Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter L.3: Legalization of public documents

Christian Hertel

I. Concept and definition

In civil law systems, public documents or authentic instruments enjoy probative value and may be directly enforceable. Also certain legal acts may require an authentic instrument for validity. All these legal effects depend, among others, on whether the authentic instrument is genuine or authentic. For national authentic instruments, authenticity is a given and need not be proven: the traditional rule p. 1095acta probant sese ipsa applies in one or the other form in all civil law jurisdictions for national authentic instruments. However, the rule does not apply to foreign public documents, so that they are required to be checked for genuineness. For practical reasons, this is done by the embassy or consulate of the receiving state in the state of origin. This is what is termed ‘legalization’.

Legalization is the formal procedure by which ‘public documents’ (or ‘authentic instruments’) issued in one state (‘issuing state’ or ‘state of origin’) are certified to be genuine or ‘authentic’ by the diplomatic or consular authorities of another state (‘receiving state’ or ‘state of destination’), in which the documents have to be used (‘produced’ or ‘presented’). Legalization in a narrow sense is restricted to the certification of the genuineness of the signature and the capacity of the public official who signed it, as well as the genuineness of the official seal or affixed stamp. Legalization in a broader sense also certifies that the issuing authority had the necessary competence and that it complied with the issuing procedure required under its national law. International instruments mostly use the term legalization in its narrow sense (eg art 2 Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189), art 1 ICCS Waiver of Authentication Convention (Convention of 15 September 1977 waiving authentication of certain certificates and documents, 1224 UNTS 127) or art 3(3) of the Public Documents Regulation (EU 2016/1191 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 of 6 July 2016 OJ L 200/1)).

II. Public documents – authentic instruments

Legalization applies only to certain documents, called ‘public documents’ or ‘authentic instruments’. So which documents are we talking about?

1. Examples

Even before giving a definition, it might be helpful to list the main types of public documents. Article 1 Hague Legalisation Convention of 5 October 1961 lists the following (with examples added by the author):

  1. court documents (eg court decisions or protocols of court proceedings),

  2. administrative documents (eg administrative decisions, including grants of patents or licences, but also civil status documents such as birth, death or marriage certificates, furthermore educational documents, criminal and police records, whereas excerpts of official registers, eg land register, company register, might be either court or administrative documents),

  3. notarial acts (eg testament, sales contract for immovables),

  4. official certifications of signatures under a private act (the Convention erroneously uses the term ‘authentications of signatures’ instead of ‘certification of signatures’).

2. Authentic instruments in the civil law systems

For a lawyer trained in a civil law system, it is entirely clear what a ‘public document’ or an ‘authentic instrument’ is. The French call this type of instrument an acte authentique, the Germans öffentliche Urkunde, the Italians atto pubblico, the Polish dokument urzędowy, the Portuguese documento autêntico, the Romanians act autentic and the Spanish documento público. All understand each other perfectly, as they share the same legal concept.

The national laws of the various civil law countries define authentic instruments by the same four characteristics (Council of the Notariats of the European Union (CNUE), ‘Comparative Study on Authentic Instruments – National Provisions of Private Law, Circulation, Mutual Recognition and Enforcement, Possible Legislative Initiative by the European Union, Study for the European Parliament No IP/C/JURI/IC/2008–019’ <www.europarl.europa.eu/document/activities/cont/200811/20081127ATT43123/20081127ATT43123EN.pdf>, pp 5 et seq): (i) only public authorities or officials may issue public documents, (ii) the issuing authority has to act within its competence – both as to the subject matter of the document in question and geographically, (iii) the document must be in a specific authentication procedure and meet the formalities required for this type of public document.

p. 1096If these three requirements are met, (iv) the authentic instrument provides conclusive proof of the content of the instrument (which is the fourth part of the definition as well as the legal consequence of an authentic instrument). This proof can be rebutted, but in some countries the rebuttal requires a special court procedure for forgery (eg →Belgium, →France, →Italy and →Romania), while in others it requires full proof to the contrary (eg →Germany and →Poland). Also, the genuineness of the public document need not be proven, but rather if the genuineness is challenged, the falsification has to be proven.

