Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 5 February 2026 (1)
Case C‑873/24 [Marwanak] (i)
GK,
NU,
TZ,
MV,
UK
(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))
( Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 650/2012 – European Certificate of Succession – Obligations of the issuing authority – Succession involving immovable property located in a Member State other than the Member State where the certificate is issued – Provisions of registration law in the Member State in which the immovable property is located making entry in the land register conditional on the inclusion of information about the inherited immovable property in the certificate – Obligation to include that information in the case of universal succession )
I.      Introduction
1.        The request for a preliminary ruling in the present case concerns an issue that has been the subject of dispute since the entry into force of Regulation (EU) No 650/2012. (2) In what situations is it necessary to include in the European Certificate of Succession (ECS) information about the assets of the estate? Doubts arise from the fact that while the provisions of Regulation No 650/2012 provide for the possibility of including such information in the ECS, their wording as to the circumstances in which that is to be done is unclear.
2.        The problem takes on particular significance where there are discrepancies between the requirements of succession law and registration law in different Member States. On the one hand, the provisions of the law applicable to the succession may provide that the transfer of the estate takes place by way of universal succession, in which case the assets of the estate are not determined at the stage of certifying the heirs’ rights to the succession. On the other hand, the registration law of the Member State in whose register the inherited asset is recorded may make the entry of the heir’s rights in the register conditional on the inclusion of information about the inherited asset in the document forming the basis for the entry. In such a situation, should information about the inherited asset be included in the ECS?
3.        This issue has already been the subject of my preliminary considerations in the Opinion delivered in the Registrų centras case. (3) In that Opinion, I argued against establishing an obligation to include in the ECS information about immovable property included in the estate when the entire estate goes to one heir by way of universal succession. (4) The judgment in Registrų centras (5) did not finally resolve the issue, as it was not directly addressed in the question submitted by the referring court for a preliminary ruling. (6) The issue is to be resolved by the judgment in the present case.
II.    Legal framework
A.      European Union law
1.      Regulation No 650/2012
4.        Recitals 7, 18, 67, 68 and 71 of Regulation No 650/2012 are worded as follows:
‘(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. …
…
(18)      The requirements for the recording in a register of a right in immovable or movable property should be excluded from the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept …, which determines under what legal conditions and how the recording must be carried out and which authorities … are in charge of checking that all requirements are met and that the documentation presented or established is sufficient or contains the necessary information. In particular, the authorities may check that the right of the deceased to the succession property mentioned in the document presented for registration is a right which is recorded as such in the register or which is otherwise demonstrated in accordance with the law of the Member State in which the register is kept. … [The ECS] issued under this Regulation should constitute a valid document for the recording of succession property in a register of a Member State. This should not preclude the authorities involved in the registration from asking the person applying for registration to provide such additional information, or to present such additional documents, as are required under the law of the Member State in which the register is kept, for instance information or documents relating to the payment of revenue. …
…
(67)      In order for a succession with cross-border implications within the Union to be settled speedily, smoothly and efficiently, the heirs … should be able to demonstrate easily their status and/or rights and powers in another Member State, for instance in a Member State in which succession property is located. To enable them to do so, this Regulation should provide for the creation of a uniform certificate, the [ECS] ….
(68)      The authority which issues the [ECS] should have regard to the formalities required for the registration of immovable property in the Member State in which the register is kept. For that purpose, this Regulation should provide for an exchange of information on such formalities between the Member States.
…
(71)      The [ECS] should produce the same effects in all Member States. It should not be an enforceable title in its own right but should have an evidentiary effect and should be presumed to demonstrate accurately elements which have been established under the law applicable to the succession or under any other law applicable to specific elements, such as the substantive validity of dispositions of property upon death. The evidentiary effect of the [ECS] should not extend to elements which are not governed by this Regulation, such as questions of affiliation or the question whether or not a particular asset belonged to the deceased. Any person who makes payments or passes on succession property to a person indicated in the [ECS] as being entitled to accept such payment or property as an heir or legatee should be afforded appropriate protection if he acted in good faith relying on the accuracy of the information certified in the [ECS]. The same protection should be afforded to any person who, relying on the accuracy of the information certified in the [ECS], buys or receives succession property from a person indicated in the [ECS] as being entitled to dispose of such property. …’.
5.        Article 1 of the regulation, headed ‘Scope’, provides:
‘1.      This Regulation shall apply to successions to the estates of deceased persons. It shall not apply to revenue, customs or administrative matters.
2.      The following shall be excluded from the scope of this Regulation:
…
(k)      the nature of rights in rem; and
(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’.
6.        Chapter VI of the regulation, headed ‘[ECS]’, comprises Articles 62 to 73.
7.        Article 62, headed ‘Creation of [an ECS]’, provides, in paragraphs 1 and 3:
‘1.      This Regulation creates [an ECS] which shall be issued for use in another Member State and shall produce the effects listed in Article 69.
…
3.      The [ECS] shall not take the place of internal documents used for similar purposes in the Member States. However, once issued for use in another Member State, the [ECS] shall also produce the effects listed in Article 69 in the Member State whose authorities issued it in accordance with this Chapter’.
8.        Article 63 of the regulation lays down the potential purposes for issuing the ECS and provides, in paragraphs 1 and 2:
‘1.      The [ECS] is for use by heirs, legatees having direct rights in the succession and executors of wills or administrators of the estate who, in another Member State, need to invoke their status or to exercise respectively their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate.
2.      The [ECS] may be used, in particular, to demonstrate one or more of the following:
(a)      the status and/or the rights of each heir … and their respective shares of the estate;
(b)      the attribution of a specific asset or specific assets forming part of the estate to the heir(s) … mentioned in the [ECS];
…’
9.        Article 66 of Regulation No 650/2012, headed ‘Examination of the application’, provides:
‘1.      Upon receipt of the application the issuing authority shall verify the information and declarations and the documents and other evidence provided by the applicant. It shall carry out the enquiries necessary for that verification of its own motion where this is provided for or authorised by its own law, or shall invite the applicant to provide any further evidence which it deems necessary.
2.      Where the applicant has been unable to produce copies of the relevant documents which satisfy the conditions necessary to establish their authenticity, the issuing authority may decide to accept other forms of evidence.
3.      Where this is provided for by its own law and subject to the conditions laid down therein, the issuing authority may require that declarations be made on oath or by a statutory declaration in lieu of an oath.
4.      The issuing authority shall take all necessary steps to inform the beneficiaries of the application for [an ECS]. It shall, if necessary for the establishment of the elements to be certified, hear any person involved and any executor or administrator and make public announcements aimed at giving other possible beneficiaries the opportunity to invoke their rights.
5.      For the purposes of this Article, the competent authority of a Member State shall, upon request, provide the issuing authority of another Member State with information held, in particular, in the land registers, the civil status registers and registers recording documents and facts of relevance for the succession or for the matrimonial property regime or an equivalent property regime of the deceased, where that competent authority would be authorised, under national law, to provide another national authority with such information.’
10.      Article 67 of the regulation, headed ‘Issue of the [ECS]’, provides, in paragraph 1 thereof:
‘The issuing authority shall issue the [ECS] without delay in accordance with the procedure laid down in this Chapter when the elements to be certified have been established under the law applicable to the succession or under any other law applicable to specific elements. It shall use the form established in accordance with the advisory procedure referred to in Article 81(2).
…’.
11.      Article 68 of the regulation, headed ‘Contents of the [ECS]’, provides:
‘The [ECS] shall contain the following information, to the extent required for the purpose for which it is issued:
…
(l)      the share for each heir and, if applicable, the list of rights and/or assets for any given heir;
…’.
12.      Article 69 of the regulation, headed ‘Effects of the [ECS]’, provides:
‘1.      The [ECS] shall produce its effects in all Member States, without any special procedure being required.
2.      The [ECS] shall be presumed to accurately demonstrate elements which have been established under the law applicable to the succession or under any other law applicable to specific elements. The person mentioned in the [ECS] as the heir … shall be presumed to have the status mentioned in the [ECS] and/or to hold the rights or the powers stated in the [ECS], with no conditions and/or restrictions being attached to those rights or powers other than those stated in the [ECS].
