CELEX: 62020CJ0422
Reference for a preliminary ruling
Judicial cooperation in civil matters
Succession
Regulation (EU) No 650/2012
Article 6(a)
Declining of jurisdiction
Article 7(a)
Jurisdiction
Examination by the court second seised
Article 22
Choice of law applicable
Article 39
Mutual recognition
Article 83(4)
Transitional provisions

This request for a preliminary ruling concerns the interpretation of Article 6(a), Article 7(a), Article 22 and Article 83(4) 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 (
OJ 2012 L 201, p. 107
, and corrigenda
OJ 2012 L 344, p. 3
and
OJ 2013 L 60, p. 140
; ‘the Succession Regulation’).
The request has been made in proceedings between RK and CR concerning an application submitted by CR, following the death of her spouse, to obtain a national certificate of inheritance and a European Certificate of Succession.
Legal context
Recitals 27 and 59 of the Succession Regulation are worded as follows:
‘(27)
The rules of this Regulation are devised so as to ensure that the authority dealing with the succession will, in most situations, be applying its own law. This Regulation therefore provides for a series of mechanisms which would come into play where the deceased had chosen as the law to govern his succession the law of a Member State of which he was a national.
…
(59)
In the light of its general objective, which is the mutual recognition of decisions given in the Member States in matters of succession …, this Regulation should lay down rules relating to the recognition, enforceability and enforcement of decisions …’
Article 3(1) of the Succession Regulation, entitled ‘Definitions’, provides:
‘For the purposes of this Regulation:
…
(g)
“decision” means any decision in a matter of succession given by a court of a Member State, whatever the decision may be called, including a decision on the determination of costs or expenses by an officer of the court;
…’
Article 4 of that regulation, entitled ‘General jurisdiction’, provides:
‘The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole.’
Under Article 6 of that regulation, entitled ‘Declining of jurisdiction in the event of a choice of law’:
‘Where the law chosen by the deceased to govern his succession pursuant to Article 22 is the law of a Member State, the court seised pursuant to Article 4 or Article 10:
(a)
may, at the request of one of the parties to the proceedings, decline jurisdiction if it considers that the courts of the Member State of the chosen law are better placed to rule on the succession, taking into account the practical circumstances of the succession, such as the habitual residence of the parties and the location of the assets; …
…’
Article 7 of that regulation, entitled ‘Jurisdiction in the event of a choice of law’, provides:
‘The courts of a Member State whose law had been chosen by the deceased pursuant to Article 22 shall have jurisdiction to rule on the succession if:
(a)
a court previously seised has declined jurisdiction in the same case pursuant to Article 6;
…’
Article 10 of the Succession Regulation, entitled ‘Subsidiary jurisdiction’, provides:
‘1.   Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as:
(a)
the deceased had the nationality of that Member State at the time of death; or, failing that,
(b)
the deceased had his previous habitual residence in that Member State, provided that, at the time the court is seised, a period of not more than five years has elapsed since that habitual residence changed.
2.   Where no court in a Member State has jurisdiction pursuant to paragraph 1, the courts of the Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on those assets.’
Article 22(1) and (2) of that regulation, 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.
A person possessing multiple nationalities may choose the law of any of the States 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.’
Chapter IV of the Succession Regulation, entitled ‘Recognition, Enforceability and Enforcement of Decisions’, contains Articles 39 and 58 of that regulation.
Under Article 39(1) of that regulation, entitled ‘Recognition’:
‘A decision given in a Member State shall be recognised in the other Member States without any special procedure being required.’
Article 40 of that regulation, entitled ‘Grounds for non-recognition’, provides:
‘A decision shall not be recognised:
(a)
if such recognition is manifestly contrary to public policy (ordre public) in the Member State in which recognition is sought;
(b)
where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so;
(c)
if it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought;
(d)
if it is irreconcilable with an earlier decision given in another Member State or in a third State in proceedings involving the same cause of action and between the same parties, provided that the earlier decision fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.’
Article 41 of the Succession Regulation, entitled ‘No review as to its substance’, provides:
‘Under no circumstances may a decision given in a Member State be reviewed as to its substance.’
Article 83(1) and (4) of that regulation, entitled ‘Transitional provisions’, provides:
‘1.   This Regulation shall apply to the succession of persons who die on or after 17 August 2015.
