BGH (IV Civil Senate), decision of 29 March 2023 - IV ZB 20/22 (application by a notary in Poland entrusted with the issue of a European Certificate of Succession)

Central standards: EuErbVO Art. 46 para. 3 letter b)

Guiding principle:

On the entitlement to apply for the issue of a certificate pursuant to Article 46(3)(b) of the European Succession Regulation (here: Application by a notary in Poland entrusted with the issue of a European Certificate of Succession).

Reasons:

1 I. On 5 June 2019, Mrs Irene W. (hereinafter referred to as the deceased) died at her last place of residence in S. The probate court issued a certificate of inheritance showing her sister Margareta L. as a one-quarter co-heir. Margareta L. died in Poland on 9 December 2019. With regard to her succession, one of her nephews applied for a European Certificate of Succession (hereinafter: ENZ) from the applicant Polish notary (hereinafter: the interested party). The interested party subsequently applied to the probate court for a certificate of a decision in a succession matter pursuant to Article 66(5), Article 46(3)(b) 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 L 201, p. 107; hereinafter referred to as "the Certificate"). L 201 p. 107; hereinafter: European Succession Regulation), Annex 1 to Commission Implementing Regulation (EU) No. 1329/2014 of 9 December 2014 establishing the forms provided for in the European Succession Regulation (OJ L 359 p. 30; hereinafter: Implementing Regulation) for the certificate of succession after the deceased.

2 Their application was unsuccessful in both lower instances. The appeal on points of law lodged by the parties, which was authorised by the Higher Regional Court, is directed against this.

3 II. In the opinion of the court of appeal - insofar as this is still relevant for the appeal on points of law - the appeal is admissible, but not well-founded. The appeal is not based on §§ 58 et seq. FamFG, but is an immediate appeal pursuant to sections 567 et seq. ZPO, modified by §§ 10 et seq. International Inheritance Procedure Act (hereinafter: IntErbRVG). The appeal was to be dismissed on the merits because the party involved was not entitled to file an application. She is not a party or participant in the proceedings or their representative, but is acting as the Polish authority responsible for issuing an ENZ, which requires the requested certificate to fulfil its official duties. It follows from Article 47 of the EU Succession Regulation that the certificate must be submitted by the applicant for the recognition procedure in the Member State of enforcement. In any case, this is not the court competent for the proceedings there or the body otherwise authorised there. Nor does it follow from the law of the Federal Republic of Germany that the competent court of the Member State of enforcement may apply for the issue of the certificate in its own name. Nothing else follows from Article 66 of the EU Succession Regulation either. Whether the requested certificate should be issued in accordance with Form 1 or rather in accordance with Form 2 of the Implementing Regulation could be left open.

4 III. the result of the legal review stands up to scrutiny.

5 1. the appeal on points of law is admissible.

6 a) It is admissible in its entirety due to the authorisation by the court of appeal.

7 aa) However, an appeal on points of law is only possible if the appeal lodged was previously admissible. If this is not the case, an appeal on a point of law lodged against the appeal decision is not admissible even if the appeal court has authorised it. If the appeal was not admissible, there is no basis for the proceedings before the appellate court. An appeal not provided for the appellant by law cannot be opened up by an erroneous decision of the first appellate court. The admissibility of the appeal must be examined by the appellate court of its own motion (see Senate decision of 14 September 2022 - IV ZB 34/21, ErbR 2023, 38 marginal no. 13 with further references).

8 bb) In the case in dispute, the appeal on points of law is open.

