BGH, decision of 10 July 2019 - IV ZB 22/18
Central standards:
(Retroactively effective choice of German law in the contract of inheritance)
Author's guiding principle:
An inheritance contract that was ineffective before 17 August 2015 can become effective retroactively after the entry into force of the EU Succession Regulation.
Problem:
A testator who died after 17 August 2015 concluded an inheritance contract with an Italian national before the cut-off date. This is not permitted under Italian law and consequently the contractual dispositions of the Italian national are invalid and therefore the inheritance contract as a whole is invalid. Following the entry into force of the EU Succession Regulation, the question arose as to whether the inheritance contract had become effective retroactively and blocked dispositions made by the German national at a later date.
For the reasons:
1 The BeschwGer. stated - insofar as still of interest for the appeal on points of law,
the contract of inheritance was probably invalid before the entry into force 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, 107; hereinafter referred to as the "European Succession Regulation"): European Succession Regulation and EuErbVO) could have been invalid, as the inheritance contract was foreign to the other legal systems under German law. However, this was irrelevant. It had at least become effective with the entry into force of the European Succession Regulation.
Pursuant to Art. 83 II and III of the EU Succession Regulation, choices of law and dispositions of property upon death made prior to 17 August 2015 are admissible and formally and substantively valid if - as in this case - they fulfil the requirements of Chapter III of the EU Succession Regulation. The testator had had her habitual residence in Germany at the time of her death, so that the legal succession upon death was subject to German law (Art. 21 EuErbVO). In addition, the contracting parties had chosen German inheritance law with regard to both the law of creation and the law of succession (Art. 25 III EuErbVO). As a result, the inheritance contract became effective on the cut-off date. This also included the binding effect of the contract for the testator, which was governed by the German law of succession due to the choice of law made by the contracting parties. The testator was therefore no longer able to revoke the inheritance contract after the cut-off date. This was not precluded by the protection of the trust in her continued freedom to make a will.
2 This judgement stands up to legal scrutiny. The Senate without an oral hearing. The BeschwGer. correctly assumed that, due to the choice of law made by the contracting parties, the succession is governed by the inheritance contract concluded between the testator and the person concerned re 1. The appointment of the testator as heir to 4 in the later notarised will is invalid pursuant to Section 2289 I 2 BGB because it impairs the testator's position as sole heir under the inheritance contract.
a) The BeschwGer. rightly affirmed the validity of the choice of the German establishment statute.
aa) Contrary to the opinion of the legal complaint, the conflict of laws applicable to the legal succession of the testator for the succession occurring after 17 August 2015 is not governed by the conflict of laws rules of the Member States applicable at the time the inheritance contract was drawn up, but by the provisions of the European Succession Regulation (Art. 83 I EuErbVO).
bb) According to the transitional provision of Art. 83 II Alt. 1 EuErbVO, a choice of law made before 17 August 2015 is effective if it fulfils the requirements of Chapter III of the Regulation. This is the case here.
(1) Contrary to the legal complaint, does Art. 83 II Alt. 1 EuErbVO also covers inheritance contracts, because the provision generally refers to the requirements of Chapter III of the Regulation and thus, with regard to the admissibility, substantive validity and binding effect of an inheritance contract, including the requirements for its termination, to Art. 25 III EU Succession Regulation (see BeckOGK/J. Schmidt, 1 March 2019, Art. 83 EU Succession Regulation para. 10; Burandt/Schmuck in Burandt/Rojahn, Erbrecht, 3rd ed., Art. 83 EuErbVO para. 4; Erman/Hohloch, BGB, 15th ed., Art. 83 EuErbVO para. 4; Palandt/Thorn, BGB, 78th ed., Art. 83 EuErbVO para. 4; Rudolf, ZfRV 2015, 212 [213]; Schoppe, IPRax 2014, 27 [29]; a different approach is taken by MüKoBGB/Dutta, 7th ed., Art. 83 EuErbVO para. 7, which assigns the choice of the statute of succession pursuant to Art. 25 III EuErbVO to the scope of Art. 83 III EuErbVO, but refers to Art. 83 II EuErbVO for the binding effect; see also NK-BGB/Magnus, 3rd ed., Art. 83 EuErbVO para. 14; Pünder, Joint wills and the EU Succession Regulation, 2018, 322). This is not contradicted by the wording of the standard, as under „succession by reason of death“ within the meaning of paragraph 2 means any form of transfer of assets, rights and obligations by reason of death, including by way of intestate succession through a disposition of property upon death (Art. 3 I lit. a EU Succession Regulation), which includes the inheritance contract (Art. 3 I lit. d EU Succession Regulation).
