JUDGMENT OF THE COURT (Second Chamber)

Similar documents
REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

Proposal for a COUNCIL REGULATION

8118/16 SH/NC/ra DGD 2

14652/15 AVI/abs 1 DG D 2A

Regulation Concerning Succession and Forced Heirship

Committee on Legal Affairs

***I REPORT. EN United in diversity EN A7-0045/

Recognition and enforcement of foreign judgments under the Brussels Ia Regulation

Budzowska Fiutowski i Partnerzy RADCOWIE PRAWNI

COMMISSION OF THE EUROPEAN COMMUNITIES. Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

EJTN seminar on cross-border inheritance law Feb 2014 Recklinghausen

The European succession regulation Brussels IV

APPLICABLE LAW IN SUCCESSION MATTERS

32. CONVENTION ON THE LAW APPLICABLE TO SUCCESSION TO THE ESTATES OF DECEASED PERSONS 1. (Concluded 1 August 1989)

APPLICABLE LAW, JURISDICTION AND RECOGNITION OF DECISIONS IN MATTER OF SUCCESSION

DISPOSITION OF PROPERTY UPON DEATH as per EU Regulation no.650/2012. Dr. Alexandra Cosmina Muntean civil law notary, Romania

EU Regulation n. 650/12. The Regulations s Impact on German Law Peter Kindler

Issues concerning the role of professional associates and the initiation of proceedings in inheritance cases

Ascertainment and application of foreign law in international insolvency proceedings. Charles University, Faculty of Law, Czech Republic

EUROPE WILLS PROGRAMME

Part Three. Section V. Law of Succession. Chapter 61. General Provisions Governing Succession

ESTATE PLANNING IN COSTA RICA

ASSETS AND PROPERTY MANAGEMENT

The new EU Succession Regulation in a nutshell

THIS PROJECT IS CO-FINANCED BY THE EUROPEAN UNION EUROPEAN CERTIFICATE OF SUCCESSION

Private International Law Act

EU Regulation n. 650/12. Agreements as to Successions Jacopo Re University of Milan

International Encyclopaedia of Laws. Private International Law - Outline. The author(s) Table of Contents List of abbreviations

THE NATURE OF THE INTEREST OF A RESIDUARY BENEFICIARY IN AN UNADMINISTERED ESTATE

I SUCCESSIONS UNDER FRENCH DOMESTIC LAW

19-20 February Applicable Law. - Workshop Material - Miodrag Đorđević, PhD Supreme Court Judge, Senior

BILL WILLS, ESTATES AND SUCCESSION ACT

General Introduction. Bob Wessels

INHERITANCES WITH EXTRANEOUS ELEMENTS - THE INTERNATIONAL TESTAMENT

Cross-Border Wills Project Discussion Workshop in Riga 31 January a.m. 1 p.m. Minutes

CURATELLE ACT. Act 12 of October 1973 ARRANGEMENT OF SECTIONS PART I PRELIMINARY. 1. Short title 2. Interpretation

CHAPTER 18:01 PRIVILEGES AND IMMUNITIES (DIPLOMATIC, CONSULAR AND INTERNATIONAL ORGANISATIONS) ACT ARRANGEMENT OF SECTIONS PART I PART II

SUCCESSION (SCOTLAND) BILL

Preliminary Remarks. The PILA-2017 introduces some changes in comparison to the rules currently in force.

AN ACT. Be it enacted by the General Assembly of the State of Ohio:

Wills, Trust & Estate Administration Curriculum

POWER TO THE CHILDREN: CHILDREN & PROPERTY the Franco/British Perspective

EU Regulation n. 650/12 JURISDICTION: GENERAL RULES AND CHOICE OF COURT. Ilaria Queirolo University of Genoa

JUDGMENT OF THE COURT (First Chamber) 12 February 2015 (*)

COMMISSION OF THE EUROPEAN COMMUNITIES GREEN PAPER. Succession and wills {SEC(2005) 270} (presented by the Commission)

ISSUES OF CODIFICATION AND INSTITUTIONAL DEVELOPMENT OF CONFLICT OF LAWS IN THE REPUBLIC OF ARMENIA LEGISLATION. Armen Haykyants 1

Bulgarian Key provisions.

