1 1. On February 17, 2021 the Assemblée nationale adopted, on first reading, Article 13 of the bill reinforcing respect for the principles of the Republic. [1] Found in Chapter III, entitled “Provisions relating to respect for the rights of persons and equality between women and men," Article 13 provides for the addition of a new paragraph to Article 913 of the Civil Code which reads as follows:

2 “When the deceased or at least one of his children is, at the time of death, a national of a Member State of the European Union or habitually resides there, and when the foreign law applicable to the succession does not recognize any mechanism for reserving rights to protect children, each child or his heirs or successors may make a compensatory deduction from the existing property situated in France on the day of the death so as to be restored in the rights of reservation granted to them by French law, within the limit of these rights.” [2]

3 As the title of Chapter III shows, applying a compensatory levy to international successions subject to a foreign law which does not have an equivalent of the French “réserve héréditaire” is meant to protect against discrimination regarding inheritance. According to an explanatory memorandum, this Bill aims to ensure that “all children, who are legal heirs, benefit from their rights without any distinction made on discriminatory grounds,” a goal brought up on several occasions during the debates in the Assemblée nationale. For example, in relation to the bill in question, Minister Delegate Elisabeth Moreno stated the following:

4 “With regard to the inheritance reserve, young girls must have the same rights as young men. The bill must prevent the inequalities that have occurred in the past and that are n° longer acceptable in our country. We must protect the girls in our territory, and their share of the hereditary reserve must return to them.” [3]

5 According to the “travaux préparatoires,” the compensatory levy proposed by the legislation would protect against foreign laws that do not have a “réserve héréditaire” and which would deprive girls of any inheritance rights based on religious reasons. Such an approach is incompatible with the equality between men and women on which French law is based. This explains why the bill, which was intended to fight against “communitarian entryism […] essentially of Islamic inspiration,” [4] envisages reforming the Civil Code's provisions relating to the “réserve héréditaire.”

6 2. Regarding the proposal of its rapporteurs, [5] the committee of the Sénat deleted Article 13, on the grounds did not achieve the intended goal and, furthermore, that it could produce poorly controlled "side effects". [6] In the public session, the the Sénat rejected the amendments, including one presented by the government, aiming at its reinstatement. [7] The political nature of the measure suggests, however, that it will be reintroduced during the reading in the Assemblée nationale in the event of the probable failure of the joint committee. Therefore, despite its omission by the Sénat, the text is still relevant at this stage. If this text were not to be adopted in the end, this period of events would, nevertheless, remain interesting insofar as it would reflect a notable legislative leap forward in favor of the “réserve héréditaire.”

7 3. The contributions published in this issue suggest that the possible creation of this compensatory levy has already raised many questions, particularly in the sphere of private international law. For example, how can it be determined whether or not a foreign law lacks any reservation mechanism? Does the proposed plan comply with the constitutional requirements [8] which led to the repeal of the former right of levy? [9] Does it comply with the requirements of European Union law regarding Article 35 of Regulation (EU) No. 65/2012? [10] Which private international law mechanism does it implement? How will a notary apply this compensatory levy in practice regarding international succession and to which assets? What are the consequences of liquidation for the descendants? How do we interpret the proposed mechanism for the distribution of assets when philanthropy is involved? Beyond these questions, and n° doubt many others, we would like to consider the proposed plan from a more general perspective to better contextualize the discussions in private international law that it engenders.

8 4. What is most striking about the whole issue is how the focus regarding the “réserve héréditaire” changes along with shifting political priorities. In 2019, for example, the “réserve héréditaire” seemed to be under threat. The then Secretary of State, in charge of associations, Gabriel Attal, expressed concern in the press that it would deprive some of the major French business leaders of the ability to leave the bulk of their wealth to philanthropic works in the style of Bill Gates or of Warren Buffet. [11] Given that the Americans enjoyed a high level of philanthropic development in the United Sates yet lacked an equivalent to the “réserve héréditaire,” the worry was that, in France, the latter would potentially slow down former. This reasoning has already inspired amendments [12] and legislative proposals [13] as well as reflections on shareholder foundations. [14] It was in this context that in July 2019, the prime minister entrusted two deputies with the drafting of a parliamentary report with the goal of promoting a “French-style philanthropy.” Among other things, this report proposed to vary the portion of the “réserve héréditaire” in relation to the value of the inheritance in order to broaden the available quotité of only the most fortunate for philanthropic purposes [15].

