BC v S. C. P. Attal et Associés (C-321/24)

Contents

Judgment of the Court (First Chamber)30 October 2025^note(Reference for a preliminary ruling — Free movement of capital — Article 63(1) TFEU — Succession — Mandatory use of a notary for the purpose of drawing up a declaration of succession in a Member State other than that in which the succession was opened — Legislation of that Member State providing that that notary’s fees are calculated on the basis of the total gross assets of the estate — Parallel exercise by the Member States of their powers of taxation — No restriction on the free movement of capital)In Case C‑321/24,REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal judiciaire de Paris (Court of Paris, France), made by decision of 4 April 2024, received at the Court on 30 April 2024, in the proceedingsBCvSCP Attal et Associés,THE COURT (First Chamber),composed of F. Biltgen, President of the Chamber, T. von Danwitz, Vice-President of the Court, acting as Judge of the First Chamber, I. Ziemele and A. Kumin (Rapporteur) and S. Gervasoni, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– SCP Attal et Associés, by T. Ronzeau, avocat,– the French Government, by B. Fodda, M. Guiresse and T. Lechevallier, acting as Agents,– the European Commission, by A. Ferrand, M. Mataija and G. von Rintelen, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 22 May 2025,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 63(1) and Article 65(1)(a) and (b) TFEU.

2The request has been made in proceedings between BC and SCP Attal et Associés concerning a certificate of verification of the latter’s costs.

Legal context

International law

3Article 10 of the convention entre la France et la Belgique tendant à éviter les doubles impositions et à régler certaines autres questions en matière d’impôts sur les successions et de droits d’enregistrement (Convention between France and Belgium for the avoidance of double taxation and the resolution of certain other questions relating to inheritance tax and registration charges), signed in Brussels on 20 January 1959 (‘the Franco-Belgian Convention’), states:‘Notwithstanding the provisions of the preceding articles:(a) Each State retains the right to calculate tax on assets which are reserved for its taxation in accordance with the average rate which would be applicable if account were taken of all the assets which its domestic legislation would allow it to tax;(b) The State in which the deceased person was domiciled at the time of death may, in accordance with its national legislation, also tax the assets situated in the other State listed in Articles 4 to 7. In that case, it shall set off against its tax, in so far as it is levied on those assets, the amount of the tax levied in the other State in respect of the same assets.’

French law

4Article 750 ter of the code général des impôts (‘the General Tax Code’), in the version applicable to the main proceedings, states:‘The following shall be subject to inheritance or gift tax:1. Movable and immovable property situated in France or outside France, including government securities, equities, assets or rights forming part of a trust as defined in Article 792-0 bis and income capitalised therein, debts and, in general, all French or foreign securities of any kind, where the donor or the deceased person has his tax residence in France within the meaning of Article 4B;2. Movable and immovable property, whether owned directly or indirectly, situated in France, including French Government securities, equities, assets or rights forming part of a trust as defined in Article 792-0 bis and income capitalised therein, debts and French securities, where the donor or the deceased person does not have his tax residence in France within the meaning of Article 4B.…3. Movable and immovable property situated in France or outside France, including French Government securities, equities, assets or rights forming part of a trust as defined in Article 792-0 bis and income capitalised therein, debts and, in general, all French or foreign securities of any kind received by the heir, donee, legatee or the beneficiary of a trust as defined in Article 792‑0 bis who has his or her tax residence in France within the meaning of Article 4B. …’

5Article 800 of the General Tax Code is worded as follows:‘I. – Heirs, legatees or donees, their trustees or guardians are required to file a detailed declaration.…’

6The services provided, inter alia, by a notary and subject to a regulated tariff are listed in Table 5 of annexed Article 4-7, annexed to Article R444-3(1) of the code de commerce (Commercial Code). Line 8 of that table refers to the ‘declaration of succession’.

7The tariff for that declaration is laid down in Article A444-63 of the Commercial Code, which provides that the fees received by the notary are to be calculated in proportion to the total gross assets of the estate according to a scale based on four tax bands.

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

8BC, a French national residing in France, is, following the death of her sister, who was a French national residing in Belgium, the sole heir of movable and immovable property situated in both France and Belgium.