…
4.   If a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession.’
Article 84 of that regulation states:
‘This Regulation shall enter into force on the twentieth day following that of its publication in the
Official Journal of the European Union
.
It shall apply from 17 August 2015, except for Articles 77 and 78, which shall apply from 16 November 2014, and Articles 79, 80 and 81, which shall apply from 5 July 2012. …’
The dispute in the main proceedings and the questions referred for a preliminary ruling
After the death of her husband, a German national, on 9 March 2017, CR applied to the Amtsgericht Düren (Local Court, Düren, Germany) for a national certificate of inheritance and a European Certificate of Succession on the basis of a holographic will, drawn up in German on 14 June 1990, by which the spouses had mutually appointed each other as sole heirs.
RK, the brother of the deceased, contested the jurisdiction of the German courts to rule on that application, on the ground that, at the time of his death, the habitual residence of the deceased was in Spain and that that will did not contain an express choice of the law governing the succession.
By decision of 20 December 2017, the Amtsgericht Düren (Local Court, Düren) found that the necessary facts for the requested certificates to be drawn up had been established.
Following an appeal brought by RK, the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany) held, by order of 4 July 2018, that the Amtsgericht Düren (Local Court, Düren) did not have jurisdiction to rule on the application, on the ground that only the Spanish courts had jurisdiction in accordance with the criterion of the habitual residence of the deceased at the time of his death, laid down in Article 4 of the Succession Regulation.
By order of 29 April 2019, the Juzgado de Primera Instancia e Instrucción n.
o
3 de Estepona (Court of First Instance and Preliminary Investigations No 3, Estepona, Spain), before which CR had brought an action, decided to ‘refrain from hearing or determining [the succession proceedings before that court], on the ground that the German courts [were] better placed to rule on the succession and on account of the practical circumstances, such as the habitual residence of the party concerned in [that] matter and the location of the essential part of the estate’.
By notarised letter of 29 August 2019, CR brought a fresh application for a national certificate of inheritance and for a European Certificate of Succession before the Amtsgericht Düren (Local Court, Düren), invoking the order of the Spanish court. By order of 19 February 2020, the Amtsgericht Düren (Local Court, Düren) affirmed that it had jurisdiction to rule on the application brought by CR, taking the view that the order of the Spanish court constituted a declining of jurisdiction within the meaning of Article 6(a) of the Succession Regulation.
RK brought an appeal against the order of the Amtsgericht Düren (Local Court, Düren) before the referring court, claiming that a number of grounds precluded the international jurisdiction of the German courts.
Referring to the judgment of 21 June 2018, Oberle (
C‑20/17
,
EU:C:2018:485
), that court expresses doubts as to the application and interpretation of certain provisions of the Succession Regulation.
In those circumstances, the Oberlandesgericht Köln (Higher Regional Court, Cologne) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘(1)
Is it necessary, for a declaration of lack of jurisdiction by the court previously seised, as provided for in Article 7(a) of [the Succession Regulation], that that court should expressly decline jurisdiction, or may even a non-express declaration suffice if it supports the inference, through interpretation, that that court has declined jurisdiction?
(2)
Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court previously seised in the other Member State competent to examine whether the conditions governing a decision by the court previously seised, as provided for in Articles 6(a) and 7(a) of [the Succession Regulation], were met? To what extent is the decision of the court previously seised binding?
In particular:
(a)
Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court previously seised in the other Member State competent to examine whether the deceased validly chose the law of the Member State in accordance with Article 22 of [the Succession Regulation]?
(b)
Does the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court first seised in the other Member State have the power to examine whether a request for a declaration of lack of jurisdiction, as provided for in Article 6(a) of [the Succession Regulation], has been brought by one of the parties to the proceedings before the court previously seised?
(c)
Does the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court first seised in the other Member State have the power to examine whether the court previously seised rightly assumed that the courts of the Member State of the chosen law are better placed to rule on the succession?
(3)
Are Articles 6(a) and 7(a) of [the Succession Regulation], which presuppose a choice of law “pursuant to Article 22”, applicable even where the deceased has made no express or implied choice of law in a testamentary disposition made before 17 August 2015, but the law applicable to the succession is capable of being inferred only from Article 83(4) of [the Succession Regulation]?’
