Proceedings brought by Aleksandra Kubicka.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Toader
• ECLI: ECLI:EU:C:2017:755
• Docket Number: C-218/16
• Date: 12 October 2017
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Second Chamber)

12 October 2017 ( *1 )

(Reference for a preliminary ruling — Area of Freedom, Security and Justice — Regulation (EU) No 650/2012 — Succession and the European Certificate of Succession — Scope — Immovable property located in a Member State in which legacies ‘per vindicationem’ do not exist — Refusal to recognise the material effects of such a legacy)

In Case C‑218/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland), made by decision of 8 March 2016, received at the Court on 19 April 2016, in the proceedings brought by

Aleksandra Kubicka

intervening party:

Przemysława Bac, acting in her capacity as notary

THE COURT (Second Chamber),

composed of M. Ilešič, President of the Chamber, A. Rosas, C. Toader (Rapporteur), A. Prechal and E. Jarašiūnas, Judges,

Advocate General: Y. Bot,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 1 March 2017,

after considering the observations submitted on behalf of:

– Ms Przemysława Bac, acting in her capacity as notary, by M. Margoński, zastępca notarialny,

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

– the German Government, by T. Henze, J. Möller, M. Hellmann and J. Mentgen, acting as Agents,

– the Greek Government, by E. Tsaousi and A. Magrippi, acting as Agents,

– the Spanish Government, by V. Ester Casas and S. Jiménez García, acting as Agents,

– the Hungarian Government, by M.Z. Fehér, G. Koós and M. Tátrai, acting as Agents,

– the European Commission, by M. Wilderspin and A. Stobiecka-Kuik, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 May 2017,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 1(2)(k) and (l) and Article 31 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 the context of proceedings brought by Aleksandra Kubicka concerning a notary established in Słubice (Poland) and the execution of a notarially recorded will setting up a legacy ‘by vindication’.

Legal context

EU law

3 Recitals 7, 8, 15, 18, 19 and 37 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. … (15) This Regulation should allow for the creation or the transfer by succession of a right in immovable or movable property as provided for in the law applicable to the succession. It should, however, not affect the limited number (‘numerus clausus’) of rights in rem known in the national law of some Member States. A Member State should not be required to recognise a right in rem relating to property located in that Member State if the right in rem in question is not known in its law. … (18) The requirements for the recording in a register of a right in immovable or movable property should be excluded from the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept (for immovable property, the lex rei sitae) which determines under what legal conditions and how the recording must be carried out and which authorities, such as land registers or notaries, are in charge of checking that all requirements are met and that the documentation presented or established is sufficient or contains the necessary information. In particular, the authorities may check that the right of the deceased to the succession property mentioned in the document presented for registration is a right which is recorded as such in the register or which is otherwise demonstrated in accordance with the law of the Member State in which the register is kept. In order to avoid duplication of documents, the registration authorities should accept such documents drawn up in another Member State by the competent authorities whose circulation is provided for by this Regulation. In particular, the European Certificate of Succession issued under this Regulation should constitute a valid document for the recording of succession property in a register of a Member State. This should not preclude the authorities involved in the registration from asking the person applying for registration to provide such additional information, or to present such additional documents, as are required under the law of the Member State in which the register is kept, for instance information or documents relating to the payment of revenue. The competent authority may indicate to the person applying for registration how the missing information or documents can be provided. (19) The effects of the recording of a right in a register should also be excluded from the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept which determines whether the recording is, for instance, declaratory or constitutive in effect. Thus, where, for example, the acquisition of a right in immovable property requires a recording in a register under the law of the Member State in which the register is kept in order to ensure the erga omnes effect of registers or to protect legal transactions, the moment of such acquisition should be governed by the law of that Member State. … (37) In order to allow citizens to avail themselves, with all legal certainty, of the benefits offered by the internal market, this Regulation should enable them to know in advance which law will apply to their succession. Harmonised conflict-of-laws rules should be introduced in order to avoid contradictory results. The main rule should ensure that the succession is governed by a predictable law with which it is closely connected. For reasons of legal certainty and in order to avoid the fragmentation of the succession, that law should govern the succession as a whole, that is to say, all of the property forming part of the estate, irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third State.’

4 Article 1 of that regulation provides: ‘1. This Regulation shall apply to succession to the estates of deceased persons. It shall not apply to revenue, customs or administrative matters. 2. The following shall be excluded from the scope of this Regulation: … (k) the nature of rights in rem; and (l) any recording in a register of rights in immoveable or moveable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.’

5 According to the definition in Article 3(1)(a) of that regulation, ‘“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.’

6 The first subparagraph of Article 22(1) of Regulation No 650/2012, entitled ‘Choice of law’, provides: ‘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.’

7 Paragraphs 1 and 2(b) and (e) of Article 23 of that regulation, entitled ‘The scope of the applicable law’, provide: ‘1. The law determined pursuant to Article 21 or Article 22 shall govern the succession as a whole. 2. That law shall govern in particular: … (b) the determination of the beneficiaries, of their respective shares and of the obligations which may be imposed on them by the deceased, and the determination of other succession rights, including the succession rights of the surviving spouse or partner; … (e) the transfer to the heirs and, as the case may be, to the legatees of the assets, rights and obligations forming part of the estate, including the conditions and effects of the acceptance or waiver of the succession or of a legacy.’

8 Under Article 31 of that regulation, entitled ‘Adaptation of rights in rem’: ‘Where a person invokes a right in rem to which he is entitled under the law applicable to the succession and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest...