Oberle (General jurisdiction of a court of a Member State to rule on the succession as a whole - Judgment) [2018] EUECJ C-20/17 (21 June 2018)

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(Request for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EU) No 650/2012 - Article 4 - General jurisdiction of a court of a Member State to rule on the succession as a whole - National legislation governing international jurisdiction to issue national certificates of succession - European Certificate of Succession)

REQUEST for a preliminary ruling under Article 267 TFEU from the Kammergericht Berlin (Higher Regional Court, Berlin, Germany), made by decision of 10 January 2017, received at the Court on 18 January 2017, in the proceedings brought by

composed of M. Ilešič, President of the Chamber, A. Tizzano, Vice-President of the Court, acting as a Judge of the Second Chamber, C. Toader (Rapporteur), A. Prechal and E. Jarašiūnas, Judges,

having regard to the written procedure and further to the hearing on 23 November 2017,

- the German Government, by M. Hellmann, T. Henze and E. Lankenau, acting as Agents,

- the Polish Government, by B. Majczyna, M. Nowak and S. Żyrek, acting as Agents,

- the Portuguese Government, by L. Inez Fernandes, M. Figueiredo and M. Carvalho, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 February 2018,

1 This request for a preliminary ruling concerns the interpretation of Article 4 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 107).

2 The request has been made in proceedings brought by Mr Vincent Pierre Oberle before the Amtsgericht Schöneberg (Local Court, Schöneberg, Germany) for the purposes of obtaining a national certificate of succession following the death of his father, a French national whose last habitual residence was in France.

3 Recitals 7 to 9, 27, 32, 34, 59 and 67 of Regulation No 650/2012 are worded as follows:

‘(7) The proper functioning of the internal market should be facilitated by removing the obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications. In the European area of justice, citizens must be able to organise their succession in advance. The rights of heirs and legatees, of other persons close to the deceased and of creditors of the succession must be effectively guaranteed.

(8) In order to achieve those objectives, this Regulation should bring together provisions on jurisdiction, on applicable law, on recognition or, as the case may be, acceptance, enforceability and enforcement of decisions, authentic instruments and court settlements and on the creation of a European Certificate of Succession.

(9) The scope of this Regulation should include all civil-law aspects of succession to the estate of a deceased person, namely all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession.

(27) The rules of this Regulation are devised so as to ensure that the authority dealing with the succession will, in most situations, be applying its own law.

(32) In order to simplify the lives of heirs and legatees habitually resident in a Member State other than that in which the succession is being or will be dealt with, this Regulation should allow any person entitled under the law applicable to the succession to make declarations concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or concerning the limitation of his liability for the debts under the succession, to make such declarations in the form provided for by the law of the Member State of his habitual residence before the courts of that Member State. This should not preclude such declarations being made before other authorities in that Member State which are competent to receive declarations under national law. Persons choosing to avail themselves of the possibility to make declarations in the Member State of their habitual residence should themselves inform the court or authority which is or will be dealing with the succession of the existence of such declarations within any time limit set by the law applicable to the succession.

(34) In the interests of the harmonious functioning of justice, the giving of irreconcilable decisions in different Member States should be avoided. To that end, this Regulation should provide for general procedural rules similar to those of other Union instruments in the area of judicial cooperation in civil matters.

(59) In the light of its general objective, which is the mutual recognition of decisions given in the Member States in matters of succession, irrespective of whether such decisions were given in contentious or non-contentious proceedings, this Regulation should lay down rules relating to the recognition, enforceability and enforcement of decisions similar to those of other Union instruments in the area of judicial cooperation in civil matters.

(67) In order for a succession with cross-border implications within the Union to be settled speedily, smoothly and efficiently, the heirs, legatees, executors of the will or administrators of the estate should be able to demonstrate easily their status and/or rights and powers in another Member State, for instance in a Member State in which succession property is located. To enable them to do so, this Regulation should provide for the creation of a uniform certificate, the European Certificate of Succession ..., to be issued for use in another Member State. In order to respect the principle of subsidiarity, the Certificate should not take the place of internal documents which may exist for similar purposes in the Member States.’

‘This Regulation shall apply to succession to the estates of deceased persons. It shall not apply to revenue, customs or administrative matters.’