A classical definition can be found in art 1317 French Civil Code (Code Civil of 21 March 1804 – Code civil des français, promulgé le 21 mars 1804 (30 ventôse an XII), édition originale et seule officielle, A paris, Imprimerie de la République and XII -1804, as amended, available at <http://gallica.bnf.fr>, as amended): ‘[a]‌n authentic instrument is one which has been received by public officers empowered to draw up such instruments at the place where the instrument was received and with the requisite formalities’. Article 1319(1) then regulates the specific evidentiary value: ‘[a]n authentic instrument is conclusive evidence of the agreement it contains between the contracting parties and their heirs or assigns’ (English translation from Legifrance – available at <http://195.83.177.9/code/liste.phtml?lang=uk&c=22>). Many other civil law countries have basically copied these rules with certain variations in the wording, eg in Europe Belgium (arts 1317, 1319(1) Civil Code), Italy (art 2699 Civil Code (Codice Civile, Gazz.Uff. 4 April 1942, No 79 and 79bis; edizione straordinaria)), Portugal (arts 369, 370 Civil Code ((Código Civil approved by Decreto-Lei No 47.344, of 25 November 1966, [1966] DG I série 274/1883, with subsequent amendments)), Romania (arts 1171, 1173 Civil Code (Law 287/2009, published in the Official Gazette No 511 of 24 July 2009, and subsequently amended and supplemented by Law 71/2011, published in the Official Gazette No 409 of 10 June 2011)) and Spain (arts 1216, 1218 Civil Code (Código Civil of 24 July 1889, Geceta de Madrid No 206, 25 July 1889)), or in the Americas Argentina (arts 979, 980 Civil Code (Código Civil de la República Argentina of 25 September 1869, by the passage of Law 340, entry into force 1 January 1871)), Mexico (arts 129, 130 Federal Code of Civil Procedure (Código Federal de Procedimientos Civiles, DOF 24-02-1943)) and Quebec (art 2813 Civil Code (L.Q. 1991, ch 64)). Other civil law systems give the same definition, but merge the definition and the legal effect (probative force) in one article (eg art 364 Brazilian Code of Civil Procedure (Código de Processo Civil, Lei n° 5.869 de 11 de janeiro de 1973), arts 415–18 German Code of Civil Procedure (Zivilprozessordnung of 5 December 2005, BGBl. I 3202, as amended), art 244 Polish Code of Civil Procedure (Official Journal 1964 No 43, pos. 296)).

3. Public documents in the common law

This concept of authentic acts is not known in the common law (or in the Nordic countries). Of course, in the common law and the Nordic jurisdictions, the public authorities also issue documents. However, these documents are not granted probative force as such. In England, such ‘public documents’ may be admitted without further proof, as sec 9(1) Civil Evidence Act 1995 (c 38) provides: ‘[a]‌ document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof’. The same applies now to notarial acts, as stated by rule 32.20, inserted in the Civil Procedure Rules 1998 by the Civil Procedure (Amendment No3) Rules 2005 (2005 No 2292 L 21): ‘[a] notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved’. However, ‘public documents’ (or notarial instruments) do not necessarily provide conclusive proof as is the case in civil law countries.

4. ‘Public documents’ under the Hague Legalisation Convention

Given these widely differing concepts, the Hague Legalisation Convention avoided giving a comprehensive definition of ‘public documents’. Instead the question whether a document is public for the purposes of the Convention is determined by the national law of the issuing state (C&R No 72 of the 2009 SC; C&R No 14 of the 2012 SC – as quoted in the Apostille Handbook No 113 – available at <www.hcch.net/upload/apostille_hbe.pdf>).

