Circulation of public documents in the EU*

On 16 February 2019, Regulation (EU) 2016/1191 of 6 July 2016 on the free circulation of certain public documents in the European Union became applicable. In order to ensure the free circulation of public documents in the Union and, in this way, to promote the free movement of European citizens, this Regulation aims to simplify the procedure for the presentation of public documents and their certified copies issued by a Member State authority for presentation in another Member State. As indicated in Art. 1, the Regulation aims to activate a system of exemption from legalisation or similar formality, as well as to simplify the other formalities, in particular the translation of documents: for this, it provides for a series of standard multilingual forms to be used as a translation aid attached to public documents which will be released without any legalisation. The Regulation does not replace other instruments or other systems of exemption from legalisation, nor international conventions already used and widespread, but shall be considered a separate and autonomous instrument with respect to the different existing methods. The international conventions currently in force, such as the 1961 Hague Convention on the Abolition of Legalisation, the Vienna Convention** of 1976 on the Issue of Multilingual Abstracts of Civil Status and the Munich Convention** of 1980 on the Issue of a Multilingual Certificate of Legal Capacity to Marry, remain fully applicable among the adhering States and the Regulation is a binding instrument upon all States, even those that had not adhered to the conventions. We would like to remind you that some of the aforementioned conventions have not obtained such widespread acceptance as to be able to transform them into a real and concrete tool that favours the circulation of documents. Where this happened, as in the 1961 Hague Convention (joined by more than a hundred States), the abolition of legalisation has not eliminated all formalities. Indeed, the legalisation was replaced with the affixing of the apostille by the competent authority. Furthermore, according to this convention, the translation of the document is also required. Therefore, an instrument aimed at providing a simpler and easier procedure for citizens was desirable. Other more usable and immediate conventions, such as the Vienna Convention of 1976 and the Munich Convention of 1980, referred to above, which exempted from legalisation and translation, being really simple to apply, did not reach that level of adhesion by the States that would be was desirable and, therefore, they were not able to satisfy the need for simpler tools for the circulation of documents. On the contrary, the Regulation (EU) 2016/1191 has the objective of procedural simplification, both avoiding the citizen the burden of legalising the original document, and simplifying the formalities relating to the translation which, according to the rule under Art. 6 of the Regulation, shall not be longer required when the document is drawn up in the official language of the Member State where it is presented, or is accompanied by a multilingual standard form, provided that the authority to which the public document is presented considers that the information included in the multilingual standard form is sufficient for processing the public document, so as to allow the circulation and acceptance of the document among all EU Member States. However, the possibility remains, albeit exceptional, that the authority to which the document is presented may require a translation or a transliteration of the content of the multilingual standard form (as indicated in “Recital 25”).

Scope of application

The Regulation applies to public documents issued by the authorities of a Member State in accordance with its national law and the primary purpose of which is to establish one of the following facts: birth, a person being alive, death, name, marriage, including capacity to marry and marital status, divorce, legal separation or marriage annulment, registered partnership, including capacity to enter into a registered partnership and registered partnership status, dissolution of a registered partnership, legal separation or annulment of a registered partnership, parenthood, adoption, domicile and/or residence, or nationality. The Regulation applies to “public documents” Art. 2 identifies how: a) documents emanating from an authority or an official connected with the courts or tribunals of a Member State, including those emanating from a public prosecutor, a clerk of a court or a judicial officer (‘huissier de justice’); b) administrative documents; c) notarial acts; d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures; e) documents drawn up by the diplomatic or consular agents of a Member State acting in the territory of any State in their official capacity, where such documents have to be presented in the territory of another Member State or to the diplomatic or consular agents of another Member State acting in the territory of a third State. It is certainly a definition that contains a very numerous typologies of documents. It follows that the application should also refer to numerous activities that take place in the various States and, therefore, the full implementation of the Regulation would really allow to simplify the procedures for citizens, effectively promoting the free movement of people. However, it does not apply to passports and identity cards as these documents are not under legalisation or other formalities when presented in a Member State. It also does not apply to public documents issued by the authority of a third State or to certified copies of such documents produced by a Member State. For instance, if a birth certificate issued by the competent authorities of Brazil were presented in Germany, Regulation (EU) 2016/1191 cannot be relied upon to present in Italy neither that certificate nor the certified copy issued by the German authority that had received it. Furthermore, the Regulation does not affect the application of EU law which provides for rules on legalisation, on similar formalities or other formalities, such as Regulation (EC) No 2201/2003.

