"Recognition", Acceptance and Enforcement

Vol. 8 No.
2 Journal of Private International Law 323

DOI:10.5235/JPRIVINTL.8.2.323
Authentic Instruments in the Succession Regulation
DOI:10.5235/JPRIVINTL.8.2.323
“RECOGNITION”, ACCEPTANCE AND ENFORCEMENT

OF AUTHENTIC INSTRUMENTS IN THE SUCCESSION
REGULATION
JONATHAN FITCHEN*
A. INTRODUCTION
This article considers issues arising from the decision to include authentic instru-
ments in the new Succession Regulation.1 It follows an article which considered
the cross-border enforcement of civil and commercial authentic instruments
in European private international law.2 The draft Succession Regulation is
ambitious, initially containing not only a provision to confer cross-border
* Lecturer in Law, University of Aberdeen. The author would like to thank Professor Paul Beau-
mont, Dr Anne-Kathrin Kühnel and the anonymous referees for their helpful comments upon
an earlier version of this article. The author also thanks Ms Sofia Cavandoli for assistance with
the translation of those documents which could only be located in Italian. Any remaining errors
and all views expressed are those of the author alone.
1
Regulation (EU) 650/2012 of the European Parliament and of The Council on Jurisdiction,
Applicable Law, Recognition and Enforcement of Decisions and Acceptance and Enforce-
ment of Authentic Instruments in Matters of Succession and on the Creation of a European
Certificate of Succession OJ L2012/107 JUSTCIV 94 CODEC 712 (hereinafter, final text) avail-
able from http://register.consilium.europa.eu/pdf/en/12/pe00/pe00014.en12.pdf (accessed 7
June 2012). It was preceded by Proposal for a Regulation of the European Parliament and
of the Council on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions
and Authentic Instruments in Matters of Succession and the Creation of a European Certifi-
cate of Succession, Brussels, 14 October 2009 COM(2009) 154 final. The provisions of the
proposed regulation concerning authentic instruments are mentioned by, inter alios, P Terner,
“Perspectives of a European Law of Succession” (2007) 14 Maastricht Journal of International and
Comparative Law 147, 167; J Harris, “The Proposed EU Regulation On Succession and Wills:
Prospects and Challenges” [2008] Trusts Law International 1, 30; Max Planck Institute, “Com-
ments on the European Commission’s Proposal for a Regulation of the European Parliament
and of the European Council on Jurisdiction, Applicable Law, Recognition and Enforcement of
Decisions and Authentic Instruments in Matters of Succession and the Creation of a European
Certificate of Succession” [2010] Rabels Zeitschrift 522, 669–71 (hereinafter, MPI). The succes-
sion proposal is critically considered with particular reference to the proposed “recognition”
of authentic instruments by M Kohler and M Buschbaum, “Die “Anerkennung” öffentlicher
Urkunden? – Kritische Gedanken über einen zweifelhaften Ansatz in der EU-Kollisionsrechts-
verienheitlichung” [2010] Praxis des Internationalen Privat- und Verfahrensrechts 313, the same article
has been published in French, “La ‘Reconnaissance’ des actes authentiques? – reflexions cri-
tiques sur une approche douteuse entamée dans l’harmonisation des régles de conflits de lois”
[2010] Revue critique de droit international privé 629.
2
J Fitchen, “Authentic Instruments and European Private International Law in Civil and Com-
mercial Matters: Is Now the Time to Break New Ground?” (2011) 7 Journal of Private International
Law 33.
324 Authentic Instruments in the Succession Regulation August 2012
enforceability upon authentic instruments but also a controversial provision

conferring automatic “recognition”. These provisions are considered below, as
is the eventual replacement of the term “recognition” by the less immediately
controversial term “acceptance”.
The presence of “recognition” in the original proposal continued a trend
for the Commission to suggest the “recognition” of authentic instruments in
proposals concerning new and existing private international law regulations.3
To understand this trend it is necessary to appreciate both the existence of an
influential notarial lobby in Brussels4 and, more particularly, the attraction of
authentic instruments, considered in abstract, for certain EU legislators. Authen-
tic instruments appear to some to offer a means of advantaging an EU citizen
by circumventing the “obstacles” allegedly represented by different civil pro-
cedure rules to the claimant’s enjoyment of legal rights across national borders.
The “obstacles”, if such they be, arise from different methods of organising
legal systems within the 27 Member States and a sensible tradition of overt
judicial involvement, via a foreign exequatur, when EU citizens wish to trans-
fer a legal right arising from the operation of the civil procedure rules of one
Member State into the legal system of a different Member State.
As EU legislators must operate according to the EU’s legal competence and
must respect the remaining national competencies of the individual Member
States, national laws cannot simply be subjected to the wholesale reform nec-
essary to remove such alleged procedural “obstacles”. The non-contentious
nature of an authentic instrument if equipped by a European regulation with
an enhanced potential to transmit what could loosely be described as “legal
effects” across national borders, possibly without any need in the future for a
3
See proposals for two new regulations respectively concerning Registered Partnerships and
International Couples: Proposal for a Council Regulation on jurisdiction, applicable law and
the recognition and enforcement of decisions regarding the property consequences of reg-
istered partnerships (COM(2011) 127 final): Art 28. http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=COM:2011:0127:FIN:EN:PDF (accessed 1 July 2011). Communication
from The Commission to the European Parliament, The Council, The European Economic
and Social Committee and The Committee of the Regions: Bringing legal clarity to property
rights for international couples (COM (2011) 125 final): Arts 32 and 33. http://eur-lex.europa.
eu/LexUriServ/LexUriServ.do?uri=COM:2011:0125:FIN:EN:PDF (accessed 1 July 2011). For
perceptive and critical comments see M Buschbaum and U Simon, “Les propositions de la
Commission européenne relatives a l’harmonisation des regles de conflit de lois sur les biens
patrimoniaux des couples maries et des partenariats enregistrés” [2011] Revue critique de droit
international privé 801. Also see the European Commission’s Green Paper on free movement
of public documents and recognition of civil status records. Green Paper Less bureaucracy
for citizens: promoting free movement of public documents and recognition of the effects of
civil status records, COM(2010) 747 final http://eur-lex.europa.eu/LexUriServ/LexUriServ.
do?uri=COM:2010:0747:FIN:EN:PDF (accessed 20 March 2011).
4
Eg Conseil des Notariats de l‘Union Européenne (CNUE), a private organisation which
attempts to represent civilian notaries from 21 of the EU’s 27 Member States. The CNUE
does not necessarily speak with one voice: minority views and reservations are possible under
its constitution.
Vol. 8 No. 2 Journal of Private International Law 325
foreign exequatur, could, however, be understood to hold out to a European legis-

lator the tempting possibility of indirectly addressing such “obstacles” otherwise
facing the above-mentioned EU claimant. To translate this abstract possibility
into reality the legislator must, however, appreciate the nature, national diver-
sity and the limitations of the actual authentic instruments which presently are
created under national law and may circulate via European or national private
international laws: unfortunately such appreciation is not always apparent.
Unlike judgments, authentic instruments do not benefit from cross-bor-
der recognition and nor can their contents produce res judicata effects.5 Until
recently, though, the succession proposal appeared to wish to allow the holder
of a succession authentic instrument to require its “recognition” outwith the
Member State of creation, without a foreign exequatur, while retaining the
benefit of domestic legal effects applicable to the instrument, and even to its
contents, despite the holder being present in a different Member State pos-
sessing different laws, rules of evidence and civil procedure concerning both
authentic instruments and indeed succession.
Such a use of a foreign authentic instrument may, from the perspective of
its holder, seem to be conveniently free of legal technicality; however, viewed
from every other perspective such a method of employing a foreign authen-
tic instrument is disturbingly novel. It involves the actual or simulated ad hoc
application of the civil procedure rules concerning authentic instruments from
the first Member State within the second Member State, and, accordingly, the
partial disapplication of the civil procedure rules of the second State to accom-
modate those imported from the first. It has to be wondered how such a novel
procedure could ever have been expected to function in the context of actual
cross-border succession proceedings. Certainly UK succession laws will continue
to require more than the mere production of a foreign authentic instrument:
the UK opted out of the Regulation and is not bound by it.6 That said, UK
citizens are not immune to the Succession Regulation if involved in succession
proceedings conducted within a participating Member State, or if presented
5
See D Bureau and H Muir Watt, Droit International Privé I (PUF, 2nd edn, 2010), vol 1, part
III, ch 2; M Niboyet, Droit International Privé (LGDJ, 2nd edn, 2009), 579; P Callé, L’acte public
en droit international privé (Economica, 2004) and P Callé, “L’acte authentique établi à l’étranger
validité et execution en France” (2005) 94 Revue critique de droit international privé 377. J Kropholler
and J von Hein, Europäisches Zivilprozeßrecht (Verlag Recht und Wirtschaft, 9th edn, 2011), 680.
R Geimer and R Schütze, Europäisches Zivilverfahrensrecht (Beck, 3rd edn, 2010), 829; T Rauscher,
Europäisches Zivilprozess- und Kollisionsrecht EuZPR / EuIPR (Sellier, 2010).
6
The UK, Eire and Denmark are not participating. The UK decision to opt out was taken on
16 December 2009, see the Ministry of Justice’s Response to the Public Consultation on the
European Commission’s Proposal on Succession and Wills, p 8, available from http://justice.
gov.uk (accessed 20 April 2011). The Presidency Note, “General Agreement on the text of the
Articles” of 12 December 2011 JUSTCIV 356 CODEC 2397, available from http://register.
consilium.europa.eu/pdf/en/11/st18475.en11.pdf (accessed 22 December 2011), notes at para
2 the opt out by the UK and Ireland and Recital 82 of the final text, supra n 1, confirms this.
Recital 83, final text, confirms that Denmark has not opted in.
with a foreign succession authentic instrument which attempts to affect an oth-

erwise “non-contentious” succession proceeding within the UK.7
Although it would be premature to suggest that the Succession Regulation
will “open the floodgates” to cross-border succession claims, it is reasonable
to suppose that it will precipitate an increase in the cross-border use of suc-
cession authentic instruments. It also seems reasonable to expect that teething
problems will occur, particularly when an authentic instrument is received by a
Member State which, though bound by the Regulation, does not domestically
employ authentic instruments. The jurisprudence concerning authentic instru-
ments under the Brussels I regime has shown that mistakes can occur.8 As the
provisions of the Succession Regulation go further than the Brussels I Regu-
lation, it is useful to consider the authentic instrument as a legal institution
before examining the development of the provisions of the Succession Regula-
tion relating thereunto since the 2009 proposal.9
B. THE NATURE OF AUTHENTIC INSTRUMENTS AND THEIR

RELATIONSHIP TO NATIONAL AND EUROPEAN LAW
An authentic instrument is a formal record, contained within a public docu-

ment, of the declarations of one or more private parties which, by reason
of being made before and recorded by a person (such as a civil law notary)
officially empowered by the state to record such private statements in such a
fashion and in such a form, is therefore domestically accorded a higher evi-
dential status than would apply to a purely private document.10 The enhanced
evidential status may allow a domestic holder of the authentic instrument to
use it as conclusive evidence of the making of the declarations which it con-
7
Authentic instruments in succession matters may be used, inter alia, to provide formal evidence
of the existence of a Will; to prove the contents of the Will; to identify heirs; to confirm the
status of heir; to create an inventory; to record acceptance or rejection of a succession; and
also to record any agreed division of the estate between heirs. See para 4 of the EU Presi-
dency Note, Les actes authentiques en matière de successions, 13510/10, JUSTCIV 156 CODEC 805
pdf_fr_20101012060141-86-1: accessed via http://www.cnue.eu/ on 20 April 2011.
8
See Fitchen, supra n 2, n 93 concerning successful enforcement of a Danish Gaeldsbrev as an
authentic instrument prior to Case C-260/97 Unibank A/S v Flemming G. Christensen [1999] ECR
I-3715. See also the ruling of the Supreme Court of Lithuania No 3K-3-347/2008 30 July
2008 considered by M Krasnickas, “Recognition and Enforcement of Foreign Judicial Decisions
in the Republic of Lithuania” [2008] Yearbook Of Private International Law 493, 502–04.
9
At the time of writing many of the working documents concerning the negotiation and draft-
ing of the Succession Regulation are “restricted”: some information has been officially released
by the EU, other information has been unofficially released by stakeholders and by the Ital-
ian Parliament. Full access to the information is promised once the text of the Regulation has
been published in the Official Journal, see post by G Buono 7 June 2012 on conflictoflaws.net
(accessed 7 June 2012).
10
This article only considers authentic instruments created by notaries in the 21 EU Member
States which allow such creation.
tains: this evidentiary potential is referred to as “probative force” and depends

