The author of this post is Carlos Santaló Goris, research fellow at the MPI Luxembourg and PhD candidate at the University of Luxembourg.
On 3 August 2020, a Polish notary referred a request for a preliminary ruling to the Court of Justice of the European Union (“CJEU”).
The facts are simple: a Ukrainian citizen living in Poland asked a Polish notary to draft her will. She wanted Ukrainian law to apply to the succession. The notary refused, arguing that the law applicable to the succession cannot be chosen under the 1992 Ukrainian-Polish bilateral treaty on civil and criminal matters.
The applicant complained against the refusal; she claimed that the Succession Regulation, which allows the de cujus to choose the law of her nationality to rule the succession (Article 22), should apply instead. According to Polish law, the complaint procedure is to be brought before a notary.
The CJEU is asked to interpret the Succession Regulation, as follows:
- Must Article 22 of [the Succession Regulation] also be interpreted as meaning that a person who is not a citizen of the Union is also entitled to choose his maternal law as the law applicable to the succession as a whole?
- Is Article 75 in conjunction with Article 22 of [the Succession Regulation] to be interpreted as meaning that, where a bilateral convention binding a Member State to a non-member country does not govern the choice of law on succession but designates the law applicable in matters of succession, a national of that non-member country who resides in a Member State bound by that bilateral agreement may choose the law?
- In particular: must a bilateral agreement with a non-member State expressly preclude the choice of a particular law, and not only the status of succession by means of objective criteria, in order for its provisions to prevail over Article 22 of [the Succession Regulation]? does the freedom to choose the succession law and to standardize the applicable law by choosing the law — at least to the extent defined by the EU legislature in Article 22 of [the Succession Regulation] — fall within the principles underlying judicial cooperation in civil and commercial matters within the European Union and cannot be affected even in the event of the application of bilateral conventions with third countries which prevail over Regulation No 650/2012?
In my view, the CJEU will not struggle to provide an answer to the first question of the request. The Succession Regulation applies to the wills drafted by authorities of the Member States; Article 20 declares its “universal application”; Article 22 does not make any difference between “States” and “Member State”; like EU nationals, third-State citizens can choose their national law.
The second question is trickier. It starts with the interpretation of the last sentence of Article 75(1) of the Regulation (“this Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation”). Since the bilateral convention has no provision on the choice of law in relation to successions, it could be argued that this particular aspect is not foreseen, hence the Succession Regulation applies.
However, the convention does rule on the law applicable to movable and immovable estate, just like the Regulation, and therefore it should prevail. Should this be the case, the second part of the question would come into play. The CJEU is asked here to produce a declaration on values, likely to end up with the need to strike a balance – or not, for there is no doubt the negotiators knew about the contents of the conventions Article 75 intends to preserve, and about the fact that choice of law is not a widely accepted rule in succession matters. Should the principle of choice of law always prevail, Article 75 would be deprived of much of its sense.
Are Notaries Courts (in the Sense of Article 267 TFEU)?
Rather than the actual questions of the preliminary reference, what is more intriguing is whether Polish notaries deciding on complaints against the refusal to carry out a notarial act can address themselves directly to the CJEU via the preliminary reference. According to Article 267 of the TFEU, only courts can make preliminary references. In C-658/17, W.B., the CJEU determined that Polish notaries issuing a certificate of succession are not “courts” for the purpose of the Succession Regulation. Nonetheless, whether a notary reviewing a decision taken by a (actually, the same) notary fits with the Article 267 of the TFEU is something different.
With a view to provide an autonomous notion, the CJEU has elaborated a list of prerequisites a domestic authority needs to comply with to be considered a court under Article 267: the body under examination must have been established by law, be permanent, have compulsory jurisdiction, adjudicate in an inter partes procedure, apply the rules of law, and be independent (C-54/96, Dorsch Consult, para. 23).
The analysis of the admissibility of the preliminary reference, focused on whether a notary fulfils the conditions just mentioned, will surely be the first step of the CJEU in the case at hand. In this regard, it is worth mentioning that the Polish Supreme Court and the Polish Constitutional Court have already explored whether, under Polish law, notaries acting in complaint procedures like the one at stake have the status of courts, and concluded that they may be considered first instance courts, performing ancillary functions of the administration of justice.
At any rate, the CJEU is not bound by the determinations of the national courts. It will decide on the basis of its own findings. And it will do so at a moment when the whole Polish judicial system is under suspicion (see C 354/20 PPU, and soon, C-412/20 PPU, both widely reported in the press), and the future of judicial cooperation, also in civil matters, is an issue of legitimate concern.
