EU governments blackmail European Parliament into quick adoption of its report on biometric passports
- the Council of the European Union (the 25 governments) has told the parliament it can have full powers of "co-decision" after it adopts its report on biometric passports
- how many national parliaments were re-consulted after the decision to make fingerprinting mandatory?
- the costs are completely unknown and the "details" will be decided in a secret committee
- the EU has no legal powers to introduce such a Regulation
The Council of the European Union (the 25 governments) has told the European Parliament that it will not bring the changes due under the Amsterdam Treaty - which would extend its powers of "co-decision" (Article 251) to cover measures like biometric passports - until it adopts its report on biometric passports.
The new powers of co-decision would cover the exact legal basis (Article 62.2.a) under which the introduction biometric passports are being proposed. If the new powers for the parliament were to be agreed in December - and they could be as the draft Decision was published by the Council on 23 November and there are a number of meetings of Council of Ministers before the end of the year - then the parliament could seek to substantially amend the proposal and the Council would have to sit down and negotiate with the parliament.
Under the existing procedure, "consultation", the views of the parliament are simply ignored by the Council. The adoption of the report on biometric passports by the European Parliament under the "consultation" procedure is thus a routine legal step that has to be completed before the Council can go ahead and adopt the measure formally.
Last week the Council wrote to the parliament urging them to adopt their report quickly - but behind the scenes the Council was calling on the parliament to adopt their report (from rapporteur Coelho) on biometric passports under the "urgency procedure" in the plenary session on 1-2 December with the offer to extend co-decision in January.
The Council's demand was even more extraordinary because the draft measure considered by the Committee on Citizens' Freedoms and Rights was based on a previous version which said that facial images were mandatory and fingerprinting optional. In June a group of governments tried to make both biometrics mandatory but failed. They returned to the fray after a meeting of the so-called "G5" group (UK, Germany, France, Italy and Spain) in the summer and at the Justice and Home Affairs Council on 25 October and pushed through mandatory fingerprinting for passports. The governments demanding mandatory fingerprinting were: Italy, Germany, France, Greece, Spain, Malta, Lithuania, Poland and Slovenia only Sweden, Finland, Estonia and Latvia oppose the move.
In normal circumstances with a significant change to a proposed measure - changing optional to mandatory finger-printing affecting millions upon millions of EU citizens - the Council would have re-presented a new draft and the matter would have been returned to the Committee on Citizens' Freedoms and Rights for its view (only when the Committee adopted a new draft Resolution would the matter have gone to the plenary session).
However, it appears that the parliament's Conference of Presidents (the party group leaders) will agree on Monday 29 November that this change is not significant enough to require re-consultation. This will allow the existing report by Mr Coelho (rapporteur) to be considered at a plenary session where the parliament will be "informed" of the Council's new draft - it is expected that the parliament will amend the Coelho report to express its opposition to mandatory finger-printing. When the parliament's report is adopted in an amended form the Council will, as usual, ignore the content of the report and formally adopt the measure at the next available meeting of the Council of Ministers. The parliament has two plenary sessions, one on 1-2 December in Brussels and a further plenary session in Strasbourg on 13-16 December.
As the parliament's report, in the words of the rapporteur, "supports the introduction of biometrics, provided that citizens' rights and freedoms are always upheld", it has little room for manoeuvre. It is not opposed to biometric passports in principle but wants safeguards put in place. As against this a wealth of evidence from civil society, detailed studies and from the USA show that these objectives are unreconcilable under present data protection and privacy regimes..
National parliaments are also meant to be re-consulted by their governments if there are significant changes to proposed measures - though it is hard to see how a changed draft dated 23 November 2004 could be properly considered by national European scrutiny committees in this time-scale.
The UK took no position because it is not affected by the measure as it has opted out of this provision of the Schengen acquis - on this occasion the UK tried to "opt-in" but was rebuffed by other governments. This is why the UK is going ahead independently and proposing to introduce mandatory facial images and fingerprints for passports under its Identity Card Bill. Interestingly the UK will not - as things stand - be able to add its data and biometrics to any future EU-wide passport database nor have access to it (Ireland is in a strange position because it too has opted out of this Schengen provision as it is tied to the UK by a common travel area but has not as yet gone down the UK road).
The cost and the timetable for mandatory finger-printing for passports across the whole EU
A previous draft report - which was never adopted - by Ole Sorenson (rapporteur) in the last parliamentary session (1999-2004) rejected the Commission's proposal for biometric passports outright based on a number of fundamental criteria - including proportionality (under the Protocol to Article 5 of the TEC). Another was the cost of introducing biometric passports which the Commission's proposal could not define - the parliament was therefore being asked to endorse a proposal leading to unknown financial liabilities. The Sorenson draft said: "if the costs are not known then the Commission should not have made the proposals".
The costs are still not known - and the Regulation will be binding on 22 member states (excluding the UK, Ireland and Denmark)
This is partly because the exact requirements are not known. The draft Regulation does not set out the size of the chip which will carry personal and biometric data nor the number of fingerprints to be taken (one, two or more) and what kind of facial images. And partly because there are as yet no reliable figures for the number of passports issued each year by the 25 member states.
This "detail" is delegated under Article 5:
"1. The Commission shall be assisted by the Committee set up by Article 6(2) of Regulation (EC) No 1683/95.
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply. The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at two months.
