Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 14 July 2022 ( )

Case C‑354/21

R.J.R.

Intervener

Registrų centras

(Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 650/2012 – European Certificate of Succession – Effects of the certificate – Limits – Registration of succession property in the Real Property Register – Refusal)





I. Introduction

1. A woman living in Germany died, leaving as her sole heir her son, who also lives in Germany. She owned immovable property in Germany and Lithuania. Her son obtained a European Certificate of Succession from the German authorities, naming him as the sole heir of the deceased’s entire estate. He presented the certificate to the Lithuanian authorities and applied for the immovable property to be recorded in the Real Property Register. They refused to do so on the grounds that the certificate was incomplete.

2. This request for a preliminary ruling therefore raises the difficult question of the dividing line between the scope of lex successionis and the scope of lex registrii and, in particular, of the division of competence between an authority responsible for issuing a European Certificate of Succession and the authority responsible for the Real Property Register in a different Member State.

II. Legal context

A. European Union law

1. Regulation (EU) No 650/2012

3. Article 1 of Regulation (EU) No 650/2012 ( ) entitled ‘Scope’, reads as follows:

‘1. This Regulation shall apply to succession 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.’

4. Chapter VI of the regulation entitled ‘European Certificate of Succession’, covers Articles 62 to 73 of the regulation.

5. Article 62 of the regulation, entitled ‘Creation of a European Certificate of Succession’, provides in paragraphs 1 and 3:

‘1. This Regulation creates a European Certificate of Succession (hereinafter referred to as “the Certificate”) which shall be issued for use in another Member State and shall produce the effects listed in Article 69.

…

3. The Certificate 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 Certificate shall also produce the effects listed in Article 69 in the Member State whose authorities issued it in accordance with this Chapter.’

6. Article 63 of that regulation entitled ‘Purpose of the Certificate’, provides in paragraphs 1 and 2:

‘1. The Certificate is for use by heirs, … who, in another Member State, need to invoke their status or to exercise respectively their rights as heirs …

2. The Certificate may be used, in particular, to demonstrate one or more of the following:

…

(b) the attribution of a specific asset or specific assets forming part of the estate to the heir(s) or, as the case may be, the legatee(s) mentioned in the Certificate;

…’

7. Article 67 of Regulation No 650/2012 entitled ‘Issue of the Certificate’, provides in paragraph 1:

‘The issuing authority shall issue the Certificate 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).’

8. Article 68 of the regulation entitled ‘Contents of the Certificate’, reads as follows:

‘The Certificate 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;

…’

9. Article 69 of the regulation entitled ‘Effects of the Certificate’ reads as follows:

‘1. The Certificate shall produce its effects in all Member States, without any special procedure being required.

2. The Certificate 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 Certificate as the heir, legatee, executor of the will or administrator of the estate shall be presumed to have the status mentioned in the Certificate and/or to hold the rights or the powers stated in the Certificate, with no conditions and/or restrictions being attached to those rights or powers other than those stated in the Certificate.

…

5. The Certificate 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).’

2. Commission Implementing Regulation (EU) No 1329/2014

10. Article 1(5) of Commission Implementing Regulation (EU) No 1329/2014 ( ) reads as follows:

‘The form to be used for the European Certificate of Succession referred to in Article 67(1) of [Regulation No 650/2012] shall be as set out in Annex 5 as Form V [(“Form V”)].’

11. The annexes to Form V include Annex IV entitled ‘Status and rights of the heir(s) (MANDATORY if the purpose of the certificate is to certify those elements)’.

12. Point 9 of Annex IV is used to identify the ‘asset(s) attributed to the heir and for which certification was requested’. It is also required to specify asset(s) and indicate all relevant identification details. Footnote 13 to this point is worded as follows: ‘In case of a registered asset, please indicate the information required under the law of the Member State in which the register is kept so as to permit the identification of the asset (e.g. for immovable property exact address of the property, Real Property Register, land parcel or cadastral number, description of the property) (if necessary append relevant documents).’

B. Lithuanian law

13. Article 5(2) of the Lietuvos Respublikos nekilnojamojo turto registro įstatymas (Law of the Republic of Lithuania on the Real Property Register), as amended by Law No XII-1833 of 23 June 2015 (‘the Law on the Real Property Register’), states that the keeper of the Real Property Register shall be responsible in accordance with that law for the accuracy and protection of the data recorded in the Real Property Register. That authority is only responsible for ensuring that the data recorded in the Real Property Register are consistent with the documents on the basis of which the record was entered in the register.

14. Article 22 of that law regulates the legal bases for recording rights in rem in immovable property, restrictions on such rights and legal facts in the Real Property Register. It contains a list of the documents used to prove rights in rem in immovable property or legal facts on the basis of which those rights, restrictions on them or those legal facts are recorded in the Real Property Register, setting out, inter alia, in paragraph 1, decisions by public authorities; paragraph 2, decrees, judgments, orders and court decisions; and paragraph 5, certificates of inheritance.

15. Paragraph 2 of Article 23 of that law, which sets out the procedure for applying to have rights in rem in immovable property, restrictions on such rights and legal facts recorded, states that the application must be accompanied by documents proving the right in rem, the restriction on that right or the legal fact which the applicant wishes to have recorded. Article 23(3) of the Law on the Real Property Register states that the documents on the basis of which rights in rem in immovable property, restrictions on such rights and legal facts are certified, accrue, end or are transferred or restricted must comply with legal requirements and contain the information required in order for them to be recorded in the Real Property Register. Pursuant to Article 23(4) of that law, the documents on the basis of which an application for an entry in the register is made must be legible and must include the first names and full surnames, titles, addresses and identification numbers of the persons affected by the entry in the register and the unique number of the building concerned, which is allocated in accordance with the Lietuvos Respublikos nekilnojamojo turto kadastro nuostatai (Regulations of the Republic of Lithuania on the Real Property Cadastre).

16. Pursuant to Article 29 of that law, the keeper of the Real Property Register must refuse to register rights in rem in immovable property, restrictions on such rights and legal facts if it finds on examination of the application for entry in the register that the document submitted in support of the application does not meet the requirements of that law, or that the application or the document provided to that authority does not contain the information required by the Nekilnojamojo turto registro nuostatai (Real Property Register regulations)( ) to identify the immovable property or the persons who have acquired the right in rem in the immovable property.

17. The Real Property Register regulations state in point 14.2.2 that an immovable property is identified by the following information: (1) the cadastral locality, the cadastral section, the cadastral number of the plot; (2) the unique number (identification number) of the plot; (3) the unique number (identification number) of the building; and (4) the unique number (identification number) of the apartment or premises.

III. The dispute in the main proceedings, the question referred and the proceedings before the Court of Justice

18. The applicant in the main proceedings is a citizen living in Germany who holds dual Lithuanian and German nationality.

19. At the time of her death on 6 December 2015, the mother of the applicant in the main proceedings (‘the deceased’) was habitually resident in Germany. The applicant in the main proceedings, who is her sole heir, accepted the succession to the estate of the deceased in Germany without reservation. He applied to the competent German authority for a European Certificate of Succession, as his inheritance included property located in both Germany and Lithuania.

20. On 24 September 2018, the Amtsgericht Bad Urach (Local Court, Bad Urach, Germany) issued the applicant in the main proceedings with certificate of inheritance No 1 VI 174/18 (‘the certificate of inheritance’), stating that G.R., who died on 10 May 2014, had left his estate to the deceased as his sole heir.

21. On the same day, the same court issued a European Certificate of Succession No 1 VI 175/18 (‘the European Certificate of Succession’), stating that the deceased had left her estate to the applicant in the main proceedings, who was her sole heir and who accepted the succession without reservation.

22. On 15 March 2019, the applicant in the main proceedings applied to the Registrų centras (State Enterprise Centre of Registers), the government body responsible in particular for the Cadastral Register and Real Property Register in Lithuania, for his right of ownership of the immovable property belonging to the deceased in Lithuania to be recorded in the register. He submitted the certificate of inheritance and the European Certificate of Succession issued by the German authorities in support of that application.

23. By decision of 20 March 2019, the Tauragė Division of the Real Property Register Department of the Property Registers Management Service of the State Enterprise Centre of Registers (‘the Division’) rejected that application on the ground that the European Certificate of Succession submitted did not contain the information required under the Law on the Real Property Register to identify the immovable property, in that it did not list the property inherited by the applicant.

