Opinion of the Advocate General — ECLI:EU:C:2020:230
Date: 2020-03-26
Language of the case: Lithuanian
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date of receipt:  
4 February 2019  
Referring court:  
Lietuvos Aukščiausiasis Teismas (Lithuania) 
Date of the decision to refer:  
17 January 2019  
Appellant:  
E. E. 
Other parties to the proceedings in cassation:  
Kauno miesto 4-ojo notaro biuro notarė, 
K.-D. E. 
  
Subject matter of the action in the main proceedings 
The main proceedings concern the interpretation and application of the provisions 
of substantive law governing international succession and of the provisions of 
procedural law governing the establishment and recognition of preliminary facts. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation and application of Regulation (EU) No 650/2012 of the European 
Parliament and of the Council; first paragraph, heading (b), and second paragraph 
of Article 267 TFEU. 
Questions referred 
1. Is a situation such as that in the case under examination – in which a 
Lithuanian national whose habitual place of residence on the day of her 
EN 
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death was possibly in another Member State, but who in any event had never 
severed her links with her homeland, and who, inter alia, had drawn up, 
prior to her death, a will in Lithuania and left all of her assets to her heir, a 
Lithuanian national, and at the time of the opening of the succession it was 
established that the entire estate comprised immovable property located 
solely in Lithuania, and a national of that other Member State surviving his 
spouse expressed in clear terms his intention to waive all claims to the estate 
of the deceased, did not take part in the court proceedings brought in 
Lithuania, and consented to the jurisdiction of the Lithuanian courts and the 
application of Lithuanian law – to be regarded as a succession with cross-
border implications within the meaning of Regulation No 650/2012 and to 
which that regulation must be applied? 
2. Is a Lithuanian notary who opens a succession case, issues a certificate 
of succession rights and carries out other actions necessary for the heir to 
assert his or her rights to be regarded as a ‘court’ within the meaning of 
Article 3(2) of Regulation No 650/2012, regard being had to the fact that, in 
their activities, notaries respect the principles of impartiality and 
independence, their decisions are binding upon themselves or judicial 
authorities and their actions may be the subject of judicial proceedings? 
3. If the second question is answered in the affirmative, are certificates of 
succession rights issued by Lithuanian notaries to be regarded as being 
decisions within the meaning of Article 3(1)(g) of Regulation No 650/2012 
and must jurisdiction for that reason be established for the purpose of issuing 
them? 
4. If the second question is answered in the negative, should the 
provisions of Articles 4 and 59 of Regulation No 650/2012 (together or 
separately, but without limitation to those articles) be construed as meaning 
that Lithuanian notaries are entitled to issue certificates of succession rights 
without following general rules on jurisdiction and that such certificates will 
be held to be authentic instruments which also give rise to legal 
consequences in other Member States? 
5. Must Article 4 of Regulation No 650/2012 (or other provisions 
thereof) be construed as meaning that the habitual place of residence of the 
deceased can be established in only one specific Member State? 
6. Should the provisions of Articles 4, 5, 7 and 22 of Regulation 
No 650/2012 (together or separately, but without limitation to those articles) 
be construed and applied in such a way that, in the present case, in 
accordance with the facts as set out in the first question, it must be 
concluded that the parties concerned agreed that the courts in Lithuania 
should have jurisdiction and that Lithuanian law should be applied? 
E. E. 
 
3 
Provisions of EU law cited 
Recitals 7, 20, 21, 22, 23, 59 and 67 and Articles 2, 3, 4, 5, 7, 15, 22, 59 and 79 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; ‘Regulation No 650/2012’). 
Provisions of national law cited 
Article 5.2 of the Civil Code of the Republic of Lithuania (‘the Civil Code’) 
provides, inter alia, as follows: 
‘1. Succession shall arise by operation of law and by a will.’ 
[...] 
Article 5.4 of the Civil Code provides: 
‘1. The place of the opening of succession shall be regarded as the last place of 
domicile of the legator or testator (Article 2.12 of this Code). 
2. In the event that the legator or testator had no permanent place of residence, 
the place of the opening of succession shall be considered to be: 
(1) the place where the legator or testator lived for most of the time during the 
last six months prior to his death; 
(2) if the legator or testator resided in several places, the place of the opening 
of succession shall be regarded as the place of the prevailing economic or 
personal interests of the legator or testator (place of location of property or its 
principal part, when the property is situated in several places; the place of 
residence of the spouse with whom the legator or testator maintained matrimonial 
relations during the last six months prior to his death, or the place of residence of 
the child who was residing together with the legato or testator). 