3.      Any person who, acting on the basis of the information certified in [an ECS], makes payments or passes on property to a person mentioned in the [ECS] as authorised to accept payment or property shall be considered to have transacted with a person with authority to accept payment or property, unless he knows that the contents of the [ECS] are not accurate or is unaware of such inaccuracy due to gross negligence.
4.      Where a person mentioned in the [ECS] as authorised to dispose of succession property disposes of such property in favour of another person, that other person shall, if acting on the basis of the information certified in the [ECS], be considered to have transacted with a person with authority to dispose of the property concerned, unless he knows that the contents of the [ECS] are not accurate or is unaware of such inaccuracy due to gross negligence.
5.      The [ECS] shall constitute a valid document for the recording of succession property in the relevant register of a Member State, without prejudice to points (k) and (l) of Article 1(2).’
13.      Article 70 of that regulation provides, in paragraphs 1 and 3 thereof:
…
‘1.      The issuing authority shall keep the original of the [ECS] and shall issue one or more certified copies to the applicant and to any person demonstrating a legitimate interest.
…
3.      The certified copies issued shall be valid for a limited period of six months …’.
2.      Implementing Regulation No 1329/2014
14.      Article 1(5) of Implementing Regulation (EU) No 1329/2014 (7) provides:
‘The form to be used for the [ECS] referred to in Article 67(1) of [Regulation No 650/2012] shall be as set out in Annex 5 as Form V [“the ECS form”]’.
15.      The ECS form contains a number of annexes, including Annex IV, headed ‘Status and rights of the heir(s)’.
16.      Points 8 to 10 of Annex IV to the ECS form provide fields for entering information described as follows:
‘8.      The heir has the right to the following share of the estate (please specify): …
9.      Asset(s) attributed to the heir and for which certification was requested (please specify asset(s) and indicate all relevant identification details): …
10.      Conditions and restrictions relating to the rights of the heir (indicate whether the rights of the heir are restricted under the law applicable to the succession and/or by the disposition of property upon death): …’
17.      None of the points quoted above are marked as mandatory in the ECS form.
18.      Footnote 13 to the ECS form provides additional explanations regarding the content of point 9 of Annex IV to that form. According to the footnote, in most language versions, that field should first specify whether the heir acquired the ownership or other rights on the assets, and in the latter case, indicate the nature of those rights and the other persons also having rights on the assets. (8) Secondly, in case of a registered asset, the information required under the law of the Member State in which the register is kept must be indicated so as to permit the identification of the asset. In addition, the final part of footnote 13 provides for the possibility of appending relevant documents to the ECS.
B.      German law
19.      Paragraph 1922 of the Bürgerliches Gesetzbuch (the German Civil Code) (‘the BGB’), headed ‘Universal succession’, which is applicable to the present case, provides, in subparagraph 1 thereof:
‘Upon the death of a person (devolution of an inheritance), that person’s property (estate) passes as a whole to one or several other persons (heirs)’.
C.      Czech law
20.      Zákon č. 256/2013 Sb. o katastru nemovitostí (katastrální zákon) (Law No 256/2013 on the Cadastral Register) (‘the Law on the Cadastral Register’) provides in Paragraph 8, letters (a) to (h), the detailed registration data of immovable property that should be included in the documents forming the basis for entry in the cadastral register; the data vary, in particular, depending on whether the entry concerns a developed or undeveloped plot of land, a building that is not part of the plot of land, a unit under construction, or a building entered in the land register under another law, and possibly also on whether the plot of land is subject to a simplified registration procedure.
21.      Pursuant to Paragraph 17(2)(a) of the Law on the Cadastral Register, in registration proceedings, the cadastral office examines whether the submitted official document meets the requirements for a document forming the basis for entry in the cadastral register.
22.      Vyhláška č. 357/2013 Sb. o katastru nemovitostí (katastrální vyhláška) (Decree No 357/2013 on the Cadastral Register) (‘the Decree on the Cadastral Register’) provides, in Paragraph 69(6):
‘If a document issued under the terms of a directly applicable provision of EU law that confirms universal succession does not list the rights or immovable property subject to succession in title because the legal system of the country in which the document was issued does not allow it, the cadastral office shall register the change of ownership or other right in rem on the basis of that document and the declaration of the successor in title, together with the requirements laid down in Paragraph 66(4)(a) to (d) and (f)’.
III. The main proceedings, the questions referred and the procedure before the Court of Justice
23.      On 1 March 2013, the testator and his wife drew up a joint will in which they named each other as heirs and their daughter as the sole heir of the surviving spouse. (9) The testator died on 5 October 2015 and his last habitual residence was in Germany. His daughter died on 5 January 2019 and his wife on 21 February 2022. The testator’s estate included, inter alia, immovable property in the Czech Republic.
24.      The applicants are the children of the testator’s deceased daughter. On 27 April 2023, they applied to the competent local court in Germany for the issue of an ECS for the purposes of settling the estate in respect of the immovable property located in the Czech Republic. In the application, they designated the testator’s wife as his sole heir, and the testator’s daughter’s children as the heirs of the testator’s wife, each with a 1/5 share of the estate. They also requested that information about the immovable property located in the Czech Republic, forming part of the estate, be included in the ECS. They argued that in accordance with the Czech Law on the Cadastral Register, because the testator’s daughter had died before the testator’s wife, the entry of her heirs in the cadastral register on the basis of the ECS would only be possible if the immovable property was explicitly indicated in the ECS.
25.      By order of 19 July 2023, the local court dismissed the applicants’ application as regards the request that the immovable property located in the Czech Republic be referred to in the ECS. The Oberlandesgericht (Higher Regional Court, Germany) (‘the OLG’) dismissed the appeal against that ruling by its order of 11 December 2023. In the grounds for its order, the OLG stated that including information on individual assets of the estate which would not benefit from the presumption of legality and the protection of legitimate expectations under Regulation No 650/2012 would run counter to the intention of that regulation to create an instrument with formalised content that could be used in any Member State without any problem. In the opinion of the OLG, there is no provision stipulating that the issuing authority has to make enquiries as to whether the deceased still owned the alleged asset of the estate at the time of death.
26.      The applicants lodged an appeal against the OLG’s order with the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court. In their appeal, they seek the issue of an ECS that includes information about the inclusion of the inherited immovable property located in the Czech Republic in the estate.
27.      The referring court points out that the interpretation of Article 68(l) of Regulation No 650/2012 is not obvious. In some German case-law and literature, the view is expressed that listing the assets of an estate in an ECS is out of the question when applying German substantive succession law, as that law is based on the principle of universal succession. Proponents of the opposing view point to the purpose of the ECS, which is to facilitate estate settlements in the Member States, and that militates in favour of including such information in the document.
28.      That court notes, on the one hand, that the wording of Article 68(l) of Regulation No 650/2012 suggests that such information should be entered in the ECS only where an asset of the estate is transferred to an heir with material effect. However, it points out that the ECS would not have practical effect if the lack of such information resulted in a refusal to make an entry due to the failure to meet the requirement laid down in the registration law of the country where the immovable property is located.
29.      In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is Article 68(l) of Regulation No 650/2012 to be interpreted as meaning that [an ECS] must contain the information required under the national law of the State in which the property is located for the recording of the heir as its owner in the land register in respect of immovable property forming part of the estate and located in a Member State other than the State of the issuing authority where the heir has requested that such information be included in the [ECS] for the purposes of recording him or her as its owner in the land register of the State in which the property is located and where, if the [ECS] is the only document presented in support of the application for registration, the recording, under the national law of the State in which the property is located, in the land register of that State can take place only if the [ECS] contains such information?
(2)      Does it make any difference to the answer to Question 1 whether, under the applicable succession law, the transfer of the estate will take place by way of universal succession?
