Brennpunkte der EU-Erbrechtsverordnung

Gerald Mäsch

The author discusses three fundamental questions of conflict of laws regarding the EU Succession Regulation. First, he discusses the term of habitual residence, which, despite a different legal definition in Swiss PIL, isunderstood as the center of life in line with European conflict of laws. He argues against a definition that differs depending on the regulatory context and denies the possibility of several habitual residences. Thereafter, he examines whether the ordre public protects against a choice of law by the testator depriving a relative of his or her legal share and against an heir’s only hypothetical discrimination. He answers the former in the negative with regard to recital (38) of the EU Succession Regulation, while he argues in favor of the latter due to the paramount importance of the absolute prohibition of discrimination. Finally, the author discusses the issue of preliminary questions. He argues against the German concept of applying the PIL rules of the (foreign) legal system that governs the inheritance question, instead of the conflict rules of the lex fori, to determine the law applicable to a prejudicial legal relationship (above all, marriage and filiation).