Analysis
Each of K, a Polish national resident in Germany, and her husband had a 50% share of immovable property in Germany. K wished to include in her will a legacy ‘by vindication’ concerning the German property in favour of her husband. A legacy by vindication passed an asset, including a share in a right of ownership of immovable property, to a specified person on the opening of the succession. This was to be distinguished from a legacy ‘by damnation’, under which the heir must transfer the right in property to the legatee. K wished to leave the rest of the assets in her estate in accordance with the statutory order of inheritance, under which her husband and children would take in equal shares. K chose the law of her nationality—Poland—to govern her succession.
K approached P, a notary practising in Poland, to prepare the will but P refused to do so on the ground that the creation of a will containing a legacy of land by vindication was contrary to German law, which did not provide for such legacies, and under the Polish law relating to notaries she was required to refuse to execute unlawful instruments.
K appealed against this refusal to the Regional Court in Poland, which referred the question to the EUCJ. Article 22(1) of EU Regulation No 650/2012 (known as the “Succession Regulation”) enabled a testatrix to choose the law of the state of which she was a national to govern her succession as a whole. Art 23(1) of the Regulation established the principle of the unity of the law applicable to a succession. Arts 1(2)(k) and (l) and Art 31 of the Succession Regulation excluded the nature of rights in rem and any recording in a register of rights of immovable property from the scope of application of the Regulation. The question before the Court was whether this permitted K to refuse to prepare P’s will.
Held:
Legacies by vindication and by damnation constituted methods of transfer of ownership of an asset—in this case a right in rem recognised by both legal systems concerned. Accordingly, the direct transfer of a right in rem under a legacy by vindication concerned only the arrangement by which that right would be transferred at the time of the testatrix’ death. This method of transfer was not within the exceptions described in Art 1(2)(k) of the Succession Regulation and a refusal to recognise the material effects of such a legacy when succession took place in accordance with the governing law chosen by the testatrix, in a Member State whose legal system did not provide for such legacies, was precluded.
As to registration of a transfer, Art 1(2)(l) of the Succession Regulation concerned only the recording (or failure to record) of property in a register of rights. The conditions under which such rights were acquired did not fall within the scope of the exception.
Furthermore, the Succession Regulation provided for the creation of a European Certificate of Succession, which was to be interpreted in circumstances such as those in this case as precluding refusal, by an authority of a Member State, to recognise the material effects of a legacy by vindication, which was provided for under the law governing succession chosen by the testatrix.
The Court, having regard to the written procedure and further to the hearing on 1 March 2017, after considering the observations submitted on behalf of:
– Ms Przemysława Bac, acting in her capacity as notary, by M. Margoński, zastępca notarialny,
– the Polish Government, by B. Majczyna, M. Nowak and S. Żyrek, acting as Agents,
– the German Government, by T. Henze, J. Möller, M. Hellmann and J. Mentgen, acting as Agents,
– the Greek Government, by E. Tsaousi and A. Magrippi, acting as Agents,
– the Spanish Government, by V. Ester Casas and S. Jiménez García, acting as Agents,
– the Hungarian Government, by M.Z. Fehér, G. Koós and M. Tátrai, acting as Agents,
– the European Commission, by M. Wilderspin and A. Stobiecka-Kuik, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 17 May 2017, gives the following
JUDGMENT [1] This request for a preliminary ruling concerns the interpretation of Art 1(2)(k) and (l) and Art 31 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 …Continue reading "Kubicka [2018] WTLR 933"