OLG Cologne, decision from 11.12.2019 - 2 Wx 332/19

Central standards: Artt. 4, 6, 7, 22 EuErbVO

(Requirements for the declaration of lack of jurisdiction pursuant to Art. 6 EU Succession Regulation)

Official guidelines:

1. the informal notification of a foreign notary of the applicability of German inheritance law and the lack of own knowledge of German inheritance law does not constitute an effective declaration of lack of jurisdiction within the meaning of Art. 6 letter a EuErbVO

2. an effective and binding declaration of lack of jurisdiction requires a corresponding application by a party and a choice of law by the deceased pursuant to Art. 22 of the EU Succession Regulation.

For the reasons:

2 The appeal (...) on the merits is unsuccessful.

11 In the present case, the German probate courts do not have international jurisdiction to grant the ENZ to E, who had his habitual residence in the Netherlands within the meaning of Art. 4 of the EU Succession Regulation.

12 Such jurisdiction does not arise from Article 7(a) of the EU Succession Regulation. According to this provision, the courts of a Member State whose law has been chosen in accordance with Article 22 have jurisdiction to rule on a succession if a court previously seised has declined jurisdiction in the same matter in accordance with Article 6. The provision thus links the establishment of the jurisdiction of the courts of the Member State whose law the testator has chosen to a declaration of lack of jurisdiction under the conditions of Article 6 of the Regulation. Accordingly, the letter from the Dutch notary dated 26 September 2018 is not a valid and binding declaration of lack of jurisdiction pursuant to Article 6(a) of the EU Succession Regulation because the conditions under which the discretion („may“) for a declaration of lack of jurisdiction under this provision is opened up are not evident from the letter. According to this provision, the discretionary declaration of lack of jurisdiction requires a corresponding application by a party to the proceedings, which was neither communicated by B 1 in response to the AG's notice of 7 November 2018, nor is it evident from the notary's letter. Furthermore, the provision presupposes a choice of law by the testator in accordance with Art. 22 of the EU Succession Regulation, which cannot be understood on the basis of the simple, unspecified reference to an „expert opinion by S.H. from Het Notarieel Bureau and its opinion of 21 September 2018“. In the absence of any relevance to the decision, it can therefore be left open here whether the procedure under Art. 6, 7 of the EU Succession Regulation can apply - as here - to testamentary dispositions drawn up before the entry into force of the EU Succession Regulation, in which the choice of law - contrary to the wording of the provision - cannot result from Art. 22 of the EU Succession Regulation, but at most from the transitional provisions (Art. 83 para. 2, 4 of the EU Succession Regulation).

13 The requirements for the authorisation of an appeal on points of law (Section 70 (2) FamFG) are not met. A request for a preliminary ruling to the ECJ pursuant to Art. 267 para. 3 TFEU is not necessary in the case in dispute, as the correct interpretation and application of the relevant provisions of the EU Succession Regulation are so obvious that there is no room for reasonable doubt.

14(...)

(3) For future proceedings concerning applications for the issue of certificates of inheritance or of ENZ, the Senate points out to the AG that it is not appropriate to refer to the parties involved as „heirs“ in the heading if - as here - their status as heirs has not been established.