OPINION OF ADVOCATE GENERAL
delivered on 2 December 2021 (1)
(Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France))
(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction in matters of succession – Subsidiary jurisdiction – Deceased person habitually resident in a third State at the time of death – Deceased person who is a national of a Member State and has assets in that State – Obligation of the court to declare of its own motion that it has jurisdiction)
1. The Cour de cassation (Court of Cassation, France) asks the Court of Justice whether the authorities of a Member State (2) in which the deceased has assets must establish of their own motion their jurisdiction to rule on the succession as a whole under Article 10 of Regulation No 650/2012.
2. The uncertainty has arisen in the course of a dispute over succession rights between the children of a deceased French citizen whose last habitual residence in France is contested, on the one hand, and the person who was the deceased’s wife (but not the mother of his children) at the time of his death, on the other.
3. None of the parties disputes the nationality of the deceased at the time of his death, or that he was the owner of a property situated in France. The disagreement lies only in where he was habitually resident when he died.
4. At first instance, a French court declared that it had jurisdiction to hear and determine the claim brought by the deceased’s children, who had applied for the appointment of an administrator for the estate.
5. On appeal, however, the relevant court held that the French judicial authorities lacked jurisdiction over the succession as a whole, as the deceased’s last place of residence had been in the United Kingdom.
6. On appeal in cassation, the appellants claim that, in any event, the French courts should have declared that they had jurisdiction on their own initiative, which is the issue that forms the subject of the referring court’s question.
I. Applicable law. Regulation No 650/2012
7. According to recital 7:
‘The proper functioning of the internal market should be facilitated by removing the obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications. In the European area of justice, citizens must be able to organise their succession in advance. The rights of heirs and legatees, of other persons close to the deceased and of creditors of the succession must be effectively guaranteed.’
8. In accordance with recital 23:
‘In view of the increasing mobility of citizens and in order to ensure the proper administration of justice within the Union and to ensure that a genuine connecting factor exists between the succession and the Member State in which jurisdiction is exercised, this Regulation should provide that the general connecting factor for the purposes of determining both jurisdiction and the applicable law should be the habitual residence of the deceased at the time of death …’
9. Recital 27 states:
‘The rules of this Regulation are devised so as to ensure that the authority dealing with the succession will, in most situations, be applying its own law. This Regulation therefore provides for a series of mechanisms which would come into play where the deceased had chosen as the law to govern his succession the law of a Member State of which he was a national.’
10. Recital 30 states:
‘In order to ensure that the courts of all Member States may, on the same grounds, exercise jurisdiction in relation to the succession of persons not habitually resident in a Member State at the time of death, this Regulation should list exhaustively, in a hierarchical order, the grounds on which such subsidiary jurisdiction may be exercised.’
11. According to recital 43:
‘The rules of jurisdiction laid down by this Regulation may, in certain cases, lead to a situation where the court having jurisdiction to rule on the succession will not be applying its own law. …’
12. Recital 57 recalls that:
‘The conflict-of-laws rules laid down in this Regulation may lead to the application of the law of a third State. In such cases regard should be had to the private international law rules of that State. If those rules provide for renvoi either to the law of a Member State or to the law of a third State which would apply its own law to the succession, such renvoi should be accepted in order to ensure international consistency. …’
13. Article 4 (‘General jurisdiction’) states:
‘The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole.’
14. Article 10 (‘Subsidiary jurisdiction’) provides:
‘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.’
15. Article 15 (‘Examination as to jurisdiction’) states:
‘Where a court of a Member State is seised of a succession matter over which it has no jurisdiction under this Regulation, it shall declare of its own motion that it has no jurisdiction.’
16. Article 20 (‘Universal application’) reads:
‘Any law specified by this Regulation shall be applied whether or not it is the law of a Member State.’
II. Facts, dispute and questions referred
17. XA, a French national, died in France on 3 September 2015, leaving as his successors his wife, TP, and his three children, YA, ZA and VA (‘the A siblings’), from a first marriage.
18. The A siblings brought an action against TP before the president of a tribunal de grande instance (Regional Court, France), acting in his capacity as judge dealing with applications for interim measures, for the appointment of an administrator for the estate.
19. In that application, they claimed that the French courts had jurisdiction under Article 4 of Regulation No 650/2012, on the ground that their father had been habitually resident in France at the time of his death.
20. The court of first instance held this to have been proved to be the case and declared that it had jurisdiction to hear and determine the dispute. TP appealed that decision to the Cour d’appel de Versailles (Court of Appeal, Versailles, France).
21. Having formed the view that that the deceased had last been habitually resident in the United Kingdom, the appeal court held that, in accordance with Article 4 of Regulation No 650/2012, the French courts lacked jurisdiction over the case.
