European certificates of succession (ECS) in German and Czech practice: real-life consequences of the ECJ decision C-354/21

Almost two months have passed since the European Court of Justice ruled, by way of its judgment of 9 March 2023, in the case C-354/21, but we do not yet avail of any tangible responses on the cadastral offices in the Czech Republic or Lithuania, or of probate courts and real estate offices (“Grundbuchämter”) in Germany.

Almost two months have passed since the European Court of Justice ruled, by way of its judgment of 9 March 2023, in the case C-354/21 (Registrų centras VĮ) (the Lithuania office of bnt explained the case in an article which can be found here), but we do not yet avail of any tangible responses on the cadastral offices in the Czech Republic or Lithuania, or of probate courts and real estate offices (“Grundbuchämter”) in Germany.  The question around which the case revolved was how exactly the ECS must be issued in Germany and other countries and how they can be presented and enforced in countries which insist in their legislation, that the ECS provides an exact specification of the property forming the hereditary estate (Lithuania, Czech Republic, Slovakia, Hungary, Croatia, etc.)

The troublesome issue is as old as the ECS itself, which was introduced by the European Succession Regulation (Regulation EU/650/2012). Since 15 August 2015, an ECS may be obtained for all cases of succession in the EU – with the exception of the United Kingdom and Denmark – to be presented in other EU member states where property belonging to the estate may be located.  To give an example: the deceased, who died in Germany, owned a bank account in Austria, an apartment in the Czech Republic, and a holiday home in Lithuania.  Since 15 August 2015, their heirs shall not initiate any subsidiary succession procedure in these three countries (or in any other EU member state, other than the United Kingdom and Denmark), but can directly use the ECS to arrange for the transfer of the bank account in Austria, the flat in the Czech Republic, and the cottage in Lithuania.

The following aspects are not in dispute: the ECS must be issued in the form of a certified counterpart, requires no apostille, and must be presented to the banks and cadastral offices in Austria, the Czech Republic, and Lithuania while it is still valid – i.e., usually six months (whereas the decisive date is the date of submission; the entry may take place even after the ECS has expired).

The first contentious issue for which neither the EU Succession Regulation nor the Implementing Regulation EU 1329/2014 give a clear answer is whether the ECS must be translated by a court-sworn translator.  Consider that a translation of the document, which will run to 12 to 15 pages, is costly – at a price of up to EUR 500 – and that the Implementing Regulation already includes ready-made translations in all official languages of the EU (though, naturally, without the specifics of the individual case which need to be filled into the form).  Actual practice varies as to whether a certified translation is strictly required: banks will often be happy with the original (e.g. in German) and thus transfer, in our model case, bank accounts in Austria (where there is no language barrier anyway), the Czech Republic, or Lithuania.  Land registries in the Federal Republic of Germany will accept Italian ECS even if they are in the Italian language, but cadastral offices in the Czech Republic, the Slovak Republic, and Lithuania will only recognize ECS issued in Germany if they are furnished with a certified translation into Czech or Slovak (with mutual recognition in both the Czech Republic and Slovakia) or, as the case may be, Lithuanian.

This is a real nuisance for modest inheritances in bank accounts of e.g. up to a few hundred euros: often, it will not be entirely clear what the account balance is in the first place.  The translation of the ECS may in such cases cost more than what is deposited in the account.

The other tricky question is whether e.g. bank accounts or shares in companies – but in particular real estate property – must be entered in the ECS, in Annex IV (9).  Citing “universal succession”, the courts of e.g. Bavaria, Thuringia, or Baden-Württemberg regularly refuse to do so, but the land registries and cadastral offices e.g. in the Czech Republic, Slovakia, and Lithuania insist that such entry shall be made.  This was in fact at the heart of the matter in C-354/21 (Registrų centras): the Lithuanian Registrų centras, i.e., the Central Register for real estate property in Lithuania, refused to recognize an ECS which originated in Baden-Württemberg (at the Amtsgericht Bad Urach), as the Lithuanian real property in question had not been entered in the ECS.  The ECJ ruled in favor of this interpretation, on the strength of the argument that Art. 68 (l) of the European Succession Regulation principally allows for the relevant statement to be made (and Annex IV (9) was created so that this could be implemented in practice), whereas cadastral law has remained the domain of domestic law, i.e., is governed by Lithuanian or Czech or Slovak law.  Hence, says the ECJ, the court of origin must always satisfy itself whether (e.g.) listing the real property item by item is required in the target state, and the authorities in the target state may legitimately insist on such information.

Such a requirement makes no sense, of course, in the case of a sole heir (and will make little sense even in many of the cases where several heirs succeed a testator), but the ECJ found that it lies outside the purview of the European Succession Regulation and is thus at the discretion of the target states.

With this in mind, it will be important in the future to draw the probate court’s attention to this matter already at the time at which the issuance of the ECS is requested, and to insist that real property belonging to the estate be listed in itemized form.  However, as a rule, this will stretch the capabilities of the probate courts, as they would have to engage with Finnish, Greek, Portuguese, or Irish land registry laws.

Especially for the interim term, there is zero clarity as to how to attain recognition for previously issued ECS.

The Czech central cadastral authority has come up with a pragmatic solution which is reminiscent of Good Soldier Švejk’s gentle subversiveness, but also of notoriously mendacious Baron Münchhausen: the heir may declare in writing, with no strict formal requirements (other than having to give the declaration in the Czech language with certification, which suggests that the transaction is best undertaken at the Czech embassy or a Czech consulate general, a post office in the Czech Republic, or before a Czech attorney or notary), that they have become heirs, and to whom, and what they have inherited – followed by a list of land plots, buildings, etc.  This is supposedly sufficient for achieving entry in the cadastral register, even if the ECS is silent on such matters.

We have no information on how Lithuania or Slovakia will proceed in cases in which the German probate courts continuously refuse to list the inherited property in the ECS and the heirs thus submit the ECS in the target country in incomplete form, without this information.

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