Language of document : ECLI:EU:C:2021:531

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 1 July 2021 (1)

Case C277/20

UM

other party to the main proceedings:

HW, as administrator of the estate of ZL

(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))

(Reference for a preliminary ruling – Regulation (EU) No 650/2012 – Scope – Instruments effecting dispositions upon death – Concept of an ‘agreement as to succession’ – Inter vivos donations – Choice of law applicable to the succession – Transitional provisions – Article 83(2) to (4))






I.      Introduction

1.        This request for a preliminary ruling concerns the interpretation of Article 3(1)(b) and Article 83(2) 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. (2)

2.        The request has been made in the context of a challenge by UM, a German national, to the Austrian authorities’ rejection of his application for registration in the Land Register of title to immovable property located in Austria. UM claims to have acquired such title under an instrument of donation mortis causa, and wishes to rely on it for the purposes of succession proceedings commenced in Germany.

3.        The Court is therefore invited to rule, according to the proper classification of an inter vivos instrument of that kind, on the scope of Regulation No 650/2012 and the interpretation of its transitional provisions.

4.        I will set out the reasons why I consider that an instrument of donation mortis causa can be classified as an ‘agreement as to succession’ within the meaning of Article 3(1)(b) of Regulation No 650/2012, and the consequences which follow as regards the validity of the choice of applicable law, which is crucial to the jurisdiction of the court hearing the matter.

II.    Legal background

A.      Regulation No 650/2012

5.        Recitals 9, 11, 14, 37 and 49 of Regulation No 650/2012 state:

‘(9)      The scope of this Regulation should include all civil-law aspects of succession to the estate of a deceased person, namely all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession.

(11)      This Regulation should not apply to areas of civil law other than succession. For reasons of clarity, a number of questions which could be seen as having a link with matters of succession should be explicitly excluded from the scope of this Regulation.

(14)      Property rights, interests and assets created or transferred otherwise than by succession, for instance by way of gifts, should also be excluded from the scope of this Regulation. However, it should be the law specified by this Regulation as the law applicable to the succession which 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 for the purposes of determining the shares of the beneficiaries in accordance with the law applicable to the succession.

(37)      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.

(49)      An agreement as to succession is a type of disposition of property upon death the admissibility and acceptance of which vary among the Member States. In order to make it easier for succession rights acquired as a result of an agreement as to succession to be accepted in the Member States, this Regulation should determine which law is to govern the admissibility of such agreements, their substantive validity and their binding effects between the parties, including the conditions for their dissolution.’

6.        Article 1 of Regulation No 650/2012, which is headed ‘Scope’, provides in paragraphs 1 and 2(g):

‘1.      This Regulation shall apply to successions to the estates of deceased persons …

2.      The following shall be excluded from the scope of this Regulation:

(g)      property rights, interests and assets created or transferred otherwise than by succession, for instance by way of gifts, joint ownership with a right of survivorship, pension plans, insurance contracts and arrangements of a similar nature, without prejudice to point (i) of Article 23(2);’

7.        Article 3 of Regulation No 650/2012, which is headed ‘Definitions’, provides in paragraph 1(a), (b) and (d):

‘For the purposes of this Regulation the following definitions shall apply:

(a)      “succession” means succession to the estate of a deceased person and covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession;

(b)      “agreement as to succession” means an agreement, including an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement;

(d)      “disposition of property upon death” means a will, a joint will or an agreement as to succession;’

8.        Under Article 21 of Regulation No 650/2012, which is headed ‘General rule’ and is contained in Chapter III, concerning the ‘applicable law’:

‘1.      Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.

2.      Where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State.’

9.        Article 22(1) and (2) of Regulation No 650/2012, which is headed ‘Choice of law’, is worded as follows:

‘1.      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.

2.      The choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition.’

10.      Article 23 of that regulation, which is headed ‘The scope of the applicable law’, provides in paragraph 1 and paragraph 2(i):

‘1.      The law determined pursuant to Article 21 or Article 22 shall govern the succession as a whole.

2.      That law shall govern in particular:

(i)      any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries;’

11.      Article 25 of that regulation, which is headed ‘Agreements as to succession’, provides in paragraphs 1 and 3:

‘1.      An agreement as to succession regarding the succession of one person shall be governed, as regards its admissibility, its substantive validity and its binding effects between the parties, including the conditions for its dissolution, by the law which, under this Regulation, would have been applicable to the succession of that person if he had died on the day on which the agreement was concluded.

3.      Notwithstanding paragraphs 1 and 2, the parties may choose as the law to govern their agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between the parties, including the conditions for its dissolution, the law which the person or one of the persons whose estate is involved could have chosen in accordance with Article 22 on the conditions set out therein.’