upon the particular provisions of the law of civil procedure of the state within
which the authentic instrument was created. The civil procedure rules of the
legal system of creation may also allow the holder of an appropriately drafted
authentic instrument to directly enforce it without needing to engage in con-
tentious proceedings: this is known as “executory force”. Civil law legal systems
variously allow such probative and executory force to their domestic authentic
instruments to speed the processes by which voluntary and uncontested decla-
rations made before a public official may later be proved and enforced without
the need for expensive and time-consuming contentious legal procedures to
reconfirm that which has already been recorded.
It is essential to remember that the authentic instrument, although a domes-
tic formal public document recorded by a state-regulated official, is still a record
of the declarations made by one or more private individuals: the substance of
such private declarations is not domestically elevated to incontrovertible evi-
dence of truth merely by reason of being so declared and recorded. Were the
position otherwise, a party deceived into making a declaration could not sub-
sequently dispute or avoid its probative or executory consequences, nor could
a judge confronted by an authentic instrument produced as evidence in later
contentious legal proceedings resist its probative force regardless of the exist-
ence of other evidence which overwhelmingly demonstrated the falsity of its
declarations. The key to understanding the nature of the authentic instrument
in national law is to appreciate that while the formal validity of the instrument
itself (or instrumentum) is strongly, though not irrevocably, asserted and protected
by its civil law legal system of creation, the private declarations which comprise
its material content (or negotium) benefit from, at best, a rebuttable presump-
tion of validity according to whatever may be the civil procedure rules of the
forum: the material content of an authentic instrument may always be chal-
lenged.11
This is why, despite the fact that both authentic instruments and judgments
each potentially allow their creditors to engage directly with the procedural rules
governing the actual enforcement procedures of the domestic legal system, the
two legal institutions should not be confused. A judgment contains no disput-
able “private” component and thus, once the possibility of an ordinary appeal
has passed, it is no longer contestable as such. On the other hand, the private
nature of the declarations comprising the negotium of an authentic instrument
are always contestable – even after enforcement.12
The distinction between judgments and authentic instruments is also clear
when the holder of a foreign authentic instrument seeks to use it in a dif-
ferent legal system. The incoming authentic instrument depends upon its
11
For more on this important distinction see Fitchen, supra n 2, 41–45.
12
See Callé (2004), supra n 5, 267 and Fitchen, ibid, 82–89.
own domestic legal system for its formal creation, its probative potential and
its executory possibilities: the receiving legal system must therefore decide a
wide range of issues to determine whether it will allow the foreign authen-
tic instrument to be produced “as such”, rather than merely as “ordinary”
foreign documentary evidence, and then decide what procedural, evidentiary
and executory consequences it will allow to flow from the presentation of the
foreign authentic instrument.13 These determinations are complicated by the
existence of different legal rules and civil procedures within the sending and
receiving legal systems. Although authentic instruments, if viewed as a legal
institution, may be common to state “A” and to state “B”, the formalities of
creation, the probative and executory force of authentic instruments, and the
challenge procedures may well differ because the substantive and procedural
rules concerning authentic instruments also differ in each state.14 The point is
important because it indicates a need for caution if attempting to legislate from
a European level in relation to domestic variations of the authentic instrument.
Although it is certainly possible to speak of the authentic instrument as a legal
institution, it must be remembered that the institution differs from one legal
system to another.15
States which employ authentic instruments have often resorted to bilat-
eral and multilateral agreements to address issues arising from the crossing of
national borders by authentic instruments given the existence of differences
between the national substantive and procedural rules concerning authentic
instruments.16 The typical solution has been to allow the incoming foreign
authentic instrument potentially to be treated as if it were actually a domestic
authentic instrument of the receiving state. For example, France and Germany
have a bilateral agreement which will allow an authentic instrument drawn up
according to the domestic law of either to be received by the other as if it were
a domestic authentic instrument.17 Thus a French authentic instrument will be
13
The Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for
Foreign Public Documents allows foreign authentic instruments (or other documents it defines
as “public documents”) to demonstrate (a) their authentic documentary status, and (b) the
national status of their creator, by the public authority in the state of creation affixing an apos-
tille to the authentic instrument. The apostille does not concern the probative or executory force
of the foreign authentic instrument in the receiving legal system. Neither an apostille nor any
other form of legalisation is required for the authentic instruments which fall within European
private international law regulations.
14
See Fitchen, supra n 2, 39–54 for an overview of the domestic differences between French and
German legal systems in this sense.
15
As do particular meanings of phrases such as “probative force” and “executory force”.
16
See Fitchen, supra n 2, 55.
17
See Abkommen zwischen der Bundesrepublik Deutschland und der Französischen Republik
über die Befreiung öffentlicher Urkunden von der Legalisation vom 13 September 1971 Bun-
desgesetzblatt BGBl. 1974 II S. 1075. The agreement abolished the need for an apostille or for
further authentication concerning, inter alia, authentic instruments which move between France
and Germany.
treated by the German court as producing the same evidentiary and enforce-
ment possibilities of an authentic instrument created in Germany. Significantly
the bilateral agreement contains no provision for the transmission of French
concepts of probative or executory force concerning a French authentic instru-
ment into the German legal system nor vice versa: the possibility of reciprocal
domestic equivalence has to suffice.
The Brussels Convention of 1968 contained the first provision drawn up at
the level of European private international law that allowed authentic instru-
ments created or registered in one European Member State to benefit from a
declaration of cross-border enforceability in all the other Member States. The
Convention, however, maintained the distinction between authentic instruments
and judgments, thereby respecting legal orthodoxy, by refusing any recogni-
tion for authentic instruments: only a cross-border declaration of enforceability
has ever been possible for authentic instruments falling under the Brussels I
regime.18
Subsequently European private international law has twice departed from
orthodoxy in relation to “family law” matters: two European regulations have
ostensibly allowed both “recognition” and enforcement for authentic instru-
ments. The drafters of the 2009 proposal invited another, bolder, departure
from orthodoxy with the “recognition” envisaged by draft Article 34: eventually
this was partially rejected and the less controversial term “acceptance” was sub-
stituted for “recognition”. The relevance of this substitution for the following
discussion is twofold: firstly it raises the question of the purpose of draft Article
34 (Article 59 in the final Regulation text); secondly, it indicates an important
limitation upon authentic instruments in European private international law.
The authentic instrument, as it now exists, is not a unified legal institution
of European law, but is rather a nationally variable legal institution which
European private international law has augmented with additional instances
of cross-border effectiveness within the EU in particular circumstances.19 Thus
when discussing authentic instruments in European private international law
we are actually discussing national authentic instruments to which European
secondary legislation has been applied to provide another means – but not the
only means – by which such instruments may produce legal effects when cross-
ing from one Member State to another: the consequences and implications of
18
Despite the Commission raising the possibility of including a recognition stage for Brussels I, as
mentioned in the Green Paper, a wave of hostile comment induced the Commission to accept
the orthodoxy: the recast Brussels I proposal makes no mention of recognition for authentic
instruments. See discussion in Fitchen, supra n 2, 82.
19
There have been calls for a European Authentic Act, see the “own initiative” report on the
establishment of a European authentic instrument by Manuel Medina Ortega of the Commit-
tee on Legal Affairs of 19 September 2008. The Draft Report was overwhelmingly adopted
on 18 December 2008 by the European Parliament. Despite an EU Action Plan promising a
Green Paper by the end of 2010 no Green Paper has appeared. See Action Plan Implement-
ing the Stockholm Programme, COM(2010) 171 final, 23.
the national rather than European origin of authentic instruments resonate

throughout this article.
A basic example of such resonance is found in the definition of an authen-
tic instrument offered by Article 3(i) of the Regulation20 which relates back to
the criteria offered to clarify the concept by the Jenard–Möller report on the
Lugano Convention.21 Since being approved by the European Court of Justice
in the Unibank case,22 these criteria have “defined” authentic instruments within
European regulations ever since.23 The definition offered by the Succession Reg-
ulation specifies only the minimum for a national measure to be regarded as
an authentic instrument. The authentic instruments as variously empowered by
the EU’s private international law are all still created according to the domestic
law of the Member State of origin. European private international law con-
fers various forms of cross-border effectiveness upon those national authentic
instruments which can be deemed to share a common “structure” with the
“skeletal” European definition but no more allows the creation of such authen-
tic instruments than it can be said to allow the creation of the judgments which
also fall within the relevant regulations.
The uneasy relationship between European and national laws concerning
authentic instruments is further revealed by the fact that a national authentic
instrument need not be precisely coterminous with the European regulation
under which it is “defined” in order for it to derive cross-border legal effects
from that regulation. The authentic instrument must comply with any given
regulation to secure its benefits, but nothing in EU private international law
stops a national authentic instrument from going further than the European
regulation as long as the official who creates it stays within the boundaries set
20
Art 3(i) of the final text, supra n 1, 41 states, “‘authentic instrument’ means a document in a
matter of succession which has been formally drawn up or registered as an authentic instrument
in a Member State and the authenticity of which: (i) relates to the signature and the content of
the authentic instrument; and (ii) has been established by a public authority or other authority
empowered for that purpose by the Member State of origin”. This mostly follows the earlier
definition in draft Art 2(h) which endured without significant alteration to the 2010 Presidency
Text, see JUSTCIV 238 CODEC 1560 EJUSTICE 139 Nota della Presidenza e Presidenza
Ungherese entrante al Gruppo per le questioni di dritto civile (Successione) of 22 December
2010 at p 6, www.parlamento.it/web/docuorc2004.nsf/de2f62b6b54c2757c12576900058cad3/c
78087efbd274569c12576550037555e/$FILE/18096-10_Lim_IT.PDF (accessed 20 April 2011),
(hereinafter: 2010 Presidency Text). The European Parliament, in amendment 39 of the Draft
Report of 23 February 2011 successfully proposed adding ‘in a matter of succession’, www.
europarl.europa.eu/activities/committees/draftReportsCom/comparlDossier.do?dossier=JURI
%2F7%2F01362&body=JURI&language=EN (accessed 5 July 2011).
21
[1990] OJ C189/57 Jenard–Möller Report on the Convention on Jurisdiction and the Enforce-
ment of Judgments in Civil and Commercial Matters Done at Lugano on 16 September 1988,
see para 72.
22
Case C-260/97 Unibank A/S v Flemming G Christensen [1999] ECR I-3715. See Casenote by
G Droz (2000) 89 Revue critique de droit international privé 250, also Callé (2005), supra n 5,
398–99.
23
See Art 3(a) of Regulation 805/2004, Art 2(1)(3) of Regulation 4/2009 and Art 2(e) of the
recast Brussels I Regulation.
by his own law. Thus an authentic instrument concerning, “a matter of suc-

cession”, may also contain declarations relevant to matters falling outside the
scope of the Succession Regulation (eg issues of property law): to draw the
distinction it will probably be necessary to consult a court.24
There are other tensions between the heterogeneous legal institution which
is the authentic instrument and the homogenised uses for which the European
legislator would employ it.25 The most obvious problem concerns the Scandi-
navian Member States which do not domestically employ authentic instruments
but will receive them via the Succession Regulation. Subtler problems include
the possibility that different Member States accord different levels of eviden-
tiary force to their authentic instruments: when such instruments cross national
borders either “too much” or “too little” evidentiary force might be conferred
by the receiving state.26 Equally, it remains uncertain how conflicting or incom-
patible foreign succession authentic instruments will be resolved; Recital 66
suggests that incompatibility can be assessed by what it calls “an authority,
in the application of this Regulation”,27 which can, as long as it deems the
circumstances of the case to be “clear”, seemingly decide “which authentic
instrument, if any, should be given priority”.28 Should the matter not be “clear”
to the “authority”, or should it arise as an incidental question, Recital 66 envis-
ages a referral to a court with jurisdiction under the Regulation or concerning
the incidental issue.29 It remains to be seen how such “procedural” clarification
provided by a mere Recital will be received by the “authorities” and courts of
the Member States concerned.30
24
See Callé (2005), supra n 5, 409, 411 who considers a case by the Cour d’Appel de Paris where
an authentic instrument combining a declaration of paternity (outwith the Brussels Convention)
and a maintenance obligation (within the Brussels Convention) was held to require two differ-
ent exequatur procedures. Paris 22 février 1990, D 1990 IR, 108.
25
It may be that Recital 62 of the final text, supra n 1, reflects a tacit admission of this issue.
Recital 62 asserts that, “The ‘authenticity’ of an authentic instrument should be an autono-
mous concept” and then, before relating all such matters to the law of the Member State of
origin, includes within this autonomous concept: the genuineness of the instrument; the formal
prerequisites of the instrument; the powers of the drafting authority and the procedure under
which the instrument is drawn up.
26
See Fitchen, supra n 2, 44–47, 51–52 and 94–95. Recital 61 of the Succession Regulation makes
it plain that the drafters intend that the Regulation will transmit the evidentiary effects or most
comparable effects of an authentic instrument from the Member State of origin into the legal
system of the receiving state, see final text, supra n 1, 26, also discussed infra.
27
See Recital 66 final text, ibid, 28.
28
Ibid.
29
Ibid.
30
There are 83 Recitals in the final Succession Regulation.
C. INTRODUCING THE CROSS-BORDER ENFORCEABILITY AND