24. The applicant filed a complaint against that decision with the Disputes Commission of the central registration office of the State Enterprise Centre of Registers (‘the Disputes Commission’), which adopted a decision on 9 May 2019 upholding the decision of the Division.

25. The applicant in the main proceedings brought an appeal against the decisions of the Division and the Disputes Commission before the Regionų apygardos administracinio teismo Klaipėdos rūmai (Klaipėda Chamber of the Regional Administrative Court of the Regions, Lithuania) which dismissed the appeal as unfounded by judgment of 30 December 2019.

26. The applicant in the main proceedings brought an appeal against that judgment before the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania). That court, sitting in extended composition, found that the dispute brought before it raised questions of interpretation of Regulation No 650/2012.

27. From the outset the referring court observes that, according to Article 69(5) of Regulation No 650/2012, a European Certificate of Succession constitutes 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) thereof, that is to say that the certificate does not affect the application of point (l) of Article 1(2) of the regulation.

28. The referring court notes that, in Lithuania, the documents on the basis of which rights in rem in immovable property can be recorded in the Real Property Register are listed in Article 22 of the Law on the Real Property Register and that Article 23(2) to (4) of that law stipulates the mandatory information and data which those documents must certify. The court points out that, as a public administration, the keeper of the Real Property Register acts solely by virtue of the powers conferred on it by the law, which does not grant it the power to make findings as to the scope of property rights or to collect information and proof attesting to whether or not certain facts exist. It notes that, consequently, according to the national rules of law relevant to this case, the information required to enter a record in the Real Property Register can only be supplied in the documents listed in Article 22 of the Law on the Real Property Register and that, if the information supplied is incomplete, the keeper of the Real Property Register does not have the power to take other information into account.

29. The referring court also affirms, concerning the circumstances of the case in the main proceedings, that the European Certificate of Succession issued by the German authorities was prepared using Form V and includes Annex IV to that form certifying the status and rights of the heir. However, it observes that no information was provided under point 9 of that annex identifying the property attributed to the heir for which certification is requested.

30. That court notes that the arguments put forward by the applicant in the main proceedings and the German case-law which he cites imply that the authority which issued the European Certificate of Succession did not omit to provide that information due to an oversight. The applicant claims, in particular, that German succession law is governed by the principle of universal succession and consequently, where there is a single heir, he or she inherits the deceased’s entire estate and it is not possible, under German law, to in any way indicate or designate the succession property. He claims that it is settled case-law that the German courts would therefore disapply point (l) of Article 68 of Regulation No 650/2012, which states that the certificate must indicate the share for each heir and, if applicable, the list of rights and/or assets for any given heir.

31. Given the objectives pursued by the EU legislature in creating the European Certificate of Succession, including the objective of settling inheritances with cross-border implications within the European Union quickly, easily and efficiently, the referring court has doubts as to how point (l) of Article 1(2) and Article 69(5) of Regulation No 650/2012 are to be interpreted and, in particular, as to how those provisions apply in combination with the national law governing the requirements for recording a property right in the Real Property Register of the Member State in which the succession property is located.

32. It is in those circumstances that the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must point (l) of Article 1(2) and Article 69(5) [of Regulation No 650/2012] be interpreted as not precluding legal rules of the Member State in which the immovable property is situated under which the rights of ownership can be recorded in the Real Property Register on the basis of a European Certificate of Succession only in the case where all of the details necessary for registration are set out in that European Certificate of Succession?’

33. Written observations were submitted by the Lithuanian, Czech, German, Spanish, French and Hungarian Governments and the European Commission. The Lithuanian, German and Spanish Governments and the Commission presented oral argument at the hearing held on 4 May 2022.

IV. Analysis

34. By the question referred for a preliminary ruling, the referring court asks essentially whether Regulation No 650/2012, especially point (l) of Article 1(2), point (l) of Article 68 and Article 69(5) thereof, preclude the application of provisions of national law pursuant to which immovable property acquired by a sole heir under a right of succession governed by the principle of universal succession can only be recorded in the Real Property Register of the Member State in whose territory the property is located on the basis of a European Certificate of Succession if all the data identifying the immovable property required under the national law of that Member State are included in the certificate.

35. That question concerns, first, requirements pertaining to the European Certificate of Succession and, second, the dividing line between the regime enacted under Regulation No 650/2012 and the regime enacted under national law governing the recording of property rights in a register.

