Citizens of a EU Member State, heirs who have their habitual residency in the EU, or heirs of people who had their habitual residency in the UE, or who were citizens of a UE Member State can claim a right over succession assets located in France. The third paragraph recently added to Article 913 of the French civil code is a stiff and shaky piece of legislation. These requirements have to be met at the time of death. The full version of the said paragraph reads as follows:
Lorsque le défunt ou au moins l'un de ses enfants est, au moment du décès, ressortissant d'un Etat membre de l'Union européenne ou y réside habituellement et lorsque la loi étrangère applicable à la succession ne permet aucun mécanisme réservataire protecteur des enfants, chaque enfant ou ses héritiers ou ses ayants cause peuvent effectuer un prélèvement compensatoire sur les biens existants situés en France au jour du décès, de façon à être rétablis dans les droits réservataires que leur octroie la loi française, dans la limite de ceux-ci.
The word prélèvement refers to droit de prélèvement that is now underpinned by the French passion for equality. The latter has already been mentioned in a post published in 2017.1. It is not a sociological fact but a core element of French spirit that still politically divides French society, at least between left and right. As you know from this former post, the droit de prélèvement has been seen as unconstitutional because it benefited only French people. It is worth noting that the Conseil Constitutionnel has not found that the droit de prélèvement could not distinguish between different nationalities but that equally discriminated heirs should be granted the same level of protection notwithstanding their nationality. It means that a French heir would have been able to exercise his right to compensate the application of a foreign law that would have been less favourable to French nationals.2 One may therefore think that this new provision may be declared unconstitutional because it introduces a distinction between people from the EU, wether heirs, nationals, or habitual residents, and those who are not. Furthermore, this new provision completely bypasses the EU succession regulation 650/2012 even though it relies on habitual residency that is a key concept as far as this regulation is concerned.3
Hence, this new piece of legislation stands on shaky grounds. Let us now see that is stiff while flexibility is needed in international law.
As you know from the first post of this blog4, a conflict rule is a legal rule that determines what fact triggers the application of another legal rule that may be contained in a foreign legislation. This is how a judge may apply a foreign legislation. This new provision is not a conflict rule since it does not trigger the application of another rule. It therefore is stiff because it does not leave room for the application of a foreign piece of legislation that may have a closer connection to the matter than domestic law. This trigger mechanism makes private international law flexible despite the complexity of renvoi. Your interest for forced heirship in French law5 has led you to discover that French courts might apply a law that ignored forced heirship but that they made sure that the applicable law had a serious connection to the matter. This new provision does not bar courts from performing the same test. You are fully aware that, in theory as in practice, forced heirship swings alongside testamentary freedom to give French succession law its balance.6 Paying attention to theory helps to understand the intricacies of a new piece of legislation that definitely is too stiff for French international law and should be considered within the background of existing case law. Forced heirship and related concepts are regularly criticised and a groundbreaking reform is promoted by those who want a radical change to happen. Nevertheless, these concepts are still used.
It has been seen that Article 913, §3 of the French civil code was too stiff to be effective in the long term.
In brief, plus ça change, plus c'est la même chose, as English people like to say.
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See Forced heirship and globalisation at 1.2. ↩
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See Considérant 5 of Decision 2011-159 QPC, 5 August 2011 regarding Article 2 of Loi du 14 juillet 1819 relative à l'abolition du droit d'aubaine et de détraction. ↩
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See Articles 21 and ff. of the EU succession regulation. Posts about the EU succession regulation can be found in the EU Succession Regulation 650/2012 category. ↩
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See posts in the Forced heirship category. ↩