22. Before the Cour de cassation (Court of Cassation), the A siblings argue that:
— The appeal court should have determined of its own motion whether it had jurisdiction under Article 10 of Regulation No 650/2012. (3)
— The deceased was a French national and the owner of assets located in France. (4)
— Even if his last habitual residence had not been in France, the French courts would have subsidiary jurisdiction to rule on the succession as a whole, since assets from the estate were located in France and the deceased held French nationality at the time of his death.
— The provisions of Regulation No 650/2012 are a matter of public policy and the court must apply them of its own motion.
23. It is on this basis that the Cour de cassation (Court of Cassation) has referred the following question to the Court of Justice:
‘Must Article 10(1)(a) of [Regulation No 650/2012]… be interpreted as meaning that, where the habitual residence of the deceased at the time of death is not located in a Member State, the court of a Member State in which the deceased had not established his habitual residence, but which finds that the deceased had the nationality of that State and held assets in it must, of its own motion, examine whether it has subsidiary jurisdiction under that article?’
III. Procedure before the Court
24. The request for a preliminary ruling was registered at the Court on 1 December 2020.
25. Written observations have been lodged by TP, the governments of Spain, France and the Czech Republic and the European Commission.
26. It was not considered necessary to hold a hearing.
A. Preliminary matter
1. Ground of appeal in cassation and the premiss on which it is based
27. The appeal in cassation criticises the appeal court for not having determined of its own motion whether it had jurisdiction under Article 10 of Regulation No 650/2012, when it should (allegedly) have done so.
28. The analysis of that ground of the appeal in cassation falls logically to the referring court, which is in the best position to examine all aspects of the dispute at the lower instances.
29. Nonetheless, as I have already stated, a reading of the appeal court’s judgment makes it possible, at the very least, to consider whether that judgment applied Article 10 of Regulation No 650/2012 in any way.
30. After all, the judgment under appeal reproduces Article 10 of Regulation No 650/2012 under the heading ‘Sur la compétence’ (jurisdiction), and thus places on record, on its own initiative, a provision that was not relied on by the parties.
31. It is true that the appeal court then goes on to set out a line of reasoning that relates to Article 4 of Regulation No 650/2012. However, it might not be entirely inconceivable that it examined its jurisdiction under Article 10 of the same regulation, only to conclude (implicitly) that there were no grounds for applying it.
32. If the appeal court did carry out that examination, it would have ascertained whether it had international jurisdiction under Article 10 of Regulation No 650/2012. The only point open to debate would be its understanding of that provision (5) or whether it made an error in respect of the applicability of that provision to this case.
2. Definition of the question
33. Subject to that caveat, I shall address the question referred as it has been raised, that is to say by focusing on whether it is for the court concerned to draw the consequences of Article 10 of Regulation No 650/2012 of its own motion, a task which the appeal court is said not to have performed.
34. Before I do so, I must make two points.
(a) ‘Of its own motion’
35. The first concerns the ‘own-motion’ application of the provision of EU law in question.
36. Apart from the fact that it concerns the distribution of roles between the court and the parties to a dispute, this concept is not clear-cut. The question as to which tasks the court must perform of its own motion and which fall to the parties to the proceedings does not have a single answer. The answer varies from one legal system to another and, within each legal system, according to factors such as the type of proceedings, the subject matter of the dispute or the instance which the proceedings have reached. It also changes, of course, over time. (6)
37. In the present case, effecting ‘application of its own motion’ would require the court to resolve the issue of its jurisdiction on the basis of a provision other than that invoked by the litigants but without changing the scope of the dispute or relying on facts different from those which both parties regards as established.
38. If it acted in this way, the court:
— Would confine itself to replacing a legal ground which it considers to be erroneous with another which, although not having been put forward by the applicant, the court itself considers to be more correct.
— Would not alter the applicant’s claim, would not itself introduce facts or ascertain whether there are other new or different facts; would confine itself to interpreting an applicable provision despite the fact that this has not been relied on, and would not therefore abandon the passivity that typically characterises the court’s role in a civil dispute.
— Would not infringe the principle that the parties delimit the scope of the proceedings, would not rule ultra petita or make it impossible for a party to present a defence (although it would have to inform the parties beforehand of the existence of a ratio decidendi different from that which they have put forward so that they can express their views on this). (7)
39. As so demarcated, however, the court’s actions could give rise to misgivings, inasmuch as they will inevitably have the ultimate effect of benefiting one party (in this case, the party that brought the dispute before the French court) and prejudicing the other (the party contesting the international jurisdiction of that court).
40. However, where, in order to rule on its own jurisdiction, it uses exclusively objective information which is not disputed by any of the parties, the court does not privilege one litigant to the detriment of the other, (8) but acts in the interests of justice and the correct application of an instrument designed to distribute jurisdiction between the Member States.
(b) Arguments of the referring court
41. The second point relates to the scope of the question referred, which seeks, in essence, to determine:
— whether the court before which the applicants have brought a claim on the basis of Article 4 of Regulation No 650/2012 must examine of its own motion whether it has jurisdiction under Article 10; or
— whether, conversely, it was for the applicants to rely on Article 10 and, if they didn’t, whether the court may dismiss the action (because it lacks jurisdiction).
