Documents considered by the Committee on 28 January 2015 - European Scrutiny Committee Contents


3 Free movement and public documents

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; further information requested
Document detailsDraft 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
Legal baseArticles 21(2) and 114(1) TFEU; co-decision; QMV
Department

Document numbers

Foreign and Commonwealth Office

(34890), 9037/13 + ADDs 1-2, COM(13) 228

Summary and Committee's conclusions

3.1 The draft Regulation seeks to make it easier for EU citizens and businesses to exercise free movement rights by establishing a clear legal framework for the circulation of official ("public") documents within the EU, reducing costs and bureaucracy, and strengthening administrative cooperation between Member States to prevent and detect fraud or forgery. It does so by exempting certain categories of public documents from any requirement for legalisation, meaning that they would be automatically accepted as authentic in another Member State, and by simplifying formalities relating to their use. The draft Regulation does 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.

3.2 The draft Regulation would also establish a set of standardised multilingual forms for birth, death, marriage, registered partnerships and the legal status of companies which would have the same evidentiary value as the equivalent national documents and would have to be made available by the competent national authorities upon request, for the same fee and under the same conditions.

3.3 Whilst welcoming the removal of unnecessary bureaucratic procedures, and recognising the potential benefits for EU citizens and businesses living, working or trading in another Member State, the Government has expressed concern about the cost implications of the draft Regulation, as well as the possibility of "mission creep" if common format documents were eventually to replace national documents.

3.4 When we last considered the draft Regulation, at our meeting on 7 January 2015, we asked the Minister for Europe (Mr David Lidington) to keep us informed of developments concerning the legal base and scope of the draft Regulation, as well as the proposed use of standardised EU multilingual forms and the possible alternatives being considered by the Council. We also asked him to clarify the circumstances in which a Member State would be entitled to insist on the production of original documents as a precaution against fraud.

3.5 We are grateful for the Minister's response and look forward to receiving further details of the cost and practical implications associated with the introduction of standardised EU multilingual forms (or the alternative options under consideration).

3.6 Article 15(1) of the draft Regulation states that these multilingual forms "shall have the same formal evidentiary value as the equivalent public documents issued by the authorities of the issuing Member State". The Minister considers that removal of "evidentiary value" would mitigate the risk of competence creep and reduce confusion over the legal value to be given to such forms. We ask the Minister to explain his understanding of the meaning of the term "formal evidentiary value" in the context of Article 15(1) of the draft Regulation, and to indicate what, if any, practical consequences would result from its omission. We also ask the Minister for his views on the necessity of such a provision, given that Article 15(3) requires Member States to accept standardised EU multilingual forms without legalisation or similar formality, and Article 15(2) makes clear that the forms "shall not produce legal effects as regards the recognition of their content when they are presented in another Member State than the Member State where they were issued".

3.7 Meanwhile, the draft Regulation remains under scrutiny. We look forward to receiving progress reports on negotiations within the Council as well as the information requested in our earlier Reports.

Full details of the documents: 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: (34890), 9037/13 + ADDs 1-2, COM(13) 228.

Background

3.8 Our earlier Reports, listed at the end of this chapter, set out in greater detail the content of the draft Regulation and the Government's position.

3.9 The draft Regulation cites a dual legal base to reflect its dual purpose of facilitating the exercise of free movement rights by EU citizens and businesses — Article 21(2) of the Treaty on the Functioning of the European Union (TFEU) concerning the free movement rights of EU citizens, and Article 114(1) on the internal market.

3.10 The Government does not expect the draft Regulation to have a significant impact on UK law as the UK does not require the legalisation of documents for use in the UK. There would, however, be administrative costs involved in establishing a UK Central Authority to handle requests from other Member States for information or verification of the authenticity of public documents in case of doubt, in making available standardised multilingual forms for certain categories of public document, and in upgrading IT systems. The Government has made clear that, during the course of negotiations, it will seek to minimise the financial and administrative impact of the draft Regulation (a concern which also emerged from scrutiny of the proposal by the Scottish Parliament and the Northern Ireland Assembly), ensure adequate safeguards (including the right to insist on the production of original documents in certain circumstances), and guard against the possibility of "mission creep".

3.11 The Government has provided a preliminary assessment of the potential costs and benefits of the draft Regulation — these are set out in our Forty-seventh Report of Session 2013-14 — and a revised assessment (in our Twenty-second Report agreed on 26 November 2014), whilst noting that the figures will need to be reviewed in light of any changes in scope.

3.12 The European Parliament (EP) agreed its First Reading position on the draft Regulation at its plenary session in February 2014.[17] It said that the categories of documents included within the scope of the draft Regulation should be expanded (for example, to include documents relating to immigration status, educational qualifications, and disability) and that there should be much wider acceptance of uncertified copies and translations of public documents. The EP also proposed increasing the categories of documents for which Member States would be required to make available standardised multilingual forms. The Government considers the inclusion of a considerably larger category of documents to be "unacceptable".[18]

The Minister's letter of 21 January 2015

3.13 In his latest letter, the Minister (Mr David Lidington) explains that the latest iteration of the draft Regulation provides that Member States may demand an original document where their national law requires it. He continues:

    "A number of Member States have argued in favour of replacing 'law' with 'procedures' and we expect such an amendment to be included in the next draft. We welcome this flexibility which we interpret as being able to insist upon originals where we deem it necessary and which therefore meets UK operational requirements, especially in areas where we have particular concerns such as for passport, visa and identity procedures."

3.14 The Minister indicates that the General Register Offices and the National Records of Scotland are considering the cost and practical implications associated with the introduction of standardised EU multilingual forms (or alternative options) which will enable him to provide us with a more accurate assessment. He recognises that production costs for some of the alternative options may be nearly as high as for the forms originally proposed by the Commission, but considers that there may be other advantages. He continues:

    "The original autonomous forms were not intended to produce a defined legal consequence despite having independent evidentiary value. However, we consider that removing evidentiary value mitigates the risk of competence creep in the event of a future adverse court decision. It also reduces confusion over the legal value to be given to multilingual forms in cases where it is unclear upon which underlying national document they are based."

Previous Committee Reports

Fifth Report HC 83-v (2013-14), chapter 6 (12 June 2013); Eighth Report HC 83-viii (2013-14), chapter 7 (3 July 2013); Forty-seventh Report HC 83-xlii (2013-14), chapter 7 (30 April 2014); Twenty-second Report HC 219-xxi (2014-15), chapter 6 (26 November 2014); Twenty-eighth Report HC 219-xxvii (2014-15), chapter 5 (7 January 2015).





17   EP First Reading. Back

18   See letter of 23 April 2014 from the Minister for Europe (Mr David Lidington) to the Chair of the European Scrutiny Committee. Back


 
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