Order — ECLI:EU:C:2023:599
Date: 2023-07-17
Language of the case: Polish
Court formation: Tenth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Poland

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Translation C-55/23 – 1 
Case C-55/23 
Request for a preliminary ruling 
Date lodged: 
3 February 2023 
Referring court: 
Sąd Rejonowy Szczecin – Prawobrzeże i Zachód w Szczecinie 
(Poland) 
Date of the decision to refer: 
6 December 2022 
Applicant for the issue of a decision confirming the acquisition of an 
inheritance: 
PA 
  
… 
DECISION 
The Sąd Rejonowy Szczecin-Prawobrzeże i Zachód w Szczecinie (District Court 
for Szczecin-Prawobrzeże i Zachód, 3rd Civil Division, Szczecin, Poland) … 
…upon consideration on 6 December 2022 in Szczecin at a closed session 
of the case brought by PA 
with the participation of MO and the Federal Republic of Germany 
regarding the confirmation of the acquisition of an inheritance 
decides as follows: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 6. 12. 2022 – CASE C-55/23 
 
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I. to refuse participation in the proceedings by the participant designated the 
Federal Republic of Germany due to the fact that the determination of its 
legal interest is premature; 
II. pursuant to Article 267 of the Treaty on the Functioning of the European 
Union (TFEU), to refer the following questions to the Court of Justice for a 
preliminary ruling: 
1. Should 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 (OJ 2012 L 201, p. 107) be interpreted in 
such a way that it applies only in a situation in which the deceased was not 
domiciled in any Member State bound by the Regulation, or does it confer 
additional jurisdiction on the Member State in which the deceased left 
behind his or her property and whose nationality he or she held at the time of 
death, even if his or her habitual residence at the time of death was in 
another Member State bound by the Regulation? 
2. Should European Union law, in particular, Article 267 TFEU be interpreted 
in such a way that it overrides the rule of national law according to which 
the Court is bound by the legal ruling of a higher court concerning the 
interpretation of European law, where that ruling contradicts the 
interpretation applied by the Court of Justice of the European Union also in 
a specific case in a preliminary ruling? 
III. pursuant to Article 177(1)(3)(1) in conjunction with Article 13(2) of Kodeks 
Postępowania Cywilnego (‘the KPC’) to suspend the proceedings in this 
case. 
GROUNDS … 
I. Subject matter of the main proceedings, and key facts 
The subject of the proceedings is an application for confirmation of the acquisition 
of the inheritance following the death of BF in Hamburg in 2020. The applicant is 
the deceased's sister, who waived succession. The grounds of the application 
stated that the son, wife, mother, sister and niece of the deceased all waived 
succession. All of the declarations regarding waiving succession were lodged 
before a German court. It is beyond dispute that the last habitual residence of the 
testator, who was a Polish citizen, was in Hamburg. This is also the last habitual 
residence of the testator specified by the heirs waiving succession. The applicant 
indicated that the deceased had left real estate assets in Poland. The deceased did 
not choose the law applicable to all cases concerning his succession. 
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By way of a decision of 30 August 2022, the District Court for Szczecin – 
Prawobrzeże i Zachód, Szczecin, refused the application, given the absence of 
jurisdiction of Polish courts due to the fact that the last habitual residence of the 
testator was in a different Member State (Germany). 
Following a complaint, the District Court, Szczecin, by a decision of 
14 November 2022 … overruled the decision of the District Court of 30 August 
2022. In the main reasons for the decision, the District Court explained that the 
position of the District Court, that Article 10(1)(a) of Regulation 650/2012 
pertains only to a situation in which the deceased did not have permanent 
residence in any Member State, was incorrect. The District Court highlighted that 
the correct interpretation of the provision grants additional jurisdiction to the state 
in which the deceased left behind property and of which he or she is a national, 
even if their place of residence was not in that Member State. 
II. Relevant provisions 
European Union law 
[Article 267 TFEU was cited] … 
(2) 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 (OJ 2012 L 201, p. 107) [‘Regulation 650/2012’ or 
‘the Succession Regulation’] 
(7) The proper functioning of the internal market should be facilitated by 
removing the obstacles to the free movement of persons who currently face 
difficulties in asserting their rights in the context of a succession having cross-
border implications. … In the European area of justice, citizens must be able to 
organise their succession in advance. The rights of heirs and legatees, of other 
persons close to the deceased and of creditors of the succession must be 
effectively guaranteed. 
