OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 20 January 2022 ( 1 )

Case C‑617/20

T.N.,

N.N.

v

E.G.

(Request for a preliminary ruling from the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen, Germany))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 650/2012 – Acceptance or waiver of a succession, a legacy or a reserved share – Declaration concerning the waiver of succession made before a court of the Member State in which the person making the declaration has his or her habitual residence – Validity)

I. Introduction

1. In adopting Regulation (EU) No 650/2012, ( 2 ) the EU legislature aimed to remove the obstacles to the free movement of persons who face difficulties in asserting their rights in the context of a succession having cross-border implications. To achieve that goal, the legislature provided, inter alia, that heirs and legatees would be able, as a rule, to make declarations concerning the acceptance or waiver of a succession, a legacy or a reserved share, or concerning the limitation of their liability for the debts under the succession, ( 3 ) in the form provided for by the law of the Member State of their habitual residence. However, it did not introduce any solutions concerning the transmission of such declarations to the courts with general jurisdiction to rule on a succession located in another Member State. Moreover, in one of the recitals of that regulation, it indicated that the burden of notifying those courts that such declarations had been made rested on the persons making them.

2. Against this background, doubts arise as to the validity of declarations concerning the acceptance or waiver of succession made before the courts of the State in which the person making the declaration has his or her habitual residence and which have not been transmitted to the courts having general jurisdiction to rule on the succession within the time limit laid down, in the appropriate form, or in a specific language. The Court’s judgment in the present case should help to dispel those doubts.

3. In my opinion, the fundamental issue, which should be resolved in order to dispel those doubts, is to determine the scope of the elements comprising the form of a declaration concerning the acceptance or waiver of a succession. In other words, this is about distinguishing, in the context of Regulation No 650/2012, between the scope of the law applicable to the succession and the scope of the law applicable to the form. As I shall demonstrate in my Opinion, resolving that issue will help to resolve the problems of interpretation encountered by the referring court.

II. Legal framework

A. European Union law

4. Recitals 7, 32 and 33 of Regulation No 650/2012 explain: ‘(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. … (32) In order to simplify the lives of heirs and legatees habitually resident in a Member State other than that in which the succession is being or will be dealt with, this Regulation should allow any person entitled under the law applicable to the succession to make declarations concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or concerning the limitation of his liability for the debts under the succession, to make such declarations in the form provided for by the law of the Member State of his habitual residence before the courts of that Member State. This should not preclude such declarations being made before other authorities in that Member State which are competent to receive declarations under national law. Persons choosing to avail themselves of the possibility to make declarations in the Member State of their habitual residence should themselves inform the court or authority which is or will be dealing with the succession of the existence of such declarations within any time limit set by the law applicable to the succession. (33) It should not be possible for a person who wishes to limit his liability for the debts under the succession to do so by a mere declaration to that effect before the courts or other competent authorities of the Member State of his habitual residence where the law applicable to the succession requires him to initiate specific legal proceedings, for instance inventory proceedings, before the competent court. A declaration made in such circumstances by a person in the Member State of his habitual residence in the form provided for by the law of that Member State should therefore not be formally valid for the purposes of this Regulation. Nor should the documents instituting the legal proceedings be regarded as declarations for the purposes of this Regulation.’

5. Pursuant to Article 13 of Regulation No 650/2012, entitled ‘Acceptance or waiver of the succession, of a legacy or of a reserved share’: ‘In addition to the court having jurisdiction to rule on the succession pursuant to this Regulation, the courts of the Member State of the habitual residence of any person who, under the law applicable to the succession, may make, before a court, a declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person concerned in respect of the liabilities under the succession, shall have jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court’.

6. Article 23 of Regulation No 650/2012, entitled ‘The scope of the applicable law’, provides, inter alia: ‘1. The law determined pursuant to Article 21 or Article 22 shall govern the succession as a whole. 2. That law shall govern in particular: … (e) 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; …’

7. Pursuant to Article 28 of Regulation No 650/2012, entitled ‘Validity as to form of a declaration concerning acceptance or waiver’: ‘A declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person making the declaration, shall be valid as to form where it meets the requirements of: (a) the law applicable to the succession pursuant to Article 21 or Article 22; or (b) the law of the State in which the person making the declaration has his habitual residence.’

B. German law

8. According to the provisions of the Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’): ‘Paragraph 1942. Devolution and waiver of succession. (1) The estate passes to the entitled heir without prejudice to the right to waive it (devolution of succession). … Paragraph 1943. Acceptance and waiver of succession. The heir may no longer waive succession if he or she has accepted it or if the period laid down for waiving succession has passed; on the expiry of the period, the succession is deemed to have been accepted. Paragraph 1944. Time limit for waiving succession. (1) Succession may be waived only within six weeks. (2) The period begins to run on the date on which the heir obtains knowledge of the devolution and of the reason for his or her entitlement. (3) The period is six months if the deceased had his or her last residence exclusively abroad or if the heir was resident abroad when the period began to run. Paragraph 1945. Form of the waiver of succession. (1) The waiver of succession is made by a declaration to the probate court; the declaration must be made in the presence of and recorded by the probate court or in notarially certified form.’

9. Paragraph 184 of the Gerichtsverfassungsgesetz (German Law on the Organisation of the Courts), in the version of 9 May 1975, ( 4 ) provides: ‘The official language of court proceedings shall be German …’

III. Facts, procedure and the questions referred

10. On 21 May 2018, the testator, W.N., died in Bremen (Germany). E.G., the applicant in the main proceedings (‘the applicant E.G.’), is the widow of the deceased, and T.N. and N.N., parties to the main proceedings (‘the parties T.N. and N.N.’; ‘the parties’) are descendants of the deceased’s brother, who had predeceased him.