36. As a reminder, the deceased, who died in 2015, had herself inherited from her husband (in 2014). However, in light of the details provided by the referring court and the question raised, this Opinion addresses only the succession to the estate of the deceased accepted by her son.

37. In that regard, it is necessary, in my opinion, to distinguish between the question of whether succession property must or can be listed in the European Certificate of Succession ( ) and the question of whether the registration authority in a Member State can refuse to record the property on the grounds that it is not listed in the European Certificate of Succession. ( ) Before analysing these two questions, I shall briefly address the place of the European Certificate of Succession within the scheme enacted by Regulation No 650/2012.

38. In short, the solution to the problem in this case is as follows: either the German authorities are required by virtue of the provisions of Regulation No 650/2012 to specify, in the European Certificate of Succession, the property in question or the Lithuanian authorities are required by virtue of the provisions of Regulation No 650/2012 to admit the application on the basis of the European Certificate of Succession issued by the German authorities.

A. European Certificate of Succession within the scheme enacted by Regulation No 650/2012

39. It follows from recital 7 of Regulation No 650/2012 that the objective of the regulation is to facilitate the proper functioning of the internal market by removing the obstacles to the free movement of persons who want to assert their rights arising from a cross-border succession. ( ) This regulation therefore contributes to the creation of an area of freedom, security and justice in the internal market and must therefore be interpreted in the light of those principles. ( )

40. Regulation No 650/2012 does not harmonise substantive succession law. In principle, therefore, ( ) it does not contain substantive provisions governing succession. On the contrary, the regulation uses conflict of law rules to determine the applicable (national) succession law to the succession. ( ) In that regard, Article 21(1) of the regulation enacts as a general rule the principle of the application of the law of the State in which the deceased was habitually resident at the time of death to the succession as a whole. Furthermore, Article 22(1) of the regulation allows a person to choose as the law to govern his or her succession as a whole the law of the State whose nationality he or she possesses at the time of making the choice or at the time of death. The scope of the applicable law is defined in Article 23 of Regulation No 650/2012. One need only remark here that the designated law under Articles 21 and 22 of that regulation governs the succession as a whole, ( ) including the transfer of assets. ( )

41. Regulation No 650/2012 regulates the applicable law and also the jurisdiction of the courts and the recognition and enforcement of decisions delivered in a different Member State.

42. Article 62 et seq. of the regulation govern one of its key innovations ( ), namely the European Certificate of Succession.

43. The certificate is intended to serve three primary functions in all the Member States: ( ) first, to prove the heir’s rights to the authorities, such as the Real Property Register, or private debtors of the estate, such as banks, secondly, to provide a rebuttable presumption of the accuracy and integrity of its contents, and thirdly, to protect a bone fide third party who makes payments to the person designated as the heir or who acquires succession property from the heir.

44. The European Certificate of Succession is subject to an autonomous legal regime, established by the provisions of Chapter VI of Regulation No 650/2012, ( ) the aim of which is to ensure its uniform application in all Member States. ( ) As regards the certificate, Articles 63 to 69 of the regulation concern, in particular, its purpose, the competence required to issue a certificate, the procedure for applying for a certificate, examination of the application and issue of the certificate and its contents and effects.

45. Article 63(1) of Regulation No 650/2012 concerning the purpose of the European Certificate of Succession states that it is for use in particular by heirs who, in another Member State, need to invoke their status or to exercise their rights as heirs.

46. Article 63(2), points (a) and (b), of Regulation No 650/2012 specifies respectively in that regard that the certificate may be used, in particular, to demonstrate details such as the status and/or the rights of each heir or the attribution of a specific asset or specific assets forming part of the estate to the heir(s) or, as the case may be, the legatee(s) mentioned in the certificate.

B. Contents of the European Certificate of Succession

1. Article 68 of Regulation No 650/2012

47. Article 68 of Regulation No 650/2012 lists the information required in a European Certificate of Succession ‘to the extent required for the purpose for which it is issued’; they include ‘the share for each heir and, if applicable, the list of rights and/or assets for any given heir’. ( )

(a) Obligation to specify the asset concerned

48. The question that arises is as follows: is the authority responsible for issuing the European Certificate of Succession required to specify the rights of and/or the assets passing to a particular heir?

