OLG Stuttgart, decision of 15 December 2020 - 8 W 342/20

Central standards: Art. 67 para. 1 sentence 3 EU Succession Regulation

(Objections to the European Certificate of Succession)

Official guidelines: 

1. pending objections within the meaning of Art. 67 para. 1 sentence 3 lit. a EuErbVO, which

lead to the fact that a European Certificate of Succession cannot be issued.

are only those that can be used elsewhere, i.e. in another procedure

pending are. On the other hand, objections that an authorised person

directly to the issuing authority, within the framework of the

of the granting procedure. They do not per se preclude the granting

of the certificate.

2. „Pendency“ within the meaning of Art. 67 para. 1 sentence 3 lit. a EuErbVO means

the filing of a lawsuit, i.e. the pendency of a legal dispute in relation to the

to the facts to be certified.

3. the procedure for issuing the European Certificate of Succession is based on

is generally governed by the procedural law of the respective member state.

The EU Succession Regulation stands in the way of a different depth of examination by the

„issuing authority“ is not opposed.

4 In the Federal Republic of Germany, Sections 33 et seq.

Implementation of the EU Succession Regulation

Inheritance Procedure Act (IntErbRVG) to the Act on the Procedure

in family matters and in matters of voluntary jurisdiction

(FamFG) and thus, among other things, on Section 26 FamFG. The

Examination competences of probate court and court of appeal cover

itself.

For the reasons: 

