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Legalisation of documents in insolvency proceedings pending in another Member State


13. June 2018 


Discrepancies between national bankruptcy laws of different countries encouraged the EU to unify its insolvency laws. Despite regulations at the Community level, there is still a number of practical legal problems connected with cross-border insolvency proceedings. One of them is the issue of documents necessaryto recognise insolvency proceedings pending outside Poland.

Automatic recognition of judgments

To solve the problematic issues related to insolvency of enterprises Council regulation (EC) (No 1346/2000) was issued in 2000, and in 2015 – Regulation (EU) 2015/848 of the European Parliament and of the Council. The regulations were supposed to govern mainly controversial issues connected with insolvent enterprises making cross-border transactions. One of the guiding principles for the EU legislators is the mutual trust between EU Member States. That principle underlies also efforts to implement a simplified model of recognising judgments issued by Member States' courts.

Pursuant to the abovementioned regulations (Article 16(1) and Article 19(1), respectively), any judgment opening insolvency proceedings handed down by a court of a Member State shall be recognised in all the other Member States from the time that it becomes effective in the State of the opening of proceedings. It needs to be emphasised that no additional formalities have to be completed for the judgment to be recognised. Consequently, no additional proceedings need to be opened in the territory of the recognising state. In such a case the insolvency proceedings will be conducted by a foreign court in accordance with the bankruptcy law of that foreign state. Pursuant to the lex fori concursus rule, all the effects of the insolvency proceedings, both procedural and substantive, are applicable also in the recognising state.

Enforcement of judgments

At this point the question arises of how to document the insolvency proceedings conducted in a given Member State. The abovementioned regulations imposed no obligations in this regard on the court in the country in which the judgement was issued. When it comes to the enforcement of judgments concerning the conduct and closing of insolvency proceedings, Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 which is currently in force makes a reference to Articles 39–44 and 47–57 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This means that for the purposes of enforcement of the judgment in another Member State, the applicant shall only provide a copy of the judgment which satisfies the conditions necessary to establish its authenticity. Consequently, there is no need for the declaration of enforceability of the judgment if it is already enforceable in another Member State. This should also mean that no legalisation of such judgments is required. This requirement also does not apply to documents referred to in the Regulation (EU) No 1215/2012. Although there is no express provision making a cross-reference to Article 61 of that regulation abolishing the obligation to legalise the documents, there are also no grounds for a different treatment of decisions issued in the course of insolvency proceedings, despite the fact that the regulation does not apply to those proceedings. In this context, Article 1138 of the Polish Code of Civil Procedure also deserves attention as it says that generally there is no need to legalise foreign official documents because they have the same evidentiary effect as Polish official documents.

Authenticity of the copy of the judgment

In view of the above, it will be thus sufficient to present an authenticated official copy of the judgment. It needs to be emphasised that the authenticity as such is assessed in accordance with the law of the country from which the judgment originates. Considering Polish laws in this regard, it may be concluded that a copy of the judgment stamped and signed by the authenticating person will suffice. The document does not require an apostille either. The Supreme Court confirmed that in its judgment of 26/01/2018 (file no. II CSK 174/17).


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Karolina Sieraczek

Attorney at law (Poland)

Associate Partner

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