The Law Applicable to Succesions in Romanian International Law

An article about the "professio juris" as a tool of legal competition, lex rei sitae vs. lex personalis, the law applicable to successions in romanian private international law and the "professio juris" in the matter of international successions.

I. PROFESSIO JURIS AS A TOOL OF LEGAL COMPETITION. GENERAL OVERVIEW

One of the incontestable realities of this new beginning of century and millennium is that the individuals’ private life can no longer be contained within national state borders.

For a long time we used to be born and to die within the ‘area’ of the same legal system. Life itself was limited to the territory of a certain state. Under such circumstances, citizenship evoked not only our membership of a certain state entity, turning us into its ‘nationals’, but to the same extent our membership of a certain legal system, specifically of the legal system of the state in question.

The globalisation phenomenon, the increasingly intensive movement of persons, facilitated by the development of modern and fast means of transport, the expansion of internaţional trade, the freedom to settle abroad, the internet as a new means of communication and legal commitment - and even as an ‘alternative lifestyle’ - have led to an internationalisation of the private circuit.
In the following we will try to focus on one of the most important instruments of contemporary internaţional law, meant to confer more flexibility to the internaţional private circuit - choice of law agreements.

These are an expression of party autonomy in private internaţional law.

The freedom to choose the applicable law has become a constant of contemporary private internaţional law, especially in the context of globalisation.

At a European level, as shown by Professor Horatia Muir Watt, “choice of law emerges as a flexible and creative tool of multilevel governance. As has been seen, its clearest advantage is maintaining regulatory externalities”181 We may distinguish the following features (functions) of party autonomy in private internaţional law (of choice of law agreements):

1. Choice of law agreements definitely represent an instrument of globalisation. They are an expression of European legal federalism;

2. Choice of law agreements represent an element meant to respond to the increasing need for predictability, meant to satisfy the reasonable expectations of the participants to the internaţional private circuit;

3. Choice of law agreements represent an element meant to raise, since the beginning, the awareness of the parties about the cultural and legal diversity of the world, imposing them caution and attention; 

4. Choice of law agreements represent an element that makes the cross-border legal circuit more flexible, always opening a new alternative to participants to international legal relationships. They will be tempted to take a peek at the normative content of other legal systems (or at some non-state codifications), to compare such systems or codifications to the one that would have the competence in the absence of the choice of law. From this point, the party autonomy in private international law opens a possibility to „escape” the national normative system whenever it is in the best interest of the participants to cross-border legal relationships. What happens this way is a desedentarization of private law, which is no longer the only one, nor mandatory. The parties may choose freely - even though not discretionarily - the normative system they wish to be subject to. Professio juris thus opens a breach in national legal systems, letting the parties escape.

As we have shown earlier, private international law makes a strong comeback on the European legal stage, becoming the main instrument of European unification. Of a unification in and through diversity; it focuses all national legal systems around the person (the individual), stripping him of his citizenship. Citizenship thus becomes a connecting factor, with an alternative and residual character. Belonging via citizenship to a certain Member State no longer seems to play a major role. The individual can no longer be favoured, nor discriminated on grounds of citizenship.

Private international law locates the individual depending on his centre of interest, that is, the place of his habitual residence. Habitual residence thus becomes the main factor of locating a person, the element that identifies and imposes a person’s legal membership of a certain legal system, whereas citizenship only describes the person’s “political” membership of a certain state.

Private international law is kind and tolerant, but a pervert at the same time. Kind and tolerant because it allows the luxury of preserving cultural and legal diversities belonging to private national legal systems, ensuring however the predictability and fluency of the cross-border legal circuit through uniform choice of law rules. Yet everything has a price ...

It is still „a pervert” because, despite this generosity, it subtly and inconspicuously opens the door to the competition of private legal systems. What is however specific to this competition is that it is not generated by private law unification. There is no question, therefore, of choosing between private legal systems - or between material (substantial) norms assigned to the different private law institutions belonging to Member States - according to preference or performance” criteria established by the European executive or the European Parliament. National legal norms, just like the legal systems they belong to, will continue to survive. But their vitality and efficiency is left at the discretion of their recipients. A ..private law market” is thus outlined, even though in an incipient and veiled manner, and controlled from the choice of law land.

The perversity of private international law is still a noble, respectable one.

Behind this legal perversity there is a hidden need to humanize the private circuit. The individual is no longer left at the discretion of the national legislator, having the freedom to „escape” the national normative system whenever there are sufficient links to other legal systems, or whenever there are sufficient reasons to apply a different legal system, perceived as more attractive, more friendly, closer to the parties’ reasonable expectations.

Without going into detail, we only wish to point to the fact that the intensity of this competition depends on whether it compares legal systems belonging to Member States or the legal system of a Member State to the legal system of a third country.

This way, private international law leads to a hierarchy of legal systems. But it is not a vertical hierarchy, but a horizontal one; legal systems are put to compete. The specific feature of this type of hierarchy is that it is not pre-established, the criteria are permanently thrown in the game, and every time the decision belongs to the parties involved, that is, to the recipients of the normative product.

Competition of legal systems perfectly articulates with the principle of mutual recognition of court judgments and public acts. European law is a free competition law. And this competition is not limited to that of goods or services. In other words, it is not limited to the economic area, but it must exist, intensively enough, in the legal area as well. Competition of legal systems thus comes to complete the European legal landscape. (The relationship between private law and Community law have different natures and implications, according the the matter in question. In the area of economic relationships, the diversity of national private legislations undoubtedly represents a barrier to the achievement of the single market. Under Community influence, there is an approximation tendency in the professional status of economic operators from one state to another, and this logic has developed the principle of the country of origin, and the Community harmonisation of corporate law is rather advanced. However, the approximation of national private laws concerns not only the economic operators, but also the relationships between them, and the Community law has stepped in by changing significant aspects of the law of obligations, of contracts or of case law. In the law of persons and in family law, the Community legislation had at first only an indirect and subsidiary role, its influence being perceived as an effect of the play of fundamental freedoms asserted by the Treaties; as the unification of the legislations of Member States in areas that reflect national particularities is neither convenient nor particularly necessary, the Community law currently steps in by ensuring their coordination, through certain uniform choice of law rules.

By extending the Community law intervention areas and by an effort of reflection on the meaning of the legislative process, starting with 1985 the Community institutions performed deep changes in their legislative policies, with a much broader intervention in the area of private law. The goal pursued by this change is threefold: to diminish the barriers to intra-Community trade (as an implication of the market economy theory), to reduce the detriments to free competition among economic operators, generated by the disparity between national legislations, to circumscribe the extent of the task of approximation of national legislations required for the smooth operation of the internal market. The result of this approach materialised in the creation of a corpus of European private law norms common to all EU Member States, in the renewal of private law in Member States; the problem of the usefulness and legitimacy of this approach, of its achievement methods, of its future prospects must concern today any Romanian lawyer as well. The essential issue: how to approach the encounter between Community law and the private law of Member States; a few aspects of the method will require prior clarification.

