Explanatory Memorandum to COM(2018)358 - EU Emergency Travel Document - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)358 - EU Emergency Travel Document. |
|---|---|
| source | COM(2018)358  |
| date | 31-05-2018 |
1. CONTEXTOFTHEPROPOSAL
• Reasons for and objectives of the proposal
The right to equal treatment regarding consular protection is one of the specific rights granted by the Treaties to EU citizens on the basis of their EU citizenship. EU citizens are entitled to seek help from the embassy or consulate of any EU Member State if they need assistance outside the EU, and there is no embassy or consulate from their own Member State to help them (that is, if they are ‘unrepresented’1). Member States must assist unrepresented EU citizens on the same conditions as they assist their own nationals. This right, enshrined in Articles 20(2)(c) and 23 of the Treaty on the Functioning of the European Union (TFEU) and in Article 46 of the Charter of Fundamental Rights of the European Union (‘the Charter’), is an expression of EU solidarity and one of the practical benefits of being an EU citizen. It is a
good example of how the EU can be brought closer to its citizens, which is a priority of the Commission2.
One form of assistance provided to unrepresented citizens is the issuance of emergency travel documents (‘ETDs’). ETDs are documents issued to citizens when their passports or travel documents have been lost, stolen or destroyed or are temporarily unavailable. In 1996, Decision 96/409/CFSP3 introduced a common format emergency travel document (the ‘EU ETD’), to be issued by Member States to unrepresented EU citizens in third countries (that is, countries outside the EU).
ETDs constitute the most frequent type of assistance provided by Member States to unrepresented EU citizens in distress in third countries4 and are indispensable in helping these citizens return home safely. In this context, EU citizens can rely on the protection deriving from their status as EU citizens in third countries.
It is now 20 years since the introduction of EU ETDs, and there is a need to update the rules of Decision 96/409/CFSP and the format of the EU ETD. Recent changes to EU rules on consular protection are not reflected in Decision 96/409/CFSP, and the EU ETD in its current form is not adapted to the current global security environment.
One issue of particular concern is that the current EU ETD format is not sufficiently future-proof. It does not take account of improvements in the security of travel documents and offers insufficient protection against fraud and counterfeits. This has led to fragmentation in the use
See also Article 6 of Council Directive (EU) 2015/637 of 20 April 2015 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and repealing Decision 95/553/EC (OJ L 106, 24.4.2015, p.
1).
https://ec.europa.eu/commission/sites/beta-political/files/juncker-political-guidelines-speech_en.pdf Decision 96/409/CFSP of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (OJ L 168, 6.7.1996, p.
4).
According to the 2017 EU Citizenship Report (COM(2017) 30 final/2), the ‘issuance of emergency travel documents is in practice the most frequent form of assistance given by the MSs to unrepresented EU citizens (more than 60 % of all cases)’. In absolute terms, the number of EU ETDs issued is relatively small. The annual numbers have been estimated at around 320 outside the EU and another 250 within the EU. It is estimated that another 400-500 unrepresented citizens annually are issued national ETDs rather than the EU ETD format. However, the figures for EU ETDs are fragmentary and probably underestimated, as currently not all Member States collect precise statistical data on EU ETDs
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of the EU ETD across the Union. Some Member States no longer use the common ETD format due to concerns over its security features.
Moreover, Decision 96/409/CFSP is not aligned with Council Directive (EU) 2015/6375. This Directive, which Member States were obliged to transpose by 1 May 2018, governs consular protection for unrepresented citizens in general, and thus also contains rules applicable to the issuance of EU ETDs. Finally, certain design features of the common ETD format (for example the lack of space to affix any necessary third-country transit visa) make it less likely to be accepted by third countries.
This proposal follows the invitation of the Council to make a proposal for the development of a new EU ETD that contains security features in line with current practices, updating the
features described
in Decision 96/409/CFSP6.
In its 2016 action plan on document security of December 20167 and its 2016 Communication on ‘Enhancing security in a world of mobility: improved information exchange in the fight against terrorism and stronger external borders’8, the Commission addressed travel document fraud, highlighted the need for secure travel documents and committed to exploring possibilities to enhance the security features of ETDs. Moreover, in the 2017 Citizenship Report9, the Commission made a commitment to explore possibilities to modernise the rules on ETDs for unrepresented EU citizens, including the security features of the EU common format ETD, to guarantee that citizens can effectively exercise their right to consular protection.
In its Council conclusions on the action plan10 and the 2017 Citizenship Report11, the Council emphasised the importance of secure travel and identity documents to tackle the phenomenon of travel document fraud. The conclusions also called on the Commission to ensure appropriate follow-up.
The European Parliament, in its resolution on the 2017 Citizenship Report12, called on the Commission to make a proposal for a new, more secure format for the EU ETD.
The Commission Work Programme 201813 includes the review of the proposal for a Council directive to replace the Decision on the establishment of an emergency travel document (REFIT). The aim of the review is to modernise the rules on emergency travel documents for unrepresented EU citizens, including the security features of the EU common format, to
Council Directive (EU) 2015/637 of 20 April 2015 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and repealing Decision 95/553/EC (OJ L 106, 24.4.2015, p.
1).
data.consilium.europa.eu/doc/document COM(2016) 790 final. COM(2016) 602 final. COM(2017) 30 final/2.
Council Conclusions on the Commission action plan to strengthen the European response to travel document fraud adopted on 27 March 2017 data.consilium.europa.eu/doc/document
Council Conclusion on the EU Citizenship Report 2017 adopted on 11 May 2017 data.consilium.europa.eu/doc/document
European Parliament resolution of 12 December 2017 on the EU Citizenship Report 2017: Strengthening Citizens’ Rights in a Union of Democratic Change
www.europarl.europa.eu/sides">www.europarl.europa.eu/sides
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guarantee that citizens can effectively exercise their right to consular protection. By enhancing the security features of the EU ETD, the risk of counterfeiting and forgery would be reduced, thereby combating fraud as well as the misuse of travel documents. In turn, this should support the fight against terrorism and organised crime.
