KG Berlin, decision of 26/04/2016 - 1 AR 8/16
Central standardsArtt. 4, 21 EuErbVO, §§ 97, 343 FamFG
(Usual stay for cross-border commuters)
Author's guiding principle:
The habitual residence of a cross-border commuter remains in the country of origin if the deceased's family and social centre of gravity remains there.
Problem:
The local courts of Pankow-Weißensee and Wedding are in dispute over jurisdiction in a probate case with foreign implications. Until 11 February 2010, the deceased had his primary residence and habitual abode in the district of the district court of Wedding. From this date, he moved into a flat in a warehouse in Poland without staying there. He worked from Poland as a self-employed building contractor and consultant.
For the reasons:
II.
The Senate is called upon to decide on the dispute between the Local Courts of Pankow-Weißensee and Wedding regarding local jurisdiction (Sec. 5 para. 1 sentence 1 no. 4 FamFG).
A “referral” of the proceedings concerning the acceptance of the waiver to the Wedding Local Court lacks a legal basis.
1. the probate court at the Local Court of Pankow-Weißensee has jurisdiction to accept the declaration of renunciation from the deceased's daughter pursuant to Section 31 IntErbRVG in conjunction with Art. 13 EuErbVO because she, as the person declaring the renunciation, has her habitual residence in its district. The procedure for accepting a waiver of an inheritance is a probate matter that falls within the jurisdiction of the probate courts. It is one of several proceedings that are conceivable in connection with the receipt of an inheritance (cf. the list in § 342 FamFG). The file remains with this court after the end of the waiver proceedings. However, the procedure for the receipt of a declaration of waiver is only completed when the original of the record of the (waiver) declaration is handed over (in accordance with the EU Succession Regulation) or the declaration is forwarded to the competent probate court (in accordance with § 1953 para. 3 sentence 1 BGB) was terminated. It is not clear from the minutes in the file whether this was the case.
2. insofar as the daughter claiming the inheritance has handed over written documents and keys from the deceased's property to the Pankow-Weißensee Local Court, a special local jurisdiction pursuant to § 344 para. 4 FamFG if there is a need to secure the estate in this judicial district. However, in the absence of comprehensible information, such a need cannot be established with regard to the type and nature of the items handed over.
3. further probate proceedings (securing the estate, determining the heirs, opening dispositions of property upon death, etc.) may be necessary in connection with the further information provided by the daughter who is claiming the inheritance.
The Senate would like to point out the following, subject to further findings and determinations in this estate case:
The Local Court of Wedding could be determined as the locally competent probate court. Its jurisdiction follows from § 343 Para. 2 FamFG in the version of 29 June 2015 i. in conjunction with Art. 4 EuErbVO. The aforementioned new version of § 343 FamFG came into force on 17 August 2015 together with the European Succession Regulation (Regulation (EU) No. 650/2012 of 4 July 2012).
The international jurisdiction in inheritance matters for inheritance cases with a foreign connection from 17 August 2015 now generally results from Art. 4 et seq. of the EU Succession Regulation in conjunction with Section 97 FamFG (see Zöller/Geimer, ZPO, 31st ed., marginal no. 45 to Preamble to sections 97 -110; ibid. marginal no. 5 to section 105 FamFG). The EU Succession Regulation is a European legal act that takes precedence over the provisions of the FamFG (Section 97 FamFG). The application of the EU Succession Regulation is intended to synchronise the applicable law of succession with the law of the (residence) member state of the deceased at the time of death - apart from the deviating cases of choice of law and prorogation provided for in the Regulation (see Palandt-Weidlich, BGB, 75th ed. V. m. RdNr. 6 - 8 zu § 2353 m. w. w. N.). According to Article 4 of the EU Succession Regulation, no distinction is to be made between contentious and non-contentious jurisdiction and the last habitual residence of the deceased is to be taken into account. In this cross-border case, this could have been either in Poland or in Germany. In this context, the last habitual residence is defined in accordance with the concept of habitual residence as defined in the case law of the European Court of Justice. to Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility (see in detail: Hess in Dutta/Herler, Die Europäische Erbrechtsverordnung, 2014, p. 134 f with further references). N.) must be determined taking into account all the circumstances of the individual case, in particular the personal and family integration of the deceased in the Member State (of residence). In addition, recitals 23 and 24 of the EU Succession Regulation must be consulted for an interpretation (see Geimer/Schütze/Wall, IRV, status: November 2015, margin no. 6, 54 ff on Art. 4 EuErbVO).