5 The matters excluded from the scope of that regulation are listed in Article 1(2) thereof.

‘This Regulation shall not affect the competence of the authorities of the Member States to deal with matters of succession.’

(a) “succession” means succession to the estate of a deceased person and covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession;

(g) “decision” means any decision in a matter of succession given by a court of a Member State, whatever the decision may be called, including a decision on the determination of costs or expenses by an officer of the court;

8 The first subparagraph of Article 3(2) of that regulation defines ‘court’ as follows:

‘For the purposes of this Regulation, the term “court” means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate:

(a) may be made the subject of an appeal to or review by a judicial authority; and

(b) have a similar force and effect as a decision of a judicial authority on the same matter.’

9 Chapter II of that regulation is entitled ‘Jurisdiction’. It includes, in particular, Articles 4, 13 and 15 thereof.

‘The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole.’

‘In addition to the court having jurisdiction to rule on the succession pursuant to this Regulation, the courts of the Member State of the habitual residence of any person who, under the law applicable to the succession, may make, before a court, a declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person concerned in respect of the liabilities under the succession, shall have jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court.’

‘Where a court of a Member State is seised of a succession matter over which it has no jurisdiction under this Regulation, it shall declare of its own motion that it has no jurisdiction.’

‘Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.’

‘The law determined pursuant to Article 21 or Article 22 shall govern the succession as a whole.’

‘2. The use of the [European] Certificate [of Succession] shall not be mandatory.

3. The [European] Certificate [of Succession] shall not take the place of internal documents used for similar purposes in the Member States. However, once issued for use in another Member State, the [European] Certificate [of Succession] shall also produce the effects listed in Article 69 in the Member State whose authorities issued it in accordance with this Chapter.’

‘The [European] Certificate [of Succession] shall be issued in the Member State whose courts have jurisdiction under Article 4, Article 7, Article 10 or Article 11. ...’

17 Under Paragraph 105 of the Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Law on proceedings in family matters and matters subject to non-contentious proceedings) (‘the FamFG’), in the version of 17 December 2008 (BGBl. 2008 I, p. 2586):

‘In other proceedings under the present legislation, the German courts shall have jurisdiction if a German court has territorial jurisdiction.’

18 In matters of succession, territorial jurisdiction is governed by Paragraph 343 of the FamFG. In the version resulting from the Gesetz zum Internationalen Erbrecht und zur Änderung von Vorschriften zum Erbschein sowie zur Änderung sonstiger Vorschriften (Law on international succession law and amending the provisions governing the certificate of succession and other provisions) of 29 June 2015 (BGBl. 2015 I, p. 1042), which came into force on 17 August 2015:

‘(1) The court in the district of which the deceased had his habitual residence at the time of death shall have territorial jurisdiction.

(2) If, at the time of death, the deceased had no habitual residence in Germany, the court in the district of which the deceased had his last habitual residence in Germany shall have jurisdiction.

(3) If jurisdiction does not arise under paragraphs (1) and (2), [the Amtsgericht Schöneberg (Local Court, Schöneberg)] in Berlin shall have jurisdiction if the deceased is a German national or if part of the estate is in Germany.

The dispute in the main proceedings and the question referred for a preliminary ruling

19 Mr Adrien Théodore Oberle (‘the deceased’), a French national whose last habitual residence was in France, died intestate on 28 November 2015. The deceased left behind two sons, Vincent Pierre (‘Mr Oberle’) and his brother. The deceased was predeceased by his spouse. The estate is located in France and Germany.

20 On 8 March 2016, at Mr Oberle’s request, the tribunal d’instance de Saint-Avold (District Court, Saint-Avold, France) issued a national certificate of succession stating that Mr Oberle and his brother each inherit half of that estate.

21 Mr Oberle applied to the Amtsgericht Schöneberg (Local Court, Schöneberg) for the issuing of a certificate of succession limited to the part of the estate located in Germany, indicating that, in accordance with French law, he and his brother had each inherited half of the deceased’s property.

22 Having verified whether it had jurisdiction, the Amtsgericht Schöneberg (Local Court, Schöneberg), in accordance with Article 15 of Regulation No 650/2012, by decisions of 17 November and 28 November 2016, declared that it had no jurisdiction to give a ruling on that application, considering that the provisions of Paragraph 105 and Paragraph 343(3) of the FamFG cannot be applied in order to determine international jurisdiction without infringing Article 4 of Regulation No 650/2012, pursuant to which the courts of the Member State in which the deceased had his last habitual residence are to have jurisdiction to rule on the succession as a whole.