11. By a notarial instrument dated 21 January 2019, the applicant E.G. applied for a certificate of inheritance (Erbschein), stating that she was to inherit three quarters of the estate and that the parties T.N. and N.N. were each to inherit one eighth of the estate.

12. By letter of 19 June 2019, the Amtsgericht Bremen (Local Court, Bremen, Germany), which has jurisdiction in respect of the succession, informed the parties T.N. and N.N. of the application for a certificate of inheritance and requested the submission of certain documents.

13. On 13 September 2019, the parties T.N. and N.N. lodged a declaration concerning the waiver of succession with the rechtbank Den Haag (District Court, The Hague, Netherlands), which was entered in that court’s succession register on 30 September 2019.

14. After the applicant E.G. had submitted the requested documents, the Amtsgericht Bremen (Local Court, Bremen), by letter dated 22 November 2019, served the application on the parties T.N. and N.N. and requested that they take a position in the case.

15. By letter dated 13 December 2019 – written in Dutch – the parties T.N. and N.N. submitted to the Amtsgericht Bremen (Local Court, Bremen) copies of the documents drawn up by the rechtbank Den Haag (District Court, The Hague) in connection with their declarations concerning the waiver of succession.

16. By letter of 3 January 2020, the Amtsgericht Bremen (Local Court, Bremen) informed the parties T.N. and N.N. that their letters and documents could not be processed as they were not accompanied by a translation into German.

17. In response, by letter dated 15 January 2020, written in German, N.N. informed the Amtsgericht Bremen (Local Court, Bremen) that the succession had been waived and that the declaration concerning the waiver of succession had been registered by a court in the Dutch language in accordance with EU law, and that a translation was therefore not required. In response, the Amtsgericht Bremen (Local Court, Bremen) referred to the fact that the documents had not been translated and to the time limits applicable to the waiver of succession.

18. By order of 27 February 2020, the Amtsgericht Bremen (Local Court, Bremen) established the facts necessary for issuing the certificate of inheritance in accordance with Paragraph 352e(1) of the Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Law on proceedings in family matters and in matters of non-contentious jurisdiction; ‘the FamFG’) of 17 December 2008. ( 5 ) That court ruled that the parties T.N. and N.N. had inherited part of the estate.

19. By letter dated 19 March 2020, the parties contested that order and requested an extension of the period for the submission of further evidence. On 30 July 2020, they filed colour copies of the documents drawn up by the rechtbank Den Haag (District Court, The Hague), together with their translations into German. Subsequently, on 17 August 2020, they filed the original documents.

20. By order of 2 September 2020, the Amtsgericht Bremen (Local Court, Bremen) referred the case to the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen, Germany) (the referring court). In its reasoning, the Amtsgericht Bremen (Local Court, Bremen) pointed out that the parties T.N. and N.N. had become (joint) heirs of the deceased since they had failed to comply with the time limit for the waiver of succession. In order for the succession to be validly waived, it was not sufficient merely to refer to the fact that the declaration concerning the waiver of succession had taken place before a court in the Netherlands or to provide copies of documents. Such a waiver could become valid only upon receipt of the original documents by the probate court. Those documents, however, had been submitted to the probate court only after the six-month period for waving succession had expired.

21. The referring court notes that there is disagreement as to the validity of a declaration concerning the waiver of the succession made before a court in a Member State other than that in which the probate court is located. According to one view, the mere making of a declaration concerning the waiver of the succession before the court where the person making the declaration has his or her habitual residence constitutes a valid waiver before the probate court, that is to say, what is referred to as substitution has taken place. The opposing view is that the declaration must be communicated in proper form to the probate court or, in any event, notified to that court in order to be valid. The latter view may be substantiated by recital 32 of the regulation, from which it can be inferred that the legislature assumed that a declaration concerning the waiver of the succession made before the court in the habitual place of residence of the person making that declaration should produce legal effects only after it has been notified to the probate court. It might in particular be argued in this regard that Article 13 of Regulation No 650/2012, as opposed to the relevant provision of the German legislation, does not provide for any obligation on the court for the place of habitual residence of the person making the declaration to inform the probate court that a declaration concerning the waiver of succession has been made.

22. The referring court points out that if one were to accept the prevailing opinion in the legal literature, which assumes that substitution has taken place with respect to the declaration concerning the waiver of succession, that declaration would have become valid as soon as it had been submitted to the rechtbank Den Haag (District Court, The Hague), on 13 September 2019. Thus, the statutory period laid down in Paragraph 1944(3) of the BGB would have been complied with and the parties would not have become heirs. By contrast, if it is assumed that complete substitution has not taken place in the light of recital 32 of Regulation No 650/2012, the validity of the waiver may additionally depend on when the probate court became aware that such a declaration had been made. In that case, however, the question arises as to what formal requirements must be met in order for the waiver of succession to be considered valid, including the question as to whether it is sufficient simply to notify the probate court or possibly to submit ordinary copies of documents or possibly also to submit information in the language of the probate court, or whether it is necessary to file the original documents together with a certified translation into the language of the probate court.

23. In those circumstances, the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling on the interpretation of Articles 13 and 28 of Regulation No 650/2012: ‘(1) Does a declaration concerning the waiver of succession by an heir before the court of a Member State that has jurisdiction for the place of his or her habitual residence, which complies with the formal requirements applicable there, replace the declaration concerning the waiver of succession to be made before the court of another Member State that has jurisdiction to rule on the succession, in such a way that, when that declaration is made, it is deemed to have been validly made (substitution)? (2) If Question 1 is to be answered in the negative: In addition to making a declaration before the court that has jurisdiction for the place of habitual residence of the party waiving succession which complies with all formal requirements, is it necessary, in order for the declaration concerning the waiver of succession to be valid, that the latter inform the court that has jurisdiction to rule on the succession that the declaration concerning the waiver of succession has been made? (3) If Question 1 is to be answered in the negative and Question 2 in the affirmative: a. Is it necessary that the court that has jurisdiction to rule on the succession be addressed in the official language of the location of that court in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before that court? b. Is it necessary that the court that has jurisdiction to rule on the succession receive the original documents drawn up in relation to the waiver by the court that has jurisdiction for the place of habitual residence of the party waiving succession and a translation thereof in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before the court that has jurisdiction to rule on the succession?’