3. The Committee shall adopt its rules of procedure."
This essentially means that the Commission sets up a Committee with representatives from each of the member states which adopts its own rules of procedure. The Regulation will come into effect 20 days after its publication in the Official Journal - which could mean the end of January 2005. The Committee then has to be set up - in this instance the implementing "details" are going to be complex and involve fundamental decisions (eg: how many fingerprints are to be taken).
The implication of Article 6(2) of Regulation (EC) No 1683/95 and Articles 5 and 7 of Decision 1999/468/EC is that if the measure on biometric passport had been adopted under "co-decision" (Article 251) then the European Parliament would receive agendas, documents, minutes and have the power to intervene if it considered the proceedings unsatisfactory. But as the measure will be adopted under "consultation" the parliament will have none of these powers. This Committee sorting out the "details" will effectively meet in secret.
If all goes according to the Council's plan the timetable could look something like this:
- 2 December: European Parliament adopts its report under the "consultation" procedure.
- mid-December: Council adopts the Regulation (ignoring the views of the parliament)
- beginning of January 2005: The Regulation is published in the Official Journal
- beginning of February 2005: Committee set up under Article 5
- March/May 2005: Committee completes its work
- December 2006: Member states obliged to introduce facial images on passports
- July 2008: Member states obliged to mandatorily collect finger-print
Legal analysis questions the legality of 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.
See full-text of Statewatch: Legal analysis questions the legality of the proposed Regulation
Manipulation by the Council (25 governments) of the constitutional position
The Council was obliged under the Amsterdam Treaty (Article 67) to decide to move all or part of Title IV (TEC, Visas, Asylum, Immigration and other policies related to the Free Movement of Persons) from consultation to co-decision in regard to the European Parliament. Within the Council this would be accompanied by a shift from unanimity to QMV (qualified majority voting). Article 67.1 refers to "a transitional period of five years" - that is up to April 2004. "After five years" the Council had to make the above decision.
To suit its own ends the Council chose not to take this decision prior to 1 May 2004 (which might have been expected) but to delay the effect of its decision up to April 2005 - see Draft Decision (dated 23.11.04) and COR 1 (UK and Ireland to take part). Now the Council is offering to introduce this change in January providing the European Parliament adopts its report on biometric passports immediately.
The Council has also exploited the constitutional position to get through the controversial Directive on minimum standards on procedures in Member State for granting and withdrawing refugee status at the Justice and Home Affairs Council on 19 November. This is based on Article 63.1.d. which was intended to cover measures introduced within five years of the Amsterdam Treaty coming into force (ie: up to 1 May 2004). The draft of this Directive included a list of seven African countries as "safe countries of origin" for which asylum applications would have to be refused, in principle. But the Council put off trying to agree the list until next year by separating the list of African countries from the Directive with a provision allowing a later decision by QMV as they were unable to get it through now unanimously. A number of member states and the European Commission lodged strong objections to human rights records and democratic standards and even the country reports of those governments declaring countries "safe" were critical. The list, once agreed under QMV, will be binding on 24 member states (excluding Denmark). The Decision to put off the vote: 14383/04 (pdf) See Statewatch analysis (27 September 2004).
The Council thus want QMV where it cannot get unanimity as in this latter case and does not want QMV and co-decision where a more considered process might throw up fundamental problems endangering the whole initiative, as in the case of biometric passports.
Tony Bunyan, Statewatch editor, comments:
"The decision-making process introducing biometric passports, including the compulsory fingerprinting of hundreds of millions of EU citizens, has been a travesty and is devoid of any legitimacy. The views of the European Parliament will be ignored and national parliaments will have had little or no time to consider the revised proposal.
The costs and crucial implementing "details" are unknown and the EU has no legal powers to adopt the proposed Regulation.
The EU is fond of lecturing other states on the need for "democracy" and "freedom". In this instance those states might well ask where are the "democratic" standards in the way this decision has been made? They might also wonder what happened to "freedom" too - these Europeans are going to put their citizens' movements under mass surveillance, require them all to personally present themselves at an "enrolment processing centre" every ten years, compulsorily fingerprint them, put their data and biometrics on an EU-wide database, give all law enforcement agencies access to the database, and with little or no personal data protection that works in practice"
1. Council Draft Decision to give the European Parliament powers of co-decision over measures like introducing biometric passports but only after they have adopt it: Draft Decision (dated 23.11.04) and COR 1
2. The Council's letter to the parliament demanding report be adopted quickly: (Piris letter, pdf)
3: Draft Regulation on biometric passports, dated 23.11.04, pdf
4. Draft European Parliament report (28.10.04)
5. Earlier draft EP report by Ole Sorenson (24.2.04)
6. Demand by Italy, Germany, France, Greece, Spain, Malta, Lithuania, Poland and Slovenia for mandatory fingerprinting agreed by JHA Council on 25 October 2004
7. Earlier drafts of the proposed 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), 13186/04, 7.10.04 (pdf) and 12647/04, 1.10.04 (pdf)
8. European Commission Communication on biometric features in EU passports (18.2.04) Statewatch: The road to "1984"Part 2
9. Article 29 Data Protection Working Party opinion on biometrics (WP 80, pdf)
Both of these reports raises the issues of the legal basis of the measure:
10. Report from UK Parliament's Select Committee on European Scrutiny (28 October 2004) (link)
11. Report from UK Parliament's Select Committee on European Scrutiny (22 September 2004) (link)
12. Statewatch legal analysis: Legal analysis concludes: "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"
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. EU: Biometric documents take another step forward: Report on EU and G8
16. Biometrics - EU takes another step down the road to 1984, biometrics on visas and residence permits: Reports
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