Beyond the vehicle

Sat 24 June 2023, Philippe Ropenga EU Succession Regulation 650/2012

When international law is at stake, domestic law comes into play. This is self-evident. You may therefore wonder why I mention a cliché. You read my blog regularly. This probably means that you keep coming back despite the surprising opinions that I may express. Being surprised by me is not a surprise to you anymore. You know that I have written that legal harmonisation through the European Succession Regulation was possible mainly thanks the benevolence of domestic courts¹ that applied domestic law in a manner that let EU Law to play its part. The European Succession Regulation helps people to ascertain their rights more easily.² I have already written here that one should not downplay the role of domestic law because the European Certificate of Succession was a vehicle powered by local courts.³. When you drive, do you look mainly at the vehicle that you are driving? The same happens with the European Certificate of Succession: there things around it and courts deals with these things by applying domestic law.

A person had died in Germany. Her heir wished to exercise his right regarding an immoveable property in Lithuania.⁴ §24 of the RJR case reads as follows:

By decision of 20 March 2019, the Tauragė Division of the Land Register department of the Property Registry Service of the Centre of Registers rejected that application, on the ground that that European Certificate of Succession did not contain the information necessary for the identification of the immovable property laid out in the Land Registry Act, namely that it did not indicate the assets inherited by the applicant in the main proceedings.

This refusal has been challenged because Lithuanian law could be seen as hindering mobility across Europe in matters in which the European Certificate of Succession was the only document provided.⁵ The question has been referred to the court as preliminary ruling. The court highlighted the concept of autonomy at §40 of the ruling:

In that regard, it should be recalled that the European Certificate of Succession constitutes an autonomous instrument of EU law, the use and effects of which are regulated in detail in the provisions of Regulation No 650/2012. In particular, the Court has already stated that that certificate, which was created by that regulation, enjoys an autonomous legal regime established by the provisions of Chapter VI of that regulation (judgment of 21 June 2018, Oberle, C‑20/17, EU:C:2018:485, paragraph 46).

The scope of the Certificate cannot be extended. Hence, issues that are not addressed by the Succession Regulation are only addressed by local courts under domestic law. The autonomy of the Certificate does not imply that domestic law is irrelevant; the Certificate remains valid as far as issues within its scope are concerned.⁶ §51 of the preliminary ruling explains the answer to the question:

Consequently, in a situation where an authority responsible for the registration of a right in rem in immoveable property receives an application for registration of inherited immovable property, without that property being identified in a document on the basis of which that registration is sought, including in the European Certificate of Succession presented, it follows from the foregoing that that authority may reject such an application.

In brief, renvoi is not the only hypothesis in which domestic law is applied in international law.

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