Judgment of the Austrian Supreme Court (OGH) on land specifications with far-reaching implications for ECS practice
In an earlier article published on 20 July 2018 I dealt with the experience with German European Certificates of Succession (ECSs), which were introduced by Regulation 650/2012/EU (EuErbVO) and can be issued for deaths since 17 August 2015 (Entry of land plots in a European Certificate of Succession issued in Germany – first practical experiences with German-issued European Certificates of Succession are disappointing in the Czech Republic). That article elicited a number of responses from readers, confirming my view that the Czech Republic (as well as Austria, Slovakia, and Hungary) have substantial problems in this regard – problems which are still awaiting to be resolved by jurisprudence.
The decision of the Austrian Supreme Court (OGH, judgment of 15 May 2018, AZ: 5Ob35/18k) concerns the central question between Germany and Austria, but mutatis mutandis also the Czech Republic, Hungary and Slovakia, namely whether ECSs from Germany, which do not contain a specification of plots, are sufficient for a transfer of Austrian (or Czech, Slovak or Hungarian) plots.
„Essential” registration in the cadastre
In almost all successor states of Austria-Hungary, where Maria Theresa introduced in the great reforms of 1750 as a „tax (Theresian) register” as a register of real estate, specifications of plots of land are essential for transferring or registering them. However, in ECSs issued in Germany, these specifications are often missing, in particular because of the practice of Bavarian courts (judgements of the Higher Regional Court of Munich and Nuremberg from 2017, to which many German district courts orient themselves).
A similar case has now been decided by the Austrian Supreme Court in Vienna: four German heirs requested the transfer of properties in Austria with a German ECS, which contained no designation of the properties. In the opinion of the OGH, a transfer is possible without specifying properties in the ECS. This is because the EuErbVO takes precedence over national cadastral law.
In detail, the Supreme Court justifies this result with the Austrian peculiarity that „…according to formal (sc. Austrian) register law, the concrete designation of property in a European Certificate of Succession (or a copy) is not a mandatory prerequisite for incorporation. The content of such a certificate is based exclusively on Art. 68 EuErbVO, which conclusively regulates the information to be included therein and does not require the designation of the property either, so that the absence of this information alone does not prevent a grant of incorporation on the basis of such a certificate.
The content of the certificate submitted by the applicants is thus unobjectionable in formal terms and leaves no doubt in substantive legal terms either because it is linked to the (rebuttable) presumption that their legal position as stated in the certificate actually exists. It was decisive that the ECS clearly expressed the legal status of the heirs and that nobody doubted their legal status.
A submission to the OGH in accordance with Art. 267 TFEU (Treaty on the Functioning of the EU) was apparently not an issue for the Supreme Court, because a provision in Austrian land register law enabled registration even without specification. The decision is important for practice in the Czech Republic, Slovakia and Hungary because it clarifies that the ECS is sufficient for registration if it has been issued lawfully, i.e. even without specifying the land; but decisions of the Supreme Court have not been binding for 100 years in Hungary, Slovakia and the Czech Republic. Unfortunately, the OGH, whose decisions are binding on Hungary, Slovakia and the Czech Republic, has not yet decided whether the ECS takes precedence over formal national cadastral or registry law. Only then would the practice of Czech, Slovak and Hungarian cadastral offices no longer be based on rejecting ECSs from Germany because of national cadastral law.
Unfortunately, the only alternative for heirs at present is to sue either against Czech, Slovak or Hungarian refusals of a Czech, Slovak or Hungarian cadastral office, or to obtain ECSs that can be used in Germany, i.e. those that specify land plots. Outside Bavaria and Thuringia this is possible, but often very time-consuming and costly. It should also be noted that an ECS is only valid for six months and validity can only be extended in exceptional cases (Art. 70 para. 3 EuErbVO).
Source: Regulation 650/2012/EU