Opinion of the Advocate General — ECLI:EU:C:2021:565
Date: 2021-07-08
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

Anonymised version 
Translation C-422/20 – 1  
Case C-422/20 
Request for a preliminary ruling 
Date lodged: 
8 September 2020 
Referring court: 
Oberlandesgericht Köln (Germany) 
Date of the decision to refer: 
28 August 2020 
Defendant and appellant: 
RK 
Applicant and respondent: 
CR 
  
… 
OBERLANDESGERICHT KÖLN 
(HIGHER REGIONAL COURT, COLOGNE, GERMANY) 
ORDER 
In the succession proceedings 
concerning the succession of the German national having [his] last habitual 
residence in Manilva, province of Malaga, Spain, who died on 9 March 2017 […], 
to which the following are parties: 
1. Mrs CR. […] 
applicant and respondent,   
EN 
REQUEST FOR A PRELIMINARY RULING OF 28. 8. 2020 – CASE C-422/20 
 
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[…] 
2. Mr RK, … 
defendant and appellant,  
[…] 
the Second Civil Chamber of the Oberlandesgericht Köln (Higher Regional Court, 
Cologne) 
[…] [Or. 2] 
has made the following o r d e r: 
I. 
[…] 
II. 
The following questions are referred to the Court of Justice of the European 
Union (Court of Justice), pursuant to the second paragraph of Article 267 of 
the Treaty on the Functioning of the European Union (TFEU), in the version 
of 7 June 2016 (OJ 2016 C 202, p. 164), for an interpretation of [EU] law: 
1. 
Is it necessary, for a declaration of lack of jurisdiction by the court 
previously seised, as provided for in Article 7(a) of Regulation 
No 650/2012, that that court should expressly decline jurisdiction, or may 
even a non-express declaration suffice if it supports the inference, through 
interpretation, that that court has declined jurisdiction? 
2. 
Is the court of the Member State whose jurisdiction is intended to follow 
from a declaration of lack of jurisdiction by the court previously seised in 
the other Member State competent to examine whether the conditions 
governing a decision by the court previously seised, as provided for in 
Articles 6(a) and 7(a) of Regulation No 650/2012, were met? To what extent 
is the decision of the court previously seised binding? In particular: [Or. 3] 
(a) 
Is the court of the Member State whose jurisdiction is intended to follow 
from a declaration of lack of jurisdiction by the court previously seised in 
the other Member State competent to examine whether the deceased validly 
RK 
 
