List 1. The authority with competence to deal with applications for a declaration of enforceability in accordance with Article 45(1);

Transcription

1 The information referring to Article 78 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 succession and on the creation of a European Certificate of Succession List 1 The authority with competence to deal with applications for a declaration of enforceability in accordance with Article 45(1); in Belgium, in Bulgaria, in the Czech Republic, district court ( okresní soud, in Prague obvodní soud, in Brno Městský soud ), in Germany, regional court ( Landgericht ), in Estonia, county court, in Greece, court of first instance ( Μονομελές Πρωτοδικείο ), in Spain, court of first instance (Juzgado de Primera Instancia), in France, regional court ( Tribunal de grande instance ), in Croatia, municipal court, in Italy, court of appeal ( Corte d Appello ), in Cyprus, district court, in Latvia, district (city district) court ( rajona (pilsētas) tiesas ), in Lithuania, Court of Appeal of Lithuania ( Lietuvos apeliacinis teismas ), in Luxembourg, district court, in Hungary: (a) the district court situated at the seat of the regional court, (b) in Budapest Buda Central District Court, in Malta: (a) civil court (First Hall) ( Prim Awla tal-qorti Ċivili ), (b) Court of Magistrates (Gozo) (Superior Jurisdiction) ( Qorti tal-maġistrati (Għawdex) fil-kompetenza superjuri tagħha ),

2 in the Netherlands, district court ( voorzieningenrechter van de rechtbank ), in Austria, district court ( Bezirksgericht ), in Poland, district court (sąd okręgowy), in Portugal, local court of first instance, in Romania, tribunal ( tribunalul ), in Slovenia, district court ( okrožno sodišče ), in Slovakia, district court ( okresný súd ), in Finland, district court, in Sweden, district court (Tingsrätt), List 2 The authority with competence to deal with appeals against decisions on applications in accordance with Article 50(2); in Belgium, in Bulgaria, in the Czech Republic, regional court ( krajský soud, in Prague Městský soud ); the appeal is to be lodged via the district court whose decision is being appealed, in Germany, Higher Regional Court ( Oberlandesgericht ), in Estonia, District Court, in Greece, court of appeal (Μονομελές Εφετείο) to which the court of first instance that heard the application is subject, in Spain, provincial court (Audiencia Provincial), in France, the Court of Appeal located within the territorial jurisdiction of the Regional Court that accepted or rejected the application to enforce the foreign judgment, in Croatia, municipal court, in Italy, the Court of Appeal ( Corte d Appello ), in Cyprus, District Court, in Latvia, regional courts (apgabaltiesas), via the intermediation of the relevant district (city district) courts ( rajona (pilsētas) tiesas ), in Lithuania, Court of Appeal of Lithuania ( Lietuvos apeliacinis teismas ), in Luxembourg, appeal court,

3 in Hungary, the regional courts, in Budapest, by Budapest Capital Regional Court, in Malta, the Court of Appeal ( Qorti ta l-appell ) in the Netherlands, court of the judge hearing applications for interim relief ( voorzieningenrechter van de rechtbank ) who ruled on the application for recognition or enforcement, in Austria, higher regional court ( Landesgericht ), via the district court ( Bezirksgericht ), in Poland, court of appeal (sąd apelacyjny) via the district court (sąd okręgowy), in Portugal: (a) court of appeal ( Tribunal da Relação ), (b) Supreme Court of Justice ( Supremo Tribunal de Justiça ), in Romania, appeal court ( Curtea de Apel ), in Slovenia, district court ( okrožno sodišče ), in Slovakia, regional court ( krajský súd ), via the district court which issued the contested decision, in Finland, Court of Appeal, in Sweden, district court (Tingsrätt), List 3 The authority to which the appeal for a procedure to contest the decision given on appeal in accordance with article 51 may be lodged; in Belgium, in Bulgaria, in the Czech Republic, the court which ruled at first instance on the application for a declaration of enforceability, in Germany, Federal Court of Justice ( Bundesgerichtshof ), in Estonia, the Supreme Court, in Greece, the Supreme Court ( Άρειος Πάγος ), in Spain, the Supreme Court ( Tribunal Supremo ), in France, the Court of Cassation ( La Cour de cassation ), in Croatia, county court, in Italy, the Supreme Court of Cassation ( Corte Suprema di Cassazione ),

