Opinion of the Advocate General — ECLI:EU:C:2022:49
Date: 2022-01-20
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-617/20 – 1 
Case C-617/20 
Request for a preliminary ruling 
Date lodged: 
20 November 2020 
Referring court or tribunal: 
Hanseatisches Oberlandesgericht in Bremen (Germany) 
Date of the decision to refer: 
11 November 2020  
Applicant: 
E.G. 
Complainants:  
T.N. 
N.N.  
  
Hanseatisches Oberlandesgericht in Bremen 
[…] 
Order 
In the probate case concerning  
W. N., who died on 21 May 2018 in Bremen, 
the deceased   
Parties concerned: 
1. E. G., […] Bremen, 
applicant   
2. T. N., […] The Hague [Netherlands], 
3. N. N., […] The Hague [Netherlands], 
EN 
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complainants   
[…] 
the Fifth Civil Chamber of the Hanseatisches Oberlandesgericht in Bremen 
(Higher Regional Court, Bremen, Germany) […] 
issued the following order on 11 November 2020: [Or. 2] 
I. The proceedings are stayed in order to obtain a preliminary ruling from the 
Court of Justice of the European Union on the interpretation of Articles 13 
and 28 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 (EU Succession Regulation). 
II. The Chamber refers the following questions on the interpretation of 
Articles 13 and 28 of the EU Succession Regulation to the Court of Justice 
of the European Union for a preliminary ruling pursuant to the second 
paragraph of Article 267 TFEU: 
1. Does a declaration concerning the waiver of succession by an heir 
before the court of a Member State that has jurisdiction for the place of 
his or her habitual residence, which complies with the formal 
requirements applicable there, replace the declaration concerning the 
waiver of succession to be made before the court of another Member 
State that has jurisdiction to rule on the succession, in such a way that 
when that declaration is made, it is deemed to have been validly made 
(substitution)? 
2. If Question 1 is to be answered in the negative: 
In addition to making a declaration before the court that has 
jurisdiction for the place of habitual residence of the party waiving 
succession which complies with all formal requirements, is it 
necessary, in order for the declaration concerning the waiver of 
succession to be valid, that the latter inform the court that has 
jurisdiction to rule on the succession that the declaration concerning 
the waiver of succession has been made? 
3. If Question 1 is to be answered in the negative and Question 2 in the 
affirmative: 
a. Is it necessary that the court that has jurisdiction to rule on the 
succession be addressed in the official language of the location of 
that court in order for the declaration concerning the waiver of 
succession to be valid and, in particular, in order to comply with 
T.N. AND N.N. 
 
3 
the time limits applicable for making such declarations before 
that court? 
b. Is it necessary that the court that has jurisdiction to rule on the 
succession receive the original documents drawn up in relation to 
the waiver by the court that has jurisdiction [Or. 3] for the place 
of habitual residence of the party waiving succession and a 
translation thereof in order for the declaration concerning the 
waiver of succession to be valid and, in particular, in order to 
comply with the time limits applicable for making such 
declarations before the court that has jurisdiction to rule on the 
succession? 
III. Grounds: 
1. 
On 21 May 2018, the deceased, who was born on 4 January 1945 and was a 
Netherlands national, died in Bremen. The applicant is the widow of the deceased, 
and parties 2 and 3 are descendants of the deceased’s brother, who predeceased 
him. 
By a notarial deed dated 21 January 2019, the applicant applied for the issuance of 
a joint certificate of inheritance, according to which three quarters of the 
deceased’s estate was to be inherited by the applicant and one eighth of the 
deceased’s estate was to be inherited by each of the complainants by way of 
intestate succession. Since the applicant had difficulty producing the necessary 
documents for assessing the intestate succession, the Amtsgericht Bremen (Local 
Court, Bremen, Germany), having jurisdiction to rule on the succession (‘the 
Probate Court’), first contacted the complainants by letter of 19 June 2019 and 
informed them about the application for a certificate of inheritance. At the same 
time, the Probate Court requested that certain more specific documents be 
provided. Subsequently, an email was received on 14 August 2019 from a Mr K, 
who stated that he had been instructed by the complainants to make enquiries 
concerning the status of the estate. In that regard, the Probate Court declared itself 
unable to respond to those enquiries and recommended that legal advice be 
sought. Initially, no further observations were submitted by the complainants. 
After the applicant had finally produced the necessary documents, the 
complainants were consulted by the Probate Court in a letter of 22 November 
2019 about the application for a certificate of inheritance, a copy of which was 
sent to them. The complainants had previously submitted a declaration of waiver 
in respect of the deceased’s estate at the rechtbank Den Haag (District Court, The 
Hague, Netherlands) on 13 September 2019, which was entered into the Register 
of Succession there on 30 September 2019. By letter of 13 December 2019 – 
written in Dutch – the complainants submitted copies of the documents drawn up 
in that regard by the District Court, The Hague, to the Probate Court. By letter of 
3 January 2020, the Probate Court informed the complainants that letters and 
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documents that were not accompanied with a translation into German could not be 
processed. In that regard [Or. 4], complainant 3 sent a letter dated 15 January 
2020 (in German) in which it was claimed that the inheritance had been waived, 
that the declaration had been registered with a court in Dutch in accordance with 
EU law and that no translation was therefore required. However, the Probate 
Court referred to the fact that the documents had not been translated and to the 
time limits applicable to a declaration concerning the waiver of succession. 
