1.

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, ( 2 ) which entered into force on 16 August 2012, is applicable, except for some general provisions, from 17 August 2015, according to the second paragraph of Article 84 of that regulation.

2.

The Court has been asked, for the first time, ( 3 ) about the interpretation of provisions of Regulation No 650/2012, and in particular the exceptions provided for in Article 1(2)(k) of that regulation, which exclude from its scope ‘the nature of rights in rem’ and ‘any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register’. ( 4 )

3.

I shall be considering a very complex issue, namely, the determination of the scope of succession law as distinct from that of property law, which have been the subject of much discussion, as pointed out by the European Commission in its written observations ( 5 ) and in legal literature. ( 6 )

4.

Specifically, in the present case, it is a question of determining whether provisions which exclude cases involving the application of the law of the place where the property in question is situated can support a refusal to recognise the material effects of a legacy ‘by vindication’, by which the right in the property is transferred directly to the legatee upon the opening of the succession, where that refusal concerns the right of ownership of immovable property located in a Member State in which only legacies ‘by damnation’ exist, and not legacies ‘by vindication’. Under the latter form of disposition, the heir is obliged to transfer the right in the property to the legatee, thus conferring on the latter the right to enforce execution of the legacy.

5.

After explaining the reasons why the objections of inadmissibility must be rejected, I shall explain why it is appropriate to consider that:

6.

I propose, therefore, that the question referred be answered in the negative.

7.

According to recitals 7, 9, 15, 16, 18, 19, 37 and 67 of Regulation No 650/2012:

…

…

…

…

…

8.

Under Article 1 of that regulation:

‘1.   This Regulation shall apply to succession to the estates of deceased persons. It shall not apply to revenue, customs or administrative matters.

2.   The following shall be excluded from the scope of this Regulation:

…

9.

According to Article 21(1) of that regulation, which lays down the general rule on the law applicable to the succession:

‘Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.’

10.

Paragraphs 1 and 2 of Article 22 of Regulation No 650/2012, entitled ‘Choice of law’ provides:

‘1.   A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.

…

2.   The choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition.’

11.

Paragraphs 1 and 2(e) of Article 23 of that regulation, entitled ‘The scope of the applicable law’, provides:

‘1.   The law determined pursuant to Article 21 or Article 22 shall govern the succession as a whole.

2.   That law shall govern in particular:

…

12.

Under Article 31 of that regulation, entitled ‘Adaptation of rights in rem’:

‘Where a person invokes a right in rem to which he is entitled under the law applicable to the succession and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right in rem under the law of that State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it.’

13.

Chapter V of Regulation No 650/2012 concerns authentic instruments and court settlements.

14.

Under paragraph 1 of Article 59 of that regulation, entitled ‘Acceptance of authentic instruments’, ‘an authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy (ordre public) in the Member State concerned’.

15.

In Chapter VI of that regulation, on the European Certificate of Succession, Article 62, entitled ‘Creation of a European Certificate of Succession’ states:

‘1.   This Regulation creates a European Certificate of Succession … which shall be issued for use in another Member State and shall produce the effects listed in Article 69.

2.   The use of the [European] Certificate [of Succession] shall not be mandatory.

…’

16.

Paragraphs 1 and 2(b) of Article 63 of Regulation No 650/2012, entitled ‘Purpose of the [European] Certificate [of Succession]’, provides:

‘1.   The [European] Certificate [of Succession] is for use by heirs, legatees having direct rights in the succession and executors of wills or administrators of the estate who, in another Member State, need to invoke their status or to exercise respectively their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate.

2.   The [European] Certificate [of Succession] may be used, in particular, to demonstrate one or more of the following:

…

17.

In the same chapter, Article 68 of that regulation, entitled ‘Contents of the [European] Certificate [of Succession]’, provides:

‘The [European] Certificate [of Succession] shall contain the following information, to the extent required for the purpose for which it is issued:

…

…’

18.

