0211 / 550 84 35-0

CJEU (Tenth Chamber), judgment of 30 March 2023 - C-651/21 (Declaration of waiver of an inheritance by an heir before the court of the Member State of his habitual residence - Subsequent entry of that declaration in the register of another Member State at the request of another heir)

Guiding principle:

Article 13 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction Article 13 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 must be interpreted as not precluding, where an heir has registered with a court of the Member State of his habitual residence a declaration of acceptance or waiver of the succession of a deceased person who was habitually resident in another Member State at the time of his death, another heir subsequently applying for registration of that declaration with the competent court of the latter Member State.

Reasons:

1 The request for a preliminary ruling concerns the interpretation of Art. 13 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 2012 L 201, p. 107).

2 The order was made in proceedings brought by M. Ya. M., in his capacity as heir, concerning an application for registration in the register of another Member State of a declaration of waiver of succession made by another heir before a court of the Member State of his habitual residence.

Legal framework

Union law

3 Recitals 7, 23, 32 and 67 of Regulation No 650/2012 state:

„(7) Obstacles to the free movement of persons who currently face difficulties in enforcing their rights in the context of a succession with cross-border implications should be removed in order to facilitate the smooth functioning of the internal market. In a European area of justice, citizens must be able to organise their succession in advance. The rights of heirs and legatees, other persons close to the deceased and creditors of the estate must be effectively safeguarded.

...

(23) In view of the increasing mobility of citizens, in order to ensure the proper administration of justice in the [European] Union and a genuine link between the estate and the Member State in which the succession is settled, this Regulation should provide for the habitual residence of the deceased at the time of death as a general connecting factor for the purposes of determining jurisdiction and the applicable law. ...

...

(32) In the interests of heirs and legatees habitually resident in a Member State other than the Member State in which the succession is being or is to be administered, this Regulation should enable any person entitled to do so under the law applicable to the succession to make declarations concerning the acceptance or waiver of an inheritance, legacy or reserved share or limiting his liability for the debts of the succession before the courts of the Member State of his habitual residence in the form provided for by the law of that Member State. This should not preclude such declarations from being made before other authorities of that Member State which are competent to receive declarations under national law. Persons wishing to avail themselves of the possibility of making declarations in the Member State of their habitual residence should themselves inform the court or authority dealing with the succession that such declarations have been made within a time limit provided for by the law applicable to the succession.

...

(67) A swift, straightforward and efficient settlement of a succession with cross-border implications within the Union requires that heirs, legatees, executors or administrators should be able to easily prove their status and/or their rights and powers in another Member State, for example in a Member State where assets of the estate are located. ...“

4 Chapter II („Competence“) of Regulation No. 650/2012 includes, inter alia, Articles 4 and 13 thereof.

5 Art. 4 („General competence“) of Regulation No. 650/2012:

„The courts of the Member State in whose territory the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole.“

6 Art. 13 („Acceptance or waiver of the succession, of a legacy or of a reserved share“) of Regulation No. 650/2012:

„In addition to the court having jurisdiction over the succession in accordance with this Regulation, the courts of the Member State of the habitual residence of a person who, under the law applicable to the succession, may make a declaration before a court concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration limiting the liability of that person for the debts of the estate, shall have jurisdiction to receive such declarations if, under the law of that Member State, such declarations may be made before a court.“

7 Chapter III („Applicable law“) of Regulation No. 650/2012 includes, inter alia, Articles 21 and 22 thereof.

8 Art. 21 („General conflict rule“) para. 1 of Regulation No. 650/2012 provides:

„Unless otherwise provided for in this Regulation, all succession shall be governed by the law of the State in which the deceased had his habitual residence at the time of death.“

9 Art. 22 („Choice of law“) para. 1 of Regulation No. 650/2012 provides:

„A person may choose the law of the country to which he or she belongs at the time of the choice of law or at the time of his or her death for the succession upon death.“

Bulgarian law

10 Article 48 of the Zakon za nasledstvo (Inheritance Act, DV No 22 of 29 January 1949), in the version applicable to the main proceedings, provides that the inheritance passes upon acceptance and that the acceptance is effective from the date on which the succession takes effect.

