21 Free movement and public documents
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
|
| Document details | Proposal for a Regulation 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
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| Department
Document numbers
| Foreign and Commonwealth Office
(34890), 9037/13 + ADDs 1-2, COM(13) 228
|
Summary and Committee's conclusions
21.1 The proposed 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,[ 202]
meaning that they would automatically be accepted as authentic
in another Member State, and by simplifying formalities relating
to their use.
21.2 The proposal 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.
21.3 The UK does not require the legalisation of
documents for use in the UK. The main beneficiaries of the proposed
Regulation are therefore likely to be UK citizens living or working
abroad who are required to present official documents to public
authorities in their host Member State.
21.4 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 proposed Regulation, as well as the possibility
of "mission creep" if common format documents were eventually
to replace national documents.
21.5 The Minister for Europe (Mr David Lidington)
has provided frequent updates on the progress of negotiations
on the proposed Regulation. At the Committee's meeting on 4 March
2015, our predecessors agreed to grant a scrutiny waiver to enable
the Government to support "a partial general approach"
at the March Justice and Home Affairs (JHA) Council on most elements
of the proposal, with the exception of multilingual standard forms
and a number of other related provisions. The Minister indicated
that the Presidency was expected to seek a general approach on
all elements of the proposed Regulation in June, adding that he
would "ask for sufficient time to allow full scrutiny consideration".[ 203]
21.6 In his latest letter, the Minister confirms
that the Justice and Home Affairs Council is likely to agree a
general approach at its meeting on 15 June, before we have had
an opportunity to consider and report on its content, and that
"the need for the override of scrutiny on this occasion in
order to secure an advantageous general approach is regrettably
unavoidable".[ 204]
21.7 We note, with regret, that the Minister has
been unable to secure "sufficient time to allow full scrutiny
consideration" before agreeing to the general approach at
the Justice and Home Affairs Council on 15 June. Having considered
the latest information provided by the Minister, we are willing
to accept that the outcome achieved at the Council appears to
address the concerns raised by the Minister in earlier correspondence
about the introduction of multilingual standard forms and the
risk of competence creep.
21.8 As negotiations on the proposed Regulation
have proceeded in a piecemeal fashion within the Council, we ask
the Minister to provide a copy of the general approach agreed
in June (without a limité marking) and to describe
the key changes made to the text originally proposed by the Commission,
including the extent to which they will remove unnecessary bureaucratic
procedures for citizens and businesses living, working or trading
in the EU. We would also welcome some analysis of the prospects
and timescale for reaching an agreement with the European Parliament
and the areas in which the Government considers that there is
scope for compromise. In particular, we ask the Minister whether
he would support the inclusion of a broader category of business
documents to simplify formalities for businesses trading in other
Member States and to explain how any changes to the scope of the
proposed Regulation may affect its legal base.
21.9 We note the Minister's view that the changes
agreed by the Council, particularly with regard to multilingual
standard forms, "will be of more use to the citizen"
than the Commission's original proposal. Given that Member States
will be able to charge "a cost recovery fee", we ask
the Minister to indicate how much UK citizens might be expected
to pay if they request a multilingual standard form and how the
level of fees will compare to the average cost of obtaining an
apostille. We also ask the Minister whether obtaining a
multilingual standard form will obviate the need for any further
translation of the national document to which it relates.
21.10 We remind the Minister that we await further
details of the cost and practical implications associated with
the introduction of multilingual standard forms.
21.11 Finally, the Minister considers that the
inclusion of specific wording in the proposed Regulation protecting
Member States' right to negotiate international agreements (or
to agree accessions to them) on matters covered by the Regulation
"manages the external exclusive competence issue as far as
is reasonably possible". We ask him whether similar wording
has been included in other binding EU instruments and how effective
they have been — or this wording is likely to be —
in light of the Court of Justice's generally expansive interpretation
of EU external competence.
21.12 We look forward to receiving further reports
on the progress of trilogue negotiations. Meanwhile, the proposed
Regulation remains under scrutiny.
