Opinion of the Advocate General — ECLI:EU:C:2023:247
Date: 2023-03-23
Language of the case: Polish
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-21/22 – 1 
Case C-21/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
7 January 2022 
Referring court: 
Sąd Okręgowy w Opolu (Poland) 
Date of the decision to refer: 
10 December 2021 
Applicant: 
OP 
  
Subject matter of the main proceedings  
The subject matter of the case in the main proceedings is the examination of an 
appeal lodged by OP against the refusal by a notary acting as a deputy for another 
notary (zastępca notarialny) and practising in Poland, to perform a notarial act, 
namely to draw up, on behalf of a Ukrainian national, a notarial will which would 
contain a clause stipulating that the law applicable to all matters relating to the 
succession and modification of the legal order of succession would be Ukrainian 
law 
Subject matter and legal basis of the request 
The referring body submits two questions. The first question seeks a 
determination as to whether Article 22 of Regulation No 650/2012, which entitles 
a testator/testatrix to choose the law of his or her native country as the law by 
which all matters relating to succession are to be governed, also applies to third-
country nationals. The second question concerns the determination – in the case 
where a bilateral agreement is in force between a Member State and a third 
country, which agreement does not govern the choice of law but indicates the 
applicable law – of the mutual relationship between that agreement and the 
regulation and the effect of that hierarchy of norms on the admissibility of a 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-21/22 
 
2  
choice of law made pursuant to Article 22, in conjunction with Article 75, of the 
regulation by a national of the third country concerned. 
Question referred for a preliminary ruling 
1. Must Article 22 [of Regulation No 650/2012] be interpreted as meaning that 
a person who is not a citizen of the European Union is entitled to choose the 
law of his or her native country as the law governing all matters relating to 
succession? 
2. Must Article 75, in conjunction with Article 22, of Regulation No 650/2012 
be interpreted as meaning that, in the case where a bilateral agreement 
between a Member State and a third country does not govern the choice of 
law applicable to a case involving succession but indicates the law 
applicable to that case involving succession, a national of that third country 
residing in a Member State bound by that bilateral agreement may make a 
choice of law? 
Provisions of European Union law relied on 
TFEU: Article 81(2)(c) 
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: recital 38; 
Articles 22 and 75 
Provisions of national law relied on 
Umowa polsko-ukraińska z dnia 24 maja 1993 r. o pomocy prawnej i stosunkach 
prawnych w sprawach cywilnych i karnych (Polish-Ukrainian Agreement of 
24 May 1993 on Legal Assistance and Legal Relations in Civil and Criminal 
Matters), done at Kiev on 24 May 1993 (Dz.U. 1994 No 96, heading 465): 
Articles 36 and 37  
Ustawa z dnia 4 lutego 2011 r. Prawo prywatne międzynarodowe (Law of 
4 February 2011 on International Private Law) (Dz.U. 2011, No 80, heading 432): 
Article 66a 
Ustawa z 14 lutego 1991 r. Prawo o notariacie (Law of 14 February 1991 on 
Notaries) (Dz. U. 1991 No 22, heading 91): Articles 81, 81a, 82, and 83 
Ustawa z dnia 17 listopada 1964 r. Kodeks postępowania cywilnego (Law of 
17 November 1964 establishing the Code of Civil Procedure) (Dz.U. 1964 No 43, 
heading 296) (‘the Code of Criminal Procedure’): Article 366 
OP 
 
3 
Succinct presentation of the facts and procedure in the main proceedings 
1 OP, who possesses only Ukrainian nationality and resides in Poland, is – together 
with her husband, under statutory community property rights – the joint owner of 
a dwelling located in Poland. She requested a notary in Poland to draw up a 
notarial will which would contain a choice-of-law clause opting for Ukrainian law 
and modify the legal order of succession on the basis of that law. 
2 On 10 July 2020, the zastępca notarialny refused to perform the notarial act in so 
far as it included the choice of Ukrainian law, on the ground that, in his opinion, 
the choice of Ukrainian law in the will would be contrary to the law, and more 
specifically to Article 81 of the Prawo o notariacie.  
3 OP lodged an appeal with the zastępca notarialny, who, at the stage where the 
appeal was considered under the self-review procedure, attempted to initiate the 
relevant preliminary ruling proceedings, but, by order of 1 September 2021 in 
Case C-387/20, OKR, the question referred for a preliminary ruling was declared 
inadmissible by the by the Court of Justice of the European Union. The zastępca 
notarialny then dismissed the appeal. 
4 OP lodged an appeal with the referring body. She requested that the refusal be 
annulled in its entirety and that a question be referred to the Court of Justice of the 
European Union for a preliminary ruling. 
The essential arguments of the parties in the main proceedings 
5 In the grounds of the refusal to perform the notarial act, the zastępca notarialny, 
first of all, drew attention to the scope ratione personae of the regulation. In this 
context, the notary referred to the ruling of the Sąd Okręgowy w Opolu (Regional 
Court in Opole, Poland) of 28 February 2020 – he considered to be binding on 
him – which, when examining an appeal in a factually similar case, found that 
Article 22 of the regulation allows only nationals of Member States of the 
European Union to choose the law of the State by which all matters relating to 
succession are to be governed. In the view of the that court, another indication 
excluding the application of the regulation to third-country nationals is contained 
in the first sentence of recital 38, which refers to the right of EU citizens to choose 
the law applicable to succession, and also in Article 81(2)(c) TFEU, which 
constitutes the basis for the adoption of the regulation and according to which the 
regulation is a measure designed to ensure the compatibility of the rules applicable 
in the Member States concerning conflict of laws and jurisdiction. 
6 Secondly, the notary draws attention to the precedence which provisions of 
bilateral agreements concluded by Member States with third countries take over 
the regulation pursuant to Article 75 of the regulation. The Polish-Ukrainian 
Bilateral Agreement of 24 May 1993 on Legal Assistance and Legal Relations in 
Civil and Criminal Matters does not provide for the possibility to choose the law 
applicable to succession matters. Article 37 of the Polish-Ukrainian Agreement 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-21/22 
 
