Judgment;Abstract — ECLI:EU:C:2026:251
Date: 2026-03-26
Language of the case: German
Court formation: Fourth Chamber
Procedure: Reference for a preliminary ruling
Origin: Austria

Anonymised version 
Translation C-618/24 – 1 
Case C-618/24 [Isergartler] i 
Request for a preliminary ruling 
Date lodged: 
24 September 2024 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
10 September 2024 
Appellants on a point of law and defendants: 
XK 
TR 
VQ 
Respondent on a point of law and applicant: 
SM 
  
In the dispute between the applicant, SM, […], Zell am See, [(Austria),] and the 
defendants 1. XK, […], Bad Schwalbach, Germany, 2. TR, […], Berlin, Germany, 
and 3. VQ, […], Munich, Germany, concerning an amount of EUR 57 200 plus 
the applicable interest and costs, regarding the defendants’ appeal on a point of 
law against the order of the Oberlandesgericht Linz (Higher Regional Court, Linz, 
Austria), the court of second instance, dated 12 June 2004, file reference GZ 1 
R 62/24d-18, which, following an appeal by the applicant, had amended the order 
of the Landesgericht Salzburg (Regional Court, Salzburg, Austria) dated 24 April 
2024, file reference GZ 1 Cg 81/23p-11, in the version set out in the 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 10. 9. 2024 – CASE C-618/24 
 
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supplementary order of 30 April 2024, file reference GZ 1 Cg 81/23p-13, the 
Oberster Gerichtshof (Supreme Court, Austria) has made the following 
O r d e r: 
1. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
Is Article 4 of Regulation No 650/2012 to be interpreted as meaning that there is a 
matter of ‘succession’ if a claim to a care legacy under Article 677 of the 
Allgemeines Bürgerliches Gesetzbuch (Austrian Civil Code, ‘the ABGB’) is 
relied upon? 
2. […] [Stay of proceedings] 
G r o u n d s 
1. Facts of the case 
1 The applicant is the former partner of the deceased, who was habitually resident in 
Austria until her death in 2021. He provided care for the deceased in the last three 
years of her life. The estate of the deceased was definitively assigned to the 
defendants by order of the Bezirksgericht Zell am See (District Court, Zell am 
See, Austria) 
2. Submissions of the parties 
2 The applicant claims payment from the defendants of the sum of EUR 57 200 as 
his statutory care legacy (Paragraph 677 of the Allgemeines Bürgerliches 
Gesetzbuch (Austrian Civil Code, ‘the ABGB’). The international jurisdiction of 
the Austrian courts is in dispute. 
3 The applicant relies on Article 4 of Regulation (EU) No 650/2012 (‘the 
Regulation’). He argues that the claim to a care legacy is akin to the claim to a 
reserved share of an estate and is therefore to be classified as a succession claim 
within the meaning of the Regulation. 
4 The defendants contend that the action should be dismissed on the ground of lack 
of international jurisdiction, ‘or ratione materiae and ratione loci’, because the 
claim made does not derive from the law of succession. The claim, they assert, 
constitutes compensation for the care provided by the claimant during the lifetime 
of the deceased and should therefore be regarded as a claim under the law of 
obligations. 
ISERGARTLER 
 
