4 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 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
4.1 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.
4.2 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.
4.3 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.
4.4 When we last considered the draft Regulation,
at our meeting on 28 January 2015, we indicated that we would
welcome further information on the cost and practical implications
associated with the introduction of standardised EU multilingual
forms (or the alternative options under consideration), as well
as continuing progress reports on negotiations within the Council.
We noted that the Minister for Europe (Mr David Lidington) favoured
the removal of the wording in Article 15(1) of the draft Regulation
which specifies that standardised EU multilingual forms have the
same "formal evidentiary value" as the equivalent national
documents on the grounds that this would mitigate the risk of
competence creep and reduce confusion over the legal value to
be given to multilingual forms in cases where there was doubt
as to the underlying national document on which they were based.
4.5 We asked the Minister to explain what he understood
by the term "formal evidentiary value" in the context
of Article 15(1) and to indicate what, if any, practical consequences
would result from its omission. We also asked him whether he considered
that the inclusion of such a provision was necessary, 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".
4.6 It is clear from the Minister's reply, and
previous correspondence, that negotiations within the Council
have resulted in significant changes to the text originally proposed
by the Commission, particularly to Article 15 concerning standardised
EU multilingual forms. As we understand the latest changes, individuals
wishing to live, work or study in another Member State, or businesses
involved in some form of cross-border economic activity, would
not be entitled to request a standard multilingual form as an
alternative to the equivalent national form, but merely as a translation
aid.
4.7 It is becoming increasingly difficult to follow
the twists and turns in the negotiating process, and to consider
their impact for individuals and businesses, without sight of
a revised text. We therefore ask the Minister to ensure that we
are able to consider the changes proposed by the Council in good
time before the Presidency seeks agreement to a general approach.
We also look forward to receiving the information and updates
requested in our earlier Reports. Meanwhile, the draft Regulation
remains under scrutiny.
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
4.8 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.
4.9 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. We have asked to be kept informed
of any changes to the scope of the draft Regulation which might
affect the choice of legal base.
4.10 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".
4.11 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. We also
await further details of the cost and practical implications associated
with the introduction of standardised EU multilingual forms.
4.12 The European Parliament (EP) agreed its First
Reading position on the draft Regulation at its plenary session
in February 2014.[25]
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".[26]
The Minister's letter of 13 February 2015
4.13 In his latest letter, the Minister for Europe
addresses the questions we raised in our Thirty-first Report,
agreed on 28 January 2015, concerning Article 15 of the draft
Regulation on the use and acceptance of multilingual standard
forms. He explains:
"The term 'formal evidentiary value' is understood
in this context to express the legal weight or value given to
self-standing forms presented in the same circumstances as the
equivalent national forms. These would effectively have been independent
forms which could have been considered as proof of various life
events. We received new draft texts on 29 January and 6 February
2015 which make clear their value is only that of a translation
aid. By eliminating their evidentiary value or autonomous nature
it means that in practice they would not be accepted alone as
proof of an event or status.
"This should mean that there is no realistic
possibility of the EU gaining competence over autonomous forms
proving births and other life events in the UK. Presenting a multilingual
form solely as a translation attached to the original certificate
should also avoid any doubt that it is the certificate which is
the original, underlying document. This removes any potential
problem of having more than one national document as the source
of the information.
"I hope that my explanation of the way in which
the terms have come to be used in negotiations on this proposal
addresses your concerns. I will write to update you when there
is further progress in the negotiations."
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); Thirty-first Report HC 219-xxx (2014-15),
chapter 3 (28 January 2015).
25 EP First Reading. Back
26
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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