OLG Köln; 2018-02-06; I-2 Wx 276/17, 2 Wx 276/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2018:0206.2WX276.17.00
Date: 2018-02-06
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0206(51)_ENG_SUMJURE
JURE summary
JURE summary
An applicant (hereinafter the ‘plaintiff’) applied for the issuance of a European certificate of succession regarding his inheritance located in Italy (hereinafter the ‘ECS’).
The deceased, a German citizen with her last habitual residence in Germany, had left the property in Germany, Italy and Switzerland, made the plaintiff the executor of her last will and an Italian congregation the sole heir.
The Amtsgericht Köln (hereinafter ‘the Court of First Instance’) dismissed the application. According to Article 1(4) of the Implementing Regulation (EU) No. 1329/2014 (1), the application for the issuance of an ECS had to be submitted using form IV in Annex 4 under Article 65(2) of Succession Regulation No. 650/2012 (2).
The plaintiff lodged an appeal with the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) against the decision of the Court of First Instance. The respective form could be used, but its use was not mandatory.
The wording of the respective provision could be interpreted in two ways: according to the Court of First Instance, the use of the form was mandatory. In specialist legal literature, however, there is a broad opinion that its use is optional.
Having regard to the absence of any case-law regarding this matter, the Court of Appeal submitted to the Court of Justice of the European Union the following question for a preliminary ruling:
When applying for the ECS under Article 65(2) of the Succession Regulation No. 650/2012, is the use of the form IV (Annex 4), created based on a committee procedure under Article 81(2) of Succession Regulation No. 650/2012, under Article 1(4) of Implementing Regulation (EU) No 1329/2014 mandatory or optional?
(1) Commission Implementing Regulation (EU) No 1329/2014 of 9 December 2014 establishing the Forms referred to in Regulation (EU) No 650/2012 of the European Parliament and of the Council 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.
(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.