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3. Procedure to date 
5 The court of first instance dismissed the action on the ground of lack of 
international jurisdiction. Although the care legacy was formally conceived as a 
statutory legacy, the court ruled, in substance it amounted to compensation for 
care provided during the lifetime of the deceased. The care legacy, it held, must 
therefore be classified as a claim under the law of obligations and did not fall 
within the scope of the Regulation. 
6 The court of second instance dismissed the plea of lack of international 
jurisdiction. It held that the scope of the Regulation, which must be assessed 
autonomously and must be interpreted broadly, extended to all civil-law aspects of 
succession. A care legacy, it ruled, was a statutory legacy similar in character to a 
reserved share of an estate. It was not decisive, the court held, whether the ‘basis’ 
for the existence of the entitlement had already been established during the 
lifetime of the deceased. 
7 The Supreme Court must now adjudicate on an appeal on a point of law brought 
by the defendants, who seek reinstatement of the decision of the court of first 
instance dismissing the action. It is systemically incorrect, they argue, to classify 
the rules governing the care legacy as part of the law of succession. They contend 
that, in substance, it is a claim which is derived from an act inter vivos, which 
arises only on the death of the deceased and which is comparable to a claim based 
on unjust enrichment. 
4. Relevant provisions 
8 4.1. Regulation (EU) No 650/2012 on 
jurisdiction, applicable law, recognition and enforcement of decisions and 
acceptance and enforcement of authentic instruments in matters of succession and 
the on the creation of a European Certificate of Succession reads as follows 
(extracts): 
‘Recital 9 
The scope of this Regulation should include all civil-law aspects of succession to 
the estate of a deceased person, namely all forms of transfer of assets, rights and 
obligations by reason of death, whether by way of a voluntary transfer under a 
disposition of property upon death or a transfer through intestate succession. […] 
Article 1 
Scope 
1. This Regulation shall apply to succession to the estates of deceased persons. It 
shall not apply to revenue, customs or administrative matters. 
REQUEST FOR A PRELIMINARY RULING OF 10. 9. 2024 – CASE C-618/24 
 
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2. The following shall be excluded from the scope of this Regulation: […] 
(g) property rights, interests and assets created or transferred otherwise than by 
succession, for instance by way of gifts, joint ownership with a right of 
survivorship, pension plans, insurance contracts and arrangements of a similar 
nature, without prejudice to point (i) of Article 23(2); […] 
Article 3 
Definitions 
1. For the purposes of this Regulation: 
(a) “succession” means succession to the estate of a deceased person and covers 
all forms of transfer of assets, rights and obligations by reason of death, whether 
by way of a voluntary transfer under a disposition of property upon death or a 
transfer through intestate succession; […] 
Article 4 
General jurisdiction 
The courts of the Member State in which the deceased had his habitual residence 
at the time of death shall have jurisdiction to rule on the succession as a whole. 
[…] 
Article 23 
The scope of the applicable law 
1. The law determined pursuant to Article 21 or Article 22 shall govern the 
succession as a whole. 
2. That law shall govern in particular: […] 
(g) liability for the debts liability for the debts under the succession; 
(h) the disposable part of the estate, the reserved shares and other restrictions on 
the disposal of property upon death as well as claims which persons close to the 
deceased may have against the estate or the heirs; […]’ 
9 4.2. The following provisions are included in Part 11 of the ABGB (‘Legacies’): 
‘Care legacy 
Paragraph 677(1) A person close to the deceased who cared for the deceased 
for at least six months during the three years preceding his or her death, to an 
extent which is not merely minimal, shall be entitled to a statutory legacy, unless a 
consideration has been granted or remuneration agreed upon. 
ISERGARTLER 
 
