Effects of the European Legalization Regulation (2016/1191) under Polish Law

https://doi.org/10.63189/GSTM4363

The abolishment of the requirement of legalization of documents within the European Union has been a persistent myth circulated in the legal communities of the Member States. I recall that, while practicing as a civil-law notary in Kraków (until mid-2018), I engaged in a dispute first with a party and subsequently with a French notary concerning the necessity of obtaining an apostille^[1] in France for a notarial deed executed by this person there. The document in question constituted a power of attorney authorizing the transfer of ownership of real property situated in Poland. At the core of this disagreement lay Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016, 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 was commonly, albeit mistakenly, hailed by some as an instrument abolishing legalization within the Union.^[2] The paradox at that time was that the Regulation had not yet entered into application.^[3] Even following its entry into application on 16 February 2019, my Polish notarial colleagues continued to encounter similar cases. The assertions of the French notary, as well as those of other European practitioners who maintained that under Regulation 2016/1191 apostilles were no longer required for all documents within the Union, may rightly be dismissed as unfounded. Nevertheless, such claims reflect strong expectations among both the European public and members of the Union’s legal profession regarding the eventual adoption of a comprehensive EU instrument abolishing legalization of public documents in its entirety.

The purpose of these considerations is to delineate the actual scope of Regulation (EU) 2016/1191 with respect to the abolition of the requirement of legalization of documents. The practical effect of this Regulation depends upon the content of national provisions governing the recognition of foreign public documents. A brief analysis will be undertaken here using the example of Polish law.

The cornerstone of the analysis is Article 4 of the Regulation. This provision establishes that public documents covered by this Regulation and their certified copies shall be exempt from all forms of legalization and similar formality. The true extent of this abolition is therefore determined by the categories of documents expressly brought within the scope of the Regulation.

Pursuant to Article 2(1), the Regulation applies to public documents issued by the authorities of one Member State and intended for use in another Member State, “the primary purpose of which is to establish one or more of the following facts”^[4]: birth; a person being alive; death; name; marriage, including capacity to marry and marital status; divorce, legal separation or marriage annulment; registered partnership, including capacity to enter into a registered partnership and registered partnership status; dissolution of a registered partnership, legal separation or annulment of a registered partnership; parenthood; adoption; domicile and/or residence; nationality; absence of a criminal record, provided that public documents concerning this fact are issued for a citizen of the Union by the authorities of that citizen’s Member State of nationality. In addition, under Article 2(2), the Regulation applies to public documents the presentation of which may be required of citizens of the Union residing in a Member State of which they are not nationals when those citizens wish to vote or stand as candidates in elections to the European Parliament or in municipal elections in their Member State of residence.

It is only in relation to these categories of documents that the Regulation abolishes the requirement of consular legalization and equivalent certification in their entirety. It must be recalled that, in intra-EU practice, legalization had already been largely supplanted by the system of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents,^[5] as all EU Member States are parties thereto. Accordingly, the practical effect of Regulation 2016/1191 is best understood as eliminating the need for apostille certification in respect of documents falling within its scope.

Importantly, Regulation 2016/1191 does not affect the continued application of the Hague Convention^[6] in relations between EU Member States with respect to documents excluded from the scope of the Regulation. Nor does it displace the operation of bilateral legal assistance treaties between Member States which provide for a broader abolition of legalization. It merely establishes the primacy of the Regulation with regard to documents falling simultaneously within its scope and that of a bilateral treaty, which is a common EU law solution in the field of judicial cooperation in civil matters.

International and EU instruments abolishing the requirement of legalization are of a purely liberalizing nature, meaning that – regardless of their defined scope – they operate only to the extent that domestic law does not already provide a more liberal regime for the recognition of foreign documents. Thus, the actual impact of Regulation 2016/1191 in a given Member State is determined by the degree of liberalization embodied in its national rules on the recognition of foreign public documents. Where the domestic legal order accords evidentiary force to a broader range of foreign documents without the need for legalization, the existence of liberalizing international or EU instruments is, in practice, of no consequence.

This type of situation is particularly evident in Polish law. The general conditions governing the use of foreign documents in Polish civil proceedings (and, by analogy, in administrative proceedings, by virtue of the reference contained in Article 300 of the Act on Proceedings before Administrative Courts^[7]) are set out in Article 1138 of the Code of Civil Procedure.^[8] According to this provision, the probative value of a foreign official document is, as a rule, equivalent to that of a domestic official document within the Polish legal system. In other words, a foreign official document does not require authentication for evidentiary purposes in Poland – it does not require consular legalization. Once introduced into the Polish legal order, such a document constitutes ex lege evidence in proceedings before courts, notaries, and administrative bodies. Accordingly, from the perspective of Poland as a receiving state, international agreements or EU regulations liberalizing legalization requirements are essentially irrelevant. They do not affect domestic practice, which is already fully liberalized under the existing statutory regime.

