Saarländisches Oberlandesgericht Saarbrücken; 2019-05-23; 5 W 25/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGSL:2019:0523.5W25.19.00
Date: 2019-05-23
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0523(51)_ENG_SUMJURE
JURE summary
JURE summary
The Saarländisches Oberlandesgericht Saarbrücken (hereinafter ‘the Court of Appeal’) decided a case concerning a legacy by vindication and the European certificate of succession.
The subject-matter of the case was a dispute between a participant to inheritance proceedings domiciled in France (hereinafter ‘the plaintiff’) and a German Land Registry (hereinafter ‘the Court of First Instance’).
The deceased K. S. was registered in the land register as the owner of a flat in Germany. His last place of residency was France. A notary in Paris issued a European certificate of succession stating that the plaintiff, the wife of the deceased, inherited a share in the flat in Germany and the right to use it. The plaintiff applied for the existing entry in the register to be updated in accordance with the French decision and her right of use to be recorded, proving her claim by sending a certified copy of the above European certificate of succession.
The Court of First Instance dismissed the application, stating that the plaintiff’s right of use was not to be considered within procedural law regarding an entry into a German land registry. The entry must be approved by the heirs. The plaintiff lodged an appeal against the decision.
Under the established case-law (1), the Court of Justice of the European Union, Regulation (EU) No 650/2012 (2) was to be interpreted in such a way that a legacy by vindication was fully effective also in jurisdictions where the basis for a legacy is the law of obligations.
If a right of use was established under French law, no approval for registration could be demanded, which the entitled persons were not able to give. The Court of Appeal found that the Court of First Instance could not deny the effectiveness of a proven legacy by vindication established under French law towards third parties.
Under the principle of assumption of correctness under Article 69(2) of Regulation (EU) No 650/2012, the European certificate of succession must be accepted within the registration of inherited assets in all Member States. Courts of First Instances may, however, the same way they may with regard to national certificates of inheritance, examine the facts if in doubt.
Having regard to the above reasons, the Court of Appeal annulled the contested decision and referred the case back to the Court of First Instance for a new hearing and decision.
(1) Judgment of the Court of Justice of 12 October 2017, Aleksandra Kubicka, C‑218/16, ECLI:EU:C:2017:755, paragraphs 15.
(2) 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.