Full
details of the documents:
Proposal for a 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
21.13 Our earlier Reports, listed at the end of this
chapter, set out in greater detail the content of the proposed
Regulation and the Government's position.
21.14 The Commission's original proposal for a Regulation
cited a dual legal base to reflect its dual purpose of facilitating
the exercise of free movement rights by EU citizens (under Article
21(2) of the Treaty on the Functioning of the European Union (TFEU)
concerning the free movement rights of EU citizens) and by businesses
(under Article 114(1) TFEU on the internal market). During negotiations
within the Council, the scope of the proposal has been reduced
to remove certain categories of documents, notably those concerning
the legal status and representation of a company, which would
be of particular interest to businesses trading in another Member
State.
21.15 By contrast, the First Reading position agreed
by the European Parliament in February 2014 sought both to expand
the categories of documents included within the scope of the proposed
Regulation and to increase those for which Member States would
be required to make available multilingual standard forms.[ 205]
The Government considers the inclusion of a considerably larger
category of documents to be "unacceptable".[ 206]
21.16 As the UK does not require the legalisation
of documents for use in the UK, the Government does not expect
the proposed Regulation to have a significant impact on UK law.
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 proposed 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".
21.17 The Government has provided a preliminary assessment
of the potential costs and benefits of the proposed 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.
21.18 It is clear from the updates provided by the
Minister on the progress of negotiations within the Council that
significant changes have been made to the text originally proposed
by the Commission. In particular, under the Commission's proposal,
EU citizens would be entitled to request a multilingual standard
form concerning birth, death, marriage, registered partnership,
or the legal status and representation of a company instead of
("as an alternative to") the equivalent national document
and present it to a public authority in another Member State without
the need for legalisation. The multilingual standard form would
have "the same formal evidentiary value as the equivalent
public document" and would be issued "under the same
conditions" (meaning at no further cost). By contrast, the
Council favours a more limited use of multilingual standard forms,
so that they would operate merely as a translation aid, without
any autonomous evidentiary value.
21.19 The Council has also explored the possibility
of including wording in the proposed Regulation to mitigate the
risk that 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, such
as the 1961 Hague Convention Abolishing the Requirement of Legalisation
for Foreign Public Documents.[ 207]
The Minister's letter of 15 June 2015
21.20 In his latest letter, the Minister confirms
that the Justice and Home Affairs Council will consider a general
approach on the proposed Regulation at its meeting on 15 June,
adding:
"It is important that the UK is able to
support this general approach in order to secure text which is
acceptable to us."
21.21 The Minister notes that we have previously
granted a scrutiny waiver to enable the Government to support
a partial general approach on provisions concerning the abolition
of apostilles, administrative cooperation between Member
States, and rationalisation of certified copies and translations.
He provides a limité copy of the text to be agreed
by the Justice and Home Affairs Council and suggests that it has
been "considerably improved" since the Commission published
its original proposal.[ 208]
21.22 Turning first to the provisions on multilingual
standard forms, the Minister describes the changes made in recent
weeks which make them more acceptable for the UK:
"The multilingual forms are no longer autonomous
forms with independent evidentiary value but are now simply translation
aids which must be attached to a national document (specifically,
certificates of birth, marriage, civil partnership and death for
the UK, and some extremely rare cases where court judgments are
used in lieu of certificates). This reduces any future risk of
possible EU control over civil status documents. The EU flag/logo
has also been removed from the template for translation aid forms
which further reduces any perception of official EU influence
over matters which are a national prerogative.
"The format was originally proposed to include
a minimum number of mandatory standard information fields (such
as name, date and place of birth for birth forms). Following the
change to a translation aid, a new format which increases the
usefulness of the aids has been agreed. It will consist of a standard
cover sheet which explains the underlying national document and
gives personal information in the mandatory standard fields. A
second sheet will be tailored to correspond to the underlying
national document. For this part of the form the issuing authority
will create a template by selecting the relevant entries from
a comprehensive list of fields which will be held on the eJustice
portal and translated by the EU Commission into all EU official
languages. The issuing authority will use the software of the
eJustice portal to automatically translate the fields chosen into
the language of the receiving State specified by the citizen,
and will transcribe the un-translated personal data into these
information fields. Thus a bilingual translation aid will be produced.