Does the case have a reference yet? I see two more cases are coming up: UM C-277/20 on professio juris and a succession agreement and UE, HC v VLH AG C-301/20 on the effects of an undated ECS.
Unfortunately, the questions of the preliminary reference of the case have not yet been published. It will probably be published in the upcoming weeks. However, I could provide with the number of the case: C 387/20 (courtesy of the referring body).
I too would like the case reference.
It is difficult to see how the Polish notary can refer this question to the CJEU when he or she appears to be acting in a notarial – rather than judicial – capacity. I do not see how the CJEU can allow notaries across the EU27 to proceed on the basis that the instant notary / chamber or other professioal body can self-assume the status of ‘court’ competent to refer questions to the CJEU.
Can it be that a Swedish / Finnish notary may now so refer questions on the Succession Regulation to the CJEU merely because they are notaries? I mean no disrespect to any branch of the notarial professions of the EU’s Member States, but there are recurring difficulties with EU legislation that allows possibilities to ‘a’ notary when in fact the notarial professions of the Member States have markedly different roles and legal functions across the legal systems of the 27.
I think the CJEU made a significant mistake on the notary / court question in C-658/17 WB and further ‘muddied-the-waters’ by not simply following the notification status filed by the relevant Member State under the Succession Regulation. All can understand that if the Member State has notified that their notarial profession is a ‘court’ that it is to be so construed when carrying out its judicial functions: equally the absence of such a notification should be conclusive that there is no such judicial status. The folly of WB is not just that such legal certaintly cannot follow from the absence of a notification (i.e because the Member State did not nortiy the domestic notary is NOT a court ) but also that legal certainty suffers further due to the associated implication of WB that a positive national notification is not itself inherently conclusive should the tests laid down by the CJEU in WB not be met. True, there will be few who will wish to litigate such an abstract point in relation to modest successions; a larger estate may however encourage such explorations by the opportunistic, he who would delay or (worst of all) by the client determined to litigate on a point of principle…
Dear Jonathan, although discussing with you about this topic is taking a risk (you are the authority here), I am not sure I agree with your point of view on the weight to be given to the notification, or the lack of, from a Member State. In an ideal world, Member States should keep in mind the EU autonomous concept and only notify that their notaries are courts provided there is a match between the national body and the EU notion. However, precisely because the latter was not (is not) clear, a notification is a point of departure, but not of arrival.
In any event, the main discussion in the case at hand relates to Article 267 TFEU. There should indeed be a relationship between that provision and the Succesion Regulation, but I wouldn’t go for complete equivalence in the criteria applied in one case and the other.
I will not comment on C-387/20, OKR since I wrote the preliminary question myself. Everything I wanted to tell – not just the CJEU, but in this case also the party, the public in Poland, and PIL specialist, is included in the reference. Also the reasons, why I “self-assume” to have the competence to file a preliminary question when deciding on a complaint against the refusal in the first instance (not when acting as a notary prior to the refusal). Apparently I as a notary had my reasons.
I may comment on your comment to C-658/17, WB (also a case with my involvement), since the case is a closed one: the reason why Polish government did not notify Polish notaries issuing notarial certificates of succession as courts at the very beginning was – in my view – to 35% substantive. At this level the government decided to follow those experts on international procedural law who worked on the implementation of the SR in Poland and shared the conservative notion of a court rooted in the Brussels regulatory system (later adopted by the CJEU in C-658/17, WB also for the SR). The remaining 65% were in my view political reasons. The government did not want to strengthen notaries – the weaker and the more dependent they are, the less likely they will show intellectual independence and the strength of character in questions of political importance. From the point of view of the CJEU (but also the party) a regulation which is dependent on political will of the government of a member state and can be set aside by simple lack of action, is not a regulation. Therefore the notification cannot be of constitutive nature and the courts – both in receiving state and the state the instrument in question has been issued – have to have the full possibility to effectively evaluate the nature of a particular instrument and enforce them, if needed.
I share your critical view on the effects of C-658/17, WB (and in C-80/19, E.E.). I have the impression, that the perspective of the French-speaking countries with their semi-private (from my point of view) notarial involvement in succession cases is dominating. At the same time in those member states, where there are de facto no succession courts other that notaries and/or the notaries issue instruments with strong public effect, not applying jurisdiction rules by and to notaries means that those jurisdiction rules actually do not apply in those member states at all. It is not what we have agreed upon when centralising the jurisdiction in one member state. We are unfortunately facing a fundamental de-composition of a regulatory system rooted in and caused by C-658/17, WB and C-80/19, E.E.
