KG Berlin; 2016-04-26; 1 AR 8/16
Decision by national courts in the field of European Union law — ECLI:DE:KG:2016:0426.1AR8.16.0A
Date: 2016-04-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0426(52)_ENG_SUMJURE
JURE summary
JURE summary
The Kammergericht Berlin (hereinafter ‘the Court of Appeal’) dealt with a case concerning international jurisdiction regarding inheritance proceedings with a cross-border element where two German Courts of First Instance argued about jurisdiction.
Until 11 February 2010, the deceased person had his main and habitual residence in the district of the Amtsgerichts Wedding (hereinafter ‘Court of First Instance 1’). Subsequently, he moved to a flat in a storehouse in G. in western Poland and kept the second residence with his daughter in Berlin-Pankow solely for ‘registration purposes’. On 11 March 2016, the daughter of the deceased refused the inheritance left by her father in Amtsgericht Berlin-Pankow-Weißensee (hereinafter ‘Court of First Instance 2’), which held jurisdiction for her place of residence.
The Court of First Instance 2 stated its lack of jurisdiction and referred the case to the Court of First Instance 1, which also found itself not to be the competent court and approached the Court of Appeal for a decision regarding the jurisdiction.
After 17 August 2015, the international jurisdiction for inheritance cases with a cross-border element follows, in principle, from Article 4 of the Succession Regulation (1) in connection with Article 97 FamFG (2). The Succession Regulation is an EU legal act that has priority over the provisions of FamFG. Under the Succession Regulation, the applicable law of succession shall be identical to the laws of the Member State where the deceased person resided upon their death. In this case, the residence could be either in Poland or in Germany. The decisive criterion when determining the habitual residence is ‘the centre of interests of the life of the deceased’. So-called cross-border commuters are considered to still have their habitual residence in their state of origin if their social life and the centre of interests of their family remained in the state of origin.
According to the Court of Appeal, the jurisdiction of the Court of First Instance 1 followed from Article 47(2) in connection with Article 2(4) of the IntErbRVG (3), Article 4 of the Succession Regulation and Article 343(2) FamFG. As the habitual residence, within the meaning of Article 4 of the Succession Regulation, of the deceased person upon his death was in Germany, the local jurisdiction of the Court of First Instance 1 under Article 343(2) FamFG followed from the fact that the deceased had his last (factual) residence in Germany within the district of the Court of First Instance 1.
(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) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction).
(3) Internationales Erbrechtsverfahrensgesetz (International Inheritance Procedure Act).