Setting up a Legacy Campaign Legal Issues. Peter Littlefield

Succession (Scotland) Bill [AS AMENDED AT STAGE 2]

TRUSTS IN GENERAL AND TRANSACTIONS IN RESPECT OF IMMOVABLE PROPERTY TO WHICH TRUSTS ARE A PARTY

UNPROBATED ESTATES DECEASED SOLE OWNERS AND TENANTS IN COMMON

32000R1346 OJ L 160, , p (ES, DA, DE, EL, EN, FR, 1. Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings

As Passed by the House. Regular Session Sub. S. B. No

United States Probate Records,

CHAPTER 12:02 WILLS ACT ARRANGEMENT OF SECTIONS

Louisiana Code Title 9 Civil code ancillaries. RS 9:1721 Louisiana trust code CHAPTER 1. LOUISIANA TRUST CODE PART I. PRELIMINARY PROVISIONS

HON. MARK BROWN FOUNDATIONS ANALYSIS

ISLE OF MAN TRUSTS ACT 1995 ARRANGEMENT OF SECTIONS

Case C-268/99. Aldona Malgorzata Jany and Others v Staatssecretaris van Justitie

The German Association for the Protection of Intellectual Property (GRUR)

Law on Associations and Foundations

Reports of Cases. JUDGMENT OF THE COURT (First Chamber) 15 October 2015 *

TRUST LAW DIFC LAW NO.6 OF Annex A

APPENDIX I EXTRACTS FROM THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS

Reports of Cases. JUDGMENT OF THE COURT (Second Chamber) 20 December 2017 *

International Succession and Will

TITLE 11 WILLS TABLE OF CONTENTS

CUSTODY AGREEMENT Member State Member States Representative ECC Party Parties Effective Date Contracting Member States Service Contract Whereas

Trusts - The Usufruct In Trust

A. Related heirs B. Surviving spouse, surviving registered partner 2 C 465 repealed 2 D. Community 466 2

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS

Dispute Resolution Around the World. Poland

Number 20(I) of 2012 AMENDMENTS TO THE INTERNATIONAL TRUSTS LAW OF 1992

OPINION OF ADVOCATE GENERAL BOT delivered on 30 May 2017 (1) Case C 165/16. Toufik Lounes v Secretary of State for the Home Department

IPPT , ECJ, Montex v Diesel

CULTURAL IDENTITY ACROSS THE BORDER

Omnibus accounts in Poland new solutions available to foreign investors and custodians

Legal Services. Newsletter. Contents. Welcome to the Spring edition of Legal Services. New European regulations regarding succession

VIENNA CONVENTION ON DIPLOMATIC RELATIONS. DONE AT VIENNA, ON APRIL 1961

NATIONAL LEGISLATION: THE NETHERLANDS

Class Unification of Law - Uniform Law (Rechtsvereinheitlichung) Summer term 2016

IC Chapter 17. Distribution and Discharge

SUCCESSION OF ANDREW FORSTER CLEMETSON NO CA-0321 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA * * * * * * *

Senate Bill No. 207 Committee on Judiciary CHAPTER...

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

THE JURISDICTION OF PRIVATE INTERNATIONAL LAW REGARDING THE CLAIMS OF IMMOVABLE PROPERTY

The Impact of International Conflicts Conventions on Domestic Private International Law in Taiwan

TEXTS ADOPTED Provisional edition

COMMISSION OF THE EUROPEAN COMMUNITIES

Will we soon have a single pan-european contract law?

PRIVILEGES AND IMMUNITIES ACT

DECISION No.312 of November 19 th 2002

Civil Code and Related Subjects: Successions, Donations, and Community Property

JUDGMENT OF THE COURT (Third Chamber) 10 September 2015 (*)

Wills, Estates and Trusts The Terminology

Reports of Cases. JUDGMENT OF THE COURT (Second Chamber) 2 September 2015 *

LAW FOR THE INHERITANCE. Chapter one. GENERAL PROVISIONS

30. CONVENTION ON THE LAW APPLICABLE TO TRUSTS AND ON THEIR RECOGNITION 1. (Concluded 1 July 1985)

Succession (Scotland) Bill

LAW APPLICABLE TO ARBITRABILITY AND CONFLICT OF LAW RULES. HOW TO OPT FOR THE RIGHT ONE?

Transcription:

JUDGMENT OF THE COURT (Second Chamber) 12 October 2017 ( *1 ) Case C-218/16

The facts: - Aleksandra Kubicka a Polish citizen, married to a German, living in Frankfurt an der Oder - she and her husband are the owners of an estate (with a house) each of them had a half of the ownership (50 % share); - she wanted to make the last will, - as she was a Polish citizen, she turned to a notary in Słubice (Poland) to do so; - she wanted to include in her will a legacy by vindication (which is allowed by Polish law) the idea of this institution is that in a moment the testator dies, the asset to which a legacy relates, shall pass to a specified person (it must be done in a notarial instrument) that is what she wanted to do with her share in the estate, the rest of her assets she wished to be left for the statutory order of inheritance; - she didn t want to use an ordinary legacy, called legacy by damnation (which is also possible in Polish law system) it would be bound with difficulties with the representation of her minor children and would involve additional costs; - the notary s assistant refused to draw up her will; - she submitted to the notary an appeal against the decision refusing to draw up a will containing such a legacy by vindication ; - since her appeal to the notary was not upheld, Aleksandra Kubicka brought an appeal before the Regional Court, Gorzów Wielkopolski, Poland, which made the request for a preliminary ruling under Article 267 TFEU.