“RECOGNITION” OF SUCCESSION AUTHENTIC INSTRUMENTS
Although Articles 59 and 60 are each subject to various uncertainties, the

enforcement provision contained in Article 60 appears less controversial than
the acceptance provision contained in Article 59 of the Succession Regulation;
accordingly, the development of Article 60 is considered first.
1. Article 60
Article 60 allows a succession authentic instrument to benefit from a declara-
tion of cross-border enforceability in a manner broadly similar to Article 57
of the Brussels I Regulation.31 Although basically uncontroversial, the Eng-
lish text of original draft Article 35 required amendment to clarify its appeal
provisions.32 Further revisions to draft Article 35 were present in the 2010
Presidency Text33 and summarised by the Presidency’s June 2011 Compromise
Package.34 Throughout this process the basic content of what is now Article 60
has remained relatively stable:
“Article 60
Enforceability of authentic instruments
1. An authentic instrument which is enforceable in the Member State of origin
shall be declared enforceable in another Member State on the application of
any interested party in accordance with the procedure provided for in Articles
45 to 58.
2. For the purposes of point (b) of Article 46(3), the authority which establishes
the authentic instrument shall, on the application of any interested party, issue
an attestation using the form established in accordance with the advisory pro-
cedure referred to in Article 81(2).35
3. The court with which an appeal is lodged under Article 50 or Article 51 shall
refuse or revoke a declaration of enforceability only if enforcement of the
authentic instrument is manifestly contrary to public policy (ordre public) in the
Member State of enforcement.”36
31
See Art 57 of the Brussels I Regulation discussed in Fitchen, supra n 2, 61-64.
32
Original English Art 35 was unclear on whether its reference to an appeal referred to Regula-
tion 44/2001 or to the subsequent provisions of the succession regulation proposal.
33
See Art 35 of the 2010 Presidency Text, supra n 20.
34
See para 31 of JUSTCIV 152 CODEC 968 Note from the Presidency to the Council concern-
ing Political Guidelines for future work of 6 June 2011 (hereinafter June 2011 Political Guidelines),
http://register.consilium.europa.eu/pdf/en/11/st11/st11067.en11.pdf (accessed 2 July 2011).
35
Referring to Attestation Form II, see 6–9 of JUSTCIV 198 CODEC1399 Note on Draft Forms
from the Presidency to the Working Party on Civil Law Matters (Succession) of 12 June 2012
(hereinafter Draft Forms) available from http://register.consilium.europa.eu/pdf/en/12/st10/
st10252.en12.pdf (accessed 13 June 2012).
36
See Art 60 final text, supra n 1, 79.
The only apparently regrettable change to original Article 35 was the deletion
of the explicit possibility of securing a temporary stay of enforcement under
the Succession Regulation (by reason of a validity challenge in the Member
State of origin). The deletion resulted from a general reorganisation of enforce-
ment procedures which thereafter were to be applied mutatis mutandis. Thus
draft Articles 33–39 of the 2010 Presidency Text explained that the enforce-
ment court must stay enforcement proceedings, if it could be demonstrated by
the person against whom enforcement was sought that the enforceability of the
“decision” had been suspended in the Member State of origin because of a
domestic appeal.37 Adapting this to apply to an authentic instrument is prob-
lematic. Even assuming “authentic instrument” to be interchangeable with the
term “decision” employed by Article 53 (the final version of the stay provision),
a suspension of enforceability in the Member State of origin by reason of an
appeal is required before any stay may be granted; technically, however, there
is no appeal against an authentic instrument.38 It would have been preferable to
allow a stay, in the context of authentic instruments, when a challenge was com-
menced in the Member State of origin rather than requiring an “appeal” with
suspensive effect. Lest this suggestion seems unduly favourable to the “debtor”
it should be remembered that it is unlikely that a domestic challenge procedure
will suspend an authentic instrument until the challenge is successfully con-
cluded.39 The Brussels Convention of 1968 and the Brussels I Regulation have
each demonstrated that it can be difficult to apply a stay provision designed
for “decisions” to authentic instruments, it remains to be seen if the Succession
Regulation can buck this trend.40
The remaining textual issue for Article 60 concerns its relationship with
Article 59.41 Granting foreign authentic instruments a possibility of acceptance
(formerly “recognition”), additional to a declaration of enforceability, raises the
question of whether a challenge under Article 59(2) or (3) could affect sub-
sequent or earlier enforcement proceedings under Article 60. The question
is complicated because we must not equate an authentic instrument lacking
acceptance (formerly “recognition”) with a judgment (for which recognition
37
See 2010 Presidency Text, supra n 20, 36. Also see Art 53, final text, supra n 1, 75.
38
In the context of draft Art 34 (final Art 59), the Compromise Package stated at para 29 that
a domestic challenge to an authentic instrument would deprive it of the possibility of produc-
ing cross-border legal effects. Recital 65, final text, ibid, 28 appears to embody aspects of this
statement providing, inter alia, that an authentic instrument subject to challenge in the Member
State of origin should not produce any evidentiary effects outwith its Member State of origin
for the duration of the challenge and thereafter if successful. It is possible but far from clear
that Recital 65, which also appears to be most closely connected with Art 59, could be relevant
to the interpretation of the stay provisions of the Succession Regulation concerning authentic
instruments.
39
See Fitchen, supra n 2, 44–47.
40
For details concerning the difficulty in the context of the Brussels I regime, see Fitchen, ibid,
66–69.
41
The textual development of draft Art 34 into final Art 59 is discussed, infra, in Section E.
would be a condition precedent to enforcement). That said, the drafting of the

Articles and of draft Form II each suggest that Articles 59 and 60 are intended
to be capable of independent operation; the admittedly non-mandatory Form
II allows either Acceptance or Enforcement (or both) to be sought.42 The sus-
pensory aspects of challenges to acceptance under Article 59(2) and (3) only
immediately apply to the evidentiary effects of the authentic instrument in
foreign Member States: they do not necessarily affect the authentic instrument
within the Member State of origin so as to affect an Article 60 procedure. The
relationship between Articles 60 and 59 also arises should there be multiple
presentations of the same authentic instrument in different Member States: an
Article 60 declaration of enforceability made in state “B” could seemingly con-
tinue despite a later successful Article 59(3) challenge in state “C” but not if
there should be a successful Article 59(2) challenge in the state of origin. The
potential interaction of the two articles will take time to resolve.
2. Article 59
From the perspective of this article, the most obviously controversial aspect of
the 2009 proposal was that draft Article 34 envisaged a novel form of cross-
border “recognition” for authentic instruments and for their contents. Although
not without dubious precedent, it is difficult to understand why it was thought
advisable to use a technical term of private international law, ie recognition,
to describe a process which private international law universally regards as
inapplicable to authentic instruments.43 The ambiguity in the 2009 proposal
was acute because the orthodox use of recognition, concerning judgments, was
also employed within the same text. Given that the 2009 proposal featured one
term with different meanings depending upon whether it applied to a judgment
or to an authentic instrument, it might have been expected that steps would
have been taken to clarify the two concepts: oddly the definition section of the
2009 proposal offered no such clarification.
Unsurprisingly the potential for confusion threatened by the ambiguity led
to suggestions that the term “recognition”, as it concerned authentic instru-
ments, might be better deleted44 or replaced with an alternative word or phrase
42
See Draft Form II, supra n 35, point 4, p 8 (“Evidentiary effects of the authentic instrument
in the Member State of origin (to be filled in only if acceptance is sought)”) and point 6, p 9
(“Enforceability of the authentic instrument (to be filled in only if enforcement is sought)”)
(emphasis added).
43
See discussion and references in Fitchen, supra n 2, 82–89, also Niboyet, supra n 5, 191–98.
44
The proposed deletion did not necessarily extend to the deletion of the concept of “recogni-
tion”. See amendment 78 suggesting the deletion of “Recognition of . . .” from the title of Art
34 in the European Parliament’s Draft Report of 23 February 2011, www.europarl.europa.eu/
activities/committees/draftReportsCom/comparlDossier.do?dossier=JURI%2F7%2F01362&bo
dy=JURI&language=EN (accessed 5 July 2011).
less likely to mislead: eg “free movement”,45 “free circulation”,46 “circulation”,47

or, as the European Presidency suggested on 6 June 2011, by the word “accept-
ance”. “Acceptance” now features in Article 59 of the Regulation.48 Although
the nomenclature has been altered for the better, the problems occasioned by
the existence and content of Article 59 remain and beg the basic question: “Do
we need both Articles 59 and 60?” Article 59 seems to be intended to allow
the automatic ad hoc transmission of legal effects deriving from the domestic
civil procedure rules of one Member State to another Member State with-
out necessarily subsequently securing a judicial Article 60 exequatur declaration.
If one assumes that an Article 60 application will be necessary, then Arti-
cle 59 is superfluous: absent this assumption, however, it may be that Article
59 is present to allow the inter-notarial cross-border circulation of succession
authentic instruments. The difficulty with this suggestion is that it is not clearly
demonstrated by the text: Article 59 is not explicitly limited to this function
and thus may be construed as also attempting to affect a receiving court’s
treatment of the incoming authentic instrument in the course of an Article 60
application.49
Before venturing an assessment of Article 59 or considering its textual
development, the precedents for the “recognition” of authentic instruments in
European private international law will be considered.
45
See amendment 16 in the European Parliament’s Draft Report of 23 February 2011 which
would substitute “free movement” for “recognition” in Recital 26 of the proposed regulation.
The same substitution is made in amendment 22 in the European Parliament’s Amendments
of 13 May 2011, www.europarl.europa.eu/activities/committees/draftReportsCom/comparl-
Dossier.do?dossier=JURI%2F7%2F01362&body=JURI&language=EN (accessed 5 July 2011).
46
See comments of Kurt Lechner (the European Parliament’s Rapporteur on the succession pro-
posal) at p 62 of the European Parliament’s Draft Report of 23 February 2011.
47
See amendment 23 to Recital 26 and amendment 103 concerning Art 34 contained in the
European Parliament’s Amendments of 13 May 2011, www.europarl.europa.eu/activities/com-
mittees/draftReportsCom/comparlDossier.do?dossier=JURI%2F7%2F01362&body=JURI&lan
guage=EN (accessed 5 July 2011).
48
See para 25 of June 2011 Political Guidelines, supra n 34, “Authentic instruments in succession
matters drawn up in a Member State will be accepted in other Member States under the future
Regulation unless such acceptance is manifestly contrary to the public policy (ordre public) of
those Member States.” “Acceptance” was also used in preference to “recognition” in an earlier
Note from the Presidency, p 4 dated 11 April 2011, JUSTCIV 78 CODEC 539, www.parla-
mento.it/web/docuorc2004.nsf/de2f62b6b54c2757c12576900058cad3/c78087efbd274569c125
76550037555e/$FILE/08448-11_Lim_IT.PDF (accessed 10 May 2011).
49
The possibility that Art 59 is present to accommodate a Member State which lacks the judicial
administration of succession is, given the Succession Regulation’s expansion of the definition
of that which may be regarded as a ‘court’ to include a notary, unconvincing, see Recital 20
and Art 3(2).
D. PRECEDENTS FOR THE “RECOGNITION” OF AUTHENTIC

INSTRUMENTS IN EUROPEAN PRIVATE INTERNATIONAL LAW
1. Introduction
Granting cross-border recognition to authentic instruments is contrary to the
legal orthodoxy established by the Brussels I regime: European private interna-
tional law has, however, twice departed from this orthodoxy. The Brussels IIa
Regulation, in its original form, was the first European provision to allow an
authentic instrument to be “recognised”. Thus far, despite a suggestion from
the European Commission in its Green Paper upon the reform of the Brus-
sels I Regulation that Brussels I authentic instruments might also benefit from
a “recognition” stage,50 the only other EU Regulation to allow an authentic
instrument cross-border “recognition” is Regulation 4/2009 (the Maintenance
Regulation). It should not, however, be assumed that because two EU private
international law regulations each appear to confer something called “recogni-
tion” upon, inter alia, cross-border authentic instruments that a single concept of
“recognition” for authentic instruments is present. The “recognition” permitted
differs markedly from one regulation to the other and neither “recognition”
accords with the novel concept offered by Article 59.
2. “Recognition” of Authentic Instruments under Article 46 of