24. In the proceedings before the Court, written observations have been submitted by the Spanish and Italian Governments and by the European Commission. No hearing has been held.

IV. Analysis

A. Questions referred for a preliminary ruling

25. As is apparent from the written observations submitted by the Spanish and Italian Governments and by the European Commission, the questions referred by the referring court may be interpreted in different ways.

26. The Spanish Government appears to understand those questions as pertaining not so much to the validity of the declaration concerning the waiver of succession as to its effect in the proceedings before the court ruling on the succession, since such a declaration, even if valid, will have no effect if it is not communicated to the court ruling on the succession in due time and in the appropriate form.

27. According to the Italian Government, the questions submitted by the referring court relate to the formal validity of the declaration concerning the waiver of succession, and more precisely, to the question of whether it is valid if it was not drawn up in the official language of the place where the succession was opened.

28. By contrast, the Commission, having regard to the facts of the main proceedings, interprets the first and second questions referred as pertaining to the issue of whether, where the law applicable to the succession lays down a time limit for making a declaration concerning the waiver of succession, that time limit is to be deemed to have been complied with on the date on which that declaration is made before the court having jurisdiction pursuant to Article 13 of Regulation No 650/2012, or on the date on which the court having general jurisdiction to rule on the succession is notified of that declaration.

29. In proceedings under the third paragraph of Article 267 TFEU, the Court’s task is to give an answer as to the interpretation of the provisions of EU law which will be useful to the referring court in the case in which that court has submitted a request for a preliminary ruling.

30. It follows from the reasons for the request that the outcome of the proceedings before the referring court depends on whether the parties complied with the time limit for waiving the succession laid down in the law applicable to the succession: (a) already at the time of making declarations concerning the waiver of succession before the rechtbank Den Haag (District Court, The Hague); (b) only at the time of notifying the probate court in Bremen that those declarations had been made; (c) only at the time of submitting to the latter court copies of the documents confirming that the declarations had been made; or (d) only by submitting to the latter court original copies of those documents together with a German translation thereof. The referring court treats the question of law referred for a preliminary ruling as one which pertains to the validity of the declaration concerning the waiver of succession and assumes that the key to resolving that question lies in the interpretation of Article 13 and Article 28(b) of Regulation No 650/2012 and in deciding whether substitution occurs in the case referred to in Article 13 of that regulation.

31. In addition, it should be pointed out, as the Commission did, that according to German law a declaration concerning the waiver of succession is a declaration of will which must be accepted by the addressee (it is ‘empfangsbedürftig’ or ‘amtsempfangsbedürftig’). Hence, German legal literature appears to accept that, in order to be valid, the declaration must be made within the statutory time limit to the probate court, ( 6 ) that is to say, the court for the place where the testator had his or her habitual residence at the time of death, and the requirement to make it to the probate court is classified as a condition for the substantive rather than formal validity of that legal act. ( 7 )

32. I interpret the questions referred for a preliminary ruling in the above context. I take the view, therefore, that they do not concern the manner of demonstrating that a valid declaration concerning the waiver of succession has been made in any court proceedings. ( 8 ) Rather, I understand them to refer to the validity of a declaration concerning the waiver of succession made before the courts of the State of the habitual residence of the heir where the law applicable to the succession provides that, in order for such a declaration to be substantively valid, it must be made in a timely manner to the probate court, that is to say, the court for the place where the testator had his or her habitual residence at the time of death. ( 9 )

33. As the referring court made the issue of substitution central to the first question, I take it that that court assumes that the requirement under German law that a declaration concerning the waiver of succession be made to the probate court is not a requirement concerning the formal validity of the declaration within the meaning of Article 28 of Regulation No 650/2012. However, the question concerning possible substitution will be justified only if that assumption is confirmed, since it is first necessary to examine whether that requirement is a condition governing the formal or substantive validity of that legal act. ( 10 )

34. In view of the foregoing, I propose that the Court reformulate the questions and determine, first, whether the provisions of Article 13 and Article 28 of Regulation No 650/2012 should be interpreted as meaning that the requirement, under the law applicable to the succession, to make a declaration concerning the waiver of the succession to the probate court, that is to say, the court for the place where the testator had his or her habitual residence at the time of death, must be classified as a condition for the formal validity of that declaration within the meaning of Article 28 of Regulation No 650/2012.

B. General considerations on the validity of a declaration concerning the acceptance or waiver of succession under Regulation No 650/2012

1. Declaration concerning the acceptance or waiver of succession

35. It has long been noted that all legal systems in the world agree that a person who has survived the testator may be that person’s heir, but this is where the agreement on matters of succession ends. ( 11 ) Caution should therefore be exercised when defining concepts of EU law on succession which have not been expressly defined by the EU legislature. The acceptance and waiver of succession are among such concepts.

36. As a rule, an heir’s declaration concerning the acceptance or waiver of succession is a unilateral legal act by which a person who has a prescribed entitlement to the succession decides whether or not to become subject to the rights and obligations arising from the succession, or possibly whether to become subject to those rights with limited liability in regard to the testator’s obligations. ( 12 )

37. Since those declarations are of major importance not only for the persons who have acquired certain entitlements as a result of the opening of the succession but also for the testators’ creditors, different legal orders lay down specific requirements for the validity of those declarations. The need to ensure legal certainty and creditor protection results in the setting of a statutory time limit within which those declarations can be made by the heirs; failure to do so within that time limit generally results in the succession being definitively accepted. The foregoing considerations also militate in favour of introducing specific requirements as to the form of those declarations, including the involvement of a court or a notary.