42. Although the question revolves around Article 10 of Regulation No 650/2012, in so far as this establishes subsidiary jurisdiction, the referring court does not restrict its reasoning to that article but puts forward arguments that can be drawn from other articles in that regulation or from the system of international jurisdiction as a whole. (9)
43. In keeping with those arguments, my analysis will have to extend beyond a mere examination of Article 10 of Regulation No 650/2012.
B. International jurisdiction under Regulation No 650/2012. Article 10
1. Structure of the system
(a) Jurisdictional criteria and the relationship between them
44. In Chapter II, Regulation No 650/2012 establishes a system of international jurisdiction for the succession as a whole which is based on criteria which are both objective (the last habitual residence of the deceased, the presence of assets from the estate in a Member State) (10) and subjective (choice of forum by the parties concerned and acceptance of the ground of jurisdiction by the parties to the proceedings). (11)
45. This is a closed system. (12) Within the material scope of Regulation No 650/2012, the jurisdiction of the courts of the Member States derives exclusively from the uniform rules which that regulation lays down, to the exclusion of all others. (13)
46. Based primarily on the objective of ‘ensur[ing] the proper administration of justice within the Union and … ensur[ing] that a genuine connecting factor exists between the succession and the Member State in which jurisdiction is exercised’, (14) Regulation No 650/2012:
— Confers jurisdiction in the first place on the courts of the Member State of the deceased’s last habitual residence. As a rule, those courts are to apply their own law. (15)
— Offers a solution for cases in which the deceased’s last habitual residence is located in a third State but there is a connection with a Member State that is sufficient to warrant the conferral of jurisdiction on the authorities of the latter State. As a rule, those authorities are to apply the law of the third State. (16)
— Suggests mechanisms for bringing together forum and ius in cases where: (a) because of a choice of law by the deceased, (17) the authority of the Member State of the deceased’s last habitual residence would have to apply a law other than its own if the dispute were brought before it; or (b) the conditions are met for a European Union court to adjudicate and the deceased, who was last habitually resident in a third State, chose as the applicable law that of a Member State of which he or she was a national.
47. In Regulation No 650/2012, the relationship between the grounds of jurisdiction is not strictly hierarchical, as it might appear to be, (18) since each caters for a different factual situation: either the deceased was last habitually resident in a Member State of the European Union (the assumption informing Article 4) or he or she wasn’t (the assumption informing Article 10).
48. The resulting jurisdiction in either of those two cases may be excluded only if the deceased opted for a particular law (the assumption informing Article 5 et seq. of Regulation No 650/2012).
49. In this context, free will, which is subject to strict conditions, is not in the nature of a principle or a fulcrum of the system for the conferral of jurisdiction, and the reason for this lies in the function which free will performs, which is different from that which it performs in other contexts.
50. The choice-of-court agreement that may be reached between the parties — the acceptance, express or tacit as the case may be, of the jurisdiction of the court seised — is subject first and foremost to the condition that there should be a choice of law by the deceased. The possibility of selecting the ground of jurisdiction actually comes into being because the deceased made that choice.
51. Regulation No 650/2012 intends that possibility as a pragmatic approach, serving to avoid the dissociation between forum and ius that arises from a choice by the deceased in favour of a law which, by definition, is not that of the authority on which the legislature confers jurisdiction in the first instance. (19)
52. The right of the parties concerned by the succession to select the ground of jurisdiction does not therefore speak to a conviction as to the virtues or advantages inherent in self-regulation. This is, as I have said, very limited: if the deceased does not impose on his or her successors in title the place where the succession will necessarily be dealt with, (20) it is indeed up to him or her to arrange for this not to happen in the Member State where he or she was last habitually resident (or, subject to certain conditions, in the Member State where he or she had assets).
53. Revoking the jurisdiction of the objectively competent authority requires that the deceased should have chosen the applicable law and, in addition: either (a) that all of the parties concerned should give their consent; (21) or (b) that those that did not participate in that agreement should not challenge the ground of jurisdiction; (22) or (c) that all of those entering an appearance before the court should expressly accept its jurisdiction. (23) The refusal of a single person concerned to concur with the others is sufficient to exclude the jurisdiction of the Member State of which the deceased was a national.
54. In my opinion, the foregoing observations serve to qualify the assertion made by the referring court, in the view of which Articles 4 and 10 of Regulation No 650/2012 provide for rights at the disposal of the parties, as well as its inference that ‘it would defy logic if the court were required to examine a subsidiary ground of jurisdiction that the parties did not propose to invoke’. (24)
(b) Common rules for applying the criteria for determining jurisdiction. Article 15 of Regulation No 650/2012
55. In common with other instruments on judicial cooperation in civil matters, Regulation No 650/2012 contains provisions on the implementation of the rules of jurisdiction. Article 15, which carries the heading ‘Examination as to jurisdiction’, is one of them.
