Supreme Court, decision of 29 August 2017 – 5 Ob 108/17v
Central standards: Art 1 Paragraph 2 lit l EuErbVO, Art 68 EuErbVO
(Exemption from registration law and effect of a European Certificate of Succession and German certificates of inheritance in Austria)
Problem:
The applicant sought registration (incorporation) of his person as heir to a property located in Austria. He submitted a purchase agreement, a German certificate of inheritance, and a (now expired) European Certificate of Succession. The certificate of inheritance and the European Certificate of Succession identified the seller as the heir. The applicable law of succession is German law. The point of contention was the extent of the registration exemption in Article 1(2)(l) of the EU Succession Regulation, according to which "any registration of rights in movable or immovable property, including the legal requirements for such registration and the effects of registration or the lack thereof of registration of such rights in a register" is excluded from its scope.
The Austrian Supreme Court states the following in this regard: „"While a European Certificate of Succession constitutes – without prejudice to Article 1(2)(k) and (l) – a valid document for the registration of the estate's assets in the relevant register of a Member State pursuant to Article 69 of the EU Succession Regulation (see also Section 33(1)(d) of the Austrian Land Register Act), it is only required to contain the information specifically listed in Article 68 of the EU Succession Regulation. However, Article 68 of the EU Succession Regulation does not provide any indication as to whether real estate is part of the estate, how the estate is acquired, or, in the case of real estate located abroad, how ownership is transferred."“
Evaluation:
For the purposes of the registration, according to Recital 19, second sentence, of the EU Succession Regulation, the law of the registering state applies – irrespective of whether the asset is movable or immovable.Register status) decisive. The register statute also determines whether the registration has declaratory or constitutive effect, or whether it is effective against everyone or only relatively. The acquisition process (cf. to Acquisition modalities and the nature of real rights also ECJ-KubickaHowever, the inheritance rights to an estate are governed by the law of succession. The registration status therefore only determines the effects of registration or non-registration.
For the reasons:
1. According to established case law, a party to proceedings has no right to request the Court to initiate a review of legislation before the Constitutional Court or a preliminary ruling procedure before the Court of Justice of the European Union (CJEU), and therefore the corresponding request had to be rejected (RIS-Justiz RS0058452 [T3, T5, T14, T21]). Due to a procedural defect that currently prevents a decision on the merits, the Supreme Court does not consider itself obliged to initiate a preliminary ruling procedure ex officio.
2. In the context of the appeal on points of law, a serious procedural defect, amounting to a nullity, is a legal question of considerable importance within the meaning of the law.
to exercise the right to judicial authorization pursuant to Section 62 Paragraph 1 of the Non-Contentious Proceedings Act in conjunction with Section 126 Paragraph 1 of the Courts Act (Section 66 Paragraph 1 Item 1, Section 58 Paragraph 4 Item 2 of the Non-Contentious Proceedings Act), because the lower courts did not observe the judicial authorization requirement pursuant to Section 16 Paragraph 2 Item 6 of the Law on Court Clerks:
3.1. According to Section 94 Paragraph 1 of the Land Registry Act, the Land Registry Court must subject the application and its attachments to a thorough examination and may only approve a land registry entry if
1. the land register reveals no obstacle to the requested registration with regard to the property or the right;
2. There is no well-founded concern regarding the personal ability of the parties involved in the registration to dispose of the object to which the registration relates or regarding the authority of the applicants to intervene;
3. the request appears to be justified by the content of the documents submitted and
4. the documents are in the form required for the granting of an incorporation, preliminary registration or annotation.
3.2. According to Section 21 of the Land Register Act (GBG), entries in the land register are only permissible against the person who, at the time of application, appears in the land register as the owner of the property or right in respect of which the entry is to be made, or who is simultaneously registered or noted as such. If a deviation from this rule is desired ("direct entry"), Section 22 of the Land Register Act requires a complete chain of documents demonstrating that the registered predecessor within the meaning of Section 21 of the Land Register Act transferred his rights to those predecessors from whom the new acquirer now derives his rights. According to Section 22 of the Land Register Act, the last transferee may also have his rights entered in the land register even if his immediate predecessor does not appear in the land register; however, this only applies if the acquisition of rights up to the immediate registered predecessor is proven by registrable documents (RIS-Justiz RS0060710).
