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Seeing red

The Public Documents Regulation came into full effect on 16 February 2019 (Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012).

The aim of the regulation is to reduce red tape and costs for EU citizens when they present certain types of document to the authorities of an EU member state. The genesis of the proposal lies in the 2008 Medina Ortega Report.

Scope

The scope, as set out in the initial report, was considerably reduced and does not now extend to commercial certificates.

As finalised, it applies to certificates of birth, death, marriage, civil or registered partnership, divorce and dissolution, adoption, residence/domicile, nationality, and criminal record checks from member states.

It does not apply to such documents from third countries.

Certificates

Company and partnership certificates are not included. Member states are not required to issue documents listed that do not form part of their national law. For example, those EU member states that do not have civil or registered partnerships are not required to produce certificates in relation to them.

For relevant documents, legalisation or apostilles can no longer be required.

A translation can also not be required, provided that a multilingual standard form (MSF), as set out in the annexes to the regulation, is also provided. The regulation requires member states to issue such a multilingual form on request.

Translations

Under the regulation, while the multilingual forms will not have any individual legal effect, when attached to a civil status document they will act as a translation aid and must generally be accepted by the EU member state public authority without any further translation required.

The EU legislation states that MSF translations are to be made available in all the official languages of the institutions of the EU.

In Ireland, the General Register Office (GRO) is responsible for issuing these certificates and MSFs. Under the regulation, when a citizen applies for a document through the relevant civil authority (for which an MSF is available), the option to request an MSF to be attached is to be available.

Authenticity

Article 14 of the regulation provides a safeguard, such that if a member state has reasonable doubt about the authenticity of a civil status document, it can submit a request for information through the EU’s Internal Market Information System to the relevant authority in another member state.

As and from 16 February 2019, apostilles are no longer required by EU member states on these various certificates.

The regulation states that all fees for obtaining an MSF will be set either at the production cost or at the cost of the document to which it is attached, whichever option has the lower cost. Ireland currently has opted not to levy any additional charge, and currently only charges for the underlying document appended thereto.

Implications here:

The regulation has implications for solicitors here:

• Family law practitioners – the courts should no longer require translations of the various certificates listed under the regulation where they have an MSF applied thereto. There should also be no requirement to have the underlying document legalised (for example, by way of an affixation of an apostille certificate or other consular or diplomatic legalisation where appropriate).
• Immigration practitioners – practitioners will be aware of the previous practice by the Irish National Immigration Service to require certified translations and legalised certificates of certificates that are now issued under the regulation with the benefit of the MSF. This would have arisen previously specifically in relation to spousal/dependant applications in relation to Directive 2004/38/EC (Free Movement of Persons Directive); but also in relation to naturalisation applications where there is a requirement to provide certain certificates.

National law

It is important for practitioners to note that the regulation deals with the authenticity of public documents, but not with the recognition of their legal effects.

The recognition of the legal effects of a public document is still governed by the national law of the EU country where the citizen presents the document.

However, it is of note that, in applying their national law, member states must respect EU law, including the case law of the Court of Justice on the free movement of citizens within the European Union.