The circulation of public acts is a problem of great complexity as it affects the effectiveness of public documents within EU Member States. On Thursday, the Parliament approved new EU rules that will make simpler to prove the authenticity of documents such as birth or marriage certificates in another EU member state, as so to ease free movement for citizens.
The new EU regulation,soon published in the EU Official Journal, will establish a European system dealing with cross-border acceptance of specific public acts and overcoming both legalisation process and principle of recognition of foreign public act. It will be brought into effect gradually, so as to apply in full from 2019.
With a view to undertaking simplification, the ambition is to encourage the freedom of movement of EU citizens, freedom of establishment and freedom to provide services in the internal market by streamlining the bureaucratic procedures needed to recognize a foreign act.
Although there is extensive legislation on this matter, including the Apostille Convention, the EU Regulation on matters of succession and on the creation of a European Certificate of Succession or the Convention Providing a Uniform Law on the Form of an International Will, the new rules are unprecedented.
“More than 14 million EU citizens live in a member state other than their home state. To marry, to declare the birth of a child or to prove a clean criminal record, they are forced to deal with tedious procedures. With today’s vote, we have taken a first step towards reducing these bureaucratic hurdles, by abolishing the costly and burdensome ‘apostille’ requirement and introducing multilingual standard forms“, said rapporteur Mady Delvaux (S&D, LU) during the plenary debate.
MEPs and the Council had agreed to extend the rules’ scope to include documents proving the capacity to marry or to enter into a registered partnership. Documents certifying the absence of a criminal record would also be accepted in other EU member states without further legalization procedures.
“Despite the opposition of a part of the Council, an important review clause refers to various documents, such as university diplomas or disability certificates, that could not be included in the scope of the rules at this stage. This text is the first step in a long process, the final aim of which is to have common public documents within the EU“, she added.
Under article 4 and 5 of the proposal, public documents should “be exempted from all forms of legalisation and similar formality” and public authorities should accept “certified copy issued by the authorities of other Member States.”
Basically, the examination carried out by national public officers should be thus overcome. In some EU countries, for example, a foreign act would no longer need to be approved by a notary.
The scope of the regulation
The scope of the regulation is limited to those documents issued by a public authority and having formal, probative value and declaring things such as birth, that a person is 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 or absence of a criminal record.
Furthermore, documents required by citizens living in another member state to vote and/or stand as candidate in European or municipal elections in the Member State where they reside are also covered in the new rules.
The proposal is clearly intended to make easier for the European citizens or contractors to face everyday tasks in which it is necessary to ascertain whatever is generally linked to a person or in particular all aspects concerning the identity of the citizens of the European Union.
This means that a deed of sale would not be automatically eligible for acceptance, while on the contrary a birth certificate or a letter of attorney would be.
Standard translation modules are attached to the proposal to allow the overcoming of difficulties of translation.
These models are very simple and only indicate the essential elements of an act, including place and date of signing, the parties. Thus, the intention of the European legislator should be enough to allow proper circulation of public documents.
The main problem is that the proposal does not identify the formal, probative value of such acts. Even the previous regulation (EU No 650/2012), which determines that the probative value of the public document must be determined with reference to the law of the home Member State, does not provide any hint.
However, a provision was secured by MEPs allowing new rules to be extended after two years. In the light of a review that must also assess the appropriateness of establishing new multilingual forms in future, the new rules will cover public documents relating to the legal status and representation of a company, diplomas and other evidence of formal qualifications, and public documents attesting an officially recognized disability.
What Evidentiary Effects Should Produce a Public Act from any Other European country?
In this respect, it should be noted that public acts are not governed in the same way in all European countries.
The European Union is disciplining only on those neutral topics that should not arise contrasts between the systematic rules of Member States – excluding exceptional cases.
By this regulation, there is no wish to reconcile differences between the legal systems of the EU. For example, the proposal does not cover the moment when the contract is perfected, which is very different from Member State to Member State.
The circulation of the public documents is a problem of great complexity. It is therefore necessary to weigh up the needs of flexibility and simplification resulting from the free market with the public value of the act or with the principle of territorial sovereignty.
Why should a State permit to an Act drawn up by a foreign public official to circulate, accept or recognize certain evidentiary effects?
The European legislator has chosen to find a solution to this problem by proposing neutral modules, detached from any national law. Even though this legal solution seems cheap, it is very practical in reality.
- 8 May 2023
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