(3)      Does it make any difference to the answer to Question 1 whether, instead of relying on the presentation of [an ECS] containing the information referred to in Question 1, the recording in the land register of the State in which the property is located, under the national law of that State, as referred to in Question 1, can also be obtained by the heir, or, after his or her death, his or her heir, presenting another document containing a declaration by the heir, or, after his or her death, by his or her heir, to the land registry of the State in which the property is located in addition to presenting [an ECS] that does not contain the information referred to in Question 1?’.
30.      Written observations were submitted by the applicants in the main proceedings, the Czech, German, Spanish and Polish governments, and the European Commission. No hearing has been held.
IV.    Analysis
A.      Admissibility of the request for a preliminary ruling
31.      In the judgment in Albausy (10), the Court ruled that a request for a preliminary ruling containing questions concerning the procedure for issuing an ECS and originating from a local court which, under German law, is the issuing authority with respect to the ECS, was inadmissible. The reasoning behind that ruling was the finding that the authority issuing the ECS does not exercise a judicial function and, therefore, may not submit a request to the Court of Justice under Article 267 TFEU. (11)
32.      That is not the case here, as the referring court is a court hearing an appeal against a ruling that dismissed an appeal against an order of the authority issuing the ECS. It follows from the Court’s settled case-law that a court which hears an appeal against a ruling of a court not exercising a judicial function exercises a judicial function and is a court within the meaning of Article 267 TFEU. (12) Therefore, even if the national court that is the issuing authority with respect to the ECS does not exercise a judicial function, that function is exercised by the court hearing the appeal against the order to reject the application for an ECS. The request for a preliminary ruling from the referring court in the present case is therefore admissible.
B.      The questions referred
33.      The questions submitted by the referring court are closely linked, and I therefore propose to examine them together. As the national courts’ decision to dismiss the applicants’ request to include information about the inherited immovable property in the ECS was based on the finding that this was precluded by the fact that the estate had been transferred by way of universal succession, I consider that it would be useful for the referring court to have an answer to the following question: Where the transfer of the estate takes place by way of universal succession, is there an obligation to include in the ECS, at the request of the applicant, information about the inherited immovable property located in another Member State if, on the one hand, the registration law of the Member State where the immovable property is located makes the entry of the heir’s rights on the basis of the ECS conditional on the inclusion of such information in the ECS, and, on the other, that law allows for the possibility of making an entry on the basis of an ECS which does not contain such information, if the heirs submit a declaration containing the missing information?
34.      In the present Opinion, I will first discuss the purpose of the ECS and its function as a document forming the basis for entries in land registers. Secondly, I will present a few comments on the nature of that instrument. Thirdly, I will demonstrate that the regulation does not impose an obligation to include information about the assets of the estate in the ECS in the case of universal succession. Fourthly, in the final place I will consider the possibility of adopting an interpretation different from the one I propose.
1.      On the purpose of the ECS and its function as a document forming the basis for entries in land registers
35.      Pursuant to recital 7 of Regulation No 650/2012, the regulation seeks to remove 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.(13) Recital 67 indicates that this objective is to be achieved, inter alia, through the ECS created by that regulation. It should, in particular – as envisaged in recital 18 of the regulation – constitute a valid document for the recording of succession property in a register of a Member State.
36.      The ECS was therefore conceived as a tool to enable heirs (14) to easily demonstrate their rights to assets located in another Member State, including the recording of their rights in the relevant registers, in particular land registers. (15)
37.      However, the effectiveness of the ECS in the latter regard has not been fully guaranteed by the provisions of Regulation No 650/2012. Although, pursuant to Article 69(5) of that regulation, the ECS constitutes a valid document for the recording of succession property in the relevant register of a Member State, that is subject to Article 1(2)(k) and (l) of the regulation, and those provisions indicate that all matters relating to any recording in a register of rights in immovable property are excluded from its scope of application. Consequently, even if the ECS is a ‘valid document for the recording [of succession property]’, this does not mean that an entry in a register on its basis must be made regardless of the conditions for entries laid down in the registration law of the Member State concerned.
38.      In such a situation, the following question arises: how can one ensure that the ECS can achieve its intended purpose and fulfil its function as the document forming the basis for entries in the register in a situation where the registration law of the place where the inherited immovable property is located imposes certain requirements regarding the content of the document forming the basis for entry in the register, and the issued ECS does not meet those requirements?
39.      In my Opinion in Registrų centras, I proposed that when interpreting the provisions of the regulation in the part concerning information on the assets of the estate, it should be examined whether, in a situation where that information is not necessary to determine the successors in title of the testator, its absence in the ECS actually prevents the determination of the succession in title with regard to a given asset. If that is not the case, there are no grounds for refusing to make the entry. Such an approach would ensure the achievement of the objectives of Regulation No 650/2012 and the fulfilment of the function of the ECS in question, while avoiding a number of practical difficulties related to adapting the content of the ECS to the requirements of foreign registration law and to making determinations regarding the assets of the estate that are not provided for by the law applied by the authority issuing the ECS.
40.      The Court did not share my position regarding the obligation of the registration authorities to make an entry on the basis of an ECS that did not contain all the information about the inherited immovable property required by Lithuanian registration law. In its judgment in Registrų centras, the Court ruled that the absence of that information constituted sufficient grounds for rejecting an application to enter an heir’s rights in the register. (16)
41.      By rejecting the possibility of requiring the registration authorities to make entries on the basis of an ECS that does not meet all the requirements laid down by registration law for a document forming the basis for an entry, the Court did not, however, rule that all of that information should be included in the ECS. It also pointed out that the lack of information in the ECS about inherited immovable property does not call into question the validity of that certificate as such in relation to the other elements which it certifies, such as the status of heir. (17) In that situation, it cannot be assumed that the judgment in Registrų centras creates an obligation to include in the ECS all the information on inherited immovable property required by registration law.
42.      In such a situation, despite the judgment in Registrų centras, the question remains to what extent Regulation No 650/2012 entails an obligation to include in the ECS information on an asset recorded in a register kept in another Member State. This is all the more justified given that it follows from recital 18 of Regulation No 650/2012 that the EU legislature foresaw that the mere submission of an ECS may not be sufficient to meet all the requirements for registration laid down by registration law and that in such circumstances it may be necessary for the registration authorities to request additional information or documents.
2.      On the nature of the ECS
43.      When interpreting the provisions of Regulation No 650/2012 and Implementing Regulation No 1329/2014 in so far as they relate to the ECS, the nature and characteristics of that instrument should be borne in mind.
44.      In light of Articles 62 and 63(1) of Regulation No 650/2012, the ECS is a document intended primarily to confirm the status and rights of heirs – generally in a Member State other than the state of its issue. (18) In addition, the ECS is an autonomous instrument of EU law, whose legal regime is defined by the provisions of Chapter VI of Regulation No 650/2012, (19) as further clarified by the provisions of Implementing Regulation No 1329/2014. Those provisions define the rules for issuing an ECS, its structure and the legal effects it produces. (20)
45.      The harmonisation of the ECS legal regime increases the chances of achieving the objectives set for that instrument, as it eliminates the typical difficulties associated with accepting documents issued in other Member States in accordance with their national laws. That is because the provisions governing the functioning of the ECS in legal transactions, including its form and structure, are generally binding in all Member States that apply Regulation No 650/2012. (21) In that sense, the ECS is not a document of another Member State, but a document common to all Member States.
46.      Nevertheless, it cannot be assumed that an ECS issued in another Member State operates as seamlessly as documents provided for by national law. That is primarily due to the lack of harmonisation of succession law at the EU level. In its main part, the ECS certifies the circumstances related to the legal effects of opening the succession resulting primarily from the law applicable to the succession, which is the law of the Member State or third country designated in accordance with Regulation No 650/2012.
