Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 23 March 2023 (1)

Case C‑21/22

OP

intervener:

Justyna Gawlica, Notary

(Request for a preliminary ruling from the Sąd Okręgowy w Opolu (Regional Court, Opole, Poland))

(Preliminary-ruling proceedings – Judicial cooperation in civil matters – Jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession – Regulation (EU) No 650/2012 – Scope – Choice of the applicable law – Bilateral convention between a Member State and a third country)

1.        In this request for a preliminary ruling, the Court of Justice is asked, for the second time in relation to the same facts, (2) to interpret Regulation (EU) No 650/2012. (3)

2.        Specifically, the Court is required to rule, pursuant to Articles 22 and 75, inter alia, of that regulation:

–      Whether a person who is not a citizen of the European Union is entitled to choose his or her national law to govern his or her succession as a whole (question 1).

–      Whether, in view of the existence of a bilateral convention between Poland and Ukraine which does not provide expressly for the right to choose the law applicable to succession, the grant of that right is derived from Regulation No 650/2012 (question 2).

3.        As directed by the Court, I shall confine my Opinion to question 2, which will entail an examination of the effects of Article 75 of Regulation No 650/2012 on the dispute. (4)

I.      Legal framework

A.      European Union law

1.      TFEU

4.        The first and second paragraphs of Article 351 state:

‘The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties.

To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude.’

2.      Regulation No 650/2012

5.        Recital 37 reads:

‘In order to allow citizens to avail themselves, with all legal certainty, of the benefits offered by the internal market, this Regulation should enable them to know in advance which law will apply to their succession. Harmonised conflict-of-laws rules should be introduced in order to avoid contradictory results. The main rule should ensure that the succession is governed by a predictable law with which it is closely connected. For reasons of legal certainty and in order to avoid the fragmentation of the succession, that law should govern the succession as a whole, that is to say, all of the property forming part of the estate, irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third State.’

6.        Recital 38 states:

‘This Regulation should enable citizens to organise their succession in advance by choosing the law applicable to their succession. That choice should be limited to the law of a State of their nationality in order to ensure a connection between the deceased and the law chosen and to avoid a law being chosen with the intention of frustrating the legitimate expectations of persons entitled to a reserved share.’

7.        Recital 73 explains:

‘Respect for international commitments entered into by the Member States means that this Regulation should not affect the application of international conventions to which one or more Member States are party at the time when this Regulation is adopted. … Consistency with the general objectives of this Regulation requires, however, that this Regulation take precedence, as between Member States, over conventions concluded exclusively between two or more Member States in so far as such conventions concern matters governed by this Regulation.’

8.        Paragraph 1 of Article 12 (‘Limitation of proceedings’) reads:

‘Where the estate of the deceased comprises assets located in a third State, the court seised to rule on the succession may, at the request of one of the parties, decide not to rule on one or more of such assets if it may be expected that its decision in respect of those assets will not be recognised and, where applicable, declared enforceable in that third State.’

9.        Paragraph 1 of Article 22 (‘Choice of law’) provides:

‘A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.’

10.      Article 75 (‘Relationship with existing international conventions’) is worded:

‘1.      This Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation.

…

2.      Notwithstanding paragraph 1, this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation.

…’

B.      Polish law

11.      Article 37 of the Convention between the Republic of Poland and Ukraine on judicial assistance and judicial relations in civil and criminal matters of 24 May 1993 (‘the Convention’ or ‘the Bilateral Convention’) provides:

‘Legal relationships in matters relating to the transfer by succession of movable property shall be governed by the law of the contracting party of which the deceased was a national at the time of his or her death.

Legal relationships in matters relating to the inheritance of immovable property shall be governed by the law of the contracting party in the territory of which that property is situated.

The classification of the property forming part of the estate as movable or immovable property shall be governed by the law of the contracting party in the territory of which the property is situated.’

II.    Facts, dispute and questions referred for a preliminary ruling

12.      OP, a Ukrainian national resident in Poland, is the joint owner of a dwelling situated in the latter country. She requested a notary in Poland to authenticate a will which would include, among other clauses, the choice of Ukrainian law to govern her succession.

13.      Since the notary believed that the choice of law in the will was unlawful, (5) he refused to authenticate the will. He gave the following reasons for his refusal:

–      In accordance with an order of the Sąd Okręgowy w Opolu (Regional Court, Opole, Poland) of 28 February 2020, which concerned a similar situation, Article 22 of Regulation No 650/2012 grants the right to choose the applicable law to nationals of European Union Member States alone.

–      Irrespective of that interpretation of Article 22 of Regulation No 650/2012, the choice of the applicable law is contrary to the Bilateral Convention which, in the notary’s view, takes precedence over the provisions of that regulation. The Convention does not provide for the right to choose the applicable law in matters relating to succession, which, in accordance with Article 37 of the Convention, will be, in the case of movable property, the law of the State of which the deceased was a national and, in the case of immovable property, the law of the State in which the property is situated.

14.      OP challenged the notary’s refusal before the referring court on the ground that it was based on an incorrect interpretation of Articles 22 and 75 of Regulation No 650/2012. OP argued, inter alia, that:

–      Article 22 provides that ‘a person’ may choose the law of his or her country as the law applicable to his or her succession. Regulation No 650/2012 is universal in nature, as is clear from Article 20 thereof.

