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DEI / Commission
Aide d'État
Le Tribunal annule les décisions par lesquelles la Commission a constaté qu’une sentence arbitrale fixant un tarif d’électricité prétendument préférentiel ne comportait pas l’octroi d’un avantage au producteur d’aluminium Mytilinaios

Altice Europe / Commission
Concurrence
Le Tribunal rejette le recours d’Altice Europe contre la décision de la Commission par laquelle lui ont été imposées deux amendes d’un montant total de 124,5 millions d’euros dans le cadre de l’acquisition de PT Portugal

On 9 September 2021, the Court of Justice handed down its judgment in UM (C‑277/20), in which, for the first time, it sheds light on doubts concerning the applicability of the EU Succession Regulation to donations mortis causa. The preliminary questions originate from the Austrian Supreme Court (Oberster Gerichtshof). In the judgment, the Court of Justice shared the view presented earlier this year in the opinion delivered by Advocate General de la Tour. This post is a slightly modified version of an Op-Ed published on EU Law Life.

Facts of the Case

ZL, a German national, had entered into a contract with his son UM and UM’s wife XU in 1975. Under the contract, where Austrian law was chosen as applicable, it was provided inter alia that ZL undertakes to erect a house on his immovable property located in Austria which would transfer mortis causa to XU and UM in equal shares. The transfer would occur on the death of ZL, but not before the house has been completed. If UM and XU were to divorce, the transfer mortis causa would be construed as having been made to UM alone. ZL expressly declared that the immovable property was to be transferred as a donation mortis causa. ZL authorised the transfer of ownership to be recorded in the Austrian Land Register upon production of a death certificate and proof that the conditions listed in the contract were fulfilled. Prior to the death of ZL in 2018, UM and his wife had divorced, and she had subsequently died.

Succession proceedings were commenced in Germany, the place of ZL’s habitual residence. For the purposes of those proceedings, UM applied to the court in Austria to be registered as the owner of the immovable property in question. Before the case reached the Austrian Supreme Court, the courts of two instances took the view that Austrian law is applicable and, therefore, in the absence of proof of satisfaction of the conditions laid down in the contract, rejected UM’s application. The Austrian Supreme Court decided to submit a preliminary request to the Court of Justice to clarify whether the donation mortis causa might be classified as an agreement as to succession covered by the material scope of the Succession Regulation and, in the affirmative, whether the choice of Austrian law as applicable remains valid.

Donation Mortis Causa as an Agreement as to Succession

To understand the first question posed to the Court of Justice, it is important to recall that pursuant to Article 3(1)(a) of the Succession Regulation, “succession” is defined as “succession to the estate of a deceased person”. It covers “all forms of transfer of assets, rights and obligations by reason of death”. This transfer may be “through intestate succession” or “under a disposition of property upon death”. At the same time, a disposition of property upon death means, inter alia, an “agreement as to succession” (Article 3(1)(d)), which is “an agreement … which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement” (Article 3(1)(b)).

Having the above in mind, the Court of Justice noted that the notion of an agreement as to succession must be given an autonomous interpretation (para. 29) and that it “refers generally to any agreement which, inter alia, creates rights to the future” estate (para. 30). The Court of Justice further cited the definition of succession provided for in Article 3(1)(a) of the Succession Regulation to conclude that “a contract under which a person provides for the future transfer, on death, of ownership of immovable property belonging to him or her and which confers rights in his or her future estate on other parties to that contract, constitutes an “agreement as to succession” within the meaning of Article 3(1)(b)” of the Regulation (para. 32). Referring to its previous judgment in Oberle (C-20/17), the Court of Justice stated that its conclusion is supported by the principle of unity of the succession (para. 33).

The Court also recalled that Article 1(2)(g) of the Succession Regulation excludes from its scope assets transferred otherwise than by succession, for example gifts, but it noted that this exclusion should be interpreted strictly (para. 34). As a result, where “a disposition of property contained in an agreement relating to a succession consists (…) in a donation, but does not take effect until the death of the deceased”, it is covered by the scope of the Regulation (para. 35).