To the best of my knowledge, during the negotiations of the Regulation, the model of ‘notaries as courts’ were those of Austria, Hungary, the Czech Republic and Slovakia, as well as the professionals in charge of the distribution of the inheritance in Sweden and Finland. I don’t know to what extent the Polish ones are similar to those.
At any rate, I hope you would agree with me in that the definition cannot be left to the political internal designs of the Member States.
Out of curiosity, may I ask you to explain the sentence “It is not what we have agreed upon when centralising the jurisdiction in one member state”. In particular, who are ‘we’?
And, with the caveat I am not sure what you mean by ‘centralised jurisdiction’, or, rather, what exactly would its scope be, would the life of European citizens be easier with a system of ‘hard’ centralized jurisdiction? How many exceptions to the rule would be needed in order to avoid forcing people to go before a foreign notary for most succession related-acts? I am asking, no assumptions behind my question.
we, the people 🙂 represented during the negotiations on the SR :-))
Addressing the issue as a commentator of the SR, not as a notary: I would like to be wrong, but frankly, I see no space for applying the narrow definition of a court resulting from WB to notaries, Well maybe the Austrian notary as Gerichtskommissar. And my question remains: does the SR in jurisdictional aspect apply for instance to the Netherlands, if it does not apply to Dutch notaries, who are from my point of view de facto the succession court there? Finally, I also ask myself, why bother and negotiate a new definition for a regulation different in scope of application, when at the end of the day it all comes back to the classical patterns developed in an entirely different procedural context in Brussels I.
The starting point in succession cases was forcing the citizens by individual member states to go through succession proceedings in that particular member state (at least when it comes to immovables). In comparison to that starting point, the idea of one forum in art. 4 SR was a clear step forward. Yes, in some cases harsh. For the last couple of years we have been applying the regulation in Poland as it is (or as we thought it has been designed) and have been sending the citizens to other member states having jurisdiction under art. 4 SR to get an ESCes or a national certificate there, if art. 7 SR was not applicable.
The exceptions from one forum rule you are addressing are very narrow right now: art. 13 and 19 SR. All the rest just in the member state having jurisdiction. How the competences are being divided between courts and notaries is a matter of national law (art. 2 SR), but if the notary does not handle in private capacity (as in my view the French speaking colleagues do when issuing their certificate of inheritance) also the notary should be bound by the jurisdiction. That was my understanding and a possible interpretation. The CJEU went in a different direction.
In the future – in the SR Bis or SR bis 2 – one could thing about further liberalisation, for instance allowing choice of forum by all parties under certain conditions, wider than in art. 5 SR. The initial harsh approach was, in my view, necessary for the member states to abandon the traditional protectionism, which takes time. Otherwise the possibility to obtain a local certificate of inheritance will easily turn to a factual necessity to do so. The member states have at least 150 years of experience in archiving that result with legal and para-legal means.
I fear, however, “we” will not get a chance to talk about further balanced liberalisation of the jurisdictional system within a common framework. I predict, Germany will – in line with WB and E.E. – introduce a notarial Erbschein, making Oberle legal history and than continue to expect the citizens to use that German Erbscheins for German succession property. If so, “we” will after 10-15 years arrive at the starting point…
Short addenda: to the best of my knowledge, in the next issue of the Spanish journal Cuadernos de Derecho Internacional there will be a contribution in French by a Spanish notary, Juan Gómez-Riesco, entitled « Reflections on the concept of ‘court’ within the meaning of Article 3.2 of Regulation (EU) nº 650/2012 after the judgments of the Court of Justice of the European Union Oberle, C-20/17, and WB, C-658/17. Spanish perspective ». It addresses (and critizises) the CJEU’s interpretation of the concept of ‘court’ for the purposes of Article 3.2 of Regulation (EU) No 650/2012 in relation to non-judicial authorities involved in non-contentious jurisdiction acts. According to the author, by limiting the ‘court’ quality to dispute settlement, the CJEU has added a further condition to those in the text of law, on its own motion. Moreover, it has deprived the notion of its proper meaning, excluding from its scope non-judicial authorities exercising genuine judicial functions, acting or deciding on their own authority regardless of the conformity of the parties.
