Case C-20/17 Oberle on the EU Succession Regulation – The rise of a true European property law?

On 21 June 2018 the CJEU took its third decision after the EU Succession Regulation entered into force on 17 August 2015. The EU Succession Regulation is a revolutionary piece of EU legislation with very far reaching effect on national law. Although many authors have tried, both during the process of negotiations and after its adoption and entry into force, to limit the effects, the effects turn out to be far reaching indeed. In short, the EU Succession Regulation allows for a single legal system to apply to an entire succession estate and introduces a European certificate of succession that can serve as evidence throughout the EU of the rights and obligations arising under that succession regime, which is to be issued by a single competent authority.

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Sustainability and private law? Let’s do it together – crowdsourcing ideas and materials

The biggest challenge of the 21st century is undoubtedly the question of how to tackle the effects of a rising population, expanding industrialisation and growing environmental degradation. Apart from an ever complex world, there are externalities that are the result of the way humankind has been treating its planet in the last centuries. The rules of private law play an instrumental role in this.

Two examples are freedom of ownership (including the substantive concept of ownership) and freedom of contract. These principles, which were born from a liberalist conception of freedom and individualism, have brought many of us incredible wealth and prosperity. However, at the same time, we have developed a system in which growing inequality shows us the negative side of these developments.

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Road traffic and other liability in Formula 1?

On Sunday morning 1 October, all of the Netherlands was behind their tv or internet connection to watch ‘our’ Max Verstappen win the Malaysian Grand Prix. Besides watching a very exciting race, I wondered about some of the accidents that happen between drivers on the track. I was especially intrigued with the incident between Lance Stroll and Sebastian Vettel.

If one formula one car hits another, and one of the parties is to blame, does that create liability to pay for the repairs of the other?

Of course, like in other sports, the standard of care that we assume between ‘players’ is different than in the ordinary course of life and business, but I am not speaking about bodily harm. The material damage to Vettel’s car, which was estimated by Dutch former formula 1 driver Robert Doornbos on Dutch TV of about half a million Euro, is now to be born by Ferrari?

The liability regime the applies to damage occurring, either by intentional act or by negligence, is traditionally covered by the place where the damage occurs (lex loci delicti). So Malaysian law applies to damage occurring during the Malaysian Grand Prix, etc. A quick google search reveals that there are special liability rules for the Singapore Grand Prix.

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The UK and European Private Law, what’s next?

In the past I have reported on this forum about a simulation that William Bull and I run with Maastricht European Law School Students called the Maastricht Project. In this project, which runs in our course on European Private Law (focusing on contract, property and a bit of tort), we divide students amongst Member State delegations, the European Commission, a presidency and a fictive institute of European Institutional Economics (with the specific aim to bring economic arguments forward). We then run a 7-week negotiation simulation with our students in which we simulate a Council of the EU working group. Students play the role of delegate members and debate a fictive proposal on EU private law, made by the European Commission delegation students. For this, students borrow from the CESL, DCFR and Digital Assets proposals of the European Commission.

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Living Apart Together – Is the UK becoming a laboratory for European Private Law?

As the UK moves towards more decentralisation of power, and therefore more power to its component legal systems – referring to Welsh, Scots and Northern Ireland law, and more and more Justices in the Supreme Court are also considering how a certain case would have been resolved in their component legal system (such as the possible outcome of an English case in Scots law written by a Scot’s Justice), the UK is fast on track to position itself as a laboratory for European private law.

It is no secret that Scots law is greatly distinct from English law in many areas. One of these, most notably, is the law of property. With the Abolition of Feudal Tenure (Scotland) Act 2000, the Scots effectively abolished the feudal system of landholding that still reigns (quite literally as the Queen owns all land in England and all others hold land from her in tenure) in English law. As more autonomy is given to national parliaments in Edinburgh, Cardiff and Belfast, this can be expected to result in pluralism rather than uniformity.

With all of these countries remaining part of the United Kingdom, so bound in unity, the UK is set to become perhaps the latest and most modern example of a laboratory of creative private law solutions. Especially because of the influence Scots law brings as a mixed legal system, the mix in the laboratory – perhaps more than ever – includes the diverging common law and civil law divide. New solutions, as for example land reform in Scotland will only increase the differences and hence sometimes ask for joined solutions to cope with these.

European private lawyers should keep a close eye on these development. The same applies for UK private lawyers, as this may just be a very good reason to remain in the European Union and promote their own solution.

(Thanks to Jill Robbie of Glasgow University for the interesting discussion on this and the encouragement to use the title)

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New EU Succession Rules enter into force

On 17 August, after years of negotiations, followed by years of preparations, Regulation 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (the ‘Regulation’) enters into force. Although toned down from its original proposed version, the Regulation brings a ‘revolution’ in private international law and substantive succession and property law.

Until now each legal system deals with its own succession cases based on the lex rei sitae principle: the law of the place where the object is situated, decides on the applicable succession law and jurisdiction of the court. Until 16 August 2015, international succession cases – i.e. situations in which there is either a person with multiple nationalities, or property, in whatever form, in different countries. The Regulation brings revolution to this by creating a uniform regime that applies to an entire succession.

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