A potential case of law evasion resulting from application
of the harmonized rules of private international law in matters of succession
Dr. Dorota Miler
University of Augsburg
Thursday, 12 September – 4:00 pm
Room V 002, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich
Article 22 of the 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 allows a person to choose the law of the State whose nationality he possesses to govern the matters of his succession. It is an exception to the general rule expressed in article 21 of this Regulation that states that “the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.”
Unlike Polish law, German Constitution guarantees a testator’s descendant an entitlement to a compulsory portion (defined by the German Constitutional Court as “a minimum economic portion in the testator’s estate that is fundamentally indefeasible and does not depend on the entitled person’s need” BVerfGE 112, 332). Therefore, the testator’s competency to deprive his child or grandchild of the portion is interpreted very narrowly under German law. As a testator’s descendant is not guaranteed his entitlement to a compulsory portion under the Polish Constitution, the courts in Poland interpret it in favor of the testator’s freedom of testation that is guaranteed by the Polish Constitution. Therefore, to be able to more freely deprive a descendant of a compulsory portion, a person can simply choose Polish law under art. 22 of the Regulation to govern his succession as whole. The problem is significant as, according to estimates, there are currently over 2 million Poles or Germans with Polish origin living in Germany.
A number of questions can be asked, for instance: Under what conditions could the application of Polish law be prohibited as evasive under German private international law? Or, alternatively, could the application of Polish law be deemed invalid based on its manifest incompatibility with the German public policy doctrine (ordre public)? Considering these issues stimulates revisiting the issue of law evasion in private international law and its relationship with the ordre public clause.
The problem of evasion of German law resulting from application of the harmonized rules of private international law in matters of succession is discussed in four steps. Firstly, the relevant German and Polish laws on compulsory portion and their practical application are briefly outlined. Secondly, the doctrine of law evasion of private international law and conditions for finding it under German law are analyzed. Thirdly, as an alternative, the public policy doctrine and its applicability in the discussed case is considered. Fourthly, the relationship between the public policy doctrine and law evasion under German private international law is examined.