When it comes to the differentiation between donations inter vivos and mortis causa, the opinion is more elaborate than the judgement. It even refers to Article 1(2)(d) of the 1989 HCCH Succession Convention and its explanatory reportunderlying that even though the Convention never entered into force it inspired many provisions of the Regulations (para. 38 of the opinion). As a result, it plays an important role while interpreting the Regulation itself. The report states that the notion of “disposition of property upon death” excludes inter vivos dispositions having immediate proprietary effect. When it comes to disposition of property upon death “it is upon the death of the person so disposing, and not in any respect at any earlier time, that the disposition (or transfer) takes place” (para. 41 of the explanatory report).

The opinion indicates also that Article 1(2)(g) of the Succession Regulation should be read together with recital 14 thereof, which explains that the law applicable to the succession “determines whether gifts or other forms of dispositions inter vivos giving rise to a right in rem prior to death should be restored or accounted for the purposes of determining the shares of the beneficiaries” (para. 36 of the opinion). This suggests that donations excluded from the scope of the Regulation are only those that might be classified within a broader term of “dispositions inter vivos giving rise to a right in rem prior to death”. A contrario, dispositions giving rise to a right in rem after the death are not covered by the exclusion provided for in Article 1(2)(g) of the Succession Regulation. The Court of Justice seems to share this view but does not justify it in such detailed manner as the opinion.

Given the above, the Court of Justice concluded that “a contract under which a person provides for the future transfer, on death, of ownership of immovable property belonging to him or her to other parties to the contract is an agreement as to succession” within the meaning of the Succession Regulation. As a result, the agreement at hand should be covered by the material scope of the Succession Regulation.

Choice of the Applicable Law to the Donation Mortis Causa

Knowing that, the second question that the Court of Justice had to answer was whether it is possible to choose the law applicable to the succession of an asset indicated in the donation mortis causa, as in the contract at hand the Austrian law was chosen as applicable.

It must be noted that, in accordance with the Succession Regulation, the law applicable to succession is the law of the last habitual residence of the deceased (Article 21(1)), subject to the operation of the escape clause (Article 21(2)) unless the deceased has chosen the law applicable in the disposition of property upon death in accordance with Article 22. The Regulation contains also transitional provisions, as according to Article 84 thereof its rules apply from 17 August 2015 (Article 84) but only to the succession of persons who died from that date onwards.

Pursuant to Article 83(2) of the Regulation, where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice remains valid if it meets the conditions laid down in the Regulation itself or in the rules of private international law which were in force, at the time the choice was made, in the state of either the “habitual residence” or (one of) “nationality” of the deceased.  That is the expression of favor validitatis principle, which aims to prevent the choice of applicable law to succession made in the past from becoming invalid due to the change in law, namely, replacement of domestic international succession rules by the Succession Regulation.

The doubt before the Court of Justice was whether Article 83(2) of the Succession Regulation may apply to the choice of the applicable law (namely, Austrian law) contained in the donation mortis causa contract signed in 1975. The answer was negative. The Court of Justice held that Article 83(2) concerns only “the validity of the choice of law applicable to the succession as a whole”, whereas (it seems that) “the choice of Austrian law concerned only the agreement as to succession concluded by the deceased in the main proceedings in respect of one of his assets and not the succession as a whole, with the result that the condition for applying Article 83(2) of that regulation cannot be considered satisfied in such circumstances (para. 39)”.

This seems a reasonable conclusion, provided that the Succession Regulation is built on the unitary principle, meaning that one single law governs succession. This principle applies functionally, meaning that one single law governs succession “from the opening of the succession to the transfer of ownership of the assets forming part of the estate to the beneficiaries” (recital 42 of the Regulation) and territorially, meaning that one single law governs succession “irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third State” (recital 37).

Additionally, it might be added that the choice of applicable law with respect to agreements as to succession (Article 25) relates only to the question of their admissibility, substantive validity, and their binding effects between the parties, including the conditions for their dissolution. This should not be equated with the choice of law applicable to succession as a whole (which governs succession in general, for example, the question of liability for debts – Article 23(2)(g)).

Conclusion

To conclude, it was rightly confirmed in the UM judgment that, in accordance with the Succession Regulation, a donation mortis causa giving rise to a right in rem after the death of the donor constitutes an agreement as to succession within the meaning of this regulation. Additionally, in general, in a succession case there might be more than one disposition of property upon death, including agreements as to succession providing for donations mortis causa of particular assets, but there can only be one single law applicable to succession as a whole, which governs “all civil-law aspects of succession to the estate of a deceased person” with respect to all the assets of the deceased.