–      Article 75(1) of Regulation No 650/2012 ensures the conformity of that regulation with the obligations derived from agreements between the Member States and third countries. Given that the Bilateral Convention does not govern the choice of law applicable to succession, the application of Article 22 of Regulation No 650/2012 is not incompatible with it.

–      OP could have chosen the applicable law in accordance with Article 22 of Regulation No 650/2012, by making a disposition of property on death in another Member State in which that regulation is applicable and which is not bound by a bilateral agreement with Ukraine.

–      The notary’s interpretation is incompatible with the single-estate principle, since it would lead to fragmentation of the estate.

15.      In his response, the notary insisted that the Bilateral Convention creates a separate regime for determining the law applicable to succession. That regime takes precedence over the regime laid down by Regulation No 650/2012, including Article 22 thereof.

16.      Against that background, the Sąd Okręgowy w Opolu (Regional Court, Opole), which must decide on the case, has referred the following questions to the Court of Justice for a preliminary ruling:

‘(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 Member State and a third country 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 country residing in a Member State bound by that bilateral agreement may make a choice of law?’

III. Procedure before the Court of Justice

17.      The request for a preliminary ruling was received at the Registry of the Court on 7 January 2022.

18.      Written observations were lodged by the notary, the Spanish, Hungarian and Polish Governments and the European Commission.

19.      It was not considered necessary to hold a hearing.

IV.    Analysis

20.      In the situation which has given rise to the dispute, it is possible to apply, in principle, both Regulation No 650/2012 and the Bilateral Convention between Poland and Ukraine. (6)

21.      The existence of concurrent provisions means that it is necessary to decide which of those provisions takes precedence. The effects of that choice have been shown through the transcription of the relevant provisions:

–      Under Regulation No 650/2012, OP is entitled to choose in her will the law of her nationality (Ukrainian) to govern her succession as a whole.

–      OP would not have that choice, however, if the silence of the Bilateral Convention regarding the choice of the applicable law were to mean that such a choice is not possible. (7)

22.      In that connection, the referring court requests an interpretation of Article 75 of Regulation No 650/2012 in conjunction with Article 22 of that regulation.

23.      In general, the observations lodged with the Court focus on Article 75(1) (the first sentence thereof, to be specific). (8) However, I believe that the correct interpretation of paragraph 1 requires that account must also be taken of paragraph 2.

24.      Together, the two paragraphs lay down a compatibility or coordination provision:

–      intended to ensure compliance with the obligations under international law entered into by Member States (9) prior to the adoption of Regulation No 650/2012 (paragraph 1);

–      while also preserving the objectives of Regulation No 650/2012, which is the reason why that regulation automatically takes precedence over conventions to which only two or more Member States are parties (paragraph 2).

25.      In the case of a bilateral convention concluded between a Member State and a third State (10) before the adoption of Regulation No 650/2012, the exact meaning of Article 75 of that regulation may be that which flows readily from a textual reading of that article.

26.      At first sight, the combination of paragraphs 1 and 2 of Article 75 supports the proposition that a convention with those characteristics automatically takes precedence over Regulation No 650/2012 if there is a conflict between the two. (11) Pursuant to Article 75(1), ‘this Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation’.

27.      However, that proposition may be classified as precipitate if, as maintained in other observations lodged with the Court, (12) the case-law on Article 57 of the Brussels Convention (13) and Article 71 of Regulation No 44/2001 (14) must be applied by analogy.

28.      I shall examine that difference in approach before addressing the question properly speaking.

A.      Compatibility of Regulation No 650/2012 with international conventions preceding it

29.      Article 75 of Regulation No 650/2012 is not an isolated provision in European instruments on judicial cooperation in civil and commercial matters.

30.      Other conventions and regulations governing relationships between individuals in the European area of freedom, security and justice include provisions on the same lines. That is the case of Article 57 of the Brussels Convention; (15) Article 71 of Regulation No 44/2001 (16) and the same provision of Regulation (EU) No 1215/2012; (17) Article 69 of Regulation (EU) No 4/2009; (18) and Article 62 of Regulation (EU) No 2016/1103. (19)

31.      It should be pointed out that those provisions are essentially identical, (20) in that:

–      They state they are not intended to affect the application of international conventions to which one or more Member States are party and which govern the same matters.

–      They insert qualifications, however, where those conventions are applied as between Member States.

32.      Ruling on the Brussels Convention and Regulation No 44/2001, the Court has held that the coordinating provision in Articles 57 and 71 respectively thereof:

–      Refers to agreements concluded between all the Member States or only between some of the Member States, and it is not a condition, for the purposes of their primacy over the EU instrument, that third countries must also be a party to such conventions. (21)

–      When a convention that is specialised by reason of its subject matter lacks a specific solution to a particular problem and that solution is provided in the EU legislation, the Member States are to apply the latter. (22)

–      In the case of concurrent provisions of a convention and of the EU instrument, the provisions of the convention take precedence not only in relationships with third countries but also between Member States. (23)

–      However, the application by Member States, in relation to matters governed by specialised conventions, of the provisions laid down by those conventions must not compromise the principles which underlie judicial cooperation in civil and commercial matters in the European Union. (24) The coordinating provision ‘cannot have a purport that conflicts with the principles underlying the legislation of which it is part.’ (25)

33.      I have already pointed out that some of the observations of those who have participated in these proceedings propose that that case-law (more accurately, its modus operandi) should be applied to the interpretation of Article 75 of Regulation No 650/2012.

