3 Free movement and public documents
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
|
| Document details | 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
|
| Legal base | Articles 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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