(23) In view of the increasing mobility of citizens and in order 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, this Regulation should provide that the general 
connecting factor for the purposes of determining both jurisdiction and the 
applicable law should be the habitual residence of the deceased at the time of 
death. In order to determine the habitual residence, the authority dealing with the 
succession should make an overall assessment of the circumstances of the life of 
the deceased during the years preceding his death and at the time of his death, 
REQUEST FOR A PRELIMINARY RULING OF 6. 12. 2022 – CASE C-55/23 
 
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taking account of all relevant factual elements, in particular the duration and 
regularity of the deceased’s presence in the State concerned and the conditions 
and reasons for that presence. The habitual residence thus determined should 
reveal a close and stable connection with the State concerned taking into account 
the specific aims of this Regulation. 
(27) The rules of this Regulation are devised so as to ensure that the authority 
dealing with the succession will, in most situations, be applying its own law. This 
Regulation therefore provides for a series of mechanisms which would come into 
play where the deceased had chosen as the law to govern his succession the law of 
a Member State of which he was a national. 
(30) In order to ensure that the courts of all Member States may, on the same 
grounds, exercise jurisdiction in relation to the succession of persons not 
habitually resident in a Member State at the time of death, this Regulation should 
list exhaustively, in a hierarchical order, the grounds on which such subsidiary 
jurisdiction may be exercised. 
Article 4. General jurisdiction. 
The courts of the Member State in which the deceased had his habitual residence 
at the time of death shall have jurisdiction to rule on the succession as a whole. 
Article 10. Subsidiary jurisdiction 
1. 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 jurisdiction to rule on the succession as a 
whole in so far as: 
(a) the deceased had the nationality of that Member State at the time of death; or, 
failing that, 
(b) the deceased had his previous habitual residence in that Member State, 
provided that, at the time the court is seised, a period of not more than five years 
has elapsed since that habitual residence changed. 
2. Where no court of a Member State has jurisdiction pursuant to paragraph 1, 
the courts of the Member State in which the assets of the estate are located 
nevertheless have jurisdiction to rule on those assets of the estate. 
Article 15. Examination as to jurisdiction 
Where a court of a Member State is seised of a succession matter over which it 
has no jurisdiction under this Regulation, it shall declare of its own motion that it 
has no jurisdiction. 
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Polish law 
(1) Ustawa z dnia 17 listopada 1964 roku – Kodeks postępowania cywilnego 
(Law of 17 November 1964 establishing the Code of Civil Procedure) 
(consolidated text, Polish Journal of Laws of 2021, item 1805) 
Article 386 paragraph 6 
A legal assessment referred to in a statement of reasons for a judgment of the 
court of second instance shall be binding on both the court to which the case has 
been remanded and on the court of second instance where the case is being 
reconsidered. However, this does not apply to a case where there has been a 
change in the legal or factual status, or if after the issuance of a judgment of the 
court of second instance, the Supreme Court expressed a different legal 
assessment in the resolution resolving the legal issue. 
III. Grounds 
The doubts of the referring court arose on the basis of a typical case before the 
civil division of a district court. In the present case, the referring court expressed 
the legal view that the court to which the application regarding the present case 
was referred lacked jurisdiction due to the factual circumstances set out in point I 
of this application. However, the party made use of a legal remedy available under 
national law, as a result of which the higher court overruled the referring court's 
decision, presenting a different legal view. In the case under consideration, the 
District Court interpreted the provision of Article 10(1)(a) of Regulation 
650/2012, the content of which it interpreted as follows: ‘if at the time of death, 
the habitual residence of the deceased was not in the Member State in which he or 
she left behind the succession and of which he or she was a national, the courts of 
this Member State nevertheless have (subsidiary) jurisdiction to adjudicate on 
succession cases in general.’ 
In the opinion of the referring court, the legal view presented by the District Court 
is erroneous not only from the literal point of view, but first and foremost because 
it undermines the fundamental goals of the rule introduced by Regulation 
650/2012. Pursuant to the provisions of national law, a court of first instance is 
bound by the interpretation presented by a higher court. There is no direct 
regulation in the provisions of national law that would allow for a departure from 
the erroneous interpretation of a higher court, including a situation where the 
Court of Justice of the European Union has issued an opinion on this issue. Given 
the above, as well as the authority of the District Court, which shapes the direction 
of the decisions of lower courts to which applications for confirmation of the 
acquisition of an inheritance are sent, it appears necessary for the Court of Justice 
to rule on this issue in response to the reference for a preliminary ruling. 
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As regards the essence of the legal matter at hand, it should be highlighted that the 
jurisdictional norms are found in Chapter II of the Regulation entitled 
‘Jurisdiction’, which comprises Articles 4-19. Starting on 17 August 2015, in 
relation to open inheritances, these norms replaced the jurisdictional norms of the 
Polish Code of Civil Procedure. The doctrine compares them to national 
jurisdictional standards. The legislature introduced them in a unilateral way 
(which distinguishes them from the jurisdictional norms contained in international 
agreements) and gave them a universal character, as they apply to every 
succession case heard in a given state (unilateral universality). For this reason, in 
the doctrine they are also referred to as norms operating erga omnes. Contrary to 
the jurisdictional norms contained in the Polish Code of Civil Procedure, which 
indicate when a Polish court has jurisdiction, the jurisdictional norms of the 
Regulation indicate the jurisdiction of the court of ‘a’ Member State – meaning a 
Member State of the European Union bound by the Regulation. 