12.      Article 83 of Regulation No 650/2012, which is headed ‘Transitional provisions’, provides in paragraphs 2 to 4:

‘2.      Where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in Chapter III or if it is valid in application of the rules of private international law which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed.

3.      A disposition of property upon death made prior to 17 August 2015 shall be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III or if it is admissible and valid in substantive terms and as regards form in application of the rules of private international law which were in force, at the time the disposition was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed or in the Member State of the authority dealing with the succession.

4.      If a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession.’

B.      Austrian law

13.      Paragraph 956 of the Allgemeines Bürgerliches Gesetzbuch (Civil Code), in the version applicable to the present case prior to the entry into force of the Erbrechtsänderungsgesetz 2015 (Law amending inheritance law 2015), (3) of 30 July 2015, was worded as follows:

‘A donation to be completed only after the donor’s death is valid as a legacy subject to compliance with the prescribed formalities. It can only be regarded as a contract if it is accepted by the donee, the donor has expressly renounced the power to revoke it and a written deed of donation is handed to the donee.’

14.      Paragraph 1(d) of the Notariatsaktsgesetz (Law on notarised acts), (4) of 25 July 1871, in the version applicable to the dispute in the main proceedings, states that a contract of donation without actual transfer must be recorded in a notarised act.

15.      Paragraph 26 of the Allgemeines Grundbuchsgesetz (Law on the Land Register), (5) of 2 February 1955, in the version applicable to the dispute in the main proceedings, provides:

‘(1)      Registrations and preliminary remarks can only be authorised based on a valid deed prepared in the prescribed form.

(2)      Deeds concerning the acquisition or variation of a right in rem must include a valid legal reason.’

16.      Under Paragraph 2(3) of the Rechtspflegergesetz (Law on judicial administrators), (6) of 12 December 1985, in the version applicable to the dispute in the main proceedings:

‘A court officer may be appointed as a judicial administrator for one or more of the following fields of work:

3.      Matters related to the Land Register and Shipping Register.’

17.      Point 6 of Paragraph 16(2) of that law provides:

‘The following shall always remain the preserve of the judge:

6.      Decisions in cases in which foreign law applies.’

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

18.      ZL, a German national who was habitually resident in Germany at the time of his death on 13 May 2018, had, on 22 July 1975, entered into a contract with his son UM, a German national, and UM’s wife XU, an Austrian national, under which immovable property located in Austria would pass, upon the death of ZL, to UM and XU in equal shares. At the time of the contract, all the parties were habitually resident in Germany.

19.      The contract provided for ZL to acquire immovable property on the following terms:

‘…

(b)      ZL undertakes to erect a two-family house on that immovable property, to which he shall then have title, within 10 years of signature of the contract. If that obligation is not discharged in his lifetime, it shall pass to his heirs. …

(c)      ZL hereby transfers the aforesaid immovable property mortis causa to XU and UM in equal shares, together with everything associated with the immovable property at the time of his death, including the house erected on it … Transfer shall occur on the death of ZL, but not before the house has been completed. Transfer is contingent upon the marriage between [UM and XU] not being dissolved at the time of death of ZL and XU’s surviving ZL. If that condition is not met, the transfer mortis causa shall be construed as having been made to UM alone, following which the right pursuant to the contract to be signed shall be heritable even before ZL’s death.

(d)      Inasmuch as consideration for the transfer has not been agreed, ZL expressly declares that the immovable property is to be transferred as a donation mortis causa. He waives the right to revoke this contract.

(e)      In partial consideration for the transfer, [UM and XU] must grant XU’s mother, …, the right to live in the house erected …

(f)      The legal relationships pursuant to the contracts signed shall be governed by Austrian law …

(g)      ZL agrees not to sell or encumber the immovable property owned by him without the consent of UM and XU, so that their rights pursuant to the contract of transfer mortis causa are secured …

(h)      ZL authorises the Land Registry to make the following entries under a new number in the Land Register for the District of …, to be created for the land to which the contract relates:

(aa)      …

(bb)      registration of title in equal parts further to a joint application by both transferees[, UM and XU,] or registration of title to UM alone further to his application and subject to proof of satisfaction of the condition for transfer of the immovable property to him alone pursuant to this contract and ZL’s official death certificate.

…’

20.      At the time of ZL’s death, XU, who had been divorced from UM, had been deceased since 5 November 2005 and no house had been erected.

