Supreme Court, decision of 15 May 2018 - 5 Ob 35/18k
Central standardsEU Inheritance Regulation Art. 1 para. 2 lit. l, Art. 4, 68, 69
(Effect of the European Certificate of Succession and exemption from register law)
Guiding principle of the editor:
The European Certificate of Succession does not require a specific designation of the property in question. The content of the certificate is governed exclusively by Article 68 of the EU Succession Regulation. Registration is not prevented by its absence.
Problem:
By submitting a certified copy of the European Certificate of Succession (ECC) issued by a German AG on 14 December 2016 and other documents, the applicants are requesting the incorporation of their proportionate ownership rights to the properties shown in the award. The courts of lower instance were of the opinion that the ENZ required the respective deposit numbers and cadastral municipalities to be stated in accordance with Section 433 (Austrian) ABGB in conjunction with Section 33 para. 1 lit. d (Austrian) GBG. Such information on the designation of the properties was not contained in the submitted deed. Since it must be clear from national documents which property was transferred by way of inheritance, the ENZ must also fulfil the formal requirement under Austrian land register law.
For the reasons:
The appeal on points of law is admissible for the reason stated by the Court of Appeal; it is also justified.
1.1 The ENZ, as submitted by the Ast. as the basis for their application for incorporation, was introduced by Art. 62 of the EU Succession Regulation. The original of such a certificate remains with the issuing authority. Upon request, certified copies must be produced which are valid for a limited period of 6 months, whereby the expiry date must be indicated in the copy (Art. 70 para. 1 and 3 of the Regulation). The copy submitted by the Ast. was valid until 15 June 2017.
1.2 Pursuant to § 93 GBG, the time at which a land register application is received by the land register court is decisive for the assessment of the application. This applies to all instances (...) and also to the assessment of the documents (...), so that the examination in the third instance as to whether the request is covered by the content of the documents submitted is also based on this point in time. At the time their application was received, the copy of the ENZ submitted by the Ast. was still valid and must therefore be used as the basis for the assessment of their request.
2.1 If no other element of jurisdiction under the Regulation applies, the courts of the Member State in which the deceased had their habitual residence at the time of death have international jurisdiction to rule on succession matters for the entire estate in accordance with Art. 4 of the Regulation. The courts of this Member State are also responsible for issuing the succession certificate (Art. 64 EU Succession Regulation), unless there are national provisions to the contrary.
2.2 The general law of succession (Art. 23 para. 1 EU Succession Regulation) is also primarily based on the habitual residence of the deceased at the time of death (Art. 21 para. 1 EU Succession Regulation). Pursuant to Art. 23 para. 2 lit. a EU Succession Regulation, it is subject to, for example, the reasons for the occurrence of the succession as well as its time and place; this also includes the transfer of the estate under inheritance law (Traar in Burgstaller/Neumayr/Geroldinger/Schmaranzer, IZVR, Art. 23 EU Succession Regulation para. 4).
2.3 The German law applicable according to the law of succession does not recognise a resolution on the inheritance comparable to §§ 177f (Austrian) AußStrG. Pursuant to Section 2353 BGB, the heir must be issued with a certificate of inheritance (certificate of inheritance) upon request, in which, if he or she is only entitled to part of the inheritance, the size of the inheritance share must be stated. Only the inheritance is certified, i.e. only the new legal responsibility derived directly from the testator (Grziwotz in MüKoBGB, Section 2353 para. 22).
2.4 The information listed in Art. 68 of the EU Succession Regulation must be included in the ENZ if this is necessary for the purposes for which it is issued. This is an exhaustive list (Oswald, Grenzüberschreitende Erbrechtsfälle, 2016, 221; Mondl/Tschugguel in Burgstaller/Neumayr/Geroldingerl/Schmaranzer, Die EU-Erbrechtsverordnung, Art. 68 para. 1). According to Art. 68 lit. 1 EU Succession Regulation, this includes the inheritance share of each heir and, if applicable, the list of rights and/or assets to which a particular heir is entitled. From this, the Court of Appeal infers that the designation of the properties can also be included in the certificate in a case such as the present one. German courts are of the opinion that if - as in the present case - German inheritance law applies, it is not possible to specify individual items of the estate in the ENZ (OLG Nuremberg of 5 April 2017 - 15 W 299/17, ZEV 2017, 579 mAnm Weinbeck; OLG Munich of 12 September 2017 - 31 Wx 275/17, ZEV 2017, 580, each with further references).
3.1 Under Article 69(1) of the Succession Regulation, the Certificate produces effects in all Member States without any special procedure being required. According to para. 2 of this article, it is presumed that the person named in the Certificate as heir or legatee has the legal status and rights specified in the Certificate and that these rights are not subject to any conditions and/or restrictions other than those specified in the Certificate. Pursuant to Art. 69 para. 5 Succession Regulation, it constitutes an effective document for the registration of the succession assets in the relevant register of a Member State, without prejudice to Art. 1 para. 2 lit. k and l.
