Case study - 2 Issuing authority

2 Issuing authority

Competence to issue the certificate is explained in Article 64^[1] and Article 78^[2] of the Regulation

The CSE may be established and issued by:

a court as defined in Article 3(2)^[3],
another authority which, under national law, has competence to deal with matters of succession.

Not all issuing authorities of the European Union [ods]^[4] have competence to issue an ECS for a given succession. Only the following will have competence:

the issuing authority of the State of the habitual residence of the deceased,
in the case of a choice of law, the issuing authority of the chosen national law,
exceptionally:
- We should note the subsidiary jurisdiction of the State bound by the Regulation and in which any immovable property is located (Article 10^[5])
- Forum necessitatis: if a succession which should in principle be within the jurisdiction of a third State cannot be settled in that third State (because of a civil war, for example), then the authorities of a State bound by the Regulation may become competent to settle that succession if they have the closest connection with the case in question (article 11^[6])

Complement :

Competent authorities for the issue of the European Certificate of Succession [ods]^[7]

Notes

Article 64
Competence to issue the Certificate
The Certificate shall be issued in the Member State whose courts have jurisdiction under Article 4, Article 7, Article 10 or Article 11. The issuing authority shall be:
- a) a court as defined in Article 3(2); or
- b) another authority which, under national law, has competence to deal with matters of succession.
Article 78
Information on contact details and procedures
1. By 16 January 2014, the Member States shall communicate to the Commission:
  - a) the names and contact details of the courts or authorities with competence to deal with applications for a declaration of enforceability in accordance with Article 45(1) and with appeals against decisions on such applications in accordance with Article 50(2);
  - b) the procedures to contest the decision given on appeal referred to in Article 51;
  - c) the relevant information regarding the authorities competent to issue the Certificate pursuant to Article 64; and
  - d) the redress procedures referred to in Article 72.
  The Member States shall apprise the Commission of any subsequent changes to that information.
2. The Commission shall publish the information communicated in accordance with paragraph 1 in the Official Journal of the European Union, with the exception of the addresses and other contact details of the courts and authorities referred to in point (a) of paragraph 1.
3. The Commission shall make all information communicated in accordance with paragraph 1 publicly available through any other appropriate means, in particular through the European Judicial Network in civil and commercial matters.
Article 3
Definitions
1. For the purposes of this Regulation:
  - a) ‘succession' means succession to the estate of a deceased person and 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;
  - b) ‘agreement as to succession' means an agreement, including an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement;
  - c) ‘joint will' means a will drawn up in one instrument by two or more persons;
  - d) ‘disposition of property upon death' means a will, a joint will or an agreement as to succession;
  - e) ‘Member State of origin' means the Member State in which the decision has been given, the court settlement approved or concluded, the authentic instrument established or the European Certificate of Succession issued;
  - f) ‘Member State of enforcement' means the Member State in which the declaration of enforceability or the enforcement of the decision, court settlement or authentic instrument is sought;
  - g) ‘decision' means any decision in a matter of succession given by a court of a Member State, whatever the decision may be called, including a decision on the determination of costs or expenses by an officer of the court;
  - h) ‘court settlement' means a settlement in a matter of succession which has been approved by a court or concluded before a court in the course of proceedings;
  - (i) | ‘authentic instrument' means a document in a matter of succession which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
    (i) relates to the signature and the content of the authentic instrument; and
    (ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.
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.
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.
Pays autorités compétentes-1
Article 10
Subsidiary jurisdiction
1. Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as:
  - a) the deceased had the nationality of that Member State at the time of death; or, failing that,
  - b) | the deceased had his previous habitual residence in that Member State, provided that, at the time the court is seised, a period of not more than five years has elapsed since that habitual residence changed.
2. Where no court in a Member State has jurisdiction pursuant to paragraph 1, the courts of the Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on those assets.
Article 11
Forum necessitatis
Where no court of a Member State has jurisdiction pursuant to other provisions of this Regulation, the courts of a Member State may, on an exceptional basis, rule on the succession if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the case is closely connected.
The case must have a sufficient connection with the Member State of the court seised.
autorites_cse