Firstly, the issue of the relationships between Community law and private law will have to be approached by distinguishing between economic matters and matters of persons and family. In the first case, the vocation of Community law to intervene in order to approximate or harmonize national legislations is indisputable, due to the fact that these economic legislations represent a factor of diversity and, as such, a barrier to the achievement of Treaty objectives (achieving the internal market, ensuring free competition). Conversely, in the second case, national law remains largely autonomous, more protected from Community intervention, on the grounds that actually the Community construction is only marginally or exceptionally affected by national rules in the areas of the law of persons or of family law, especially since this is an area where national identities intensively express themselves, and their observance is guaranteed by Article 6(3) of the EU Treaty.

Secondly, another distinction will have to be made depending on the method of Community law intervention on national private law, according to the type of harmonisation exercised. Direct harmonisation, effected by the Community legislator, has a fragmentary essence: the texts are dispersed, circumstantial, generating a fear of balkanisation. This is explicable, the EU competences are limited, and any legislative intervention must be justified by a considerable impact on intra-Community trade. Incompleteness is inherent to Community private law, whereas national private law tends towards completion. However, we may also speak about an indirect incidence of Community law on the private law of Member States. Without necessarily aiming at private law, the Community law, either primary or derived, refers to legal concepts common either to all Member States, or to some of them. In the latter case, the phenomenon may be regarded as a factor of progress - as law, being unstatical, always adapts to the changes occurred in the evolution of human collectivities; conversely, in the former case, Community intervention may generate incoherences, not only for national private law, but also for Community law itself, because it is possible that the Community judge should sometimes formulate definitions without having the time required to perform a global reflection that may form a conception on the legal institution in question; it is possible that the Community legislator should sometimes use general concepts, whose incidence exceeds the harmonised sector.)

The encounter between Community law and Private international law may

seem difficult: the object of private international law is to organise the pacific coexistence of different legal systems; conversely, Community law is oriented toward the integration of markets and the construction of an area without interior borders. Yet, both at European level and the specialists of the two disciplines have understood that their simultaneous existence is not only possible, but also necessary. An extra amount of Community private international law may mean a minimum effort in the sense of (a much more difficult) uniformisation/ harmonisation of material rules of the Member States, and the preservation of national particularities.

The direct communitarisation of private international law, achieved by the use of classical choice of law rules, will take a significant place in our approach. In addition to the multitude of rules of conflict included in the sectorial harmonisation directives (for instance in the area of insurance), the entering into force of the Amsterdam Treaty (1 May, 1999) turned the situation of classical private international law upside down: Articles 61(c) and 65 of the EC Treaty invested the European Union with a competence to intervene in the area of legal cooperation on civil matters. According to the Action Plan of the Council and the Commission regarding the optimal ways of applying the norms of this Treaty in the matter of progressive achievement of the freedom, security and justice area, this competence supposes some measures for an easy identificaton of the competent court in litigations with elements of extraneity, for a clear indication of the applicable law, the fast obtention of court orders, efficient execution procedures; it means as many issues that fall under direct and indirect international competence and conflicts of laws. The fundaments of Community competence on the matter being ensured (yet not indisputable), the first texts of European private international law soon appeared; among the pioneers we may mention Regulations (EC) No. 44/2001, 1346/2000, 1347/2000, 2201/2003, 805/ 2004; 864/2007; 593/2008 other similar normative acts are under adoption (Rome 3). Such undertakings are extremely ambitious.

On the one hand, the novelty of Community intervention imposes the consideration of the fundaments of different rules of private international law adopted, but also the discussion of the relevance of tools used from the perspective of a successful communitarisation of private international law at this level; in this latter sense, if regulations may represent a suitable tool (by the unification they achieve), the European directive raises a lot of questions. On the other hand, even though the process of uniformisation of private international law in Member States seems to be the means favoured by EU in order to achieve European legal integration, certain clumsinesses/misunderstandings may be emphasized, due either to a poor knowledge of PIL or to a wish of leaving national judges the possibility of completing the communitary creation work. Thus, the nature of certain European norms of PIL, included mostly in directives, is not easily deductible (rules of conflict or material rules having a self-determined area of application in space), although a certain qualification entails significant consequences; and if Member States have a different understanding about issues that are however essential, we are far from the sought uniformisation. Other difficulties may be emphasized in relation to the regime of communitary laws with immediate application (police laws). In the relationship between Member States, their intervention will he neutralized, as an effect of the mutual recognition principle; conversely, in the relationships with third countries, their play will not be affected; moreover, a lot of normative acts (of material law) having a Community source will be raised to a status of police laws and will disrupt the normal solution of the conflict of laws. Such a circumstance overturns the classical theory of laws with immediate applicability.

The Community PIL will also have to choose between neutral rules of conflict (traditional in PIL) or rules of conflict inspired by material objectives (non discrimination, free movement, free competition - the latter inspiring the whole of the Community law).

Another rather delicate option is offerred to the Community legislator: the one between rules of conflict limited to economic areas (this perspective being in accord with the original specialisation of Community law) or rules of conflict including areas of the law of persons and family law. As demonstrated by Rome III Regulation bill (the law applicable to divorce and physical separation), the lines of action are already traced.

Last but not least, a prospective analysis of Community law of the conflicts of laws supposes a solution to the problem of geographic delimitation of future rules of conflict. Two difficulties will retain our attention: the alternative between universal rules of conflict or self-limited rules of conflict, and the problem of the relationships between Community law and international tools of private international law.

II. LEX REI SITAE VS. LEX PERSONALIS

As it is commonly known, lex rei sitae governs in principle the legal regime of the assets. The question that arises - and to which we shall try to answer -regards the extent to which applying the law of the place where the asset is located is logically justified in the case of a universality of assets (movables and / or immovables) rising from a succession.

