9037/13 + ADDS.1 - 2
COM(2013)228
SWD(2013)144
SWD(2013)145
EXPLANATORY MEMORANDUM ON EUROPEAN UNION DOCUMENTS
Proposal for a Regulation of the European Parliament and of the Council 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
Submitted by the Foreign and Commonwealth Office on 3 June 2013.
SUBJECT MATTER
1. The document seeks to promote the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the EU and amending Regulation (EU) No.1024/2012.
2. The Regulation proposes that public documents originating in Member States are exempted from all forms of legalisation. Legalisation refers to confirmation that the signature, seal or stamp on a public document is genuine. Public documents are defined as those issued by authorities of a Member State and having formal evidentiary value relating to birth, death, name, marriage and registered partnership, parenthood, adoption, residence, citizenship and nationality, real estate, legal status and representation of a company or other undertaking, intellectual property rights, and absence of a criminal record. The UK does not require the legalisation of documents for use in the UK.
3. Where there are doubts about the authenticity of documents, the Regulation will establish central authorities to deal with requests for information or verification, Verification will be done via the Internal Market Information System (IMIS) – an existing EU communications tool, which is available to Member States and which will be modified to hold templates of national public documents.
4. The Regulation also proposes to establish EU multilingual standard forms for birth, death, marriage, registered partnership and legal status, and representation of a company or other undertaking. In addition, standard forms could be established at a later stage for public documents relating to name, parenthood, adoption, residence, citizenship and nationality, real estate, intellectual property rights and absence of a criminal record. These multilingual standard forms will have the same formal evidentiary value as the Member State’s similar public documents. If a Union multilingual standard form has been established for a particular public document, where an equivalent public document exists in that Member State, the authorities of the Member State must issue the standard form upon request from a member of the public in that Member State. It must also be issued under the same conditions (e.g. the same fee) as the equivalent public document existing in that Member State.
5. Finally, this Regulation would remove the need for certified copies of documents - authorities in a Member State, provided they are satisfied with the authenticity of the documents presented, would not require parallel presentation of the original of a public document and of its certified copy; where the original of a public document issued by the authorities of one Member State is presented together with its copy, the authorities of the other Member States would accept such copy without certification, and; Member State authorities would accept certified copies which were issued in other Member States (Art. 5).
SCRUTINY HISTORY
6. There is no scrutiny history on this Regulation. However, an Explanatory Memorandum on the Green Paper - Less bureaucracy for citizens: Promoting free movement of public documents and recognition of the effects of civil status records was submitted for Parliamentary Scrutiny by the Home Office on 3 February 2011.The House of Commons European Scrutiny Committee assessed the document as “legally and politically important” at their meeting on 2 March 2011 (ESC 32374, 20th Report, Session 2010-12) and recommended it for debate in European Committee B. The debate was held on 5 March 2013 as part of the debate on the citizenship report for 2012 and the document was subsequently cleared from scrutiny.The House of Lords Select Committee on the European Union cleared the document on 12 October 2011 after referral to Sub-Committee E.
7. An Explanatory Memorandum on the Draft Regulation of the European Parliament and the Council on administrative cooperation through the Internal Market Information System ('the IMI Regulation') was submitted for Parliamentary Scrutiny by the Department for Business, Innovation and Skills on 14 September 2011.The House of Commons European Scrutiny Committee cleared the document as “politically important” on 27 March 2012 (ESC 33097, 61st Report, Session 2010-12).The House of Lords Select Committee on the European Union cleared the document on 21 November 2011 after referral to Sub-Committee B.
MINISTERIAL RESPONSIBILITY
8. The Secretary of State for Foreign and Commonwealth Affairs is the Minister with responsibility for policy relating to legalisation of documents in the UK. The Secretary of State for the Home Department has responsibility for policy on civil registration within England and Wales through HM Passport Office. Responsibility in England and Wales for policy on criminal records rests with the Home Secretary. The Cabinet Secretary for Justice is responsible in Scotland and the Minister of Justice is responsible in Northern Ireland. The Secretaries of State for Justice, Business Innovation and Skills and the Department for Education also have an interest.
INTEREST OF THE DEVOLVED ADMINISTRATIONS
9. The registration of births, marriages and deaths, criminal records and registration of rights to real estate are devolved matters for the Scottish Ministers and the Registrar General for Scotland. Policy on criminal records and civil registrations is devolved to Northern Ireland. The Devolved Administrations have been consulted.
LEGAL AND PROCEDURAL ISSUES
10. Legal Basis: The Commission has proposed a dual legal base – Article 21 and Article 114 TFEU.Article 21(2) TFEU empowers the European Parliament and the Council to adopt provisions with a view to facilitating the exercise of the rights of Union citizens to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. Article 114(1) TFEU empowers the European Parliament and the Council to adopt measures for the approximation of the provisions which have as their object the establishment and functioning of the internal market.
11. European Parliament procedure: The ordinary legislative procedure will apply. Therefore there will be co-decision with the European Parliament.
12. Voting Procedures: As the ordinary legislative procedure will apply, voting on this proposal in the Council will be on the basis of a qualified majority.