3.2 Recital 69 of the Regulation clarifies the effect of the ENC, stating that an authority or person to whom a Certificate issued in another Member State is presented should not be able to require that a decision, authentic instrument or court settlement be presented instead of the Certificate. The certificate therefore has a legitimising effect vis-à-vis the register authority (Rechberger/Kieweler in Rechberger/Zöchling-Jud, Die EU-Erbrechtsverordnung in Österreich, 2015, 309 f.; Neumayr AnwBl. 2016, 262 [263]; Oswald loc. cit. 226). The ECJ has already ruled that the certificate must enable each heir, legatee or legal successor named therein to prove their legal status and rights in another Member State (ECJ of 12 October 2017 - C-218/16, ZEV 2018, 41 para. 59; in this sense also Recital 18 of the Regulation).
3.3 The register authority must therefore generally accept the ENZ as the basis for its registration without being able to demand further proof of the legal position of the applicant for registration (Schauer, ENZ, 93; ibid. in Deixler-Hübner/Schauer, EuErbVO, Art. 69 para. 43; Rechberger/Kieweler loc. cit. 310; Oswald loc. cit. 226; Dutta in MüKoBGB, Art. 69 EuErbVO para. 30). With the Inheritance Law Amendment Act (Federal Law Gazette I 2015/87), the legislator included the ENZ in the catalogue of Section 33 para. 1 lit. d GBG (RV 688 BlgNR 25. GP 3, 46) for clarification as a document on the basis of which registrations can be made, so that the legal situation is also clear under national land register law in this respect (see also Verweijen, HdB des Verlassenschaftsverfahren, 2018, 116). Therefore, if an ENZ has been issued by the competent authority of a Member State (Art. 4 in conjunction with Art. 67 EU Succession Regulation) and a copy thereof has been submitted to the land register court, it is not possible from a national perspective to also request an inheritance decision.
4.1 Article 1(2)(l) of the EU Succession Regulation excludes from the scope of the Regulation any entry of rights in immovable or movable property in a register, including the legal requirements for such an entry and the effect of the entry or lack of entry of such rights in a register (see also ECJ ZEV 2018, 41 para. 52). Recital 18 states that the law of the Member State in which the register of immovable property is kept (lex rei sitae) should determine under which legal conditions and how the entry is to be made and which authorities, such as land registries or notaries, are responsible for checking that all registration requirements are met and that the documents submitted or drawn up are complete or contain the necessary information.
4.2 The official register procedure is therefore completely excluded from the ordinance (Rudolf/Zöchling-Jud/Kogler loc. cit. 206 f.), so that the requirements for the entries to be made on the basis of the certified copy of an ENZ, in particular the documents to be submitted for this purpose (tax declarations), are governed exclusively by the law of the state of registration (Schauer Art. 69 EuErbVO para. 45). From an Austrian perspective, this exception covers the following formal and substantive land register law, i.e. also property law relating to real estate (Mankowski in Deixler-Hübner/Schauer, EuErbVO, Art. 1 para. 97). This determines whether, in addition to the certificate, additional procedural requirements can be demanded for the transfer of a registered right (Dutta Art. 69 EuErbVO para. 30).
4.3 The lower courts correctly assumed that the formal requirements of the GBG must be observed for the execution of land register entries based on an ENZ. Pursuant to § 94 para. 1 GBG, the land register court must subject the application and its enclosures to a detailed examination and may only approve an entry in the land register (inter alia) if (subpara. 3) the request appears to be justified by the content of the documents submitted and (subpara. 4) the documents are in the form required for the approval of an entry, priority notice or annotation. It must therefore be examined whether the designation of the properties, which was omitted by the previous instances, is a formal requirement or whether the certificate submitted by the Ast. is incomplete due to the lack of this information and is therefore not able to substantiate the request of the Ast.
5.1 According to § 32 Para. 1 GBG, private deeds on the basis of which an incorporation is to take place must, in addition to the requirements of §§ 26, 27 GBG (among others), contain the exact details of the property or right in respect of which the incorporation is to take place (§ 32 Para. 1 lit. a GBG). In contrast, § 33 Para. 1 GBG lists the public deeds on the basis of which registrations can take place. These are
„a) the deeds relating to legal transactions recorded by a public authority or by a notary within the limits of their official powers, if they are accompanied by the requirements prescribed in § 32 GBG; [...]
d) other documents that have the status of a judicially enforceable pronouncement of a public authority. These include, in particular, final judgements, decisions on book entries and deletions for the execution of the distribution order (§ 237 EO), official confirmations of the voluntary auction of a property, the decisions on inheritance and official confirmations of the probate courts (§§ 178 and 182 AußStrG), as well as European certificates of inheritance and certificates of inheritance from authorities that are responsible for issuing them in accordance with the EU Succession Regulation.“
5.2 The precise indication of the property in respect of which the incorporation is to take place, as required by § 32 para. 1 GBG for private deeds, is not an expressly stated requirement due to the lack of reference to this provision in lit. d of § 33 para. 1 GBG. The Land Register Act also does not mention the requirement to precisely designate the property for an incorporation based on an Austrian inheritance decision.
