PATRIMONIAL ISSUES IN INTERNATIONAL SUCCESSIONS LAW

Court of Justice of European Union, Grand Chamber, 26 marzo 2019, n. 129

On those grounds, the Court (Grand Chamber) hereby rules:

The concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement does not create any parent-child relationship between them.

However, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to Article 3(2)(a) of that directive, read in the light of Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union, by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.
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Court of Justice of European Union, 23 may 2019, n. 658
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1. The second subparagraph of Article 3(2) of Regulation (EU) No 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 must be interpreted as meaning that failure by a Member State to notify the Commission of the exercise of judicial functions by notaries, as required under that provision, is not decisive for their classification as a ‘court’.

The first subparagraph of Article 3(2) of Regulation No 650/2012 must be interpreted as meaning that a notary who draws up a deed of certificate of succession at the unanimous request of all the parties to the procedure conducted by the notary, such as the deed at issue in the main proceedings, does not constitute a ‘court’ within the meaning of that provision and, consequently, Article 3(1)(g) of that regulation must be interpreted as meaning that such a deed does not constitute a ‘decision’ within the meaning of that provision.

2. Article 3(1)(i) of Regulation No 650/2012 is to be interpreted as meaning that a deed of certification of succession, such as that at issue in the main proceedings, drawn up by a notary at the unanimous request of all the parties to the procedure conducted by the notary, constitutes an ‘authentic instrument’ within the meaning of that provision, which may be issued at the same time as the form referred to in the second subparagraph of Article 59(1) of that regulation, which corresponds to the form set out in Annex 2 to Implementing Regulation No 1329/2014.

Tribunale di Trieste, 8 maggio 2019, n. 4537

In the event of a cross-border succession, for which regulation (EU) 650/2012 is applicable, the exchange, from all point of views, between the European succession certificate and the inheritance certificate must be recognized in the case of application for the registration.

Tribunale di Trieste, 24 luglio 2019, n. 7418
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In the event of a cross-border succession, for which regulation (EU) 650/2012 is applicable, the exchange, from all point of views, between the European succession certificate and the inheritance certificate must be recognized when requesting the registration of successor rights to the land judge.
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Tribunal Supremo, 19 junio 2008, n. 3054

Polygamy is not simply something contrary to Spanish law, but it is something repugnant to Spanish public policy (ordre public), which always constitutes an insurmountable limit to the applicability of foreign law.

Tribunale di Bergamo, February 4th, 2019, n. 300‌‌
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Moroccan law may be applied in Italy, in particular the reform of family law (c.d. Moudawana), which regulates the possibility of divorce, by mutual agreement, without prior separation, in accordance with art. 5 of Regulation EU 1259/2010 (c.d. Rome III), concerning the dissolution of the marriage celebrated in Italy by two Moroccan spouses, provided that the consensual agreement between the spouses is not contrary to imperative rules.

Cass. civ., March 1st 2019, n. 6161

In order to be able to verify the compliance of a divorce order, issued by a Palestinian Tribunal with the public policy limit (ordre public), it is necessary to assess the Palestinian law “n. 3/2011”, regulating the divorce between the spouses, with specific regard to the profiles related to:

a) the jurisdictional nature of the Sharia Court;
b) the presuppositions of the repudiation by the husband;
c) the existence of a corresponding capacity of repudiation for the wife;
d) the guarantee of the respect of the adversarial procedure and the right of defense in the procedure;
e) the subject matter of the investigation reserved to the Sharia Court.
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European Court of Human Rights, Grand Chamber, 19 December 2018, case Molla Sali c. Greece

Sharia law applied to an inheritance dispute contrary to the will of the testator, a Greek person belonging to the Muslim minority: violation of the Convention.

European Court of Human Rights, 14 march 2019, case Quilichini c. France

Relying on Article 14 (prohibition of discrimination) of the European Convention on Human Rights and on Article 1 of Protocol No. 1 (protection of property) of the Convention, the applicant argued that she had been treated differently from the other heirs in a disproportionate manner, as regards the division of property in 2005, following the modification in the French law establishing the principle of equality, for inheritance purposes, between all children.

Cass. civ., 15 maggio 2019, n. 13000

The child born from practices of medically homologous assisted procreation, with the use of the cryoconservated semen of a person who gave his consent in accordance with art. 6 law no 40/2004 to the use of those practices also “post mortem”, and who died before the embryo was formed, assumes the status of son of that married man with respect to the general assumption (foreseen in art. 8 law no. 40/2004) according to which consent is crucial for the attribution of parenthood to all persons born as a result of marriage.