56. That article imposes on courts seised of a succession matter to declare that they have no jurisdiction on their own initiative in the case where they lack jurisdiction under Regulation No 650/2012. (25)
57. That provision was included, without further explanation, in the proposal for a Regulation presented by the Commission and prompted no subsequent comment or discussion. (26)
58. Given its likeness to similarly worded rules, (27) it may be noted that such a requirement:
— ensures that Regulation No 650/2012 is correctly applied, even in the case where a party does not contest jurisdiction, which it might not for various reasons; (28)
— is a guarantee for a defendant who has not appeared before the Court in a dispute;
— ensures that decisions adopted by an authority which does not have jurisdiction or whose jurisdiction does not meet the criteria laid down in Regulation No 650/2012 do not move freely within the European area of justice. (29)
59. Article 15 of Regulation No 650/2012 thus contributes towards the proper operation of judicial cooperation in succession matters in the European Union.
60. However, that provision does not automatically work in reverse, at least not according to its wording, inasmuch as it does not expressly require the courts of the Member States to apply the provisions of Regulation No 650/2012 of its own motion in order to affirm or confirm its jurisdiction under that text.
2. In particular, Article 10 in Regulation No 650/2012
61. Article 10 of Regulation No 650/2012 confers jurisdiction on the Member State (or Member States) in which the assets of the estate are located, in the case where the last habitual residence of the deceased was located in a third State.
62. That jurisdiction:
— Covers the entire succession, if the deceased was a national of the Member State at the time of death (30) or if he or she was habitually resident there in the five years prior to the point at which the court is seised. (31)
— Is otherwise confined to the assets which are located in the territory of the Member State. (32)
63. Within the system [of international jurisdiction], Article 10 of Regulation No 650/2012 serves two objectives:
— To ensure the uniformity of the rules of international jurisdiction in service of the mutual recognition of decisions between Member States. The legislature excluded any reference to rules of national law, listing exhaustively the situations in which the court of a Member State will exercise jurisdiction. (33)
— To guarantee access to justice for heirs and creditors where the location ‘has close links with a Member State on account of the presence of property’. (34)
64. The presence of assets (in itself or in conjunction with requirements relating to the assets themselves or the deceased) is a known jurisdictional criterion in comparative law. (35) In Regulation No 650/2012, it is in addition to the conditions as to the deceased’s nationality or place of residence which I have described. (36) Thus, a close connection with the Member State whose authority is seised is not debatable, even if the deceased’s last habitual residence was not in that State.
65. The description of the jurisdiction provided for in Article 10 of Regulation No 650/2012 as being ‘subsidiary’ does not mean that its prescriptive force is any less than that of Article 4. For that reason, I take the view that the court seised cannot disregard that provision, even if it has not been relied on by the party or parties.
66. Both rules are in fact equivalent: Article 10 confers jurisdiction in a case where the assumption informing Article 4 is absent and, for that reason, the latter simply does not apply.
67. The points of connection adopted by those provisions express a sufficient relationship between the situation and the forum: closer in the case of Article 4 and less so in the case of Article 10 (the difference being reflected in the schematic location of each provision). However, if the circumstance envisaged in Article 4 is not present, and those envisaged in Article 10 are, an obligation to draw the normative consequence of the latter provision obtains.
68. That inference is supported by the following arguments:
— Articles 4 and 10 of Regulation No 650/2012 operate in the same way in the event of a choice of law by the deceased; (37) in the event that jurisdiction is challenged by persons concerned who did not participate in an agreement conferring jurisdiction; (38) and in relation to the possibility of limiting the proceedings by excluding from them assets located in third States, if there is reason to believe that any decision given will not be recognised or enforced in such States. (39)
— Article 10 of Regulation No 650/2012 is literally an instruction to the national court, which is not the case with other provisions, such as Article 11, which authorises but does not compel the court to rule on a succession. Furthermore, unlike in the case of the latter provision, exercise of the jurisdiction provided for in Article 10 is not subject to the lack of jurisdiction or inactivity of the courts of another State.
69. The referring court submits as an argument to support a hypothetical rejection of the proposition that courts must apply Article 10 of Regulation No 650/2012 of their own motion that that provision constitutes a ‘derogat[ion] from the principle of the unity of jurisdiction and applicable law that informs the Regulation’. (40)
70. I do not agree with that reasoning. The purpose of bringing together forum and ius is not absolute; the legislature itself accepts that the two may become disconnected. (41) Furthermore, the mechanisms it creates to try to re-establish that alignment extend to the situation in which the court seised gives judgment under Article 10.
71. It must also be borne in mind that, if the last habitual residence of the deceased is not located in a Member State, Regulation No 650/2012 cannot by definition either impose or guarantee the jurisdiction of the courts of the country of that residence, or, still less, the forum/ius correlation.
