May we dare to hope for improved cooperation with the administrative authorities, and thus for tangible results as far as the ECS is concerned? It’s a nice New Year’s wish at least…
In several recent articles written by our colleague Dr. iur. Stephan Heidenhain has pointed out the various issues surrounding the European Certificate of Succession (ECS). Not only private individuals are hurt by them: the inconsistent approach to ECS has also been causing headaches for various administrative authorities, and in particular for the cadastral offices.
Simply put, the issue is the incompatibility between European Certificates of Succession on the one hand and both European and national rules at the same time, on the other hand. This issue has now been brought to a head by the fact that certain courts in the member states (such as the Ilmenau precinct of Amtsgericht Arnstadt in Germany, to name but one example) are unwilling to compromise and refuse to simply issue a slightly modified, „corrected” ECS, and thus prevent any straightforward solution to the problem which may otherwise be available. This leaves heirs with one last and only resort –– namely, taking the administrative authority to court within the meaning of Part V of the Code of Civil Procedure.
In and by itself, it is certainly not uncommon for an administrative authority to find itself in the role of defendant in litigation; what makes the situation bizarre (but is the claimant’s saving grace) is the fact that the cadastral offices wholeheartedly accept the thus initiated court disputes. This is because they share a common goal with the claimants, of which they are fully aware – namely, to explore every legal remedy leading up to a court procedure, and to then move the court to ask the ECJ for a preliminary ruling. A problem of European proportions would thus be resolved, rather fittingly, in the European arena. Given all the above, the ECS is not the success story its authors hoped for.
Under these circumstances, the cooperative approach now taken by the Surveying and Cadastre Office is actually quite an accomplishment. Its active willingness to take the matter to the courts, and to strive for a request for a preliminary ruling, lets heirs and their legal counsel focus on the battle with ECS in their current, dysfunctional manifestation, instead of having to become embroiled in energy-draining skirmishes between lawyers and (cadastral) government offices.
For the new year, let’s hope that the first seeds of the above-described cooperation take root and develop further so as to eventually deliver the fruit everyone is hoping for. At a minimum, one may expect that the Surveying and Cadastre Office will issue the much-desired memorandum, in support of a common-sense solution for the benefit of heirs who have found themselves in the role of victims of a dysfunctional legal arrangement.
Regulation (EU) No. 650/2012
Act No. 256/2013 Coll. (Cadastral Act)