47.      It may not be certain, therefore, that the information contained in the ECS will be correctly interpreted in other Member States, especially as it may not be obvious to the issuing authority itself how that information should be included. That is because the ECS is issued on a form, the use of which is mandatory. (22) The information contained in the ECS form is the result of assigning the individual effects of succession to specific fields therein. The method of assigning those effects is not necessarily obvious in light of the provisions of the law applicable to the succession. (23)
48.      Therefore, the autonomous nature of the ECS does not eliminate all the difficulties associated with using a document drawn up in another Member State, as its content in the main part is the result of findings made on the basis of the law of one of the Member States or a third country, (24) which, as a rule, will not be the law of the Member State in which the ECS is to be used. (25)
49.      The provisions of Regulation No 650/2012 show that the EU legislature was aware of those difficulties and sought to mitigate them by pointing out the need to take into account certain legal provisions applicable in other Member States when issuing an ECS. This is evidenced, for instance, by recital 68 of the regulation, which emphasises the need to have regard, when issuing an ECS containing information on immovable property, to the requirements of the registration law of another Member State concerning the description of immovable property.
50.      However, it does not follow from the above that the EU legislature considered that the form and content of a given ECS should be subject to the provisions of the law of the Member State governing the proceedings in which it is to be used. That is because the ECS is not a single-use document, a substrate of an application provided for in national law, but rather an autonomous document. It is intended to have broad application, both in other proceedings and for purposes other than those which justified its issue, and in Member States other than the one in which the need to issue it arose. This is evidenced by a number of provisions of Regulation No 650/2012.
51.      Firstly, that regulation defines the effects of the ECS in an autonomous manner. Therefore, those effects arise independently of the effects produced by the relevant national documents certifying the status and rights of heirs. Thus, Article 69(2) of Regulation No 650/2012 establishes a presumption that the heir holds the rights or the powers stated in the ECS, with no conditions and/or restrictions being attached to those rights or powers other than those expressly set out in the ECS. Paragraphs 3 and 4 of that article provide for the protection of third parties acting in good faith who have performed acts involving persons authorised in accordance with the ECS; and specifically a person making a payment or passing on property to a person authorised under the ECS, and a person acquiring a right belonging to the estate from a person authorised under the ECS. Pursuant to paragraph 5 of that article, the ECS is a valid document for the recording of succession property in the relevant register of a Member State, without prejudice to points (k) and (l) of Article 1(2) of Regulation No 650/2012. At the same time, pursuant to recital 71 of that regulation, the evidentiary effect of the ECS should not extend to elements which are not governed by the regulation, such as the question of whether or not a particular asset belonged to the deceased.
52.      Secondly, the ECS has the above effects irrespective of the purpose indicated in the application for its issue. That purpose is not known to third parties, as the ECS form contains no such information. (26) Therefore, once issued, an ECS functions in legal transactions and produces specific effects depending on its content, regardless of the original purpose of its issue.
53.      Thirdly, the validity of the ECS is not limited in time. Article 70(3) of Regulation No 650/2012 provides for a six-month validity period only for copies of an ECS, not for the ECS itself. As is apparent from Article 70(1), read in the light of recital 72 of that regulation, the ECS itself is kept by the issuing authority. (27)
54.      Fourthly, it also follows from Article 70(1) of Regulation No 650/2012 that the issuing authority may issue copies not just to the applicant, but also to any person demonstrating a legitimate interest. (28)
55.      Fifthly, pursuant to Article 62(3) of Regulation No 650/2012, once issued, the ECS produces the effects listed in Article 69 of that regulation also in the Member State of the issuing authority. Consequently, the territorial scope of its application in the Member States is unlimited.
56.      In light of the above, it should be recognised that even if the justification for issuing the ECS is the heir’s specific need to demonstrate his or her status and rights in another Member State, the resulting document was not intended to serve only one specific purpose, such as, in particular, the recording of the heir’s rights in the land register of another Member State where the inherited immovable property is registered. Instead, it was created as a document intended for potentially broad use in legal transactions, including by persons other than the heir and also for purposes other than those justifying its issue.
57.      In that context, the need for security of legal transactions calls for great caution when issuing guidelines to authorities on how to draw up an ECS and what information should be included therein. Given the potentially wide range of uses of an ECS and the risk of the information contained therein being misinterpreted, I believe that the ECS should, first and foremost, be a reliable and complete source of information on the status and rights of heirs under the law designated by the provisions of the regulation as applicable to the succession. The scope of the information contained therein should be limited to the elements required under the regulation and relevant from the point of view of the effects caused by the ECS in accordance with Article 69 of Regulation No 650/2012. On the other hand, the ECS should not include information that is not necessary for the parties to legal transactions to determine the scope of the heirs’ rights and obligations. It should likewise not include information whose certification does not fall within the competence of the issuing authority and whose inclusion in the ECS could give a false impression as to the official certification of circumstances which the ECS is not intended to certify. In any event, its content should not be determined by the requirements laid down in the laws of the Member States for the corresponding national documents.
3.      On the (lack of) obligation to include information about the assets of the estate in the ECS in the case of universal succession
58.      In order to analyse the issue of the obligation to include information about inherited immovable property in the ECS, I will discuss the provisions specifying the content of the ECS, the scope of competence of the issuing authority and the procedure for issuing the ECS. I will subsequently examine whether the results of the analysis of those provisions allow the regulation to achieve its objectives and the ECS to fulfil its functions. Finally, I will propose answers to the questions referred.
(a)    Regulations defining the content of the ECS
59.      The content of Regulation No 650/2012 leaves no doubt that the EU legislature provided for the possibility of including information on the assets of the estate in the ECS and that it intended to use that instrument to make it easier for heirs to make entries in land registers in other Member States.
60.      Firstly, the possibility of indicating specific assets of the estate in the ECS follows directly from the wording of Article 63(2)(b) and Article 68(l) of Regulation No 650/2012, as well as from point 9 of Annex IV to the ECS form, which I will discuss in detail below. Secondly, it follows from recital 68 of Regulation No 650/2012 that the authority issuing the ECS should have regard to the formalities required for the registration of immovable property in the relevant Member State, and Article 77 of the regulation establishes an obligation for the Member States to provide fact sheets listing all the documents and/or information usually required for the purposes of registration of immovable property located on their territory. Thirdly, Article 66(5) of Regulation No 650/2012 permits an authority of a Member State to provide the issuing authority of another Member State with information held, in particular, in land registers.
61.      However, it is not clear from the above in which cases the ECS should contain information on the assets of the estate. First of all, it cannot be assumed that the fact that the EU legislature included in Regulation No 650/2012 provisions on making entries in land registers and introduced mechanisms to facilitate the inclusion in the ECS of information enabling such entries to be made is tantamount to the obligation to indicate in the ECS the assets of the estate entered in the relevant registers. The mere existence of such mechanisms does not mean that they must be used; they are not Chekhov’s shotgun hanging on a wall.
62.      Can it therefore be deduced from the provisions of Regulation No 650/2012 that they impose an obligation to indicate the assets of the estate in the ECS, and in what circumstances?
63.      Most importantly, the indication of the assets of the estate in the ECS is provided for in Article 63 of Regulation No 650/2012 concerning the purpose of issuing an ECS. According to Article 63(2)(b), the ECS may be used ‘in particular’ to demonstrate ‘the attribution of a specific asset or specific assets forming part of the estate to the heir(s) … mentioned in the Certificate’.
64.      There are no significant differences between the language versions of that provision. (29) It follows that the ECS should indicate specific assets of the estate that were the subject of the ‘attribution’. (30) Although it is difficult to interpret the latter term unambiguously, it appears to indicate the existence of a special basis for the transfer of the right to a specific asset of the estate to the heir.
65.      Furthermore, the possibility of indicating the assets of the estate in the ECS stems directly from Article 68 of Regulation No 650/2012, which defines the contents of the ECS. According to Article 68(l), the ECS may indicate ‘the share for each heir and, if applicable, the list of rights and/or assets for any given heir’.
66.      Thus, when describing the heir’s title to the assets of the estate, that provision does not use the same term as Article 63(2)(b) of the same regulation. This difference in terminology is present in multiple language versions. In addition, the provision mentions not only assets, but also rights. The only conclusion that can be drawn is that the scope of information to be indicated in the ECS pursuant to Article 68(l) in fine of the regulation is broader than the scope of information indicated in Article 63(2)(b) thereof. (31)
67.      However, the interpretation of Article 68(l) in fine of Regulation No 650/2012 is relevant to the present case. According to that provision, the ECS may contain the list of rights and/or assets for an heir, whether this be any heir or a specific or given heir. (32)
68.      The discrepancies between the language versions do not allow for overly far-reaching conclusions to be drawn as to the scope of application of that provision. Nevertheless, as was the case with Article 63(2)(b) of Regulation No 650/2012, it appears that the provision concerns the existence of a special title under which rights to a specific asset of the estate are to be transferred, rather than the composition of the estate as such.
