You wait all day for an EU regulation

Monday, 01 July 2013
Richard Frimston explains the link between bus timetables and the EU draft regulation on the acceptance of public documents.

Those of us who have ever waited for a bus know the problem. You wait forever, then three come along at once. This tendency, apparently known as ‘platooning’, usually affects buses, trains and lifts, but now seems to have spread to EU regulations.

All the delay over the succession regulation means the regulations scheduled behind it are now catching up.

We were expecting draft regulations on the matrimonial property and registered partnership regimes, but those two buses seem to be stuck in the Commission depot.

As envisaged in the Stockholm Programme and the programme of the current trio presidencies of Ireland, Lithuania and Greece, the draft regulation on the acceptance of public documents, COM(2013) 228,1 has now been published.

The EU Commission explains that ‘the proposal aims to slash costs and lengthy procedures caused by bureaucratic formalities that today require citizens and businesses to prove that their public documents (such as birth or legal status certificate) as issued by their country of origin are authentic. Such procedures are outdated and complicate the exercise of the EU citizens’ right to free movement and businesses’ single market freedoms.’

The regulation will use articles 21(2) and 114(1) of the Treaty on the Functioning of the European Union (TFEU) as its legal basis. Article 21(2) enables the rights of EU citizens to move and reside freely within the EU, and article 114(1) permits measures to improve the internal market.

Legislation under these articles is subject to ordinary procedure and is not subject to the opt outs available to Ireland and the UK under Protocol 21 TFEU or Denmark under Protocol 22 TFEU. Thus, once passed, the regulation will affect the entire EU.

While domestic public documents are presumed to be authentic without additional proof, those from other member states are often subject to proof by additional formalities such as an apostille under the 1961 Hague Convention, legalisation or a notarial certificate.

The proposed regulation would end such formalities for many documents, cutting costs for EU citizens and businesses.

Existing apostille requirements are thought to affect at least 1.4 million public documents a year in the EU. The UK’s apostille costs are the highest in the EU.

Public documents to be covered by the regulation include civil status records of birth, death, marriage and registered partnership, and documents relating to:

  • residence, citizenship and nationality;
  • immovable property;
  • legal status and representation of a company or other undertaking;
  • intellectual property rights; and
  • proving the absence of a criminal record.

At least 12.6 million EU citizens live in a member state other than their own and have to deal with considerable bureaucracy when dealing with public administration.

Around seven million small and medium-sized enterprises (SMEs) in the EU are involved in cross-border trade, and many more have investments or contracts involving other member states. These SMEs also have to go through administrative formalities involving public documents to carry out their business.

The regulation will end the need for legalisation or apostilles between member states. The ‘central authorities’ in the UK will presumably be the national General Register Offices and Companies House.

For birth, death, marriage, registered partnership certificates and those proving the legal status and representation of a company or other undertaking, new EU multilingual forms will be available, as an alternative to national public documents.

The regulation does not provide for recognition of the content of the public document, only for the acceptance of public documents. The effects of a registered partnership, for example, may therefore still not be recognised, even though the certificate must be accepted.

The private international law concepts of jurisdiction, applicable law, recognition and enforcement are, in the EU, beginning to be joined by the concept of acceptance, which first appeared in the succession regulation in relation to authentic acts.

Once the new EU forms start to circulate, it will be interesting to see whether states outside the EU also begin to accept them without legalisation.

Ding ding. Hold tight, please. 

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Richard Frimston

Richard Frimston TEP is a partner at Russell-Cooke Solicitors, co-Chair of STEP’s Public Policy Committee and Chair of STEP’s EU Committee.

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