AAE-Etude-Acte-authentique-final-25-11-2008-EN

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• Publié par: Sowyeg
• Nombre de lectures: 23
• Langue: English

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Comparative Study
on Authentic Instruments




National Provisions of Private Law,
Circulation, Mutual Recognition and Enforcement,
Possible Legislative Initiative by the European Union


England, France, Germany,
Poland, Romania, Sweden

Study for the European Parliament
No IP/C/JURI/IC/2008-019













by CNUE
(Council of the Notariats of the European Union)
(Conseil des Notariats de l'Union Européenne)
Avenue de Cortenbergh, 52
B - 1000 BRUXELLES
T: [phone]
F: [phone]
[e-mail]
www.cnue.eu


EP-Study - No. IP/C/JURI/IC/2008-019 - iii - Executive Summary

EXECUTIVE SUMMARY
1. Introductory remark
1.1. Aim of the study
The aim of this study is to provide an in-depth and objective comparative analysis of the
national provisions of private law and private international law in the field of authentic
instruments (or authentic acts) with special focus on their mutual recognition and
enforcement within selected EU Member States in order to evaluate if a legislative initiative
of the EU in this field is worthwhile or necessary.

1.2. Geographic scope of the study
This study examines authentic instruments in six EU Member States, chosen as examples of
different legal systems coexisting within the EU, namely:
- England (as an example of the common law legal system);
- Franceple of the civil law or roman legal system, subtype of Code
Napoleon);
- Germany (as an example of the civil law or roma, subtype of the
Germanic system);
- Poland and Romania (as examples of the civil law or roman legal system, subtype new
Member States); and
- Sweden (as an example of the Nordic or Scandinavian legal system).
In making this selection, preference has been given to countries, which are generally regarded
as typical within each legal system.

2. Authentic instruments as the cornerstone of preventive
justice limited to Civil Law countries
2.1. No authentic instruments for contracts in the Common Law and in
the Nordic legal systems
Examining the examples of England and Sweden, this study reinforces the traditional view,
that the concept of authentic instruments for contracts or other declarations is not recognised
in the Common Law and Nordic legal systems. In particular, the functions of the English
general notaries can be compared to the certification of signatures rather than to the issue of
authentic instruments.

2.2. Authentic instruments as the cornerstone of preventive justice in
Civil Law countries
The concept of authentic instruments is based on the Civil Law concept of preventive justice.
In fact, authentic instruments are the cornerstones of the concept of “preventive justice” (FR
EP-Study - No. IP/C/JURI/IC/2008-019 - iv - Executive Summary

justice préventive; DE vorsorgende Rechtspflege; PL jurysdykcja prewencyjna; RO justi ţie
preventiv ă).
- Under the concept of preventive justice, the state does not just become involved in
deciding legal disputes ex post (“contentious jurisdiction”; FR juridiction contentieuse;
DE streitige Gerichtsbarkeit). Instead, it provides for a preventive legal control through
authentication by authentication authorities (in particular by civil law notaries as
external holders of a public office) for transactions with a particular economic and/or
personal importance to the public interest or to the parties concerned.
- Obliged by law to be as neutral as a judge, the authenticating official has to ensure that
contractual provisions fully comply with the law (preventive legality control), that the
parties have full (mental and legal) capacity to enter into their intended agreement and
that they have fully understood the legal implications of their commitments. Otherwise,
the official is required by law to refuse to complete the transaction.
- The idea underlying this system is to establish legal certainty and legal security by
means of authentic instruments in order to avoid costly and time-consuming litigation
about the validity and meaning of contractual provisions after the transaction has been
concluded.

3. Definition of authentic instruments
Present EC Law: authentic instruments have been defined by the European Court of Justice
1in the Unibank decision , following the Jenard-Möller Report, and by the EC legislator in
2Article 4 (3) (a) Regulation (EC) No 805/2004 on the European Enforcement Order :
- An authentic instrument is an instrument which has been established by a public
authority or other authority empowered for that purpose by the Member State in which it
originates;
- in the required form;
- and the authenticity must relate not only to the signatures, but also to the and content of
the instrument.
Thus, EC law looks to national laws concerning authenticating authorities and authentication
procedures.

National Law: This definition is consistent with the existing definitions in the national laws
of the four civil law systems examined in this study (France, Germany, Poland and Romania).
In those systems of law, authentic instruments are defined as follows:
- The instrument has to be issued by a public authority or an official.
- The authenticating authority or official has to be empowered to authenticate the type of
act in question.
- The authenticating authority or official has to act within its competence in issuing
authentic instruments.
- The authenticating authority or official must follow a specific authentication procedure.
- It must also follow the relevant rules on the formalities for drawing up and issuing
authentic instruments.

1 European Court of Justice (ECJ), Judgement of 17 June 1999 - C-260/97, Unibank, ECR 1999, p. I-3715.
2 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, OJ L 143, 30.4.2004, p. 15.
EP-Study - No. IP/C/JURI/IC/2008-019 - v - Executive Summary

- The resulting legal effect is that the authentic instrument provides conclusive proof of the
content of the instrument.
- Generally, obligations arising from authentic instruments are enforceable (in some States
by operation of law; in other States if a specific submission to enforcement is contained
in a declaration in the authentic instrument).

Proposal: There is no need to change the existing definitions (although their wording might
be formulated more precisely).

4. Recognition of authentic instruments
The concept of recognition, in the narrow sense of res judicata (or binding effect without the
possibility of further judicial review), does not make sense for most authentic instruments. So,
in this study, we speak of recognition in a broader sense, meaning the requirements, in
particular the procedural requirements, which must be met for a foreign authentic instrument
to be used in another state.

4.1. Abolition of apostille
Present situation:
- In order for its core legal effects – heightened probative value and enforceability – to be
recognised, an authentic instrument needs to be authentic (or ”genuine“) in the sense that
it has been established by the public official from whom it appears to originate. While
under national law the four civil law systems examined in this study there is a legal
presumption of authenticity for domestic authentic instruments, authenticity usually
needs to be positively proven where instruments are used cross-border. This has
traditionally been done by following the procedure known as legalisation.
- The Hague Convention of 5 October 1961 which is applicable to all EU Member States
has replaced legalisation with the apostille procedure .
- There are some general bilateral agreements between Member States abolishing the need
for an apostille and some multilateral agreements (mostly on specific subject matters),
which some Member States have ratified. However, these are far from being universally
applicable within the EU. In particular, a European Convention abolishing legalisation of
3documents in the Member States of the European Communities has never come into
force.
- The apostille procedure is an obstacle both in terms of time and money to the unhindered
circulation of authentic instruments within the EU.
- Under EC Regulations already in force concerning the free circulation and enforceability
4of certain types of authentic instruments (Brussels I Regulation , Brussels II bis
5Regulation and the Regulation on the European Enforcement Order), the need for an
apostille has already been abolished.

3 Convention Abolishing the Legalisation of Documents in the Member States of the European Communities,
done at Brussels on the 25th May 1987.
4 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters, OJ L 12, 16.1.2001