69.      The existence of such a special title to specific assets of the estate is also indicated by the use of the phrase ‘if applicable’ in Article 68(l) in fine of Regulation No 650/2012. It precedes the words ‘the list of rights and/or assets for any given heir’, but does not appear before the words ‘the share for each heir’ in the first part of Article 68(l) of Regulation No 650/2012.
70.      As indicated by the referring court, German case-law and legal literature largely support the view that the term ‘if applicable’ refers to situations in which the assets of the estate are transferred to a specific heir with material effect, but does not apply to the transfer of the estate by way of universal succession. Such views have also been expressed in the legal literature of other Member States. (33)
71.      Other legal scholars disagree with that view, arguing that the purpose of issuing a given ECS determines whether it is necessary to include information about the assets of the estate. (34)
72.      The Czech and Spanish governments and the Commission also support the latter position in the present case. In particular, they argue that the words ‘if applicable’ used in Article 68(l) of Regulation No 650/2012 refer to the purpose of issuing the ECS in question as provided for in Article 63 of that regulation. This would mean that if the purpose of issuing the ECS is to disclose the heir’s right in a land register in one of the Member States, and the condition for obtaining the entry is that the inherited immovable property must be indicated in the ECS, then that is a situation justifying the listing of that immovable property in the ECS. In other words, ‘if applicable’ should be interpreted as meaning ‘if justified by the purpose of issuing the ECS’.
73.      In my view, a systemic interpretation of Article 68 of Regulation No 650/2012 does not support that argument, as it is already clear from the first subparagraph of the article that the ECS contains certain information, including that provided for in letter (l), to the extent required for the purpose for which it is issued. If the phrase ‘if applicable’ in Article 68(l) of Regulation No 650/2012 were to be interpreted as meaning ‘if justified by the purpose of issuing the ECS’, the proviso ‘if applicable’ would be superfluous. Given that such an additional stipulation was used, it was probably meant to signal that this indication would be made if certain special circumstances justified it.
74.      What special circumstance, then, lies behind the words ‘if applicable’?
75.      It is worth noting that Article 68(l) of Regulation No 650/2012 provides, firstly, for the inclusion of information on the share for each heir and only then, ‘if applicable’, for a list of rights and/or assets of the estate. Attention must be drawn to the fact that the EU legislature adopted a clear structure for listing the information contained in the ECS – it is divided into fifteen points, each of which includes a different type of information. As the share of the heirs in the estate and, possibly, the assets of the estate that fall to them are mentioned in the same point, it should be assumed that in both cases the issue is one of determining all rights to the succession by applying rules of the same type, namely rules that determine the scope of the heirs’ rights to the succession.
76.      The scope of the heirs’ rights to the succession may be determined in relation to all of the testator’s rights and obligations – by indicating the heir’s share in the estate, or in relation to specific assets of the estate – by specifying the right of an individual heir or specific heirs to a specific asset. For instance, an heir may also be a legatee by vindication. Alternatively, the provisions of the law applicable to the succession may provide for specific rights of the testator’s spouse to certain assets of the estate regardless of that spouse’s share in the estate. There may also be special rules imposing restrictions concerning or affecting the succession for economic, family, or social reasons in respect of certain assets, as referred to in Article 30 of Regulation No 650/2012. (35) In addition, it cannot be ruled out that there are succession law provisions that allow for the drafting of a will providing for partition, by which the testator shares out the various assets of his or her estate with material effect.
77.      It is therefore logical to me that the EU legislature, when providing in Article 68(l) of Regulation No 650/2012 for the inclusion in the ECS of information on the scope of the heirs’ rights to the succession, had to take into account the fact that the mere indication of the share in the estate might prove insufficient for that information to be correctly presented. That will be the case if the provisions of the law applicable to the succession, possibly in conjunction with a valid disposition of property upon death, provide for special rules governing the transfer of certain assets of the estate to the heir with material effect. (36) In such a situation, it will be necessary to determine the rights of the heirs in relation to a given asset of the estate rather than in relation to the testator’s overall property rights and obligations. (37) That is not the case with universal succession.
78.      According to the interpretation proposed by the Commission and the Czech and Spanish governments, Article 68(l) of Regulation No 650/2012 concerns in its first part the shares of the heirs in the estate, and in its second part the inclusion of assets in the estate. Under that interpretation, the information would be of a completely different nature: the first part would concern the scope of the heir’s rights, determined on the basis of the law applicable to the succession, and the second part would concern the assets of the estate, resulting from determinations made essentially on the basis of rights in rem. Due to the different nature of that information, one would rather expect that if this had been the intention of the EU legislature, which consistently enumerated in subsequent points the categories of information to be included in the ECS, the legislature would have provided a separate point for indicating the assets of the estate.
79.      Meanwhile, no such inconsistency and incoherence on the part of the EU legislature can be discerned if it is recognised, as I suggest above, that the words ‘if applicable’ refer to the existence of special rules providing for succession in title in relation to specific assets of the estate rather than in relation to the testator’s rights and obligations as a whole. That interpretation also allows us to understand why, in many language versions of Article 68(l) of Regulation No 650/2012, terms are used that suggest the need for special titles of individual heirs to specific assets of the estate.
80.      The content of Annex IV to the ECS form does not contradict that interpretation. Of course, the content of those points cannot be decisive for the interpretation of Regulation No 650/2012, as the ECS form was adopted by means of a Commission implementing regulation, that is to say, an act of lower rank than a regulation. Therefore, the content of the implementing regulation is a consequence of the Commission’s specific interpretation of the provisions of Regulation No 650/2012. Nevertheless, it is worth noting that Annex IV of the ECS form provides for a separate field for information on the share of the estate (point 8) and a separate field for information on the assets attributed (point 9). Neither of those two points has been marked as mandatory. (38) This reflects the consideration that the scope of an heir’s rights to the succession can be defined in various ways.
81.      Having regard to the above, I am of the view that it follows from the provisions of Regulation No 650/2012 that the issuing authority is not obliged to include information on the inherited assets of the estate in the ECS where the estate is transferred by way of universal succession. In such a situation, indicating the share attributed to the heir is sufficient to present the scope of the heir’s rights to the succession.
(b)    Provisions defining the scope of competence of the authority issuing the ECS
82.      The above interpretation is borne out by the provisions of the regulation that define the scope of competence of the authority issuing the ECS.
83.      Pursuant to Article 67 of Regulation No 650/2012, the issuing authority issues the ECS when the elements to be certified have been established under the law applicable to the succession or under any other law applicable to specific elements. As regards the final part of that sentence, it follows from recital 71 of the regulation that it concerns issues such as the substantive validity of dispositions of property upon death. Therefore, the cited provision refers to the provisions of Chapter III of Regulation No 650/2012 headed ‘Applicable law’. The articles contained therein, in particular Articles 21, 22, and 23, concern the determination and scope of the law applicable to the succession as a whole. Subsequent articles concern the law applicable to issues such as the validity of dispositions of property upon death, agreements as to succession, and declarations concerning the acceptance or waiver of the succession.
84.      Almost none of the articles in Chapter III of Regulation No 650/2012 regulate in detail issues relating to the succession by referring to specific assets of the estate. (39)
85.      In light of the above, it should be assumed, in my view, that the inclusion of information about the assets of the estate would fall within the competence of the authority issuing the ECS, if it were necessary under the law applicable to the succession as a whole. The scope of that law is defined in Article 23(2) of Regulation No 650/2012. Under Article 23(2)(e) of Regulation No 650/2012, the applicable law determined in accordance with Articles 21 and 22 of that regulation is to govern the transfer to the heirs and, as the case may be, to the legatees, of the assets, rights and obligations forming part of the estate, including the conditions and effects of the acceptance or waiver of the succession or of a legacy. However, it does not follow from that provision that the scope of the law applicable to the succession as a whole includes issues concerning the determination of whether specific assets belong to the testator’s estate.
