ECJ, judgement of. 2.6.2022 - C -617/20 (Conditions for the validity of an intestate succession declared before the court of a Member State)

Central standards: EuErbVO Art. 13, 28

Articles 13 and 28 of the Regulation must be interpreted as meaning that a declaration of renunciation of the succession made by an heir before a court of the Member State of his habitual residence is deemed to be valid as regards its form if the formal requirements applicable before that court have been complied with, without it being necessary for that validity that it fulfils the formal requirements which must be complied with under the law applicable to the succession.

Facts of the case:

The reference for a preliminary ruling has been made in proceedings brought by TN and NN concerning an application for the grant of a community certificate of inheritance in respect of the estate of ... (= the testator - E), the husband of EG and uncle of TN and NN (= E's nephews).

Editor's note: The following is a reproduction of Recitals 7, 32 and 67 of the EU Succession Regulation, Articles 4, 13, 21, 23 and 28 of the EU Succession Regulation and Sections 1942-1945 of the German Civil Code.

E, a Dutch national who had his last habitual residence in Germany, died on 21 May 2018 in Bremen. On 21 January 2019, EG, who resided in Germany, applied to the Bremen District Court, the court responsible for deciding on E's estate, for a certificate of inheritance stating that she had inherited 3/4 of E's estate by intestate succession and that E's nephews, who both lived in the Netherlands, had each inherited 1/8 of this estate.

On 19 June 2019, the AG informed E's nephews about the probate proceedings based on intestate succession and asked them to submit certain documents for the settlement of the estate. On 13 September 2019, the nephews submitted a declaration of renunciation of the inheritance to the Rechtbank Den Haag (District Court of The Hague), which was entered in the local probate register on 30 September 2019. On 22 November 2019, the Bremen District Court sent the nephews the application for a certificate of inheritance and asked them to comment.

In a letter dated 13 December 2019, written in Dutch, they submitted copies of the documents that had been prepared by the Rechtbank Den Haag following their declarations regarding the waiver of the inheritance to the AG. On 3 January 2020, the AG informed the nephews that their letter, including the documents submitted, could not be taken into account due to the lack of a translation into German.

In a letter dated 15 January 2020, written in German, NN informed the AG that his brother and he had renounced the inheritance, that the relevant declaration had been registered in Dutch by the competent judicial authorities in accordance with Union law and that therefore no translation of the relevant documents into German was required. In response, the referring court replied that it was necessary to translate the relevant documents in question and to comply with the time limits set for the waiver of succession.

On 27 February 2020, the AG established the facts necessary to issue the certificate of inheritance corresponding to EG's application and ruled that the inheritance was deemed to have been accepted by E's nephews.

The nephews contested this decision and applied for an extension of the deadline to submit further evidence. On 30 July 2020, they sent the AG colour copies of the documents issued by the Rechtbank Den Haag and their translation into German. After the AG objected to the nephews that the originals of these documents had not been sent, the originals were received on 17 August 2020.

By order of 2 September 2020, the AG did not dismiss the appeal and referred the proceedings to the referring court, the OLG Bremen, for a decision; the AG found that it was to be assumed that the nephews had accepted the inheritance, as they had not waived the inheritance to E in due time. 

The referring court raises the question of the conditions under which a declaration of renunciation of an inheritance, which, under the law applicable to the succession, must be lodged within a specified period with the court having jurisdiction over the succession, is deemed to have been made in good time if the heir declares the renunciation of the inheritance before the competent court for the place of his habitual residence in accordance with Articles 13 and 28 of the EU Succession Regulation.

In this context, the referring court points out that there are differing views in German literature and case-law on the validity of the declaration of renunciation of an inheritance if that declaration is made before a court of a Member State other than the court which has jurisdiction in principle over the succession. According to the prevailing opinion in literature and case law, the submission of the declaration of renunciation before the court of the Member State of the heir's habitual residence should already lead to the validity of the renunciation at the court of the succession. According to another opinion, the declaration of renunciation of the inheritance is only effective if it is forwarded in due form to the court with jurisdiction over the succession or at least brought to the attention of this court. 