Brussels IIa
According to Article 46 of Brussels IIa,
“Documents which have been formally drawn up or registered as authentic instru-
ments and are enforceable in one Member State and also agreements between the
parties that are enforceable in the Member State in which they were concluded shall
be recognised and declared enforceable under the same conditions as judgments.”51
As is made plain by the Borrás Report upon the draft Brussels II Convention,52
the inclusion of this “recognition” for authentic instruments, and for other
enforceable agreements53 concerning “the dissolution of the link of marriage
or of the legal separation”, was a limited and exceptional departure from the
equivalent provision contained in the Brussels Convention of 1968.54 There
were two causes for this departure. Firstly, it was noted that the legal systems at
50
See Commission Green Paper on the Review of Regulation 44/2001, 21 April 2009 COM(2009)
175 final Q8.3. The suggestion did not proceed to the Commission’s recast proposal concern-
ing the Brussels I Regulation, 14 December 2010 COM(2010) 748/3 final. See Fitchen, supra
n 2, 82–89.
51
Art 46 of Brussels IIa replaces Art 13 (3) of the Brussels II Convention.
52
See Borrás Report, [1998] OJ C221/27.
53
Reasons of space and relevance prevent coverage of other enforceable agreements which ben-
efit from “recognition and enforcement” under Brussels IIa.
54
See Borrás Report, supra n 52, paras 62 and 64.
issue now included those such as the UK, Ireland and Scandinavian states with
a propensity to record relevant agreements in “private” rather than in “public”
documents.55 To accommodate this possibility the then Brussels II Convention
sought to ease the technical difficulties which the acceptance of the diverse
non-judicial agreements were anticipated to pose for the foreign legal systems
which might eventually be in receipt of such private and public documents.56
Secondly, the solitary public policy ground by which enforcement of an authen-
tic instrument could be resisted under Article 50 of the Brussels Convention
was felt to be too narrow to accommodate the many issues which might arise
in the course of a cross-border application concerning a foreign agreement,
whether of a public or a private nature.
The Brussels II Convention first “allowed” a Member State court faced with
a relevant cross-border application evidenced by an authentic instrument, or
by another binding private agreement, to receive the document under the aus-
pices of the Convention, then reassured the foreign court that it might address
any such document with the wider range of corrective options which, strictly
speaking, were only really concerned with the recognition of cross-border judg-
ments.57 The question of whether this original “recognition” of an authentic
instrument or other enforceable private agreement remains the same after the
transmutation of the original Brussels II Convention into the two later Euro-
pean Regulations, and whether such “recognition” now extends to the material
content of the authentic instrument or private agreement is a matter which
academic comment has yet to resolve;58 however, the arguments against the
55
See Rauscher, supra n 5, Rn 3, p 349. An authentic instrument is classified as a public docu-
ment as a consequence of the involvement of the public office holder by which it is created.
56
See Borrás Report, supra n 52, para 61.
57
Ibid, para 62.
58
The idea is mentioned, albeit with little enthusiasm, by Rauscher in his commentary upon Art
46 of Brussels IIa (supra n 5 at Rn 2, p 348) where he refers to B Ancel and H Muir Watt,
“La Désunion Européene: le règlement dit ‘Bruxelles II’” (2001) 90 Revue critique de droit interna-
tional privé 403 which at 441 raises the possibility of matters concerning authentic instruments
being entirely removed from the supervision of private international law by the operation of
the Brussels II Regulation. Geimer in Geimer and Schütze, supra n 5, at Rn 5, p 1026 has
criticised Rauscher’s comment as inconsistent with Rauscher’s later observations on Art 46. He
also notes that Paraschas and also Dornblüth (neither of whom is cited by Rauscher on this
point) each appear to favour a similar conclusion concerning the effect of Art 46, albeit by
reason of arguments constructed upon policy and upon the equation of decisions with other
enforceable agreements by the Articles and Recitals of the subsequent Regulations. Geimer and
Schütze argue that both arguments are incorrect, see Geimer and Schütze, supra n 5, 1026.
With respect, it is not clear to the author that Dornblüth’s brief coverage actually warrants the
argument which it is said to advance concerning authentic instruments (as opposed to certain
judicial settlements), see S Dornblüth, Die Europäische Regelung der Anerkennung und Vollstreckbarerk-
lärung von Ehe- und Kindschaftsentscheidungen (Mohr Siebeck, 2003), 62–64. Paraschas suggests that
for policy reasons it should not be necessary for a domestically valid Brussels IIa authentic
instrument to be “enforceable”, in the sense of requiring that it contain enforceable obligations,
before it could be “recognised” and made effective in another Member State (see Paraschas in
Geimer and Schütze, Internationaler Rechtsverkehr (Nr 545) Art 46 EuEhe VO Rz 4, 10).
extension of “recognition” to material content in the context of authentic

instruments seem well founded.59
This “sketch” of Brussels IIa demonstrates that its recognition procedure
for authentic instruments was designed to deal with very different situations
to those which may be expected to arise under the succession regulation. It is
particularly notable that Article 46 of Brussels IIa is not restricted to authen-
tic instruments but also includes private agreements. It is equally revealing
that the Brussels IIa Regulation does not allow either party to an Article 46
“agreement” to pursue an “abstract” form of “recognition” independent of the
enforceability of the relevant public or private documents.60 Although Article
46 of Brussels IIa describes the relevant process as involving the “recognition”
of either an authentic instrument or of another enforceable private agreement,
what actually transpires is quite different from that which private international
law would regard as recognition: the actual process is closer to the employment
of a legal fiction that the document received may be treated as if it were a
foreign judgment in the course of contentious proceedings for the purpose of
widening the corrective options of the courts in the Member State of enforce-
ment.
It is clear that the contentious and fictitious “recognition” adopted by the
Brussels IIa Regulation is very different from the non-contentious and automatic
methodology seemingly intended for Article 59 of the Succession Regulation.61
Equally while Brussels IIa prevents abstract “recognition” of authentic instru-
ments, Article 59 is seemingly designed to allow exactly such “recognition”.
The “recognition” allowed by the Brussels IIa Regulation, though conceivably
useful in illuminating the utility of a foreign judicial exequatur stage, offers noth-
ing which can be transposed into Article 59 of the Succession Regulation.
59
It may be significant that Andrae’s practice focused commentary on Art 46 of Brussels IIa is
silent upon both aspects of the issue, see M Andrae, in B Dauner-Lieb, T Heidel and G Ring,
Anwaltkommentar BGB Band 1 Allgemeiner Teil mit EGBGB (DeutscherAnwaltVerlag, 2005), 1970–
71.
60
See Rauscher, supra n 5, Rn 10, p 350, who points out that though Art 21(3) allows an interested
party faced with an enforceable authentic instrument to apply for or to oppose its recognition,
the potential for immediate enforceability in the Member State of its creation is a condition
precedent to such a “recognition” under Brussels IIa: Rauscher convincingly argues that this is
to ensure that there is no possibility for the “isolated recognition” of an authentic instrument
relating to either a “private divorce” or any other private attempt to assert the existence of a
marriage so as to avoid or pre-empt the consequences of an enforceable divorce.
61
See FP Pereira, “La Coopération Judiciaire en Matière Civile dans L’Union Européenne: Bilan
et Perspectives” (2010) 99 Revue critique de droit international privé 1, 16 who suggests that some
find Brussels IIa cumbersome and lacking in fluidity in the context of recognition and enforce-
ment. He also notes, at 17, that this Regulation is shortly due for review.
3. “Recognition” of Authentic Instruments under the

Maintenance Regulation
Regulation 4/2009, the Maintenance Regulation, inter alia attempts to give
intra-EU effect to the Hague Convention on the International Recovery of
Child Support and other Forms of Family Maintenance of 23 November
200762 and also to the Hague Protocol on the Law Applicable to Mainte-
nance Obligations 2007.63 For authentic instruments, the main effect of the
Maintenance Regulation has been to detach “maintenance claims” from the
Brussels I Regulation and from the European Enforcement Order.64 Now the
Maintenance Regulation makes provision for, inter alia, the use of authentic
instruments in the conclusion of cross-border maintenance agreements.65 Inter-
estingly, the Maintenance Regulation has augmented the existing potential for
cross-border enforceability of such authentic instruments by adding what it
calls “recognition” to cross-border maintenance claims. This addition appears
to have resulted from the “translation” of terminology employed by the 2007
Hague Convention which provides, inter alia, for the cross-border recognition
and enforcement of judicial orders and “maintenance arrangements”.66
The meaning of “recognition” under the 2007 Hague Convention is
addressed in the Explanatory Report to that Convention which clarifies that,
“The term ‘recognition’ refers to the acceptance by the competent authority
addressed of the determination of the legal rights and obligations made by the
authorities of origin.”67 Article 30 of the Hague Convention requires that the
particular maintenance arrangement must be specifically enforceable as a deci-
62
See Hague Convention on the International Recovery of Child Support and other Forms of
Family Maintenance of 23 November 2007 www.hcch.net/index_en.php?act=conventions.
text&cid=131 (accessed 20 June 2011) and the 2009 Explanatory Report upon the Convention
by A Borrás and J Degeling , www.hcch.net/index_en.php?act=publications.details&pid=4909
(accessed 20 June 2011). P Beaumont, “International Family Law in Europe – The Mainte-
nance Project, the Hague Conference and the EC: A Triumph of Reverse Subsidiarity” [2009]
Rabels Zeitschrift 509, 536–39 concerning recognition and enforcement.
63
The UK and Denmark are the only EU Member States not to be parties to the 2007 Hague
Protocol, see Hague Protocol on the Law Applicable to Maintenance Obligations 2007, www.
hcch.net/index_en.php?act=conventions.text&cid=133 (accessed 20 June 2011) and the explan-
atory report by A Bonomi, www.hcch.net/index_en.php?act=publications.details&pid=4898
(accessed 20 June 2011).
64
The recast Commission proposal on Brussels I deletes maintenance claims from the recast reg-
ulation. The use of the European enforcement order in a maintenance claim remains possible
but does present problems given the need for a particular form of uncontested claim under
that provision, see Ancel and Muir-Watt, supra n 58, 469.
65
Art 48 of Regulation 4/2009 infra.
66
See 2007 Hague Convention: Art 3(e), defines “maintenance arrangement” to include private
agreements and authentic instruments, and Art 30 sets out the recognition and enforcement
procedures concerning such authentic instruments.
67
See Borrás and Degeling report, supra n 52, concerning Chapter V at para 429 where such
“recognition” is distinguished from recognition and enforcement which is said to refer to, “the
intermediate formalities to which recognition and enforcement of a foreign decision are sub-
ject”.
sion in its state of origin, that this is evidenced by a complete copy of the text,
and also, by a statement that that maintenance arrangement is so specifically
enforceable in its state of origin.68 This process allows the demonstration of the
“legal force” or quality of effectiveness of the particular maintenance arrange-
ment.69 It is such a demonstration, rather than any attempt to import foreign
civil procedure rules or concepts relating thereunto, which the “recognition” of
an authentic instrument under the Hague Convention concerns. The Hague
Convention remains admirably true to the orthodox traditions of private inter-
national law by relying upon an overt foreign exequatur stage for any incoming
authentic instrument or other “maintenance arrangement”. This allows the
applicant to demonstrate the enforceability of the foreign authentic instrument
to secure a declaration of the same while also permitting the other party to
oppose such “recognition”, on precisely defined (though more limited) grounds
than would apply to the recognition of an incoming judicial decision.70
Although the 2007 Hague Convention can be said to have reinspired the
EU’s Maintenance Regulation, the latter is unfortunately quite different in
approach to the former especially when the treatment of authentic instru-
ments is considered. Article 48(1) of the EU Maintenance Regulation provides
that: “Court settlements and authentic instruments which are enforceable in
the Member State of origin shall be recognised in another Member State and
be enforceable there in the same way as decisions, in accordance with Chap-
ter IV.”71
Chapter IV provides two alternative processes, one for “decisions” given in
a Member State bound by the 2007 Hague Protocol, and one for “decisions”
given in a Member State which is not so bound. As the only Member States
not bound by the 2007 Hague Protocol are the United Kingdom and Denmark,
both of which are domestically incapable of creating authentic instruments, the
process attending the “recognition” of authentic instruments allowed by Article
48(1) under Chapter IV will always fall within the first process provided by the
Maintenance Regulation.72
68
Art 30(3).
69
See Borrás and Degeling report, supra n 52, para 473, where the need to show either a quality
of res judicata or legal force is noted as having been decided as the minimum required to allow
the “recognition” of a decision.
70
See Art 30 (4)(a)–(c).
71
Art 48(2) applies the provisions of the Regulation, “as necessary”, to court settlements and
to authentic instruments. Art 48(3) requires the competent authority of the Member State of
origin to provide any interested party with an extract from either type of instrument using the
forms in the annexes of the Regulation.
72
The alternative process in Arts 23–38 is broadly in line with “traditional” EU recognition
and enforcement procedures and is conditional upon there being a foreign exequatur stage, see
Beaumont, supra n 62, 543, fn 66. For critical discussion of the drafting of these provisions
concerning authentic instruments see, Andrae in Rauscher, supra n 5, Rn 8, p 675.
Article 17 of the Maintenance Regulation abolishes the foreign exequatur

