Case C‑218/16

Proceedings brought by Aleksandra Kubicka

(Request for a preliminary ruling
from the Sąd Okręgowy w Gorzowie Wielkopolskim)

(Reference for a preliminary ruling — Area of Freedom, Security and Justice — Regulation (EU) No 650/2012 — Succession and the European Certificate of Succession — Scope — Immovable property located in a Member State in which legacies ‘per vindicationem’ do not exist — Refusal to recognise the material effects of such a legacy)

Summary — Judgment of the Court (Second Chamber), 12 October 2017

1. Judicial cooperation in civil matters—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—Regulation No 650/2012—Scope—Matters excluded—Nature of rights in rem—Scope—Methods of transfer of a right in rem—Not included

   (European Parliament and Council Directive No 650/2012, Art. 1(2)(k))

2. Judicial cooperation in civil matters—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—Regulation No 650/2012—Scope—Matters excluded—Recording in a register of rights in immovable or movable property and its effects—Scope—Acquisition of ownership of an asset by legacy ‘by vindication’—Not included

   (European Parliament and Council Directive No 650/2012, Art. 1(2)(l))

3. Judicial cooperation in civil matters—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—Regulation No 650/2012—Applicable law—Adaption of rights in rem—Scope—Methods of transfer of rights in rem—Not included

   (European Parliament and Council Directive No 650/2012, Art. 31)

4. Judicial cooperation in civil matters—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—Regulation No 650/2012—Scope—Material effects of a legacy by vindication concerning the right of ownership in immovable property located in a Member State that does not provide for legacies with direct material effect—Included

   (European Parliament and Council Directive No 650/2012, Arts 1(2)(k), (l) and 31)

1.  See the text of the decision.

   (see paras 47-50)

2.  See the text of the decision.

   (see paras 52-57)

3.  Article 31 of Regulation No 650/2012 does not concern the method of the transfer of rights in rem, including, inter alia, legacies ‘by vindication’ or ‘by damnation’, but only the respect of the content of rights in rem, determined by the law governing the succession (lex causae), and their reception in the legal order of the Member State in which they are invoked (lex rei sitae). Therefore, in so far as the right in rem transferred by the legacy ‘by vindication’ is the right of ownership, which is recognised in German law, there is no need for the adaptation provided for in Article 31 of Regulation No 650/2012.

   (see paras 63, 64)

4.  Article 1(2)(k) and (l) 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 precluding the refusal, by an authority of a Member State, to recognise the material effects of a legacy ‘by vindication’, provided for by the law governing succession chosen by the testator in accordance with Article 22(1) of that regulation, where that refusal is based on the ground that the legacy concerns the right of ownership of immovable property located in that Member State, whose law does not provide for legacies with direct material effect when succession takes place.

   (see para. 66, operative part)