Documents considered by the Committee on 21 July 2015 - European Scrutiny Contents

21 Free movement and public documents

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

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.


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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Prepared 30 July 2015