ECJ , judgement of 16.07.2020 - C-80/19
Central standards: Art. 63, Art. 65 para. 1, Art. 69 and Art. 70 para. 3 of the EU Succession Regulation
(European Certificate of Succession, validity)
Author's lead sentences (originals abridged):
1. a certified copy of a European Certificate of Succession marked „unlimited“ shall be valid for a period of six months from the date of issue and shall produce its effects within the meaning of Article 69 of this Regulation if it was valid when it was first presented.
2. the European Certificate of Succession shall have effect vis-à-vis all persons named in the list, including those who have not applied for its issue themselves.
For the reasons:
1 This reference for a preliminary ruling concerns the interpretation of Article 63, Article 65(1), Article 69 and Article 70(3) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law and the recognition and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 1). The request for a preliminary ruling concerns the interpretation of Articles 63, 65(1), 69 and 70(3) 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 (OJ 2012 L 201, p. 107, and corrigenda OJ 2012 L 344, p. 3, OJ 2013 L 41, p. 16, OJ 2013 L 60, p. 140, and OJ 2014 L 363, p. 186).
2 It was issued in the context of a dispute between UE and HC, son and daughter of the deceased VJ, who had his last habitual residence in Spain, and Vorarlberger Landes- und Hypothekenbank AG, a bank domiciled in Austria, concerning an application for the return of a sum of money and securities which that bank had deposited in court.
3 Recitals 7, 67, 71 and 72 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.
(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 succession assets are located. To that end, this Regulation should provide for the introduction of a harmonised certificate, the European Certificate of Succession (‘the Certificate'), to be issued for use in another Member State. ...
(71) The Certificate should have the same effect in all Member States. Although it should not in itself constitute an enforceable title, it should have probative value and should be presumed to state correctly the facts established under the law applicable to the succession or any other law applicable to specific facts, such as the substantive validity of a disposition of property upon death. ... A person who makes payments or transfers property to a person designated in the Certificate as authorised to receive such payments or property as an heir or legatee should be afforded adequate protection if he has acted in good faith in reliance on the accuracy of the information contained in the Certificate. The same protection should be afforded to a person who, relying on the accuracy of the information contained in the Certificate, acquires or receives estate property from a person designated in the Certificate as authorised to dispose of the property. Protection should be afforded if valid certified copies are provided. ...
(72) The competent authority should issue the Certificate upon request. The issuing authority should retain the original of the Certificate and issue one or more certified copies to the applicant and any other person demonstrating a legitimate interest. ...“
4 Art. 62 („Introduction of a European Certificate of Succession“) of this Regulation reads:
„This Regulation establishes a European Certificate of Succession (hereinafter referred to as ‚the Certificate‘), which shall be issued for use in another Member State and shall have the effects set out in Article 69.
(2) The use of the certificate is not mandatory.
(3. The Certificate shall not replace national documents used for similar purposes in the Member States. However, once issued for use in another Member State, the Certificate shall produce the effects specified in Article 69 in the Member State whose authorities issued it in accordance with this Chapter.“
5 Art. 63 („Purpose of the certificate“) of the Ordinance provides:
„(1) The Certificate is intended for use by heirs, by legatees directly entitled to the estate and by executors or administrators of the estate who need to invoke their status or exercise their rights as heirs or legatees or their powers as executors or administrators of the estate in another Member State.
(2) The certificate may in particular be used as evidence for one or more of the following specific aspects:
a) the legal status and/or rights of each heir or, where applicable, legatee named in the certificate and their respective share of the estate;
...“
6 Article 65 („Application for the issue of a certificate“) of Regulation No 650/2012 provides:
„The Certificate shall be issued at the request of any person referred to in Article 63(1) (hereinafter referred to as ‚the applicant‘).
...