Should all the assets of a succession be governed by a unique law (lex patriae or, possibly, lex domicilii): a law that settles the rules of devolution and transmission of the succession and the rules of sharing out a succession? Or, on the contrary, should the legal regime of the assets be different according to their nature (movable or immovable) and their location? Does the law of the place where the asset is located have the right to govern each of the assets of the succession, thus sacrificing the unity of the devolution and transmission of the succession? Or, on the contrary, should a universality of assets belonging to a succession be governed by a unique law, thus maintaining the unity of the transmitted patrimony regardless of the nature or the location of the assets of the succession? In other words, should the role of lex succesionis be played by only one law - according to the universal attribute of transmission of a succession) -or, on the contrary, should it be played by several laws applied simultaneously and concurrently, thus fractioning the transmission? If the succession (mortis causa) was to be governed by a unique law - which one would it be: the deceased’s national law, the law of the deceased’s last domicile, or the law of the state that the deceased had chosen as his habitual residence? If several laws are chosen to govern the succession, what are the reasons why the legislature would proceed in such way? Whose interests are being protected and how strong are these interests to break the natural order of things by scarifying a logical, fair, and natural principle? Another option is available: an intermediary solution according to which all movables of the succession shall be governed by a unique law (lex patriae or lex domicilii), while the universality of the immovables of the succession remains fragmented by being governed by a number of laws (lex rei sitae) equal to the number of states in which there are immovables belonging to the succession; in this case, on the whole, the transmission of the succession shall no longer be unitary, but it shall be fragmented - movables shall be governed by the lex patriae or the lex domicilii, and the immovables shall be governed by the les rei sitae.

What is the position of our legislature and how do things stand from the point of view of comparative law? What are the latest international trends in this field?

III. THE LAW APPLICABLE TO SUCCESSIONS IN ROMANIAN PRIVATE INTERNATIONAL LAW. SEDES MATERIAE PRINCIPLE

Act 105/1992 regarding the conflicts of laws devotes three articles 66-68 (included in chapter VI) to the matter of successions.

By derogation from the unity of devolution and transmission of the succession, article 66 states that the succession is governed by:

- The national law of the deceased at the time of his death as far as the mova-ble assets are concerned;

- The law of the state where the asset is located as far as immovable assets (real property) and goodwill are concerned.

Accordingly, the patrimony of the succession shall be fractioned from the point of view of the applicable law according to the nature of the assets composing it.

Movables belonging to the deceased at the time of his death. The devolution and transmission of these assets, regardless of the place where they are located at the time of the deceased’s death shall be governed by a unique law, namely the deceased’s national law [mobilia sequuntur personam; ossibus personae inhaerent). And now, according to Article 12, paragraph 1 of Law no. 105/1992, the national law of a natural person is ‘the law of the state whose citizen he is,’ thus, mutatis mutandis, the succession to movables shall be governed by the law of the state whose citizenship the deceased had (lex patriae). If the deceased had, besides Romanian citizenship, one or more other citizenships, the law applicable to the succession (to movables) shall still be the Romanian law (according to Article 12 paragraph 2 of the same law). If the deceased had several citizenships - all foreign - then „the law of the state where he has his domicile (what shall we do if, for instance, the deceased had several citizenships and in each personal identity card issued by a different country he has a different domicile? We believe that in such case the state authorities invested with the opening of the succession should first establish which one is the deceased’s domicile. Since we are in the presence of a characterisation process we shall apply the domestic law of the court dealing with the case (lex fori). Hence, if the lex fori is the Romanian law, in order to establish the law applicable to the movable assets of the succession we should first establish where the deceased had his last domicile, and this shall be done according to the Romanian law regardless of what is written on the deceased’s identification cards issued by foreign authorities. Thus, it is possible to find that the deceased’s last domicile was in Romania or even in the territory of a third state (whose citizenship he didn’t have) if his permanent establishment or his main establishment was there (Article 13 of Decree No. 31/1954 and Article 25 paragraph 1 of Law no 105/1996). Characterisation of domicile is done according to the lex fori (in our example - the Romanian law) according to the rule in this matter stated by Article 3 of Law no. 105/1992. We can easily notice that it is of little importance whether the deceased who had several citizenships had his last domicile on the territory of one of the states whose citizenship he had or, on the contrary, on the territory of a third state. Our legislature chose to apply the law of the last domicile (lex domicilii) only because it was impossible to locate the person of the alien (and, implicitly, his succession to movables) according to the criterion of nationality by citizenship (lex patriae). In conclusion: both domicile and residence are subordinate criteria used to locate the natural person as far as his personal status and succession to movables are concerned. Hence, they are criteria used only when a „tie-break[er]” is necessary, which is when a person has double or multiple citizenship, due to the inability of using the criterion of nationality by citizenship or, more precisely, due to a lack of involvement in looking for a criterion to distinguish between the competing foreign laws. In exchange, in Swiss private international law the localisation of persons who have multiple citizenships - regardless of whether of them is Swiss or not - is done by reference to one of the citizenships, more precisely, to the one with which the person has tightest connections. Thus Article 23 paragraph 2 of the Federal Swiss Law regarding private international law (Bundesgesetz uber das Internationale Privatrecht - 1PRG) of December 18th, 1987 states that, in the absence of provisions to the contrary, if a person has multiple citizenships, from the point of view of determining the applicable law, the conclusive citizenship is that of the state with which the person has tightest connections. In its original wording, Article 23 (2): „Besitzt eine Person mehrere Staatsangehdrigkeiten, so ist, soweit dieses Gesetz nichts anderes vorsieht, fur die Bestimmung des anwendbaren Rechts die Angehorigkeit zu dem Staat massgebend, mit dem die Person am engsten verbunden ist.” See also Pierre P., Arnold K. W., Patocchi M. P., Switzerland’s Private International Law, 2nd ed., Zurich / Deventer 1994, p. 50; Riering W., IPR-Gesetze in Europa, Miinchen / Bern 1997, p. 215. We must make haste to add that in Swiss private international law, the deceased’s citizenship is of no importance in determining the law applicable to the succession. Irrespective of the nature of the assets composing the succession and of their location at the time of the opening of the succession, the succession shall be governed by the Swiss law if the deceased’s last domicile was on the territory of the Swiss Confederation - article 90 (1) of the above mentioned law - or, if not, it shall be governed by the competent law according to the conflict rules of the state where the deceased had his last domicile - article 91 (1)) or, in default, his residence shall apply” (Article 12, paragraph 3). The same law - of the last domicile (lex domicilii) or, in default, the law of the residence (The next question is; why did our legislature establish residence as a connecting factor subsidiary to domicile when it comes to the status of the person possessing two or more citizenships or the status of a stateless person and when it comes to the his succession to movables? Since it has been known that one of the domicile’s legal attributes is the fact that it is compulsory, it is unbelievable that a person could have no domicile. We must remind you that the enunciation of Article 12, paragraphs 3 and 4 of Law no. 105/1992, where the legislature states that the nationality law for an alien who possesses more (foreign) that one citizenship and that of a stateless person is, lack of domicile, the law of his residence. Our opinion is that the legislature chose wisely this time. The truth is that unlike in the case of civil law, things prove to be more complicated in the practice of private international law and it is common for a person’s domicile to be unknown or very difficult to establish. That’s why the legislature had to resort to a connecting factor subsidiary to domicile - which in his turn is subsidiary to the citizenship - and this factor is the person’s residence. Hence, whenever it is impossible to determine that a person had a domicile, the localization shall be done according to the connecting factor subsidiary to the domicile: the person’s residence. Some legal systems speak of the habitual residence of a natural person („gewdhnliche Aufenthalt”, „habitual residence”, residence habituelle”), which is considered to be more relevant for the localisation in matters like personal status due to a person’s persistence in one place even if the ultimate intention of permanently settling there is missing. Such an option could also be explained by the fact that domicile has more than one meaning, varying from one legal system to another, and sometimes recognition of a person’s domicile in a country may imply some prior administrative formalities. Lately, habitual residence - „rattachement qui tend a se repandre” (B. Audit) - seems to gain more and more terrain and it should be seen like a connecting factor detached from any affiliation to a certain state or legal system, as opposed to citizenship or even domicile. As a concept, it is undeniably more close to domicile than to citizenship. Still, it does not express a compromise - which is not even possible - between the two connecting factors. What distinguishes it from domicile is the fact that in the case of residence, the person’s intention to permanently settle there is not required, as continuity is not an essential attribute of residence. „La residence - says the French professor B. Audit (in Droit internationalprive, 4° ed., Paris 2006, pp. 129-130) - designe un etablissement objectif dans un pays donne. Bien que I'habitude soit impliquee dans la notion memo de residence, l’adjectifqui Iui est accole est destine a marquer qu ’il ne doit pas s’agir d’une demeure ephemere ou episodique, memo si la residence n’est pas necessairement continue; une duree minimum est parfois fixee. L’intention pourrait etre prise en consideration pour determiner s'ily a residence ou quel en est le caractere (principale, secondaire). Desfaits de nature personnelle, familiale ou professionnelle peuvent egalement intervenir, dans la mesure ou ils revelent des liens stables entre une personne et un etablissement”. In the second place, because it is a fact habitual residence cannot be determined by implication, unlike legal domicile (also called domicile of dependency). Last but not least, unlike domicile, (habitual) residence is beyond any intervention from the public authorities, as it does not require any formalities. The French doctrine appreciated that if what is invoked as domicile is different than the habitual residence, the latter should prevail, in principle (ibidem). Using the words of the same Bernard Audit we can say that the habitual residence is just a functional connecting factor -„designant la loi du milieu actuel de l’interesse” (ibidem), independent from any intervention of the public authorities. It appears to be an ad hoc domicile, or a ‘simplified domicile’ meant to support a person’s localisation for the purpose of determining the law applicable to his personal status. In fact, The Hague Convention relating to the settlement of conflicts between the law of nationality and the law of domicile concluded on June 15th, 1955 - but never entered into force -defines domicile in Article 5 as „the place where a person usually resides without depending on that of another person or the head-quarters of an authority” for details see Popescu D.A. in: Popescu D. A., Harosa M., Drept international privat. Tratat elementar, vol. I, Bucuresti 1999, p. 153 and following) shall apply if the deceased had no citizenship at the time of his death - a stateless person (heimatlos).