49. The European Certificate of Succession is designed as an instrument which can be used to prove various elements. As the first paragraph of Article 68 of Regulation No 650/2012 in particular illustrates, it contains the information required for the purpose for which it is issued.

50. Thus, it is the intended purpose for which the European Certificate of Succession is issued, as indicated by the applicant in accordance with point (f) of Article 65(3) of Regulation No 650/2012, and the applicable national succession law which determine the contents of the certificate. It follows from point (a) of Article 63(2) of the regulation that the purpose of the certificate is, in particular, to prove the status of ‘heir’. Obviously, as point (b) of Article 63(2) of the regulation makes clear, the same certificate can also be used to prove other information, such as the attribution of a specific asset or specific assets forming part of the estate to the heir(s). In my opinion, that information may be included to the extent that it is justified by the proper functioning of the European Certificate of Succession, so that it can produce its full effects.

51. As I intend to demonstrate below, the information referred to in point (b) of Article 63(2) of Regulation No 650/2012 is not required for the purpose of entering a record.

(1) Universal succession

52. It is common ground that German succession law is the applicable law in this case pursuant to Article 21(1) of Regulation No 650/2012. Therefore, as stipulated in that provision, that law governs the whole of the succession, including the transfer of assets to the heir. ( )

53. In this case, according to the German law that applies pursuant to Paragraph 1922(1) of the Bürgerliches Gesetzbuch (Civil Code), when a person dies (opening of the succession), their entire estate (legacy) is transferred to one or more persons (heirs). That is the principle of universal succession. As noted by the German Government, that implies that the heir succeeds to the estate of deceased under the law as and when the event which triggers the succession occurs, that is when the deceased dies.

54. It should be noted that German law does not provide for succession other than universal succession; that implies that it is the estate as a whole, rather than particular assets, which are transferred as a totality.

55. That being so, it is not necessary to include an inventory of the estate in the European Certificate of Succession, inasmuch as the situation referred to in point (l) of Article 68 of Regulation No 650/2012 by the phrase ‘if applicable’, the need for a list of assets for any given heir, does not arise.

56. In fact, if that need does arise, the certificate will state that the person in question inherits a particular asset from the deceased. However, if the heir is the universal heir, there is no need to specify a particular asset in the certificate.

57. In that context, I am inclined to refute the argument that the phrase ‘if applicable’ should be understood solely as a reflection of the wishes of the person applying for a European Certificate of Succession. ( ) Even though the applicant is required to inform the authority issuing the certificate of its purpose, ( ) it is, however, for that authority to decide, based on that information, whether or not an asset should be specified.

58. However, the Commission maintains that such an approach is not in keeping with the requirements of Regulation No 650/2012. According to the Commission, the extent of the information provided in the European Certificate of Succession is determined not by the applicable national succession law, but by Article 68 of the regulation.

59. In my opinion, that approach by the Commission disregards the fact that Regulation No 650/2012 governs not only the jurisdiction for and contents of the European Certificate of Succession, but also, as I have suggested, the applicable national succession law to a case, which necessarily has an impact on the contents of the certificate.

60. Although Article 68 of Regulation No 650/2012 does, of course, regulate the contents of the European Certificate of Succession exhaustively, that does not preclude the fact that the applicable national succession law, as designated pursuant to that regulation, may have an impact on the contents. On the contrary, the use of the phrase ‘to the extent [the information is] required for the purpose for which [the European Certificate of Succession] is issued’ and the phrase ‘if applicable’ in that provision are indicative of the wish of the EU legislature to take account of the applicable succession law (emphasis added). The national law and the regulation are therefore clearly interdependent, inasmuch as it is the applicable succession law which primarily determines the contents of the certificate.

61. That being so, the issuing authority should, if applicable, demonstrate a degree of flexibility and apply practices with which it is not necessarily familiar, especially where it is required to apply foreign law. However, that is not the case here.

(2) Succession other than universal succession

62. Where the situation does not depend upon a national right of succession governed by the principle of universal succession ( ) and where the abovementioned purpose can only be achieved by indicating the share of the inheritance for the person in question, it is most likely that the asset in question should be specified.

63. The obligations imposed and the conditions to be fulfilled in this area may differ between the Member States. Specifically, the applicable succession law in another Member State may require a complete inventory of the estate, which would imply that that information must be included in the European Certificate of Succession. That situation would be covered by the phrase ‘if applicable’ in point (l) of Article 68 of Regulation No 650/2012.