3. The application shall contain the information listed below to the extent that it is known to the applicant and is required by the issuing authority to describe the facts which the applicant seeks to have certified and shall be accompanied by all relevant documents, either originals or copies which fulfil the conditions necessary to establish their authenticity, without prejudice to Article 66(2):
...
e) Information on other possible beneficiaries based on a disposition of property upon death and/or by intestate succession: surname and first name(s) or name of the corporate body, identification number (if available) and address;
...“
7 Article 68 („Content of the certificate of succession“) of Regulation No 650/2012 states:
„The certificate shall contain the following information to the extent necessary for the purposes for which it is issued:
...
g) Details of the authorised persons: surname (if applicable, maiden name), first name(s) and identification number (if available);
...“
8 Art. 69 („Effects of the Certificate“) of this Ordinance provides:
„(1) The Certificate shall produce its effects in all Member States without any special procedure being required.
(2) It shall be presumed that the Certificate accurately states the facts established in accordance with the law applicable to the succession or any other law applicable to specific facts. It shall be presumed that the person named in the Certificate as heir, legatee, executor or administrator of the estate has the status and/or rights or powers specified in the Certificate and that those rights or powers are not subject to any conditions and/or limitations other than those specified in the Certificate.
(3) Any person who, on the basis of the information contained in the Certificate, makes payments or transfers assets to a person designated in the Certificate as authorised to receive the same shall be deemed to have made payments or transferred assets to a person authorised to receive the payments or assets, unless he knew that the content of the Certificate was incorrect or was unaware of this due to gross negligence.
(4) If a person designated in the Certificate as having the right to dispose of estate property disposes of estate property in favour of another person, that other person shall, if he acts on the basis of the information contained in the Certificate, be deemed to have acquired the property from a person having the right to dispose of the property concerned, unless he knew that the content of the Certificate was incorrect or was unaware of it as a result of gross negligence.
5. The Certificate shall constitute a valid document for the registration of the succession property in the relevant register of a Member State, without prejudice to Article 1(2)(k) and (l).“
9 Art. 70 („Certified copies of the certificate“) of the Ordinance provides:
„(1) The issuing authority shall retain the original of the Certificate and issue one or more certified copies to the applicant and any other person who can demonstrate a legitimate interest.
2. The issuing authority shall, for the purposes of Article 71(3) and Article 73(2), keep a list of persons to whom certified copies have been issued in accordance with paragraph 1.
(3) The certified copies shall be valid for a limited period of six months, which shall be indicated on the certified copy by an expiry date. In duly justified exceptional cases, the issuing authority may decide on a longer period of validity. Upon expiry of that period, any person holding a certified copy shall apply to the issuing authority for an extension of the period of validity of the certified copy or for a new certified copy in order to be able to use the certificate for the purposes specified in Article 63.“
10 Art. 71 („Correction, amendment or revocation of the certificate“) para. 3 of the Ordinance provides:
„The issuing authority shall immediately inform all persons to whom certified copies of the Certificate have been issued in accordance with Article 70(1) of any rectification, amendment or cancellation of the Certificate.“
The main proceedings and the questions referred
11 Vorarlberger Landes- und Hypothekenbank had arranged for the judicial custody of a deposit consisting of a sum of money and securities after HC and UE and their father VJ had applied for the surrender of these assets and raised competing claims to them, the merits of which were unclear.
12 VJ, who had his last habitual residence in Spain, died on 5 May 2017. The settlement of his estate was carried out before a notary in accordance with Spanish law.
13 HC and UE requested the delivery of the court order and submitted to the District Court of Bregenz (Austria) a certified copy of a European Certificate of Succession issued by this Spanish notary at the request of HC in accordance with Article 62 et seq. of Regulation No. 650/2012 as proof of their status as heirs of VJ. This copy in the form of a „Form V“ pursuant to Commission Implementing Regulation (EU) No 1329/2014 of 9 December 2014 laying down the forms referred to in Regulation No 650/2012 (OJ 2014, L 359, p. 30) bears the words „unlimited“ under the heading „Valid until“. UE is mentioned by name in this certificate alongside the name of his sister as half heir.
14 This application was rejected by the Bregenz District Court. The Regional Court of Feldkirch (Austria) dismissed the appeal against the first instance decision. It was of the opinion that, firstly, only the person who had applied for the issue of the European Certificate of Succession could prove his entitlement by presenting this certificate, secondly, that the issue of a copy of such a certificate without a time limit was contrary to the requirement to provide for a limited period of validity of six months for the processing of this copy and, thirdly, that this copy must be valid at the time of the decision of the court of first instance.
