The application of the EU Succession Regulation (Regulation (EU) 650/2012) continues to be fraught with issues of disunity – most recently before the Czech land registry offices (cadastral offices) as to whether the claims vested in an ECS must be brought by all heirs within a community of heirs, or whether only some of them may do so.
The application of the EU Succession Regulation (Regulation (EU) 650/2012) continues to be fraught with issues of disunity – most recently before the Czech land registry offices (cadastral offices) as to whether the claims vested in an ECS must be brought by all heirs within a community of heirs, or whether only some of them may do so.
Also, following the decision of the CJEU of 9 March 2023 (C-354/21) (see here: https://bnt.eu/de/enz-in-der-deutschen-und-tschechischen-praxis-praktische-folgen-der-entscheidung-des-eugh-c-354/21-vom-932023/), an appeal on a point of law is pending in the German Federal Court of Justice (Ref. No. IV ZB 41/23) concerning a case of bnt, over whether German courts must enter Czech real property in a German ECS. Then there is the issue of which courts have jurisdiction when foreign clients of Czech nursing homes pass away who, when they relocated to the Czech Republic, already suffered from dementia; this is the subject matter of a court procedure before the Ústí nad Labem Regional Court (Ref. No. 84 Co 55/2024). Finally, the State Administration of Land Surveying and Cadastre (ČUZK) believes that, alongside the ECS, a German certificate of inheritance still ought to be fit for use in the Czech Republic. However, it should also be possible to use an ECS “domestically”, i.e., a German ECS within Germany and a Czech ECS within the Czech Republic.
1. Selective application of an ECS by some (but not all) heirs
Disputes are a perennial occurrence within communities of heirs, and there is thus nothing unusual about cases in which only some heirs wish to claim the rights from an ECS. In a case on which bnt advised, only three (of altogether four) heirs filed a motion for conveyance of real estate in Strakonice with the Cadastral Office in Strakonice, based on an ECS for that property. However, as is common in ECS issued in the State of Bavaria, the real property in question had not been entered in the partial ECS (for three of the four heirs). The latter problem could be circumvented by sworn statements of the heirs as to their inheritance pursuant to the Czech Land Registry Ordinance (see also 2. below), but the cadastral office nonetheless denied the entry of transfer, citing the fact that not all heirs had sought such entry (i.e., only three out of four). The State Administration of Land Surveying and Cadastre (ČUZK) has handed down a ruling which clarifies that the cadastral office was wrong to do so: While it is not desirable that only a subset of heirs seek entry, the cadastral office still cannot dismiss their motion by arguing that all heirs should jointly file the motion for conveyance.
2. Entry of Czech real property in German ECS – appeal on a point of law to the Federal Court of Justice (or, as a preliminary ruling procedure, to the CJEU)
In another case of bnt, an appeal was brought to seek the German Federal Court of Justice’s ruling (Ref. No. IV ZB 41/23) on whether German courts may (or, indeed, must) enter Czech real property in a (German) ECS. The CJEU precedent of 9 March 2023 (C-354/21), which concerned Lithuanian law and a Lithuanian land plot, is not entirely clear on this point, though it is beyond contention that, unless the real property is entered in Annex IV to the ECS (sub-section 9), it is not possible to enter a new owner for the property in the Czech Republic (in the case at hand, the heir herself had already died, and thus could not have produced a sworn statement within the meaning of the Czech Land Registry Ordinance). In Germany, the issue is controversial: Bavarian Higher Regional Courts refuse to enter any assets, bank accounts, etc., but numerous district courts in Hesse, North Rhine-Westphalia, Lower Saxony, and Berlin will perform the entry. This has compromised legal unity across Germany. However, these judicial practices represent a form of interpretation of the EU Succession Regulation; as such, the Federal Court of Justice should strictly speaking refer the issue to the CJEU pursuant to Art. 267 TFEU.
