7 Free movement and public documents
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9037/13
+ ADDs 1-2
COM(13) 228
| Draft Regulation on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No. 1024/2012
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| Legal base | Articles 21(2) and 114(1) TFEU; co-decision; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 28 June 2013
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| Previous Committee Report | HC 83-v (2013-14), chapter 6 (12 June 2013)
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| Discussion 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 and previous scrutiny
7.1 The draft Regulation follows on from a 2010 Green Paper
which sought views on possible ways to facilitate the free movement
of official ("public") documents within the EU and on
the mutual recognition of the effects of certain civil status
documents (such as birth or marriage certificates). The Green
Paper described the existing legal framework governing the legalisation
or authentication of public documents as highly fragmented, creating
confusion and legal uncertainty for EU citizens and businesses
exercising free movement rights.[20]
7.2 The scope of the draft Regulation is far
narrower, and less ambitious, than the ideas mooted in the Green
Paper. It would exempt certain categories of public documents
— those relating to an individual's civil status, real estate,
status of a company, intellectual property rights, and absence
of a criminal record — from any requirement for legalisation,
meaning that these documents would be automatically accepted as
authentic in another Member State without further formalities.
The draft Regulation would not, however, impose any obligation
to recognise the contents of the documents. So, for example,
a Member State which does not recognise civil partnerships would
not be required to do so on production of a civil partnership
certificate issued in another Member State.
7.3 The draft Regulation would simplify formalities
relating to the use of public documents in other Member States
by requiring the acceptance of certified copies and (unless there
are reasonable doubts as to their accuracy) non-certified translations.
It seeks to strengthen administrative cooperation between Member
States by establishing more effective methods of communication
in cases where there is reasonable doubt as to the authenticity
of a document. The draft Regulation would also establish a set
of standardised multilingual forms for birth, death, marriage,
registered partnerships and the legal status of companies. These
would have the same evidentiary value as the equivalent national
documents and would have to be made available upon request for
the same fee and under the same conditions. A review clause in
the draft Regulation envisages that its scope may be extended
in the future to include additional categories of documents or
to require that multilingual forms be made available for a wider
range of documents. Our Fifth Report, agreed on 12 June 2013,
provides a more detailed overview of the draft Regulation.
7.4 The Minister for Europe (Mr David Lidington),
welcomed the removal of unnecessary bureaucratic procedures, recognised
the potential benefits for EU citizens and businesses of multilingual
standard forms for the most frequently used documents, and accepted
that the draft Regulation addressed issues which have a clear
cross-border dimension. He nevertheless questioned the need for
legislative action and, in particular, the justification for introducing
multilingual forms, for two reasons: the cost of maintaining
two sets of forms (multilingual and national); and the possibility
of "mission creep" if common format documents were eventually
to replace national documents. He also suggested that a single
legal base, based on the citizenship provisions in Article 21
TFEU, rather than a dual legal base including Article 114 TFEU
on the internal market, might be more appropriate.
7.5 We noted the Minister's reservations about
the use of a dual legal base and asked for further clarification
of the Government's position once it had completed its legal analysis.
We also invited the Minister to comment on the Commission's estimate
of the costs involved in legalising or authenticating documents
for intra-EU use (set out in its Impact Assessment) which, if
accurate, suggest that the potential savings for EU citizens and
businesses could be substantial. We requested a more detailed
assessment of the costs and benefits of the draft Regulation for
the UK, especially those likely to be involved in running a parallel
system of national and EU multilingual forms. Finally, we asked
the Minister to explain why he considered that the abolition of
legalisation throughout the EU would make it more onerous for
authorities in the UK to satisfy themselves that documents issued
in another Member State are authentic, given that the UK does
not require the legalisation of documents for use in the UK, and
to provide further information on the following:
- whether any of the documents
included within the scope of the draft Regulation are currently
subject to particular administrative formalities in the UK, short
of formal legalisation, to verify their authenticity; and
- whether he considers that some categories of
documents are too sensitive or susceptible to fraud to be exempt
from legalisation or other formalities, or to be made available
as a standard multilingual form.