By order of 27 February 2020, the Probate Court established the facts necessary 
for issuing the certificate of inheritance in accordance with Paragraph 352e(1) of 
the Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der 
freiwilligen Gerichtsbarkeit (Law on proceedings in family matters and in matters 
of non-contentious jurisdiction; ‘the FamFG’). That decision, which was notified 
to the complainants on 6 March 2020, was contested by both of them by letter of 
19 March 2020 (received on 27 March 2020), in which they also requested an 
extension of the time limit for further substantiation. On 30 July 2020, the 
complainants then filed colour copies of the documents drawn up by the District 
Court, The Hague, and a translation thereof. Following a further objection by the 
Probate Court, criticising the fact that the original versions of the documents were 
missing, the original documents were received by the Probate Court on 17 August 
2020. By order of 2 September 2020, the Probate Court rejected the complaint and 
referred the proceedings to the Chamber for a decision. As grounds, the Probate 
Court stated that the complainants were (joint) heirs of the deceased, because they 
had missed the deadline for waiving succession. Neither merely indicating that the 
declaration concerning the waiver of succession had taken place before the 
Netherlands court nor the provision of copies was sufficient for the waiver to be 
valid; receipt of the original documents was all that would suffice, and those were 
submitted to the Probate Court only after the six-month period for waiving 
succession had expired. 
2. 
The appeal brought by the complainants is available under Paragraph 58(1) of the 
FamFG and is admissible under Paragraphs 59(1), 61(1) and 63(1) of the FamFG. 
It is therefore necessary to examine the substance of whether the waiver occurred 
in good time. 
a. As the complainants are not resident in Germany, and the deceased was a 
Netherlands national, the provisions 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 [Or. 5] creation of a European Certificate of Succession (EU Succession 
Regulation) apply to the succession. Under those provisions, the Probate 
Court in Bremen, as the court in whose district the deceased had his habitual 
residence at the time of death, has jurisdiction to rule on the succession 
(Article 4 of the EU Succession Regulation). Furthermore, the rules of 
T.N. AND N.N. 
 
5 
German substantive law apply, in principle, to the succession, since the 
habitual residence of the deceased at the time of death is also relevant in that 
regard (Article 21(1) of the EU Succession Regulation). However, contrary 
to the view of the Probate Court, the question of the validity of the waiver of 
succession is not determined solely by Paragraph 1945 of the Bürgerliches 
Gesetzbuch (German Civil Code; ‘the BGB’). Rather, with regard to a 
waiver of succession, the EU Succession Regulation stipulates special rules 
for jurisdiction and form in Articles 13 and 28: 
Pursuant to Article 13 of the EU Succession Regulation, in addition to the 
court that has jurisdiction to rule on the succession pursuant to Article 4 of 
the EU Succession Regulation, the courts of the Member State of the 
habitual residence of the person waiving succession also has jurisdiction to 
receive a declaration concerning the waiver of succession; there is 
concurrent jurisdiction […] [evidence in national legal academic writing]. It 
is provisions of Netherlands law which govern which court has territorial 
jurisdiction over the person waiving succession, those provisions being 
autonomous in that regard, and, since the complainants are resident in The 
Hague, it seems likely that the District Court, The Hague, is the court with 
territorial jurisdiction; no evidence to the contrary has been presented or is 
apparent. In addition, Article 28(b) provides that the form of the declaration 
concerning the waiver of succession is determined by the provisions of law 
of the place of habitual residence of the person making the declaration. 
b. However, the question is whether the mere making of a declaration 
concerning the waiver of succession before the court where the person 
making the declaration has his or her habitual residence constitutes a valid 
waiver before the court ruling on the succession, which is referred to as 
substitution (that being concordant with prevailing opinion […]) [evidence 
in legal academic writing and case-law]. The opposing viewpoint requires 
that the declaration be referred properly to the court ruling on the succession 
[…] [Or. 6] […] or, in any case, notification thereof […] [evidence in legal 
academic writing]. 
A counter argument may be based on recital 32 of the Regulation, which 
states accordingly, inter alia, that persons choosing to avail themselves of 
the possibility to make declarations in the Member State of their habitual 
residence should themselves inform the court which is ruling on the 
succession of the existence of such declarations within any time limit set by 
the law applicable to the succession. It could be inferred therefrom that the 
legislature assumed that a declaration concerning the waiver of succession 
made to the court in the declarant’s habitual place of residence should 
produce legal effects only after having been notified to the court ruling on 
the succession. It could particularly be argued in that regard that Article 13 
of the EU Succession Regulation, unlike, for example, Paragraph 344(7) of 
the FamFG, does not provide for any obligation on the court in the 
declarant’s habitual place of residence to inform the court ruling on the 
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succession that a declaration concerning the waiver of succession has been 
made. 
c. Thus, the outcome of the proceedings, namely the question of whether the 
complainants waived the succession in good time, depends on the 
interpretation of Articles [13] and 28 of the EU Succession Regulation. 