Advocate General Rantos opined two weeks ago in C-581/20 Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad v TOTO SpA – Costruzioni Generali et al. – I propose we shorthand the case as ‘TOTO’.

Following public procurement, the Polish treasury granted the works for the construction of a stretch of motorway to an Italian consortium. In the contract, choice of court is made for Poland. The necessary guarantees eg for payment of fines in the event of late completion, were underwritten by a Bulgarian insurance company, whose guarantee is subject to Polish law. The consortium  to no avail sought negative declaratory relief (with a view to obtaining a finding that no fines are due under the contract) and injunctive relief (with a view to prohibiting the Polish authorities from exercising the guarantee) with the Polish court with substance matter jurisdiction. However it subsequently secured the injunctive relief from a Bulgarian court with Article 35 Brussels Ia provisional measures jurisdiction. This relief expressed itself inter alia in custodial attachment of the guarantees which the Polish authorities had sought to exercise with a European Order for Payment form. That Bulgarian relief is now before the Bulgarian Supreme Court.

The questions before the court are  whether the provisional measures can at all be ordered under the A35 gateway given that they might concern acta iure imperii and not civil and commercial matters; and if the matter is within the scope of BIa, whether the A35 court may still order such measures if the court with subject-matter jurisdiction has denied them. Finally, whether if the issue is within the scope of BIa, the ordinarily applicable Bulgarian rule that no such relief may be ordered against public authorities, must be set aside.

The Advocate-General suggests the Court settle the questions mainly by recourse to the lis pendens rule of A29 ff of the Regulation, rather than by the alternative of focusing on the ‘provisional’ nature of the measures imposed by the A35 court. A29 ff do not limit their application to substance matter proceedings hence if and when the lis pendens conditions are met, the court last seized must (identical cases) or may (related cases) relinquish its jurisdiction. The opposite is true, as well: if the A35 court has been seized first, the court with subject-matter jurisdiction has been gazumped at least for provisional measures.

The AG also (55 ff) suggests that choice of court must be read to include authority for the chosen court to issue provisional measures, but not (unless expressly agreed; an issue of contractual interpretation which must be left to the national judge to assess) the exclusion of other courts to exercise their A35 jurisdiction.

Finally if the court with subject-matter jurisdiction has taken a definitive decision viz the provisional measures, that decision travels under Title III BIa and A45 does not seem to offer room to object to recognition and enforcement. Should that decision not yet be definitive, the ordinary lis pendens rules must apply.

This is a case with rather important contractual drafting and civil procedure consequences.

Geert.

EU Private International law, 3rd ed 2021, 2.512ff, 2.550 ff, 5.584 ff.

 

Opinion Rantos AG this morning in C-581/20 TOTO: Brussels Ia, Jurisdiction.
Relationship (including lis pendens) between A35 provisional measures court, and court with substantive jurisdiction.https://t.co/ei9WcXeUGY pic.twitter.com/8q8IAVCbvD

— Geert Van Calster (@GAVClaw) September 9, 2021

I am delighted to announce the publication of the last edition of the Code de droit international privé luxembourgeois. The main purpose of the book is to gather all the norms applicable in Luxembourg in the field (international conventions, European regulations and national legislation).

A new feature of the book is to include references to case law. Now that Luxembourg courts have made many of their judgments publicly available, it was possible to identify many cases which have applied the most important of these norms and offered interesting interpretations. The book also identifies interesting cases in those fields where the law is entirerly judge made, such as choice of law in filiation or matrimonial matters (for anybody married before the entry into force of the Matrimonial Regulations).

The code is a perfect companion to my treatise on Luxembourg private international law. The first volume, which is dedicated to choice of law in the fields of obligations, property and corporations, was published a year ago (Droit international privé luxembourgeois, vol. 1 : Conflits de lois – Théorie générale, Obligations, Biens, Sociétés).

The next volume will be dedicated to international litigation and arbitration in Luxembourg, and will hopefully be published soon after the Luxembourg parliament will pass a new law on arbitration.

République tchèque / Pologne
Environnement et consommateurs
Parce qu’elle n’a pas cessé les activités d’extraction de lignite dans la mine de Turów, la Pologne est condamnée à payer à la Commission européenne une astreinte journalière d’un montant de 500 000 euros