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  1. 2 Pazdan M.

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1

Czy polski notariusz może być uważany za sąd w rozumieniu art. 3 ust. 2 rozporządzenia nr 650/2012?

100%
Pazdan M.
Rejent
|
2021
|
issue 9 (365)
11-34
EN
In this article, we can find a view criticism, according to art. 36 § 2 sentence 1 of the Family and Guardianship Code the contents of which serve to indicate that statutory mutual statutory representation of the spouses to make the activity of managing the assets of the spouses. In the author’s opinion a role of this provision is different. From art. 36 § 2 sentence 1 of the Family and Guardianship Code the authorization of each spouse results remaining in a joint marital property regime to exercise independently joint subjective rights towards third parties, i.e. the marital property subjective rights, including entitlement to disposal of these rights. In case of the legal acts obliging one of spouses to enter into financial commitment does not mean that another spouse is his/her party. In case of acquiring a property right by one of the spouses, its covering with the joint property of the spouses is a consequence of obliging art. 31 § 1 sentence 1 of the Family and Guardianship Code, and also art. 33 point 2 in fine of the Family and Guardianship Code.
2

Notariusz a wybór prawa w sprawach spadkowych

100%
Pazdan M.
Rejent
|
2024
|
issue 8 (400)
11-28
EN
The preliminary questions posed to the CJEU by the Polish notary and by the District Court in Opo-le regarding the admissibility of the choice of law in succession matters did not lead to conclusive answers. The preliminary question formulated by the notary public was deemed inadmissible by the Court (order of 1.09.2021, rectified by order of 10.01.2022, C - 387/20). In reply to the que-stion posed by the District Court in Opole, on the other hand, the European Court found (judg-ment of 12.10.2023 in case C - 21/22) that a third-country national residing in a Member State may make a choice of home law on the basis of Article 22 of EU Regulation No. 650/2012, while at the same time Article 75 of the same Regulation does not preclude the exclusion of such a possibi-lity in a situation where a previously concluded bilateral agreement .designates the law applicable to succession and does not expressly provide for the possibility of choosing another law..Given the above, the District Court in Opole, by the order of 10.01.2024 (II Cz 438/21) turned to the Su-preme Court with the legal question whether a Ukrainian citizen is permitted to make a choice of law, as provided for in Article 22 of the Succession Regulation (No 650/2012). Considering argu-ments in favor of a positive answer to the above-mentioned question, the author recalls the ar-gument already made in the literature, that the 1993 Polish-Ukrainian agreement limits itself to conflict-of law rules based on objective connecting factors, while it omits the question of admissi-bility of the subjective choice of law. Thus, in this regard, the conflict rules in force in the Member States - parties to the bilateral agreement in question come into play. This concept was supported in the course of the proceedings before the CJEU by the governments of Poland and Spain. For his part, the author points to the possibility of invoking, in order to justify the application of Article 22 of EU Regulation No. 650/2012, the principle of equal treatment of the other contracting state.s citizens, as expressed in Article 36 of the 1993 Polish-Ukrainian agreement. This opens up the po-ssibility for a citizen of Ukraine, drawing up a will with the participation of a Polish notary, to sub-ject his or her inheritance under Article 22(1) to Ukrainian law. Obviously, it is also not excluded to use in succession matters the technique of the incorporation of the legal regulation. The limits the-reto are then set by the mandatory rules of the law applicable to succession matters, as determi-ned by the objective conflict-of-law rules. This also applies to Polish-Ukrainian relations.
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