38. The questions referred relate to declarations concerning the waiver of succession made before a court having jurisdiction pursuant to Article 13 of Regulation No 650/2012, to which declarations Article 28 of that regulation also applies. I agree with the views expressed in the legal literature that Article 13 of Regulation No 650/2012 should be interpreted as applying only to declarations made after the opening of the succession, ( 13 ) and should not be considered applicable in a situation where, in order to produce certain legal effects provided for in the law applicable to the succession, the court must take measures which go beyond the mere acceptance of the declaration, such as, for instance, issuing a ruling or instituting other proceedings. ( 14 )

39. Therefore, the view must be taken that Article 13 of Regulation No 650/2012 is applicable to declarations concerning the acceptance or waiver of succession, by way of which declarations a person entitled to succession under the law applicable to the succession, by his or her unilateral declaration of will which does not require the approval of a court or the institution of further proceedings, definitively ( 15 ) accepts or definitively waives the rights and obligations arising from the succession or possibly accepts those rights with limited liability in regard to the testator’s obligations.

2. Validity of the declaration concerning the acceptance or waiver of succession

40. The rules governing compliance with the conditions necessary to produce the effects indicated in the previous point may be classified differently in different legal orders. One may consider whether a legal act aimed at achieving those effects has been performed, and whether it is valid or effective. In order to avoid terminological confusion, I will continue to use the term ‘validity’. The validity of a declaration concerning the acceptance or waiver of succession will be understood to mean fulfilment of the conditions provided for by the law applicable to the succession that are necessary to produce, by a unilateral declaration of will, the effects indicated in point 39 of this Opinion in the form of a definitive acceptance of the rights and obligations arising from the succession, or a definitive waiver thereof, or possibly the acceptance of those rights with limited liability in regard to the testator’s obligations.

41. Such conditions include the requirement under German law that a declaration concerning the waiver of succession be submitted to the probate court.

42. Among the conditions for the validity of a declaration concerning the acceptance or waiver of succession, the conditions of substantive validity and conditions of formal validity provided for in the law on succession can be distinguished. The conditions of substantive validity considered here include only those provided for in the law on succession, and not those governed by other forms of status, such as personal status. ( 16 )

43. If both substantive and formal validity are determined by the same legal order, it is of little practical significance to distinguish which conditions governing such a declaration concern its substantive validity and which concern formal validity. However, the situation is different when an extraneous element is present and the applicable conflict rules of private international law provide that the conditions of substantive validity and the conditions of formal validity of that legal act will be determined by different legal orders (status).

44. If the substantive validity of a declaration concerning the acceptance or waiver of succession is subject to one status (the succession status) and its formal validity to another status (the formal status), the legal act performed will be valid if the conditions of substantive validity laid down by the former status and the conditions of formal validity laid down by the latter status are met.

3. Alternative status for the form of a declaration concerning the acceptance or waiver of succession pursuant to Regulation No 650/2012

45. In accordance with Article 23(1) and Article 23(2)(e) of Regulation No 650/2012, the transfer of the estate and the conditions and effects of the acceptance or waiver of the succession or of a legacy are governed by the law applicable to the succession as determined in accordance with Articles 21 and 22 of that regulation.

46. At the same time, pursuant to Article 28 of Regulation No 650/2012, a declaration concerning the acceptance or waiver of succession will be valid as to form where it meets the requirements of either: (a) the law applicable to the succession (lex successionis); or (b) the law of the State in which the person making the declaration has his or her habitual residence.

47. Moreover, Article 13 of Regulation No 650/2012 establishes subsidiary jurisdiction to receive declarations concerning the acceptance or waiver of the succession for the courts of the habitual residence of the heir.

48. The combination of Article 23(1) and Article 23(2)(e) of Regulation No 650/2012, on the one hand, and of Article 13 and Article 28(b) of that regulation, on the other, means that declarations made before the courts having jurisdiction under Article 13 of Regulation No 650/2012 will, in principle, have to be assessed as to the substantive validity of those declarations by reference to the law applicable to the succession and as to their formal validity by reference to the law of the habitual residence of the heir, which is at the same time the law of the court receiving the heir’s declaration.

4. Distinction between the aspects relating to the substantive and to the formal validity of a declaration concerning the acceptance or waiver of succession

49. In private international law, it is not easy to determine the boundary between the form of a legal act and its substantive aspect, since different legal systems have different views on this issue. ( 17 )

50. In the case of norms of private international law harmonised by EU law, that issue should be resolved autonomously, since, according to the settled case-law of the Court of Justice, it follows from the requirements of both the uniform application of EU law and the principle of equality that the terms of a provision of EU law which does not contain any explicit reference to the law of the Member States for the purpose of determining its meaning and scope must be given an autonomous and uniform interpretation throughout the European Union; that interpretation must take into account not only the wording of that provision but also its context and the objective pursued by the legislation in question. ( 18 )

51. In the absence of an express reference to the law of a Member State, it is therefore necessary to make an autonomous classification and to establish uniformly the scope of the elements relating to the substantive validity and of those relating to the formal validity of the legal act in question. ( 19 ) The classification made in the law applicable to the succession, namely German law in the case of the present request for a preliminary ruling, is irrelevant in this regard.

52. The possible determination that a given condition of validity refers to the form of the act automatically entails the exclusion of that condition from the substantive validity group, since a single element cannot be evaluated in the light of two different types of status at the same time (in this instance, the succession status and the formal status).

C. Requirement to make a declaration concerning the waiver of the succession to the probate court as a condition of its validity

1. Scope of the present Opinion

53. The scope of the present Opinion is determined by the scope of the questions referred and by the subject matter of the dispute in the main proceedings. The limits of the legal question discussed here are defined by two issues: the nature of the declaration made and the condition of its validity under German law. More specifically, the questions referred pertain to a declaration concerning the waiver of succession made by the heirs and the condition for the validity of that declaration under German law, namely, that such a declaration be made to the probate court, that is to say, the court for the place where the testator had his or her habitual residence at the time of death, within the statutory time limit.

