Obligation for the court to raise of its own motion its subsidiary jurisdiction under article 10 of regulation n°650/2012 (Ruling n° 668 - 19-15.438)

FRENCH REPUBLIC

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ON BEHALF OF THE FRENCH PEOPLE

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RULING OF THE COUR DE CASSATION (COURT OF CASSATION), FIRST CIVIL CHAMBER, 21 SEPTEMBER 2022

1. Ms [U] [H], domiciled at [Address 3], 2. Mr [R] [H], domiciled at [Address 1]),

brought appeal No. Y 19-15.438 against the ruling delivered on 21 February 2019 by the cour d'appel (Court of Appeal) of Versailles, 14th Chamber, in the dispute between them and Ms [T] [F], widow [H], domiciled at [Address 2] (United Kingdom), respondent in the quashing.

In support of their appeal, the plaintiffs rely on the single plea for quashing attached to this ruling.

The case file was sent to the Prosecutor-General.

Concerning the report by Mr Fulchiron, judge, the observations made by SCP Boutet et Hourdeaux, lawyer representing Ms [U] [H], and by Mr [R] [H], of SCP Rocheteau, Uzan-Sarano et Goulet, lawyer representing Ms [F], and the advisory opinion of Ms Marilly, advocate general referee, after discussions in the public hearing of 28 June 2022, attended by Mr Chauvin, president, Mr Fulchiron, reporting judge, Ms Auroy, elder judge, Ms Antoine, Ms Poinseaux, Ms Dard, Ms Beauvoie, judges, Mr Duval, Ms Azar, Mr Buat-Ménard, judge referees, Ms Marilly, advocate general referee and Ms Berthomier, chamber registrar,

The First Civil Chamber of the Cour de cassation (Court of Cassation), composed, pursuant to Article R. 431-5 of the Judicial Code, of the abovementioned President and judges, after discussion in accordance with the law, has delivered the present ruling.

Statement of reasons 

1. According to the ruling under appeal (Versailles, 21 February 2019), [Y] [H], a French citizen, died in France on 3 September 2015, leaving his wife, Ms [F], and his three children from a first union, [S], [R] and [U] (the jointly interested parties [H]) as his beneficiaries.
2. The jointly interested parties [H] brought an action against Ms [F] before the president of a tribunal de grande instance (Tribunal of First Instance) ruling in interim proceedings in order to obtain the appointment of an executor of the estate by invoking the jurisdiction of the French courts on the basis of Article 4 of Regulation (EU) No. 650/2012 of the European Parliament and of the Council of

4 July 2012 concerning jurisdiction, applicable law, the recognition and enforcement of decisions, and the acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession, on the ground that [Y] [H]'s habitual residence at the date of his death was in France.

3. [S] [H] having died on 10 April 2017, his brother and sister stated that they were also acting in their capacity as his successor in title.
4. By ruling of 18 November 2020, the Cour de cassation (Court of Cassation) applied to the Court of Justice of the European Union (CJEU) for a request for preliminary ruling on the interpretation of Article 10(1)(a) of the aforementioned Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012.
5. By ruling of 7 April 2022 (C-645/20), the CJEU answered the question raised.

Review of the plea

On the first three parts of the plea, attached hereafter

6. Pursuant to Article 1014 paragraph 2 of the Code of Civil Procedure, it is not necessary to rule on the basis of a specially reasoned decision regarding these pleas, which are clearly not susceptible to quashing. However, on the fourth part of the plea

Statement of plea

7. Mr and Ms [H] object to the ruling, stating that the French courts do not have jurisdiction to rule on the succession of [Y] [H] as a whole and the request for the appointment of an executor of the estate, whereas "when the deceased's habitual residence at the time of death is not located in a Member State, the courts of the Member State in which the succession property is located nevertheless have subsidiary jurisdiction to rule on the succession as a whole insofar as the deceased had the nationality of the Member State in question at the time of death; whereas these rules, resulting from Regulation No. 650/2012 of 4 July 2012 concerning jurisdiction, applicable law, recognition and enforcement of decisions and the acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession, are a matter of public policy and must be brought by the court ex officio; whereas, in this case, it is undisputed that [Y] [H] had French nationality and that he owned assets in France, such that the cour d'appel (Court of Appeal) should have verified its subsidiary jurisdiction; by failing to do so, the cour d'appel (Court of Appeal) infringed Article 10 of Regulation No. 650/2012 of 4 July 2012."

