Opinion of the Advocate General — ECLI:EU:C:2021:531
Date: 2021-07-01
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 of the proceedings: 
As the sole beneficiary under the contract of donation mortis causa, UM applied 
to the Austrian land registry court for registration of his title to the real estate in 
the land register. He submitted the proposed contract and declaration of 
acceptance dated 9 July/22 July 1975, death certificates for ZL and XU, a 
certificate of good standing from the tax authorities, the order of the District 
Court, Cologne, granting letters of administration, a copy of the valuation notice 
and an aerial photograph of the land. 
The judicial administrator of the court of first instance dismissed the application 
for registration in the land register due to a lack of documentary proof of 
compliance with all the conditions of the proposed contract. He assumed that 
Austrian law applied. 
The court of second instance upheld that decision. It found that the provisions of 
Regulation No 650/2012 were not applicable, as Austrian law was chosen in the 
proposed contract; that the applicant had to show satisfaction of the conditions 
precedent laid down in the contract in the form of a deed that could be entered in 
the land register; that the transfer based on the donation mortis causa was not to 
precede the completion of the house; and that satisfaction of that condition had not 
been proven. The court of second instance granted leave for an ordinary appeal on 
a point of law. [Or. 7] 
The applicant lodged an appeal against that judgment in the Supreme Court, by 
which he is pursuing his application for registration of title. 
The Supreme Administrative Court has decided to stay the proceedings on this 
appeal on a point of law and to refer questions of EU law to the Court of Justice of 
the European Union for a preliminary ruling that will enable judgment to be given. 
III. Provisions of EU law cited: 
1. Article 1 of Regulation No 650/2012 states: 
(1) This Regulation shall apply to succession to the estates of deceased persons. 
[…] 
(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); 
[…] 
UM 
 
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l) any recording in a register of rights in immovable or movable property, 
including the legal requirements for such recording, and the effects of recording 
or failing to record such rights in a register. 
2. Article 3 of Regulation No 650/2012 states: 
(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 [Or. 8] 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; 
b) ‘agreement as to succession’ means an agreement, 
including an agreement resulting from mutual wills, which, with or without 
consideration, creates, modifies or terminates rights to the future estate or estates 
of one or more persons party to the agreement; 
[…] 
d) ‘disposition of property upon death’ means a will, a joint will or an agreement 
as to succession; 
[…] 
3. Article 22 of Regulation No 650/2012 states with regard to the choice of 
applicable law: 
(1) A person may choose as the law to govern his succession as a whole the law 
of the State whose nationality he possesses at the time of making the choice or at 
the time of death. A person possessing multiple nationalities may choose the law 
of any of the States whose nationality he possesses at the time of making the 
choice or at the time of death. 
(2) The choice shall be made expressly in a declaration in the form of a 
disposition of property upon death or shall be demonstrated by the terms of such a 
disposition. 
[…] 
4. Article 25 of Regulation No 650/2012 states with regard to agreements as to 
succession: 
(1) An agreement as to succession regarding the succession of one person shall 
be governed, as regards its admissibility, its substantive validity and its binding 
effects between the parties, including the conditions for its dissolution, by the law 
which, under this Regulation, [Or. 9] would have been applicable to the 
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succession of that person if he had died on the day on which the agreement was 
concluded. 
[…] 
(3) Notwithstanding paragraphs 1 and 2, the parties may choose as the law to 
govern their agreement as to succession, as regards its admissibility, its 
substantive validity and its binding effects between the parties, including the 
conditions for its dissolution, the law which the person or one of the persons 
whose estate is involved could have chosen in accordance with Article 22 on the 
conditions set out therein. 
5. The transitional provisions in Article 83 of Regulation No 650/2012 state: 
(1) This Regulation shall apply to the succession of persons who die on or after 
17 August 2015. 
(2) Where the deceased had chosen the law applicable to his succession prior to 
17 August 2015, that choice shall be valid if it meets the conditions laid down in 
Chapter III or if it is valid in application of the rules of private international law 
which were in force, at the time the choice was made, in the State in which the 
deceased had his habitual residence or in any of the States whose nationality he 
possessed. 
