Notary in Italy
The effectiveness of Apostille and legalization of documents issued abroad
The deposit at a notary in Italy of public and private dees or agreements signed abroad
The notary in Italy is a public official, so that, all documents drafted and authenticated by him are public instruments with public faith and credit and have legal validity. A document authenticated by a notary in Italy is a legal proof by the courts, unless it will be considered as false.
The notary certifies that the document is coincident with the will of the parties and complies with the applicable laws. The notary also warrants the legality and authenticity of documents drafted or signed before him, he guarantees clients about the legal soundness of a contract or any other document being executed.
Although a notary In Italy is a public official, he is a self-employed professional, and he is legally responsible to provide impartial services.
About the professional preparation, the notary must have huge training in legal and tax items. In order to become notary, it is necessary to pass a national exam.
For corporate law, property law and inheritance law in Italy it is necessary notarization for those documents for which it is vital to warrant the legality, certify the identity of parties and conformity with parties’ intentions.
Notarization requirements are established by law, the notary also acts as withholding agent and collects taxes to be paid by parties for notarization services as set by law.
The notary in Italy belongs to the “civil law” tradition which is different from the “common law” tradition, where the notary is merely responsible for authenticating the signatures of persons appearing before him.
The notary in Italy is an independent subject which acts in order to protect the interests of the subscribing parties of the document to be notarized, he does not operate as a legal consultant.
Deposit at a notary in Italy of documents drawn up abroad
The foreign investor must deliver to the notary in Italy certain documents (public documents or authenticated private deeds or agreements), in original or in copy, which must be legalized or apostilled; therefore, the notary draws up the minutes of these documents and notes them in the repertoire.
If the document issued by the foreign authority is a copy, it must be an authentic or a compliant copy issued by the subject who, according to foreign law, keeps the original one and/or is authorized to issue the relative copies.
These documents, if drafted in a foreign language, must be translated by the notary if he knows the foreign language or by an expert chosen by the applicant for the service; the expert in Italy who makes the translation must be registered with the court or must be a person who certifies his/her translation with a competent officer (in Italy there is no specific legislation on translators, nor a specific register).
If the foreign deed (or agreement) deposited at a notary in Italy is an authenticated private deed (or agreement), the translation obligation concerns also the formula of the authentication affixed by the authorized foreign subject.
There are no penalties if the foreign document to be deposited at a notary in Italy is not translated into Italian.
The notary in Italy:
- verifies the formal and substantial correctness of the foreign document (public deed or agreement), in order to be able to receive it in deposit and make it usable in Italy, so, if the foreign document does not pass this check, it cannot be deposited at the notary;
- performs a formal verification, he checks compliance with the minimum rules imposed by the law and rules of the country of origin of the document;
- performs a substantive check concerning the compatibility of the foreign document with:
international public order (art. 16 law n. 218/1995 on private international law in Italy) and
with the necessary implementing rules (art. 17 law n. 218/1995) also called imperative, they are those rules of Italian law that must be applied despite that the contracting parties have chosen to govern their agreement by a foreign law; these Italian rules prevail over the law chosen by the parties since they protect objectives deemed of primary importance;
- verifies the law that regulates the contract, since, if the contract is governed in its substance by Italian law, the control of the notary extends to compliance with all the rules of the Italian legal system.
The legalization and the Apostille regulate the use in Italy by the foreign investor of documents - produced in his country - for the purpose of establishing companies or for the purchase of shares or purchase of companies in Italy, which documents must attest the identity of the investor (passport and in some cases the criminal record for the case in which the investor is a natural person; in the case in which the foreign investor is a legal person, a chamber certificate, articles of association and articles of association are also required).
The difference between legalization and Apostille consists in the fact that for the former it is also necessary to pass the document to the Italian consular authority abroad, while the Apostille skips this phase and the document produced abroad can be used directly in Italy and in all States party to the Hague Convention of 5 October 1961.
