Order;Summary — ECLI:EU:C:2021:751
Date: 2021-09-01
Language of the case: Polish
Court formation: Sixth Chamber
Subject matter: Area of freedom, security and justice
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
12 August 2020 
Referring body: 
Justyna Gawlica, Notary in Krapkowice – Krapkowice (Poland) 
Date of the decision to refer: 
3 August 2020 
Party to the main proceedings: 
OKR 
  
Subject matter of the proceedings before the referring body * 
The subject matter of the case in the main proceedings is the examination of an 
appeal brought against the refusal by a notary in Poland to perform a notarial act, 
namely to draw up, on behalf of a Ukrainian national, a notarial will which would 
contain a choice-of-law clause in favour of Ukrainian law and modify the legal 
order of succession provided for in Ukrainian law. 
Subject matter and legal basis of the request 
The referring body submits two questions, the second of which includes a number 
of partial questions. The first question seeks a determination as to whether 
Article 22 of Regulation No 650/2012, which entitles a testator/testatrix to choose 
the law of his or her native country as the law by which all matters relating to 
succession are to be governed, also applies to third-country nationals. The second 
question concerns the determination – in the case where a bilateral agreement is in 
force between a Member State and a third country, which agreement does not 
govern the choice of law but indicates the applicable law – of the mutual 
 
*  Translator’s note: in this case, the referring body is not a court or tribunal. See the justification 
concerning admissibility in paragraphs 15 to 25 of the original text and in paragraphs 10 to 13 of 
the present summary. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-387/20 
 
2  
relationship between that agreement and Regulation No 650/2012 and the effect of 
that hierarchy of norms on the admissibility of a choice of law made pursuant to 
Article 22, in conjunction with Article 75, of Regulation No 650/2012 by a 
national of the third country concerned. 
Questions referred 
1. Must Article 22 [of Regulation No 650/2012] be interpreted as meaning that 
a person who is not a citizen of the European Union is also entitled to choose the 
law of his or her native country as the law governing all matters relating to 
succession? 
2. Must Article 75, in conjunction with Article 22, of Regulation No 650/2012 
be interpreted as meaning that, in the case where a bilateral agreement between a 
Member State and a third country does not govern the choice of law applicable to 
a case involving succession but indicates the law applicable to that case involving 
succession, a national of that third country residing in a Member State bound by 
that bilateral agreement may make a choice of law? 
and in particular: 
- must a bilateral agreement with a third country expressly exclude the choice of a 
specific law and not merely govern the lex successionis using objective 
connecting factors in order for its provisions to take precedence over Article 22 of 
Regulation No 650/2012? 
- is the freedom to choose the law governing succession and to make the 
applicable law uniform by making a choice of law – at least to the extent 
determined by the EU legislature in Article 22 of Regulation No 650/2012 – one 
of the principles underlying judicial cooperation in civil and commercial matters 
in the European Union, which may not be infringed even where bilateral 
agreements with third countries apply which take precedence over Regulation 
No 650/2012? 
Applicable provisions of EU law 
TFEU: Article 81(2)(c) 
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: recital 38; 
Articles 22 and 75 
OKR 
 