Nevertheless, the Convention gave a partial definition in that documents emanating from public officials are ‘deemed to be public documents’ for the purposes of the Convention. p. 1097Thus, the Convention managed to bridge the gap between the differing concepts of public documents, in that all civil law authentic instruments fall under the Convention, because one necessary (though not sufficient) part of the definition is their issuance by a public official. Also the partial definition is acceptable to the common law or the Nordic countries, which do not share the civil law concept of authentic instruments (and its specific probative value).

5. Definition of ‘authentic instruments’ in international instruments

a) Brussels Convention and Unibank decision

Other international sources, particularly European instruments, use the term ‘authentic instrument’ in a more narrow sense. Under the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1), there are specific rules for the recognition and enforcement of judgments on the one hand (art 25 et seq) and for authentic instruments and court settlements on the other hand (art 50 et seq). Thus, authentic instruments under the Brussels Convention are only those public documents containing an agreement between the parties recorded by a public official. Article 50 Brussels Convention defines the authentic instrument as ‘a document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State shall, in another Contracting State, be declared enforceable there, on application made . . . . The instrument produced must satisfy the conditions necessary to establish its authenticity in the State of origin.’ Therefore art 50 Brussels Convention requires not only an authentic instrument, but also an enforceable one.

The ECJ had to consider this definition in the Unibank case (Case C-260/97 of 17 June 1999, Unibank A/S v Flemming G Christensen [1999] ECR I-3715). The case concerned a Danish enforceable acknowledgement of indebtedness that had been drawn up without intervention of a public official. Referring to the Jenard-Möller Report (P Jenard and G Möller, ‘Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988’ [1990] OJ C 189/57), the ECJ decided that the term ‘authentic instrument’ under the Brussels Convention required (i) that the instrument had been issued by a public authority in the form demanded by the state of origin, (ii) that the authenticity relates also to the content of the instrument and not only to the signature and (iii) that the instrument is also enforceable in the issuing state.

b) European sources

Article 57 Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1) and now art 58 Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1) (→Brussels I (Convention and Regulation)) on the enforcement of foreign authentic instruments follow almost word for word art 50 Brussels Convention, so that the same definition applies.

Article 4(3)(a) European Enforcement Order Regulation (Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, [2004] OJ L 143/15) codified this definition generally for the authentic instrument. It defines ‘authentic instrument’ as ‘a document which has been formally drawn up or registered as an authentic instrument, and the authenticity of which: (i) relates to the signature and the content of the instrument; and (ii) has been established by a public authority or other authority empowered for that purpose by the Member State in which it originates’. Enforceability is not expressly part of the definition. However, the European Enforcement Order Regulation deals only with enforceable authentic instruments.

Article 3(1)(i) Succession Regulation (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, [2012] OJ L 201/107; →Rome IV Regulation) uses the same definition as art 4(3)(a) European Enforcement Order Regulation. The Succession Regulation, however, includes non-enforceable authentic instruments as well as enforceable ones.

6. p. 1098Terminology and types of public documents

Comparing the terminology of these instruments, they generally use the term ‘public documents’ when referring to all documents emanating from a public official (eg the Hague Legalisation Convention or the proposed Public Documents Regulation), whereas the term ‘authentic instruments’ generally signifies a recording of declarations made to a public authority by that authority (eg Brussels I Convention, Brussels I Regulation (recast), Succession Regulation). Of course, the term may be construed differently for each instrument. This is also the terminology which is applied in this entry.

More precisely, we can distinguish three main types of public documents (each with sub-types):

  1. public documents containing (court or administrative) decisions of the public authority (judgments and administrative decisions),

  2. public documents recording statements of private persons to a public official and recorded by the official, in particular notarial instruments containing declarations of a legal act, court settlements and court records of statements made by the parties or by witnesses during the court proceedings, and

  3. public documents recording facts, in particular civil status documents (on birth, →marriage, death etc) and extracts of the entries in public registries (register of companies, land register, criminal records etc) or the certification of a signature or a copy etc. (In the latter subgroup, only the certification is a public document, not the underlying private act under which the signatures are certified.)

