EN Official Journal of the European Union CE 45/60

European Authentic Act

P6_TA(2008)0636

European Parliament resolution of 18 December 2008 with recommendations to the Commission on the European Authentic Act (2008/2124(INI))

(2010/C 45 E/11)

The European Parliament,

— having regard to Article 192, second paragraph, of the EC Treaty,

— having regard to the Commission's communication of 10 May 2005 entitled ‘The Hague Programme: Ten priorities for the next five years. The Partnership for European renewal in the field of Freedom, Security and Justice’ (COM(2005)0184),

— having regard the comparative study on authentic instruments conducted for the Committee on Legal Affairs,

— having regard to Rules 39 and 45 of its Rules of Procedure,

— having regard to the report of the Committee on Legal Affairs (A6-0451/2008),

A. whereas, in its aforesaid communication on the Hague Programme, the Commission singled out, as one of its priorities, the need to guarantee an effective European area of civil justice, not least as regards the recognition and enforcement of judicial decisions; whereas, with the aim of strengthening mutual trust within the European Union, that programme stated that continued implementation of the principle of mutual recognition was a main priority in the coming years, as mutual recognition is a specific means of protecting the rights of citizens and guaranteeing their application across borders in Europe,

B. whereas the Hague Programme states that continued implementation of the programme of mutual recognition is a main priority and that this should be completed by 2011,

C. whereas there is a steady increase in the movement of citizens within the Union; whereas there is therefore a development in the number of legal situations concerning two or more Member States,

D. whereas, in its aforesaid Communication on the Hague Programme, the Commission recognised that in the field of civil justice one key aspect that needs to be addressed is the recognition of public documents; whereas, in this respect, there is an urgent need to promote the recognition and enforcement of authentic acts, as defined in the Unibank judgment (1),

E. whereas the sectoral and inconsistent approach taken by Community legislation in this field is not satisfactory (2),

F. whereas there is a need to protect European citizens in their cross-border family and property relationships,

G. whereas businesses have more and more branches abroad and intra-Community activities that result in the greater movement of authentic acts relating to the setting-up and operation of businesses,

H. whereas it is essential to establish a clear and comprehensive legal framework for the Union that guarantees citizens and economic operators the certainty and predictability of legal situations and transactions drawn up by those delegated with public authority,

I. whereas the creation of a genuine European legal area is based, in the field of litigation, on the cross-border recognition of legal decisions made by a court or administrative authority and, in non-judicial matters, on the cross-border recognition of authentic acts drawn up or registered by a judicial authority or by public officials appointed to authenticate legal acts,

J. whereas the existing regulations on the mutual recognition of legal decisions apply to authentic acts when these emanate from the public authorities,

K. whereas the key characteristic of an authentic act is that it has a greater probative value than a private agreement and that this probative value, which must be accepted by the judge, is regularly conferred on it in Member State legislation on account of the trust placed in acts drawn up, in the context of legal transactions, by a public officer appointed for that purpose or by a public authority (3),

L. whereas the prerequisite for the probative value of an authentic act is recognition of its authenticity, in that it emanates from a public official vested with the power to draw up authentic acts or from a public authority; whereas mutual trust in the legal systems of the Member States justifies making authenticity verification procedures only applicable in future when serious doubts arise as to the veracity of the document,

M. whereas respect for the legislation of the Member State on the territory of which the act is to be produced for use nevertheless entails the certainty that recognition of the probative value does not mean that the foreign authentic act enjoys a greater probative value than national authentic acts in that Member State by virtue of its recognition in the Member State in which it is to be produced; whereas the material scope of the Regulation requested should cover an essential part of civil and commercial law, with the exception of certain clearly defined matters,

N. whereas differences in the structure and organisation of public registry systems in the field of immoveable property, as well as differences concerning the nature and scale of the public confidence placed in them, mean that the transfer of immoveable property rights has to be excluded from a future Community instrument, given the close correlation between the method of drawing up an authentic act and entry in the public register,

O. whereas, as regards the recognition of legal decisions across the Union, this exclusion corresponds to attributing exclusive competence to the courts of the place where the property is situated for all appeals relating to immoveable property rights and to the courts on the territory where the public register is kept for all appeals relating to the validity of entries in the public register (4),

P. whereas the concept of an authentic act does not exist in common-law systems, in particular the law of England and Wales, or in Nordic countries; whereas although in England and Wales there exist solicitors who act as notaries public and the profession of scrivener notaries, those lawyers cannot produce authentic acts, but are merely empowered to certify signatures, and whereas accordingly, in adopting any legislation on European authentic acts, steps should be taken to ensure that no confusion can arise in this respect; whereas, in turn, 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 (e.g. grant of probate); whereas, in addition, in order to raise awareness among legal professionals in those Member States where authentic acts do not exist, a suitable information campaign should be initiated by the Commission and every effort should be made to ensure that common-law legal professionals are aware of the work done by civil-law public officials and of the potential advantages for their clients — in terms of legal certainty, in particular — of using authentic acts in transactions which they are proposing to conclude in those countries where that instrument is used; whereas this underscores a need often expressed by Parliament's Committee on Legal Affairs for trans-European networks of legal practitioners, information campaigns and material and common training, which the Commission is called upon to promote,

Q. whereas the Regulation requested may not apply either to matters relating to the applicable law covered by other Community instruments or to questions relating to the competence, organisation and structure of public authorities and officials, including the authentication procedure, which come under the jurisdiction of the Member States,

1. Considers that mutual trust in the field of law within the Community justifies the future abolition of procedures for checking the accuracy of authentic acts in cross-border matters; considers that this recognition of an authentic act for the purpose of its use in the requested Member State can only be refused in the case of serious and substantiated doubts as to its authenticity, or if recognition is contrary to public policy in the Member State requested;

2. Requests the Commission to submit to Parliament, on the basis of Article 65(a) and the second indent of Article 67(5) of the EC Treaty, a legislative proposal on establishing the mutual recognition and enforcement of authentic acts;

3. Stresses that recognition may not result in giving a foreign act greater effect than a national act would have;

4. Asks that the Regulation requested 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;

5. Specifies that the Regulation requested 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;

6. Notes, in this context, that the recommendations annexed hereto respect the principles of subsidiarity and proportionality and the fundamental rights of citizens;

7. Considers that the requested proposal will not have any financial implications;

8. Instructs its President to forward this resolution and the accompanying detailed recommendations to the Commission and the Council, and to the governments and parliaments of the Member States.

(1) Judgment of the Court of Justice of 17 June 1999 in Case C-260/97 Unibank [1999] ECR I-3715.

(2) Council Regulation (EC) No 44/2001 (OJ L 12, 16.1.2001, p. 1); Council Regulation (EC) No 2201/2003 (OJ L 338, 23.12.2003, p. 1); Council Regulation (EC) No 805/2004 (OJ L 143, 30.4.2004, p. 15).

(3) Opinion of Advocate-General La Pergola of 2 February 1999 in Unibank, cited above, paragraph 7.

(4) See Article 22, points 1 and 3, of Regulation (EC) No 44/2001.