Validity of Civil Law Documents Executed for Ukrainian Citizens by Consuls of Other Countries for Use in Poland

https://doi.org/10.63189/NPIB6569

1.Introduction

In recent months, powers of attorney concerning the transfer of ownership of real estate located in Poland, issued by consuls of other EU countries accredited in Ukrainian cities – primarily German consular officials in Kyiv – have sporadically, yet regularly, appeared in the Polish legal system. For example, the principal appearing before the consul was a citizen of Ukraine and sought to authorize a property transaction in Poland. This situation is unusual, as civil law acts performed by the consul are typically intended for use in the consul's sending country. In this case, however, the deed was to take effect in a third country (Poland), while being issued by a consul of the sending state (Germany) accredited in the receiving state (Ukraine). Moreover, there are no specific EU regulations governing the notarial activities of consuls in such cases.

The legality of these consular actions under the sending state's law does not always align with how they are to be assessed under the destination state's law. Their effectiveness can be assured only if the deed is to be used in the consul's sending state – in this case, the document would be considered a domestic rather than a foreign one.^[1] Some level of certainty also exists when a consul from the sending state issues a deed in the receiving state that is also the destination state, provided this arrangement is allowed under existing treaties between the two countries.^[2]

In the case of issuing a consular deed that is to have effect in any third country, the validity of such a document shall be determined by the law of the third country. The third country, through its authority to which the deed is presented, will, in the process of recognizing or refusing to recognize the foreign deed and the effects of the actions reflected in its content, apply its own relevant regulations and international law and practice. In Polish law, the provisions in this regard result from several acts of domestic law, ad casum appropriately modified by provisions of international agreements.

The appearance of such deeds in the Polish legal framework, particularly those establishing powers of attorney, has raised critical questions about both the evidentiary value of the deed itself and the formal and substantive validity of the legal act it represents. From a private law perspective, these matters must be examined separately: the deed's probative value is a matter of procedural law,^[3] while the legal effectiveness of the act it reflects is a conflict-of-law issue of private international law.^[4]

For a power of attorney issued in a foreign jurisdiction to be valid and enforceable in the target domestic legal system, several key conditions must be met. First, the foreign deed must hold the same evidentiary value as a domestic one. Second, the form of granting a power of attorney must comply with the formal requirements of the applicable law. Third, it must be effective under the relevant substantive law. Additionally, in special cases, it is crucial that the public authority organ responsible for formalizing the power of attorney acts within its jurisdiction and competence to ensure the validity of the deed. The purpose of this text is to apply these criteria to assess the effectiveness of consular powers of attorney.

2. Evidentiary Value of a Foreign Deed

The evidentiary value of a foreign deed must match that of domestic documents. Whether a foreign deed requires consular legalization to achieve this equal status, or whether it inherently holds such evidentiary value ex lege, depends on the legal provisions of the country where the deed is intended to be used.

For example, in Polish law these conditions are set by Article 1138 of the Code of Civil Procedure,^[5] in Hungarian law it is Section 593 of the Code of Civil Procedure.^[6] In addition, the provisions of international law may modify or amend national laws in this regard. Provisions of legal aid agreements concluded between states may introduce full equalization of the evidentiary value of deeds in state-parties. In such cases, consular legalization is completely unnecessary for any category of deeds in the legal system.^[7] There are also relevant multilateral conventions clarifying this matter.^[8]

The Hague Convention^[9] does not apply to consular documents, as they are explicitly excluded under Article 1(3)(a). As a result, apostille clauses cannot be attached to deeds issued by a consular agent. This exclusion is logical since, if a consular document is intended for use in the consul's sending country, it is treated as a national document under that country's laws. It is rare for such documents to be executed for use in the receiving state. In cases where they are, attaching an apostille from the sending state would contradict the intended purpose of consular documents.

To address the exclusion of consular deeds from the Hague Convention, a separate international instrument was established: the European Convention on the Abolition of Legalization of Documents Executed by Diplomatic Agents or Consular Officers (signed in London on June 7, 1968).^[10] This convention explicitly exempts consular documents from the requirement of consular legalization. Consequently, any consular document issued by a member state's consul (regardless of the country where the consul is accredited) has full evidentiary force in other member states. Germany is a party to the Convention, as is Poland.^[11] In the case at hand, it is important to note that the consular document in question is considered a document of the sending state – in this case, a German document. Therefore, a document issued by a German consul does not require legalization to be fully valid in other states that are parties to the Convention, including Poland. This ensures that a German consul's document has full evidentiary power in Poland without further legalization, regardless of national legal requirements.

