The EAPIL Blog hosts today two posts on the ruling of the Court of Justice in E.E., a case regarding the Succession Regulation decided on 16 July 2020. Matthias Lehmann and Carlos Santaló Goris, the authors of the two contributions, approach the judgment from different angles and express different views (the post by Carlos Santaló Goris will be out later today). Readers are encouraged to join the discussion!
Sometimes the Directorates for Legal Translations of the Court can take forever to translate a judgment into the other official languages. The bottleneck is increasingly the English language, as there seems to be a draught of English interpreters. An illustration of the phenomenon is the judgment in E.E. (Case C-80/19), which was rendered on 16 July 2020, and for which, to this day, no English translation is yet available.
This should not stop us from taking a closer look at the judgment. In fact, it is the first one to deal with several fundamental issues of the Succession Regulation. Let’s take them one by one after having recapitulated the facts.
A Lithuanian national had married a German national and lived with him in Germany. In 2013 she made a will before a notary in Lithuania, designating her son E.E. as her only heir. When she died, her estate basically consisted of a piece of real estate in Lithuania.
After the death of his mother, E.E. applied to a Lithuanian notary for a certificate of succession. The notary refused to deliver it on the ground that the deceased’s habitual residence had been in Germany. E.E. brought a claim against the notary before the Lithuanian tribunals. During the proceedings, the German spouse of the deceased declared to have no interest in the succession and agreed to the jurisdiction of the Lithuanian tribunals.
Based on these facts, the Lithuanian Supreme Court decided to refer a number of preliminary questions to the CJEU.
Succession with Cross-Border Implications
The first question raised related to the applicability of the Succession Regulation. The Lithuanian Supreme Court asked whether a succession like the one underlying the reference for preliminary ruling could be considered as having cross-border implications. The notion “succession with cross-border implications” is not used in the rules of the Regulation, but rather in its Preamble (Recitals 1, 7 and 67) as well as in the legal basis on which the Regulation was enacted (Art. 81 TFEU).
To ask whether a case like the present one has cross-border implications may seem factitious, given that the deceased had lived in Germany and owned an asset in Lithuania.
But the Lithuanian Supreme Court highlighted that despite having her last habitual residence in Germany, the deceased had never broken her links with her country of origin, where she had drawn up a will and were almost all her estate was located. The referring court therefore also raised the (fifth) question whether the habitual residence of the deceased can only be located in a specific Member State.
This implied the possibility of multiple habitual residences under the Regulation, which would have been ground-breaking indeed.
The CJEU takes the opportunity to underline that the Regulation is built on the concept of a single habitual residence of the deceased (para 40). Any other interpretation would lead to a fragmentation of the succession (para 41).
Unsurprisingly, the Court of Justice found that a succession has cross-border implications where the habitual residence of the deceased and her major assets were located in different Member States (para 45). One might even say that this is a paradigm case falling within the scope of the Regulation. Thus, the first and the fifth questions were essentially smokescreens which were easily dealt with by the court.
Notion of Court, Scope of Jurisdictional Rules and Authentic Instruments
The next set of questions (2 to 4) concerned the jurisdiction of the notary to issue an authentic instrument of succession.
The CJEU first clarified helpfully that a Lithuanian notary is not to be regarded as a “court” within the meaning of Art. 3(2) of the Regulation because it does not have the right to exercise judicial functions (para 54). The only exception is where it acted pursuant to a delegation of power by a judicial authority or under the control of such an authority (para 55). The CJEU left it to the national court to ascertain whether this is the case.
If the notary is not to be regarded as a court – which seems highly likely –, she would not be bound by the rules on jurisdiction enshrined in Art. 4 to 19 of the Regulation (paras 66 and 80). In particular, she can issue a national succession certificate regardless of the habitual residence of the deceased (para 80).
The Court rightly emphasises in this context that the principle of unity of succession is not absolute (para 69). Nothing therefore stops authorities from different Member States to issue certificates regarding the same succession. Article 64 of the Regulation is an outlier because it concerns the European Certificate Succession, which indeed can only be issued by the authorities of one Member State (para 70).