The decisive factor in determining habitual residence is the “centre of the testator's vital interests”. This requires a Overall assessment of living conditions of the deceased in the years prior to his death and at the time of his death, taking into account all relevant facts, in particular the duration and regularity of the deceased's residence in the second state.
In the present case, a vast majority of circumstances indicate that the deceased had his centre of life in Germany in the sense described above until his death. Recitals 23 and 24 of the EU Succession Regulation list specific characteristics according to which the habitual residence is to be determined in such cases of a “cross-border commuter”. In the case of so-called cross-border commuters, the state of origin is to remain the habitual residence if the Family and social focus of the testator remained. This is the case here:
The family of the deceased, who had only given up his primary residence in Berlin-R... in 2010 at the age of 72, remained in the Berlin-B... area. He maintained the usual family contacts unchanged. In the daughter's flat in Berlin-Pankow, he kept a secondary residence for “registration purposes” only, but without actually staying there. There was hardly any integration at the new place of residence in G... (Poland) - not far from the German-Polish border near K... (Oder). The deceased did not speak Polish. He was not integrated into village and club life. Personal contacts were limited to conversations with and instructions to local labourers and occasional conversations with the local priest, who spoke German. He did not start a new family in Poland. The deceased only visited doctors and hospitals in Germany.
The deceased earned all his income (pensions, income from self-employment in the construction industry) in Germany. He continued to maintain accounts in Germany. He crossed the Oder practically every day as part of his work in the construction industry in order to reach his construction sites and his customers. The decision to rent part of a warehouse in G... with a built-in flat was made solely for economic reasons (significantly cheaper rent than in Germany) and considerations of convenience (nevertheless short distances to customers in Berlin-B... ). There was still a particularly close and strong connection to the deceased's home country (see Geimer/Schütze/Wall loc. cit. para. 54).
The local jurisdiction of the Wedding Local Court follows from Section 47 No. 2 in conjunction with Section 2 (4) IntErbRVG, Art. 4 EuErbVO, Section 343 Para. 2 FamFG (new version) because it is a matter of voluntary jurisdiction. As the deceased had his habitual residence in Germany at the time of his death within the meaning of Art. 4 of the EU Succession Regulation, the local jurisdiction of the Local Court of Wedding follows in accordance with Section 4 of the German Civil Procedure Code. 343 (2) of the new version of the Family Proceedings Act (FamFG) from the fact that the deceased had their last (actual) residence in Germany in its district. Section 47 no. 2 IntErbRVG refers to the corresponding provisions in the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (sections 105, 343). The fact that the jurisdiction of the court of the last habitual residence in Germany is based on the fact that the deceased did not (or no longer) have a habitual residence in Germany in Section 343 (2) and, on the other hand - as explained above - a habitual residence within the meaning of Art. 4 of the European Succession Regulation of the so-called “cross-border commuter” in Germany is to be assumed, is only an apparent contradiction. Art. 4 of the EU Succession Regulation determines the international jurisdiction of German courts in succession cases with a foreign connection under an autonomous interpretation of the term “habitual residence” at the time of death. Local jurisdiction is governed by national law (Art. 2 EU Succession Regulation; see Zöller/Geimer, loc. cit. para. 12 on Art. 1 EU Succession Regulation). This is set out in the provision pursuant to Section 47 No. 2 in conjunction with Section 2 para. 4 IntErbRVG, Art. 4 EuErbVO, Section 343 Para. 2 FamFG (new version) as explained on the entry into force of the EU Succession Regulation. In the absence of a single place of habitual residence of the deceased, who constantly travelled in the Berlin-B... area until his death, the last habitual (i.e. “permanent”) residence in the district of the Wedding district court is the appropriate basis for determining local jurisdiction (§ 343 para. 2 FamFG).