As the substantive German law applicable here under Article 21 of the EU 
Succession Regulation does not require explicit acceptance of succession 
(Paragraph 1942 of the BGB – principle of automatic inheritance […] 
[reference to legal academic writing]), the complainants became joint heirs 
if they failed to waive the succession within the time limit (Paragraph 1943 
of the BGB). The deadline for waiving succession is, in principle, six weeks, 
which begins to run from the date on which the heir becomes aware of the 
devolution and the reason for his or her entitlement (Paragraph 1944(1) of 
the BGB). Where, as in this case, the heir resides abroad, the deadline for 
waiving succession is six months (Paragraph 1944(3) of the BGB). The heir 
is deemed to be aware of the succession if he or she knows the devolution of 
the estate has taken place pursuant to Paragraph 1942 of the BGB. He or she 
must thus have had reliable knowledge of the relevant circumstances on the 
basis of which he or she could be expected to act. The deadline for issuing a 
waiver of succession does not begin to run on the basis of deemed 
knowledge or even culpable ignorance. The relevant circumstance of which 
the heir must be aware is the death. Furthermore, in the case of intestate 
succession [Or. 7], as is the case here, the familial relationship giving rise to 
the status of heir (including life partnership) and the absence or 
disappearance of the previous heirs are relevant. The Chamber considers it 
doubtful that the request from the Probate Court on 19 June 2019 provided 
the complainants with the necessary – reliable – knowledge of the 
succession. First, the application for a certificate of inheritance from which 
the complainants’ entitlement arose (intestate succession) was not attached 
to that letter. Second, the request for documents by the Probate Court 
demonstrated that the investigations into the intestate succession had not yet 
been completed. In addition, the complainants, who are Netherlands 
nationals, are not required by law to be aware of the German rules on legal 
succession, especially since the present case concerned intestate succession 
of the second degree (Paragraph 1925 of the BGB). The Probate Court itself 
did not assume, when calculating the deadline, that the complainants had 
already obtained the knowledge necessary under Paragraph 1944 of the BGB 
through receipt of that request. The Chamber shares that view. However, the 
complainants had that knowledge by 13 September 2019 at the latest, 
because they declared their waiver of succession on that date before the 
District Court, The Hague, which implies that they considered themselves to 
be heirs. 
(1) If one accepts the clear prevailing opinion, which is that a substitution 
of the declaration concerning the waiver of succession occurs, that 
T.N. AND N.N. 
 
7 
declaration was already valid when it was made before the District 
Court, The Hague, on 13 September 2019. The statutory time limit 
under Paragraph 1944(3) of the BGB was observed, and the 
complainants have not become heirs. 
(2) By contrast, assuming that complete substitution has not taken place in 
the light of recital 32, the validity of the waiver may also depend on 
when the Probate Court in Bremen (the court ruling on the succession) 
became aware that such a declaration had been made. However, the 
question then arises as to the formal requirements necessary to render 
the waiver valid: 
(a) If it is sufficient merely to inform the court ruling on the 
succession – even, where relevant, in the native language of the 
party declaring the waiver – then the waiver declared on 
13 December 2019 is valid and therefore was made within the 
time limit. The same applies if one is required to supply mere 
copies of documents drawn up by the court of the declarant’s 
habitual place of residence [Or. 8] when the declaration 
concerning the waiver of the succession was made. If that is the 
case, it is for the court ruling on the succession to obtain 
confirmation by making further enquiries with the court in the 
other Member State (Paragraph 26 of the FamFG). 
(b) If, in light of the law applicable in the place of the court ruling on 
the succession (Article 21(1) of the EU Succession Regulation), 
it is required that information about the declaration be provided 
in German (Paragraph 184 of the Gerichtsverfassungsgesetz 
(Law on the organisation of the courts; ‘the GVG’)), that took 
place in the form of the complainants’ letter of 15 January 2020, 
and that was also within the time limit for making the declaration 
of waiver of succession. Here, again, the court ruling on the 
succession was itself obliged to obtain the necessary 
confirmation (in the form of documents) from the court of the 
Member State. 
(c) However, if it is assumed, as the Probate Court did, that, 
notwithstanding Article 13 of the EU Succession Regulation, a 
valid declaration concerning the waiver of succession requires 
that the original documents concerning the waiver drawn up by 
the court of the Member State with a certified translation in the 
language of the court ruling on the succession be provided to the 
latter court, then that took place only in August 2020 and the 
declaration was made out of time. However, it should be noted 
that such an interpretation would do little to achieve the 
simplification in European legal relations sought by the 
regulation, since, if that is the case, the person concerned may 
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immediately declare the waiver before the court ruling on the 
succession. 
[…] 
[Signatures] 
[…] [Authenticated copy]