Apostille – what it is and when it is required

This article will answer the following questions:

• What is an apostille?
• Who issues an apostille and how to get it?
• What are the exceptions to the rule and when is an apostille not required?

What is an apostille?

An apostille is a formality required to establish the authenticity of a particular public document by verifying the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which the document bears. 

A public document certified with an apostille has the same effect as a public document issued both in the country of origin and abroad. However, it only applies to the signatory States to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Journal of Laws of 2005, No. 112, item 938). If a document comes from one of the signatory States to the Convention, an apostille (usually) exempts the holder from the obligation to follow a more time-consuming and costly procedure of diplomatic or consular legalisation for documents.

In what cases is an apostille required for document legalisation?

An apostille is necessary if we would like to use a public document issued in one of the signatory States to the above-mentioned Hague Convention in another signatory State.

Within the meaning of the said Convention, the following are deemed to be public documents:

1. documents emanating from an authority or a judicial official, including those emanating from a public prosecutor, a clerk of a court or a process server,
2. administrative documents,
3. notarial acts,
4. official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date, and official and notarial authentications of signatures. 

In business practice, the use of documents certified with an apostille is common for instance for company formation in Poland by an international entity or obtaining a PESEL number by foreigners.

How to apply for and obtain an apostille?

In Poland, the authority which issues an apostille is the Ministry of Foreign Affairs. The matter can be handled in person, through an intermediary, or by correspondence. The Ministry of Foreign Affairs charges a fee in the form of a stamp duty for the application for establishing the authenticity of public documents to be used abroad. 

Remember that in certain cases, it is necessary to have the document certified by another authority. One such example is issuing an apostille for a notarial act. For this to be effective, the document must be certified beforehand by a competent regional court. If we are trying to obtain an apostille for an excerpt from the National Court Register, before applying to the Ministry of Foreign Affairs, we must ensure that the document bears the seal of the Central Information of the National Court Register and the signature of a National Court Register official. Only after obtaining such certifications beforehand, we may proceed with applying for an apostille for the particular Polish document. 

Thus, before applying to the Ministry of Foreign Affairs to have public documents authenticated with an apostille, we should always find out whether or not there are any additional actions required in a particular case. 

How to proceed with public documents from other countries? In order to obtain an apostille for a foreign document (to be used in Poland, e.g. for the purposes of company registration in the National Court Register), you have to follow the procedures of the country of origin of the document. Our experience shows that both the time and costs of obtaining an apostille may vary substantially from country to country. Nevertheless, as compared to other signatory States to the Hague Convention, the procedure in effect in Poland seems relatively formalised. 

When is authentication of documents by the Ministry of Foreign Affairs not necessary?

In accordance with the provisions of the Hague Convention, an apostille is not required when either the laws, regulations, or practice in force in a particular state or an agreement between particular states have abolished or simplified document legalisation, or exempt the document itself from legalisation. 

Poland has entered into agreements for the abolition or simplification of the legalisation procedures for foreign documents with Austria, Estonia and Italy, among other states. However, in practice, Polish authorities and courts happen to challenge foreign public documents without an apostille. This is true even when there is no legal requirement to obtain an apostille in a particular case.

Thus, each time before using a foreign document in Poland, the best way to proceed is to analyse the provisions of a relevant international agreement and check whether or not an exemption is applicable to the given case. This way, we can adequately prepare to explain the matter in the event of any inquiries of authorities or courts, which may help to resolve the issue with a positive outcome. In practice, it may turn out that it is more efficient to obtain an apostille "preventively", even if not required by law.

Recently, there have been suggestions for further simplifications and exemptions within the scope of document legalisation within the European Union, which seems to be fully justified taking into account current technological capacity and the strengthening of cooperation between the states. Following such deliberations, the European lawmaker introduced Regulation (EU) 2016/1191 of 16 February 2019 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the EU, which exempts from legalisation primarily those documents which are not related to business activity (e.g. documents certifying marriage, including capacity to marry, or birth). In the upcoming years, we may expect further changes in this respect, which will lead to the simplification of the document legalisation procedures, perhaps also with respect to documents used in business activity.

If you need support to determine whether or not your document should be legalised, and also how to proceed with legalisation, feel free to contact us. Our team of experienced experts will be happy to provide you with all necessary information.