OLG Düsseldorf, decision of 14 October 2020 - 3 Wx 158/20

Central standards: Art. 21 para. 1, Art. 67, Art. 68 EU Succession Regulation

(Indication of individual items in the European Certificate of Succession)

Guiding principle:

According to the prevailing opinion shared by the Senate (see, inter alia, OLG Munich ZEV 2017, 580 f.; OLG Nuremberg ZEV 2017, 579f.), in the case of inheritance cases with a foreign element, the indication of individual estate objects (here: condominium in Poland) in the European Certificate of Succession under application of German inheritance law (Art. 21 para. 1 EU Succession Regulation) is out of the question, especially if the transfer of the entire property is based on an inheritance purchase.

For the reasons:

II.

8 The appeal of the parties to 1 has been submitted to the Senate for decision as a result of the further order of 10 July 2020 duly declaring non-relief, Section 68 (1) sentence 1, 2nd half-sentence FamFG.

9 It is admissible as a time-limited appeal in accordance with Sections 58 et seq. FamFG and is also admissible in other respects. It is unsuccessful on the merits. The probate court was right to reject both the main application and the auxiliary application of the parties to 1 on the basis of correct reasoning. In order to avoid repetition, reference is made to the correct statements of the probate court in the contested decision and in the decision not to grant relief regarding the reasons why the additions requested by the party re 1 cannot be included in the European Certificate of Succession. Only the following additional comments are necessary:

10 The legal position adopted by the probate court corresponds to the prevailing opinion in case law and literature, according to which the indication of individual estate items in the European Certificate of Succession is out of the question in inheritance cases with foreign implications, provided that - as here (according to Art. 21 para. 1 of the EU Succession Regulation, succession is subject to the law of the state in which the deceased had his last habitual residence) - German inheritance law applies (see OLG Nuremberg ZEV 2017, 579 et seq, with comment by Weinbeck; OLG Munich ZEV 2017, 580 f.; Münchener Kommentar/Dutta, 8th ed. 2020, EuErbVO Art. 63 para. 18 and Art. 68 para. 9 with further references; Kroiß/Horn/Solomon-Köhler, Nachfolgerecht, 2nd ed. 2019, Art. 68 EuErbVO para. 3). The Senate believes that, in particular in view of the formal requirements of Art. 68 of the EU Succession Regulation and the mandatory use of the form prescribed by the EU Commission (cf: BeckOGK/J. Schmidt, Status: 1 August 2020, Art. 67 EuErbVORn. 13; Kroiß/Horn/Solomon-Köhler, loc. cit., Art. 68 EuErbVO para. 1) no reason to deviate from the prevailing opinion.

11 In addition to the motives of the legislator for the adoption of the Succession Regulation already mentioned by the probate court and the opposing motives of the legislator, reference is made to the official recitals under points 9, 11, 14 and 15, according to which the scope of application of the Regulation should only extend to the civil law aspects of succession (points 9 and 15). For reasons of clarity, however, questions that can be regarded as related to matters of succession should be excluded (No. 11); rights or assets that arise or are transferred by means other than succession should also not be covered (No. 14).

12 However, the inheritance purchase in question here - and only this can be considered here as the basis for a transfer of the entire ownership of the flat located in Poland - is not a case of legal succession by reason of death, for which the scope of application of the EU Succession Regulation should be opened. The inheritance purchase of the BGB is rather a contract of sale under the law of obligations, to which, unless otherwise stated in Sections 2371 et seq. BGB, the provisions of Sections 433 et seq. BGB are applicable. The inheritance purchase requires fulfilment under property law. In particular, it does not change the seller's status as an heir, but the buyer only takes the place of the seller in economic terms and under the law of obligations (see instead of all: BeckOGK/Grigas, as of 15 August 2020, Section 2371 BGB para. 4 ff.). Even in an inheritance certificate that is applied for in proceedings without a cross-border reference, only the selling heir can be entered; the purchaser of an inheritance purchase cannot be listed (BeckOGK/Grigas, loc. cit., Section 2371 para. 22; BeckOK/Litzenburger, 55th edition, as of 1 August 2020, Section 2371 BGB para. 22).

13 In the opinion of the Senate, no other approach is justified in view of the case law of the European Court of Justice cited by the party re 1 (judgment of 1 March 2018 - C-558/16 (Mahnkopf), NJW 2018, 1377 et seq.). The decision of the European Court of Justice concerned the question of whether and how the increase in the surviving spouse's share of the estate resulting from Section 1371 (1) BGB should be included in a European Certificate of Succession. In this particular case, the European Court of Justice ruled that Section 1371 (1) BGB primarily concerns the legal succession after the death of a spouse and not matrimonial property law. Accordingly, the European Court of Justice considered the scope of application of the European Succession Regulation to be open and affirmed the indication of the increased inheritance share of the surviving spouse in the European Certificate of Succession. However, the inheritance purchase in question here cannot be compared with this, as it does not affect the question of legal succession after the death of the deceased and the legal status of an heir and his or her inheritance claims, but rather establishes exclusively a legal relationship between an heir and the acquirer of his or her inheritance share and a claim under the law of obligations of the acquirer against the heir.

III.

14 The decision on costs is based on Section 84 FamFG. According to this, the court should order the costs of an unsuccessfully lodged appeal to be borne by the party who lodged the appeal. There is no evidence of an exceptional case here.

15 There is no reason to allow an appeal on points of law pursuant to Section 70 (2) sentence 1 FamFG.

16 The valuation is based on Sections 61, 40 para. 1 no. 2 of the German Notarial Valuation Act (GNotKG) and the estate value relevant for the valuation is calculated on the basis of the information provided by the parties to 1 in the valuation sheet dated 6 February 2018.