stage: thus the cross-border “recognition” of a decision given in a Member
State bound by the Hague Protocol is unopposable in the receiving Member
State. There is no need for any foreign declaration of enforceability concerning
the said decision. While Article 17 also applies to authentic instruments and
judicial settlements, it is most closely focused on judicial decisions, thus the very
necessary clarification concerning what is not meant by the term recognition,
as provided by Article 22 and Recital 25, is only expressed in connection with
decisions. The recognition accorded to a decision is only directed to the specific
object of allowing the recovery of the maintenance claim: further issues, such
as “the family relationship, parentage, marriage or affinity”, are not recognised
by the operation of the Regulation.73 This clarification indicates an awareness
that failing to clarify that which is outside the intended area of recognition may
create “incidental” problems for the legal systems of Member States which in
the absence of a foreign exequatur stage could appear to be obliged to follow a
foreign decision or authentic instrument concerning a matter peripheral to the
maintenance claim.
After distinguishing the “recognition” of an authentic instrument from the
recognition of the sovereign act represented by a judgment or by some judicial
settlements, Andrae explains that under Article 17(1) the recognition or “recog-
nition” permitted by the Regulation takes place ipso jure without the need for
any special procedure and without any possibility of opposing it in the foreign
court.74 Andrae suggests that for authentic instruments and judicial settlements
falling within Article 48 of the Regulation, there are only two consequences
which flow from such “recognition”. The first is that the authentic instrument
or judicial settlement must be treated by the receiving Member State as if it
had been validly created under the law of the Member State of origin: thus
it must be presumed to possess the same “authenticity” it would possess in
the Member State of origin.75 The second consequence is that Article 17 and
Recital 13 ensure that only the courts in the Member State of origin retain
the ability to entertain a legal challenge or an appeal in connection with the
73
See Art 22 and Recital 25: the need for the duplication is presumably that Art 22 is located
in Chap IV, s 1 and not in s 2. Recital 21 also seeks to contain and control the scope of the
Regulation.
74
See Andrae in Rauscher, supra n 5, Rn 7, p 675. Despite Art 17, Art 19 makes limited pro-
vision for a review of the decision within the Member State of origin. Art 21 provides the
enforcement court with a range of options, including refusing or suspending the requested
enforcement, which are additional to any such grounds as may exist under its national law. See
also Andrae, ibid, Rn 9, p 676, concerning the possibility of the enforcement court responding
to changed circumstances concerning incoming judicial settlements or authentic instruments by
varying their provisions. Andrae suggests that authentic instruments and judicial settlements are
not necessarily subject to the jurisdictional bar represented by Art 8 of the Regulation as she
suggests that this provision only relates to judicial decisions.
75
See Andrae in Rauscher, ibid, Rn 6, p 675.
authenticity or the material content of the parts of an authentic instrument or

judicial settlement which fall under the Maintenance Regulation.76
It is difficult, particularly in the absence of authoritative case-law, yet to dis-
cern any deeper positive meaning for the exequatur free “recognition” accorded
to an authentic instrument by the Maintenance Regulation. The Regulation
certainly allows a narrowed and automatic form of “recognition”; however, it is
difficult to see this as more than a peripheral consequence of the abolition of
the foreign exequatur. It seems inadvisable to conclude from the incidental grant
of a limited possibility of automatic “recognition” for foreign authentic instru-
ments that any broader goal of according such instruments “recognition”, as
that concept is understood by private international law, was an overt purpose
of the Maintenance Regulation. It seems more plausible to suppose that once
the abolition of the foreign exequatur stage was politically accepted it was simply
necessary to “automate” the procedures by which the incoming judgments,
authentic instruments and judicial settlements would then integrate with the
actual enforcement machinery provided by the procedural law of the receiv-
ing Member State. This suggestion is consonant with the deliberate narrowing
of the scope of the potential “recognition” and also with the approach to the
“recognition” of maintenance agreements taken by the Hague Convention of
2007 as elucidated in the explanatory report upon that Convention.77
4. Conclusion
It seems that little positive concerning the cross-border “recognition” of succes-
sion authentic instruments can be gleaned from examining either the Brussels
IIa Regulation or the Maintenance Regulation: each regulation independently
employs the term “recognition” in the context of its authentic instruments so
as to debar it from direct incorporation within the Succession Regulation. The
Brussels IIa recognition concept is clearly designed to facilitate exactly the sort
of cross-border challenges which the Succession Regulation would minimise.
The automated recognition concept in the Maintenance Regulation is depend-
ent upon the absence of a foreign exequatur stage; however, the Succession
Regulation currently features exactly such a foreign exequatur stage for enforce-
ment.78 It is also significant that the “recognition” of authentic instruments
under both Brussels IIa and the Maintenance Regulation takes place according
to the civil procedure rules of the Member State in receipt: no attempt is made
by either to “import” evidentiary or civil procedure rules from the Member
State of origin. It seems that neither form of “recognition” can be understood
76
Ibid.
77
See Borrás and Degeling report, supra n 62, para 429.
78
Art 60 was discussed in Section C supra.
as a precedent for Article 59: “recognition” under Article 59 thus represents

something different.
E. TEXTUAL DEVELOPMENT FROM DRAFT ARTICLE 34 TO

FINAL 59: “RECOGNITION” BECOMES “ACCEPTANCE”
1. Introduction
As the Succession Regulation was subject to the Ordinary Procedure there
were cyclical opportunities in the legislative process for input from the Council
of the European Union (especially through its Presidency) and the European
Parliament, with assistance from the European Commission. An exploration
of that which has been published, officially and otherwise, sheds an interest-
ing light upon the development of Article 59. The overwhelming impression
following a chronological examination of the documents is of a growing aware-
ness of the difficulties posed by equating judgments with authentic instruments
so as to allow authentic instruments and their contents the automatic “rec-
ognition” originally proposed by draft Article 34. The eventual deletion of
“recognition” from draft Article 34 and its replacement with “acceptance” was
a reaction to some, but not all, of these difficulties: it remains useful to address
the controversies attending draft Article 34 as the difficulties run deeper than
the nomenclature.
2. Draft Article 34 and the “Recognition” of Authentic

Instruments as per the 2009 Version of the Succession
Proposal
Examining the original version of Article 3479 raised a basic question: “What
was meant by the term ‘recognition’?” As Article 34 was unhelpfully silent upon
this issue, the extraction of meaning necessitated examining the Commission’s
Explanatory Memorandum and draft Recital 26 from the 2009 proposal. The
Explanatory Memorandum and the 2009 Recital each discussed “recognition”
in the context of authentic instruments, albeit in slightly different terms. The
coverage of authentic instruments in the Explanatory Memorandum begins
by describing the “recognition” of succession authentic instruments as a nec-
essary condition for their free movement within the EU. This conception of
the free movement of foreign authentic instruments is tellingly wider than the
79
Art 34 (November 2009), “Authentic instruments formally drawn up or registered in a Member
State shall be recognised in the other Member States, except where the validity of these instru-
ments is contested in accordance with the procedures provided for in the home Member State
and provided that such recognition is not [manifestly] contrary to public policy in the Member
State addressed”, 14 October 2009 COM(2009) 154 final.
free movement previously understood to be implicit in the potential of a cross-

border declaration of enforceability outwith the Member State of creation.80 It
seems reasonable to infer from the first sentence of the Explanatory Memoran-
dum that the Commission wished the free movement of succession authentic
instruments to be independent of any foreign judicial exequatur proceeding: as
is shown below, such a desire is surrounded by practical and legal difficulties.
The second sentence of the Commission’s Explanatory Memorandum concern-
ing authentic instruments stated:
“This recognition means that they will enjoy the same full and complete evidentiary
effect in respect of the contents of the recorded instruments and the facts contained
therein as that of national authentic instruments or on the same basis as in their
country of origin, a presumption of authenticity, and an enforceable nature within
the limits set by this Regulation.”81
As written, the Commission’s Explanatory Memorandum indicated a belief that

“recognition” would mean that both the authentic instrument and its contents
would each benefit from either the local provisions applicable to authentic instru-
ments in the Member State of enforcement or from the provisions concerning
such an authentic instrument in the Member State of origin.82 Unhelpfully the
drafting did not indicate whether an election between the two was possible nor
when each form of “recognition” could be appropriate. It was also unclear
whether or not different forms of “recognition” might be accorded to the instru-
mentum and the negotium of the same authentic instrument.83
Original draft Recital 26 was silent upon the free movement issue and
defaulted back to diversity amongst the succession laws of the Member States as
the reason for allowing the “recognition” and enforcement of authentic instru-
ments.84 The clarification was offered that for the purposes of “recognition”
authentic instruments could not be treated as court decisions but otherwise the
draft Recital followed the ideas expressed in the Explanatory Memorandum
concerning the proposed “recognition” of authentic instruments. “Recognition”
was said to mean that authentic instruments would benefit from “the same evi-
80
Civil and commercial authentic instruments enjoy free movement within the EU under, inter
alia, Art 57 of Brussels I despite the absence of any “recognition”.
81
Explanatory Memorandum, 7.
82
The French and German texts each confirm this impression.
83
For the distinction between instrumentum and negotium, see Section B supra.
84
Recital 26 of the 2009 proposal stated, “In order to take into account the different methods of
settling the issues regarding successions in the Member States, this Regulation should guarantee
the recognition and enforcement of authentic instruments. Nevertheless, the authentic instru-
ments cannot be treated as court decisions with regard to their recognition. The recognition
of authentic instruments means that they enjoy the same evidentiary effect with regard to their
contents and the same effects as in their country of origin, as well as a presumption of validity
which can be eliminated if they are contested. This validity will therefore always be contestable
before a court in the Member State of origin of the authentic instrument, in accordance with
the procedural conditions defined by the Member State.”
dentiary effect with regard to their contents and the same effects as in their
country of origin, as well as a presumption of validity which can be elimi-
nated if they are contested”.85 Draft Recital 26 distinguished the evidentiary
effects concerning the content of the authentic instrument from “other effects”
enjoyed by that authentic instrument in its country of origin: presumably the
“other effects” were those of a purely procedural rather than a strictly eviden-
tial nature.
It thus appears that the “recognition” contemplated by the Commission in
2009 covered the transmission of both the domestic procedural effects relating
to the authentic instrument and also the domestic evidentiary effects enjoyed
by the contents of the authentic instrument in its country of origin.86 Although
the alternative contemplated by the Explanatory Memorandum of applying
either the local procedural rules concerning authentic instruments or those of
the Member State of origin was absent from original Recital 26, it resurfaced
in draft Article 34 and is present, subject to public policy compliance, in final
Article 59(1).87 That said, the distinction between the procedural and the evi-
dentiary effects of an authentic instrument (and the contestable presumption of
its validity) continue from the Explanatory Memorandum to the original draft
Recital. This appears to indicate that the Commission’s 2009 conception of the
“recognition” of an authentic instrument required the receiving legal system
to accord both the authentic instrument and its contents the same procedural
effects and evidentiary force applying in the Member State of origin.
As stated, this proposition is startling: the ad hoc displacement it would
require of national laws and laws of civil procedure within a Member State
when confronted by a foreign authentic instrument would be profound. In con-
tentious matters private international law does not allow the parties to choose
or argue about the procedural law which governs a private law dispute once
the jurisdiction of the court is established: a court is only competent to apply
its own procedural law. A claimant who asks a court to disapply aspects of
its own law of civil procedure and then to apply selected aspects of a foreign
law of evidence and civil procedure can expect a negative answer. The diffi-
culty of achieving such a fanciful suspension and replacement before a national
court during contested succession proceedings or during an Article 60 applica-
tion would only be surmounted by the difficulty of attempting to achieve any
comparable effects via Article 59 alone by the mere presentation of a foreign
authentic instrument in the course of succession proceedings. Any cross-border
“recognition” or “acceptance” of a foreign authentic instrument which requires
85
The contemplated validity challenge was originally only possible in the Member State of origin,
for subsequent developments see Section E.5 infra.
86
The French and German text of the 2009 Recital 26 appear to support this construction.
87
See Art 59 final text, supra n 1, 78 and June 2011 Compromise Package, at 12, para 26, dis-
cussed infra in Section E.6.
the ad hoc displacement of “aspects” of the national law of evidence and civil
procedure of one Member State and the substitution of other “aspects” of the
law of evidence and civil procedure of the Member State of origin appears
legally impractical within the European Union as it currently exists.
What could have motivated the European Commission to include such a
novel and impractical form of “recognition” in the proposal? There are two
plausible explanations. The first is that it may be that the Commission was
not initially aware of the dangers of abstractly using terms such as “proba-
tive force” or “evidentiary force” concerning authentic instruments existing in
different concrete national contexts. As indicated above, the authentic instru-
ment remains a specific national legal institution in the domestic laws of the
21 Member States in which it is employed: to employ generic terminology
concerning authentic instruments at the European level is hence to invite con-
fusion at the local level. The second possible explanation is connected with a
poorly communicated desire to build into the Succession Regulation a potential
for authentic instruments to circulate and operate across borders purely at the
notarial level, without any preliminary judicial involvement, by attempting to
employ a very different form of European legal recognition, ie mutual recog-
nition, which the drafters of the Succession Regulation have confused with the
recognition concept traditionally employed by private international law.
3. Recognition in European Private International Law

