The more and more frequent use of the habitual residence criterion as head of jurisdiction or connecting factor, to the detriment of the criteria of nationality and domicile, represents one of the salient features of the instruments developed by the legislator of the European Union in the framework of European private international law on family and personal status matters.
In the same line, Regulation (EU) No 650/2012, an instrument aimed at providing an all-encompassing private international law discipline of mortis causa succession characterized by cross-border elements. In the framework of Regulation (EU) No 650/2012, the habitual residence of the deceased is indeed used as a general criterion both for the purpose of determining jurisdiction (Art. 4) and for identifying the applicable law (Art. 21), this facilitating the parallelism between forum and ius. However, there is no definition of the concept of “habitual residence” either in the succession Regulation or in the instruments of private international law of family matters.
The determination of the habitual residence of the deceased …
The identification of the habitual residence of the deceased, however, is not always easy. It is indeed a factual notion, which shall be assessed on a case-by-case basis and interpreted independently, having regard to the context and objective of the rule at stake, without the domestic law of Member States being relevant for the purpose of determining the meaning and scope. As a factual element, it should be scrutinized only in the proceeding on the merits, except in the case in which the court has not carried out the necessary assessments (ruling of 14 December 2017 No 30123 by Italian Court of Cassation, I Civil Division; ruling of 22 July 2014 No 16648 by Italian Court of Cassation, I Civil Division).
The Court of Justice of the European Union has so far mainly dealt with the identification of the child’s habitual residence (see, in this regard, this insight). However, it should be noted that, with reference to an adult and in particular in matters of succession, the determination of habitual residence may be more difficult.
Time of assessment
– Habitual residence is a mobile criterion, which can vary over time. The Regulation specifies that the moment in which it must be assessed is that of the death of the person whose succession is concerned (Art(s). 4 and 21 of Regulation (EU) No 650/2012);
Elements for the determination
Despite the absence of a notion of “habitual residence of the deceased at the time of death” in Regulation No 650/2012, some useful information is contained in Recitals 23, 24 and 25 (see also the indication provided for on this point by the Court of Justice of the European Union in the judgment of 16 July 2020, C-80/19, E.E., EU:C:2020:569, para. 37).
- An overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence in the State (Recital 23 of Regulation (EU) No 650/2012);
- Thus determined, the habitual residence should reveal “a close and stable connection with the State concerned” (Recital 23 of Regulation (EU) No 650/2012);
- The Regulation, however, allows the law interpreter to apply the law of a different State Where, by way of exception, it is clear from all the circumstances of the case” that the deceased had a manifestly closer connection with the other State (Art. 21, para. 2). Indeed, Recital 25 specifies that the connection represented by the habitual residence of the deceased can be set aside, in favour of a criterion expressing a manifestly closer connection with another State, when the deceased had transferred his/her habitual residence at a time close to death, as well as “all the circumstances of the case indicate that he[/she] was manifestly more closely connected with another State”. The use of alternative criteria, however, should not be used, according to the EU legislator, in order to circumvent any difficulties related to determining the habitual residence of the deceased;
- The main criteria to refer to for the determination are personal and professional, with a prevalence of the first over the second;
- The habitual residence of the deceased who, for professional or economic reasons, went to live abroad, regardless of the length of stay, while maintaining a direct and stable connection with the State of origin, could be identified in the latter State, to be considered as “center of the interests of his family and his social life” (Recital 24 of Regulation No 650/2012);
- In determining the habitual residence of a deceased who lived in several States, without permanently settling in one of them, nationality or the location of those assets could be a special factor in the overall assessment of all the factual circumstances. (Recital 24 of Regulation No 650/2012);
- As for the duration and regularity, the adjective “habitual” refers to the need for a certain stability and permanence, since an occasional stay cannot be considered as a habitual residence;
- The desire to permanently establish the stable center of own interests in a State also plays an important role (judgment of 19 February 2011, C-497/10, Mercredi, EU:C:2010:829, para. 51, even if it refers to the identification of the child’s habitual residence);
- The personal choices of the interested party assume a preponderant importance with respect to the actual length of stay in a State. In this regard, the situation in which a prolonged stay in a State is not the result of free choice is particularly complex for the purposes of determining habitual residence. The United Kingdom Supreme Court ruled on this point in a judgment of 9 September 2013, A (Children), Re (Rev 1) [2013] UKSC 60 with regard to the determination of the habitual residence of the child, born in Pakistan, by a woman Pakistani, habitually resident in the United Kingdom, who had been detained against her will in Pakistan by her husband. The English Court stated that a temporary absence, especially if forced, is not suitable for losing the habitual character of residence in a particular State;
- Similarly, the fact that the long-term absence from a State of first habitual residence is due to emergency medical reasons which prevented from returning to the State of origin, would not be sufficient to establish the existence of habitual residence in the first State (judgment of 5 June 2014, C‑255/13, I v. Health Service Executive, EU:C:2014:1291, para. 54);
- In determining the habitual residence of the deceased, an overall assessment of the circumstances of the case shall be carried out, within a single Member State: therefore, it is not possible for the habitual residence of the deceased to be established in two (or more) States (judgment of 16 July 2020, C-80/19, EE, EU:C:2020:569, para. 40). The identification of habitual residence in two or more Member States would result in a fragmentation of the succession, incompatible with the objectives of the Regulation (judgment of 16 July 2020, C-80/19, EE, EU:C:2020:569, para. 41; judgment of 2 October 2017, C-218/16, Kubicka, EU:C:2017:755, para. 57; judgment of 21 June 2018, C-20/17, Oberle, EU:C:2018:485, para(s). 53-55);
Ilaria Aquironi, Tommaso Ferrario
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