28 March 2012
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Statewatch Analysis
The
Legality of the Regulation on EU Citizens' Passports
[Updated 26 November 2004]
Introduction
The following analysis is updated
from a spring 2004 analysis of the legality of the proposed Regulation
on EU citizens' passports. The previous analysis concerned the
initial proposal, which did not entail mandatory fingerprinting
of all EU citizens holding passports, and concluded that the
proposal exceeded the legal powers conferred upon the EC by the
EC Treaty.
The updated analysis concludes that the revised Regulation, which would require mandatory fingerprinting, still exceeds the powers conferred upon the EC. In fact, this conclusion is more manifest in light of the Council's obvious concern to ensure that the Regulation is adopted as soon as possible to satisfy the demands of the United States government.
Furthermore, the updated analysis concludes that mandatory fingerprinting of all EU citizens holding a passport would violate the proportionality principle of EC law and the protection of the right to private life guaranteed by EC law.
The 'Legal Base' Issue
The proposal to adopt a Regulation
regarding security features in EU passports on the sole 'legal
basis' of the EC's powers to regulate external border controls
appears to exceed the EC's powers.
The starting point for this 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…'.
The Council legal service's Opinion on the legality of the passport
proposal (Council doc. 6963/04, 3 March 2004) also recognizes
that Article 18(3) is the starting point for the analysis.
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. Instead, there have been
Resolutions of national ministers on this issue (see further
details of these Resolutions in the Council legal service's analysis).
In its judgment on the validity of the 1998 Directive banning
tobacco advertising, the Court of Justice considered a similar
clause which specified that the EC's public health powers could
not be used to harmonise national health laws, and stated that
'[o]ther articles of the Treaty may not…be used as a legal
basis in order to circumvent the express exclusion of harmonisation
laid down in Article 129(4) of the Treaty' (para. 79 of the judgment
in Case C-376/98, Germany v EP and Council). Ultimately
the Court ruled that the Directive being challenged in that case
was indeed invalid, as the EP and Council had wrongly used the
'legal base' giving the EC power to adopt internal market laws.
It follows that the proposed legislation containing "provisions
on passports" would equally exceed the EC's powers unless
another "legal base" in the Treaty conferring powers
on the EC were sufficient to confer powers to harmonise the security
features of passports.
The Commission argues that the power to adopt measures on external
border controls is sufficient. The Council Legal Service agrees
with the Commission as regards some of the measures in the Commission's
proposal. The analysis of the two institutions is legally flawed.
It is true that passports are checked at the EU Member States'
external borders, but it is equally true that they are used within
the territory of the Community to prove the nationality of persons
who have crossed internal EC borders in order to exercise free
movement rights conferred by EC law, and outside the territory
of the Community to prove nationality to the authorities of non-Member
States.
On the first point, EC free movement legislation and case law
expressly refers to the use of a passport or equivalent document
as a condition for exercising free movement rights (see in particular
the 1999 judgment of the Court of Justice in Case C-378/97 Wijsenbeek,
and Arts. 2 and 3 of each of Directives 68/380 and 73/148). On
the second point, the Commission expressly admits that one of
the reasons for its proposal is the change in US policy regarding
passports, and it is clear that one of the main purposes of the
proposal is to ensure that US authorities are more willing to
accept passports issued by the EU Member States. Furthermore,
passports are also frequently used in practice or legally required
to be used as proof of identification in various contexts even
inside the territory of a single Member State. In each of these
contexts, the security features of the passport may be significant;
in fact the Commission admits that the security features of Member
States' passports are a particularly important issue for the
US government. It appears that this analysis is shared by the
Council; indeed it appears that the main reason for the Council
potentially asking the European Parliament to use an 'urgency'
procedure in its vote on the passports proposal is to meet a
deadline set by the US government. Therefore it appears from
the Council's actions during the legislative procedure that the
aim of the proposed legislation is particularly to ensure the
acceptance of EU Member States' passports by the United States
authorities for the purpose of visa waiver.
It follows that as crossing external borders is only one of four
contexts where the security features of passports are an essential
issue, and that the acceptability of EU Member States' passports
to non-Member States appears to be the predominant aim of this
legislation, the proposed Regulation cannot be based on the EC's
external borders powers alone. In fact, given the express exclusion
of EC powers to regulate the free movement aspects of passports,
and the absence of any powers in the EC Treaty for the EC to
regulate any aspect of EU citizens' crossings of borders of non-EU
countries or the use of passports within a single Member State
for identity purposes, 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.
This analysis applies also to the adoption of the anticipated
proposal for legislation establishing a 'European Passport Register'
which the Commission refers to in its explanatory memorandum.
Such a measure would obviously be a 'provision on passports'
and furthermore would also concern 'any other such document'
if it applied instead or additionally to other travel documents,
as the Commission further suggests. So it would equally exceed
the EC's powers, for the reasons discussed above, although it
might be arguable that the register could be adopted pursuant
to the EC's external borders powers if it was confined to the
exclusive use of the Member States' external border authorities.
In any event, since it would be impossible to confine the use
of the security features of passports exclusively to the Member
States' external border authorities, this argument could not
be used to justify the legality of the present proposal for a
Regulation.
The principle of proportionality
EC legislation must conform to
the principle of proportionality (Article 5 EC, third paragraph)
to be valid. It might be argued that the Commission's initial
proposal conformed to the proportionality principle, but there
are far greater doubts that the latest version of the legislation
(Council document 15139/04) conforms to the principle. The key
change is the decision to fingerprint all EU citizens who need
a passport. This will entail considerable costs for citizens
and Member States' administrations and considerably alter the
process of obtaining a passport in most Member States.
The doubts about the proportionality principle are particularly cogent in light of the position of the US government and the ICAO standards related to document security, which do not require fingerprinting for the purposes of travel document security. The Commission's initial proposal expressly accepted that the security and identity checking objectives and objectives of meeting US and ICAO standards could be achieved without making fingerprint data mandatory. In light of this position it is difficult to justify the validity of mandatory fingerprinting in light of the proportionality principle.
Human Rights
It is clear that the taking and
storing of fingerprints is a breach of the right to private life
as set out in Article 8 of the European Convention of Human Rights,
which can in certain cases be justified in the circumstances
set out in Article 8(2) of that Convention (decision of the European
Commission of Human Rights in Friedl v Austria, 19 May
1994). However, it seems clear from this decision that the taking
and storage of fingerprints is justifiable particularly in the
context of a prior criminal conviction or actual or potential
prosecution against persons who have broken the law. There is
nothing to suggest that fingerprinting the entire population
(who hold a passport) can be considered justifiable interference
with Article 8 rights.
This interpretation is bolstered by the breach of the principle of proportionality entailed by mandatory fingerprinting, as described above, since proportionality is also an element in assessing whether an interference with the right to private life set out in Article 8 ECHR is justified. Since more limited measures falling short of mandatory fingerprinting would be sufficient to ensure that Member States and non-Member States alike could check the security of documents and the identity of their holder, as confirmed by the Commission, the position of the United States, and the ICAO standards, it is not 'necessary in a democratic society' (as required by Article 8(2) ECHR) to fingerprint all EU citizens who hold passports.
Conclusion
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 furthermore
exceeds any other powers conferred upon the Community.
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.
Prepared by Dr. Steve
Peers, Professor of Law, University of Essex
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