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(2) ‘Care’ means any activity which serves to provide a person in need of care 
as far as possible with the necessary attention and assistance and to enhance that 
person’s opportunity to lead an autonomous and fulfilling life. 
(3) ‘Persons close to the deceased’ means persons from the circle of legal heirs 
of the deceased, their spouses, registered partners or cohabiting partners and their 
children as well as the cohabiting partner of the deceased and his or her children. 
Paragraph 678(1) The amount of the legacy shall be determined by the nature, 
duration and extent of the care provision. 
(2) In any event, the legacy shall be due in addition to the reserved share or to 
other benefits from the estate unless the deceased has otherwise disposed. The 
legacy may be withdrawn only where there is a ground for disinheritance.’ 
5. Reasons for the request for a preliminary ruling 
10 5.1. The terms of a provision of EU law must normally be given an autonomous 
and uniform interpretation throughout the European Union; that interpretation 
must take into account not only its wording but also its context and the objective 
pursued by the legislation in question (Court of Justice, judgment of 1 March 
2018, Case C-558/16, Mahnkopf, paragraph 32). In order to contribute to the 
efficient resolution of disputes relating to a succession, the Regulation seeks to 
favour a uniform treatment of the succession. An interpretation of the provisions 
of that regulation which would lead to a fragmentation of that succession would 
be incompatible with the objectives of that regulation (Court of Justice, judgment 
of 7 April 2022, Case C-645/20, paragraph 37 and the case-law cited). The 
Regulation seeks to establish a uniform regime applicable to all civil-law aspects 
of a succession to the estate of a deceased person with cross-border implications 
and, in particular, to all forms of transfer of assets by reason of death. The 
exceptions to the applicability of the Regulation set out in Article 1(2) of the 
Regulation must therefore be interpreted strictly (Court of Justice, judgment of 
9 September 2021, Case C-277/20, UM, paragraphs 33-34). 
11 Applying these principles, the Court has already ruled that a donation mortis 
causa falls within the scope of the Regulation (Case C-277/20, UM). Under the 
case-law of the Court, the provision of Paragraph 1371(1) of the Bürgerliches 
Gesetzbuch (German Civil Code, ‘the BGB’) whereby, if a marital community of 
property ends by reason of a spouse’s death, the equalisation of the accrued gains 
is effected by the intestate portion of the surviving spouse being increased by one 
quarter of the inheritance falls within the scope of the Regulation. The decisive 
point here is that the main purpose of the provision is not the division of assets 
between the spouses but rather determination of the size of the share of the estate 
to be allocated to the surviving spouse. Paragraph 1371(1) of the BGB concerns 
not the division of assets between spouses but the issue of the rights of the 
surviving spouse in relation to assets already counted as part of the estate (Case 
C-558/16, Mahnkopf, paragraph 40). 
REQUEST FOR A PRELIMINARY RULING OF 10. 9. 2024 – CASE C-618/24 
 
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12 5.2. In decision 2 Ob 63/21k (ECLI:AT:OGH0002:2021:E132373), the Supreme 
Court made the following fundamental observations regarding care legacies: 
13 According to the preparatory documents for the relevant legislative provisions 
(ErläutRV 688 BlgNR 25. GP 16), the care legacy is a statutory legacy which is 
independent of any testamentary disposition on the part of the deceased person 
who had been receiving care. It has a Janus-faced legal nature, positioned between 
that of a legacy – as which the legislature has expressly classified it – and that of a 
right to a reserved share of the estate, in that it cannot be withdrawn unless there is 
a ground for disinheritance. Since it serves as compensation for certain services, it 
is also closely related to claims based on a contract or on unjust enrichment. The 
care legacy is at least similar in character to a reserved share, because it is subject 
to protection of acquired rights (no withdrawal unless there is a ground for 
disinheritance) and may be due in addition to the reserved share of an estate. In 
any event, an effective disclaimer of inheritance before or after the death of the 
testator is possible only if the particular formalities laid down in Paragraph 551 of 
the ABGB are observed. Accordingly, the construct of the care legacy for which 
the legislature finally opted and the chosen wording ultimately lead to restriction 
of the deceased person’s right to self-determination or individual freedom 
(paragraphs 24 to 26 and 35 to 37). 
14 5.3. In legal literature, it is a matter of dispute whether, in the light of the 
foregoing, a claim to a care legacy falls within the scope of the Regulation. 
15 5.3.1. According to Gregor Christandl, in Attila Fenyves, Ferdinand Kerschner 
and Andreas Vonkilch (eds), Klang, Großkommentar zum ABGB, third edition (on 
Paragraphs 677 and 678 of the ABGB, paragraph 52), the care legacy is a legal 
concept from the realm of succession which is extensively interwoven with the 
general scheme of the law of succession, in that the provisions on capacity to 
inherit and waiver of inheritance rights are applicable by analogy, a disclaimer is 
possible – as in the case of a disclaimer of inheritance – only if particular 
formalities are observed, and a care legacy cannot be withdrawn unless there are 
grounds for disinheritance. Although in functional terms the care legacy amounts 
to compensation for the provision of care modelled on the law of unjust 
enrichment, its predominant elements come from the law of succession. If liability 
for the debts under the succession is already subject to the applicable law 
(Article 23(2)(g) of the Regulation), the same must apply, a fortiori, to a debt 
which arises from the legal basis of a succession claim and which, in functional 
terms, is very closely related to a debt under the succession (see also Simon 
Jetzinger, Das Pflegevermächtnis im Gefüge des Erb-, Schuld- und Sozialrechts 
(2022), p. 243 et seq., and Claus Spruzina and Christoph Hofer, in Andreras 
Kletečka and Martin Schauer (eds), ABGB-ON: Kommentar zum Allgemeinen 
bürgerlichen Gesetzbuch, edition 1.03 (on Paragraph 677 of the ABGB, 
paragraph 21). Gregor Christandl (in Simon Laimer (ed.), IPR Praxiskommentar 
(on Article 23 of the Regulation, paragraph 36)) cites the design of the care legacy 
as a claim akin to a reserved share as an argument for its classification within the 
law of succession. 
ISERGARTLER 
 
