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DOI 10.1007/s12027-014-0355-y
A RT I C L E
1 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on ju-
risdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of
authentic instruments in matters of succession and on the creation of a European Certificate of Succession,
[2012] OJ L 201 27.7.2012, p. 107.
This article is based on a presentation given at the conference Planning cross-border succession,
organised by ERA on 2021 March 2014 in Trier.
C. Hertel ( )
Civil law notary, Weilheim, Germany
e-mail: notar@notar-hertel.de
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C. Hertel
A whole chapter of the Regulation (articles 62 to 73) has been dedicated exclusively
to the Certificate. Thus, the European Certificate of Succession might be called a third
pillar of the Succession Regulationbesides the rules on the applicable law and on
jurisdiction, recognition and enforcement.
1.1 Steps toward a European Certificate of Succession
A predecessor to the European Certificate is regulated in the Hague Convention of
2 October 1973 Concerning the International Administration of the Estates of Deceased Persons which, however, is applicable only to the Czech Republic, Portugal
and Slovakia.
The idea of a European Certificate of Succession was first brought to the attention
of the European legislator by the study on international successions in the European
Union, undertaken by DNotI (the German Notarial Institute) on behalf of the Directorate General for Justice and Internal Affairs in the year 2002.2 From its experience,3
DNotI knew about the great differences in the national systems on how to prove the
status as an heir and of the practical difficulties arising from these differences. Thus,
while working on the study, the now deceased Dr. Wolfgang Riering, then head of
the DNotI-department of international private law, had come up with the idea to simplify international successions by a European Certificate of Inheritance. His idea
had been taken up immediately by the other members of the DNotI-working group of
the study, Prof. Paul Lagarde, Paris, Prof. Heinrich Drner, Mnster, and me, at that
time director of DNotI.
The European Council adopted the idea of a European Certificate of Succession in
its Hague Programme on judicial cooperation of 4 and 5 November 2004.4 There,
the Council not only mentioned the need to adopt an instrument in matters of succession, but also specified that the instrument should include a European Certificate of
Succession.
Now, in the Succession Regulation, recital 67 states the objectives of the Certificate of Succession:
In order for a succession with cross-border implications within the Union to
be settled speedily, smoothly and efficiently, the heirs, legatees, executors of the
will or administrators of the estate should be able to demonstrate easily their
status and/or rights and powers in another Member State, for instance in a
Member State in which succession property is located. To enable them to do
2 DNotI (Deutsches Notarinstitut/Institut Notarial Allemand/German Notarial Institute), tude de droit
compar sur les rgles de conflits de juridictions et de conflits de lois relatives aux testaments et successions dans les Etats membres de lUnion Europennetude pour la Commission des Communauts
Europennes Direction gnrale Justice et Affaires intrieures, Rapport FinalSynthse et Conclusions,
18 septembre/8 novembre 2002, internet: http://ec.europa.eu/justice/civil/document/index_en.htm. In the
study, we called it a European Certificate of Inheritance or a European Certificate of Executor respectively.
3 Each year, DNotI gives about 2.000 legal expertises on foreign private law, almost half of them on suc-
cession law.
4 The Hague Programme: strengthening freedom, security and justice in the European Union, OJ C 53,
3.3.2005, p. 1.
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so, this Regulation should provide for the creation of a uniform certificate, the
European Certificate of Succession (hereinafter referred to as the Certificate),
to be issued for use in another Member State.
1.2 Problems arising from the differences in the present proof of succession under
national laws
The need for a harmonised proof of succession may be seen very clearly if we look
how presently the national systems for proving the beneficiaries of an estate vary
greatly. One may distinguish at least five different systems:5
(1) The most commonly used system is the acte de notorit (act of notoriety) in the
legal systems based on the Code Napoleon. Some type of act of notoriety is used
in 8 EU Member States with together 45.7 % of the total EU population (namely
Belgium, France, Italy, Luxembourg, the Netherlands, Portugal, Romania and
Spain).