Paragraphs 2 and 5 of Article 69 of that regulation, entitled ‘Effects of the [European] Certificate [of Succession]’, state:

‘2.   The [European] Certificate [of Succession] shall be presumed to accurately demonstrate elements which have been established under the law applicable to the succession or under any other law applicable to specific elements. The person mentioned in [that] Certificate as the heir, legatee, executor of the will or administrator of the estate shall be presumed to have the status mentioned in the Certificate and/or to hold the rights or the powers stated in the Certificate, with no conditions and/or restrictions being attached to those rights or powers other than those stated in the [European] Certificate [of Succession].

…

5.   The [European] Certificate [of Succession] shall 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).’

19.

Under Article 9811(1) of the Kodeks Cywilny (Polish Civil Code, ‘the Civil Code’):

‘In a will drawn up in the form of a notarial instrument, the testator can decide that an asset to which a legacy relates shall pass to a specified person upon the opening of the succession (legacy “by vindication”).’

20.

According to paragraph 2(2) of that article:

‘The asset to which such a legacy relates may be, inter alia, a share in the right of ownership of immovable property, constituting a transferrable property right.’

21.

Article 968 of the Civil Code concerns the ‘legacy by damnation’, which a testator may include in a will drawn up in any permissible form, including a holographic will.

22.

Under Article 81 of the Prawo o notariacie (Law introducing a notarial code, ‘the Notarial Code’) of 14 February 1991, ( 7 ) as amended by the Law of 13 December 2013, ( 8 ) notaries are obliged to refuse to execute unlawful notarial instruments.

23.

Article 83(2) of the Notarial Code provides that a refusal to execute a notarial instrument is subject to review where an action is brought by the person affected by the refusal. Such an action is examined in the first instance under the self-review procedure by the notary himself, who may uphold it and execute the instrument in question. If the notary himself dismisses the action, it is examined by the Sąd Okręgowy (Regional Court) with jurisdiction in the place where the notary is registered. In accordance with national case-law, the Sąd Okręgowy (Regional Court) will then give a ruling as the court of second instance.

24.

Aleksandra Kubicka, a Polish national and mother of two minor children from her marriage to a German national, is the joint owner of a property located in Frankfurt (Oder) (Germany) which is the family residence, each party having a 50% share.

25.

In order to make her will, Aleksandra Kubicka approached a notary practising in Słubice (Poland). She wished to pass onto her husband, upon the opening of the succession, her share of the rights of ownership in the jointly owned property. She chose to make a will containing a legacy ‘by vindication’, as provided for in Polish succession law, under Article 9811 of the Civil Code. The applicant wished to leave the remainder of her estate in accordance with the statutory order of inheritance, whereby her husband and children would inherit it in equal shares.

26.

The deputy notary, Marcin Margoński, refused, pursuant to Article 81 of the Notarial Code, to draw up a will containing a legacy ‘by vindication’.

27.

In order to support his claim that such a legacy was contrary to German legislation, legal literature and case-law on rights in rem and land registration, which must be taken into account pursuant to Article 1(2)(k) and Article 31 of Regulation No 650/2012, the deputy notary stated that:

28.

The deputy notary also explains his analysis by reference to the explanatory memorandum to the German law implementing Regulation No 650/2012, namely the Law on International Succession Proceedings (Internationales Erbrechtsverfahrensgesetz) of 29 June 2015, ( 9 ) which contains the following passage: ‘[h]owever, legacies “by vindication” are unknown in German law and Regulation No 650/2012 (Article 1(2)(k)) does not require it to recognise them. Until now, the practice under German law has been to adapt such legacies, converting them into rights under the law of obligations (a legacy “by damnation”). Article 31 of [that] regulation does not change the position in that regard’.

29.

Aleksandra Kubicka brought an action before the deputy notary, claiming that Regulation No 650/2012 contains no provisions which support the non-recognition of the material effects of the legacy ‘by vindication’ provided for in the succession law which she chose.

30.

Since the deputy notary confirmed his refusal to execute the notarial instrument, Aleksandra Kubicka then brought an action before the referring court.

31.

