For a foreign deed to produce its effects in Italy, it must first be lodged with an Italian notary and legalised. However there are some exceptions to the legalisation process.
Any deed produced abroad and intended to take effect in Italy must be examined by an Italian notary who shall verify whether:
- the foreign deed is capable of directly producing its effects in Italy
- the foreign deed that does not produce its effects in Italy can come into line with Italian laws
- the foreign deed is inadequate to produce any effect whatsoever in Italy.
A foreign deed is defined as any legal deed drawn up abroad by public officials or private citizens resident in a third state, in a foreign or Italian language. In order for a foreign deed to produce its effects in Italy, it should be lodged with an Italian notary (or notarial archives).
Notarial Regulation no. 1326/1914 and Royal Decree-Law no. 1666/1937 provide that an Italian notary may accept the lodgment of deeds drawn up and legalised in a foreign country, as well as other types of documents drawn up abroad (certified private instruments, public deeds, etc.). However, the purpose of a mere lodgment is only that of making certain the existence of the document and to allow the issue of copies, within the territory in which it has been lodged, to whoever may request them. The effectiveness of a foreign deed within the Italian territory is subject to several elements to be necessarily verified by the Italian notary before it can be lodged.
Foreign deeds must be drawn up or certified by individuals (notary/public official) vested with the necessary powers abroad, in order for the deeds to be in the proper form to be made equal to an Italian deed. The signature certifying the deed (or its writing and subscription by a notary/public official) may be defined as the first fundamental requirement for a foreign deed to be lodged in Italy.
The validity of a foreign deed within the Italian territory: legalisation and Apostille
Legalisation (or Apostille) may be defined as the necessary instruments to certify the origin of a deed; in particular, the two abovementioned instruments attest that the signature of the foreign notary/public official indicated in the deed is true and that the individual issuing it is entitled to do so. This step is preliminary to the subsequent lodgment by the Italian notary, who shall be exclusively responsible for verifying that the deed is legal for the purpose of its effectiveness in Italy.
The legalisation of a foreign deed intended to produce its effects within the Italian territory is the responsibility of the Italian diplomatic or consular offices abroad. The legalisation process comprises two steps:
- The officer of the foreign authority legalises the signature of the individual drawing up or certifying the deed
- The Italian diplomatic or consular authority further legalises the signature of the official of the foreign authority mentioned previously.
The Hague Convention of 24 January 1965 establishes a more simplified means to effect legalisation, that being the affixing of a so-called Apostille.
This is nothing but a text formula affixed on a foreign deed by the officer of the foreign authority (of the state in which the deed has been drawn up) whose purpose is to legalise the signature put by the individual who has drawn up/certified the foreign deed.
The Apostille is affixed at the foot of the deed or annexed to it, and does not form an integral part of the deed to which it is affixed. Furthermore, the date of the Apostille does not result in any deferment of the effective date of the legal effects of the deed drawn up.Moreover, any legalisation affixed on a deed originated in a signatory state of the Hague Convention (and therefore subject to Apostille) is not invalidated in any case by the Convention as it is considered a more articulated process than the Apostille and therefore worthy of protection.
The international Conventions and the abolishment of legalisation
Certain countries are exempt from legalisation and Apostille, by virtue of Conventions stipulated with each other. The deeds drawn up in the adhering states, whether public deeds or certified private instruments, are not subject to legalisation and may freely circulate.
In particular the Conventions in question are:
- Convention of 7 June 1969 (ratified in Italy by Law no. 176 of 12 April 1973). Signatory states: Italy and Germany
- Convention of 30 June 1975 (ratified in Italy by Law no. 342 of 2 May 1977) Signatory states: Italy and Austria
- Brussels Convention of 25 May 1987 (ratified in Italy by Law no. 106 of 24 April 1990) States and ratifications: Italy (11 October 1990); Belgium (16 December 1996); Denmark (26 July 1989); France (12 December 1991); Ireland (8 December 1998); Latvia (31 October 2010).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.