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Applicable provisions of national law 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) of 
2 April 1997: Articles 45(1) and 176(1) 
Umowa polsko-ukraińska z dnia 24 maja 1993 r. o pomocy prawnej i stosunkach 
prawnych w sprawach cywilnych i karnych (Polish-Ukrainian Agreement of 
24 May 1993 on Legal Assistance and Legal Relations in Civil and Criminal 
Matters): Article 37  
Ustawa z 14 lutego 1991 r. Prawo o notariacie (Law of 14 February 1991 on 
Notaries): Articles 81, 82 and 83 
Succinct presentation of the facts and procedure 
1 OKR, a Ukrainian national living in Poland, is the joint owner of a dwelling 
located in Poland. She requested a notary in Poland to draw up a notarial will 
which would contain a choice-of-law clause opting for Ukrainian law and modify 
the legal order of succession on the basis of that law. 
2 On 10 July 2020, the notary refused to perform the notarial act on the ground that, 
in her opinion, the choice of Ukrainian law in the will would be unlawful.  
3 OKR lodged an appeal with the referring body. 
Essential arguments of the parties in the main proceedings 
4 In the grounds of the refusal to perform the notarial act, the notary, first of all, 
draws attention to the scope ratione personae of Regulation No 650/2012. In this 
context, the notary refers to the ruling of the Sąd Okręgowy w Opolu (Regional 
Court in Opole, Poland) of 28 February 2020, which, when examining an appeal 
in a factually similar case, found that Article 22 of the regulation allows only 
nationals of Member States of the European Union to choose the law of the State 
by which all matters relating to succession are to be governed. In the view of the 
notary, another indication excluding the application of the regulation to third-
country nationals is contained in the first sentence of recital 38, which refers to the 
right of EU citizens to choose the law, and also in Article 81(2)(c) TFEU, which 
constitutes the basis for the adoption of the regulation and according to which the 
regulation is a measure designed to ensure the compatibility of the rules applicable 
in the Member States concerning conflict of laws and of jurisdiction. 
5 Secondly, the notary draws attention to the precedence which provisions of 
bilateral agreements concluded by Member States with third countries take over 
the regulation pursuant to Article 75 of the regulation. The Polish-Ukrainian 
Bilateral Agreement of 24 May 1993 on Legal Assistance and Legal Relations in 
Civil and Criminal Matters does not provide for the possibility to choose the law 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-387/20 
 
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applicable to succession matters. Article 37 of the Polish-Ukrainian Agreement 
governs the law applicable to succession matters in such a manner that the law 
applicable to the succession of the applicant’s movable property is Ukrainian law 
as the law of the country of her nationality (paragraph 1), while the law applicable 
to the succession of immovable property is the law of the State Party in which that 
property is located (paragraph 2). Thus, it is not possible for individuals to choose 
the applicable law. 
6 In her appeal of 28 July 2020, OKR alleges that there has been an incorrect 
interpretation of Articles 22 and 75 of the regulation. 
7 As regards Article 22 of the regulation, the applicant referred to the wording of 
that provision, according to which ‘a person’ [in Polish ‘każdy’, meaning ‘any 
person’] may choose the law of the State of which he or she is a national as the 
law governing his or her succession. She also draws attention to the fact that 
Article 22 of the regulation features in Chapter III thereof, which contains 
generally applicable conflict-of-law rules. According to Article 20 of Regulation 
No 650/2012, any law specified by that regulation is to be applied whether or not 
it is the law of a Member State. OKR takes the view that this also applies to the 
law specified by way of a choice of law made pursuant to Article 22 of the 
regulation. 
8 As regards Article 75 of the regulation, which states that the regulation ‘shall not 
affect’ the application of conventions between Member States and third countries, 
OKR considers that the parallel application of the regulation and the agreement 
does not mean that the Polish authorities must apply the conflict-of-law rules 
arising from the agreement in a Polish-Ukrainian succession case in which they 
determine the law applicable on the basis of objective connecting factors. Since 
Article 37 of the Polish-Ukrainian Agreement does not address the question of the 
choice of the law applicable to succession, in these circumstances it cannot, she 
submits, take precedence over Article 22 of Regulation No 650/2012, which 
governs this matter. 
9 OKR also points out that the refusal to draw up a will in Poland containing a 
choice-of-law clause electing Ukrainian law is all the more unjustified as such a 
will could be drawn up in any other Member State (not being bound by the 
agreement in question with Ukraine) and that this leads to a fragmentation of the 
succession, which is contrary to the principle of uniformity of the lex successionis. 
Brief summary of the grounds for the request 
Justification of admissibility 
10 First of all, the referring body, namely the notary, presents arguments to justify the 
admissibility of a request for a preliminary ruling made by a notary in Poland. The 
referring body stresses that a Polish notary’s competence to refer a question for a 
preliminary ruling within a strictly defined context, namely the hearing of an 
OKR 
 