4 in Cyprus, Supreme Court of Cyprus, in Latvia, the Supreme Court ( Augstākā tiesa ), via the intermediation of the relevant regional court ( apgabaltiesa ), in Lithuania, Supreme Court of Lithuania ( Lietuvos Aukščiausiasis Teismas ), in Luxembourg, Court of Cassation ( Cour de cassation ), in Hungary, the Curia of Hungary, in Malta, in the Netherlands, Supreme Court of the Netherlands ( Hoge Raad der Nederlanden ), in Austria, Supreme Court of Justice ( Oberster Gerichtshof ), via the district court ( Bezirksgericht ), in Poland, the Supreme Court (Sąd Najwyższy), in Portugal, Supreme Court of Justice ( Supremo Tribunal de Justiça ), in Romania, the High Court of Cassation and Justice ( Înalta Curte de Casaţie şi Justiţie ), in Slovenia, the Supreme Court of the Republic of Slovenia ( Vrhovno sodišče Republike Slovenije ), in Slovakia, the Supreme Court of the Slovak Republic ( Najvyšší súd Slovenskej republiky ), via the district court which issued the decision in first instance, in Finland, Supreme Court, in Sweden, court of appeal (Hovrätt) and the Supreme Court (Högsta domstolen), List 4 The procedure to contest the decision given on appeal in accordance with article 51; in Belgium, in Bulgaria, in the Czech Republic, the Supreme Court has jurisdiction for extraordinary redress proceedings ( řízení o dovolání ) in accordance with Act No 99/1963, the Code of Civil Procedure, Section 236 et seq., and Act No 292/2013, on Special Judicial Procedures, Sections 30 and 135. The application for extraordinary redress is admissible against any decision of the Court of Appeal by which the appeal proceedings is terminated if the contested decision depends on the resolution of an

5 issue of substantive or procedural law where the Court of Appeal, while resolving the issue, deviated from the established decision making practice of the Court of Appeal or that has not yet been resolved in the adjudicating of the Court of Appeal or has been decided on differently by the Court of Appeal or if the Court of Appeal is to review the resolved legal issue differently (cf. Act No 99/1963, the Code of Civil Procedure, Section 237). The court which ruled at first instance has jurisdiction for actions to reopen proceedings ( řízení na obnovu řízení ) in accordance with Act No 99/1963, the Code of Civil Procedure, Section 228 et seq., and Act No 292/2013, on Special Judicial Procedures, Section 29. The court which ruled at first instance has jurisdiction for actions for annulment ( řízení o žalobě pro zmatečnost ) in certain cases in accordance with Act No 99/1963, the Code of Civil Procedure, Section 229 et seq., as well as in certain cases, the Court of Appeal (cf. Act No 99/1963, the Code of Civil Procedure, Section 235a), and Act No 292/2013, on Special Judicial Procedures, Sections 29, 133 and 134. in Germany, appeal on points of law only ( Rechtsbeschwerde ), in Estonia, a district court ruling may be contested by filing an appeal to the Supreme Court. An appeal against a ruling may be based solely on the fact that, when making the ruling, the district court incorrectly applied a provision of substantive law or was in grave breach of a provision of procedural law and this fact could have resulted in an incorrect court decision. in Greece, Enforceability is declared by the single-member court of first instance in ex parte proceedings (Articles 740 to 781 of the Code of Civil Procedure). Appeals before the single-member court of appeal against the above decision of the single-member court of appeal are heard in contested proceedings (Article 524 of the Code of Civil Procedure). The decision may be set aside on the grounds referred to in Article 559 of the Code of Civil Procedure. in Spain: (a) extraordinary appeal for breach of procedure (recurso extraordinario por infracción procesal) (b) appeal in cassation (recurso de casación), in France, an appeal in cassation must be lodged in order to appeal against a decision by a Court of Appeal. There are various different grounds for appeal in cassation (violations of law, misuse of power, lack of jurisdiction of the court, lack of legal

