The referendum to be held on 23 June 2016 on whether the United Kingdom should remain in or leave the European Union is one of the hot topics this spring. For this blog post, we have asked our notaries and staff to reflect on how they think a potential exit from the European Union could affect the work notaries do in England and Wales.
THE NOTARIAL PROFESSION
The training and appointment of notaries public in England and Wales is regulated by domestic legislation and, therefore, there would be no expected change in the way notaries are appointed.
If there were to be any impact on how the profession functions or is regulated, this is likely to be of an indirect nature and probably something that would affect the professional services industry generally, rather than only notaries or legal professionals. For instance, it could be envisaged that the UK might implement certain changes in employment law, competition law or insurance law, which could potentially be relevant to a firm offering notarial services.
As the Directive 2005/36/EC on the recognition of professional qualifications would in theory cease to bind the UK, there might be some changes in the routes available to EU lawyers wishing to qualify as English notaries. Also, with the UK ceasing to be a member state for the purposes of the Directive, English notaries (and especially solicitor-notaries) could find their qualification no longer offers them an abridged procedure for their conversion to practise as a legal professional on the continent.
It is difficult to predict what the impact of an exit from the EU could be on the volume and nature of the documents that English notaries are requested to certify. The potential effects on the country’s economy as a whole, a shift on trade deals or a presumed relocation of businesses or individuals, could all have a certain impact, but these are uncertain and mostly unquantifiable factors at this stage. It is even difficult to guess whether any such impact would generate more or less work for notaries.
Despite the uncertainty surrounding the big picture, it is possible to think of certain specific changes that would come naturally as a result of the UK leaving the European Union. Let’s look at some examples that notaries would possibly come across as part of their typical work in a post-Brexit scenario:
European Company (Societas Europaea or SE):
This is a type of public company with origin in European legislation but which comes to life upon registration in one of the EU member states. Presumably, if the UK leaves the European Union – and unless some agreement is made to the contrary – it would no longer be possible to create this type of company in the UK. It is unclear what would happen to existing SEs registered in the UK.
It is an obvious consequence of leaving the EU that the UK would no longer be bound by European Regulations. There is, however, another side of the coin that could be more relevant to notarial work: in the eyes of the remaining European Union countries, the UK would come out of the definition of ‘member state’ that is used in many European Regulations, whether or not these are currently binding on the UK.
|An example of this is the Succession Regulation (‘Brussels IV’), which came into force August 2015. This is an example of a regulation that does not currently bind the UK (as it opted out) but where the application of the regulation in other countries can be different if the UK is or is not counted as a member state. Precisely because European legislation will continue to be applied in the remaining member states, there may be potential changes in the type of documents requested to be notarised or legalised by a British national/resident as a result of the UK dropping out of the list of EU member states.|
With the UK no longer being classified as an EU-country, British nationals would consequently also drop out of the list of ‘EU nationals’. While, technically, leaving the European Union does not necessarily mean the UK could not negotiate to remain in the Economic European Area (EEA), the accepted view seems to be that this would not make a lot of sense, given that the vote to leave is widely seen as a vote not to be bound by the European rules on the free movement of persons.
As a result, where a European country has separate administrative procedures for EU/EEA nationals and for non-European nationals, the latter would in theory start applying to UK citizens (unless some agreement to the contrary were negotiated).
|A specific example relevant to notaries would be the requirement for an individual’s passport to be notarised for the purpose of obtaining a Spanish NIE number through an attorney. The general rule in Spain is that European nationals only need to present notarised copies of the ID page of their passport and of the page confirming the passport is a European Union passport. By contrast, non-European nationals need to present a notarised copy of every single page of their passport. As the requirements stand, this would apply to British nationals from the moment the UK left the EU. This is an example of a change that may seem rather trivial but is the kind of thing that English notaries might need to be aware of to ensure in a post-Brexit scenario to ensure their documents do not start getting rejected in other European countries.|
LEGALISATION AND TRANSLATION
The legalisation of documents is an area that would probably not be particularly affected by a potential ‘Brexit’.
When it comes to apostilles issued under the Hague Convention of 5 October 1961, the requirement for this type of legalisation does not emanate from European legislation and the UK would not cease to be a party to the Convention by leaving the European Union. Therefore, apostille requirements are not likely to change.
Notwithstanding, there are a couple of EU countries that, in spite of being parties to the Convention, tend not to request an apostille when the documents have originated within the European Union – Sweden, for example, is one of the countries whose authorities seem to apply this policy for certain documents. Only in those cases, there might be a change of approach towards documents notarised in the UK in relation to apostilling requirements, which notaries would need to be aware of.
Consular legalisation of documents notarised in the UK is only required to documents being presented in certain non-EU countries. The consular/embassy legalisation requirements are governed by the domestic legislation of the destination country, or by bilateral treaties, and a potential ‘Brexit’ should not have any impact on these requirements.
The requirements for the translation of documents, or for the certification of translations, would also be unlikely to experience major changes as a consequence of the UK exiting the European Union. With Ireland and Malta remaining in the European Union, English would continue to be one of the official languages of the European Union (and, therefore, documents addressed to EU institutions would continue to be accepted in English). There could be a certain impact on the volumes of translation requests following a potential ‘Brexit’ – particularly if there were to be an increase in the relocation of business or individuals, or a shift in the countries with which the UK has trade deals – but these are again factors that are difficult to predict or quantify.