(2) A certificate of succession with the effects of presumption of correctness and
protection of good faithsimilar to the one now being introduced by the European Certificate of Successionis being used in 7 Member States with together
28.4 % of the total EU population (Estonia, Germany, Greece, Latvia, Lithuania,
Polandsimilar in Bulgaria).
(3) The Common Law probate procedure is being used in 3 Member States with
together 13.7 % of the total EU population (Cyprus, the Republic of Ireland and
the United Kingdom).
(4) The Austrian-Hungarian system of Verlassenschaftsverfahren (estate procedure)
is being used in 6 Member States with together 8.0 % of the total EU population
(Austria, Croatia, the Czech Republic, Hungary, Slovakia, Slovenia).
(5) The 3 Nordic Member states with together 4.1 % of the total EU population
use the inventory made for the inheritance tax declaration also for proving the
position as a beneficiary to the estate.
(6) Finally Malta (0.1 % of the total EU population) does not have any formal system
of proving the position of an heir.
1.2.1 Certificate of succession
The European Certificate of Succession is modelled on the certificate of succession
as it is being used in various central European statesfrom Germany over Poland to
the Baltic States, also in Greece. The certificate is issued by a public authority after
examination of the succession. The main features of this system are the presumption
that the content of the certificate is correct and the protection of good faith.6 The
issuing authority may be a court (as in Germany, Greece, Latvia and Poland) or a
civil law notary (as in Estonia and Lithuania). In Bulgaria, which has a somewhat
similar system, the certificate is issued by the local municipality.
5 Hertel [4].
6 Protection of good faith see e.g. art. 2365, 2366 German Civil Code, art. 1962, 1963 Greek Civil Code,
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C. Hertel
heir) acted.
8 France: Art. 730-4 Civil Code, in force since 1.7.2002.
9 Netherlands: Art. 4:187(1) Civil Code, in force since 1.1.2003.
10 England: The Non-Contentious Probate Rules 1987.
11 Austria art. 149 ss. Law on Non-Contentious Jurisdiction (Auerstreitgesetz); Czech Republic art. 175q
Civil Procedure Code; Hungary art. 57 ss. Regulation on the Estate Procedure; Slovakia art. 175q Civil
Procedure Code; Slovenia art. 214 Succession Law.
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mark, good faith is not directly regulated in the Law on the estate procedure, no. 383 of 22.5.1996. However, it is recognized by the courts (see Thorbek/Steininger [14]).
13 Pisani [9].
14 In the literature, the European Unions competence to regulate on the European Certificate of Succes-
sion has been acknowledged by Baldus [1]; Lange [7], 169; Roth [11], 318 s.; the competence has been
questioned by: Heggen [2], 14; Kunz [5], 257; Lehmann [8], 207; Rechberger [10], 15 s.; S [13], 730.
15 Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating
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acts. However, this means only that the authorities of the other Member State have to accept the fact that the
issuing Member State has issued the certificate. Art. 59 does not extend the effects of the certificatesuch
as the proof or good faithto the receiving Member State.
17 For the definition of the habitual residence see recitals 23 and 24; also Solomon [12].
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apply not only to the parties of the procedure, but to everybody. So, if a choice of
court agreement would have been permitted for the Certificate, some parties could
have prejudiced other parties. For the same reason, the appearance of an interested
person (art. 9) cannot prejudice the forum to the detriment of other persons.
2.2 Is it still possible to issue national certificates?
The rules on the European Certificate of Succession might raise the question
whether, in a cross border situation, it is still possible to issue a national certificate of succession. E.g. if the deceased had the last habitual residence in the Member State A, but leaves property in the Member State B, may the heirs apply to
the authorities of Member State B for obtaining a national certificate of succession?
At first sight, one might deny the international competence of Member State B
arguing that the rules of the Regulation on the international competence apply also to
national certificatesand that jurisdiction under the Succession Regulation is exclusive. Also one might argue that the Succession Regulation deliberately focuses the
competence to the Member State of the last habitual residence in order to prevent
conflicting decisions in various Member States.