The law: There is a difference between Polish and German law as according to the Polish system it is possible to use a legacy by vindication (Article 981 (1) of the Civil Code) while the German system does not have this institution (they have the possibility to use an ordinary legacy, but apart from this you need to have an additional act of passing the ownership from the heirs to the legatee), The notary s reasoning was like this: In Germany, a legatee may be entered in the land register only by means of a notarial instrument containing an agreement between the heirs and the legatee to transfer ownership of the immovable property; foreign legacies by vindication will, by means of adaptation, would be considered to be legacies by damnation in Germany, under Article 31 of Regulation No 650/2012; The Kubicka s reasoning: The provisions of Regulation No 650/2012 should be interpreted independently and, in essence, that none of those provisions justify restricting the provisions of succession law by depriving a legacy by vindication of material effects.

The reffering court s reasoning: Pursuant to Article 23(2)(b) and (e) and Article 68(m) of Regulation No 650/2012, legacies by vindication fall within the scope of succession law However - it is uncertain to what extent the law in force in the place where the asset to which the legacy relates is located can limit the material effects of a legacy by vindication as provided for in the succession law that was chosen Given that, under Article 1(2)(k) of Regulation No 650/2012, the nature of rights in rem is excluded from the scope of the regulation, legacies by vindication, as provided for by succession law, cannot create for an asset rights which are not recognised by the lex rei sitae of the asset to which the legacy relates However - it is necessary to determine whether that same provision also excludes from the scope of the regulation possible grounds for acquiring rights in rem Referring to Article 1(2)(l) of Regulation No 650/2012, the referring court also wondered whether the law governing registers of rights in immoveable or moveable property may have an impact on the effect of a legacy under succession law. In that regard, it states that if the legacy is recognised as producing material effects in matters relating to succession, the law of the Member State in which such a register is kept would govern only the means by which the acquisition of an asset under succession law is proven and could not affect the acquisition itself As a result - the referring court considered that the interpretation of Article 31 of Regulation No 650/2012 also depends on whether or not the Member State in which the asset to which the legacy relates is located has the authority to question the material effect of that legacy, which arises under the succession law that has been chosen

The Court of Justice of The EU decision: Article 1(2)(k) and (l) and Article 31 of Regulation No 650/2012 must be interpreted as precluding refusal, by an authority of a Member State, to recognise the material effects of a legacy by vindication, provided for by the law governing succession, chosen by the testator in accordance with Article 22(1) of that regulation, where that refusal is based on the ground that the legacy concerns the right of ownership of immovable property located in that Member State, whose law does not provide for legacies with direct material effect when succession takes place

The Court of Justice reasoning: The question refers to: Article 1(2)(k), Article 1(2)(l) and Article 31 of Regulation No 650/2012 and is: Is there any obstacle to recognise in Germany the material effects of a legacy by vindication provided for in Polish law?

Potential obstacles: Art. 1(2)(k), but: - it exludes not the right itself, but the nature of the rights in rem - the provision covers only the classification of property and rights and the determination of the prerogatives of the holder of such rights - the existence and number of rights in rem in the legal order of the Member States (numerus clausus) are covered by this provision (recital 15) WHILE in the case both the legacy by vindication (in Poland) and the legacy by damnation (in Germany) constitute only the METHOD of transferring the right (ownership), which DOES exist in BOTH countries In other words the direct transfer of the ownership by the legacy by vindication is therefore only the way by which thet right in rem is transferred at the time of the testator s death which according to the recital 15 is the aim of the Regulation to be achieved and such methods of transfer are not covered by Article 1(2)(k).

Art. 1(2)(l), but: - this concerns only the recording in a register, including the legal requirements for such recording and the effects of non/recording such rights in a register AND NOT the conditions under which such rights are aquired - this reasoning is supported by: - the principle that the law governing succession should govern the succession as a WHOLE as provided for in Article 23, particularly Article 23(2)(e) - the objective persued by the Regulation, referred to in recital 7 under which all the obstacles to proper functioning of the internal market, the free movement of persons (who want to claim their rights arising from a cross border succession) should be eliminated

Article 31: - the ownership, which is to be transferred by the legacy by vindication, is a share in an immovable property located in Germany; it is undisputed that the German law recognises the right of ownership with which the legatee would be vested under Polish law.

The conclusion: 1. Art. 31 does not concern the method (of the transfer of rights in rem, including the legacy by vindication or by damnation ), but only the respect of the content of rights in rem, determined by the law governing the succession (lex causae), and their reception in the legal order of the Member State in which they are invoked (lex rei sitae) 2. Therefore there is no need for the adaptation provided for in Article 31 (both in Poland and in Germany there exists the same right ownership).