Competences according to EuErbVO
The European Inheritance Law Regulation (EuErbVO) applies to inheritance cases from August 17, 2015. The regulation is intended to improve the handling of inheritance cases with a foreign connection within the European Union. It applies to all member states with the exception of Denmark, Ireland and Great Britain.
According to Article 4 EuErbVO the courts of the Member State in which the testator had his habitual residence have jurisdiction. The term "court" must not be understood too narrowly; it also includes all other authorities and members of the legal professions that are competent in the respective Member States for inheritance matters, Article 3 (2) EuErbVO. This understanding is therefore assumed in the following use of the term "court".
The term "habitual residence" is not precisely defined. Therefore, case law and literature must interpret the term. In the light of recitals 23 and 24 EuErbVO, the decisive factor is the actual center of the life of the person concerned, which must be determined taking into account all the circumstances of the individual case.
The concept of habitual residence requires a certain physical presence in a place. Criteria such as social and cultural integration can be used as a supplement if an exact assignment to a state cannot be made. However, they are not mandatory criteria.
It is undisputed that a will to reside is also required. The testator must be consciously and intentionally present in a place. A transfer against the will of a person cannot change his or her habitual residence in principle.
With the residence will should not be meant however the legal capacity. In a decision the OLG Munich demanded that the testator must have legal capacity in legal transactions. In practical consequence this would mean that the legally incapable testator cannot establish a new habitual residence. Thus for instance a minor testator could not establish his or her own habitual residence. In a decision of the European Court of Justice on the Brussels IIa Regulation, however, the court argued that even an infant - represented by its mother - could transfer its habitual residence to another state. Although it must be emphasized that the decision was made on a different regulation, the requirement of uniformity and effective enforcement of the legal system applies in European law. It can therefore be assumed that a term is not interpreted completely differently in different regulations.
Thus, the EuErbVO does not link the jurisdiction of the courts to the nationality or the home law of the testator, but to the habitual residence. The aim was to ensure that the place of jurisdiction and the applicable law are in parallel. However, this parallelism is broken in the case of subsidiary jurisdiction under Article 10 (2) EuErbVO. Accordingly, if the habitual residence is in a third state, the courts of a member state are nevertheless competent if the estate is located in that state. However, jurisdiction is limited to these objects of the estate.
Jurisdiction in case of choice of law
If the testator has made a choice of law (Article 22 EuErbVO), this also affects the jurisdiction of the courts. In principle, the courts of the state in which the testator had his or her habitual residence are competent according to Art 4 EuErbVO. However, if the testator has effectively chosen the law of another Member State in accordance with Art. 22 of the EuErbVO, the courts of the State that would actually have jurisdiction under Art. 4 EuErbVO can declare themselves to be not competent upon application (Art. 6 EuErbVO). The prerequisite for this is that the court seised considers that the courts of the state of the chosen law are better placed to decide the inheritance case, e.g. because the assets are located there.
If this is the case, i.e. if the courts that are actually competent under Art. 4 EuErbVO have declared themselves to be incompetent, the courts of the state whose law the testator has chosen are competent under Art. 7 Alt. a) EuErbVO.
The jurisdiction of the courts of the state of the law chosen by the testator can also result from the fact that the parties to the proceedings have agreed on the jurisdiction of the courts of this state in accordance with Art. 5 EuErbVO (Art. 7 Alt. b) EuErbVO or all parties to the proceedings have acknowledged the jurisdiction (Art. 7 Alt. c) EuErbVO).
If courts in several Member States have been seised of the same matter, the courts subsequently seised shall stay the proceedings until the jurisdiction of the court first seised has been clarified, Article 17 (1) EuErbVO. If the jurisdiction of a court previously seised is established, all courts subsequently seised shall decline jurisdiction, paragraph 2.
Jurisdiction to receive declarations of acceptance and disclaimers
If the applicable law requires acceptance of the inheritance or if the heir wishes to decline, the question arises whether he can do so in his home country. According to Article 13 EuErbVO, only the courts of the member state in which the declaring person has his habitual residence are also competent to accept or reject the acceptance or rejection. This is very helpful to these persons. Recital 32 of the Regulation states in this regard:
"In the interests of heirs and legatees habitually resident in a Member State other than the Member State 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 in the event of death to make declarations concerning the acceptance or waiver of an inheritance, legacy or compulsory portion of an estate or to limit his liability for obligations arising from the succession before the courts of the Member State of his habitual residence in the form provided for by the law of that Member State. (..)“
In so doing, the receiving court alone shall examine its jurisdiction and the form of the declaration. Whether such a declaration is required is not, however, part of the court's scope of examination.
There is also a dispute as to whether a declaration made under Article 13 EuErbVO can replace (substitute) a declaration made abroad. This would mean that the declaration would be effective in the other state immediately after it was made. Among others, the OLG Düsseldorf has affirmed this in its decision of 26.10.2018. However, there is a 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, even this view - in the interest of the effective enforcement of Union law - allows it to be sufficient if, after the declaration has been made in Germany, the foreign court is informally notified of this fact.
Competences for issuing a European Certificate of Succession
The European Certificate of Succession (ENZ) is described in Articles 62 ff. EuErbVO and is essentially a "European certificate of inheritance". Further information on the European Certificate of Succession and how to apply for it can be found here. The rules set out above, Article 64 EuErbVO, apply to the granting of the certificate. In principle, the courts of the state in which the testator had his or her habitual residence at the time of his or her death are therefore responsible for issuing the certificate (Art. 4 EuErbVO). Although the heir can make the declaration of acceptance or disclaimer of the inheritance in the member state of his habitual residence, he may not be able to apply for the certificate of inheritance there. Furthermore, the heir cannot apply for a national certificate of inheritance in a different way. The European Court of Justice has ruled in a judgment that the provisions of the Regulation take precedence over national regulations, so that a national certificate of inheritance can only be applied for if the member state courts in accordance with Article 4 ff. EuErbVO are competent.
The law of succession aims at a parallelism between jurisdiction and applicable law. The regulation aims to avoid that courts of a member state have to decide on the merits of the case about foreign inheritance law. This is to ensure that the entire estate is decided upon and that no conflicting decisions are made in the member states (consensus on the decision). 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 testator has chosen the law of his or her home country and the law of the country in which the testator had his or her last habitual residence is not applicable. The choice of law is not automatically followed by jurisdiction.