5 Security features and biometrics in
|Draft Council Regulation on standards for security features and biometrics in EU citizens' passports
|Legal base||Article 62(2)(a) EC; consultation; unanimity
|Basis of consideration||Minister's letter of 18 August 2004
|Previous Committee Report||HC 42-xxx (2003-04), para 1 (9 September 2004)
|To be discussed in Council||25/26 October 2004
|Committee's assessment||Legally and politically important
|Committee's decision||For debate in European Standing Committee B (decision reported on 9 September)
5.1 In December 2003, the European Council invited the Commission
to make a proposal for the introduction of biometric identifiers
5.2 By 26 October 2004, countries which wish to continue
to obtain the benefit of a waiver of the requirement for a visa
to enter the United States must have a programme to issue their
nationals with machine-readable passports that are tamper-resistant
and incorporate biometric identifiers which comply with the biometric
identifier standards established by the International Civil Aviation
5.3 Article 62(2)(a) of the Treaty establishing the
European Community (the EC Treaty) requires the Council to adopt:
"measures on the crossing of the external borders
of the Member States, which shall establish standards and procedures
to be followed by Member States in carrying out checks on persons
at such borders."
5.4 A Protocol to the EC Treaty provides that the
UK is not to take part in the adoption of, or be bound by, any
measure made under Title IV of the Treaty (visas, asylum, immigration
and other policies related to the free movement of persons) unless
the UK gives notice that it wishes to "opt into" the
measure. Article 62 is part of Title IV.
5.5 The draft Regulation proposed by the Commission
has two main purposes: first, to make EU citizens' passports more
secure; and, second, to establish a reliable link between a passport
and its genuine holder by incorporating biometric identifiers.
The main provisions of the draft Regulation are:
- Passports issued by Member
States must comply with minimum security standards on, for example,
the type of paper to be used, printing and issuing techniques,
and protection against copying.
- The passport must include a facial image and,
if a Member State wishes, it may include fingerprints.
- The Regulation is to apply to ordinary and official
passports, short-term passports and travel documents issued in
place of passports.
5.6 Passports are checked mainly when the EU's external
borders are being crossed. In the Commission's view, Article 62(2)(a)
of the EC Treaty is the appropriate base for the proposed Regulation.
5.7 In March, the Parliamentary Under-Secretary of
State at the Home Office (Caroline Flint) told us that it was
the Government's provisional view that Article 62(2)(a) was not
an appropriate legal base for the measure, but she did not say
why. We asked the reasons for the Government's doubts and held
the document under scrutiny pending the Minister's answer.
5.8 In July, the Minister told us that the Government
had now decided that Article 62(2)(a) was an appropriate legal
base for the draft Regulation. It had also decided to opt into
the measure. The Minister explained that:
"Article 62(2)(a) provides for measures establishing
standards and procedures to be followed by Member States in carrying
out checks on persons at external borders. Our initial concern
with the use of this Article for a measure setting out standards
for security features and biometrics in EU passports was that
it was not a measure providing for such standards and procedures.
Article 62(2)(a) is the legal base for measures requiring, for
example, that external borders may only be crossed at authorized
crossing points and during fixed hours and that border authorities
verify the travel documents of persons crossing such borders.
A measure prescribing the security features for EU passports seemed
very different from such paradigm Article 62(2)(a) measures.
"Having considered the matter in more detail,
however, we have decided that Article 62(2)(a) can be used for
this measure. This is on the basis that there is a need for external
border authorities to have verification equipment at the external
border crossing points that is capable of reading electronically
stored data in EU passports. This equipment needs to be able to
read the data in all EU passports and this requires compatibility
of the data stored and the technical specifications. On this basis
the measure proposed is of direct relevance to the exercise of
controls at the external border."
5.9 When we considered the document on 21 July, it
seemed to us that the objectives of the draft Regulation are only
indirectly related to the establishment of standards and procedures
for Member States to follow in making checks at the borders. Moreover,
in our view, if the aim were to ensure compatibility of equipment
to check passports, a specific measure for that purpose would
appear more appropriate. We were not yet persuaded, therefore,
that it would be proper to use Article 62(2)(a) as the legal base
for the proposed Regulation. Accordingly, we asked the Minister
to tell us if she considered that there were further arguments
which should be taken into account.
