21The Application of the Succession Regulation to Third State Nationals. Remarks on the judgement of the Court of Justice of the EU in OP case (C-21/22)[*],[**]

Snr. Lecturer Anna Wysocka-Bar

Faculty of Law, Jagiellonian University of Kraków

1. Introduction

The title of this article might seem to suggest that there are some specific rules as to the application of the Succession Regulation[1] to nationals of third States, meaning nationals of States that are not members of the European Union (“EU”). This is slightly misleading, as in general the Succession Regulation applies to third-state nationals just as it does to nationals of the EU Member States (“EU MS”). Nationality of a third State might become an important factor, influencing the applicability of the Succession Regulation, if there is a bilateral agreement in place. Such was the OP case[2], in which the Court of Justice of the EU (“CJEU”) handed down its judgement on 12 October 2023, following an Opinion of the Advocate General Sánchez-Bordona[3]. The preliminary question originates from Poland. A very similar case referred to the CJEU by a notary public in OKR case was found by the CJEU inadmissible, as the notary public is not entitled to request a preliminary ruling on the interpretation of EU law. The two cases show the practical importance 22in assessing the relation between the Succession Regulation and bilateral agreements with third States[4].

2. Scope of application

In order to assess whether the Succession Regulation applies to a given succession case, it is essential to verify whether a given case falls within its scope. When it comes to the material scope of the Succession Regulation, it governs the “succession of the estates of deceased persons” [Article 1(1)]. The notion of “succession” is somewhat defined in Article 3(1)(a) of the Succession Regulation, which explains that succession “covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession”. Regarding the temporal scope, the Succession Regulation applies starting from 17 August 2015 to succession cases concerning persons who die from that date onwards [Articles 84 and 83(1)]. In terms of territorial application, Ireland does not participate and does not apply this Regulation[5]. The UK also never applied it[6]. Similarly, as indicated in the Protocols and clearly stated in the Recitals, Denmark does not apply this Regulation either[7]. Consequently, the notion of a third State covers, for the purpose of the Succession Regulation, all States outside of the EU, but also two EU MS, namely Ireland and Denmark, as well as the UK.

Once it is established that the three scopes of the Succession Regulation are met (for instance, a deceased died on 18 August 2015 and his relatives apply to the court in Thessaloniki to obtain a certificate of succession, in general the Regulation applies irrespective of whether the deceased or the heirs are nationals of one of the EU MS or nationals of a third State. It should be underlined that the Succession Regulation is a very special one, as it addresses questions related to jurisdiction, applicable law, recognition and enforcement of judgements, and the circulation of other documents. The scope of the Succession Regulation is slightly different compared to, for example, the Brussels Ibis Regulation[8], where there is still space for the application of domestic rules on jurisdiction[9]. Under the Succession Regulation, 23both rules on jurisdiction and applicable law are of “universal application”, meaning that there is no space left for the application of the domestic rules on jurisdiction or applicable law.

3. Rules on jurisdiction, applicable law and flow of decisions, authentic instruments and European Certificates of Succession

Rules on jurisdiction (Chapter II) apply equally to EU citizens and nationals of third States. Jurisdiction is generally based on the habitual residence of the deceased in one of the EU MS, regardless of the nationality of the deceased (Article 4). If the habitual residence of the deceased is outside the EU, whether for EU citizens or foreign citizens, jurisdiction is based on assets located on the territory of an EU MS and a previous habitual residence in that State. In certain cases, jurisdiction may be based solely on assets located on the territory of the Member State, and then the jurisdiction covers only these assets [Article 10(2)]. There is also a provision on forum necessitatis, which applies irrespective of nationality of the deceased or the interested parties (Article 11).

The rare situation where EU citizenship, meaning citizenship of one of the EU MS, matters occurs when the jurisdiction of the courts of a given MS is established based on assets located in that MS and the nationality of the State of the deceased. This is relevant for deceased individuals with no habitual residence within the EU [Article 10(1)]. Similarly, the citizenship of one of the EU MS becomes significant when it comes to the transfer of jurisdiction, regulated in Articles 5 to 9. These articles provide the possibility of transferring jurisdiction from one EU MS to another, provided that the deceased has chosen the law of that EU MS as the law applicable to succession pursuant to Article 22. Obviously, this transfer is possible only if the chosen law, which could be the national law of the deceased, is the law of the EU MS. The mechanism for transferring jurisdiction is designed to ensure that the principle of ius and forum can be established. According to Recital 30, this Regulation exhaustively lists the grounds of jurisdiction, so no other grounds of jurisdiction are possible in situations where a succession matter is covered by the material, temporal, and territorial scope of the Regulation.

