The author of this post is Francesca Maoli (University of Genova).
On 9 March 2023, the CJEU delivered a judgment on the European Certificate of Succession, created by Regulation No 650/2012 on matters of succession, and the recording, in a land register, of a right of ownership in immovable property (C‑354/21, R.J.R. v Registrų centras VĮ).
The Court held that land registry authorities of a Member State may reject an application for registration of immovable property, where the only document submitted in support of that application is a European Certificate of Succession which does not identify the immovable property in question.
The facts of the case are summarized here. The matter concerned the refusal of the Lithuanian VĮ Registrų centras (State Enterprise Centre of Registers) to register ownership rights on the basis of a European Certificate of Succession alone, which was issued by the competent German probate court. According to Lithuanian authorities, the Certificate did not contain the data required by the Lithuanian Law on the Real Property Register, as it did not identify the immovable property inherited by the applicant. In other words, no information was provided to clearly detect the asset(s) attributed to the heir for whom certification was requested.
The decision was appealed and the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) referred a question to the CJEU for a preliminary ruling. The Lithuanian judge highlighted a prima facie incompatibility between German succession law and Lithuanian law concerning the recording of a right of ownership in land registers. In fact, German law of succession is governed by the principle of universal succession and consequently, it is not possible to indicate or designate the assets forming part of the estate. In particular, according to the Lithuanian court, this happens where a single heir inherits the deceased’s entire estate. On the other hand, the Lithuanian Law on the land register provides that an application for registration of rights in rem in immovable property shall contain supporting documents and information that allow for precise identification of the immovable property in question: in particular, it requires the address and the so-called Unikalus No. (unique number of the property).
The Court’s Ruling
The CJEU – by reframing the question proposed by the domestic court – identified the issue as concerning not only the relationship between Article 1(2)(l) and Article 69(5) of the Succession Regulation, but also Article 68, that specifically concerns the content of the European Certificate of Succession.
The Court highlighted that Article 1(2)(l) of the Succession Regulation excludes from its scope of application “any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording of failing to record such rights in a registers”. According to Article 69(5), the European Certificate of Succession constitute a valid document for the recording of succession property in the relevant register of a Member State “without prejudice to points (k) and (l) of Article 1(2)”. Coherently, the Certificate contains certain information in so far as it is necessary for the purpose for which it is issued and “if applicable, the list of rights and/or assets for any given heir” (Article 68(l)).
According to the CJEU, the content of the Certificate may vary from case to case. However, this does not depend only on the applicable succession law, but rather on the purposes for which the Certificate is issued. While the Certificate may constitute a valid document for the recording of succession property in public registers, the legal requirements for such recording are governed by national law. This means that, according to the Succession Regulation, each Member State is free to determine the conditions for the registration of an immovable property and may impose the applicants to include all identifying data of such a property. If the only supporting document to the application is a European Certificate of Succession which does not contain those information, national authorities may reject that application.
The CJEU adopted an interpretation of the Succession Regulation that does not go beyond the intent and aim of its provisions. While the European Certificate of Succession has the scope to demonstrate the quality and the rights of the heirs, Article 1(2)(l) is clear in attributing to national law the discipline of the legal requirements for property registration. According to the CJEU, the effet utile of the Certificate is not undermined by the need to identify the immovable property on which the heir may exercise their rights.
Indeed, the CJEU’s reasoning is coherent with the position expressed by the European Commission already in 2016. In response to a question from the European Parliament, the Commission stated that the European Certificate of Succession must contain all the required information, based on the purpose for which it is issued: since the function of the certificate is primarily to enable the heir to prove their status with regard to the assets of the estate located in another Member State, it is necessary for these assets to be identified and described in the document. Only in this way can the certificate constitute a valid title for the registration of the property in the relevant registers of a Member State.
In the specific case, the situation was quite straightforward: as the heir was the sole heir, the German probate court could have easily identified the assets, especially if Lithuanian registers were to make it possible to trace a deceased person’s property. On the other hand, German case law considers this practice incompatible with German inheritance law, regardless of the circumstances of the case. At the same time, Lithuanian law is free to determine the rules and conditions for property registration: the Succession Regulation is clear in this regard.
Indeed, an interesting consideration stems from the opinion of Advocate General Szpunar, who fostered the effet utile of the European Certificate of Succession, which the CJEU did not follow. According to the Advocate General, the content of the Certificate is determined by the applicable succession law. Since German law adheres to the principle of universal succession, the heir succeeds to the estate as a whole, rather to particular assets, which are transferred as a totality. This means that the fragmentation of domestic succession laws may indeed undermine the effet utile of the Certificate, since the Certificate alone may not be sufficient to allow for the recording in national land registers and therefore to produce its effets in all Member States according to Article 69(5).