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16 5.3.2. Astrid Deixler-Hübner and Martin Schauer, in Deixler-Hübner and Schauer 
(eds), EuErbVO: Kommentar zur EU-Erbrechtsverordnung, second edition (on 
Article 3 of the Regulation, paragraph 14) proceed from the principle that the legal 
basis of the right to a care legacy does not lie in succession to the estate of a 
deceased person, because it amounts to compensation for services rendered by the 
beneficiary to the deceased during his or her lifetime. 
17 Luca Baldovini (‘Die kollisionsrechtliche Qualifikation des 
Pflegevermächtnisses’, in JEV 2019, p. 48, and Das Pflegevermächtnis (2020), 
p. 142 et seq.), stresses that, from a formal perspective, the care legacy is a 
statutory legacy but that, in functional terms, the predominant character of the 
right is that of an instrument of the law of obligations which serves to provide 
compensation for the provision of care. The death itself is only the occasion for 
claiming the compensation, not the basis of the claim. Accordingly, it is not a 
matter of ‘succession to the estate of a deceased person’. Under the Rome II 
Regulation, the claim must therefore concern an obligation arising out of unjust 
enrichment It should be borne in mind that, in certain conditions, an entitled 
person as defined in Paragraph 677(3) of the ABGB may, in the alternative, base 
his or her claim wholly or partly on the law of unjust enrichment (condictio causa 
data causa non secuta). Whatever the chosen basis of the claim, however, there is 
no objective justification for a divergent classification for conflict-of-law 
purposes. 
18 5.4. The Supreme Court is more inclined to take the view that the applicant’s 
claim, based on the care legacy for which Article 677 of the ABGB provides, 
should be classified as a matter of ‘succession’ within the meaning of Article 4 of 
the Regulation. The decisive factors in that regard are the succession implications 
of the legal concept, especially its conception as a ‘special reserved share’ 
(Matthias Neumayr, in Helmut Koziol, Peter Bydlinski and Raimund Bollenberger 
(eds), ABGB Kurzkommentar (‘the KBB’), seventh edition (on Paragraphs 677-
678 of the ABGB, paragraph 1)) and the broad interpretation of the concept of 
‘succession to the estate of a deceased person’ which has been advocated by the 
Court of Justice. A different interpretation could also be adopted, however, on 
account of the evident kinship to a claim based on unjust enrichment and the fact 
that the ultimate purpose of the legal concept is to obtain compensation for care 
provided during the lifetime of the deceased. For the foregoing reasons, the 
Supreme Court, as the court of final instance, is required to make an order for 
reference. 
6. Stay of proceedings 
[…] 
Supreme Court 
Vienna, 10 September 2024 
REQUEST FOR A PRELIMINARY RULING OF 10. 9. 2024 – CASE C-618/24 
 
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