BGH; 2023-03-29; IV ZB 20/22
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2023:290323BIVZB20.22.0
Date: 2023-03-29
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0329(51)_ENG_SUMJURE
JURE summary
JURE summary
A notary domiciled in Poland (hereinafter the ‘plaintiff’) applied with the Amtsgericht Eutin (hereinafter ‘the Court of First Instance’), referring to Article 66(5) and Article 46(3)(b) of Regulation (EU) No 650/2012 (1), to be given an attestation of a decision made within succession proceedings conducted in Germany.
A woman (hereinafter the ‘deceased’) died at her last place of residence in Germany. The Court of First Instance issued a certificate of succession stating that the sister of the deceased was a co-heir with a 25% share in the estate. The sister of the deceased died in the same year in Poland. A nephew applied with the plaintiff for the issuance of a European certificate of succession with regard to the succession regarding the sister.
The Court of First Instance dismissed the application of the plaintiff. Her appeal lodged with the Schleswig-Holsteinischen Oberlandesgericht (hereinafter ‘the Court of Appeal’) was also unsuccessful, the Court of Appeal citing the plaintiff’s lack of eligibility to submit the application. The plaintiff was neither a party to the proceedings nor a representative of a party but acted in her capacity as a Polish authority in charge of the issuance of a European certificate of succession.
Filing a revision was found admissible by the Court of Appeal. The revision, filed by the plaintiff with the Bundesgerichtshof (hereinafter ‘the Supreme Court’), was not successful.
The Court of Appeal was correct to deny the issuance of the attestation to the plaintiff under Article 46(3)(b) of Regulation (EU) No 650/2012. The plaintiff did not request the heir certificate to be recognised in Poland by a court or another competent body under Article 45(1) of Regulation (EU) No 650/2012. A recognition, which would be to be decided by the plaintiff herself, must be applied for by a party to the proceedings in the form of an application regarding the recognition of a decision or regarding the issuance of a declaration of enforceability, i.e. the application must be filed by a third party and not by an authority itself, in its own name, which will be making a decision within the recognition proceedings.
The Supreme Court dismissed the revision of the plaintiff against the decision of the Court of Appeal.
(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.