Rules on applicable law apply no matter the nationality of the deceased. The rules of applicable law provided in the Succession Regulation have universal application, which means that they apply to every person regardless of their nationality, as underlined in Article 20 of the Regulation.

These rules apply equally to everyone. Consequently, everyone can choose his or her national law as applicable pursuant to Article 22. A person with EU citizenship may choose the law of his or her EU MS, while nationals of third States can select the law of their States as applicable. For example, a Mexican national with habitual residence in Poland can choose Mexican law as applicable. Should Polish courts have jurisdiction to decide on the succession case in the future, they will be required to apply Mexican law as applicable to the succession case. Nationality of the deceased 24also comes into play with respect to the formal validity of wills or other types of dispositions of property upon death. The formal validity can be governed by the national law of the person pursuant to Article 27(1)(b), in accordance with the favor validitatis principle.

As for the rules on judgements, authentic instruments, and the European certificate of succession, they concern the “flow” of these documents only between Member States. Thus, a decision given in one EU MS is recognized in another EU MS, or an authentic instrument established in one EU MS can produce certain effects in another EU MS. The Regulation is silent about the efficacy of these instruments in third States, but they apply equally to decisions concerning succession matters of EU citizens and nationals of third States. It does not matter if the deceased was an EU citizen or a national of a third State. With respect “flow” of documents, the Regulation does not make any distinctions concerning nationals of third States.

4. Relation of the Succession Regulation and Bilateral Agreements

Hence, the questions are: Why to discuss the application of the Succession Regulation to third-state nationals? Where does the problem lie? The answer is that these questions become relevant when an international convention is in place. In accordance with Article 75(2), which aids in understanding § 1 of this Article, this Regulation takes precedence over conventions concluded exclusively between two or more EU MS. For instance, if Poland and Greece have a bilateral agreement (which indeed exists and covers legal aid and the recognition and enforcement of judgements in civil matters)[10], the Succession Regulation takes precedence over the bilateral agreement. Therefore, although there is a convention between Greece and Poland, in succession cases, priority is given to the Succession Regulation.

However, at the same time, Article 75(1) stipulates that the Regulation shall not affect the application of international conventions to which one or more Member States are parties at the time of the adoption of this Regulation and which concern matters covered by this Regulation, thus relating to succession matters. If these two provisions are read together, knowing that § 2 covers conventions to which only EU MS are parties, like the bilateral agreement between Greece and Poland, it becomes clearer that § 1 pertains to agreements involving not only EU MS, but also third States. A prime example of a bilateral agreement to which Article 75(1) of the Succession Regulation applies is agreement between Poland and Ukraine. This bilateral 25agreement has become practically important in Poland and is currently frequently discussed given the invasion on Ukraine and related migration of Ukrainian citizens who come to Poland, decide to acquire property and settle.

5. Poland-Ukraine Bilateral Agreement

Poland-Ukraine Bilateral Agreement dates back to 1993[11]. It entered into force on 14 August 1994[12]. It is quite extensive as to matters covered. Apart from rules on legal aid, it also covers rules on jurisdiction, applicable law, recognition and enforcement of decisions in civil and commercial matters, including succession cases. At the same time, the provisions of the Poland-Ukraine Bilateral Agreement are quite vague as to their scope of application. One may try to delineate its scope of application by analyzing its respective provisions on jurisdiction and applicable law.

For instance, Article 41 of the Poland-Ukraine Bilateral Agreement divides the jurisdiction between the two Contracting Parties by allocating the jurisdiction of nationality of the deceased for movable property and location of assets for immovable property. Similarly, succession to immovable property is governed by the law of the contracting party where the immovable is located [Article 37(2)] and movable property is governed by the national law of the deceased [Article 37(1)]. Imagining that the deceased was a Ukrainian national with domicile in Poland owning property in Germany, the bilateral agreement does not provide for any solution as to jurisdiction and applicable law with respect to succession to the immovable property owned by the deceased. There is no jurisdictional rule and applicable law rule in the Poland-Ukraine Bilateral Agreement, which could be applied. This might suggest that the rules contained in bilateral agreements seem to assume that the succession case is completely restricted within the territory of the two countries only, namely the whole factual background of the case is “locked” within the borders of Poland and Ukraine.