9The succession was opened by a notary established in Belgium. In accordance with Belgian law, that notary drew up, in addition to the certificate of inheritance, a declaration of succession covering all of the assets situated in France and in Belgium. In return for that declaration, BC paid the notary a fee calculated on the basis of the total gross assets of the estate.

10BC was required to use the services of a notary established in France to draw up the declaration of succession provided for in Article 800 of the General Tax Code for the purpose of calculating taxes relating to the succession and appointed Attal et Associés as notary. In return for drawing up that declaration, which must include assets located both in France and abroad, BC made an advance payment to Attal et Associés calculated on the basis of the estimated value of the total gross assets of the estate.

11BC subsequently paid inheritance tax in France, calculated solely on the movable and immovable assets situated in France. She also paid inheritance tax in Belgium, calculated on the entirety of the immovable and movable assets situated in France and in Belgium, but reduced by the taxes paid in France, in accordance with Article 10(b) of the Franco-Belgian Convention. BC thus did not suffer double taxation of the estate’s assets.

12Attal et Associés applied to the registrar of the tribunal judiciaire de Paris (Court of Paris, France) for a certificate of verification of costs in order to have formally assessed, inter alia, the fees owed to it in return for drawing up the declaration of succession.

13BC challenged the certificate of verification of costs drawn up by that registrar before the referring court, the tribunal judiciaire de Paris (Court of Paris). She asks the referring court to draw up a new certificate, so that the fees due to Attal et Associés in respect of the declaration of succession are calculated solely on the basis of the share of gross assets located in France, and not on the basis of the total gross assets declared, and that she be reimbursed the difference in respect of the fees already paid in advance.

14Taking the view that BC’s inheritance entails personal capital movements involving two Member States, namely the French Republic and the Kingdom of Belgium, and in view of the fact that BC was required, under French law, to use the services of a notary established in France to draw up the declaration of succession in that Member State, the referring court asks whether the fact that, under French law, that notary’s fees must, like those of the Belgian notary, be calculated on the basis of the total gross assets of the estate constitutes a restriction on the movement of capital, prohibited by Article 63(1) TFEU, in that the value of the inheritance received by BC would be reduced.

15If so, the referring court also asks whether some of the derogations provided for in Article 65(1)(a) and (b) TFEU are applicable in such a situation.

16In those circumstances the tribunal judiciaire de Paris (Court of Paris) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Is Article 63(1) [TFEU] to be interpreted as precluding the dual remuneration of the notaries of two Member States of the European Union involved in the same succession, which includes assets in the two Member States, the calculation of which is also based on the total gross assets of the estate, without taking into account the remuneration paid to the other notary, whereas the involvement of the notary is a legal requirement?(2) Is Article 63(1) [TFEU] to be interpreted as precluding the remuneration of a notary, whose involvement in a succession including assets in two Member States of the European Union is a legal requirement, from being calculated based on the total gross assets of the estate and not just on the gross assets located in his or her Member State?(3) Are [Article 63(1) and Article 65(1)(a)] [TFEU] to be interpreted as meaning that the dual remuneration of two notaries, involved in the same succession, which is again calculated based on the total gross assets of the estate located in two Member States, can constitute a “relevant provision of their tax law” derogating from the prohibition on restricting movements of capital laid down in the first of those articles, whereas the involvement of the notary is a legal requirement?(4) Are [Article 63(1) and Article 65(1)(b)] [TFEU] to be interpreted as meaning that the dual remuneration of two notaries, involved in the same succession, which is again calculated based on the total gross assets of the estate located in the two Member States, can constitute an essential measure to thwart tax infringements or a procedure for the declaration of capital movements for administrative or statistical information purposes derogating from the prohibition on restricting capital movements laid down in the first of those articles, whereas the involvement of the notary is a legal requirement?’

Procedure before the Court

17On 24 October 2024, the Court sent a request for information to the referring court concerning the legal background to the dispute in the main the proceedings. On 20 December 2024, the referring court replied to that request.

Admissibility of the request for a preliminary ruling

18The French Government takes the view that the request for a preliminary ruling is inadmissible. It submits that, contrary to Article 94(b) of the Rules of Procedure of the Court of Justice, the referring court did not set out in that request the national provisions which lay down the requirement to use a notary in order to draw up a declaration of succession, given that none of the provisions referred by the referring court in that request requires an heir such as BC to use the services of a notary in order to draw up such a declaration. Given that the questions referred for a preliminary ruling are based on that alleged requirement, which, according to the French Government, does not arise from national law in a situation such as that in the main proceedings, that government finds, in essence, that the interpretation of EU law requested is not objectively necessary for the resolution of the dispute in the main proceedings, but is general or hypothetical in nature.

19In that regard, the Court recalls that it is solely for the national courts before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 13 July 2000, Idéal tourisme, C‑36/99, EU:C:2000:405, paragraph 20, and of 6 March 2025, Anikovi, C‑395/23, EU:C:2025:142, paragraph 31 and the case-law cited).

20According to settled case-law, which is now reflected in Article 94(b) of the Rules of Procedure, the need to provide an interpretation of EU law which will be of use to the national court makes it necessary, in particular, for that court to define the regulatory context of the questions it is asking (judgments of 26 January 1993, Telemarsicabruzzo and Others, C‑320/90 to C‑322/90, EU:C:1993:26, paragraph 6, and of 6 March 2025, Anikovi, C‑395/23, EU:C:2025:142, paragraph 32 and the case-law cited).

21In the present case, the referring court states, in the request for a preliminary ruling, that, under national law and having regard to the circumstances of the succession at issue in the main proceedings, an heir such as BC is required to use the services of a notary established in France in order to draw up the declaration of succession in that Member State. It stated, in response to the Court’s request for information referred to in paragraph 17 above, that, although that requirement is not laid down in a specific provision in French law, it applies in such a situation.

22In those circumstances, it must be held that the request for a preliminary ruling satisfies the requirement that, under Article 94(b) of the Rules of Procedure, the regulatory framework of the questions referred for a preliminary ruling must be defined.

23In addition, given that the referring court has confirmed, in its reply to the Court’s request for information, the accuracy of the premiss on which the questions referred for a preliminary ruling are based, namely that a person in BC’s situation is required to use the services of a notary in France in order to draw up the declaration of succession, it is not obvious that the interpretation of EU law requested bears no relation to the actual facts of the main action or its purpose, or that the problem raised is hypothetical, within the meaning of the case-law referred to in paragraph 19 above.

24Furthermore, although the interpretation of national law adopted by the French Government in relation to the requirement to use a notary differs from that adopted by the referring court, it must be borne in mind that it is not for the Court, in the context of the procedure laid down in Article 267 TFEU, to rule on the interpretation of national law and to determine whether the interpretation given by the national court is correct, since, in the context of that procedure, which is based on a clear separation of functions between the national courts and the Court, any assessment of the facts and of national law is a matter for the national court alone (judgment of 11 January 2024, Nárokuj, C‑755/22, EU:C:2024:10, paragraph 23 and the case-law cited).

25It follows that the request for a preliminary ruling is admissible.

Consideration of the questions referred

The first and second questions

26By its first and second questions, which it is appropriate to examine together, the referring court asks the Court, in essence, whether Article 63(1) TFEU must be interpreted as precluding legislation of a Member State under which the fees of a notary whose services an heir is required to use, in certain circumstances, to draw up the declaration of succession provided for by national law are calculated on the basis of the total gross assets of the estate including property situated in that Member State and in another Member State, and not only on the basis of the gross assets corresponding solely to property situated in the first Member State, without taking into account the fees paid by the heir in return for the declaration of succession drawn up by a notary in the second Member State, which were also calculated on the basis of the total gross assets of the estate.

27In that regard, it must be borne in mind that, according to settled case-law, although direct taxation falls within their competence, Member States must exercise that competence consistently with EU law and particularly the fundamental freedoms guaranteed by the TFEU (judgment of 12 October 2023, BA (Inheritance – Public housing policy in the European Union), C‑670/21, EU:C:2023:763, paragraph 36 and the case-law cited).

28Article 63(1) TFEU lays down a general prohibition on restrictions on movements of capital between Member States and between Member States and third countries.

