Application of Succession Regulation 650/2012 to the Succession of Diplomats or Consuls?

https://doi.org/10.63189/HODJ9627

Prior to the introduction of the European Succession Regulation[1] in EU states[2] in 2015, the question of applicable law and jurisdiction in matters of succession rarely posed significant challenges, even in the case of succession of individuals belonging to a state’s foreign service. As a general rule, the law governing succession was that of the deceased’s nationality. The jurisdiction of the state of nationality held primary or exclusive jurisdiction[3] over the settlement of estates.

Although there was no overarching treaty harmonizing the inheritance laws of various states[4] (including those within the European Union), the practice was generally consistent. Foreign succession rulings were typically recognized, and some states had procedures in place for judicial acknowledgment of foreign judgments. In cases where the deceased owned real estate in multiple countries, it was sometimes necessary to initiate separate inheritance proceedings in each state, as many jurisdictions claimed exclusive authority over real property located within their borders.

The mere fact of a foreign citizen residing abroad generally did not lead to significant legal consequences in terms of applicable law or jurisdiction over succession. This principle also applied to diplomats or consuls who passed away while serving abroad. Typically, a single succession proceeding would be conducted in the country of the deceased’s nationality. Since foreign service personnel rarely owned property in the receiving state, there was usually no need for local courts to intervene based on exclusive jurisdiction over assets within the receiving country.[5] In practice, before the European Succession Regulation there was little distinction in how cross-border inheritance cases were handled between EU and non-EU countries.

Regulation 650/2012, which applies to individuals who passed away after August 17, 2015, introduced new rules governing succession, particularly in cross-border cases. These changes resulted in a diversification of rules depending on whether the inheritance case involved an EU or non-EU country. Contrary to expectations, the Regulation did not create uniformity in the application of succession laws or jurisdiction in cross-border cases; specifically, it did not allow courts to automatically apply their own national law instead of foreign law in such matters.

Under Article 22 of the Regulation, the law applicable to a succession is generally that of the deceased’s habitual residence at the time of death. This law is applied universally, as stipulated in Article 20, meaning that both EU and non-EU laws can govern the succession of an EU citizen. Thus, foreign law (including non-EU law) may apply to the inheritance of an EU citizen, depending on their place of habitual residence.

Article 4 establishes that jurisdiction is also based on the deceased’s habitual residence at the time of death, provided it is within the EU. This means that if the deceased was an EU citizen living in another EU country, the courts of the country where the individual died have jurisdiction and will apply their own laws to the inheritance. In such cases, national rules, such as those granting exclusive jurisdiction over real estate, no longer apply.

For individuals who passed away after August 16, 2015, any succession titles (including the unified European Certificate of Succession) issued in one EU country are legally recognized in other EU countries. If an EU citizen dies while habitually residing in a non-EU country, the law of that country generally governs the succession, and jurisdiction is determined according to national laws.

Additionally, the Regulation allows testators to specify, in the will or by means of other mortis causa declaration,[6] the "choice"[7] of the law of a country whose nationality he possesses to govern their succession. This provision can prevent the application of foreign law. Moreover, if the chosen law is that of an EU country, this choice can allow heirs to transfer jurisdiction from the deceased’s country of habitual residence to the country of the chosen law (through a prorogation agreement[8]). This mechanism is of particular interest to EU countries seeking to protect the integrity of their legal systems, as it encourages citizens residing abroad to choose their home law for succession matters. By doing so, heirs can shift jurisdiction back to the EU country of the deceased’s nationality, even if they resided abroad. In cases where an EU citizen died while habitually residing in a non-EU country, the legal proceedings in their home country are typically conducted in accordance with the law chosen by the deceased.[9]

The treaties governing diplomatic and consular relations only touch upon succession matters peripherally, focusing predominantly on diplomats’ involvement in inheritance as heirs rather than testators.[10] Under Article 31(1)(b) of the 1961 Vienna Convention, a diplomat cannot invoke immunity in civil cases when they are required to appear before a court in the receiving state as an heir, legatee, or administrator of an estate. However, such situations have been rare in practice. It is uncommon for residents of a receiving country to designate a foreign diplomat as an heir in their will. On the other hand, inheritance involving a diplomat's family member may engage this exception when the receiving state has exclusive jurisdiction over specific assets, such as real estate, which forms part of the estate.

The immunity granted under international law was never intended to obstruct legal proceedings that are generally confirmatory in nature, particularly those related to the stabilization of property rights after a person’s death – an event beyond the control of the parties involved. Hence, the limitation of consular immunity in Article 31(1)(b) of the Vienna Convention, as well as the general limitation arising from the functional nature, ought to be viewed positively in this context.