86.      This should come as no surprise. Under its Article 1(1), Regulation No 650/2012 applies to succession to the estates of deceased persons. For the purposes of the regulation, Article 3(1)(a) defines the term succession as covering all forms of transfer of assets, rights and 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. Therefore, the law applicable to the succession as a whole determines the rules for transferring the assets of the estate to the testator’s successors in title. The inclusion of certain assets in the estate is not covered by the law applicable to the succession as a whole and does not fall within the scope of Regulation No 650/2012. That is clearly confirmed by the content of recital 71 of the regulation, referred to earlier. It provides that the evidentiary effect of the ECS should not extend to elements which are not governed by the regulation, such as the question whether or not a particular asset belonged to the deceased.
87.      Meanwhile, in the case of universal succession, confirming whether a given asset is included in the estate would amount to nothing more than determining whether that asset belonged to the deceased. Thus, in essence, the activities involved would be those in respect of which the EU legislature explicitly indicated in recital 71 of Regulation No 650/2012 that they are not subject to the provisions of the regulation. Therefore, determining whether specific assets are included in the estate does not fall within the competence of the authority issuing the ECS, as it goes beyond the issues governed by the law applicable to the succession or any other law applicable to specific elements within the meaning of Article 67 of Regulation No 650/2012.
88.      The situation is different in the case of singular succession, where such a determination is necessary in order to define the subject of succession. Without a precise definition of the asset of the estate that is the subject of succession in title, it is impossible to determine the scope of the heir’s right acquired through succession.
(c)    Provisions governing the procedure for issuing an ECS
89.      The analysis of the provisions of Regulation No 650/2012 governing the procedure for issuing an ECS also supports the view that those provisions do not indicate that the assets of the estate should be indicated in the ECS in the case of universal succession.
90.      That procedure is regulated in Article 66 of Regulation No 650/2012. It is based on an application, and the task of the issuing authority is to verify the information and declarations, as well as documents and other evidence, provided by the applicant. The article twice (in the second sentence of paragraph 1 and in paragraph 3) makes the issuing authority’s powers (to carry out verification of its own motion  and to require that declarations be made on oath, respectively) dependent on the scope of powers provided for in national law.
91.      The procedure for issuing an ECS therefore has not been fully harmonised. If national law does not permit the authority to take actions of its own motion and does not provide for the possibility of making declarations on oath as regards determining the assets included in the estate, then the issuing authority can only verify the claims made and documents provided by the applicant. In those circumstances, if the applicant requests confirmation of the heir’s rights to assets of the estate located in another Member State and covered by universal succession, the task of the issuing authority boils down to analysing the documents submitted by the applicant.
92.      In the case of universal succession, such a procedure is unnecessary, time-consuming, costly and inefficient.
93.      Firstly, it is unnecessary because verification by the issuing authority of whether the asset is included in the estate is superfluous, as pursuant to the provisions of the law applicable to the succession the heir has inherited a share in the estate, which is already apparent from the content of the ECS. Demonstrating the testator’s title to a specific asset implies, in the absence of special information requiring a different determination, that the rights to that asset have passed to the heirs in the shares indicated in the ECS. Indeed, it is unnecessary to record the asset in the ECS as the evidentiary value of the ECS does not extend to the asset’s inclusion in the estate. The regulation does not provide that such an entry results in the presumption that the asset belongs to the estate.
94.      Secondly, it is time-consuming and costly as it requires making determinations based on foreign law and documents, obtaining copies and possibly authenticating documents, and often making translations into the official language of the authority issuing the ECS. As a starting point, the issuing authority would have to determine whether the documents submitted for verification are authentic and whether they prove that the asset belongs to the estate. That requires an analysis of foreign law and, possibly, consultation with the authorities of another Member State. (40) In the latter case, translations into the official language of another Member State may be required. Furthermore, in order to enable the issuing authority to carry out that assessment, the applicant would have to bear the costs of obtaining copies of the relevant documents in the Member State where the immovable property is located, and, if those are drawn up in a language other than the official language of the issuing authority, also the costs of translating them into that language and subsequently translating the obtained copy of the ECS into the official language of the Member State where the immovable property is located.
95.      Thirdly, it is inefficient because in all cases where determinations are based on copies of documents issued by the registration authority, the relevant determinations as to the inclusion of an asset in the estate are made on the basis of information held by that authority, which is, on the one hand, the source of information on the assets of the estate recorded in the register it keeps (by issuing relevant copies for submission to the issuing authority) and, on the other, the recipient of the information it has itself generated and entered in the ECS after that information has been translated twice (following an application for entry of the heir’s rights in the register on the basis of the ECS). In that context, the certification of a copy originating from the registration authority by the authority issuing the ECS so that the registration authority can record the change of ownership of the registered asset appears to be rather superfluous. Nor does it provide any guarantee that an entry will be made in the register, because the final assessment of the completeness and accuracy of all the information provided from the point of view of registration law requirements is the responsibility of the registration authority, as emphasised by the EU legislature in recital 18 of Regulation No 650/2012. That may mean the ECS issued has to be amended according to the requirements of registration authorities. (41)
(d)    Consequences of adopting the proposed interpretation
96.      An interpretation according to which the provisions of Regulation No 650/2012 do not require the assets of the estate to be indicated in the ECS in the case of universal succession can, of course, be criticised for failing to take into account the objectives of the ECS and its function as a document forming the basis for the entry of the rights of heirs in a land register in another Member State.
97.      Firstly, I would like to point out that not all Member States have registration laws that make the entry of an heir’s rights in the register in which the inherited immovable property is recorded conditional on that property being indicated in the ECS. (42) The proposed interpretation does not change anything in terms of the effectiveness of the ECS in those Member States.
98.      Secondly, it should be remembered that it follows from the judgment in Registrų centras that the lack of information about the immovable property in the ECS does not call into question its validity as such as regards the other elements which it certifies, for instance the status of heir, (43) and that from recital 18 of Regulation No 650/2012 it follows that heirs should be able to supplement the information required under the registration law by providing additional information or documents. Indeed, the Czech legislature has complied with the guidelines resulting from the latter recital by providing for the possibility for heirs to submit a declaration to supplement the information whose absence from the ECS prevents an entry being made on the basis of the ECS alone. (44)
99.      The proposed interpretation does not therefore prejudge the ineffectiveness of the ECS as a document forming the basis for making an entry in the register. At the same time, it should contribute to increasing the security of legal transactions.
100. Firstly, it confirms the limits of the competence of the authority issuing the ECS as the authority with the power to certify the elements that arise from the law applicable to the succession and that are relevant to the effects of the ECS as set out in Article 69 of Regulation No 650/2012. Including information in the ECS on the assets of the estate in the case of universal succession, however, may give rise to the mistaken belief on the part of those to whom the ECS is presented that it also constitutes official certification that a specific asset belongs to the estate, which the ECS does not in fact certify. (45)
101. Secondly, the proposed interpretation avoids the risk of incorrect or inaccurate certification of elements in respect of which the authority issuing the ECS in a Member State whose law does not provide for such activities at the stage of certifying rights to the succession is not prepared and for which it does not have the appropriate tools and knowledge.
102. Thirdly, the ECS, which is used in legal transactions and is already a voluminous document, is not burdened with unnecessary information, the inclusion of which could give rise to various doubts on the part of third parties. In particular, it appears to me that including information about certain assets of the estate that were transferred by universal succession may give rise to doubts among third parties as to the significance of other assets of the estate not being indicated in the ECS. The concern is that third parties may make certain transactions with heirs who are using an ECS to legitimise their entitlements dependent on the inclusion therein of information about other assets of the estate that are relevant to the transaction being conducted. This may require the ECS to be supplemented several times.