11 Pursuant to Art. 49 para. 1 of the Inheritance Act, acceptance may be made by written declaration addressed to the Rayonen sad (Rayon Court, Bulgaria) of the district in which the estate was opened. In this case, the acceptance is entered in a register provided for this purpose.

12 Pursuant to Art. 51 Para. 1 of the Inheritance Act, the Rayonen sad (Rayon Court) shall, at the request of any interested party and after summoning the beneficiary, set a deadline for the latter to submit a declaration on the acceptance or waiver of the inheritance. Art. 51 para. 2 of this law stipulates that if the heir does not make a statement within the deadline set, he or she loses the right to accept the inheritance. Pursuant to Art. 51 para. 3 of this Act, the declaration of the heir shall be entered in the register referred to in Art. 49 para. 1.

13 Pursuant to Art. 52 of the Inheritance Act, the renunciation of the inheritance is carried out in accordance with the procedure provided for in Art. 49 para. 1 of this Act and is entered in the register in accordance with this procedure.

14 Article 26(1) of the Grazhdanski protsesualen kodeks (Code of Civil Procedure, DV No 59 of 20 July 2007), in the version applicable to the main proceedings, provides that the parties to civil proceedings are the persons in whose name the proceedings are brought and those against whom they are brought. Under Article 26(2) of that law, except in the cases provided for by law, no one may assert the rights of others in his own name before a court.

15 According to Art. 531 para. 1 of the Code of Civil Procedure, proceedings in matters of voluntary jurisdiction are initiated by a written application from the party concerned.

16 According to Art. 533 of the Code of Civil Procedure, the court is obliged to examine of its own motion whether the conditions for the requested decision are met. It may, of its own motion, take evidence and consider facts that the applicant has not presented.

17 Article 39(1)(11) of the Pravilnik za administratsiata v sadilishtata (Regulation on court administration, DV No 68 of 22 August 2017), in the version applicable to the main proceedings, provides as follows

„The following registers are kept by the firm in electronic and/or paper form:

...

  1. a register on the acceptance or waiver of inheritances“.

The main proceedings and the questions referred

18 The applicant in the main proceedings, М. Ya. M., a Bulgarian national, declares that he is the heir of his grandmother M. T. G., a Bulgarian national, who died in Greece on 29 March 2019.

19 The applicant in the main proceedings made an application to the Sofiyski rayonen sad (Sofia District Court, Bulgaria), the referring court, for registration of the declaration of renunciation of the inheritance made by another heir, namely the deceased's husband. In that regard, the applicant submitted a certificate of inheritance issued by the Bulgarian authorities stating that the deceased had left her husband H. H., a Greek national, her daughter I. M. N. and the applicant in the main proceedings as heirs.

20 As part of these proceedings, the applicant submitted a protocol from the Eirinodikeio Athinon (Athens Justice of the Peace Court, Greece), according to which the deceased's husband had appeared before this court on 28 June 2019 and declared that he was waiving the inheritance. In addition, the deceased's husband had stated that she had last lived in Greece.

21 However, the referring court points out that it has not been made clear before it where the testator's last habitual residence was and that it can obtain information in that regard only after it has established that it has jurisdiction to register a declaration of renunciation of an inheritance previously lodged with the court of the Member State of the habitual residence of the renouncing heir.

22 Furthermore, it is apparent from the order for reference that the applicant in the main proceedings is not acting as the authorised representative of the deceased's spouse, but states that, in his capacity as another heir of equal rank, he has an interest in the registration of the declaration of renunciation of the inheritance at issue, since that registration would increase his share of the inheritance.

