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EU: biometric passports and mandatory fingerprinting: Statewatch legal analysis questions the legality of the proposed Regulation

01 November 2004

- "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"

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.

Statewatch Analysis: The Legality of the Regulation on EU Citizens' Passports (full-text as a pdf)
Statewatch Analysis: The Legality of the Regulation on EU Citizens' Passports (full-text as html)

Documentation

1. Council Legal Service Opinion on legal basis for biometric passports (doc no: 6963/04) (pdf)

2. The Council's letter to the parliament (Piris letter, pdf)
3. Draft Regulation on biometric passports, dated 23.11.04, pdf

4. Draft European Parliament report (28.10.04)

5. Draft 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)
6. Earlier drafts of above: 13186/04, 7.10.04 (pdf) and 12647/04, 1.10.04 (pdf)
7. European Commission Communication on biometric features in EU passports (18.2.04) Statewatch: The road to "1984"Part 2
8. Article 29 Data Protection Working Party opinion on biometrics (WP 80, pdf)

9. European Parliament: Debate in the Committee for Citizens' Freedoms and Rights (25 October): The Coelho draft report (pdf)
10. Proposed amendments Coelho report (pdf)

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