This article builds on the article on the Responsibilities under the European Succession Regulation (EuErbVO) and is intended to provide a more detailed insight into the system of jurisdiction of the courts in the event of a choice of law.
Reasons for the regulations
Articles 5-9 of the EU Succession Regulation contain special rules on jurisdiction in the event that the deceased has made a choice of law. In principle, however, even if the testator has made a choice of law, the courts of the state in which the testator had his habitual residence at the time of his death have jurisdiction. If, for example, a German citizen living in Spain stipulates in his will that German law should apply to his succession, the Spanish courts would still have jurisdiction in the event of succession, e.g. for issuing a European Certificate of Succession. In principle, the German courts are also not allowed to issue a certificate of inheritance, even if real estate belonging to the estate is located in Germany and/or the heirs live in Germany.
This is problematic insofar as, according to Recital 27 of the Regulation, the authorities of a state should apply their own law as far as possible. In order to restore the synchronisation between jurisdiction (forum) and the applicable law (ius), the special provisions of Article 5 et seq. EuErbVO were created.
Content of the regulations
Under Article 5 of the EU Succession Regulation, the parties involved may conclude an agreement conferring jurisdiction. The requirements for such an agreement are set out in paragraph 2. It must be concluded in writing, dated and signed by all parties involved.
The persons involved are specified in recital 28. According to this, the jurisdiction agreement does not have to be concluded between all parties affected by the succession. It is sufficient that it is agreed between those parties whose rights are affected by the court's decision on the specific subject matter of the proceedings. The specific subject matter of the proceedings must therefore be analysed.
The concurrence of applicable law and jurisdiction can also be established by the courts of the state that would actually have jurisdiction under Article 4 of the Regulation declaring that they do not have jurisdiction upon request (Article 6 of the 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 succession matter better, for example because assets are located there or because there is a jurisdiction agreement in accordance with Article 5 of the Regulation. In the above example, in which a German national living in Spain has stipulated in his will that German law is to apply to his succession, the Spanish courts could, upon application, declare that they have no jurisdiction if they come to the conclusion that the German courts are better suited to decide on the subject matter of the proceedings, for example because the majority or more complex part of the estate is located in Germany and the heirs also live in Germany.
If this has happened, i.e. the courts that actually have jurisdiction under Art. 4 of the Regulation have declined jurisdiction, the courts of the state whose law was chosen by the deceased have jurisdiction in accordance with Art. 7 Alt. a) of the Regulation.
The jurisdiction of the courts of the state of the law chosen by the deceased may also result from the fact that the parties to the proceedings have agreed on the jurisdiction of the courts of that state in accordance with Art. 5 of the EU Succession Regulation (Art. 7 Alt. b) of the EU Succession Regulation or that all parties to the proceedings have recognised jurisdiction (Art. 7 Alt. c) of the EU Succession Regulation).
Practical problems
Many problems can arise in practice from the interplay of the various jurisdictional regulations.
1. the difficulty of a jurisdiction agreement
In order to reach an agreement on the place of jurisdiction, all parties involved must agree. As described above, these are all persons who are directly affected by the subject matter of the proceedings. However, the interests of the parties involved may differ. Consent is therefore by no means certain. Therefore, according to Art. 6 of the EU Succession Regulation, it is possible to file an application as an individual party. The court can then declare that it has no jurisdiction. This is a discretionary decision that takes into account whether other courts can decide the matter better. However, the requirement to file an application alone gives rise to further difficulties.
2. the determination of the competent foreign courts
In order to be able to file the application, the competent court must first be determined. International, local, substantive and instance jurisdiction must be taken into account. This requires knowledge of the respective procedural law and can only work with the cross-border co-operation of lawyers.
3. the difficulty of conducting proceedings abroad
Once the competent court has been determined, corresponding applications must be submitted and correspondence with the court must be entered into. In addition to the problem of complying with the relevant procedural law, there are also language problems and the difficulty of conducting proceedings from a distance. Here too, it is therefore practically indispensable to work together with local lawyers in order to best serve the interests of the client.
What happens if a foreign court declares that it has no jurisdiction?
If the problems described above have been overcome and the application for a declaration of lack of jurisdiction has been granted, the courts of the Member State whose law is applicable according to the deceased's choice of law will subsequently have jurisdiction.
Their local and material jurisdiction must then be determined. This differs between ZPO and FamFG proceedings:
Local jurisdiction in ZPO proceedings
In the event that a foreign court that actually has jurisdiction (from a German perspective) has declared that it does not have jurisdiction pursuant to Art. 6 of the EU Succession Regulation because the testator has chosen German law and the foreign court has come to the conclusion that the German courts are better suited to decide on the subject matter of the proceedings, the question arises as to which court in Germany then has jurisdiction. This domestic German jurisdiction is not regulated in the EU Succession Regulation, but is determined by domestic German law. Pursuant to Section 2 (4) IntErbRVG, the court in whose district the deceased had their last habitual residence in Germany has local jurisdiction. If the deceased had no habitual residence in Germany, the local court of Berlin-Schöneberg has local jurisdiction.
Even in the event that the parties to the proceedings have agreed on the jurisdiction of a German court in accordance with Art 7b of the EU Succession Regulation, German domestic jurisdiction arises from § 2 of the EU Succession Regulation.
In the event that the international jurisdiction of a German court is recognised pursuant to Art. 7 lit. c EuErbVO in conjunction with Section 2 para. 2 IntErbRVG, the court seised, whose jurisdiction the parties to the proceedings have expressly recognised, also has exclusive local jurisdiction.
Subject matter jurisdiction in ZPO proceedings
The subject matter jurisdiction is determined in accordance with the general provisions, i.e. in accordance with Sections 71, 23 No. 1 GVG. In particular, para. 4 sentence 3 does not establish the subject-matter jurisdiction of the Schöneberg Local Court. This sentence only regulates a subsidiary local jurisdiction, so that the local jurisdiction regulated there can also refer to the Berlin Regional Court, which must be determined on a case-by-case basis.
Local jurisdiction in FamFG proceedings
The connecting standard for FamFG proceedings is Section 47 IntErbRVG. However, this refers to Section 2 IntErbRVG for elective jurisdiction, meaning that the above statements apply accordingly. If jurisdiction is not based on the parties' choice, the provisions of the FamFG apply directly (Section 47 No. 2 IntErbRVG). Section 343 FamFG therefore applies, although it contains provisions with the same meaning as Section 2 (4) IntErbRVG. The deceased's habitual place of residence is decisive in a subsidiary connection, otherwise the deceased's last habitual place of residence is decisive. Alternatively, the Berlin-Schöneberg Local Court has local jurisdiction.
Subject matter jurisdiction in FamFG proceedings
The comments on the ZPO proceedings apply accordingly.
Result
When examining the local and substantive jurisdiction of German courts, the subject matter of the proceedings must be taken into account. This determines whether civil procedural law or the procedural law of free jurisdiction applies. German procedural law is also based on the habitual residence of the deceased. Whether this concept is identical to the concept of habitual residence under EU law is questionable. In any case, the EU Succession Regulation does not apply to the interpretation, as it only regulates conflict of laws and jurisdiction. Terms of the lex fori, which exclusively regulate domestic jurisdiction, are interpreted autonomously. However, it is recognisable in decisions of German courts that they interpret the terms identically (see most recently: Decision of the OLG Celle).