Distinguished from the Mutual Recognition Principle in the
Cassis de Dijon Jurisprudence
The principle of mutual recognition has been developed by the European
Union since the Cassis de Dijon case of 1979.88 The impact of the development
of EU law, including the Cassis principle of mutual recognition, upon European
and national private international laws has been examined by numerous com-
mentators89 with reference to, inter alia, the development of European private
88
Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.
89
See inter alios, LG Radicati Di Brozolo, “L’Influence sur les conflits de lois des principes de droit
communautaire en matiere de liberte de circulation” [1993] Revue critique de droit international privé
401; M Fallon and J Meeusen, „Private International Law in the European Union and the
Exception of Mutual Recognition“ [2002] Yearbook of Private International Law 37; P Lagarde,
“Développements futurs du droit international prive dans une Europe en voie d’unification :
quelques conjectures” [2004] Rabels Zeitschrift 225 ; H Mansel, “Anerkennung als Grundprin-
zip Des Europäischen Rechtsraums” [2006] Rabels Zeitschrift 651 ; GP Romano, “La bilateralite
éclipsee par l’autorite developpements recents en matiere d’état des personnes” [2006] Revue
critique de droit international privé 457; S Bollée, “L’Extension du domaine de la methode de recon-
naissance unilaterale” [2007] Revue critique de droit international privé 307; R Baratta, “Problematic
Elements of an Implicit Rule Providing for Mutual Recognition of Personal and Family Status
in the EC” [2007] Praxis des Internationalen Privat- und Verfahrensrechts 4; C Pamboukis, “La renais-
sance-metamorphose de la methode de reconnaissance” [2008] Revue critique de droit international
privé 513; C Kohler, “Le droit de l’Union europeenne face à la diversite culturelle: tensions et
solutions” [2009] Revue Hellenique de Droit International 473; B Hess, Europäisches Zivilprozessrecht (CF
international law,90 the possible effects of the Cassis principle upon national
choice-of-law rules and the recognition of matters of personal status concern-
ing marriages and names.91
The specific questions for this article are, firstly, whether the existence
of differences between the civil procedure laws of the Member States con-
cerning authentic instruments can properly be regarded as falling within and
then infringing the Cassis principle so as to allow it to operate in something
approaching the novel manner seemingly contemplated, then secondly, whether
the existence of different civil procedure laws concerning authentic instruments
suggests the legislative development of the form of “recognition” (now “accept-
ance”) seemingly contemplated by Article 59 of the Succession Regulation.
(a) Does the Existence of Different Civil Procedure Laws Concerning Authentic
Instruments within the Member States Fall Within and then Potentially Trigger the Cassis
de Dijon Principle?
Nothing appears to have been written upon the particular question of whether
the civil procedure law of a Member State might already contradict the Cassis
principle so as to require judges or notaries in that Member State selectively
to disapply aspects of domestic civil procedure law and to apply aspects of a
foreign law of civil procedure to give full procedural and evidentiary effect to
an incoming authentic instrument.92 It is submitted that there are good reasons
Müller Verlag, 2010), 92 H Mansel, K Thorn and R Wagner, “Europäisches Kollisionsrecht

2010: Verstärkte Zusammenarbeit als Motor der Vereinheitlichung”? [2011] Praxis des Interna-
tionalen Privat- und Verfahrensrechts 1.
90
Hess, ibid, 94, Rn 22 suggests that the Cassis/mutual recognition principle can be read into the
developmental stages of the exequatur procedure in European private international law concern-
ing judgments from the Brussels Convention of 1968, via the Brussels I Regulation of 2001, into
Regulation 805/2004 (the European Enforcement Order (EEO)). He, however, notes, at Rn 23,
the enduring problem of the absence of a minimum harmonisation of national procedural laws
and, at Rn 25, that abandonment of the foreign exequatur stage is potentially problematic given
different procedural cultures and different “efficiencies” in the judicial systems in the Member
States. Hess also notes, at Rn 27, the existence of as yet empirically unsubstantiated concerns
that the practical application of the European regulations which have dispensed with the for-
eign exequatur, eg the EEO, may not in practice fully protect procedural rights. For criticism of
the EEO and the proposed exequatur free Brussels I in the context of authentic instruments see
Fitchen, supra n 2, 90–98.
91
See also the discussion of Cases C-168/91 Konstantinidis [1993] ECR I-1991, C-148/02 Garcia
Avello v Belgium [2003] ECR I-11631, and C-353/06 Grunkin and Paul [2008] ECR I-7639 in
Bureau and Muir Watt, supra n 5, tome I, 621–27 and by Niboyet, supra n 5, 198–204.
92
Bollée, supra n 5, notes the use of a foreign exequatur for, inter alia, an authentic instrument but
distinguishes the authentic instrument from those situations which feature a constitutive act by
a foreign “organ”: she argues that the latter situations might benefit from a unilateral method
of recognition, see paras 35–36. Pamboukis, supra n 89, would radically extend full recognition
to authentic instruments on a unilateral basis, treating the involvement of the public official,
ie a civil law notary as equivalent to the constitutive judicial involvement in the creation of a
judgment, see paras 55–56. Mansel, Thorn and Wagner, supra n 91, fn 16 point out that Pam-
boukis does not fully elaborate a functioning recognition concept. Pamboukis’ earlier attempts
for this dearth of coverage, not the least of which is that it would wrongly
equate the domestic procedural reception of a foreign authentic instrument, a
matter explicitly reserved to Member State law, with the principle of mutual
recognition, derived from the Cassis jurisprudence, in the context of the trade
in economic commodities within the single European market.93
While the jurisprudence concerning the Cassis de Dijon principle has devel-
oped since 1979, it still retains basic features which argue against its application
in the context of the civil procedure laws concerning the reception of foreign
authentic instruments. First, the Cassis principle only applies to those areas
which fall within the legislative competence of the EU: it is difficult to see
that the scale of the procedural reform required could, even after the Lisbon
Treaty, convincingly fall within the existing legal competence of the European
Union.94 Second, even if “particular” domestic evidentiary and civil procedure
rules concerning authentic instruments do fall within the Cassis principle, it
is likely that such national rules of evidence and civil procedure qualify as
“mandatory provisions” of domestic law having a “proportionate” applica-
tion within the meaning of these terms in the Cassis jurisprudence.95 Third,
the Cassis principle operates by the disapplication or suspension of “a national
to equate foreign actes publics with foreign judgments were forcefully and convincingly criticised
by Callé (see Callé (2004), supra n 5, 180–96 and the summary provided by Bureau and Muir
Watt, supra n 5, 655). Pamboukis’ current argument seems to proceed upon the assumption
that there is one version of what a notary “does” when creating an authentic instrument: with
respect, what a notary does (and does not do) when creating an authentic instrument accord-
ing to the law of his own legal system is likely to be different to what an “equivalent” notary
would do (or not do) when creating an authentic instrument in, and according to the laws
of, a different legal system. That bakers throughout the EU all bake bread does not prevent
there being differences between the creation and subsequent properties of French, German and
Greek bread.
93
Hess, supra n 89, does not argue that the mutual recognition principle itself should be used to
remove procedural differences concerning the enforcement of foreign titles.
94
The Commission’s delay in producing the Green Paper concerning a European authentic
instrument (see Action Plan Implementing the Stockholm Programme, COM(2010) 171 final,
23) may suggest that it privately shares concerns relating to either its competence and or to the
feasibility of attempting this reform. The post-Lisbon competence concerning particular civil
procedure rules is found in Art 81(2) TFEU which allows the adoption of “measures, particu-
larly when necessary for the proper functioning of the internal market, aimed at ensuring: . . .
(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by
promoting the compatibility of the rules on civil procedure applicable in the Member States”,
see [2010] OJ C83/78. It is though doubtful that the scale of the reforms required really fit
Art 81(2) TFEU: can it be said that the legal systems which do not possess authentic instru-
ments need them? Creating an optional European authentic instrument seems to argue against
Art 81(2)’s criterion of necessity but there are also problems in creating a mandatory European
Instrument – quite apart from the six Member States who do not possess the institution – as
authentic instruments are also sent outside the EU.
95
See M Wilderspin and X Lewis, “Les relations entre le droit communautaire et les règles de
conflits de lois des etats membres” [2002] Revue critique de droit international privé, which at 31
places private law generally within the ambit of the exception to Cassis represented by Cases
C-267/91 and C-268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I-6907.
rule”. Assuming, which is far from clear, that the substantive and civil pro-
cedure laws of a receiving Member State concerning authentic instruments
may be so described, mere disapplication of local procedure would not give a
foreign authentic instrument the novel effects required: it would also be neces-
sary to positively import aspects of the substantive and civil procedure laws of
the Member State from which the authentic instrument originated and to then
find a constitutionally acceptable means of integrating these foreign “rules”
within the receiving legal system. This would radically change the nature of the
existing Cassis jurisprudence. Lastly, the Cassis principle, though it functions well
in disputes between individuals and foreign public authorities, does not appear
to easily lend itself to the resolution of private law disputes between compet-
ing private individuals, each of whom possesses a legitimate expectation that
“his” rule should apply. In the light of the foregoing, it is suggested that the
Cassis principle cannot apply to the existence of different civil procedure rules
concerning authentic instruments within EU legal systems.
(b) Does the Existence of Different Domestic Civil Procedure Laws Concerning Authentic
Instruments Suggest the Legislative Development of the Form of “Recognition” Proposed by
the Commission via Draft Article 34 in 2009?
This question is tied to the very issues of EU and Member State compe-
tence over authentic instruments which have recurred throughout this article.
As already emphasised, the authentic instrument is a national legal institution
of varied nature and form which benefits from certain additional advantages
offered by distinct provisions of European private international law: it is not
a uniform European legal institution which is obstructed by unreasonable
national peculiarities and eccentricities when an EU citizen seeks to employ
it outwith its Member State of origin.96 In the absence of a common Euro-
pean authentic instrument, the answer to the immediate question is therefore
negative. Allowing authentic instruments the ad hoc potential in a matter of
succession to transmit such procedural and evidentiary legal effects as may be
summarised by a notary97 of the Member State of creation to notaries and
courts located in whatever other Member States should later be selected by
the holders of the instrument surely risks magnifying existing diversity, com-
plexity and confusion rather than levelling alleged “barriers” to the judicially
supervised form of free movement which is already ensured by Article 60.
The efficient administration of international succession seems unlikely to be
materially enhanced by encouraging a second level of cross-border circulation
96
See P Pasqualis, “The Movement of Notarial Instruments in the European Legal Area” (2010)
available from www.europarl.europa.eu/studies (accessed 20 April 2011). With respect, Pasqua-
lis’s argument seems to undervalue this point by assuming a greater acquis concerning authentic
instruments than actually exists, p 14.
97
Via point 4, draft form II, Draft Forms, supra n 35, p 8.
of authentic instruments between EU notaries via Article 59; especially since

