17.10. 2018, epravo.cz, Kateřina Holubová, Vojtěch Steininger
The recognition of public documents from one state in another has long been a legal issue. The large amount of “paperwork” not only causes delays in court proceedings but also leads to increased costs and time burdens associated with obtaining stamps or certified translations. Since 2010, the European Union has been intensively engaged in simplifying the existing system for the recognition of public documents abroad—whether through apostilles or, where applicable, superlegalisation.
An apostille is generally the certification of a public document or a certified copy thereof. It confirms the authenticity of the document as well as the identity and capacity of the person who signed it, and it serves to enable the use of the apostilled document abroad.
Superlegalisation is the so-called higher form of certification of a document for use abroad. In this process, the administrative authority of the respective state confirms the authenticity of a public document issued in that state or of an officially certified copy.
If the states concerned are parties to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents of 5 October 1961, superlegalisation is not required between them; instead, only an apostille is necessary. Even in such cases, however, the requirement of certification by apostille may be completely eliminated through additional measures, historically in particular through bilateral international agreements.
In its current legislative initiatives[1], the European Union has focused in particular on public documents in the field of civil status. These are documents that certify fundamental information about citizens of the European Union and are very frequently used in the context of cross-border mobility[2]. In connection with the objective of ensuring the free movement of persons, the European Parliament and the Council of the European Union adopted, on 6 July 2016, Regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012. This Regulation (hereinafter “the Regulation”) was to become fully applicable on 16 February 2019. Its main objectives are to reduce bureaucratic barriers related to the certification of certain public documents, harmonise legal rules, and increase efficiency in detecting fraudulent and forged documents in EU Member States.
Content of the Regulation
The scope of the Regulation covers selected public documents issued by the authorities of one Member State and intended to be presented in another Member State of the European Union.[3] The aim is to “exempt such documents from legalisation or similar formalities and to simplify other formalities.” [4] It should be noted that this simplification does not apply to all public documents, but only to those expressly listed in the Regulation. Specifically, these are documents whose primary purpose is to certify one or more facts. The Regulation includes, among others: birth, proof that a person is alive, death, name, marriage (including capacity to marry and marital status), divorce or annulment of marriage, registered partnerships (including the capacity to enter into such partnerships and partnership status), dissolution or annulment of a registered partnership, parenthood, adoption, domicile or residence, nationality, and the absence of a criminal record[5] (hereinafter also referred to as “public documents”).
With regard to certification, the Regulation applies only to certified copies of public documents, but not to copies of certified copies. [6]
The Regulation also prohibits requiring a citizen of another Member State to submit a certified copy of a public document in addition to the original. [7] If a Member State allows the submission of a certified copy of a public document, its authorities must also accept a certified copy issued in another Member State. [8]
Further innovations concern the translation of public documents and their certification. A key novelty is that the administrative authority of the EU Member State in which the document is presented may not require a translation if the document is drawn up in the official language of that state or in a non-official language accepted by that state. Another improvement is that a certified translation produced by a person authorised under the law of a Member State to carry out such translations must be recognised in all Member States.[9]
To simplify translations of public documents, a so-called multilingual standard form is introduced. A template of this form is included in the annex to the Regulation and is provided in all official languages of the European Union. Its main advantage is that, in principle, the administrative authority of an EU Member State may not require a translation if this form is attached to the public document. However, the Regulation allows a certain degree of administrative discretion. Authorities may assess whether the information contained in the multilingual standard form is sufficient for processing the document. If not, they may require the person concerned to provide a translation despite the completed form.
Multilingual standard forms are not standalone documents[10], as they merely reflect the content of the public documents to which they are attached. They serve to reduce translation costs. However, the Regulation acknowledges that the content of certain documents, such as court decisions, cannot be fully captured in the form. For such documents, an apostille may still be required. [11]
The Regulation also provides for a specific mechanism of cooperation between the authorities of Member States receiving public documents and those that issued them, in cases of doubt regarding authenticity. If the administrative authority has doubts about the capacity of the signing person or the authenticity of the signature, seal, or stamp, and cannot resolve these doubts, it may request additional information from the authority of the issuing state. This serves as a measure to combat fraudulent and forged public documents. [12]
Conclusion
The requirement of apostilles or, where applicable, superlegalisation of public documents remains a significant and costly issue in legal practice. By adopting this Regulation, the European Union has provided a clear direction for the future development of the previously fragmented legal framework concerning apostilles and legalisation. However, it should be emphasised that the Regulation does not resolve all problems. Apostilles continue to particularly affect cross-border entrepreneurs who are required to have their documents certified as public documents, often involving considerable time and financial costs. On the positive side, the European Union is clearly striving to address this issue.
At the time of adopting the Regulation, it was also envisaged that in 2021 an extension of the simplification of certification of public documents would be examined. This review includes documents relating to the legal status and representation of companies, diplomas, certificates, and other proof of qualifications, as well as public documents confirming recognised disabilities. The long-term goal is the creation of common European public documents.
[1] Green Paper: Less bureaucracy for citizens: promoting the free movement of public documents and the recognition of the effects of civil status documents.
[2] European Commission. Free movement of public documents. [online]. europa.eu, 22 August 2016 [accessed 19 July 2018]. Available at: https://ec.europa.eu/info/law/cross-border-cases/administrative-cooperation-circulation-public-documents_en .
[3] The definition of a public document applicable under this Regulation is set out in Article 3(1).
[4] Article 1 of the Regulation
[5] Article 2 of the Regulation.
[6] Recital 8 of the Preamble to the Regulation.
[7] Article 5(1) of the Regulation.
[8] Article 5(2) of the Regulation.
[9] Article 6 of the Regulation.
[10] Recital 22 of the Preamble to the Regulation.
[11] Recital 23 of the Preamble.
[12] Article 13 et seq. of the Regulation.