However, article 62(2) of the Regulation expressly states: The Certificate shall not
take the place of internal documents used for similar purposes in the Member States
(see also recital 67). The Regulation gives the parties the option to choose between
the national certificates and the European Certificate. Also, as article 64 expressly
regulates that the rules of articles 4 ss. on the international competence apply also for
the European Certificate of Succession, it implies that articles 4 ss. do not regulate
the competence the issue a (national) certificate of succession. Otherwise, article 64
phrase 1 would be redundant.
Thus, the Member States may still issue national certificates of succession irrespective of whether or not they are competent under articles 4 ss. Succession Regulation.18
3 Procedure
3.1 Application
An application may be made by an heir, a legatee, the executor of the will or
the administrator of the estate (art. 65(1), 63(1)). Legatees may apply only insofar as they have direct rights in the successionmeaning that only those legatees may apply who, under the law applicable to the succession, became owner of
the bequeathed property by operation of lawbut not those legatees who merely
got an obligatory claim against the heir. A creditor cannot apply for a Certificate.19
18 Lange [6], no. 51 ss.
19 Lange [6], no. 7.
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The form established under the Regulation may be used for the application, but its
use is not required (art. 65(2)).20
The information required to be given by the applicant relates mostly to the content
of the Certificate (art. 65(3)). The long lists includes (a) details concerning the deceased, (b) details concerning the applicant (c) and, if applicable, his representative,
(d) details of the spouse of the deceased, (e) details of other possible beneficiaries,
(f) the intended purpose of the Certificate, (g) the contact details of the court dealing
with the succession, (h) the elements on which the applicant founds his claimed right
to the succession, (i) an indication of dispositions mortis causa made by the deceased,
(j) an indication of a marriage contract of the deceased, (k) an indication of whether
the beneficiaries have accepted or waived their rights to the succession, (l) a declaration as to whether there is any dispute pending relating to the succession and (m)
any other information which the applicant deems useful for the purposes of the issue
of the Certificate.
3.2 Procedure
In order to ensure a minimum standard, but not to overly regulate national procedures, the Regulation regulates only some basic features of the procedure. Otherwise,
the details of the procedure for issuing a European Certificate of Succession will be
regulated by national law. Here, the Succession Regulation resembles rather the style
of a Directive than of a Regulation. Also, the minimum standards are formulated
rather softly, stating that the issuing authority may carry out specific measures, not
that the authority should, if possible, do this or that. Thus, regrettably, it is basically
up to the Member States themselves to ensure a certain minimum standard (which
each Member State should do in its own interest since the Certificate may be used in
the issuing Member State as well).
During the examination of the application, the issuing authority has to verify the
information given by the applicanteither by carrying out its own enquiries or by
asking the applicant for further information (art. 66(1)). Documents which are relevant to prove the application should, if possible, satisfy the conditions necessary
to establish their authenticity. However, the issuing authority, in its due discretion,
may also accept other forms of evidence (art. 66(2)). If possible, the issuing authority
may require that declarations be made on oath or by a statutory declaration in lieu
of an oath (art. 66(3)).
The issuing authority shall take all necessary steps to inform all beneficiaries of
the application and hear them and any other persons involved (art. 66(4))in order
to ensure a fair hearing.
Article 66(5) obliges the authorities of other Member States to provide the issuing authority with the same documents and information (concerning in particular
civil status registers or property registers) which, under national law, they would also
provide to an issuing authority in their national state. For the circulation of these
documents, if issued in the context of the Succession Regulation, no legalisation or
20 The forms under the Regulation have not yet been published.
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apostille shall be required (art. 74). Thus, within its scope of application for successions, article 74 already anticipates the future rules of the proposed Regulation on
Public Documents.21
3.3 Issue
The European Certificate of Succession is meant only for the use in for cross border
situations. So it must not be issued if the succession does not have any international
element. However, once issued for use in another Member State, the Certificate shall
also produce the effects in the Member State of origin (art. 62(3)). Otherwise, the
applicant would have to go through the national procedure as well. Thus, the rule of
article 62(3) makes perfect senseeven if it is quite questionable whether the EU had
any legislative competence to rule on this issue (because it is certainly not a question
of international private law; only it might fall under an annex competence).22
For the Certificate of Succession, the form established under the Regulation must
be used (art. 67(1)) in order to facilitate the circulation.