	[…]
6	The procedure for issuing the European Certificate of Succession (ECS) is generally governed by the procedural law of the Member State in question (Perscha in: Deixler-Hübner/Schauer, Kommentar zur EuErbVO, 1st edition 2015, Art. 62 EuErbVO, para. 17). In Germany, Sections 33 et seq. of the International Succession Procedure Act (IntErbRVG) enacted to implement the EU Succession Regulation refer to the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (FamFG). The proceedings on the appeal opened pursuant to Art. 72 et seq. EuErbVO is governed by Sections 58 et seq. FamFG, insofar as no deviations are stipulated (Section 43 IntErbRVG). The appeals of the parties no. 7 and 8 are each admissible pursuant to Art. 72 para. 1 EU Succession Regulation in conjunction with Sections 43 para. 1 IntErbRVG, 58 et seq. FamFG and are also admissible in all other respects.2.
7	Pursuant to Section 43 (5) sentences 2 and 4 IntErbRVG in conjunction with Section 69 (1) sentence 2 FamFG, the court of appeal may refer the matter back to the court of first instance, cancelling the contested order and the proceedings, if the latter has not yet ruled on the matter. This remittal can be made ex officio; unlike a remittal pursuant to Section 69 (1) sentence 3 FamFG, it does not require a corresponding application by a party (Keidel/Sternal, FamFG, 20th edition 2020, Section 69 FamFG, para. 14; MüKoFamFG/A. Fischer, 3rd edition 2018, Section 69 FamFG, para. 68).
8	In the present case, the requirements of § 69 Para. 1 Sentence 2 FamFG are met, as the probate court wrongly considered itself prevented from making a contested decision on the application of party no. 8 for the issue of a European Certificate of Succession in view of the objections raised by party no. 7 in the issuing proceedings. The probate court has therefore not yet ruled on the matter within the meaning of § 69 Para. 1 Sentence 2 FamFG. The application of this standard comes into consideration in particular if the court of origin - as here - has wrongly rejected an application on purely procedural grounds (see MüKoFamFG/A. Fischer, loc. cit., Section 69 FamFG, para. 70 with further references). The Senate exercises its discretion granted by Section 69 (1) sentence 2 FamFG (Keidel/Sternal, loc. cit., Section 69 FamFG, para. 13; MüKoFamFG/A. Fischer, loc. cit., Section 69 FamFG, para. 65) in the present case to the effect that the case is referred back.
9	In detail, the following must be stated:a)
10	In the contested order of 10 August 2020, the Local Court stated that the European Certificate of Succession (ECR) requested by party no. 8 would be refused due to the existence of objections by party no. 7. The Local Court took the view that, unlike in the German certificate of inheritance proceedings, the issuing procedure for the ENZ does not involve a disputed decision. The present objections to the facts to be certified (intestate succession) related to the information provided in support of the application (absence of a disposition of property upon death). The ENZ could therefore not be granted. The Senate is unable to agree with this starting point.
11	Pursuant to Art. 67 para. 1 sentence 3 lit. a EU Succession Regulation, the issuing authority shall in particular not issue the certificate if objections to the facts to be certified are pending. Objections may relate to the information provided in support of the application (e.g. the validity of a document submitted) or to the legal status, rights and powers to be certified (e.g. interpretation of a will) (cf. Grziwotz in: Münchener Kommentar zum FamFG, 3rd edition 2019, Art. 67 EuErbVO, para. 6).b)
12	The interpretation of the provision of Art. 67 para. 1 sentence 3 lit. a EU Succession Regulation is controversial. Some argue that the certificate may only be issued if no party to the proceedings objects to the applicant's request. According to this view, the mere „pendency“ of the objections, understood in this way, is sufficient for the certificate to be refused, i.e. they merely have to have been raised in the proceedings (Fornasier in: Dutta/Weber, Internationales Erbrecht, 1st edition 2016, Art. 67 EuErbVO, para. 5; Dutta in: Münchener Kommentar zum Bürgerlichen Gesetzbuch, 8th edition 2020, Art. 67 EuErbVO, para. 5 ff.; Grziwotz in: Münchener Kommentar zum FamFG, loc. cit., Art. 67 EuErbVO, para. 6; Perscha in: Deixler-Hübner/Schauer, loc. cit., Art. 67 EuErbVO, para. 9). According to this interpretation, it is generally sufficient to assert the objections in the issuing procedure itself (in detail Kleinschmidt in: Herberger/Martinek/ Rüßmann/Weth/Würdinger, jurisPK-BGB, 9th edition 2020, Art. 67 EuErbVO, para. 21 et seq.). Accordingly, the certificate is refused as soon as a contentious proceedings are conducted. On the other hand, in appeal proceedings pursuant to Art. 72 para. 1 of the Succession Regulation, the certificate of succession can be issued despite objections to the contrary by a party to the proceedings (Fornasier in: Dutta/Weber, loc. cit., Art. 67 of the Succession Regulation, para. 6). In this way, in a different way than in inheritance certificate proceedings (§ 352 para. 2 FamFG old version, now § 352 e para. 2 FamFG), it is prevented that, in the event of an objection by a party, a possibly incorrect certificate of inheritance is already issued and circulated at first instance (Fornasier in: Dutta/Weber, loc. cit., Art. 67 EuErbVO, para. 7). Going even further, it is argued that even in the appeal instance, it is only examined whether the rejection of the application for the issue of an ENZ by the probate court was lawful, i.e. whether objections have been raised, whereby it should be irrelevant whether these objections also exist under substantive law (Kleinschmidt in jurisPK-BGB, loc. cit. Art. 67 EuErbVO, para. 27; Milzer, Die gerichtliche Zuständigkeit für den Erbenstreit um das europäische Nachlasszeugnis, NJW 2015, 2997).
