1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union legislation?
[‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(i) relates to the signature and the content of the authentic instrument; and
(ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.]
If so, what are they? Are these only notarial acts or also acts of other authorities?
In Luxembourg, there are indeed authentic instruments with certain characteristics corresponding to elements of the European definition. This is the case, for example, for the notarised sale of real estate.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
Yes, under Luxembourg law, the authentic instrument carries a higher probative value.
The general principles governing authentic instruments are set out in the following provisions: according to the first article of the amended law of 9 December 1976 on the organisation of the profession of notary (hereinafter “organic law”), notaries are public officers authorised to record any instrument or contract which the parties are obliged, or may wish, to invest with the authenticity associated with instruments having public authority, and to authenticate their date, keep them safe and issue principal and additional copies. According to article 1317 of the Civil Code, the authentic instrument is that received by public officers with the right to act in the place where the act has been drafted, and with the required solemnity.
Regarding the probative value of the authentic instrument, article 37 of the organic law states that notarised instruments are valid according to the provisions of the Civil Code. It is article 1319 of the Civil Code that specifies that an authentic instrument is complete proof of the agreement it embodies between the contracting parties and their heirs or persons claiming through them. However, in the event of a criminal complaint of forgery, the execution of the instrument alleged to be forged is suspended when the indictment is laid. Furthermore, where an allegation of forgery is made in other proceedings, the court may, depending on the circumstances, make a provisional order suspending the execution of the instrument.
3. Do all authentic instruments have the same enhanced probative value?
4. Enhanced probative value concerns
- The date on which the authentic instrument has been signed
- The place in which the authentic instrument has been drafted
- The signature of the parties of the authentic instrument
- The parties’ declarations
5. Enhanced probative value can be contested:
Before which authority: Judge.
According to which procedure (state the applicable rules): According to the procedure for forgery claims, see articles 310 of the New Code of Civil Procedure.
Within what timeframe: The procedure mentioned above does not provide for a specific timeframe for contesting the authentic instrument.
1. In your legal system, which authorities or delegates of public authority can issue authentic instruments in accordance with Article 3 (1) (i) of Regulation 650/2012?
2. Can you indicate which are the most common authentic instruments in the case of a succession to the estates of deceased persons and which authorities issue them?
3. Probative value of certain specific acts, for example the “acte de notoriété” in France and Italy
1. What types of family law instruments exist?