If one were to follow the view set out in para. 26 of the present judgment, the declaration in question in the main proceedings regarding the waiver of the inheritance would be deemed to have become effective on the day on which it was submitted by E's nephews to the Rechtbank Den Haag, i.e. on 13 September 2019. In this case, the nephews would therefore have complied with the six-month period under Section 1944 para. 3 BGB for the waiver of the inheritance, the term of which begins when the heir becomes aware of the accrual of the inheritance.

According to the other opinion, set out in para. 27 of the present judgement, the validity of the declaration in question concerning the succession could depend on the time at which the court with jurisdiction over the succession became aware of this declaration. However, the question arises as to which formal requirements the validity of such a declaration is subject to.

In these circumstances, the OLG Bremen decided to stay the proceedings and refer the following questions to the ECJ for a preliminary ruling:

1. Does the declaration of renunciation made by an heir in the court of a Member State having jurisdiction over his habitual residence in accordance with the formal requirements applicable in that State replace the declaration of renunciation to be made in the court of another Member State having jurisdiction over the succession in such a way that it is deemed to have been validly made at the time the declaration was made (substitution)?

2. In the event that the first question is answered in the negative: In addition to the formal declaration to the court with jurisdiction for the habitual residence of the waiving party, is it necessary for the waiving party to inform the court with jurisdiction for the succession by reason of death that the declaration has been made in order for the waiver to take effect?

3. In the event that the first question is answered in the negative and the second question in the affirmative:

(a) Is it necessary for the declaration of renunciation to take effect, in particular in order to comply with the time limits applicable in its place for making that declaration, that the court having jurisdiction over the succession be addressed in the language applicable in its place of jurisdiction?

(b) Is it necessary, in order for the declaration of renunciation to take effect, in particular in order to comply with the time-limits for making that declaration applicable in his place, that the court having jurisdiction over the succession must be provided with the original, with a translation, of the documents relating to the renunciation issued by the court having jurisdiction over the habitual residence of the renouncing party?

Reasons:

On the questions referred

Preliminary remarks

31 According to settled case law of the Court of Justice, it is the task of the Court of Justice, within the framework of the cooperation procedure between the national courts and the Court of Justice introduced by Article 267 TFEU, to provide the national court with an answer that is relevant to the decision of the proceedings pending before it. To this end, the Court must, if necessary, reformulate the questions referred to it (CJEU of 26 October 2021 - C-109/20, PL Holdings, ECLI:EU:C:2021:875, BeckRS 2021, 31827 para. 34 and the case law cited therein).

32 This reference for a preliminary ruling concerns the conditions that must be met for a declaration of renunciation of an inheritance within the meaning of Articles 13 and 28 of the EU Succession Regulation, made by the renouncing heir before the court of the Member State of his habitual residence, to be deemed to have been validly made. In this context, the referring court wishes to know, in particular, whether and, if so, when and how such a declaration must be brought to the attention of the court having jurisdiction over the succession.

33 It is apparent from the order for reference that, on 13 September 2019, the nephews of E declared before a court of the Member State of their habitual residence, namely the Rechtbank Den Haag, that they were waiving their succession to E. On 13 December 2019, they informed the German court responsible for the succession by a letter written in Dutch that this declaration had been made and enclosed copies of the documents drawn up by the Dutch court. On 15 January 2020, they again informed the German court of the existence of the declaration in a letter now drafted in German. However, according to the request for a preliminary ruling, the German translation and the originals of the documents drawn up by the Dutch court were only received by the German court on 17 August 2020, i.e. after the deadline stipulated by the applicable law on succession had expired.

34 In those circumstances, it must be held that, by its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 13 and 28 of the Regulation must be interpreted as meaning that a declaration of renunciation of succession made by an heir before a court of the Member State of his habitual residence is deemed to be valid, as regards its form, if the formal requirements applicable before that court have been complied with, without it being necessary, in order for that declaration to be valid, that it fulfils the formal requirements laid down by the law applicable to the succession. The question is whether Articles 13 and 28 of the Regulation must be interpreted as meaning that a declaration of waiver of succession made by an heir before a court of the Member State of his habitual residence is deemed to be valid as regards its form if the formal requirements applicable before that court have been complied with, without it being necessary for that validity that it fulfils the formal requirements which must be complied with under the law applicable to the succession.