34.      I have a number of doubts in that regard.

35.      I see no great difficulty in the fact that the coordinating provision in the Brussels Convention and the regulations succeeding it refers to the relationship between them and conventions that are specialised by reason of their subject matter, whereas the coordinating provision laid down in Regulation No 650/2012 concerns any convention governing matters which that regulation also governs.

36.      I do not believe that that divergence places conditions on the relationship between international conventions and Regulation No 650/2012 to the point that it leads to different outcomes from those set out in the context of the Brussels Convention and subsequent regulations.

37.      In my view:

–      A generic convention on judicial assistance (like that at issue in this case) is among the conventions to which Article 75 of Regulation No 650/2012 refers if any of the provisions of that convention covers matters which are also governed by that regulation.

–      In such cases, the obligation to respect the convention, derived from Article 75 of Regulation No 650/2012, does not cover all of its provisions: it is confined to the provisions of that convention which have the same scope as other provisions of the EU legislation.

–      As regards matters relating to succession which are not provided for in the convention but are, however, provided for in Regulation No 650/2012, the Member States that are parties to the convention will apply the latter. (26)

38.      I find the application of other aspects of the case-law cited more problematic.

39.      First, the primacy of international conventions over Regulation No 650/2012, in the light of any overlap between their provisions, has been excluded by Article 75(2) of Regulation No 650/2012 for conventions to which only Member States are parties. (27) On this point, Regulation No 650/2012 diverges from a number of findings of the Court to which I have referred above. (28)

40.      Second, I am unsure whether, and how, the case-law of the Court, which, as regards the interpretation of Article 57 of the Brussels Convention and Article 71(1) of Regulation No 44/2001, makes the application of international conventions by the Member States conditional on their application not compromising ‘the principles which underlie judicial cooperation in civil and commercial matters in the European Union’, is to be applied. (29)

41.      My doubts are due in part to the fact that the scope of that case-law is not particularly clear. (30) In the judgment in TNT Express Nederland, the Court limits it to ‘relations between the Member States’; (31) in the same judgment, and in the judgment in Nipponkoa Insurance, the Court refers to the application of conventions ‘in the European Union’, (32) an expression which is even vaguer than the former. Lastly, no similar wording is used in the judgment in Nickel & Goeldner Spedition. (33)

42.      In addition, there is no qualification in those judgments for the situation where a Member State which is a signatory to an international agreement must disregard commitments under that agreement in order to avoid undermining the principles which underlie judicial cooperation in civil and commercial matters in the European Union.

43.      However, I find it difficult to believe that, in those circumstances, EU law automatically takes precedence to the extent that it undermines the operation of the international convention concerned in relation to third countries. I am more inclined to think that the Court simply has not had the opportunity to give a ruling in that regard in the sphere of judicial cooperation in civil and commercial matters. (34)

44.      The Court has, however, done so in other contexts, in which:

–      It has ruled explicitly that, ‘when giving effect to commitments assumed under international agreements, be it an agreement between Member States or an agreement between a Member State and one or more non-member countries, Member States are required, subject to the provisions of Article 307 EC, to comply with the obligations that Community law imposes on them’. (35)

–      The Court went on to state that there may be exceptions to that rule based on the need to respect the balance and reciprocity underlying agreements concluded between a Member State and a non-member country, for as long as the latter retains that status. (36)

45.      I believe that those considerations are applicable to the field of cross-border judicial cooperation in civil and commercial matters.

46.      The conclusion of a convention in that field is the outcome of a negotiation in the context of which the rights and obligations of the contracting States are defined on the basis of the principle of reciprocity.

47.      That appears to me to be particularly clear in the case of wide-reaching conventions, like the 1993 Bilateral Convention between Poland and Ukraine, which, at a very specific historic juncture, are designed to institute a structure for mutual judicial assistance in civil and criminal matters, in addition to granting reciprocal rights to the nationals of the countries concerned.

48.      Even if, owing to the circumstances concerned, the application of the Bilateral Convention in Poland must be construed as taking place ‘in the European Union’, I believe that, before giving precedence to the EU rules, it will be necessary to determine whether, in complying with those rules, that Member State is jeopardising the balance of obligations and rights laid down in the Convention for both parties. (37)

49.      In the event of any conflict between the principles or rules (38) of an EU instrument (Regulation No 650/2012) in force in a Member State (Poland) and those of a binding bilateral convention concluded between that State, before its accession to the European Union, (39) and a third country (Ukraine), the unconditional imposition on that Member State of the requirement to comply with the principles and rules of EU law may not be the correct approach in every case. (40)

50.      However, I do not believe that there is a genuine conflict between Regulation No 650/2012 and the Bilateral Convention in so far as is important for the present purposes. I shall explain why below.

B.      No conflict

1.      The approach in the Bilateral Convention

51.      As I have already stated, the Bilateral Convention was concluded prior to Poland’s accession to the European Union and also before the latter claimed exclusive competence for itself in the area concerned. (41)

52.      With regard to successions, the Bilateral Convention embraced a two-tier or split model: the law of the deceased’s nationality at time of death applies in respect of movable property, while the law of the place where the property is situated applies in respect of immovable property.

53.      Those conflict rules align with others governing exclusive jurisdiction, such that the authority of each State applies its own law to the estate with which it is required to deal. (42)

54.      In the reasoning below, I shall proceed on the basis (or, rather, take as a working hypothesis) that the silence of the Bilateral Convention on the choice of law in matters of succession means that that choice is excluded in the case of a succession covered by the Convention. (43)

2.      The approach in Regulation No 650/2012

55.      Regulation No 650/2012 was adopted in order to make it easier for individuals to exercise their rights in the context of a succession having cross-border implications.