(2) Art. 83 II Alt. 1 in conjunction with Art. 25 III EU Succession Regulation allows the parties to a contract of succession to choose the law which the person or one of the persons whose succession is concerned could have chosen under Art. 22 EU Succession Regulation under the conditions specified therein for the admissibility, substantive validity and binding effects of their contract of succession, including the conditions for its dissolution. Accordingly, a person may choose the law of the state to which he or she belongs at the time of the choice of law or at the time of death for the succession (Art. 22 I para. 1 of the Regulation). Art. 25 III of the EU Succession Regulation thus extends the circle of selectable laws and enables the parties to a multilateral inheritance contract to make a uniform choice of the law of the state to which only one of the parties belongs (see BeckOGK/J. Schmidt, Art. 25 EU Succession Regulation para. 33; Farmer in Dutta/Weber, Internationales Erbrecht, 2016, Art. 25 EuErbVO para. 21; Erman/Hohloch, Art. 25 EuErbVO para. 9; Döbereiner in Firsching/Graf, Law of Succession, 11th ed., § 47 para. 72; Odersky in Hausmann/Odersky, Internationales Privatrecht in der Notar- und Gestaltungspraxis, 3rd ed., § 15 para. 260 f.; MüKoBGB/Dutta, Art. 25 EuErbVO para. 11; Sweet, Inheritance Law in Europe, 3rd ed., § 4 para. 38; Househusband in Benecke/Hausmann/Peifer/Gebauer, Labour Law, Inheritance Law, Copyright Law - 50 Years of the German-Italian Lawyers' Association 2014, 37). Accordingly, in the case in dispute, the contracting parties had the choice of German inheritance law as the law of the nationality of the testator (Art. 22 I para. 1 of the EU Succession Regulation), which in principle permits the conclusion of an inheritance contract under the conditions of Sections 2274 et seq. BGB (German Civil Code) and, in the event of effective establishment, gives it binding effect over a later disposition of property upon death, insofar as it - as here - impairs the right of the contractual beneficiary (Section 2289 I 1 and 2 BGB).
(3) The choice of law has also been made in due form. In the event of a dispute, the form has been complied with by including the choice of law in the inheritance contract and notarising it before a German notary, Art. 83 II Alt. 1 in conjunction with Art. 27 I subpara. 1 letters a and c, Art. 25 III, Art. 22 II EuErbVO in conjunction with § 2276 I 1 BGB (see BeckOGK/J. Schmidt, Art. 25 EuErbVO para. 36; Erman/Hohloch, Art. 25 EuErbVO para. 9; Döbereiner, MittBayNot 2013, 437 [439]).
b) Contrary to the opinion of the appellant, the contractual appointment of the first complainant as sole heir did not lose its validity and binding effect pursuant to § 2279 II in conjunction with § 2077 II BGB due to the subsequent termination of the cohabitation of the contracting parties. In particular, the statements of the appellate court withstand the complaint raised by the appellant that it did not fulfil the official duty of investigation arising from § 68 III 1 in conjunction with § 26 FamFG.
aa) As the legal complaint itself recognises, the above provisions of the German Civil Code do not apply to the termination of a non-marital cohabitation according to the wording of the law (see OLG Frankfurt a. M., decision of 16 February 2016 - 20 W 322/14, BeckRS 2016, 9184 para. 20; ErbR 2016, 453 = BeckRS 2016, 6193 para. 12; BayObLG, NJWE-FER 2001, 261 under II 2 c; MüKoBGB/Leipold, § 2077 marginal no. 15; Palandt/Weidlich, § 2077 marginal no. 2; Staudinger/Otte, BGB, Neubearb. 2013, § 2077 marginal no. 28).
bb) The appellate court also based its judgement on the existence of a non-marital cohabitation between the testatrix and the first complainant without error of law. Insofar as the appeal on points of law now argues that, based on the life circumstances established by the appellate court, it was obvious that a marriage within the meaning of § 2279 II BGB existed between the contracting parties at the time of the notarisation of the inheritance contract, this new submission cannot justify a breach of the official duty to investigate.