23 In those circumstances, the referring court wonders whether such a declaration must also be registered with the court having general jurisdiction to rule on succession matters in respect of the entire estate at issue, where that declaration was received by the court having jurisdiction under Article 13 of Regulation No 650/2012. Furthermore, the referring court has doubts as to whether it is possible to register a declaration of waiver of succession made by one of the heirs at the request of another heir.

24 According to the referring court, Article 13 of Regulation No 650/2012 may give rise to a conflict of jurisdiction, since, under the general provisions of that regulation, jurisdiction is determined by the place of the deceased's habitual residence and not that of the heir. Although, in principle, the court of the Member State of the deceased's last habitual residence has jurisdiction over an inheritance, it is possible that that court is unaware of the registration of declarations concerning the waiver or acceptance of that inheritance made by heirs before a court of the Member State of their habitual residence.

25 Regulation No 650/2012 thus creates a legal vacuum by providing for concurrent jurisdiction of the courts of different Member States, namely the court of the Member State of the last habitual residence of the deceased and the court of the Member State in which the heirs have their habitual residence, without, however, obliging the latter to inform the former of such declarations.

26 In that regard, the referring court points out that the absence of such an obligation to provide information is not consistent with the conception of the Bulgarian legislature and the case-law of the Bulgarian courts, according to which all declarations of acceptance or waiver of an inheritance must be recorded in the same place and in a single judicial register, on the basis of which appropriate enquiries may be made. This concept serves to ensure legal certainty, which in the present case results from the fact that all information on the acceptance or waiver of an inheritance can be kept in one and the same place.

27 Since Regulation No 650/2012 does not expressly provide for such an information obligation, the referring court raises the question as to the nature of the proceedings pending before it, in the context of which the applicant does not request the registration of his own waiver of the testator's succession, but of the corresponding declaration of one of the other heirs. However, Bulgarian law does not provide for such a procedure. The principle that each person represents his or her own rights in court does not permit the entry of declarations by third parties in the register provided for the acceptance or waiver of inheritances.

28 Therefore, the referring court asks, first, whether Article 13 of Regulation No 650/2012 implicitly prohibits a declaration of renunciation of an inheritance registered in the Member State of habitual residence of an heir from being subsequently registered by a court of another Member State, namely that in which the deceased was presumed to have had his habitual residence at the time of his death.

29 In that regard, the referring court is in favour of the solution of allowing the registration of several declarations of waiver of succession in several Member States. Such a solution does not significantly affect legal certainty since, first, the legal systems of the Member States contain rules governing the procedure to be followed in the event of several successive declarations of acceptance or waiver of an inheritance and, second, in the event of succession disputes, the court before which an application is pending may assess the legal effects of those declarations in the light of the dates on which they were made.

30 Second, the referring court wonders which person, after a declaration of acceptance or waiver of succession has been registered in one Member State, may subsequently apply for registration of that declaration in another Member State. This is important because under Bulgarian procedural law it is not possible to register an acceptance or waiver of an inheritance with a Bulgarian court that has already been registered in another Member State. This declaration can only be made personally by the heir. Thus, the question arises whether an heir may, in the Member State of the presumed habitual residence of the deceased, make an application for registration of the declaration of renunciation of the succession in question, made by another heir and registered in the Member State of the habitual residence of that heir, if that is not expressly provided for by the law of the first Member State.

31 According to the referring court, an application of Article 13 of Regulation No 650/2012 which is effective and consistent with the objective of that article, set out in recital 32 in the preamble to that regulation, namely that an heir should not be obliged to travel to the Member State of the deceased's habitual residence or to appoint an authorised representative in that Member State to declare the acceptance or waiver of an inheritance, requires that any heir may request the registration of a declaration of waiver of an inheritance previously made in another Member State. In the present case, the application of Bulgarian procedural law could thus be excluded because a derogation from the principle of procedural autonomy of the Member States of the Union would be necessary in order to ensure the effective application of Article 13.