9 (1) It can be left open here whether an appeal against the decision of the Local Court - in accordance with the wording of the legal remedy instruction in the rejection order and the reference to Section 68 FamFG in the non-relief order, which is consistent with Section 58 (1) FamFG and Section 64 (1) sentence 1 FamFG - may be lodged in accordance with Sections 58 et seq. FamFG or, as the court of appeal assumed, the immediate appeal pursuant to sections 567 et seq. ZPO was admissible. According to the principle of most-favoured-nation treatment, the parties to the proceedings must not suffer any legal disadvantage as a result of the court issuing its decision in the wrong form. They are therefore entitled to both the legal remedy that is admissible according to the type of decision actually issued and the legal remedy that would be admissible if the decision had been issued in the correct form (see BGH, decision of 28 February 2018 - XII ZR 87/17, NJW-RR 2018, 451 para. 13 with further references). However, the principle of most-favoured-nation treatment does not mean that the appellate court must continue on the wrong path taken by the court of first instance; rather, the appellate court must continue the proceedings as it would have done in the event of a formally correct decision by the lower court and the subsequent appeal (see Senate decision of 14 September 2022 - IV ZB 34/21, ErbR 2023, 38 para. 14 with further references).

10 (2) Here, the Local Court rejected the application for the issuance of a certificate pursuant to Art. 46 para. 3 letter b) of the EU Succession Regulation with reference to the right of appeal. As a result, the court of appeal correctly considered the immediate appeal against this to be admissible pursuant to Section 567 Para. 1 No. 2 ZPO (see OLG Cologne ErbR 2022, 509 under II [juris para. 6]; MünchKomm-FamFG/Rauscher, 3rd ed. Section 27 IntErbRVG para. 3; Dutta/Weber/Dutta, Internationales Erbrecht 2nd ed. § 27 IntErbRVG para. 2; probably also Gierl in Gierl/Köhler/Kroiß/Wilsch, Internationales Erbrecht 3rd ed. § 2 Anerkennung und Vollstreckung ausländischer Titel (§§ 3 to 30 IntErbRVG) para. 151; a.A. Hüßtege/ Mansel/Makowsky, BGB, Rom-Verordnungen - EuErbVO-HUP 3rd ed. § 27 IntErbRVG para. 4: „Beschwerde“).

11 Contrary to the opinion of the court of appeal, however, the admissibility did not follow from Sections 10 et seq. IntErbRVG and an understanding of the appeal provided for therein as an immediate appeal. Pursuant to § 27 para. 2 sentence 3 IntErbRVG, the provisions on the contestability of the decision on the granting of the enforcement clause apply accordingly to the contestability of the decision of the local court. The interpretation of § 27 para. 2 sentence 3 IntErbRVG shows that these provisions do not refer to the provisions on appeals pursuant to §§ 10 et seq. IntErbRVG are meant, but those on the contestability of the decision on an enforcement clause pursuant to sections 724 et seq. ZPO (see OLG Cologne loc. cit.; MünchKomm-FamFG/Rauscher, 3rd ed. loc. cit.; Dutta/Weber/Dutta, Internationales Erbrecht 2nd ed. loc. cit.), in this case the immediate appeal against the non-issue of an enforceable copy by a judicial officer of the court of first instance, Section 567 para. 1No. 2 ZPO, Section 11 (1) RPflG (see BGH, decision of 18 June 2020 - IX ZB 46/18, NJW-RR 2020, 934 para. 9; OLG Cologne loc. cit.).

12 It is true that § 27 IntErbRVG is regulated in Section 3 of the IntErbRVG on the authorisation of enforcement from foreign titles and the determination of recognition in the same way as § 10 IntErbRVG. However, unlike the declaration of enforceability pursuant to sections 3 et seq. of the IntErbRVG, the certificate pursuant to section 27 of the IntErbRVG refers to decisions of German courts [...], even according to its official title and the designation of subsection 6 in section 3 of the IntErbRVG as „Decisions of German courts [...]“. IntErbRVG apply to domestic titles, as the court of appeal itself recognised. The „decision on the granting of the enforcement clause“ for such titles is determined - as Section 27 (3) IntErbRVG shows - in accordance with Section 724 ZPO. Since the certificate, like the enforcement clause, has the function of documenting the existence and enforceability of the title, Section 27 (1) IntErbRVG regulates the responsibility for issuing the certificate in the same way as for issuing the enforceable copy (see BT-Drucks. 18/4201, p. 46). According to § 27 para. 2 sentence 3 IntErbRVG, the provisions on the contestability of the decision on the issuance of the certificate also apply accordingly to the contestability of the decision on the issuance of the enforcement clause. The opinion of the court of appeal that this provision, unlike § 27 Para. 3 IntErbRVG, lacks an express reference to another applicable law is not correct because the contestability pursuant to § 27 Para. 2 Sentence 3 IntErbRVG - as here pursuant to § 567 Para. 1 No. 2 ZPO and § 11 RPflG - can arise from several laws.