Although the notary issuing a national certificate of succession is not bound by the rules on jurisdiction of the Regulation, the authentic instrument she issues under national law will have the same evidentiary effects in other Member States as it has in the Member State of origin (paras 75 to 77). This is clearly set out in Art. 59 of the Regulation, which has no link whatsoever to the provisions regarding jurisdiction in Art. 4 to 19 of the Regulation. National authentic instruments will therefore freely circulate within the Union independently of the Member State in which they are made.
Testamentary Choice of Law
Perhaps the most interesting part of the decision (question 6) concerns the conditions of a choice of law in a will. The deceased had drawn up the will in Lithuania before the entry into force of the Regulation in 2015. The Court concludes that this disposition is deemed to be a choice of law under Art. 83(4) of the Regulation given that the will was made in accordance with Lithuanian law.
Interestingly, the Court bases the conclusion that the will was made “in accordance with Lithuanian law” on the simple fact that the will was made in Lithuania. No other conditions, such as an expression of the testator’s intent or an allusion or reference to the law of Lithuania in the text of the will, seem to be required.
This generous interpretation by the Court greatly facilitates the determination of a choice of law before the entry into force of the Regulation. In future cases, it will be sufficient to prove that the will has been made before a notary of a certain Member State in order to show that the deceased chose the law of this Member State.
Even bad references can make good law. The CJEU has used the opportunity of the somewhat confused reference for preliminary ruling by the Lithuanian Supreme Court to clarify some important issues regarding the Succession Regulation. In particular, it is now clear that a single habitual residence of the deceased has to be identified, that notaries issuing national certificates of succession are not bound by the rules on jurisdiction of the Regulation, and that wills made before a notary prior to the entry into force of the Regulation amount to a choice of the law of the notary’s Member State. If we could finally get this decision in English, the situation would be even clearer.
Dear Professor Lehmann, I sadly have to disagree in one point. The CJEU has not stated that „notaries issuing national certificates of succession are not bound by the rules on jurisdiction of the Regulation“. It has clarified (see point 68 of the judgement) that notaries in such cases do not have to be obliged UNDER THE SUCCESSION REGULATION to follow the jurisdiction rules (German “nicht bestimmen müssen“). Notaries still may have to do it under their national notarial law, which is the cases in Poland although Polish notaries are, as we know, not courts under the SR.
As stated in the previous discussion, it is at the end of the day up to the member states to decide how public or private notaries in that particular member state are – also whether they have to or do not have to follow rules on jurisdiction.
We have seen the CJEU having to step back in C-267/19 and C-323/19 after its judgement in Paula Parking has been misinterpreted in a similar way in Croatia. It is not up to EU law to decide whether Croatian notaries may or may not issue writs of execution (also in international cases). The CJEU states only whether such writs circulate under a specific EU instrument (if they do not, they still may circulate between member states under different instruments of international law or under autonomous recognition law of the receiving state, if I see that right).
I do not think we need another CJEU-judgement to confirm that is OK for me as a Polish notary to follow my notarial law and refuse to issue certificates of inheritance when Poland has no jurisdiction under the SR. Do you?
Dear Martin, Many thanks for the clarification! I agree with you that notaries have to follow the jurisdiction rules of their national law when issuing certificates of succession. It is also possible that these national rules refer to the jurisdiction rules of the Regulation and impose them on their notaries, although I do not no any such example. Is this indeed the case under Polish law, as you suggest? In this case, I would answer your last question in the affirmative.
Still, I would say that in this case, the Polish notaries are not bound by the jurisdiction rules of the Regulation as such, but by the national law that refers to it. At the end of the day, this is only a minor semantic quarrel, but it may play a role, because the national legislation is free to deviate from the Regulation’s rules or amend them.
Best wishes, Matthias Lehmann
From my point of view we have no national rules on jurisdiction in succession cases, since they are being derogated by the SR in member states. But the national notarial law determines the competence of a notary to issue national succession certificates. Polish notarial law does limit that possibility to cases Poland has jurisdiction. In that sense, I agree, it does refer to the regulation. The jurisdiction itself is regulated in the SR and SR only (when we leave bilateral agreements with third states aside).
Indeed “potato – potahto / tomato–tomahto” but applying jurisdiction rules makes my small Upper Silesian world clean and tidy. So I will personally stick to that,
Best wishes, Martin Margonski