32 If, on the other hand, the registration of a declaration of waiver of an inheritance were possible both in the Member State of habitual residence of the heir concerned and in the Member State in which the deceased had his habitual residence at the time of his death, but only on condition that the heir requests this personally, this condition would have the effect of undermining Article 13 of Regulation No 650/2012.

33 The referring court adds that there is a gap in Regulation No 650/2012 in so far as it does not require the court having jurisdiction to receive a declaration of waiver of succession to inform the court having jurisdiction to rule on the succession as a whole of that declaration. Therefore, in order to prevent disputes between the heirs, but also to respect the will of the disclaiming heir, each of the heirs must be authorised to have this will entered in the registers of the place of the deceased's last habitual residence.

34 In those circumstances, the Sofiyski rayonen sad (Sofia District Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

  1. Is Article 13 of Regulation No 650/2012, read in conjunction with the principle of the protection of legal certainty, to be interpreted as precluding, after an heir has already registered with the court of the State in which he has his habitual residence the acceptance or waiver of the succession of a deceased person who had his habitual residence in another Member State at the time of his death, a further application for registration of the waiver or acceptance in the latter State?
  2. If the answer to the first question is that further registration is authorised: Is Article 13 of Regulation No 650/2012 in conjunction with the principles of the protection of legal certainty and the effective enforcement of Union law and the obligation for Member States to cooperate under Art.4 Abs. 3 Is that provision to be interpreted as authorising an application for registration of the renunciation of the succession of a joint deceased by an heir in the Member State of his habitual residence by another heir who is resident in the State in which the deceased had his habitual residence at the time of his death, notwithstanding the fact that the procedural law of the latter State does not provide for the possibility of registering the renunciation of the succession in another person's name?

On the questions referred

Preliminary remarks

35 Firstly, it should be noted that the order for reference indicates that, according to the information provided by the deceased's spouse, her last habitual residence was in Greece. This would mean that the Greek courts would have jurisdiction to rule on succession matters for the entire estate in question, since Greek law would, in principle, be applicable, unless the deceased had chosen the law of the Member State to which she belonged, i.e. Bulgarian law, as the law applicable to her succession, in accordance with Article 22(1) of Regulation No 650/2012.

36 However, the referring court points out that it does not have precise information on the deceased's last habitual residence and that, in order to obtain such information, it must first establish that it has jurisdiction to register a declaration of renunciation of the succession before the court of the Member State in which the renouncing heir is habitually resident.

37 The Member State whose courts have general jurisdiction under Article 4 of Regulation No 650/2012 therefore does not appear to be clearly identifiable in the present case. However, as the Advocate General stated in essence in point 39 of his Opinion, if it were found that the deceased's last habitual residence was in Greece, it would be for the courts of that Member State to rule on all matters relating to the succession at issue under that provision, since the referring court, as the court of the Member State of habitual residence of an heir, would only have jurisdiction to receive any declarations under Article 13 of that regulation.

38 In the light of those considerations, it is for the referring court first to determine the place where the deceased had her habitual residence before examining the conditions under which, at the request of an heir, a declaration of renunciation of the succession by another heir may be registered in the Member State of that heir's habitual residence.

39 Should it transpire that the provisions of Bulgarian law prevent the national court from examining its jurisdiction to rule on the succession at issue, that court would have to disapply them. According to the Court's settled case-law, the national court, which is required to apply the provisions of EU law within the scope of its jurisdiction, is required to ensure the full effectiveness of those rules by disapplying, if necessary, of its own motion any conflicting provision (see, to that effect, judgment of 26 February 2013, Åkerberg Fransson, C-617/10, ECLI:EU:C:2013:105, para. 45 and the case law cited there).

On the merits

40 By its questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 13 of Regulation No 650/2012 precludes a situation in which, where an heir has registered a declaration of acceptance or waiver of the succession of a deceased person who was habitually resident in another Member State at the time of his death with a court of the Member State of his habitual residence, another heir subsequently requests that that declaration be registered with the competent court of the latter Member State.