The difference between civil law systems and other systems is most obvious in the second group, in the recording of legal acts or the authentic instrument in the narrow definition. Here, the function of authentic instruments to secure legal certainty within the system of preventive justice is most clear.

III. Legalization, apostille or abolishing legalization

1. Legalization of foreign public documents

a) Procedure of legalization

The procedure of legalization is not regulated by international conventions, but rather is subject to national law. Traditionally, legalization is required in most civil law states, but not in the common law states (neither eg in Japan). Since civil law states grant higher probative and other effects to authentic acts, they seek to ensure that public documents coming from abroad are genuine before they may be used.

In the various civil law countries, similar procedures have evolved. Legalization in the proper sense is the certification undertaken by the diplomatic or consular authorities of the receiving state located in the state of origin (sometimes, but seldom also by the foreign ministry of the receiving state, then usually after a preliminary certification by the embassy). The embassy is better suited to know the relevant authorities of the issuing state, their respective competences and procedures, than are the authorities in the receiving state.

Normally, however, legalization proper is proceeded by one or two additional certifications in the state of origin. First, a higher authority in the state of origin (generally the authority charged with control of the emanating authority) confirms the authenticity of the public document (at least of the authenticity of the signature and the seal or stamp and of the official capacity of the person signing it). Certain receiving states (today only a minority) might require a second confirmation by a central authority. (In some cases, the apostille is also being used as a preliminary step for legalization for non-contracting states of the Hague Legalisation Convention.) Only after these preliminary steps, does the embassy of the receiving state legalize the document. The preliminary steps facilitate the control by the embassy. However, the chain of authentications renders legalization a slow and costly procedure.

b) Refusal of legalization

The receiving state is not obliged to legalize foreign public documents. The standard procedure for legalization of comparing the signature and the seal is insufficient if many forgeries circulate in the state of origin. Thus, the receiving state may decide to deny legalization for all public documents or at least for some types of public document. Then, the authenticity of foreign public documents has to be proven individually for each case (eg by a statement of a lawyer of the country of origin describing which steps were undertaken in order to prove the authenticity) – which p. 1099of course is much more costly and time consuming than legalization. Eg German embassies have presently (March 2017) suspended legalization for 52 states (India being the largest).

2. Hague Legalisation Convention (or Apostille Convention)

Several international conventions have exempted certain documents from the legalization requirement or have replaced legalization by a more simplified procedure. The most widely used is the Hague Legalisation Convention of 5 October 1961 abolishing the requirement of legalization for foreign public documents (generally and hereafter named ‘Hague Legalisation Convention’, although ‘Hague Apostille Convention’ would better characterize the main content).

a) Contracting states

The Convention currently applies to 113 contracting states (as of 14 March 2017), making it the Hague Convention with the largest number of contracting states. Thus in practice the apostille rather than the legalization is the rule in Europe and the Americas.

However, some large countries have yet to accede to the Convention (eg →Canada and the People’s Republic of →China where it applies only to Hong Kong and Macao), neither have many states in Africa and Asia. Furthermore, if a state accedes to the Convention, any other contracting state may object to the accession within six months; then the Convention takes effect between the acceding and the other states, but not between it and the objecting state (art 12 (2)). At present, objections have been raised against the accession of 15 states (by one or more other contracting states).

b) Scope of application

As we have seen (II.4. above), the Hague Convention applies to all ‘public documents’ emanating from a public official (art 1(1)), except only ‘documents executed by diplomatic or consular agents’ or ‘administrative documents dealing directly with commercial or customs operations’ (art 1(2)). Diplomatic or consular documents will usually be presented for authentication to the Foreign Ministry in the receiving state.

c) Replacing legalization by the apostille

The Hague Legalisation Convention exempts all public documents covered by it for the use in another contracting state from the requirement of legalization (art 2). Instead the receiving state may only require an apostille (art 3). The apostille is issued by an authority of the state of origin. Thus a two- or three-step procedure involving authorities of both the issuing and the receiving state is replaced by a one-step procedure involving only authorities of the state of origin.