13. Impact on UK Law: The first part of this Proposal dealing with the abolition of legalisation of documents will not have any impact on UK law. There may be a requirement to legislate in other areas for example around the acceptance of multi-lingual standard forms and electronic forms. This will become clearer as negotiations progress and I will update the Committee if significant legislative changes are required
14. Application to Gibraltar: Yes.
15. Fundamental Rights Analysis: This proposal does not affect the fundamental rights of EU citizens.
16. Application to the European Economic Area: None.
SUBSIDIARITY
17. We agree with the Commission that this proposal has aclear cross-border dimension. However the question remains whether in fact the issues the proposal seeks to address, in particular in relation to the Union standard multi-lingual form, could not be better dealt with at the level of Member States. The issue of whether this proposal is compatible with the principle of proportionality is also a concern for the UK Government (as set out above).
POLICY IMPLICATIONS
18. The UK Government welcomes measures to remove unnecessary bureaucratic procedures but believes that there will be some practical difficulties in implementing the Proposal in order to achieve the right level of benefits for the citizen, the business sector and for Government. Further work will need to be done by Departments and Agencies to understand the implications and costs of implementation. I will keep the Committee updated as negotiations on the Proposal progress.
19. The section relating to the abolition of legalisation is relatively straightforward. Abolishing legalisation in the EU will remove a burden on individuals but it will not remove the need for service providers across Government to satisfy themselves with the authenticity of documents presented to them (currently if a document has been legalised there is a high degree of assurance that the signature or seal of the person who signed the document is genuine and that the person had legal capacity to sing).
20. Domestically we will need to establish whether requests for information or verification will be coordinated by the FCO’s Legalisation Office or by the issuers of documents which are being queried. In order to populate the IMI system, Departments and Agencies will be required to upload template documents to the system.
21. The introduction of common format, multi-lingual documents may be welcomed by citizens and businesses as they move around or do business in other EU countries although we remain to be convinced by the European Commission’s argument that administrative obstacles to cross-border use and acceptance of public documents have a direct impact on the full enjoyment of the internal market freedoms. The Proposal will require issuing Departments and Agencies to provide national and EU documents in parallel for which there will be cost implications. Although it is not the intention of the Proposal, we should guard against the possibility of “mission creep” in the future that could eventually see common format documents replacing national documents.
22. In terms of the legal base for the proposal, the Commission’s position is that administrative obstacles to the cross-border use and acceptance of public documents have a direct impact on the free movement of citizens. Thus, removing these obstacles would facilitate the exercise of the free movement of citizens as foreseen in Article 21(2) TFEU. This Article is combined with Article 114(1) TFEU which empowers the European Parliament and the Council to adopt measures for the approximation of the provisions which have as their object the establishment and functioning of the internal market. The Commission considers that administrative obstacles to the cross-border use and acceptance of public documents have a direct impact on the full enjoyment of the internal market freedoms of EU businesses as described in Article 26(2) TFEU and referred to in Article 114(1) TFEU and concludes that it is therefore the suitable complementary legal basis to cover public documents used by EU businesses in cross-border scenarios within the internal market.
23. We are not persuaded at this stage that this is necessarily the most appropriate legal base for this proposal. Firstly we wonder whether in fact the provisions do pursue a dual predominant purpose relating to both the free movement of citizens and the impact on the internal marker; this is necessary in order to adopt the dual legal base of Article 21(2) and Article 114(1) and because of the limitation in Article 114(2) that Article 114(1) cannot be used for provisions relating to the free movement of persons. It could be argued that the predominant purpose of the proposal is to facilitate the free movement of persons, which itself will have a consequential beneficial impact on the internal market; if this is the case then we may wish to consider whether the proposal should have a sole legal base of Art 21.
24. Secondly, we are not convinced that this proposal respects the requirements of proportionality, particular insofar as it mandates the availability of a Union standard multi-lingual form concerning a wide range of civil status issues (death, citizenship, marriage etc).
REGULATORY IMPACT ASSESSMENT
25. An impact assessment has not been completed.
FINANCIAL IMPLICATION
26. At a European level, only minor costs are expected, in relation to training on using the IMI system. The estimated cost is 50,000 Euro and this charge would fall entirely within the EU Budget and not to individual Member States.
27. The abolition of legalisation will not incur any costs, though there will be some set up and running costs, yet to be defined in relation to the establishment of a central authority to deal with requests for clarification and information.
28. Departments and Agencies will need to establish what additional costs will be incurred in creating standard forms and amending existing IT systems to handle such forms. We would expect this to have some resource implications.
29. Departments and Agencies will also have to establish what, if any, additional costs may be associated with seeking to obtain validation or verification data in cases where an agency within a Member State is not satisfied with the validity of the document presented or with the person presenting the document.
30. If I assess that this proposal may incur significant further costs, I will write to the Committees to provide an update.
TIMETABLE
31. We envisage that this Proposal will go to the Civil Law Working Group in Brussels after the Justice and Home Affairs Council at the beginning of June 2013.
We have no immediate indications that this will be pushed through before EP elections in May 2014 – but much depends on other workloads and time available. I will update the Committee on timings when I write with my update on this item.
OTHER OBSERVATIONS
32. None.
The Rt Hon David Lidington MP
Minister for Europe
Foreign and Commonwealth Office