4  
governs the law applicable to succession matters in such a manner that the law 
applicable to the succession of the applicant’s movable property is Ukrainian law 
as the law of the country of her nationality (paragraph 1), while the law applicable 
to the succession of immovable property is the law of the State Party in which that 
property is located (paragraph 2). Therefore, it is not possible to codify the rules 
on succession. 
7 In her appeal, OP alleges that there has been an incorrect interpretation of 
Articles 22 and 75 of the regulation. 
8 As regards the first sentence of Article 22 of the regulation, the applicant referred 
to the wording of that provision, according to which ‘a person’ [in Polish ‘każdy’, 
meaning ‘any person’] may choose the law of the State of which he or she is a 
national as the law governing his or her succession. She also draws attention to the 
fact that Article 22 of the regulation features in Chapter III thereof, which contains 
generally applicable conflict-of-law rules. According to Article 20 of the 
regulation, any law specified by that regulation is to be applied whether or not it is 
the law of a Member State. [OP] takes the view that this also applies to the law 
specified by way of a choice of law made pursuant to Article 22 of the regulation. 
9 As regards Article 75 of the regulation, which states that the regulation ‘shall not 
affect’ the application of conventions between Member States and third countries, 
OP considers that the parallel application of the regulation and the agreement does 
not mean that the Polish authorities must apply the conflict-of-law rules arising 
from the agreement in a Polish-Ukrainian succession case in which they determine 
the law applicable on the basis of objective connecting factors. Since Article 37 of 
the Polish-Ukrainian Agreement does not address the question of the choice of the 
law applicable to succession, in these circumstances it cannot take precedence 
over Article 22 of the regulation, which governs this matter and allows a choice of 
law. 
10 OP also points out that the refusal to draw up a will in Poland containing a choice-
of-law clause electing Ukrainian law is all the more unjustified as such a will 
could be drawn up in any other Member State (not being bound by the agreement 
in question with Ukraine) and that this leads to a fragmentation of the succession, 
which is contrary to the principle of the unity of the law applicable to the 
succession, the importance of which was emphasised by the Court of Justice of the 
European Union in its judgment in C-218/16, Kubicka. 
11 In his response to the appeal, the zastępca notarialny maintained the position that 
the Polish-Ukrainian Agreement creates a separate regime for determining the law 
applicable to succession, which as a whole takes precedence over the regime 
arising from the regulation, including Article 22 thereof. 
12 However, the zastępca notarialny also drew attention to the fact that the primacy 
of that agreement, also recognised in academic legal writings, which results in a 
split of applicable law (which is different with regard to movable property and 
OP 
 
