ECJ, Order of 17 July 2023 - C-55/23 (No obligation of a court of lower instance to follow the interpretation of a higher court (here: Poland) that is contrary to EU law with regard to subsidiary jurisdiction)

EuErbVO Art. 4, 10 para. 1 lit. a; TFEU Art. 267; ECJVfO Art. 99

1. Article 10(1)(a) of the Regulation must be interpreted as meaning that the rule on subsidiary jurisdiction provided for therein only applies if the deceased had his habitual residence at the time of his death in a Member State not bound by this Regulation or in a third State. (n. amtl. Ls.)

2. EU law, in particular Article 267 TFEU, must be interpreted as precluding a national court which, after its decision has been set aside by a higher court, gives a new decision from being bound, under national procedural law, by the legal assessment of that higher court if that assessment is not compatible with EU law as interpreted by the Court of Justice. (n. amtl. Ls.)

ECJ, decision of 17 July 2023 - C-55/23

Facts of the case:

The reference for a preliminary ruling is made in the context of legal proceedings initiated at the request of PA to determine the heirs of her brother, who died in Hamburg.

Legal framework

Union law

Recitals 23 and 30 of the EU Succession Regulation state: (...)

Chapter II („Jurisdiction“) of this Regulation comprises, inter alia, Articles 4-10 and 15: (...)

Art. 22 („Choice of law“) para. 1 EU Succession Regulation, which is part of Chapter III („Applicable law“), provides: (...)

Polish law

Article 386(6) of the Ustawa - Kodeks postępowania cywilnego (Law on the Code of Civil Procedure - Polish Code of Civil Procedure) of 17 November 1964, in the version applicable to the dispute in the main proceedings (Journal of Laws 2021, item 1805):

„The legal assessment expressed in the grounds of the second instance court's judgement is binding both on the court to which the case was referred and on the second instance court when it decides the case again. However, this does not apply if the legal situation or the facts of the case have changed or if, after the second-instance judgement was issued, the Sąd Najwyższy [Supreme Court, Poland] expressed a different legal assessment in a decision clarifying a point of law.“

The main proceedings and the questions referred

The testator (E), a Polish national, died in Hamburg on 9 May 2020. PA, E's sister, applied to the Sąd Rejonowy Szczecin - Prawobrzeże i Zachód w Szczecinie (District Court of Szczecin, Szczecin-Rechts Ufer and -West, Poland), the referring court, to determine E's heirs. In its application, PA stated that E had his last habitual residence in Hamburg, that he owned real estate in Poland and that he had not chosen a law applicable to succession. She also stated that she, her son, her wife, her mother and E's niece had renounced the inheritance before a German court.

On 30 August 2022, the referring court dismissed PA's application on the grounds that the Polish courts did not have jurisdiction to rule on the succession of a deceased person who had their last habitual residence in a Member State other than Poland. It ruled out the applicability of the provision on subsidiary jurisdiction under Article 10(1)(a) of the Succession Regulation, as this only concerns deceased persons who did not have their last habitual residence in a Member State.

On 14 November 2022, the Sąd Okręgowy w Szczecinie (Regional Court of Szczecin, Poland) set aside the order of 30 August 2022 on appeal on the grounds that the referring court had misinterpreted Article 10(1)(a) of the EU Succession Regulation. This provision grants subsidiary jurisdiction to the Member State in which the deceased left assets and of which he is a national, even if the deceased did not have his habitual residence in that Member State.

The referring court, which is now again seised of the dispute in the main proceedings, does not agree with the interpretation of Article 10(1)(a) of the Regulation given by the Sąd Okręgowy w, since, in its view, that interpretation is contrary both to the literal meaning of the provision and to the objectives of the Regulation.

The referring court submits that, under national law, a court seised is bound by the interpretation of EU law by a higher court, even if that interpretation is incorrect, so that the conflict concerning the interpretation of EU law at issue can only be resolved by the ECJ answering a question referred for a preliminary ruling. There is no provision in national law which expressly states that an answer from the ECJ authorises a court to depart from the erroneous interpretation of the higher court. However, the referring court considers that, in order to contribute to the achievement of the objectives pursued by Article 267 TFEU, it must be authorised to take full account of the interpretation of EU law given by a preliminary ruling, even if that interpretation differs from that given by the higher national court in the main proceedings.