15 An appeal on a point of law was lodged with the referring court, the Supreme Court (Austria), against the decision of the Regional Court of Feldkirch. Under Austrian law, the delivery of the court order requires a joint written application by all parties („opposing parties“) as long as no final court decision has been issued. Therefore, when issuing its decision, the referring court raises the question of whether a copy of a European Certificate of Succession can be used to prove the legitimacy of the heirs.
16 Specifically, the Supreme Court firstly expresses doubts as to the validity of a certified copy that does not contain an expiry date. That situation is not provided for in Regulation No 650/2012 and there is no case-law of the Court of Justice in that regard. The referring court states, first, that that irregularity could render the document ineffective and, second, that the words „indefinite“ could constitute an extension of the period of validity if it could be regarded as a „special case“ within the meaning of Article 70(3) of that regulation. However, the wording of this provision also leaves open the possibility of attributing a limited validity of six months to such a document, in which case the further question arises as to the date from which this period should be measured.
17 Secondly, the referring court wonders whether the effects of the European Certificate of Succession concern only the „applicant“ or also all the persons named therein. Regulation No 650/2012 does not provide for the case where only one of the heirs applies for the issue of that certificate.
18 Thirdly, the referring court wishes to know the consequences of the expiry of the period of validity of a copy of the European Certificate of Succession. In that connection, it draws attention to differences in the literature in this area and between the case-law of the Austrian and German courts as to whether it is sufficient for that copy to have been valid when the application was lodged with the authority seised or whether it must still be valid at the time of the authority's decision.
19 In those circumstances, the Oberster Gerichtshof decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
(1) Is Article 70(3) of Regulation (EU) No 650/2012 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 to be interpreted as meaning that a copy of the certificate issued for an indefinite period in breach of that provision without specifying an expiry date
- is valid and effective for an unlimited period or
- is only valid for a period of six months from the date of issue of the certified copy, or
- is only valid for a period of six months from another date, or
- is invalid and unsuitable for use within the meaning of Article 63 of this Regulation?
(2) Is Article 65(1) in conjunction with Article 69(3) of Regulation No 650/2012 to be interpreted as meaning that the effects of the Certificate are in favour of all persons named in the Certificate as heirs, legatees, executors or administrators of the estate, so that those who have not themselves applied for the Certificate may also use it in accordance with Article 63 of that regulation?
(3) Is Article 69 in conjunction with Article 70(3) of Regulation No 650/2012 to be interpreted as meaning that the legitimising effect of the certified copy of a certificate of succession must be recognised if it was still valid when it was first produced but expired before the decision of the authority requested, or does that provision not preclude national law if it requires the certificate to be valid even at the time of the decision?
On the questions referred
To the first and third questions
20 By its first and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 70(3) of Regulation No 650/2012 must be interpreted as meaning that a certified copy of a European Certificate of Succession marked „unlimited“ is valid and that its effects must be recognised for an unlimited period, within the meaning of Article 69 of that regulation, if it was valid when it was first produced.
21 First of all, it should be noted that the period laid down in Article 70(3) of Regulation No 650/2012 does not concern the period of validity of the European Certificate of Succession, but only that of the certified copies of that certificate. Moreover, as is apparent from Article 70(1) in the light of recital 72 in the preamble to that regulation, the European Certificate of Succession is kept by the issuing authority which issues copies thereof.
22 It is clear from the wording of Article 70(3) of Regulation No 650/2012 that the certified copies of this certificate are valid for a limited period of six months, which is indicated on the certified copy by an expiry date. In duly justified exceptional cases, the issuing authority may decide on a longer period of validity. After the expiry of this period, any person holding a certified copy of a European Certificate of Succession must apply to the issuing authority for an extension of the period of validity of that copy or for a new certified copy in order to be able to use that certificate for the purposes specified in Article 63.
23 The limitation of the period of validity of the copies was provided for because the European Certificate of Succession produces its effects in all Member States and it is presumed that the Certificate accurately reflects the facts established in accordance with the law applicable to the succession or any other law applicable to specific facts, as well as the legal status and/or rights of the persons mentioned in the Certificate as heirs, legatees, executors or administrators of the estate, in accordance with Article 69(1) and (2) of Regulation No 650/2012.