There are, however, two exceptions to this rule under Article 1138(1) of the Code of Civil Procedure. Only in relation to these exceptions can international or EU instruments abolishing legalization requirements have any potential effect on Polish law. The question arises, therefore, as to whether these exceptions fall within the material scope of Regulation (EU) 2016/1191. Pursuant to the second sentence of Article 1138, foreign documents concerning the transfer of ownership of immovable property have no probative value under Polish law. Such a document acquires probative value only once it has been legalized by a Polish consul accredited in the state of origin of the document. This first exception applies categorically (en bloq) to all documents within the specified category.

The third sentence of Article 1138 provides the second exception, which applies where the authenticity of a foreign document is challenged by a party to the proceedings. In such circumstances, consular legalization is required for the document to be recognized as having probative value. This exception is ad casum in nature: a document whose authenticity is contested lacks probative force, whereas the same document, if uncontested, would retain it. In practice, the first exception is of far greater significance. Cross-border legal transactions frequently involve the use of foreign powers of attorney for the transfer of ownership of immovable property located in Poland, and these documents remain subject to consular legalization. The second exception has limited practical impact, as disputes over the authenticity of documents arise only rarely, typically in notarial practice.

While the applicability of the Hague Convention to the first category of documents requiring legalization under Article 1138(2) is beyond doubt, it is difficult to envisage any impact of Regulation 2016/1191 in this context. Documents relating to the transfer of ownership of immovable property are excluded from the Regulation’s scope.

Accordingly, the Regulation has no effect on the requirement to obtain an apostille for documents issued in other EU Member States relating to the transfer of ownership of immovable property situated in Poland, as covered by Article 1138(2) of the Code of Civil Procedure. In practice, apostille clauses continue to be required by Polish authorities, save in respect of documents originating in those EU Member States with which Poland has concluded bilateral treaties fully abolishing the legalization requirement.^[9]

The exemption from legalization provided by Regulation 2016/1191 is fully encompassed by Article 1138, first sentence of the Code of Civil Procedure. In other words, foreign documents falling within the scope of the Regulation and intended for use in Poland are already exempt from legalization under Polish law, irrespective of whether they originate within or outside the European Union. In this respect, the Regulation is redundant. Only in the event that a party contests the authenticity of a foreign document covered by the Regulation could its provisions preclude the operation of the legalization mechanisms that would otherwise apply under Article 1138, third sentence of the Code of Civil Procedure. In such cases, verification of authenticity is conducted pursuant to Article 14 of Regulation 2016/1191. However, this scenario is of negligible practical relevance. Accordingly, as regards the abolition of legalization, Regulation 2016/1191 has no tangible impact on legal transactions in Poland as the receiving state of foreign documents. In practice, a Polish lawyer engaged in day-to-day transactions is unlikely ever to encounter its effects in this regard.

By contrast, in the case of documents issued by Polish notaries, courts, or administrative bodies for use in other EU Member States, the Regulation may produce limited effects. In certain jurisdictions, legalization is required for all foreign documents. In such Member States, documents originating from Poland and covered by the scope of the Regulation are exempt from legalization. In practice, this applies chiefly to civil status records and documents attesting to survival or habitual residence.

The absence of practical application of the Regulation’s provisions on legalization in Polish law, and the substantive “emptiness” of its effects in Polish civil law transactions, does not mean that the instrument is without relevance. The majority of the provisions of Regulation 2016/1191 concern procedural facilitations relating to the categories of documents specified in Article 2(1) and (2), beyond the abolition of legalization. These include, among other things, the elimination of the obligation to produce certified copies where the original document is submitted (Article 5), and various simplifications relating to translations – notably the introduction of multilingual standard forms (Articles 6–12). In this respect, the Regulation cannot be regarded as legally insignificant.

The abolition of the requirement of legalization of documents remains an unfinished element of the European Union’s legislative activity. In this regard, a number of missteps were made ab initio. As early as 1987, proposals were advanced in the Convention drawn up by the Member States of the European Economic Community on the legalization of documents,^[10] which provided for a comparatively broad scope of application. However, the instrument failed to gain sufficient acceptance among the Member States^[11] and never entered into force.^[12]

A further, and more significant, error was reflected in the initial draft solutions,^[13] which sought to introduce an autonomous EU framework for recognizing the substantive legal effects of civil status records^[14] (which in no way concerned the evidentiary value of documents as instruments embodying legal acts, but rather amounted to an attempt to surreptitiously introduce rules that lacked public support within the Union). At the same time, the envisaged scope of the abolition of legalization was designed to be much broader than that ultimately adopted.^[15] Had that version been enacted, it would have substantially altered Polish practice, since it extended to documents concerning the transfer of ownership of immovable property – which under Polish law remain subject to legalization in accordance with Article 1138, second sentence, of the Code of Civil Procedure.