7.6 Since we last considered the draft Regulation,
the Scottish Parliament and Northern Ireland Assembly have written
to inform us of their concerns.
Scrutiny by the Scottish Parliament — letter
of 19 June
7.7 The Presiding Officer of the Scottish Parliament
(Tricia Marwick MSP) informs us that the Economy, Energy and Tourism
Committee considered the draft Regulation at its meeting on 19
June and raised two concerns. First, as regards subsidiarity
and proportionality, she notes:
"[T]he Committee does not consider that the
evidence provided by the Commission is sufficient to enable it
to fully properly assess whether the action proposed by the Commission
would bring greater benefits than action by Member States.
"On that basis, the Committee is of the view
that the evidence presented does not provide sufficient assurance
to say that the principle of subsidiarity is not breached by this
proposal.
"The Committee also recognises the concerns
of both the Scottish and UK Government regarding the proportionality
of the action proposed."
7.8 Second, the Presiding Officer highlights
the "scrutiny challenges" which the late provision of
the Government's Explanatory Memorandum — three weeks before
the expiry of the Reasoned Opinion deadline — presented
for the UK Parliament and for the devolved legislatures, particularly
in terms of assessing the subsidiarity implications of the draft
Regulation.
Scrutiny by the Northern Ireland Assembly —
letter of 27 June
7.9 The Chairman of the Committee for the Office
of the First Minister and deputy First Minister (Mike Nesbitt
MLA) also informs us of the outcome of deliberations in the Northern
Ireland Assembly on the draft Regulation. He notes that the Committee
agrees with our initial finding that the proposal is not in breach
of the subsidiarity principle, but underlines the potential financial
implications for Northern Ireland, adding:
"[T]he introduction of EU standard multilingual
forms or Member State multilingual forms will have significant
resource implications, not only in creating these forms but in
the resulting necessary amendments to existing information systems."
The Minister's letter of 28 June 2013
7.10 The Minister for Europe (Mr David Lidington),
agrees with us that the choice of a single or dual legal base
in this case would be unlikely to have a material effect on the
outcome of negotiations, but adds:
"That is an important element of approaching
this question, but as you note the issue here is not simply one
of decision making provisions and [....] it is important to take
a rigorous approach. Accordingly we have requested further detail
on the reason for the Commission's selection of a dual legal base.
I will update the Committee in due course."
7.11 Turning to the costs and benefits of the
draft Regulation for the UK, he continues:
"At this stage it is not easy to provide such
an assessment. This is partly because we do not know the detail
of how the proposal will work in practice, but also because, as
the Impact Assessment itself acknowledges 'an exact quantification
of the public documents needed by EU citizens and businesses moving
and doing business within the EU and affected by the identified
administrative formalities is not feasible' as there are so many
variables affecting why citizens may require legalisation of documents.
We will of course press for more clarity on the costs and benefits,
including on the costs to Governments in establishing the proposed
central authorities to co-ordinate verification requests and the
costs of running a parallel system of forms."
7.12 Whilst reiterating the difficulty of providing
a precise quantification of the scale of the problems associated
with the authentication of documents for intra-EU use, the Minister
considers that the estimates set out in the Commission's Impact
Assessment (which suggest that 1.4 million documents are legalised
for use across EU borders each year and a similar number of certified
translations and copies are produced) appear reasonable. He adds:
"That said, I would like to underline again
the difficulties in making clear assessments on these questions.
For example, the cost of legalisation differs across EU Member
States but, to give one example, the UK charges £30 or £75
for a same day service. It is also worth noting that EU citizens
would still incur costs and delay in legalising any categories
of document not covered by the proposal (court documents,
official letters, educational certificates etc) for use within
the EU, and on any documents for use outside the EU. There
would therefore be some reduction in cost and inconvenience to
the customer, but the proposal would not remove these altogether.