Consideration of the questions referred
The first question
By its first question, the referring court asks, in essence, whether Article 7(a) of the Succession Regulation must be interpreted as meaning that, in order for there to have been a declining of jurisdiction, within the meaning of Article 6(a) of that regulation, in favour of the courts of the Member State whose law was chosen by the deceased, it is necessary for the court previously seised to have expressly declined jurisdiction.
It is apparent from the request for a preliminary ruling that the referring court’s doubts in that regard are linked to the fact that, in the present case, the Spanish court previously seised has not expressly declined jurisdiction.
However, as the Spanish Government pointed out in its written observations, there is a difference in the wording of Article 6(a) and that of Article 7(a) of the Succession Regulation in the Spanish-language version, by contrast with what may be observed in the other language versions.
In the Spanish-language version, whereas Article 6(a) of the Succession Regulation uses the expression ‘
abstenerse de conocer
’, Article 7(a) of that regulation uses the verb ‘
inhibirse
’. By contrast, other language versions of both of those provisions use terms which expressly refer to declining jurisdiction. Thus, for example, in respect of those two provisions, the German-language version uses ‘
für
unzuständig
erklären
’, the English-language version uses ‘
decline jurisdiction
’, the French-language version uses ‘
décliner
sa
compétence
’, the Italian-language version uses ‘
dichiarare
la
propria
incompetenza
’ and the Romanian-language version uses ‘
decline
competența
’.
In the present case, the court previously seised used the terms of the Spanish-language version of Article 6(a) of the Succession Regulation when stating that it ‘refrains from hearing and determining the present proceedings’. However, the fact that that provision, in its Spanish-language version, uses terms different from those of Article 7(a) of that regulation and that the Spanish court used the terms of the first of those provisions does not affect the validity of a declining of jurisdiction within the meaning of those provisions.
In that regard, it must be recalled that, according to settled case-law, provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all the languages of the European Union. Where there is divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgment of 8 October 2020, United Biscuits (Pensions Trustees) and United Biscuits Pension Investments,
C‑235/19
,
EU:C:2020:801
, paragraph
and the case-law cited).
It is apparent from the wording of Article 6(a) of the Succession Regulation that a declining of jurisdiction presupposes that several conditions set out in that provision are satisfied and is based on an assessment by the court previously seised of the factual circumstances relating to the succession in order to decide whether the courts of the Member State whose law has been chosen, pursuant to Article 22 of that regulation, are best placed to rule on the succession. That provision makes it possible, first, to ensure that the authority responsible for the succession is able to apply its national law, as stated in recital 27 of that regulation and, secondly, to achieve the regulation’s objective, which is to confer jurisdiction on courts which could prove to be closer to the parties or to the assets in the estate.
As regards Article 7(a) of the Succession Regulation, that provision concerns the jurisdiction of the courts of a Member State whose law has been chosen and provides that those courts are to have jurisdiction, provided that a court previously seised has declined its jurisdiction in their favour, pursuant to Article 6(a) of that regulation.
However, neither the wording of Article 6 of the Succession Regulation nor that of Article 7 of that regulation contain any reference to the form in which the court previously seised must decline its jurisdiction and, consequently, to the need for an express declaration to that effect by that court, even if it is true that the principle of legal certainty implies that such a declining of jurisdiction is unequivocally apparent from the declaration made by that court in order to avoid a conflict of jurisdiction between that court and the court which would have jurisdiction under Article 7(a) of that regulation.
Consequently, an express declining of jurisdiction is not necessary provided that, as in the case in the main proceedings, it is unequivocally apparent from the fact that the court previously seised refrained from hearing and determining the proceedings, within the meaning of Article 6(a) of that regulation, that it has relieved itself of jurisdiction in favour of the courts of the Member State whose law was chosen by the deceased, which it considers better placed to rule on a given succession.
Such an interpretation is consistent with the objective of facilitating access to justice, guaranteed in particular by the principle of mutual recognition of judicial decisions, which underpins the application of the provisions of the Succession Regulation and which is enshrined in Article 39 of that regulation, thus seeking, in the field of cooperation in civil and commercial matters, to strengthen a simplified and effective system of conflict rules, recognition and enforcement of judicial decisions taken in the context of a succession with cross-border implications, with a view to contributing to the attainment of the objective for the European Union to become an area of freedom, security and justice, founded on the high level of confidence which should exist between the Member States.