54. Therefore, in the following part of my analysis I shall confine myself to considering the heir’s declaration concerning the waiver of succession and the condition of its validity under national law consisting in the obligation to make that declaration to the probate court. ( 20 )

55. Consequently, the answer to the questions referred for a preliminary ruling depends on the autonomous interpretation of the concept of ‘form’ used by the legislature in Article 28 of Regulation No 650/2012 and, more specifically, on whether the requirement that a declaration concerning the waiver of succession be made to the probate court is a condition for the formal validity of that legal act.

56. In Regulation No 650/2012, the legislature explicitly made such an autonomous classification of the conditions of validity in Articles 26(1) and 27(3), determining, with regard to dispositions of property in the event of death, which elements of those legal acts relate to substantive validity and which to formal validity. By contrast, Regulation No 650/2012 does not contain any provision stipulating which elements relate to the substantive validity of a declaration concerning the acceptance or waiver of succession and which relate to its formal validity. This, therefore, is a matter to be resolved through interpretation of the regulation.

2. Classification of the requirement to make a declaration concerning the waiver of the succession to the probate court as a condition of formal validity of that declaration

57. As a rule, with reference to legal acts, the term ‘form’ is understood as the manner required by law in which a person’s will must be manifested in order to produce legal effects; a failure to act in that manner means that these effects will not be produced. ( 21 ) Making a declaration to a court is a way of manifesting the declarant’s will. However, it is generally recognised that the mere requirement that the declaration reach the addressee is not an element of form. ( 22 ) That would be an argument against classifying the requirement under German law in question as a condition for the formal validity of the declaration.

58. The starting points for an autonomous interpretation are the wording of the provision, its context and the purpose of the rules of which it forms part. The wording of Article 28 of Regulation No 650/2012 does not provide an unambiguous answer as to how the requirement in question should be classified. Article 28 of that regulation is, however, closely correlated with Article 13 thereof, even if the scope of Article 28 is not limited to declarations made before the court having jurisdiction pursuant to the latter provision. Article 13 of Regulation No 650/2012 indicates that it is a condition for the jurisdiction of the court of the State of the habitual residence of the heir that the law on succession in force in that State should provide for the possibility of making a declaration concerning the waiver of the succession before a court. It follows that the condition for jurisdiction under Article 13 of Regulation No 650/2012 is the parallel existence of two legal orders which adopt an essentially identical solution that consists in entrusting the courts with receiving declarations concerning the waiver of succession.

59. Article 13 of Regulation No 650/2012 thus refers explicitly, even if only in order to determine the grounds of the court’s jurisdiction, to the law of the State of the habitual residence of the heir. This is an indication that the scope of the acts to be performed before the court should be determined by reference to the law of the State of the court of the habitual residence of the heir. Consistent with this is the solution adopted in Article 28 of Regulation No 650/2012, which provides that the scope of the acts that must be performed before the court in connection with the making of the declaration is determined either by the law applicable to the succession or by the law of the court of the habitual residence of the heir. It follows that the totality of the acts to be performed before the court should be determined by either one or the other legal order. Inasmuch as the totality of those acts concerns the manner in which the will to waive the succession by the heir is manifested or consolidated, it defines the form of the declaration concerning the waiver of succession. The court’s participation in performing those acts should be treated as an element of that form.

60. As regards the purpose of the legislation, this is expressly stated in the first part of recital 32 of Regulation No 650/2012. It is designed to simplify the lives of heirs and legatees by enabling them to make declarations concerning the acceptance or waiver of succession in the form provided for by the law of the Member State of their habitual residence before the courts of that Member State.

61. In order to pursue that objective, the EU legislature established in Article 13 of Regulation No 650/2012 subsidiary jurisdiction for the courts of the State of the habitual residence of the heir to receive declarations concerning the waiver of succession. Subsequently, in Article 28(b) of that regulation, the legislature provided that a declaration concerning the waiver of succession is also valid as to form where it meets the requirements of the law of the State in which the person making the declaration has his or her habitual residence. ( 23 )

62. For declarations concerning the waiver of succession submitted to the court having jurisdiction pursuant to Article 13 of Regulation No 650/2012, the provision of Article 28(b) of that regulation ensures that the special right of the person entitled to make the declaration as provided for in recital 32 of the regulation, which is exercised through the establishment of special jurisdiction in accordance with Article 13 of that regulation, is not illusory. By requesting a court in the State of his or her habitual residence to accept a declaration concerning the waiver of succession, the heir can be sure that the formal validity of the act before that court will not be dependent on the formal requirements for such a declaration laid down in the law applicable to the succession. ( 24 )

63. Attention should be paid to the special situation of persons who waive succession. Unlike in the case of accepting succession, those persons do not, as a rule, have to reckon with the need to take any further action in the future. By making their declaration, they seek to waive definitively the rights to which they are entitled under the succession and to release themselves from their obligations in that regard. They will often have had no contact with the testator during his or her lifetime and therefore do not wish to inherit from him or her, preferring legal certainty (no risk of liability for the testator’s potential debts) to possible material benefits (resulting from the acquisition of inherited property). ( 25 )

64. The purpose of Regulation No 650/2012, which is to enable heirs to make declarations concerning the waiver of succession in the State of their habitual residence, requires that, when those persons approach a court with special jurisdiction to accept their declaration, and subsequently perform a legal act before that court, thus fulfilling the formal requirements laid down by the law of the place where that act was performed, they should not subsequently be obliged to take further action before the courts of other States in order for that act to be valid.

