ECJ (Third Chamber), Judgement. v. 12.10.2023 - C-21/22 - Exclusion of the choice of law by a third-country national resident in an EU Member State in the case of agreements taking precedence under Article 75 of the EU Succession Regulation

EuErbVO Art. 22, 75, 21, 12 para. 1

1. Article 22 of the EU Succession Regulation must be interpreted as meaning that a third-country national resident in a Member State of the European Union may choose the law of the third country for the succession. (n. amtl. Ls.)

2. Article 75 of the EU Succession Regulation must be interpreted as not precluding a third-country national resident in a Member State of the Union from choosing the law of the third country for succession if that Member State has concluded a bilateral convention with the third country prior to the adoption of the Regulation which specifies the law applicable to succession matters and does not expressly provide for the possibility of choosing a different law.

Facts of the case:

This reference for a preliminary ruling concerns the interpretation of Articles 22 and 75 of the EU Succession Regulation. The reference has been made in proceedings between OP, a Ukrainian national resident in Poland, where she is the co-owner of a property, and the representative of Notariusz Justyna Gawlica (Notary Justyna Gawlica), who runs the Krapkowice notary's office ('the notary's representative'), concerning his refusal to draw up a public will containing a clause providing that OP's estate is governed by Ukrainian law.

Legal framework

Union law

Recitals 7, 37, 38, 57 and 59 of the EU Succession Regulation state: (...)

Article 5(1) of the EU Succession Regulation provides: (...)

Article 6 of the EU Succession Regulation states: (...)

Article 12(1) of the EU Succession Regulation reads: (...)

Art. 20 EuErbVO reads: (...)

Art. 21 EuErbVO provides: (...)

Article 22(1) of the EU Succession Regulation states: (...)

Article 75(1) of the EU Succession Regulation provides: (...)

Polish law

Article 37 of the Agreement of 24 May 1993 between the Republic of Poland and Ukraine on legal assistance and legal relations in civil and criminal matters (hereinafter: bilateral agreement):

„Legal relationships relating to the succession to movable property shall be governed by the law of the Contracting Party of which the deceased was a national at the time of death. Legal relationships in connection with the succession to immovable property shall be governed by the law of the Contracting Party in whose territory these assets are located. The categorisation of an asset forming part of the estate as movable or immovable property shall be governed by the law of the Contracting Party in whose territory the asset is located.“

The dispute in the main proceedings and the questions referred

OP is a Ukrainian national resident in Poland, where she is co-owner of a property. She asked the notary's representative to draw up a public will with a clause stating that her estate would be governed by Ukrainian law. The notary's representative refused to draw up such a document. According to Art. 22 of the EU Succession Regulation in conjunction with the 38th recital of the Regulation, the choice of law is only open to nationals of Member States of the Union. Secondly, according to Art. 37 of the bilateral agreement, which in any case takes precedence over the Regulation, the law of the state of which the deceased is a national applies to succession in the case of movable assets and the law of the state in which the assets are located in the case of immovable assets. In the opinion of the notary's representative, Polish law should therefore be applied to the succession of OP, insofar as their real estate located in Poland is concerned.

OP brought an action against this refusal by the notary's representative before the Sąd Okręgowy w Opolu (Regional Court of Opole, Poland), the referring court, on the grounds that the refusal was based on a misunderstanding of the EU Succession Regulation. In that regard, it submits, in particular, that, under Article 22, „a person“ may choose the law of the State to which he belongs as the law applicable to his succession. It further submits that Article 75(1) of the EU Succession Regulation is intended to ensure compatibility with the obligations arising from agreements between Member States and third countries. However, since the bilateral agreement does not regulate the choice of law in matters of succession, it does not preclude the application of Article 22 of the EU Succession Regulation.

In those circumstances, the Sąd Okręgowy w Opole decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

1. Is Article 22 of the EU Succession Regulation to be interpreted as meaning that a person who is not a national of a Member State of the European Union may choose the law of his or her home state for the succession?

2. Is Article 75 of the EU Succession Regulation in conjunction with Article 22 thereof to be interpreted as meaning that, in the case of a bilateral convention between a Member State and a third State which, although it does not regulate the choice of law in matters of succession, specifies the applicable law, a national of that third State who resides in the Member State bound by the bilateral convention may choose the applicable law?

Reasons:

To the first question

16 By its first question, the referring court essentially asks whether Article 22 of the EU Succession Regulation must be interpreted as meaning that a third-country national domiciled in a Member State of the Union may choose the law of the third country for the succession.

17 Art. 22 of the EU Succession Regulation stipulates that a „person ... may choose for the succession the law of the State to which he belongs at the time of the choice of law or at the time of his death“.

18 As is clear from the wording of this provision, it refers to any „person“, without distinguishing between nationals of Member States of the Union and third-country nationals. The only restriction on such a person's freedom of choice of law is that he can only choose the law of a State of which he is a national, irrespective of whether that State is a Member State of the Union.

19 Therefore, it cannot be assumed that such freedom of choice of law exists only for EU citizens.

20 This literal interpretation is supported by other provisions of the EU Succession Regulation which also refer to the law of a third country.

21 Firstly, Article 20 of the EU Succession Regulation provides that the law designated by this Regulation is applicable even if it is not the law of a Member State. Although it is clear from recital 57 of the Regulation that the conflict-of-law rules laid down in that Regulation may lead to the application of the law of a third State and that, in such cases, the rules of private international law of that State should be taken into account, it is expressly stated that such a type of referral „should be excluded in cases where the testator has made a choice in favour of the law of a third State“.

