For inheritance cases from 17 August 2015, the European Succession Regulation (EuErbVO). The regulation is intended to improve the handling of inheritance cases with a foreign connection in the European Union. It applies to all member states with the exception of Denmark, Ireland and the UK.
Jurisdiction without choice of law
According to Article 4 of the EU Succession Regulation, the courts of the Member State in which the deceased had his or her habitual residence had. The term „court“ should not be understood too narrowly; it also includes all other authorities and members of the legal professions that have jurisdiction over matters of succession in the respective Member States, Article 3(2) of the EU Succession Regulation. This understanding is therefore assumed in the following use of the term "court".
The concept of habitual residence is not precisely defined. Therefore, case law and literature must interpret the term. Taking into account recitals 23 and 24 of the EU Succession Regulation, the decisive factor is the actual centre of life of the person concerned, which must be determined taking into account all circumstances of the individual case.
The concept of habitual residence requires a certain physicalPresence in one place. Criteria such as the Social and cultural integration can be used as a supplement if a precise allocation to a country cannot be made. However, they are not mandatory criteria.
It is also undisputed that a Willingness to stay required. The testator must be consciously and intentionally present in a place. A transfer against a person's will cannot, in principle, change their habitual residence.
However, with the will to stay not the legal capacity to enter into legal transactions be meant. In a decision, the OLG Munich requires that the testator must have legal capacity in legal transactions. In practical terms, this would mean that a testator who lacks legal capacity cannot establish a new habitual residence. For example, a minor testator could not establish their own habitual residence. In a Decision of the ECJ on the Brussels IIa Regulation However, the court argued that even an infant - represented by its mother - could transfer its habitual residence to another country. Although it should be emphasised that the decision was made on a different regulation, European law is governed by the principle of uniformity and effective enforcement of the legal system. It can therefore be assumed that a term is not interpreted completely differently in different regulations.
The EU Succession Regulation thus does not link the jurisdiction of the courts to the nationality or home law of the deceased, but to the habitual residence. The aim was to ensure a synchronisation between the place of jurisdiction and the applicable law. However, this synchronisation is broken in the case of subsidiary jurisdiction in accordance with Article 10(2) of the EU Succession Regulation. Accordingly, if the habitual residence is in a third country, the courts of a member state still have jurisdiction if the assets of the estate are located in that state. However, jurisdiction is limited to these assets.
Jurisdiction for choice of law
If the testator has made a choice of law (Article 22 EU Succession Regulation), this also has an impact on the jurisdiction of the courts. In principle, the courts of the state in which the deceased had their habitual residence still have jurisdiction in accordance with Art. 4 of the EU Succession Regulation. However, if the testator has effectively chosen the law of another member state in accordance with Art. 22 of the Regulation, the courts of the state that would actually have jurisdiction in accordance with Art. 4 of the Regulation can rely on the law of another member state. Declare the application incompetent (Art. 6 EU Succession Regulation). The prerequisite for this is that the court seised is of the opinion that the courts of the state of the chosen law can decide the inheritance matter better, e.g. because a large part of the assets (real estate, accounts, etc.) are located there.
If this has happened, i.e. the courts that actually have jurisdiction under Art. 4 of the Regulation have declared that they do not have jurisdiction, the courts that have jurisdiction under Art. 7 Alt. a) of the Regulation are Courts of the state whose law was chosen by the testator have jurisdiction.
The jurisdiction of the courts of the state of the law chosen by the deceased may also result from the fact that the the parties to the proceedings have agreed on the jurisdiction of the courts of that State in accordance with Article 5 of the EU Succession Regulation (Art. 7 Alt. b) EuErbVO or all parties to the proceedings have recognised jurisdiction (Art. 7 Alt c) EuErbVO).
The parties to the proceedings are outlined in recital 28 of the EU Succession Regulation. Accordingly, the parties to the proceedings are not all the parties affected by the succession. Rather, they are the persons whose rights are affected by the court's decision on the specific issue(s) that is/are the subject of the respective proceedings. This means that the group of parties involved depends on what the court is to decide. It is therefore not always the same group of persons, but must be determined on a case-by-case basis. If individual parties to the proceedings have not participated in the recognition of the court or the agreement on jurisdiction, Art. 9 of the EU Succession Regulation applies.
If courts in several Member States have been seised of the same matter, the courts seised later shall stay the proceedings until the jurisdiction of the court first seised has been established, Article 17(1) of the Regulation. If the jurisdiction of a court seised earlier is established, all courts seised later declare that they have no jurisdiction, paragraph 2.
Responsibilities for the receipt of declarations of acceptance and cancellation
If the applicable law requires acceptance of the inheritance or if the heir wishes to waive it, the question arises as to whether he can also do so in his home country. Only the courts of the Member State in which the succession was opened have jurisdiction to accept or waive the succession in accordance with Article 13 of the Regulation. person declaring their habitual residence has. This is very favourable to these persons. Recital 32 of the Regulation states that:
„In the interests of heirs and legatees habitually resident in a Member State other than that in which the succession is being or is to be administered, this Regulation should enable any person entitled to do so under the law applicable to the succession to make declarations concerning the acceptance or waiver of an inheritance, legacy or reserved share or limiting his liability for succession obligations before the courts of the Member State of his habitual residence in the form provided for by the law of that Member State. (..)“
The receiving court only examines its jurisdiction and the form of the declaration. Whether such a declaration is required, on the other hand, is not part of the court's scope of review.
There is also a dispute as to whether a declaration made in accordance with Article 13 of the EU Succession Regulation can replace (substitute) a declaration made abroad. This would mean that the declaration would take effect in the other state immediately after being made. Among other things, the OLG Düsseldorf confirmed this in its decision of 26 October 2018 is affirmed. This is opposed by one view in the literature, which argues that the question of substitutability must be answered in the applicable legal system and not in the Regulation. However, this view also accepts that it is sufficient - in terms of the effective enforcement of EU law - if the foreign court is notified informally after the declaration has been made in Germany.
Responsibilities for issuing a European Certificate of Succession
The European Certificate of Succession (ECS) is regulated in Articles 62 et seq. EuErbVO and is essentially a „European certificate of inheritance“. Further Information on the ENZ and how to apply for it can be found here. The rules set out above, Article 64 of the EU Succession Regulation, apply to the granting of the certificate. In principle, the courts of the state in which the deceased had his habitual residence at the time of his death have jurisdiction to issue the certificate (Article 4 of the Regulation). Although the heir can make a declaration of acceptance or waiver of succession in the member state of his habitual residence, he may not be able to apply for a certificate of succession there. In addition, the heir can do not apply for a national certificate of inheritance. The ECJ has ruled in a judgement, that the provisions of the Regulation take precedence over national regulations, meaning that a national certificate of inheritance can only be applied for if the courts of the Member States have jurisdiction in accordance with Article 4 et seq. EuErbVO are competent.
Summary
The Inheritance Regulation aims to harmonise jurisdiction and applicable law. The Regulation aims to avoid a situation where the courts of a Member State have to rule on the merits of a foreign law of succession. This is intended to ensure that the succession is decided as a whole and that no contradictory decisions are made in the member states (concurrence of decisions). As a rule, the courts of the member state whose law is applicable have jurisdiction. However, jurisdiction and applicable law do not coincide in particular if the deceased has made a choice of law in favour of their home law and the law of the country in which the deceased had their last habitual residence is not applicable. Jurisdiction then does not automatically follow the choice of law.