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universul juridic magazin

Scope of Regulation (EU) 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 Certi

Private international law is, par excellence, a patchwork, a space of confluence; it is by no means a homogeneous space. By virtue of its rules, it is a permanent invitation to dialogue. It is a space where different mentalities, traditions, and cultures (civilisations) meet. The diversity of these juridical cultures and traditions and the differences among them is what lends beauty and colour to this space. Private international law constantly invites us to travel, to engage in dialogue with all these traditions and customs, to get to know them and to influence them or even to allow ourselves to be influenced by them. In other words, it invites us to make them bear fruit at home, too, and in this manner to enrich ourselves. But it also means so much more than this: it means a continuous and constant invitation to tolerance. Tolerance towards our fellow human beings, towards their traditions and customs, and, ultimately, tolerance towards ourselves. Private international law thus invites us to embark on a journey, the comfort and safety of which depend, to a large extent, on the attitude we have towards the “representatives” of these cultures, at home, on the way in which we try to understand them, to tolerate and accept them… It is a journey through space, par excellence. However, it depends on how we observe and perceive this journey: as “foreigners” or as something representing “something different” from what we were used to, but which makes us complete, something that can, however, belong to us, which, once it is admired and respected, becomes part of ourselves, part of our ego and soul. In this study, the author deals with aspects connected with the application of the (EU) Regulation No. 650/2012 regarding competence, applicable law, the recognition and execution of court decisions and the acceptance and execution of the authentic deeds in the field of successions and regarding the creation of a European heir certificate (publ. in the Official Journal L 201, 27/07/2012 pp. 0107-0134). The study takes into account issues connected with the material and spatial field of application, including the application of the regulation in time. Also, the study analyses the regulation’s international competence rules, differentiating between the competence of the courts and that of the notaries public. The competence rules of the regulation are not applicable in the case of Romanian notaries public, because they do not exercise judicial powers, the notarial succession procedure taking place exclusively before the notary public and thus not being under the control of the courts of law. The notarial offices have different forms of organisation within the member states, following, generally speaking, the competence laws provided for this purpose by each member state. That is why, the incidence of notaries in the sphere of the competence rules provided by the regulations “should depend on whether they falling or not under the incidence of the definition of the nation of “court of law” (ground no. 21), as defined in article 3, paragraph. 2. Consequently, in the case of Romanian notaries public, taking into account that they exercise their competences in the field of successions in their own name, and not as an effect of the delegation of competences by a court of law or under the control thereof, their competence, when the succession presents elements of extraneity, will be established by the internal legislation. The state of affair is similar in France, for instance, where the notaries public are, too, excluded from the sphere of the regulation’s competence rules. The international competence of the Romanian notary public is fixed, having as a landmark the last domicile of the deceased. Thus, if the last domicile of the deceased is not in Romania (or is unknown), the competence belongs to the notary public first notified, if in his/her jurisdiction there is at least one item of real estate (art. 102, line 4, of Law no. 36/1995 regarding notaries public and notarial activity). If in the inheritance does not comprise any items of real estate on Romania’s territory, and the last domicile of the deceased is not in Romania, the competence will belong to the notary public first notified, if in his/her jurisdiction there are any movables (art 102, line 5, of Law no. 36/1995). In the situation where the last domicile of the deceased is not in Romania, and the inheritance does not comprise goods on Romania’s territory, “the competence goes to the notary public who was first notified” (art. 102, line 6, of Law no. 36/1995). One will note that the notary public enjoys a general competence, having competence regarding successions with elements of extraneity, irrespective of whether the last domicile of the author of the succession is or is not in Romania, irrespective of whether the goods that make up the inheritance are or are not on Romania’s territory. In fact, as one can see, the differentiations between the abovementioned hypotheses are relevant only for the delimitation of the competences among notaries public operating in Romania. The last domicile of the predecessor-in-title will be determined using as a landmark the law of the state on whose territory it is invoked. Usually, the last domicile of the deceased is mentioned in the death certificate.