56.      The EU legislature laid down provisions governing jurisdiction and the applicable law in matters of succession having cross-border implications and other provisions governing the recognition (or acceptance) and enforcement in one Member State of judgments given and public documents issued in another Member State.

57.      Regulation No 650/2012 reflects certain legislative choices, some of which may be described as ‘principles’ of the system. (44) In the present case the question arises of whether the principle of freedom of choice and the principle of a single estate are principles of the system.

(a)    Freedom to choose the law

58.      The referring court asks the Court of Justice to determine ‘whether the freedom to choose the applicable law is one of the principles relating to the operation of Regulation No 650/2012’. If that is the case, the referring court wishes to know whether a convention which excludes that freedom ‘is … contrary to the principles underlying judicial cooperation in civil and commercial matters in the Union’.

59.      In my view, the answer must be in the negative.

60.      In the case of a succession having cross-border implications, freedom of choice plays (conceptually) a limited role, in accordance with the EU legislation.

61.      For the purpose of determining the applicable law, Regulation No 650/2012 lays down an objective connecting factor: the deceased’s habitual residence at the time of death. The right to choose a different law, under Article 22, is limited as regards its subject matter (it is only possible to choose the law of the deceased’s nationality) and is also subject to formal requirements associated with a disposition of property on death.

62.      In those circumstances, I do not believe that it is possible to accord freedom of choice in circumstances involving a conflict of laws the status of a principle informing Regulation No 650/2012.

63.      I believe, therefore, that there is no principle of EU law which precludes a bilateral convention from refusing to grant a testator or testatrix the freedom to choose the law applicable to his or her succession. A fortiori, EU law does not unavoidably require an interpretation of that bilateral convention, if it is silent on the choice of law, in order to decide that, in fact, it permits that choice.

(b)    The single-estate principle

(1)    As a structural principle

64.      The principle of a single estate (or, more correctly, a single body of rules governing succession) is, unlike freedom to choose the law, one of the principles underlying Regulation No 650/2012. Of its many expressions, the following are striking:

–      the establishment of a single factor as a criterion for jurisdiction and the connecting factor for the purposes of the conflict-of-laws rule; (45)

–      making the succession as a whole subject to a single jurisdiction; (46)

–      making the succession, as a set of assets and rights, subject to an applicable law; (47)

–      making the succession, as a process of transferring and acquiring assets and rights, subject to an applicable law. (48)

65.      In the European Union, which does not have a substantive law of succession, the choice of the unitary or one-tier model is not the result of the extension to the international sphere of definitions applicable within the European Union. As things currently stand, the single-estate principle, in the forms set out, is the technical solution which is better suited to the aims of European Union integration:

–      In so far as it entails the application of a single law for the entire estate to be transferred, it makes it easier for citizens (49) to organise their succession. (50)

–      For the authority dealing with the succession, the application of a single law, preferably the law applicable to that authority, simplifies the administration of successions having international elements. (51)

–      That fact, in addition to the fact that jurisdiction is concentrated in a single court, facilitates the free movement of decisions within the European Union, since it minimises the risk of incompatible judgments or rulings concerning the same succession.

66.      The unitary treatment of succession was not the only approach in force in the Member States at the time of the negotiations for Regulation No 650/2012. The EU legislature was fully aware of that. (52)

67.      The fact that that approach is relatively new does not diminish its character as the backbone of the system. In judgments given to date on Regulation No 650/1202, the Court has confirmed its status as a ‘principle’. (53)

68.      It follows from that recognition by the Court that:

–      The deceased’s habitual residence, as a criterion for assigning international jurisdiction or as a connecting factor for the purposes of the conflict-of-laws rule, may be only one residence. (54)

–      There is a broad definition of the material scope of Regulation No 650/2012 (55) (by extension, of the law applicable to succession).

(2)    Not an absolute principle

69.      It should be noted, however, that the single-estate principle is far from being a rigid principle in any of the fields in which it applies. According to the Court, the avoidance of fragmentation is something which Regulation No 650/2012 is intended to ensure, (56) but not an absolute requirement. (57)

70.      There are many cases in Regulation No 650/2012 where the principle of the unitary treatment of succession is not observed. While not intended to be an exhaustive list, the following attest to that fact:

–      Decisions regarding certain property in an estate and specific aspects of succession proceedings may be adopted by a court other than the court with jurisdiction, under Regulation No 650/2012, for the purposes of settling the succession as a whole. (58)

–      The court with jurisdiction under the common rule is entitled to refrain from ruling on property forming part of the estate which is situated in a third country, under certain conditions. (59)

–      The correlation between the forum and the law ceases to exist in certain situations, for example, as a result of a choice of law by the deceased, (60) where the deceased was a national of a third country (61) (unless there are corrective mechanisms, like the renvoi under Article 34 of Regulation No 650/2012). Also, where the choice designates the law of a Member State, if the mechanisms aimed at ensuring that the authority dealing with the succession applies its own law do not operate. (62)

–      Regulation No 650/2012 provides that the succession may be fragmented, allowing different laws to govern specific aspects of the succession process. (63) The regulation also provides that, subject to conditions, the lex rei sitae is to apply to the transfer by succession of certain property. (64)

(3)    Effects of Article 12(1) of Regulation No 650/2012

71.      Of all the derogations from the single-estate principle in Regulation No 650/2012, I would like to draw attention to the derogation laid down in Article 12(1) on account of its importance to this reference for a preliminary ruling. That provision is, in my view, a (necessary) concession by the EU legislature to the plurality of models in relation to the treatment of a succession having international elements. (65)

72.      In practice, it is clear that the adoption of a unitary model of regulation, without reservations, is an approach doomed to failure where an estate includes immovable property situated in States which have opted for the opposite model (two-tier or split).