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appeal at first instance against a refusal to perform a notarial act, must be carefully 
distinguished from classifying a Polish notary as a court or tribunal in the context 
of his or her other areas of competence or in other regulatory contexts relating to 
EU law.  
11 The referring body then goes on to describe in detail the procedure governing 
appeals against a refusal to perform a notarial act, discussing the 2015 amendment 
to the Law on Notaries which arose from the resolution adopted by an extended 
panel of seven judges of the Sąd Najwyższy (Supreme Court, Poland) of 
7 December 2010. In the case of an appeal lodged against a refusal to perform a 
notarial act, the body hearing the case at first instance is the notary. With respect 
to appeals against the refusal to perform a notarial act, the court of second 
instance is the regional court (Sąd Okręgowy). On the other hand, a notary who 
has refused to perform a notarial act is not a party to appeal proceedings at first 
instance; instead, he or she conducts a review of the lawfulness of the refusal in 
his or her capacity as the authority exercising public tasks relating to legal 
protection. The notary examining the appeal must follow the procedures 
applicable to so-called inter-institutional proceedings, which are analogous to 
those which govern general civil proceedings. The notary’s position and the scope 
of his or her actions arising from Article 83(1) of the Law on Notaries are 
analogous to those of a court of first instance which issued a judgment that is 
subject to appeal pursuant to the Kodeks Postępowania Cywilnego (Code of Civil 
Procedure). Proceedings conducted by a notary are – with respect to judicial 
proceedings pending as a result of an appeal being lodged against the refusal to 
perform a notarial act – equivalent to first-instance proceedings, and the notary’s 
ruling on the refusal to perform a notarial act is equivalent to a first-instance 
ruling. This interpretation and its compatibility with Article 176(1) of the 
Constitution of the Republic of Poland was also confirmed by the Trybunał 
Konstytucyjny (Constitutional Court, Poland) in its judgment of 13 January 2015. 
According to that judgment, a notary is treated as a public official, and entrusting 
him or her with the resolution of a case meets the standards set by the 
constitutional principle of procedural justice. 
12 As regards the position of the Polish notary in the proceedings in question as 
developed in the case-law and its relationship to the various criteria applicable to a 
‘court or tribunal’ within the meaning of Article 267 TFEU, the referring body 
stresses that the notary is an impartial entity independent of the parties asking him 
or her to perform a notarial act. The legal protection provided by the notary is of a 
mandatory nature in the sense that a party wishing or obliged to perform an action 
in notarised form has no influence over the notary’s obligatory review of the 
lawfulness of the substance of the action in question. This review is carried out ex 
officio on the same statutory basis by every notary (absolute obligation) and with 
respect to every notarial act (preventive jurisdiction). A notary may not, even at 
the express request of a party, solely instruct the party that the envisaged action is 
defective and let the party perform that action at the party’s own risk (judgments 
of the Supreme Court of 7 November 1997 and 5 February 2004). Where an 
appeal is lodged against the refusal to perform a notarial act, the judicial phase of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-387/20 
 