65. The opposite interpretation would mean that a person who waives the succession would have to carry out a number of steps in order to determine the law applicable to the succession, including determining the habitual residence of the testator at the time of his or her death (Article 21 of Regulation No 650/2012), ( 26 ) and whether the testator had chosen the law applicable to the succession (Article 22 of Regulation No 650/2012). Subsequently, it would be necessary to establish which court in the Member State in question has territorial jurisdiction to receive the declaration, translate the relevant documents into the official language of the probate court and send them to that court. All those actions would have to be performed before the passing of the time limit under the law applicable to the succession. That burden would be completely disproportionate for a person who does not wish to inherit from the testator irrespective of the law applicable to the succession. ( 27 )

66. It is impossible not to agree with the Commission that, in view of the limited scope of the jurisdiction of the court referred to in Article 13 of Regulation No 650/2012, deeming a declaration made before that court to be insufficient would mean that Article 13 of Regulation No 650/2012 would be of no use to the heirs. In fact, it appears that using the possibility provided for in that provision would prolong, rather than shorten, the period needed by the heir who waives the succession to settle the matter. There is even a risk that Article 13 of Regulation No 650/2012 would give the heir the mistaken belief that the legal acts performed before the court of his or her habitual residence were valid, thus exposing him or her to damage. Consequently, not only would the objectives of Regulation No 650/2012, as indicated in recitals 7 and 32, not be achieved, but the opposite would in fact occur: that regulation would contribute to increasing uncertainty as to the heir’s legal position.

67. Given the EU legislature’s objective to simplify the lives of heirs, it should be assumed that since, pursuant to Article 13 of Regulation No 650/2012, subsidiary jurisdiction is conferred on the courts of the habitual residence of the heir, the heir should be able to renounce definitively the rights to which he or she is entitled under the succession by acting solely before the court of his or her habitual residence. Therefore, the heir cannot be required to take further action before a court in another Member State in order to renounce the rights to which he or she is entitled under the succession.

68. The foregoing circumstances support the conclusion that the requirement laid down by the law applicable to the succession for a declaration concerning the waiver of the succession to be made to the probate court must be classified as a condition of the formal validity of that declaration. This is required to ensure the effectiveness (effet utile) of the provisions providing for the possibility of making declarations concerning the waiver of the succession before the court of the habitual residence of the heir. ( 28 )

69. Under that arrangement, the time limit for making a declaration concerning the waiver of the succession laid down by the law applicable to the succession is met if, before that time limit passes, all the acts have been performed before a court of the State of the habitual residence of the heir that are required according to the law of that State in order for the declaration to be deemed to have been made. In order to comply with that requirement it is not necessary to make a declaration to the probate court located in another Member State if the requirement only arises under the law applicable to the succession.

3. Meaning of recital 32 of Regulation No 650/2012

70. In this context, a doubt arises, which is also at the root of the questions referred, as to how the last sentence of recital 32 of Regulation No 650/2012 should be understood. That sentence expressly states that persons making declarations concerning the acceptance or waiver of the succession in the Member State of their habitual residence should themselves inform the court or authority which is or will be dealing with the succession of the existence of such declarations within any time limit set by the law applicable to the succession.

71. The meaning of the last sentence of recital 32 of Regulation No 650/2012 is the subject of dispute in the legal literature. It is pointed out that no provisions of that regulation, and, in particular, Articles 13 and 28 thereof, lay down an obligation to inform the courts in another Member State that a declaration concerning the waiver of the succession has been made or to transmit such declarations. Such an obligation, especially if the validity of the declaration were conditional upon it being met, cannot be derived from a recital of the regulation itself. ( 29 )

72. Indeed, the recitals of a regulation are not in themselves a source of rights and obligations for individuals. ( 30 ) They do play an important role in the interpretation of the provisions contained in the operative part, indicating the goals of the legislature and outlining the measures to be used to achieve them. However, the essence of those measures is defined in the operative part of the regulation.

73. The fact that the obligation to inform the court referred to in the last sentence of recital 32 of Regulation No 650/2012 is not expressly indicated in the operative part of that regulation does not, however, mean that no such obligation arises. Article 28 of Regulation No 650/2012 is contained in Chapter III of that regulation, entitled ‘Applicable law’, which contains conflict-of-law rules. In accordance with Article 23(1) and Article 23(2)(e) of that regulation, the transfer of the succession, and the conditions and effects of the acceptance or waiver of the succession or of a legacy, are governed by the law applicable to the succession as determined in accordance with Articles 21 and 22 of Regulation No 650/2012. Therefore, the substantive validity of a declaration concerning the waiver of succession is subject to the law applicable to the succession. If, under that law, the obligation to notify the probate court of the declaration made were to constitute a condition for the substantive validity of the declaration, it could be argued that the last sentence of recital 32 refers to the obligation arising from the law applicable to the succession as indicated in Articles 21 and 22 of Regulation No 650/2012. Such a situation would occur if the form of the declaration concerning the waiver of the succession were classified in accordance with German law; in that case, the obligation would arise from Article 21 of Regulation No 650/2012, read in conjunction with Paragraph 1945 of the BGB. ( 31 )

74. However, as the present Opinion demonstrates, the provisions of Regulation No 650/2012 militate against that classification being applied. Under those circumstances, in the absence of a uniform EU system for receiving declarations of waiver of the succession providing for the transmission of declarations concerning the succession of a given testator to a single court of succession, the last sentence of recital 32 should be understood to mean that the person who has made the declaration of waiver of the succession must take steps to enable the court dealing with the succession to become aware that a valid declaration has been made. Taking those steps will make it possible to avoid the risk of a ruling being issued that is based on an incorrect finding that a declaration concerning the waiver of succession has not been made. However, failure to do so and failure to notify the court dealing with the succession cannot mean that the declaration made is invalid.

