5 Free movement and public documents
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; scrutiny waiver granted; 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
5.1 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.
5.2 The draft Regulation would also establish a set
of multilingual standard 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.
5.3 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.
5.4 The Minister for Europe (Mr David Lidington)
has provided frequent updates on the progress of negotiations
on the draft Regulation. These indicated that the Council intended
to make significant changes to the text originally proposed by
the Commission. In particular:
· the multilingual standard forms proposed
by the Commission would no longer have the same evidentiary value
as the equivalent national documents, but would operate merely
as a translation aid; and
· the draft Regulation would no longer encompass
certain categories of documents concerning, for example, the legal
status and representation of a company or intellectual property
rights, which would be of particular interest to businesses trading
in another Member State.
5.5 In light of these, and other changes being considered
by the Council, and the possibility that the Presidency might
seek agreement to a general approach on a substantially different
text, we asked the Minister to make available a revised Presidency
text. In response, the Minister provides a limité
copy of the proposal which he expects the Presidency to put forward
for agreement as "a partial general approach" at the
Justice and Home Affairs ("JHA") Council on 13 March.
Whilst we are unable to publish or report the contents of the
limité text, the Minister's helpful accompanying
letter provides a comprehensive overview of the provisions on
which the Presidency intends to seek agreement at the forthcoming
JHA Council.[10]
5.6 We are grateful to the Minister for clearly
identifying the elements of the Presidency compromise text which
are to be included in the partial general approach and for setting
out their legal and policy implications for the UK. We agree to
grant a scrutiny waiver to enable the UK to support the partial
general approach on the basis set out in the Minister's letter,
and subject to the following observations.
5.7 First, when we have previously considered
partial general approaches, we have been given an assurance that
'nothing is agreed until everything is agreed'. Whilst we question
how readily a partial general approach can be unpicked once it
has been agreed, and are unaware of any examples where this has
happened in practice, we nevertheless consider this to be an important
assurance, in principle, and assume (unless we hear to the contrary
from the Minister) that it applies in this case.
5.8 Second, as we have previously indicated, it
is important that the Government remains vigilant to the risk
of competence creep if, as in this case, the adoption of EU internal
legislation may provide the basis for the EU to assert exclusive
external competence in relation to relevant international bodies
and conventions. We consider that the approach proposed by the
Presidency, with UK support, mitigates this risk. We ask the Minister
to ensure that, before we conclude our scrutiny of the draft Regulation,
we are able to consider the content of the Political Declaration
on external competence which Member States are expected to agree.
5.9 We look forward to receiving a further report
from the Minister after the March Justice and Home Affairs Council.
We note that the partial general approach excludes business documents
from the scope of the draft Regulation and that it does not include
the provisions on multilingual standard forms. On the latter,
we look forward to receiving further information on the outcome
of discussions within the Civil Law Working Group, as well as
the cost and practical implications associated with the introduction
of multilingual standard forms in the UK. As regards the proposed
exclusion of business documents, we would like to hear what, if
any, representations have been made to the Government by stakeholders
on the impact and costs of this exclusion for businesses involved
in cross-border economic activity.
5.10 As the Minister will be aware, the scrutiny
waiver extends only to the partial general approach, as described
in his latest letter. A further scrutiny waiver, or clearance,
will be required in advance of the Council's adoption of a general
approach.
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
5.11 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.
5.12 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.
5.13 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 multilingual standard
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".
5.14 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 multilingual standard forms. The European
Parliament (EP) agreed its First Reading position on the draft
Regulation at its plenary session in February 2014.[11]
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 multilingual
standard forms. The Government considers the inclusion of a considerably
larger category of documents to be "unacceptable".[12]
The Minister's letter of 25 February 2015
5.15 In his latest letter, the Minister confirms
that Member States will be invited to agree a partial general
approach at the Justice and Home Affairs Council on 13 March and
asks us to consider granting a scrutiny waiver to enable the Government
to support a Presidency text which "advances the UK's negotiating
objectives". He continues:
"Agreeing this partial General Approach
would effectively freeze those parts of the text included in it.
This would secure improvements already made to Articles relating
to the abolition of legalisation, rationalisation of certified
copies and translations and the procedures for querying doubtful
documents. Many of the changes are a direct result of UK suggestions
or are to our benefit and we would like to see them confirmed.
Tactically this would show also that we are reliable and supportive
of the agreed text."
5.16 The Minister makes clear that the provisions
of the draft Regulation on the introduction of multilingual standard
forms are not included in the partial general approach. These
will be discussed shortly in the Civil Law Working Group and "are
likely to be more controversial for us". He anticipates that
UK support for the partial general approach will enable the UK
to influence the discussions more effectively. The partial general
approach also excludes the legal base for the draft Regulation,
since this can only be agreed once the final scope of the proposal
has been determined after trilogue negotiations involving the
European Parliament.
5.17 The Minister considers that the changes made
by the Council have "considerably improved" the Commission
proposal, and address concerns we have raised about Member States'
ability to demand original documents to guard against fraud, as
well as the rationalisation of document verification procedures
to reduce costs. He expects the partial general approach to be
supported by the majority of Member States and describes the main
changes:
"[T]he original proposal covered public
documents in twelve categories relating to personal and business
documents but that was later narrowed to categories relating only
to individuals (birth, marriage/registered partnership, death,
name, filiation, residence and nationality). This partial General
Approach has extended those categories logically by adding divorce,
legal separation, annulment, dissolution of a registered partnership,
marital status, capacity to marry or enter into a registered partnership
and at UK request has replaced filiation with parenthood. This
latter wording limits the relationship to parent and child but
allows for same-sex parenthood which was a concern for the UK.