The referring court considered that it was being asked to establish the extent to which the effects arising from the succession law may be limited by the law of the place where the property in question is situated.

32.

In those circumstances, the Sąd Okręgowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must Article 1(2)(k), Article 1(2)(1) and Article 31 of Regulation (EU) No 650/2012 … be interpreted as permitting refusal to recognise the material effects of a legacy by vindication (legatum per vindicationem), as provided for by [Polish] succession law, if that legacy concerns the right of ownership of immovable property located in a Member State the law of which does not provide for legacies having direct material effect?’

33.

In their written observations, the German and Hungarian Governments claimed that the question referred for a preliminary ruling is inadmissible on the ground that it is hypothetical.

34.

It should be noted, as a preliminary point, that, according to settled case-law, ‘the procedure established by Article 267 TFEU is an instrument of cooperation between the Court and the national courts. It follows that it is for the national courts alone which are seised of the case and are responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, obliged to give a ruling. Nevertheless, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to enable it to give a useful answer to the questions submitted to it’. ( 10 )

35.

The Hungarian Government called upon the Court not to answer the question referred on the ground that the question concerns a refusal to recognise an effect of the legacy on rights in rem which has not yet been issued by the German authority responsible for land registration, since the testator is not yet deceased. That government considers that that question merely seeks an interpretation of Polish and German national provisions on legacies with a view to determining how they interact with each other.

36.

I note, by reference to recital 7 of Regulation No 650/2012, that that regulation aims to enable European citizens to organise their succession and to ensure that the rights of heirs and legatees are effectively guaranteed. Therefore, questions relating to situations in which limits are imposed on the testator’s testamentary freedom are admissible. Moreover, it is not conceivable, for reasons of legal certainty, to delay addressing the matter until the succession is open, when difficulties in interpretation arise as the instrument is being executed.

37.

According to the German government, the referring court considers that it must establish whether the instrument chosen by the applicant is unlawful, under Article 81 of the Notarial Code, but does not specify how such unlawfulness would arise under Polish law from the non-recognition of legacies ‘by vindication’ under German law.

38.

However, I maintain, as was also pointed out during the hearing, that the notary’s obligation to refuse to execute an instrument which is in breach of legal requirements must be understood in a broad sense. The obligation of the notary, as a public official, necessarily includes the duty to provide advice and the duty to check the effectiveness of the instrument in achieving the objective pursued by the person concerned.

39.

In the dispute in the main proceedings, as is clear from the request for a preliminary ruling, the testator wishes to organise the direct transfer of the asset without the need for further formalities to be observed after her death.

40.

The relevance of the referring court’s assessment of German positive law, according to which a legacy ‘by vindication’ of rights relating to immovable property located in Germany cannot produce any effects, has been confirmed. ( 11 )

41.

Since an action was brought before the referring court against the notary’s refusal to execute such an instrument, as provided for in the law chosen by the testator but not recognised by the law of the place where the immovable property is situated, it must be considered that the request for interpretation is not hypothetical.

42.

Therefore, I take the view that the question referred for a preliminary ruling is admissible.

43.

The dispute in the main proceedings concerns the transfer of the right of ownership of an immovable property located in Germany held by Aleksandra Kubicka, a Polish national, after her death by way of a legacy.

44.

That disposition of property upon death falls within the scope of Regulation No 650/2012 according to Article 1 and Article 3(1)(a) of that regulation.

45.

The procedures for that transfer must, as a matter of principle, be subject to the succession law chosen by Aleksandra Kubicka. Under Article 22 of that regulation, she may choose as the law to govern his succession as a whole the law of the State whose nationality she possesses at the time of making the choice. Moreover, Article 23(2)(e) of that regulation provides that that law is to govern, in particular, the transfer to the legatees of the rights forming part of the estate. That assessment is supported by recital 42 of that regulation, which states that ‘the law applicable to the succession should govern the succession from the opening of the succession to the transfer of ownership of the assets forming part of the estate to the beneficiaries as determined by that law’.

46.

