This post was written by Paul Eichmüller and Verena Wodniansky-Wildenfeld, University of Vienna.
In a recent decision, the Austrian Supreme Court dealt with the interpretation of Article 10(2) of the Succession Regulation. It found that the latter provision does not establish an obligation to initiate probate proceedings ex officio in states having subsidiary jurisdiction. A national Austrian provision concerning the issue of these assets to third countries was thus considered in conformity with EU law, although Article 10(2) explicitly provides that the Member State shall have “jurisdiction to rule on those assets”. The court’s apparent classification of these questions as an acte clair is doubtful.
The Austrian courts were seized by a Canadian company. It was tasked by the Canadian courts to manage the estate of a German citizen, who had moved to Toronto where he established his habitual residence and eventually died in 2017. The deceased had a bank account in Austria where he and his son had jointly rented two safes containing gold “of substantial value”. The Canadian company then brought a request that the gold and the savings should be transferred to it so that it may become part of the general estate in Canada. However, the son opposed this request with regard to the gold on the basis that it was in fact in his own property and not in the deceased’s.
The court of first instance decided to transfer the money and the gold to the Canadian company, which was to hand it to the heirs as assessed in Canada. Concerning jurisdiction, the court based its decision on Article 10(2) of the Succession Regulation. The fact that it simply transferred the assets and did not conduct substantive probate proceedings was based on § 150 AußStrG (Austrian Non-Contentious Civil Procedure Act) – prescribing exactly this course of action in cases of Article 10(2) of the Succession Regulation. Appealing this decision, the son desired a full rejection of the claim on the grounds that § 150 AußStrG would be contrary to Article 10(2) and is thus not to be applied. The gold and the money should be handed to the heirs by Austrian courts themselves and not simply be transferred to the Canadian authorities (i.e. the authorised company).
The Decision by the Austrian Supreme Court
The Supreme Court ruled that issuing assets of the estate located in Austria, as long as no probate proceedings have been requested, does not violate Article 10(2) of the Regulation. This is laid down in § 150 AußStrG, which prescribes that upon request of a legitimised party, the assets must be transferred to the state in which the deceased had their last habitual residence. Its main argument was that the Succession Regulation does not oblige the competent Member States to initiate proceedings ex officio (para 31; also citing Hertel in Rauscher, EuZPR-EuIPR  Art 23 EuErbVO para 49).
Furthermore, the objective of Article 10(2) of the Succession Regulation would not be thwarted by the Austrian provision, since § 150 AußStrG provides for the issue of assets only if no application for probate proceedings in Austria had been filed. Thus, the legal interests of the parties are protected and the subsidiary jurisdiction stipulated in Article 10(2) is respected. Issuing the assets would be a mere recognition of the foreign (Canadian) decision which legitimised the company to demand their transfer. As this decision originates in a third country, neither the Succession Regulation nor other acts of EU law are inapplicable to such a recognition (para 21).
The Supreme Court considered this assessment of the legal situation and the conformity with EU law to be sufficiently evident, so that a request for a preliminary ruling to the CJEU was not deemed necessary.
To the extent that the jurisdiction established by Article 10(2) of the Succession Regulation is not combined with an obligation to initiate probate proceedings ex officio, the Supreme Court’s decision is to be followed.
In this respect, the procedural autonomy of the Member States is not restricted by EU law, thus the Regulation does not specify whether proceedings ought to be initiated either of the court’s own motion or upon application. The Regulation recognises the different procedural treatment of succession cases in the Member States, which is explicitly outlined, e.g., in Recital 29 (“Where succession proceedings are not opened by a court of its own motion”) and Article 14(c) (“if the proceedings are opened of the court’s own motion”) of the Succession Regulation. Hence, in contrast to probate proceedings in Austria, which are always initiated ex officio, other Member States (such as e.g. Germany, Belgium or Sweden) provide for the transfer of assets to the heirs ex lege without any proceedings being necessary. Therefore, a provision which prescribes that probate proceedings are initiated only on application in all cases where jurisdiction is based on Article 10(2) of the Succession Regulation (such as § 143 AußStrG in Austria) does indeed not violate EU law.
However, by issuing the gold and the savings to Canada, the Austrian authorities effectively transfer the jurisdiction for substantive probate proceedings over these assets to the Canadian authorities. This rejection of the Austrian jurisdiction over the assets located in its territory would happen outside the system of the Succession Regulation – which provides a transfer of jurisdiction in the cases listed in Article 6, but not whenever the court chooses to do so.
While the Succession Regulation does not prescribe how jurisdiction shall be exercised by a particular Member State, it does indeed prescribe that it must be exercised. The Austrian Supreme Court reasons that such a transfer is permissible because it does not interfere with the objectives of the regulation, as the alleged heirs could have brought a request to hold probate proceedings in Austria before anyway (para 27, 33). Yet, it thereby neglects that the transfer of jurisdiction would be final and thus deprives the heirs of the possibility to request proceedings in Austria at a later point in time. The Austrian courts may well choose to remain inactive until proceedings are requested, but then they have to remain exactly that – inactive. Hence, § 150 AußStrG – prescribing the opposite – is incompatible with EU law. While there might well be a case to see this differently, these arguments and the extensive criticism that has justly been raised about this issue by numerous respected Austrian scholars would have at least required a preliminary reference and leave the issue for the CJEU to decide.
The other reason given by the Supreme Court in support of its decision is the fact that it is bound by the recognition of the Canadian (third-state) judgment, which as such falls outside the scope of the Succession Regulation. Yet even when starting from the premise that the Canadian decision needs to be recognised, this will not necessarily result in an obligation of the Austrian authorities to transfer to the assets to Canada.
The decision of the Canadian Court confers upon the company the right (and duty) to collect the deceased’s assets as the estate trustee (para 2) – which is the standard for succession cases in Ontario. However, it did not directly decide on how the succession affects the assets. Recognising the company’s authorisation to receive the assets (i.e. its right of action) is only one of the requirements that need to be fulfilled so that the assets can be transferred to Canada. Yet, the Austrian courts still have to assess whether issuing the assets to a third state is consistent with Austrian law (including EU law).
The analysis shows that the legal question is far from clear and a preliminary reference to the CJEU would therefore have been necessary. While the Supreme Court was correct in its assessment that an ex officio initiation of probate proceedings is not required by the succession regulation, the rest of its judgment cannot be followed from this premise.