The state of origin designates which authority is competent to issue the apostille. It may designate a central authority or decentralized authorities. Each contracting state notifies the Ministry of Foreign Affairs of the Netherlands of its competent authorities (art 6). The list is published on the website of the Hague Conference and therefore is easily accessible for control by the authorities or by other interested parties in the state of destination.

In its annex, the Convention includes a model for the apostille (art 4). The apostille has to bear the title in French ‘Apostille (Convention de La Haye du 5 octobre 1961)’ and has to contain the ten numbered standard informational items (eg who signed the document in which capacity, who issued the apostille etc). Otherwise, it should conform as closely as possible to the model apostille certificate. However, variations (eg in size or shape) are permitted as long as the document remains clearly identifiable as an apostille in all other contracting states (C&R No 13 of the 2003 SC – available at <www.hcch.net/upload/wop/lse_concl_e.pdf>). Additional text (eg explanatory remarks) is also admissible if it is clearly outside the ten numbered informational items.

Except for the title, the apostille may be issued in the official language of the authority which issues it. However, it is recommended to use a bilingual or trilingual form including the French and/or English text. (Such forms have also been developed by the Permanent Bureau of the Hague Convention.)

The issuing authority must keep a register of all its apostilles. If there is any doubt as to the authenticity of the apostille, any interested party may consult the authority which issued it (art 7(2)). Nowadays, some of these registers may be checked electronically (e-register).

d) Effects of the apostille

The apostille certifies only the authenticity of the signature and the capacity of the person who has signed the underlying public document, as well as, where appropriate, the identity of the seal or stamp which the public document bears p. 1100(art 5(2)). However, the apostille does not certify that the issuing authority was competent to issue the document or that the requirements of domestic law for the proper execution of the underlying public document have been met. Neither does it certify the content of the document for which it was issued. Also the Hague Legalisation Convention does not affect the right of the receiving state to determine the acceptance, admissibility and the probative value of the apostillized foreign public document.

e) e-Apostille

Since 2006, special fora of the Hague Apostille Convention have developed electronic forms of apostille (e-Apostille) and the operation of electronic registers of apostilles that can be accessed online by recipients to verify the origin of an apostille they have received (e-registers). Even without changes in the text of the Hague Legalisation Convention, international fora on the e-Apostille consider an e-Apostille as admitted by the Convention (Sixth (Madrid) Forum, C&R No 6, Seventh (Izmir) Forum, C&R No 9 – as quoted in the Apostille Handbook No 308 – available at <www.hcch.net/upload/apostille_hbe.pdf>) By the end of 2016, competent authorities from 29 contracting states had implemented one or both components of the e-App.

3. Other international sources

a) Sectoral Hague conventions

Several Hague conventions on legal cooperation exempt specific public documents within their scope (in particular the requests under the respective convention) not only from legalization but also from other ‘similar formalities’ (such as apostillization). These are (ordered by date of signature):

  1. Hague Service Convention (Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, 658 UNTS 163),

  2. Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241),

  3. Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89),

  4. Hague Choice of Court Convention (Hague Convention of 30 June 2005 on choice of court agreements, 44 ILM 1294).

b) ICCS conventions on extracts from civil status records

Also several conventions drafted under the auspices of the International Commission on Civil Status (ICCS or CIEC – Commission Internationale de l’État Civil; →CIEC/ICCS (International Commission on Civil Status)) and signed by various European states exempt extracts from civil status records from the requirement of both legalization and apostille. In order of date of signature, these are:

  • art 5 ICCS Paris Convention of 27 September 1956 concerning the issue of certain extracts from civil status records to be sent abroad, 299 UNTS 211 (16 ratifications as of 17 October 2015),

  • art 4 ICCS Luxembourg Convention of 26 September 1957 concerning the issuance free of charge of copies of civil registration documents and the waiver of authentication requirements relating thereto, 932 UNTS 35 (ten ratifications),