All beneficiaries have to be informed of the issuance (art. 67(2)) in order to give
them the chance to challenge the Certificate if they consider it incorrect.
The issuing authority shall keep the original of the Certificate and shall issue certified copies to the applicant or other interested persons (art. 70(1)). It shall also keep
a list of the persons to whom certified copies have been issued (art. 70(2)) so that it
might inform them of a later rectification, modification or withdrawal of the certificate.
The Certificate is valid only for a limited period of six months (art. 70(3)). Thus,
the effects of an incorrect Certificate (such as good faith) are at least limited in time
and the issuing authority has a chance to replace it by a rectified or modified Certificate or to withdrawn it completely. In the legislative process, other options for a
withdrawal of incorrect Certificates had also been discussed, but had been considered
impracticable on a European level.
3.4 Procedure after the issuing
The Regulation also enables the issuing authority to rectify, modify or withdraw the
Certificate (art. 71). A Certificate may be challenged by any person entitled to apply
for a Certificate (art. 72). While a petition for modification or withdrawal is pending or during a redress procedure, the effects of the Certificate may be temporarily
suspended (art. 73).
4 Contents of the Certificate
The European Certificate of Succession will be quite a lengthy document, if we look
at the list of its contents (art. 68). Thus in practice, a translation will be necessary due
21 Proposal for a Regulation of the European Parliament and of the Council on promoting the free move-
ment of citizens and businesses by simplifying the acceptance of certain public documents in the European
Union and amending Regulation (EU) No 1024/2012, COM(2013) 228 final of 24.4.2013.
22 See the references in footnote 14.
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to the amount of information given in the Certificate. However, the issuing authority
has to include the information only to the extent required for the purpose for which
it is issued (art. 68 phrase 1).
4.1 Information on issuance
It goes without saying, that the Certificate, like every court decision has to state (a) the
issuing authority, (b) the reference number of the file and (c) the date of issue. The
Regulation goes further and requires also a statement of the elements on the basis of which the issuing authority considers itself competent to issue the Certificate
(art. 68(c)). This simplifies the control in a redress procedure. However, for the practical use of the Certificate, it is irrelevant.
4.2 Applicant
Also, I cannot see any practical necessity to include details concerning the applicant
in the Certificate. However, art. 68(e) requires these details.
4.3 Deceased
Of course, the Certificate has to state the details of the deceased. Art. 68(e) requires
to state the surname (if applicable, surname at birth), given name(s), sex, date and
place of birth, civil status, nationality, identification number (if applicable), address
at the time of death, date and place of death. Again, civil status and nationality are
useful, but not really necessary information.
4.4 Matrimonial property regime
One might be astonished to find also information on the deceaseds matrimonial property regime in the European Certificate of Succession (as well as information whether
a marriage contract had been entered into by the deceased, art. 68(h). However, in
most continental legal systems, for a married person, the estate consists only in those
assets, which are left after the distribution of the marital property regime has taken
place.
The questions of matrimonial property are still an open flank in the Succession
Regulation. First, the law applicable to matrimonial property has not yet been harmonised.23 So the Member States issuing the European Certificate of Succession
might apply a different law to matrimonial property than the Member State in which
the Certificate is being used.24 Secondly, the statements on the matrimonial property
regime in the European Certificate of Succession are not binding for the other Member States (because the Regulation is not applicable to matrimonial property law). So
it is an interesting piece of information, but not a binding one.
23 See the Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and en-
forcement of decisions in matters of matrimonial property regimes of 16.3.2011, COM(2011) 126 final.
24 Even after a future harmonisation by the proposed Regulation on Matrimonial Property, that problem
will only be solved for marriages contracted after the date of application of the new Regulation, not for the
previously contracted marriageswhich will still constitute the vast majority of marriages for a long time.
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References
1. Baldus, C.: Normqualitt und Untermaverbot: Fr eine privatrechtliche Logik der Kompetenzbestimmung am Beispiel des Europischen Erbscheins. GPR 3(2), 8082 (2006)
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