Jump to main content

Three EU Court of Justice decisions in September on the EU Succession Regulation (650/2012)

Inheritance law

Three EU Court of Justice decisions in September on the EU Succession Regulation (650/2012)

1. On 1 September 2021 the CJEU by order (C-387/20) considered as inadmissible the reference for a preliminary ruling by a Polish notary's assistant on the interpretation of the European Succession Regulation, due to lack of standing as it considered that he did not have, in the present case, the status of "jurisdiction" within the meaning of Article 267 TFEU.

The interpretative question submitted to the CJEU concerned the relationship between the Regulation and a bilateral cooperation agreement between Poland and Ukraine and arose from a Ukrainian citizen's objection to the refusal of a notary's assistant to notarise a will with a choice-of-law clause.

The CJEU, without limiting itself to a formal verification of the qualification of the entity that submitted the request for a preliminary ruling, confirmed its previous case law on the conditions and nature of the procedure in which the interpretative requirement would arise. In particular, the Court found it decisive that the notary was not called upon to take a decision to resolve a dispute between two opposing interests.

The CJEU's decision leaves open the question of whether it would admit an interpretative request submitted by a notary to resolve a dispute in the context of the procedure for the issue of a European Certificate of Succession within his competence under national law (e.g. in Italy and Poland).

2. The second decision of the CJEU (judgment 9.9.2021 - C-277/20) deals with the interpretation of the "agreement as to succession" within the meaning of Article 3(1)(b) of the Succession Regulation, which the Court clarifies also includes a contract in which one party to the contract provides that on his death an asset belonging to him shall pass to another party (a gift in kind). The Court further specifies that the assessment of the effectiveness of the choice of law contained in such a contract is not subject to the rules of Art. 83 (2) of the Regulation, since it is not a choice of law which concerns the succession as a whole but only the agreement as to succession.

3. Finally, in a third decision in September (09.09.21, C-422/20), the Court addressed the preliminary ruling of a German court, to which the Court made it clear that the decision of a Spanish court, which had declined to rule on the succession of a person with his last habitual residence in Spain and in 1990 had made a joint will with his spouse in Germany, considering that the German courts were better placed to rule on the matter (cf. Article 6(a) of the Regulation), must be regarded as binding on the jurisdiction of the German court (Article 7(a)), which cannot therefore review whether the conditions on the basis of which the Spanish court had declined jurisdiction are met. It also makes it clear that this mechanism also applies in the case of a fictitious choice of law under Article 83(4) of the Regulation by means of a provision of last will prior to the application of the Regulation (17 August 2015).