5 
different with regard to immovable property), makes it significantly more for a 
large number of Ukrainian nationals residing in Poland to draw up a will. In view 
of the systemic importance of the issue under consideration in the present case, the 
zastępca notarialny supported OP’s request for a question to be referred to the 
Court of Justice for a preliminary ruling.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
13 As regards the first question, the referring court notes firstly that, in their 
observations in Case C-387/20, OKR, the Governments of Hungary and Poland 
and the European Commission agreed that Article 22 of the regulation allows a 
person who is not an EU citizen to choose, as the law governing all matters 
relating to succession, the law of a third country of which that person is a national 
at the time of making the choice or at the time of death. With reference to 
Article 366 of the Code of Civil Procedure, that court concludes that the above 
judgment of the Sąd Okręgowy w Opolu of 28 February 2020, interpreting the 
scope ratione personae of Article 22 of the regulation as being limited solely to 
nationals of Member States, and deemed by the zastępca notarialny to exclude the 
possibility of performing the requested notarial act, is not binding in the present 
case. However, the referring court considers it necessary to consolidate the 
position of the courts on the matter at issue and to that end refers the first question 
to the Court of Justice of the European Union for a preliminary ruling.  
14 As regards the second question, the referring court refers firstly to the positions 
taken by the Governments of Hungary and Poland and the European Commission 
in their observations in Case C-387/20, OKR, which reveal differences in the 
interpretation of Article 75 of the regulation. The position of the Hungarian 
Government is that that regulation cannot effect the application of international 
conventions to which one or more Member States are party at the time that 
regulation was adopted and which concern matters covered by the provisions of 
the that regulation; in such circumstances, the applicable law must, in its view, be 
determined solely on the basis of the conflict-of-law rules of that agreement and 
where the bilateral agreement is ‘silent’ on choice of law, a third-country national 
residing in the Member State which is party to that agreement is not entitled to 
choose the rules on succession. The Commission also considered that, where a 
bilateral agreement concluded between a Member State and a third country 
determines the law applicable to the succession on basis of objective connecting 
factors, without allowing the parties to choose a different applicable law, choice of 
the law by a third-country bound by such an agreement was excluded. However, a 
different position was taken by the Polish Government, which expressed the view 
that in a case where a bilateral agreement between a Member State and a third 
country does not provide for a choice of law in matters relating to the succession, 
a third-country national residing in a Member State bound by that bilateral 
agreement may choose the law of that third country, even if the law of the country 
chosen does not provide for a choice of law in matters of succession. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-21/22 
 
6  
15 Secondly, the referring court states that in Poland too there is no uniform position 
on the interpretation of Article 75 of the regulation. It notes that the position of 
Poland, as one of the parties to the abovementioned 1993 agreement, is that the 
omission of choice of law applicable to the succession was intended by the States 
party to this agreement. If it is to be regarded as an authentic interpretation by the 
entity which drew up and signed the above agreement, the issue remains of 
establishing whether the Ukrainian Government interprets those provisions of the 
1993 agreement in a similar manner. At the same time, the referring court notes 
the signing on 29 May 2014 of the Association Agreement between the European 
Union and the European Atomic Energy Community and their Member States, of 
the one part, and Ukraine, of the other part. As is evident from Article 24(1) 
thereof, Ukraine and the European Union declared that they would develop 
judicial cooperation in civil and criminal matters and approximate Ukrainian 
legislation with European Union law.  
16 With reference to Polish academic literature on the subject, the referring court 
notes that in relation to the interpretation of Article 66a of the Ustawa z dnia 4 
lutego 2011 r. Prawo prywatne międzynarodowe some authors give precedence to 
the regulation over bilateral conventions concluded by Poland with Belarus, 
Russia and Ukraine. Another view is that the issues concerning the relationship 
between the regulation and conventions are resolved by the Succession Regulation 
itself, in the first sentence of Article 75(1) thereof, pursuant to which these issues 
were removed from the scope of that regulation.  
17 Referring in turn to the origin of Article 75 of the regulation, the referring court 
recalls that in its original wording that provision was succinct and clear and in the 
event of a conflict of laws gave precedence to international agreements – subject 
to agreements between the Member States applying the regulation which cede to 
it – while referring to the then Article 307 TEC, which pointed to the need to 
eliminate any incompatibilities between the Treaty and agreements with third 
countries – a reference which the legislature ultimately abandoned.  
18 In analysing the arguments in favour of the precedence of the regulation, the 
referring court raises several other issues: inter alia, potential discrimination 
against EU residents who are not nationals of an EU Member State and the archaic 
nature of the conflict-of-law rules contained in many international agreements. 
The referring court is also uncertain, in the light of the previous case-law of the 
Court of Justice of the European Union, whether the freedom to choose the 
applicable law must be regarded as a necessary pillar of judicial cooperation in 
civil matters.  
19 Furthermore, the referring court expresses its concern that if the precedence of the 
regulation were to be denied, there is a risk that, as a result of the bilateral 
agreements concluded, the various Member States applying the regulation will – 
from a conflict-of-laws point of view – have a different perception of succession 
to the same testator/testatrix. Poland is bound by bilateral agreements containing 
conflict-of-law rules in succession cases, which do not provide for a choice of 
OP 
 
7 
law, with four third countries the nationals of which are relatively numerous in 
Poland: namely, with Ukraine, Belarus, Russia and Vietnam (but also with the 
successor states of the former Yugoslavia that are not Member States, as well as 
with Cuba, Libya, North Korea and Mongolia). Germany has agreements of this 
kind with Turkey, Iran and the successor states of the USSR. Austria has such 
agreements with the successor states of the former Yugoslavia which are not 
Member States, Iran and Russia. A uniform resolution of the issue of the hierarchy 
of the legal rules in question would therefore appear to be important both from the 
point of view of the legal order of a number of Member States and the uniformity 
of the common system of conflict-of-law rules drawn up in connection with their 
unification, and also necessary in order to ensure uniformity of interpretation 
throughout the geographical territory in which the regulation applies.