Legatum per vindicationem y Reglamento (UE) 650/2012

Resumo

In Case C-218/16 (Kubicka) the ECJ ruled that Article 1(2)(k) and (l) and Article 31 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4º 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 precluding refusal, by an authority of a Member State, to recognise the material effects of a legacy ‘by vindication’, provided for by the law governing succession chosen by the testator in accordance with Article 22(1) of that regulation, where that refusal is based on the ground that the legacy concerns the right of ownership of immovable property located in that Member State, whose law does not provide for legacies with direct material effect when succession takes place. This paper agrees with the judgement and try to explain some misunderstandings around the scope and role of art. 31 of the Succession Regulation, both in doctrine and in German domestic law. The author points out that although the request for a preliminary ruling under Article 267 TFEU might be not justified, the case has offered to the ECJ a good chance to clarify that the «transfer» to the heirs and, as the case may be, to the legatees of the assets, rights (rights in rem included) and obligations forming part of the estate, is a matter covered by the Regulation, witch depends on the lex successionis. And, consequently, that this «transfer» is not covered by the exclusions of art. 1.2.k) and 1.2.l) of the Regulation.