Notaries, national certificates of succession and the concept of ‘court’. Bot AG in WB.

Update 21 September 2020 a new CJEU reference from Poland is on its way, as reported by Carlos Santaló Goris here. This time by a notary itself – which of course begs the question whether the request is admissible under Article 267 TFEU.

Update 24 May the Court yesterday confirmed the Opinion in its entirety.

Case C-658/17 WB is one of the first in which the annoying new rule on anonymisation at the CJEU kicks in. At issue is the characterisation of notaries as ‘court’ under the EU succession Regulation 650/2012.

Particularly with regard to succession law, notaries in the Member States carry out tasks which can be considered ‘judicial’. In some jurisdictions (especially in the Anglo-Saxon world) a court is involved in transferring the estate from the deceased to those inheriting. This is not the case in most Member States with a so-called ‘Latin’ office of notary. A private international law regulation concerning inheritance can therefore not solely be aimed at courts in the traditional sense of the word. In particular, notaries and registry offices, but also testamentary executors entrusted with judicial authority, need to be integrated.

The rules with regard to jurisdiction and applicable law included in the Regulation have to be complied with by all above-mentioned legal professions, though only to the extent that they exercise judicial functions. The Regulation therefore adopts, in Article 3(2), a functional approach of a ‘court’:

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.

The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 79.

Outside of the exercise of judicial functions, notaries are not bound by the rules on jurisdiction, and the authentic instruments they issue circulate in accordance with the provisions on authentic instruments rather than ‘judgments’.

In accordance with Article 79 of the Regulation, the Commission (on the basis of notifications by the Member States) has established a list of the authorities and legal professions which need to be considered as ‘courts’ in accordance with this functional determination. This list will also be particularly interesting for internal national use.

However I have always emphasised to Member States compiling their lists, that unlike in the Insolvency Regulation, where the extent of cover of national proceedings is entirely in the hands of the Member States, for the Succession Regulation it is an autonomous EU  definition which drives cover by the Regulation.

Bot AG agrees (Opinion of 28 February; not available in English). whether or not a particular office and /or function is included in the national notification is not determinant. An EU definition of Court kicks in. He refers in particular to his overview in C-484/15 Zulfikarpašić. Reference is also made to Pula Parking. Applied to the case at issue, Polish notaries by virtue of Polish law may only issue the Polish (not: EU) certificate of succession if there is consensus among the parties and no disagreement e.g. re jurisdiction. No judicial functions therefore and the certificate travels as an authentic instrument, not a judgment.


(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 6, Heading 6.2.1.

Get thee an amended Insolvency Regulation – The ECJ on restructuring in Bank Handlowy

In Bank Handlowy, The ECJ has arguably done the most it can for restructuring operations, within the constraints of the current Insolvency Regulation. The review of the Insolvency Regulation is in full swing, and the position of restructuring proceedings is but one of the many interesting challenges. From the very start of the negotiation of the Regulation (and its antecedents), the position of restructuring was discussed. Limiting the Regulation to winding-up proceedings would have had the distinct advantage of limiting the spread of opened procedures, ditto for applicable laws. It would however have cut out restructuring entirely from the Regulation, which would have been unacceptable given its large impact in practice. A ‘compromise’ was found in only allowing the Member State of the debtor’s COMI (Centre of Main Interests) to open main proceedings (which could be either restructuring or winding-up), and to limit proceedings in other Member States to winding-up proceedings vis-a-vis local assets.

The compromise works mathematically only, however: it may limit the amount of proceedings; it does nothing to address the complex overlap.

The EC has summarised the facts in Bank Handlowy as follows:  Christianapol is a Polish company specialised in the production of furniture. It is part of the Cauval Industries Group with its head office in France to which it supplies all its production. The group suffered from the recession and went into financial difficulties. In an attempt to rescue the group, several members, including Christianapol, filed for sauvegarde proceedings in France. These proceedings aim at permitting solvent companies to restructure themselves under court protection at a pre-insolvency stage. They are covered by the Regulation although concerns have been raised as to whether they comply with the definition One of the Polish creditors of Christianapol, Bank Handlowy, applied for secondary proceedings in Poland where the company’s furniture factory was located. The winding-up of the factory would have prevented the successful implementation of the restructuring plan elaborated in the French sauvegarde proceedings. This problem prompted the Polish court to seek a preliminary ruling from the CJEU.

Of note is that all of Christianopol’s assets are located in Poland; this does not prevent COMI from being in France.

The ECJ first of all confirms that the Member States master the inclusion, or not, of proceedings in the Regulation: when a procedure is included in the Annex, upon proposal by the Member State, the EU is not to second-guess whether these are ‘true’ insolvency proceedings. ‘Insolvency’ may be a substantial condition for the Regulation to apply, however it is not defined by it. Further, even if the main proceedings have a protective purpose (here: a procedure de ‘sauvegarde’), that in itself does not prevent the opening- of secondary, necessarily winding-up proceedings in another Member State. This may evidently sink the ‘restructuring’ operation in the Member State of COMI.  However – and this is where the Court pushes the boat out – the ECJ flags the various options available to the liquidator to influence the secondary procedure: at para 61 ff:

‘The liquidator in the main proceedings thus has certain prerogatives at his disposal which allow him to influence the secondary proceedings in such a way that the protective purpose of the main proceedings is not jeopardised. Under Article 33(1) of the Regulation, he may request an order for stay of the process of liquidation for up to three months, which may be continued or renewed for similar periods. Under Article 34(1) of the same regulation, the liquidator in the main proceedings may propose closing the secondary proceedings with a rescue plan, a composition or a comparable measure. Article 34(3) provides that, during the stay of the process of liquidation under Article 33(1) of the Regulation, only the liquidator in the main proceedings or the debtor, with the liquidator’s consent, may propose such measures. The principle of sincere cooperation laid down in Article 4(3) EU requires the court having jurisdiction to open secondary proceedings, in applying those provisions, to have regard to the objectives of the main proceedings and to take account of the scheme of the Regulation, which (…)  aims to ensure efficient and effective cross-border insolvency proceedings through mandatory coordination of the main and secondary proceedings guaranteeing the priority of the main proceedings.’

Any further than this and the Court would effectively be re-writing the Regulation. One of the main issues under consideration in the Insolvency package will be to what extent the EU wants to and can harmonise the lex concursus in itself.


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