Hence, in the example of the Ukrainian deceased domiciled in Poland and owning immovable property in Germany, two options seem conceivable. First, the bilateral agreement applies to assets located only within the territory of the Contracting Parties (Poland, Ukraine) and simultaneously Succession Regulation applies only to the assets located in another State (for instance, Germany). Similarly, applicable law rules of the Succession Regulation apply only to succession of assets located in another EU MS (except for the ones in Poland). This solution sounds contrary to the wording 26of Articles 4 or 10(1) of the Succession Regulation, which state that the jurisdiction of the courts of EU MS cover “succession as a whole” irrespective of location of assets. Second, one can assume that the Poland-Ukraine Bilateral Agreement does not apply to cases linked with another State, but only cases which are limited entirely within the territory of the two Contracting Parties (Poland and Ukraine). As a result, in such a cross-border case Succession Regulation applies to the “succession as a whole”, meaning all of the assets. This standpoint seems to be the correct one.

6. Facts behind the OP case (C-21/22)

The practical question concerning the application of the Poland-Ukraine Bilateral Agreement (however not related to assets located in another State) was the subject of the preliminary question that was posed by a Polish court to the CJEU in OP case. OP is a Ukrainian national who resides in Poland and co-owns immovable property in Poland. OP wanted to draw up a notarial will in Poland choosing Ukrainian law as applicable to her future succession. The notary public refused to do so on the ground that Article 37(2) of the Poland-Ukraine Bilateral Agreement does not provide for the possibility of choosing applicable law, but only states that the matters relating to the succession of immovable property are governed by the law of the Contracting Party in the territory of which that property is situated (in this case, Polish law).

OP was not satisfied with the decision of the notary public and brought an action before a court in Poland against this refusal. She argued that the Poland-Ukraine Bilateral Agreement is silent on the choice of applicable law, and that, accordingly, a choice is admissible under Article 22 of the Succession Regulation. In OP’s view, Articles 21(1) and 21(2) of the Succession Regulation correspond to Article 37 of the Poland-Ukraine Bilateral Agreement, whereas Article 22 of the Succession Regulation, which allows for the choice of the national law of the deceased, does not have any counterpart in the Poland-Ukraine Bilateral Agreement. As a result, Article 22 of the Succession Regulation is applicable (and enables the person concerned to make a choice of law). Article 75(1) of the Succession Regulation, which provides that the regulation does not affect the application of international conventions, does not prevent such a choice. The court was not convinced as to the proper interpretation of the silence of the Poland-Ukraine Bilateral Agreement on the possibility of choosing law applicable to succession by the Ukrainian citizen in Poland, and therefore decided to refer the case to the CJEU.

7. Preliminary questions asked in OP case (C-21/22)

The referring court asked two questions:

“(1) Must Article 22 [of Regulation No 650/2012] be interpreted as meaning that a person who is not a citizen of the European Union is entitled to choose the law of his or her native country as the law governing all matters relating to succession?

(2) Must Article 75, in conjunction with Article 22, of Regulation No 650/2012 be interpreted as meaning that, in the case where a bilateral agreement between a 27Member State and a third [State] does not govern the choice of law applicable to a case involving succession, but indicates the law applicable to that case involving succession, a national of that third [State] residing in a Member State bound by that bilateral agreement may make a choice of law?”[13]

8. CJEU decision in OP case (C-21/22)

The first preliminary question was an easy one to answer. The CJEU answered in positive stating that a national of any third State residing in an EU MS may choose his or her national law as the law governing the succession as a whole[14].

The answer to the second question was far more challenging. The referring court asked whether Article 75(1) of the Succession Regulation means that, where an EU MS has concluded –before the adoption of the Regulation– a bilateral agreement with a third State, which designates the law applicable to succession and does not expressly provide for the possibility of choosing another law, a national of that third State, residing in the EU MS in question, may choose the law of that third State to govern his or her succession as a whole, pursuant to Article 22 of the Succession Regulation.

In practical terms, the referring court wanted to know whether OP may choose Ukrainian law as applicable to her succession in accordance with Article 22 of the Succession Regulation, while drafting her will in front of a notary public in Poland, even though the Poland-Ukraine Bilateral Agreement does contain private international law rules relating to succession, but does not provide for party autonomy to that respect.

