Select Committee on European Scrutiny Thirty-Second Report

5 Security features and biometrics in EU passports



COM(04) 116

Draft Council Regulation on standards for security features and biometrics in EU citizens' passports

Legal baseArticle 62(2)(a) EC; consultation; unanimity
DepartmentHome Office
Basis of considerationMinister's letter of 18 August 2004
Previous Committee ReportHC 42-xxx (2003-04), para 1 (9 September 2004)
To be discussed in Council25/26 October 2004
Committee's assessmentLegally and politically important
Committee's decisionFor debate in European Standing Committee B (decision reported on 9 September)


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 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.

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 proposed Regulation.

5.7 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.

5.8 In July, the Minister told us that the Government had now decided that Article 62(2)(a) was 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."

5.9 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. 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.

5.10 The Minister replied on 18 August. She told us that

"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)."

5.11 When we considered the Minister's letter on 8 September, we concluded 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 were not persuaded, therefore, that Article 62(2)(a) is the appropriate legal base for the proposed Regulation.

5.12 It is, in our view, vital that the Commission and Council act lawfully in proposing and approving legislation. Because we retained strong doubts about the appropriateness of Article 62(2)(a) as the legal base for this proposal, we recommended the document for debate in European Standing Committee B.

The Minister's letter of 8 October

5.13 On 8 October, the Minister wrote to tell us that it is likely that the draft Regulation will be adopted at the meeting of the Justice and Home Affairs Council on 25/26 October. The United Kingdom will probably be excluded from consideration of the item. The Minister explains that:

"this regulation [is] classified as a measure building on border provisions of the Schengen acquis in which the UK does not take part. On those grounds it explicitly excludes the UK from participating in its adoption and [provides that the UK]is not bound by it or subject to its application. We disagree with this interpretation of the Treaty and have notified the [Commission] of our intention to participate. However, we are certain that our notification will be deemed to be without legal effect and the UK will continue to be excluded from participating in the measure and its adoption. Because we are excluded we will not participate in its adoption at the Council and will not have a say in amendments to the proposal.

"I know that you remain if the view that Article 62(2)(a) is not an appropriate legal base for this proposal and note that you have recommended [it] for debate in Standing Committee B currently scheduled for 3 November. I welcome the opportunity to debate EU proposals with you and of course stand ready to discuss this particular measure. I am however concerned that there is now no real avenue for taking your concerns further within the EU Council and that unfortunately, on this occasion the Government will not be able to influence the outcome of the measure."


5.14 We are grateful to the Minister for telling us that it is likely that the United Kingdom will be ruled to be ineligible to take part in the discussion and adoption of the draft Regulation at the Council meeting later this month. This does not, of course, bear on the merits of our concern about the use of Article 62(2)(a) of the EC Treaty as the legal base for the measure. But, if the United Kingdom were to be excluded from the Council's discussion, the scrutiny reserve would be of no effect and the value of a debate in European Standing Committee B would be greatly diminished. It follows that, if the Minister informs us that she has received confirmation that the Government will be excluded from the Council's discussion and that the Regulation is not to apply to the United Kingdom, we shall clear the document from scrutiny and withdraw our recommendation for the debate by the Standing Committee. Pending such confirmation from the Minister, our recommendation stands.

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