Court's response

Having examined Article 10(1)(a) of Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012:

8. According to this text, entitled 'Subsidiary Jurisdiction', where the deceased's habitual residence at the time of death is not located in a Member State, the courts of the Member State in which succession property is located shall nevertheless have jurisdiction to rule on the succession as a whole insofar as the deceased had the nationality of that Member State at the time of death.
9. By its abovementioned ruling of 7 April 2022, the CJEU ruled that this text, "must be interpreted as meaning that a court of a Member State must raise its jurisdiction ex officio under the alternative jurisdiction rule provided for in that provision where, the having been referred to the court on the basis of the general jurisdiction rule established in Article 4 of that regulation, it finds that it does not have jurisdiction under the latter provision."
10. In order to declare the French court incompetent to rule on the succession of [Y] [H] and to appoint an executor of the estate, the ruling maintains that the deceased's habitual residence was located in the United Kingdom.
11. In so ruling, when it was clear from its findings that [Y] [H] had French nationality and owned property located in France, the cour d'appel (Court of Appeal), which therefore did not raise its subsidiary jurisdiction ex officio, infringed the above-mentioned provision.

Scope and consequences of the quashing

12. As suggested in the request, Articles L. 411-3, paragraph 2, of the Judicial Code and 627 of the Code of Civil Procedure apply.
13. The interest to ensure the correct administration of justice justifies the Cour de cassation (Court of Cassation) deciding on the merits.
14. The cour d'appel (Court of Appeal) having found that [Y] [H] had French nationality and owned property located in France, the French courts therefore have jurisdiction to rule on his entire succession pursuant to Article 10(1)(a) of Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012.

 

Operative part of the ruling

ON THESE GROUNDS, the Court:

QUASHES AND SETS ASIDE all provisions of the ruling delivered on 21 February 2019 between the parties by the cour d'appel (Court of Appeal) of Versailles;

DECLARES that there is no need to refer back the case;

Finds that the French courts have jurisdiction to rule on the entire estate of [Y] [H];

Confirms the order delivered on 12 December 2017 in interim proceedings by the President of the tribunal de grande instance (Tribunal of First Instance) of Nanterre;

Awards costs to Ms [F], including those incurred before the cour d'appel (Court of Appeal);

In accordance with Article 700 of the Code of Civil Procedure, rejects the application made by Ms [F] and orders her to pay Ms [U] [H] and Mr [R] [H] EUR 3,000;

at the request of the Prosecutor-General of the Cour de cassation (Court of Cassation), orders that this ruling be transcribed in the margin or following the quashed ruling.

Thus decided by the First Civil Chamber of the Cour de cassation (Court of Cassation), pronounced by the President in the public hearing of the twenty-first day of the month of September of the year two thousand and twenty-two, and signed by him and Ms Tinchon, Chamber Registrar present at the delivery.

Pleas attached

PLEA ATTACHED to this ruling

Plea filed by SCP Boutet and Hourdeaux, Supreme Court Lawyer, for Ms [U] [H] and Mr [R] [H].

The ruling reversed by the court, and under appeal, is contested for HAVING stated that the French courts do not hold jurisdiction to rule on the entire estate of [Y] [H] and the request for the appointment of an executor of the estate;

ON THE GROUNDS THAT "Regulation (EU) No. 650/2012 of 4 July 2012 concerning jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession is directly applicable in all Member States of the European Union except Denmark, the United Kingdom and Ireland, to successions to the death of persons who have died after 17 August 2015.

Article 4 of the Regulation lays down a rule of general jurisdiction in the absence of the designation of applicable law by the deceased: "The courts of the Member State in which the deceased had his habitual residence at the time of his death shall have jurisdiction to rule on the succession as a whole."

Subsidiary powers are provided for in Article 10, which, under certain cumulative conditions, provides for a succession susceptible to processing outside the European Union to be brought before the courts of a Member State. A Union court may administer the estate of a deceased person who has his habitual residence in a third-party State at the time of death. That jurisdiction presupposes at least that the property is located in said Member State.

According to Article 10:

"1. Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of the Member State in which the succession property is located shall nevertheless have jurisdiction to rule on the succession as a whole when:

1. the deceased had the nationality of said Member State at the time of death; or, failing that,
2. the deceased had his previous habitual residence in said Member State, provided that, at the time the case was referred to court, no more than five years have passed since the change of that habitual residence.

2. Where no court of a Member State has jurisdiction under paragraph 1, the courts of the Member State in which the succession property is situated shall nevertheless have jurisdiction to rule on such property."