24 As the Advocate General stated in essence in point 41 of his Opinion, the six-month period provided for in Article 70(3) of Regulation No 650/2012 makes it possible to ensure that the content of the certified copy of the European Certificate of Succession corresponds to the legal reality of the succession and, in particular, to verify, at regular intervals, whether the certificate has been rectified, revoked or amended in accordance with Article 71 of that regulation or whether its effects have been suspended in accordance with Article 73 of that regulation.
25 It follows that, apart from exceptional cases, the validity of such a certified copy is limited to six months.
26 However, the question arises as to whether that copy is to be regarded as valid for a period of six months if the issuing authority has expressly stated on Form V that the copy has no expiry date, or whether the absence of an expiry date precludes the use of that copy within the meaning of Article 63 of Regulation No 650/2012.
27 The objective of Regulation No 650/2012, as stated in recital 7 in the preamble thereto, namely that obstacles to the free movement of persons experiencing difficulties in enforcing their rights in the context of a succession with a cross-border element should be removed in order to facilitate the proper functioning of the internal market, would be jeopardised, if the heirs or other persons having a legitimate interest could not prove their rights due to a formal error in the certified copy of the European Certificate of Succession issued to them, but would have to apply for a new copy of that certificate, which would lead to an extension of time limits and possibly higher costs.
28 Accordingly, a certified copy of a European Certificate of Succession bearing the endorsement „unlimited“ is deemed to be valid for a period of six months.
29 As regards the date from which this copy is valid, it should be noted that the issuing authority must indicate the date of issue on Form V after the period of validity of the certified copy. The period of validity must therefore be calculated from this date, which guarantees the predictability and legal certainty required for the use of this copy.
30 As regards the referring court's questions concerning the date on which the certified copy of the European Certificate of Succession must be valid in order to produce its effects within the meaning of Article 69 of Regulation No 650/2012 and, in particular, the expiry of the validity of that copy during the proceedings, it should be noted that no provision of that regulation directly answers that question.
31 However, as the Advocate General stated, in particular in point 49 of his Opinion, the effects of that copy must be the same in all the Member States, so that the rules laid down in Regulation No 650/2012 must apply to its validity.
32 Recital 71 in the preamble to Regulation No 650/2012 states that the European Certificate of Succession should have the same effect in all Member States and that a person who relies on the accuracy of the information contained in that certificate should be protected if valid certified copies are produced. This ensures, in particular, the protection of third parties who make payments to or transfer succession property to a person designated in the Certificate as authorised to receive such payments or property as an heir.
33 However, if the validity of the certified copy of the European Certificate of Succession were to be required at the time when the requested decision is issued by the authority to which the copy is submitted or during the relevant court proceedings, rather than at the time of the application, there would be a risk of prejudicing the rights of heirs and other successors in title who, since they have no control over the duration of the proceedings leading to that decision, might have to apply for such a copy several times.
34 As the Advocate General stated in points 58 and 59 of his Opinion, that interpretation would lead to delays and additional procedural steps and efforts, both for the parties to the succession and for the authorities dealing with the succession, and would run counter to the objective pursued by Regulation No 650/2012, which, as stated in paragraph 27 of the present judgment, is to ensure that a succession with cross-border implications and the claims of the parties to the succession are dealt with swiftly, simply and efficiently, as is apparent from recitals 7 and 67 in the preamble to that regulation.
35 Furthermore, Article 71(3) of Regulation No 650/2012 provides that the issuing authority is to inform, without delay, all persons to whom certified copies of the certificate have been issued and of whom it keeps a register in accordance with Article 70(2) of that regulation, of any rectification, amendment or revocation of the European Certificate of Succession, in order to avoid, in accordance with recital 72 in the preamble to that regulation, any misuse of those copies and to limit the risk that the certified copy, the validity of which expired at the time of the adoption of the requested decision, will not correspond to the content of the certificate. Recital 72 in the preamble to this Regulation, to avoid misuse of these copies and to limit the risk that the certified copy, which has expired at the time of the adoption of the requested decision, does not correspond to the content of the European Certificate of Succession.