72. Of the two possible options (reference to the grounds of jurisdiction provided for in national law or the establishment of a rule common to the Member States) the European legislature chose the second. In so doing, it also promotes the objective pursued by Regulation No 650/2012 of effectively guaranteeing the rights of heirs, legatees and other persons close to the deceased by facilitating their access to justice. (42)
C. Application of Article 10 of Regulation No 650/2012 by the court of its own motion or at the request of one of the parties
73. I return now to the referring court’s question: must the court declare that it has jurisdiction pursuant to a rule conferring jurisdiction not invoked by the parties and applicable to facts which, although present in the dispute and uncontested, have not been not relied on in order to establish such jurisdiction?
74. At first sight, Regulation No 650/2012 does not expressly lay down procedural rules for Article 10. It could be inferred from this that the legislature did not wish to harmonise such matters and left their regulation to whatever provision the domestic procedural law of each Member State may make in this regard.
75. It is my view, however, that such an inference would not be correct. To my mind, there are factors that give the lie to that formal argument and support a different proposition, in the case where the actions which the court takes on its own initiative come about in circumstances such as those at issue.
76. I shall set out below the grounds on which I base this view. I shall refer only in the alternative, in the event that my view is not shared by the Court, to the first proposition (to the effect that this is a matter to be left to the legislation of each Member State).
1. Arguments for own-motion application (in the circumstances of the present case)
77. I submit that, in the circumstances of the present case, the national court to which a case has been referred on the basis of Article 4 of Regulation No 650/2012 must declare of its own motion that it has jurisdiction under Article 10, even if the parties have not relied on that article.
78. My view is based on considerations linked: (a) first, to the requirement for a court to determine its own jurisdiction that is laid down in Article 15 of Regulation; and (b) secondly, to rulings given by the Court in relation to the factors which a court must consider when assessing its jurisdiction, in the even that this is challenged by a party.
79. As regards Article 15 of Regulation No 650/2012, this, as I have already noted, requires the court to carry out an analysis of its own motion in order to determine its lack of jurisdiction.
80. Now, when establishing whether it lacks jurisdiction ‘under this Regulation’, the court must examine all of the criteria laid down in Chapter II. It may declare of its own motion that it has no jurisdiction only if and to the extent that no provision in Regulation No 650/2012 confers jurisdiction on it. That examination is not, therefore, restricted to certain rules of the regulation or exclusively to the rule relied on by the party concerned.
81. I infer from this premiss that, if the court considers that there is a provision under which it does have jurisdiction, it may not have recourse to Article 15 of Regulation No 650/2012, which it must necessarily examine. Even if the provision on which its jurisdiction is based is not that invoked by the applicant, it would be excessively formalistic for it to close its eyes to another provision which, although not relied on, confers on it sufficient jurisdiction to proceed with the dispute. (43)
82. Regulation No 650/2012 does not specify the conditions for reviewing jurisdiction, be this of the court’s own motion or at the request of a party. In particular, it says nothing about the information which the court will take into consideration or how it must identify that information.
83. There is nonetheless some guidance in this regard in judgments given by the Court in connection with the reviewing of jurisdiction under Regulation (EC) No 44/2001. (44)
84. In accordance with those judgments, the task of the court carrying out that analysis is not confined to the applicant’s allegations, but also includes all evidence of which the court is aware, although it is under no duty to investigate (either whether there is further evidence or whether this is reliable). (45)
85. The Court bases its position on the objective of the sound administration of justice, which underlies Regulation No 44/2001, and respect for the independence of the national court in the exercise of its functions. (46)
86. I see no reason why that case-law should be limited to the specific provision which it interprets, or to cases in which the examination of jurisdiction takes place at the request of a party and not of the court’s own motion. (47)
87. It therefore seems legitimate to interpret Article 10, in the light of Article 15 of Regulation No 650/2012, as meaning that those provisions do not oblige the court to look actively for a factual basis on which to rule on its jurisdiction in a particular dispute, but they do compel it to find, by reference exclusively to the uncontested facts, a basis for its jurisdiction which may be different from that invoked by the applicant. It is my view that, in this case, the court must declare of its own motion that it has jurisdiction.
2. No express answer in Regulation No 650/2012. Procedural autonomy and limits
88. In the event that the Court is not sufficiently convinced by the foregoing lines of reasoning, I shall examine in the alternative the reply which, as I have stated, (48) responds to the absence of explicit procedural rules in Article 10 of Regulation No 650/2012 by leaving it to the procedural law of each Member State to provide the answer to the question raised.
89. If one were to take this what might be called traditional (49) approach, it would be sufficient to apply the Court’s settled case-law to the effect that:
— The rules of EU law operate within the legal systems of the Member States.