9 5. At the same time, voices were heard calling for more radical suppression of the “réserve héréditaire" [16] in France. There was n° shortage of reasons for this though not many new arguments as it has always been controversial. In the most classic way, the “réserve héréditaire" is, in the eyes of its opponents, an intolerable infringement upon individual freedom and private property. Opponents believe that it is not for the law but for individuals to decide what happens to their property after their death as during their lifetime. Absolute testamentary freedom encourages virtuous behavior in turn, which is morally and socially desirable in that society has an interest in seeing that children care for their parents in their old age - though there is n° obligation for children to do so.

10 Opponents argue that by guaranteeing that the beneficiary will receive a share of the estate regardless of his or her behavior, it risks rewarding heirs who may not have properly cared for the deceased and could possibly become as source of discord and division within families. Moreover, the “réserve héréditaire" would be economically harmful in that, by impinging upon initiative and creativity, it would fail to stimulate the beneficiary's entrepreneurial spirit, encouraging, instead, laziness and idleness. It would also hinder the conveyance of businesses and would possibly force their dismantlement. Furthermore, it would be an instrument for reproducing social inequalities.

11 6. In addition to these traditional criticisms, there are other, more current, ones that would justify, if not the abolition of, at least the reduction of or a move to re-define the “réserve héréditaire.” First, there are sociological reasons: the need to account for the phenomenon of blended families and adapt the rules of inheritance for these new, more complex familial situations; the desire to favor the surviving spouse to a greater extent than the surviving children; acknowledgement that, while the bonds of family solidarity are often strengthened by parents helping to establish their children by financing their education or training, once this parental mission has been accomplished, the parents should regain the full freedom to dispose of their property as they see fit; adaptation for the reality of longer lifespans and those effects on inheritance, specifically how the “réserve héréditaire” becomes less important the later that one inherits; and, with the State having largely replaced the family in matters of education, health, and solidarity, the need to refocus the family on emotional and cultural functions.

12 Next, there are political reasons: the deinstitutionalization of the family and the rise of a profoundly individualistic society mean that the “réserve héréditaire” is politically outdated. Finally, there are legal reasons: on a domestic level, the laws of December 3, 2001 and June 23, 2006 have begun to question the “réserve héréditaire” by blurring its foundations, [17] undermining its principle, [18] and modifying its regime. [19] This is also the overriding status of life insurance which leads, in principle, to the insured capital and the premiums paid being exempt from reduction. Thus, this weakens the institution as a whole, depriving it of consistency. Furthermore, French law is n° longer isolated from foreign law, rendering the “réserve héréditaire” of the Civil Code, according to some, a singularity which is now unjustified and out of date.

13 7. These various elements explain why the Cour de cassation has refused in international matters to prevent the application of a foreign law that does not recognize a reserved portion of the estate in question like the “réserve héréditaire” does in French law. [20] According to case law, the reservation of right of inheritance is not by itself a matter of international public policy. Therefore, a French judge does not have to disregard a foreign law solely on the grounds that it does not contain a provision for the reservation of the right to inherit.

14 As we are aware, however, this principle is qualified by a proviso: the foreign law may be disregarded where its application would leave an heir “in a situation of economic insecurity or need.” Both domestic and private international law have contributed to the weakening of the “réserve héréditaire” in recent times. The legislative and jurisprudential evolution of domestic law has served as a fulcrum to render the “réserve héréditaire” void of any international public policy character; in private international law the “réserve héréditaire” has dwindled to a purely alimony-like function, weakening it in the eyes of its opponents and essentially legitimizing the idea that the time has come to make this change in domestic law, with a push to transform the “réserve héréditaire” found in the Civil Code into a simple maintenance claim based on demonstration of need.