This will be easier for a receiving authority to read than a fully
multilingual translation aid. In addition, a condensed translation
of the chosen fields into all languages will appear at the foot
of the page so that if necessary it can, with a bit more difficulty,
be used as a translation aid into any official EU language. The
translation aid can be printed out and personal data will not
be stored on the eJustice system."
21.23 The Minister notes that the requirement in
the Commission's original proposal to charge no more for a multilingual
standard form than the fee for the equivalent national document
(for example, a birth certificate) has been removed in the general
approach. Member States will be able to charge "a cost recovery
fee, subject to approval under the appropriate UK legislation".
He continues:
"As details of the requirements for producing
these aids have yet to be finalised, we are working to provide
a cost assessment in the near future. The number issued will depend
on how many eligible citizens request them, which is difficult
to assess, but based on the number of documents for which apostilles
destined for other Member States are currently requested we estimate
a maximum of 25,000 such aids to be issued annually across the
UK."
21.24 The Minister considers that the changes agreed
on multilingual standard forms, which limit their use to simple
translation aids, have "removed the problems the UK felt
most strongly about and will be of more use to the citizen than
were the originally-proposed multilingual common forms".
21.25 In earlier correspondence, the Minister explained
that he expected specific wording on external competence to be
included in the Regulation itself and that it was "likely
to say that this Regulation shall not preclude Member States negotiating
other international instruments, or accessions to them, which
relate to areas falling under this Regulation".[ 209]
He confirms that wording to this effect will be included in Article
18(2)(b) of the proposed Regulation, adding:
"We are satisfied that this manages the
external exclusive competence issue as far as is reasonably possible."
21.26 The Minister expresses his regret that the
vote on the proposed general approach will take place before our
first meeting in the Parliamentary Session 2015-16 and that, as
a consequence:
"I find myself in the position of having
to agree to voting in support of this proposed Regulation before
the Committee has had an opportunity to scrutinise the documents.
As you know, the responsibility to keep your Committee informed
is something I take seriously and the need for the override of
scrutiny on this occasion in order to secure an advantageous General
Approach is regrettably unavoidable."
Previous Committee Reports
Thirty-ninth Report HC 219-xxxii (2014-15), chapter
10 (24 March 2015); Thirty-fifth Report HC 219-xxxiv (2014-15),
chapter 5 (4 March 2015); Thirty-fourth Report HC 219-xxxiii (2014-15),
chapter 4 (25 February 2015); Thirty-first Report HC 219-xxx (2014-15),
chapter 3 (28 January 2015); Twenty-eighth Report HC 219-xxvii
(2014-15), chapter 5 (7 January 2015); Twenty-second Report HC
219-xxi (2014-15), chapter 6 (26 November 2014); Forty-seventh
Report HC 83-xlii (2013-14), chapter 7 (30 April 2014); Eighth
Report HC 83-viii (2013-14), chapter 7 (3 July 2013); and Fifth
Report HC 83-v (2013-14), chapter 6 (12 June 2013).
202 There are two standard processes: legalisation
requires the issuing authority and the consular authority in the
Member State where the document is to be used to certify a document's
authenticity; apostille requires a seal of authenticity
to be attached to the document by the issuing authority. Back
203 Letter of 18 March 2015 from the Minister for Europe to the Chair
of the European Scrutiny Committee. Back
204 In her Written Statement to Parliament on the outcome of the Justice
and Home Affairs Council, the Home Secretary (Mrs Theresa May)
confirmed that the Council had agreed a general approach, based
on a Presidency compromise text. Back
205 EP First Reading. Back
206 See letter of 23 April 2014 from the Minister for Europe to the
Chair of the European Scrutiny Committee. Back
207 Text of the Convention. Back
208 The Minister makes clear that documents marked limité
"cannot be published, nor can they be reported on in any
way which would bring detail contained in the documents into the
public domain". Back
209 Letter of 18 March 2015 from the Minister for Europe to the Chair
of the European Scrutiny Committee. Back
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