On 18 December the European Parliament adopted Manuel Medina Ortega’s own initiative report containing recommendations to the Commission on the European Authentic Act. The European Parliament considers that “there is an urgent need to promote the recognition and enforcement of authentic acts (…).”
The European Parliament has recommended that the Commission legislate to introduce a common system for the mutual recognition and enforcement of the authentic acts. The MEPs have therefore called for the abolition of procedures for checking the accuracy of authentic acts in cross-border matters.
According to the European Parliament the “recognition of an authentic act for the purpose of its use in the requested Member State can only be refused in the case of serious and substantiated doubts as to its authenticity, or if recognition is contrary to public policy in the Member State requested.”
The European Parliament has stressed that the legislative proposal should apply to all authentic acts in civil and commercial matters with the exception of matters related to immoveable property which must or may be subject to entry or mention in a public register. Moreover, according to the European Parliament, such Regulation should not apply “to matters relating to the law applicable to the subject-matter of the authentic act” and “to questions relating to the competence, organisation and structure of public authorities and officials, including the authentication procedure.”
It is clear that the European Parliament initiative favours the civil law notarial system. The European Parliament has therefore not taken into account the English Common Law. The MEPs recommendations disadvantage common law jurisdictions. The concept of an authentic act does not exist in common-law systems but deeds. The European Parliament resolution not only ignores the English deeds but also England’s different forms of notarial professions. In England and Wales there are solicitors who act as notaries public.
According to the European Parliament “(…) a suitable information campaign should be initiated by the Commission and every effort should be made to ensure that common-law legal professionals are aware of the work done by civil-law public officials and of the potential advantages for their clients – in terms of legal certainty, in particular – of using authentic acts in transactions which they are proposing to conclude in those countries where that instrument is used.”
It remains to be seen which action the Commission will take.