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chose the law of the Member State in accordance with Article 22 of 
Regulation No 650/2012? 
(b) 
Is the court of the Member State whose jurisdiction is intended to follow 
from a declaration of lack of jurisdiction by the court first seised in the other 
Member State competent to examine whether a request for a declaration of 
lack of jurisdiction, as provided for in Article 6(a) of Regulation 
No 650/2012, has been brought by one of the parties to the proceedings 
before the court previously seised? 
(c) 
Is the court of the Member State whose jurisdiction is intended to follow 
from a declaration of lack of jurisdiction by the court first seised in the other 
Member State competent to examine whether the court previously seised 
rightly assumed that the courts of the Member State of the chosen law are 
better placed to rule on the succession? 
3. 
Are Articles 6(a) and 7(a) of Regulation No 650/2012, which presuppose a 
choice of law ‘pursuant to Article 22’, applicable even where the deceased 
has made no express or implied choice of law in a testamentary disposition 
made before 17 August 2015, but the law applicable to the succession is 
capable of being inferred only from Article 83(4) of Regulation 
No 650/2012? [Or. 4] 
Grounds: 
I. 
1 In previous proceedings, […] the party at 1., the wife of the deceased, had, by 
notarised application of 23 March 2017 to the Amtsgericht Düren (Local Court, 
Düren, Germany), requested the issue of a certificate of inheritance as sole heir 
and a European Certificate of Succession on the basis of a will dated 14 June 1990 
[….]. The will submitted is handwritten in German and is worded as follows […]: 
2 ‘Joint spousal will  
[…] 
By this will,  
the spouses […]  
appoint each other as sole heir to their estates. 
Tittling, 14 June 1990 
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-Husband’s signature  
-Wife’s signature-’ 
3 The party at 2., the brother of the deceased, had opposed the application made at 
that time; […] 
4 By order of 20 December 2017, the probate judge at the Amtsgericht Düren 
(Local Court, Düren) deemed the facts necessary for issuing the certificate of 
inheritance applied for to be established […] [Or. 5] 
5 On appeal by the party at 2., the Chamber of the Amtsgericht Düren (Local Court, 
Düren), by order of 4 July 2018, […] declared that that court lacked jurisdiction. 
[…] That Chamber gave the following reasons for its decision: 
6 ‘… the Amtsgericht (Local Court) must be declared to lack jurisdiction pursuant 
to Article 15 of Regulation No 650/2012 because the German probate courts lack 
international jurisdiction in respect of the present proceedings for the issue of a 
certificate of inheritance. […] 
7 The international jurisdiction of the German probate courts cannot be based on 
Paragraph 105, in conjunction with Paragraph 343(2) and (3), of the [Gesetz 
über das Verfahren in Familiensachen und in den Angelegenheiten der 
freiwilligen Gerichtsbarkeit (Law on court proceedings in family and non-
contentious matters; ‘the FamFG’)]. The rules contained in those provisions, 
which govern jurisdiction ratione loci, are not compatible with Article 4 of 
Regulation No 650/2012 because the international jurisdiction governed by that 
regulation applies – inter alia – to national certificates of succession, such as the 
certificate of inheritance (Erbschein) under German law. 
8 The judgment of the European Court of Justice of 21 June 2018, C-20/17, which 
was delivered after the decision under appeal of the Amtsgericht (Local Court), 
[…] states: 
“An interpretation of Article 4 of that regulation whereby that provision 
determines the international jurisdiction of the courts of the Member States as 
regards the procedures for issuing national certificates of succession seeks, in the 
interests of the sound administration of justice within the European Union, to 
achieve that objective, by limiting the risk of parallel proceedings before the 
courts of different Member States and of contradictions that may arise as a result. 
Conversely, achievement of the objectives pursued by Regulation No 650/2012 
would be hindered if, in a situation such as that at issue in the main proceedings, 
the provisions of Chapter II of that regulation, in particular Article 4 thereof, 
were to be interpreted as not determining the international jurisdiction of the 
courts of the Member States in relation to proceedings concerning the issuing of 
national certificates of succession”. 
9 It is true that the decision of the Court of Justice was given in a case concerning 
international jurisdiction (on the part of the Amtsgericht Schöneberg (Local 
RK 
 
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Court, Schöneberg, Germany)) under Paragraph 105, in conjunction with 
Paragraph 343(3), of the FamFG. In accordance with the principles cited by the 
Court of Justice, however, Article 4 of Regulation No 650/2012 precludes 
international jurisdiction on the part of the German probate courts on the basis of 
Paragraph 105, in conjunction with Paragraph 343(2), of the FamFG too. […] 
This is because those rules determine the courts having jurisdiction by reference 
to the last habitual residence in national territory, whereas Article 4 of Regulation 
No 650/2012 takes as its point of reference the habitual residence at the time of 
death. The risk of parallel proceedings before the courts of different Member 
States is just as high if the courts having international jurisdiction are determined 
by reference to the last habitual [Or. 6] residence in Germany as it is if they are 
determined by reference to the conditions laid down in Paragraph 343(3) of the 
FamFG. 
10 Under Article 4 of Regulation No 650/2012, the courts of the Member State in 
which the deceased had his habitual residence at the time of death are to have 
jurisdiction to rule on the succession as a whole. On the basis of the information 
provided by the applicant, the deceased’s last habitual residence was not in 
Germany but in Spain. That is because he stayed in Germany for only a few weeks 
following medical treatment there in 2015; other than that, he lived in Spain, 
where the couple owned a property.’ 
11 Subsequently, the party at 1. obtained an order from the [Juzgado de Primera 
Instancia e Instrucción No 3 de Estepona] (Court of First Instance and Preliminary 
Investigation No 3, Estepona (Spain) of 29 April 2019 [….] The [English] 
translation of that order states, inter alia: 
12 ‘… 
At the request of the party making the application, I hereby refrain from hearing 
and determining the present proceedings, on the ground that the German courts 
are better placed to rule on the succession and on account of the practical 
circumstances, such as the habitual residence of the party concerned in this 
matter and the location of the essential part of the estate’. 
13 By notarised letter of 29 August 2019, the party at 1, by resubmitting the 
application notarised on 23 March 2017, applied to the Amtsgericht Düren (Local 
Court, Düren) for a certificate of inheritance as sole heir and a European 
Certificate of Succession [….]. She later submitted the abovementioned order of 
the Spanish court. The party at 2. once again opposed that application. 
14 By order of 19 February 2020, the Amtsgericht Düren (Local Court, Düren) … 
ruled that, on account of the decision of the Spanish [Or. 7] district court, the 
Amtsgericht Düren (Local Court, Düren) had jurisdiction under Article 6(a) of 
Regulation No 650/2012. The party at 2. appealed against that order [….]. 
II. 
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15 The appeal proceedings must be stayed and a preliminary ruling sought from the 
Court of Justice of the European Union under the second paragraph of Article 267 
of the Treaty on the Functioning of the European Union (TFEU). The decision on 
the appeal is contingent upon the answers to be given to the questions referred, 
which are not obvious and have not previously been clarified. 
16 […] In relations between Spain and Germany, the international jurisdiction of the 
probate courts is governed by Regulation No 650/2012. Since the deceased’s last 
habitual residence before his death on 9 March 2017 was in Spain, international 
jurisdiction to rule on the succession as a whole lies with the courts in Spain rather 
than with the German probate courts, in accordance with Article 4 of Regulation 
No 650/2012 [….] Thus, the international jurisdiction of the […] German probate 
court seised depends on whether, in the present succession matter, the later 
decision delivered by the Spanish court on 29 April 2019 constitutes a valid 
declaration of lack of jurisdiction within the meaning of Article 7(a), in 
conjunction with Article 6(a), of Regulation No 650/2012. 
17 1. In accordance with the wording of the [English] version of Article 7(a) of 
Regulation No 650/2012, which states that ‘the [Or. 8] courts of a Member State 
whose law had been chosen by the deceased pursuant to Article 22 shall have 
jurisdiction to rule on the succession if: (a) a court previously seised has declined 
jurisdiction in the same case pursuant to Article 6’, that provision presupposes 
that a choice of law has been made in accordance with Article 22 of Regulation 
No 650/2012 and that a declaration of lack of jurisdiction has been made by the 
court previously seised in the same case. The Spanish Court of [First Instance and] 
Preliminary Investigation No 3, Estepona, did not expressly decline jurisdiction. 
Rather, in its order of 29 April 2019, the Spanish court […] decided to ‘refrain 
from hearing and determining the present proceedings’ ([…] ‘abstenerme de 
conocer, …, de las presentes actuaciones’ […]). The question therefore arises as 
to whether, in order to establish the international jurisdiction of a Member State 
under Article 7 of Regulation No 650/2012, it is necessary for the court previously 
seised to have expressly (in as many words) declined jurisdiction, or whether it is 
sufficient for an interpretation of the decision of that court by the court 
subsequently seised to be capable of showing that the court previously seised 
intended to decline jurisdiction. 
18 2. The question then arises as to whether the court of the Member State whose 
jurisdiction is said to result from Article 7(a) of Regulation No 650/2012 may still 
review, under its own jurisdiction, a declaration of lack of jurisdiction made by a 
court previously seised, and, if so, which preliminary questions it may raise in the 
course of that review, or whether the decision of the court previously seised is 
binding, and, if so, to what extent. 
19 This concerns the questions as to whether – as Articles 6 and 7 of Regulation 
No 650/2012 presuppose – the deceased made a choice of law under Article 22 of 
the Regulation, whether a request for a declaration of lack of jurisdiction had been 
made to the court previously seised by one of the parties to the proceedings, in 
RK 
 
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accordance with Article 6(a) of Regulation No 650/2012, and whether the court 
previously seised rightly assumed that the courts of the Member State of the 
chosen law are better placed to rule on the succession (Article 6(a) of Regulation 
No 650/2012). [Or. 9] 
20 3. The next question that arises is whether Articles 6(a) and 7(a) of Regulation 
No 650/2012 are applicable, beyond the limits of their wording, even where the 
deceased has made no express or implied choice of law (Article 22 or 
Article 83(2) of Regulation No 650/2012) but the applicable law of a Member 
State is capable of being inferred from Article 83(4) of Regulation No 650/2012. 
[…]