Exceptions Which Became Rules

The rampant practice of affixing, and requiring, apostille clauses for/to all official documents from foreign jurisdictions used in Poland is ripe for critical review. 
The statutory provision mandating equal recognition for Polish and foreign official documents is a laconic one, tucked away in the back pages of the Civil Process Code (art 1138), and it is often passed over without much thought. So what, exactly, does it mean in practice ?

Art 1138 of the Polish Civil Process Code unequivocally states that official documents issued in foreign jurisdictions shall have evidentiary value on a par with Polish official documents, and that they shall benefit from a presumption of authenticity and of truthfulness in their substantive aspect, unless and until it has been proved that the foreign document has been forged or that it states an untruth. Only in exceptional circumstances, when such doubts as to the authenticity or accuracy of the foreign document do arise, does Polish law require additional measures for its authentication or validation. Under art 252 of the Civil Process Code, it is up to the party questioning the form or the essence of the foreign document to adduce proof substantiating its position; this may be done in accordance with the general law of evidence. Of course, art 252 of the Civil Process Code cannot be taken as grounds for challenging the accuracy of court verdicts; a court decision may be questioned only in accordance with the general appeals procedure (this rule has been affirmed, among other authorities, in the Supreme Court ruling from 15 September 1999, case ref III CKN 606/99).

A run-of-the-mill example of an official document issued by the authorities of a foreign jurisdiction would be an extract from a commercial / companies register. A party presenting such an extract may lawfully prove, for instance, the means of a legal entity’s representation (for purposes of executing a contract or granting powers of attorney), the identity of an entity’s shareholders and the composition of its governing bodies (for purposes of liability), or the entity’s address (for service of documents). Other examples of official documents include court rulings, educational diplomas and certificates, passports and identity cards, and various documents attesting to drivers’ qualifications and to ownership and insurance of motor vehicles.

The Polish Civil Process Code does not include an express definition of a foreign official document, necessitating analysis of the relevant legal authorities. From this, we glean that a foreign official document is a document drawn up in due form by an authority of a foreign country acting within the scope of its ambit (as much is stated in the Supreme Court ruling from 31 January 2007 in case ref IICSK 379/06 or in the verdict of the Regional Administrative Court in Rzeszów from 21 July 2010 in case ref II SA/Rz 257/10). An analogous position has been adopted by various legal commentators writing over the past decade. The conclusion then arises that, given the lack of an express definition of a foreign official document and the fact that the Polish Civil Process Code lays down requirements for according official weight to a document as well as extending equivalent status to foreign documents, its art 244 should be applied on a per analogiam basis in order to define the status of a foreign official document.

The literature on the subject (e.g. P. Rylski, M. Radwan) generally takes the position that the legal norm set out in art 1138 of the Civil Process Code equating foreign official documents and Polish ones provides grounds for accepting foreign documents as evidence also for purposes of proceedings not regulated by that Code, for example for acts in law before a notary public.

If the equivalence of official documents issued in Poland and in other jurisdictions on authority of art 1138 of the Civil Process Code is consistently and logically applied in practice, there should be no need for additional verification of foreign official documents used in Poland – subject to two notable exceptions, namely documents concerning transfer of ownership title in real estate situated in Poland and a document whose authenticity has been denied by a party (in such cases, the document in question must be notarised by a Polish diplomatic or consular official accredited to the given country). In accordance with the clara non sunt interpretanda rule, it should be presumed that, if the Polish legislature has expressly instituted a verification duty for certain classes of document only, then no such duty arises with respect to all other document classes.

Accordingly, the legal norm set out in art 1138 of the Civil Process Code should be applied more widely – certainly not only to proceedings regulated by that Code. In particular, it ought to be referred to for purposes of acts in law conducted before notaries public – a party appearing before a notary public should be able to present official documents issued in a foreign jurisdiction without having to secure their additional verification or validation (unless the given transaction concerns real estate in Poland).

