Is an apostille clause really necessary?
The article is the third of a three-part entry on the conclusion of real estate contracts by a client's attorney residing abroad.
The second part: Law applicable to the power of attorney and the content of the power of attorney
Nowadays, we often conclude contracts before notaries on behalf of clients residing abroad. Each notary requires us to bring a power of attorney from the client, with an apostille clause, at the time of concluding contracts, relating to real estate.
Is this practice correct?
The apostille clause was introduced by the Convention Abolishing the Requirement of Legalization for Foreign Public Documents of October 5, 1961, ratified in Poland in 2005 (Journal of Laws 2005 No. 112, item 938). This convention has also been ratified by Spain.
According to Article 3 of the Convention in question:
The only action that may be required to certify the authenticity of the signature, the nature in which the person who signed the document acted, and, if necessary, the identity of the seal or stamp with which the document is affixed, is the attachment of the apostille specified in Article 4, issued by the competent authority of the State from which the document originates.
Thus, an apostille is a confirmation of a document's origin and authenticity that allows it to be used abroad.
In the analyzed case described in the first entry, the client is in Spain. In Spain, the apostille is issued at the Notary Council, in selected cities. The cost of obtaining it is about 30 euros.
However, the legal situation, resulting from the Convention described above, changed as of February 16, 2019 with the entry into force of 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 the presentation of certain official documents in the European Union and amending Regulation (EU) No. 1024/2012 (Regulation 2016/1191).
According to Article 4 of the above regulation (which applies directly in all EU countries), the requirement for legalization of public documents between EU member states is abolished.
And according to Article 3(1)(c.) of the Regulation, "official documents" also means notarial acts.
It follows that under EU law there is no longer a requirement to attach an apostille to notarial acts between EU member states, and authorities cannot require it.
With that said, an apostille can still be issued upon request.
However, there are doubts that the Polish Law on the Submission of Certain Official Documents in the Member States of the European Union of April 4, 2019. (Journal of Laws Z 2019, item 860), which could, according to EU law, only have an executive or supplementary character to the above regulation (which applies directly), contains its own catalog of official documents to which the above regulation applies. Among the enumerated documents, however, there are no... notarial acts.
For this reason, we recommend that clients still apply for and obtain an apostille despite the lack of a requirement to attach an apostille within the European Union. This will avoid potential problems with the conclusion of a notarial deed at a particular notary public, or the subsequent registration of ownership in the land register.
Do you currently have a problem with concluding a contract, concerning real estate, located in Poland? Are you unable to come to Poland to conclude a notarial deed? Contact us for legal advice on the matter, or for representation at a notary public.
Author: Julia Armata