13 b) The appeal on points of law is admissible on the basis of the authorisation by the court of appeal, which is binding on the Senate (Section 574 (1) sentence 1 no. 2 ZPO), and is also admissible in other respects.

14 According to the correct view of the grounds of appeal, the appeal on points of law was also admitted without restriction. Insofar as the court of appeal stated that the determination of the correct legal remedy under national law is of fundamental importance with regard to the statutory judge and that the interest in uniform case law requires a decision by the court of appeal because the national courts handle the question of granting a certificate in accordance with Form 1 differently, this merely constitutes grounds for the admission of the appeal (see Senate judgement of 31 March 2021 - IV ZR 221/19, BGHZ 229, 266 para. 19).

15 2 However, the appeal on a point of law is unfounded. The Court of Appeal did not err in law in denying the right of the parties to obtain a certificate pursuant to Article 46(3)(b) of the EU Succession Regulation.

16 a) Such a right does not arise from the EU Succession Regulation.

17 aa) The uniform application of Union law and the principle of equality require that the terms of a provision of Union law that does not expressly refer to the law of the Member States in order to determine its meaning and significance must, as a rule, be interpreted autonomously and uniformly throughout the Union, taking into account not only the wording of the provision, but also its regulatory context and the purpose it pursues (ECJ, judgment of 23 May 2019, WB, C-658/17, ECLI:EU:C:2019:444, ECLI:EU:C:2019:444, ZEV 2019, 647 para. 50 with further references). ECJ, judgment of 23 May 2019, WB, C-658/17, ECLI:EU:C:2019:444, ZEV 2019, 647 para. 50 with further references; Senate decision of 24 February 2021 - IV ZR 33/20, ZEV 2021, 313 para. 18).

18 bb) According to this standard, the wording and the system of the EU Succession Regulation already speak against a right of application of the parties involved.

19 (1) As the appeal correctly recognises, a right of application does not follow from Article 46(3)(b) of the Regulation. Insofar as an application must be accompanied by a certificate issued by the court or the competent authority of the Member State of origin using the standard form, this does not regulate the right to the issue of this certificate itself.

20 (2) Nor does a right of application arise from the fact that the application pursuant to Art. 46 of the Succession Regulation, in accordance with the reference in Art. 39 para. 2 of the Succession Regulation to the procedure pursuant to Art. 45 to 58 of the Succession Regulation, is an application by a party asserting the recognition in another Member State of a decision given in one Member State. The interested party is not seeking recognition of the certificate of inheritance in Poland by a court or another competent authority pursuant to Art. 45 para. 1 of the Regulation. Insofar as it asserts that it decides itself incidentally on the recognition pursuant to Art. 39 para. 3 of the Regulation, it is irrelevant whether a „legal dispute“ within the meaning of this provision exists at all and whether the party involved is acting as a „court“ in this context, as the appeal claims. In any case, the recognition on which the party involved would decide must be made at the request of a party to the respective proceedings for recognition of the decision or the granting of the declaration of enforceability, i.e. by a third party, but not on an application made in its own name by the body deciding on the recognition procedure (see Art. 39 para. 3 EuErbVO; see also OLG Cologne ErbR 2022, 509 under II [juris para. 10]).

