Succession Regulation and Third State Nationals: the OP Case Back in Domestic Courts
This post was prepared together with Aleksandra Karlińska (student researcher in EUSuccess Project at Jagiellonian University).
This post describes the outcome of the OP case, after the ruling given by the Court of Justice of the European Union (C-21/22), back in front of the referring court, as in 2025 the Regional Court in Opole (II Cz 438/21) finally decided on that matter. The detailed factual background of the case and the findings of the Court of Justice were outlined in a previous post on this blog.
In short, the case concerned the refusal by a notary to draft a notarial deed including a will with a clause designating Ukrainian law as applicable to the succession.
The question was whether a third-country national may choose the law applicable in accordance with Article 22 of the Succession Regulation, when the bilateral agreement between the country of their nationality and the country of their habitual residence (in this case, Polish-Ukrainian Bilateral Agreement) does not explicitly provide for party autonomy.
Decision of the Court of Justice
In its judgement, the Court of Justice ruled that:
where a Member State is a party to a bilateral agreement concluded with a third State (before the entry into force of the Succession Regulation), which contains provisions laying down rules applicable to succession, it is those provisions which, in principle, are intended to apply, instead of these of the Succession Regulation (OP, para. 27);
and, consequently, that the Succession Regulation
does not preclude a situation where, under a bilateral agreement …, a third-country national residing in the Member State bound by that bilateral agreement does not have the right to choose the law applicable (OP, para. 37).
It was however left to domestic court to decide if indeed this particular bilateral agreement does not allow for choice of applicable law if it is simply silent on that matter. As AG Sánchez-Bardona noted in his Opinion (note 43) “it is for the referring court to decide on the interpretation of that aspect of the Bilateral Convention”.
Decision of the Polish Supreme Court
After the judgement of the Court of Justice the Regional Court referred the matter to the Polish Supreme Court asking for the issuance of a resolution (uchwała). Here it might be explained that a resolution of the Supreme Court is aimed at resolving a legal doubt encountered by a common court in its adjudication. A resolution is binding only in the specific case. Therefore, other courts are not formally bound by such a resolution. However, resolutions of the Supreme Court are respected by other courts to ensure uniformity of jurisprudence. As a result, they have an impact on the judicial practice of Polish courts.
On 9 October 2024, the Supreme Court refused to adopt a resolution. In its decision (III CZP 11/24), it concluded that the Regional Court’s motion did not meet the requirements stated in Article 390 § 1 of the Polish Code of Civil Procedure, as it did not involve genuine interpretative doubts. According to the Supreme Court, the Regional Court failed to demonstrate divergences in case law or legal literature and did not present arguments supporting alternative interpretations. Moreover, in view of the Supreme Court, the matter had already been resolved by the CJEU, which further eliminated the need for the resolution
Further Proceedings before the Regional Court
Obliged to decide on its own the Regional Court considered two potential interpretations of the Poland-Ukraine Bilateral Agreement. Based on the first view, the silence of the Bilateral Agreement on the choice of applicable law in successions leaves this matter outside the scope of the agreement, and therefore, the provisions of Polish and Ukrainian laws regulating these issues should apply in this matter. In such case choice of applicable law is possible in accordance with the Succession Regulation. Based on the opposite view, due to the wording of the agreement, Poland and Ukraine have excluded the possibility of choosing law applicable to successions.
In its deliberations, the Regional Court considered the debate ongoing in previous proceeding before the CJEU. Specifically, it noted the divergence between the positions of the Hungarian government and the European Commission and those of the Polish and Spanish governments. According to Hungary and the EC, the choice of law is inadmissible, because the bilateral agreement does not grant the parties autonomy in this regard. The Polish and Spanish governments, on the other hand, took a different position, arguing that since the agreement does not exclude / forbid choice of law, it tacitly allows it, which would allow the application of Article 22 of the Succession Regulation, in accordance with the rules of interpretation of treaties in Articles 31-32 of the Vienna Convention.
According to the Regional Court, the CJEU gave priority to the Polish-Ukrainian Agreement based on Article 75 Succession Regulation. However, as the AG pointed out, this is only relevant if the agreement excludes the choice of law. If not, the issue remains unregulated and national conflict-of-law rules apply: in Poland – Article 22 Succession Regulation, and in Ukraine – Articles 70 and 71 Ukrainian private international law.
After consideration of all the indicated positions and opinions, the Regional Court decided to apply the principleof historical interpretation, noting that at the time the Poland-Ukraine Bilateral Agreement was concluded, the conceptof party autonomy in international successions was unknown in both countries. Hence, the admissibility of party autonomy must arise directly from the agreement in order to exist. In the absence of such a provision, a third-country national cannot exercise choose the law applicable to succession matters.
Conclusion and Practical Significance
This case is important not only for the understanding of Poland-Ukraine Bilateral Agreement, but also for other agreements that have been concluded by Poland with third States.
Poland has numerous such agreements on judicial cooperation concluded with third states, some of which do contain rules on international successions (for instance with Algeria (1976), Belarus (1994), Cuba (1982), North Korea (1986), Russia (1996), Vietnam (1993) and in the agreement concluded with Yugoslavia (1960), which applies nowadays in relations with Bosnia and Herzegovina, North Macedonia, Serbia and Montenegro).
The significance of the decision extends far beyond Polish-Ukrainian relations and might be useful as a guideline for interpretation of bilateral agreements in Poland and in other States.