Our law firm in Marbella helps clients of Belgian nationality resolve any legal issues they may have in Spain. Very often, we ask for Powers of Attorney to be able to carry out certain legal procedures in Spain. It is required that Powers of Attorney be granted to you before a notary in Belgium and be duly legalised with the Apostille of The Hague.
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Well, for some time now, the Powers of Attorney that our Belgian clients send us come with an electronic apostille attached to a document also received electronically (usually by email). On occasion, this has caused us certain setbacks because the apostille is not recognised by the competent Spanish authority where the document is to be presented.
The Apostille of the Convention of Hague is a stamp that is added to authorised public documents within the contracting states of the Hague Convention of 5 October 1961.
This apostille validates the document signed by a public authority in one of the contracting states so that it can have legal effects in the other state. Both Spain and Belgium are part of this Hague Convention, so both countries must accept the apostille in public documents.
But what happens when a member state begins to use the electronic apostille and your clients send you by email a public document with the Apostille of The Hague, but issued electronically?
Until recently, Belgian clients advanced the document by email and the ‘original document apostille’ in paper format by mail or courier. In this way the paper document, signed by the notary, together with the seal of the apostille, arrived to our hands physically.
However, the Belgian public documents are currently being issued exclusively with electronic apostille, making it impossible to ‘stamp’ the document in paper format.
For example, let’s imagine that we need a Power of Attorney from a Belgian citizen to start a probate procedure in Spain. Generally, from our offices we grant this Power of Attorney so that the Belgian client can sign it before his notary in Belgium and obtain the Apostille of The Hague on it. This procedure has now changed. The Belgian notary receives our document, adapts it to the Belgian regulations (if necessary) and, once it is signed, sends it to be apostilled—but the entirely of this process is done electronically.
The Belgian legal system issues the apostille in electronic format, and the notary sends us the Power of Attorney, together with the electronic apostille, by email. Although the apostille is issued with its QR code and there is a website on which you can check the legality of the document (http://legalweb.diplomatie.be/), the system, at this first stage, suffers from a certain legal uncertainty: if there is no previous verification of the document, we could find that the apostille we receive electronically does not belong to the body of the document. In addition, the same text of the apostille tells us that it does not guarantee the authenticity of the document.
In such a situation, it is not clearly indicated that the document sent by the notary to be apostilled coincides with the electronic apostille finally issued.
When we face these circumstances in our office, in addition to reviewing the apostille on the Belgian website (http://legalweb.diplomatie.be/), we contact the Belgian notary and request that he forward in ‘paper format’ a duly signed copy of the document granted, to which he appends a note explaining that this document has been sent for the issuance of the Hague Apostille. In this way, we have a paper document without an apostille but one that is signed by the Belgian notary and an electronic document (coinciding with the physical document received) with an electronic apostille.
This question may seem trivial, but in practice, difficulties can arise if the Spanish authority (say a notary, registrar, or public administrator) determines that the Power of Attorney presented is not duly apostilled because they are unaware of the Belgian system of issuing apostilles.
Regarding this question or any others you may have, do not hesitate to contact our multilingual law firm in Marbella.