21 (3) Since there is no procedure under Articles 45 to 58 of the EU Succession Regulation in this case, contrary to the opinion of the appellant, no right of the parties to file an application can arise from the law of the Member State of enforcement, i.e. Polish law in this case, which is decisive for the application procedure under Article 46(1) of the EU Succession Regulation. Moreover, pursuant to Article 46(3)(b) of the Regulation, only the attachment of the form issued by the court or the competent authority of the Member State of origin would form part of this procedure, but not the issue of this form itself.

22 (4) Contrary to the opinion of the appellant, a right of the parties to obtain the requested certificate follows neither from Art. 66 para. 1 sentence 2 EU Succession Regulation nor from Art. 66 para. 5 EU Succession Regulation.

23 In the event of a dispute, it can be left open whether the implementation of a procedure for the issuance of an ENZ even establishes a right to the issuance of a certificate in accordance with Art. 1 para. 1, Annex 1 of the Implementing Regulation. In any case, neither the second sentence of Article 66(1) of the EU Succession Regulation nor Article 66(5) of the EU Succession Regulation give rise to a separate right of the parties to obtain the requested certificate.

24 (a) Pursuant to the first sentence of Article 66(1) of the Regulation, the issuing authority, i.e. in this case the interested party, shall examine ex officio the information, declarations, documents and other evidence submitted by the applicant for the certificate and, pursuant to the second sentence of Article 66(1) of the Regulation, shall carry out the necessary enquiries insofar as its own law so provides or authorises, or shall request the applicant to submit any further evidence it deems necessary. Contrary to the opinion of the appellant, the certificate applied for is not proof of the testator's right of succession, which the interested party could demand ex officio on the basis of its right to make enquiries. Even if „enquiry“ were also to be understood as the right to obtain a certificate if the wording of the provision is interpreted broadly, the EU Succession Regulation does not use this term in this sense. Art. 47 Succession Regulation regulates the consequences of the failure to submit a certificate - in accordance with Art. 46 para. 3 letter b) Succession Regulation - in detail. Pursuant to Article 47(1) of the Regulation, the court or other authorised body may not itself require the issue of a certificate, but may merely set a time limit within which the certificate must be submitted. It is not apparent that, despite this express provision to the contrary under Art. 66 para. 1 sentence 2 of the EU Succession Regulation, the party concerned should be entitled to further powers, even vis-à-vis the court of the Member State of origin. The fact that the rights of the issuing authority vis-à-vis the competent authorities of another Member State are explicitly regulated in Article 66(5) of the Regulation also speaks against this.

25 There is no need to decide whether the parties' right to file an application under Art. 66 para. 1 sentence 2 of the EU Succession Regulation should also be denied because - as the Court of Appeal assumed - they have not shown that Polish law imposes corresponding enquiries on them.

26 (b) Pursuant to Article 66(5) of the EU Succession Regulation, the competent authority of a Member State shall make available to the issuing authority of another Member State „for the purposes of this Article“, on request and insofar as it is authorised to do so under national law, the information contained in particular in the land register, in civil status registers and in registers recording documents or facts which are relevant, inter alia, to the succession. Contrary to the opinion of the appellant, the merely exemplary list in this provision („in particular“) does not give the parties involved their own right to file an application. The term „certificate“ is also not expressly used in this provision, unlike in other articles of the EU Succession Regulation. Once again - as with regard to Art. 66 para. 1 sentence 2 of the EU Succession Regulation - it is not apparent why the parties should have more rights with regard to the submission of a certificate than provided for in Art. 47 para. 1 of the EU Succession Regulation. In any case, the court of appeal rightly did not consider the requested certificate to be covered by the wording of the regulation. The certificate as such is not an indication „contained in particular in the land register, in civil status registers and in registers“ (cf. Art. 66 para. 5 EU Succession Regulation). While the content covered by it in accordance with Art. 1 para. 1, Annex 1 Implementing Regulation also relates to a specific procedure, in the opinion of the appeal, a decision in accordance with Art. 39 para. 1 of the Regulation, this is not the case with the information in a land register, civil status registers and registers and comparable sources. These make it possible to carry out a procedure, in this case the issuing of an ENZ.

