First practical experiences with German-issued European Certificates of Succession are disappointing in the Czech Republic.
The European Certificate of Succession, introduced by Regulation (EU) 650/2012, will simplify legal transactions pertaining to matters of inheritance among EU member states and can be used as proof of inheritance law with authorities, banks, courts, and others within the EU (except three member states). Thus, it eliminates the need of further inheritance proceedings.
Implementation in practice is less encouraging. For instance, German courts were steadfastly refusing to enter the equalization of gains accrued under the statutory matrimonial property regime (within the meaning of Sec. 1371 (1) of the German Civil Code), i.e., a lump-sum share of ¼ in addition to the heir’s portion of the inheritance (of e.g. ¼), based on the ‘argument’ that this was a matter of property law rather than inheritance law. However, the ECJ put an end to this nonsense in its Mahnkopf decision (ECJ judgment of 1 March 2018, C 558/16). In its ruling, the ECJ noted (marginal Nos. 35, 36), that “… the objectives pursued by Regulation No 650/2012… [are] intended to facilitate the proper functioning of the internal market by removing obstacles to the free movement of persons who wish to assert their rights arising from a cross-border succession.” For the rest, this purpose clearly follows from Art. 63 (1) of the EU Succession Regulation. On 21 June 2018 the ECJ decided upon questions of competencies (C-20/17 – Oberle) – more details on this decision you can expect in our next newsletter edition. In a different context, difficulties are being encountered regarding land plots in Austria, Hungary and in the Czech Republic. Cadastral offices and public notaries make the transfer of title to land plots conditional upon a precise specification of the land plots in the European Certificate of Succession (i.e., it is not enough to state the heir’s portion in the inheritance).
Such specification would in principle be allowable under Art. 68 (L) of the EU Succession Regulation – alas, the German courts (e.g. the Higher Regional Court in Nuremberg in its resolution 15 W 299/17 of 5 April 2017 or the Higher Regional Court in Munich in its resolution 31 Wx 275/17 of 12 September 2017) have seen fit to rule that no specification of land plots should be entered in the certificate.
Suffice it to say that the information cannot very well be superfluous, at least in the above mentioned neighbouring countries, when the cadastral authorities and notaries refuse to make entries based on EU Certificates of Succession which lack information, citing their domestic law which seems to insist on concrete identification of individual land plots.
The solution is either not to apply German law (and to enter the land plot specification in the certificates) or not to apply the cadastral rules (and to transfer the title to the land plots even so). It is for the ECJ to decide which it should be, but so far there is no preliminary ruling from the ECJ.
In any case, though, European Certificates of Succession ought to enjoy priority within the internal market over the cadastral rules of individual EU member states, or else the very purpose of the European Certificate of Succession would be frustrated, which “is for use by heirs (…) who, in another Member State, need to invoke their status or to exercise respectively their rights as heirs”, (Art. 63 (1) of the EU Succession Regulation).
Regulation (EU) 650/2012 (EU Succession Regulation)