The absence of diplomatic or consular immunity[11] in matters described above does not predetermine the scope of jurisdiction or the applicable law. These determinations must take into account conflicts of law and jurisdictional competence. The key question here is whether Regulation 650/2012 applies to the succession of diplomats who die while serving abroad, or to the estates of their family members living with them. If it does apply, the applicable law could be the foreign law of the country where the diplomat was stationed, even if it is outside the EU. In contrast, if the diplomat’s habitual residence is in another EU country, both the jurisdiction and the applicable law of that country would govern the succession.

It is important to note that legal doctrine and state practice have long accepted that foreign service personnel stationed abroad are not considered habitually resident in the receiving state.[12] Instead, there exists a legal fiction that maintains their habitual residence in the sending state. Although diplomats may reside in the receiving state for several years during their service, for succession purposes they are legally considered residents of their home country. This means that in succession matters, diplomats are treated as if they had uninterrupted habitual residence in the sending state at the time of death, preventing Regulation 650/2012 from having any direct effect on their succession or that of their family members. As such, their inheritance is not classified as cross-border under the regulation.

This legal fiction of habitual residence in the sending state is rooted in two sources. First, it arises from the nature of diplomatic and consular law itself. Indeed, it should be noted that, in principle, such a solution is supported by the essence of diplomatic and consular activity and its location in the normative system of international law. Diplomats represent their home country abroad. Consuls apply the law of their sending state even while performing legal acts in the receiving state. In essence, they act as external organs of their home state, applying its laws on foreign soil. This fiction also serves to insulate diplomatic activity from the influence of European law, a principle that has been affirmed in past rulings by the Court of Justice of the European Union.[13]

Second, the concept of work-related residence plays an important role. A diplomat’s or consul’s stay in the receiving state can be viewed as "forced" for conflict-of-law purposes, though not in the sense of actual physical coercion. This situation can be compared to that of soldiers on military missions abroad,[14] where their stay is mandated by official duties rather than personal choice. This approach with respect to foreign service personnel has been supported by state practice, national court rulings, and legal scholarship.[15]

Thus, when Regulation 650/2012 came into effect in 2015, it did so within the framework of the long-established legal fiction of diplomats' or consuls' habitual residence in their sending state. As a result, diplomats and professional consuls were effectively excluded from the scope of the regulation. The death of a diplomat while serving abroad does not affect the jurisdiction of their home state, which remains competent to handle succession matters, nor does it change the applicable law, which continues to be that of the sending state.

Since the implementation of Regulation 650/2012, several such cases have arisen across EU countries, including Poland. In Polish practice, courts and notaries[16] have generally applied the principle that members of the foreign service retain their habitual residence in the sending state. Consequently, when Polish foreign service members pass away, Polish inheritance law and jurisdiction are automatically applied. This approach has proven convenient for the Polish foreign service, as it avoids the complexities of cross-border succession and ensures the application of familiar laws. However, foreign service members, who are largely unaffected by the complications of Regulation 650/2012, may have little motivation to promote the solutions outlined in Article 22 of the Regulation, such as encouraging citizens in their consular district to choose the law of their nationality for succession matters.

In conclusion, it is important to highlight that the exception to immunity in Article 31(1)(b) of the 1961 Vienna Convention becomes largely irrelevant when combined with the legal fiction of habitual residence in the sending state and the jurisdictional rules of Regulation 650/2012. This is particularly the case when both the sending and receiving states are EU countries subject to the Regulation. In such scenarios, the receiving state’s jurisdiction is effectively excluded under the Regulation, even if the estate includes assets, such as real estate, that would otherwise grant jurisdiction to the receiving state under national law. Succession proceedings for a diplomat will therefore take place exclusively in the sending state, which is legally considered the diplomat’s habitual residence at the time of death. As a result of the adoption of the aforementioned fiction, this state is the sending state (against which immunity does not apply anyway). Since the sending state already holds jurisdiction, there is no need to invoke an exception to immunity in the receiving state, as the receiving state lacks jurisdiction under Regulation 650/2012.[17]

[1] 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 (OJ L 201, 27.7.2012, p. 107–134). Hereinafter as the Succession Regulation or Regulation 650/2012.

[2] The regulation is not binding on Ireland and Denmark. The United Kingdom, which withdrew from the European Union on January 31, 2020, was also not bound by its provisions at the time it was applied.

[3] In Polish law, exclusive jurisdiction in inheritance cases (which are non-contentious in nature) generally derives from the fact that a property located in Poland is part of the inheritance estate (Article 11102 of the Polish Code of Civil Procedure). Currently, in cases where Regulation 650/2012 has jurisdiction, exclusive jurisdiction due to real estate has been excluded. However, these rules apply to Polish cases with a cross-border element considered outside the jurisdiction of Regulation 650/2012.