To answer the questions referred

35 According to established case law of the Court of Justice, it follows from the requirements of both the uniform application of Union law and the principle of equality that the terms of a provision of Union law that does not expressly refer to the law of the Member States in order to determine its meaning and scope must generally be given an autonomous and uniform interpretation throughout the Union, which must be found taking into account not only its wording but also the context of the provision and the objective pursued by the provision in question (ECJ v. 1.3.2018 - C-558/16, Mahnkopf, ECLI:EU:C:2018:138, ZEV 2018, 205, Bandel, para. 32; 9.9.2021 - C-277/20, UM, ECLI:EU:C:2021:708, ZEV 2021, 717, J.-P. Schmidt, para. 29).

Interpretation of Art. 13 and 28 EuErbVO ...

36 As regards, first, the wording of the provisions at issue and their context, it should be noted that Article 13 of the Regulation forms part of Chapter II thereof, which governs all the courts having jurisdiction in matters of succession. 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 concerning the 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.

37 Art. 13 of the EU Succession Regulation thus provides for an alternative place of jurisdiction which is intended to enable heirs who do not have their habitual residence in the Member State whose courts have jurisdiction over the succession in accordance with the general rules of Art. 4-11 of the EU Succession Regulation to submit their declarations on the acceptance or waiver of the succession before a court of the Member State in which they have their habitual residence.

38 This rule on jurisdiction is supplemented by a conflict-of-law rule in Article 28 of the EU Succession Regulation, which is part of Chapter III of this Regulation on the applicable law and specifically regulates the formal validity of such declarations. According to this article, these declarations are valid as regards their form if they fulfil the requirements of the law applicable to the succession (lex successionis) (Art. 28(a)) or the requirements of the law of the State in which the person making the declaration has his habitual residence (Art. 28(b)).

39 It is clear from the wording of Article 28 of the EU Succession Regulation that this provision is designed to recognise a declaration of waiver of succession as valid if either the conditions laid down by the law of succession, if applicable, or the conditions laid down by the law of the State in which the waiving heir has his habitual residence, if that law is applicable, are met.

40 In this respect, it follows from Article 13 in conjunction with Article 28 of the EU Succession Regulation that there is a close connection between these two provisions, so that the jurisdiction of the courts of the Member State in which the heir has his habitual residence to receive declarations concerning the waiver of the succession depends on the condition that the succession law applicable in that State provides for the possibility of making such a declaration before a court. If this condition is met, all acts to be performed before a court of the Member State in which the heir who wishes to make such a declaration has his habitual residence shall be governed by the law of that Member State.

... and Recital 32 of the EU Succession Regulation

41 Secondly, as regards the objectives pursued by the Succession Regulation, this understanding of Articles 13 and 28 of the Regulation is confirmed by Recital 32 thereof, according to which these provisions are intended to „(take account of) the interests of heirs and legatees habitually resident in a Member State other than that in which the succession is being or is to be administered“. To that end, according to Recital 32, this Regulation should enable any person who is entitled to do so under the law applicable to the succession to make certain declarations concerning the succession, including the waiver thereof, before the courts of the Member State of his habitual residence in the form provided for by the law of that Member State. In this respect, the Court of Justice has already clarified that Art. 13 of the EU Succession Regulation in conjunction with Recital 32 aims to simplify the official channels of heirs and legatees by deviating from the rules of jurisdiction in Art. 4-11 of the EU Succession Regulation (ECJ of 21 June 2018 - C-20/17, Oberle, ECLI:EU:C:2018:485, ZEV 2018, 465 mAnm Zimmermann, para. 42).