The court of the Member State in which the deceased had his habitual residence at the time of his death shall hold jurisdiction to rule on his entire estate, whether in the case of tangible personal property or immovable property, and to rule on the outcome of property located abroad in another Member State or in a third-party State.

The Regulation does not define the habitual residence of the deceased and reference should be made to the clarifications provided by recitals 23 and 24 of the Regulation:

"In order to determine habitual residence, the authority responsible for the succession should carry out an overall assessment of the circumstances of the life of the deceased in the years preceding his death and at the time of his death, taking into account all relevant facts, including the duration and regularity of the deceased's presence in the State concerned, as well as the conditions and reasons for such presence. The habitual residence thus determined should reveal a close, stable link with the State in question, taking into account the specific objectives of this Regulation" (recital 23).

"In some cases it may be complex to determine the habitual residence of the deceased. Such a case may arise, in particular, when, for professional or economic reasons, the deceased had gone to live in another State to work there, sometimes for a long period, while having retained a close, stable link with his State of origin.

In such a case, depending on the circumstances, the deceased could be considered as still having his habitual residence in his State of origin, in which his centre of vital interests for family and social life was located. Other complex cases may arise when the deceased lived alternately in several States or travelled from one State to another without having settled permanently in one State. If the deceased was a national of one of these States or had all his main property there, his nationality or the location of such property could be a particular criterion for the overall assessment of all the facts" (recital 24).

In this case, it is undisputed that [Y] [H], born on 4 December 1922, left France in 1981 at the age of 59, after the death of his first wife, to settle in London in the United Kingdom; that his three children remained in France; that he then worked in the real estate sector, remained in said country for his retirement, and in 1996 married Ms [B] [F], an English citizen, whom he met in 1984 and with whom he lived uninterruptedly until his return to France in August 2012, when he was almost 90 years old.

It is also established that most of the deceased's estate is located in England: an apartment in London, a country house in the environs, movable assets (GBP 262,500), paintings of value, a bank account, the deceased also having a bank account in Switzerland, while in France, the assets of [Y] [H] are limited to 10% of the shares of SCI Gretima, acquired on 26 June 2012 for the price of EUR 1,330,000, the flat located in Suresnes (92) in which he settled with his daughter, and which was financed by the auction of one of his paintings, the remaining equities being held by his three children.

Furthermore, England is the country where [Y] [H] made his will. Thus, he drew up a will in English dated 29 March 2010, subject to English law, drawn up by a solicitor, designating his wife as the executor, trustee and beneficiary of all his estate, except for the paintings by the artist Domenico Gnoli, which he owned and which he bequeathed to his three children.

On 24 April 2010, he also signed a Lasting Power of Attorney, registered on 16 August 2010, designating his lawyer, Mr [B] [A], and his spouse to look after his person and property when he was no longer able to do so.

This English power of attorney was implemented in December 2012 after the doctor treating [Y] [H] in England, Dr [K] [P], made a written testimony on 25 October 2012 confirming his 2011 diagnosis and the deterioration of the mental health of his patient, Mr [O] executing said power of attorney until his demission on 20 March 2014, when it was assumed by Ms [F].

Finally, if designation by will is sufficient in itself, the executor of the will must obtain a certificate of approval to confirm his powers as administrator of the assets of the estate in relation to third parties by producing the original of the will, which was done in this case, an order from the English court having been issued to Ms [T] [F] on 12 October 2017.

With regard to the circumstances of [Y] [H]'s return to France in 2012, the partially adversarial elements included in the proceedings by the parties do not in any way support the assertion that the wife had ceased to be interested in her husband as of 2011 and that she no longer intended to take care of him and that [Y] [H]'s intention, in particular in view of the deterioration of his mental faculties in 2012, was to return to establish his centre of vital interests in France.

According to the documents produced by the parties:

• Ms [F] began to seek a specialised establishment in London in October 2011, near the couple's home, so that [Y] [H] could be treated, in view of the evolution of his disease and behaviour, which became aggressive and sometimes violent towards her, where this solution was refused by the person concerned,
• the change in [Y] [H]'s behaviour, which became difficult and contrary as from 2011, is evidenced in particular by his refusal to accept the withdrawal of his driving licence after a psychiatrist had examined him in September 2011 (e-mail 20 September 2011, exhibit 16 respondents),
• the difficulties in pursuing an ordinary life were recognised by the children of [Y] [H] who, in emails in May 2012, wrote to Ms [F] stating how they were aware that life with their father could be difficult and exhausting, his "insulting and humiliating" behaviour towards his wife, offering alternating care between [Address 4] and London, further admitting that the situation was going to become "worse and worse", [U] [H] inviting the wife to "protect" herself (exhibit 19 respondents),
• [Y] [H]'s consent to a final return to France in August 2012, with the desire to re-establish his centre of vital interests and habitual residence there, can only be put into perspective in view of the advanced evolution of his degenerative disease as noted by Dr [D] on 27 September 2012, who describes him as a "contrary, depressive, authoritarian and aggressive person, with significant memory disorders", the beginning of his disease going back almost six years, although emails exchanged between the children in 2011 and 2012 mention their father's desire to return to France, his request for them to rent, and not to buy, an apartment in [Address 4] and a certain abandonment by Ms [F],
• there is no evidence in the case file to demonstrate that [Y] [H]'s departure from London on 8 August 2012 with his daughter [U], who had travelled to pick him up in London, was programmed and, moreover, final,
• the falls [Y] [H] suffered in England do not necessarily result from a lack of care, but rather are inherent to his disease, which has been steadily worsening since 2011,
• the advanced pathology of [Y] [H] as described by his English physician on 25 October 2012, who admittedly did not examine him and made the lasting power of attorney possible, is however amply confirmed by the medical certificate drawn up previously on 27 September 2012 by Dr [D], who met with the person concerned,
• no document in the case file demonstrates that [Y] [H]'s return to France resulted from Ms [F]'s willingness to separate from her husband, even though his return to England was planned in 2013 by both the English attorney-in-fact, Mr [O] (exhibit 20, appellant), and by his son [S], in order to set up specialised care, Mr [O] writing on 19 August 2013 that "[Y]", with whom he frequently exchanged opinions, wished to travel to London to see him.

If it is, however, established that Ms [F] came to see her husband in France during his last three years only on rare occasion, her behaviour is explained by the fact that she could not meet him alone, as expressly stated in her submissions as filed in the procedure for placing her husband under guardianship, it being noted that the relationship between the wife and children of [Y] [H] did not cease to deteriorate for reasons to do with money, since the English attorneys were responsible for managing the accounts of [Y] [H].

The court points out in this regard that Ms [F], in the questionnaire she completed for the procedure initiated by her children to place [Y] [H] under guardianship, ticked the box indicating that she agreed to take care of her husband.

Moreover, it is irrelevant for the respondents to claim that, by not contesting the procedure for placing her husband under guardianship in France, Ms [F] accepted the jurisdiction of the French judge for the succession and that her change of position in the present proceedings constitutes an estoppel, i.e. an adversarial position assumed to the detriment of her opponent, when it is a question of taking a measure to protect an adult then domiciled in France, the guardianship judge having in no way ruled on the "habitual residence" of [Y] [H] as defined in Regulation (EU) of 4 July 2012, which differs from the concept of domicile given in Article 121 of the Code of Civil Procedure.

Moreover, Ms [G], appointed as guardian of the assets of [Y] [H] in or outside France, was not in a position to have that decision recognised in the United Kingdom, since Mr [O] and Ms [F] were already appointed as guardians of the person and property of [Y] [H] under the Lasting Power of Attorney the latter had signed in 2010.

It follows from these findings and statements that [Y] [H], who left France in 1981 and spent more than 30 years in England, established the centre of his economic, family, social and property interests in that country, having the status of English resident, and only returned to live in France because of his health problems linked to the deterioration of Alzheimer's disease, at the particular initiative of his daughter [U] [H], who had attended training as a family carer organised by France Alzheimer, at a time when his mental faculties were already impaired.

The court notes in this regard that no element of the case file demonstrates that [Y] [H] had maintained close links with France after his departure in 1981 or that he made frequent stays there to meet up with his children in particular, two of whom were living abroad in Côte d'Ivoire ([S]) and Bahrain ([R]), as he was not the owner of any real estate property in [Address 4].

Mr and Ms [H] argued unsuccessfully that their father had intended to establish his interests in France and liquidate part of his English assets (sale of a painting, payment of his English pension in France...) by acquiring an apartment in Suresnes, even though they carried out these steps in view of his state of health. They also failed to explain themselves on the set-up of this acquisition by setting up an SCI in which their father held only 10% of the shares, despite having financed the purchase in full, where the guardian, Ms [G], also wrote to Ms [F] on 7 April 2015 stating that she intended to return full ownership of this property to her protected adult with the help of a lawyer, "as should have been done at the very beginning".

