ECJ, judgement of 17.01.2019 - C-102/18

Central standard: Art. 65 para. 2 EU Succession Regulation

(Obligation to use the official form for applying for a European Certificate of Succession)

Remark:

When applying for a European Certificate of Succession, the use of Form IV in Annex 4 of Implementing Regulation No 1329/2014 is optional.

For the reasons:

21 By its question, the referring court asks, in essence, whether Article 65(2) of Regulation No 650/2012 and Article 1(4) of Implementing Regulation No 1329/2014 must be interpreted as meaning that the use of Form IV is mandatory or optional for the application for the issue of a certificate within the meaning of the former provision.

22 According to settled case-law of the Court of Justice, it follows from the requirements of both the uniform application of European Union law and the principle of equality that a provision of European Union law which does not expressly refer to the law of the Member States for the purpose of determining its meaning and scope must, as a general rule, apply throughout the Union. must be given an autonomous and uniform interpretation, which must be determined taking into account the wording and context of the provision and the objective pursued by the provision in question (see, to that effect, judgment of 21 June 2018, Oberle, C-20/17, ECLI:EU:C:2018:485, para. 33 and the case-law cited therein).

23 According to the wording of Article 65(2) of Regulation No 650/2012, the applicant „may“ use the form drawn up in accordance with the advisory procedure under Article 81(2) of that Regulation to submit an application for a certificate.

24 Furthermore, as is apparent from Article 65(3) of Regulation No 650/2012, the application for the issue of a certificate must contain the particulars referred to in that provision, in so far as they are known to the applicant and are required by the issuing authority to describe the facts which the applicant seeks to have certified, and must be accompanied by all the relevant documents, either in the original or in the form of a copy which fulfils the conditions necessary to establish its authenticity. It follows that, although the applicant must provide the information that enables the issuing authority to confirm the facts in question, it does not follow from Article 65 of Regulation No 650/2012 that the applicant must use Form IV.

25 The wording of Article 65(2) of Regulation No 650/2012 is thus free of any ambiguity as regards the optional nature of the use of Form IV. Moreover, the doubts raised by the referring court are based on the wording of Article 1(4) of Implementing Regulation No 1329/2014, according to which „[f]or the application for a [certificate] referred to in Article 65(2) of [Regulation No 650/2012] ... Form IV in Annex 4 shall be used“. According to the referring court, it could be inferred from that provision that the use of that form is mandatory.

26 However, Article 1(4) of Implementing Regulation No 1329/2014 must be read in conjunction with Annex 4 thereto, to which it refers and in which Form IV is contained. However, the field „Notice to the applicant“ at the beginning of this form clearly states that Form IV is optional. Thus, the phrase „form“, which is „to be used“, in Article 1(4) of Implementing Regulation No 1329/2014 does not have any significance regarding the mandatory or optional nature of the use of Form IV, but only indicates that, in the event that the applicant wishes to submit his application for a certificate by means of a form, Form IV would be the appropriate form to be used.

27 It should also be noted that Article 38 of the Commission 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), which corresponds to Article 65 of Regulation No 650/2012, provided that the application for the issue of a certificate was to be made by means of a form in accordance with the model set out in Annex I to that proposal. The amendment of the wording of this Article 38 in Article 65(2) of Regulation No 650/2012 indicates that, despite the Commission's intention at an early stage of legislative activity to envisage the mandatory use of a form, this initial intention was not pursued by the Union legislator. Consequently, the legislative history of Regulation No 650/2012 also confirms that the wording of Article 65(2) of Regulation No 650/2012 indicates that the use of Form IV to apply for a certificate is optional.

28 Accordingly, it follows from the literal interpretation of Article 65(2) of Regulation No 650/2012 in conjunction with Annex 4 to Implementing Regulation No 1329/2014 that the use of Form IV is optional for an application for the issue of a certificate.

29 This interpretation is also confirmed by an analysis of the context into which this provision fits.

30 Article 67(1) of Regulation No 650/2012 requires the issuing authority to use Form V provided for in Annex 5 to Implementing Regulation No 1329/2014 in order to issue the certificate. The different wording of Article 65(2) of Regulation No 650/2012, which concerns the application for the issue of a certificate, and Article 67(1) of that regulation, which concerns the issue of the certificate, reflects the fact that the EU legislature did not intend to require the use of Form IV for the application for the issue of a certificate.

31 Furthermore, it should be noted that Annexes 1 to 3 and 5 of Implementing Regulation No 1329/2014 do not contain any reference to the optional use of the forms contained in these annexes. Only Form IV refers to the optional nature of this form in the „Notification to the applicant“ field. This reference can also be found in other language versions of the Annex in question, such as the Spanish, English, French, Italian and Romanian versions.

32 The above finding confirms the intention of the Union legislature to provide for the optional use of Form IV.

33 That interpretation is not contrary to the general objective of Regulation No 650/2012, which, as is apparent from recital 59 in the preamble thereto, is the mutual recognition of decisions in matters of succession with cross-border implications given in the Member States.

34 Even if it is explained in the „Notice to the applicant“ box of Form IV that the use of that form by the applicant is intended to facilitate the compilation of the information necessary for the issue of a certificate, the application for the issue of a certificate submitted pursuant to Article 65 of Regulation No 650/2012 may nevertheless sufficiently achieve the objective of that regulation by the Member States, in accordance with the principle of subsidiarity, without it being necessary to make the use of Form IV compulsory.

35 In this regard, it should be noted that, in accordance with Articles 66 and 67(1) of Regulation No 650/2012, the issuing authority issues the certificate after verifying the information provided by the applicant in accordance with Article 65(3) of that Regulation and, where appropriate, after carrying out enquiries in accordance with Article 66 of that Regulation.

36 In the light of the foregoing, Article 65(2) of Regulation No 650/2012 and Article 1(4) of Implementing Regulation No 1329/2014 must be interpreted as meaning that the use of Form IV is optional for the application for the issue of a certificate within the meaning of the former provision.

Costs

37 As regards 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 (Sixth Chamber) ruled in favour of the applicant:

Article 65(2) 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 and Article 1(4) of Commission Implementing Regulation (EU) No 1329/2014 of 9 December 2014 establishing the forms provided for in Regulation No 650/2012 shall be interpreted as meaning that the use of Form IV in Annex 4 to Implementing Regulation No 1329/2014 is optional for the application for a European Certificate of Succession within the meaning of the former provision.