73.      In those countries:

–      Application of the lex rei sitae is usually mandatory for immovable property in their own territory.

–      International jurisdiction for cases relating to the transfer of that property on death is defined as exclusive.

–      As a corollary, it is justified to refuse to recognise foreign decisions in respect of such property. (66)

74.      Within the European Union, the Member States bound by Regulation No 650/2012 have accepted the unitary model and may not object to a succession in respect of immovable property on their territory being subject to a foreign law (67) or to the adoption by the authorities of other Member States of decisions concerning that property.

75.      On the other hand, Regulation No 650/2012 allows significant variations where it provides, in Article 12(1), that the court with jurisdiction in accordance with its provisions may refrain from ruling on property situated in a third State in the light of concerns that the decision will not be recognised and, where applicable, declared enforceable in that third State.

76.      Article 12(1) of Regulation No 650/2012 is aimed, first and foremost, at third States which claim exclusive jurisdiction to rule on a transfer by succession of immovable property on their territory. However, the expectation that a decision will not take effect in a third State may be based on any other reason provided for in the law of that State, for example, the law of the place where the property is situated has not been applied. (68)

77.      A potential consequence of Article 12(1) of Regulation No 650/2012 is the rupture of the unitary treatment of a succession:

–      As regards international jurisdiction, if the court with jurisdiction pursuant to Regulation No 650/2012 excludes from its decision certain property in the estate, due to concerns that that decision will not be effective in the third country where the property is located, it is reasonable for the interested parties to put forward their claims before the courts of that State.

–      As regards the law applicable to succession, since those courts determine that law in accordance with their conflict-of-law rules, a split is foreseeable if the law that is designated is not the law which, under Regulation No 650/2012, applies to the rest of the estate.

78.      The rupture of the unitary treatment of a succession entails acceptance that there are more regulatory options for succession than the unitary model. In Article 12(1) of Regulation No 650/2012, the EU legislature shows its awareness that third States have chosen the split model of succession and demonstrates its willingness to respect that for practical reasons, notwithstanding the consequences which it entails and which I have described.

79.      In my view, the deference indicated by Article 12 of Regulation No 650/2012 (unilateral provision) tends to increase rather than decrease when the two-tier approach is included in a bilateral convention between a Member State and a third country, like the convention at issue, which was concluded before the adoption of that regulation. Furthermore, Regulation No 650/2012 declares its intention not to affect the application of those international conventions.

C.      In the alternative: if there is a conflict

80.      In the event that the Court finds that there is a conflict between the principles laid down in Regulation No 650/2012 and the Bilateral Convention, I propose that Article 75 of Regulation No 650/2012 should be interpreted in the light of Article 351 TFEU.

81.      Article 351 TFEU governs the situation where there are concurrent provisions of EU law and certain conventions to which Member States and third countries are party. In the words of the Court of Justice, it ‘is a rule which may, where its conditions of application are met, allow derogations from the application of EU law, including primary law’. (69)

82.      Contradictions between a convention concluded prior to the accession of a Member State and a provision of EU law may constitute one of those grounds for derogation. (70)

83.      However, before drawing that conclusion, it is incumbent on Member States, pursuant to the second paragraph of Article 351 TFEU, to take all appropriate steps to eliminate existing incompatibilities between EU law and the international convention concerned. (71)

84.      It follows from that premiss:

–      First, that Member States must avoid any incompatibility by interpreting the convention concerned, to the extent possible and in compliance with international law, in such a way that it is consistent with EU law. (72)

–      Second, if the above is not possible, Member States must take the necessary measures to eliminate the incompatibility of the convention with EU law, where appropriate, by denouncing it. Pending such elimination, the first paragraph of Article 351 TFEU permits Member States to continue to apply that convention. (73)

85.      Applied to the instant case, the foregoing means that Poland would be required to attempt to bring the interpretation of the Bilateral Convention into line with Regulation No 650/2012, in compliance with international law. (74)

86.      If that attempt were to fail, Poland would have to seek to amend, or denounce, the Convention. In the meantime, EU law would permit it to apply the Convention in such a way as to comply with the international obligation entered into.

V.      Conclusion

87.      In the light of the foregoing considerations, I suggest that the Court of Justice reply to the Sąd Okręgowy w Opolu (Regional Court, Opole, Poland) as follows:

Article 75 of 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, in conjunction with Article 22 thereof,

is to be interpreted as not precluding a situation where, pursuant to a bilateral treaty concluded between a Member State and a third country before the accession of that Member State to the European Union, a national of the third country, who is resident in the Member State bound by the bilateral treaty, does not have the right to choose the law applicable to his or her succession.

1      Original language: Spanish.

2      The previous request for a preliminary ruling was submitted directly by a notary. The Court ruled that the notary did not have the status of ‘court or tribunal’ within the meaning of Article 267 TFEU and it therefore ruled that the reference was inadmissible. See order of 1 September 2021, OKR (Request for a preliminary ruling from a notary acting as a deputy for another notary) (C‑387/20, EU:C:2021:751).