6 basis, lack of grounds, conflicting judgments, etc.) but in all cases the court only reviews the application of the law, in Croatia, appeal proceedings are subject to the rules on out-of-court procedures, in Italy, appeal on a point of law ( ricorso per cassazione ), in Cyprus, in Latvia, In cassation ( kasācijas kārtībā ) for infringements of legislative provisions, in Lithuania, The procedure shall be an appeal in cassation lodged in accordance with the national rules of legal proceedings in the court of cassation. Pursuant to the provisions of the Code of Civil Procedure of the Republic of Lithuania, cassation shall be possible only when the grounds listed in this Article exist: 1) a violation of rules of the substantive or procedural law, which is of essential significance for the uniform interpretation and application of law, where such violation might have influenced the adoption of an unlawful decision (ruling); 2) a court has diverged from the application and interpretation of the case-law formulated by Supreme Court of Lithuania ( Lietuvos Aukščiausiasis Teismas ) in the challenged decision; 3) the case-law of the Supreme Court of Lithuania ( Lietuvos Aukščiausiasis Teismas ) on the challenged matter of law is different. The court of cassation shall examine the challenged decisions and (or) rulings only from the point of view of the application of law within the limits of the appeal in cassation. in Luxembourg, appeal before the Court of Cassation ( recours en cassation ), in Hungary, review proceeding upon request for review, in Malta, retrial ( ritrattazzjoni ). This is an exceptional remedy the grounds for which are specified in Article 811 of the Code of Organization and Civil Procedure, Chapter 12 of the Laws of Malta ( Kodiċi ta Organizzazzjoni u Proċedura Ċivili Kap. 12 ), in the Netherlands, Appeal in cassation ( Beroep in cassatie ). The Supreme Court does not review the facts of a case. The Supreme Court works on the basis of the facts as they were established by the court at the appeal (here the District Court). The Supreme Court checks whether the court interpreted and applied the law correctly and whether the judgment at issue was sufficiently and comprehensibly substantiated. The objective of proceedings in cassation is to promote and ensure legal uniformity, the development of law and legal protection, in Austria, Revisionsrekurs ( appeal on points of law only ),

7 in Poland, appeal in cassation, on grounds other than the determination of facts or the assessment of evidence, in Portugal, review appeal ( recurso de revista ). The Supreme Court of Justice only considers points of law, in accordance with Article 671 of the Code of Civil Procedure, approved by Law No 41/2013 of 26 June 2013, in Romania, second appeal ( recurs ), in Slovenia, appeal to the Supreme Court, in Slovakia, an extraordinary appeal ( dovolanie ), which does not necessarily concern only defects of law in the contested decision, in Finland, procedure for appeal to the Supreme Court, if it grants leave to appeal, in accordance with Chapter 30, Sections 1 to 3 of the Code of Judicial Procedure, in Sweden, appeal (Överklagande), List 5 The authority with competence to issue the European Certificate of Succession; in Belgium, in Bulgaria, in the Czech Republic: (a) Notary, (b) District court ( okresní soud, in Prague obvodní soud, in Brno Městský soud ), in Germany: Local court ( Amtsgericht ) In Baden-Württemberg, notary ( Amtsnotariate ) in Estonia, notary, in Greece, District civil court ( Ειρηνοδικείο ), in Spain: (a) court of first instance which heard the case concerning the succession (Juzgado de primera instancia), (b) notary, in France, notary,

8 in Croatia: (a) municipal court, (b) notary, in Italy: the ordinary court ( tribunale ), for territories where the land register system is in force, notary, for territories where the land register system is not in force, in Cyprus, district court, in Latvia, notary, in Lithuania, notary, in Luxembourg, notary, in Hungary: (a) district court, (b) notary, in Malta: (a) civil court (Voluntary Jursdiction Section) ( Qorti Ċivili (Sezzjoni ta Ġurisdizzjoni Volontarja )), (b) notary, in the Netherlands, notary, in Austria: (a) notary, (b) district court (Bezirksgericht), in Poland, in Portugal: (a) registrar ( conservadore ) with competence in the area of succession procedures, (b) civil registry office, pursuant to Articles 17 and 18 of Decree-Law No 324/2007, (c) land registry office, pursuant to Articles 17 and 18 of Decree-Law No 324/2007, (d) trade registry office, pursuant to Articles 17 and 18 of Decree-Law No 324/2007, (e) notary, pursuant to Articles 17 and 18 of Decree-Law No 324/2007, in Romania, notary,

