OLG Frankfurt; 2021-02-09; 21 W 151/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2021:0209.21W151.20.00
Date: 2021-02-09
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0209(51)_ENG_SUMJURE
JURE summary
JURE summary
A preliminary insolvency administrator (hereinafter the ‘plaintiff’) applied with the Amtsgericht Frankfurt am Main in its capacity as a probate court (hereinafter ‘the Court of First Instance’) for the issuance of a European certificate of succession (hereinafter the ‘ECS’) which would confirm his capacity as a preliminary insolvency administrator of the deceased’s estate.
With regard to the estate of the deceased, a married, childless man, a curator of the estate, was appointed by a court. The curator of the estate found that after the payment of his remuneration, the estate will be fully consumed. A bank in Croatia promised to disclose information regarding the bank accounts of the deceased if the respective authorisation to use and manage the estate could be proved. The Court of First Instance decided to appoint the curator of the estate as preliminary insolvency administrator and to authorise him at the same time to use and manage the assets of the deceased. However, the Croatian bank required an ECS as a proof of legitimacy.
The Court of First Instance dismissed the application. An ECS with the required content was not foreseen by Succession Regulation No. 650/2012 (1). In addition, the Court of First Instance expressed the opinion that insolvency regarding the deceased’s estate fell under the provisions of EU insolvency law and not Succession Regulation No. 650/2012, and therefore, it was impossible for the court to issue any legitimate document for the insolvency administrator.
The appeal of the plaintiff against the decision of the Court of First Instance lodged with the Oberlandesgericht Frankfurt am Main (hereinafter ‘the Court of Appeal’) was found justified and was successful.
The issuance of an ECS could not be refused with the reasoning that because of the priority of Regulation (EU) 2015/848 (1) as stipulated under Article 76 of Succession Regulation No. 650/2012 (2), the scope of applicability of Succession Regulation No. 650/2012 would not be open for dispositions of the estate by an administrator appointed under the insolvency legislation. EU insolvency legislation does not include any provision regarding the issuance of a proof of authorisation to dispose of an estate. Thus, the insolvency legislation has no priority over Succession Regulation No. 650/2012. The plaintiff was to be deemed as an insolvency administrator of the deceased’s estate under Succession Regulation No. 650/2012.
The ECS expressly serves as a proof of the administrator’s authorisation to use and manage the estate. Both the meaning and purpose of Article 63 of Succession Regulation No. 650/2012 as well as the good faith nature of the ECS speak in favour for an insolvency administrator to be included in the circle of persons entitled to apply for the issuance of an ECS.
Based on the appeal of the plaintiff, the Court of Appeal changed the decision of the Court of First Instance and decided in favour of the application for the issuance of the ECS.
(1) Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
(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.