1 The end of the year 2020 brought a surprise to private law internationalists. While one might have thought that the Cour de cassation had long since fixed the fate of the “réserve héréditaire” in international successions with its much commented upon decision of September 27, 2017, [1] the government has now introduced a bill solemnly entitled “consolidating respect for the principles of the Republic,” inserting a new paragraph of particular note in Article 913 of the French Civil Code. This text re-establishes a right of levy for the benefit of the children of the deceased in cases where the applicable law of succession does not provide for an equivalent to the French “réserve héréditaire.” If the deceased or one of the eligible children is a national of a Member State of the European Union or a habitual resident, the children will then be able to deduct the share of the reserve from the property situated in France as granted to them by French law.

2 This bill, through its chosen vocabulary, invokes the old text of law of July 14, 1819 which had instituted the right of levy and was condemned by the Conseil constitutionnel almost two centuries later. [2] It perfectly illustrates the phenomenon of “jurisprudence fought by law,” which Philippe Malaurie once analyzed in his article published in the 1965 French legal publication, Mélanges René Savatier. [3] In order to speak of the real battle between the legislator and judge, Malaurie posited that two elements had to be brought together: time and politics. The legislator's response had to come promptly after the creation of case law; otherwise, the legislator's intervention would merely be the normal application of the formation of law. Furthermore, in order to be convincing, this response had to be driven by political passion, even ideology. The new crusade of the legislator perfectly embodies these two elements of the temporal and the political.

3 At the time of writing, it is not yet known if this text will continue through the period of parliamentary discussion. While adopted by l'Assemblée nationale, it was removed by the Senate Law Commission. The government had asked for its reinstatement, but its amendment to this effect was rejected by the Sénat in a public session. [4] In any event, even if the character of the international public policy regarding the “réserve héréditaire” was not accepted at the end of the debate, it is not out of the question that a new attempt to do so will be made at a later date. Therefore, it seems useful to reflect - even without a text - on the regularity and the general significance of this anguished return to the past and the improvements that might accompany it.

4 Leaving aside the possible merits of re-establishing a right of levy in international successions, such an initiative would have to overcome a number of well-known difficulties, both at the constitutional level and at the international and European level in order to achieve a legislative text.

5 Regarding the first point, one cannot fail to observe that the new wording of Article 913 of the French Civil Code as proposed to Parliament is placed in a text by the government “reinforcing respect for the principles of the Republic.” The Conseil constitutionnel - which has long been concerned with avoiding “catch-all” legislation that may be detrimental to the comprehensibility of the law - now censures these legislative work-arounds, i.e. provisions that do not naturally belong in the text where their author intended them to be placed, whether in the initial text submitted to Parliament, or, more often than not, in an amendment tabled during the debates. [5]Obviously, the broad title of a legislative text makes it possible to integrate within it many otherwise rather disparate provisions without these being seen as legislative work-arounds which would discredit them. Supporters of this text will not fail to invoke the republican principles of liberty, equality, and fraternity in support of this new right of levy!

6 The legality of the law should also be examined in the light of European law. The compatibility of the proposed test with European regulation No. 650/2012 on successions is not obvious. In order to establish consistency, the wording proposed by the government for Article 913 of the French Civil Code would need to be in line with the provision of Article 23 of the European regulation. According to the latter, the law designated under Articles 21 and 22 “governs, in particular […] the available portion [quotité], the hereditary reserve [réserve héréditaire] and other restrictions on the freedom to dispose of property upon death as well as the rights that persons close to the deceased may assert with regard to the succession of the heirs.”

7 Some foreign codifications of private international law also give special treatment to the equivalent of the French “réserve héréditaire.” In Canada, in cases where the applicable law conflicts with the wishes of the deceased, the new Civil Code of Quebec [6] protects the reserve provided for by law applicable to the succession against what law the deceased may have applied to his succession (Art. 3099). Therefore, the Code places more emphasis on the objective determination of the law of succession than on the choice of law by the deceased to govern his succession. [7] Closer to home, the example of the recent codification of Monegasque private international law shows the great difficulty of arriving at an acceptable legislative provision regarding this subject. While the initial proposal for a law on succession contained provisions closely inspired by the European regulation in progress at the time, the enacted text reduces its prematurely reduces its scope by specifying that the law of succession may not deprive an heir of the reserve guaranteed to him by the national law of the deceased, nor attribute a reserve to the heir which that same law does not recognize [8] while subjecting the reserve and the available portion to the law of succession (Art. 63:8). Although this is a defensible solution, it undermines the principle of the unity of the law of succession by detaching the “réserve héréditaire” to be governed by the national law of the deceased. [9] This contradiction within Art. 63 is unavoidable, and the Monegasque courts will have to resolve it. However, unlike the French courts, they are not bound by a supranational regulation.