The type and scope of the investigations are decided by the trial judge at his discretion. The appellate court only has to review whether the appellate court has complied with the limits of its discretion and whether it has made correct findings of fact (BGH, NJW-RR 2019, 1089 marginal no. 13 with further references). Applying these standards, there is no breach of the official duty to investigate. In view of the undisputed submissions of the parties at first instance, which provided numerous indications of the existence of a non-marital cohabitation, but not of an engagement, and the contents of the file - the testator herself spoke of a terminated cohabitation in her will - the appellate court was not required to investigate the personal relationship of the parties to the inheritance contract with regard to the requirements of an engagement (cf. on the scope of investigation in the case of concurring party submissions, for example BGH, NJW-RR 2019, 705 marginal no. 19; Bahrenfuss/Rüntz, FamFG, 3rd ed., § 26 para. 9; Jacoby in Bork/Jacoby/Schwab, FamFG, 2nd ed., § 26 para. 14; Zöller/Feskorn, ZPO, 32nd edition, Section 26 FamFG marginal no. 2).
c) Finally, the appeal on points of law unsuccessfully invokes the principle of legal certainty recognised under European and constitutional law and the prohibition of retroactivity.
aa) However, it is correct that a broad understanding of the scope of application of Art. 83 II Alt. 1 of the EU Succession Regulation means that - as long as the succession occurs on or after 17 August 2015 - a choice of law made before the Regulation came into force and the relevant date of its applicability becomes effective if it fulfils the requirements of Chapter III of the Regulation, even if the contracting parties were not able to make the choice of law under the conflict-of-law rules of the state of residence or nationality still in force at that time (cf. Lechner in Geimer/Schütze, European Succession Regulation, 2016, Art. 83 para. 8; MüKoBGB/Dutta, Art. 24 EuErbVO para. 19; Dörner, ZEV 2012, 505 [506]; Rudolf, ZfRV 2015, 212 [214, 217]; see also Pünder, 328; Heinig, RNotZ 2014, 197 [215]).
The appeal on points of law must also be upheld in that the Transitional provision thus refers to a situation that occurred before the regulation came into force.The legal position of a testator is subsequently devalued at least by the fact that after the cut-off date he is bound by his choice of law previously made in an inheritance contract and subsequently by a previously ineffective disposition of property upon death (in detail Sweet, Erbrecht in Europa, 3rd ed., § 1 para. 46). Contrary to the opinion of the appeal on points of law, however, this is a matter of This is not a genuine but a non-genuine retroactive effect, as the regulation is not linked to a situation that has already ended in the past. Rather, this is only finalised upon the occurrence of the succession. Accordingly, a choice of law made before the cut-off date does not take effect until the succession occurs on or after 17 August 2015 (cf. Palandt/Thorn, Art. 83 EuErbVO para. 4).
bb) Such a retroactive effect does not violate the principle of legal certainty, contrary to the submission of the legal complaint.
(1) According to the case law of the ECJ the principle of legal certainty generally precludes the date of application of a Union act from being set prior to its publication, although, exceptionally, it may be otherwise where the objective pursued so requires and due regard is had to the legitimate expectations of the persons concerned (ECJ, ECLI:EU:C:2019:332 = BeckRS 2019, 7077 = Celex no. 62017CJ0611 para. 106; ECJ, ECLI:EU:C:2010:798 = ECR 2010, I-13393 = EuZW 2011, 143 para. 40 - Bavaria; ECJ, ECLI:EU:C:2002:524 = ECR 2002, I-7869 = BeckRS 2004, 77749 para. 119 - Falck; in each case with further references). In that regard, in order to ensure compliance with the principles of legal certainty and the protection of legitimate expectations, Union substantive rules must be interpreted in such a way that they apply to situations that arose before their entry into force only to the extent that it is clear from their wording, purpose or structure that they are to be given such effect (ECJ, ECLI:EU:C:2010:798 = ECR 2010, I-13393 = EuZW 2011, 143 para. 40 - Bavaria; ECJ, ECLI:EU:C:2002:524 = ECR 2002, I-7869 = BeckRS 2004, 77749 para. 119 - Falck; see also ECJ, ECLI:EU:C:2019:332 = BeckRS 2019, 7077 = Celex no. 62017CJ0611 para. 106; ECJ, ECLI:EU:C:2006:449 = ECR 2006, I-6249 = BeckRS 2006, 70508 para. 42 - Kersbergen-Lap and Dams-Schipper; ECJ, ECLI:EU:C:2002:57 = ECR 2002, I-1049 = EuZW 2002, 374 para. 49 - Pokrzeptowicz-Meyer).