Against this background, the Szczecin District Court decided to stay the proceedings and refer the following questions to the ECJ for a preliminary ruling:

1. Is Article 10(1)(a) of the Regulation to be interpreted as meaning that it applies only if the deceased was not domiciled in any of the Member States bound by the Regulation, or does it confer subsidiary jurisdiction on the Member State in which the deceased left property and of which he was a national at the time of his death, even if the deceased was habitually resident in another Member State bound by the Regulation at the time of his death?

2. Is EU law, in particular Article 267 TFEU, to be interpreted as precluding a national rule according to which the court is bound by a legal assessment of a higher court concerning the interpretation of EU law which contradicts the interpretation given by the ECJ in the context of a preliminary ruling, even in this specific case?

Reasons:

On the questions referred

20 Under Article 99 of its Rules of Procedure, the Court may, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide at any time to give a reasoned decision if the answer to a question referred for a preliminary ruling can be clearly deduced from the case-law or if that answer leaves no room for reasonable doubt.

21 In the present case, the Court finds, as regards the first question, that the wording of Article 10(1)(a) of the Regulation leaves no room for reasonable doubt. As regards the second question, it points out that the interpretation of EU law requested by the referring court can be clearly derived from the judgment of 5 October 2010 (C-173/09, Elchinov, ECLI:EU:C:2010:581, BeckRS 2010, 91158). Consequently, Art. 99 ECJR is applicable in the present case.

To the first question

22 By its first question, the referring court essentially asks whether Article 10(1)(a) of the Regulation must be interpreted as meaning that the rules on subsidiary jurisdiction laid down therein apply only if the deceased had his habitual residence at the time of his death in a Member State not bound by that regulation or in a non-member country.

23 It should be noted that Article 4 of the EU Succession Regulation establishes a general rule of jurisdiction according to which the courts of the Member State in whose territory the deceased had his habitual residence at the time of his death have jurisdiction to rule on succession matters for the entire estate.

24 If the deceased had their habitual residence in a Member State, the courts of another Member State of which the deceased was a national may have jurisdiction in accordance with Art. 5-9 of the Regulation if the deceased chose the law of that Member State for the succession in accordance with Art. 22 of the Regulation.

25 Furthermore, Article 10(1)(a) of the Succession Regulation establishes a rule of subsidiary jurisdiction for decisions on succession matters for the entire estate in favour of the courts of the Member State in which the assets of the estate are located if the deceased was a national of that Member State at the time of death. However, it is clear from the wording of the first part of Article 10(1) of the Succession Regulation that subsidiary jurisdiction under this provision is only provided for in the event that the deceased did not have his habitual residence in a Member State at the time of his death.

26 In this regard, it should be noted that, by interpreting Article 10(1)(a) of the Succession Regulation in the judgment of 7 April 2022 - C-645/20, V A and Z A (ZEV 2022, 536, subsidiary jurisdiction in matters of succession), the Court clarified that both Article 4 and Article 10(1) of the Succession Regulation pursue the sole objective of defining uniform criteria of jurisdiction to rule on the entire succession. Article 10 of the Succession Regulation, which is part of Chapter II of the Regulation, which sets out a series of rules of jurisdiction in matters of succession, provides for subsidiary jurisdiction to the general jurisdiction established by the rule set out in Article 4 of the Succession Regulation, according to which the courts of the Member State in whose territory the deceased had his habitual residence have jurisdiction to rule on succession matters for the entire estate (ECJ ZEV 2022, 536 para. 30).

27 In this context, the ECJ has stated that there is no order of priority between the jurisdiction determined in Art. 4 of the Regulation and the jurisdiction determined in Art. 10 of the Regulation, as each relates to different situations. Similarly, the fact that the jurisdictions specified in Art. 10 of the Regulation are categorised as „subsidiary“ does not mean that this provision is less binding than the provision in Art. 4 of the Regulation on general jurisdiction. In this respect, the adversative wording in Art. 10 para. 1 Brussels I Regulation suggests that this provision refers to a rule of jurisdiction that is equivalent to the general rule of Art. 4 and supplements it, so that in the event of the inapplicability of the latter article, it must be examined whether the jurisdiction criteria provided for in Art. 10 Brussels I Regulation are fulfilled (ECJ ZEV 2022, 536 para. 33 and 34).

28 Furthermore, the ECJ has ruled that these rules on jurisdiction to rule on succession matters for the entire estate do not allow the parties - subject to the application of Art. 5 of the EU Succession Regulation in the event of a choice of the law applicable to the estate by the testator - to make a choice in favour of the jurisdiction of the courts of a Member State in accordance with their interests (ECJ ZEV 2022, 536 para. 32).

