KG Berlin; 2017-01-10; 6 W 125/16
Decision by national courts in the field of European Union law — ECLI:DE:KG:2017:0110.6W125.16.0A
Date: 2017-01-10
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0110(51)_ENG_SUMJURE
JURE summary
JURE summary
An heir (hereinafter the ‘plaintiff’) applied for the issuance of foreign law certificate of inheritance which would state that the plaintiff and his brother were heirs to equal shares regarding an estate situated in Germany.
The deceased, who was the father of the plaintiff and his brother, was a French national with his last habitual residence in France.
Relying on Article 105 and Article 343 of the FamFG (1), the plaintiff filed an application with the Amtsgericht Schöneberg (2) (hereinafter ‘the Court of First Instance’), which, however, cited a lack of jurisdiction under Article 4 and Article 15 of the Succession Regulation (3). The Court of First Instance expressed the opinion that Article 105 of the FamFG providing for the determination of the international jurisdiction was not applicable due to the breach of the superior law of the European Union, namely Article 4 of the Succession Regulation. For all inheritance matters with a cross-border element, the competent courts were solely courts of the Member State where the deceased had his/her last habitual residence, which was France in this case.
The plaintiff lodged an appeal against the decision with the Kreisgericht Berlin (hereinafter ‘the Court of Appeal’). The appeal would have been successful if the international jurisdiction did not follow from Article 4 of the Succession Regulation but Article 105 of the FamFG instead. Despite the fact that the Court of Appeal considered the Court of First Instance to hold international jurisdiction, the question of whether national legislation regarding the international jurisdiction for the issuance of a national succession certificate which deviated from Article 4 of the Succession Regulation, was ineffective due to a breach of the superior law of the European Union, had not been clarified in the case-law or specialist literature.
The Court of Appeal stayed the proceedings and submitted to the Court of Justice of the European Union the following question for a preliminary ruling:
Is Article 4 of the Succession Regulation to be interpreted in that way that it also determines the exclusive international jurisdiction for the issuance of the national succession certificates in the respective Member States which were not replaced by the European certificate of succession, having the consequence that deviating national provisions regarding the international jurisdiction for the issuance of a national succession certificate was ineffective due to a breach of the superior law of the European Union?
(1) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction).
(2) This court in Berlin is the competent court if the deceased was a German citizen with hist/her last habitual residence in Germany or if the estate or a part thereof is situated in Germany.
(3) 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.