Document Sample
von Powered By Docstoc
					[Work translation]

                                       Comparative study
                  of acts drawn up by English Notaries Public
       and authentic instruments in the meaning of existing EC legislation
                                         Prof. Walter H. Rechberger
                                            University of Vienna

        Table of contents
        I.     Subject: the “authentic European instrument” project
        II.    Purpose of the study
        III.   Instruments issued by English Notaries Public
               A.     The image of the profession of the notary in England
               B.     Legal effects associated with English notarised acts
               C.     Recognition and execution of English notarised acts in other
                      EU Member States
        IV.    Conclusion

    I. Subject: the “authentic European instrument” project
    The comparative study carried out by the CNUE on behalf of the European Parliament
dealing with national provisions concerning the authentic instrument in England, France,
Germany, Poland, Romania and Sweden1, submitted in November 2008, resulted in the
“European Parliament resolution of December 18 2008 containing recommendations to the
Commission regarding the authentic European instrument”2. This resolution requires the
Commission to “submit a legislative proposal, seeking to arrive at the mutual recognition and
execution of authentic instruments”. It emerges from the whereas clauses that this proposal is
supposed to take the form of a ruling intended to complement existing rulings relating to the
recognition and execution of the decisions which also deal with authentic instruments, to wit,
rulings No. 44/2001 (“Brussels I ruling”)3, No. 2201/2003 (“Brussels II (a) ruling”)4, No.
805/2004 (“TEE” ruling)5 and ruling No. 4/2009 (“maintenance obligations” ruling)6.

  Comparative Study on Authentic Instruments. Study for the European Parliament No IP/C/JURI/IC/2008-019.
The title of this analysis arose from the study dealing with “Authentic instruments as the cornerstone of preventive
  (EC) Council Ruling No. 44/2001 of December 22 2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters, JO L 12, 16.1.2001
  (EC) Council Ruling No. 2201/2003 of November 27 2003 on jurisdiction and the recognition and enforcement
of judgments in matrimonial matters and in matters of parental responsibility, JO L 338, 23.12.2003.
   (EC) Council and European Parliament Ruling No. 805/2004 of April 21 2004 on creating a European
enforcement order for uncontested claims, JO L 143, 30.4.2004.
   (EC) Council Ruling No. 4/2009 of December 18 2008 on jurisdiction, applicable law, recognition and
enforcement of decisions and cooperation in matters relating to maintenance obligations, JO L 7, 0.1.2009. The

[Work translation]

    In the “detailed recommendations”7 we read that procedures for verifying the accuracy of
authentic acts in cross-border matters should be abolished in the future. The future ruling
should apply to all authentic acts in civil and commercial matters except those which relate to
immoveable property and which must or may be subject to entry or mention in a public
register. It should not apply either to matters relating to the law applicable to the subject-matter
of the authentic act or to questions relating to the competence, organisation and structure of
public authorities and officials, including the authentication procedure.
    The European Parliament resolution does not conceal the fact that a ruling on “the
authentic European act” could be seen as problematic, given that the concept of an authentic
act – as covered by whereas clause P – does not exist in Common Law systems, in particular
the law of England and Wales, or in Nordic countries. Attention is drawn to the fact that
whereas in England and Wales there are solicitors who act as Notaries Public, as well as
professional notaries (Scrivener Notaries), these legal professionals cannot issue authentic acts
and are only empowered to certify signatures, so that in adopting any legislation on European
authentic acts, steps should be taken to ensure that no confusion can arise in this respect; the
consequence is that every precaution should be taken to ensure that authentic acts cannot be
used in countries where such acts cannot be made by nationals of those countries in order to
circumvent procedures prescribed by the those countries' legal systems (the example given is
that of the issue of a certificate of inheritance). This confirms the substance of whereas clause
D according to which there is “an urgent need to promote the recognition and enforcement of
authentic acts, as defined in the Unibank judgment”.
    In this context it is appropriate to recall the fact that, according to the Jenard/Möller report
on the Convention of Lugano8, documents certified by the aforementioned Notaries Public
cannot be enforceable in another country in mainland Europe, since the qualification of a
document as an authentic act is inextricably bound up with the involvement of a public
authority or of an authority endowed with imperium. In the Unibank case9, the Court of
Justice completely restated the minimum criteria of the authentic act as laid down in the
Jenard/Möller report, thus rejecting the opinion according to which the Danish “gældsbrev”,
which is actually an enforceable private agreement, would have to be accepted as an authentic
act. If art. 57 Brussels I ruling and art. 46 of the “maintenance obligations” ruling do not yet