Article 59 still allows judicial supervision of the effects of the authentic instru-
ment, with consequential suspension of its legal effect, following challenges to
its instrumentum or negotium.98
4. Legislative Developments Concerning the Text of Draft

Article 34 Prior to Final Article 59
Unsurprisingly, the deliberations of the legislators concerning authentic instru-
ments discernible from the available documents appear to have predominantly
revolved around the implications of the “recognition” originally proposed by
draft Article 34. In early October 2010 the Presidency sought to clarify the
operation and basic legal effects associated with the cross-border operation of
authentic instruments in a Note.99 The Note also addressed questions arising
from the proposed “recognition” of a succession authentic instrument; this occu-
pied more space than any other issue addressed – the coverage ran to seven
paragraphs as opposed to the two required for draft Article 35.100 Interestingly
the Note contains a tentative suggestion that it might be that the probative
force and the effects of the incoming authentic instrument could be best deter-
mined by the law of the Member State where the authentic instrument was
produced.101 The document concluded by noting there were potentially difficul-
ties with the above-mentioned suggestion as it could founder if the Member
State in question was one which lacked authentic instruments but that, even
so, the suggestion would allow the free circulation of authentic instruments in
most Member States while also respecting the diversity of their respective civil
procedure rules.102
By the end of October 2010 a second Presidency Note was issued which was
also mainly concerned with the legal issues arising from the “recognition” of
98
Art 59(2), final text, supra n 1, 78 directs all challenges concerning instrumentum (or “authenticity”
as explained by Recital 62) to the courts of the Member State of origin; Article 59(3) directs
challenges to negotium (or ‘legal acts or legal relationships’ as explained by Recital 63) to courts
with jurisdiction under the Succession Regulation.
99
See JUSTCIV 156 CODEC 805, supra n 7, Note de la Présidence au groupe “Questions de
droit civil” (Successions) of 1 October 2010. Paras 1–4 set out what is an authentic instrument,
para 5 refers to existing examples of authentic instruments in EU law: the perceived need to
set out basic issues and distinctions in plain non-technical language nearly a year after the pub-
lication of the proposal is suggestive of uncertainty concerning the meaning or implications of
the draft provisions.
100
Ibid, draft Art 35 was covered by paras 9 and 10, but draft Article 34 required paras 11–17.
The Presidency suggested in para 16 that further debate upon the issue of the probative force
and effects of succession authentic instruments might, in light of the variations between the
civil procedure laws of the Member States, be opportune.
101
Ibid, para 16, the suggestion was qualified by the need to ensure that the incoming authentic
instrument would not thereby receive “local” benefits additional to those allowed to it in the
legal system in which it was created.
102
Ibid, para 17.
succession authentic instruments: 10 of its 17 paragraphs addressed this mat-

ter.103 The second Note indicated that the instant objective of the contemplated
“recognition” was to promote a stable rapport between the relevant authorities
of the Member States and then, optimistically, noted that such “recognition”
appeared to imply that there would be no need for the judicial authorities of
the Member State of execution to check whether or not the contents of the
succession authentic instrument were in conformity with the law applicable to
the authentic instrument. The future harmonisation of private international
law was suggested as a justification for the abandonment of such judicial con-
trols and it was speculated that this might eventually lead to the suppression
of any control of foreign documents relating to succession.104 This possibility
was, however, expressed to be conditional upon the relevant authority in the
Member State of creation certifying that the factual and legal contents of the
authentic instrument had been ascertained and that its content was also in
conformity with the applicable law.105 The Presidency also suggested that the
“recognition” of a foreign authentic instrument might be usefully promoted
if the Member States would provide a list of legal effects under their respec-
tive laws of succession concerning domestic authentic instruments in succession
matters: the list should indicate the legal effects which an authentic instrument
might domestically produce so as to prevent other Member States acciden-
tally conferring greater legal effects upon a foreign authentic instrument than
it could enjoy domestically.106
5. Developments to the Validity Challenges of Draft Article 34

Prior to Final Article 59
Paragraph 8 of the second Presidency Note referred to the draft Article 34
validity challenge: it will be remembered that “recognition” was originally
conditional upon there being no validity challenge to the incoming authentic
instrument in the Member State of origin. Paragraph 8 of the Note referred
to a wider validity challenge subject to an applicable law which was no longer
103
See JUSTCIV 176 CODEC 1100 Nota della Presidenza al Gruppo per le questioni di
dritto civile (Successione) of 28 October 2010, www.parlamento.it/web/docuorc2004.nsf/
a4f26d6d511195f0c12576900058cac9/c78087efbd274569c12576550037555e/$FILE/15246-1
0_Lim_IT.PDF (accessed 20 April 2011). Paras 1–4 essentially repeat the introduction to the
earlier document but para 5 bases the idea of free circulation of authentic instruments upon
the definition in draft Art 2 (1)(h) of the 2009 proposal and upon the ECJ’s Unibank jurispru-
dence. Paras 6, 13 and 17 emphasise the importance of limiting the authentic instruments
which may benefit from the proposed regulation to those falling within its definition clause.
104
Ibid, para 10.
105
Ibid, paras 11 and 13.
106
Ibid, para 14. The non-mandatory Draft Form II which, inter alia, indicates such matters is dis-
cussed infra.
necessarily exclusive to the Member State of origin.107 This wider form of

validity challenge was subsequently adopted by the 2010 Presidency Text.
The 2010 Presidency Text contained, inter alia, an amended version of draft
Article 34.108 In this amended form the draft Article required the authen-
tic instrument to be “established”, rather than drawn up or registered, in a
Member State and thereafter that it should be “recognised” in other Member
States as long as it was not subject to a validity challenge under the applicable
law under Chapter III of the Presidency Text (and as long as the “recogni-
tion” was not manifestly contrary to the public policy of the Member State in
which this was requested). At this stage no further detail was provided as to
the nature of the possible validity challenge but the original restriction to the
Member State of creation was deleted.
It may be that the suggested change to the draft Article 34 validity challenge
was a consequence of considering one possible “downside” of the original rule
should the comparative freedom with which a foreign authentic instrument
might be created be itself “abused”. For authentic instruments generated by
notaries, in contradistinction to judgments from courts, there is no control
of jurisdiction or litispendence in EU private international law.109 Thus the
Regulation would not prevent the disruption caused by the presentation of
foreign authentic instruments entitled to automatic “recognition” and intended
to “torpedo” existing succession proceedings conducted in a given Member
State. The difficulty and expense of contesting frivolous authentic instruments,
if only allowed to do so within the Member State of origin, could operate to
the detriment of the smooth administration of cross-border succession in the
EU should an unscrupulous or simply misguided individual appreciate that the
“recognition” of a foreign authentic instrument could disrupt a succession by
either protracting an agreeable status quo, or, applying pressure to settle an
objectively unworthy foreign claim. The delay, expense and potential risks110 of
107
Ibid, para 8: “[U]n atto pubblico sia riconosciuto a condizione che la sua validità non sia con-
testata conformemente alla legge applicable o che il riconoscimento non sia manifestamente
contrario all’ordine pubblico dello Stato membro dell’escuzione”. See also para 12 which sup-
poses that the challenge to validity is now subject to an applicable law rather than tied to the
Member State of creation – see also discussion of the 2010 Presidency text, supra n 20.
108
Art 34, riconoscimento degli atti publici: Un atto pubblico . . . redatto in uno Stato membro
è riconosciuto in un altro Stato membro a condizione: (a) che la sua validità non sia
contestata conformemente alla legge applicabile a norma del capo III . . ., o (b)
che il riconoscimento non sia manifestamente contrario all’ordine pubblico (ordre public)
dello Stato membro in cui è richiesto il riconoscimento. Italian version of 2010 Presidency
Text, ibid, 39 (bold text present in the original and indicating new text).
109
A notary is subject to domestic law and domestic professional rules which may impose terri-
torial controls upon the location of his actions. A foreign notary may however be instructed
to act as an agent outwith a given jurisdiction. Concerning the implications of an absence of
international jurisdiction concerning authentic instruments, see Fitchen, supra n 2, 53. See also
the clarification offered by Recitals 22 and 36, final text, supra n 1, 9 and 15.
110
Quite apart from the delay and costs involved, some legal systems may punish those who unsuc-
cessfully challenge an authentic instrument for abuse of law. See Fitchen, supra n 2 45.
conducting a validity challenge in the Member State of creation while also con-
templating delay and costs in succession proceedings in the receiving Member
State are a legitimate matter of concern.
While it is commendable to try to adjust a rule to prevent foreign authen-
tic instruments from being artfully inserted into the succession machinery of a
Member State so as to bring that machinery to a grinding halt, it is of course
necessary to ensure that the proposed solution represents an improvement to
the contemplated problem. It will be recalled that authentic instruments are
possessed of both instrumentum and negotium: the validity of either is susceptible
of challenge. The amendment offered by the 2010 Presidency Text did not
distinguish between challenging the validity of the instrumentum and challenging
the negotium of an authentic instrument: each challenge was to be according
to the applicable law and thus could take place outwith the Member State
of creation if the applicable law so indicated. This prospect certainly avoided
the problems arising from being compelled to make a validity challenge only
within the Member State of creation; however, the failure to differentiate
between the different types of validity challenge raised additional uncertainties
by deviating from the orthodoxy concerning judicial interaction with foreign
authentic instruments which, for obvious reasons, does not seek to engage in
the supervision and review of the validity of the instrumentum of foreign authen-
tic instruments.111
The coverage of draft Article 34 in the 2010 Presidency Text concluded
with a footnote which admitted that there were a number of unresolved issues
concerning the “recognition” of authentic instruments and said that additional
questions would be asked of the Council of the Notariats of the European
Union (CNUE)112 concerning the operation of authentic instruments in the
context of succession before the matter could be re-examined in depth.113
CNUE’s somewhat astonished response to the timing of the basic questions
which the Presidency then asked of it was published in February 2011.114 This
led to another Note from the Presidency of 11 April 2011 which indicated that,
inter alia, the above-mentioned distinctions concerning validity challenges had
finally registered.115 This Note was followed by the publication of the Presiden-
111
See Bureau and Muir Watt, supra n 5, and Fitchen, supra n 2 64–65. It is worrying that despite
the explanation of the instrumentum and negotium in the first Presidency Note considered above,
the 2010 Presidency Text initially blurred the distinction.
112
CNUE, supra n 4, Part A is a private organisation not an EU organisation.
113
See Presidency Text, supra n 20, at p 39, fn 1.
114
“The CNUE hopes this information will be useful, although it is surprised that these questions
are only being put at this stage of the adoption procedure for the draft Regulation on ‘succes-
sion’.” p 7. JUSTCIV 21 CODEC 214 Contribution from the Council of the Notariats of the
European Union, available from http://register.consilium.europa.eu/pdf/en/11/st06/st06421.
en11.pdf (accessed 20 July 2011).
115
See paras 10–18, JUSTCIV 78 CODEC 539 Atti pubblici in materia di successioni, supra n
48.
cy’s June 2011 Compromise Package establishing political guidelines concerning

future work on the more controversial aspects of the draft succession regula-
tion: unsurprisingly authentic instruments were included.116
The Compromise Package correctly directed validity challenges concerning
instrumentum to the competent authority of the Member State of origin and
subjected them to its law and procedure.117 Challenges to negotium were directed
to any court having jurisdiction under the Regulation or to any other court
facing an incidental question. Paragraph 29 promised, “a harmonised legal
consequence” concerning a challenge to an authentic instrument such that
the instrument would be deprived of the possibility of producing cross-border
legal effects for the duration of the challenge: this last matter was discussed
supra.118
6. From “Recognition” in Draft Article 34 to “Acceptance” in

