Opinion of the Advocate General — ECLI:EU:C:2021:351
Date: 2021-04-29
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: Austria

summary, that it is not compatible with Regulation No 650/2012 to impose on the person concerned, as a general rule, the obligation to apply for an extension of the certified copy – or the issue of a new certified copy – when the copy presented was valid and effective at the stage of the proceedings when it was filed. C. Legal accuracy of the certificate (and of copies thereof) 64. It may be that, after the initial occasion on which the copy was submitted, there may be some uncertainty or some evidence regarding the possible rectification, modification, withdrawal or suspension of the certificate. In those circumstances, the copy may, unexpectedly, not be an accurate reflection of the certificate itself. 65. The intention to facilitate the management of successions having cross-border implications is an essential aim of Regulation No 650/2012, but it does not constitute an absolute requirement. It coexists with the concern that the identity between that which is certified and the existing legal situation is preserved. That aim leads, in turn, to the need to guarantee concordance between the existing situation and the certificate, and between the certificate and the copies thereof. 66. In inter partes proceedings, it is in the interests of the party who is placed at a disadvantage by the content of the certificate to bear those points in mind and, where appropriate, that party may inform the authority seised of the dispute of any changes to the original document (the certificate) after the copy submitted was issued. (36) 67. In those circumstances, there is nothing to prevent the authority required to decide on the dispute from examining the significance of assertions contesting the accuracy of the certificate or the accuracy of the copy of the certificate and from requesting a new document which accurately reflects the existing situation. 68. The situation is different in proceedings where there is no obligation to inform other interested parties, or persons who may potentially be placed at a disadvantage, about the proceedings so that they can enter an appearance before the decision-making authority. As I explained above, Regulation No 650/2012 lays down reservations (37) which provide the solution for such instances. 69. The issuing authority must notify persons to whom a copy has been issued of any change affecting the certificate (38) in order to prevent misuse. (39) In my opinion, a party who does not communicate (to the authority of the receiving State to which the copy has been submitted) the fact that that copy no longer matches the original certificate, because that certificate has been withdrawn, rectified or modified, would be acting improperly. 70. Lastly, where the authority before which the copy is produced is in possession of other information, from other sources, which could reasonably justify its doubts concerning the status of the original certificate, there is nothing to preclude it from requiring the person concerned to provide proof of that detail. 71. As I pointed out above, Regulation No 650/2012 allows the holder of a copy to apply for an extension of that copy of for another, new copy to be issued, (40) with no conditions attached. (41) That provision differs from the provision in the Commission’s original proposal, Article 43 of which limited the effectiveness of copies to three months.(42) A copy could not be issued initially for a longer period, nor could the validity of an expired copy be extended. The only option available to the interested party was to request a new copy. 72. The shortness of the period provided for provoked an unfavourable reaction from legal writers and professionals.(43) Article 43 of the proposal was amended in the European Parliament, which suggested the current wording. 73. The more flexible approach ultimately adopted enables the aims of Regulation No 650/2012 to coexist peacefully with one another: – on the one hand, it takes account of the filing date of the copy as the point in time when its temporal validity must usually be assessed; – on the other hand, it creates mechanisms for confirming that a certificate and a copy are identical in a situation where, when it is required to make a decision, an authority has questions regarding a copy which has expired in the meantime. 74. I believe that this results in the balanced coexistence of the aim of ensuring that, for the benefit of interested parties, ‘a succession with cross-border implications within the Union [is] to be settled speedily, smoothly and efficiently’ and the aim of ensuring that competent authorities can confirm that the information contained in the certificate is accurate and is reflected in the copy. 75. This complies more faithfully with the presumption that the person or persons indicated on the certificate (in this case, as heirs) are the holders of the rights or powers stated, without any further conditions or limitations than those mentioned on the certificate, the certified copy of which merely passes on that information to the competent authorities of another Member State. V. Conclusion 76. In the light of the foregoing considerations, I propose that the third question referred for a preliminary ruling by the Oberster Gerichtshof (Supreme Court, Austria) should be answered as follows: Article 69 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, read in conjunction with Article 70(3) of that regulation, must be interpreted as meaning that the effects of the certified copy of a European Certificate of Succession which was valid when it was first submitted, but which expires before the competent authority gives the requested decision, must be recognised. By way of exception, if reasonable evidence exists that the European Certificate of Succession has been rectified, modified or withdrawn or that its effects have been suspended before the decision of that authority, the latter may request that a new copy or an extended copy be submitted. 