23 Mr Oberle brought an appeal against that decision before the referring court, the Kammergericht Berlin (Higher Regional Court, Berlin, Germany).

24 The referring court considers that the Amtsgericht Schöneberg (Local Court, Schöneberg) has international jurisdiction to issue the certificate of succession of limited scope requested by Mr Oberle, because part of the estate is located in Germany, in accordance with the condition set out in Paragraph 343(3) of the FamFG.

25 According to the referring court, it is not clear that the EU legislature sought to comprehensively regulate, by means of the provisions of Chapter II of Regulation No 650/2012, international jurisdiction in respect of the issuing of national certificates of succession in the same way as it did with regard to the issuing of the European Certificate of Succession by means of the first paragraph of Article 64 of that regulation.

26 The referring court considers that, were it necessary to regard international jurisdiction in respect of the issuing of the European Certificate of Succession as already regulated by the provisions of Chapter II of Regulation No 650/2012, it would have been unnecessary for that legislature to lay down a specific provision in that regard, namely the first paragraph of Article 64 of that regulation. In that court’s view, if the legislature had wished to regulate international jurisdiction in respect of the issuing of national certificates of succession in the same way as for the European Certificate of Succession, it would have laid down in that regulation, regarding those national certificates, a provision corresponding, mutatis mutandis, to that laid down in the first paragraph of Article 64 of that regulation.

27 In addition, the referring court considers that the Amtsgericht Schöneberg (Local Court, Schöneberg) was wrong to conclude that the rule set out in Article 4 of Regulation No 650/2012 applies in the present case. Indeed, the general jurisdiction of the courts of the Member State in whose territory the deceased had his habitual residence to ‘rule on the succession as a whole’ for the purpose of that provision relates only to the adoption of judicial decisions, whereas national certificates of succession do not constitute such decisions. Those certificates are issued at the end of non-contentious proceedings and the decision to issue such a certificate contains only findings of fact and thus cannot acquire the force of res judicata.

28 In those circumstances, the Kammergericht Berlin (Higher Regional Court, Berlin) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is Article 4 of Regulation [No 650/2012] to be interpreted as meaning that it also determines exclusive international jurisdiction in respect of the granting, in the Member States, of national certificates of succession which have not been replaced by the European certificate of succession (see Article 62(3) of Regulation No 650/2012), with the result that divergent provisions adopted by national legislatures with regard to international jurisdiction in respect of the granting of national certificates of succession - such as Paragraph 105 of the [FamFG] in Germany - are ineffective on the ground that they infringe higher-ranking European law?’

29 By its question, the referring court asks, in essence, whether Article 4 of Regulation No 650/2012 is to be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that, although the deceased did not, at the time of death, have his habitual residence in that Member State, the courts of that Member State are to retain jurisdiction to issue national certificates of succession, in the context of a succession with cross-border implications, where the assets of the estate are located in that Member State or the deceased was a national of that Member State.

30 As a preliminary point, it should be borne in mind that Regulation No 650/2012 is to apply, pursuant to Article 1(1) of that regulation, read in the light of recital 9 thereof, to all civil-law aspects of succession to the estate of a deceased person, with the exception of revenue, customs and administrative matters. For its part, Article 1(2) of that regulation provides a list of various matters which are excluded from its scope, a list which does not include national certificates of succession or the procedures associated therewith.

31 Article 3(1)(a) of Regulation No 650/2012 states that the term ‘succession’ is to cover ‘all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession’.

32 Moreover, as is apparent from recitals 7 and 67 thereof, that regulation is to apply to successions with cross-border implications. This is the situation in the present case, given that the estate includes assets located in several Member States.

33 As regards, more specifically, the question whether Article 4 of Regulation No 650/2012 determines the international jurisdiction of the courts of the Member States with regard to the issuing of national certificates of succession, it should be borne in mind that, according to the settled case-law of the Court, the provisions relating to the rules on jurisdiction, in so far as they do not expressly refer to the law of the Member States for the purpose of determining their meaning and scope, must be given an autonomous and uniform interpretation throughout the European Union; that interpretation must take into account not only the wording of those provisions but also their context and the objective pursued by the legislation in question (see, to that effect, judgments of 18 December 2014, Sanders and Huber, C-400/13 and C-408/13, EU:C:2014:2461, paragraph 24, and of 1 March 2018, Mahnkopf, C-558/16, EU:C:2018:138, paragraph 32).

