Opinion of the Advocate General — ECLI:EU:C:2021:977
Date: 2021-12-02
Language of the case: French
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: France

Anonymised version 
Translation  C-645/20 - 1 
Case C-645/20 
Request for a preliminary ruling 
Date lodged: 
1 December 2020 
Referring court: 
Cour de cassation (Court of Cassation) (France) 
Date of the decision to refer: 
18 November 2020 
Applicant:  
VA 
ZA 
Defendant: 
TP 
  
[...] 
Judgment of the Cour de cassation (Court of Cassation) (Civil Chamber One) 
 of 18 November 2020 
1/ VA [...] [particulars] 
2/ ZA [...] [particulars] 
lodged appeal No Y 19-15.438 against the judgment delivered on 21 February 
2019 by the cour d’appel de Versailles (Court of Appeal, Versailles) (France) 
(Chamber Fourteen), in proceedings between themselves and TP [...] [particulars], 
defendant on appeal. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 18. 11. 2020 – CASE C-645/20 
 
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In support of their appeal the applicants rely on the single ground of appeal 
annexed to this judgment. 
[...] 
[...] [Or. 2] [...] 
[...] 
[considerations relating to procedure and the composition of the court] 
Facts and proceedings 
1 According to the contested judgment [...], XA, who had French nationality, died in 
France [...], leaving his wife, TP, and his three children from his first marriage, 
YA, ZA and VA (the A siblings). 
2 The A siblings brought proceedings against TP before the President of a regional 
court ruling in interlocutory proceedings, applying for the appointment of a person 
to administer the succession, claiming that the French courts had jurisdiction 
under Article 4 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 on the grounds that XA had his habitual residence in France at the 
time of death. 
3 YA having died [...], his brother and sister stated that they also acted as his 
successors in title. 
Analysis of the ground of appeal 
The first three parts of the annexed ground of appeal 
4 Under Article 1014(2) of the code de procédure civile (the French Code of Civil 
Procedure, a court is not required to rule by a specially reasoned decision on 
claims which are manifestly not such as to give rise to an appeal. 
The fourth part of the ground of appeal 
Description of the ground of appeal 
5 The A siblings allege that the judgment errs in finding that the French courts do 
not have jurisdiction to rule on XA’s succession as a whole and on the application 
to appoint a person to administer the succession [Or. 3], given that ‘where the 
habitual residence of the deceased at the time of death is not located in a Member 
V A AND Z A 
 
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State, the courts of a Member State in which assets of the estate are located shall 
nevertheless have subsidiary jurisdiction to rule on the succession as a whole in so 
far as the deceased had the nationality of that Member State at the time of death; 
that this provision, laid down by Regulation No 650/2012 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, is a public policy (ordre 
public) provision and must be examined by the court of its own motion; that it is 
common ground in the present case that XA had French nationality and owned 
property in France and that the cour d’appel (Court of Appeal) (France) should 
therefore have determined whether it had subsidiary jurisdiction; and that by 
failing to do so, the cour d’appel (Court of Appeal) infringed Article 10 of 
Regulation No 650/2012 of 4 July 2012.’ 
Response of the Cour de cassation (Court of Cassation) (France) 
6 Under Article 10(1)(a) 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, in whose adoption the United Kingdom did not take 
part, where the habitual residence of the deceased at the time of death is not 
located in a Member State, the courts of a Member State in which assets of the 
estate are located shall nevertheless have subsidiary jurisdiction to rule on the 
succession as a whole in so far as the deceased had the nationality of that Member 
State at the time of death. 
7 The A siblings did not invoke that provision before the cour d’appel de Versailles 
(Court of Appeal, Versailles) which, after finding that the deceased had his 
habitual residence in the United Kingdom, held that, under Article 4 of the 
regulation, the French court did not have jurisdiction to rule on his succession or 
to appoint a person to administer it. 
8 The matter to be determined is therefore whether the cour d’appel (Court of 
Appeal), which found that XA had French nationality and owned property in 
France, was bound to examine of its own motion whether it had subsidiary 
jurisdiction laid down in Article 10 of the regulation. 
9 Although under Article 15 of the regulation a court of a Member State seised of a 
succession matter over which it has no jurisdiction under that regulation must 
declare of its own motion that it has no jurisdiction, that article does not indicate 
whether it is incumbent on that court to verify as a preliminary matter not only 
that the conditions are not satisfied for it to have principal jurisdiction (Article 4) 
but that nor are the conditions satisfied for its subsidiary jurisdiction (Articles 10 
and 11) [Or. 4]. The regulation does not indicate whether subsidiary jurisdiction is 
optional. 
REQUEST FOR A PRELIMINARY RULING OF 18. 11. 2020 – CASE C-645/20 
 