27 The question of whether the application for the certificate should have been submitted to the court administration rather than to the probate court - as the court of appeal had thought - because the interested party had wanted to make use of administrative assistance, is irrelevant in the case in dispute.

28 cc) The purpose pursued by the provisions on the issue of a certificate concerning a decision in a succession case pursuant to Article 1(1), Annex 1 of the Implementing Regulation also speaks against a right of application on the part of the parties. The aim of the EU Succession Regulation, including the provisions on the mutual recognition of decisions given in matters of succession, is to remove obstacles to the free movement of persons who have difficulties in enforcing their rights in connection with a cross-border succession. Citizens should be able to organise their succession in advance in a European legal area. The rights of heirs and legatees as well as other persons close to the deceased and creditors of the estate should be effectively safeguarded (see recitals 7, 8 and 59 of the EU Succession Regulation). Heirs, legatees, executors or administrators of an estate should be able to easily prove their status and/or their rights and powers in another Member State in order to ensure the swift, uncomplicated and efficient settlement of a succession (see recital 67 of the EU Succession Regulation; ECJ, judgment of 16 July 2020, C-80/19, ECLI:EU:C:2020:569, ErbR 2020, 710 para. 35).

29 The interested party does not belong to the aforementioned group of persons and does not pursue any rights of her own in connection with the deceased's death. Even if it is assumed that the conduct of proceedings for the issuance of an ENZ establishes a right to the issuance of a certificate pursuant to Art. 1 para. 1, Annex 1 Implementing Regulation, a speedy and uncomplicated handling of the inheritance matter would also be possible if the person authorised to apply for an ENZ pursuant to Art. 65 para. 1 EU Succession Regulation in conjunction with Art. 63 para. 1 EU Succession Regulation also applied for the issuance of this certificate. Contrary to the opinion of the appellant, a right of application also does not follow from recital 21 sentence 1 of the EU Succession Regulation. Insofar as it is intended to enable all notaries competent for succession matters in the Member States to exercise this competence, this does not result in any statement on their powers, but - as recitals 20 to 22 of the EU Succession Regulation show - only on their competence and their obligation to comply with the competence rules of the EU Succession Regulation.

30 dd) The Senate has no reason to request a preliminary ruling from the Court of Justice of the European Union pursuant to Article 267(1) and (3) of the TFEU. There is a so-called „acte clair“, which excludes the obligation to make a reference (see ECJ, judgment of 6 October 1982, CILFIT, C-283/81, ECR 1982, 3415 para. 16; Senate judgment of 30 November 2022 - IV ZR 143/21, VersR. November 2022 - IV ZR 143/21, VersR 2023, 178 para. 24 with further references; BGH, judgement of 24 February 2021 - VIII ZR 36/20, BGHZ 229, 59 para. 22 with further references; BVerfG NJW 2022, 2828 para. 13). It is so obvious that the party involved cannot itself request the requested certificate that there is no room for reasonable doubt.

31 b) Finally, in the correct opinion of the Court of Appeal, the parties' right to file an application does not follow from German law, in particular Section 27 IntErbRVG. This provision does not regulate the authorisation to file an application for a certificate pursuant to Art. 46(3)(b) of the EU Succession Regulation. It is not necessary to decide here whether the Court of Appeal correctly assumed, with regard to Section 28 IntErbRVG, that the application pursuant to Section 27 IntErbRVG can also only be made by one party to the main proceedings. The provisions on the ENZ in §§ 33 to 44 IntErbRVG also do not provide for a right of the parties to file an application.

32 c) Since the Court of Appeal did not err in law in rejecting the parties' own right of application, it could leave open the question of whether the certificate of inheritance issued by the probate court is a decision pursuant to Article 46(3)(b) of the EU Succession Regulation, Article 1(1), Annex 1 of the Implementing Regulation.