41 According to settled case-law of the Court, it follows from the requirements of both the uniform application of EU law and the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must, as a general rule, be given an autonomous and uniform interpretation throughout the Union, having regard not only to its wording but also to the context of the provision and the objective pursued by the legislation in question (judgment of 2 June 2022, T.N. and N.N. [Declaration on the renunciation of the inheritance], C-617/20, ECLI:EU:C:2022:426, para. 35 and the case law cited there).

42 As regards, first, the wording of Article 13 of Regulation No 650/2012, it must be recalled that, under that provision, the courts of the Member State of the habitual residence of a person who, under the law applicable to the succession, may make a declaration of acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration limiting the liability of the person concerned for the debts of the estate, have jurisdiction to receive such declarations, in addition to the court having jurisdiction under that regulation.

43 As regards, secondly, the context of Article 13 of Regulation No 650/2012, it should be noted that that article forms part of Chapter II of that regulation, which governs all matters of jurisdiction in matters of succession. Article 13 of Regulation No 650/2012 thus provides for an alternative forum intended to enable heirs who are not habitually resident in the Member State whose courts have jurisdiction over the succession in accordance with the general rules laid down in Articles 4 to 11 of that regulation to submit their declarations of acceptance or waiver of succession to a court of the Member State in which they are habitually resident (judgment of 2 June 2022, T. N. and N. N. [Declaration of renunciation of the succession], C-617/20, ECLI:EU:C:2022:426, para. 37).

44 As regards, thirdly, the objectives pursued by Regulation No 650/2012, recital 7 in the preamble to that regulation states that it is intended to remove obstacles to the free movement of persons in the enforcement of their rights in connection with a succession having cross-border implications, in order to facilitate the proper functioning of the internal market. In particular, the rights of heirs and legatees and of other persons close to the deceased and of the creditors of the estate must be effectively safeguarded in the European judicial area (see, to that effect, judgment of 2 June 2022, T. N. and N. N. [Declaration on the waiver of the inheritance], C-617/20, ECLI:EU:C:2022:426, para. 42 and the case law cited there).

45 In that regard, the Court has already held that Article 13 of Regulation No 650/2012, in the light of recital 32 in the preamble thereto, according to which that provision serves the interests of heirs and legatees habitually resident in a Member State other than that in which the succession is or is to be administered, is intended to simplify the administrative procedures of heirs and legatees by derogating from the rules of jurisdiction laid down in Articles 4 to 11 of that regulation (see, to that effect, judgment of 2 June 2022, T.N. and N.N. [Declaration on the renunciation of the inheritance], C-617/20, ECLI:EU:C:2022:426, para. 41 and the case law cited there).

46 As regards, in particular, the question of the transmission of those declarations of acceptance or waiver of succession to the court having jurisdiction in respect of the succession, it should be noted that, according to the last sentence of recital 32 in the preamble to Regulation No 650/2012, „[t]hose persons who wish to avail themselves of the possibility of making declarations in the Member State of their habitual residence ... should themselves inform the court or authority before which the succession is or will be brought that such declarations have been made, within a time limit provided for by the law applicable to the succession“.

47 It is apparent at first sight from the last sentence of recital 32 in the preamble to Regulation No 650/2012 that the EU legislature considers it necessary to bring to the attention of the court having jurisdiction over the succession the declaration of renunciation of the succession made before a court of the Member State in which the renouncing heir has his habitual residence. However, it should be noted that neither Article 13 nor Article 28 of that regulation provides for a mechanism whereby such declarations are to be transmitted by the court of the Member State of the habitual residence of the waiving heir to the court having jurisdiction over the succession. This 32nd recital nevertheless assumes that those persons who have made use of the possibility of making such declarations in the Member State of their habitual residence are responsible for informing the authorities dealing with the succession that such declarations have been made (see, to that effect, judgment of 2 June 2022, T. N. and N. N. [Declaration on the renunciation of the inheritance], C-617/20, ECLI:EU:C:2022:426, para. 47).

