Il ruolo dell’autonomia della volontà nel diritto internazionale privato delle successioni

The coming into force of Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012 regarding “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” (hereafter also Succession Regulation) marked a fundamental point in the building of a system of European international private law. The new rules, coming into force on 16 August 2012, became applicable in the Member States of the European Union to all successions opening from 17 August 2015. It does not apply in Denmark, which does not participate in EU legislative activity in the area of freedom, security and justice due to Protocol No. 22 annexed to the Treaties on the EU and on the Functioning of the EU. It does not apply in the UK and Ireland as well, since both countries decided not to avail themselves of their right to opt in to the Regulation, pursuant to Protocol No. 21 annexed to the Treaties. So, in this perspective it seems necessary to point out that when the Succession Regulation refers to Member States, it means only the Member States bound by the Regulation. The new text is a coherent and complete legislative instrument. Its least satisfactory aspects, which may considerably increase in inheritance planning, relate in particular to the possibility of a choice of law applicable to succession. However, practical problems could arise from not having rendered contiguous sectors uniform, at least not until now. This is, by the way, unavoidable, in view of the incompleteness of the codification of private international law undertaken by the European Union, to which the Regulation nevertheless does make an important contribution. The new rules seem particularly important for several reasons. Without any doubt one of those is the role which is reserved to party autonomy in a certain field, that of succession law, which is traditionally averse to recognising ample room for party autonomy, especially in some civil law countries. The specific role that new regulation reserved to party autonomy provides the opportunity for reflecting on the empowerment of private actors in European Private International Law choosing the governing law and in some specific cases indeed the competent forum for dispute resolution in the new European private and procedural law system. In this respect, the thesis aims to address how the role of party autonomy increases in cross border succession law. The first chapter is focused on a general overview of how party autonomy developed as connecting factor in private international law and the doctrinal debate referring to this new concept. The starting reference point is the Mancini theory and the analysis points to the previous and successive doctrinal orientations and case law as well (e.g. incorporation theory, legal theory, coordination between legal system and reference to the competent “foreign” legal system). The second chapter addresses a comparative perspective concentrating on the role of party autonomy in the most relevant national experiences (e.g. Italy, Germany, France, Spain) and the best results gained at an international level as well, mostly from the Hague Convention of Private International Law. The work pays specific attention to the role of party autonomy in Washington and the Hague Convention of 1973 which providing, respectively, a Uniform Law on the Form of an International Will and rules concerning the International Administration of the Estates of Deceased Persons; in the Hague Convention of 1985 on the Law Applicable to Trusts and on their recognition and in the Hague Convention of 1989 on the Law Applicable to Succession to the Estates of Deceased Persons. The third chapter analyses directly the new Succession Regulation which unified international succession law across the European Union and contains rules in the applicable law field which are of a universal nature (not the same for jurisdictional rules). The habitual residence is the general objective: connecting factor for applicable law (article 21) provided by the Regulation which adopts a unitary approach to succession which is regulated under the same law, without any difference between movable and immovable property. In view of guarantee, a significant role to party autonomy in the field of succession the Regulation allows expressly, at article 22, the possibility of a choice of law (professio iuris). In that perspective, the third chapter addresses the role of party autonomy within EU Succession Regulation. The study, after specifying the scope of the Regulation and a brief examination of the main features of the new rules, provides clarification about which requirements need a valid choice of law under the regulation. Furthermore, the thesis analyses which laws may be designated as applicable with a professio iuris, what form is required for a valid choice of law, and particularly if it allows a tacit one, which law applies to the material validity of the professio iuris, if it is possible to modify or revoke a valid choice of law and under which conditions. Moreover, the study is focused on the possibility established for agreements concerning successions, the question of the law is applicable to the formal validity of dispositions of property upon death and the limits to the application of the lex successionis. At the end of the third chapter, the thesis is focused on possible limits of a professio iuris, particularly public policy and abuse of rights. The fourth chapter is focused on jurisdiction rules. The harmonisation of jurisdictional rules in this area will replace the existing legislations of the Member States bound by the Regulation. Although the unification of jurisdiction rules operated by Regulation (EU) No. 650/2012 aims, in general, at overcoming the drawbacks of the regulatory divergences between Member States, this objective seems to be actually achieved but only partially so. By the way, regarding the rules on jurisdiction, these tend to regulate comprehensively all succession disputes, including those more closely connected to a third country by providing for subsidiary jurisdiction rules and for a rule on forum necessitatis. Under Regulation (EU) No. 650/2012, allocation of the power of ius dicere will depend, in general, on the last habitual residence of the deceased (Article 4) exactly the same objective connecting factor provided for applicable law. In fact, one of the most important scopes of the regulation is to guarantee the coincidence between forum and ius, so that the courts could apply the lex fori, instead of a foreign law. In this respect, we should point out that once the deceased made a choice of law in favour of the law of his/her citizenship country’s law, this coincidence is inevitably broken. So, the European legislator provides some criteria re-establishing that (Gleichlauf) where the deceased made a professio iuris. One of them is the possibility of making a professio fori in favour of the courts of the country which the law was previously designated through a choice of law by the deceased. In fact the Regulation, accordingly with the provision enshrined in article 5, allows parties to make a professio fori. In this respect, the thesis aims to address the effects of party autonomy and professio fori on the general discipline of jurisdiction. Some difficulties may arise from the faculty of transferring jurisdictional competence in favour of the court better placed to hear the case (Article 6) because, without a professio fori, it is a discretional rule entrusted just to the court. The conclusions of the work underline the way in which the law has accredited freedom of choice as a foundation principle of European International Private Law. It really seems that the European legislator made a specific choice of legislative policy which mirrors the inexorable trend towards the contractualisation of Private International Law, governing private economic activity beyond state borders.