(b) Option to specify the asset concerned

64. It remains to be seen whether, in a situation such as that disputed in the main proceedings, the authority responsible for issuing the European Certificate of Succession is free to decide whether or not to include the immovable property in question in the certificate where the person concerned makes a request to that effect.

65. It should be noted in that regard that, if a European Certificate of Succession is to produce its full effects, a degree of cooperation and mutual trust between the national authorities is required. That may imply that the issuing authority is required, in a spirit of sincere cooperation with the authorities of other Member States, to take account of the requirements of the law governing the register of another Member State, especially if that authority holds relevant information and elements.

66. In that case, any such cooperation would still be a delicate matter, as it may give rise to other legal problems.

67. Let us suppose that, where a request is made to that effect, reference to the asset in question remains optional for the authority which issues the European Certificate of Succession. In such a situation, would that be binding on the registration authority which records that asset, which is located in a different Member State? Where does that leave Article 69(2) of Regulation No 650/2012, which states that the certificate shall be presumed to accurately demonstrate elements which have been established under the applicable national succession law or under any other law applicable to specific elements? Does that presumption extend to ownership of the asset in question?

68. It also should be noted, in particular, that the inclusion of certain assets in the estate depends not on the rules of succession but on the rules of the right of ownership. ( ) In fact, a distinction should be made between the applicable succession law, which regulates transfer of ownership and the question of who acquires ownership of a deceased’s assets, on the one hand, and the question of whether a particular asset belonged to the deceased, on the other.

69. Lastly, it should be noted that, if it is to be able to list specific assets, the authority issuing the European Certificate of Succession must have an overall view of the estate. ( ) However, that may prove difficult, as this case illustrates.

2. Form V

70. The purpose of point 9 of Annex IV to Form V is to identify the assets attributed to the heir and for which certification has been requested. It is required to specify the asset(s) and indicate all relevant identification details. ( )

71. Contrary to the arguments of certain parties to the proceedings and the opinion of certain commentators, ( ) the form offers no guidance.

72. In fact, the information referred to in point 9 should be provided only where the asset concerned must be specified. ( ) However, as I have suggested, ( ) that does not apply in this case, as this is a case of universal succession.

73. Furthermore, it should be remembered that, as the (sole) objective of Implementing Regulation No 1329/2014 is to give effect to the provisions of Regulation No 650/2012, it cannot under any circumstance go beyond the substantive provisions of Regulation No 650/2012. Any other approach would call the principle of institutional balance into question. As the author of Implementing Regulation No 1329/2014, the Commission is therefore required to respect the will of the legislature. In other words, the implementing regulation cannot demand that information be provided in Form V which is not required for the purpose of the European Certificate of Succession. If it could, that would wrongly render the provisions of Regulation No 650/2012 meaningless.

74. Consequently, inasmuch as the correct interpretation of Article 68 of Regulation No 650/2012 begs the conclusion that that provision does not require specific identification of the Lithuanian asset in the European Certificate of Succession, it is not possible for any rule in Implementing Regulation No 1329/2014 to suggest otherwise. The implementing regulation must therefore be interpreted in the light of Regulation No 650/2012.

C. Effects of the European Certificate of Succession and its relationship with national property law (point (l) of Article 1(2) and Article 69(5) of Regulation No 650/2012)

75. Article 69(5) of Regulation No 650/2012 states that the European Certificate of Succession 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) of the regulation.

76. Point (l) of Article 1(2) of Regulation No 650/2012, the purpose of which is to establish the respective scopes of lex successionis and lex registrii, states that ‘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’ is excluded from the scope of the regulation.

77. The case which gave rise to the judgment in Kubicka ( ) has been the Court’s only opportunity to interpret point (l) of Article 1(2) of Regulation No 650/2012. By that judgment, the Court found that points (k) and (l) of Article 1(2) and Article 31 of that regulation must be interpreted as precluding refusal, by an authority of a Member State, to recognise the material effects of a legacy ‘by vindication’, provided for by the law governing succession chosen by the testator in accordance with Article 22(1) of that regulation, where that refusal is based on the ground that the legacy concerns the right of ownership of immovable property located in that Member State, whose law does not provide for legacies with direct material effect when succession takes place.