The multilingual standard forms

The Regulation contains multilingual standard forms that should facilitate the translation of the public documents to which they are attached to: in essence, these multilingual standard forms do not have an autonomous value, but only as a translation of the corresponding public documents they access to, as required under Art. 8, para. 1. It is useful to clarify that the translation only concerns what required under the attached multilingual standard form and is a partial translation, referring to the essential aspects of the original document which could be more extensive and contain more extensive information. Therefore, these forms cannot circulate as autonomous documents among Member States, they do not have the same value or purpose as other multilingual standard forms provided for by international conventions (Vienna Convention of 1976, Munich Convention of 1980), but shall always be attached to the original documents they apply to as their translation. The multilingual standard forms and the original documents to which they are attached to are exempt from legalisation and, as pointed out, the multilingual standard form is valid as a translation, even if only of the essential elements, bearing in mind that the translation, in exceptional cases, may be requested pursuant to Art. 6, para. 1, lett. b. In practice, the original document will be issued by the competent authority, as usually happens, and will be exempt from legalisation under the Regulation, but a multilingual standard form will be attached to this document containing the translation of the essential elements of that document, containing date of issue as well as the signature and, where applicable, the stamp of the issuing authority.

The practical application of the Regulation

Any authority or public official provided for under the domestic law can act both as a subject transposing the documentation, to use it in assessing certain status of the citizen of the European Union or of the Italian citizen living in a Member State, and as a subject issuing the requested document. In the first case, he/she must verify that an original document in a foreign language of a European Union Member State has been presented, which will in any case be exempt from legalisation and other similar formalities, to which a multilingual standard form containing the translation shall be attached for translation purposes in Italian, containing date of issue as well as the signature and, where applicable, the stamp of the foreign authority issuing it. In the absence of doubts as to the falsity of the document or the correctness of the attached translation, the document shall be accepted and the contents of the document must be deemed adequately certified. For instance, if a Finnish citizen needs to document his marriage in Italy, for example for administrative or judicial purposes, he/she can present a certificate issued in the original language with a multilingual standard form attached in application of the Regulation, without any further formalities being necessary. Similarly, if you want to get married in Italy, even if you are unable to use the Munich Convention of 1980 relating to the issue of a multilingual certificate of legal capacity to marry, as Finland has never been party to this Convention, you could present a certificate of legal capacity to marry with the multilingual standard form attached under the Regulation attached, without further formalities. This allows the registrar to verify the existence of the requirements that allow him to proceed with the duties to comply with, in order to celebrate the required marriage. In the second case – request for certification to be presented abroad in a European Union Member State – it will be the Italian authority or public official in charge of issuing a document according to the Italian legislation and a multilingual standard form shall be attached as provided for under the Regulation. This form must be completed directly online on the platform of the European e-Justice Portal, which in the section “forms for public documents” provides for the online filling of all forms.

Practically:

  1. you choose one of the attachments, for example ANNEX I – BIRTH, it is an editable pdf form;
  2. you select the language of the requested Member State, for example Italy;
  3. you select the language of the requesting Member State, which can also be more than one for the chosen State, for example France;
  4. you download the editable pdf, to be filled in online, and you print, stamp and sign it.

In essence, this is a fairly simple procedure, even if it requires careful compilation.

In any case, a citizen presenting a document issued pursuant to the Regulation should not be required to provide a translation of that public document. Specifically, in accordance with Art. 6, in the event that it is drawn up in the official language of the Member State in which the document is presented or when the multilingual standard form is attached, the translation shall not be required if the authority to which the multilingual standard form is presented to considers the information contained therein sufficient for processing the public document as required. However, “the authority to which a public document is presented may exceptionally require, where necessary for the purpose of processing that public document, the person presenting that public document accompanied by a multilingual standard form also to provide a translation or a transliteration of the content of the multilingual standard form into the official language of its Member State or, if that Member State has several official languages, the official language or one of the official languages of the place where the public document is presented, that language being also one of the official languages of the institutions of the Union.” (Recital 25 and Art. 6, para. 1, lett. b of the Regulation). In practice, in exceptional cases, a margin of discretion is still left to the various Member States, in the evaluation of the document translation that is presented, providing for the possibility of obtaining a supplementary translation with respect to the attached multilingual standard form: it will be the responsibility of the authority to which the document is presented, accompanied by a multilingual standard form, to point out that the information contained therein is not sufficient for the processing and require for a supplementary translation in relation to the untranslated parts of the original one. In practice, a hypothesis of problematic application of the Regulation could arise in the presence of a document accompanied by the multilingual standard form presented for the purpose of transcription in the civil status registers in Italy: the incompleteness of the information contained in the multilingual standard form could induce the civil status to require for the complete translation of the original document, so as to be able to verify compliance with the rules provided for under the Italian legal order (for example, let’s think to the recognition of filiation and the limits established by the Italian legal order, or the exchange of consent in the case of celebration of marriage, if these essential elements were not detectable by the incompleteness of information contained in translation under the multilingual standard model).

