5 Security features and biometrics in
EU passports
| (25390)
6406/1/04
COM(04) 116
| Draft Council Regulation on standards for security features and biometrics in EU citizens' passports
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| Legal base | Article 62(2)(a) EC; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 15 July 2004
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| Previous Committee Report | HC 42-xiv (2003-04), para 6 (24 March 2004)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
5.1 In December 2003, the European Council invited the Commission
to make a proposal for the introduction of biometric identifiers
in passports.
5.2 By 26 October 2004, countries which wish to continue
to obtain the benefit of a waiver of the requirement for a visa
to enter the United States must have a programme to issue their
nationals with machine-readable passports that are tamper-resistant
and incorporate biometric identifiers which comply with the biometric
identifier standards established by the International Civil Aviation
Organisation (ICAO).
5.3 Article 62(2)(a) of the Treaty establishing the
European Community (the EC Treaty) requires the Council to adopt:
"measures on the crossing of the external borders
of the Member States, which shall establish standards and procedures
to be followed by Member States in carrying out checks on persons
at such borders."
5.4 A Protocol to the EC Treaty provides that the
UK is not to take part in the adoption of, or be bound by, any
measure made under Title IV of the Treaty (visas, asylum, immigration
and other policies related to the free movement of persons) unless
the UK gives notice that it wishes to "opt into" the
measure. Article 62 is part of Title IV.
5.5 The draft Regulation has two main purposes: first,
to make EU citizens' passports more secure by establishing minimum
standards for security features; second, to establish a reliable
link between a passport and its genuine holder by incorporating
biometric identifiers. The Commission says that the objective
of the proposal is to combat the use of false travel documents.
5.6 Passports are checked mainly when the EU's external
borders are being crossed. In the Commission's view, Article
62(2)(a) of the EC Treaty is the appropriate base for the Regulation.
5.7 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) told us that it was the Government's
provisional view that Article 62(2)(a) was not an appropriate
legal base for the measure, but she did not say why. She also
told us that the Government had not yet decided whether to opt
into the Regulation.
5.8 When we considered the draft Regulation in March,
we asked the reasons for the Government's doubts about the proposed
legal base. We decided to hold the document under scrutiny pending
the Minister's answer and until the Government had decided whether
to opt into the Regulation.
The Minister's letter
5.9 The Minister tells us that the Government has
now decided that Article 62(2)(a) is an appropriate legal base
for the draft Regulation. It has also decided to opt into the
measure.
5.10 The Minister explains that:
"Article 62(2)(a) provides for measures establishing
standards and procedures to be followed by Member States in carrying
out checks on persons at external borders. Our initial concern
with the use of this Article for a measure setting out standards
for security features and biometrics in EU passports was that
it was not a measure providing for such standards and [measures].
Article 62(2)(a) is the legal base for measures requiring, for
example, that external borders may only be crossed at authorized
crossing points and during fixed hours and that border authorities
verify the travel documents of persons crossing such borders.
A measure prescribing the security features for EU passports
seemed very different from such paradigm Article 62(2)(a) measures.
"Having considered the matter in more detail,
however, we have decided that Article 62(2)(a) can be used for
this measure. This is on the basis that there is a need for external
border authorities to have verification equipment at the external
border crossing points that is capable of reading electronically
stored data in EU passports. This equipment needs to be able
to read the data in all EU passports and this requires compatibility
of the data stored and the technical specifications. On this
basis the measure proposed is of direct relevance to the exercise
of controls at the external border."
Conclusion
5.11 We are grateful for the Minister's explanation.
It is now clear to us why the Government had reservations about
the use of Article 62(2)(a) as the legal base. It seems to us
that the objectives of the draft Regulation are only indirectly
related to the establishment of standards and procedures for Member
States to follow in making checks at the borders. Moreover, if
the aim were to ensure compatibility of equipment to check passports,
a specific measure for that purpose would appear more appropriate.
We are not yet persuaded, therefore, that it would be proper
to use Article 62(2)(a) as the legal base for the proposed Regulation.
Accordingly, we should be grateful if the Minister would tell
us if she considers that there are further arguments, in addition
to those in her letter, which should be taken into account. Pending
her reply, we shall retain the document under scrutiny.
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