78. As a consequence of that judgment in Kubicka, the German law disputed in the main proceedings was not applied to the transfer of ownership. However, it did not concern real property registration rules. The national property law of a Member State may therefore impose additional procedural requirements, but only inasmuch as any such additional requirements do not concern the status attested by the European Certificate of Succession.

79. As Advocate General Bot noted in his Opinion in Kubicka, ( ) in practice, other documents or information may be required in addition to the European Certificate of Succession where, for example, the information in the certificate is not specific enough to identify the asset the ownership of which must be registered as having been transferred.

80. However, it has to be said that, in this case, the Lithuanian authorities have all the information needed for the purpose of making an entry in the Real Property Register: they are able to identify the person to whom the asset in question belongs or belonged and to ascertain, from the European Certificate of Succession, the status of heir of the applicant in the main proceedings.

81. That being so, the effet utile of the European Certificate of Succession would be undermined if Lithuanian property law were able to impose additional requirements on the applicant.

82. In fact, even if the specific asset acquired by succession is not designated in the European Certificate of Succession, its acquisition can be proven by that certificate. By that logic, it is not the identification of the asset in the certificate which provides the basis for amending the Real Property Register; but the status of heir of the person concerned. ( ) In that sense, the same certificate provides proof of the universal succession under German law, which also includes the immovable property of the deceased located abroad. It is for the keeper of the Real Property Register to verify if the asset in question is included in the succession and therefore if it belonged to the deceased. The authority must draw all the conclusions implied by the information contained in the European Certificate of Succession, namely that the person named as the deceased’s heir is his or her universal heir.

83. Therefore, the Lithuanian authorities have no legitimate reason, for recording purposes, to demand additional information in order to determine whether the person in question inherited the asset in question. To oblige that person to contact the German authorities and ask them to specify the immovable property in question would qualify as unjustified formalism.

84. To conclude, provided the effet utile of Regulation No 650/2012 and, in this instance, that of the European Certificate of Succession established by that regulation are not undermined, the Member States are free to legislate in the area of property law. However, point (l) of Article 1(2) of the regulation cannot have the effect of undermining the effet utile of a European Certificate of Succession which, as I have recalled, constitutes, pursuant to Article 69(5) of the regulation, a valid document for the purposes of recording succession property in the relevant register of a Member State.

85. In other words, although the conditions under which the succession property is acquired cannot, in principle, be ignored by the provisions of national law on real property registration, ( ) a European Certificate of Succession proving the succession is binding in nature and should be used as the basis for the entry in the register, whether or not its contents are in keeping with the normal practice applied when issuing such a certificate (or comparable national document) in the Member State of the Real Property Register. ( ) Only where it is objectively impossible to determine the purpose of the request in connection with the recording in the Real Property Register may it prove necessary to supplement the European Certificate of Succession in order to prove the universal succession to the estate of the deceased with the additional documents required to identify precisely the assets inherited. ( )

D. Cooperation between authorities (Article 66(5) of Regulation No 650/2012)

86. Article 66 of Regulation No 650/2012, which deals with examination of the application for a European Certificate of Succession, states in paragraph 5 that, for the purposes of the examination, 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 Real Property 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.

87. The Commission holds that, in this case, it was for the German authority which issued the European Certificate of Succession to contact the Lithuanian authorities for information on the immovable property when it examined the application for the European Certificate of Succession.

88. Although the cooperation mechanism introduced under Article 66(5) of Regulation No 650/2012 clearly plays a key role in the proper functioning of the system for processing the application and subsequently issuing a certificate, I disagree with the Commission’s point of view for the simple reason that cooperation is required only when it is necessary.

89. As demonstrated in this Opinion, that does not apply in this case, as the registration authority has all the information required for recording purposes.

V. Conclusion

90. In the light of the all foregoing considerations, I propose that the Court answer the question referred to it for a preliminary ruling by the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) as follows:

Point (l) of Article 1(2), point (l) of Article 68 and Article 69(5) 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 preclude the application of provisions of national law pursuant to which an immovable property acquired by a sole heir pursuant to a right of succession governed by the principle of universal succession can only be recorded in the Real Property Register of the Member State in whose territory that asset is located on the basis of a European Certificate of Succession if all the data required under the national law of that Member State to identify the immovable property are included in the certificate.