5.3 Section 178 para. 2 subpara. 2 AußStrG stipulates that, if the inheritance also includes real estate, each land register body on which the land register order is to be established as a result of the inheritance must be included in the decision on the inheritance. This provision applies to the probate proceedings (III. main part of the AußStrG) and is to be regarded as an instruction to the Austrian probate court (see also Sailer in Gitschthaler/Höllwerth, AußStrG, § 178 para. 1). It (insofar as mandatory) determines the content of the inheritance decision if it is to be a suitable basis for registration pursuant to Section 33 para. 1 lit. d GBG (5 Ob 107/11p), but is not part of the formal register law within the meaning of Art. 1 para. 2 lit. 1 EU Succession Regulation (see also OGH Vienna of 21 December 2017 - 5 Ob 186/17i, ZEV 2018, 737 with comment by Steiner).
5.4 The content of the ENZ is governed exclusively by Art. 68 of the EU Succession Regulation, which is to be interpreted autonomously in accordance with its wording and the objectives of the Regulation. This excludes recourse to national law (Traar before § 1 EuErbVO para. 4; Dutta before § 1 EuErbVO para. 23 mwN). This means that the certificate cannot be given a content that is derived from a national provision that is also not formal register law. However, this is the aim of the reasoning of the Court of Appeal when, with reference to the decision 5 Ob 107/11p, it also requires the designation of the property required for an inheritance order under Austrian law for the certificate.
5.5 Unlike Section 178 para. 2 subpara. 2 AussStrG for the inheritance decision, Art. 68 of the Succession Regulation does not include the designation of the properties that have been transferred by way of inheritance as part of the ENZ. According to Art. 68 lit. l of the Regulation, the certificate may also contain a list of the rights and/or assets to which a particular heir is entitled. However, this follows from the purpose of the certificate laid down in the Regulation, which can also serve as proof of the allocation of certain assets of the estate to heirs or legatees (Art. 63 para. 2 lit. b of the Regulation). In the case of an „allocation“ of one or individual properties to specific persons named in the certificate as heirs or legatees, it is not necessary to examine how they should be designated in the present case because, according to the content of the certificate, the Ast. are each entitled to the entire estate of E on a pro rata basis. In any case, it does not follow from these provisions that the designation of properties would generally be a necessary content of an ENZ. The certificate submitted by the Ast. is therefore not deficient, but complies with the content requirements of the ordinance.
5.5 Land register entries may only be authorised if the request appears to be justified by the content of the documents submitted. The application can therefore only be approved if the content of the documents does not give rise to any doubts in terms of substantive law (...).
5.6 There are no doubts as to the legal position of the Ast. due to the presumption effects standardised in Art. 69 para. 2 of the Regulation on Succession (see Neumayr loc. cit. 263). The lower courts did not doubt that the deceased named in the certificate was the owner of the properties covered by the application. According to the status of the land register and the documents, there is no reason to do so. There is therefore no room for concerns (...) in the case of the ENZ submitted. According to this, the Ast. as heirs are each entitled to 1/4 of the entire estate of E named in the certificate. There is therefore no doubt that their claim includes all properties located in Austria that were owned by E. Based on the document submitted and the status of the land register, it is therefore not necessary to draw any conclusions about E's legal succession to the properties.
6 In summary, it follows that § 33 para. 1 lit. d GBG (in the absence of a reference to § 32 para. 1 GBG) does not require the exact specification of the property in respect of which the registration is to be made, so that according to formal register law, the specific designation of the property in the ENZ (or its copy) is not a mandatory prerequisite for incorporation. The content of such a certificate is governed exclusively by Art. 68 of the EU Succession Regulation, which conclusively regulates the information to be included therein and also does not require the designation of the property, so that the absence of this information alone does not prevent the authorisation of the incorporation on the basis of such a certificate. The content of the certificate submitted by the Ast. is therefore unobjectionable in formal terms and does not give rise to any doubts in terms of substantive law either, because it is linked to the (rebuttable) presumption that their legal status as stated in the certificate actually exists.
7. the Land Transfer Act 2001 (GVG 2001, LGBl 9/2002 as amended), which applies to Salzburg, contains its own provisions on acquisition by reason of death. Accordingly, the acquisition of rights by children does not require the consent of the land transfer authority if their position in relation to the deceased is recorded in the certificate of inheritance or official confirmation pursuant to § 178 AußStrG (now § 182 para. 3 AußStrG) (§ 22 para. 2 in conjunction with § 23 GVG 2001). The purpose of these regulations is to provide documentary evidence of the relationship of the heirs to the deceased by the authority authorised to issue the certificate. The ENZ corresponds to such a confirmation because, in accordance with Art. 68 lit. e of the EU Succession Regulation, it must contain information on any relationship of kinship or affinity of the Ast. to the deceased and is therefore to be considered equivalent to the documents mentioned in § 23 GVG 2001. The certificate submitted by the Ast. states that they are the daughters and sons of the deceased, so that there is no obstacle to the requested entries under property law.
8 Therefore, there is no reason to oppose the requested incorporations, so that the appeal on points of law is to be granted and the application of the Ast. is to be approved.