1 Original language: Spanish. 2 Regulation 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 (OJ 2012 L 201, p. 107). That regulation is applicable in all the Member States except Denmark and Ireland. 3 Judgments of 1 March 2018, Mahnkopf (C‑558/16, EU:C:2018:138), and of 17 January 2019, Brisch (C‑102/18, EU:C:2019:34). 4 The order for reference and Regulation No 650/2012 itself refer to the ‘period of validity’ of the copy. It would perhaps be preferable to restrict the term ‘validity’ to the absence of defects which would lead to the nullity of an act, and to use the term ‘effectiveness’ or ‘duration’ to evoke the status of an act which enables it to produce effects for a specified period. Once that period has elapsed, the effectiveness of the act is exhausted even if there are no grounds for invalidity. I shall, however, use both terms as if they were synonymous in the context of this reference for a preliminary ruling. 5 Order for reference, paragraphs 7 and 8. In legal literature, with references representing the different views, see Bergquist, U., ‘Muss ein Europäisches Nachlasszeugnis nicht nur im Zeitpunkt der Antragsstellung bei dem Grundbuchamt, sondern auch bei Vollendung der Grundbucheintragung gültig sein?’, IPRax, 2020, p. 232. The discussion, particularly in Austria and Germany, concerns inter alia access to the land register. 6 The deposit was instigated by a bank (Vorarlberger Landes- und Hypotheken-Bank AG, 6900 Bregenz (Austria)) which applied for the assets (cash and securities) to be transferred into the custody of the courts in the light of competing claims in respect of those assets and the lack of clarity regarding the creditors’ entitlement. Under Austrian law, assets in the custody of the courts may be released only by way of a joint written application by the creditors or on the basis of a final judgment. 7 Commission Implementing Regulation of 9 December 2014 establishing the Forms referred to in Regulation (EU) No 650/2012 (OJ 2014 L 359, p. 30). 8 The masculine form of the adjective used appears on the Spanish version of the form (‘Es válido hasta’), which could create confusion regarding whether it denotes the validity of the copy or of the certificate itself. That does not occur in other versions, such as the French, Italian and Portuguese (‘elle est valable’, ‘è valida fino al’, ‘válida até’, respectively). 9 In fact, the temporal limitation referred to in that provision affects the copy, not the certificate (see footnote 8 to this Opinion). 10 Given that it is the copy of the certificate rather than the certificate itself which moves between Member States (see point 37 of this Opinion), there are provisions of Regulation No 650/2012 concerning the aim and the effects of the certificate which, in practice, apply to the copy as a reflection of the certificate. However, that is not the case with regard to the temporal effectiveness of each document: the copy expires six months after it was issued, whereas the certificate is unaffected. 11 Judgments of 12 October 2017, Kubicka (C‑218/16, EU:C:2017:755, paragraph 59), and of 1 March 2018, Mahnkopf (C‑558/16, EU:C:2018:138, paragraph 36). 12 Chapter VI of Regulation No 650/2012, Articles 62 to 73. 13 Form IV in Annex 4 to Implementing Regulation No 1329/2014. Use of that form is not mandatory (judgment of 17 January 2019, Brisch, C‑102/18, EU:C:2019:34). 14 In other words, the effects of the certificate are determined by the EU legislature and, therefore, the question does not arise that is typical in the context of the movement of foreign certified decisions and documents, regarding whether the foreign ‘product’ should be treated in the same way as a national ‘product’ or whether the effects which the former has in the State of origin should be respected, irrespective of whether or not those effects are equivalent to the effects attributed to similar instruments in the receiving State. 15 For example, the certificate created by Article 53 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1), and that created by Article 9 of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ 2004 L 143, p. 15). The comparison must be construed in the sense that it does not prejudge identity as regards the nature, purpose or effects of the different European documents which go by the common name ‘certificate’. 16 Like the German Erbschein. 17 Article 70(1) and recital 72 of Regulation No 650/2012. 18 Recital 69 of Regulation No 650/2012. Use of the certificate is not preferred either. The decision whether to use the European certificate or the national certificate falls solely to the person seeking to use it. 19 Recital 71 of Regulation No 650/2012. 20 Article 70(3) of Regulation No 650/2012. 21 Article 71(3), Article 73(2) and recital 72 in fine of Regulation No 650/2012. However, other persons are not informed (see point 54 of this Opinion). 22 Article 70(3) of Regulation No 650/2012. 