As regards ut singuli immovables which belonged to the deceased at the time of the opening of the succession (From the point of view of determining the applicable law, the legislature assimi-lates the immovable assets of the succession to the stock-in-trade, although, regarded as a whole, the latter is considered to be „an impersonal mass of movable assets” (Patulea V., Turianu C., Elemente de drept commercial [Elements of commercial law], Bucuresti 1993, p. 114) or an ..intangible movable property” (Georgescu I. L., Drept comercial roman [Romanian Commercial Law], Bucuresti 1947, p. 252, 517 and following). On the other hand, Law no. 298/2001 on modification and completion of Law no. 11/1991 on unfair competition in article 1, letter c) defines the stock-in-trade as „all movable and immovable property corporeal or incorporeal (trademarks, brand marks, patents, good business location, or location of business) used in carrying on a business by a trader.” Therefore, although goodwill (stock-in-trade) is movable by nature since it is universality in fact (universitas facti) - from the point of view of the applicable law - it is not assimilated to the movable assets, but to the immovable assets. Article 66: „the succession is governed by: [...] b) the law of the place where each of the immovable assets and goodwill are located.” We wonder if it hadn’t been more natural for the stock-in-trade to be governed by the same laws that govern the movable assets of the succession, thus observing the nature of movable universality of the stock-in-trade. At least this is the logical solution since goodwill is integrated in the movable succession governed by the law of the deceased’s nationality. The fact that the legislature subjects the transfer by succession of the stock-in-trade to the law of the state on whose territory they are at the time of the death (lex rei sitae) - thus using the same criterion as he used for the immovable assets of the succession - can only be considered as bizarre and inappropriate. We must look for an ‘explanation’ of this unfortunate resemblance in the legislature’s view in the doctrine’s dispute towards the affiliation of the immovable assets of the stock-in-trade. As things are still not clear - the doctrine and the jurisprudence remain divided in their opinions - the legislature found this ‘solution’ and assimilated what was not supposed to be assimilated, in order to eliminate any possibility of an immovable asset (part of stock-in-trade) being transmitted by succession in accordance with a law different from the law of the state where the immovable is located. Of course, the hypothesis contemplated is the one in which the stock-in-trade belonged to the deceased as a person and not to a company in which he was partner; because in this latter case, the equity securities belonging to the deceased (shares or equity bonds - according to the type of company) shall enter in the mass of the succession instead of the entire goodwill.), their devolution and transmission shall be governed by the law of the state where each of the immovable assets is located, meaning lex rei sitae. As a consequence, the immovable assets shall be regarded separately, according to their localisation, instead of as a part of a whole succession - object of the devolution and transmission. Although the immovable assets of a succession are a part of a legal universality whose rules should logically apply regardless and independently of the nature of the assets composing it, our legislature seems to have abdicated from the natural order of things and to have scarified the unity of the succession whenever it contains immovable assets located on different national territories or whenever the immovable assets are located on the territory of another state than the state of the deceased’s national law at the time of his death.

Accordingly, the lex rei sitae is applied both to movable assets regarded ut singuli, and to immovable assets („imobilia vero territorium”), regardless of whether or not the latter are part of a succession (article 66, letter b) of Law no. 105/ 1992 (By way of exception, as we can see in Article 68 of Private International Law Act, no 105/ 1992, the testator is allowed to choose another law to govern the transfer of the succession other than the law which would have normally been competent: „The testator can subject the transferring of his goods by heritage to another law than that stipulated under Article 66, without having the right to remove the latter’s imperative provisions” (Art. 68, paragraph 1)) and regardless of the deceased’s nationality, his last domicile, his citizenship, or the domicile of the heirs.

