2 Free movement of public documents
| (32374)
18122/10
COM(10) 747
| Commission Green Paper: Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records
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| Legal base | —
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| Document originated | 14 December 2010
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| Deposited in Parliament | 22 December 2010
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| Department | Home Office
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| Basis of consideration | EM of 3 February 2011
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| Previous Committee Report | None
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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 | To be debated in European Committee B together with the EU Citizenship Report 2010 and related documents, already recommended for debate (decision reported on 19 January 2011)
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Background
2.1 The Stockholm Programme, which establishes the EU's priorities
in the Area of Freedom, Security and Justice for the period 2010-14,
invited the Commission to consider submitting proposals to help
EU citizens overcome problems encountered with regard to civil
status documents when they move from one Member State to another.
The Commission's Action Plan to implement the Stockholm Programme
contemplates two legislative proposals in 2013. The first would
provide for the mutual recognition of certain civil status documents,
for example, those relating to birth, parentage, adoption or name.
The second would remove the need to legalise — or authenticate
— certain types of public documents issued by national authorities
for official purposes.
2.2 In its EU Citizenship Report 2010, the Commission
said:
"It is paramount for citizens who move to other
Member States to have recognition of civil status documents concerning
their 'life events' (eg birth, marriage, registered partnership,
divorce, adoption or name). Member States' registries and administrative
systems vary across the EU, causing problems for such cross-border
recognition. Moreover, these life events might not be recognised
by all Member States. Citizens are thus obliged to go through
cumbersome and costly formalities (translation, additional proof
of authenticity of documents) which might even make it impossible
for them to enjoy their rights."[6]
The Green Paper
2.3 The Green Paper initiates a consultation which
is intended to inform EU policy (including the content of future
legislative proposals) on:
- the free movement of public
documents — these encompass a wide range of official documents
relating to property (such as deeds), civil status (such as birth
or marriage), miscellaneous contracts and court rulings which
are often not accepted in another Member State without some form
of legalisation or authentication; and
- recognition of the effects of civil status records
— these cover 'life events' such as birth, parentage, adoption,
marriage, death, change of surname, divorce, registered partnership,
or a change of sex, but a civil status record issued in one Member
State may not be recognised, and may therefore not take effect,
in another Member State because it applies different rules.
2.4 The Commission seeks responses by 30 April 2011.
It says that action is needed because around 12 million people
study, work or live in a Member State of which they are not a
national and 13% of marriages recorded in the EU have a cross-border
dimension. Obstacles to the authentication of public documents
or recognition of the effects of civil status records make it
more difficult for EU citizens to exercise the rights attached
to EU citizenship, notably the right to freedom of movement.
Free movement of public documents
2.5 The Commission cites survey evidence which indicates
that 73% of EU citizens consider that measures should be taken
to facilitate the free movement of public documents between Member
States. It says that the function of such documents is to "establish
evidence of facts recorded by an authority. In most cases they
must be produced to obtain access to a right, to receive a social
service, or to comply with a tax obligation."[7]
If the documents are to be used outside the issuing Member State,
they have to be authenticated to prevent fraud. There are two
standard processes:
- legalisation
which requires the issuing authority and the consular authority
in the Member State where the document is to be used to certify
a document's authenticity; or
- the use of an apostille, which is a seal
of authenticity attached to the document by the issuing authority
only.
2.6 The Commission notes that the apostille,
while administratively simpler than legalisation, still entails
considerable time and cost. Moreover, EU citizens often have to
fulfil several different formalities when presenting public documents
in their Member State of residence which were issued in another
Member State, for example, translation, legalisation, production
of an apostille or a certified copy.
2.7 The Commission says that the legal framework
governing the legalisation or authentication of documents is fragmented
and, in cross-border situations, is only partially covered by
bilateral or multilateral conventions. For example, a number of
Conventions have been agreed within the framework of the International
Commission on Civil Status (CIEC), but only 12 EU Member States
(including the UK) are members. While the trend has been towards
greater simplification and less formality, the Commission suggests
that it is time to consider abolishing the apostille and
legalisation of all public documents issued in one Member State
and presented in another. It continues:
"In practice, the abolition of these formalities
would mean that citizens could present an original document issued
by a Member State's authorities, without having to take any additional
steps, as though they were in the same Member State.
"The Commission therefore proposes that thought
be given to abolishing all these obsolete formalities, and that
a modern, uniform European legislative framework be introduced
that takes account of the reality of cross-border situations."[8]
2.8 The Commission suggests that Member States should
increase administrative cooperation and the exchange of information
to resolve any doubts about the authenticity of a public document,
and also contemplates the creation of a "central registration
point … to record civil status events occurring in Member
States other than the citizen's Member State of origin."[9]
It also moots the possibility of establishing a single point
for registration of all "civil status events" (not just
those occurring in another Member State) which could be located
in an individual's place of birth or Member State of nationality
or residence.
2.9 The Commission says that, even if the need for
legalisation or provision of an apostille is removed, EU
citizens may still expend time and cost in obtaining a translation
of public documents. It suggests that a standard, multilingual
form could be made available for the most common public documents
so that they would not require translation. The Commission also
contemplates the introduction of an optional European civil status
certificate (for example, a European birth certificate) which
would exist alongside (and not replace) national civil status
records and which could be used in the issuing Member State as
well as in any other Member State. The format of the European
certificate, and the information contained in it, would need to
be standardised.
2.10 The Green Paper seeks responses to the following
questions:
- would abolition of administrative
formalities such as legalisation and the apostille solve
the problems encountered by EU citizens?