9 in Slovenia, district court which ruled in the succession procedure, in Slovakia: (a) court-appointed notary (notár poverený súdom) if succession proceedings have not been concluded, (b) district court (okresný súd), if succession proceedings have been concluded, in Finland, local register office, in Sweden, Swedish Tax Agency (Skatteverket), List 6 The authority to contest the decision of the authority that issued the European Certificate of Succession in accordance with Article 72 may be lodged; in Belgium, in Bulgaria, in the Czech Republic, regional court ( krajský soud, in Prague Městský soud ); the appeal is to be lodged via a notary or the district court whose decision is being appealed, in Germany, Higher Regional Court ( Oberlandesgericht ), in Estonia, county court, in Greece, court of first instance ( Μονομελές Πρωτοδικείο ), in Spain, court of first instance, in France: (a) regional court, (b) the court hearing the main proceedings when the Certificate is challenged incidentally before a Regional Court or a Court of Appeal, in Croatia: (a) municipal court, when the Certificate is issued by a notary, (b) county court, when the Certificate is issued by a municipal court, in Italy, the ordinary court ( tribunale ), in Cyprus, Supreme Court of Cyprus, in Latvia, district (city district) courts ( rajona (pilsētas) tiesas ),

10 in Lithuania, district court, in Luxembourg, district court ( tribunal d'arrondissement ), in Hungary, regional courts, in Budapest the Budapest-Capital Regional Court, In Malta: (a) civil court (First Hall) ( Prim Awla tal-qorti Ċivili ), (b) Court of Magistrates (Gozo) (Superior Jurisdiction) ( Qorti tal-maġistrati (Għawdex) fil-kompetenza superjuri tagħha ), in the Netherlands, cantonal judge of the district court, in Austria: (a) district court if issued by a notary, (b) the appropriate higher regional court ( Landesgericht ), via the district court ( Bezirksgericht ), if issued by a district court, in Poland, in Portugal, local court of first instance, in Romania, first instance court ( Judecătorie ), in Slovenia, the appropriate higher court, via the district court that issued the certificate, in Slovakia: (a) notary, if the Certificate was issued before succession proceedings were concluded, (b) district court the Certificate was issued after succession proceedings were concluded, in Finland, administrative court, in Sweden: (a) district court (Tingsrätt), (b) court of appeal (Hovrätt), (c) the Supreme Court (Högsta domstolen), List 7 The procedure to contest the decision of the authority that issued the European Certificate of Succession in accordance with Article 72;

11 in Belgium, in Bulgaria, in the Czech Republic, the appeal proceedings are governed by Act No 99/1963, the Code of Civil Procedure, Section 201 et seq., and Act No 292/2013, on Special Judicial Procedures, Sections 28, 129 to 132 and 136, in Germany, The appeal must be lodged within one month of the date on which the person entitled to appeal is informed of the decision. If the person has their habitual residence abroad, the period is extended to two months. The appeal must be lodged in writing or in the form of an oral statement recorded in writing at the court, and may raise questions both of law and of fact. The appeal is automatically forwarded to the Higher Regional Court. The Higher Regional Court may decide the case itself or refer it back to the court below, directing it to decide in the light of the Higher Regional Court's opinion, in Estonia, to contest a European Certificate of Succession issued by a notary, a petition must be filed to the county court in whose jurisdiction the notary who issued the European Certificate of Succession is located. The county court will issue a judicial decision regarding the petition. A county court decision may be appealed to a district court, and the district court's decision on the appeal may in turn be appealed to the Supreme Court, in Greece, the appeals procedure is governed by Articles 495 to 500 and 511 to 537 of the Code of Civil Procedure, in Spain: (a) Appeals for a review are lodged before and settled by the same Court of First Instance which handed down the decision being appealed, (b) appeals against decisions by a notary are lodged before the Court of First Instance in the official place of residence of the notary concerned, and are conducted by means of a declaratory action, in France, the European Certificate of Succession will constitute an authentic instrument. Under Article 1319 of the Civil Code an authentic instrument can be challenged only by a plea of forgery. In such proceedings the authenticity of a document submitted is contested in court proceedings. However, they can relate only to an authentic instrument; there is therefore no possibility of alleging forgery of a private document. There are many specific features of these proceedings which may

