Marwanak: The Long Road to Mandatory Asset Identification

The author of this post is Ioana Olaru, Associate Researcher at the Institute of Legal Research “Acad. Andrei Rădulescu” of the Romanian Academy and Trainer in EU Private International Law at the Romanian Notarial Institute.

On 22 October 2026, the Court of Justice of the European Union delivered its judgment in Marwanak, clarifying a divergence of interpretation in legal scholarship and German case-law concerning the need to identify specific estate assets in a European Certificate of Succession (ECS).

The controversy acquired renewed significance following the CJEU’s judgment in Registrų centras, where the Court confirmed the compatibility with the Succession Regulation of national registration requirements allowing a land registry to refuse registration where the ECS, submitted as the sole supporting document, does not identify the immovable property concerned. However, the Court left unresolved whether, and under what circumstances, the issuing authority was under a general obligation to identify individual assets in the ECS, irrespective of the number of heirs or the rules governing the devolution of the estate under the applicable law. Against this background, the Bundesgerichtshof (Federal Court of Justice, Germany) referred three questions for a preliminary ruling.

Facts, Questions and the Ruling

The proceedings concerned a succession with successive transmissions of inheritance rights and immovable property situated in the Czech Republic. A married couple made a joint will appointing each other as sole heir, with their daughter designated as the sole heir of the survivor. The husband’s last habitual residence was in Germany. The five children of the daughter applied to the local German Court for an ECS identifying the wife as the husband’s sole heir and themselves as successors to their mother. They also requested express identification of the Czech immovable property, as required for registration in the land register on the basis of the ECS alone. The local Court refused to include the property in the ECS, and the Higher Regional Court upheld the decision, considering that a purely informative reference to an asset, without corresponding evidentiary effects, could create an unfounded appearance of official certification of the deceased’s ownership.

During the appeal, the Bundesgerichtshof was thus confronted with a dilemma. On the one hand, the heirs’ rights might not be effectively guaranteed if the immovable property were not identified in the ECS, at their request. On the other hand, the referring court considered, more fundamentally, that identifying an asset in the ECS would require the issuing authority to verify whether it actually belonged to the deceased’s estate, notwithstanding the limited evidentiary effects of the Certificate in that regard (para. 57).

The Bundesgerichtshof therefore referred three questions concerning Article 68(l) of the Succession Regulation: whether the issuing authority must specify immovable property situated in another Member State where the law governing the land register requires such particulars for registration on the basis of the ECS alone; whether the principle of universal succession under the lex successionis affects that obligation; and whether the possibility of submitting a supplementary document under the lex registri makes their inclusion unnecessary.

The Court answered all three questions in favour of inclusion. Where the ECS is sought for registration of immovable property in another Member State, the issuing authority must identify that property if registration on the basis of the ECS alone requires it (para. 64). Neither universal succession under the lex successionis (para. 74) nor the availability of a supplementary document under the lex registri (para. 90) removes that obligation.

The Direct Link Between the Purpose and the Content of the ECS

One of the most significant contributions of Marwanak lies in the further development of the relationship between the purpose for which the ECS is issued and its content. In Registrų centras, the Court had already acknowledged that the content of the Certificate may vary from case to case (para. 45), depending on its intended purpose. However, that observation was made in the context of assessing the compatibility of national land registration requirements with the Succession Regulation, without exploring its implications for the issuing authority of the ECS.

In Marwanak, this relationship becomes central to the Court’s reasoning. Starting from the wording of Article 68, which requires the ECS to contain the prescribed information “to the extent required for the purpose for which it is issued”, the Court expressly identifies a direct link between the purpose of the application and the content of the ECS. This connection is further supported by Articles 63, 65 and 69 of the Succession Regulation (paras. 43-46). The Court also relies on point 9 of Annex IV to Form V in Annex 5 to Implementing Regulation No 1329/2014 which provides for the inclusion of assets attributed to an heir, particularly where such information is required for registration. What was previously recognised as a degree of flexibility allowing the content of the ECS to be adjusted to the particularities of each succession case now acquires a more precise normative significance: the intended purpose becomes the decisive criterion for determining when the inclusion of specific information is mandatory.

 The Court goes further in reaffirming the structural and functional autonomy of the ECS. The lex successionisdetermines the manner in which succession rights are transferred but does not determine the content of the ECS. Article 68 of the Succession Regulation contains no reference to the law of a Member State for that purpose (para. 68). Accordingly, the expressions “if applicable” and “any given heir” in Article 68(l) cannot confine asset identification to cases involving the allocation of assets on an item-by-item basis among heirs, nor exclude cases of universal succession, even where the entire estate passes to a sole heir. Such information is not systematically required but must be provided where necessary for the purpose of the Certificate (para. 41). Nor can the availability of supplementary documents under the lex registri justify shifting to heirs the burden of supplying information that the ECS itself must contain (para. 89).       

Asset Identification without Certification: Verification and Challenges

Even before Marwanak, it was clear that the ECS may comprise both purely informational elements and elements formally attested by the issuing authority, with distinctive evidentiary effects. Under Article 69(2) of the Succession Regulation, the presumption of accuracy applies only to elements established under the lex successionis or another law applicable to specific elements within the scope of the Regulation. Recital 71 expressly excludes from that presumption the question whether a particular asset belonged to the deceased.

It is precisely here that Advocate General Szpunar, who had argued against mandatory asset identification, expressed his concern that including individual assets in the ECS might create an appearance of certification: third parties could mistakenly understand the Certificate as officially attesting the deceased’s ownership (Opinion, para. 100).

Does the Court offer a convincing answer? It rightly rejects any extensions of the issuing authority’s certification prerogatives to matters falling outside the Regulation. Identifying an asset does not amount to certifying the deceased’s ownership, while the receiving land registry retains the competence to verify it in accordance with the lex registri. This distinction resolves the question of the legal effects attached to such information, although it does not entirely dispel the Advocate General’s concern.

The Court acknowledges that identifying immovable property may entail additional enquiries, costs and delays, but considers that the mechanisms provided for in Article 66 are capable of addressing these difficulties (paras. 54-56). The issuing authority must verify the applicant’s information and evidence, may request further proof and, where provided for or authorised by national law, conduct enquiries of its own motion. The judgment should therefore not be read as establishing a general duty to investigate the entire composition of the estate, while Article 66(5) of the Succession Regulation merely provides an information-gathering and cooperation mechanism for the issuing authority.

The Court’s final observations on the first preliminary question deserve particular attention. Having expressly excluded the deceased’s ownership from the elements to be certified (para. 62), the Court nevertheless links mandatory asset identification to the necessary checks concerning “the elements to be certified” and recalls the obligation to refuse issuance where those elements are challenged (para. 63). The implications of this passage remain unclear, but one possible reading is that even information which is not formally certified must meet a high threshold of reliability before being included in the ECS. In light of this, and considering Albausy, expressly cited by the Court (para. 61), a further consequence may be inferred: challenges to the identification or description of immovable property intended for inclusion in the ECS could prevent its issuance, even where succession rights themselves are uncontested. Whether the Court intended such an extension is uncertain. Its reference to refusal may simply reiterate the rule applicable to elements to be certified. Yet its placement in the context of mandatory asset identification leaves room for a broader interpretation: information essential for the effet utile of the ECS may not be entirely separated from the procedural safeguards governing its issuance.