engleski

Cross-border succession proceedings affecting a child

A child can be subject to various legal relationships that have a cross-border element, and one of them is succession. Cross-border succession proceedings in the European Union are governed by Regulation (EU) No 650/2012 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 as well as the Hague Convention of 1961. However, if a child is involved, other legal sources become relevant as well, in particular Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. A child may have different roles in this process, but above all, (s)he may be a testator or a successor. In the context of the latter, if the succession proceedings take place in one Member State, and the child is habitually resident in the other, questions may arise as to representation of a child in such proceedings. Moreover, if a property settlement agreement is reached, the question arises as to which state has the authority to issue an approval of such agreement in relation to a child, i.e. to examine and determine whether it is in the best interests of the child. These issues were addressed by the Court of Justice in the proceedings brought by Matoušková (case C-404/14) and Saponaro and Xylina (C-565/16). Other EU institutions have also been occupied with the same issues in the legislative procedure aimed at amending Regulation 2201/2003, which is still ongoing. In this paper, particular attention is therefore also paid to the relevant provisions of the Proposal for amending Regulation 2201/2003. A distinction in terms of the scope of the European Union Succession Regulation in the context of children may also be relevant in relation to the application of Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. Namely, if a maintenance claim is made in the succession proceedings, the question of a qualification of that claim remains open.

cross-border succession ; child ; habitual residence ; successor ; testator

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