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Free Circulation of Foreign Documents

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XIII ELRA Assembly
Brussels, 17 May 2011
Free movement of public documents and LR in EU
I.- EU LR and public documents.II.- EU LR and foreign documents.III.- The effects of foreign documents: recognition?
IV.- Impact of the measures envisaged in the GP in the EU
land registries.-
Free movement of public documents and LR in EU
I) EU LR AND PUBLIC DOCUMENTS.п‚— LR creates legal certainty and provides security in the legal traffic on
immovable assets.
п‚— The document aiming at registration must comply with highest degree
of quality and reliability. Only documents produced according to this
high standards can modify the content of the land books.
п‚— The document aiming at registration must ensure the following:
п‚— Prove of identity.п‚— Authenticity.п‚— Completeness.п‚— Legal probative value.п‚— Content.- Lex rei siate (solemn form)
Free movement of public documents and LR in EU
п‚— With regard to the NATURE of documents accepted in EU LR, we can
make a distinction beteween:
п‚—
п‚—
п‚—
п‚—
Judicial decisions,
Notarial deeds,
Other authentic acts issued by an administrative officer.
Private deeds .
Free movement of public documents and LR in EU
п‚— With regard to the PURPOSES of documents presented to the LR, we can
make a distinction:
п‚— As a main title for registration.- documents containing a real estate transaction or a conveyance act, or
creating,
modifying or extinguishing others rights in rem.
- documents aiming at publishing a notice or a restriction on the real estate or on
ownership or other registered rights in rem.
п‚—
As a complementary document.- evidence of certain facts or legal situations
- documents containing governmental authorizations or licenses, or
attesting the payment of taxes, etc..
All this documents have to be presented in original, or a certified copy, they must be
issued by the competent authority and will be under the registrar control.
Free movement of public documents and LR in EU
II).- EU LAND REGISTRIES AND FOREIGN DOCUMENTS.1.- MS procedural and Land registration rules regulate the effects and the enforceable
nature of foreign documents.
In general terms, and with some relevant exceptions, a significant number of EU Land
registration acts do not exclude foreign documents from registration as far as they
comply with the lex rei sitae requirements.
2.- However, the EU is empowered by primary law to regulate the circulation of foreign
documents; Treaty of the functioning of the EU, article 81:
1. The Union shall develop judicial cooperation in civil matters having cross-border
implications, based on the principle of mutual recognition of judgments and of decisions
in extrajudicial cases. …..
2. For the purposes of paragraph 1, the EP and the Council shall adopt measures
ensuring:
(b) the cross-border service of judicial and extrajudicial documents;
Free movement of public documents and LR in EU
п‚— A)FOREIGN JUDICIAL DOCUMENTS:
a) As a main title for registration.- No accepted
Brussels I art. 22-1 ,22-3 and 22-5: exclusive competence for national courts
when dealing with property rights, public register entries and enforcement of
judgments.
b) Judicial decisions .- Accepted or registered after an automatic
recognition by the national authority.
Depending on National legislation, some decisions may need not just to be
recognized, but enforced to be registered (additional procedure must be followed:
exequatur before the National Court).
Brussels I, introduced a simplified process for the exequatur.
Free movement of public documents and LR in EU
EU implementation mutual recognition principle: Automatic recognition
п‚— Revision Brussels I; abolishing exequatur? Provisional measures.
п‚— Regulation CE nВє 1346/2000: art 16; Judgment opening insolvency
proceedings
п‚— Brussels II bis, art. 21; Automatic recognition
п‚— Envisaged regulations: Judicial decisions creating a certificate of
inheritance, or of liquidation of the common assets. of the spouses.
European titles aiming at registration (Art. 42.5 Proposal Regulation
Successions)
п‚— Automatic recognition does not means a lack of control of those decisions,
the recognition takes place in a more simple way by the national authority:
Incidental recognition before the registrar as national authority
Free movement of public documents and LR in EU
п‚—
B) FOREING AUTHENTIC ACTS.- NOTARIAL DEEDS
a) - Substantive requirements:
Compliance with lex rei sitae either in FORM and CONTENT. A few MS
establish an exclusive competence for national notaries when dealing with
conveyance acts.
b) - Foreign law must be proved.The foreign components of the legal relationship must be proved
c) -Formal requirements:
- authenticity: legalization or Hague Convention 1961 apostille
-translation.
d) – Obligations imposed by the national Authorities:
Tax payment, previous notice pre-emption rights, municipal licenses, etc…
Free movement of public documents and LR in EU
п‚— C) FOREIGN PRIVATE DOCUMENTS.п‚— They are largely excluded from EU land registries, except in Common law
systems and Scandinavian countries.
п‚— In those countries where they are accepted , the requirements are:
-The deed must meet the lex rei sitae requirements.
- Authentication
-Translation
Mutual recognition: could this legal systems be excluded?