By way of that legacy, Aleksandra Kubicka wishes to pass to the legatee her share of the full ownership of an asset, that is, a right in rem recognised in both legal systems concerned which corresponds to the right she currently exercises.

47.

The choice of a legacy ‘by vindication’ rather than a legacy ‘by damnation’ does not therefore alter the content of the right to be exercised with regard to the asset. It simply allows a right in rem to be transferred directly to the legatee, rather than being passed on indirectly by establishing a right in personam for the legatee.

48.

Contrary to what is claimed by the German Government, the exception provided for in Article 1(2)(k) of Regulation No 650/2012 does not apply to that different form of transfer. As clearly stated in recital 15 of that regulation, only the determination of the nature and number of rights in rem fall within the scope of the law of the place where the immovable property is situated.

49.

Therefore, the reference to Article 1(2)(k) of that regulation can be excluded from the proceedings on account of its scope of application.

50.

Consequently, the same applies to Article 31 of Regulation No 650/2012, which, according to the wording of that provision, is applicable only where ‘a person invokes a right in rem to which he is entitled under the law applicable to the succession and the law of the Member State in which the right is invoked does not know the right in rem in question’.

51.

The only remaining point for consideration, which was put forward by the German Government as being decisive, is as follows: ( 12 ) can the exclusion provided for in Article 1(2)(l) of that regulation limit the effects of the succession law on the transfer of property as defined in Article 23(e) of that regulation?

52.

In other words, if, under the succession law chosen by the testator, an heir has become the owner of immovable property, and title to that property must be recorded in the land register of another Member State, may the latter Member State apply as against him the law of the place where the property is situated, under which different substantive conditions apply, when making that entry of title?

53.

The answers can be inferred from the analysis of the provisions of Article 1(2)(l) of Regulation No 650/2012 and from the objectives pursued by that regulation.

54.

First, I would observe once more, for the purposes of the discussion, that, Article 1(2)(l) of Regulation No 650/2012, excludes from the scope of the regulation ‘any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register’.

55.

Recital 18 of Regulation No 650/2012 defines its scope, which must be interpreted strictly as constituting exclusions: ‘It should therefore be the law of the Member State in which the register is kept (for immovable property, the lex rei sitae) which determines under what legal conditions and how the recording must be carried out and which authorities, such as land registers or notaries, are in charge of checking that all requirements are met and that the documentation presented or established is sufficient or contains the necessary information. … In particular, the European Certificate of Succession issued under this Regulation should constitute a valid document for the recording of succession property in a register of a Member State. … The competent authority may indicate to the person applying for registration how the missing information or documents can be provided’.

56.

According to, in particular, the Spanish Government and the Commission, ( 13 ) the purpose of the legal requirements referred to in that provision, relating, inter alia, to the time limit for the recording and to the formal requirements, is to ensure the security inherent in any recording or transfer of rights. It is precisely in order to facilitate the fulfilment of those requirements, which do not relate to the substantive conditions of the transfer of the right in rem, and the movement of instruments of title that the European Certificate of Succession was created. ( 14 )

57.

At this stage of the analysis, it could already be considered that the provisions of Article 1(2)(l) of the regulation cannot be construed as justifying a refusal to recognise the effects of a legacy subject to the chosen succession law.

58.

However, as submitted by the German Government, is there any scope for an alternative solution based on the wording of the final part of the sentence in that article namely: ‘and the effects of recording or failing to record such rights in a register’?

59.

The sense of the wording used in recital 19 of that regulation is very clear. The question of determining whether the registration has the effect of declaring or constituting a right is referred to specifically. The moment of the acquisition is also referred to, by way of example, as being excluded from the scope of the succession law.

60.

There can be no question of the requirement for registration being made a condition of the acquisition of a right in rem in every case. Indeed, that caveat must necessarily be viewed in conjunction with the principle that the succession law should govern the succession as a whole, as provided for in Article 23(2)(e) of Regulation No 650/2012, according to which the succession law governs ‘the transfer to the heirs and … the legatees of the assets, rights and obligations’. A different interpretation would considerably reduce the scope of that principle, notwithstanding that account should be taken of the objective pursued by the EU legislature.

