Various Documents considered by the Committee - European Scrutiny Committee Contents

2 Free movement of public documents



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

Legal base
Document originated14 December 2010
Deposited in Parliament22 December 2010
DepartmentHome Office
Basis of considerationEM of 3 February 2011
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionTo 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)


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.


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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