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EU: Biometrics - from visas to passports to ID cards (1)

01 July 2005

- The EU does not have the powers to introduce biometrics for national ID cards
- The ICAO standard only requires a "facial image"
- USA not intending to introduce biometrics on its passports - only a digitised normal passport photo

This analysis as a pdf

On 11 July the UK Presidency of the Council of the European Union (the 25 governments) put forward a proposal that all ID cards in the EU should have biometrics (EU doc no: 11092/05 (pdf). See: UK Presidency proposes that all ID cards have biometrics - everyone to be fingerprinted

The document says that this is to meet ICAO standards (International Civil Aviation Organisation, a UN body). But does the ICAO say that fingerprints must be included on passports?

The European Commission's "Article 6 Committee" is charged with drafting "common security standards for national identity cards", in particular the "use of biometrics". But what is the "Article 6 Committee" and what powers does it have?

And how is the USA responding to the ICAO standards - it is going to fingerprint all passport holders?

Does the EU have the power to impose biometrics in national ID cards?

The striking factor is that under the current EC Treaty, there is no competence to harmonise ID cards, according to Article 18 EC. So how can a committee established to deal with harmonising visa formats and residence permit formats take up the task of adopting harmonised rules for ID cards? And how can the other issues listed in the UK paper be addressed at EU level?

And just as the UK government is trying to get through ID cards in the UK, the UK as the Presidency of the Council is trying to push through biometric ID cards across the EU - even though the EU lacks competence to introduce such laws.

The Nice Treaty, December 2000, amended Article 18 of Treaty establishing the European Communities (TEC) says:

"Provision facilitating the exercise of the right of citizens of the Union to move and reside within the territory of the member states

Article 18 TEC

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1; the Council shall act in accordance with the procedure referred to in Article 251.

3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection."

Article 18 "enshrines" one of the four "fundamental freedoms" of the European Union, namely the right to move and reside in any member states without being checked in doing so. The Article explicitly precludes adopting provisions on "passports, identity cards, residence permits or any other such document".

Yet in December 2004 the EU adopted a proposal to introduce biometric passports, under another doubtful power, a power which at that point only allowed for the European Parliament to be "consulted" (not the co-decision process in Article 251 mentioned in 18.2): See Statewatch EU governments blackmail European Parliament into quick adoption of its report on biometric passports and EU biometric passports and mandatory fingerprinting: Statewatch analysis questions legality of Re