The matter of a European Certificate of Succession issued in Germany has not yet been resolved and, unfortunately, the Czech Land Registry is still reluctant to comply with this certificate. One case has now reached the Court of Justice of the European Union in Luxembourg.
The European Certificate of Succession (ECS), introduced in August 2015 in Articles 62 et seq. of EU Succession Regulation No. 650/2012 (“Regulation”), is a document intended to make it easier for EU heirs to resolve succession involving a European element and to make it easier to prove their right of succession in other EU Member States; however, given the differing practices of national courts and authorities in individual Member States, it may cause major problems.
As we wrote in the article “Entry of land plots in a European Certificate of Succession issued in Germany – First practical experience with German-issued European Certificates of Succession are disappointing in the Czech Republic” of 20 July 2018 and in the article “New Austrian Supreme Court ruling on European Certificates of Succession” of 21 November 2018, the courts in Germany, in particular in Bavaria, issue ECSs stating only the heir’s share of the entire estate. Unfortunately, they refuse to mention the specific items subject to succession, in particular they refuse to mention the specific property acquired by the heir.
It should be noted that the Regulation does not impose such an obligation on them, but only explicitly allows it. However, failure to list individual inherited properties in the ECS is probably a major problem for the Czech Land Registry, which then refuses to enter the heirs’ rights in the land register – even in a situation where there is no doubt about the heirs’ identity and their right of succession. In our opinion, the Czech Land Registry Offices act in violation of the Regulation and, therefore, unlawfully.
Since the ECS is issued on the basis of the Regulation, which takes precedence over Czech laws, our firm is currently a party to several court proceedings where, on behalf of the heirs, we request their right to be entered in the land register based on the ECS after the Land Registry refused such an entry.
In our view, the question of whether the heirs’ title to property can be entered in the Czech land register on the basis of the ECS, which does not meet the requirements of the Czech Cadastral Act but meets the requirements of the Regulation, is a matter of interpretation of European law and, therefore, a task for the Court of Justice of the EU in Luxembourg.
Proceedings on the entry of the heirs’ title in the land register have been initiated before multiple courts. The Regional Court in Brno took an uncompromising negative stance on this matter, ruling that misconduct was not committed by the Czech Land Registry Offices but by the German courts that, in the Court’s opinion, wrongly issued the ECS; therefore, we have appealed to the High Court in Olomouc against the judgements in these proceedings.
In a parallel case – the same ECS – the Municipal Court in Prague intends to submit to the Court of Justice of the European Union, upon our request, two questions concerning the interpretation of the Regulation and its precedence over the Czech Cadastral Act. There has not yet been a resolution to stay the proceedings or to submit questions under Article 267 of the TFEU, but the formulation of the questions has been agreed with us by the court. It can therefore be expected that the matter will be decided in a preliminary ruling procedure by the Court of Justice of the EU in the future.
We will keep you informed on the result of the proceedings before the European Court of Justice, as well as on the result of the appeal to the High Court in Olomouc, on our website. It should be noted that, for the time being, similar cases cannot be resolved due to the unlawful standpoint of the Czech Land Registry. An action against negative decisions must be brought within 15 days. The Czech Republic will be obliged to pay damages, i.e. additional costs, to the heirs.
The co-author of the article is bnt junior associate Vendula Doležalová.
Regulation No. 650/2012/EU TFEU
Act No. 99/1963 – Code of Civil Procedure
Act No. 256/2013 – Cadastral Act