BGH; 2019-07-10; IV ZB 22/18
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2019:100719BIVZB22.18.0
Date: 2019-07-10
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0710(51)_ENG_SUMJURE
JURE summary
JURE summary
Participant 1 (hereinafter ‘the plaintiff’) applied for the issuance of a certificate of succession which would designate him as the sole heir.
The deceased person, a German citizen, made with her Italian partner, the plaintiff, with whom she had lived in Germany, a notarial agreement of inheritance. Under the agreement, they made each other to the sole heir and designated their joint children – participants 2 and 3 to become the heirs after the death of the last of them. German inheritance law was agreed to be the exclusively applicable law. In a later last will, made when her relationship with the plaintiff had already ended, the deceased person made her yet unborn grandchildren her heirs with equal shares, and for the case that the grandchildren would not be born upon her death, the heir was determined to be participant 4 (hereinafter ‘the defendant’) as the sole heir.
The Amtsgericht Niebüll (hereinafter ‘the Court of First Instance’), as the court seised, issued the requested certificate of inheritance. The appeal against the decision lodged by the defendant with the Schleswig-Holsteinisches Oberlandesgericht (hereinafter ‘the Court of Appeal’) was dismissed.
The defendant pursued the request for the certificate of inheritance to be annulled unsuccessfully further by filing a revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’).
The Court of Appeal was correct to find that under the transitional provision of Article 83(2)(first alternative) of the Succession Regulation (1), a choice of law made prior to 17 August 2015 (2) was effective only if it met, as was the case within this dispute, the preconditions laid down in Chapter III of the Regulation (EU) No 650/2012. Contrary to the argumentation in the appellate proceedings, the collision norms regarding the succession of persons who died on or after 17 August 2015 were not subject to the collision norms which were applicable in the respective state upon the execution of the agreement of inheritance but to the provisions of the Succession Regulation.
Contrary to the opinion of the defendant, not genuine but non-genuine retroactive effectiveness existed in the case, as the Succession Regulation applied to situations which had not been ended in the past. In fact, the relevant situation ends only upon the death of the person. Accordingly, the choice of law made prior to the decisive date becomes effective only after the person died on or after 17 August 2015.
The Supreme Court dismissed the revision of the defendant against the decision of the Court of Appeal.
(1) 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.
(2) The decisive date under Article 83(1) of the Regulation (EU) No 650/2012.