15 8. This is to say that the future of the “réserve héréditaire” has become cloudy. It is in this context and at a time when parliament was about to begin serious reflection regarding philanthropy that the Ministry of Justice, decided that it wished to reconsider the contemporary justifications for the “réserve héréditaire” in French law and, as a result, set up a working group to examine the issue. After conducting some forty hearings in a multidisciplinary spirit, the group submitted its report in December 2019. [21] Beyond the fifty or so proposals aimed at improving the state of positive law, the main conclusion of this collective reflection was that the “réserve héréditaire” of descendants must be maintained and solemnly reaffirmed in French law.

16 9. First of all, the “réserve héréditaire” is by n° means only a French peculiarity; on the contrary, it is widespread throughout the world, existing in almost all civil law traditions. In some countries, notably Germany, it even continues to have constitutional value. An examination of foreign law shows that wherever the “réserve héréditaire” - understood as a system of fixed inheritance rights attributed by law - is lacking, functional equivalents still exist. Common law countries also provide a framework for the disposal of one's assets but do so with other legal instruments. Therefore, the real task is to identify the foundational limits of each system regarding this freedom of disposal and then determine whether these limits are sufficiently adapted to a society and its values. It is also important to go beyond mere rhetoric when weighing the advantages and disadvantages of the legal tools in question.

17 However, the frameworks are common law countries are not without drawbacks; in most cases, a judge assesses on a case-by-case basis whether a relative of the deceased has received a reasonable share of the estate in accordance with state of need of the relative. Orienting our law towards a legal maintenance tool such as this would import the weaknesses inherent in this instrument, including the cost of the legal proceedings for those subject to the law, the possible judicialization of successions, judicial uncertainty, the unpredictability of the criteria and solutions, and the possibility of undermining the wishes of the deceased in favor of settlements between the parties as a way to avoid judicial proceedings. It would also mean giving up any advantage of the “réserve héréditaire.” If inheritance litigation is marginal in our country, this is due to the fact that the “réserve héréditaire” sets clear, well-known, legal limitations, ensuring that everyone can act accordingly to employ an adapted wealth strategy. If the legislative branch were to abolish the “réserve héréditaire,” it would need to find a replacement. Current case law from the Cour de cassation illustrates the evolution of the private international law of succession towards a natural maintenance limit.

18 10. Such a development would be all the more undesirable given that some of the criticisms levelled against the “réserve héréditaire” are quite simply unfounded. The “réserve héréditaire” is not a source of division and discord within society. On the contrary, it has the advantage of contributing to social and family peace by minimizing inheritance disputes. In this vein, it is not a factor in the perpetuation of social inequalities related to inheritance. Instead, as the Revolutionaries demonstrated by raising the “réserve héréditaire” to a high level, it contributes to a leveling out wealth by dividing it up at each generation. Furthermore, it is not an obstacle to the conveyance of businesses as it is actually the lack of anticipation of the conveyance that ends up posing the most problems in business affairs. Moreover, the supra-legislative value of private property and the liberty to dispose of assets only prohibits the legislator from abolishing the available portion without undermining the “réserve héréditaire.”

19 Upon reflection, many of the arguments against the “réserve héréditaire,” though presented as being particularly topical, are not very convincing. For example, the increase in the number of blended families is much more likely to reaffirm the importance of the “réserve héréditaire” than to support a reduction or abolition of it. To that point, many of the consultations carried out for this research show that often, in blended families, children born of a previous union are more likely to be disinherited by a parent (most often by their father, more rarely by their mother) or to suffer a reduction in their inheritance rights in favor of the new spouse or children of the new union. However, the “réserve héréditaire” would prevent this from happening and help to avoid familial, and therefore, societal, discourse. Another example is that, while there seems to be a dilution of extended family ties in our society, there is a strengthening of the immediate family unit formed by the couple and their children, i.e. around the precise heirs with the right to inherit. Therefore, the “réserve héréditaire” continues to be relevant. Regarding philanthropy, its level of development in a society is the direct result of numerous cultural, religious, political, economic, and fiscal factors. It is, therefore, inaccurate to claim that philanthropy depends directly on the existence or absence of the “réserve héréditaire.” Moreover, observation of the practice shows that individuals who consider leaving their assets to a philanthropic organization are usually without direct descendants, whereas for those with descendants, the currently-available portion - at least one quarter [22] - is more than sufficient.

