Border skirmish

There is a case which has been referred to the Court of Justice of the European Union (CJEU) on a complex topic with which all solicitors deal from time to time: the authentication of signatures and documents in cross-border cases.

Many clients have to cope with its complications, too. I am a client in two cross-border cases at the moment - settling an estate, drawing up a will - and I have to provide authenticated copies of various items. Do I go to a notary for everything? (No.) Will the British Embassy certify my passport? (Yes.) Will a solicitor’s signature be valid in a country which knows only notaries? (Continental banks at least accept a solicitor’s signature as satisfying their need for authentication.)

It is the last question - of whether a lawyer’s signature satisfies the requirements of notarial authentication - which is raised by the case of Ms Piringer (C-342-15), just referred to the court of justice. Ms Piringer owns half of a property in Austria. She wanted to register in the land registry in Austria an intention to sell her interest. She took the official form to a Czech lawyer who certified that she had signed it before him. In the Czech Republic, that would have been valid for the purpose sought. However, Austrian law requires that such requests be authenticated either by a court or notary, and the Czech lawyer was neither.

Was his signature a valid authentication?

It went through the Austrian courts, and some of the difficulties natural to this area of law arose. If we forget that the two countries concerned here are EU members, there was an attempt to settle these questions in The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the Apostille Convention ) of 1961, drafted by the Hague Conference on Private International Law.

However, Austria and the former Czechoslovakia had signed a bilateral treaty on the topic, which prevails over The Hague Convention. Under the bilateral treaty, the Czech lawyer’s signature would not have been adequate.

So questions of EU law were raised. Austria and the Czech Republic are, of course, both EU member states, and EU law has among its guiding principles the ability to provide services cross-border, and the concept of mutual recognition. These principles are put into effect in the treaty, and in particular (for the facts here) in the Lawyers Services Directive (77/249/EC).

The directive allows lawyers to provide temporary services across borders, and the Czech lawyer in this case would fall within its provisions as providing a service into Austria. The usual interpretation is that lawyers can provide any service which is not excluded by the directive. Hardly anything is in fact excluded. There are a few carve-outs (for instance, representation in court is made subject to some conditions), but very few.

The Austrian government hopes that it is saved by the following carve-out from Article 1.1, which was doubtless inserted at the insistence of the UK government at the time to prevent continental ‘avocats ’ from undertaking probate and conveyancing: ‘Member states may reserve to prescribed categories of lawyers the preparation of formal documents for obtaining title to administer estates of deceased persons, and the drafting of formal documents creating or transferring interests in land.’

The Austrian court has asked as one of its questions to the CJEU whether this carve-out allows the Austrian government to reserve authentication in these circumstances to notaries. (If I may give my own answer in advance of the judgment, I think it must be ‘no’, since the term lawyer is defined in the directive, and notaries do not fall within the very clear definition, which actually lists the titles of lawyers covered.)

It has also asked whether the free-movement provisions of the treaty (Article 56) forbid it from enforcing its national notarial reservation.

This case is another in a long series of turf disputes between lawyers and notaries. Depending on its outcome, it may mean that whatever solicitors can certify and authenticate at home under English law must be accepted in another EU member state in a cross-border case, regardless of the reservations of this activity to notaries under local law.

Some may find this an interference with national control. Others may believe it to be an inevitable outcome of free movement of services and of mutual recognition, and a welcome simplification.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs