(Reference for a preliminary ruling — Area of Freedom, Security and Justice — Regulation (EU) No 650/2012 — Succession and the European Certificate of Succession — Scope — Immovable property located in a Member State in which legacies ‘per vindicationem’ do not exist — Refusal to recognise the material effects of such a legacy)
SOURCE: Court of Justice of the European Union, Annual report 2017
In the judgment in Kubicka, delivered on 12 October 2017, the Court had the opportunity to rule on the lawfulness of a refusal to draw up a will in accordance with the law of the testator’s nationality — which was also the law chosen by the testator — on account of a legacy appearing therein relating to property located in another Member State which does not recognise that legacy. Accordingly, the Court was required to interpret, for the first time, Regulation No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession, and provided clarification on its scope. In the main proceedings, a Polish testator residing in Germany, who had chosen, pursuant to Article 22(1) of Regulation No 650/2012, Polish succession law as the law governing her will, wanted to establish in her will a legacy ‘by vindication’, which produces direct material effects on the date of opening of the succession, in respect of immovable property in Germany, a Member State in which the material effects of that type of legacy are not recognised. Since foreign legacies ‘by vindication’ are, by means of adaptation, considered to be legacies ‘by damnation’ in Germany, the officiating notary in Poland had refused to draw up a will contrary to German legislation and case-law relating to rights in rem and land registration, which the notary considered himself bound to take into account under Article 1(2)(k) and (l) and Article 31 of Regulation No 650/2012. Since the person concerned wished to rule out recourse to a legacy ‘by damnation’, which would entail difficulties in relation to the representation of her minor children, she brought an action against the decision refusing to draw up a will containing a legacy ‘by vindication’.
The Court first of all recalled that Regulation No 650/2012 applies to succession to the estate of a deceased person, which covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession. Next, it pointed out that Article 1(2) of that regulation lists various matters that are excluded from its scope, including, under point (k), ‘the nature of rights in rem’ and, under point (l), ‘any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register’. In the case in point, the Court concluded that direct transfer of a right of ownership by means of a legacy ‘by vindication’ concerns only the arrangement by which the right of ownership of an asset is transferred at the time of the testator’s death, which is precisely what Regulation No 650/2012 seeks to allow. Accordingly, such methods of transfer are not covered by Article 1(2)(k) of Regulation No 650/2012. In the view of the Court, those exclusions do not justify the refusal, by an authority of a Member State, to recognise the material effects of a legacy ‘by vindication’, provided for by the law governing succession, on the ground that the legacy concerns the right of ownership of immovable property located in that Member State, whose law does not provide for legacies with direct material effect when succession takes place.
Based on the principle that the law governing succession should govern the succession as a whole, the Court considered that since Article 1(2)(l) of Regulation No 650/2012 concerns only the recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register, the conditions under which such rights are acquired do not constitute one of the subjects excluded from the scope of the regulation under this provision. In that connection, it drew attention to the objective pursued by Regulation No 650/2012, which is to eliminate obstacles to the free movement of persons who want to assert their rights arising from a cross-border succession.
The Court also held that Article 31 of Regulation No 650/2012, which provides for the adaptation of rights in rem, did not apply in the instant case. That provision does not concern the method of the transfer of rights in rem, including, inter alia, legacies ‘by vindication’ or ‘by damnation’, but only the respect of the content of rights in rem, determined by the law governing the succession, and their reception in the legal order of the Member State in which they are invoked. Therefore, in so far as the right in rem transferred by the legacy ‘by vindication’ is the right of ownership, which is recognised in German law, there is no need for the adaptation provided for in Article 31 of Regulation No 650/2012.