A man is dead in Spain where he had his habitual residency. His creditors wished to claim their rights regarding an immoveable property under judicial sequestration located in Austria. They needed to prove that their connection to the deceased and therefore requested a copy of the succession certificate1 issued by a Spanish notary.2 A notary is a public officer who has a monopoly over operations that have to be register in the land registered. The creditors received a copy of the certificate that had been issued by the notary according to Article 70 of the EU 650/2012 known as Succession Regulation.
Paragraph 3 of the said Article mentions that copies of the certificate are valid during six months maximum. The copy issued by the Spanish notary mentions "unlimited duration" as expiry date. Is this document valid? The EUCJ has found that a document without any expiry date was valid during six months. This lenient attitude regarding formalities is, according to the Court itself, designed to prevent anyone from having "to request a new copy of that certificate, which would lead to longer delays and higher costs."3
Furthermore, the EUCJ was asked wether under Article 65(3) of the EU Succession regulation, a certificate had effect only for people who requested the certificate or for all those who were named in it? The Court favours circulation over formalism and has followed the same reasoning as in re Mahnkopf that has been analysed there4. EUCJ has decided here that the certificate had an effect for all the people mentioned on it.5 This is no surprise to you since you read Alacriter's blog and know that freedom of circulation as well as market integration really matter to the EUCJ6 and that estate planning should be consistent with its cultural and legal context as well as with the personality of the deceased.
In brief, formalities are not a major obstacle within the EU provided that they reflect the overall coherence of the succession planning.
-
EUCJ, 1 July 2021, C-301/20, UE and HC v. Vorarlberger Landes- und Hypothekenbank AG. ↩
-
See posts tagged EU Succession Regulation 650/2012. ↩
-
See UE and HC v. Vorarlberger Landes- und Hypothekenbank AG at 24 and ff. ↩
-
EUCJ, 1 March 2018, C-558/16; see Successions beyond formalities. ↩
-
See UE and HC v. Vorarlberger Landes- und Hypothekenbank AG at 39. ↩