ECJ, judgement of. 12.10.2017 - C218/16 - (Kubicka)
Central standards: EuErbVO Art. 1 para. 2 lit. k and l, 31
(Property law effects of a legacy of vindication ordered under Polish inheritance law with regard to properties located in Germany)
Guiding principle:
Article 1(2)(k) and (l) and Article 31 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 they preclude the refusal by an authority of a Member State to recognise the effects in rem of a legacy by vindication known to the law applicable to the succession chosen by a testator in accordance with Article 22(1) of that regulation where that refusal is based solely on the ground that that legacy affects the ownership of immovable property. Article 22(1) of that regulation preclude an authority of a Member State from refusing to recognise the effects in rem of a legacy known to the law applicable to the succession chosen by a testator in accordance with Article 22(1) of that regulation where that refusal is based solely on the ground that that legacy concerns the ownership of immovable property situated in a Member State whose legal system does not recognise the institution of a legacy with direct effects in rem at the time of the succession.
Problem:
Art. 9811 § 1 of the Polish Civil Code stipulates that the testator can order in the form of a notarised will that a specific person acquires a right in rem to the object of the legacy at the time of inheritance (legacy by vindication). A testator living in Frankfurt/Oder with Polish nationality then went to a Polish notary and asked for a will to be notarised in which the testator chose Polish inheritance law and made a legacy of vindication in favour of her husband with regard to the co-ownership half of a property located in Frankfurt.
Art. 1 para. 2 lit. k EU Succession Regulation excludes the nature of rights in rem from its scope of application. However, according to Art. 23 para. 2 lit. b and e EU Succession Regulation, the transfer of rights is part of the succession.
Summary of the Decision:
The ECJ states that the direct transfer of ownership by way of a legacy of vindication only concerns the relevant modalities of the transfer in the event of succession, i.e. not the nature of the rights in rem.
According to recitals 18 and 19 of the Regulation, Article 1(2)(l) of the Regulation, which excludes the registration of rights in immovable and movable property in a register from the scope of the Regulation, also only concerns the conditions for the registration of the right in rem and the effects of the registration on legal transactions, but not the conditions under which such rights are acquired. Article 31 of the EU Succession Regulation also does not require any adaptation because German law recognises the right in rem that is being asserted (ownership of the property) and in the present case only the modalities of the acquisition are affected. Article 31 of the Regulation would only apply if the content of the right in rem was unknown to the state concerned, but not its acquisition.
For the reasons:
40 By its question, the referring court asks, in essence, whether Article 1(2)(k) and (l) and Article 31 of Regulation No 650/2012 must be interpreted as precluding the refusal by an authority of a Member State to recognise the effects in rem of a legacy by vindication which is known to the law applicable to the succession chosen by the testator pursuant to Article 22(1) of that regulation. 1 of that regulation, preclude an authority of a Member State from refusing to recognise the effects in rem of a legacy known to the law applicable to the succession chosen by the testator in accordance with Article 22(1) of that regulation, where the refusal is based on the ground that that legacy concerns the ownership of immovable property situated in that Member State, the law of which does not recognise the institution of a legacy with direct effects in rem at the time of the succession.
41 By way of introduction, it should be noted that the first sentence of Article 1(1) of Regulation No 650/2012 applies to succession by reason of death. Article 3(1)(a) of this Regulation clarifies that this succession includes „any form of transfer of assets, rights and obligations by reason of death, whether by intestate succession through a disposition of property upon death or by intestate succession“.
42 It is common ground that the facts of the case in the main proceedings relate to an intended succession.
43 It is clear from the wording of Article 22(1) of Regulation No 650/2012 that the testator may choose the law of the State to which he belongs for the succession. In addition, Article 23(1) of this Regulation enshrines the principle of uniformity of the law applicable to the succession.