‘Breaking down’ the succession according to the nature of the patrimonial elements composing it is, in our opinion, a disputable solution which ignores the attributes of universality and unity of the transmission of the succession and certainly ignores the indivisibility of the transmission. In addition, such a ‘solution’ will only make it harder to liquidate the debts of the succession, which are not always easy to locate by reference to the nature of the active elements; more precisely, the debts may have no connection to any of the assets of the succession. Our interwar doctrine stated that „the efforts of the jurisprudence to divide the debts of the succession in debts related to the immovable assets and debts related to movable assets proved palliative in practice.”Law no. 105/1992 makes no reference to the law applicable to the debts of the succession. What will this law be and how shall we determine it? Should liquidation of the debts of the succession be done according to one law or, in this matter too, shall we apply several laws? Of course, all these questions would not have arisen if our legislature had chosen to apply a unique law - like other legislatures - for the entire succession, regardless of its structure and of the nature of the passive and active elements composing it. Thus, we could have avoided the simultaneous application of several legal regimes which, often, each impose dissimilar criteria for assuming the debts of the succession. On the other hand, dividing the succession, as far as the applicable law is concerned, according to the nature of the elements composing it often gives birth to obviously unfair consequences among the heirs. This is because not all countries have the institution of the forced portion; among those that do, its nature and extent differ from one country to another; and the scope of the persons included in the category of forced heirs also varies. Let’s imagine for example that a deceased has two immovables of equal value: one in France and one in England. He passes them on to his two children. The second child (who received the immovable located in England) could demand his share of the French immovable corresponding to the forced portion while the first child (who received the immovable located in France) will not be able to claim anything of the English property because this system does not recognize the institution of forced heirship, allowing even (with small exceptions) the total disinheritance of the blood relatives regardless of their rank. Although, in this case, the deceased’s intention was to divide his estate equally between his two children, giving each of them assets equal in value, the final result is profoundly unfair due to the fact that several laws apply to international successions. This is due to „the game of forced portion,” which is calculated in a different manner for each set of assets governed by a different law (See Cour de cassation, chambre civile (Civ. 1 re), 4 dec. 1990 in: Clunet 1991, p. 398, note Revillard M., Rev. crit. 1992, p. 76, note Droz G.A.L. for French private international law. We can explain the division of the estate from the point of view of the competent law by the French jurisprudence’s effort to eliminate, as much as possible, the fraud in this matter. Thus, the French doctrine considers that the testator cannot be allowed to choose the law applicable to the estate based on the principle of freedom of contract. In matters of commercial contracts, the parties have this liberty in order to eliminate any hindrances that might be stipulated by the internal laws of the states. Instead, succession law reflects certain social concepts in family and property matters which materialize as imperative rules not generally compatible with the possibility of choosing the applicable law. On the other hand, it is considered that the freedom to choose the law applicable to the succession would open the possibility to avoid the rules stipulating forced heirship in favour of the close relatives and the surviving spouse, which cannot be permitted. Following the same line of thinking, it has been argued that we should fear more the risk of fraud inherent to any professio juris, to the extent that it would arise from a unilateral deed in favour of a third person rather than in contract matters where this risk is limited by the natural opposition between the parties’ interests (Audit B., op. cit., note 30, p. 722). This is why this factor (the freedom to choose the applicable law) - states the same doctrine - is foreign to the nature of wills. The French law does not allow this possibility, and the testamentary succession is governed by the same law that governs the intestate succession (ibidem; see Cour de cassation, June 19th, 1939 - Labedan vs. Labedan, on which see note 20 above). As a consequence, the deceased shall only be able to dispose of the succession within the limits established by the law objectively applicable, as forced heirship can be reestablished if needed. In French law, subordinating testamentary succession to intestate succession expresses the doctrine’s and jurisprudence’s preoccupation with respecting the rules regarding forced heirship. This is the reason why electio juris is not permitted in the case of successions and it is considered „a factor foreign to the nature of wills” (Audit B., ibidem, p. 722), which allows the illusion of these rules. Also, this is the reason why the validity of donations- as far as the extent to which they harm the forced heirship - is also a subject of succession law (see to this respect Audit B., ibidem, pp. 723-724; Cour de cassation, March, 3rd, 1971 in Rev. crit. 1938, p. 283, note Batiffol H.)).Here is how the forced portion, designed to maintain certain equity, leads to inequity despite its purpose. Dividing the patrimony subjected to transmission by succession may generate real difficulties for the creditors of the succession, who will now have to pursue their receivables by participating in multiple probate proceedings, which sometimes may prove costly. They will also have to face different legislative conceptions regarding the liquidation of the debts of the succession. They will also have to sue different heirs - according to the title to inheritance established for different persons by different legal systems to which the succession is connected - who often fight with one another regarding the division of the debts of the succession.

On the other hand, this allows the creditors to speculate, giving them the ability to choose the better solution, even if the best interests of certain heirs are jeopardized. This means that the creditors can choose the estate from which to have their fill (In other words, if the deceased died before writing a will and he has several general legatees - each legacy composed of immovables located on different national territories - the creditors may raise their claims only against one of the legatees, leaving him broke, while the other general legatees will not have to pay any of the debts of the inheritance. This is because the assets of the succession can be located, a function of the nature of the assets and their location (in the case of immovables), while the debts of the succession do not have a fixed location (they are usually hard to locate). On the contrary, if the payment of debts was made according to unique probate proceedings and according to a single law, it would lead to an equal contribution by all the legatees.) 