3. Where it is impossible to determine the place of residence of the legator or 
testator in accordance with the circumstances indicated in Paragraphs 1 and 2 of 
this Article, the place of the opening of succession may be determined in 
accordance with the citizenship of the legator or testator, his registration, the 
place of registration of the vehicles belonging to him, and other circumstances. 
4. In the event of dispute, the place of the opening of succession may be 
determined by the court at the request of the interested parties, taking into 
account all of the circumstances.’ 
Article 5.28 of the Civil Code provides, inter alia, as follows: 
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‘1. Official wills are wills which are made in writing in two copies and attested 
by a notary or by an official of the Consulate of the Republic of Lithuania in the 
relevant State. 
[...] 
5. The fact of making an official will may not be disputed. …’  
Article 5.66 of the Civil Code provides, inter alia, as follows: 
‘1. The successors who inherit by operation of law or by a will shall be able to 
present an application to the notary for the place of the opening of succession for 
the issuance of the certificate of the right to the inheritance. …’  
Article 1 of the Law of the Republic of Lithuania on the Institution of Notary 
provides: 
‘The Institution of Notary shall comprise all notaries who, in accordance with this 
Law, are granted the right legally to establish the undisputed subjective rights of, 
and the legal facts relating to, natural and legal persons, and to ensure the 
protection of the legal interests of those persons and of the State.’ 
Article 2 of the Law on the Institution of Notary states, inter alia, as follows: 
‘A notary is a person authorised by the State to perform the functions set out in 
this Law to ensure that there are no unlawful transactions and documents in civil-
law relations. The notary may also be a conciliation mediator in civil disputes. 
Notaries shall be appointed and dismissed by the Minister for Justice of the 
Republic of Lithuania.’ 
Article 12 of the Law on the Institution of Notary provides: 
‘Notaries shall exercise their powers without having regard for the influence of 
institutions of State power and the administration, and shall be subject only to the 
law.’ 
Article 26 of the Law on the Institution of Notary provides: 
‘Notaries shall perform the following notarial acts: 
[...] 
(2) issue of certificates of the right of inheritance; 
[...] 
E. E. 
 
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It shall be recognised that the facts listed in documents certified by a notary are 
established and require no proof so long as the documents (parts thereof) have 
not been not deemed invalid in accordance with any statutory procedure.’ 
Article 40 of the Law on the Institution of Notary states, inter alia, as follows: 
‘A notary must refuse to perform a notarial act if the performance of such a 
notarial act would be contrary to legislation or would fail to comply with 
legislative requirements.’ 
Article 41 of the Law on the Institution of Notary provides, inter alia, as follows: 
‘A concerned person who believes that the performance of a notarial act or the 
refusal to perform a notarial act is incorrect shall be entitled to challenge that 
matter before the court having jurisdiction for the place of the notary’s office.’ 
Article 444 of the Code of Civil Procedure of the Republic of Lithuania (‘the 
Code of Civil Procedure’) provides, inter alia, as follows: 
‘1. A court shall establish facts giving rise to the opening, change or 
termination of personal or property rights of persons. 
2. The court shall examine cases: 
[...] 
(8) concerning the acceptance of the estate and the establishment of the actual 
place of the opening of the succession;’ 
Article 445 of the Code of Civil Procedure provides: 
‘The court shall establish legally relevant facts only if the applicant is unable to 
obtain the documents required to confirm those facts in any other way or if lost 
documents cannot be reproduced.’ 
Article 448 of the Code of Civil Procedure provides, inter alia, as follows: 
‘2. A final court decision establishing a fact to be registered with a civil 
registrar or documented with other authorities shall provide grounds for 
registering or documenting that fact therewith but shall be deemed equivalent to 
documents issued by those authorities. …’  
Article 511 of the Code of Civil Procedure provides, inter alia, as follows: 
‘1. A notarial act performed or a refusal to perform a notarial act may be 
challenged in accordance with the procedure laid down in this Chapter. 
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2. An action may be brought before the district court having jurisdiction for the 
place of work of the notary (or of any other person entitled by law to perform 
notarial acts) whose actions may be the subject of appeal. …’  
Article 580 of the Code of Civil Procedure provides, inter alia, as follows: 
‘[...] 
2. An application for initiating succession procedures shall be filed before the 
district court having jurisdiction for the place of the opening of the succession. …’  
Succinct presentation of the facts and procedure in the main proceedings 
1 In the main proceedings the mother E. E. (a Lithuanian national) of the appellant 
(E. E.) married K.-D. E. (a German national) and moved to live in Germany 
together with her son (the appellant). 