13	Another view is that pending objections which mean that a certificate cannot be issued in accordance with Art. 67 of the Succession Regulation are only those which are pending elsewhere, i.e. in other proceedings. In contrast, according to this view, objections that an authorised party raises directly with the issuing authority must be assessed in the context of the issuing procedure; they do not per se prevent the certificate from being issued (Dorsel in: Geimer/Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen, Edition: 60th Supplement, August 2020, Art. 67 EuErbVO, para. 6). „Pendency“ within the meaning of Art. 67 para. 1 sentence 3 lit. a EuErbVO means the filing of an action, i.e. the pendency of a legal dispute in relation to the facts to be certified (BeckOGK/J. Schmidt, Status: 01.08.2020, Art. 67 EuErbVO, para. 9; Zimmermann, Darf ein Nachlasszeugnis nur in unstreitigen Fällen ausgestellt werden? ZErb 2015, 342; Steiner, Einstweiliger Rechtsschutz gegen das Europäische Nachlasszeugnis?, ZEV 2016, 487; Dorth, Das Verhältnis von Erbschein und Europäischem Nachlasszeugnis, Dissertation Bochum 2018, p. 270).
14	The Senate agrees with the latter view. The interpretation according to which the mere raising of objections in the issuing procedure without further examination precludes the issuance of an ENZ can be based on the fact that the English and French language versions of Art. 67 para. 1 sentence 3 lit. a EuErbVO are very broadly worded in contrast to the German language version (“if the elements to be certified are being challenged“ or „si les éléments à certifier sont contestés“) and the issuing procedure for national certificates of inheritance is organised as a (notarial) consensus procedure in many European countries (Dorth, loc. cit, page 267 with references in footnote 865). Reference is also made to the absence of a standard such as § 352 e FamFG in ENZ proceedings. However, the fact that this interpretation can lead to strange results in clear cases speaks against it (see Steiner, loc. cit., page 487/488). Furthermore, an ENZ issued by the Higher Regional Court as a court of appeal pursuant to Art. 43 para. 5 sentence 2 IntErbRVG cannot have different legal requirements than an ENZ issued by the probate court. The competences of the probate court and the court of appeal are the same (Zimmermann, loc. cit., p. 342/343).
15	The Senate therefore favours the view according to which Art. 67 para. 1 sentence 3 lit. a of the EU Succession Regulation is to be interpreted in such a way that the issuing authority is only refused to issue the certificate if elsewhere, so in another procedure, objections to the facts to be certified are pending. This correlates with Art. 67 para. 1 sentence 3 lit. b of the Succession Regulation, according to which the certificate is also not to be issued if it would be incompatible with a decision on the same facts, and with Art. 65 para. 3 lit. l of the Succession Regulation, according to which a declaration must be made with the application stating that, to the best of the applicant's knowledge, no legal dispute is pending in relation to the facts to be certified. Insofar as the issuing of certificates of inheritance in other European countries is organised as a consensus procedure before a notary's office, Steiner (ZEV 2016, 487) rightly points out that the EU Succession Regulation does not preclude a different depth of examination by the „issuing authority“, which follows from Art. 66 para. 1 sentence 2 of the EU Succession Regulation. This provision stipulates that an official enquiry only takes place if the member state's own law provides for or permits this. This is the case in the Federal Republic of Germany (Section 26 FamFG). According to Art. 66 of the Regulation, the issuing authority checks the information, declarations, documents and other evidence provided by the applicant. In doing so, it carries out the necessary investigations in conjunction with Art. 66 EU Succession Regulation and Section 26 FamFG. These requirements would make no sense if the agreement or silence of the other parties involved were a prerequisite for the issuance of the ENZ (Zimmermann, ZErb 2015, 342), i.e. if the procedure were designed as a pure consensus procedure (Zimmermann, ZErb 2015, 342; Dorth, page 269). The fact that the issuing procedure may differ due to divergent procedural rules in the Member States was accepted by the legislator as evidenced by the provision of Art. 66 para. 1 sentence 2 EU Succession Regulation, which is why fundamental objections to a disputed decision in this regard (see Kleinschmidt in: jurisPK-BGB, loc. cit., Art. 27 EU Succession Regulation, para. 26) are not able to prevail. There is no apparent reason why the German probate court should not independently examine objections in the issuing proceedings regarding the ENZ, unless they are pending in other court proceedings that could lead to a divergent decision (Steiner, ZEV 2016, 187). Disputed issues are therefore to be decided by the probate court if no such other proceedings are pending. The court of appeal only reviews the decision issued by the court of origin, as it would otherwise.
16	In the legislative procedure concerning the IntErbRVG (BT-Drs. 18/4201, pages 75/76 and 83), the Federal Government expressed the opinion in response to a request from the Bundesrat to examine whether a provision corresponding to Section 352 e FamFG should not be included in the IntErbRVG for disputed cases that the EuErbVO contains its own regulatory concept for the ENZ, which differs from the German inheritance certificate procedure. If objections to the facts to be certified are pending, no European Certificate of Succession may be issued under the EU Succession Regulation (see Art. 67). Therefore, there is no need for a prior court decision, as provided for in the differently conceived German certificate of inheritance procedure. Insofar as these statements are to be understood as meaning that the ENZ proceedings at first instance may not be subject to a contested decision, this cannot be accepted for the reasons set out above. Rather, the party who objects to the granting of an ENZ with the appeal is referred to an application pursuant to Art. 73 para. 1 lit. b) of the EU Succession Regulation for suspension of the effects of the certificate during the pendency of the appeal[...].