29 With regard to the background to this interpretation by the ECJ, it should be noted in particular that in para. 25 of the judgement in ZEV 2022, 536, the Court started from the premise that the deceased had his habitual residence in the United Kingdom, i.e. in a Member State that was not bound by the EU Succession Regulation even before it left the Union. With regard to the interpretation of Article 10 of the Regulation, it stated that the rules of jurisdiction provided for in that article may also apply if the deceased was habitually resident in a Member State of the Union which is not bound by that Regulation.

30 In the present case, it follows from the request for a preliminary ruling that E had his last habitual residence in Germany and that he did not choose a law applicable to the succession.

31 Against that background, it is clear from the unambiguous wording of Article 10(1)(a) of the Regulation that that provision does not apply to a situation, such as that at issue in the main proceedings, in which the deceased had his habitual residence in a Member State bound by that regulation at the time of his death.

32 In the light of the foregoing, the answer to the first question is that Article 10(1)(a) of the Regulation must be interpreted as meaning that the rule on subsidiary jurisdiction laid down therein applies only if the deceased had his habitual residence at the time of his death in a Member State not bound by that Regulation or in a third State.

The second question

33 By its second question, the referring court asks, in essence, whether EU law, in particular Article 267 TFEU, must be interpreted as precluding a national court which, after having its decision set aside by a higher court, gives a new decision from being bound, under national procedural law, by the legal assessment of that higher court where that assessment is incompatible with EU law, as interpreted by the Court of Justice.

34 According to established case law, national courts have an unrestricted right to refer cases to the ECJ pursuant to Art. 267 TFEU if they are of the opinion that a case pending before them raises questions of interpretation or validity of the provisions of EU law on which these courts must rule in the specific case (ECJ BeckRS 2010, 91158 para. 26).

35 Furthermore, it should be noted that a judgement of the ECJ in preliminary ruling proceedings is binding on the national court with regard to the interpretation or validity of the legal acts of the Union institutions at issue in the decision in the main proceedings (ECJ BeckRS 2010, 91158 para. 29 and the case law cited therein).

36 In that regard, the national court that exercises the option granted to it under Article 267(2) TFEU is bound by the CJEU's interpretation of the provisions in question for the purposes of deciding the main proceedings and may have to depart from the higher court's assessment if, in view of that interpretation, it considers that it does not comply with EU law (CJEU BeckRS 2010, 91158 para. 30; 9 September 2021 - C-107/19, Dopravní podnik hl. m. Prahy, ECLI:EU:C:2021:722, BeckRS 2021, 26150 para. 46).

37 Moreover, according to the principle of the primacy of Union law, the national court, which must apply the provisions of Union law within the scope of its jurisdiction, is obliged, if it cannot interpret a national provision in accordance with the requirements of Union law, to ensure the full effectiveness of these provisions by, if necessary, leaving any conflicting provision of national law unapplied on its own authority, without having to request or await the prior removal of this provision by legislative means or by any other constitutional procedure (in this sense, ECJ BeckRS 2010, 91158 para. 31 and the case law cited therein; ECJ BeckRS 2021, 26150 para. 45 and the case law cited therein).

38 In particular with regard to national provisions according to which a national court is unconditionally bound by the interpretation of Union law by another national court, the ECJ has already ruled that it is incompatible with Union law for a national court to be bound by the legal judgement of a higher national court in accordance with a national provision if this judgement of the higher court does not comply with Union law (ECJ BeckRS 2010, 91158 para. 32)

39 In these circumstances, the requirement to ensure the full effectiveness of EU law includes the obligation of national courts to amend established case law, if necessary, if it is based on an interpretation of national law that is incompatible with EU law (ECJ BeckRS 2021, 26150 para. 47).

40 Therefore, in the present case, the referring court is obliged to ensure the full effectiveness of Article 267 TFEU by, if necessary, disapplying the national procedural rules - in this case Article 386(6) of the Polish Code of Civil Procedure - which oblige it to follow the interpretation of the Szczecin Regional Court on its own authority, if that interpretation is not compatible with EU law as interpreted by the Court of Justice.

41 In the light of the foregoing, the answer to the second question is that EU law, in particular Article 267 TFEU, must be interpreted as precluding a national court which, after having had its decision set aside by a higher court, gives a new decision from being bound, under national procedural law, by the legal assessment of that higher court if that assessment is not compatible with EU law as interpreted by the Court of Justice.