3      Regulation 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 2012 L 201, p. 107).

4      As regards question 1, while the unfortunate wording of the preamble to Regulation No 650/2012 justifies the national court’s question, the answer does not appear to raise any doubts. A number of recitals of that regulation refer to ‘citizens’ (and even to ‘European citizens’ in some language versions) as the addressees of legislation aimed at facilitating the organisation of a succession having cross-border implications and access to the benefits of the internal market. To construe those references as excluding nationals of third countries, to whose succession, for one reason or another, Regulation No 650/2012 should be applicable, would not only run counter to the wording of Article 22 of that regulation but also to other provisions, such as Article 20, which declare that the regulation is universally applicable.

5      Specifically, that it was contrary to Article 81 of the Law on Notaries of 14 February 1991 (Dz. U. 1991 nr 22, poz. 91), pursuant to which a notary must refuse to execute unlawful instruments.

6      I say ‘in principle’ because 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; see footnote 7. The decision on that point falls exclusively to the referring court and not to the Court of Justice, which lacks jurisdiction to interpret that convention.

7      That is the interpretation of the Bilateral Convention advanced by the notary, the Commission and the Hungarian Government. Like OP in the main proceedings, the Polish Government maintains, in paragraphs 27 to 30 of its observations, that that convention merely reproduces the status quo as regards the law applicable to succession at the time of its conclusion; the absence of any reference to the choice of law simply indicates that the Convention does not govern that point. The referring court has not reached any conclusions on the subject. If the absence of any reference to the right to choose the applicable law (both for the purposes of granting that right and for refusing it) is to be construed as indifference on the part of the States that are signatories to the Bilateral Convention, it is not possible to talk about incompatibility with Regulation No 650/2012.

8      With the exception of the observations of the Kingdom of Spain, which refers also to paragraph 2 in point 27 et seq. of its observations.

9      Regulation No 650/2012 is not applicable in Ireland or Denmark. The term ‘Member State’ hereinafter is to be taken to refer to the other Member States.

10      There is no doubt that instruments of that kind are covered by Article 75(1) of Regulation No 650/2012.

11      That is the argument put forward by the Spanish (paragraphs 28 and 30) and Hungarian (paragraphs 10 to 16) Governments in their written observations.

12      Observations of the Commission, paragraph 34 et seq., and of the notary, paragraph 23 et seq.

13      Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32; consolidated text at OJ 1998 C 27, p. 1).

14      Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). The provisions are broadly similar; the differences are not relevant for the present purposes.

15      In conjunction with Articles 55 and 56.

16      In conjunction with Articles 69 and 70.

17      Regulation of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1). As in Regulation No 44/2001, Article 71 must be read in conjunction with Articles 69 and 70.

18      Council Regulation of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ 2009 L 7, p. 1).

19      Council Regulation of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (OJ 2016 L 183, p. 1).

20      There are, however, certain differences between them. In my view, some of those differences are irrelevant. That is the case of the absence, in Article 75 of the Succession Regulation, of the words ‘without prejudice to the obligations of the Member States under Article [307] 351 TFEU’, which appear expressly in other regulations. The reference was included in the Commission’s proposal, COM(2009) 154 final, Article 45, but was deleted during the passage of that proposal through Parliament. I do not believe that the reference to the TFEU in those instruments has any purpose other than as a reminder: in other words, its absence does not release the Member States from the obligations laid down in the TFEU in matters relating to successions covered by the regulation (see, in that connection, point 80 et seq. of this Opinion). On the other hand, as I explain below, the different delimitation of the situations in which a European Union regulation takes precedence over an international convention (see footnote 21 below in relation to the Brussels Convention and the regulations which followed it and footnote 27 in relation to other conventions) may indeed have consequences when it comes to applying the interpretation of some coordinating provisions to others.

21      Judgment of 14 July 2016, Brite Strike Technologies (C‑230/15, EU:C:2016:560, paragraphs 49 and 50). To a large extent, conventions concluded exclusively between Member States are no longer effective between them within the material scope covered by the Brussels Convention or by Regulations No 44/2001 and No 1215/2012: see Articles 55 and 56 of the Brussels Convention and Articles 69 and 70 of Regulation No 44/2001 and Regulation No 1215/2012.

22      Judgment of 6 December 1994, Tatry (C‑406/92, EU:C:1994:400, paragraph 25).

23      Judgment of 4 May 2010, TNT Express Nederland (C‑533/08, EU:C:2010:243; ‘judgment in TNT Express Nederland’), paragraphs 45 to 48.

24      Judgments in TNT Express Nederland, paragraph 49 et seq.; of 19 December 2013, Nipponkoa Insurance (C‑452/12, EU:C:2013:858, paragraph 36); and of 4 September 2014, Nickel & Goeldner Spedition (C‑157/13, EU:C:2014:2145, paragraph 38). I shall explain below the uncertainty surrounding the geographical scope (so to speak) of that case-law: point 41. In any event, it is apparent from that case-law that the ‘non-affect’ rule does not mean, as might be thought at first sight, that the EU instrument is automatically superseded every time it is concurrent with an international convention.