8 Assuming that the constitutional and European difficulties can be reconciled, it would then be necessary to ensure that the resurrection of the right of levy for the benefit of the reserves is not barred on grounds on unconstitutionality - an argument upon which the Conseil constitutionnel relied in its decision of August 5, 2011, condemning the right of levy from the law of July 14, 1819. [10]

9 The unconstitutionality of the right of levy instituted by the law of 1819 arose from the fact that it disregarded the principle of equality by establishing a difference in treatment based on nationality between the heirs as called for by the foreign law of succession. The French heirs were, in fact, the only ones entitled to deduct the share that would have been given to them under French inheritance law from the property located in France but from which they were excluded by the foreign inheritance law.

10 The text proposed by the government avoids this obvious infringement upon the principle of equality and grants the right to reconstitute the share of the reserve attributed to the heir under French law regardless of his nationality and even if he is not a habitual resident of France. It is sufficient for the link between the family and a European Union Member State to be established by the nationality or the habitual residence of the deceased or of one of his children. For example, let us suppose that the deceased, a Californian with habitual residence in California, leaves behind two American children - one who lives in the United States and the other who lives in Slovenia. Under the new French law, this situation would allow each of these children to deduct from the assets located in France - - e.g. a bank account, a residence on the French Riviera or in Brittany - the share of the reserve that he is entitled to under French inheritance but with which the child has n° personal connection. On the other hand, if the second child had had his habitual residence in Canada instead of living in Slovenia, neither of the two children could have invoked French law even if they had both had significant ties with France. These solutions are not satisfactory in terms of the clarity and the comprehensibility of the law - objectives that the Conseil constitutionnel considers to be of constitutional value. [11]

11 From a constitutional point of view, it is important to determine whether this new right of levy would be justified by the purpose of the law. While the exact conditions were unclear, the Conseil constitutionnel noted the absence of such a link in its August 5, 2011 decision regarding the law of 1819. [12] Could this absence concern the law under discussion? The explanatory memorandum of the bill - as submitted by the government to the Assemblée nationale on December 9, 2020 - states the objectives of the law from the outset: to arm the Republic against “a communitarian entryism that is slowly corroding the foundations of our society.” Furthermore, regarding Article 13 of the bill re-establishing the right of levy, the explanatory memorandum indicates that the goal of the future law is to allow all children who are legal heirs to benefit from their rights “without any distinction being made on discriminatory criteria.” The example given above about the Californian family does not pose a threat to the Republic. Hence, the solution that the proposed law would provide does not appear to be justified by the goal of the law. Such considerations lead us to contemplate whether the rescue of the French “réserve héréditaire” has been properly assessed.

12 For a provision such as this to achieve its purpose, it would need to be easily enforceable. However, certain features of its wording may lead to a distortion of its application and complicate its enforceability.

13 First of all, the weakness of the connection to France required to trigger the application of the provisions of French law dealing with the “réserve héréditaire” is questionable. To say that French law will be applied in any case that the deceased or one of his children (or an heir of the child) is a national or a habitual resident of a European Union Member State establishes a very tenuous link, arguably a non-existent one if the implicated Member State is not France.

14 For this question to even come up, having the option of appeal in a French court must be an option as it is impossible to imagine a scenario in which the court of another Member State - like a Slovenian court in the above example regarding the deceased Californian - would agree to apply the new French law against the provisions of Regulation 650. In the past, under the law of 1819, case law rarely allowed for international jurisdiction of French courts based on the right of levy. [13] It remains to be decided whether the forum of the location of the assets of the estate - secondarily provided for by Art. 10 of the Regulation - could be retained for the application of a levy contrary to the Regulation.

15 It would also be appropriate to apply the new text only in cases where foreign inheritance law that ignores the reserve is based on a discriminatory ground such as sex, religion, or skin color. This is not the case in the example used thus far. However, should this be the true purpose of the new law, it should explicitly say so.

16 The concept of a “child-protective reserve mechanism” is open to different interpretations. The government representation at the public session of the Sénat on April 2, 2021 cited the Family Provisions of English law as an example of a protection reserve mechanism, emphasizing that the text as it stands “allows for a concrete and factual assessment of the foreign law, making it possible to ascertain whether or not the child is protected in the case in question.” If this is the solution, the amendment to Art. 913 of the French Civil Code loses most of its raison d'être. Indeed, the moderate interpretation of the European regulation regarding the question of the reserve - increasingly accepted today - is that a foreign law that ignores the reserve is not a priori contrary to public policy. Furthermore, it should only be set aside if its concrete application in any given case would lead to an unacceptable situation such as leaving young children destitute. [14]

17 These few pages have had the sole ambition of showing the difficulties of the reform of the “réserve héréditaire” in an international context. The following studies, written independently of this general introduction, will go into more detail on various details of the government's proposed bill in order to defend or criticize it.