As you know, the EU Succession Regulation 650/2012, hereafter the Regulation has introduced a European certificate of succession1 to simplify formalities related to cross-border successions. These formalities should not impair mobility within the EU.2 The Polish Sąd Okręgowy w Gorzowie Wielkopolskim requested a preliminary ruling from the EUCJ regarding notarial deeds. It seems that the European certificate of succession is a vehicle that can be used by notaries (1) but that its itinerary has to be locally determined by courts and lawyers (2).
1 The vehicle
To achieve better cooperation within the EU, each jurisdiction should be able to understand what is at stake in a given matter. People can use different means to circulate within the EU. Succession matters should circulate as easily as people do. Hence, the European certificate of succession is an efficient cross-border instrument (1.1). It however is a circulating device (1.2).
1.1 A cross-border certificate
The European certificate can be used to demonstrate one's right in a foreign country. Point 67 of the Regulation's preamble states that In order for a succession with cross-border implications within the Union to be settled speedily, smoothly and efficiently, the heirs, legatees, executors of the will or administrators of the estate should be able to demonstrate easily their status and/or rights and powers in another Member State, for instance in a Member State in which succession property is located. To enable them to do so, this Regulation should provide for the creation of a uniform certificate, the European Certificate of Succession (hereinafter referred to as ‘the Certificate’), to be issued for use in another Member State.
WB is the daughter of a Polish trader who worked in Poland near the border with Germany. WB asked a Polish notary to issue a certificate that would enable her to check whether the deceased has had money in any German bank.3 She was unsure whether the certificate constituted a decision within the meaning of Article 3(1)(g) of the Regulation or an authentic instrument for the purposes of Article 3(1)(i). She thus submitted two requests and relied separately on these two grounds. The notarial office answered that the certificate was a decision and that since Poland had not specified what professionals had to make this decision, the certificate could not be issued. The notarial office logically found that it could not issue a certificate by relying on the provision dealing with authentic instruments either since it found that the one about decisions was relevant.
Article 79 of the Regulation provides that Member states notify what professionals exercise judicial functions. Is this communication a requirement that has to be met for a professional to be able to make a decision?
No. The Court stated that this communication was "of merely indicative value"4, and that "the proper administration of justice within the European Union, would be seriously undermined"5 by the opposite interpretation. The EUCJ also favours market integration by interpreting the Regulation to allow the issue of a certificate when there is a doubt as to the meaning of a provision contained in the Regulation. It confirms the role of the EUCJ in promoting a wide use of the certificate in a cross-border context6.
Let us now see that the certificate does not move like a car.
1.2 A circulating device
One uses a car to travel from A to B. This is not how the certificate has been used in this case. WB wished to be able to prove her heir status in Germany. WB ignored where this case might lead her to. The EUCJ had to decide whether the certificate was a decision or an authentic instrument. Why does it matter? The answer to this sensible question can be found in point 22 of the Regulation's preamble. It reads as follows:
Acts issued by notaries in matters of succession in the Member States should circulate under this Regulation. When notaries exercise judicial functions they are bound by the rules of jurisdiction, and the decisions they give should circulate in accordance with the provisions on recognition, enforceability and enforcement of decisions. When notaries do not exercise judicial functions they are not bound by the rules of jurisdiction, and the authentic instruments they issue should circulate in accordance with the provisions on authentic instruments.
The EUCJ has stated that an authority must be regarded as exercising judicial functions where it may have jurisdiction to hear and determine disputes in matters of succession. That criterion applies irrespective of whether the proceedings for issuing a deed of certification of succession are contentious or non-contentious7.
Since the certificate issued is based on an unanimous request in this case, it is an authentic instrument.8
It appears that the certificate does not move like a car but circulates like air to fill any uncertainty regarding a right granted by a foreign legislation.
It has been seen that the EUCJ was keen on removing any formal obstacle to the issue of a certificate. It intends to foster circulation across the EU. Let us see that circulation does not allow by itself to reach a target.
2 The itinerary
Successions are powered by national courts (2.1) and reach their destination when a local solution is found (2.2).
2.1 Jurisdiction-based motion
This case is interesting since it gives the opportunity to think about how international a succession can be. Let us have another look at point 22 of the Regulation. It provides that When notaries exercise judicial functions they are bound by the rules of jurisdiction, and the decisions they give should circulate in accordance with the provisions on recognition, enforceability and enforcement of decisions. Hence, contentious matters will be decided by courts. Moreover, people who seek legal advice will consult a lawyer to find a practical solution. They will not necessarily ask a notary to work for them since their main concern is finding a solution and not getting formalities done. They often wish to avoid court. The practitioner will examine international law as well as national case law to find a solution and may trigger a procedure to get a legal issue referred to the EUCJ if necessary. This is what happened in this case. National courts, as in this case, usually are benevolent towards EU law or international law. Benevolent courts may also interpret an international source in a way that reflects the practice of a given domestic law.9 Courts thus contribute to propel internal succession matters in their country.
There also is a practical reason to consider local law and practice.
2.2 Local solutions
People seek legal advice not because they want to know what the law is but because they want to find a practical answer to their practical issues. If countries A and B happen to be on the itinerary of a succession matter, one has to know how something decided in A can be performed or have effect in B. One cannot answer these questions without examining domestic law. Furthermore, someone who practices international law cannot restrict his practice to private international law strictly speaking, i.e., determining what court has jurisdiction or what law applies to a given case. A true international lawyer is pragmatic and knows that he has to take all issues that stress a client into account even if they seem to be loosely related to international law since it is the only way to find a solution that may satisfy the client.10 Strange as it may seem when one thinks about globalisation in a succession context, international issues have to be solved locally.11
It has been seen that the itinerary of a succession matter depended on the jurisdictions that it went through and that this journey came to an end when a local solution was found.
In brief, the European certificate of succession is a convenient vehicle that helps succession matters to circulate more easily across the EU. One however has to pay attention to jurisdictions within the European internal market to help successions to travel to a local destination.
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See Chapter VI of the Regulation. ↩
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See point 23 of the Regulation's preamble. ↩
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See EUCJ, C-658/17, 23 May 2019, WB at 22 and ff. ↩
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See id. at 48. ↩
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See id. at 46. ↩
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See EUCJ, C-658/17, 23 May 2019, WB at 56. ↩
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See id. at 59 and ff. ↩
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See Cross-border estates: A practical approach to understand how different this approach is. ↩