12 vary according to the jurisdiction before which the claim is invoked. Thus, for example, at first instance and on appeal a claim of forgery may be raised as the principal issue or as an incidental matter. At the Court of Cassation, the allegation of forgery may only be invoked, even for the first time, as an incidental matter to the main appeal. It will be examined in terms of both substance and form. Admissibility is subject to mandatory conditions. A claim of forgery against an authentic instrument results in a communication to the Public Prosecutor (Code of Civil Procedure, Art [sic, should be 303]). This rule is a matter of public policy; in the absence of a reference to such a communication, the judgment will be overturned in cassation (Cass. Ire civ., 18 Oct : Juris-Data no ). It should also be pointed out that forgery of a public or authentic instrument or the use of false documents is punishable under the Criminal Code by a term of imprisonment of 10 years and a fine of These penalties are increased to 15 years' imprisonment and a fine if the forgery or use of false documents is committed by a person invested with public authority or a person entrusted with a public service task acting in an official capacity, in Croatia, appeals against decisions issued by a notary public on the issue of a European Certificate of Succession may be filed at a municipal court. A municipal court deciding on an appeal against a decision of a notary public may fully or partially uphold the decision or may cancel it. If the court cancels a decision or partially upholds it, the court itself decides on the cancelled part of the decision. Appeals against decisions made by a municipal court on the issue of a European Certificate of Succession may be filed at a county court. Appeals against decisions made by a municipal court on the issue of a European Certificate of Succession may be filed at a county court. In the event of an appeal filed within the legal time limit, a municipal court may itself issue a new decision to modify the challenged decision, on condition that this does not harm the rights of other parties that are based on that decision. If a municipal court does not modify a challenged decision itself, it submits a copy of the file including the appeal to the relevant county court, which decides on the appeal. in Italy, a complaint under Article 739 of the Code of Civil Procedure is made by appeal to the ordinary court ( tribunale ), which decides in closed session. The complaint must be lodged within a mandatory limit of ten days from communication

13 of the decision of the issuing authority, if it is given against a single party, or from notification if given against more than one party, in Cyprus, in Latvia, a European Certificate of Succession may be challenged by bringing a separate case before the court, the object of the claim being to declare void the facts set out in the Certificate. The separate proceeding enables individuals who have the capacity to be party to civil proceedings to bring a claim to court to defend their civil rights where these have been infringed or challenged. A claim is brought by submitting it in writing to the court. A claim is submitted to court along with as many copies as there are defendants and third parties in the case. Claims must be accompanied by documents attesting to the payment of State duties and other court costs in accordance with the procedures and amounts laid down by law, and stating the circumstances on the basis of which the claim is being made. Depending on the circumstances and nature of the case, the judge may place an obligation on the claimant to submit copies of the documents accompanying the claim to be forwarded to the defendant and third parties. In cases defined by law, where the documents are intended to be issued to a person in another country, claim applications and the attached document copies must be accompanied by a duly certified translation. The provision of a translation is not required by persons exempt from court costs, in Lithuania, pursuant to the Republic of Lithuania Law on the Notarial Profession, any person concerned, who believes the performed notarial act, or the refusal to perform a notarial act, to be unfair, shall have the right to appeal against it before a court according to the seat of a notary s office. Pursuant to the Code of Civil Procedure of the Republic of Lithuania, the failure to lodge an appeal shall not deprive of the right to request the court to award a compensation for damage inflicted through unfair acts of a notary. Notarial acts may be appealed against no later than within twenty days of the day on which the appellant became, or had to become, aware of the performance of the challenged act or of the refusal of the performance, but no later than within ninety days of the performance of the challenged act. The court shall settle the case with respect to the notarial acts by giving a ruling. After granting the appeal, the court shall cancel the notarial act or shall order the notary to perform the particular notarial act. The court ruling given with respect to notarial acts may be challenged by lodging a separate appeal with a court of appeal, in Luxembourg, written procedure,