29It is apparent from the case-law that the tax treatment of succession, which consists of the transfer to one or more persons of the estate left by a deceased person, that is to say, a transfer to the heirs of the ownership of the various assets, rights and items of which that estate is composed, falls within the TFEU provisions on the movement of capital, in particular Article 63 TFEU, except in cases where the constituent elements are confined within a single Member State (see, to that effect, judgments of 23 February 2006, van Hilten-van der Heijden, C‑513/03, EU:C:2006:131, paragraph 41; of 21 December 2021, Finanzamt V (Inheritance – Partial allowance and deduction of reserved portions), C‑394/20, EU:C:2021:1044, paragraph 29; and of 12 October 2023, BA (Inheritance – Public housing policy in the European Union), C‑670/21, EU:C:2023:763, paragraph 38).

30In the present case, the order for reference states that, in the dispute in the main proceedings, the French legislation on notaries’ fees relating to the declaration of succession is applied in a situation in which a person resident in Belgium at the time of his or her death has left to a person resident in France assets situated in those two Member States and subject to inheritance tax in each of those Member States. In those circumstances, such a situation cannot be regarded as a purely domestic situation (see, by analogy, judgment of 17 January 2008, Jäger, C‑256/06, EU:C:2008:20, paragraph 26).

31The cross-border nature of that situation cannot be called into question by the fact that the fees of the notary responsible for drawing up the declaration of succession in France, as provided for by national law, are not, in themselves, part of the estate concerned by the succession and do not give rise to a cross-border movement of capital, given that that notary is remunerated independently and separately from the notary established in Belgium.

32It is apparent from the combined provisions of Article 750 ter and Article 800 of the General Tax Code that the declaration of succession drawn up by the notary in France in a situation such as that at issue in the main proceedings includes movable and immovable property situated both in France and abroad and the notary’s fees must therefore, in accordance with national legislation, be calculated on the basis of the total gross assets of the estate. In addition, in the case of a cross-border succession involving assets situated in France and in Belgium, Article 10(a) of the Franco-Belgian Convention provides that each of the States concerned retains the right to calculate the tax on assets which are subject to its taxation according to the average rate which apply if account were taken of all the assets which its domestic legislation would allow it to tax.

33Accordingly, the involvement of a notary in France for the purposes of drawing up a declaration of succession is a necessary step to enable the French tax authorities to calculate inheritance tax, so that the method of calculating that notary’s fees and the fact that an heir such as BC pays notaries’ fees in each of the Member States in which the assets forming part of the estate are located are inextricably linked to that estate and its cross-border nature.

34It should be noted, for the sake of completeness, that 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 (OJ 2012 L 201, p. 107) is not relevant in this context, given that, in accordance with Article 1(1) of that regulation, it does not apply to tax matters.

35Consequently, a situation such as that in the main proceedings falls within the scope of movement of capital within the meaning of Article 63(1) TFEU.

36In those circumstances, it is appropriate to examine whether national legislation such as that at issue in the main proceedings constitutes a restriction on the movement of capital within the meaning of Article 63(1) TFEU and, if so, whether such a restriction is justified.

37In that regard, it must be borne in mind that the concept of a ‘restriction’, within the meaning of that provision, includes State measures which are discriminatory in nature in that they establish, directly or indirectly, a difference in treatment between domestic and cross-border movements of capital which does not correspond to an objective difference in circumstances, and which are therefore liable to deter natural or legal persons from other Member States or third countries from carrying out cross-border movements of capital (judgment of 30 April 2025, Finanzamt für Großbetriebe, C‑602/23, EU:C:2025:290, paragraph 45).

38The Court has held, in relation to inheritance tax, that national legislation which introduces such a difference in treatment and which results in inheritances involving non-residents or containing assets located in another Member State being subject to a higher tax liability than that imposed on inheritances involving only residents or containing only assets located in the Member State of taxation, and which therefore has the effect of reducing the value of the inheritance, constitutes a restriction on the free movement of capital prohibited by Article 63(1) TFEU (see, to that effect, judgment of 30 June 2016, Feilen, C‑123/15, EU:C:2016:496, paragraph 19 and the case-law cited).