(3) A disposition of property upon death made prior to 17 August 2015 shall be 
admissible and valid in substantive terms and as regards form if it meets the 
conditions laid down in Chapter III or if it is admissible and valid in substantive 
terms and as regards form in application of the rules of private international law 
which were in force, at the time the disposition was made, in the State in which the 
deceased had his habitual residence or in [Or. 10] any of the States whose 
nationality he possessed or in the Member State of the authority dealing with the 
succession. 
(4) If a disposition of property upon death was made prior to 17 August 2015 in 
accordance with the law which the deceased could have chosen in accordance 
with this Regulation, that law shall be deemed to have been chosen as the law 
applicable to the succession. 
IV. Provisions of national law cited: 
1. Paragraph 956 of the Allgemeines Bürgerliches Gesetzbuch (Austrian Civil 
Code, ‘the ABGB’), in the version applicable to this case prior to the entry into 
force of the 2015 Erbrechtsänderungsgesetz (Austrian Law Amending Inheritance 
Rights, Federal Law Gazette I 2015/87), provided as follows: 
A donation to be completed only after the donor’s death is valid as a legacy 
subject to compliance with the prescribed formalities. It can only be regarded as a 
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contract if it is accepted by the donee, the donor has expressly renounced the 
power to revoke it and a written deed of donation is handed to the donee. 
Paragraph 1(d) of the Notariatsaktsgesetz (Austrian Law on Notarised Acts, ‘the 
NotAktG’) states that a contract of donation without actual transfer must be 
recorded in a notarised act. 
2. The relevant provisions of the Grundbuchgesetz (Austrian Law on the Land 
Register, ‘the GBG’) read as follows: 
Paragraph 26: 
(1) Registrations and preliminary remarks can only be authorised based on a 
valid deed prepared in the prescribed form. [Or. 11] 
(2) Deeds concerning the acquisition or variation of a right in rem must include 
a valid legal reason. 
3. The relevant provisions of the Rechtspflegergesetz (Austrian Law on 
Judicial Administrators, ‘the RPflG’) read as follows: 
Paragraph 2: 
A court officer may be appointed as a judicial administrator for one or more of 
the following fields of work: 
[…] 
3. Land register- and shipping register-related matters; 
[…] 
Paragraph 16 
(1) […] 
(2) The following shall always remain the preserve of the judge: 
[…] 
6. Decisions in cases in which foreign law applies. 
V. Reasons for the questions referred: 
1.1 According to national case-law, the Austrian Land Register Court is required 
to verify the form and content of documents presented pursuant to Paragraph 26 of 
the GBG in order to substantiate a record in the land register. If a right is 
conferred under a contract conditionally and consent to the registration is granted 
only subject to that condition, documentary evidence of its satisfaction must also 
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be provided […]. According to the RPflG, judicial administrators have the 
functional authority to conduct that verification. However, according to national 
case-law […], where a provision of foreign law has to be taken into account, the 
reservation in favour of the judge under Paragraph 16(2), point 6, of the RPflG 
takes effect. If a judicial administrator [Or. 12] rather than the judge rules on such 
a case, the order and the proceedings culminating in it must be annulled and the 
judge must refer the case back to the court of first instance for a new decision. 
Any such procedural defect must be addressed, if not claimed in an appeal, of the 
court’s own motion before the proceedings are closed with a final order […]. 
1.2 The court must always explore and apply foreign law of its own motion if 
there is evidence in the file to suggest that such law may need to be applied […]. 
The question of the validity of the choice of Austrian law made in the contract of 
donation mortis causa and the application of Regulation No 650/2012 to that type 
of contract are therefore preliminary questions to which the referring court 
requires an answer in order to know whether the judicial administrator in this case 
had the necessary functional authority. 
2. National case-law on contracts for donations mortis causa under 
Paragraph 956 of the ABGB, in the version prior to the 2015 Law Amending 
Inheritance Rights, provided for the donor to retain enjoyment of the donated 
property up to his death […]. In the case of real estate, the donee had to register 
title in order to acquire ownership and could apply to do so on the basis of the 
contract of donation bearing a declaration of conveyance and the death certificate, 
without the need for a separate order from the probate court. In order for a 
contract of donation mortis causa to be valid, the donation had to be accepted by 
the donee, the donor had to expressly waive its revocation and a [Or. 13] 
notarised deed had to be executed. The donation merely established a right having 
the character of an obligation to be performed only after the donor’s death ([…] 
‘legacy solution’). According to national case-law, a clause in the contract for the 
donee’s benefit prohibiting encumbrance and disposal replaced the express waiver 
of revocation. The documents presented to the land registry court in this case 
suggest that a contract of donation mortis causa for the applicant’s benefit was 
executed in accordance with the criteria of Austrian law. 