42 This interpretation is further confirmed by the fact that, pursuant to Recital 7, the EU Succession Regulation is intended to remove obstacles to the free movement of persons in the enforcement of their rights in connection with a succession with cross-border implications in order to facilitate the smooth functioning of the internal market. In particular, the rights of heirs and legatees as well as other persons close to the deceased and the creditors of the estate must be effectively safeguarded in the European judicial area (idS ECJ ZEV 2018, 205 para. 35; of 1 July 2021 - C-301/20, Vorarlberger Landes- und Hypotheken-Bank, ECLI:EU:C:2021:528, ZEV 2021, 581Anm Zander, paras. 27 and 34).

43 Thus, Article 28(b) of the Regulation guarantees the effectiveness of this possibility in relation to declarations of waiver of succession before the court having jurisdiction under Article 13 of the Regulation, which is available to the heir who has his habitual residence in a Member State other than that of the court having jurisdiction over the succession.

44 In that regard, it should be noted that, in view of the limited scope of the jurisdiction of the court referred to in Article 13 of the Regulation, any other interpretation - which would amount to subjecting the formal validity of a declaration of renunciation of succession to restrictions, in particular by making it subject to the formal requirements of the law applicable to the succession - would have the effect of depriving the provisions of Articles 13 and 28(b) of the Regulation of any practical effect and would therefore undermine the objectives of that Regulation and infringe the principle of legal certainty.

45 Consequently, compliance with the objective of the EU Succession Regulation, which is to enable heirs to make declarations concerning the waiver of succession in the Member State of their habitual residence, presupposes that, in order for their declarations to be considered valid, those heirs do not have to comply with formalities other than those required by the law of the Member State in which the declaration is made before the courts of other Member States.

Requirements for the submission of a declaration of cancellation

46 As regards the question of the transmission of these declarations to the court having jurisdiction over the succession, it should be noted that, according to the last sentence of recital 32, „(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 laid down by the law applicable to the succession“.

47 This last sentence of Recital 32 suggests at first glance that the EU legislature considers it necessary to bring to the attention of the court having jurisdiction over the succession the declaration of waiver of succession made before a court of the Member State in which the waiving heir has his habitual residence. However, it should be noted that neither Article 13 nor Article 28 of the Regulation provides for a mechanism under which such declarations would have 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. Recital 32 assumes, however, 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.

48 Since there is no uniform system in European Union law providing for the transmission of declarations relating to the succession to the court having jurisdiction in respect of the succession, the last sentence of recital 32 must be understood as meaning that it is for the person who has made a declaration renouncing the succession to take the necessary steps to ensure that the court having jurisdiction in respect of the succession is aware that a valid declaration has been made. If these steps are not taken within the time limit laid down by the law applicable to the succession, the validity of such a declaration may not, however, be called into question.

49 Therefore, the declaration of renunciation of the succession made by an heir before the court of the Member State of his habitual residence in compliance with the formal requirements applicable before that court, without such a declaration being subject to additional formal requirements of the law applicable to the succession, should produce legal effects before the court having jurisdiction as to the succession, provided that the latter court has become aware that such a declaration has been made.

50 In the present case, it is apparent from the information provided by the referring court that E's nephews made a declaration before a Netherlands court, in compliance with the formal requirements applicable before that court, concerning the renunciation of E's inheritance and that the AG Bremen became aware that that declaration had been made prior to its decision on the succession. It is clear from this that the AG should have taken this declaration into account irrespective of whether the further requirements or clarifications deemed necessary by the German court in order to consider such a declaration valid were complied with. Indeed, as is clear from Recital 67, „(a)n expeditious, straightforward and efficient settlement of a succession with cross-border implications within the Union ... presupposes“ that the heirs should be able to easily prove their status and/or rights and powers in another Member State.

51 In the light of all the foregoing considerations, the answer to the questions referred is that Articles 13 and 28 of the Regulation must be interpreted as meaning that a declaration of renunciation of succession made by an heir before a court of the Member State of his habitual residence is deemed to be valid as regards its form if the formal requirements applicable before that court have been complied with, without it being necessary for that validity that it fulfil the formal requirements which must be complied with under the law applicable to the succession.