The requirement for legalisation of foreign official documents
Courts and state offices typically demand legalisation or apostille of official documents issued in another country, but it is not always necessary.
The globalisation of commerce means that sometimes it is necessary to submit to courts or administrative agencies official documents issued in another country, e.g. documents made by foreign notaries, criminal records from abroad, or foreign company registers. In Poland, courts and state offices typically accept such documents as evidence only when they have been legalised. This is not always necessary, however, in order to rely on foreign official documents in Poland.
A foreign official document is understood to mean a document issued by an authority of a foreign country. The place where the document is issued is not controlling in this respect, however (for example, a document issued by a Polish diplomatic mission abroad is regarded as a Polish official document).
Polish law is nearly silent on the evidentiary weight of foreign official documents. The only statute addressing this issue is Civil Procedure Code Art. 1138, which states the general rule that foreign official documents have the same evidentiary weight as Polish official documents, without the need for authentication. Because this issue is not addressed anywhere else, Art. 1138 is applied by analogy in other circumstances as well, not just in civil proceedings.
This means that apart from the exceptions expressly stated in Civil Procedure Code Art. 1138, foreign official documents are admissible in Poland and enjoy the same weight as Polish official documents. The exceptions are stated in the second and third sentences of Art. 1138. Authentication is required for any documents concerning transfer of ownership of real estate in Poland. This requirement applies not only to a deed transferring ownership, but also, for example, to a power of attorney to conclude the deed. The other exception is when the authenticity of the document is disputed by a party. For purposes of civil procedure, the current wording of this exception is understood to mean that doubts as to the authenticity of the document may not be raised by the court on its own initiative. (Under the earlier wording, this exception applied to a document that “raises doubts as its authenticity.”)
Numerous international agreements also abolish the requirement for legalisation of foreign documents. For example, Poland is a party to the European Convention on the Abolition of Legalisation of Documents Executed by Diplomatic Agents or Consular Officers, signed in London on 7 June 1968. (The other parties to the London Convention are Austria, Cyprus, the Czech Republic, France, Germany, Greece, Ireland, Italy, Liechtenstein, Luxembourg, Moldova, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey and the UK.) The London Convention eliminates the requirement for legalisation of “documents which have been executed by diplomatic agents or consular officers of a Contracting Party, acting in their official capacity and exercising their functions in the territory of any state, and which have to be produced: (a) either in the territory of another Contracting Party, or (b) to the diplomatic agents or consular officers of another Contracting Party exercising their functions in the territory of a State which is not a party to this Convention.”
The requirement of legalisation is also eliminated to some extent or another under numerous bilateral agreements signed by Poland (including agreements with Austria, Belarus, Bulgaria, China, Cuba, Cyprus, Egypt, Estonia, Greece, Hungary, Iraq, Italy, Latvia, Libya, Lithuania, Mongolia, Morocco, North Korea, Russia, Syria, Tunisia, Turkey, Ukraine, and Vietnam).
The concept of “legalisation,” according to the London Convention, means “the formality used to certify the authenticity of the signature on a document, the capacity in which the person signing such document has acted and, where appropriate, the identity of the seal or stamp which such document bears”—or, in other words, the fact that the document was made by a public official. More broadly, the term also includes confirmation of the person’s authority to issue the document and the document’s compliance with the law of the place where it was issued.
The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, concluded on 5 October 1961, replaced the requirement of legalisation with the narrower concept of an apostille certificate. Art. 3 of the Hague Convention further provides that an apostille “cannot be required when either the laws, regulations, or practice in force in the State where the document is produced or an agreement between two or more Contracting States have abolished or simplified it, or exempt the document itself from legalisation.”
In short, before obtaining legalisation or apostille of a foreign official document, it should first be determined whether there is any basis for requiring legalisation pursuant to Civil Procedure Code Art. 1138. If so, it should then be determined whether Poland is a party to a convention or treaty which in this specific instance abolishes the requirement for legalisation of foreign official documents.
Finally, we should mention the special status of documents issued by diplomatic agents or consular officers accredited in Poland representing countries that are parties to the Hague Convention but are not parties to the London Convention or any other international agreement abolishing the requirement for legalisation of the documents. According to Art. 1 of the Hague Convention, the convention does not apply to documents executed by diplomatic or consular agents. Thus an apostille may not be issued for such documents. Legalisation of such documents is not possible either, because the Polish Ministry of Foreign Affairs will not legalise documents from countries that are parties to the Hague Convention. This is because the ministry does not maintain the specimen signatures of diplomatic agents which would be necessary to conduct the legalisation procedure (such signatures are not taken because the requirement for legalisation of documents from those countries has been abolished). According to information provided by the ministry staff, legalisation of documents signed by diplomats accredited in Poland is also not conducted.
For these reasons, legalisation of foreign documents from countries that are parties to the Hague Convention but not parties to the London Convention or any other international agreement abolishing the requirement for legalisation of the documents is not possible in practice. Nonetheless, it should be pointed out that the authenticity of documents issued by foreign diplomatic missions in Poland should not present any significant controversies, which means that under Civil Procedure Code Art. 1138 there will be no need to authenticate them in most instances.
Weronika Pelc and Marek Dolatowski, Energy Law Practice, Wardyński & Partners
