28 March 2012
demand that the European Parliament rushes through mandatory
finger-printing and biometric passports
- is an "urgent" decision justified?
- why does the European Parliament not question the legal basis of the measure?
- why does the parliament's draft report accept the need for biometric passports?
The Council's letter to the parliament (Piris letter, pdf) making the request encloses the latest version of the draft proposal (Draft Regulation on biometric passports, dated 23.11.04, pdf). The letter seeks to emphasise that the original proposal was sent to the parliament in February and that the Action Plan adopted on 25 March called for the measure to be adopted by the end of the year - this is a bit rich as the Council itself substantially changed the measure on 25 October (making facial images and finger-prints mandatory). The Conference of Presidents in the European Parliament (the group leaders) will decide on Thursday 25 November, how to respond.
The European Parliament's Committee on Citizens's Freedom and Rights has agreed a report on the subject which is based on an old version of the proposal from the Council of the European Union - that is before the Council decided to change the scheme from mandatory facial images and optional fingerprinting to making both mandatory. In such circumstances, where a proposal is substantially changed, it is normally taken for granted that the Council would re-submit the revised proposal to be considered again at Committee level.
However, it is understood that "behind the scenes" the the Dutch Presidency of the Council of the European Union (the 25 governments) are pushing hard for a decision at its plenary session in Brussels on 1-2 December on the grounds that a decision is urgently needed to meet the deadline set by the USA under its Visa Waiver Programme for:
idendifiers that comply with applicable biometric identifying
standards established by the International Civil Aviation Organisation"
This begs a fundamental question as the ICAO standard says:
"Facial recognition was selected as the globally interoperable biometric for machine-assisted identity confirmation with MRTDs [Machine Readable Travel Documents]"
"Facial recognition" can be met by the simple digitisation of current passport photos - this is not a biometric. "Facial recognition", or "facial image" in the Council's draft, can refer either to simple digitisation or to a "facial scan" which is a biometric (the scan collects up to 1,820 characteristics from each individuals face). "Facial recognition" not fingerprints were selected as the global standard by the ICAO.
US demands can be met by the Council's old draft - mandatory facial image and optional fingerprinting - so how can the decision be termed "urgent"? The USA does not require fingerprints to be used in foreign countries passports.
More importantly the purported legal basis for the measure concerns control of the EU's external borders not the demands of a non-EU state.
Under the European Parliament's rules it is possible to take the current draft report from the Committee as a matter of "urgency" either at the request of the President of the parliament (following a request from the Council), a committee, a political group or at least 37 member of the parliament. The "debate" on an "urgency" measure is not a debate at all - it is limited to the mover, one speaker in favour, one speaker against and the chair of the committee/or the rapporteur. The decision to pass the measure under the "urgency" procedure could be announced on Wednesday 1 December and voted on the next day.
A previous decision of the Council to stick to a mandatory facial facial image and optional finger-printing was overturned at the Justice and Home Affairs Council on 25 October. Two governments - Austria and Finland - put down a scrutiny reserve. The Austrian reserve was almost immediately withdrawn and the Finnish reserve taken off by a vote in the Grand Committee of the Finnish Parliament on 11 November 11.
report - a hostage to fortune?
rapporteur supports the introduction of biometrics, provided
that citizens' rights and freedoms are always upheld"
which is of course quite impossible to reconcile, guarantee or enforce under the EU data protection regime.
Having accept, in principle, the need for biometric passports the report then makes a series of very good recommendations on how to protect "citizens' rights and freedoms" - but as the parliament was only being "consulted" on the measure its views will be completely ignored by the Council (as they are on every other issue under "consultation").
What is quite extraordinary about the Committee's report is that there is no consideration whatsoever of the legal basis of the measure - indeed if the parliament wanted to have any impact on the measure this should have been its strongest card. Article 18(3) EC (Nice Treaty) provides expressly that the ECs 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"
A Statewatch legal analysis (see full-text below) 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"
Tony Bunyan, Statewatch editor, comments:
"The excuse offered for rushing through biometric passports under the European Parliament's urgency procedure is that USA demands for biometric passports have to be met. But the US rules do not require fingerprinting only "facial recognition".
For the European Parliament to fail to even raise the legal basis of the measure in its report is very surprising. If it were to rush through such a far-reaching means of surveillance at the behest of EU governments to meet the demands of a non-EU state, the USA, without insisting on the time to consider the new mandatory finger-printing provision it would be a move they will be held accountable for - now and by future generations"
1. Draft European Parliament report (28.10.04)
2. Draft Council Regulation on standards
for security features and biometrics in passports and travel
documents issued by Member States (doc no: 13490/04,
3. Earlier drafts of above: 13186/04, 7.10.04 (pdf) and 12647/04, 1.10.04 (pdf)
4. European Commission Communication on biometric features in EU passports (18.2.04) Statewatch: The road to "1984"Part 2
5. 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:
from UK Parliament's Select Committee on European Scrutiny (28 October 2004) (link)
9. Report from UK Parliament's Select Committee on European Scrutiny (22 September 2004) (link)
10. 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"
proposal for a Regulation on biometrics documents for visas and
residence permits for third country nationals: COM
12. Article 29 Data Protection Working Party opinion on residence permits and visas (WP 96, pdf)
13. Demand by Italy, Germany, France, Greece, Spain, Malta, Lithuania, Poland and Slovenia for mandatory fingerprinting agreed by JHA Council on 25 October 2004
14. EU: Biometric documents take another step forward: Report on EU and G8
15. Biometrics - EU takes another step down the road to 1984, biometrics on visas and residence permits: Reports
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