3. Formal Validity of the Deed

Another important consideration is the formal validity of the act reflected in the document. Traditionally, principles of private international law generally recognize the formal validity of an act if it complies with the law of the place where it was performed (lex loci actus).^[12] In the context of consular acts, this means that the law of the sending state applies. While modern diplomatic and consular law has moved away from the notion of extraterritoriality of a diplomatic post or consular office – which used to be prevalent in international legal theory up until the 18^th century – consuls still apply the laws of the sending state when performing their official duties.

The question of whether a national authority is acting within its jurisdiction is rarely disputed. Powers of attorney or other documents issued by national authorities are typically unquestioned, as these authorities perform acts in accordance with their own legal frameworks, both formally and materially. However, when it comes to consular agents, the scope of their civil law powers must also be considered in light of the receiving state's approval of such actions.^[13] In other words, a consul acts in accordance with the law of the sending state as long as the receiving state does not object to the consul’s application of that law within its territory. In the case under review, the German consul, acting as a civil-law notary under German civil law, followed the legal formalities prescribed by the private law of Germany (the sending state). The receiving state, Ukraine, implicitly consented to the consul’s notarial activities, agreeing to the application of German law within its territory. Therefore, in this case, German law applied by the German consul in Ukraine can be regarded as the governing law for the act (lex loci actus). As a result, the act is considered formally valid and effective within the Republic of Poland.

4. Substantive Evaluation of the Deed

Another critical issue is the substantive evaluation of the action outlined in the document, which also presents a conflict-of-law matter. Under Polish law, i.e. the governing law of the country where the power of attorney is intended to take effect, the evaluation of its validity is conducted in accordance with Article 23 of the Act on Private International Law. As a general rule, when no explicit choice of law is made for a power of attorney issued by a natural person, where the attorney is also a natural person, the applicable law is the law of the place where the attorney acts. In this case, that is Polish law. It is important to note that, due to the substantial similarities between the legal frameworks of countries based on Roman legal traditions, such as Poland and Germany, the substantive requirements for a power of attorney in both systems are largely aligned. Consequently, a power of attorney issued by a German consul in Ukraine will typically be materially consistent with Polish law.

5. Scope of consular notarial function

In addition to passing the classic three-step test – covering evidentiary value, form, and substance – one more significant issue arises for the power of attorney discussed here: the consul's subject matter jurisdiction. This aspect presents the greatest challenge because if an act is performed outside the consul's legal authority, it may be deemed invalid and could lack any legal effect.

It is important to highlight the provisions of the European Convention on Consular Functions, signed in Paris on December 11, 1967.^[14] These provisions clearly prohibit consuls to perform acts on behalf of non-citizens of the sending state when such acts involve real estate located in a third country.^[15] Similar restrictions on consular powers, particularly regarding real estate, are reflected in numerous bilateral consular conventions worldwide, many of which are binding on Poland.

This principle is also enshrined in the national laws of many countries. For instance, Article 28 of the Polish Consular Law^[16] limits the scope of consular notarial deeds to matters that have legal effect within the territory of the sending state, regardless of the nationality of the person involved. Interestingly, the German Consular Act contains no such limitation.^[17]

It is reasonable to assume that there exists a norm of customary consular law which restricts the legal effects of a consul's civil actions, particularly those involving real estate, to the territory of the sending state. This norm, reflected in numerous consular conventions and national laws, would allow the state where the document is intended to be used to reject the recognition of an act performed by a consul accredited to a third state.

Given the wide range of international conventions that impose such limitations, it is plausible that the authorities in the destination country may refuse to recognize consular acts of such kind. This is especially likely as the occurrence of consular actions related to foreign real estate has become more frequent in recent practice.

^[1] Thus, the case under consideration would raise no doubt if the document intended for use in Poland was drawn up by the Polish consul in Kyiv.

^[2] It is important to note the provisions in various consular conventions that restrict the performance of consular acts concerning property located in the receiving country. See, for instance, Article 35(1)(c) of the Consular Convention between the Polish People's Republic and the Hungarian People's Republic, signed in Warsaw on June 5, 1973 (Journal of Laws 1974, No. 5, item 28).

^[3] This issue is typically addressed in the provisions of civil procedure. Many civil procedure codes, including in Poland, contain a dedicated section for international procedural matters (see the Act of November 17, 1964 – Polish Code of Civil Procedure, Journal of Laws 2023, item 1550, as amended). Importantly, the provisions of the Code of Civil Procedure, including those related to cross-border issues, do not apply when an international agreement or European regulation provides otherwise, which is increasingly common in the context of contemporary international obligations).