21.      Succession proceedings are pending in the Amtsgericht Köln (Local Court, Cologne, Germany). For the purposes of those proceedings, UM applied to the competent court, the Bezirksgericht Hermagor (District Court, Hermagor, Austria) to be registered as the proprietor of the immovable property in question, on the basis that at the time of his father’s death, he was the sole beneficiary of the instrument of donation. The Rechtspfleger (Judicial Administrator, Austria) of that court of first instance, who was responsible for reviewing UM’s application, took the view that Austrian law was applicable and, in the absence of documentary proof of satisfaction of the conditions laid down in the contract on which UM relied, rejected the application. The Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria) affirmed that decision on the ground that Regulation No 650/2012 was not applicable because the contract contained a choice of law clause in favour of Austrian law, and that title to the immovable property could not pass under the donation mortis causa without proof that the house had been erected as provided for in that contract. The referring court, the Oberster Gerichtshof (Supreme Court, Austria), has before it an appeal on a point of law (Revision) against that decision.

22.      That court, which has stated that the documents submitted to the court having jurisdiction over the Land Register justify the conclusion that, under the criteria applicable in Austrian law, an instrument of donation mortis causa was executed in favour of UM, takes the view that that instrument falls within the scope of Regulation No 650/2012 and can be classified as an ‘agreement as to succession’ within the meaning of Article 3(1)(b) or (d) of that regulation.

23.      As regards the applicability of Austrian law, as chosen by the parties to the contract, the Oberster Gerichtshof (Supreme Court) considers that the transitional provisions of that regulation are applicable and expresses doubt as to the interpretation of Article 83(2) of that regulation, as regards its applicability to a choice of law clause in an agreement as to succession.

24.      In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is Article 3(1)(b) of [Regulation No 650/2012] to be interpreted as meaning that a contract of donation mortis causa entered into between two German nationals habitually resident in Germany in respect of immovable property located in Austria, granting the donee a right having the character of an obligation against the estate to registration of his title after the donor’s death pursuant to that contract and the donor’s death certificate, that is without the intervention of the probate court, is an agreement as to succession within the meaning of that provision?

(2)      If the answer to the above question is in the affirmative:

Is Article 83(2) of Regulation No 650/2012 to be interpreted as meaning that it also regulates the effect of a choice of applicable law made before 17 August 2015 for a contract of donation mortis causa that is to be qualified as an agreement as to succession within the meaning of Article 3(1)(b) of [Regulation No 650/2012]?’

25.      Written observations were filed with the Court by UM, the Spanish Government and the European Commission. Those parties, as well as the German Government, responded to questions put to them by the Court, to be answered in writing, within the time allowed.

IV.    Analysis

26.      As a preliminary remark, I would note, given the purpose of Regulation No 650/2012, that the request for a preliminary ruling, which relates to the applicability of that regulation, has been made in national proceedings seeking recognition of rights over immovable property located in Austria, which was the subject of a donation mortis causa, (7) for the purposes of registration in the Land Register Succession proceedings have been commenced in another Member State. Consequently, the request for a preliminary ruling is novel in that it is made not so much in the context of succession, as in the more general context of verification of a property right, bearing in mind that it is not the role of the authority before which UM brought the matter to take a decision or adopt an act directly relating to succession. Furthermore, the referring court has indicated that, by its request, it is seeking to establish whether or not the authority which rejected UM’s application had jurisdiction, which depends on whether Austrian law is applicable. (8)

A.      The first question referred

27.      By its first question, the referring court asks the Court, in essence, whether Article 3(1)(b) of Regulation No 650/2012 must be interpreted as meaning that the concept of ‘agreement as to succession’ encompasses an inter vivos instrument of donation under which title to an asset belonging to the donor does not pass until the donor’s death.

28.      In the first place, it should be stated that the question as to the applicability of that regulation is justified:

–        ratione temporis, in accordance with Article 83(1) of the regulation, bearing in mind that the dispute in the main proceedings concerns rights of succession over the estate of ZL, and that ZL died after 17 August 2015;

–        in the light of the cross-border implications of the succession, given that the deceased was habitually resident in Germany and the main proceedings concern immovable property formerly belonging to him located in Austria; (9) and

–        in that the dispute concerns the conditions under which a right is acquired in the context of succession, with a view to the registration of that right in a land register, and not the requirements for such registration, which do not fall within Regulation No 650/2012. (10)

29.      In the second place, it should be pointed out that, in the absence of provisions relating to donations mortis causa in Regulation No 650/2012, (11) it is necessary to draw on various different aspects of that regulation in order to determine whether such a donation can be regarded as an ‘agreement as to succession’ within the meaning of Article 3(1)(b), as the referring court, UM, the German Government and the Commission maintain, or, on the other hand, whether it must be regarded as a gift within the meaning of Article 1(2)(g) of that regulation, as the Spanish Government submits.