No. relevance can be given to the factual elements taken from the French nationality of [Y] [H], his alleged tax residence in France, when he never made a tax declaration after his departure to the United Kingdom, where it was his children who, in 2017, made a request for regularisation of assets held abroad, or to the opening of a BNP account in France necessary for the purchase of the apartment in [Locality 5].

Thus, taking into consideration the length of life of [Y] [H] in the United Kingdom, where his centre of vital interests for family, social and property life was undeniably located for almost thirty years, the close and stable link maintained with this State since 1981, where most of his movable and immovable property is located, and the particular circumstances of his return to France in August 2012 during the three years prior to his death, while he was suffering from Alzheimer's disease at an already advanced stage and his daughter [U] had proposed to take him into provisional or definitive care, it can only be considered that [Y] [H] had decided to move his habitual residence to France, contrary to what was held by the First Judge.

Consequently, the French courts do not have jurisdiction, as defined in Regulation (EU) of 4 July 2012, to rule on the entire estate of [Y] [H] and the application in France for the appointment of an executor of the estate on the basis of Article 813-1 of the Civil Code.

Consequently, the referred order must be set aside on the grounds of the decisions under appeal and in particular insofar as the First Judge declared himself competent to rule on the application for the appointment of an executor of the estate.

WHEREAS, FIRST, the courts of the Member State in which the deceased had his habitual residence at the time of his death have jurisdiction to rule on the succession as a whole; whereas the habitual residence can be assessed objectively, as it results from facts taken from the living conditions of an elderly or dependent person; whereas, in this case, Mr and Ms [H] argued that their father, [Y] [H], had come to France to live with his daughter [U] [H], so that she could provide him with the necessary daily care for his disease, which she did for more than three years; whereas, objectively, there was a change of habitual residence, with France being the proven and unquestioned place of the last years of its life; whereas, by nevertheless holding that "the consent of [Y] [H] for a definitive return to France in August 2012, with the desire to re-establish his centre of vital interests and habitual residence there, can only be relativized in view of the advanced evolution of his degenerative disease (…)", the cour d'appel (Court of Appeal), which implicitly but necessarily ruled that a person suffering from a degenerative disease could no longer change his habitual residence because of the lack of will given in good health and sound mind, infringed Article 4 of Regulation No. 650/2012 of 4 July 2012 concerning jurisdiction, applicable law, recognition and enforcement of decisions, and acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession;

WHEREAS, SECOND, the courts of the Member State in which the deceased had his habitual residence at the time of his death have jurisdiction to rule on the succession as a whole; whereas, in matters of the legal protection of adults, the court of guardianship with territorial jurisdiction is the court of the habitual residence of the person to be protected; whereas, by holding that the guardianship judge, in his order of 11 July 2014 placing [Y] [H] under guardianship, had not "ruled on the habitual residence of [Y] [H] as defined in Regulation (EU) of 4 July 2012, which differs from the concept of domicile given in Article 1211 of the Code of Civil Procedure", the cour d'appel (Court of Appeal), which incorrectly read that Article 1211 of the Code of Civil Procedure referred to the concept of domicile of an adult, infringed Article 4 of Regulation No. 650/2 0012 of 4 July 2012 concerning jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession, together with Article 1211 of the Code of Civil Procedure;

WHEREAS, THIRD, failure to reply to submissions is equivalent to a failure to state reasons; whereas, in this case, Mr and Ms [H] regularly argued in their written appeals that the placement of [Y] [H] under guardianship legally domiciled him at his guardian's location, such that this element demonstrated that his habitual residence could only be at his guardian's location in France (submissions, p. 30 and 32); whereas, by failing to respond to this effective plea, the cour d'appel (Court of Appeal) infringed Article 455 of the Code of Civil Procedure;

WHEREAS, FOURTH AND SUBSIDIARILY, when the deceased's habitual residence at the time of death is not located in a Member State, the courts of the Member State in which succession property is located nevertheless have subsidiary jurisdiction to rule on the succession as a whole insofar as the deceased held the nationality of that Member State at the time of death; whereas these rules, resulting from Regulation No. 650/2012 of 4 July 2012 concerning jurisdiction, applicable law, recognition and enforcement of decisions and the acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession, are a matter of public policy and must be brought by the court ex officio; whereas, in this case, it is undisputed that [Y] [H] had French nationality and that he owned assets in France, such that the cour d'appel (Court of Appeal) should have verified its subsidiary jurisdiction; whereas, by failing to do so, the cour d'appel (Court of Appeal) infringed Article 10 of Regulation No. 650/2012 of 4 July 2012.