Finally, among other distortions created by the scission system is its influence on some norms of personal status. According to Article 807 of the Romanian Civil Code, a person between the ages 16 and 18 may leave a testament only for half of the estate he could have had if he was 18. How will we calculate the half for which the person between the ages of 16 and 18 can leave a testament? It would be only logical to assume that this half is calculated from the entire estate regardless of the place where the assets are located, and not only the estate subject to the Romanian law. Especially that, since it is a matter of personal status, it should have no connection either with the location of the assets of the succession or with the applicable law. For example, if such a person leaves a testament for the only immovable located in Romania, normally and logically his testament should be validated if the value of his other assets located abroad is higher than the half for which he could leave a testament. Still, we believe that even if we are in the presence of an issue regarding personal status, in order to calculate the ‘half’ we have to relate to the whole - which is composed of all assets governed by the Romanian succession law: all movables of the deceased who was a Romanian national at the time of his death, all of his immovables located in Romania, and all the immovables located abroad which are governed by the Romanian law as an effect of the remission of the conflict law of the country where the immovables are located (This is also the case, for example, of some immovables located in Germany and belonging to a deceased Romanian national. In this case, the Romanian conflict law stipulates that the applicable law is the law of the place where the immovable is located (Article 66, letter b) of Act no. 105-1992), which is the German law (if the testator does not choose the German law), but the German conflict law refers to the national law of the deceased (Article 25 of the Introduction Law to the German Civil Code - EGBGB) and this remission is accepted by the Romanian law system (Article 4 paragraph 1 of Act no. 105-1992) and as a consequence, the Romanian succession law is applied. We have to mention that in Romanian private international law operates a single renvoi system (Article 4 paragraph 2 of Act no. 105-1992).) In other words, for the Romanian legislature the immovables located abroad (and which are not governed by the Romanian law following a renvoi) are simply inexistent. This is the natural consequence of  the principle stipulated under Article 66 of Act no. 105-1992, or more precisely, another anomaly resulting from the separation of the assets of the succession and their assessment to different patrimonies ‘belonging’ to the same person.

IV. PROFESSIO JURIS IN THE MATTER OF INTERNATIONAL SUCCESSIONS

One of the innovations of Act no. 105-1992 is the introduction of professio juris in matters of successions.

By professio juris we mean the testator’s choice of the succession law applicable to his estate. As an effect of this choice, the lex successionis determined according to objective connecting factors (the location of the immovables or the citizenship of the deceased as far as the movables are concerned) is replaced with the chosen law.

According to Article 68, paragraph 1 of the Act „The testator may choose another law to govern the transfer of the estate, than the law stipulated under article 66 paragraph 1 of the Act, without dismissing its imperative provisions.” From the first glance we notice the dilettante and opportunistic character of this text.

In the wording of this article we meet the problem of the domain it governs. As far as this aspect is concerned, we noted in our literature the opinion of D.-A. Sitaru,321 according to whom the testator’s right to choose the law applicable to the succession is limited to the transfer of the testamentary succession. We can infer this opinion from the author’s wording:

„(...) in the case of testamentary succession the conflict of law rules stipulated under article 66 - namely the one stating the succession to movables is governed by the deceased’s national law and the one stating that the succession to immovables is governed by the law of the place where the immovable is located

- are not mandatory and the testator may choose, at his will, a different law.”

We do not agree with this opinion because:

a) the legislature in Article 68 of the Act no. 105-1992 speaks about the testator’s choice to „transfer the succession according to a law different from the law stipulated under Article 66 (...)” without differentiating between testamentary and intestate succession. And because ubi lex non distinquit, nec nos distinquere debemus;

b) the fact that the testament is the legal instrument used to express and materialize the testator’s option to apply a certain law cannot and should not lead to the conclusion that this right to choose is limited to the testamentary succession. In fact, the testator’s right to choose exists regardless of the contents of the testament, more precisely, regardless of whether or not the testament contains a legacy;

c) on the other hand, it seems senseless on the part of the legislature to expressly stipulate the testator’s option to choose the law applicable to the succession if such an option is limited to the testamentary succession, as it is obvious that this right exists implicitly as long as - even if there was no legal text in this respect - the testator enjoys a discretionary right on the disposable portion of the estate.

It is possible for the testator to include in his will an electio juris clause without leaving any legatees. It is obvious that in this case the law chosen by the testator shall apply to the intestate succession; since there are no gifts there is no testamentary succession. But if there are gifts, the law chosen by the testator shall apply to both the intestate succession and to the testamentary succession.

Therefore, the law chosen by the testator shall apply both to the testamentary succession and to the intestate succession. It shall apply to the latter only when the testator leaves a testament comprised of a single disposition - designating only the law applicable to the succession or other clauses that neither concern the transfer of the succession nor the disposition of the estate.

The second observation we make concerns the significance of the term „im-perative disposition” as used in the final part of Article 68, paragraph 1 of Act no. 105-1992 regarding private international law relationships. Thus, the legislature allows the testator to choose a law to apply to his succession different than the one that would have applied - the deceased’s national law at the time of his death, as far as his movables are concerned and, respectively, the law of the place where the immovables are located, as far as immovables are concerned. Nevertheless, he cannot dismiss the ..mandatory provisions” of the succession law stipulated in Art. 66. In other words, „The testator can subject the transferring of his goods by heritage to another law than that stipulated under Article 66, without having the right to remove the latter’s imperative provisions” (Art. 68, paragraph 1).

About this aspect, our literature provides that by ‘imperative regulations’ of the applicable law - meaning of the succession law applicable according to the objective localization factors - we must understand the public policy provisions of the private international law. We do not believe this opinion is correct. First, the text of this article refers explicitly to the imperative regulations of the applicable succession law pursuant to Article 66, meaning those of the internal law belonging either to the State whose citizenship the deceased had at the time of his death (in the case of the movables of the succession) or to the state where the immovables are located (in the case of the immovables of the succession). In other words, „the choice” must refer to the contents of the above mentioned succession laws. This only demonstrates that the testator’s option to choose the law is only illusory since, in fact, from the point of view of the international private law it has no significance as a factor of judicial localisation. Without exception, the „chosen law” must comply with the mandatory provisions of the deceased’s national law or the law of the place where the immovables are located. In other words, the right to choose the applicable law is subordinated to the flexibility of the above mentioned laws. Second, the legislature could not have thought of the international private law’s public policy because it is a general eviction clause for the foreign law [Article 8 letter a) of Act 105-1992] and consequently, there is no need to reiterate it in Article 68.

