KG Berlin; 2016-10-25; 6 W 80/16
Decision by national courts in the field of European Union law — ECLI:DE:KG:2016:1025.6W80.16.0A
Date: 2016-10-25
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE1025(52)_ENG_SUMJURE
JURE summary
JURE summary
The Kammergericht Berlin (hereinafter ‘the Court of Appeal’) dealt with a case concerning the interpretation of the Succession Regulation (1) regarding the inclusion of a part of the inheritance of a surviving spouse in the European certificate of succession.
The subject-matter of the dispute of the court proceeding conducted by the Amtsgericht Schöneberg (hereinafter ‘the Court of First Instance’) was the issuance of a European certificate of succession based on statutory succession. The certificate designated both participants as heirs with equal shares under the application of German law.
Upon his death, the deceased person was married to participant 1 (hereinafter ‘the plaintiff’) and lived with her in the statutory matrimonial property regime of accrued gains under German law. Participant 2 was the sole common child of the deceased and the plaintiff as well as the sole child of the deceased. The inheritance after the deceased person also included a 50 % co-ownership share in a real-estate property in Sweden.
The Court of First Instance dismissed the application of the plaintiff for the issuance of a European certificate of succession, stating that the part of the inheritance of the plaintiff could not be included in the certificate as the application was based on Article 1371(1) BGB (2) and the respective matrimonial property regime did not fall under the scope of the Succession Regulation. The appeal lodged by the plaintiff against the decision was found admissible.
With regard to the fact that it was unclear whether the mentioned provision of BGB was to be deemed under Article 1(1) of the Succession Regulation to be of inheritance or a property nature, the Court of Appeal stayed the proceedings and submitted the following questions to the Court of Justice of the European Union under Article 267(2) of the Consolidated version of TFEU (3).
1.) Is Article 1(1) of the Succession Regulation to be interpreted in such a way that the scope of the Succession Regulation also includes provisions of national law regarding a property regime which, as Article 1371(1) BGB, provides for the increase of the statutory part of the inheritance of the surviving spouse after the death of a spouse?
2.) If the answer to question 1.) is negative, are Article 68(i) and Article 67(1) of the Succession Regulation to be interpreted in such a way that the part of the inheritance of the surviving spouse can be included in the European certificate of succession even if a fraction thereof results from an increase due to a matrimonial property regime such as under Article 1371(1) BGB?
(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) Bürgerliches Gesetzbuch (the German Civil Code).
(3) Consolidated version Treaty on the Functioning of the European Union.