Posts Tagged Succession

Kubicka: Narrow CJEU interpretation of the ‘property law’ exception.

When the ‘Bolkestein’ Directive on the free movement of services was eventually adopted some years back, some of us referred to it as the ‘hairdressers’ Directive (no disrespect): the scope of application was so narrowed down that few professions seemed still to be covered by it. Similarly, the EU’s Succession Regulation Member States wanted to ensure that the recognition and enforcement of rules on succession /estate would not upset national property law on rules held dear, such as numerus clausus. The Regulation to that effect excludes from its scope of application ‘the nature of rights in rem; and any recording in a register of rights in immoveable or moveable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.’

In C-218/16 Kubicka the Court of Justice held last week. Ms Kubicka wishes to include in her will a legacy ‘by vindication’, which is allowed by Polish law, in favour of her husband, concerning her share of ownership of the jointly-owned immovable property in Frankfurt an der Oder. She wishes to leave the remainder of the assets that comprise her estate in accordance with the statutory order of inheritance, whereby her husband and children would inherit it in equal shares.  She expressly ruled out recourse to an ordinary legacy (legacy ‘by damnation’), as provided for by Article 968 of the Civil Code, since such a legacy would entail difficulties in relation to the representation of her minor children, who will inherit, as well as additional costs. A notary’s assistant refused to draw up a will containing the legacy ‘by vindication’ stipulated by Aleksandra Kubicka on the ground that creation of a will containing such a legacy is contrary to German legislation and case-law relating to rights in rem and land registration.

In the present case, both the legacy ‘by vindication’, provided for by Polish law and the legacy ‘by damnation’, provided for by German law, constitute methods of transfer of ownership of an asset, namely a right in rem that is recognised in both of the legal systems concerned. Therefore, the direct transfer of a property right by means of a legacy ‘by vindication’ concerns only the arrangement by which that right in rem is transferred at the time of the testator’s death. It is not covered by the exception.

Member States and practitioners who suggested an interpretation of the exception beyond its limited scope, were therefore rebuffed. That is a good thing. Property law often for no apparent reason is considered immune from conflict of laws, both in terms of jurisdiction and applicable law. The CJEU’s judgment in Kubicka puts a hold to too wide an interpretation of the rei sitae exception.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 6, Heading 6.2.2.1.

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CJEU in Zulfikarpašić: Suggest generic criteria for ‘courts’; completes the analysis for the notarial question at issue.

The Court held  yesterday in Zulfikarpašić Case C-484/15. I review Bot AG ‘s Opinion here.  At issue is the interpretation of ‘court’ and ‘judgment’ in the European enforcement order Regulation. Mutatis mutandis therefore the case has implications for most other EU private international law instruments, which employ similar terms. In all of these Regulations, the terms ‘court’ and ‘judgment’ are under- or not at all defined. The CJEU in fact refers to considerations under the Brussels I Recast in its judgment yesterday. And indeed its approach in Zulfikarpašić was confirmed on the same day for the Brussels I Recast, in Pula Parking.

For the determination of a ‘court’ the AG had emphasised guarantees as to independence and impartiality; the power to decide on one’s own authority; leading to a finding which was or may be subject to an exchange of arguments and may be challenged before a judicial authority. The AG had suggested that whether these conditions are fulfilled is for the national courts to assess.

The Court itself referred to a number of classic principles for the interpretation of EU private international law: autonomous interpretation; mutual trust; legitimate expectations. It then reformulated but essentially suggests similar criteria as its AG: for a finding to be qualified as a judgment, it must have been delivered in court proceedings offering guarantees of independence and impartiality and of compliance with the principle of audi alteram partem (at 43).In the Croatian procedure at issue, the notary issues an authentic instrument which, if it is challenged as to its content, is moved up the pecking order to court proceedings. The proceedings before the notary not meeting with the Court’s generic criteria, in contrast with the AG the Court itself already holds that the notaries at issue do not act as courts and their decisions are not ‘judgments’.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

 

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Bot AG in Zulfikarpašić: Are notaries ‘courts’ and do they issue ‘judgments’?

Postscript 9 March 2017. The Court held today. Post coming up.

In Zulfikarpašić Case C-484/15, Bot AG opined on 8 September. At issue is the intepretation of ‘court’ and ‘judgment’ in the European enforcement order Regulation. Mutatis mutandis therefore the case has implications for most other EU private international law instruments, which employ similar terms. In all of these Regulations, the terms ‘court’ and ‘judgment’ are under- or not at all defined.

The question was submitted in the context of a dispute between Ibrica Zulfikarpašić, a lawyer established in Croatia, and Slaven Gajer, who is also domiciled in Croatia, regarding the certification as a European Enforcement Order, of a writ of execution issued by a notary based on an authentic document.  The referring court essentially inquires whether a notary who, in accordance with Croatian law, has issued a definitive and enforceable writ of execution based on an authentic document has the power to certify it as a European Enforcement Order where it has not been opposed. If the answer is no, the referring court asks whether a national court can carry out that certification where the writ of execution concerns an uncontested claim.

Article 4(1) of Regulation 805/2004 defines ‘judgment’ as ‘any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court’. Article 2(a) of the Brussels I Recast Regulation now includes exactly the same definition. Yves Bot himself summarised the CJEU’s case-law on the notion of ‘judgment’ in the Brussels I Regulation in Gothaer. He reiterates that Opinion here and I should like to refer readers to my earlier summary of the Opinion in Gothaer.

After a tour de table of the various opinions expressed ia by the EC and by a number of Member States, the Advocate General submits that the concept of ‘court’ should be interpreted, for the purposes of Regulation No 805/2004, as covering all bodies offering guarantees of independence and impartiality, deciding on their own authority by a judgment which, first, was or may be subject to an exchange of arguments before being certified as a European Enforcement Order and, second, may be challenged before a judicial authority (at 108). A functional approach, therefore (at 109).

Advocate General Bot submits therefore that an enforcement title such as a writ of execution issued by a notary based on an authentic document constitutes a judgment within the meaning of Article 4(1) of Regulation No 805/2004, provided that the notary with power to issue that writ adjudicates, in the exercise of that specific function, as a court, which requires him to offer guarantees as to his independence and impartiality and to decide on his own authority by a judgment which, first, was or may be subject to an exchange of arguments before being certified as a European Enforcement Order and, second, may be challenged before a judicial authority. 

Whether these conditions are fulfilled is for the national courts to assess.

This Opinion and the eventual judgment by the Court will also be relevant for the application of the Succession Regulation, 650/2012. In matters covered by that Regulation, notaries throughout the EU have an important say and may quite easily qualifies as a ‘court’. Bot AG refers to the Regulation’s definition of ‘court’ at 71 ff of his current Opinion.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

 

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