ruling applies, with the exception of some provisions already in application since 18.6.2011, with the reservation
that the Hague protocol of 2007 should be applicable in the Community at that date. In default, the ruling applies
as of the date of application of the said protocol in the Community (art.76).
  See the attachment to decision proposal P6_TA-PROV(2008)0636.
  Jenard/Möller, report on the Convention on jurisdiction and the enforcement of judgments in
civil and commercial matters, signed in Lugano on September 16 1988, JO 1990, C 181, p. 57.
  Court of Justice ruling, Unibank versus Christensen case, 17.6.1999, C- 260/97.

[Work translation]

contain the definition of the authentic act, its characteristics have been sanctioned in art. 4,
point 3 “Brussels I” ruling and in art. 2 point 3 “maintenance obligations” in the meaning of the
Unibank ruling. Any act which does not meet these criteria cannot, at this stage, be recognised
and/or executed in other EU Member States. On the other hand, any act which meets these
requirements must also be recognised and/or executed in those States which do not produce this
type of act. Hence we read in the judicial atlas relating to civil matters10 with reference to the
“TEE” ruling that authentic acts from other Member States can be perfectly satisfactorily
executed in England and Wales, but that such acts are not drawn up in England and Wales.
This means that it is not necessary to appoint a competent authority to issue an enforceable
European deed. The same holds for Northern Ireland and Gibraltar.
       However, in its alternative proposal to the European Parliament resolution of November 29
2008, the CCBE (Council of Bars and Law Societies of Europe) emphasised the risk of
discrimination regarding the legal profession in Anglo-Saxon and Scandinavian legal systems
by proposing to include in future regulations, acts endowed with legal effects equivalent to
authentic acts in the countries of mainland Europe (“instruments that have equivalent legal
effects where such legal effects are assigned to them under national law”). This is understood
to include both legally binding documents drawn up by a lawyer and (other) private agreements
between the parties that are enforceable in the Member State in which they are concluded.
       The position adopted by the English Notaries Public is similar. Indeed, in their opinion on
the draft ruling, they draw attention to the wide variety of duties for which notaries are
responsible in England (“Notaries perform a very wide range of public and private acts under
their official notarial seal which are for use in other jurisdictions”11) and propose, while still
remaining somewhat vague, that British instruments which have, or may have, probative force,
and by analogy with authentic instruments (countries of mainland Europe), should also fall
within the field of application of the future legislative instrument (“…to include other
instruments that do or can have probative force analogous to that of an authentic instrument”
     ). By way of example they mention the British deed as well as the notarial act. To support the
need to include such instruments having “similar effects” reference is made to the “Brussels II
(a)” ruling and more precisely, to art. 46 which concerns both authentic instruments and the
enforceable “agreements between parties” in the Member State of origin.
       On the matter of probative force, the Notaries Society points out that according to Rule
32.20 of the Supreme Court of Judicature, an authentic act may be deemed authentic without

   Notaries Society “Open Letter to the Members of the Legal Affairs Committee”.
   Notaries Society “Open Letter to the Members of the Legal Affairs Committee”.

[Work translation]

prior proof until proven to the contrary (“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”13).

     II. Purpose of the study
     The purpose of this study is the comparative analysis of the acts drawn up by Notaries
     First of all the image of the profession of the notary in England will be described, notary
here being understood as the Notary Public, the officer responsible for authenticating acts.
     Then the legal effects of an instrument issued by the authenticating officer will be
examined, particularly from the point of view of its probative force and enforceability.
     Thirdly, the study will examine the matter of the extent to which instruments issued by
Notaries Public are recognised and/or enforceable in those Member States of the European
Union which recognise the Civil Law legal system.
     The conclusion will effectively be a comparison between instruments issued by Notaries
Public on the one hand, and the authentic acts in the sense of Community provisions (the
“Brussels I”, “Brussels II (a)”, “TEE”, “maintenance obligations” regulations) on the other.

