The Creeping 'Authenticity' of Europe's Intrusive Civil Law System

http://www.notaries.org.uk/eu_authentic_acts/eu_authentic_acts.html

The Creeping ‘Authenticity’ of Europe’s Intrusive Civil Law System

English Professional Notaries Blog Embraces & Posts ITSSD Findings on Proposed French Authentic Acts Initiative

By Lawrence A. Kogan


NotaryTalk of England and Wales


February 19, 2009



SYNOPSIS:

France is moving to universalise through European regional harmonisation and extra-EU international commerce, the Napoleonic civil-law requirement of authentic acts/instruments, which potentially affects every conceivable private transaction within and beyond continental Europe. Apparently, Continental European governments are not very concerned about the impact on English common-law evidentiary rules. Such rules form the foundation of the common-law notion of due process on which private property owners depend for their day in court and for legal certainty and protection in common-law jurisdictions. This article identifies how France is working to export the main tenets of its civil-law system of preventive justice throughout global commerce to ‘change’ international law and the Anglo-American free-enterprise system.

To download this article [PDF format], please click HERE


http://www.notaries.org.uk/eu_authentic_acts/files/page52_4.pdf

This article is a longer and more detailed version of the recently released article entitled, Effort to Expand 'Authentic Acts' in Europe Imperils Economic Freedom, published on February 13, 2009 by the Washington Legal Foundation.

[See: France Proposes New EU Ministry of Silly Authentic Acts ala Monty Python that Jeopardizes Anglo-American Free Enterprise, ITSSD Journal on Economic Freedom, at: http://itssdeconomicfreedom.blogspot.com/2009/02/france-proposes-eu-law-ministry-of.html ].

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Even les notaires de France are now paying attention to our article.

[See: Actualite: The Creeping 'Authenticity' of Europe's Intrusive Civil Law System, Juris Prudentes, Droits Immobilier website at: http://www.jurisprudentes.org/bdd/faqs_article.php?id_article=9455 ; http://www.jurisprudentes.org/ ; http://www.jurisprudentes.org/avocat.htm].

It has come to our attention that, among many or most of the younger Notaries within the 'progressive' notarial community in France, there is a sense that the Continental Notarial establishment is losing the long-term battle of maintaining its unique identity against the 'Anglo-American' model. Perhaps this is why that establishment is desperately trying to fight a 'rear-guard' action based on anti-competitive practices. Whether or not such efforts fail depends on the response from the Anglosphere.

France Proposes New EU Ministry of Silly Authentic Acts ala Monty Python that Jeopardizes Anglo-American Free Enterprise

ITSSD: French 'Authentic Acts' Proposal Jeopardizes Anglo-American Free Enterprise

PRINCETON, N.J., Feb. 13 /PRNewswire-USNewswire/ -- In a short article published by the Washington Legal Foundation, international business, trade and regulatory lawyer Lawrence Kogan identifies how France is working to export two central tenets of Napoleonic civil law preventive justice throughout global commerce to "change" the rule of international law and Anglo-American free enterprise.

Arguably, says Kogan, "Were it not for its uncanny resemblance to Monty Python's timeless skit - The Ministry of Silly Walks, the Sarkozy Government's recent proposal to expand the privileged monopoly long enjoyed by les notaires de France and the intrusive and regulation-prone French legal system would likely have been considered more seriously and opposed by Anglo-American businesses and political leaders."

[http://www.youtube.com/watch?v=IqhlQfXUk7w - Ministry of Silly Walks]

Civil law notaries are agents of the State who possess the ministerial responsibility for issuing 'authentic acts'. Authentic acts are drawn up legal instruments that follow a prescribed form, recognize and provide conclusive evidence that specific private agreements have been reviewed and approved by empowered public officials, and render such agreements legally enforceable in a court of law.

From afar, the Sarkozy initiative appears earnest - a regional harmonization effort designed to promote greater economic 'efficiency', 'consumer protection' and 'legal certainty' within the 27-state Eurozone. A closer inspection, however, reveals that it does not guarantee true reciprocity. Also, it indirectly broadens the scope of governmental oversight and control over private business and personal transactions consummated within and beyond the region.

"Most troubling of all," emphasizes Kogan, "is how civil law preventive justice enables governmental use of authentic instruments, as it does Europe's Precautionary Principle, to undermine common law evidentiary rules and private property rights. Private property owners in contentious justice-based common law jurisdictions depend on substantive and procedural due process to ensure their day in court and the protection of their exclusive rights from government overreach. These fundamental rights will now be jeopardized to the extent civil law judges are required to attach greater probative value to authenticated instruments than to common law notarized private agreements, and are denied the discretion to consider other forms of documentary evidence to resolve legal disputes."

The Institute for Trade, Standards and Sustainable Development (ITSSD) is a non-partisan non-profit international legal research and educational organization that examines international law relating to trade, industry and positive sustainable development around the world. This article is accessible online at:

http://itssd.org/2-13-09Kogan_LegalBackgrounder%20-%20FINAL.pdf

and

http://www.wlf.org/upload/2-13-09Kogan_LegalBackgrounder.pdf .