44 Thus, as can be seen from recital 37 of this Regulation, the Union legislator has made it clear that, for reasons of legal certainty and in order to avoid a division of the estate, the entire estate, i.e. all the assets forming part of the estate, should be subject to this law, regardless of the nature of the assets and regardless of whether they are located in another Member State or in a third country. Accordingly, under Article 23(2) of Regulation No 650/2012, this law governs, inter alia, the transfer of the assets forming part of the estate to the heirs or, where applicable, the legatees.
45 In that regard, Article 1(2) of Regulation No 650/2012 lists various areas which are excluded from the scope of that regulation, such as, under point (k) of that provision, „the nature of rights in rem“ and, under point (l) of that provision, „the registration of rights in immovable or movable property in a register, including the legal requirements for such registration, and the effects of the registration or lack of registration of such rights in a register“.
46 As regards, first, the question whether Article 1(2)(k) of Regulation No 650/2012 must be interpreted as precluding the refusal to recognise in Germany the effects in rem of the legacy of vindication provided for by Polish law, it should be noted that that provision excludes „the nature of rights in rem“ from the scope of that regulation.
47 This provision concerns, as can be seen from the explanatory memorandum to the proposal for a regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and on the creation of a European Certificate of Succession (COM(2009) 154 final, p. 5), the qualification of property and rights and the prerogatives of the holder of such rights.
48 In addition, the existence and number of rights in rem in the legal order of the Member States (numerus clausus) also fall within the scope of this provision. Recital 15 in the preamble to Regulation No 650/2012 makes it clear in that regard that that regulation does not affect the exhaustive number (numerus clausus) of rights in rem recognised by the national law of certain Member States and that a Member State should not be obliged to recognise a right in rem in respect of property situated in that Member State if its law does not recognise that right in rem.
49 In the present case, both the legacy of vindication provided for by Polish law and the legacy of damnation provided for by German law Modalities for the transfer of ownership of an asset, that is to say, as the Advocate General stated in points 46 and 47 of his Opinion, of a right in rem recognised by both legal systems concerned. Thus, the direct transfer of a right of ownership by way of a legacy of vindication concerns only the relevant modalities of the transfer of that right in rem in the event of succession, which, according to recital 15 in the preamble to Regulation No 650/2012, is intended to enable in accordance with the law applicable to the succession.
50 However, such transitional arrangements are not covered by Article 1(2)(k) of Regulation No 650/2012.
51 It must therefore be held that Article 1(2)(k) of Regulation No 650/2012 must be interpreted as precluding the refusal to recognise, in a Member State whose legal system does not recognise the institution of a legacy by vindication, the effects in rem produced by a legacy by vindication at the time of the succession in accordance with the law chosen by the testator.
52 As regards, second, the question whether Article 1(2)(l) of Regulation No 650/2012 must be interpreted as precluding refusal to recognise the effects in rem of the legacy of vindication, it should be noted that that provision excludes from the scope of Regulation No 650/2012 any registration in a register of rights in immovable or movable property, including the legal requirements for such registration, as well as the effects of the registration or lack of registration of such rights in a register.
53 Recital 18 in the preamble to Regulation No 650/2012 clarifies in that regard that „the law of the Member State in which the register is kept (for immovable property, the law of the situated property) should determine the legal conditions under which and the manner in which the registration of a right in rem is to be made“. Furthermore, according to recital 19 of this Regulation, where „the acquisition of a right in immovable property under the law of the Member State in which the register is kept requires entry in a register in order to ensure the erga omnes effect of registers or to protect legal transactions, the time of acquisition should be governed by the law of that Member State“.
54 As the Advocate General essentially emphasised in point 60 of his Opinion, since Article 1(2)(l) of Regulation No 650/2012 refers only to the registration of rights in immovable or movable property in a register, including the legal requirements for such registration, and the effects of the registration or non-registration of such rights in a register, it is not the registration of rights in immovable or movable property that is relevant. Conditions under which such rights are acquired, consequently not included in the areas excluded from the scope of this Regulation under this provision.
