Nous avertissons les internautes de ne jamais donner suite à toute sollicitation faite sous le sceau de l’étude, notamment impliquant des prêts ou emprunts de somme d’argent qui constituent des escroqueries.

Cliquez-ici pour visualiser deux exemples de faux contrats de prêt qui comportent de nombreuses anomalies.

Imprimer
Imprimer

PRACTICAL USE OF LEGALISATION AND APOSTILLE

A legal document drafted in one State cannot be effective in another State unless the legalisation formality is completed. It shall be noted that regarding court decisions, an enforcement formality will in principle be necessary for a judgement rendered abroad to be enforceable in another country.

We will successively examine the general regime of legalisation, and then its simplified version (Apostille) (I), exemptions (II) and the effects of the absence of legalisation (III).

I) LEGAL REGIMES OF LEGALISATION

A) General regime

1) Definition

Articles 1 and 2 of French Decree no. 2007-1205 of 10 August 2007 define legalisation as "the formality for attesting the veracity of the signature, the capacity in which the signatory of the private or public document[1] has acted and, where applicable, the identity of the seal or stamp it bears". It does not, under any circumstances, attest to the exactness of the document's content. The scope of legalisation is therefore broader than the mere authentication of signature, founded on custom and for which the certifying authority nonetheless incurs liability. When a notary is required to authenticate a signature, he must pay careful attention to the accomplishment of the authentication and may refuse to do it if he considers the minimum security conditions not to be met.

 

The foundations of legalisation lie in the royal ordinance of Marine of August 1681 which was partially repealed by the ordinance of 21 April 2006. However, this repeal did not challenge the requirement of legalisation which remains necessary in the international system. By two rulings (08-13541 and 08-10962) of 4 June 2009, the first civil division of the French Cour de cassation established the requirement of legalisation of public documents to be produced abroad, "despite the repeal of the royal ordinance of Marine of August 1681, the legalisation of acts of civil status issued by a foreign authority and intended to be produced in France remains, according to international custom and unless otherwise stipulated by an (international) convention, compulsory".

2) Procedure

Legalisation is materialised by the affixing of a stamp[2] on documents executed in France and to be produced abroad (a) or executed abroad to be produced in France (b).

Sample stamp annexed to the decree of 3 September 2007:

 

a) French documents to be produced abroad

 

It shall be recalled that legalisation formalities are limited in this case to public documents[3] (i) and we will then examine the formalities specific to documents written in a foreign language (ii).

 

(i) Public documents are legalised by the legalisation service of the Ministry of Foreign Affairs[4] in the manner stipulated in Article 4, II, 1° of the aforementioned decree, the latter acting on authority from the Minister of Foreign Affairs pursuant to Article 9 of the same decree.

 

To be admitted for legalisation, the public document presented for legalisation must bear the original, handwritten signature, the name and title of the signatory and, where applicable, the stamp of the administrative authority[5].

 

(ii) For the legalisation formality to be completed, the document to be legalised must be written in French or, otherwise, produced with a French translation made by an official legal translator registered with the French judicial authorities or in the country in which the document is to be produced. The translation is designed to enable the certifying authority to verify the formal content of the document to be legalised[6].

 

In the case of a private document written in a foreign language, it is therefore possible to have the author's signature certified by a notary who will affix a statement of signature authentication in French, together with his/her own signature and seal[i]. It is therefore this statement of signature authentication that will be legalised by the competent authority[7]. Notwithstanding the formal aspect, the notary must satisfy himself that the content of the document presented for signature authentication has been fully understood, to check the scope of the authentication. Depending on the country in which the document is to be produced, the notary must check that a simple signature authentication is indeed required and not a certification of the author's legal capacity to sign the document, which needs an affidavit of foreign law. Accordingly, if the notary does not understand the language of the document, s/he must ask for a French translation, to be able to perform this verification.

 

Legalisation generally costs €2 per document[8]. However, records of civil status are subject to a duty of €1 per document. In addition, certain foreign nationals are covered by a rate referred to as "reciprocal" which depends on the nationality of the person drafting the document[9].

 

Once this first legalisation formality completed by the legalisation service of the French Ministry of Foreign Affairs, a second legalisation will be necessary by the embassy or the consulate in France of the foreign State in which the document is to have effect, for the latter to attest to its authenticity.


E.g.: A private power of attorney to be produced in China which is signed by a Qatari national with signature certification by a French Notary must be legalised by the legalisation service of the French Ministry of Foreign Affairs. Once this first legalisation completed, the document must be legalised a second time by the embassy or consulate of China in France, in order to have effect on Chinese territory.