- should closer cooperation between
Member States' authorities be envisaged, in particular as regards
civil status records, and if so, in what electronic form?
- what do you think about the
registration of a person's civil status events in a single place,
in a single Member State? Which place would be the most appropriate:
place of birth, Member State of nationality or Member State of
residence?
- would it be useful to publish the list of national
authorities competent to deal with civil status matters or the
contact details of one information point in each Member State?
- what solutions do you recommend in order to avoid
or at least limit the need for translation?
- what kind of civil status certificates could
be the subject of a European civil status certificate? Which details
should be mentioned on such a certificate?
Mutual recognition of the effects of civil status
records
2.11 The Commission says that civil status records
give rise to specific problems because their effects may not be
recognised in another Member State. Not only do Member States
have different substantive rules on such matters as parental responsibility
or the registration of a name on a birth certificate; in cross-border
situations, they often also have different rules for determining
which law should apply. As a result, the Commission notes that
"a civil status situation created in one Member State is
not automatically recognised in another because the result of
the applicable law differs depending on the Member State in question".[10]
According to the Commission, "it should be possible to guarantee
the continuity and permanence of a civil status situation to all
European citizens exercising their right of freedom of movement."[11]
2.12 The Commission recognises that the EU "has
no competence to intervene in the substantive family law of Member
States"[12] and
so proposes three possible policy options.
(a) Assisting national authorities in the quest
for practical solutions
This option contemplates enhanced administrative
cooperation between competent national authorities, with the EU
providing non-binding "guidance" to encourage consistency.
(b) Automatic recognition
This option would require each Member State to accept
and recognise, on the basis of mutual trust, the effects of a
legal situation created in another Member State, even if the application
of the law of the first Member State would have resulted in a
different outcome. It would avoid any harmonisation of laws and
would not require any Member State to change its laws. However,
the Commission acknowledges that automatic recognition might not
be suitable for more complex civil status situations and that
there would also be a need for "compensatory measures to
prevent fraud and abuse and take due account of the public order
rules of the Member States."[13]
(c) Recognition based on harmonisation of conflict
of law rules
The third option envisages establishing a common
body of rules which would identify which law should apply to determine
civil status where there is a cross-border dimension. The rules
would be based on a "connecting factor" linking a particular
civil status event (such as birth or marriage) to a particular
Member State. One or more connecting factors might be identified
and the choice of connecting factor might differ, depending on
the situation. The rules would also allow EU citizens to choose
which law should apply, although the principle of freedom of choice
might require some qualification to ensure that it resulted in
the application of a law with which the individual concerned had
close links.
2.13 The Commission therefore seeks views on the
following questions:
- could national authorities
alone deal effectively with civil status issues arising in cross-border
EU situations? If so, should EU institutions nevertheless provide
some guidance to national authorities (possibly by means of an
EU recommendations) to ensure consistency of approach?
- should automatic recognition apply to some civil
status situations and, if so, which ones?
- should recognition be based on the harmonisation
of conflict of law rules, and to which civil status situations
should this solution apply?
- should EU citizens be free to choose the applicable
law, and in which situations?
- are there any other solutions that could apply,
in addition to automatic recognition and recognition based on
harmonisation of rules on the conflict of laws?
The Government's view
2.14 The Minister of State at the Home Office (Damian
Green) notes that civil registration is a devolved matter within
the UK, with administrations in England and Wales, in Scotland
and in Northern Ireland each having their own Registrars General,
General Register Office and jurisdiction for the law relating
to civil registration. He says that the Government will consult
with the Registrar General in each jurisdiction before submitting
its response to the Commission's Green Paper. He undertakes to
inform us of the Government's response.
Conclusion
2.15 We understand the Government's reticence
in commenting in detail on the issues raised in the Commission's
Green Paper before it has consulted the Registrars General in
each domestic jurisdiction. Nevertheless, we would have welcomed
some preliminary indication of the Government's views. The Green
Paper was foreshadowed in the EU Citizenship Report 2010 published
last October in which the Commission said that it would propose
EU laws in 2013 to facilitate the free circulation of civil status
documents. The Minister for Europe told us in his Explanatory
Memorandum on the Report that:
"any changes to civil registration documents,
or the way in which they can be used by citizens, will have far
reaching impacts across HMG and the private sector. Clear communication
regarding such changes will be needed to ensure that civil registration
documents continue to be used in an appropriate manner. The information
contained within certificates is used by citizens in transactions
with government, the private and third sectors to confirm that
an event has been registered. Any changes to the types of event
registered, the information captured or the form of the certificates
would require changes to legislation in England and Wales and
determination of the costs associated with changes to computer
systems, paper records and related processes."[14]
2.16 We think that the Minister for Europe's brief
summary of the possible implications of the proposals now set
out in this Green Paper illustrates their potential significance.
While we welcome the Minister's undertaking to provide us with
a copy of the Government's formal response to the consultation,
we recommend that the Green Paper should be debated in European
Committee B at the same time as the EU Citizenship Report 2010
and related documents.
6 See document 15936/10, HC 428-xiii (2010-11), chapter
1 (19 January 2011). Back
7
See page 5 of the Green Paper. Back
8
See page 8 of the Green Paper. Back
9
Page 8 of the Green Paper. Back
10
See page 12 of the Green Paper. Back
11
See page 11 of the Green Paper. Back
12
See page 12 of the Green Paper. Back
13
See page 14 of the Green Paper. Back
14
Explanatory Memorandum on the EU Citizenship Report 2010 submitted
by the Foreign and Commonwealth Office on 17 December 2010. See
HC 428-xiii (2010-11), chapter 1 (19 January 2011). Back
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