55 That interpretation is also supported by the principle of uniformity of the law applicable to the succession provided for in Article 23 of Regulation No 650/2012 and, in particular, in Article 23(2)(e) thereof, which provides that that law is to govern „the transfer of assets, rights and obligations to heirs and, where applicable, legatees“.
56 Such an interpretation is also consistent with the objective pursued by recital 7 in the preamble to Regulation No 650/2012, according to which, in order to facilitate the proper functioning of the internal market, that regulation is intended to remove obstacles to the free movement of persons wishing to enforce their rights in the context of a cross-border succession. According to this recital, citizens in a European judicial area must be able to organise their succession in advance.
57 In that context, it would result in a division of the estate that is incompatible with the wording of Article 23 of Regulation No 650/2012 and with the objectives of that regulation if it were accepted that, under Article 1(2)(l) of that regulation, the acquisition of ownership of an asset by legacy of vindication may be excluded from the scope of that regulation.
58 Therefore, Article 1(2)(l) of Regulation No 650/2012 must be interpreted as precluding the refusal to recognise, in a Member State whose legal system does not recognise the institution of the legacy by vindication, the effects in rem produced by a legacy by vindication in accordance with the chosen law of succession at the time of the succession.
59 It should also be added that Regulation No 650/2012 provides for the introduction of a certificate which must enable any heir, legatee or successor mentioned in that certificate to prove, in another Member State, his legal status and his rights, in particular the attribution of a specific asset to the legatee mentioned in that certificate.
60 Under Article 69(1) of that regulation, the Certificate produces effects in all Member States without any special procedure being required. Pursuant to paragraph 2 of that Article, the person named in the Certificate as the legatee is presumed to have the legal status and rights specified in the Certificate and that those rights are not subject to any conditions and/or limitations other than those specified in the Certificate.
61 Thirdly, as regards the interpretation of Article 31 of Regulation No 650/2012, it must be pointed out that, according to the wording of that article, „[w]here a person invokes a right in rem to which he is entitled under the law applicable to the succession and the law of the Member State in which the right is invoked does not recognise the right in rem in question, that right must, to the extent necessary and possible, be adapted to the most comparable right in the legal order of that Member State, taking into account the aims and interests pursued by the right in rem and the effects attaching to it“.
62 It should be noted here that the right in rem that Mrs Kubicka wishes to transfer by means of a legacy of vindication is her ownership interest in the property located in Germany. However, it is undisputed that German law also recognises the right of ownership, which would therefore be conferred on the legatee under Polish law.
63 Article 31 of Regulation No 650/2012 does not concern the modalities of the transfer of rights in rem, e.g. on the basis of a „legacy of vindication“ or a „legacy of damnation“, but only the preservation of the content of the rights in rem determined by the law applicable to the succession (lex causae) and their reception in the legal order of the Member State in which they are invoked (lex rei sitae).
64 Therefore, insofar as the right in rem transferred by means of a legacy of vindication is the right of ownership recognised under German law, there was no reason to make the adjustment provided for in Art. 31 of Regulation No. 650/2012.
65 Consequently, Article 31 of Regulation No 650/2012 must be interpreted as precluding the refusal to recognise the effects in rem produced by a legacy by vindication in accordance with the chosen law of succession at the time of the succession in a Member State whose legal system does not recognise the institution of a legacy by vindication.
66 In the light of the foregoing, the answer to the question referred is that Article 1(2)(k) and (l) and Article 31 of Regulation No 650/2012 must be interpreted as precluding the refusal by an authority of a Member State to recognise the effects in rem of a legacy by vindication known to the law applicable to the succession chosen by a testator in accordance with Article 22(1) of that regulation, where that refusal is based solely on the ground that that legacy concerns the ownership of immovable property. 1 of that regulation to the law applicable to the succession of a deceased person, where that refusal is based solely on the ground that that legacy concerns the ownership of immovable property situated in that Member State, the law of which does not recognise the institution of a legacy with direct effect in rem at the time of the succession.