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the notary’s preventive jurisdiction begins. At this stage, the party is no longer 
entitled to choose the notary who will handle the case, and a regional court may 
hear the case only after the appeal has been examined by the notary. In these 
circumstances, the notary is bound both by the principle of the primacy of EU law 
and by the case-law of the courts which supervise notarial activities at second 
instance. 
13 The referring body takes the view that a notary is able effectively to carry out his 
or her task of review at first instance only if, in a case where the outcome depends 
on the interpretation of EU law, he or she is also given the power to submit a 
request for a preliminary ruling. Under Polish law, a party has the right to 
effective review of its case also at the stage when the party’s appeal is examined 
by a notary. In order to obtain the interpretation of EU law necessary for a ruling 
on the appeal that has been lodged, it appears necessary for the notary to refer a 
question for a preliminary ruling. 
Grounds for the questions 
14 As regards the first question, the referring body refers to the arguments put 
forward by OKR. OKR’s appeal cannot be allowed owing to the presence in the 
Polish legal system of the aforementioned ruling of the Regional Court in Opole 
of 28 February 2020.  
15 As regards the second question, the referring body takes the view that, before 
interpreting the provisions of the Polish-Ukrainian Agreement, the extent to which 
the provisions of bilateral agreements take precedence over Regulation 
No 650/2012 must be determined. The rationale underlying Article 75 of 
Regulation No 650/2012 is that the Member States’ Treaty obligations towards 
third countries must be respected. Therefore, the relevant interpretation of 
Article 75 of the regulation should be uniform in all the Member States. The 
question therefore arises as to whether, under the regulation, the choice of law is 
precluded only by the provision of the bilateral agreement which governs the 
choice of law differently from the regulation, or already by a provision which 
determines the lex successionis in any manner.  
16 It might be concluded that only a bilateral agreement which expressly excludes the 
choice of law of succession in general or in a given case – due to the different 
manner in which the admissibility of such a choice is regulated – takes precedence 
over Article 22 of the regulation. In the case at issue, the notary originally 
adopted, on the basis of Polish and German jurisprudential teaching, a 
fundamentally different interpretation, according to which the conflict-of-law 
rules of the bilateral agreement constitute an autonomous regime under which the 
applicable law can be comprehensively established. A less conservative approach 
would be that Article 75 of the regulation does not require the Member States’ 
authorities to ‘enforce overzealously’ the application of provisions of bilateral 
agreements; it merely requires that preference be given to bilateral agreement 
provisions where these actively address the matter in question in a manner 
OKR 
 
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different from the regulation. Bilateral agreements, which are considered 
anachronistic today, rarely use this technique of indicating the applicable law. In 
this respect, the regulatory regime of the regulation would apply to the greatest 
extent possible and only in individual cases could it be replaced by the provisions 
of a bilateral agreement with a third country to the extent that its provisions could 
not be reconciled with the regulation.  
17 In this context, the notary refers to Article 25 of Regulation No 593/2008, 
Article 28 of Regulation No 864/2007, Article 69 of Regulation No 4/2009 and, 
above all, the case-law of the Court of Justice relating to Article 71(1) of 
Regulation No 44/2001, in particular the relationship between the jurisdiction 
rules of that regulation and the rules of the Convention on the Contract for the 
International Carriage of Goods by Road (CMR), with particular reference to the 
judgment of 4 September 2014 in Case C-157/13, in which the Court of Justice 
held that the application of the rules of international conventions which take 
precedence over the regulation ‘cannot compromise the principles which underlie 
judicial cooperation in civil and commercial matters in the European Union such 
as the principles […] of the free movement of judgments in civil and commercial 
matters, predictability as to the courts having jurisdiction and therefore legal 
certainty for litigants’ (paragraph 38). In the notary’s view, the question also 
arises as to whether the freedom to choose the applicable law and the freedom to 
make the applicable law uniform by choosing the applicable law – at least to the 
fairly narrow extent permitted by the EU legislature under Article 22 of 
Regulation No 650/2012 – are overriding considerations which affect the 
interpretation of the extent to which international agreements take precedence 
over the rules underlying EU regulations, including the rule of legal certainty. 
18 The notary points out in passing that Poland has bilateral agreements – which do 
not provide for a choice of law and which do contain conflict-of-law rules in 
succession cases – with four third countries the nationals of which are relatively 
numerous in Poland: namely, with Ukraine, Belarus, Russia and Vietnam (but also 
with the successor states of the former Yugoslavia that are not Member States, as 
well as with Cuba, Libya, North Korea and Mongolia). The purpose of this 
observation is to highlight the importance of the questions referred for uniform 
practice (not merely in Poland) and the scale of the phenomenon associated with 
the parallel application of the regulation and of bilateral agreements between 
Member States and third countries.