The habitual residence of the deceased at the time of death is a key connecting factor for determining the jurisdiction of the courts under the Succession Regulation. The criteria on the basis of which the competent authorities determine the notion of habitual residence are contained in recitals 23 and 24 of the Succession Regulation, which means that they are non-binding. The Master's thesis addresses the question whether the lack of an explicit definition of the habitual residence of the deceased, or the lack of more precise guidelines for its determination, leads to inconsistencies and difficulties in its interpretation in doctrine and in case-law. It describes in more detail the criteria arising from the two recitals and addresses the question of the possibility of a deceased having two or more habitual residences or even no habitual residence at all. Through an analysis of the case-law of the Slovenian High Courts, it is presented how they understand and interpret the concept itself, and what difficulties they face in doing so. One of the key parts is the analysis of the CJEU judgment, which ruled that a deceased may have his habitual residence at death in only one Member State, and developed a hierarchy of criteria to assist the competent authorities in their decision-making. The Master's thesis further deals with the question of the inter-regulatory interpretation of the term contained in several EU regulations in the field of private international law. There are those who favour such an interpretation, but also those who disagree with it. Last but not least, the author discusses the possibility of an explicit definition of the habitual residence of the deceased and, through the opinions of various authors, examines the reasonableness, necessity and appropriateness of such a definition. In the light of the findings, the author concludes by appealing to the European legislator to consider the inclusion of an explicit definition of the term in the future legislative process.
|