— In the absence of relevant EU rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under EU law are a matter for the domestic legal order of each Member State, in accordance with the principle of the procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it in practice impossible or excessively difficult to exercise rights conferred by the EU legal order (principle of effectiveness)’. (50)
— The courts will apply the procedural rules laid down in their domestic legal order ‘only in so far as they do not compromise the raison d’être, the objective and the full effectiveness’ of the relevant provision of EU law. (51)
90. As I have said, Regulation No 650/2012 does not lay down specific procedural rules for Article 10. It does, however, for other provisions, in which it explicitly requires either a request from a party or intervention of its own motion by the authority seised. (52)
91. Construing the silence of Article 10 of Regulation No 650/2012 in this regard as an implicit reference to whatever provision may be made by the national legal systems would appear to be as defensible (as an approach in principle) as arguing that this is a deliberate exclusion rather than a mere oversight. If, in other parts of the same regulation, the reference to national procedural law is express (Articles 66 to 71), its absence in Article 10 could be interpreted as meaning that this matter is not left to the national legal systems. (53)
92. If it is accepted, hypothetically, that the referring court’s question concerning the division of roles between the court and the parties under Article 10 of Regulation No 650/2012 should be given the answer provided by the French legal system, the consequences for this case would be as follows:
— The examination of jurisdiction referred to in Article 10 of Regulation No 650/2012 would be carried out by the court of its own motion (54) if this is required by French law in the case of comparable actions brought under that law. (55)
— Conversely, that article would apply only when invoked by the party concerned if that is the approach taken in the case of comparable actions in domestic law, unless this would make it practically impossible or excessively difficult to exercise rights conferred by the EU legal order or would impede the useful effect of the provision under examination.
93. The referring court does not provide sufficient information on its domestic procedural law. (56) That being the case, any reflection on my part about whether the application of Article 10 of Regulation No 650/2012 exclusively at the request of a party is consistent with the principles of equivalence and effectiveness, and with respect for the useful effect of that provision, would be speculation.
94. In the light of the foregoing considerations, I suggest that the Court’s answer to the Cour de cassation (Court of Cassation, France), should be as follows:
Article 10(1)(a) 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 must be interpreted as meaning that, in the case where the deceased did not have his last habitual residence in any Member State of the European Union, the court of a Member State in which a dispute in a matter of succession has arisen must declare of its own motion that it has jurisdiction to settle the succession as a whole if, in the light of facts alleged by the parties which are not in dispute, the deceased was a national of that State at the time of his death and was the owner of assets located there.
1 Original language: Spanish.
2 Hereafter I shall use the term ‘Member State’ to refer to States bound by 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 enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 107). The Kingdom of Denmark and Ireland are not bound by that regulation; the United Kingdom of Great Britain and Northern Ireland, which was a member of the European Union at the time of the deceased’s death, was never bound by it.
3 According to the order for reference, that article was not relied on by either party at first instance or on appeal. However, a reading of the appeal court’s judgment would at the very least support the argument that Article 10 was not applied (see point 27 et seq. of this Opinion).
4 According to the information available, it would appear that XZ lived in the United Kingdom from the early eighties to August 2012, when he moved to France, where he died three years later. He was co-owner of two properties in the United Kingdom and held a 10% shareholding in a French company formed for the purpose of acquiring in France a property the purchase of which he financed in full and in which he was living at the time of his death.
5 The text of the Spanish version of Article 10 of Regulation No 650/2012, like the Portuguese version, refers to the Member State where ‘the assets of the estate’ (my emphasis) are located, which might suggest that the entire estate must be located in that State in order for the courts of that State to have jurisdiction. The same is not true, however, of the French wording, or of the wording of other language versions I have been able to consult. I am in no doubt that the latter versions are correct. This follows from the preparatory documents. See the commentary on Article 6 contained in 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, COM(2009) 154 final (‘the Commission Proposal’). It is also the logical interpretation, inasmuch as, otherwise, there would be no reason why the jurisdiction provided for in Article 10(1) should expressly cover the succession as a whole. Neither would there be any reason why the jurisdiction conferred by that same article should be restricted to assets of the estate which are located in the territory of the Member State concerned.
6 See in this regard L’office du juge- Études de droit comparé, edited by Chanais, C., Hess, B., Saletti, A. and van Drooghenbroeck, J.F., Bruylant, 2018. The same lack of uniformity can also be seen in the own-motion application of EU law, in particular in the field of consumer law, for example. In this connection, see Hess, B. and Taelman, P., ‘Consumer Actions before National Courts’, in Hess, B. and Law, S., Implementing EU Consumer Rights by National Procedural Law, Hart/Beck/Nomos, 2019, p. 95 et seq..
7 Regulation No 650/2012 does not preclude the court from giving both parties the opportunity to comment on the application of Article 10. On the contrary, doing so may be compulsory, according to the Court’s case-law on the need respect the requirements connected with the right to a fair trial. The parties must be able to be apprised of pleas in law raised by the court of its own motion, on which it intends to base its decision, and to discuss them: see, inter alia, the judgment of 21 February 2013, Banif Plus Bank (C‑472/11, EU:C:2013:88, paragraph 29) et seq..
