Do Latin notaries qualify as ‘courts’ and are they bound by the rules of jurisdiction under the European succession regulation?
“What’s in a name?” – William Shakespeare’s famous question readily comes to one’s mind when analysing whether a national legal authority qualifies as a ‘court’ under the European Succession Regulation. In other words: what’s in a ‘court’? It is this very question that Member States are obliged to answer in the context of said Regulation.
Case C-80/19 E.E.
A definition of the term ‘court’ is provided in its article 3 (2): “For the purposes of this Regulation, the term ‘court’ means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate: (a) may be made the subject of an appeal to or review by a judicial authority; and (b) have a similar force and effect as a decision of a judicial authority on the same matter.”
According to article 79, each Member State is obliged to inform the European Commission about whether such an authority exists in their legal system and if that is the case, who that authority is. This qualification is for example essential in order to determine whether documents issued and decisions rendered by these authorities in cross-border succession cases qualify as a ‘decision’ (which must be recognized by different Member States (article 39)) or as an ‘authentic instrument’ (which must not be recognized but merely accepted (article 59)). The European Commission has bundled this information and made it easily accessible for the broad public through the European Judicial Network in civil and commercial matters. Nevertheless, as pointed out by the CJEU in case C-658/17 WB, one must keep in mind that this list is not legally decisive (para. 47-48).
In legal practice, it seems that the obligation of applying the definition of a ‘court’ to a national legal system can be more challenging than it might seem at first glance. Within the span of a good year, two requests for a preliminary ruling have been submitted to the CJEU that both concern the classification as a ‘court’ under the European Succession Regulation. In case C-658/17 WB, the Court came to the conclusion that Polish notaries do not qualify as ‘courts’ due to the fact that they do not “exercise […] judicial functions” (para. 61-62). The second case (C-80/19 E.E.), which is still pending before the Court, invites the CJEU to rule on the question whether a Lithuanian notary must be considered as a ‘court’ within the meaning of article 3 (2). It is highly interesting and nota bene highly relevant for legal practice to notice that in opposite to the earlier WB case, the E.E. case goes a step further and explicitly puts forward the question what the consequences are if the Lithuanian notary does not fall within the scope of the ‘court’ definition when it comes to the application of the general rules of jurisdiction that are contained in the European Succession Regulation.
To be explicit, it goes without saying that Latin notaries in Europe, in so far as they are entrusted with the handling of succession cases in their Member State, are bound by the rules on jurisdiction laid down in the European Succession Regulation when they issue a European Certificate of Succession (article 64). What the referring Lithuanian court instead inquires is whether a notary would also be bound by the respective jurisdiction rules if they issue a national certificate of succession and thus whether the Oberle ruling (Case C-20/17), in which the CJEU ruled “that Article 4 of Regulation No 650/2012 must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that, although the deceased did not, at the time of death, have his habitual residence in that Member State, the courts of that Member State are to retain jurisdiction to issue national certificates of succession, in the context of a succession with cross-border implications, where the assets of the estate are located in that Member State or the deceased was a national of that Member State” (para. 59), applies mutatis mutandis.
The system of the European Succession Regulation, taking into account the objectives it pursues, seems to suggest that this is the case but it surely does not come as surprise that the final decision of the Court is eagerly awaited by practitioners and academics alike. At this point of time however it is still unknown when the Opinion of Advocate-General will be published and when the Court will render its judgment.
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