"We will continue to press for further information
from the Commission, including on the likely costs to Member States
if they are required, for example, to introduce new central authorities
to deal with queries about authenticity of documents, or to set
up new IT systems to offer common format civil status documents
in parallel to national documents."
7.13 The Minister also addresses the potential
administrative burden of the draft Regulation for UK authorities.
He observes:
"The proposal to abolish legalisation will affect
the UK differently from other Member States, as we do not require
that other countries' documents be legalised. The Committee is
therefore right to judge that abolition of legalisation is in
itself unlikely to result in additional burdens for the UK authorities.
However, the Commission proposal also recommends that a system
be in place whereby any given Member State can request information
from the relevant authorities in the Member State where a document
was issued. We will need to clarify the mechanism and costs involved
in this, for example the set up and running costs for a central
authority to handle such Member State-to-Member State requests.
Domestically, we would also need to establish who would be responsible
for setting up the UK's Central Authority and whether requests
for information or verification would be coordinated by the Central
Authority or by the issuers of the documents which are being
queried.
"Finally, the Committee asks whether there are
currently particular administrative formalities in the UK, short
of formal legalisation, to verify the authenticity of such documents.
Such administrative formalities do exist, but I regret that for
operational reasons I am not able to outline them in detail.
The Committee also asks whether we consider some categories of
documents too sensitive or too susceptible to fraud to be exempt
from legalisation or other formalities, or to be made available
as a standard multilingual form. We do not at this stage but
as negotiations on this proposal progress the UK will of course
seek to ensure that any new structures or processes in place could
not make fraud either easier or more likely."
7.14 The Minister concludes:
"This is necessarily an early-stage response
in parts, because the proposals clearly need further fleshing-out
as negotiations proceed, and as we and other Member States press
for more thinking on the detail. I will keep the Committee informed
as this proposal proceeds including on the areas of concern your
Committee has raised."
Conclusion
7.15 We thank the Minister for his letter
and draw his attention to the observations made by the Scottish
Parliament and the Northern Ireland Assembly. The Minister is
aware of the difficulties we and the devolved legislatures face
in assessing any potential subsidiarity concerns and producing
a Reasoned Opinion within the eight-week period envisaged under
Protocol No. 2 to the EU Treaties on the application of the principles
of subsidiarity and proportionality. Whilst we concluded (for
the reasons set out in our Fifth Report of 12 June) that the evidence
presented to us so far was insufficient to warrant a Reasoned
Opinion in this case, we wish to underline the important role
of Government in providing timely Explanatory Memoranda and a
thorough analysis of factors (including those set out in the Commission's
accompanying Impact Assessment) which have a bearing on subsidiarity.
This analysis can be extremely helpful in enabling us to make
a fuller assessment of subsidiarity concerns in the short time
available to us.
7.16 The Minister tells us that it is not
easy, at this stage, to provide a more detailed assessment of
the potential costs, benefits and administrative burdens of the
draft Regulation for UK authorities. He will, however, be aware
that Cabinet Office guidance on Parliamentary scrutiny of European
Union documents requires Departments to submit an Impact Assessment
Checklist providing "a robust assessment of options, costs,
benefits and who will be affected" so that Ministers and
Parliament are able to understand the potential impact of draft
legislation and take an informed view.[21]
We consider such an assessment to be essential in determining
the proportionality of the draft Regulation and urge the Minister
to obtain the information he needs to produce at least a preliminary
assessment of the costs and burdens likely to be involved at domestic
level in establishing (or designating) and running a Central Authority
to verify the authenticity of public documents and in changing
existing IT systems to accommodate multilingual standard forms,
as well as the potential cost-savings for UK citizens and businesses.
We also look forward to receiving further updates on the progress
of negotiations, including the choice of legal base for the draft
Regulation. Meanwhile, the proposal remains under scrutiny.
20 See (32374) 18122/10: HC 428-xviii (2010-11), chapter
2 (2 March 2011). Back
21
See para 3.2.13, http://europeanmemoranda.cabinetoffice.gov.uk/files/content/parliamentary-scrutiny-departments-1306.pdf. Back
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