Der »funktionsarme Aufenthalt« und die internationale Zuständigkeit für Erbscheinverfahren
Volume 85 (2021) / Issue 1,
pp. 76-105 (30)
21,00 € including VAT
International Jurisdiction in Simple Succession Cases with an »Habitual Residence of Minor Significance«. – In order to prevent inefficient parallel proceedings in international succession cases, the EU Succession Regulation concentrates jurisdiction in a single Member State. In the Oberle case (C-20/17), the ECJ decided that this jurisdiction also extends to non-contentious proceedings regarding the issuance of certificates of succession. In cases in which the deceased had moved abroad late in life, this could lead to a »remote justice«, as the certificate of succession would have to be issued there, even when the heirs and the assets are located in another Member State. This concerns in particular non-contentious succession cases which are of a simple nature, but such cases were not in the focus of lawmakers. The article shows that the Succession Regulation crafts solutions so as to avoid »artificial jurisdictions«. Whereas a flexible determination of the habitual residence is not a viable solution, there is room to allow proceedings in the Member State whose law is applicable by way of exception and thus to establish jurisdiction in that state. In the cases WB (C-658/17) and EE (C-80/19), the ECJ has shown another way of dealing with these cases and thereby enabling a citizen-friendly way of treating international succession cases.