22 Secondly, Article 5 of the Regulation limits the choice of court agreements to cases in which „the law chosen by the deceased under Article 22 [of this Regulation] to govern the succession is the law of a Member State“. In addition, Art. 6 of the EU Succession Regulation regulates the declaration of lack of jurisdiction if „the law chosen by the deceased under Article 22 to govern the succession is the law of a Member State“. Such clarifications only make sense if there is a choice other than the law of a Member State. If it is not the law of a Member State, it can only be the law of a third country.

23 Thirdly, the 38th recital of the EU Succession Regulation, according to which „[t]his Regulation ... should enable citizens to organise their succession in advance by choosing the law applicable to the succession“, refers to „citizens“ in general and not only to EU citizens.

24 In the light of the foregoing, the answer to the first question is that Article 22 of the EU Succession Regulation must be interpreted as meaning that a third-country national resident in a Member State of the Union may choose the law of the third country for the succession.

The second question

25 By its second question, the referring court essentially asks whether Article 75 in conjunction with Article 22 of the Regulation must be interpreted as meaning that, where a third-country national resident in a Member State of the Union has, prior to the adoption of the Regulation, concluded a bilateral convention with that third country which specifies the law applicable to succession and does not expressly provide for the possibility of choosing a different law, he may choose the law of that third country for the succession.

26 In this respect, it essentially follows from Article 75(1) of the Regulation that its application is without prejudice to the application of international conventions to which one or more Member States are parties, provided, first, that the Member State(s) concerned were already parties to the international convention in question at the time of the adoption of the Regulation and, second, that that convention concerns matters governed by the Regulation. According to the case law of the Court of Justice, if the EU legislature provides that the application of a regulation is „without prejudice to existing conventions ...“, the conventions apply in the case of rules competing with such a regulation (ECJ of 4 May 2010, TNT Express Nederland, C-533/08, ECLI:EU:C:2010:243, NJW 2010, 1736 para. 46).

27 If a Member State is party to a bilateral agreement concluded prior to the entry into force of the EU Succession Regulation and this agreement contains provisions applicable to succession upon death, these provisions and not the relevant provisions of the EU Succession Regulation must therefore be applied.

28 Moreover, as the Advocate General points out in points 29 and 30 of his Opinion, Article 75 of the EU Succession Regulation is not an isolated case in the legal acts of the Union on judicial cooperation in civil and commercial matters. Numerous other regulations and conventions concern relations between private individuals in the European area of freedom, security and justice and contain provisions that follow a similar logic to Article 75 of the EU Succession Regulation.

29 In this context, the Court of Justice has ruled that the scope of the article regulating the relationship between the Union act in question and the international conventions must not conflict with the principles underlying the provision to which that article belongs (ECJ NJW 2010, 1736 para. 51).

30 In the present case, as can be seen essentially from Recitals 7 and 59, the purpose of the EU Succession Regulation is to remove obstacles to the free movement of persons who may encounter difficulties in enforcing their rights in connection with a cross-border succession, inter alia by introducing rules on jurisdiction and applicable law in this area and on the recognition and enforcement in a Member State of judgments and documents from other Member States.

31 In this respect, Art. 21 („General rule on conflict of laws“) of the Regulation contains a standard connecting factor, which is determined by reference to the habitual residence of the deceased at the time of death. In view of the structure of this Regulation, the possibility provided for in Art. 22 of the Regulation to choose the law of the state to which the deceased belongs is to be understood as an exception to the general conflict rule in Art. 21 of the Regulation.

32 Moreover, both habitual residence and nationality are objective connecting factors which both contribute to achieving the objective of legal certainty for the parties to the probate proceedings pursued by the 37th recital.

33 In the light of the foregoing considerations, the possibility of choosing the law applicable to the succession cannot be regarded as a principle on which the EU Succession Regulation, and thus judicial cooperation in civil and commercial matters in the Union, of which this Regulation is one of the instruments, is based.

34 It is true that the Court of Justice has ruled that the general objective of this Regulation, namely the mutual recognition of decisions in matters of succession given in the Member States, is in line with the principle of the uniformity of succession (ECJ of 21 June 2018, Oberle, C-20/17, ECLI:EU:C:2018:485, ZEV 2018, 465 mAnm Zimmermann, para. 53 f.). However, this is not a principle with unrestricted validity (ECJ of 16 July 2020, EE (Jurisdiction and law applicable to succession), C-80/19, ECLI:EU:C:2020:569, ZEV 2020, 628 para. 69).

35 As stated by the Advocate General in point 71 of his Opinion, Article 12(1) of the EU Succession Regulation expressly provides for an exception to this principle by allowing the competent court not to rule on assets located in third countries because there is a fear that the judgment will not be recognised or declared enforceable in those third countries.

36 In certain special cases, the Union legislator therefore wanted to expressly observe the model of estate division, which can be applied in relation to certain third countries.

37 Consequently, the scheme of the EU Succession Regulation does not preclude a third-country national who resides in a Member State bound by a bilateral agreement concluded with the third country prior to the adoption of the Regulation from not being able to choose the law applicable to his succession in accordance with that agreement and on the basis of the exception provided for in Article 75(1) of the EU Succession Regulation. This result is also consistent with the principle enshrined in Article 351(1) TFEU, which concerns the effects of international agreements concluded by the Member States before their accession to the Union.

840

38 In the light of the foregoing, the answer to the second question is that Article 75 in conjunction with Article 22 of the EU Succession Regulation must be interpreted as not precluding a third-country national resident in a Member State of the Union from choosing the law of the third country for the succession if that Member State has concluded a bilateral agreement with the third country prior to the adoption of the Regulation which specifies the law applicable to succession matters and does not expressly provide for the possibility of choosing a different law.