2 Upon her return to Lithuania the appellant’s mother E. E. drew up a will at the 
notary office in the town of Garliava, in the Municipality of the Region of Kaunas, 
and designated her son (the appellant) as the heir to her entire estate (an apartment 
in Kaunas). 
3 On 17 July 2017 the appellant contacted the Kauno miesto 4-asis notaro biuras 
(notary office no 4 of the City of Kaunas) requesting that the succession procedure 
be initiated and that a certificate of succession rights be issued. 
4 On 1 August 2017 the notary in notary office no 4 of the City of Kaunas decided 
to refuse to perform the notarial act. The notary’s refusal to perform the notarial 
acts requested by the appellant was based on the habitual place of residence of the 
testatrix (Germany) within the meaning of Regulation No 650/2012. The appellant 
challenged the notary’s refusal to perform the notarial act before the court of first 
instance. 
5 On 29 January 2018 the Kauno apylinkės teismas (Kaunas district court) ruled in 
favour of the appellant’s application, annulled the notary’s decision of 1 August 
2017 refusing to perform the notarial act and ordered the notary to open the 
succession procedure in accordance with the place where the property was 
registered and to issue a certificate of rights of succession to the estate of the 
deceased mother E. E. The court of first instance stated that, even though the 
appellant’s mother had declared her departure to Germany, she was still a 
Lithuanian national and, on the day of her death, owned immovable property in 
Lithuania; she had not severed her links with Lithuania, and had visited the 
country and drawn up her will there.  
6 On 26 April 2018 the Kauno apygardos teismas (Kaunas regional court) set aside 
the ruling of the court of first instance following an appeal lodged by the notary 
and turned down the appellant’s application. The appellate court stated that, in a 
E. E. 
 
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case where the habitual place of residence of the deceased person is disputed, only 
a court can establish the legal fact as to the recognition of the habitual place of 
residence of the deceased in her State of origin, and that in the present case there 
was no information to indicate that the appellant had raised this matter before any 
court; the appellate court ruled that the court of first instance had, in annulling the 
notary’s decision under challenge, unreasonably relied on general principles.  
7 The appellant lodged an appeal in cassation against the judgment of the Kauno 
apygardos teismas (Kaunas regional court). 
Brief summary of the grounds for the referral 
Concerning the application of Regulation No 650/2012 to the dispute between the 
parties 
8 In the present case the need for the court of cassation to make a reference to the 
Court of Justice is justified by the fact that the content of certain provisions of EU 
law germane to the examination of the dispute between the parties is not entirely 
clear following application of the acte clair or acte éclairé doctrine. 
9 It is first necessary in the present case to establish whether the dispute between the 
parties actually comes within the scope of Regulation No 650/2012 and only then 
should it be examined how, if need be, its relevant provisions ought to be applied. 
10 Recitals 7 and 67 of Regulation No 650/2012 demonstrate that the regulation 
applies to situations involving cross-border succession. The purpose of that 
legislation is to facilitate the assertion of the subjective rights of heirs in the 
context of a succession having cross-border implications by creating better 
conditions for free movement of persons in that area and settling matters of 
succession speedily, smoothly and efficiently, for example by creating the 
European certificate of succession. 
11 Reasonable doubts have arisen in the case under examination as to whether the 
application of Regulation No 650/2012 (particularly if it were to be found that, on 
the day on which the appellant’s mother died, she was not habitually resident in 
Lithuania) would ensure the attainment of the objectives listed above rather than 
the opposite — the appellant’s situation in asserting his subjective rights would be 
disproportionately and irrationally burdened because he would probably be forced 
to bring proceedings in Germany in order to acquire the estate. 
12 The present Chamber finds that the facts established in the case under examination 
relating to the socioeconomic relationship of the appellant’s mother with 
Lithuania suggest that the view ought to be taken that the main proceedings 
involve a situation of national succession rather than succession with cross-border 
implications. E. E. did not sever her close links with her homeland as she owned 
immovable property in Lithuania and maintained (cared for) it for more than five 
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years, even though at the same time she had established new marital (family) 
relations and resided in Germany. 
13 The application of Regulation No 650/2012 may imply a situation in which the 
appellant, who is a Lithuanian national seeking to inherit a Lithuanian national’s 
estate located in Lithuania that is not subject to claims from either national or 
foreign residents, would be treated as a ‘foreign national’ in respect of his home 
country because he would first need to go to another Member State (the appellant 
is currently living and studying in Lithuania) and apply to a court in that country 
requesting it to take a decision on the assertion of succession rights; later, upon 
returning to his homeland, he would have to obtain recognition of that decision. 