In the light of the foregoing, the answer to the first question is that Article 7(a) of the Succession Regulation must be interpreted as meaning that, in order for there to have been a declining of jurisdiction, within the meaning of Article 6(a) of that regulation, in favour of the courts of the Member State whose law was chosen by the deceased, it is not necessary for the court previously seised to have expressly declined jurisdiction, but that intention must be unequivocally apparent from the decision that it delivered in that regard.
The second question
By its second question, the referring court asks, in essence, whether Article 6(a) and Article 7(a) of the Succession Regulation must be interpreted as meaning that the court of the Member State seised following a declining of jurisdiction is competent to examine whether the conditions set out in those provisions were satisfied in order for the court previously seised to decline jurisdiction.
More specifically, the referring court raises the question whether the court seised in the second place could examine whether the three conditions set out in Article 6(a) of the Succession Regulation in order for there to have been a declining of jurisdiction were satisfied, namely, first, that the deceased had validly made a choice of the law applicable to his succession by virtue of Article 22 of that regulation, secondly, that, before the court previously seised, one of the parties to the proceedings had made an application for the purpose of such a declining of jurisdiction and, thirdly, that the court previously seised had correctly found that the courts of the Member State whose law was chosen were better placed to rule on the succession.
In that regard, Article 6(a) of the Succession Regulation provides that the court previously seised within the meaning of Article 4 or 10 of that regulation may decline jurisdiction in favour of the court of the Member State whose law was chosen pursuant to Article 22 of that regulation, where the conditions set out by the first of those provisions are met.
However, as the Advocate General observed in point 39 of his Opinion, the fact that the court previously seised merely has the power and not an obligation to adopt such a decision is an important indication that such a decision cannot be reviewed by the courts in favour of which the court previously seised has declined jurisdiction.
Under Article 7(a) of the Succession Regulation, the courts of the Member State whose law has been chosen pursuant to Article 22 of that regulation have jurisdiction to rule on the succession, provided that a court previously seised has declined jurisdiction in the same case, pursuant to Article 6(a) of that regulation. Thus, those courts acquire jurisdiction solely because there is a declining of jurisdiction within the meaning of the latter provision.
It should also be noted that the declining of jurisdiction constitutes a decision within the meaning of Article 3(1)(g) of the Succession Regulation and, therefore, the provisions of Chapter IV of that regulation concerning the recognition, enforceability and enforcement of ‘decisions’, namely Articles 39 to 58 of that regulation, apply.
It should be noted, however, that Article 39 of the Succession Regulation provides that decisions given in one Member State are to be recognised in other Member States, without any special procedure being required, and that Article 41 of that regulation clarifies that under no circumstances may such decisions be subject to a review as to their substance. As regards the grounds for non-recognition set out in Article 40 of that regulation, none of those concern a situation in which the court seised in the second place might consider that, in the decision relating to the declining of jurisdiction, Article 6(a) of that regulation was misapplied.
Thus, a decision by which a court of a Member State has declined jurisdiction binds the courts of the other Member States with regard to both that court’s decision to decline jurisdiction pursuant to Article 6 of the Succession Regulation, and the finding that the conditions set out in that provision were satisfied (see, by analogy, judgment of 15 November 2012, Gothaer Allgemeine Versicherung and Others,
C‑456/11
,
EU:C:2012:719
, paragraph
).
Any other interpretation would be liable to undermine the principles of mutual recognition and mutual trust which underpin the system established by the Succession Regulation.
According to the Court’s case-law, the general objective pursued by that regulation, as is clear from recital 59 thereof, is the mutual recognition of decisions given in the Member States in matters of succession with cross-border implications (judgment of 17 January 2019, Brisch,
C‑102/18
,
EU:C:2019:34
, paragraph
).
However, if a court of a Member State were competent to examine whether the conditions set out in Article 6(a) of the Succession Regulation were met and, if necessary, refuse to recognise a decision by which a court of another Member State declined jurisdiction, that possibility would run counter to the system established by that regulation, since such a refusal would be liable to compromise the effective functioning of the rules set out in Chapter IV of that regulation and, as the Advocate General noted in point 59 of his Opinion, of the mechanism provided for in Article 6(a) and Article 7(a) of that regulation.