34 According to its wording, Article 4 of Regulation No 650/2012 establishes the jurisdiction of the courts of the Member State in which the deceased had his habitual residence at the time of death to rule on the succession as a whole.

35 In that regard, it should be stated that, although there is nothing in the wording of that provision to indicate that the application of the general rule of jurisdiction set out therein would be conditional upon there being a succession involving several Member States, the fact remains that that rule is based on there being a succession with cross-border implications.

36 In addition, it is apparent from the heading of Article 4 of Regulation No 650/2012 that that provision is to govern the determination of the general jurisdiction of the courts of the Member States, while the allocation of jurisdiction at national level is to be established according to national rules, in accordance with Article 2 of that regulation.

37 It follows from the wording of Article 4 that the rule of general jurisdiction established thereby covers ‘the succession as a whole’, which suggests, as was noted by the Advocate General in point 67 of his Opinion, that it should apply, in principle, to all proceedings in matters of succession taking place before the courts of the Member States.

38 Regarding the interpretation of the verb ‘to rule’ which appears in that provision, it is necessary to examine whether the EU legislature thereby intended to refer only to decisions adopted by national courts exercising their judicial functions. In the present case, as recalled in paragraph 27 above, it is apparent from the order for reference that the procedure for issuing national certificates of succession is a non-contentious procedure and that decisions relating to the issuing of such certificates contain only findings of fact, excluding any element likely to acquire the force of res judicata.

39 In that regard, as was noted by the Advocate General in point 64 of his Opinion, the concept of a ‘court’ for the purpose of Article 4 of Regulation No 650/2012, as defined in Article 3(2) of that regulation, does not provide any guidance as regards the scope of the verb ‘to rule’.

40 It must therefore be found that the wording of Article 4 of Regulation No 650/2012 does not, in itself, enable it to be determined whether the fact that the proceedings are contentious or non-contentious affects the applicability of the rule of jurisdiction laid down by that provision or whether ‘to rule’ means, for the purpose of that provision, the act of adopting a decision which is exclusively judicial. Thus, the literal interpretation of that provision does not provide an answer to the question whether a procedure for issuing national certificates of succession, such as that at issue in the main proceedings, must be regarded as falling within the scope of that article.

41 Concerning the analysis of the context of that provision, it is apparent from Article 13 of Regulation No 650/2012 that, in addition to the court having jurisdiction to rule on the succession pursuant to that regulation, the courts of the Member State of the habitual residence of any person who, under the law applicable to the succession, may make a declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person concerned in respect of the liabilities under the succession, are to have jurisdiction to receive those declarations.

42 Thus, Article 13, read in the light of recital 32 of Regulation No 650/2012, aims to simplify procedures for heirs and legatees by providing a derogation from the rules of jurisdiction laid down in Articles 4 to 11 of that regulation. Consequently, the courts having jurisdiction to rule on the succession as a whole under Article 4 of that regulation are, in principle, to have jurisdiction to receive declarations relating to the succession. It follows that the rule of jurisdiction set out in Article 4 also covers procedures not leading to the adoption of a judicial decision.

43 That interpretation is borne out by recital 59 of Regulation No 650/2012, from which it is apparent that the provisions of that regulation are to apply irrespective of whether decisions concerning a succession with cross-border implications were given in contentious or non-contentious proceedings.

44 Accordingly, Article 4 of Regulation No 650/2012 determines the international jurisdiction of the courts of the Member States in relation to proceedings involving measures concerning the succession as a whole, such as, in particular, the issuing of national certificates of succession, irrespective of whether those proceedings are contentious or non-contentious.

45 That interpretation is not undermined by Article 64 of Regulation No 650/2012, inasmuch as that article provides that the European Certificate of Succession is to be issued in the Member State whose courts have jurisdiction under Articles 4, 7, 10 or 11 of that regulation.