4. Proposed answer

75. In the light of the foregoing considerations, I take the view that the provisions of Articles 13 and 28 of Regulation No 650/2012 must be interpreted as meaning that the requirement under the law applicable to the succession to make a declaration concerning the waiver of the succession to the probate court, that is to say, the court for the place where the testator had his or her habitual residence at the time of death, is a condition for the formal validity of that declaration. Thus, where the validity as to the form of the declaration made is assessed in the light of the law referred to in Article 28(b) of Regulation No 650/2012, failure to comply with that requirement does not result in the invalidity of a declaration made before the court having jurisdiction pursuant to Article 13 of that regulation.

D. Proof that a declaration concerning the waiver of succession has been made in proceedings before a court of another Member State

76. The question referred for a preliminary ruling may also be interpreted as pertaining to the necessity and the manner of demonstrating in court proceedings conducted in another Member State that a valid declaration concerning the waiver of succession has been made before the court having jurisdiction pursuant to Article 13 of Regulation No 650/2012. A large portion of the Spanish Government’s written observations concerns this issue.

77. The above problem is of considerable practical importance, for what would be the point of an heir making a valid declaration concerning the waiver of succession if that declaration is not taken into account in the ruling delivered by the court in another Member State as a result of non-compliance with the applicable procedural requirements, notably with regard to proof?

78. However, in the light of the wording of the question referred, it must be noted that, in the view of the referring court, the problem of non-compliance by the parties T.N. and N.N. with procedural requirements does not arise in the present case, since the referring court has no doubt that the parties carried out, within the time limits, all the acts comprising waiver of succession under Netherlands law. There is also no doubt that all the documents requested by the probate court were eventually submitted to it together with a translation into the official language of that court. Lastly, in the light of the wording of the order for reference, it must be assumed that the Amtsgericht Bremen (Local Court, Bremen) issued the order not as a result of the failure, by the parties T.N. and N.N., to demonstrate adequately, during the course of an ongoing procedure, the waiver of the succession before the rechtbank Den Haag (District Court, The Hague) or due to their failure to comply with the procedural obligations imposed, but as a result of their failure to perform the acts conditioning the validity of their declarations concerning the waiver of succession before the probate court within the time limit laid down in Paragraph 1944 of the BGB.

79. In that context, I believe that, in order to provide the referring court with an answer that might be useful for the purpose of deciding the case, it is not necessary to consider whether copies, originals and translations of documents drawn up in one Member State must be filed in the court proceedings conducted in another Member State in order to prove the submission of a valid declaration concerning the waiver of succession.

V. Conclusion

80. In the light of the foregoing, I propose that the Court should answer the questions referred by the Hanseatisches Oberlandesgericht in Bremen (Higher Regional Court, Bremen, Germany) as follows: Articles 13 and 28 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 requirement, provided for under the law applicable to the succession, to make a declaration concerning the waiver of the succession to the probate court, that is to say, the court for the place where the testator had his or her habitual residence at the time of death, is a condition for the formal validity of that declaration. Thus, where the validity as to form of the declaration made is assessed in the light of the law referred to in Article 28(b) of that regulation, failure to comply with that requirement does not result in the invalidity of a declaration made before the court having jurisdiction pursuant to Article 13 of Regulation No 650/2012.

( 1 ) Original language: Polish.

( 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 ) For the sake of simplicity, I will use below the term ‘declarations concerning the acceptance or waiver of succession’ to refer to all such declarations.

( 4 ) Bundesgesetzblatt (Federal Law Gazette) (BGBl.) I, p. 1077.

( 5 ) BGBl. I, p. 2586.

( 6 ) Najdecki, D. W., ‘BGB § 1945 Form der Ausschlagung’ in: Burandt, W., Rojahn, D. (eds.), Erbrecht, 3rd edition, C.H. Beck, Munich, 2019, paragraph 2; Heinemann, J., ‘BGB § 1945 Form der Ausschlagung’, in: beck-online.GROSSKOMMENTAR, C.H. Beck, Munich, accessed on 15 July 2021, paragraph 10.

( 7 ) See, for instance, Dutta, A., ‘EuErbVO Artikel 28 Formgültigkeit einer Annahme- oder Ausschlagungserklärung’, in: Münchener Kommentar zum Bürgerlichen Gesetzbuch, 8th edition, C.H. Beck, Munich, 2020, paragraph 5; Schmidt, J. P., ‘EuErbVO Artikel 28 Formgültigkeit einer Annahme- oder Ausschlagungserklärung’, in: Dutta, A., Weber, J. (eds.), Internationales Erbrecht, 2nd edition, C.H. Beck, Munich, 2021, paragraph 16. To highlight the above specification in the remainder of the Opinion, when referring to the requirement under German law, I will indicate that it is a declaration concerning the waiver of succession made to the court (in line with Paragraph 1945 of the BGB) and not before the court (in accordance with the wording of Article 13 of Regulation No 650/2012).

( 8 ) I will address this issue in Section D of this analysis.

( 9 ) However, it appears that, within the legal framework applicable to the main proceedings, a declaration concerning the waiver of the succession could have been made not only before the probate court with territorial jurisdiction over the testator’s habitual residence in Germany at the time of his or her death, but also before the court with jurisdiction over the habitual residence in Germany of the person making the declaration. The latter court would, however, be required to communicate the declaration to the court with territorial jurisdiction over the testator’s habitual residence in Germany at the time of his or her death. See, in this respect, Paragraph 344(7) of the Law on proceedings in family matters and in matters of non-contentious jurisdiction.

( 10 ) See Lagarde, P., ‘Article 28’, in: Bergquist, U., Damascelli, D., Frimston, R., Lagarde, P., Odersky, F., Reinhartz, B., Commentaire du règlement européen sur les successions, Dalloz, Paris, 2015, paragraph 4, p. 140.

( 11 ) Ludwiczak, W., Międzynarodowe prawo prywatne, 5th edition, Ars boni et aequi, Poznań, 1996, p. 280.