30.      In that regard, it should be borne in mind that, according to settled case-law, the need for the uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard not only to its wording, but also to the context of that provision and the objective pursued by the legislation in question. (12)

31.      For the purposes of the literal interpretation of the provisions of Regulation No 650/2012 which are applicable in the present case, I note, first, that under the first sentence of Article 1(1), that regulation applies to ‘succession to the estates of deceased persons’. Article 3(1)(a) of that regulation provides that ‘succession’ means succession to the estate of a deceased person and covers ‘all forms of transfer of assets … by reason of death’. (13) This definition is a restatement of recital 9 of that regulation, which indicates that it is to apply to ‘all civil-law aspects of succession to the estate of a deceased person’. (14)

32.      It applies to two modes of transfer of assets by reason of death, namely voluntary transfer under a disposition of property upon death and transfer through intestate succession.

33.      Article 3(1)(d) of Regulation No 650/2012 provides that the expression ‘disposition of property upon death’ means ‘a will, a joint will or an agreement as to succession’. An ‘agreement as to succession’ is defined in Article 3(1)(b) as being, essentially, an agreement which creates rights to the future estate or estates of one or more parties to the agreement.

34.      Second, those definitions, which constitute autonomous concepts, (15) in that they are intended to ensure the uniform application of Regulation No 650/2012 independently of the law of the Member States, have to be brought into relation with the exclusion from the scope of that regulation of ‘property rights … transferred otherwise than by succession, for instance by way of gifts’, (16) effected by Article 1(2)(g) of that regulation. (17)

35.      Having regard to the concept of ‘succession’, (18) and failing any definition of either gifts or wills, the question arises as to the criterion by which gifts (19) can be distinguished from dispositions of property upon death, with a view to a uniform interpretation of those terms.

36.      I note, in the first place, that recital 14 of Regulation No 650/2012, which must be borne in mind while reading Article 1(2)(g) of that regulation, uses the wording ‘gifts or other forms of dispositions inter vivos giving rise to a right in rem prior to death’. (20)

37.      In my view it must be inferred from that, and from comparison with the other modes of transfer of rights and property referred to in Article 1(2)(g) of Regulation No 650/2012, namely joint ownership with a right of survivorship, pension plans, insurance contracts and arrangements of a similar nature, that the EU legislature intended to exclude inter vivos instruments which create rights prior to the death of the holder or which, in principle, provide for the transfer of property otherwise than by succession.

38.      In the second place, I note that Article 1(2)(g) of Regulation No 650/2012 is derived from Article 1(2)(d) of the Convention on the law applicable to succession to the estates of deceased persons, which was signed in The Hague on 1 August 1989, (21) but never entered into force. In the explanatory report on that convention, (22) it is stated that Article 1(2)(d) is very wide in scope, covering all dispositions other than dispositions on death, and that it excludes inter vivos dispositions having immediate proprietary effect.

39.      In the third place, I would emphasise that, as an exclusion from the scope of Regulation No 650/2012, which is intended to subject the entire succession to the same law, Article 1(2)(g) of that regulation must be interpreted strictly, even if this means that gifts do not completely escape the application of the law of succession. (23)

40.      Consequently, the meaning of ‘gifts’, in Article 1(2)(g), cannot extend to donations mortis causa, which provide for a right over property forming part of the deceased’s estate to arise in favour of the donee, upon death, if he or she survives the donor, and thus make arrangements as to how the estate is to pass. In other words, what is decisive is the determination of the rights of the donee in the property constituting the deceased’s estate as against the other heirs (24) where the administration of the estate has not yet begun.

41.      On the basis that the death of the donor is a necessary condition of the transfer of the right itself, rather than the practical implementation of that transfer, (25) and that the donation is made by way of an irrevocable agreement (26) between the parties, as to property rights which are to arise, upon death, over the property then forming the deceased’s estate, (27) a donation mortis causa (or in other words any agreement for the transfer of a property right mortis causa) may be regarded, in my view, as an ‘agreement as to succession’ within the meaning of Article 3(1)(b) of Regulation No 650/2012, that being an autonomous concept, (28) even if the instrument does not relate to the entirety of the estate (29) or to property which, at the time of the agreement, the donor had not yet acquired.

42.      Consequently, it is necessary to address the issue of divergent legal rules concerning donations mortis causa and agreements as to succession, an issue adverted to (as regards agreements as to succession) in recital 49 of Regulation No 650/2012, and raised in the written observations submitted by the parties as well as in academic commentary, (30) in order to ensure the uniform application of that regulation.

