March 2025 at the Court of Justice of the European Union: Update
The decision in case C-57/24, Ławida, has been scheduled for delivery on 27 March 2025. The Sąd Okręgowy w Gliwicach (Poland) has referred to the Court of Justice the following question:
Must Article 13 of Regulation (EU) No 650/2012 [on succession] be interpreted as meaning that it does not apply in a situation where, in addition to a declaration of waiver of the succession being received, that declaration must additionally be approved by a court in order to be effective pursuant to the laws of the Member State of habitual residence of the person submitting it, for instance where the declaration is submitted after the expiry of the deadline?
In the case at hand, the appellant BA, represented by her father, made an application for the court to approve her being freed from the legal consequences of failure to submit, in a timely manner, a declaration of waiver of the succession following the death of her relative ZJ, and submitted the relevant declaration at the same time.
ZJ died in Germany, where he also had his habitual residence at the time of his death.
BA lives in Poland, as do other persons who were statutory heirs of the deceased, and who have already waived the succession.
The preliminary ruling is to be taken by judges N. Jääskinen (reporting), A. Arabadjiev and R. Frendo. No opinion was asked for; there has been no hearing.
Ławida does not look good. The preliminary question has been based on a Polish-German misunderstanding. Unlike the Polish law, the applicable German law does not foresee any court approval of the avoidance. Under German law the avoidance (Anfechtung der Erbannahme – 1954 BGB) is simply a material declaration – as the waiver itself. Its material effectiveness is being assessed by the succession court when issuing a certificate of inheritance – but the court does not permit the heir to make the declaration when the avoidance is declared. Under Polish law you cannot simply avoid after the initial period for the disclaimer – the heir has to apply for permission to do so and only having obtained that permission from the succession court one may waive the succession. So the Polish court is on a false track – it should simply accept both declarations – the avoidance and the waiver under art. 13 SR. Neither the Polish nor the German court have to approve that avoidance. The whole problem addressed in the preliminary question does not arise here.
Many thanks for your comment, Martin. My understanding of the request is different – the application is only related to the failure to present the waiver in due time. According to the its para13: “In the case at hand, the appellant, relying on the above provision, requested the court to approve her being freed from the legal consequences of failure to submit, as a result of an error, a declaration of waiver of the succession following the death of ZJ within the stipulated six-month time limit, and thus requested that the court assess in substantive terms whether her failure to submit the declaration within the stipulated deadline was indeed the result of
an error, and submitted that declaration at the same time. ” Be it as it may, the Court of Justice relies on the national legal framework as described by the referring jurisdiction. In case of doubt, the Court may ask for clarification.
That is exactly the problem: a waiver in case of an error (also failure to present the waiver in due time) under German law is NOT a case the succession court decides on anything no matter what the referring Polish court thinks. Just a material declaration is made – a combined declaration concerning the error and the waiver. Daily routine for all German notaries and German courts accepting such waivers. No judicial decision whatsoever. Also myself – accepting waivers under art. 13 SR under Polish law as a Polish notary – I have accepted both declarations in German cases many times.
I have no idea why the German government did not file written remarks in that case. I have alerted the Polish Ministry of Justice about it and hope they pointed out the problem in their standing. The worst case scenario is the CJEU stating that art 13 and 28 SR in not applicable in this case (based on a false view of applicable law). That would in practical terms would lead to blocking the possibility to file such declarations under art. 13 SR in Poland in German cases, putting at danger the validity of declarations already made in the past and huge practical problems in many Polish-German cases. Many families from Upper Silesia would need to be send to Germany – although it is not necessary in those cases as the issue does not arise at all.
The referring court, at points 10 to 12, states clearly the contrary: the deadline for making a declaration concerning the acceptance or waiver of the succession is a mandatory time limit under substantive law; it is possible to be freed from the legal consequences of failure to submit, in a timely manner, a declaration of waiver of the succession, but only in strictly defined and enumerated situations. ‘What is significant for the case at hand is that pursuant to Article 1019(3) of the CC, being freed from the legal consequences of the declaration concerning the acceptance or waiver of the succession requires the approval of a court.’ The point of departure – the applicability of Polish law- may be wrong: difficult to assert with the data provided by the request. Should German law be applicable to the case a hand, as you say, an intervention of the German gouvernment coud have helped spotting a possible mistake on the side of the referring court – not regarding the interpretation of its own law, but of foreign law. Anyway, it did not happen. Let’s see how the Court decides.
In the past I have trained judges from District Courts in Opole and Katowice, not in Gliwice. So I had no chance to influence the application of the succession regulation by this court. Sadly, there are no contacts – although it is a neighbouring court to my notarial district.
The Polish court refers to Polish succession law and its scope of activity when Polish law is applicable. The problems of court approval of the avoidance (error) and the jurisdiction under art. 13 SR appear rather, when such a waiver would be made in Germany for a Polish succession case.
When the judgement comes, we will see how far going the damage control needs to be.