The respect of Member States substantive laws and the protection against the risk of falsification

The purpose of the Regulation is not to change the Member States substantive law and not to affect the recognition in one Member State of legal effects relating to the content of a public document issued by the authorities of another Member State. This means that in the requesting State the document has the value that the latter State recognizes to the legal instrument that is documented by applying Regulation (EU) 2016/1191. In essence, the application of the Regulation does not oblige Member States to recognize the legal effects of what is attested in the documents issued under the same Regulation, as expressly indicated in Art. 2, para. 4 of the Regulation. A status recognized in a Member State and documented through the form provided for under the Regulation issued by that State does not necessarily have to be recognized in another Member State if it is in conflict with the public policy of the requesting State. For instance, if a document issued by the competent authority in Spain, certifying the marriage between two persons of the same sex, one of whom is an Italian citizen, were presented in Italy, this document would not be recognized in Italy as marriage, but would only produce the effects of civil union, as provided for by the Italian legal order (art(s). 32-bis and 32-quinquies of Italian Law No 218 of 1995).

The Regulation is concerned with providing guarantees to prevent fraud and falsification of public documents circulating among Member States. In order to ensure a high level of security and protection, it is confirmed that it should be the Internal Market Information System (‘IMI’), established by Regulation (EU) No 1024/2012, to provide all guarantees in this regard and to offer secure electronic transmission mechanisms for such documents. If there is a reasonable doubt about the authenticity of a public document or its certified copy, the authorities of a Member State to which these documents are presented should have the opportunity to check the document models available in the IMI repository for information. Note that, pursuant to Art. 14, para. 2 of the Regulation, the doubt could concern: a) the authenticity of the signature; b) the capacity in which the person signing the document acted; c) the identity of the seal or stamp; d) the document having been forged or tampered with. If the doubt remains, the interested authorities could submit, via the IMI, requests for information to the competent authorities of the Member State in which these documents were issued, addressing the request directly to the authority that issued the public document or produced the certified copy or by contacting the central authority of that Member State. The authorities shall reply to requests for information within the shortest possible period of time and in any case within a period not exceeding five or ten working days where the request is processed through a central authority. The ten-day deadline may apply, in particular, in the event that the authorities receiving the request are not yet registered in IMI.

The Italian Ministry of the Interior, in order to provide instructions to the civil status officers on demographic services, that are the public officials in charge of issuing the greatest number of public documents provided for by the Regulation, issued Circular No 2 of 14 February 2019, by which, very promptly before the date of full application of the Regulation, communicating the availability of the multilingual standard forms on the portal, inviting public officials to use it and to report any application problems.

A diffusion still limited

After more than two years of application, the Regulation does not appear to have the diffusion that could have been expected. Indeed, the cases of presentation of the original document with the multilingual standard form attached or of the request for release to use it abroad are not very numerous. The greatest criticality is certainly given by the double documentation – original and form containing the translation, without forgetting that in exceptional cases additional documentation may be required – which is not as immediate as, for example, provided for in documents issued under specific conventions (Vienna Convention of 1976 and Munich Convention of 1980). In relation to this aspect, the choice of the European legislator certainly appears unconvincing, as it represents a clear complication with respect to the purpose of the legislation which was to simplify the circulation of public documents and, ultimately, facilitate the movement of citizens within the European Union. Perhaps the Vienna Convention of 1976 and the multilingual models relating to the extract of birth, marriage and death should have been the basis to work on and start from, in order to provide models, even more complete, but having the same structure consisting of the information to be reported in the document and the translation already contained in the document itself, avoiding legalisation and translation. It could also be assumed that it would have been sufficient to initially provide for a limited number of models, to be gradually increased after examination by a specific commission, provided that these models had been inclusive of text and translation such as those provided for by the aforementioned Vienna Convention: the presentation in a single document of both the original text and the translation would have simplified the flow of public documents among the Member States and favoured the circulation of citizens in a certainly more incisive way.

In essence, a Regulation that has recently entered into force and which should have brought substantial simplification benefits to Union citizens, facilitating the exchange and presentation of public documents, without legalisation and translation costs, but which still does not seem to work as it would be desirable.

Further information on Regulation (EU) No 2016/1191 are available here.

Renzo Calvigioni

Note – This document is subject to the warning set out here.

*The English translation is provided for by the Aldricus Editorial Board; the original version by the author, in Italian, is available in this portal in the corresponding Italian section.
**Available in the French text version.