  • art 5 ICCS Rome Convention of 14 September 1961 on the extension of the competence of authorities qualified to receive acknowledgements of children born out of wedlock, 932 UNTS 63 (ten ratifications),

  • art 7(2) ICCS Rome Convention of 10 September 1970 on legitimation by marriage, 1081 UNTS 247 (seven ratifications),

  • art 8 ICCS Vienna Convention of 8 September 1976 concerning the issue of plurilingual extracts from civil status records, 1327 UNTS 3 (23 ratifications) and

  • art 2 ICCS Waiver of Authentication Convention (nine ratifications).

Among these conventions, the Convention on the issue of plurilingual extracts from civil status records has the most important practical impact, because it has been ratified by most continental European civil law states (25 states – see <http://ciec1.org/ListeConventions.htm>). It provides harmonized models for extracts of the birth, death and marriage registers which are exempt from legalization and apostille.

In theory, the ICCS Waiver of Authentication Convention covers the broadest scope, including all ‘records and documents relating to the civil status, capacity or family situation’ or ‘all other records or documents if they are p. 1101produced with a view to the celebration of a marriage’. However, it has been ratified by only nine states. Some states are hesitant to ratify the ICCS conventions because they are open to accession for all states – without the possibility to object to an accession (as provided by art 12 Hague Legalisation Convention).

c) European Convention on Diplomatic and Consular Instruments

The Hague Legalisation Convention expressly exempts public documents issued by diplomatic and consular authorities from its scope of application (art 1(2)(a)). Such diplomatic and consular instruments are covered by the European Legalisation Convention (European Convention of 7 June 1968 on the abolition of legalisation of documents executed by diplomatic agents or consular officers, 788 UNTS 169), which has been ratified by 23 European states (as of 26 March2017) →Russia being the latest) see <http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=063&CM=8&DF=02/03/2014&CL=ENG>). Among the contracting states, diplomatic and consular instruments are exempt from legalization – and impliedly also from all other certification such as apostillization (art 3). As a fallback provision, each contracting state has to establish a system for the verification, where necessary, of the authenticity of documents to which this Convention applies (art 4(2)).

d) Brussels Legalisation Convention

In 1987, the European Communities made a first attempt to abolish altogether legalization and apostille among the EC Member States by the Brussels Convention of 25 May 1987 abolishing the Legalisation of Documents in the Member States of the European Communities (hereafter the Brussels Legalisation Convention – French text, Décret No 92–383 of 1 April 1992, available at JORF No 0084 of 8 April 1992 p 5191). However, not all EC Member States ratified the Convention. Thus the Convention entered into force only between those Member States which had not only ratified the Convention, but had also expressly declared that it should apply bilaterally even without universal ratification (art 6(3)). It now applies provisionally to seven EU Member States (Belgium, Denmark, Estonia, France, Ireland, Italy and Latvia).

The Brussels Legalisation Convention closely follows the model of the Hague Legalisation Convention, in particular in its definition of the public documents within its scope (art 1(2)), but without the exceptions of the Hague Legalisation Convention, and in its definition of the term legalization (art 3). If, in exceptional cases, the authority of the state of destination has ‘serious doubts, with good reason, as to the authenticity of the signature, the capacity in which the person signing the document has acted, or the identity or seal of the stamp’, it may address the central authority of the state of origin (art 4).

e) MERCOSUR

Within the Member States of MERCOSUR (Southern Common Market, that is Argentina, Brazil, Paraguay and Uruguay), under the Protocol of Las Leñas (Las Leñas Protocol of 27 June 1992 on Judicial Cooperation and Assistance in Civil, Commercial, Labour and Administrative Matters, 2145 UNTS 421), public documents are exempt from legalization or other formality, but only if they are transmitted by the central authority. Article 26 reads:

[d]‌ocuments emanating from judicial authorities or other authorities of one of the Contracting States, as well as notarial instruments (escrituras públicas) and documents certifying the validity, the date or the authenticity of a signature or of the conformity with the original, which are transmitted by way of the Central Authority, shall be exempted from all legalisation, apostille or other similar formality when they have to be produced in the territory of another Contracting State.