Free movement of public documents and LR in EU
III.- THE EFFECTS AND VALUE OF FOREIGN DOCUMENTS:
RECOGNITION?
a) Recognition of judicial decisions.
b) Authentic acts: recognition?
c) The role of the registrar.
Free movement of public documents and LR in EU
п‚— A) Recognition of judicial decisions.
Concept created by International Private Law, applied to Judicial decisions.
п‚— Certain State opens its legal system to a foreign legal act or legal situation
allowing to produce its effects within it.
п‚— (Enforcement of decisions require a special procedure before the national
court: Exequatur)
п‚— The concept of recognition is not clear when it is applied to authentic
instruments; they can not be assimilated to the judicial decisions:
п‚—
Recital 26 Proposal Regulation on Successions: “the authentic instruments cannot be
treated as court decisions with regard to their recognition”
Max Planck Institute also considers not applicable this concept to notarial instruments:
“Whether an authentic instrument drawn up by a public notary is valid depends on the
applicable law pursuant to the relevant choice of rules.”
Free movement of public documents and LR in EU
п‚— B) Recognition of authentic acts means free circulation.
п‚— Recognition of the authentic act means accepting its legal value as evidence.
Framed by two limits:
п‚—
п‚—
no greater effects than those given to that document by the national law of the
State where it has been drawn up.
neither more effects of those given to the same kind of documents by
legislation of the State where the document has to be applied.
п‚— Recognition of authentic acts must not be extended to the matters relating to
the law applicable to the content of the authentic act. Matters will be subjected
to the relevant applicable law and can be contested by the national authority.
Free movement of public documents and LR in EU
п‚— C) The role of the registrar.
п‚—
Within the Land Registry, the Registrar is the national authority who
performs the national control of the foreign act.
п‚—
The registrar analyze:
п‚—
п‚—
п‚—
п‚—
The legal grounds for its acceptance (Internal law, EU law, International
Treaties and Conventions).
The authenticity.-intermediate procedures like legalization or apostille
The content of the authentic act is not under recognition and must be
checked as to its compliance with the relevant applicable law.
In matters of immovable ownership and other rights in rem, public registers
and its publicity, this law will always be the lex rei sitae.
Free movement of public documents and LR in EU
IV.- Impact of the measures envisaged in the Green Paper in the EU land
registries.-
a).-Scope
b).- Facilitating the Free circulation of documents
c).- Circulation of Civil status acts
Free movement of public documents and LR in EU
п‚— A) The scope:
п‚— The nature of public document .- it covers all the official records drawn up by a
Member State authority, and includes as example:
- Administrative documents such as diplomas or patents;
- Notarial acts, such as sales deeds for property and marriage contracts;
- Civil status records, such as birth, marriage or death certificates, and
- Judicial documents such as court rulings or documents issued by the
Court.
The initiative will focus on the LEGAL FORMALITIES. Only formal aspects, no
substantive validity. Reduce administrative costs and burdens.
Free movement of public documents and LR in EU
п‚— B).-Facilitating the Free circulation of documents, by means of:
п‚— Abolition of administrative formalities for the authentication of public
documents.- Abolishing legalization: apostille (the Hague Convention 1961).
п‚—
п‚—
Mutual trust : The authenticity of the document could only be contested when
serious doubts arises.
To avoid risks, alternative methods must be envisaged;
п‚—
п‚—
п‚—
п‚—
electronic signature
cooperation between competent national authorities: the Networks (ELRN)
Translation: standardized models included in the annexes of the Regulations
(EU payment order, Certificate of Inheritance, etc.)
Standardized multilingual documents are not suitable for land registration as
those documents will have to comply with the lex rei sitae requirements of each
MS.
Free movement of public documents and LR in EU
п‚— D) Circulation of Civil status acts: Certificates from the Civil Register
п‚—
Probative value.-Authentic acts: evidence of the facts and civil status
situations recorded.
Electronic documents.
Available on line using a secure system.
п‚—
Legal effects of the proved facts or the civil status: applicable law, different effects
in each system. Mutual recognition
Cooperation network of Civil registrars.
п‚—
European Civil status certificate.- Is it applicable for an European Land
Registry certificate? It could be in the long term but not for the moment.
п‚—
п‚—
п‚—
п‚—
Different structure of the data base
Different governing principles.
Different data protection legislation
Different effects and degree of protection.
Free movement of public documents and LR in EU
CONCLUSION
 “ The European judicial area must also allow citizens to assert their rights
anywhere in the Union by significantly raising overall awareness of rights and
by facilitating their access to justice”. The Stockholm Programme.
п‚— Access to Land Registry from anywhere of the Union = access to Justice.
п‚— EU LRs must take a step forward to make effective the EU citizens rights,
allowing free movement foreign documents, but without disturbing national
systems of legal certainty.
п‚— The principle of free movement of public document will be ease by the
European Land Registry Network.
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