 

b) Foreign documents to be produced in France

 

Applicable formalities must be distinguished between (i) public documents and (ii) private documents (ii). Reference shall be made to the developments above for the formalities specific to documents written in a foreign language.

 

(i) Public documents

 

Public documents[10] legalised by the authorities or officers of the State in which the document was issued are subject to a second legalisation requirement by the French ambassador or head of consular post in the country in which the document was made, as stipulated in Article 4, I, 1° of the decree of 10 August 2007, who may delegate their authority in the manner provided for by Article 8 of the same decree.


E.g.: a public document legalised by the competent authority in the United Arab Emirates, to be produced in France, may be legalised by the French ambassador or head of consular post in the United Arab Emirates (Art. 4, I, 2° of the aforementioned decree).

 

(ii) Private documents

 

A private document may only be legalised in the presence of the person signing the document[12]:

 

- a natural person signatory[13] of a private document must prove his/her signature by means of a document issued by a public authority containing his/her full name, date and place of birth, photograph and signature, as well as the identification of the authority that issued the document, and the place and date of issue;

 

- a legal entity representative signatory[14] of a private document must also prove, in addition to his/her identity and signature in the manner described above, his/her capacity by an extract from the trade and companies register (register du commerce et des sociétés) in the case of a company, by a receipt of a declaration of creation/modification issued by the prefect for a non-profit organisation or by a certificate of existence for a foundation.

 

Private documents may only be legalised by ambassadors and heads of consular post in the locality of the signatory's usual residence or temporary address, in the manner stipulated in Article 5 of the aforementioned decree of 10 August.

B) Simplified regime: apostille

1) Definition

The apostille is a simplified formality of legalising public documents[15] that are to be produced in another State. The system was introduced by the Hague Convention of 5 October 1961. It replaces the legalisation of public documents when the two States are signatories to this convention. It has the same effects as legalisation.

 

In the light of the above, we can see that unlike legalisation, which may apply to both public and private documents, the apostille may only apply to public documents in a more limited scope than those subject to legalisation.

 

Unlike legalisation, it is not necessary to proceed with a double formality with the French authorities on the one hand and the authorities of the country in which the document is to have effect, on the other. Pursuant to Article 3 of the 1961 Apostille Convention, the only formality required to attest to the veracity of the signature, the capacity in which the signatory of the document acted and, where applicable, the identity of the seal or stamp affixed on the document, is the affixing of the apostille by the competent authority in the State in which the document was issued.

 

The 1961 Hague Convention is currently in force in 107 States.

2) Procedure

The apostille is issued by the competent authority in the State in which the document is executed. Each State appoints the competent authority. In France, the general prosecutor to the Court of Appeal in the locality of the authority which gave the document its public nature has authority to issue the apostille [16]. The apostille takes the form of a stamp on the document to be apostilled, conforming to the model annexed to the Hague Apostille Convention, which formally attests to the authenticity of the seal and signature of the authority that gave the document its public nature. These verifications are made based on registers of signatures and seals kept by the public prosecutor's offices. An apostille is issued at no expense, at the request of the bearer of the document or a representative of the certifying authority [17].

 

Sample apostille annexed to the Hague Convention of 5 October 1961

 

On 1 March 2010, the Permanent Bureau of the Hague Conference introduced an electronic apostille programme (e-Apostilles) and an electronic apostille register programme (e-Register). At present, only a few signatory countries have implemented these programmes (Spain, USA, Colombia, Belgium, New Zealand, etc.). 

 

In the light of the above, we can see that unlike legalisation, which may apply to public documents and to private documents issued abroad by a non-French resident, the apostille can only apply to public documents emanating from a French authority.

 

However, there are certain exceptions to legalisation and apostille certification.

II) EXEMPTIONS

A) Exemption from legalisation

Exemptions from legalisation stem both from bilateral treaties and the Brussels Convention of 25 May 1987 abolishing the legalisation of public documents[18] in the Member States of the European Communities. Other conventions make provision for exemption from legalisation, but they are of little interest in notarial affairs.

B) Non-necessity of the apostille in cases of exemption from legalisation

Article 3 paragraph 2 of the Hague Convention of 5 October 1961 stipulates that the apostille may not be required "when either the laws, regulations, or practice in force in the State where the document is produced or an agreement between two or more Contracting States have abolished or simplified it, or exempt the document itself from legalisation".

 

A handbook to the formalities to be accomplished for documents issued by a French authority and intended to be produced abroad is regularly updated by the Ministry of Foreign Affairs and indicates, by recipient country and by document type, whether they are subject to legalisation, apostille or exempt from formalities[19].
We will now examine the consequences of the absence of legalisation/apostille where it is required.      

