26 August 2018
From the Commission to the Council
The proposal published by the Commission says that all EU Member States will be obliged to introduce a uniform format for their identity cards (if they issue them) and that they must include a facial image and two fingerprints - the latter being included, in the words of the Commission, "to further increase effectiveness in terms of security".
This measure flies in the face of the conclusions reached in the Commission's own impact assessment, which said that a proposal excluding mandatory fingerprinting would be "more efficient and proportional."
The Commission has made no attempt to justify the necessity and proportionality of what is a serious intrusion on the rights to privacy and data protection - biometric data qualifies as a "special category of personal data" under the EU's General Data Protection Regulation and requires "suitable and specific" safeguards.
The proposals were sent to the Council for the consideration of the Member States, whose representatives in the Working Party on Frontiers first examined the proposals on 4 May. They have been discussed on three further occasions since then.
The Council lowers the bar
Following initial discussions, the Bulgarian Presidency circulated a compromise proposal (10317/18, pdf) which maintained the requirement to include fingerprints and lowered the threshold so that Member States would be able to fingerprint children under the age of 12.
Article 3(5) of the Commission's proposal sets out two categories of persons who "shall be exempt from the requirement to give fingerprints" - "children under the age of 12 years" and "persons whose fingerprinting is physically impossible."
The Council subsequently changed "shall" to "may", thus making it possible for Member States to require the fingerprinting of children under the age of 12 and, paradoxically, of "persons whose fingerprinting is physically impossible".
A subsequent revised draft put together by the Austrian Presidency (10843/18, pdf) reworded the article in question, which currently says:
"Children under the age of 12 years may be exempt from the requirement to give fingerprints. Persons whose fingerprinting is physically impossible shall be exempt."
With this wording, it would be up to national governments to choose whether or not to require fingerprints from children under the age of 12.
Permitting the fingerprinting of such young children would go some way to aligning the identity cards proposal with other EU measures, such as on the Eurodac database and the Visa Information System. The possibility of fingerprinting children from the age of six and up is currently on the table in both proposals, which are currently under discussion.
The current draft of the identity cards proposal was due to be discussed at a meeting of the Council's Working Party on Frontiers on 16 July (link to pdf).
A Portuguese MP has also argued in favour of the approach that looks set to be adopted by the Council, in one of the two papers so far submitted by national parliaments to the European Parliament.
Constança Urbano de Sousa, a Socialist Party MP who between 2006 and 2012 was the Portuguese government's coordinator on justice and home affairs issues in the Council of the EU, asserts that "the exemption for collecting fingerprints for children under 12 should be optional, allowing Member States to maintain higher levels of document security."
It is for the moment unknown which Member States are leading the way in discussions, although it should be noted that some were initially outright opposed to any EU initiative in this area, as highlighted in the proposal's impact assessment:
"There are very mixed views on the scope for action at the EU level to promote harmonisation of ID cards. For instance, some of the national authorities (primarily Ministries of Interior in AT,CZ, HR, DK, NL, MT and PL explicitly stated they did not see the necessity of a legislative measure on ID cards."
The same document mentions only Cyprus and Estonia as advocating "measures to lay down minimum requirements with regard to key security features and the inclusion of biometrics to help prevent fraud."
The legal basis of the proposed measures is Article 21 of the Lisbon Treaty, which gives all Union citizens the "right to move and reside freely within the territory of the Member States" (subject to any adopted limitations and conditions) and says that the Parliament and the Council "may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1."
Thus it may seem that discussions between Member States' officials should be taking place in the Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP), which is responsible for "preparatory work in the legislative procedures of the Council in the field of fundamental rights, citizens rights and free movement."
Yet so far the only Council preparatory body that has discussed the proposals is the Working Party on Frontiers:
"The Working Party on Frontiers deals in particular with measures relating to the crossing of external and internal borders of the Schengen states.
This includes questions related to the EU agency for the management of external borders, Frontex. A special formation of the working party deals with travel documents and questions related to false and authentic documents online (FADO)."
In the European Parliament, meanwhile, the civil liberties committee (LIBE) will be handling the file, with Gérard Deprez from the liberals and democrats (ALDE) group as rapporteur.
Second Council Presidency compromise proposal: Note from: Presidency to: Working Party on Frontiers: Proposal for a Regulation of the European Parliament and of the Council on strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right to free movement (10843/18, LIMITE, 6 July 2018, pdf)
First Council Presidency compromise proposal: Note from: Presidency to: Working Party on Frontiers: Proposal for a Regulation of the European Parliament and of the Council on strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right to free movement (10317/18, LIMITE, 20 June 2018, pdf)
Analysis: Fingerprints in identity cards: unnecessary and unjustified (pdf)
Statewatch News Online: Prepare to be fingerprinted: new EU proposals foresee mandatory biometrics in national ID cards
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