14 The present Chamber takes the view that the drafting and application of 
Regulation No 650/2012 are particularly relevant to such cases of succession with 
cross-border implications in which a person from one Member State (the 
deceased) passes on property to heirs by operation of law or by will not only in the 
Member State of origin (or habitual residence) but also in another EU Member 
State, which means that all requirements relating to the estate must be decided on 
by means of undivided proceedings with a view, inter alia, to avoiding separate 
judicial decisions that are mutually incompatible. 
15 The above situation has not occurred in the case under examination and the links 
of E. E. (the appellant’s mother) with two States (Lithuania and Germany) should 
not, in the view of the present Chamber, alter the nature of the succession. The 
judgment of the Court of Justice of 21 June 2018 in Oberle, C-20/17 
(EU:C:2018:485), also shows that succession with cross-border implications is 
associated with succession in several Member States. 
Concerning the concepts of ‘court’ and ‘decision’ within the meaning of Article 3 
of Regulation No 650/2012 
16 The interpretation of the concepts of ‘court’ and ‘decision’ in accordance with the 
provisions of Article 3 of Regulation No 650/2012 is relevant to the case in 
question as well as to the case WB (C-658/17) currently under examination by the 
Court of Justice. 
17 In accordance with Article 79 of Regulation No 650/2012, Lithuania, like Poland, 
has stated that, apart from the national courts, no other authorities or entities 
perform any functions of courts. Hence, in accordance with the decision of the 
Lithuanian authorities, Lithuanian notaries do not have any recognised status as 
courts within the meaning of Regulation No 650/2012. 
18 The questions referred by a Polish national court show that that court possibly has 
doubts as to the legal effect of notifications by the Member States and their 
influence on deciding on the definition of the concept of a ‘court’ under 
Regulation No 650/2012. The court of cassation faces similar doubts because 
E. E. 
 
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notifications under Article 79 of Regulation No 650/2012 essentially publicise, 
but do not grant, rights. 
19 In the case here under examination it should, inter alia, be noted that the contested 
decision of the notary was based on the provisions of Regulation No 650/2012 but 
that those provisions show that it is only courts that take decisions on the rules 
governing jurisdiction (Article 15 of Regulation No 650/2012).  
20 On the other hand, the court of cassation believes that the notary was entitled to 
take a decision on jurisdiction because Article 4 of Regulation No 650/2012 lays 
down a general rule on the establishment of jurisdiction in respect of Member 
States, although Article 2 shows that that regulation does not affect the 
competence of national authorities. What needs to be established first is therefore 
general (international) jurisdiction followed by a decision on its exercise in 
respect of the relevant persons in accordance with the legislation of the Member 
State concerned. 
21 It is not clear whether a notary’s decisions on succession (if they are not 
considered to be court decisions) could be recognised as being authentic 
instruments. It is assumed that the procedure for the acceptance of authentic 
instruments should not be seen as being parallel to the procedure governing court 
decisions on succession. Furthermore, it is doubtful whether the provisions of 
Regulation No 650/2012 should be construed and applied in such a way that, 
depending on the territorial aspect of relations concerning succession (national or 
cross-border), decisions in one of those cases would be made by notaries while in 
the other case they would be made by conventional judicial authorities. 
22 On the other hand, recitals 20 to 22 of Regulation No 650/2012 may give the 
opposite impression, namely that ordinary notaries who are not tasked with 
judicial functions should not be regarded as courts even though under national law 
they are authorised to examine matters of succession; this means that 
jurisdictional rules are not relevant and applicable to such notaries (who are not 
courts within the meaning of Regulation No 650/2012) and that they perform their 
functions in the form of authentic instruments rather than in that of judicial 
decisions. It is not clear whether in such a case not only jurisdictional rules but 
also other provisions of Regulation No 650/2012 would be irrelevant to notaries. 
23 In Lithuania the commencement of succession proceedings and their essential 
elements are associated namely with actions performed by notaries, such as the 
opening of a succession case, the issuance of a certificate, and suchlike. Even 
though judicial authorities are generally associated with dispute resolution, 
according to the court of cassation, that does not per se mean that in legal 
relationships concerning succession Lithuanian notaries could not be regarded as 
courts for the purposes of Regulation No 650/2012. 
24 In this context note should also be taken of the aforementioned judgment of the 
Court of Justice in Oberle, which states that the term ‘to rule’ does not have to be 
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linked with contentious proceedings and that the ruling does not need to have the 
effect of res judicata; the Court of Justice takes the view that this interpretation is 
also confirmed by recital 59. Paragraph 44 of the Oberle judgment notes that 
Article 4 of Regulation No 650/2012 determines the international jurisdiction of 
the courts of the Member States in relation to proceedings involving measures 
concerning the succession as a whole, such as, in particular, the issuing of national 
certificates of succession, irrespective of whether those proceedings are 
contentious or non-contentious. 