Ultimately, divergences between the legal systems of the Member States were deemed too significant to allow the proposed solutions to be implemented. Regulation 2016/1191 was therefore introduced as a minimum compromise. It is thus unsurprising that the scope of its legalization provisions fails to meet the expectations of practitioners within the Union engaged in cross-border legal transactions.

^[1] Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, opened for signature at The Hague, on 5 October 1961, United Nations Treaty Series 1965, vol. 7625, pp. 191–203. The Convention does not so much abolish the requirement of consular legalization by the authorities of the state of destination as replace it with certification in the form of apostilles, issued by the competent authorities of the state of origin.

^[2] OJ EU L 200 of 26.07.2016, pp. 1–136.

^[3] The Regulation entered into force at the end of July 2016. The EU legislative technique distinguishing between the date of entry into force and the date of application often causes confusion among addressees of the law. While such a mechanism may be justified in respect of instruments that require Member States to undertake extensive preparatory measures (e.g. Regulation (EU) No 650/2012), in the case of Regulation 2016/1191 it appears of limited practical sense.

^[4] Although the terms “primary purpose” and “establishing one or more of the following facts” employed in Article 2(1) of Regulation 2016/1191 are imprecise, this creates only marginal practical opportunities to broaden or narrow the Regulation’s scope.

^[5] See footnote 1.

^[6] The Regulation also reiterates certain points already apparent from the text of the Hague Convention. The authorization in Recitals 4–5 for citizens to obtain apostilles for documents covered by the Regulation is effectively redundant, since apostilles have always been obtainable at the request of the document holder, without verification of the intended use. Moreover, repeated references in the Regulation to apostilles under the Hague Convention are unnecessary, since under Article 3(2) of the Convention the Regulation is treated as a “more liberal agreement” and therefore takes precedence with respect to documents within its scope. The accumulation of such obvious statements in the explanatory memorandum reflects the poor quality of EU legislative drafting.

^[7] Act of 30 August 2002 – Law on Proceedings before Administrative Courts, consolidated text: Journal of Laws 2024, item 935, as amended.

^[8] Act of 17 November 1964 – Code of Civil Procedure, consolidated text: Journal of Laws 2024, item 1568, as amended.

^[9] See e.g. Agreement between the Polish People’s Republic and the Hungarian People’s Republic on Legal Assistance in Civil, Family and Criminal Matters, signed at Budapest, 6 March 1959 (Journal of Laws 1960 No. 8, item 54). Article 16 abolishes consular legalization for all categories of documents in civil and criminal matters. Consequently, in accordance with Article 3(2) of the Hague Convention, apostille certification is entirely unnecessary in Polish–Hungarian legal transactions.

^[10] Convention on the Abolition of Legalization of Documents in Member States of the European Communities, 25 May 1987 (the “Brussels Convention”), available at: https://www.consilium.europa.eu/en/documents/treaties-agreements/agreement/?id=1987011.

^[11] Due to the archaic drafting of its provisions and practical inconveniences in its application, the 1987 Convention proved unacceptable to Member States, particularly when compared with the solutions already offered by the Hague Convention. See Czubik, 2005, pp. 165–67.

^[12] The 1987 Convention has been applied provisionally by Belgium, Denmark, France, Ireland, Italy, Latvia (since 2004), and Estonia (since 2013). Its scope of application is broader than that of Regulation 2016/1191, and the entry into application of the Regulation has not affected its provisional operation.

^[13] Green Paper – Less Bureaucracy for Citizens: Promoting Free Movement of Public Documents and Recognition of the Effects of Civil Status Records, Brussels, 14 December 2010, COM (2010) 747 final.

^[14] See Mostowik, 2011, pp. 63–108. See also: Wojewoda, 2011, pp. 151–175; cf. Mostowik, 2012, pp. 467–486.

^[15] Proposal for a Regulation of the European Parliament and of the Council on Promoting the Free Movement of Citizens and Businesses by Simplifying the Acceptance of Certain Public Documents in the European Union and Amending Regulation (EU) No 1024/2012, Brussels, 24 April 2013, COM (2013) 228 final, 2013/0119 (COD). See also: Mostowik, 2014, pp. 187–212; Tsouka, 2015, pp. 43–50.

References

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European Commission (2010) Green Paper – Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records. COM (2010) 747 final, Brussels, 14 December 2010.

Mostowik, P. (2011) “O planach ujednolicenia reguł dowodzenia oraz wzajemnej skuteczności rejestracji stanu cywilnego w państwach członkowskich Unii Europejskiej (Zielona Księga z 14 grudnia 2010 r.),” Metryka. Studia z zakresu prawa osobowego i rejestracji stanu cywilnego, 1, pp. 63–108.

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Mostowik, P. (2014) “Między zniesieniem legalizacji zagranicznych dokumentów a uznawaniem skutków obcej rejestracji i rozumienia stanu cywilnego,” in Krzymuski, M. and Margoński, M. (eds.) Znad granicy ponad granicami. Księga dedykowana profesorowi Dieterowi Martiny. Warsaw: C.H. Beck, pp. 187–212.

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