Characteristics of the Apostille
- it is a simplified form of legalization;
- consists in the affixing, at the bottom of the document, of a predefined formula, which allows the immediate transposition of the same document in a different state adhering to the Convention;
- must correspond exactly to the model filed in the annex to the Hague Convention of 5 October 1961 which provides for it;
- is in force between the countries that have acceded to the Hague Convention of 5 October 1961 and replaces legalization only among them;
- like legalization, the apostille is also essential for the foreign act to take effect in Italy;
- like legalization, the Apostille consists in attesting the legal status of the public official or officer who signed the deed, and the authenticity of his seal or stamp;
- does not concern the validity or efficacy of the act in the country of origin;
- must be inserted in a box with a progressive numbering of the lines of text;
- can be written in French or in the official language of the authority that issued it, without prejudice in any case to the title of "Apostille";
- given the formal structure and purpose of the Apostille, it is not necessary to translate the Apostille applied to a document originating from a foreign country;
- each country acceding to the Hague Convention indicates which authorities are responsible for issuing the apostille;
- as regards Italy:
notarial, judicial and civil status documents, the competence to release the Apostille belongs to the Public Prosecutor's Office at the Courts in which the deeds are formed;
for administrative deeds (for example those signed by the mayor, by officers of a municipality or other public bodies) the Prefecture of the place where the deed is issued is competent to issue the Apostille;
- the "Apostille" is not necessary when the country from which the foreign act originates has acceded to an international, bilateral or multilateral convention that excludes it.
The legalization consists in the official attestation - made by the competent Italian consular or diplomatic authority abroad - of the legal status of the foreign public official who signed the deed and the authenticity of his signature.
Article. 52 lett. f) of the consular law (Legislative Decree no. 71 of 3 February 2011) establishes that the Italian consular authority legalizes the documents issued by the local authorities of the foreign country, making use of every useful means of verification; these means of assessment are:
- internal legalization e
- external legalization.
1) "internal" legalization is made by the competent authority in the foreign state - according to its own legislation - which certifies the quality of the certified or authenticating officer (of one's own country) of the document to be used in Italy;
2) "external" legalization:
- is carried out by the Italian diplomatic or consular authority which verifies the qualification of the authority of the country of origin that has signed a certain document (deeds, certificates, copies, extracts) to be used in Italy;
- does not concern the validity or effectiveness of the act in the country from which it originates;
- does not involve any control of the content of the document;
- is a wording affixed in Italian on the foreign document.
As per Art. 33 D.P.R. n. 445/2000 relating to "Legalization of signatures of documents from and abroad" according to which:
- signatures on deeds and documents formed abroad by foreign authorities and to be used in Italy are legalized by Italian diplomatic or consular representations abroad;
- the signatures affixed to documents and acts by the competent bodies of Italian diplomatic or consular representations or by officials delegated by them are not subject to legalization;
- to the documents and acts formed abroad by foreign authorities and to be used in Italy, written in a foreign language, must be attached a translation in Italian certified in accordance with the foreign text by the competent diplomatic or consular representation, or by an official translator.
The lack of translation does not affect the validity of the deed, since it is sufficient that the translation into Italian is made when the foreign deed is deposited at the notary in Italy.
Brussels Convention of 25 May 1987 for the suppression of the legalization of acts in the member states of the European Community
Any form of legalization has been suppressed between the member states of the European Community (now called the European Union) contracting the Brussels Convention ratified and enforced by Italy with law no. 106/1990, it applies to public deeds and authenticated private deeds from these countries.
At present, this convention has not entered into force in all EU countries; to date it applies between the following states that have enforced it: Belgium, Denmark, Estonia, France, Ireland, Italy, Latvia.
The following are considered as public documents:
a) documents issued by an authority or by an official dependent on a state judicial authority including those issued by the public prosecutor, a registrar or a bailiff;
b) administrative documents;
c) notarial deeds;
d) official declarations, such as: certificates of registration, certificates for date validation and authentication of subscriptions, affixed to a private agreement or act.
The 1987 Brussels Convention also applies to acts drawn up by diplomatic or consular agents of a contracting state.