One might say that the transfer by the central authority replaces the apostille.

Article 25 goes even further, granting public documents from another Member State the same probative value as instruments of the receiving state: ‘Public instruments emanating from one Contracting State have in another (Contracting State) the same probative force as its (= the receiving state’s) own public instruments’ (<www.mercosur.int/t_ligaenmarco.jsp?contentid=4823&site=1&channel=secretaria>).

4. European sources

a) ECJ decision Dafeki

Under the Treaty establishing the European Community (TEC) (Consolidated versions of the Treaty on European Union and of the Treaty establishing the European Community p. 1102(2002), [2002] OJ C 325/1), now the TFEU (The Treaty on the Functioning of the European Union (consolidated version), [2012] OJ C 326/47), Member States may not completely disregard public documents on →personal status issued in another Member State. Thus, the ECJ held in the Dafeki case:

[i]‌n proceedings for determining the entitlements to social security benefits of a migrant worker who is a Community national, the competent social security institutions and the courts of a Member State must accept certificates and analogous documents relative to personal status issued by the competent authorities of the other Member States, unless their accuracy is seriously undermined by concrete evidence relating to the individual case in question. (ECJ, Case C-336/94 of 2 December 1997, Eftalia Dafeki v Landesversicherungsanstalt Württemberg [1997] ECR I-6761)

The ECJ concluded this from the EC Treaty provisions on the prohibition of discrimination in the freedom of movement of workers (art 45 TFEU, then art 48 TEC) and the social security system (art 48 TFEU, ex art 51). However, that does not oblige the Member States to accept the documents on personal status without legalization or without any weighing of the evidence.

b) Sectoral regulations

Sectoral European regulations had already abolished the requirement of legalization (or other ‘similar formality’ such as apostillization) for documents within their respective scope of application (art 56 Brussels I Regulation and art 61 Brussels I Regulation (recast), art 52 →Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1), art 4(2) Evidence Regulation (Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, [2001] OJ L 174/1), art 4(4) European Service Regulation (Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, [2007] OJ L 324/79), art 65 Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L 7/1), art 74 Successions Regulation (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, [2012] OJ L 201/107)) art 61 Matrimonial Property Regulation (Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes [2016] OJ L 183/1), art 61 Registered Partnerships Matrimonial Property Regulation (Council Regulation (EU) 2016/1104 OJ L 183/30). The older regulations normally expressly list the documents exempted whereas the more recent regulations exempt all ‘documents issued in a Member State in the context of this Regulation’.

c) Public Documents Regulation

From 16 February 2019 the new Public Documents Regulation will apply (Regulation (EU) of the European Parliament and of the Council of 6 July 2017 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’ of 24 April 2013 [2016] OJ L 200/1. The Regulation covers documents from public registers in a broad sense, such as civil status documents (concerning birth, death, →marriage, registered partnership, parenthood, →adoption), documents on residence, citizenship and →nationality, absence of a criminal record, but also on the legal status and representation of a company or other undertaking, on real estate and intellectual property rights (art 3(1)).

These extracts from registers and certificates are exempted from all forms of legalization and similar formality (art 4). The same applies for the Union multilingual standard forms (art 15(3)). Also certified copies issued in other Member States will be accepted (art 5). Authorities are to accept non-certified translations of public documents issued by the p. 1103authorities of other Member States (art 6). If the authorities of the receiving Member State have reasonable doubt as to the authenticity of the public documents, they may submit a request for information to the authorities of the Member State of origin (art 7).

The regulation also establishes EU multilingual standard forms concerning birth, death, marriage, registered partnership and legal status and representation of a company or other undertaking (arts 11 et seq).