III) CONSEQUENCES OF THE ABSENCE OF LEGALISATION

As legalisation formalities do not certify the content of the public document or the private document bearing an official certificate from a competent authority, the absence thereof has no affect on the validity or authenticity of the document.


The first civil division of the French Cour de cassation, in a ruling no. 70-13577 of 9 November 1971, confirmed that a public document that has not been legalised is unenforceable against France. It shall be added that the absence of legalisation, as part of a legal dispute, enables the party against whom the application of the document is sought, to cause the application of the non-legalised document to be suspended.


The absence of legalisation or apostille will result in a document being dismissed by the land registration service[20].

 

[1]  The public documents referred to by Article 1 of the aforementioned decree of 10 August 2007, are those referred to by Article 3 of the same decree:- official copies of decisions of judicial or administrative courts, documents issued by those courts and by their public prosecutors;
- documents issued by court clerks;
- documents issued by process servers;
- official copies of acts of civil status issued by registrars;
- documents issued by administrative authorities;
- notarial acts;
- official certificates such as official certificates recording the registration of a document or the fact that it was in existence on a certain date, and authentications of signatures, affixed on private documents on the understanding that the legalisation of a private document must be done in the presence of the signatory;
- documents issued by diplomatic or consular officers.


[2] Article 2 paragraph 2 of the aforementioned decree of 10 August 2007 and Article 1 of the decree of 3 September 2007
[3] Cf. note 1
[4] Bureau des légalisations:PARIS 75007 bd des Invalides, no. 57 - Mr Duroc - Tel.: +33 (0)1 53 69 38 28 - +33 (0)1 53 69 38 29 (from 2 to 4 pm)
Email: bureau.legalisation@diplomatie.gouv.fr
[5] www.diplomatie.gouv.fr > services aux citoyens > légalisation > Conditions de recevabilité des actes publics par le bureau des légalisations
[6] Article 7 of the decree of 10 August 2007
[7] Regarding the apostille, refer to the French Ministry of Justice circular of 12 December 2005
[8] 2nd part of decree no. 81-778 of 13 August 1981
[9] List of foreign nationals covered by the "reciprocal" rate: http://www.diplomatie.gouv.fr/fr/IMG/pdf/tarifsdelareciprocite_cle42182d.pdf
[10] Cf. note 1
[11] Bureau des légalisations: PARIS 75007 bd des Invalides, n° 57 - Mr Duroc - Tel.: +33 (0)1 53 69 38 28 - +33 (0)1 53 69 38 29 (from 2 to 4 pm)
Email: bureau.legalisation@diplomatie.gouv.fr
[12] Article 6 of the decree of 10 August 2007
[13] Article 2 of the order of 3 September 2007
[14] Article 3 of the order of 3 September 2007 aforementioned in the previous note
[15] The public documents are those listed in note 1, except for documents issued by diplomatic or consular officers, and administrative documents relating to a commercial or customs operation according to Article 1 of the Hague Convention of 5 October 1961. 
[16] The public prosecutor's office of Rennes has authority to apostille the criminal records held in Nantes
[17] Cf. French Circular 2005-19D3/12-12-2005 § II.2.2) c.
[18] Here, public document means the documents referred to in Article 1 of decree no. 92-383 of 1 April 1992 implementing the Brussels Convention of 25 May 1987, i.e.:
- documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of the court or a process server;
- administrative documents;
- notarial acts;
- official certificates such as official certificates recording the registration of a document or the fact that it was in existence on a certain date, and authentications of signatures, affixed on private documents.
[19] The summary table of the current state of treaty law on legalisation can be viewed at the following link: http://www.diplomatie.gouv.fr/fr/services-aux-citoyens/legalisation-et-notariat/legalisation-et-certification-de-signatures/article/la-legalisation-de-documents
[20] Art. 4 of decree no. 55-22 of 4 January 1955 reforming land registration, subject to bilateral conventions containing exemption from legalisation; Bull. assoc. mutuelle des Conservateurs 1966, Art. 645.

[i] Authentication statement: "I the undersigned, Bruno Bedaride, Notary in Paris (75001), place Vendôme n°7, certify that Mr * has signed this document before me, on XXXXX and I certify the authenticity of his signature having regard to the passport issued on XXXX under number XXXX". (Check the expiry date of the passport)

See also our product information sheet on the powers of attorney issued in France for use abroad.

Pratical use of legalisation and apostille