[4] Among EU states, bilateral legal aid agreements played a limited role in harmonizing succession laws. These agreements introduced common rules regarding both the law applicable to succession and jurisdictional arrangements, particularly for immovable property, which was often subject to the exclusive jurisdiction of the state where the property was located. This led to a bifurcation of jurisdiction, with separate proceedings occurring in each state party to the agreement, and occasionally resulted in bifurcation of the succession law, where different laws applied to different assets. Such agreements between EU Member States – e.g. the 1959 Polish-Hungarian Agreement on Legal Relations in Civil, Family, and Criminal Matters – are no longer applicable due to Article 75 of Regulation 650/2012. However, agreements between EU Member States and non-EU countries remain in force.

[5] And if such a need would arise, Article 31(1)(b) of the Vienna Convention on Diplomatic Relations, adopted in Vienna on April 18, 1961 (UNTS 1964, No. 7310, p. 96), explicitly excludes diplomatic immunity in matters of succession. Additionally, Article 37(1) extends analogous immunity to members of the diplomat’s family who form part of the diplomat’s household. Consequently, inheritance involving a diplomat may pertain to both the diplomat and members of their family, who enjoy similar diplomatic immunity at the time of death.

[6] The reference to the choice of law in Article 22 of Regulation 650/2012 reflects the typical "newspeak" often found in EU legislation. In practice, this is not a genuine choice, as it merely allows an individual to designate their native law as the applicable law of succession. It is difficult to speak of true choice when one can only "choose" a single legal system, or opt not to choose at all.

[7] Historically, the application of a person's national law was standard across European legal systems prior to 2015, but now it must be framed as a so-called "choice" under the Regulation.

[8] See Article 5 of Regulation 650/2012.

[9] Prorogation is unnecessary in this case, as the jurisdiction of the state of nationality already follows from its own national laws (but cf. Article 10 of Regulation 650/2012).

[10] Which can often mean, however, that it is also the succession of a person with diplomatic status due to the scope of Article 37(1) of the Vienna Convention on Diplomatic Relations.

[11] With regard to consular immunity, it is important to note that, under the 1963 Vienna Convention on Consular Relations (UNTS 1969, vol. 596, p. 261), such immunity is functional in nature. As a result, it does not extend to succession matters involving consular officials as heirs or legatees, since these matters fall outside their professional (functional) duties. However, under numerous bilateral treaties, which serve as lex specialis to the 1963 Vienna Convention, consular immunity is often broader. These treaties frequently contain waivers of immunity similar to those provided in Article 31 of the Vienna Convention on Diplomatic Relations.

[12] See E. Satow, A Guide to Diplomatic Practice, London 1922, pp. 324–325.

[13] Judgment of the Court (Grand Chamber) of October 16, 2012, in Case C-364/10, Hungary v. Slovakia. In this case, which involved the prohibition of the entry of the Hungarian President L. Sólyom’s into Slovakia, Slovakia successfully argued that EU law was not applicable to issues of diplomatic relations (para. 22 of the judgment). Slovakia also referenced the Commission v. Belgium case, which concerned Brussels property taxes (Judgment of the Court [First Chamber] of March 22, 2007, in Case C-437/04). In that case (para. 33 of the judgment), the Court affirmed that bilateral diplomatic relations between Member States are outside the scope of EU law (para. 34 of the Hungary v. Slovakiajudgment).

[14] In Polish legal doctrine, Prof. Maksymilian Pazdan argues that soldiers on long-term foreign missions cannot be considered as having their habitual residence in the receiving state. See M. Pazdan, Prawo prywatne międzynarodowe, 16th edition, Warsaw 2017, p. 348. This view aligns with centuries of jurisprudence in other countries. For instance, in English law, a soldier was considered to retain the domicile of the place where they enlisted for military service, and prisoners of war were similarly not regarded as having changed their domicile. See J. W. Dwyer, Leading Cases on Private International Law, Chicago 1904, pp. 96–97. Additionally, British courts held that it was impossible to change domicile even in cases where private individuals (not holding official positions) moved to exotic places where a civilized legal system was not in force. See J. W. Dwyer, op. cit., p. 102 et seq. Likewise, under French law, the qualification of a foreigner's official residence as their domicile was not permissible. Cf. J. P. Niboyet, Traité de droit international privé français, Tome I: Sources – Nationalité – Domicile, Paris, 1947, p. 558 et seq.

[15] Cf. J. Westlake, A Treatise on Private International Law, or the Conflicts of Laws. With Principal Reference to Its Practice in the English and Other Cognate Systems of Jurisprudence, and Numerous References to American Authorities, London 1858, pp. 44–45. It should be noted, however, that residency in the receiving state has always been considered to be preserved in the case of honorary consuls who previously functioned in the receiving state (usually as citizens of that state).

[16] In Poland, interested parties can choose whether the succession proceedings will be conducted by a notary or by a district court. Due to the speed of the proceedings, most proceedings are conducted before a notary.

[17] However, if one of the countries is a non-EU state, exclusive jurisdiction over certain assets and thus a waiver of immunity under Article 31(1)(b) of the Vienna Convention on Consular Relations may come into play.