61.

In that regard, it should be noted that that regulation has the more general objective of maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured. ( 15 )

62.

The regulation seeks to ensure the compatibility of the applicable rules concerning conflict of laws and of jurisdiction, which are particularly complicated in matters of succession because the variety of issues to be addressed gives rise to complexity (determination of the beneficiaries, of their rights, in some instances depending on the asset concerned, the procedure for the administration and disposition of the estate, etc.).

63.

Moreover, the specific primary objective of Regulation No 650/2012 is set out in recital 7. It states that ‘[i]n the European area of justice, citizens must be able to organise their succession in advance. The rights of heirs and legatees … must be effectively guaranteed’.

64.

The means of achieving that are described, in particular, in recital 8 of the regulation according to which ‘this Regulation should bring together provisions on … recognition … of … authentic instruments … and on the creation of a European Certificate of Succession’ and in recital 37 of that regulation, which relates to the harmonisation of conflict-of-law rules ‘irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third State’.

65.

It should also be noted that the creation of a European Certificate of Succession reflected that intent to simplify the process. Notably, the certificate enables heirs or legatees to prove their status and their rights in another Member State and, in particular, to demonstrate the attribution of a specific asset to the legatee mentioned in that certificate. ( 16 )

66.

Accordingly, under Article 69(5) of that regulation, that certificate is to constitute a valid document for the recording of succession property in the relevant register of a Member State.

67.

Nor can it be argued that that provision also applies to the exclusion provided for in Article 1(2)(l) of Regulation No 650/2012. Its scope must be limited to the specific requirements for the recording of rights in a register, ( 17 ) for the reasons set out in point 55 of this Opinion, which are drawn from recital 18 of that regulation. It follows that, in practice, other documents or information may be required in addition to the European Certificate of Succession where, for example, the information in the certificate is not specific enough to identify the asset the ownership of which must be registered as having been transferred.

68.

According to the Commission, ( 18 ) in the negotiations preliminary to the adoption of that regulation, the German Government’s proposals for the law of the Member State in which the asset is situated to remain applicable for the purposes of determining the conditions for transferring the right of ownership were rejected or amended on grounds in keeping with those analyses.

69.

Moreover, the Commission noted that the Kingdom of the Netherlands, where succession law also does not provide for legacies ‘by vindication’, adapted its provisions on registration when Regulation No 650/2012 was transposed into its national law in such a way as to allow a legatee ‘by vindication’ would be able to record his right of ownership by way of the European Certificate of Succession containing a declaration that the legatee has acquired immovable property by way of a legacy. ( 19 )

70.

That solution ensures that the choice of law applicable to the succession is fully effective.

71.

That solution is also essential in terms of the distribution of the estate, which may present the same difficulties.

72.

It must also be assessed in the context of the means for adaptation, provided for in Article 31 of that regulation, where the rights acquired are not known in the law applicable in the place where the rights are registered, which makes clear that it is impossible for a right to be excluded and that it was the EU legislature’s firm intention to give practical effect to the choice of law applicable to the succession.

73.

Therefore, in the light of all the foregoing, I am of the opinion that, in a situation such as that in the main proceedings, Article 1(2)(k) or Article 31 of that regulation must be interpreted as not permitting refusal to recognise the material effects of a legacy ‘by vindication’ (legatum per vindicationem), as provided for by succession law, if that legacy concerns the right of ownership of immovable property located in a Member State the law of which does not provide for legacies having direct material effect.

74.

In the light of the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Sąd Okręgowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland) as follows:

In a situation such as that in the main proceedings, Article 1(2)(k), Article 1(2)(1) and Article 31 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession must be interpreted as not permitting refusal to recognise the material effects of a legacy ‘by vindication’ (legatum per vindicationem), as provided for by succession law, if that legacy concerns the right of ownership of immovable property located in a Member State the law of which does not provide for legacies having direct material effect.