The Court of Justice on Ex Officio Verification of Jurisdiction under the Succession Regulation

The Court of Justice of the EU has recently handed down another judgement interpreting the Succession Regulation. The judgement in VA, ZA v TP (C-645/20) of 7 April 2022 followed the view presented earlier in the opinion of AG Sánchez-Bordona. It concerns duties of the courts of Member States in verification of their jurisdiction resulting from Article 10(1)(a) Succession Regulation.

Background

The background of the case is as follows.

A French national XA died in France leaving wife TP and children from the first marriage. XA used to live in the UK, however shortly before his death has moved to France to be taken care of by one of his children. XA was on owner of a real property located in France. XA’s children have initiated a succession proceeding (namely, applied for an administrator to be appointed) in France indicating that XA was habitually resident there at the time of his death. Such view was shared by the court of the first instance, however the court of the second instance found that XA has not changed his habitual residence and at the time of death it was still located in the UK, and therefore, France lacked jurisdiction in the case.

Preliminary Question

As the case reached the Cour de Cassation, it decided to clarify with the CJEU whether the Succession Regulation requires a court of a Member State to raise of its own motion its jurisdiction under the rule of subsidiary jurisdiction provided for in its Article 10(1)(a) where, having been seised on the basis of the rule of general jurisdiction established in its Article 4, it finds that it has no jurisdiction as the deceased was not habitually resident at the time of death in the forum.

Jurisditional Rules of the Succession Regulation

It might be reminded that jurisdictional rules of the Succession Regulation are of exclusive character, meaning that there is no space left for the residual jurisdiction resulting from domestic laws of Member States (as opposed to, for example, rule provided for in Article 6(1) Brussels I bis Regulation). Recital 30 makes it clear that ‘in relation to the succession of persons not habitually resident in a Member State at the time of death, this Regulation should list exhaustively, in a hierarchical order, the grounds on which such subsidiary jurisdiction may be exercised’. Hence, if the case is covered by the material and temporal scope of the Succession Regulation, a court of a Member State may assume jurisdiction only in accordance with it, irrespective of the nationality or habitual residence of the deceased.

In accordance with Article 4 Succession Regulation courts of the Member State of the deceased’s habitual residence have jurisdiction. If the deceased was habitually resident outside of the EU, then pursuant to Article 10 jurisdiction is based in other factors. The jurisdiction is based on nationality or previous habitual residence and location of assets (Article 10(1)(a) or (b)) or location of assets only (Article 10(2) Succession Regulation). In this last case, where the only link with the forum is the location of assets, the jurisdiction covers not ‘succession as a whole’, meaning all assets irrespective of their location, but is limited to the assets located within the forum only.

It might also be added that the Succession Regulation provides for certain mechanisms (in Articles 5-9) allowing for the transfer of jurisdiction from the Member State having jurisdiction pursuant to Article 4 or Article 10 to the Member State, whose law was chosen by the deceased as applicable.

Reasoning of the Court of Justice

As nicely underlined by the AG when juxtaposing Article 4 and Article 10

each caters for a different factual situation: either the deceased was last habitually resident in a Member State of the European Union (the assumption informing Article 4) or he or she wasn’t (the assumption informing Article 10)’ [para. 47 opinion].

Sharing this view, the Court of Justice, explained that:

there is no hierarchical relationship between the forum established in Article 4 of Regulation No 650/2012 and the forum established in Article 10 thereof (…) Likewise, the fact that the jurisdiction provided for in Article 10 of that regulation is described as ‘subsidiary’ does not mean that that provision is less binding than Article 4 of that regulation, relating to general jurisdiction [para. 33].

As a result, it concluded that a court of a Member State must raise of its own motion its jurisdiction under the rule of subsidiary jurisdiction where, having been seised on the basis of the rule of general jurisdiction, it finds that it has no jurisdiction under that latter provision.

Other comments of the Court of Justice also merit attention. For example, it admits that the application of Article 10 might lead to the frustration of the so desired ius and forum, but it must be made clear that the Succession Regulation neither requires nor guarantees this coincidence.

It also made clear that Member States which do not apply the Succession Regulation, namely Ireland, Denmark and the UK (before Brexit) should be treated as third states when applying this regulation.

Conclusion

The Court of Justice rightly concluded that jurisdictional rules of both Article 4 and Article 10 of the Succession Regulation should be applied ex officio. To that end, AG has proposed what seems to be a very reasonable solution not only when it comes to the application of the Succession Regulation, but any jurisdictional or conflict of law rule, namely that the court is not obliged

to look actively for a factual basis on which to rule on its jurisdiction in a particular dispute, but they do compel it to find, by reference exclusively to the uncontested facts, a basis for its jurisdiction which may be different from that invoked by the applicant [para. 87 opinion].