In other words, Polish courts, notaries public, etc ought to regard official documents issued by foreign authorities on a par with those discussed in art 244 of the Civil Process Code. Of course, in some cases it may be necessary to procure a sworn translation of a foreign document into Polish, but such a need can be readily ascertained on a common sense basis (and is rooted in art 256 of the Civil Process Code).

Day-to-day experience with use of foreign official documents in Poland informs us that such documents are typically endorsed with apostille clauses – a practice which, when confronted with the legal norms described above, must give rise to doubts. Art 1138 of the Civil Process Code establishes a blanket exclusion of the need for validating foreign official documents, rendering them equiponderous with Polish documents for evidentiary purposes. Accordingly, any additional verification / validation of foreign official documents which are to be used in Poland should be limited to the instances expressly specified by the legislature in art 1138 of the Civil Process Code as exceptions from the general rule that no such validation is necessary.

It might be added by way of clarification that the apostille clause (in the form of a seal affixed to a document or to a separate folio attached to the document) is a simplified form for document validation. Given the broad scope of the Hague Convention (a treaty signed by 106 countries, including all the European states, which eliminates the need to legalise foreign official documents), this is the most commonly used form of document validation. In the specific case of Poland, the Hague Convention entered into force on 14 August 2005.

One would guess that the widespread practice of securing apostille clauses for any and all foreign official documents adduced for purposes of acts in law in Poland is informed by caution on the part of the principals (and, even more so, of their counsel), by established custom, and by a time-honoured culture of “the more seals, the better”. As far as apostille clauses go, this makes for a certain irony, in that the apostille does not actually confirm observance of the requisite form or, in the case of notarial deeds, authenticity of the statement or the mandate of the entity making it.

Unfortunately, members of the general public seeking accurate, thorough information – on the internet or, indeed, elsewhere – as to when an apostille clause may be required for a foreign document which they wish to use in Poland face a hard time. No such information is available on the website of the Polish Ministry of Foreign Affairs, and a working survey of information published by selected Polish diplomatic stations around Europe gives grounds for concern. Where such information is made available by Polish embassies or consulates at all, it is usually suggested, at least indirectly, that an apostille clause must always be obtained for an official document obtained in the given country with a view to its use in Poland. In some cases, existence of such a requirement is alleged outright. The website of the Polish embassy in Rome, for instance, states that “official documents issued in Italy presented to the Polish authorities ought to be prepared for foreign use, i.e. endorsed with an apostille by the competent Italian authorities”. As explained above, there is nothing in the applicable laws to justify such a position, and dissemination of information to this effect only adds to the confusion among the public and among Polish diplomats alike.

The practice followed among Polish notaries with respect to official documents issued in foreign jurisdictions is also far from uniform. We have posed questions concerning the formal requirements or documents to be submitted by two corporate entities, from France and from Italy, for purposes of incorporating a limited liability company in Poland to notaries from Warsaw, Gdańsk, Krakow, Wrocław, Rzeszów, and Poznań. In four cases, the responding staff members indicated the necessity of securing apostille clauses for the powers of attorney of the person representing the founder companies before the notary as well as for the extracts from the Italian and French commercial registers. One respondent asked for an apostille clause for the powers of attorney only, and one stated that, in the hypothetical scenario outlined above, no apostille clauses will be needed at all.

It should also be borne in mind that the third sentence of art 1138 of the Civil Process Code has undergone amendment in 2009. Until then, validation was required for a foreign document arousing doubts as to its authenticity; following the amendment, validation is required for a document whose authenticity has been denied by the party concerned. This is a manifest difference, but then again it may have gone unnoticed in practice.

To summarise, the rampant practice of obtaining – and requiring – apostille clauses for any and all foreign official documents used in Poland is ripe for revision in that it lacks due basis in the applicable laws and perverts application of art 1138 of the Civil Process Code.