5.10 The Minister replied on 18 August. She told
"The justification for using Article 62(2)(a)
for this proposal is the need to have common verification equipment
at external crossing points on the borders of Member states for
use as part of the procedure for carrying out checks on EU citizens
crossing the borders. [The] equipment has to be capable of reading
the electronically stored data on the passports of all Member
States. This in turn requires harmonisation of the machine readable
data stored on EU passports and the technical conditions and specifications
relating to such storage. Without such harmonisation it would
not be possible to standardise the verification equipment to be
used to carry out checks on EU citizens at external border crossing
points. So harmonising the security features and technical specifications
for EU passports is part of the process of establishing the procedure
for carrying out checks on EU citizens at the external border,
a matter which falls within Article 62(2)(a).
"We accept that this is not a straightforward
use of Article 62(2)(a), hence our initial concern over the use
of the Article. For the reasons set out above, however, we consider
the proposal is sufficiently related to the standards and procedures
to be followed in carrying out checks on EU citizens at external
border crossing points to justify it having been brought forward
under Article 62(2)(a)."
5.11 When we considered the Minister's letter on
8 September, we concluded that the precise words of Article 62(2)(a)
are crucial: they provide for measures to establish standards
and procedures to be followed by Member States "in carrying
out checks". So any proposed measure must relate to the carrying
out of the checks themselves and only to that process. In our
view, the specification of the contents of passports is distinct
from the checking process. We were not persuaded, therefore, that
Article 62(2)(a) is the appropriate legal base for the proposed
5.12 It is, in our view, vital that the Commission
and Council act lawfully in proposing and approving legislation.
Because we retained strong doubts about the appropriateness of
Article 62(2)(a) as the legal base for this proposal, we recommended
the document for debate in European Standing Committee B.
The Minister's letter of 8 October
5.13 On 8 October, the Minister wrote to tell us
that it is likely that the draft Regulation will be adopted at
the meeting of the Justice and Home Affairs Council on 25/26 October.
The United Kingdom will probably be excluded from consideration
of the item. The Minister explains that:
"this regulation [is] classified as a measure
building on border provisions of the Schengen acquis in which
the UK does not take part. On those grounds it explicitly
excludes the UK from participating in its adoption and [provides
that the UK]is not bound by it or subject to its application.
We disagree with this interpretation of the Treaty and have notified
the [Commission] of our intention to participate. However, we
are certain that our notification will be deemed to be without
legal effect and the UK will continue to be excluded from participating
in the measure and its adoption. Because we are excluded we will
not participate in its adoption at the Council and will not have
a say in amendments to the proposal.
"I know that you remain if the view that Article
62(2)(a) is not an appropriate legal base for this proposal
and note that you have recommended [it] for debate in Standing
Committee B currently scheduled for 3 November. I welcome the
opportunity to debate EU proposals with you and of course stand
ready to discuss this particular measure. I am however concerned
that there is now no real avenue for taking your concerns further
within the EU Council and that unfortunately, on this occasion
the Government will not be able to influence the outcome of the
5.14 We are grateful to the Minister for telling
us that it is likely that the United Kingdom will be ruled to
be ineligible to take part in the discussion and adoption of the
draft Regulation at the Council meeting later this month. This
does not, of course, bear on the merits of our concern about the
use of Article 62(2)(a) of the EC Treaty as the legal base for
the measure. But, if the United Kingdom were to be excluded from
the Council's discussion, the scrutiny reserve would be of no
effect and the value of a debate in European Standing Committee
B would be greatly diminished. It follows that, if the Minister
informs us that she has received confirmation that the Government
will be excluded from the Council's discussion and that the Regulation
is not to apply to the United Kingdom, we shall clear the document
from scrutiny and withdraw our recommendation for the debate by
the Standing Committee. Pending such confirmation from the Minister,
our recommendation stands.