If the principle of legal certainty precludes the retrospective application of a regulation, regardless of whether such application is favourable or unfavourable to the person concerned, the same principle requires that, unless otherwise provided, each situation should normally be assessed on the basis of the legislation in force at the time. Although the new regulation therefore only applies to the future, it is also applicable to the future effects of circumstances that arose under the old law, unless otherwise specified (ECJ, ECLI:EU:C:2010:798 = ECR 2010, I-13393 = EuZW 2011, 143 para. 41 - Bavaria; ECJ, ECLI:EU:C:2002:524 = ECR 2002, I-7869 = BeckRS 2004, 77749 para. 41 - Falck; ECJ, ECLI:EU:C:2006:449 = ECR 2006, I-6249 = BeckRS 2006, 70508 para. 42 - Kersbergen-Lap and Dams-Schipper, in each case with further references). The scope of application of the principle of the protection of legitimate expectations may not be extended to such an extent that the application of a new regulation to the future effects of circumstances that arose under the previous regulation is completely excluded (ECJ, ECLI:EU:C:2010:10 = ECR 2010, I-131 = EuZW 2010, 222 para. 46 - City of Papenburg; ECJ, ECLI:EU:C:2002:57 = ECR 2002, I-1049 = EuZW 2002, 374 para. 55 - Pokrzeptowicz- Meyer mwN).
Measured against this, the retroactive effect of the Regulation in Art. 83 II Alt. 1 of the EU Succession Regulation does not give rise to any serious concerns.
(a) Goal of the European Succession Regulation is to to remove obstacles to the free movement of persons who have difficulties enforcing their rights in connection with a succession with cross-border implications under the autonomous rules of the Member States, in order to facilitate the smooth functioning of the internal market, to enable EU citizens to organise their succession in advance and to effectively safeguard the rights of heirs and legatees and other persons close to the deceased (see recitals 7 and 8 of the EU Succession Regulation; see also ECJ, ECLI:EU:C:2018:485 = NJW 2018, 2309 = ErbR 2018, 503 marginal no. 49 - Oberle).
Against this background, the transitional provisions are intended to make a choice of law as effective as possible and to protect the trust of the testator, who dies after the cut-off date but has already made a choice of law beforehand, in a specific substantive law (see BeckOGK/J. Schmidt, Art. 83 EuErbVO para. 4; Fucik in Deixler- Hübner/Schauer, EuErbVO, 2015, Art. 83 para. 5; Farmer in Dutta/Weber, Art. 83 EuErbVO para. 4; Lechner in Geimer/Schütze, Art. 83 para. 5; MüKoBGB/Dutta, Art. 83 EuErbVO para. 1; NK- BGB/Magnus, 3rd ed., Art. 83 EuErbVO para. 2, 8; Palandt/Thorn, Art. 83 EuErbVO para. 1; Lechner, ZErb 2014, 188 [193 f.]; Rudolf, ZfRV 2015, 212; Schoppe, IPRax 2014, 27 [28]).
