Opinion of Advocate General Szpunar delivered on 10 November 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:876
• Date: 10 November 2022
• Celex Number: 62021CC0651
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 10 November 2022 (1)

Case C‑651/21

М. Ya. M.

(Request for a preliminary ruling from the Sofiyski rayonen sad (District Court, Sofia, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Law of succession – Regulation (EU) No 650/2012 – Article 13 – Declaration of waiver of succession made by an heir in the Member State of his habitual residence – Subsequent registration of that declaration, at the request of another heir, with the court of another Member State)

1. This request for a preliminary ruling concerns the interpretation of Article 13 of Regulation (EU) No 650/2012. (2) The referring court has been seised of a request by one heir for registration of the declaration concerning the waiver of the succession made by another heir before the court of another Member State in which the latter has his habitual residence.

2. In this Opinion, I shall propose that the Court rule that Article 13 of Regulation No 650/2012 does not preclude the abovementioned request for registration.

Legal context

European Union law

3. Articles 4 and 13 of Regulation No 650/2012 are contained in Chapter II of that regulation, which is entitled ‘Jurisdiction’.

4. Under Article 4 of that regulation, which is entitled ‘General jurisdiction’:

‘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.’

5. Article 13 of that regulation, which is entitled ‘Acceptance or waiver of the succession, of a legacy or of a reserved share’, reads as follows:

‘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.’

6. Articles 21 and 22 of the same regulation appear in Chapter III of that regulation, which is entitled ‘Applicable law’.

7. Article 21 of Regulation No 650/2012, which is entitled ‘General rule’, provides, in paragraph 1 thereof:

‘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.’

8. Article 22 of that regulation, which is entitled ‘Choice of law’, provides, in paragraph 1 thereof:

‘A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.’

Bulgarian law

Law on succession

9. The zakon za nasledstvo (Law on succession) (DV No 22 of 29 January 1949), in the version thereof applicable to the dispute in the main proceedings, provides, in Article 48, that succession is to take place upon acceptance and that acceptance is to take effect upon the opening of the succession.

10. Under Article 49(1) of that law, acceptance may be effected by written declaration made to the Rayonen sad (district court) in whose district the succession is opened; in that case, the acceptance is to be entered in a register intended for that purpose.

11. Article 51(1) of that law provides that, at the request of any interested party, the Rayonen sad (district court), after summoning the person entitled to inherit, is to set a time limit for that person to make a declaration of acceptance or waiver of the succession. If proceedings have been brought against the heir, that time limit is to be set by the court before which the proceedings have been brought. Article 51(2) of the same law provides that if the heir fails to respond within the prescribed time limit, he or she is to lose the right to accept the succession. Under Article 51(3) of the Law on succession, the heir’s declaration is to be entered in the register provided for in Article 49(1) of that law.

12. Pursuant to Article 52 of that law, waiver of the succession is to be effected in accordance with the procedure provided for in Article 49(1); it is to be registered in accordance with the same procedure.

Code of Civil Procedure

13. Article 26(1) of the Grazhdanski protsesualen kodeks (Code of Civil Procedure) (DV No 59 of 20 July 2007), in the version thereof applicable to the dispute in the main proceedings, provides that the parties to civil proceedings are to be the persons on whose behalf and against whom the proceedings are brought. Article 26(2) of that code states that, except in the cases provided for by law, no person may assert third-party rights before a court in his or her own name.

14. Under Article 531(1) of that code, proceedings in matters of non-contentious jurisdiction are to be instituted by an application of the person concerned.

15. Article 532 of the same code provides that the application is to be heard in closed session unless the court considers that the correct resolution of the case requires that it be heard in open court.

16. In accordance with Article 533 of the Code of Civil Procedure, the court is obliged to examine, of its own motion, whether the requirements for the decision sought are met. It may, of its own motion, take evidence and take into account facts which the applicant has not presented.

Regulations on Court Administration

17. The Pravilnik za administratsiata v sadilishtata (Regulations on Court Administration) (DV No 68 of 22 August 2017), in the version thereof applicable to the dispute in the main proceedings, contains, in Article 39(1), the list of registers kept at the registry in electronic and/or paper form, which includes the ‘register of acceptances or waivers of succession’.

The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

18. M. Ya. M. (‘the applicant’), a Bulgarian national, states that he is the heir of his grandmother, M. T. G., a Bulgarian national who died in Greece on 29 March 2019.

19. The applicant applied to the referring court, the Sofiyski rayonen sad (District Court, Sofia, Bulgaria), for the declaration of waiver made by the deceased’s husband, a Greek national, to be entered in the register. The applicant produced a certificate of succession drawn up by the Bulgarian authorities, according to which the deceased designated as heirs her husband, her daughter and the applicant (her grandson).

20. In the context of those proceedings, the applicant submitted a written record produced by the Eirinodikeio Athinon (Magistrate’s Court, Athens, Greece) stating that the deceased’s husband appeared before that court on 28 June 2019 and declared the waiver of his inheritance. Furthermore, according to statements made in the application, the deceased’s husband had stated that the deceased had last resided in Greece.

21. The applicant is not acting as an authorised representative of the deceased’s husband but submits that, as another heir of equal status, he has an interest in the registration of the waiver, the effect of which would be to increase his share of the estate.

22. In the present case, the referring court states that it is unable to gather information concerning the deceased’s last habitual residence before it has established its jurisdiction to register a declaration of waiver made before the court of the place of habitual residence of the party waiving succession.

23. The referring court asks whether a declaration of waiver made before a court having general jurisdiction to rule on matters of succession should be registered if that declaration has been registered by the competent court pursuant to Article 13 of Regulation No 650/2012. In addition, it has doubts as to whether it is possible to register one heir’s waiver of succession at the request of another.

24. The referring court takes the view that Article 13 of Regulation No 650/2012 may trigger a conflict of jurisdiction since, under the general provisions of that regulation, jurisdiction is determined not by the place of habitual residence of the heir but by that of the deceased. Although the court with jurisdiction to rule on the succession is in principle the court of the place where the deceased was last habitually resident, that court may not be aware of the registration of declarations of waiver or of acceptance made before a court of the place of habitual residence of the heirs.

25. Thus, in its view, Regulation No 650/2012 creates a legal vacuum by providing for concurrent (or cumulative) jurisdiction of courts of different States, namely that of the court of the place in which the deceased was last habitually resident and that of the court of the place in which the heirs are habitually resident. However, that regulation does not require the latter court to notify the court having jurisdiction in principle of any declarations of waiver or acceptance that may have been made.

26. The referring court argues that the absence of such a notification obligation is at odds with the Bulgarian legislature’s approach and with the national case-law, according to which all declarations of acceptance or waiver of a succession must be recorded in the same place and in a single court register, which may be used to carry out related searches. That approach...