Senior International Department Assistant at RSM Poland
Establishment of a company in Poland requires the submission of multiple documents before the state authorities and institutions, e.g. the National Court Register. When a shareholder of the established company is a foreign-invested entity, the number of required documents increases by those drawn up abroad. Upon the preparation of relevant documents, foreign entrepreneurs are obliged to legalise them. Then what?
In this post, we will present the apostille – the most common method, alternative to legalisation, which allows the legal use of the document in another country. The use of an apostille is necessary to establish and to register a company in Poland.
APOSTILLE CLAUSE – BASIC INFORMATION
The use of an apostille is governed by the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents of 1961 (Journal of Laws 2005 No. 112 item 938). Poland has been a party to this Convention since 19 November 2004 (entry into force on 14 August 2005). The Convention was also ratified by the majority of EU Member States and such countries as the United States, Russia, Australia, India and Turkey. The seal itself is a certification in the form of a printout attached to documents. In each country an apostille may look a bit different, but it is always drawn up according to the model annexed to the Hague Convention. It may be obtained in the relevant state office or in court. In Poland, you have to go to the Ministry of Foreign Affairs to obtain an apostille.
Having obtained the seal of an apostille, you may use the document in another country that is a party to the Hague Convention and no additional legalisation of the document is required. However, it should be emphasised that an apostille may be obtained only on official documents, which, pursuant to Art. 1 of the Hague Convention, include those derived from a court authority or a court clerk, administrative documents, notarial deeds, official certificates which are placed on documents signed by persons in their private capacity. An Apostille is to ensure a representative of another country that the person who prepared the document was authorised to do that and has the right to draw up a document of this nature (e.g. confirmation that the notary public certifying the signature is a notary public under the laws of a given country).
APOSTILLE WHEN A COMPANY IS ESTABLISHED – A CHECKLIST
When a company is established by a foreign entity, there are two documents that usually are required to have an apostille:
- an extract from the register of a shareholder who is a company (in order to confirm the representation);
- a power of attorney to sign the company's articles of association (if the shareholder fails to appear in person and establishes the company by proxy).
Nevertheless, one should always make sure that the notary public conducting the act requires that the document should bear an apostille. There might be a case when a copy of the register does not need to have such a clause for the submission of a power of attorney in the form of a notarial deed. Therefore, the form of the power of attorney as well as the requirements of the notary public are of key importance.
The provision of specific foreign documents is necessary during the establishment of a company in Poland. Thus, if you want to start a business here, and you are a foreign investor:
- check if your country is a party to the Hague Convention,
- make sure with your adviser or directly with the notary public if your documents need to be legalised;
- find out what is the waiting time for obtaining an apostille, so that you can complete your business plan in the intended time.
With the knowledge about an apostille, you will most certainly go smoothly through the first stage of establishing a company in Poland, which is the incorporation of a company before a Polish notary public.
EU WITHOUT THE APOSTILLE SEAL?
The good news for investors is the tendency for the abolition of the apostille requirement in EU countries. It is expressed in the Regulation of the European Parliament and of the Council on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No. 1024/2012 of 6 July 2016 (OJ L 200 of 26.7.2016). Under this regulation, EU Member States are to abolish the obligation to obtain an apostille on documents confirming, e.g. the fact of birth, marriage or citizenship. For entrepreneurs it is crucial, however, that after two years from the application of the provisions of the aforementioned Regulation, the European Commission is to consider the possibility of extending them to other areas, including, e.g. the legal status and the representation of companies. This gives hope for the abolition of the apostille requirement for a significant number of documents required during the establishment and registration of a company, which will consequently make it significantly easier to start business in Poland, as well as in other EU countries.