Furthermore, the interpretation adopted in paragraph 44 above makes it possible to avoid a conflicting disclaimer of jurisdiction, which could lead to a risk of denial of justice, as also noted, in essence, by the Advocate General in point 60 of his Opinion.
In the light of the foregoing, the answer to the second question is that Article 6(a), Article 7(a) and Article 39 of the Succession Regulation must be interpreted as meaning that the court of the Member State seised following a declining of jurisdiction does not have the power to examine whether the conditions set out in those provisions were satisfied in order for the court previously seised to decline jurisdiction.
The third question
By its third question, the referring court asks, in essence, whether the rules on jurisdiction set out in Article 6(a) and Article 7(a) of the Succession Regulation also apply in the event that, in his or her will, drawn up before 17 August 2015, the deceased had not chosen the law applicable to the succession, and that the designation of that law can be inferred from Article 83(4) of that regulation alone.
In that regard, it should be noted from the outset that whilst, under Article 267 TFEU, the Court has jurisdiction to interpret Article 6(a) and Article 7(a) of the Succession Regulation, it is the referring court which must apply to the case in the main proceedings the provisions thus interpreted (see, to that effect, judgment of 13 September 2018, Profi Credit Polska,
C‑176/17
,
EU:C:2018:711
, paragraph
).
Article 83(4) of the Succession Regulation provides that, if a disposition of property upon death made prior to 17 August 2015 is drafted in accordance with the law which the deceased could have chosen in accordance with that regulation, that law shall be deemed to have been chosen as the law applicable to the succession.
Thus, that provision establishes, for the period prior to the entry into force of that regulation, a presumption of choice of the law applicable to the succession, which has the same effect as the choice made under the provisions of that regulation.
As the European Commission pointed out in its observations before the Court and as is apparent from paragraph 31 above, the objective of Article 6(a) and Article 7(a) of the Succession Regulation is, inter alia, to establish a parallel between jurisdiction and the applicable law.
In the judgment of 21 June 2018, Oberle (
C‑20/17
,
EU:C:2018:485
, paragraphs
and
), the Court held that, as recital 27 of the Succession Regulation states, the rules of that regulation are devised so as to ensure that the authority dealing with the succession will, in most situations, be able to apply its own law, since such an objective ensures consistency between the rules on jurisdiction and those relating to the law applicable in that area.
Moreover, as was recalled in paragraph 31 above, the declining of jurisdiction provided for in Article 6(a) and Article 7(a) of the Succession Regulation is intended to allow a court of a Member State to relieve itself of jurisdiction in favour of the courts of the Member State whose law has been chosen under Article 22 of that regulation, where the former court considers that those courts are better placed than it to adjudicate, in order to ensure that it is the courts closest to the succession at issue which decide the related dispute.
An interpretation according to which the application of the law governing the succession under Article 83(4) of the Succession Regulation would not allow a declining of jurisdiction, within the meaning of Article 6(a) of that regulation, would undermine the objectives referred to in paragraphs 54 and 55 above.
In the light of the foregoing, the answer to the third question is that Article 6(a) and Article 7(a) of the Succession Regulation must be interpreted as meaning that the rules on jurisdiction set out in those provisions also apply in the event that, in his or her will, drawn up before 17 August 2015, the deceased had not chosen the law applicable to the succession, and that the designation of that law can be inferred from Article 83(4) of that regulation alone.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules:

1.
Article 7(a) 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 meaning that, in order for there to have been a declining of jurisdiction, within the meaning of Article 6(a) of that regulation, in favour of the courts of the Member State whose law was chosen by the deceased, it is not necessary for the court previously seised to have expressly declined jurisdiction, but that intention must be unequivocally apparent from the decision that it delivered in that regard.

2.
Article 6(a), Article 7(a) and Article 39 of Regulation No 650/2012 must be interpreted as meaning that the court of the Member State seised following a declining of jurisdiction is not competent to examine whether the conditions set out in those provisions were satisfied in order for the court previously seised to decline jurisdiction.

3.
Article 6(a) and Article 7(a) of Regulation No 650/2012 must be interpreted as meaning that the rules of jurisdiction set out in those provisions also apply in the event that, in his or her will, drawn up before 17 August 2015, the deceased had not chosen the law applicable to the succession, and that the designation of that law can be inferred from Article 83(4) of that regulation alone.

[Signatures]
(
*1
)	Language of the case: German.