The CJEU explained the meaning of Article 75(1) of the Succession Regulation. It underlined that where an EU MS is a party to a bilateral agreement concluded with a third State (before the entry into force of the Succession Regulation), which contains provisions laying down rules applicable to succession, it is those provisions which, in principle, are intended to apply, instead of these of the Succession Regulation[15]. In view of the Court of Justice, the Succession Regulation does not override these provisions simply because they do not provide for party autonomy and possibility of choosing applicable law by the testator[16].

When it comes to the principle of unity (the jurisdiction and the law designated as applicable to the succession case “as a whole”, including all assets), the CJEU held that this principle does exist in the Succession Regulation and the Succession Regulation supports it, but it is not absolute. Therefore, it is conceivable that there is exception to principle of unity.

28As a result, Article 75(1) of the Succession Regulation, read in conjunction with Article 22, in circumstances such as those of the case examined does not exclude that a national of a third State, residing in an EU MS, may be barred from choosing the law of that third State to govern his or her succession as a whole. The above is true provided that the EU MS in question has a bilateral agreement with that third State which designates the law applicable to succession and does not expressly provide for the possibility of choosing another law[17]. Hence, theoretically, in this case the Succession Regulation does not preclude a situation in which a Ukrainian citizen might not be able to choose Ukrainian law as applicable while drafting a will in front of a notary public in Poland.

It should be noted, however, that the Court of Justice, while explaining that the bilateral agreement takes precedence over the Succession Regulation, uses the expression “in principle”[18]. Hence, this is a general conclusion. It applies generally to every bilateral agreement and not necessarily to this particular one and this particular case.

9. OP case in front of the Supreme Court of Poland

Nowhere in the judgement in OP case does the CJEU interprets and gives any solution as to the proper application of the Poland-Ukraine Bilateral Agreement. The CJEU does not say that the Poland-Ukraine Bilateral Agreement excludes the possibility of choosing applicable law. It does not say that the Poland-Ukraine Bilateral Agreement allows the possibility of choosing applicable law, either. As suggested in the opinion of the Advocate General, this answer should be given by the domestic court in Poland[19].

Hence, the referring court in Poland decided to ask the Supreme Court of Poland for help in solving the problem[20]. The court asked whether the provision of Article 37 of the Poland-Ukraine Bilateral Agreement, due to its silence on the matter, allows a Ukrainian citizen with habitual residence in Poland to choose the applicable law in accordance with Article 22 of the EU Succession Regulation.

In its decision, the referring court underlined the need for the definite answer from the Supreme Court as there is a practical need to know the meaning of Article 37 of the Poland-Ukraine Bilateral Agreement due to the large number of Ukrainian citizens who live in Poland, purchase assets, acquire immovable property, and have their habitual residence in Poland. Then, there is a divergent view on the interpretation 29of the Poland-Ukraine Bilateral Agreement presented during the proceedings in front of the CJEU. Some governments filed their positions and some suggested that silence of the Poland-Ukraine Bilateral Agreement means that there is no choice of applicable law possible, while others held that silence requires harmonious interpretation of the Succession Regulation and the Bilateral Agreement. As a result, the Bilateral Agreement is applicable when it comes to rules on applicable law when no choice of law was made, whereas the Succession Regulation applies when one wants to choose the law in the testament.

In the lecture of the decision of the referring court, one has the impression that the court provides many arguments in favor of the interpretation that silence means “yes”, and that Ukrainian citizens habitually residents in Poland can choose applicable law in accordance with the Succession Regulation. This is because of a practical need for allowing one to choose Ukrainian law as applicable. A person nowadays resident in Poland may move to Germany in the future, and, if this person dies when habitually resident in Germany, German authorities have jurisdiction, and the choice of Ukrainian law would be perfectly valid. In addition to this, further arguments in favor of the possibility to choose applicable law include avoiding discrimination, as Ukrainians who now live in Germany can choose applicable law for succession and those who live in Poland, if they cannot, then it would be a discrimination. Interestingly, if we have Mexican nationals in Poland, they can choose applicable law for succession, Polish people can choose applicable law for succession, and nationals of EU MS and only the nationals of the countries with which Poland has bilateral agreements cannot. The court underlines that the Vienna Convention on Law of the Treaties also favors this harmonious interpretation of international instruments.