8 I would add that the grounds of jurisdiction under Regulation No 650/2012 do not give the applicant a choice, as, for example, Articles 4 and 7 of 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 judgments in civil and commercial matters (OJ 2012 L 351, p. 1) do. This means that intervention by the court of its own motion does not authorise it to ‘remedy’ the mistake of a party which, having the advantage of choice, errs in its definition of the legal basis for jurisdiction and opts for an ‘inappropriate’ forum.
9 See paragraph 10 of the order for reference, concerning the closed nature of the system of international jurisdiction; and paragraph 11, concerning the forum/ius correlation as a principle of Regulation No 650/2012, the disposable nature of the grounds of jurisdiction and the scope of the obligation on courts to review their own jurisdiction.
10 Articles 4 and 10(1) (subject to the conditions which the latter lays down).
11 Articles 5, 7 and 9.
12 And one that is sufficient to settle any aspect of a succession, irrespective of where the assets of the estate are located. Only exceptionally does the legislature restrict the jurisdiction of the competent authority to the assets located in the Member State itself: see Article 10(2) of Regulation No 650/2012. Article 12(2) provides for the option of leaving certain assets out of the proceedings, but this is not because of a lack of international jurisdiction over them.
13 The legislature included a forum necessitatis in Article 11 in order to avoid any denial of justice.
14 Recital 23. In order to attain those objectives, the legislature relies first and foremost on recourse to the habitual residence of the deceased at the time of death as being the ‘general connecting factor’ determining both international jurisdiction and the applicable law.
15 Article 4 in conjunction with Article 21(1) of Regulation No 650/2012.
16 Article 10 in conjunction with Article 21(1) of Regulation No 650/2012.
17 In favour of the legal system of a Member State of which he or she was a national at the time of his or her death or at the time of making the choice: see Article 22(1).
18 There is, of course, a clear conceptual preference for the jurisdiction of the last place of residence of the deceased, in the case where this is located in a Member State, on the ground that such residence creates a stronger link (between the succession and the forum) than other factors.
19 Recitals 27 and 28 of Regulation No 650/2012. Allowing the parties to choose is one of the mechanisms — although not the only one — for enabling the authority hearing the dispute to deal with or rule on the succession in accordance with its own law.
20 A number of other conditions must also be met: see the following point.
21 Article 5 in conjunction with Articles 6(b) and 7(b) of Regulation No 650/2012.
22 Article 9 of Regulation No 650/2012.
23 Article 7(c) of Regulation No 650/2012.
24 Order for reference, paragraph 11.
25 It does not, however, provide for a penalty in the event that the requirement is disregarded.
26 The Commission Proposal, Article 11. Following a proposal from the European Parliament, the clarification was made that the matter referred to in that provision must ‘relate to a succession upon death’: see Article 11 of the preliminary draft legislative resolution of the European Parliament of 6 March 2012, document A7-0045/2012.
27 The requirement for courts to review their jurisdiction of their own motion dates back to the 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 in OJ 1998 C 27, p. 1). It exists in all subsequent regulations conferring international jurisdiction, in whatever field. The scope of the rule may vary but the legal consequence prescribed does not: a court which does not have jurisdiction must declare this of its own motion.
28 Without going into further detail, because the proceedings are not adversarial.
29 An own-motion declaration of lack of jurisdiction acts as a necessary accessory to ‘make up for’ the fact that the jurisdiction of the court of origin is not reviewed in the case where the court of another State must recognise and declare enforceable the former court’s decision. See Article 40 of Regulation No 650/2012, which lists exhaustively the grounds for not recognising a decision, and Article 52, which extends those grounds to the refusal or revocation of a declaration of enforceability.
30 Article 10(1)(a) of Regulation No 650/2012.
31 Article 10(1)(b) of Regulation No 650/2012.
32 Article 10(2) of Regulation No 650/2012.
33 Recital 30 of Regulation No 650/2012. See also recital 13 of the Commission Proposal.
34 This is the form of words used by the Commission in the explanatory memorandum to its proposal, under point 4.2. The final version of Regulation No 650/2012 is more concise: see recital 7.
35 See, for example, Paragraph 105 in conjunction with Paragraph 343 of the Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit, FamFG (German Law of procedure in matters relating to family and voluntary jurisdiction); in Spain, Article 22c(g) of Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial (Basic Law 6/1985 of 1 July 1985 on the judiciary); in Italy, Article 50 of the Legge 31 maggio 1995, n. 218 (Law governing private international law).
36 I would recall that, without one of those elements, the scope of the jurisdiction is restricted to the assets present in the territory of the Member State in which the court hearing the case is situated, in accordance with Article 10(2) of Regulation No 650/2012.
37 Pursuant to Article 6 of Regulation No 650/2012, and depending on whether the circumstances are those provided for in point (a) or point (b), the court has the same power to decline jurisdiction, and the same obligation to do so, whether its jurisdiction derives from Article 4 or Article 10. In accordance with Article 8, if the parties decide to settle the succession amicably out of court in the Member State whose law had been chosen by the deceased, the court which opened succession proceedings of its own motion under Article 4 or Article 10 must close them.
