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In the almost eight years of application (since 17 August 2015) the Succession Regulation has been interpreted and sometimes reinvented by the Court of Justice of the European Union. The first of the published judgments was Kubicka (C-218/16) of 12 October 2017, which will be referred to below, and the latest, so far, the one discussed below, both connected by the narrowing of the concept of succession mortis causa.
All the European rulings, as well as the national doctrine of the D.G., nowadays of Legal Certainty and Public Faith, are collected in the second edition of my monograph Probate in Europeto the analysis of which I refer. On 9 March of this year, 2023, the Court of Justice of the EU (Fifth Chamber) published its judgment in case C-354/21 (Case C-354/21 (Registru Centras). The question referred for a preliminary ruling by a Lithuanian court concerned the refusal of its Registry Centre to accept a European Certificate of Succession issued in Germany which indicated who was the sole universal heir of the deceased, but did not describe the assets to be registered, as required by Lithuanian law for registration.
It was therefore a question of interpreting Art. 1. Par. 2 letter L), which excludes from the scope of the Regulation the registration of rights over movable or immovable property in a register, and Art. 69 Par. 5 of the Regulation, which, after establishing that the certificate will be a valid title for the registration of the inheritance acquisition in the competent register of a Member State, excludes - without prejudice to the provisions of Article 1, paragraph 2, letters k) (nature of rights in rem) and l) already seen. It should additionally be noted that Art. 68 (l) refers to the inventory as the content of the certificate, depending on the purpose for which it is issued, as does Implementing Regulation (EU) 1329/2014.
The latter includes in its Form V (European Certificate of Succession) an Annex IV, -Quality and rights of the heirs- item 9 of which reads: specify the assets and indicate all relevant identification data.
It should be recalled that the Brisch ruling (17 January 2019, C-102/18) makes Form V compulsory and Form IV voluntary when issuing the European Certificate of Succession. On this normative basis, the Court had to decide whether these provisions constitute an absolute exception to the law of succession and whether they apply in the case of several heirs or only one, as was the case here. That is to say, it had to delimit the lex successionis and the lex registriiGerman law (§ 1922 Paragraph 1 BGB) only provides for the universal succession of the heir or heirs, without the transfer of individual assets being possible.
The Kubicka judgment, in that tension referred to, chose the law of succession, holding that Articles 1(2)(k) and (l) and 31 (on the adaptation of rights in rem to the nearest equivalent in the Member State of receipt) of Regulation (EU) No 650/2012 must be interpreted as precluding the refusal by an authority of a Member State to recognise the real effects of a vindicatory legacy, recognised by the applicable law of succession, as recognised by the law applicable to the succession.650/2012 must be interpreted as precluding a refusal by an authority of a Member State to recognise the effects in rem of a legacy recognised by the law applicable to the succession chosen by the testator in accordance with Article 22(1) of that regulation, where the refusal is based on the fact that that legacy relates to the right of ownership of immovable property situated in that Member State, the law of which does not recognise the institution of the legacy with direct effect in rem at the date of the opening of the succession.
The same preference for the law of succession and the useful effect of the Regulation led Advocate General Szpunar to conclude, in the question referred for a preliminary ruling, that a certificate submitted as proof of inheritance is mandatory and must serve as a basis for entry in a register irrespective of whether or not its content corresponds to the usual practice for issuing the certificate or to the comparable national practice in the Member State of the land register.
Therefore, he concludes, only if it is impossible to determine the object of the application will it be necessary to supplement the certificate with additional documents, and the Regulation therefore precludes provisions of national law that prevent the registration of a property acquired by a single heir who acquires by universal title under the applicable law, if the certificate contains the data necessary for the identification of the immovable property required by national law - insofar as the registration authority has all the necessary information at its disposal. In other words, there is no need to describe the property in the certificate, if the Registry has instruments for locating the property concerned.
The Court of Justice, departing completely from these conclusions, which is not at all usual, held, like the Kingdom of Spain which intervened in the proceedings, that the opposite was the case. In the tension pointed out above, the Lex RegistriiThe Regulation (Art. 1(2)(I), 68(I) and 69(5)) must therefore be interpreted as not precluding legislation of a Member State which provides that an application for registration of immovable property in the land register of that Member State may be refused where the only document submitted in support of that application is a European Certificate of Succession which does not identify that immovable property.
This judgment properly interprets the exclusion from the scope of the lex rei sitae in relation to the Register (specifically referred to as Lex registrii) as did the Piringer judgment (C-312/15 of 9 March 2017), shielding the competences of the Member States over their registry system.
The only question is whether, when Mrs. Kubicka dies and the beneficiary intends to register her vindicatory bequest in the German land register, the judgment known by the name of her deceased will be rectified, applying the doctrine now established by the Court.