4. The applicant seeks such a "direct entry" in the land register, as he wishes to have his ownership rights registered based on a purchase agreement he concluded with Ralf Günter N***** as the seller, who is not listed as the owner of the sold property in the land register. The lower courts therefore correctly examined first whether, according to the documents submitted with the application, the seller was entitled, as an extra-registered purchaser of the property, to sell it to the applicant. The seller's authority was based on his status as heir of the registered owner.
5. According to the lower courts' correct assessment, Regulation (EU) No 650/2012 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 creating a European Certificate of Succession (hereinafter referred to as the EU Succession Regulation), which entered into force on 17 August 2015, is applicable for this assessment, especially since, according to the documents attached to the land register application, the registered owner had his habitual residence in Germany and died after the entry into force of the Regulation (Art. 83 EU Succession Regulation). European Union law is part of Austrian law and is therefore not to be regarded as foreign law (6 Ob 152/12i; 10 Ob 2/14p).
6. The general law of succession is governed by Article 23(1) of the EU Succession Regulation and is determined either by a choice of law – not documented in this case – (Article 22 EU Succession Regulation) or, in the absence of such a choice, primarily by the habitual residence of the deceased at the time of death (Article 21(1) EU Succession Regulation). Only in exceptional cases, where there is a manifestly closer connection to a state other than the state of residence, does the law of that state apply (Article 21(2) EU Succession Regulation), for which there is no indication here. According to Article 23(2), the general law of succession applies to the following:
lit a EuErbVO, for example, the reasons for the occurrence of the inheritance as well as its time and place, including the legal transfer of the estate (within the meaning of §§ 531, 548 ABGB – Traar in Burgstaller/Neumayr/Geroldinger/Schmaranzer, IZVR Art 23 EuErbVO Rz 4). Similarly, the law of succession, pursuant to Article 23(2)(e) of the EU Succession Regulation, governs the transfer of the assets, rights, and obligations belonging to the estate to the heirs, thus specifying when, in what form (by operation of law or by court order), under what conditions, and with what effects the estate or parts thereof pass to the beneficiaries or claims become due (Traar, loc. cit., para. 10; Mankowski in Deixler-Hübner/Schauer, EU Succession Regulation, Article 23, paras. 46 et seq.), and ultimately (lit. f) also the rights of the heirs, particularly with regard to the disposal of assets and the satisfaction of creditors. According to the appellant's correct view – which is also consistent with the statement in the European Certificate of Succession – German substantive law is applicable here for the assessment of all these issues.
7. Article 1(2)(l) of the EU Succession Regulation excludes from the scope of the Regulation any registration of rights in movable or immovable property in a register, including the legal requirements for such registration and the effect of the registration or non-registration of such rights in a register. According to the clear wording of this provision, the preliminary question of whether the property belonged to the deceased in rem is to be resolved under Austrian law (§ 31 PILA; Traar in Burgstaller/Neumayr/Geroldinger/Schmaranzer, IZVR Art. 1 EU Succession Regulation, para. 7), but not the – in the
The question of whether rights to the property are even subject to inheritance law, and if so, how and when the heir acquires the estate, is not regulated at all under national registration law. In this respect, the law of succession pursuant to Article 23(1) of the EU Succession Regulation applies, which here refers to German inheritance law. However, the literature on the scope of the exception in Article 1(2)(l) of the EU Succession Regulation is not unanimous regarding the question of whether the registration of an asset of the estate has a merely declaratory or constitutive effect: Fischer/Czermak in Schauer/Scheuba, Europäische Erbrechtsverordnung (2012), 28, and Mankowski in Deixler-Hübner/Schauer, EuErbVO Art. 1, para. 89, also consider the exception to cover the question of whether the registration of an asset of the estate has a constitutive or declaratory effect. According to Dutta in MünchKomm BGB6 Art. 1 EuErbVO para. 32, the registration law only governs the effect of registration on substantive law. According to Thorn in Palandt75 Art. 1 EuErbVO para. 16, the transfer is always governed by the law of succession, because the registration law never regulates the transfer of rights, but only their registration; according to Rudolf/Zöchling-Jud/Kogler in Rechberger/Zöchling-Jud, Die EU-Erbrechtsverordnung in Österreich (2015), para. 254, registration is not constitutive if the right has already been transferred according to the law of succession. Traar in Burgstaller/Neumayr/Geroldinger/Schmaranzer, IZVR Art 1 EuErbVO Rz 38, takes the view that the provision of § 819 ABGB concerning the granting of probate is not a regulation of the register law and that the application of the basic rule of §§ 431, 436 ABGB to universal succession would lead to a flawed legal relationship and a division of the estate not desired by the Regulation in cases where the law of succession does not recognize a dormant estate, so that real estate registered in the Austrian land register also passes ex lege outside the register by way of universal succession if the specific law of succession applicable provides for this. According to Rudolf/Zöchling-Jud/Kogler (Rechberger/Zöchling-Jud, Die EU‐Erbrechtsverordnung in Österreich [2015], paras. 252 ff and 259 f), the law of succession – and not the law of property – determines the allocation process to heirs, legatees or other beneficiaries (similarly Thorn
(ibid.). In any case, if one follows the convincingly reasoned view of Dutta, Thorn, Traar and Rudolf/Zöchling-Jud/Kogler, the law of succession – in this case German law – is also decisive for assessing the question of whether the ownership of the property has already passed ex lege extra-legally to the seller of the property or not and whether he was able to dispose of it.
