The European Certificate of Succession (ECS) is a highly significant legal instrument in the field of international inheritance law, established by Regulation (EU) No. 650/2012 of the European Parliament and of the Council. This regulation governs matters related to jurisdiction, applicable law, recognition and enforcement of decisions, as well as the acceptance and enforcement of authentic instruments in succession matters.
The primary purpose of the European Certificate of Succession is to facilitate the circulation and recognition of inheritance rights among the Member States of the European Union. Through this certificate, heirs, legatees, executors of the will, or administrators of the estate can prove their status in a uniform and simplified manner, without the need to undergo additional recognition procedures in each Member State where estate assets are located.
The European Certificate of Succession is intended exclusively for cross-border use, aiming to remove administrative and legal barriers that may arise when succession involves multiple EU Member States. Unlike domestic inheritance instruments, this certificate benefits from automatic recognition in all EU Member States, with the exception of Denmark and Ireland, which have not adopted Regulation (EU) No. 650/2012.
- Relationship between the European Certificate of Succession (ECS) and the National Certificate of Inheritance (NCI) in the Context of Cross-Border Successions
In the field of European inheritance law, both the European Certificate of Succession (ECS) and the national Certificate of Inheritance (NCI) play an essential role. However, the relationship between the two must be clearly understood to avoid confusion and ensure the correct application of European regulations. The interaction between the ECS and the NCI can be examined from multiple perspectives, considering the effects of each.
a)The European Certificate of Succession Does Not Replace the National Certificate of Inheritance
One of the key aspects regulated by Regulation (EU) No. 650/2012 is the clarification of the relationship between the European Certificate of Succession (ECS) and the national Certificate of Inheritance (NCI). A fundamental principle established by the Regulation is that the European Certificate of Succession does not replace the national Certificate of Inheritance. This is explicitly stated in Article 62(3) of the Regulation, which specifies that “the Certificate shall not replace internal documents used for similar purposes in Member States.” Thus, the European Certificate of Succession is not considered a substitute for existing domestic documents in various Member States, such as the national certificate of inheritance issued by a public notary within a national legal system.
In Romania, this principle applies directly and has significant practical implications. Under Romanian law, for a public notary to issue a European Certificate of Succession, they must have previously issued a national Certificate of Inheritance. This means that before issuing the ECS, the notary must have already settled the succession by issuing a Romanian Certificate of Inheritance. This requirement is established by Law No. 206/2016, which stipulates that the European Certificate of Succession can be issued either simultaneously with or after the issuance of the national Certificate of Inheritance. Therefore, although individuals involved in a cross-border succession can request the issuance of an ECS for use in another Member State, they cannot bypass the national process of obtaining a Certificate of Inheritance.
b)Use of the European Certificate of Succession Is Not Mandatory
In accordance with the provisions of Regulation (EU) No. 650/2012, the use of the European Certificate of Succession (ECS) is not mandatory. Heirs have the freedom to choose between the European Certificate of Succession and other legal instruments available for proving heirship or inheritance rights.
The European Certificate of Succession serves as a legal instrument designed to facilitate the rapid and efficient resolution of cross-border successions, particularly when the estate involves multiple EU Member States. It enables the recognition of heirship status and inheritance rights in another Member State without requiring additional procedures in each country involved. However, it is important to emphasize that in Romania, the national Certificate of Inheritance, issued by a Romanian notary public, continues to hold the value of a property title and remains mandatory for internal procedures, even though the European Certificate of Succession offers an alternative for cross-border inheritance matters.
The national Certificate of Inheritance issued by a Romanian public notary constitutes a legal document that certifies the status of an heir, whether legal or testamentary, as well as the property rights of accepting heirs over the estate assets in the proportions established by law or the testator’s will. It may include mentions regarding the determination of inheritance shares and other elements justifying its issuance. In the context of a cross-border succession, for a Certificate of Inheritance to be issued, the Romanian public notary must have international jurisdiction in accordance with domestic legal norms as per Article 954 of the Civil Code, rather than under the rules established by the Regulation.
c)Direct Recognition of the European Certificate of Succession in Member States
According to Article 69(1) of Regulation (EU) No. 650/2012: “The Certificate shall produce effects in all Member States without the need for any special procedure.” This provision represents a significant benefit for heirs, as it eliminates the necessity of undergoing additional validation or authentication procedures for certificates of succession issued in another Member State.
For instance, if a person’s succession is opened in an EU Member State and their heirs wish to accept the inheritance in another Member State, the European Certificate of Succession issued in the state where the death occurred will be valid and recognized in the Member State where the heirs intend to use it. This removes the need to obtain another certificate of succession in a different state or validate the inheritance within another legal system.
However, it is important to note that while the European Certificate of Succession enjoys recognition among EU Member States, it does not possess the same attributes and effects as a national Certificate of Inheritance issued within a Member State. A national Certificate of Inheritance issued by Romanian authorities has enforceable power, meaning Romanian authorities are obliged to recognize and apply it automatically without requiring additional validation. Conversely, the European Certificate of Succession is not considered an authentic instrument with enforceable power before Romanian national authorities.
- Challenges in Using the European Certificate of Succession
Although the European Certificate of Succession (ECS) can facilitate succession proceedings across various EU Member States, its implementation presents challenges in alignment with the national regulations of each state. A particularly pertinent question arises as to whether an heir or legatee who has obtained an ECS in another Member State—where immovable property located in Romania has been identified—can request the registration of ownership rights in the Romanian land registers based solely on the ECS.
While certain legal opinions argue that the ECS could serve as a valid instrument for registering ownership rights over immovable property, under Romanian law, real rights over immovable assets are typically recorded in the land register based on a notarial authentic deed, a national certificate of succession, or a final court decision. In this legal context, the ECS is not regarded as an authentic act and therefore lacks enforceability or the capacity to serve as a title deed for the valid registration of ownership rights in land registers.
To illustrate this issue, we may examine a concrete case: a deceased Austrian citizen left behind several immovable properties in Romania, including apartments acquired during marriage. The succession proceedings were conducted in Vienna, and the deceased’s daughter, an Austrian citizen, applied for the issuance of an ECS certifying her status as heir. The issued ECS explicitly allocated to her the Romanian succession assets, as indicated in the annexed extracts. Subsequently, she requested the registration of her ownership rights in the Romanian land register and the authentication of a sales contract for one of the apartments.
As previously stated, under the current Romanian legal framework, real rights over immovable property are registered in the land register based on an authentic notarial deed, a final court decision, a national certificate of succession, or an administrative act (in cases expressly provided by law). Since the ECS does not qualify as an authentic act, is not a title of ownership, and lacks enforceability, the solution for validly registering ownership rights—and subsequently transferring them—was to obtain a Romanian certificate of succession for the immovable properties, issued in accordance with the applicable Austrian succession law. In this situation, the issuance of a Romanian certificate of succession, in compliance with domestic legal provisions, was necessary to ensure the proper validation and registration of ownership rights over immovable assets located in Romania.
Consequently, while the ECS is a useful tool for cross-border succession proceedings, it faces significant limitations under Romanian law, particularly concerning the registration of ownership rights over immovable property. The ECS can attest to the succession rights of heirs and legatees but is not considered an authentic act under Romanian law and cannot be directly used to register real rights over immovable assets in public registers.
In conclusion, the ECS establishes a parallel system intended to facilitate the assertion of succession rights within EU Member States. Although this evidentiary instrument is widely recognized, its implementation in each Member State is influenced by specific national legal provisions. In Romania, the ECS cannot fully replace internal procedures for registering ownership rights over immovable property, and practical solutions often necessitate a combination of the ECS and national certificates of succession.