     III. Instruments issued by Notaries Public14

     A. The image of the profession of the notary in England
     Since the profession of the notary in England is historically closely connected to the
Church, notaries are still today appointed by the Archbishop of Canterbury (via the Faculty
Office). Until 1999, the members of what was known as the Scriveners’ Company held the
monopoly on acting as legal consultants in the City of London and within a three-mile radius.
Since then, all Notaries Public are authorised to perform their duties within that area, but the
Scrivener Notaries still exist. These officers are regarded as being very experienced in the field
of foreign legal systems, particularly since they are supposed to have mastered two foreign
languages, and have respective knowledge of Civil Law legal systems.
     In the English reference work on notarial practice, Brooke’s Notary15, the detailed
definition of the concept of the notary begins as follows: “an officer of the law appointed by the
  Notaries Society “Open Letter to the Members of the Legal Affairs Committee”.
  This chapter is largely based on the assessment made by Keith Uff, Visiting Lecturer in Law, Birmingham Law
School, University of Birmingham, entitled “Notaries in England and Wales”.

[Work translation]

Court of Faculties whose public office and duty it is to draw, attest or certify under his official
seal, for use anywhere in the world, deeds and other documents, including wills or other
testamentary documents, conveyances of real and personal property and powers of attorney; to
authenticate such documents under his signature and official seal in such manner as to render
them acceptable, as proof of the matters attested by him…”.
       Uff highlights the fact that the Civil Law legal professional should accept this definition
with some caution, since it contains a number of concepts which have quite different meanings
from those contained within his legal system. In particular, the idea of “public office” should
under no circumstances be understood to have the same meaning as it does here. Indeed, while
it may happen that English notaries perform duties of a somewhat public nature and some of
their powers are conferred by Act of Parliament, they nevertheless remain normal
practitioners and are not holders of a public office (“…they remain private practitioners and
are not public officials.”).
       The vast majority of notaries do not exercise their profession on an exclusive basis. They
are in the main solicitors; they would better be described as solicitors with special additional
       Another concept which should under no circumstances be understood in the Civil Law
sense is that of “authentication”. Part B will examine what is meant by this term in greater

     Brooke’s Notary, 12th edition (London 2002) 2-01.

[Work translation]

     B. Legal effects associated with English notarised acts
     In Brooke’s Notary we read: “An act is an instrument recording the due execution of a
deed, contract or other writing, or verifying some act or thing done. An authentic act is an act
executed in accordance with legal requirements and certified by the proper officer. A notarial
act is the act of a notary public, authenticated by his signature and official seal, certifying the
due execution in his presence of a deed contract or other writing, or verifying some fact or
thing done in his presence or of which the notary has certain knowledge. Thus, any certificate,
attestation, note, entry, endorsement or instrument made, or signed by a notary public in the
execution of his office is a notarial act.”16
     This definition shows that the concept of the authentic act in English law is limited to the
idea that the act is “authentic” when the act in question is drawn up in the exact form and that
the act is certified by a public officer, for example, a notary. A document's standing as
“authentic” thus relates only to the matter of the origin of the document and does not indicate
that the document's authenticity implies that it produces any particular legal effects. This is
why the legal effects of a valid deed arise from the fulfilment of the formal conditions applying
to deeds. The fact that the drafting of the deed has been attested by a notary may be considered
useful from the point of view of proving that the instrument is authentic, but this does not give
rise to any particular legal effects. English law does not recognise the concept of the
authentic act as it is understood by the countries of mainland Europe. As a consequence,
authentic acts do not have the enforceable power of a court ruling; in the absence of
additional legal instruments, it is impossible to proceed to the execution of the instrument. It
follows that the provisions of Community legislative instruments relating to the execution of
authentic acts17 are not applicable to the authentic acts drawn up by English notaries.18
     The difference should also be noted between English notarial instruments drawn up in the
authentic format and those drawn up as private agreements. The former are those in respect of
which “the notary is the author of the entire instrument whereby a juridical act is perfected, for
example the creation of a contractual relationship, or the grant of a power of attorney or of a
right in rem”19. Another example of some importance in practice is that of the protest in the
matter of the bill of exchange in the event of non-payment.20 Instruments drawn up by notaries
as private agreements stand as authentications and attestations in the framework of which the
instruments of private agreements between parties have a notary's letter and seal affixed. In

   Brooke’s Notary, 5-01.
   See, for example, art. 50 of the Convention of Lugano, and art. 57 of the Convention of Brussels
   See, likewise, Brooke’s Notary, 1-06 note at the foot of page 19
   Brooke’s Notary, 5-02.
   Brooke’s Notary, 12-06 – 12.12.

