An apostille is a certification that replaces the legalisation of documents. The apostille is issued by state authorities and allows you to use a foreign official document in other countries that are parties to the 1961 Hague Convention. Although Polish law requires the legalisation of foreign official documents in only a few cases, in practice it can be different.
The starting point for discussing the essence of the apostille should be the rules governing the use of foreign documents in the Polish legal system and the principles of their legalisation (authentication). According to Article 1138 of the Code of Civil Procedure, which regulates the use of foreign documents and their legalisation for the purposes of court proceedings, “Foreign official documents have the same probative value as Polish official documents“. This means that Polish courts (including business registry courts and land and mortgage registry courts) should, as a rule, treat documents issued abroad in the same way as documents issued by a Polish state authority, so that these documents do not have to undergo the legalisation procedure.
Although the Code of Civil Procedure does not define the term “foreign official document”, it is generally considered to be a foreign official document issued by an authority of a foreign country within the scope of its competence and in the appropriate form. A foreign official document is both the original of that document and its copy or extract certified by the authority that issued the document. This includes, for example, documents such as civil status records, notary’s deeds, court judgments or copies of official registers.
The second part of Article 1138 of the Code of Civil Procedure provides for two exceptions to the general principle of equal recognition of foreign and Polish documents.
The first exception requires that a document involving the transfer of ownership of immovable property located in the Republic of Poland be subject to legalisation procedure.
The second exception establishes the obligation to legalize a foreign public document if a party denies its authenticity.
Legalisation is carried out by Polish diplomatic mission or consular office or by consular office of a foreign state in Poland. When legalising a document, a diplomatic or consular representative certifies that the document is an official document, i.e. that it was issued in accordance with local law by an authority or a person of public trust authorised to do so under local law. The diplomatic or consular representative must also verify that the document has been issued in the correct form and that the seals and signatures are authentic.
In a situation where it is necessary to legalise a foreign document, an apostille can replace this process.
An apostille certifies the authenticity of a signature on an official document and the capacity in which the person (e.g. an authority, official or notary) who signed the document acts (including a document containing an official or notarised certification of a signature on a private document). The apostille also certifies the identity of the stamp or seal affixed to the document. The certificate is issued by the competent authority of the country of origin of the document (for Polish documents, the Ministry of Foreign Affairs).
The apostille was introduced under the Hague Convention of 5 October 1961 on the Abolition of the Requirement for Legalisation of Documents. At present, 127 countries, including the Republic of Poland, are parties to the Hague Convention. In accordance with the provisions of the Hague Convention, documents with an apostille are recognised in all countries that are parties to the Convention. The signing of the Hague Convention by 127 countries means that the inability to use the apostille and the necessity to legalise documents at diplomatic missions or consular offices will apply to foreign documents from a few countries (e.g. Saudi Arabia, Egypt or Indonesia).
It should be noted that the main objective of the Hague Convention of 5 October 1961 is to simplify and speed up the procedures for the certification of documents from abroad, since the apostille replaces legalisation. Unlike legalisation, which is carried out by diplomatic missions and consular offices, the apostille is issued by the delegated authority of the country of origin of the document. In theory, the transfer of the obligation to authenticate the document from diplomatic representatives to state authorities should speed up the procedure. In practice, the waiting time for obtaining an apostille varies from country to country.
As in the case of legalisation of documents, the need to obtain an apostille for documents arises in situations specified in Article 1138 of the Code of Civil Procedure, i.e. when a foreign document involves the transfer of ownership of real estate located in the Republic of Poland or when a party denies its authenticity. This, of course, concerns foreign documents used in trade in the Republic of Poland.
If you plan to use Polish documents in order to perform certain acts abroad in a state that is a party to the Convention, the legislation of that country will determine whether or not there is a need to obtain an apostille on a Polish document.
In everyday practice, the use of foreign official documents, the probative value of which should not be questioned by the Polish authorities in the light of Article 1138 of the Code of Civil Procedure, unfortunately encounters obstacles. It often happens that, although the transaction does not involve the transfer of ownership of real estate located in the Republic of Poland and no party denies the authenticity of the document, courts, public administration bodies or other institutions require an apostille for the authentication of a foreign document.
This problem has been identified by many scholars, who point to the incorrect application of the apostille by courts and authorities of the Convention States, which in turn affects the effectiveness of international trade. This is particularly evident in the unjustified requirement to affix an apostille to a foreign document in cases not covered by Article 1138 of the Civil Procedure Code and contrary to Article 3 of the Hague Convention of 5 October 1961. As the Supreme Court stated in its resolution of 13 April 2007, III CZP 21/07, OSNC 2008/3, point 34, the obligation to certify only the specified documents means that Poland has unilaterally waived the obligation to legalise other official documents.
It should also be remembered that many institutions operating in Poland (including banks) have their own rules regarding the requirements for legalisation of foreign documents. Such institutions may require documents to be legalised or an apostille to be obtained, even if there is no formal reason for doing so. For the avoidance of doubt, it is advisable to clarify in advance whether a particular document will be accepted without legalisation, or whether a particular institution expects the legalisation/certification of such a document, which in most cases involves affixing an apostille on the document.
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