36 As the Advocate General stated in point 70 of his Opinion, the authority to which the certified copy of the European Certificate of Succession has been produced may, exceptionally, require the production of a new copy or a copy whose validity has been extended if it acquires knowledge which gives rise to reasonable doubts as to the status of that certificate.
37 In the light of the foregoing, the answer to the first and third questions is that Article 70(3) of Regulation No 650/2012 must be interpreted as meaning that a certified copy of a European Certificate of Succession marked „unlimited“ is valid for a period of six months from the date of issue and produces its effects within the meaning of Article 69 of that regulation if it was valid when it was first produced.
The second question
38 By its second question, the referring court asks, in essence, whether Article 65(1) in conjunction with Article 69(3) of Regulation No 650/2012 must be interpreted as meaning that the effects of the European Certificate of Succession extend to all persons named therein as heirs, legatees, executors or administrators of the estate, even if they have not themselves requested its issue.
39 Article 63(1) and (2)(a) of that regulation, which concerns the purpose of the European Certificate of Succession, lists the persons who may use the certificate, namely heirs, legatees directly entitled to the estate and executors or administrators of the estate, in order to prove, in particular, their legal status and/or succession rights in another Member State (see, to that effect, judgment of 1 March 2018, Mahnkopf, C-558/16, EU:C:2018:138, paragraph 36 and the case-law cited).
40 Pursuant to Article 65(1) of Regulation No 650/2012, the European Certificate of Succession shall be issued upon application by any person referred to in Article 63(1) of that Regulation. Pursuant to Article 65(3)(e) of this Regulation, the application for a European Certificate of Succession must contain, inter alia, information on other possible beneficiaries by virtue of a disposition of property upon death and/or intestate succession in addition to the applicant. This information must be included in the certificate in accordance with Article 68(g) of this Regulation.
41 Article 69(3) of Regulation No 650/2012 provides that a person to whom payments are made or assets are transferred on the basis of the information contained in the European Certificate of Succession and who is designated in the certificate as an heir, legatee, executor or administrator of the estate is deemed to be authorised to accept the payments or assets. Thus, the effects of this certificate may be exercised against her without it being made clear in this provision whether she must have the status of an applicant.
42 Furthermore, under Article 70(1) of that regulation, the issuing authority which retains the original of the Certificate shall, irrespective of who made the application, issue one or more certified copies to the applicant and to any other person who demonstrates a legitimate interest. To require that the person relying on the certified copy of a European Certificate of Succession must necessarily be the person who originally applied for the Certificate would therefore be contrary to the wording of Article 70(1) of the Regulation.
43 None of these provisions requires the person using a certified copy of the European Certificate of Succession to be the applicant in respect of that Certificate in order to benefit from its effects.
44 Furthermore, as the European Commission has stated in its written observations, unnecessary costs would be incurred if every interested person were obliged to apply for a European Certificate of Succession and a certified copy for a particular succession, even though certificates and copies have already been issued for the succession. Such an obligation would run counter to the objective pursued by Regulation No 650/2012, as set out in recital 67, namely to process a succession matter with a cross-border element quickly, easily and efficiently.
45 In the light of the foregoing, the answer to the second question is that Article 65(1) in conjunction with Article 69(3) of Regulation No 650/2012 must be interpreted as meaning that the European Certificate of Succession produces its effects vis-à-vis all the persons named therein, even if they have not themselves requested its issue.
Costs
46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is 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 (Sixth Chamber) ruled in favour of the applicant:
1) Article 70(3) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law and the recognition and enforcement of decisions Article 70(3) 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 meaning that a certified copy of a European Certificate of Succession marked „unlimited“ is valid for a period of six months from the date of issue and produces its effects within the meaning of Article 69 of that regulation if it was valid when it was first presented.
(2) Article 65(1) in conjunction with Article 69(3) of Regulation No 650/2012 must be interpreted as meaning that the effects of the European Certificate of Succession apply to all persons named therein, even if they have not applied for its issue themselves.