28 March 2012
Support our work: become a Friend of Statewatch from as little as £1/€1 per month.
EU biometric
passports and mandatory fingerprinting
Statewatch legal analysis questions the legality of the proposed
Regulation
- "no
powers conferred upon the EC by the EC Treaty, taken separately
or together, confer upon the EC the power to adopt the proposed
Regulation"
A legal
analysis for Statewatch, prepared by Professor Steve Peers,
University of Essex, on the proposal currently before the European
Parliament to introduce biometric passports and mandatory finger-printing
across the EU concludes that:
"The proposed Regulation on EU passports, with or without mandatory fingerprinting requirements, exceeds the legal powers conferred upon the Community to adopt measures concerning checks at external borders. It can be concluded that no powers conferred upon the EC by the EC Treaty, taken separately or together, confer upon the EC the power to adopt the proposed Regulation.
If the Regulation
includes mandatory fingerprinting requirements, it would also
breach the principle of proportionality that is a requirement
for the legality of Community acts, and the general principles
of Community law, which include the protection of the right to
private life."
The analysis considers the legal basis presented by the European
Commission and the interpretation of EU law by the Legal Service
of the Council of the European Union (see full-text below). The
starting point for the analysis is Article 18(3) EC, which provides
expressly that the EC's powers to adopt legislation to facilitate
the free movement rights of EU citizens:
"shall not apply to provisions on passports, identity
cards, residence permits or any other such document…"
There is no other provision of the EC Treaty which gives express
powers for the EC to adopt measures concerning such matters,
and no precedent for the adoption of EC legislation harmonising
any aspect of Member States' passports.
Statewatch
Analysis: The Legality of the Regulation on EU Citizens' Passports (full-text as a pdf)
Statewatch
Analysis: The Legality of the Regulation on EU Citizens' Passports (full-text as html)
Documentation
2. The Council's
letter to the parliament (Piris letter, pdf)
3. Draft
Regulation on biometric passports, dated 23.11.04, pdf
4. Draft European Parliament report (28.10.04)
5. Draft Council Regulation on standards
for security features and biometrics in passports and travel
documents issued by Member States (doc no: 13490/04,
19.10.04, pdf)
6. Earlier drafts of above: 13186/04,
7.10.04 (pdf) and 12647/04,
1.10.04 (pdf)
7. European Commission
Communication
on biometric features in EU passports (18.2.04) Statewatch:
The road to "1984"Part 2
8. Article
29 Data Protection Working Party opinion on biometrics (WP 80, pdf)
9. European Parliament:
Debate in the Committee for Citizens' Freedoms and Rights (25
October): The
Coelho draft report
(pdf)
10. Proposed
amendments Coelho report (pdf)
Both of these reports raises the issues of the legal basis of the measure:
11. Report
from UK Parliament's Select Committee on European Scrutiny (28 October 2004) (link)
12. Report
from UK Parliament's Select Committee on European Scrutiny (22 September 2004)
(link)
13. Commission
proposal for a Regulation on biometrics documents for visas and
residence permits for third country nationals: COM
(2003) 558
(pdf)
14. Article 29 Data Protection
Working Party opinion on residence permits and visas
(WP 96, pdf)
15. Demand
by Italy, Germany, France, Greece, Spain, Malta, Lithuania, Poland
and Slovenia for mandatory fingerprinting agreed by JHA Council
on 25 October 2004
16. EU: Biometric
documents take another step forward: Report on EU and G8
17. Biometrics - EU takes another step down the road to 1984,
biometrics on visas and residence permits: Reports
Research resources:
Search in Statewatch
database for "biometric"
Search in Statewatch
database "Features Library" for in-depth articles on
biometrics
Spotted an error? If you've spotted a problem with this page, just click once to let us know.
Statewatch does not have a corporate view, nor does it seek to create one, the views expressed are those of the author. Statewatch is not responsible for the content of external websites and inclusion of a link does not constitute an endorsement. Registered UK charity number: 1154784. Registered UK company number: 08480724. Registered company name: The Libertarian Research & Education Trust. Registered office: MayDay Rooms, 88 Fleet Street, London EC4Y 1DH. © Statewatch ISSN 1756-851X. Personal usage as private individuals "fair dealing" is allowed. We also welcome links to material on our site. Usage by those working for organisations is allowed only if the organisation holds an appropriate licence from the relevant reprographic rights organisation (eg: Copyright Licensing Agency in the UK) with such usage being subject to the terms and conditions of that licence and to local copyright law.