103. I wish to point out that where the estate is transferred by way of universal succession to more than one person, the inclusion of information about the inherited asset should entail the inclusion of precise information on the restrictions on the possibility of disposing of shares in that asset in point 10 of Annex IV to the ECS form, as Article 69(2) of Regulation No 650/2012 establishes a presumption that the heir holds the rights or the powers stated in the ECS, with no conditions and/or restrictions being attached to those rights or powers other than those expressly set out therein. Meanwhile, in the case of universal succession, the powers of co-heirs to dispose of their shares in the estate prior to the division of the estate are often limited. (46) In such a case, in parallel with the inclusion of information about the asset of the estate or the share in that asset, information about restrictions on the possibility of disposing of that asset or share resulting from the law applicable to the succession should also be included in the ECS. Otherwise, the ECS will be misleading as to the scope of the heir’s rights under that law.
(e)    Answer to the questions
104. Having regard to the above, I am of the view that Article 68(l) of Regulation No 650/2012 must be interpreted as meaning that the authority issuing the ECS is not obliged to include therein, at the request of the applicant, information about immovable property located in another Member State that is included in the estate where the transfer of the estate takes place by way of universal succession. That is the case regardless of the requirements of the registration law of the Member State in which the inherited property is located with respect to the documents forming the basis for entries in the land register.
4.      On the possibility of accepting an interpretation other than the one proposed
105. The applicants in the main proceedings, the Czech and Spanish governments and the Commission propose a different interpretation of Article 68(l) of Regulation No 650/2012 (47) from that presented above. They take the view that the objectives of the regulation and the ECS militate in favour of including information about inherited immovable property in the ECS, if this allows the requirements of registration law to be met and an entry to be made in the register in which that property is recorded. Otherwise, the issued ECS will not fulfil its function.
106. I have already pointed out the negative consequences of adopting such an interpretation for the ease, speed, and efficiency of the procedure for issuing an ECS.(48) I would like to stress that such an interpretation places issuing authorities in Member States whose procedural rules do not provide, in similar proceedings, for confirmation of the inclusion of specific assets in the estate or, in general, for drawing up an inventory, in a particularly difficult situation. That is because those authorities are supposed to certify the heir’s ownership or other rights to a specific asset of the estate while operating in a procedural vacuum, that is to say, according to undefined rules, and also on the basis of foreign property law and documents drawn up in another Member State. Moreover, the certification concerns elements that the ECS is not meant to certify.
107. If, however, the Court were to find the above arguments irrelevant and to agree with the interpretation of Article 68(l) of Regulation No 650/2012 put forward by the applicants in the main proceedings, the Czech and Spanish Governments and the Commission, the first question submitted by the referring court would have to be answered in the affirmative and the second question in the negative.
108. That is because it follows from the judgment in Registrų centras that the absence in the ECS of information on inherited immovable property which is required under the registration law of a Member State in which that property is located constitutes sufficient grounds for rejecting an application for an heir’s rights to be entered in the register if it is the only document submitted in support of the application. (49) Therefore, if the decisive factor in the interpretation is the achievement of the objective of entering the heir’s right in the register kept in the Member State where the inherited property is located, and the condition for entry in that register is the inclusion of information about the inherited property in the ECS, then the required information should be included in the ECS by the issuing authority also where the rights to an asset are acquired as a result of the estate being transferred by way of universal succession.
109. In such a situation, the third question submitted by the referring court should be examined separately.
110. That question is based on the assumption that in the present case, the entry of the heirs in the land register kept in the Czech Republic on the basis of an ECS that does not contain information about the inherited immovable property is possible under Paragraph 69(6) of the Decree on the Cadastral Register. At first glance, that provision makes it possible to supplement an ECS that does not contain all the required information about the inherited immovable property by submitting a declaration containing that information. The question is thus raised of whether, in such a situation, it is also necessary to include in the ECS information about the inheritance of immovable property.
111. It follows from the written observations of the applicants in the main proceedings and of the Commission that the above assumption is incorrect. They argue that in the present case, the applicants in the main proceedings could not avail themselves of the possibility provided for in the provision referred to above because they are indirect successors in title of the testator entered in the land register, and the declaration provided for in that article could only be made by his direct successor in title, namely the testator’s deceased wife.
112. There is no basis for, or possibility of, disputing those claims. Since, in the present case, it is not possible to enter the rights of the heirs in the register pursuant to Paragraph 69(6) of the Decree on the Cadastral Register, a question based on the assumption that that is possible is hypothetical and therefore inadmissible. (50)
113. However, in case the Court does not share that assessment, I shall briefly analyse that question.
114. It follows from Article 68 of Regulation No 650/2012 that the ECS should contain information to the extent required for the purpose for which it is issued. On that basis, it can be argued that since the inclusion in the ECS of information about the immovable property is not required for the purpose of entering the heir’s rights in the land register, because that entry can be made after submitting an additional declaration, then its inclusion in the ECS can be refused, as it is not required for the purpose for which the ECS is issued.
115. I am of the view that if the registration law of the place where the inherited immovable property is located clearly stated that the inclusion of information about the inherited immovable property in the ECS is not necessary for the purpose of making an entry in the register kept in the Member State where the property is located, the issuing authority would have grounds to refuse to include that information, citing Article 68 of Regulation No 650/2012, as that information would not be required for the purpose of issuing the ECS in question.
116. However, the issuing authority should be certain that the information concerned is not actually required. Where registration law provides for the obligation to submit a document containing the relevant information as the basis for making an entry, but provides for exemptions from that obligation for the ECS, a request to include information in the ECS should only be refused where there is no doubt as to whether the conditions for applying that exemption can be met in a given case.
117. In view of the above, I believe that if an interpretation of Article 68(l) other than the one I have proposed is adopted and the third question is deemed admissible, then the answer to that question should be that the issuing authority is not obliged to include information on the inherited immovable property in the issued ECS if the registration law in the Member State where the immovable property is located provides for the possibility of entering the heirs’ rights in the register on the basis of an ECS that does not contain such information if certain conditions are met, such as the submission of an appropriate declaration containing the missing information or the submission of specific documents, provided, however, that it must be objectively possible for the heirs to meet those conditions.
V.      Conclusions
118. In the light of the foregoing considerations, I propose that the Court should answer the first, second and third questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:
Article 68(l) 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
must be interpreted as meaning that the authority issuing the European Certificate of Succession is not obliged to include therein, at the request of the applicant, information about immovable property located in another Member State that is included in the estate where the transfer of the estate takes place by way of universal succession. That is the case regardless of the requirements of the registration law of the Member State in which the inherited property is located with respect to the documents forming the basis for entries in the land register.
1      Original language: Polish.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      Regulation 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).
3      My Opinion in Registrų centras and Others (C‑354/21, ‘the Opinion in Registrų centras’, EU:C:2022:587).
4      See, in particular, points 52-61 of my Opinion in Registrų centras.
5      Judgment of 9 March 2023 (C‑354/21, ‘the judgment in Registrų centras’, EU:C:2023:184).
6      The question referred in that case did not concern the obligations of the authority issuing the ECS, but rather the obligations of the registration authority examining the application for entry of the heir’s rights in the register on the basis of an ECS that did not contain the information required under registration law about the inherited immovable property.
7      Commission Implementing Regulation 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 (OJ 2014 L 359, p. 30).
8      The French version of footnote 13 does not contain that sentence.
9      This is not specified in the request for a preliminary ruling, but in the absence of other information, I assume that the national courts have assessed that such a will is valid under succession law.
10      Judgment of 23 January 2025  (C‑187/23, EU:C:2025:34).
11      Judgment of 23 January 2025, Albausy (C‑187/23, EU:C:2025:34, paragraphs 66 and 67).
12      See, in particular, judgment of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraphs 57-59 and 63).
13      Judgment of 12 October 2017, Kubicka (C‑218/16, EU:C:2017:755, paragraph 56).
14      And also, as per Article 63(1) of Regulation No 650/2012, legatees with direct rights to the succession, executors of wills or administrators of the estate. In the remainder of the present Opinion, I shall refer only to heirs. My comments will apply accordingly also to legatees with direct rights to the estate.