Update: the contribution is avalaible as of today here.
The ‘we’ question was not rhetorical – sorry if it looked like that. I was wondering whether you alluded to a specific position of a group represented (or attending) in the negotiations. In spite of all efforts, when following the path of a regulation from the proposal to the final version there is a moment when the track is lost and one does not know why provisions end up with the such or such wording.
No way to contest the idea that the SR should be (have been) interpreted having in mind its own purposes. I have myself claimed that in an article published in the Spanish journal REEI a couple of months ago; AG Spuznar had as well, before. Consistency among EU instruments is an objective worth achieving, but not at all costs. The same goes for consistency in relation to Article 267 TFUE; if I recall correctly, this was said by (at least) AG Bobek in the context of the Brussels Ibis Regulation. In light of which you probably imagine my next question: would you say that in C 387/20, the notary is a ‘court’ in the sense of the Regulation?
At any rate, I wouldn’t put all the blame on the Court. Article 3(2) does not exactly give much leeway, does it? Nor was it easy for the Court to go back on what had been said in WB on the occassion of EE: the similarities between Polish and Lithuanian notaries were too evident (I believe Carlos Santaló will have something published on EE and this soon here as well).
For the rest, surely I did not make myself clear. I was not referring to the exceptions to Article 4 SR now. My point is rather, let’s accept notaries are subjet as well to that provision: how many exceptions would be needed to avoid the relatives of a deceased having to go abroad in case they do not reside in the Member State of the deceased? In other words: which succession-related acts/activities of a notary should fall under the scope of the European rule on jurisdiction (which is meant to be exclusive)?
Finally, when you say that Dutch notaries are the de facto courts in The Netherlands, do you mean that they meet the conditions of Article 3(2)? If that’s the case, shouldn’t they be considered ‘courts’ for the purposes of the Regulation, in spite of the absence of notification from th Member State?
Again, thanks for your comments, and a disclaimer: I am not a notary and do not pretend I understand the trouble of those who are. I am trying, though.
being sometimes rhetorical and playing with words is the spice of life, so I have nothing against it.
I was also hoping the CJEU would follow AG Szpunar in WB. Art. 3 SR did give some space for that. The CJEU has not decided to do so. So we have to live with it. E.E. was, I agree, a simple consequence.
In my view the whole succession procedure falls within the jurisdictional system – no matter whether carried out at the court or by the notary. As a Polish notary I still do have to follow jurisdictional rules of the SR under national notarial law, despite of E.E. ruling. I would recommend Lithuanians to search for a similar solution in their national law and find it by interpretation, if needed. How private and how public a notary is, is at the end of the day the decision of the national law maker.
From my point of view the jurisdictional system covers the opening of wills after the death of the testator (a statement heavily questioned in Germany, as German courts open wills outside of jurisdictional system), receiving acceptance and viewers (that is clear under Art. 13 SR), issuing national inheritance certificates and further procedures up to the division of the estate. It is, however, very deeply rooted in the national succession procedure. On daily basis as a notary in Upper Silesia – so in Polish-German cases – I have problems finding common answers to your question with Germans, although our procedures are similar and although Germans and I speak a common language. So the dialogue at the borderline with a different legal system would be far more difficult.
The ruling in WB makes my work as a notary in succession proceedings harder, sometimes actually impossible in trans-border cases. Your question will keep returning also in the future in relation not only to the SR (a recent Dutch-German case in which a Dutch notary declared itself not competent under art. 6 SR and the German court found that decision to be not binding in Germany; when I inform a German or an Austrian court that a succession case is pending with me as a notary, do they apply art. 17 SR?) but also other EU regulations in succession cases.
I cannot reply to your question on OKR for formal reasons.
Thanx a lot for the interesting exchange!
Ps. On second thoughts I have to correct myself as it comes to the division (sharing-out) of the estate. In this context the notary in Poland (it is more complex in German law) does not act in judicial capacity and is not bound by jurisdictional rules. Because the division is purely contractual. It is different in the court procedure. But that is just my point of view. A Czech notary, for whom the sharing out is the actual essence of the entire procedure and who is being appointed by the court to lead to that point of that procedure, may see that different. My way of thinking – rooted in Polish and German law – is based on the importance of the confirmation of the status of an heir, which has a strong public element, as the key step of the entire succession procedure. For others such confirmation, if existing, may be a technical phase of minor importance, leading to the actual clue, such as the sharing-out.
So I fear we have no general answers.