38 Article 9(2) of Regulation No 650/2012.
39 Article 12(1) of Regulation No 650/2012. In practice, the recognition in a third State of a decision adopted on the basis of jurisdiction under Article 10 is likely to generate more misgivings than one founded on Article 4. However, the option provided for in Article 12 is not confined to the former scenario.
40 Paragraph 11 of the order for reference.
41 Without going into further detail, it does so directly in recital 43, and indirectly in recital 7, of Regulation No 650/2012.
42 See point 63 of this Opinion.
43 In point 103 of the View delivered in Mercredi (C‑497/10 PPU, EU:C:2010:738), relating to Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1), Advocate General Cruz Villalón also drew the inference that the system imposes on courts the requirement to base their jurisdiction of their own motion on Regulation No 2201/2003. He argued that the court’s duty does not stop at the examination as to jurisdiction provided for in Article 17 of Regulation No 2201/2003, equivalent to Article 15 of Regulation No 650/2012. He adduced no further evidence for his reply, since that proposed could clearly be found (‘certainly’) in the logic of the system itself; in particular, he did not confine his reply to the fact that that case involved the interests of the child.
44 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).
45 See the judgments of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 64); and of 16 June 2016, Universal Music International Holding (C‑12/15, EU:C:2016:449, paragraph 45). These concerned Article 5(3) of Regulation No 44/2001.
46 Cited above.
47 See footnote 7 of this Opinion, concerning the duty of the national court to give the parties an opportunity to comment on the evidence on which it will base its decision, where this is required in the interests of respect for the adversarial principle.
48 Point 74 of this Opinion.
49 There are abundant examples of this approach. In the context of instruments for judicial cooperation in civil matters, see, for example, the judgments of 8 November 2005, Leffler (C‑443/03, EU:C:2005:665, paragraphs 49 to 51); of 15 October 2015, Nike European Operations Netherlands (C‑310/14, EU:C:2015:690, paragraph 28); of 9 November 2016, ENEFI (C‑212/15, EU:C:2016:841, paragraph 30); and of 8 June 2017, Vinyls Italia (C‑54/16, EU:C:2017:433, paragraphs 25 to 27); or the order of 28 April 2016, Alta Realitat (C‑384/14, EU:C:2016:316, paragraphs 80 to 85).
50 See, among many, the judgment of 20 May 2021, X (LPG Road Tankers) (C‑120/19, EU:C:2021:398, paragraph 69).
51 See the order of 28 April 2016, Alta Realitat (C‑384/14, EU:C:2016:316, paragraph 85). The form of words reproduced is sometimes associated with the principle of effectiveness. To my mind, it has to do rather with protection of the useful effect of the applicable instrument: see in the same vein Szpunar, M., ‘L’effet utile dans la jurisprudence de la Cour de justice en matière de droit international privé’, Travaux du Comité Français de Droit International Privé, 2018-2020, pp. 153 et seq..
52 Examples of the former are Article 6(a) and Article 12(1) of Regulation No 650/2012; an example of the latter is Article 15 thereof.
53 See also point 77 et seq. of this Opinion.
54 As I stated earlier, the meaning of the expression ‘of its own motion’ is not clear-cut. It will be for the French legal system to establish the scope of any obligation on the court to apply the provision of EU law on its own initiative (it will decide, for example, whether the court is obliged to investigate the facts determining its jurisdiction or whether it can or must require the party concerned to prove them).
55 The national provision the procedural rules applicable to which will be compared with those governing Article 10 of Regulation No 650/2012 will have to be identified in the light of what has been said about that provision and the adjective ‘subsidiary’ qualifying the jurisdiction which it confers.
56 Unless I am mistaken, the Cour de cassation (Court of Cassation) has given decisions concerning the application of EU rules of private international law irrespective of whether this is requested by a party. Thus, the judgment of the Cour de cassation, Chambre civile 1 (Court of Cassation, First Civil Chamber, France), of 22 February 2005, 02-20.409, which has been the subject of extensive academic commentary, set aside the appeal court decision in which that court did not apply of its own motion Article 2(1)(b) of Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (OJ 2000 L 160, p. 19). It is not clear on what procedural basis the judgment in cassation is based. More recently, the same court ruled in favour of the own-motion application of an EU conflict-of-laws provision, Article 6 of Regulation (EC) No 864/2007 of the European Parliament and the Council of 11 July 2007 on the law applicable to non-contractual obligations (OJ 2007 L 199, p. 40). In so doing, it relied on Article 12 of the code de procédure civile (Code of Civil Procedure), in accordance with which ‘le juge tranche le litige conformément aux règles de droit qui lui sont applicables’ (‘the court shall decide the case in accordance with the rules of law applicable to it’) and on the EU law principles of primacy and effectiveness: see the judgment of the Cour de cassation, Chambre civile 1 (Court of Cassation, First Civil Decision), of 26 May 2021, 19-15.102. I do not, however, have any information confirming that this is settled case-law.