The judges of the Court of Justice of the European Union (CJEU) ruled on Thursday 23 May in case C-658/17 that notaries in Poland cannot be considered as courts when they draw up certificates of inheritance, which is why these certificates are not decisions on matters of succession, although they are authentic instruments.
A Polish national, whose father died, had asked a notary established in Poland to provide him with a copy of the certificate of inheritance drawn up by that notary and a certificate confirming that the certificate constitutes a decision on matters of succession within the meaning of European Union law. In case this request was rejected, he asked for a copy of this certificate and an attestation confirming that this document constitutes an authentic instrument in matters of succession.
This request was rejected by the notary. While this study acknowledges that, in substance, the certificate constitutes a decision within the meaning of EU law, the absence of notification by Warsaw of the list of authorities and legal professionals to the Commission does not allow it to issue a certificate in the form referred to in EU law. And since it considered that the certificate was a decision, it considered that it was impossible for it to qualify it as an authentic instrument.
When this dispute was referred to it, the Gorzów Wielkopolski Regional Court referred the matter to the Court of Justice for a preliminary ruling, asking it whether a Polish notary performs judicial functions and whether the certificate of inheritance in question is an authentic instrument.
In their judgment, the judges first recall that under Regulation 650/2012 on authentic instruments in matters of succession, a court refers to a judicial authority, or another authority or legal professional competent in matters of succession. These authorities or legal professionals must exercise judicial functions or act pursuant to a delegation of powers from or under the control of a judicial authority. This, if these entities are impartial, respect the principle of hearing each party, are subject to review or appeal before a judicial authority and their decisions have an effect equivalent to that of a judicial authority.
Subsequently, they note that even in the absence of notification from Warsaw to the Commission of the exercise by notaries of their judicial functions, notaries can be qualified as courts if they fulfil the conditions laid down in Regulation 650/2012.
Secondly, the judges point out that an authority whose jurisdiction depends solely on the will of the parties to the dispute does not have the power to decide the dispute and therefore does not exercise any judicial functions. In the case of notaries in Poland, their activities concerning the issue of certificates of inheritance are carried out at the request of the parties and do not interfere with the prerogatives of the judge in the event of disagreement between the parties. Notaries cannot therefore be considered as a court of law. Therefore, certificates of inheritance do not constitute decisions on matters of succession within the meaning of the regulation.
On the other hand, notaries are empowered under Polish law to draw up deeds relating to a succession and the certificate of inheritance is formally registered as an authentic instrument. The judges also note that the certificate of inheritance produces effects equivalent to those of a final order of succession and the authenticity of the deed relates to the notary's signature and its content. Consequently, such a certificate constitutes an authentic instrument within the meaning of Regulation 650/2012. (Original version in French by Lucas Tripoteau)