14 in Hungary, review proceeding upon request for review, in Malta, decisions of the issuing authority may be challenged by means of a sworn application filed before the Civil Court (First Hall) who shall be the competent judicial authority for this purpose. The applicant shall cause a copy of the sworn application to be served on any person having an interest therein, who shall have twenty days within which to file a reply. Each party will be allowed to bring evidence in support of his claims/defence and after all evidence has been brought forward, the Civil Court (First Hall) will have to hand down the judgment. An appeal against a judgment of Civil Court (First Hall) can be made by means of an application to the Court of Appeal and shall be lodged within twenty days from the date of judgment of the first court, in the Netherlands, The procedure is launched by submission of an application. The District Court summons any interested parties. The interested parties may submit a statement of defence before the start of the proceedings or, with the judge's authorisation, during the course of the proceedings. They may also present their defence against the application orally at the hearing. At the end of the proceedings, the judge sets the date on which he will issue his judgment, in Austria, if the applicant does not agree with the certificate of succession issued by a notary acting as a court commissioner (Gerichtskommissär), the relevant district court must decide anew on the certificate of succession. The certificate of succession issued by the court commissioner therefore ceases to have effect, and is replaced by the certificate issued by the judge, in Poland, in Portugal, the judicial authority with jurisdiction for hearing appeals against decisions taken by the Registrar is the court in the Registry's area of jurisdiction. Within 15 days following the notification of the decision, the applicant must present to the Registry a statement of appeal addressed to the judge of the court, together with the documents he/she wishes to submit, as per Articles 286 and 288 of the Civil Registry Code, approved by Decree-Law No 131/95 of 6 June 1995, as amended by Decree-Law No 324/2007 of 28 September 2007, in Romania, the European Certificate of Succession is issued, at the request, by the public notary that issued the certificate of succession according to the Romanian law. A contestation can be formulated against the issuing of the European Certificate of Succession and against the refuse to issue the European Certificate of Succession. The contestation is solved by the First Instance Court in the circumscription of each is

15 situated the public notary that issued the certificate of succession according to the Romanian law. The decision is subject only to one single appeal. During the solving of the contestation the court can suspend the effects of the European Certificate of Succession. The public notary that issued the European Certificate of Succession is competent to rectify, modify and withdraw the European Certificate of Succession. In case of rectification, modification and withdrawal of the European Certificate of Succession, the public notary has the obligation to inform all persons to which copies of the European Certificate of Succession were issued. A contestation can be formulated against the rectification, modification and withdrawal of the European Certificate of Succession. The contestation is solved by the First Instance Court in the circumscription of each is situated the public notary that issued the rectified, modified or withdrawn European Certificate of Succession. The decision is subject only to one single appeal. In Slovenia, the local court before which a succession case was brought shall decide on issuing the European Certificate of Succession. The decision taken by the court in accordance with Article 67 of the Regulation in respect of issuing the Certificate may be challenged. The legal remedy to be used against a decision to rectify the Certificate in accordance with Article 71(1) of the Regulation is an appeal. The legal remedy to be used against a decision to modify or withdraw the Certificate in accordance with Article 71(2) of the Regulation is an appeal. The appeal against the decision referred to in Articles 67 or 71(1) and (2) of the Regulation shall be lodged with the court that issued the decision. The court may modify or annul its decision, if this does not affect the rights of the persons relying on the decision. Where the court does not modify or annul its previous decision, it shall refer the appeal to a court of higher instance for a ruling. in Slovakia, appeals are to be lodged no more than 15 days after the date of delivery of the Certificate, either through the notary who was appointed to handle the succession proceedings and who issued the European Certificate of Succession before succession proceedings were brought to a final conclusion or through the district court which issued the European Certificate of Succession after succession proceedings were brought to a final conclusion. Appeals have suspensive effect. Appeals against the European Certificate of Succession are dealt with by district courts, in Finland, procedure for appeal to an administrative court. A decision of an administrative court can be appealed to the Supreme Administrative Court only if the

16 Supreme Administrative Court grants leave to appeal in accordance with the Administrative Judicial Procedure Act 586/1996, in Sweden, the provisions of the Act on Court Matters (Lagen om domstolsärenden) (1996:242) apply to appeals, save as otherwise provided in Regulation 650/2012,