Final Article 59
From the particular perspective of this article the most significant development
confirmed by the Compromise Package was the deletion of the term “recog-
nition” from draft Article 34 and the confirmation of its replacement with
the new term “acceptance”.119 The Compromise Package specified that cross-
border authentic instruments were to be “accepted” rather than “recognised”
in the final Regulation. This significant improvement and welcome change did
not, however, address the uncertainties resulting from the desire to allow draft
Article 34 to transmit legal effects deriving from the civil procedure rules of
one Member State to operate in a different Member State legal system. To this
end the Compromise Package mentioned clarification by new Recitals and also
promised the creation of a “non-mandatory standard form”, which could be
completed by the notary who drew up the authentic instrument, to enumerate,
for information purposes, the “effects” possessed by the authentic instrument
in its Member State of origin.120
The Justice and Home Affairs Council, at a meeting held 13–14 December
2011, approved the raw Articles of the Regulation and referred them to the
European Parliament.121 The final text of the Succession Regulation, together
116
JUSTCIV 152 CODEC 968 June 2011 Political Guidelines, supra n 34. Draft Art 34 occupied six
of the seven paragraphs in s G which concerned authentic instruments.
117
See paras 27 and 28 June 2011 Political Guidelines, supra n 34.
118
Ibid, para 29. See discussion in Section C.1. supra concerning the probable difficulties of secur-
ing any corresponding stay under Art 60.
119
Ibid, paras 25 and 27. The earlier Presidency Note of 11 April 2011 had also, at p 4, spoken
of the “acceptance” of foreign authentic instruments but without making it clear that a substi-
tution was intended.
120
Ibid, para 30.
121
See Presidency Note of 12 December 2011, supra, para 22, the new recitals and standard forms
were then still to be drafted.
with its new Recitals, were adopted by the Justice and Home Affairs Council at
a meeting held on 7–8 June 2012 and have now been released pending publi-
cation in the Official Journal.122 Draft Article 34 has become final Article 59
of the Succession Regulation and reads:-
“Article 59
Acceptance of authentic instruments
1. An authentic instrument established in a Member State shall have the same
evidentiary effects in another Member State as it had in the Member State of
origin, or the most comparable effects, provided that this is not manifestly con-
trary to public policy (ordre public) in the Member State concerned.
A person wishing to use an authentic instrument in another Member State may
ask the authority establishing the authentic instrument in the Member State of
origin to fill in the form established in accordance with the advisory procedure
referred to in Article 81(2) describing the evidentiary effects which the authentic
instrument produces in the Member State of origin.
2. Any challenge relating to the authenticity of an authentic instrument shall be
made before the courts of the Member State of origin and shall be decided
upon under the law of that State. The authentic instrument challenged shall
not produce any evidentiary effect in another Member State as long as the chal-
lenge is pending before the competent court.
3. Any challenge relating to the legal acts or legal relationships recorded in an
authentic instrument shall be made before the courts having jurisdiction under
this Regulation and shall be decided upon under the law applicable pursuant
to Chapter III. The authentic instrument challenged shall not produce any evi-
dentiary effect in a Member State other than the Member State of origin as
regards the matter being challenged as long as the challenge is pending before
the competent court.
4. If the outcome of proceedings in a court of a Member State depends on the
determination of an incidental question relating to the legal acts or legal rela-
tionships recorded in an authentic instrument in matters of succession, that
court shall have jurisdiction over that question.”123
Article 59 is directly supported by seven Recitals which attempt to explain and

clarify its intended operation.124 The “acceptance” required by Article 59 is not,
however, defined within the Succession Regulation. That said, “acceptance”
appears remarkably similar to the “recognition” concept of original draft Arti-
cle 34 in that it specifies, subject to public policy compliance, that the foreign
authentic instrument will have the same evidentiary effects or the most compa-
122
According to a Commission Press Release of 7 June 2012 publication of the Succession
Regulation in the Official Journal is expected, “within weeks”, see http://europa.eu/rapid/
pressReleasesAction.do?reference=IP/12/576&format=HTML&aged=0&language=EN&guiLa
nguage=en (accessed 10 June 2012).
123
See Art 59 final text, supra n 1, 78–79.
124
See Recitals 60–66, final text, ibid, 25–28.
rable effects as it enjoyed in the Member State of its origin. Recital 61 indicates
something of the intended operation of this alterative: it seems that the recipi-
ent of the foreign authentic instrument must make an ad hoc evaluation of the
“nature and scope” of the actual or most comparable evidentiary effects which
the authentic instrument would produce in its State of origin and then treat the
incoming authentic instrument according to this determination.
The key unanswered question is when will it not be possible to grant the
same evidentiary effects to an authentic instrument as it would enjoy in the
Member State of origin such that reference may be made to the alternative
of “the most comparable effects”? If an expansive view of the alternative is
taken, then much of the mischief concerning the importation of foreign pro-
cedural rules will be capable of being neutralised, albeit with additional cost
and delay. A less expansive view may be more realistic as it seems unlikely
that the alternative is intended to offer the receiving authority in the receiv-
ing state a general discretion as to how it allows the implementation of the
evidentiary effects of a foreign authentic instrument: resort to “the most com-
parable effects” may, assuming public policy compliance, only be an option
when the incoming authentic instrument seeks “acceptance” from an author-
ity of a Member State which cannot grant actual foreign evidentiary effects
because its legal system is ignorant of such authentic instruments.
On this view a receiving Member State which utilises authentic instruments
would usually be required to ‘accept’ not only the foreign authentic instru-
ment but also external direction as to its foreign evidentiary effects: if the
foreign evidentiary effects should be “stronger” than those which would be
allowed of the receiving legal system, such “acceptance” could be viewed as
depriving the “debtor” of an otherwise legitimate national procedural opportu-
nity concerning the nature of the evidence contained in the foreign authentic
instrument. Matters necessarily become more complex should multiple foreign
authentic instruments be presented with conflicting contents and evidentiary
standards. Although public policy in European private international law is
always restrictively construed,125 it may be that it is necessary to avoid the com-
plexity threatened by attempting to import foreign evidentiary rules concerning
authentic instruments relating to a matter of succession.126
A further indication that Article 59 is intended to transmit foreign eviden-
tiary and procedural rules was provided by the release of a draft version of
the standard forms intended to accompany the final Regulation.127 The June
2011 Political Guidelines promised a “non-mandatory” form to list, for what
125
See C-394/07 M Gambazzi v DaimlerChrysler Canada Inc and CIBC Mellon Trust [2009] ECR
I-2563 as discussed by Hess, supra n 89, 95, Rn 28.
126
Recital 66, final text, (discussed supra in Section C) sheds a little light on such possible con-
flicts.
127
See Draft Forms, supra n 35, Form II.
it described as “information purposes”, the “effects” possessed by an authentic

instrument in its place of origin. If employed, the standard form is intended
to be completed by the notary who drew up the authentic instrument and to
accompany a copy of that instrument when both are sent abroad.128 At the
time of writing, only draft forms are available, however, certain difficulties are
already apparent.129 The above-mentioned restriction of the forms to “infor-
mation purposes” is absent. Draft Form II provides tick boxes which concern
both the “acceptance”, point 4, and the “enforceability”, point 6, of the out-
going authentic instrument; thus the same form may concern both Articles 59
and 60. When quantifying the evidentiary effects of the authentic instrument in
the Member State of origin there are four different explicit options, plus a fifth
box marked “other” which invites the notary to specify whatever he may mean
by ticking “other”; presently there is no restriction on how many boxes may
be ticked at the same time. The terminology used in the four explicit options
optimistically assumes that the distinction between the undefined terms “proof ”
and “full proof ” employed by the form will be clear to both the sender and
the recipient(s) of the form. Conveying the domestic evidentiary effects and the
enforceability130 of an authentic instrument via tick boxes is clearly not easy:
achieving an accurate and yet “foolproof ” form of manageable length given
the heterogeneity present in the legal systems of the participating Member
States is challenging indeed.131 A further issue, once draft Form II is finalised,
concerns the fact that though the form accompanies an authentic instrument,
it will not itself be an authentic instrument: thus, should the sending notary
be alleged to have made an error when completing Form II, as opposed to an
error in the authentic instrument itself, this matter will immediately fall to be
resolved by the application of the domestic procedural and evidentiary rules of
the receiving state rather than those of the state of origin.
128
June 2011 Political Guidelines, supra, para 30 and point 2 of Form II, Draft Forms, supra n 35,
p 6.
129
Draft Forms, supra n 35, the forms are said to reflect six months of discussion by the Working
Party, p 1.
130
The tick boxes in point 6 concerning enforceability each appear to present a factual conclusion
relating to (a) the fact that an enforceable obligation is present, (b) the nature of the enforce-
able obligation, and, (c) the persons against whom this obligation is enforceable. It remains to
be seen how a receiving authority will treat these conclusions.
131
The EU’s previous comparative investigations of authentic instruments have been modest: see
Comparative Study on Authentic Instruments National Provisions of Private Law, Circulation,
Mutual Recognition and Enforcement, Possible Legislative Initiative by the European Union,
England, France, Germany, Poland, Romania, Sweden Study for the European Parliament No
IP/C/JURI/IC/2008-019 PE 408.329, www.europarl.europa.eu/document/activities/cont/200
811/20081127ATT43123/20081127ATT43123EN.pdf (accessed 20 April 2011).
F. CONCLUSION
This article has argued that though the decision to feature cross-border enforce-
ability for authentic instruments in the Succession Regulation was correct,
the decision also to include a novel form of cross-border acceptance remains
flawed. This argument is based on the legal and procedural diversity which
currently characterises the national versions of the authentic instrument within
the legal systems of the EU and also on the conviction that such diversity,
together with a lack of clarity of purpose and function concerning Article 59
in the Regulation, will obstruct the operation of both provisions concerning
succession authentic instruments. As the final text of the Succession Regulation
features Article 59 there is nothing to be gained from suggesting its deletion. It
is, however, potentially useful to recapitulate that which makes Article 59 prob-
lematic in both theory and practice.
At its simplest, the theoretical problem posed by Article 59 is that its intended
purpose (and hence its intended interrelation with Article 60) is still, despite the
replacement of “recognition” with “acceptance”, unclear. It may be that the
complexities summoned forth by draft Article 34 were such as to divert the
attention of the drafters from the need to offer explicit clarification on this
point; if so, this is a matter of regret. Even after the release of the final Regu-
lation such clarification is necessary as otherwise different parties may reach
different conclusions on this essential point.132
The practical advantage which Article 59 appears to have been hoped to
offer is a notional cost saving for the claimant faced with a cross-border suc-
cession: fully realising this advantage is, however, conditional upon dispensing
with the foreign exequatur provided by Article 60. In practice, achieving either
the cost savings or an exequatur-free cross-border succession is likely to be prob-
lematic. It may be that there will come a day when the parties, representatives
and authorities in a given European legal system will willingly surrender control
of valuable assets upon the mere presentation of a foreign succession authentic
instrument (with or without Form II) but currently this seems a distant pros-
pect. At present it seems more likely that a cross-border succession authentic
instrument will require an Article 60 application not just despite the existence
of Article 59 but also because of the uncertainties disclosed by the coterminous
existence of both Article 59 and Article 60 in the Succession Regulation.
132
See discussion in Section C.2 supra associated with n 50.

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Vol. 8 No.

2 Journal of Private International Law 323

“RECOGNITION”, ACCEPTANCE AND ENFORCEMENT

enforceability upon authentic instruments but also a controversial provision

foreign exequatur, could, however, be understood to hold out to a European legis-

with a foreign succession authentic instrument which attempts to affect an oth-

B. THE NATURE OF AUTHENTIC INSTRUMENTS AND THEIR

An authentic instrument is a formal record, contained within a public docu-

tains: this evidentiary potential is referred to as “probative force” and depends

the national rather than European origin of authentic instruments resonate

by his own law. Thus an authentic instrument concerning, “a matter of suc-

C. INTRODUCING THE CROSS-BORDER ENFORCEABILITY AND

Although Articles 59 and 60 are each subject to various uncertainties, the

would be a condition precedent to enforcement). That said, the drafting of the

less likely to mislead: eg “free movement”,45 “free circulation”,46 “circulation”,47

D. PRECEDENTS FOR THE “RECOGNITION” OF AUTHENTIC

2. “Recognition” of Authentic Instruments under Article 46 of

extension of “recognition” to material content in the context of authentic

3. “Recognition” of Authentic Instruments under the

Article 17 of the Maintenance Regulation abolishes the foreign exequatur

authenticity or the material content of the parts of an authentic instrument or

as a precedent for Article 59: “recognition” under Article 59 thus represents

E. TEXTUAL DEVELOPMENT FROM DRAFT ARTICLE 34 TO

2. Draft Article 34 and the “Recognition” of Authentic

free movement previously understood to be implicit in the potential of a cross-

As written, the Commission’s Explanatory Memorandum indicated a belief that

3. Recognition in European Private International Law

Müller Verlag, 2010), 92 H Mansel, K Thorn and R Wagner, “Europäisches Kollisionsrecht

of authentic instruments between EU notaries via Article 59; especially since

4. Legislative Developments Concerning the Text of Draft

succession authentic instruments: 10 of its 17 paragraphs addressed this mat-

5. Developments to the Validity Challenges of Draft Article 34

necessarily exclusive to the Member State of origin.107 This wider form of

cy’s June 2011 Compromise Package establishing political guidelines concerning

6. From “Recognition” in Draft Article 34 to “Acceptance” in

Article 59 is directly supported by seven Recitals which attempt to explain and

it described as “information purposes”, the “effects” possessed by an authentic

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