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10 The fact that Regulation (EU) No 650/2012 establishes a comprehensive system 
which resolves all international conflicts of jurisdiction arising from succession 
disputes brought before the courts of the Member States and therefore replaces all 
the solutions applied previously by those courts suggests that a court has a duty to 
determine of its own motion whether it has jurisdiction under Article 10 where the 
deceased did not have his habitual residence in a Member State at the time of 
death. The regulation sets up a system for resolving conflicts of jurisdiction which 
the courts of the Member States must apply of their own motion wherever the 
subject matter of the dispute falls within the regulation. The subsidiary jurisdiction 
under Article 10 of the regulation is intended to lay down grounds of jurisdiction 
which apply where no Member State court appears to have jurisdiction under the 
general rule set out in Article 4. It would therefore be contrary to logic if, after 
applying the regulation of their own motion in order to determine a conflict of 
jurisdiction, the courts were able to decline jurisdiction in favour of a third State 
solely on the basis of Article 4, with no requirement to verify as a preliminary 
matter whether they had subsidiary jurisdiction on the basis of Article 10. The 
more congruent solution, in contrast, would be for the courts seised to be required 
to examine, including of their own motion, all possible grounds of jurisdiction, 
provided no other Member State has jurisdiction. It is therefore inappropriate to 
draw a distinction in the courts’ obligation to determine of their own motion 
whether they have jurisdiction, according to whether that jurisdiction is under 
Article 4 or under Article 10. 
11 However, the rule in Article 10, which the regulation presents as subsidiary, has 
the effect of derogating from the principle of the unity of jurisdiction and 
applicable law that informs the regulation, recital 23 of which emphasises the 
need ‘to ensure the proper administration of justice within the Union and to ensure 
that a genuine connecting factor exists between the succession and the Member 
State in which jurisdiction is exercised’, because where a court in a Member State 
where the deceased did not have his habitual [residence] finds itself to have 
jurisdiction on the basis of Article 10, that court will nevertheless have to apply 
the law of the State of habitual residence, unless it is apparent from all the 
circumstances of the case that, at the time of death, the deceased had manifestly 
closer links with another State (Article 21 of the regulation) or had expressly 
chosen the law of another State (Article 22). It therefore seems unlikely that the 
courts can have an obligation to invoke a rule of jurisdiction described as 
subsidiary and which derogates from the general principles that underpin the 
regulation, even if the parties do not invoke that rule. Moreover, although the 
regulation expressly provides in Article 15 that a court that does not have 
jurisdiction must declare of its own motion that it has no jurisdiction, it contains 
no equivalent provision where a court does have jurisdiction. There is nothing 
[Or. 5] in the regulation to suggest that a Member State court, hearing a matter 
under Article 4, must of its own motion examine whether it has jurisdiction under 
another rule, in particular under Article 10 which establishes only subsidiary 
jurisdiction. That asymmetry arises because the objective of the rule under 
Article 15 is to facilitate the recognition and enforcement of decisions made by a 
court which has found itself to have jurisdiction and to prevent it from being 
V A AND Z A 
 
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argued subsequently in another Member State that the court did not in fact have 
jurisdiction. Lastly, for the purposes of the regulation the rules on successions 
concern disposable rights, since the regulation allows the parties to agree 
jurisdiction by means of a choice-of-court agreement (Article 5) and retains the 
ability of a court to declare itself to have jurisdiction on the basis of appearance 
alone (Article 9). It would therefore defy logic if the court were required to 
examine a subsidiary ground of jurisdiction that the parties did not propose to 
invoke. 
12 There is a reasonable doubt as to the answer that should be given to that question, 
which is a determining factor in resolution of the dispute before the Cour de 
cassation (Court of Cassation). 
13 It is therefore appropriate to refer to the Court of Justice of the European Union 
under Article 267 of the Treaty on the Functioning of the European Union and to 
stay the proceedings until that Court has given its ruling. 
ON THOSE GROUNDS, the Cour de cassation (Court of Cassation) (France) 
hereby: 
Refers the following question to the Court of Justice of the European Union: 
‘Must Article 10(1)(a) 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 be interpreted as meaning that, where the habitual 
residence of the deceased at the time of death is not located in a Member State, the 
court of a Member State in which the deceased had not established his habitual 
residence but which finds that the deceased had the nationality of that State and 
held assets in it must, of its own motion, examine whether it has subsidiary 
jurisdiction under that article?’  
[...] [Or. 6] 
[...] 
[...] [considerations relating to procedure] [Or. 7] 
[...] 
Ground in law produced by [...] SA and ZA. 
[...] 
[Or. 8] 
[...] 
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[...] [Or. 9] [...]  
[...] 
[...] [Or. 10] [...] 
[...] 
[...] [Or. 11] 
[...] 
[...] [Or. 12] [...] 
[...] 
[...] [Or. 13] [...] 
[...] 
[reproduction of the fundamentally factual reasoning of the contested judgment, 
on conclusion of which the cour d’appel (Court of Appeal) (France) found it not to 
have been demonstrated that XA had decided to move his habitual residence to 
France and that the French courts therefore do not have jurisdiction to rule on 
XA’s succession as a whole or on the application to appoint a person to administer 
the succession]  
[...] 
[...] [Or. 14] [...] 
[...] 
[description of the first three parts of the ground of appeal, which are rejected in 
paragraph 4 of the order for reference] 
[...] 
[description of the fourth part of the ground of appeal, reproduced in quotation 
marks in paragraph 5 of the order for reference under the heading ‘Description of 
the ground of appeal’]