20 11 Furthermore, the working group was convinced that the foundations of the “réserve héréditaire” were both solid and up-to-date, a conclusion that we will briefly discuss here. First and foremost, the “réserve héréditaire” is a legal tool of filiation and, as such, contributes to the construction of the child's identity and legal status. The new, legal development regarding elective filiation - whether filiation by medically assisted procreation sought by a same-sex couple or filiation by international surrogacy, effecting France - must be accompanied by firm control of the legal consequences invoked by the voluntary creation of such a bond.

21 Such consequences include the “réserve héréditaire” which protects the essence of filiation itself and encourages inter-generational familial solidarity, a mainstay of French society relied upon by the authorities. The “réserve héréditaire” is also based upon individual liberty, specifically that of the liberty of the future deceased as it protects that individual against the risk of inheritance appropriation which, as a result of the aging population, is becoming more frequent and against which other measures are not always sufficient. It also includes protection of the heirs-presumptive against the threat of disinheritance which, without the “réserve héréditaire,” may be effectuated by the deceased for myriad reasons, including the deceased having differing political opinions with an heir or disapproval of an heir's sexual orientation and/or lifestyle.

22 Finally, the “réserve héréditaire” ensures a minimal level of equality between siblings, helping ease family tensions and social relations. Its pivotal role today is reinforced by the risk that its abolition would lead to the resurgence discrimination between children, particularly in the case of a blended family, as is shown by many publicized inheritance disputes. The value of equality is one to which French society is strongly attached and one which the “réserve héréditaire” directly supports. In short, the values expressed in the “réserve héréditaire” are deeply rooted in French society and remain relevant today. These values have not become lesser in value as compared to others, and, as a result, there is n° justification for to abolish the “réserve héréditaire” and move to a need-based inheritance. For these reasons, the report submitted by the Minister of Justice proposed that the “réserve héréditaire” be maintained and reaffirmed in French law. [23]

23 12. Given these conditions and the reasoning in terms of legal policy, one can only welcome the change reflected in Article 13 of the bill; it reinforces respect for the principles of the Republic and offers a solution in the form of a compensatory levy in cases of international successions where a foreign law lacks an equivalent to the “réserve héréditaire.” Such a change strengthens the position of the “réserve héréditaire” at an international level, re-establishing it as something more than a mere maintenance tool. In turn, the “réserve héréditaire” - assuming that Article 13 is adopted - is also strengthened accordingly in domestic law, showing that its removal or any move to weaken it would deprive it of its substance. This development could perhaps lead to the Constitutional Council, following the example of the German Constitutional Court, [24] to recognize its supra-legislative value. We can of course question the chosen judicial technique - the restoration of a right of levy - as well as the perfect consonance of the means to the end pursued by the legislator, which is explained by the omission of the Sénat of the text upon the first reading. In fact, the majority of foreign laws lacking an equivalent to the “réserve héréditaire” come from common law countries which, instead, insure equality between heirs by other legal means without distinction on the basis of gender. [25] Muslim law, on the other hand, although it is based on inheritance discrimination, nonetheless severely restricts the freedom of disposal of assets, recognizing, therefore, an equivalent to the “réserve héréditaire.” [26] Moreover, the report suggested that the “réserve héréditaire” also be considered as a matter of international public policy. [27] This portion of the proposal was addressed to the judicial branch in order to encourage a change in case law instead of pursuing such a change by legislative means which would have proved more difficult. It would be bad form, therefore, to bemoan these side-effects because the cause of the “réserve héréditaire” is something we hold dear.