43.      In that regard, I share the view expressed by numerous commentators that the classification of the instrument must depend on the application of the law which, pursuant to Article 25 of Regulation No 650/2012, governs agreements as to succession. (31)

44.      This interpretation is consistent with the objective pursued by that regulation, which is to help heirs and legatees, other persons close to the deceased, and creditors of the succession to assert their rights in the context of a succession with cross-border implications, and to enable EU citizens to plan their succession. (32)

45.      Furthermore, for those reasons of legal certainty and in order to avoid fragmentation of the succession, (33) Regulation No 650/2012 provides for the entire estate to be subject to the same law of succession – which has implications for the jurisdiction of courts to rule on the succession as a whole (34) – by designating the law of the Member State in which the deceased had his or her habitual residence at the time of death, under Article 21 of that regulation, or the law of the State whose nationality he or she possesses, if chosen by him or her pursuant to Article 22 of that regulation.

46.      Moreover, in order to ensure that those provisions serve the purposes of Regulation No 650/2012 to the fullest extent, the EU legislature has made accommodations, particularly with regard to the principle that the entire succession is governed by the same law. (35) That applies, as the German Government points out in its answers to the written questions posed by the Court, to Article 25 of that regulation, which is to be read in the light of recital 49 and provides, in terms similar to those of Article 24 of that regulation (which concerns other dispositions of property on death), that agreements as to succession are governed by the law applicable to the succession on the day on which they were concluded, so as to preserve the succession arrangements made in such agreements.

47.      In those circumstances, I do not share the view of the Spanish Government that classifying a donation mortis causa as an ‘agreement as to succession’ is liable to lead to fragmentation of the succession, but consider that it guarantees, for the parties concerned by a transfer of an asset or assets constituting the estate of the deceased, the desired legal certainty as regards successions with cross-border implications.

48.      A contrary interpretation would exclude, from the scope of the regulation, other instruments which are commonly entered into for estate planning purposes and give rise to the same issues, such as spousal gifts taking effect on death or instruments of gift-allocation. (36)

49.      A large number of important succession planning instruments would then be subject, according to the circumstances, either to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), (37) or to the rules applicable in the State concerned under national law or international conventions, (38) which could seriously undermine the principle that the entire succession is to be governed by the same law.

50.      In the present case, the main proceedings relate to an agreement making provision for the transfer of title to immovable property, which was to take effect upon the death of the applicant’s father, subject to certain conditions. (39) While, to my mind, that agreement has the characteristic features of an agreement as to succession within the meaning of Regulation No 650/2012, whether it is to be classified as such must depend, as I have suggested, on the applicable succession law. (40)

51.      For all of those reasons, I consider that Article 3(1)(b) of Regulation No 650/2012 must be interpreted as meaning that the concept of ‘agreement as to succession’ encompasses an inter vivos instrument of donation under which title to an asset or assets constituting even part of the donor’s estate does not pass to the donee until the donor’s death.

B.      The second question referred

52.      The referring court raises the question of the validity of the choice of Austrian law in the agreement at issue in the main proceedings (41) in the light of the transitional provisions of Regulation No 650/2012, referring to Article 83(2) of that regulation. That provision stipulates that reference is to be made to the conditions laid down in Article 22 of the same regulation, which is headed ‘Choice of law’.

53.      As the Commission has pointed out, the German language version of Article 22 of Regulation No 650/2012, unlike the other language versions, (42) does not state that the choice of law must relate to the succession as a whole.

54.      In that regard, I would note that the Court has held, in a judgment delivered shortly after the present request for a preliminary ruling was lodged, that a person may choose a law ‘to govern his succession as a whole’ under Article 22 of the regulation, and that Article 83(2) relates to cases where, prior to 17 August 2015, the deceased had chosen the law ‘applicable to his succession’. (43)

55.      Accordingly, I share the Commission’s view that the answer to be given by the Court cannot relate to the interpretation of that provision, as it is apparent from what has been stated by the referring court that Austrian law was chosen by the parties as the law which was to apply to the legal relationships between them, rather than being chosen with a view to governing the succession as a whole.

56.      However, bearing in mind the circumstances in which the second question has been referred, I think it is appropriate to add to my analysis of the transitional provisions by indicating, first, that, a disposition upon death made before 17 August 2015 by a donor who died after that date will be valid, pursuant to Article 83(3) of Regulation No 650/2012, if the conditions laid down by the law designated by the provisions of Chapter III – and more specifically Article 25, which applies to agreements as to succession – are satisfied, or, failing that, if it is valid under the conflict of law rules applicable prior to the entry into force of that regulation.