25      Judgments in TNT Express Nederland, paragraph 51, and of 19 December 2013, Nipponkoa Insurance (C‑452/12, EU:C:2013:858, paragraph 37). The translation, in practical terms, is that set out in paragraph 55 of the former judgment: the convention ‘can be applied in the European Union only if it enables the objectives of the free movement of judgments in civil and commercial matters and of mutual trust in the administration of justice in the European Union to be achieved under conditions at least as favourable as those resulting from the application of Regulation No 44/2001’. See also paragraph 38 of the latter judgment and the final wording in paragraph 39: Article 71 of Regulation No 44/2001 ‘must be interpreted as meaning that it precludes an international convention from being interpreted in a manner which fails to ensure, under conditions at least as favourable as those provided for by that regulation, that the underlying objectives and principles of that regulation are observed’.

26      When the provisions governing jurisdiction, applicable law and the like in relation to successions are laid down in a convention having general scope which sets out general rules on, for example, lis pendens and related actions and the recognition and enforcement of decisions, it is necessary to determine whether those general rules are also framed in such a way that they govern successions covered by the convention, before giving way to the rules laid down in Regulation No 650/2012.

27      Regulation No 650/2012 makes no provision for what happens with regard to conventions to which Member States and third countries are parties as regards the relationship between them, which the Commission’s proposal COM(2009) 154 final, Article 45, could have been construed as doing, and unlike Regulation No 4/2009.

28      Point 32, first indent, above.

29      Point 32, final indent, above.

30      I am referring to the geographical scope. From the point of view of principles, those ‘which underlie judicial cooperation in civil and commercial matters in the European Union’ and those which govern the particular regulation containing the non-affect clause at issue are placed on the same footing in those judgments.

31      Paragraph 52.

32      Judgments in TNT Express Nederland, paragraphs 53 and 54, and of 19 December 2013, Nipponkoa Insurance (C‑452/12, EU:C:2013:858, paragraph 38).

33      Judgment of 4 September 2014 (C‑157/13, EU:C:2014:2145).

34      The judgments in TNT Express Nederland and of 19 December 2013, Nipponkoa Insurance (C‑452/12, EU:C:2013:858) concerned the rules on lis pendens, recognition and enforcement in the Convention on the Contract for the International Carriage of Goods by Road (CMR), signed at Geneva on 19 May 1956, as amended by the Protocol signed at Geneva on 5 July 1978, in relation to its application to procedures (or decisions) of two Member States. The facts of the judgment of 4 September 2014, Nickel & Goeldner Spedition (C‑157/13, EU:C:2014:2145), concerned a single Member State: the issue to be determined was whether the international jurisdiction provision of the CMR or that of Regulation No 44/2001 should apply.

35      Judgment of 21 January 2010, Commission v Germany (C‑546/07, EU:C:2010:25, paragraph 42) and the judgments cited.

36      Ibid., paragraphs 43 and 44.

37      The rules on succession laid down in the Bilateral Convention differ significantly from Regulation No 650/2012: the latter opts for the unitary model of dealing with succession, and the former for the opposite, with all its consequences (that is, with regard to the applicable law, international jurisdiction and the recognition and enforcement of foreign judgments). If the Polish authorities were compelled to promote the single-estate principle because that is the principle underlying Regulation No 650/2012, the Bilateral Convention would be deprived of effect in circumstances in which, in all likelihood, it is of greatest importance, that is, every time a Polish citizen’s estate on death included immovable property in Ukraine. In view of the fact that the Bilateral Convention not only provides for the application of the deceased’s national law in respect of movable property and the lex rei sitae in respect of immovable property (Article 37) but also makes the mutual recognition of decisions in that regard conditional on compliance with those rules (Article 49 and Article 50(6)), a Polish decision would not be recognised in Ukraine. Poland, on the other hand, would continue to be required to recognise Ukrainian decisions on immovable property situated on Polish territory.

38      Or the result of applying them.

39      For the purposes of Article 75 of Regulation No 650/2012, the relevant cut-off date is the date of adoption of that regulation. Be that as it may, at the time of conclusion of the Bilateral Convention, Poland and Ukraine were third countries since Poland had not yet joined the European Union. The predictions that Ukraine will do so in the future have been cited by the referring court and by some of the parties before the Court of Justice, just as the wish to establish closer ties expressed in the Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part (OJ 2014 L 161, p. 3) has been cited as an argument for reconciling the interpretation of the Bilateral Convention with Regulation No 650/2012. However, if, when and how those expressions of intention will become concrete is rather uncertain and, therefore, of no use when it comes to establishing how the text of the Convention is to be interpreted now.

40      Point 80 et seq. below.

41      Some importance could have been attached to that temporal factor at one time in the context of the interpretation of Article 351 TFEU. The judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem) (C‑435/22 PPU, EU:C:2022:852, paragraph 126), clarifies that that is not the case. It should be recalled that, in the context of Article 75 of Regulation No 650/2012, the relevant date is the date of adoption of that regulation.

42      Article 41 of the Bilateral Convention. By way of exception, if all the movable property in the estate is situated in one contracting State, there is agreement between the successors in title and one of them makes a request to that effect, the authorities of that State will deal with the succession in its entirety. Unless I am mistaken, the conflict rule remains unaltered.

43      As I have already pointed out, it is for the referring court to decide on the interpretation of that aspect of the Bilateral Convention for the contracting States.

44      It is not unusual for the technical solutions laid down in Regulation No 650/2012 to be presented by reference to the principles which underlie them: P. Lagarde, ‘Les principes de base du nouveau règlement européen sur les successions’, Revue Critique de Droit International Privé, 2012, pp. 691 to 732. The method is not without risk, as can be seen in the instant case: the fact that the regulation permits the choice of law or forum does not automatically make freedom of choice a structural principle of the legislation.