^[4] In various legal systems, conflict-of-laws provisions are often codified separately. For instance, in Polish law, they are outlined in the Act of February 4, 2011, on Private International Law (Journal of Laws 2023, item 503). In some jurisdictions, this law also contains provisions on international civil procedure (e.g. in Swiss law, see Bundesgesetz über das Internationale Privatrecht [IPRG] vom 18. Dezember 1987, AS 1988 1776) or is positioned as a systemic part of the Civil Code (e.g. in German law, these norms are mainly found in the Act introducing the Civil Code – Einführungsgesetz zum Bürgerlichen Gesetzbuche in der Fassung der Bekanntmachung vom 21. September 1994 (BGBl. I S. 2494; 1997 I S. 1061), das zuletzt durch Artikel 3 des Gesetzes vom 24. Juni 2024 (BGBl. 2024 I Nr. 212) geändert worden ist. See also: K. Vorpeil, German Private International Law, Gaul Bickelheim 2010, p. 5).

^[5] This provision indicates that few categories of documents are subject to consular legalization (deeds relating to the transfer of ownership of real estate located in Poland and documents whose authenticity has been contested by one of the parties to the action). Most foreign documents have ex lege evidentiary power in Polish law, equal to that of domestic documents.

^[6] According to Section 593 of the Civil Procedure Code (2016. évi CXXX. törvény a polgári perrendtartásról): "The provisions laid down in section 323 shall apply to foreign public deeds, provided that the foreign public deed was legalised by the competent Hungarian diplomatic mission of the place of issue, unless another requirement is specified in an international treaty entered into with the country in which it was issued." This implies a fairly broad requirement for legalization of foreign documents under Hungarian law. Many Central European countries provide in their laws for the requirement of legalization of foreign documents subject to the condition of reciprocity (this rule is rooted in the solutions of Austrian law – see § 293 para. 2 Austrian ZPO 1895 (Zivilprozessordnung - Gesetz vom 1. August 1895, über das gerichtliche Verfahren in bürgerlichen Rechtsstreitigkeiten (Zivilprozessordnung), RGBl. Nr. 113/1895).

^[7] This is exemplified by Polish-Hungarian legal transactions. Article 16 of the 1959 Agreement on Legal Aid between Poland and Hungary (Polish Journal of Laws 1960, No. 8, item 54) exempts official documents from the requirement of consular legalization. Legal aid agreements in civil matters are generally common throughout Central Europe. In contrast, Germany, with the exception of a few pre-war agreements, does not have similar bilateral arrangements among its binding international obligations. Likewise, it generally did not conclude bilateral consular conventions after the war.

^[8] Regulation (EU) 2016/1191 of the European Parliament and of the Council of July 6, 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 (OJ L 200, 26.7.2016, p. 1–136) plays no role in this regard. This is because it does not apply to powers of attorney for property, or other private documents used in civil law transactions.

^[9] Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Hague Conference Treaty No. 12).

^[10] European Treaty Series No. 063.

^[11] Hungary and most Central European countries are not parties to the Convention. Alongside Poland, only Romania and the Czech Republic are parties to the Convention from our region.

^[12] This is what Polish law states, for example, in Article 25 of the Act on Private International Law, providing for the alternative of lex causaeand lex loci actus (although with certain limitations – but they do not apply to powers of attorney).

^[13] Under international law, consular activities fall into one of two categories: those guaranteed by international law, which consuls may perform without restriction (the receiving state cannot oppose them once it has agreed to establish consular relations with the sending state), and those that require the receiving state’s approval (consent, tacit consent, or absence of objection). Activities guaranteed by international law include, for example, protecting or assisting nationals, as well as most administrative functions, such as issuing passports and visas. By contrast, actions such as performing notarial functions, legalizations, or civil registration typically require the consent of the receiving state. The receiving state may object to some of these activities during the exequatur process (such objections are rare for notarial functions and more common for civil registration acts).

^[14] European Treaty Series No. 061. Poland is not a party to this treaty, and neither is Germany (which has signed the Convention but not ratified it). The Convention is binding on only five countries – Greece, Georgia, Norway, Spain and Portugal.

^[15] Article 15(1)(c) states: "A consular officer shall be entitled to draw up or receive in notarial form or in such similar form as may be laid down by the law of the sending State: (…) c) acts and contracts notwithstanding that none of the parties concerned is a national of the sending State, provided that such acts and contracts relate to property situated within that State or are intended to have effect within that State."

^[16] Article 28(2) of the Act of June 25, 2015 – Consular Law (i.e., Journal of Laws 2023, item 1329): "The consul may perform the actions referred to in para. 1 [i.e. notarial functions] also at the request of a foreigner or a public administration body in the receiving state, if they are to have an effect on the territory of the Republic of Poland."

^[17] Gesetz über die Konsularbeamten, ihre Aufgaben und Befugnisse (Konsulargesetz) vom 11. September 1974 (BGBl. I S. 2317), das zuletzt durch Artikel 20b des Gesetzes vom 28. März 2021 (BGBl. I S. 591) geändert worden ist.