57.      Second, as the Commission has pointed out, consequences must flow in the present case, as regards the jurisdiction of the court before which the matter has been brought, from the fact that Article 83(2) of Regulation No 650/2012 is inapplicable, no choice having been made as to the law which was to govern the succession as a whole, (44) and accordingly, in my view, from the fact that Article 83(4) is inapplicable. (45) Given that the deceased could not have chosen Austrian law pursuant to that regulation, Austrian law cannot be deemed to have been chosen as the law applicable to the succession. (46)

58.      In those circumstances, I do not consider that there is any need to answer the second question referred.

V.      Conclusion

59.      In the light of all the foregoing considerations, I suggest that the Court should answer the questions referred by the Oberster Gerichtshof (Supreme Court, Austria) as follows:

Article 3(1)(b) 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 the concept of ‘agreement as to succession’ encompasses inter vivos instruments of donation under which title to an asset or assets constituting even part of the donor’s estate does not pass to the donee until the donor’s death.


1      Original language: French.


2      OJ 2012 L 201, p. 107.


3      BGBl. I, 87/2015.


4      BGBl, 76/1871.


5      BGBl, 39/1955.


6      BGBl, 560/1985.


7      The same question could equally well have been asked if a request had been made for a European Succession Certificate, which enables every heir, legatee or beneficiary mentioned in the certificate to prove, in another Member State, his or her status and rights of succession over the estate. See, to that effect, judgments of 1 March 2018, Mahnkopf (C‑558/16, EU:C:2018:138, paragraphs 36 and 42 and the case-law cited), and of 21 June 2018, Oberle (C‑20/17, EU:C:2018:485, paragraph 45).


8      See, in connection with the arrangements for dealing with the national proceedings, points 16 and 17 of this Opinion.


9      See judgment of 16 July 2020, E. E. (Jurisdiction and law applicable to inheritance) (C‑80/19, EU:C:2020:569, paragraphs 34 to 36, as well as 42 and 43).


10      See recital 18 and Article 1(2) of Regulation No 650/2012, as well as judgment of 12 October 2017, Kubicka (C‑218/16, EU:C:2017:755, paragraph 54).


11      This is true of the French-language version. The term ‘donaciones’ does however appear in the Spanish-language version of Article 23(2)(i) of the regulation, in contrast to other language versions, in particular those in German, English, Italian and Romanian. I should state that this divergence between the language versions has no impact on the interpretation of the provisions of the regulation which are at issue in the present case.


12      See judgment of 23 May 2019, WB (C‑658/17, EU:C:2019:444, paragraph 50 and the case-law cited).


13      My italics.


14      My italics. This expression was noted by the Court in the judgments of 1 March 2018, Mahnkopf (C‑558/16, EU:C:2018:138, paragraph 34), and of 21 June 2018, Oberle (C‑20/17, EU:C:2018:485, paragraph 30).


15      See, in that regard, Bonomi, A., ‘Article 1. Champ d’application’ in Bonomi, A. and Wautelet, P., Le droit européen des successions, Commentaire du règlement (UE) No 650/2012, du 4 juillet 2012, 2nd ed., Bruylant, Brussels, 2016, pp. 73-139, especially paragraph 2, p. 75, and Looschelders, D., ‘Artikel 3 EuErbVO’, in Hüßtege, R., and Mansel, H.‑P., Rom-Verordnungen, 2nd ed., Nomos, Baden-Baden, 2015, pp. 839-847, especially paragraph 8, pp. 841 and 842.


16      My italics.


17      For the point that the exclusions set out in Article 1(2) of that regulation are exhaustive, with particular regard to issues relating to matrimonial property regimes, see judgment of 1 March 2018, Mahnkopf (C‑558/16, EU:C:2018:138, paragraph 33).


18      See point 31 of this Opinion.


19      In that regard, Marie Goré observes that ‘the issue of succession planning has not been fully thought out’ (Goré, M., ‘Les silences du règlement européen sur les successions internationales’, Droit et Patrimoine, Lamy, Paris, 2013, No 224, pp. 34-37, especially p. 6).


20      My italics.


21      Available at: https://www.hcch.net/en/instruments/conventions/full-text/?cid=62. The words ‘for instance by way of gifts’ have been added in Regulation No 650/2012. See recital 9 and Article 1(3)(f) of the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement of authentic instruments in matters of succession and the creation of a European certificate of succession (COM(2009) 154 final), which were reformulated by the Parliament, so as to change the wording of the exclusion, in its report of 6 March 2012 on that proposal (A7-0045/2012).


22      See the explanatory report of Mr Donovan W.M. Waters, available at: https://assets.hcch.net/docs/7bfd5915-bf1b-4f9f-9b93-61f979bf8e61.pdf (paragraphs 41 (p. 543) and 92 (p. 575)).