[Work translation]

England Notaries Public mainly draw up this type of instrument as a private agreement.21 In
this context, recourse to a notary is mainly based on the desire to submit the document in
another country which requires notarial authentication or on the importance of the action of a
notary to show that the document is authentic.
       The original of all acts drawn up by notaries is usually kept at the notary's office; a copy
signed by all parties, the witnesses and the notary himself, is given to the parties. This is
important from the point of view of compliance with the Common Law rule according to which
the submission of the original of a document is required as a matter of principle. If the original
exists, and if it can be produced, the submission of copies of the instrument is not acceptable.
       In this context, the question arises as to what is the probative force of English notarised
instruments before English courts. To this, there is no clear answer. Indeed, in Brooke’s
Notary we read: “there is considerable confusion regarding the degree of credence which the
court will accord to notarial acts, whether of foreign or English notaries”22. A number of legal
rules are mentioned in this regard. On this matter, Uff states, however, that the majority of the
cases quoted date back considerably; none have been settled since the coming into force of the
Civil Evidence Act 1995, which put an end to the rule of the inadmissibility of hearsay
evidence. The initial objective of this prohibition bore on the inadmissibility of the
administration of proof based on indirect perceptions such as the opinions of individuals not
summoned before the court as witnesses, or the allegations contained in the documents
submitted as evidence. Given that the rule of evidence prohibiting hearsay evidence has been
largely set aside, Uff obviously takes as his basis the principle that literal proof is also accepted
today in civil proceedings in England. As far as English notarised instruments are concerned,
he does, however, stress the fact that “notarial acts have no special status so far as their
evidentiary effect is concerned”. This naturally implies that English notarised instruments, of
whatever kind, are not comparable with authentic acts in the Civil Law legal system as far
as their probative force is concerned.

     Brooke’s Notary, 5-05.
     Brooke’s Notary, 6-06.

[Work translation]

   C. The recognition and execution of English notarised acts in other EU Member

    The legal effects produced by the acts issued by Notaries Public on the European mainland
has formed the subject of a survey carried out by the notarial organisations of France, Italy,
the Netherlands, Slovenia and Spain. While the issue of the legal quality of notarised
instruments issued by Notaries Public has not been resolved in all these countries (which is
partly due to the fact that no practical experience exists, as is the case with Slovenia, for
example), the responses provided in the questionnaire do actually produce some significant
results. Indeed, all the subjects interviewed highlighted the fact that the Notaries Public merely
authenticate signatures without verifying the content of the instrument itself. The conclusion
which is drawn from this is that Notaries Public are not comparable with the notaries of the
respective countries and that their instruments do not therefore stand as authentic
(enforceable) acts as they exist on the European mainland (the Slovenian response questioned
whether “documents issued by Notaries Public are the equivalent of Slovenian notarised acts”).
The French report referred to a ministerial answer given on July 5 2005 which made the
express point that the authenticity of an act must be determined by the content of the instrument
and not merely the signature; the instrument must be enforceable in the state in which it was
drawn up. Otherwise, a foreign act cannot be deemed authentic in France. Likewise, in Italy,
art. 68 of Italian law No. 218/1995 provides that the enforceability of a foreign instrument is
only recognised when it has been already established by virtue of the law of the State of origin.
In this respect, the Italian response emphasises the fact that British acts do not have the same
probative force as Italian notarised instruments in that a judge is not bound by their content.
The Dutch report compares the effects associated with the acts issued by Notaries Public with
those of “written agreements”.
    The Spanish response is very clear on this point. Compared with the instruments drafted
by Spanish notaries, instruments drawn up by Notaries Public do not constitute “authentic,
valid and enforceable acts”. All the responses refer to the fact that instruments drawn up by
Notaries Public cannot stand as the basis for entries in property registers. Some of the
responses, however, drew attention to the fact that acts made out by Scrivener Notaries should
be assessed in a different way; their responsibilities do go further than the simple authentication
of signatures in that they are involved in the drawing up of the act. However, this is not
confirmed by the explanations regarding Scrivener Notaries given by Uff in his expert report.
According to this report, as mentioned above, Scrivener Notaries are distinguished from other
Notaries Public by one aspect only: better training. Although they establish actual acts more