This attitude of the legislature is inexplicable and only proves that it does not understand the professio juris’s role in successions as a flexibility factor and a source of certainty and security in international succession relationships, thus permitting an anticipation of the law applicable to the succession at the time of its opening (Indeed, the role of professio juris is to offer the testator predictability and security regarding the applicable succession law by giving him the opportunity to designate the lex successionis. On one hand, the testator knows (or may know) the internal succession law at the time when he prepares his will, on the other hand, at an international level, determining the succession law applicable to the succession may not be as certain due to ‘the game’ of conflict laws. Only the testator’s personal status is always subject to his national law at the time when the will was prepared, and all the other provisions of the will - regarding the transmission of the succession -shall be governed by lex successionis. By giving the testator the opportunity to choose the law applicable to the succession, we offer him the privilege to know, from the very moment he prepares his testament, the law which he should refer to.)We believe that by ..imperative regulations” the legislature contemplates mainly the regulations regarding the internal succession law (belonging to the national law of the deceased’s or the law of the place where the immovables are located) and limits the discretion of the testator to distribute his assets under a will: or more specifically, the regulations regarding the reserve. This means that the provisions of the chosen law shall apply to the entire succession only if there are no compulsory heirs. If there are compulsory heirs, the chosen law shall apply only as far as the disposable portion is concerned. On this assumption we create greater fragmentation of the transmission of the estate, as we first have to determine which law is ..objectively” applicable (or the succession laws objectively applicable). It is this law that establishes the extent and nature of the reserve, and it is only then that the regulations of the chosen law will apply to the disposable portion. A pure proof of opportunism! Because pursuant to the internal legislation the testator could do whatever he wanted as far as the disposable portion was concerned and it was not necessary that the legislature ..allowed” the testator’s choice of law on the plan of private international law. This is why we assume that Article 68 paragraph 1 of the law is senseless and illogical. What’s the reason in ..deceiving” the testator by allowing him to choose the law to be applied when this choice will be constantly subjected to a ..conformity control,” referring to the contents of the imperative regulations of the law objectively applied? Thus, professio juris exists only formally and only in the obscure imagination of our legislature, as it is not an independent localization factor based on the real need of certainty and predictability meant to reunite the succession. On the contrary, it is subordinated to the internal succession law (determined according to Article 66) contributing even more to the fragmentation (division) of the succession. This is further proof of the mentality at the level of the internal succession law that subordinates, according to the French model, the testamentary succession to the intestate succession, and at the level of the private international law it is proof of the substantial character of the regulations regarding the conflict of laws in the matters of successions. (For more analysis of the substantial character of the conflict regulations in the matters of successions from a French perspective, see Billarant S., Le caractere substantiel de la reglementation franqaise des successions inter-nationales. Reflexions sur la methode conflictuelle, Paris, 2004.)

The third observation refers to the fact that the wording of Article 68 paragraph 1 is silent about the limits of the choice of law applicable to the succession. We believe that we can only explain this by the manner in which the legislature chose to regulate the freedom of contract in the matters of successions (professio juris). Since, anyway, the chosen law has „to bend” in front of the imperative regulations of the law objectively applicable, any limitation of choice (both as far as the choosing criteria is concerned and as far as the number of laws chosen) seemed senseless.

Fourth, the choice made by the testator shall contemplate the material law of that country, with renvoi being excluded. The choice made by the testator shall relate to the material law of the respective country without renvoi. Although this solution is provided for only in contract law (Article 85), we have to extrapolate it, or apply it by analogy, to the matters of successions when the applicable law is chosen through a testament, since the reasons are the same in both situations.

Fifth, as far as form is concerned, the choice has to be made as to the form of testaments, provided by the law.

Sixth, the very existence and validity of the testator’s consent and the validity of conditions in the testament are going to be ascertained according to the chosen law.

As far as the means to locate international successions is concerned, especially their degree of flexibility, the national systems of private international law can be divided into several categories:

a) Systems which do not allow the possibility of choosing the law applicable to the succession, based entirely on objective factors of localization. Such systems are, for example, the common law system ( According to these systems, the succession to movables is governed by the law of the deceased’s last domicile, and the succession to the immovables is governed by the law of the place where they are located. For details, see Dicey A.V., Morris J.H.C. & Collins L., Conflict of Laws, 14lh ed., vol. 2, London 2006, pp. 1236-1279; Morris J.H.C., The Conflict of Laws, 6lh ed., by McClean D. & Beevers K., London 2005, pp. 447-457; Clarkson C.M.V., Hill J., The Conflict of Laws, 3rd, Oxford 2006, pp. 444-455; Hayton D. (ed.), European Succession Laws, Jordans 2002, p. 81 and next.) and the French (Audit B., op. cit., (note 30), pp. 717-736; Bureau D., Muir Watt H., Droit international prive, Tome II, Partie speciale, Paris 2007, pp. 233-246; Mayer P., Heuze V., Droit international prive, 8e ed., Paris 2004, pp. 583-593; Niboyet M.-L., de Geouffre de la Pradelle G., Droit international prive, Paris 2007, pp. 28-30; Boulanger F., Droit international des Successions, Paris 2004.) , Austrian and Spanish systems;

b) Systems which allow the possibility of choosing the law applicable to the succession, but they limit its effects regarding certain assets of the estate. The typical example is the German one. Article §25 II of the Introductive law of the German Civil Code (EGBGB) allows the testator to choose the German law with regard to the immovables located in Germany. But, according to Article § 25 I EGBGB, the entire estate is subjected to the deceased’s national law at the time of his death, regardless of the nature of the assets of which it consists. Thus it results that this possibility of choice only refers to foreign citizens. More precisely, the foreigners who acquire immovables in Germany and whose succession law, according to the German conflict law, is their national law. Thus, professio juris is limited; the choice of law is limited to the immovables located in Germany. Article §25 II of EGBGB contains a unilateral conflict law which defies the principle of multilateral conflict laws stipulated for under article 3 EGBGB; thus, it is an exclusive rule. Article 25 II EGBGB provides for two situations when the testator may dispose of his immovables located in Germany by choosing the German law: his national law (Art. 25 I EGBGB) allows him to choose by renvoi the German conflict law, or if his national law does not contain such provisions, then he may invoke article 25 II EGBGB; but, in this case he risks that his choice might not be recognized outside Germany;

c) Systems which allow the possibility of choosing the law applicable to the succession, but they allow it only within the limits of internal forced heirship, which is determined according to objective localization factors. This is the case of Article 68 of the Romanian private international law (Act no. 105-1992) and other recent codes. Thus Article 79 of the Belgian Code of Private International Law - adopted by the Act of July 16th, 2004, in force since October 1st, 2004, states that:, A person may designate the law applicable to his entire estate. The choice will only have effect if that person upon the designation or at the time of his death had the nationality of the State concerned or had his habitual residence on the territory of that State. Such designation cannot result in depriving an heir of the reserved part, which is guaranteed by the law applicable in accordance with article 78. The designation and revocation thereof must be expressed in a declaration taking the form of a will.”

We must first notice that the choice must cover the entire estate; a partial choice is not allowed as it would lead to a „depegage du patrimoine.” Then, the choice must regard either the succession law of the state whose citizenship the deceased had (at the time of the choice or at the time of his death) or the law of the state where the deceased had his habitual residence (at the time of the choice or at the time of his death). But, regardless of the situation, the chosen law shall not reduce the reserve provided for by the law of the deceased’s last habitual residence (as far as the movables are concerned) or, if it is relevant, the law of the place where the immovables are located. This means that professio juris is losing its autonomy, and that it is subordinated to the objective localization factors stipulated under Article 78. In other words, the exercise of the right to choose is only possible within the limits of the internal succession law determined according to objective criteria. Without doubt, this is a false recognition of professio juris in succession matters, and it creates more problems than it solves; it rises from the mentality of the intestate succession’s superiority over the testate succession.