8. Although a European Certificate of Succession constitutes – without prejudice to Article 1(2)(k) and (l) – a valid document for the registration of the estate's assets in the relevant register of a Member State pursuant to Article 69 of the EU Succession Regulation (see also Section 33(1)(d) of the Austrian Land Register Act), it is only required to contain the information specifically listed in Article 68 of the EU Succession Regulation. However, Article 68 of the EU Succession Regulation does not provide any information on whether real estate is part of the estate, how the estate is acquired, or, in the case of real estate located abroad, how ownership is transferred. Furthermore, the copy submitted with the land register application had already lost its validity at the time of application (cf. Art. 70 para. 3 EU Succession Regulation), which, according to unanimous opinion (Perscha in Deixler-Hübner/Schauer, EU Succession Regulation Art. 70 para. 8; Dutta in MünchKomm-BGB6 Art. 70 EU Succession Regulation para. 6), means that the European Certificate of Succession no longer had the effects of Art. 69 EU Succession Regulation, so that the presumption stipulated in Art. 69 para. 2 EU Succession Regulation that the certificate correctly identifies the seller's status as heir of the property owner is also not applicable here. In assessing this question as well as the effects of the submitted German certificate of inheritance (see Rechberger/ Kieweler in Rechberger/Zöchling-Jud, Die EU‐Erbrechtsverordnung in Österreich [2015], para. 90), the lower courts had to refer in principle to the law of succession pursuant to Art. 23 EuErbVO and thus to German law.
9. Pursuant to Section 16 Paragraph 2 Item 6 of the Law on Court Clerks (RPflG), decisions involving the application of foreign law remain reserved to a judge – even in land registry matters. For the judicial reservation to take effect under this provision, it is sufficient that the necessity of considering a foreign legal provision is at least conceivable (RIS-Justiz RS0125906; Hoyer; Note to 5 Ob 184/08g = NZ 2009/736 [GBSlg]).;
5 Ob 208/09p = NZ 2010/92 [Hoyer]). Based on the above, it must be assumed that not only the EU Succession Regulation, which is part of Austrian law, but also, due to the conflict-of-laws rules stipulated therein, the substantive German inheritance law must be applied.
10. According to established case law, a decision issued by a judicial officer exceeding the authority granted to him by law, and the preceding proceedings insofar as they were conducted by the judicial officer, are void within the meaning of Section 477 Paragraph 1 Item 2 of the Code of Civil Procedure, so that such a decision must be set aside if challenged. The voidness must be invoked until the final and binding conclusion of the proceedings, even if it was not asserted in the appeal (RIS-Justiz RS0007465 [T2]). This consequence now also follows from Section 58 Paragraph 4 Item 2 in conjunction with Section 58 Paragraph 3 of the Non-Contentious Proceedings Act and Section 75 Paragraph 2 of the Courts Act (RIS-Justiz RS0007465 [T10]), although the Non-Contentious Proceedings Act avoids the term voidness. However, a decision on the merits by the Supreme Court is not possible in the given circumstances (5 Ob 208/09b).