3.1 Regulation No 650/2012 in itself only regulates succession to the estate of a 
deceased person, not transactions inter vivos. However, a particular feature of a 
donation mortis causa under Austrian law is that it does not bring about a transfer 
of property inter vivos that would affect and encumber the donor in his lifetime, 
unless, which is not the case here, it is completed prior to the deceased’s death. 
The property was transferred only after his death and affects the estate or the 
heirs. As the definitions in Article 3(1)(b) and (d) of Regulation No 650/2012 also 
list an agreement as to succession as an agreement which, with or without 
consideration, creates rights to the future estate as a disposition of property upon 
death, the referring court finds that the question as to whether a donation mortis 
causa is an example of such an agreement requires interpretation. 
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3.2 Most German commentaries take the view that a donation mortis causa that 
does not produce any [Or. 14] effects in rem during the donor’s lifetime falls 
under inheritance law and thus within the substantive scope of Regulation 
No 650/2012 […]. 
3.3 The referring court considers that there are stronger arguments for regarding 
a contract of donation mortis causa as an agreement as to succession within the 
meaning of Regulation No 650/2012, irrespective of whether or not partial 
payment was agreed. Even if, on the basis on the transaction inter vivos, the asset 
named therein is of itself to be transferred to the donee after the donor’s death 
without any intervention by the probate court, it still belongs to the future estate 
within the meaning of Article 3(1)(b) of Regulation No 650/2012, even under the 
‘legacy solution’ espoused under Austrian law. The referring court considers that 
it would be more in keeping with the need for a narrow interpretation of 
exemptions and the character of the specific exemptions named in Article 1(2)(g) 
of Regulation No 650/2012 to regard the disposition of part of an estate under a 
contract of donation mortis causa as being covered by the provisions of 
Regulation No 650/2012, especially where the donee’s claim to transfer of 
ownership [Or. 15], like that of a legatee, arises only after the donor’s death. It is 
the referring court’s opinion that the exemption enacted in Article 1(2)(l) of 
Regulation No 650/2012 does not apply, as the question at issue concerns 
assessment of the contract under conflict-of-law rules, on which the assessment of 
the functional competence of the decision-making body depends, not registration 
law. 
4. The lower courts applied Austrian substantive law based on the choice of 
law made by the parties to the contract. Regulation No 650/2012, which should 
apply here based on the time of death of the donor, includes transitional provisions 
governing a choice of law made prior to 17 August 2015, whereby that choice is 
valid if it meets the conditions laid down in Chapter III or if it is valid in 
application of the rules of private international law which were in force, at the 
time the choice was made, in the State in which the deceased had his habitual 
residence or in any of the States whose nationality he possessed. As the donor was 
already a German national at the time, remained so up to the time of his death and 
was resident in Germany both when the contract was executed and at the time of 
death, Article 83(2) of Regulation No 650/2012 suggests that the invalidity of the 
choice of law made in the contact of donation mortis causa depends on Austrian 
law. Article 83(2) of Regulation No 650/2012 does not refer expressly to an 
agreement as to succession, but it does refer to succession to the estates of 
deceased persons. Article 83(3) of Regulation No 650/2012 addresses the 
admissibility and substantive [Or. 16] and formal validity of a disposition of 
property upon death made prior to 17 August 2015, not the choice of law. 
Although the referring court considers that Article 83(2) of Regulation 
No 650/2012 should also apply to a choice of law made in an ‘agreement as to 
succession’, it does not consider that interpretation to be wholly unambiguous. 
However, if the choice of law is inadmissible even under the provisions of 
Chapter III of Regulation No 650/2012, it could only be valid where Article 83(2) 
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and (3) are applicable if it is valid under the provisions of German private 
international law, that is under German domestic law. However, the application of 
foreign conflict-of-law rules is also the preserve of the judge under the Austrian 
RPflG. 
[…] [procedural law matters] 
Supreme Court, 
Vienna, 27 May 2020 
[…] 
[President’s name, procedural law matters]