23 Written observations of the Austrian Government, paragraph 41 et seq., and of the Hungarian Government, paragraph 18. For legal commentators in favour of that position, see, inter alia, Schmitz, S.D., ‘Das Europäische Nachlasszeugnis’, RNotZ, 2017, p. 269, in particular p. 286. 24 That interpretation is advocated, in relation to access to the land register, by Schmidt, J., ‘Artikel 70 EuErbVO’, beck-online Grosskommentar, 2020, marg. 17.5; Perscha, A., ‘Art 70 EuErbVO. Beglaubigte Abschriften des Zeugnisses’, in Deixler-Hübner, A. and Schauer, M. (eds), Kommentar zur EU-Erbrechtsverordnung, Manz’sche Verlags- und Universitätsbuchhandlung, 2020, marg. 19; and, in general, by Dutta, A., ‘Artikel 69 EuErbVO’, MünchKomm zum BGB, vol. 11, 2020, marg. 4. In the instant case, the Commission and the Spanish and German Governments share this view (albeit with qualifications in the case of the German Government). 25 Except for Ireland and Denmark. 26 Written observations of the Commission, paragraph 22, and of the German Government, paragraph 28. 27 Written observations of the Commission, paragraph 25, and of the Spanish Government, paragraph 45. 28 In addition to which, the reference does not have proper legislative force because of its schematic position (in a recital). 29 Unlike persons to whom certified copies were submitted pursuant to Article 70(1). 30 Unless, when the payment is made or the transaction is entered into, they were already aware, through another source, of the questions concerning the certificate or were unaware of that fact due to gross negligence: see Article 69(3) and (4) in fine. 31 In legal literature, see, inter alia, the works cited in footnote 24 to this Opinion; see also the written observations of the German Government, paragraphs 25, 26 and 29, and the, albeit less developed, written observations of the Commission, paragraph 26. 32 Recitals 7 and 67 of Regulation No 650/2012. 33 A certificate issued in one Member State for use in another produces in the former the effects laid down in Regulation No 650/2012, pursuant to Article 62(3) thereof. 34 As I have already noted, Regulation No 650/2012 does not govern the extension procedure. It is logical to imagine that, in so far as the certificate has not been modified or withdrawn, if the issuing authority has no information suggesting otherwise, extension will be automatic. The matter remains, however, in the hands of the Member States, subject to the principles of equivalence and effectiveness. 35 Paragraph 26 of its written observations. 36 Usually, evidence of those changes will also have to be furnished. In that case, the party concerned may request a copy of the certificate in his or her capacity as a person with a ‘legitimate interest’ within the meaning of Article 70(1) of Regulation No 650/2012. 37 Point 41 of this Opinion. 38 Regulation No 650/2012 does not place any limits on that obligation. In my view, the authority is not released from the obligation at the end of the six-month period: there is no reason why the application for an extension of the validity of the copy should be consecutive to its expiry. 39 Once that fact has been communicated, the persons in whose favour the copy in force (that is, which has not yet expired) was issued should not wait until the end of the six-month period to apply for another, new copy, since the previous copy has been rendered invalid. 40 Although Regulation No 650/2012 is silent in that regard, it seems reasonable to associate an extension of the copy with the case where the certificate has not been modified and the application for a new copy with the case where the certificate has been modified. There is nothing to prevent the second option from being preferred even if the original has not been modified. 41 Unlike the situation where a certificate is issued for a period exceeding six months, which is possible but only ‘in exceptional, duly justified cases’, in accordance with Article 70(3) of Regulation No 650/2012. There are no indications concerning the cases covered by the derogation. In my view, the initial estimate that proceedings will last more than six months should not be such a case, because it is not unusual for the average duration of typical succession proceedings to exceed six months, particularly in some Member States. 42 Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession (COM(2009) 154 final). 43 See Crône, R., ‘Le certificat successoral européen’, in Khairallah, G. and Revillard, M., Perspectives du droit des successions européennes et internationales, Defrénois, Lextenso éditions, 2010, p. 155, in particular p. 168. See also the position of the Conseil des Notariats de l’Union Européenne, of 11 December 2009, on the subject of the Commission’s Proposal, available at http://www.notaries-of-europe.eu/index.php?pageID=4976, p. 6. The options considered included the creation of electronic certificates of succession and promoting the interconnection of national registers of documents relating to matters of succession: if the authorities had immediate access to the information, it would not be necessary to make the validity of copies subject to a time limit. The Commission has supported studies in that regard, the results of which can be viewed on the European e-Justice Portal (https://e-justice.europa.eu/content_general_information-166-es.do?init=true). At the present time, only a few national registers of European Certificates of Succession are interconnected.