39It is apparent from the case-law that even national legislation which applies without distinction to domestic and cross-border situations may constitute a restriction on the free movement of capital where it has the de facto effect of placing cross-border situations at a disadvantage (see, to that effect, judgment of 30 April 2025, Finanzamt für Großbetriebe, C‑602/23, EU:C:2025:290, paragraph 47 and the case-law cited).

40It must also be borne in mid that, in the absence of harmonisation at EU level, the disadvantages that could arise from the parallel exercise of tax competences by different Member States, to the extent that such an exercise is not discriminatory, do not constitute restrictions on the freedom of movement. The Court has thus noted, in particular, that measures, the only effect of which is to create additional costs in respect of the movements of capital in question and which affect in the same way the movements of capital between Member States and those within one Member State, do not fall within the scope of Article 63(1) TFEU (see, by analogy, judgments of 8 September 2005, Mobistar and Belgacom Mobile, C‑544/03 and C‑545/03, EU:C:2005:518, paragraph 31, and of 22 September 2022, Admiral Gaming Network and Others, C‑475/20 to C‑482/20, EU:C:2022:714, paragraph 43 and the case-law cited).

41In the present case, the French legislation on notaries’ fees in respect of declarations of succession does not introduce any difference in treatment between purely domestic situations and cross-border situations, given that those fees are calculated in all cases on the basis of the total gross assets of the estate, irrespective of where the assets concerned are located.

42In addition, as stated in paragraph 31 above, notaries’ fees do not, as such, form part of the assets of the estate, but constitute remuneration regarded as, in principle, just and equitable for the provision of the service provided by the notary for the purpose of drawing up a declaration of succession in relation to the total gross assets of the estate.

43It is true that an heir such as BC may, in the case of a cross-border succession involving assets situated both in France and in Belgium, have to bear a heavier burden than that which he or she would have incurred in the case of a purely domestic succession on account of the fact that he or she must also pay the fees of a notary established in Belgium for the purpose of drawing up such a declaration in that Member State.

44Nevertheless, it must be borne in mind, as stated in paragraph 32 above, that the fees of the notary whose services he or she is required to use in France are calculated on the basis of the total gross assets of the estate because, under French tax law, the declaration of succession drawn up by that notary must list those assets in order to enable the tax authorities to calculate the tax duties relating to the estate, pursuant to Article 10(a) of the Franco-Belgian Convention.

45Consequently, the fees which an heir such as BC must pay to a notary established in France in addition to the fees which he or she must pay to a notary established in Belgium must be regarded, in accordance with the case-law referred to in paragraph 40 above, as disadvantages, in the form of additional costs, arising from the parallel exercise of the tax competences of the French Republic and the Kingdom of Belgium. As is apparent from paragraphs 41 and 42 above, that exercise is not discriminatory and those additional costs affect capital movements between those two Member States and those within the French Republic in the same way.

46In those circumstances, the national legislation at issue in the main proceedings cannot be regarded as imposing a restriction on the free movement of capital prohibited under Article 63(1) TFEU.

47In the light of all the foregoing considerations, the answer to the first and second questions is that Article 63(1) TFEU must be interpreted as not precluding legislation of a Member State under which the fees of a notary whose services an heir is required to use, in certain circumstances, to draw up the declaration of succession provided for in national law are calculated on the basis of the total gross assets of the estate, including property situated in that Member State and in another Member State, and not solely on the basis of the gross assets corresponding to the property situated in the first Member State, without taking into account the fees paid by the heir in return for the declaration of succession drawn up by a notary in the second Member State, which were also calculated on the basis of the total gross assets of the estate.

The third and fourth questions

48In view of the answer given to the first and second questions, there is no need to answer the third and fourth questions.

Costs

49Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (First Chamber) hereby rules: Article 63(1) TFEUmust be interpreted as not precluding legislation of a Member State under which the fees of a notary whose services an heir is required to use, in certain circumstances, to draw up the declaration of succession provided for in national law are calculated on the basis of the total gross assets of the estate, including property situated in that Member State and in another Member State, and not solely on the basis of the gross assets corresponding to the property situated in the first Member State, without taking into account the fees paid by the heir in return for the declaration of succession drawn up by a notary in the second Member State, which were also calculated on the basis of the total gross assets of the estate.