EU law, and outlines how such incompatibilities might be handled by relying on the settled case-law of CJEU concerning the interpretation of Art. 351 of TFEU and especially on the analysis of the recent OP case (C-21/22), which deals with the divergent conflict-of-law rules of the ESR and the bilateral treaty between Poland and Ukraine.