48 Even if it is true that the waiving heir has every interest in informing the court with jurisdiction over the succession of such a declaration in order to prevent that court from making a substantively incorrect decision that is contrary to the declared will of that heir, the provisions of Regulation No 650/2012 do not impose any mandatory obligation on him in this respect. Therefore, it cannot be assumed that a waiving heir must always inform this court of the existence of this declaration.

49 In these circumstances, a broad interpretation is required with regard to the transmission of declarations pursuant to Article 13 of Regulation No 650/2012 to the court having jurisdiction over the succession. The purpose of that transmission is to enable that court to take cognisance of such a declaration and to take it into account in the settlement of the succession. It does not matter how this declaration is brought to the attention of the referring court.

50 Regulation No 650/2012 does not preclude an heir who has registered with a court of the Member State of his habitual residence a declaration of waiver of the succession of a deceased person who, at the time of his death, had his habitual residence in another Member State, from subsequently requesting the registration of that declaration in the latter Member State. It must be assumed that an heir who can benefit from such a declaration must be able to inform the court competent for the succession of this declaration in order to facilitate the settlement of the estate if the waiving heir has not done so himself.

51 That interpretation is confirmed by the objectives of Regulation No 650/2012, referred to in paragraph 44 of the present judgment, which consist, inter alia, in removing obstacles to the free movement of persons wishing to enforce their rights in connection with a succession with cross-border implications.

52 In that regard, it should be emphasised that informing the court having jurisdiction over the succession of the existence of a declaration of waiver of that succession made by an heir before the court of the Member State of his habitual residence within the meaning of Article 13 of Regulation No 650/2012 does not constitute a declaration on behalf of another person, but merely a notification of that declaration to the first-mentioned court.

53 Moreover, it is irrelevant in that regard that the legislation of a Member State, such as that at issue in the main proceedings, provides for that declaration to be entered in a judicial register so that all declarations of acceptance or waiver of an inheritance are brought together in the same place and in a single judicial register, on the basis of which the relevant searches could be carried out.

54Furthermore, in so far as the referring court points out that Bulgarian law does not allow declarations by other persons to be entered in the register for the acceptance and waiver of successions, it must be held, in the light of the case-law of the Court cited in paragraph 39 of the present judgment, that it is for that court to ensure the full effectiveness of Article 13 of Regulation No 650/2012 by allowing the declaration of waiver of succession at issue in the main proceedings to be communicated to it by an heir other than the person who made that declaration. 13 of Regulation No 650/2012 by allowing the declaration of renunciation of succession at issue in the main proceedings to be sent to it by an heir other than the one who made that declaration in the Member State of his habitual residence and, where appropriate, by disapplying any conflicting provision of national law.

55 In the light of the foregoing, the answer to the questions referred is that Article 13 of Regulation No 650/2012 does not preclude an heir who has registered with a court of the Member State of his habitual residence a declaration of acceptance or waiver of the succession of a deceased person who was habitually resident in another Member State at the time of his death from subsequently applying for registration of that declaration with the competent court of the latter Member State.

Costs

56 For the parties to the main proceedings, the proceedings are part of the proceedings pending before the national court; the decision on costs is therefore a matter for that court. The costs incurred by other parties in submitting observations to the Court are not recoverable.

For these reasons, the Court (Tenth Chamber) ruled in favour of the applicant:

Art. 13 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

must be interpreted as not precluding, where an heir has registered with a court of the Member State of his habitual residence a declaration of acceptance or waiver of the succession of a deceased person who, at the time of his death, had his habitual residence in another Member State, another heir subsequently applies for registration of that declaration with the competent court of the latter Member State.

Signatures