45      Recitals 23 and 27. In the enacting terms, inter alia, Article 4 and Article 21(1).

46      Article 4, Article 10.

47      Recital 37, in fine, and Article 21.

48      Recital 42 and Article 23.

49      I am using the term which appears in a number of recitals of Regulation No 650/2012.

50      The disparate nature of the property or the fact that it is situated in different States will not present them with an additional difficulty.

51      The grouping together under a single legal system of all, or at least a large number of, aspects pertaining to a succession having cross-border implications reduces the number and intensity of difficulties inherent in reconstructing the body of legal rules applicable to that succession.

52      See the working document provided by the Commission’s staff, accompanying the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, SEC(2009) 410, p. 12. It is legitimate to assert that Article 75(1) (Article 45(1) of the Commission’s Proposal, COM(2009) 154 final) was also adopted in the knowledge that rejection of the unitary approach in a number of Member States was (is) also the approach in international agreements concluded with third countries.

53      Judgments of 12 October 2017, Kubicka (C‑218/16, EU:C:2017:755, paragraph 43); of 21 June 2018, Oberle (C‑20/17, EU:C:2018:485, paragraphs 54 to 56); of 7 April 2022, V A and Z A (Subsidiary jurisdiction in matters of succession) (C‑645/20, EU:C:2022:267, paragraph 38); and of 9 September 2021, UM (Contract transferring ownership mortis causa) (C‑277/20, EU:C:2021:708, paragraph 33).

54      Judgment of 16 July 2020, E. E. (Jurisdiction and law applicable to succession) (C‑80/19, EU:C:2020:569, paragraph 41).

55      Judgments of 12 October 2017, Kubicka (C‑218/16, EU:C:2017:755); of 21 June 2018, Oberle (C‑20/17, EU:C:2018:485); and of 9 September 2021, UM (Contract transferring ownership mortis causa) (C‑277/20, EU:C:2021:708). In those cases, the alternative to the regulation would have been a national law and not another European instrument.

56      Judgment of 7 April 2022, V A and Z A (Subsidiary jurisdiction in matters of succession) (C‑645/20, EU:C:2022:267, paragraph 37).

57      Judgments of 16 July 2020, E. E. (Jurisdiction and law applicable to succession) (C‑80/19, EU:C:2020:569, paragraph 69), and of 7 April 2022, V A and Z A (Subsidiary jurisdiction in matters of succession) (C‑645/20, EU:C:2022:267, paragraphs 44 and 45).

58      Recitals 28, in fine, and 32; Article 13.

59      Article 12(1).

60      Also, in the rare cases in which the law that is usually applicable must give way to another law pursuant to the exception clause in Article 21(2).

61      That occurs in the instant case: if the choice of law sought by OP were permitted, the Polish notary and, possibly, a court would have to apply a foreign law.

62      Articles 5 to 7.

63      For example, the appointment and powers of an administrator of the estate in certain situations: recital 44 and Article 29 of Regulation No 650/2012.

64      Recital 54 and Article 30 of Regulation No 650/2012.

65      The wording of that provision did not feature in the Commission’s proposal for a regulation (COM(2009) 154 final). Its later inclusion is not explained in the Report of the Committee on Legal Affairs of the Parliament of 6 March 2013, document A7-0045/2012.

66      Very graphically, A. Bonomi, ‘Successions internationales: conflits de lois et de juridictions’, Cursos de la Academia de La Haya de Derecho Internacional, Vol. 350, pp. 71 to 418, in particular pp. 107 to 108: ‘La prétention d’un Etat étranger à soumettre, selon l’approche unitaire, les immeubles à la loi nationale ou à la loi du dernier domicile (ou de la dernière résidence habituelle) du de cujus, est […] entièrement irréaliste.’

67      The concessions to the law of the Member State, as the lex rei sitae and as a result of being so, are limited. Article 31 of Regulation No 650/2012 illustrates it thus: where the right in rem invoked under the law applicable to the succession does not exist in the law of the Member State in which it is invoked (which will usually be the State in which the property to which the right relates is situated), the lex rei sitae does not replace the law applicable to the succession; Member States have a duty to ensure the continuity of the unknown right in rem by adapting it to the closest equivalent right in rem under their own law.

68      Both grounds for non-recognition are laid down in Article 50 of the Bilateral Convention between Poland and Ukraine of 24 May 1993.

69      Judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem) (C‑435/22 PPU, EU:C:2022:852, paragraphs 119 and 121).

70      See, for example, judgment of 22 October 2020, Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854), on the relationship between Article 12(1) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25) and the Convention between Switzerland and Germany concerning the Reciprocal Protection of Patents, Designs and Trademarks, signed in Berlin on 13 April 1892, as amended.

71      Inter alia, judgments of 22 October 2020, Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854, paragraph 67), and of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem) (C‑435/22 PPU, EU:C:2022:852, paragraph 122).

72      Judgment of 22 October 2020, Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854, paragraph 68).

73      Loc. ult. cit., paragraphs 69 and 72.

74      In that connection, it would be possible to interpret the Bilateral Convention (provided, I repeat, that such an interpretation were compatible with international law) as meaning that the absence of a reference to a choice of law by the deceased equates to indifference in that respect, with each State that is a party to the Convention being free to lay down the rules that it considers appropriate in relation to that matter.

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