These additions to the scope would increase both the potential
benefits to citizens and operating costs to HMG by an estimated
3% or £25-30,000. They also keep this Regulation closer to
UK domestic policies regarding discrimination on gender or sexual
orientation grounds."
5.18 The Minister expects the European Parliament
to seek to widen the scope of the draft Regulation during its
Second Reading of the proposal to include company status documents,
a development which he says the UK could support. He notes that
the draft Regulation includes provision for a three-yearly review
to consider, amongst other things, a possible extension of the
categories of documents within its scope, but adds:
"We are content at present with the current
more limited scope as we believe this wide-ranging Regulation
can be more smoothly implemented in stages."
5.19 The Minister describes the improvements which
have been achieved as result of the UK's active participation
in the negotiations:
"We have secured wording retaining the right
to demand original documents as a precaution against fraud. Our
suggestions on administrative procedures to ease the burden of
dealing with requests received from other Member States have been
adopted in Chapter III. Several categories of documents for which
we estimated the impact of implementation would outweigh the benefits
have been deleted. And our wording has been included in several
more minor improvements. A common-sense approach to certified
copies and information sharing amongst Member States accords well
with UK domestic practice."
5.20 The Minister highlights one outstanding concern
which he expects to be addressed through the addition of a recital:
"Procedures laid out in the current draft
do not allow for circumstances where certain kinds of documents
do not have a register against which they can be checked. Ministry
of Justice colleagues see this as a small but important omission
and we have lobbied for a change. As a result the Presidency has
agreed to put a recital to cover this situation on the agenda
for discussion at Coreper today. We think this will address our
concerns."
5.21 Turning to the implications of the draft Regulation
for the EU's external competence, the Minister explains:
"Many of the footnotes seek to clarify what
falls within or without the remit of this proposal. The reason
for this is that a decision (Op 01/13) of the European Court of
Justice (CJEU) gave the European Union exclusive external competence
in another Regulation.[13]
"As for the adoption of any new internal
EU measures it is possible that this will generate EU exclusive
external competence. In order to mitigate this risk the working
party has sought to define the limits of this Regulation and its
relationship to other pre-existing international instruments.
Three have been identified which have possible overlap: the 1961
Hague Convention on abolition of legalisation and the 1968 European
Convention on the abolition of legalisation for Consular and Diplomatic
Documents, (to both of which the UK is a party), and the International
Commission on Civil Status Conventions 16, 33 and 34 which deal
with multilingual extracts from civil registers and to which we
are not party.
"In all three cases the impact on the UK
should EU exclusive external competence arise is assessed to be
very low. The EU's position on simplifying legalisation is similar
to our own, so it would be unlikely to vote differently on a non-Member
State's accession to these conventions. In the unlikely event
that it did, UK domestic procedures would be unaffected because
we do not require apostilles to be attached to foreign documents
when presented to us. We are not signatories to the third instrument,
Conventions 16, 33 and 34 of the International Commission for
Civil Status, so therefore there is no direct relevance for the
UK. In practice, now that this Regulation covers only translation
aids rather than autonomous forms, there is no direct overlap
with the ICCS multilingual register extracts.
"I am satisfied that the current draft manages
the exclusive external competence issue as far as is reasonably
possible. It is never possible entirely to prevent either the
case coming before the ECJ nor the Court subsequently finding
exclusive competence. In the circumstances, we have no objection
to what the Presidency is attempting to do both in the wording
of the text and in seeking an accompanying Political Declaration.
"Footnote 2 on page 15 of the text proposes
a political declaration be adopted which would state that the
Member States and the Commission do not intend the text to give
rise to exclusive external competence for the EU in the areas
covered. Whilst this would have little effect legally, it is a
useful political tool and may reduce the risk of the Commission
seeking to litigate the issue before the ECJ. We can agree in
principle. A draft declaration is to be prepared by the Presidency
ahead of the Justice and Home Affairs Council."
5.22 The Minister expects the partial general approach
to be agreed by a qualified majority in the Council, regardless
of whether the UK supports the Presidency compromise text or abstains,
but adds:
"However we would like to speak in support
of the amendments we have worked to achieve. We feel it would
give our interventions greater credibility when negotiations continue.
The Articles on multilingual forms are very important to us and
have yet to be agreed in detail so we want to be in a strong position
to negotiate. We have already secured the watering-down of these
from standalone forms to mere translation aids but would like
to persuade others to adopt a cheaper solution."
5.23 The Minister reiterates his request for a scrutiny
waiver to support a partial general approach on the terms outlined
in his letter at the March JHA Council. He continues:
"I will write to report any developments
between now and the presentation of the text at the Council and
in any case to update the Committee following the Council. We
expect that a General Approach will be sought in June and therefore
we will keep the Committees engaged in the meantime. We intend
to push for a General Approach to be delayed to allow sufficient
time for full scrutiny consideration allowing for the post-dissolution
timetable."
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); and Thirty-fourth Report HC 219-xxxiii
(2014-15), chapter 4 (25 February 2015).
10 As the Minister's letter makes clear, the limité
document has been provided to the Committee "under the
Government's authority and arrangements agreed between the Government
and the Committee for the sharing of EU documents carrying a limité
marking. It cannot be published, nor can it be reported on in
any way which would bring detail contained in the document into
the public domain". Back
11
EP First Reading. Back
12
See letter of 23 April 2014 from the Minister for Europe (Mr David
Lidington) to the Chair of the European Scrutiny Committee. Back
13
Opinion 1/13 issued on 14 October 2014. For further details,
see our Twenty-eighth Report HC 219-xxvii (2014-15), chapter 5
(7 January 2015). Back
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