1 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 18 August 2004
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Previous Committee Report | HC 42-xxix (2003-04), para 5 (21 July 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 | For debate in European Standing Committee B
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Background
1.1 In December 2003, the European Council invited the Commission
to make a proposal for the introduction of biometric identifiers
in passports.
1.2 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).
1.3 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."
1.4 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.
1.5 The draft Regulation proposed by the Commission
has two main purposes: first, to make EU citizens' passports more
secure; and, second, to establish a reliable link between a passport
and its genuine holder by incorporating biometric identifiers.
The main provisions of the draft Regulation are:
- Passports issued by Member
States must comply with minimum security standards on, for example,
the type of paper to be used, printing and issuing techniques,
and protection against copying.
- The passport must include a facial image and,
if a Member State wishes, it may include fingerprints.
- The Regulation is to apply to ordinary and official
passports, short-term passports and travel documents issued in
place of passports.
1.6 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 proposed Regulation.
1.7 In March, 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. We asked the reasons for the Government's doubts and held
the document under scrutiny pending the Minister's answer.[1]
1.8 In July, the Minister told us that the Government
had now decided that Article 62(2)(a) is an appropriate legal
base for the draft Regulation. It had also decided to opt into
the measure. The Minister explained 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 procedures.
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."
1.9 When we considered the document on 21 July, it
seemed 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.[2]
Moreover, in our view, if the aim were to ensure compatibility
of equipment to check passports, a specific measure for that purpose
would appear more appropriate. We were 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 asked the Minister
to tell us if she considered that there were further arguments
which should be taken into account. Pending her reply, we retained
the document under scrutiny.
The Minister's letter
1.10 In her letter of 18 August, the Minister says:
"The justification for using Article 62(2)(a)
for this proposal is the need to have common verification equipment
at external crossing points on the borders of Member states for
use as part of the procedure for carrying out checks on EU citizens
crossing the borders. The equipment has to be capable of reading
the electronically stored data on the passports of all Member
States. This in turn requires harmonisation of the machine readable
data stored on EU passports and the technical conditions and specifications
relating to such storage. Without such harmonisation it would
not be possible to standardise the verification equipment to be
used to carry out checks on EU citizens at external border crossing
points. So harmonising the security features and technical specifications
for EU passports is part of the process of establishing the procedure
for carrying out checks on EU citizens at the external border,
a matter which falls within Article 62(2)(a).
"We accept that this is not a straightforward
use of Article 62(2)(a), hence our initial concern over the use
of the Article. For the reasons set out above, however, we consider
the proposal is sufficiently related to the standards and procedures
to be followed in carrying out checks on EU citizens at external
border crossing points to justify it having been brought forward
under Article 62(2)(a)."
Conclusion
1.11 We are grateful to the Minister for her further
explanation. It seems to us that the precise words of Article
62(2)(a) are crucial: they provide for measures to establish standards
and procedures to be followed by Member States "in carrying
out checks". So any proposed measure must relate to the carrying
out of the checks themselves and only to that process. In our
view, the specification of the contents of passports is distinct
from the checking process. We are not persuaded, therefore, that
Article 62(2)(a) is the appropriate legal base for the proposed
Regulation.
1.12 It is, in our view, vital that the Commission
and Council act lawfully in proposing and approving legislation.
Because we retain strong doubts about the appropriateness of
Article 62(2)(a) as the legal base for this proposal, we recommend
the document for debate in European Standing Committee B.
1 (25390) 6406/1/04; see HC 42-xiv (2003-04), para
6 (24 March 2004). Back
2
See headnote. Back
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