The author of this post is Christelle Chalas, who is an Associate Professor at the University of Lille.
The French law on the compliance with the Republican Principles (projet de loi confortant le respect des principes de la République) introduces a new paragraph in Article 913 of the French Civil Code aiming at re-establishing a right of ‘compensatory levy’ (droit de prélèvement compensatoire) on property situated in France for the benefit of children who would not benefit from a reserved share of inheritance.
Its scope is limited to cases where either the deceased or one of his or her children is a national of a Member State of the European Union or a person whose habitual residence is in such a State.
The new text reads:
Lorsque le défunt ou au moins l’un de ses enfants est, au moment du décès, ressortissant d’un État membre de l’Union européenne ou y réside habituellement et lorsque la loi étrangère applicable à la succession ne permet aucun mécanisme réservataire protecteur des enfants, chaque enfant ou ses héritiers ou ses ayants cause peuvent effectuer un prélèvement compensatoire sur les biens existants situés en France au jour du décès, de façon à être rétablis dans les droits réservataires que leur octroie la loi française, dans la limite de ceux-ci.
The law was eventually adopted by the National Assembly on 23 July 2021. The bill had been rejected twice by the Senate in April 2021 (see here) and then on 20 July 2021, but the National Assembly had voted twice in favour of its adoption (in February and July 2021, see here). Under the French legislative system, the Assembly’s deliberations ultimately prevail. The constitutionality of the bill was immediately challenged before the Constitutional Council (Conseil constitutionnel) (see below).
A compensatory levy was instituted in French inheritance law by the law of the 14 July 1819 but it was found to be unconstitutional by the Constitutional Council in 2011 (see here) on the ground that it disregarded the principle of equality by establishing an inequal treatment based on nationality between the heirs designated by the foreign inheritance law.
Although the new text avoids this obvious violation of the principle of equality by granting this right to all heirs whatever their nationality or residence, it raises several problems that threaten its validity.
These problems are interesting because they illustrate the small margin of freedom that national legislators still enjoy in particular with regard to European law. From a domestic perspective, issues of constitutionality also arose.
Is the New Provision Unconstitutional?
Regarding the conformity of Article 913 with the French Constitution, it is submitted that the main concern is the appropriateness of the “droit de prélèvement” with regard to the purpose of the law. It was said during the discussion in the Senate, and shown in French doctrine (Revue critique de DIP 2021, issue 2, announced here) that there is a high risk that the provision misses its target.
The purpose of Article 913 is to steer against the effects of an applicable foreign inheritance law that would discriminate between heirs according to their sex or religion. More specifically, the government did not hide that the provision aims at protecting female heirs from the inheritance laws of Muslim countries. But, since Article 913 does not limit its application to discriminatory foreign laws, but is concerned with foreign laws which “do not permit any reserved share mechanism”, the provision could reach situations that in no way threaten “Republican Principles” (here, equality) and, conversely, Article 913 could miss situations that do threaten these principles. Indeed, the laws of common law countries could be concerned as they do not provide for reserved shares, while, on the contrary, Article 913 could possibly not apply to Muslim laws since they might provide for a reserved share.
One can also be very critical about the weakness of the required connection with France: by rendering the mechanism available to all children heirs as long as only one of them, or the deceased, is a national of a Member State of the EU or is resident in one of theses states, it is very easy to imagine situations in which the protection of the French law will appear inappropriate, if not illegitimate. The real object of the law remains unclear and this raises concerns about the adequacy of the compensatory system set in place. This could be a reason for unconstitutionality.
Furthermore, if the only purpose of Article 913 is to fight against discriminatory foreign laws, the public policy exception should be efficient enough. The French Supreme Court for civil and criminal matters (Cour de cassation) could transpose its own jurisprudence on repudiation to the context of reserved share in inheritance law.
The other advantage of the public policy exception is that it allows a concrete and factual assessment of the result produced by the application of the foreign law. For example, the family provisions of English law would be spared by the public policy exception while it is not sure that the new text would not receive application in this case.
Unfortunately, it does not seem that any of the parties who participated in the challenge of the constitutionality of the law raised any argument with respect to the new provision. On August, 13th, 2021, the Constitutional Council delivered its decision without addressing the issue.
A Risk of Euro-Incompatibility?
The conformity of Article 913 with the European Succession Regulation could also be questioned on several grounds.
Article 23 of the Regulation provides that “the law determined pursuant to Article 21 and Article 22 shall govern the succession as a whole. That law shall govern in particular, … the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death as well as claims which persons close to the deceased may have against the estate or the heirs”. By putting in place a right of compensatory levy on property situated in France, Article 13 sets a new exemption on the applicable law designated by the Regulation.
The European Court of justice might not accept this type of circumvention of the applicable law, in particular when the deceased person has chosen its national law in accordance with Article 22. Recital 38 of the Preamble to the Regulation specifies that the choice of law is limited to the national law of the deceased precisely with the objective “to avoid a law being chosen with the intention of frustrating the legitimate expectations of persons entitled to a reserved share”. A limited and voluntary infringement to the reserved share is thus admitted by the Succession Regulation.
Article 913 would also possibly run against Recital 37 that states that the succession should be govern by a predictable law with which it is closely connected. Predictability and necessity of a close connection between the applicable law and the succession are clearly challenged by the French draft provision. Recital 37 also recommends that “for reasons of legal certainty and in order to avoid the fragmentation of the succession, that law should govern the succession as a whole”. On the contrary, the compensatory levy instituted by French law results in the application of several inheritance laws.
The only solution would be to consider that the French compensatory levy right falls under the public policy exception set out in Article 35 of the Regulation. But neither here can there be certainty. As is well known, the Court of Justice supports a very restrictive application of the public policy exception, which is reinforced by the requirement in Article 35 that the application of a provision of the law specified by the Regulation should be “manifestly incompatible” with the public policy of the relevant State. Through its control, The European Court of Justice limits any misuse of the concept of public policy that would have the effect of impeding the effectiveness of European regulations.
In this respect, it seems that the nuanced jurisprudence of the French Supreme Court, which limits the exclusion of foreign law to cases where a child heir is in a situation of economic insecurity or need, is more in line with the requirement of Article 35.