23      See Article 23(2)(i) of Regulation No 650/2012.


24      See, by analogy, judgment of 1 March 2018, Mahnkopf (C‑558/16, EU:C:2018:138, paragraph 40).


25      A distinction must be made between donations mortis causa and donations under which there is an immediate transfer of rights but possession of the property is deferred to a later date, potentially that of the donor’s death. See, to that effect, Boulanger, D., ‘Le renouvellement du traitement de l’anticipation successorale au travers du règlement (UE) du 4 juillet 2012’, La Semaine Juridique – Notariale et Immobilière, LexisNexis, Paris, No 27, pp. 39-44, especially paragraph 15, p. 41. In that regard, the use, in the French-language version of the documents relating to the proceedings, of the expression ‘remise du bien’ (transfer of possession of the property) should not be a source of confusion. This, to the best of my knowledge, is to be understood by reference to the Abstraktionsprincip, under which the transfer of real property encompasses the transfer of title (by deed of sale, for example) and transfer of physical possession (by registration in the Land Registry). On the distinction between implementation during the donor’s lifetime and implementation upon his or her death, see Looschelders, D., ‘Artikel 1 EuErbVO’, in Hüßtege, R. and Mansel, H.‑P., Rom-Verordnungen, op. cit., pp. 817-835, especially paragraphs 45 and 46, pp. 829 and 830.


26      See Bonomi, A., ‘Article 25. Pacte successoral’, in Bonomi, A. and Wautelet, P., Le droit européen des succession, Commentaire du règlement (UE) No 650/2012, du 4 juillet 2012, op. cit., pp. 429-449, especially paragraph 13, p. 436; Pesendorfer, U., ‘Art. 3 EuErbVO’, in Burgstaller, A., Neumayr, M., Geroldinger, A. and Schmaranzer, G., Die EU-Erbrechtsverordnung, LexisNexis, Vienna, 2016, pp. 68-81, especially paragraphs 12 and 17, pp. 74-76; and Dutta, A., ‘Art. 3 EuErbVO Begriffsbestimmungen’, Münchener Kommentar zum Bürgerlichen Gesetzbuch, C.H. Beck, Munich, 2020, paragraph 8.


27      See Boulanger, D., op. cit., paragraph 14, p. 41.


28      See, to the same effect, Bonomi, A., ‘Article 3. Définitions’ in Bonomi, A. and Wautelet, P., Le droit européen des succession, Commentaire du règlement (UE) No 650/2012, du 4 juillet 2012, op. cit., pp. 143-179, especially paragraph 21, p. 155; Dutta, A., ‘Art. 1 EuErbVO Anwendungsbereich’, Münchener Kommentar zum Bürgerlichen Gesetzbuch, op. cit., paragraph 37, and ‘Art. 3 EuErbVO Begriffsbestimmungen’, op. cit., paragraph 10; Mankowski, P., ‘Art 1 EuErbVO’, in Deixler-Hübner, A. and Schauer, M., Kommentar zur EU-Erbrechtsverordnung (EuErbVO), 2nd ed., Manz’sche Verlags- und Universitätsbuchhandlung, Vienna, 2020, pp. 16-66, especially paragraph 79, pp. 42 and 43; Deixler-Hübner, A. and Schauer, M., ‘Art 3 EuErbVO’, in Deixler-Hübner, A. and Schauer, M., Kommentar zur EU-Erbrechtsverordnung (EuErbVO), op. cit., pp. 70-94, especially paragraph 14, pp. 77 and 78; and Fontanellas Morell, J. M., ‘Las donaciones mortis causa ante la reglementación comunitaria de la sucesiones’, Anuario Español de Derecho Internacional Privado, Iprolex, Madrid, Spain, 2011, pp. 465-484, especially pp. 481-483.


29      In that regard, my view differs from that of the Spanish Government but accords with the analyses of the other parties, in that I consider that the expression ‘agreement as to succession’, in Article 3(1)(b) of Regulation No 650/2012, is defined in sufficiently general terms to encompass an agreement over a single asset or a part of the estate. It suffices that the common criterion resulting from Article 3(1)(d) combined with the definition in Article 3(1)(a), concerning dispositions of property upon death, is met, or in other words that there is a transfer of title to an asset or assets, taking effect on the death of the owner, who is a party to the agreement.


30      See Bonomi, A., ‘Article 1. Champ d’application’, op. cit., paragraphs 51 and 52, as well as the commentators referred to in the footnotes on pp. 102-104.