3. Negative conflict of jurisdiction in the case of deaths at old-age nursing homes
We previously reported (here: https://bnt.eu/de/tschechien-tschechien-der-intraeuropaische-demenztourismus-als-problemfall-unter-der-euerbvo-nr-650/2012/) that there exists what is known as a “negative conflict of jurisdiction” with respect to international territorial jurisdiction over a certain group of cases: that of (e.g.) German Alzheimer patients passing away in Czech nursing homes. Czech courts regularly deny that they are competent to open the inheritance procedure of such decedents, by arguing that the dementia sufferers had had no subjective will to establish their “habitual residence” within the meaning of Art. 4 of the EU Succession Regulation in the Czech Republic. However, many of the decedents have (been) moved away from Germany for a good number of years, and thus German courts, too, declare themselves incompetent in terms of international jurisdiction to open an inheritance procedure. bnt has now brought one such case before the Ústí nad Labem Regional Court) (Ref. No. 84 Co 55/2024). Principally, the issue is whether the “habitual residence” within the meaning of Art. 4 of the EU Succession Regulation is strictly factual or whether it has also a subjective element. Again, strictly speaking, the matter should be referred to the CJEU, since it concerns the proper interpretation of Art. 4 of the EU Succession Regulation. The appellate procedure was opened only in February 2024.
4. Using (German) certificates of inheritance before (Czech) cadastral offices
According to the State Administration of Land Surveying and Cadastre (ČUZK), German certificates of inheritance may be used in the Czech Republic alongside German ECS. In this respect, the State Administration cites Art. 39 of the EU Succession Regulation, according to which “(a) decision given in Member State shall be recognized in the other Member States without any special procedure being required”. This would mean: no recognition procedure, no apostille (Art. 74 of the EU Succession Regulation), but a certified official translation of the German certificate of inheritance, whereupon it may be presented to the Czech cadastral office – though presumably only along with a sworn statement by the heir as per the Czech Land Registry Ordinance in which the specific real property is listed, because a German certificate of inheritance does not contain such property (whereas for the inheritance of e.g. shares in Czech companies, the German certificate of inheritance alone ought to be sufficient). The notion that a German certificate of inheritance can be used also abroad is presumably correct, considering that Art. 62 (3) of the EU Succession Regulation stipulates that the ECS “shall not take the place of internal documents used for similar purposes in the Member States”. This is further borne out by Recital (69) of the EU Succession Regulation, according to which “(t)he use of the Certificate [meaning the ECS] should not be mandatory … However, no authority … presented with a Certificate issued in another Member State should be entitled to request that a decision, authentic instrument or court settlement be presented instead of the Certificate.” In other words: alternative routes may be taken, i.e., if a certificate of inheritance was initially issued before the participants became aware of the existence of Czech real property: in such a case, it will be enough to translate the certificate of inheritance and draw up a sworn statement.
Note, though, that the ECS may also be presented within a given country, “domestically”, i.e., in the Czech Republic. This is of relevance for cases in which domestic law does not acknowledge certain effects recognized by the EU Succession Regulation, such as the acquisition of heirs without title (i.e., heirs not (yet) entered in the land registry). Using an ECS, a non-registered heir would be able to sell and transfer real property to a third party who acts in good faith and acquires the real property from the non-registered heir as per Art. 69 (4) of the EU Succession Regulation – a possibility which is not anticipated by the Czech Civil Code (Act No. 89/2012 Coll.) with respect to the presentation of what is known as the inheritance decision (rozhodnutí o dědictví). (It is true that, within the Czech context, the heir is usually automatically entered in the public record upon such decision being handed down, but in other countries, this specific role of the ECS may well be of relevance). Upon presentation of the foreign ECS – pay heed: ECS are usually valid only for six months (though issuance for a full year may be sought, and extensions are possible) – Czech real property may directly be sold to prospective third-party buyers without having to first re-register them in the Czech cadastral register in the name of the heir.
Watch this spot: bnt will continue to inform you about the further developments.