( 12 ) In French-language legal literature, this is referred to as the ‘option de l’héritier’. See Wautelet, P., ‘Article 28 – Validité quant à la forme de la déclaration concernant l’acceptation ou la renonciation’, in: Bonomi, A., Wautelet, P., Le droit européen des successions, 2nd edition, Bruylant, Brussels, 2016, paragraph 5, p. 478.

( 13 ) Thus, for instance, Wautelet, P., ‘Article 13 – Acceptation de la succession, d’un legs ou d’une réserve héréditaire, ou renonciation à ceux-ci’, in: Bonomi, A., Wautelet, P., Le droit européen des successions, 2nd edition, Bruylant, Brussels, 2016, paragraph 3, p. 258; Lein, E., ‘EuErbVO Artikel 13 Annahme oder Ausschlagung der Erbschaft, eines Vermächtnisses oder eines Pflichtteils’, in: Dutta, A., Weber, J., (eds), Internationales Erbrecht, 2nd edition, C.H. Beck, Munich, 2021, paragraph 9.

( 14 ) Thus, for instance, Wautelet, P., ‘Article 13 …’, op.cit., pp. 258 and 259; Lein, E., ‘EuErbVO Artikel 13 …’, op. cit., point 5. This is also confirmed by recital 33 of Regulation No 650/2012.

( 15 ) Subject to possible withdrawal from the declaration where this possibility is provided for in the law applicable to the succession.

( 16 ) For instance, the validity of a legal act depending on the age of the person making the declaration.

( 17 ) Ludwiczak, W., op. cit., p. 175.

( 18 ) See judgment of 23 May 2019, WB (C‑658/17, EU:C:2019:444, paragraph 50 and the case-law cited).

( 19 ) Similarly with reference to Article 11 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6): Loacker, L.D., ‘The Rome I Regulation. Article 11. Formal validity’, in: Calliess, G.-P., Renner, M. (eds.), Rome Regulations: Commentary, 3rd edition, Wolters Kluwer, Alphen aan den Rijn, 2020, point 29, p. 302.

( 20 ) I cannot rule out that the following considerations and conclusions will be valid also with respect to other types of declarations. However, I shall not prejudge that matter in the present Opinion.

( 21 ) See, for instance, ‘Report on the Convention on the law applicable to contractual obligations’ by Mario Giuliano, Professor, University of Milan, and Paul Lagarde, Professor, University of Paris I (OJ 1980 C 282, p. 1) and the comments on Article 9 of that convention contained therein.

( 22 ) See Loacker, L.D., op. cit., point 30, p. 303.

( 23 ) It should be noted in this regard that Article 28 of Regulation No 650/2012 does not apply only to declarations made before the court having jurisdiction in accordance with Article 13 of that regulation.

( 24 ) In principle, a failure to comply with the formal conditions could be possible only if the court having jurisdiction pursuant to Article 13 of Regulation No 650/2012 failed to comply with its own procedural rules.

( 25 ) The reasons may vary, of course. They may be of a purely moral nature, such as the belief that another heir should inherit the entire estate.

( 26 ) Which may not be obvious even for heirs who know a fair amount about the testator. It is sufficient to point to the extensive recital 23 of Regulation No 650/2012 on the interpretation of the concept of habitual residence, according to which, in order to determine 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 or her death and at the time of his or her death, 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 that regulation.

( 27 ) Obviously, the law applicable to the succession will determine whether it is possible to waive the succession within the meaning of Articles 13 and 28 of Regulation No 650/2012. Thus, even a person who waives succession must make certain assumptions as to which law is applicable to the testator’s estate, also because the prerequisite for subsidiary jurisdiction under Article 13 of Regulation No 650/2012 is the possibility, arising from the law applicable to the succession, of making the declaration concerning the waiver of the succession before a court. However, the validity of the declaration made before a court will not be determined by whether the declarant’s belief was well founded, but by whether the law ultimately determined as applicable to the succession provides for the possibility of waiving the succession by way of making a declaration before a court. Moreover, in the case of a declaration concerning waiver of the succession, it is highly probable that a given declaration may have the same effect under different legal orders.

( 28 ) See my Opinion in Mahnkopf (C‑558/16, EU:C:2017:965, point 114).

( 29 ) However, opinions in the legal literature are divided. The concept that such an obligation exists is opposed by German authors such as Dutta, A., ‘EuErbVO Artikel 28 Formgültigkeit einer Annahme- oder Ausschlagungserklärung’, in: Münchener Kommentar zum Bürgerlichen Gesetzbuch, 8th edition, C.H. Beck, Munich, 2020, point 13, who speaks of ‘non-binding duty’ (Sollerfordernis), and Schmidt, J.P., ‘Der Erwerb der Erbschaft in grenzüberschreitenden Sachverhalten unter besonderer Berücksichtigung der EuErbVO’, Zeitschrift für Erbrecht und Vermögensnachfolge, 2014, 455, p. 460. Wautelet, P., ‘Article 13 …’, op.cit., point 20, p. 264, appears to take a more favourable view of the existence of such an obligation to transmit the declaration, with the proviso, however, that failure to comply with that obligation cannot entail the penalty of the declaration being invalid. On the other hand, the penalty of invalidity where that obligation is not met is advocated by Odersky, F., ‘Article 13’, in: Bergquist, U., Damascelli, D., Frimston, R., Lagarde, P., Odersky, F., Reinhartz, B., Commentaire du règlement européen sur les successions, Dalloz, Paris, 2015, point 2, p. 84.

( 30 ) See, in particular, judgment of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission (C‑398/13 P, EU:C:2015:535, paragraphs 64 to 67).

( 31 ) With the difference that recital 32 of Regulation No 650/2012 refers to a notification that the declaration has been made rather than to the transmission of that declaration to the court having jurisdiction over the succession.