In the opinion of the referring court, the rule of Article 4 of the Succession 
Regulation assumes that the testator was habitually resident in a Member State of 
the European Union at the time of death. However, if this was not the case, the 
jurisdictional norm of Article 10(1) of the Succession Regulation (‘Subsidiary 
jurisdiction’) comes into play. In the case of a testator who was not habitually 
resident in any Member State of the European Union at the time of death, the 
Polish court will, therefore, have jurisdiction, provided that the assets of the estate 
are located in Poland, and the additional condition of the testator's Polish 
citizenship at the time of death is met, or (in the absence of Polish citizenship) of 
the testator's ‘previous’ habitual residence in Poland. 
The Regulation assumes, for pragmatic reasons, that the court having jurisdiction 
in the case should – in principle – apply its own law (convergence of ius and 
forum). On the other hand, the above will ensure that the case is resolved more 
efficiently than if the court were to apply foreign law. 
In repealing the decision of the court of first instance, the District Court referred, 
inter alia, to the judgment of the Court of Justice of the European Union of 7 April 
2022 in Case C-645/22; however, it did not find that it was issued on the basis of 
the facts, according to which the deceased had his habitual residence in Great 
Britain, which, although it was a Member State of the European Union at the time 
of the testator's death, was not bound by the Regulation. Therefore, in such a 
situation, it was indeed incumbent on the Court to examine the grounds for 
jurisdiction provided for in Article 10 of the Regulation. In the present case, in 
fact, the opinion of the Advocate General of 2 December 2021 directly expressed 
the view (points 46 to 48, 61) that the relationship between jurisdictions under 
Articles 4 and 10 of the Regulation is not hierarchical in the strict sense of the 
word: jurisdiction under Article 10 comes into play only if the last habitual 
residence of the deceased is in a third country. 
Although the case-law of the Court lacks a direct statement as to the correctness of 
the interpretation of Article 10 of the Regulation in this scope, it should be 
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concluded from numerous judgments that such an interpretation appears to be 
obvious; for example, there would be no need to answer the question referred for a 
preliminary ruling in case C-80/19 or in case C-20/17 if the interpretation 
presented by the District Court in the present case was accepted as correct. The 
referring court is aware that the acte clair doctrine, which assumes that courts do 
not need to refer a question to the Court of Justice of the European Union if the 
correct application of EU law leaves no doubt, even if there has been no prior 
judgment to which the court could refer. However, this doctrine is of a procedural 
nature and is not tantamount to the principle of clara non sunt interpretanda. In 
the presented procedural circumstances, in the light of the position of the Regional 
Court, the issuance of a ruling by the Court appears to be the only possibility of 
the correct application of the provisions of law in the case under consideration. 
As regards the second question, the referring court would like to highlight 
Article 15 of the Regulation, which requires courts seised of a succession matter 
to declare of their own motion that they have no jurisdiction if this does not arise 
under Regulation 650/2012. Without prejudging the extremely interesting matter 
of binding the court examining the case with an erroneous interpretation of EU 
law made by a higher court, in the opinion of the Court, a conflict in this respect 
can be overcome by a statement of the Court of Justice in response to the question 
referred for a preliminary ruling. However, a statement of the Court was not 
explicitly indicated in the provision of the Polish Code of Civil Procedure as a 
premiss for departing from the interpretation of the higher court. It seems, 
however, that the view of ensuring the achievement of the objectives provided for 
in Article 267 TFEU supports the view that the referring court should give full 
effect to the interpretation of EU law provided in a preliminary ruling, even if it is 
not in line with the interpretation of the national higher court in the given case 
(see judgments of 3 February 1977, Benedetti v Munari, C-52/76, EU:C:1977:16, 
paragraph 26; of 5 July 2016, Ognyanov, C-614/14, EU:C:2016:514, 
paragraph 28; of 12 February 2020, Kolev and others, C-704/18, EU:C:2020:92, 
paragraph 37). Taking into account the above doubts, at a closed session on 
6 December 2022, the court decided to suspend proceedings in the case, and 
pursuant to Article 267 of the Treaty establishing the European Union refer to the 
Court of Justice with … questions for a preliminary ruling. 
IV. Questions referred for a preliminary ruling [have been presented 
above in the resolution of the decision, point II] 
…