The Bulgarian Code of Private International Law from 17 May 2005 also follows the same line. According to its Article 89:

(1) The succession of movable objects shall be settled by the law of the state, where the testator had his/her customary residence at the moment of his/her death.

(2) The succession on immovable objects shall be settled by the law of the state, where the objects are located.

(3) The testator may choose the succession of his property as a whole to be settled by the law of the state which he/she was a citizen of at the moment of his/ her death.

(4) The conditions for the validity of the choice of applicable law and its cancellation shall be settled by the chosen law. The choice of applicable law and its cancellation shall be done in the form of a testament disposition.

(5) By way of choosing the applicable law the reserved part for the successors defined by the applicable law under Para. 1 and 2 shall not be impacted.

In this case as well, the chosen law is subordinated to the imperative dispositions of the laws mentioned in paragraphs 1 and 2 of Article 89, in order to maintain the nature and the extent of the reserve established by these laws. On one hand, it is requested that the choice regards the entire estate to avoid depegage. However, on the other hand, paradoxically, the succession is more fragmented as a consequence of relating the chosen law to the regulations regarding the reserve, belonging either to the state where the deceased had his last habitual residence or to the law of the state where the immovables are located.

Similar are the provisions of Article 46 of the Italian law regarding the reform of the Italian private international law system of May 31st, 1995. This article, if the deceased was an Italian citizen, subordinates the law chosen by the testator (the law of the deceased’s habitual residence) to the internal regulations regarding the reserve of the forced heirs who at the time of the deceased’s death had their habitual residence in Italy.

d) Systems which allow the testator to choose the law applicable to the succession without subordinating that choice to the mandatory rules of the legal system determined according to the objective localization factors. Thus, professio juris becomes an autonomous localization factor equal to the objective factors and yet free from them. Indeed, a basic scientific rigor demands that once we give the right to choose the applicable law and since this right was exercised, the chosen law shall take the place of the law that would have applied in the absence of the choice. This is the correct way to see professio juris. We can enumerate from this category the Swiss law ( See Articles 90-91 of the Federal Swiss Law of December 18th, 1987 regard-ing the private international law. For details, see Dutoit B., Droit internationalprive suisse. Commentaire de la loi federate du 18 decembre 1987, 4 ed., Bales (etc.) 2005; Honsell H. / Vogt N.P. / Schnyder A. / Berti S. (Hrsg.), Basler Kommentar IPRG, 2. Aufl., Basel 2007; Bucher A. / Bonomi A., Droit international prive, 2e ed., Bales 2004; Bucher A., Droit international prive suisse, t. II: Personnes, Famille, Successions, Bales 1992.) elaborated based on the Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons -The Hague Convention on Succession (Article 5) (See article 5 of the Convention. We do not propose here to analyze the provisions of the Convention in this regard. For further details see Scoles E. F., The Hague Convention on Succession, in: Am. ). Comp. Law, vol. 42, no. 1. (Winter, 1994), pp. 85-123; Borras A., La Convention de La Haye de 1989 sur la loi applicable aux successions a cause de mort et l’Espagne, in: E Pluribus Unum. Liber Amicorum G.A.L. Droz, The Hague/Boston/London 1996, p. 7; Lagarde P., La nouvelle Convention de La Haye sur la loi applicable aux successions, in: Rev. crit. 1989, p. 249; Boulanger F., Codifications nationales et convention de La Haye du ler aout 1989: l’improbable unification du droit international des successions, in: Le droit international prive: esprit et methodes, Melanges P. Lagarde, Paris 2005, p. 155.) and the Dutch system (which integrated the provisions of the Hague Convention of 1 August 1989).

We must not infer that the choice of the law applicable to the succession can be made with discretionary or unlimited powers. There must always be equilibrium between the interest of the testator and the interest of his relatives (his close heirs). In other words, the testator can only choose a law with significant connections to his person and, implicitly, to his succession. Limiting the choice is a matter of private international law. Thus, we must not be mislead: if the choice is coupled with unconditioned subordination to the mandatory rules of the internal law competent according to the objective localization factors of the succession, professio juris is only illusory and has no significance from the point of view of private international law  (For a more detailed study on the professio juris in succession matters, see Davi A., Lautonomie de la volonte en droit international prive des successions dans la perspective d’une future reglementation europeenne, in: Riv. dir. int. priv. proc. 2004, pp. 473-498; Idem in: Conflict of Law of Succession in the European Union. Perspectives for a Harmonisation, edited by the German Notary Institute (DNotl), Brussels 2004, pp. 387-411; Bouckaert F., „Professio Juris dans le Code de Droit International Prive Beige”, ibidem, pp. 417-427.)

V. AN EXIT PLAN

In conclusion, we believe that future European regulations on the matter should be associated to those regarding the personal status, since both are to be subjected to the habitual residence of the person (respectively, in the case of successions, the law of the last habitual residence of the deceased) (Siehr K., General Problems of Private International Law in Modern Codifications. De lege lata and De lege ferenda, in: this Yearbook 2005, p. 59; Hayton D., Determination of the Objectively Applicable Law Governing Succession to Deceased’s Estates, in: Conflict of Law of Succession (note 54), pp. 363-364.) The questions relating to successions are inseparably connected to the deceased for they spring from his death. Thus we believe that it is vital that a person must have one and only one connecting factor, based on habitual residence - which should be adopted as the European connecting factor - and its definition should be clearly laid down.

At the same time, we believe that a future European regulation dedicated to successions should allow professio juris, and thus the testator shall be able to choose the law he knows best, to which he related during his life, or the one which best reflects his interests.

The testator’s choice of the law applicable to the succession should be limited, in our opinion, to the deceased’s national law (the law of the state whose citizenship he has either at the time of his death or at the time when he makes the choice), to the law of deceased’s domicile (either at the time of his death or at the time when he makes the choice), or to the law applied to the matrimonial property regime. If the deceased has more than one citizenship, the chosen law may be any of the national laws the deceased had either at the time of his death or at the time when he makes the choice.

We believe that the choice must regard the entire succession; a partial choice is not recommendable, so as to avoid the depegage while respecting the principle of the unity of the succession rules.

Finally, we believe that the place where the assets of a succession are located should bear no part in establishing the law applicable to the succession, regardless if we talk about the chosen law or the law applicable in the absence of a choice.