46 As was noted by the Advocate General in point 90 of his Opinion, the European Certificate of Succession, which was created by Regulation No 650/2012, is subject to an autonomous legal regime, established by the provisions of Chapter VI of that regulation. Against that background, the aim of Article 64 of that regulation is to explain that both courts and certain other authorities are to have jurisdiction to issue such a certificate of succession while also specifying, making reference to the rules of jurisdiction contained in Articles 4, 7, 10 and 11 of that regulation, the Member State in which the issuing of such a certificate is to take place.

47 Moreover, it should be stated that, under Article 62(2) and (3) of Regulation No 650/2012, the use of the European Certificate of Succession is not to be mandatory and that certificate is not to take the place of internal documents used for similar purposes in the Member States, such as national certificates of succession.

48 In those circumstances, Article 64 of Regulation No 650/2012 cannot be interpreted as meaning that national certificates of succession are to be excluded from the scope of the rule of jurisdiction contained in Article 4 of that regulation.

49 As regards the objectives pursued by Regulation No 650/2012, it is apparent from recitals 7 and 8 thereof that it is intended, inter alia, to help heirs and legatees, other persons close to the deceased, and creditors of the succession to assert their rights in the context of a succession with cross-border implications, and to enable EU citizens to plan their succession.

50 In the same vein, recital 27 of Regulation No 650/2012 emphasises that the rules of that regulation are devised so as to ensure that the authority dealing with the succession will, in most situations, be able to apply its own law.

51 In that regard, both Article 21(1) of Regulation No 650/2012, concerning the general rule on the applicable law, and Article 4 of that regulation, concerning the general jurisdiction of the courts of the Member States, refer to the criterion of the habitual residence of the deceased at the time of death.

52 Applying national law in order to determine the general jurisdiction of the courts of the Member States to issue national certificates of succession would be contrary to the objective thus set out in recital 27 of Regulation No 650/2012, which is intended to ensure consistency between the rules relating to jurisdiction and those relating to the applicable law in that area.

53 In addition, in accordance with the general objective of that regulation, set out in recital 59 thereof, concerning the mutual recognition of decisions given in the Member States in matters of succession, recital 34 of that regulation emphasises that that regulation is seeking to avoid the giving of irreconcilable decisions in different Member States.

54 That objective is connected with the principle of a single estate, given concrete expression in, in particular, Article 23(1) of Regulation No 650/2012, which states that the applicable law under that regulation is intended to govern ‘the succession as a whole’.

55 That principle of a single estate also underpins the rule established in Article 4 of Regulation No 650/2012, inasmuch as that article also states that that rule is to determine the jurisdiction of the courts of the Member States to rule ‘on the succession as a whole’.

56 As was recalled by the Advocate General in points 109 and 110 of his Opinion, the Court has thus already held that an interpretation of the rules of Regulation No 650/2012 which would lead to the fragmentation of the succession would be incompatible with the objectives pursued by that regulation (see, to that effect, judgment of 12 October 2017, Kubicka, C-218/16, EU:C:2017:755, paragraph 57). Indeed, as one of those objectives is to establish a uniform regime applicable to successions with cross-border implications, achieving that objective involves harmonising the rules relating to the international jurisdiction of the courts of the Member States in both contentious and non-contentious proceedings.

57 An interpretation of Article 4 of that regulation whereby that provision determines the international jurisdiction of the courts of the Member States as regards the procedures for issuing national certificates of succession seeks, in the interests of the sound administration of justice within the European Union, to achieve that objective, by limiting the risk of parallel proceedings before the courts of different Member States and of contradictions that may arise as a result.

58 Conversely, achievement of the objectives pursued by Regulation No 650/2012 would be hindered if, in a situation such as that at issue in the main proceedings, the provisions of Chapter II of that regulation, in particular Article 4 thereof, were to be interpreted as not determining the international jurisdiction of the courts of the Member States in relation to proceedings concerning the issuing of national certificates of succession.

59 It follows from all of the foregoing that Article 4 of Regulation No 650/2012 must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that, although the deceased did not, at the time of death, have his habitual residence in that Member State, the courts of that Member State are to retain jurisdiction to issue national certificates of succession, in the context of a succession with cross-border implications, where the assets of the estate are located in that Member State or the deceased was a national of that Member State.

60 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 4 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that, although the deceased did not, at the time of death, have his habitual residence in that Member State, the courts of that Member State are to retain jurisdiction to issue national certificates of succession, in the context of a succession with cross-border implications, where the assets of the estate are located in that Member State or the deceased was a national of that Member State.

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