15      See, on the subject of the ECS in the scheme of Regulation No 650/2012, points 39-46 of my Opinion in Registrų centras.
16      Judgment in Registrų centras
(paragraph 51).
17      Judgment in Registrų centras
(paragraph 52).
18      On the one hand, pursuant to Article 62(1) of Regulation No 650/2012, an ECS is issued for use in another Member State. On the other hand, Article 62(3) of that regulation provides that it also produces the effects provided for in that regulation in the Member State of the issuing authority.
19      Judgment in Registrų centras (paragraph 40 and the case-law cited therein).
20      This does not preclude the adoption of national legislation that defines certain issues not covered by EU law.
21      I should point out that Ireland and Denmark do not apply Regulation No 650/2012 (see recitals 82 and 83 of the regulation). For the sake of simplicity, when referring to the territorial scope of Regulation No 650/2012 further in the present Opinion, I shall refer to the European Union and to the Member States of the European Union, meaning the Member States that apply Regulation No 650/2012.
22      Judgment of 17 January 2019, Brisch (C‑102/18, EU:C:2019:34, paragraph 30).
23      See, for instance, judgment of 1 March 2018, Mahnkopf (C‑558/16, EU:C:2018:138, paragraphs 38-44), concerning the way in which information on the share falling to the surviving spouse under provisions concerning matrimonial property regimes in Paragraph 1371(1) BGB is included in the ECS.
24      Article 20 of Regulation No 650/2012 provides that any law specified by that regulation applies whether or not it is the law of a Member State.
25      That is not impossible, however. Leaving aside situations in which the ECS is used in the Member State in which it was issued (see footnote 18 above), it is conceivable that, as a result of the testator’s choice of the law applicable to the succession, that being the law of the country where the inherited immovable property is located, the ECS will certify the circumstances established under the law of the place where the immovable property is located rather than under the law of the Member State of the issuing authority.
26      Unlike the ECS application form in Annex 4 to Implementing Regulation No 1329/2014, which includes a separate field for indicating the purpose for which the ECS is to be issued.
27      Judgment of 1 July 2021, Vorarlberger Landes- und Hypotheken-Bank (C‑301/20, EU:C:2021:528, paragraph 21).
28      Judgment of 1 July 2021, Vorarlberger Landes- und Hypotheken-Bank (C‑301/20, EU:C:2021:528, paragraph 42).
29      See, in particular, the French- (‘l’attribution d’un bien déterminé ou de plusieurs biens déterminés’), German- (‘die Zuweisung eines bestimmten Vermögenswerts oder bestimmter Vermögenswerte’), Italian- (‘l’attribuzione di uno o più beni determinati’), Polish- (‘przyznania … konkretnego składnika majątku lub konkretnych składników majątku’), Portuguese- (‘A atribuição de um bem ou bens determinados específicos’) and Spanish- (‘la atribución de uno o varios bienes concretos’) language versions.
30      French ‘attribution’, German ‘Zuweisung’, Italian ‘attribuzione’, Polish ‘przyznanie’, Portuguese ‘atribuição’ and Spanish ‘atribución’.
31      However, this does not necessarily imply a contradiction between the two provisions. That is because the list of ECS objectives set out in Article 63(2) of Regulation No 650/2012 is not exhaustive, as indicated by the use of the words ‘in particular’ in the first part of that provision (see point 63 of the present Opinion).
32      See, for instance, the French- (‘à un héritier déterminé’), German- (‘einem bestimmten Erben’), Italian- (‘a ogni erede’), Polish- (‘każdemu ze spadkobierców’), Portuguese- (‘um determinado herdeiro’) and Spanish- (‘a cada heredero determinado’) language versions.
33      See Margoński, M., Europejskie poświadczenie spadkowe, Wolters Kluwer, Warsaw, 2022, p. 429.
34      See Bonomi, A., and Wautelet, P., ‘Article 68. Contenu du certificat’, in Le droit européen des successions, 2nd ed., Bruylant, Brussels, 2016, p. 861; Budzikiewicz, C., ‘Contents of the Certificate’, in Calvo Caravaca, A.-L, Davì, A., and Mansel, H.-P. (eds), The EU Succession Regulation: A Commentary, Cambridge University Press, Cambridge, 2016, p. 763; Semelová, M., ‘Praktische Probleme mit dem (deutschen) Europäischen Nachlasszeugnis in der Tschechischen Republik’, Zeitschrift für das Privatrecht der Europäischen Union (GPR), 2018, No 4, p. 201.
35      In the past, Polish succession law provided for special rules regarding the inheritance of farms. In the practice of many courts, the ruling certifying the effects of succession included separate decisions on the inheritance of the estate and on the inheritance of the farm.
36      This does not apply, in particular, to legacy by damnation. In such a case, the transfer of an asset of the estate to a given heir who is also a legatee will only be the result of dispositive acts and not the result of the opening of the succession.
37      See, to that effect, Alonso Landeta, G., ‘Artículo 68. El contenido del certificado sucesorio’, in Iglesias Buigues, J.L, and Pallao Moreno, G., (eds), Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012, Valencia, Tirant lo Blanch, 2015, pp. 542-543.
38      According to the instructions accompanying the ECS form, mandatory fields are marked with an asterisk. There is no asterisk next to either point 8 or point 9 of Annex IV to the ECS form.
39      The exception is the aforementioned Article 30 of the regulation, which provides that where the law of the State in which immovable property, enterprises or other special categories of assets are located contains provisions which impose restrictions concerning or affecting the succession in respect of those assets, those provisions apply to the succession in so far as, under the law of that State, they are applicable irrespective of the law applicable to the succession.
40      In that context, I would like to point out that national land registers may operate according to different rules, and the data contained therein may have different evidentiary value. In addition to the land and mortgage register system, which contains data on the legal title to immovable property and operates in Germany, Austria and Poland, some countries, such as France, Belgium or Portugal, have systems for registering deeds relating to immovable property; those systems include a collection of all the documents relating to a given property without providing information on its current legal status that would give rise to certain presumptions (legal guarantee of public credence). In the case of such registers, determining the current legal status of immovable property may not be obvious (Martínez Velencoso, L.M., ‘The Land Register in European Law: A Comparative and Economic Analysis’, in Martínez Velencoso, L.M., Bailey, S., and Pradi, A. (eds), Transfer of Immovables in European Private Law. The Common Core of European Private Law, Cambridge University Press, Cambridge, 2017, p. 11.).
41      See also, with regard to similar requirements imposed on other persons, Margoński, M., op. cit., p. 428. The author describes the experience of a Polish notary public who was obliged to amend an issued ECS that already contained information about the testator’s two accounts held with a bank in Luxembourg after it had been revealed that the testator had also opened a cash deposit with the same bank, a fact previously unknown.
42      Apart from Germany, this problem does not occur in Poland either. It also follows from the request for a preliminary ruling in the present case that, in its order of 15 May 2018 (5 Ob 35/18k, ZEV 2019, 353, paragraph 26), the Oberster Gerichtshof der Republik Österreich (Supreme Court of the Republic of Austria) ruled that the recording of inherited immovable property in the ECS is not required.
43      Judgment in Registrų centras
(paragraph 52).
44      As regards the applicability of that provision in the present case, see points 110-112 of the present Opinion.
45      As follows from recital 71 of Regulation No 650/2012, cited above.
46      I am referring here, in particular, to Paragraph 2033(2) of the BGB, according to which a co-heir may not dispose of a share in an asset belonging to the estate, as well as Article 1036 of the Kodeks Cywilny (Polish Civil Code), which provides that the transfer of a share in an asset of the estate is subject to the consent of the other heirs, otherwise the transaction will be invalid vis-à-vis the heirs if their rights related to the division of the estate are infringed.
47      See point 72 of the present Opinion.
48      See points 92-95 of the present Opinion.
49      Judgment in Registrų centras
(paragraph 51).
50      See, to that effect, judgment of 5 June 2025, Elektrorazpredelitelni mrezhi Zapad (C‑310/24, EU:C:2025:406, paragraph 44).