25 It should be noted that notaries in the Republic of Lithuania have exclusive 
competence in matters of succession; although notaries do not perform their 
activities by exercising powers granted to them by a judicial authority, they ensure 
impartiality in respect of all parties to a notarial act and protect the rights and 
interests of all persons concerned, their actions may be challenged before a court, 
and a certificate of succession rights issued by a notary constitutes a ground for 
establishing and registering ownership; notaries certify rights of persons that are 
legally unchallengeable and legal facts but they do not resolve any disputes 
between the parties, this being a matter for courts; even though, in accordance 
with the law, a certificate of succession rights issued by a notary is not considered 
to be a decision having the force of res judicata, a court may not take a different 
decision on the same matter unless the decision is annulled; a certificate of 
succession rights issued is also binding on the notary himself, who cannot repeat 
the procedure until a court has annulled its results. 
26 The court of cassation believes that the fact that a notary’s decisions may be 
challenged before a (conventional) court does not of itself mean that a notary may 
never be regarded as ‘court’ according to Regulation No 650/2012. The refusal by 
a notary to issue a certificate of succession rights should be open to challenge 
before a court, which, following an independent interpretation and application of 
the law, may annul that decision (should the court come to opposite legal 
conclusions) and oblige the notary to perform the notarial acts requested by the 
person concerned. Even in that case the effect and value of the notary’s decision 
for the rights and duties of the parties and its consequences for competent 
authorities of other countries in the event of succession with cross-border 
implications will not differ from the situation in which the notary immediately 
accedes to the applicant’s request to carry out the corresponding actions. 
Concerning the jurisdiction of the Lithuanian courts and the law applicable in the 
case in question 
27 The present Chamber believes that in the present case the key legal issue relating 
to Regulation No 650/2012 (if it is at all applicable in the present case) concerns 
the competence (jurisdiction) of the Lithuanian authorities (courts or notaries) and 
the applicable law rather than the definition of a court. The sole fact that 
Lithuanian notaries are possibly not to be regarded as courts within the meaning 
of Regulation No 650/2012 should not affect the fact that the assertion of the 
rights of heirs in a situation of succession with cross-border implications should in 
E. E. 
 
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any event be safeguarded because, in the opinion of the present Chamber, either 
notaries should protect the interests of heirs by drawing up (accepting) authentic 
instruments or matters of succession should be handled by (conventional) courts. 
28 It is not disputed that the main rule on the general jurisdiction of the courts of 
Member States is associated with the place of habitual residence on the day on 
which the person concerned dies. That said, the provisions of Regulation 
No 650/2012 do not make it entirely clear whether it is impossible to have 
situations in which, due to specific circumstances, the deceased had several 
habitual places of residence rather than merely one. In this respect, Regulation 
No 650/2012, firstly, sets out the circumstantial method for determining habitual 
residence rather than the formal one, that is to say, the habitual residence is 
established on the basis of various circumstances rather than on that of registration 
(recital 23); secondly, the nationality and the assets owned may be a decisive 
factor in establishing habitual residence (recital 23). 
29 Even though the provisions of Regulation No 650/2012 make it appear that only 
one habitual place of residence is possible, although that position is not stated 
expressis verbis, there is in this context a need for greater clarity and explanations 
by the Court of Justice. 
30 In the case under examination it is not entirely clear how much the establishment 
of jurisdiction and applicable law is affected by the fact that, firstly, the deceased 
had returned to Lithuania and drawn up her will with a Lithuanian notary, 
secondly, in the court proceedings concerning the extension of the deadline for 
accepting the succession and the appeal against the notary’s decision the surviving 
spouse of the deceased, a German national, had consented, in clear terms, to the 
jurisdiction of the Lithuanian authorities and had expressed his intention to waive 
any claims to his spouse’s assets, and thirdly, although informed about the 
proceedings, the surviving spouse declined to make an appearance and to take part 
in those proceedings. 
31 The will of the appellant’s mother does not actually set out in express terms her 
intention in relation to the application of Lithuanian law; however, the court of 
cassation believes that this emerges implicitly. Even if Germany were to be 
regarded as her habitual place of residence, it is common ground that the 
appellant’s mother had returned to Lithuania and drawn up her will there in 
accordance with the legislation of her Member State of origin. It should also be 
noted that the provisions of the Regulation, inter alia its Article 22, were not yet 
applicable at the time when the will was drawn up (4 July 2013). The will in 
question is in any event effective and not open to challenge.