[Work translation]

often than other Notaries Public, precisely because of their better training, this does not actually
change the fact they do not carry out a public service. Based on the French response, we can
therefore bear in mind that, despite their particularities, neither do Scrivener Notaries fulfil the
criteria established in the European Court of Justice’s Unibank judgement concerning the
authority empowered to establish the authenticity of an act.
     Taking as a starting point the Theory of Enforceability of foreign deeds, fully accepted
under European civil law, and in which the deed in question is afforded the same legal status
(and not a higher status) as in the country of origin23, the following ensues:
     The enforceability of deeds by English Notaries Public in the EU Member States that
apply the Civil Law system cannot be accepted, since no enforceability is attached to such
deeds in England itself.
     Recognition of such deeds on the Continent would amount to accepting their (formal)
enforceability as evidence. It should also be noted that the extent of admissibility as evidence is
an issue of contention in England itself. Were one to accept Uff’s explanations, deeds issued by
English Notaries Public are indeed accorded no particular admissibility as evidence. This is
only logical, as in Common Law there are no deeds with public status within the meaning of
Civil Law, and therefore no rules concerning admissibility as evidence for such deeds.
Therefore, a deed issued by a Notary Public has no more value as evidence than any other
“written agreement”, as stated so strikingly in the Dutch answers to the questions, even when
presented as an “official form”.

     IV. Conclusion

     A. The Comparison
     When deeds by English Notaries Public are compared to public deeds within the meaning
of    European        legal    regulations       (LGVÜ,        EuGVVO,          EuVTVO,         EuEheKindVO,
EuUnterhaltsVO), then the following ensues:
     1. The first criterion of the “public deed” within the meaning of European legal regulations
is the participation of an authority or another function invested with imperium at the time the
deed was drawn up.

   Cf. only Kropholler, Europäisches Zivilprozessrecht8 (2005) Vor Art 33 EuGVVO Rn 9. It emerged from the
(cautious) phrasing of some answers to questions that in practice, a few continental EU Member States deeds
issued by English Notaries Public may actually be treated on a par with deeds issued by local civil law notaries as
far as their admissibility as evidence is concerned. This finding is confirmed through a frequently cited statement
by judge Lord Tenterden in the R. v. Scrivener Company case: “…many documents pass before notaries under
their notarial seal, which gives effect to them and renders them evidence in foreign countries, though certainly not
in our courts of common law” (s Ready, NZ 1997, 351 Fn 22).

[Work translation]

     The English Notaries Public are private legal practitioners and are not public
    2. In order to qualify as a “public deed” within the meaning of European legal regulations,
the certification must apply to both signature and content.
    With English notarised deeds, this is the case at most with some exceptional “official
forms”. Normally, legalisations and certifications of notarised deeds are “private forms”,
in any event merely private deeds.
    3. Public deeds within the meaning of European legal regulations are characterised by their
enforceability (s Art 50 LGVÜ, Art 57 EuGVVO, Art 46 EuEheKindVO, Art 25 EuVTVO,
Art 48 EuUnterhaltsVO).
    English notarised deeds are in no way enforceable.
    4. Public deeds of EU member states that apply the Civil Law system are regularly
accorded enhanced evidential value.
    With regard to admissibility as evidence, English notarised deeds are no different to
private deeds.

[Work translation]

       B. Inferences
       The fundamental differences between deeds drawn up by English Notaries Public and the
public deeds within the meaning of European legal regulations make it impossible to
formulate a common European definition for deeds.
       As the abovementioned (under I.) proposals of the English Notaries Society for inclusion
of their deeds in a future European directive on the “European public deed” show, the
enforceability of an English notarised deed is ignored from the outset. As far as the
admissibility as evidence of these deeds is concerned, the request for inclusion of such deeds
on the grounds of their “analogue effects” prima facie is based on Art 46 “Brüssel IIa”-VO, as
it deals not only with public deeds, but also with “Agreements between the parties that are
enforceable in the Member State of origin”. That is where the argument goes awry, as it returns
to the precondition of enforceability, which does not apply in any way to English notarised
       Concerning the reference made by the Notaries Society to Rule 32.20 of the Supreme Court
of Judicature, under which notarised deeds may be admitted as genuine until evidence to the
contrary is provided, the abovementioned explanations by Uff and Ready clearly demonstrate
that under English law, the authenticity of a deed cannot be based on special evidential value,
as is often the case on the basis of continental European rules for evidence. Not by chance is
Ready reporting on the many years of efforts by the Notaries Society to overcome the
vagueness of admissibility as evidence of English notarised deeds through legislative measures
to expand their evidential value.24 Whether or not their efforts have been fruitful is not known,

     Ready, NZ 1997, 353 f.