31      See Bonomi, A., ‘Article 1. Champ d’application’, op. cit., paragraph 53 and the commentators referred to in footnote 76, p. 104. See also Dutta, A., ‘Art. 25 EuErbVO Erbverträge’, Münchener Kommentar zum Bürgerlichen Gesetzbuch, op. cit., paragraph 9. On the more general point that reference must be made to the law applicable to dispositions of property on death, see Bonomi, A. ‘Article 1. Champ d’application’, op. cit., paragraph 53 and the commentators referred to in footnote 75, p. 104. To the same effect, see Köhler, A., ‘Teil 1 EuErbVO, § 4 Internationales Privatrecht’, in Grierl, W., Köhler, A., Kroiß, L. and Wilsch, H., Internationales Erbrecht: EUErbVO, IntErbRVG, DurchfVO, Länderberichte, 3rd ed., Nomos, Vienna, 2020, pp. 57-127, especially p. 70, paragraph 52, and p. 78, paragraph 74.


32      See judgments of 12 October 2017, Kubicka (C‑218/16, EU:C:2017:755, paragraph 56), and of 21 June 2018, Oberle (C‑20/17, EU:C:2018:485, paragraph 49).


33      See recital 37 of Regulation No 650/2012, as well as judgments of 12 October 2017, Kubicka (C‑218/16, EU:C:2017:755, paragraphs 44 and 57), and of 21 June 2018, Oberle (C‑20/17, EU:C:2018:485, paragraph 56).


34      See judgments of 21 June 2018, Oberle (C‑20/17, EU:C:2018:485, paragraph 55), and of 16 July 2020, E. E. (Jurisdiction and law applicable to inheritance) (C‑80/19, EU:C:2020:569, paragraph 41).


35      See, in relation to the provisions concerning jurisdiction in succession matters, judgment of 16 July 2020, E. E. (Jurisdiction and law applicable to inheritance) (C‑80/19, EU:C:2020:569, paragraph 69). The Court held that the single estate principle is not absolute.


36      See, to that effect, Boulanger, D., op. cit., paragraphs 16 and 17, p. 41. See also, in relation to German law, Dutta, A., ‘Art. 3 EuErbVO Begriffsbestimmungen’, op. cit., paragraph 11.


37      OJ 2008 L 177, p. 6. Two major differences can be noted between Regulation No 593/2008 and Regulation No 650/2012, in relation to the rules for determining the applicable law, which are intentionally abandoned in Regulation No 650/2012. First, under Article 3 of Regulation No 593/2008, the parties to the donation are free to choose the law applicable to the contract. Second, where no choice is made, gifts of immovable property are subject to the law of the country where the property is situated, under Article 4(1)(c) of that regulation. Furthermore, it follows from Article 4(2) of that regulation that, where no choice is made, donations of movable property are governed by the law of the country of habitual residence of the donor, who is the party required to effect the characteristic performance of the contract.


38      Article 1(2)(c) of Regulation No 593/2008 excludes family property law from the scope of that regulation. See, in that respect, the summary by Gaudemet-Tallon, H., ‘Convention de Rome du 19 juin 1980 et règlement “Rome I” du 17 juin 2008. – Champ d’application. – Clauses générales’, JurisClasseur Droit international, LexisNexis, Paris, 2020, fascicule 552-11, paragraph 52.


39      See point 19 of this Opinion.


40      See point 43 of this Opinion.


41      See paragraph (f) of the contract, referred to in point 19 of this Opinion.


42      I would observe that, as the Commission noted, the scope of the choice of law is specified in the English-, French-, Italian-, Dutch- and Polish-language versions, and that the Spanish version, which was as ambiguous as the German version when originally published, was amended to read as follows: ‘Any person may designate as the law governing his succession as a whole the law of the State …’ (corrigendum OJ 2019 L 243, p. 9).


43      See judgment of 16 July 2020, E. E. (Jurisdiction and law applicable to inheritance) (C‑80/19, EU:C:2020:569, paragraphs 88 and 92).


44      See Article 15 of Regulation No 650/2012, headed ‘Examination as to jurisdiction’. See, in relation to the jurisdictional rules and their impact on the movement of judicial decisions, judgments of 21 June 2018, Oberle (C‑20/17, EU:C:2018:485, paragraphs 37 and 53 to 55), and of 16 July 2020, E. E. (Jurisdiction and law applicable to inheritance) (C‑80/19, EU:C:2020:569, paragraphs 61 and 62).


45      See, as regards the interrelationship between the transitional provisions, and the connection between those provisions and international jurisdiction, the Opinion of Advocate General Campos Sánchez-Bordona in E. E. (Jurisdiction and law applicable to inheritance) (C‑80/19, EU:C:2020:230, points 101 to 104 and 108 to 112).


46      See judgment of 16 July 2020, E. E. (Jurisdiction and law applicable to inheritance) (C‑80/19, EU:C:2020:569, paragraphs 92 and 93).