The last argument is that, after concluding the Poland-Ukraine Bilateral Agreement back in 1993, both Poland and Ukraine changed their domestic private international laws, allowing the choice of applicable law in succession matters. Hence, the Poland-Ukraine Bilateral Agreement, which is aimed at facilitating cross-border judicial cooperation in civil matters between Poland and Ukraine, should be interpreted accordingly.

10. Final remarks

The question posed by the referring court was registered with the Supreme Court of Poland on 19 February 2024 under the signature: III CZP 11/24. The case might be monitored at the official website of the Supreme Court of Poland[21]. The case has not been decided yet by the Supreme Court. It should be awaited with 30impatience both in Poland, as Poland has some other bilateral agreements which contain rules on jurisdiction and applicable law in succession matters, and in other EU MS, which have similar bilateral agreements with third States in place.

[*] This article is based on the presentation made during the Lex&Forum online Conference, dedicated to the memory of Prof. Evangelos Vassilakakis, “Cross-border Successions”, held on 7 March 2024. The Author would like to express her sincere gratitude to Prof. Paris Arvanitakis and Dr. Ioannis Revolidis for the kind invitation and Prof. Charis Pamboukis for moderating the Conference.

[**] Infra, 245.

[1] Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, 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, OJ L 201, 27.7.2012, 107-134.

[2] CJEU judgement of 12 October 2023, OP, C-21/22, ECLI:EU:C:2023:766.

[3] Opinion of AG Sánchez-Bordona delivered on 23 March 2023, OP, C-21/22, ECLI:EU:C:2023:247.

[4] This relation was already a subject of research and comments in Academia. See, for instance, A. Dutta/W. Wurmnest, European Private International Law and Member State Treaties with Third States. The Case of the European Succession Regulation (Intersentia 2019).

[5] Recital (82).

[6] Recital (82).

[7] Recital (83).

[8] Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (recast),
OJ L 351, 20.12.2012, 1-32.

[9] See Article 6(1) Brussels Ibis Regulation.

[10] Umowa między Polską Rzecząpospolitą Ludową a Republiką Grecką o pomocy prawnej w sprawach cywilnych i karnych, podpisana w Atenach dnia 24 października 1979 r., Dz. U. z 1982 r, nr 4, poz. 4. The Convention entered into force on 23 December 1981. See Oświadczenie rządowe z dnia 19 stycznia 1982 r. w sprawie wymiany dokumentów ratyfikacyjnych Umowy między Polską Rzecząpospolitą Ludową a Republiką Grecką o pomocy prawnej w sprawach cywilnych i karnych, podpisanej w Atenach dnia 24 października 1979 r., Dz.U. z 1982 r., nr 4, poz. 25.

[11] Umowa między Rzecząpospolitą Polską a Ukrainą o pomocy prawnej i stosunkach prawnych w sprawach cywilnych i karnych sporządzona w Kijowie dnia 24 maja 1993 r., Dz. U. z 1994 r., nr 96, poz. 465.

[12] Oświadczenie rządowe z dnia 16 czerwca 1994 r. w sprawie wymiany dokumentów ratyfikacyjnych Umowy o pomocy prawnej i stosunkach prawnych w sprawach cywilnych i karnych między Rzecząpospolitą Polską a Ukrainą, sporządzonej w Kijowie dnia 24 maja 1993 r., Dz.U. z 1994 r., nr 96, poz. 466.

[13] Judgement in OP case, § 15.

[14] Judgement in OP case, § 24.

[15] Judgement in OP case, § 27.

[16] Judgement in OP case, § 33.

[17] Judgement in OP case, § 38.

[18] Judgement in OP case, § 27.

[19] “[…] there is disagreement about whether the Bilateral Convention really excludes the choice of law applicable to succession or adopts no position at all on the subject […] The decision on that point falls exclusively to the referring court […]”, Opinion of AG Sánchez-Bordona, note 6.

[20] Decision of the Regional Court in Opole dated 10 January 2024, signature: II CZ 438/21.

[21] Available at [https://www.sn.pl/sprawy/SitePages/Zagadnienia_prawne_SNIOZ.aspx?ItemSID=1923-301f4741-66aa-4980-b9fa-873e90506a11&ListName=Zagadnienia_prawne] (accessed on 1 June 2024).