5. Bilateral agreements

Certain bilateral agreements abolish legalization and apostille altogether. Such agreements exist in particular between neighbouring states or states which otherwise share common links. Such more favourable bilateral (or multilateral) agreements are not affected by the Hague Legalisation Convention (art 8).

IV. Effects of legalization or apostille

1. Effect

Legalization in the narrow sense or the procedures replacing legalization prove only the authenticity of the signature, the capacity of the official signing it and, where appropriate, the seal or stamp affixed to it (art 5(2) Hague Legalisation Convention). Under national law, legalization in a broad sense might further establish the authenticity of the public document.

In civil law systems, there are many other functions of public documents or authentic instruments for which the authenticity of a foreign public document is required but generally not sufficient.

2. Evidentiary or probative value

As we have seen, the full evidentiary value is part of the definition of a public document or authentic instrument in civil law systems. Legalization or the formalities substituting legalization do not grant particular probative value to the foreign public document. However, once authenticity has been proven by the legalization, then under the respective national rules of evidence the foreign public document is often accorded the same evidentiary value as national public documents of the same type.

So far, only some European sources regulate the evidentiary value. Article 59(1) Succession Regulation (as well as art 58 of the Matrimonial Regulation and the Registered Partnerships Regulation) on the ‘Acceptance of authentic instruments’ rule that ‘an authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy (ordre public) in the Member State concerned’. According to the wording, the evidentiary standard is that of the state of origin, not that of the state of destination. However, the authorities of the state of destination will invariably apply their own procedural →lex fori, thereby limiting the evidentiary value to that generally accepted in the state of destination. In practice, this might limit the probative value of authentic acts when used in a common law or Nordic state.

3. Enforceability

In civil law countries, authentic instruments on obligations of the parties are typically either enforceable by matter of law or can be made enforceable by a specific declaration of the obliged party (submission to direct enforcement). In some international or European sources, enforceability even forms part of the definition of an authentic instrument (eg art 50 Brussels Convention, art 4(3)(a) European Enforcement Order Regulation).

Legalization does not render the foreign authentic instrument enforceable in the state of destination. Generally, enforceability is granted in a specific procedure in the state of destination, called the ‘exequatur’.

Enforceability is regulated by many international or European sources. In the European sectoral regulations on judicial cooperation, enforcement is one of three basic parts (besides jurisdiction and recognition). In the older sources, the exequatur was granted by the state of destination (eg arts 50, 31 et seq Brussels Convention, arts 57, 38 et seq Brussels I Regulation, arts 46, 28 et seq Brussels IIa Regulation). Today within the EU, in the more recent regulations, enforceability is granted by the Member State of origin for all other Member States. This model was first introduced by art 25 European Enforcement Order Regulation, and has since been extended by a revision to art 58, 39 et seq Brussels I Regulation (recast). This transfer of competences from p. 1104the state of destination to the state of origin parallels the change made from legalization to apostillization.

4. Formal requirements

In civil law jurisdictions, certain types of contract or other legal acts require the form of an authentic instrument (such as the sale and transfer of →immovable property, contracts on →matrimonial property, certain types of wills or the foundation of a company), and thus to guarantee legal certainty as a pillar of the system of preventive justice (in French justice préventive or in German vorsorgende Rechtspflege). Whether a foreign authentic instrument suffices to fulfil such a formal requirement is a question of private international law, not of legalization.

First, for some legal acts, the state might require an authentication by its own authenticating officials, in particular where public registers come into play, such as for the transfer of immovables or for the foundation of companies or the transfer of company shares. Such concerns for the legal security and the integrity of the public registers have been acknowledged by the European legislature in the reservation for national law of the registry and the lex rei sitae in Recital (18) of the Succession Regulation.

If there is no exclusive competence, the respective international private law often admits as sufficient either the form of the law applicable to the substance of the contract or the form of the place where the contract was concluded.

If the form of the place of the act does not suffice, one ultimately has to check whether an authentication by a foreign official under his national procedure might replace an authentication under the law of the receiving state as equivalent (→Formal requirements and validity).

Literature