(b) In individual cases, this may lead to a previously ineffective choice of law becoming effective and binding after the cut-off date (Lechner in Geimer/Schütze, Art. 83 para. 8; Schoppe, IPRax 2014, 27 [29]; see also on Art. 83 III EU Succession Regulation Lechner in Geimer/Schütze, para. 43; Odersky in Hausmann/Odersky, Internationales Privatrecht in der Notar- und Gestaltungspraxis, 3rd ed., § 15 para. 259; Hertel in Rauscher, European Civil Procedure and Conflict of Laws, 4th ed., Art. 83 EuErbVO para. 9; Pünder, 328). However, in Art. 83 II Alt. 1 of the EU Succession Regulation, the European legislator deliberately made the validity of a choice of law made before the cut-off date dependent solely on the fulfilment of the requirements of Chapter III of the Regulation (Lechner in Geimer/Schütze, Art. 83 para. 8). However, a restriction to the effect that this should only apply if the choice of law was also effective under the old conflict of laws cannot be inferred from the wording (cf. Schoppe, IPRax 2014, 27 [29] with reference to the English and French language versions). Thus, according to the legal concept of Art. 83 II Alt. 1 EuErbVO, initially invalid choices of law made in ignorance of the law are cured (cf. Lechner in Geimer/Schütze Art. 83 para. 8). The transitional provisions of Art. 83 of the EU Succession Regulation are characterised by the aim of maintaining the validity of - earlier - dispositions of property upon death and choices of law as far as possible, but also of curing them if necessary (cf. Lechner in Geimer/Schütze, Art. 83 para. 5).
(c) This understanding of the scope of application of Art. 83 II Alt. 1 EuErbVO is supported by the The purpose of the transitional provisions is to create a balance between the protection of the testator's legitimate expectation that his choice of law - even if possibly ineffective at the time - will continue to apply and the aim of giving actual effect to the politically intended change in the law (cf. Schoppe, IPRax 2014, 27 [29]). Testators covered by the scope of the Regulation are not disproportionately affected by this, as the transitional period of around three years between the entry into force of the European Succession Regulation and its application generally gave them sufficient time to adapt their succession matters to the new legal situation (cf. ECJ, ECLI:EU:C:1981:94 = ECR 1981, 1095 = BeckRS 2004, 71268 para. 50; ECJ, ECLI:EU:C:1979:129 = ECR 1979, 1801 = BeckRS 2004, 73806 para. 20 et seq.; see also Schoppe, IPRax 2014, 27 [28]).
(2) The complaint of the appellant that the aforementioned interpretation of the transitional provisions violates German constitutional law is not valid because the non-genuine retroactive effect of the European Succession Regulation is also unobjectionable under constitutional law.
According to the case law of the BVerfG in particular, the constitutional protection of legitimate expectations does not go so far as to protect the citizen from any disappointment. Insofar as there are no special factors worthy of protection, the mere general expectation that the law in force will continue unchanged in the future does not enjoy any special constitutional protection (BVerfGE 132, 302 = NJW 2013, 145 para. 45; BVerfGE 127, 1 = NJW 2010, 3629 para. 57; BVerfGE 68, 287 = NZA 1985, 326 para. 46, in each case with further references). However, the legislature must take sufficient account of the constitutionally required protection of legitimate expectations insofar as it links future legal consequences to past circumstances. The interests of the general public, which are pursued with the regulation, and the trust of the individual in the continued validity of the legal situation must be weighed up. The principle of proportionality must be observed. A non-genuine retroactive effect is therefore only compatible with the principles of fundamental rights and the protection of legitimate expectations under the rule of law if it is suitable and necessary to promote the purpose of the law and if, in an overall weighing of the weight of the disappointed trust and the weight and urgency of the reasons justifying the change in the law, the limit of reasonableness is maintained (BVerfGE 132, 302 = NJW 2013, 145 para. 46; BVerfGE 127, 1 = NJW 2010, 3629 para. 58, in each case with further references). The transitional provision of the EU Succession Regulation fulfils these constitutional requirements for the reasons set out above.
3. a reference for a preliminary ruling to the ECJ pursuant to Art. 267 III TFEU is not required in the case in dispute, since the correct interpretation and application of the relevant provisions of the European Succession Regulation are so obvious that there is no room for reasonable doubt (cf. ECJ, ECLI:EU:C:2016:603 = OJ 2016 C 350, 11 = BeckRS 2016, 81745 para. 53 = NVwZ 2016, 1403 Ls. - Association France Nature Environnement; ECJ, ECLI:EU:C:2015:644 = GRUR Int 2015, 1152 para. 43 - Doc Generici; ECJ, ECLI:EU:C:1982:335 = ECR 1982, 3415 = NJW 1983, 1257 para. 16, 21 - CILFIT).