• Consistency with existing policy provisions in the policy area
Every citizen of the EU situated in the territory of a third country in which his or her Member State of nationality is not represented is entitled to consular protection by any Member State on the same conditions as the nationals of that Member State.
To lay down the cooperation and coordination measures necessary to facilitate consular protection for unrepresented citizens, the Council adopted, in 2015, Directive (EU) 2015/637. Directive (EU) 2015/637 contains general rules on measures to facilitate consular protection for unrepresented citizens. Its Article 9(f) states explicitly that it also applies to the issuance of emergency travel documents.
One of the aims of this proposal is to fully align the specific rules applicable to EU ETDs with Directive (EU) 2015/637. Where required, this proposal further specifies the general rules contained in Directive (EU) 2015/637, for example on the cooperation and coordination between Member States when processing an EU ETD application. The proposed directive does not alter any rights established by Directive (EU) 2015/637.
• Consistency with other Union policies
Secure and reliable documents are an important element of border management.
2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY
• Legal basis
This proposal is based on Article 23 TFEU, as is Directive (EU) 2015/637 on consular protection. Pursuant to paragraph 2 of this provision, the Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate consular protection for unrepresented EU citizens. This provision applies to all Member States.
The proposal aims to establish the measures necessary to facilitate consular protection for the most frequent type of consular assistance provided to unrepresented citizens, namely the issuance of emergency travel documents. This objective is to be achieved by establishing a standardised procedure of cooperation between the Member States for the issuance of emergency travel documents in a uniform format based on improved security features. This will allow citizens to exercise their right to consular protection effectively and in a more secure environment.
• Subsidiarity (for non-exclusive competence)
The issuance of EU ETDs entails a cross-border dimension as it concerns the protection offered by a Member State to citizens of another Member State.
The current format for EU ETDs as laid down by Decision 96/409/CFSP needs to be updated. Changes to this format can only be proposed by the Commission. An EU ETD with updated security features will improve the overall security of the EU, as these documents allow those
holding them to cross EU borders. Furthermore, greater use of the uniform format and harmonised security features will increase recognition by third countries. Such objectives cannot be achieved by Member States alone.
Without an updated uniform EU ETD format, Member States may increasingly rely on national ETDs to comply with their Treaty obligation to offer consular protection to unrepresented EU citizens under the same conditions as for their own nationals. This creates a risk of fragmentation among Member States in terms of the documents being used and the procedures being followed. It also creates a risk of ‘forum shopping’ (where citizens seek emergency travel documents from one Member State and not another because the documents of certain Member States are more widely recognised, cheaper or easier to obtain than those of other Member States).
• Proportionality
Article 5 of the Treaty on European Union states that action by the Union must not go beyond what is necessary to achieve the objectives of the Treaty. The form chosen for this EU action must enable the proposal to achieve its objective and be implemented as effectively as possible.
This proposal makes the use of EU ETDs compulsory for unrepresented citizens outside the EU. Member States would be obliged to issue an EU ETD to unrepresented citizens who fulfil the applicable conditions. The proposal covers situations already provided for by the legal obligation to provide consular protection.
The proposal improves the security features of the EU ETD to the standard expected by Member States and third countries. It does so by relying on existing standards established in the context of the uniform format for visas14. The proposal therefore allows for equipment that is already available in Member State embassies and consulates to be used for EU ETDs, limiting the need for new equipment and training.
• Choice of the instrument
In line with Article 23(2) TFEU, the proposed instrument is a directive.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
Contents
- CONSULTATIONS
- This proposal follows the invitation of the Council to make a proposal for the development of a new EU ETD that contains security features in line with current practices, updating the
- 7 8 9 10
- 16 17
- Article 6 provides that Member States may introduce or retain more favourable provisions provided they are compatible with the Directive
ANDIMPACTASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The evaluation of Decision 96/409/CFSP found that the issuance of EU ETDs has been effective in providing genuine help to EU citizens in distress in third countries. The evaluation also found that EU ETDs have provided a practical demonstration of the benefits of EU citizenship, and are expected to remain relevant in future.
However, the legal framework for EU ETDs should be adapted to address certain implementation issues identified by the evaluation. In particular, these adaptations should aim to ensure consistency with Directive (EU) 2015/637 and to improve the security features of the EU ETD in the context of changing security needs. The key problems identified by the evaluation are the fragmented approach to the issuance of ETDs (not all Member States use
Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas as amended by Regulation (EU) 2017/1370 of the European Parliament and of the Council of 4 July 2017
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the ETD format established by Decision 96/409/CFSP) and their perceived reduced acceptability, legal uncertainty, enforceability, and concerns about the security of the ETD common format. This proposal aims to address the issues identified by the evaluation of Decision 96/409/CFSP.
• Stakeholder consultations
The consultation process combined tools of a more general scope, such as a public consultation, with more targeted consultations and surveys of Member States and stakeholder groups. Some of the stakeholders that were consulted included Member States’ competent authorities; Member States’ missions in third countries; third countries’ authorities; trade associations (including tour operators, airline companies and insurance companies); citizens and citizens’ groups; and experts from the European Commission, the European External Action Service and the Council Secretariat. These stakeholders’ views were taken into consideration in the preparation of this proposal.
Detailed information on the results of the consultation process can be found in Annex 2 of the impact assessment accompanying this proposal.
• Collection and use of expertise
The Commission, under the relevant framework contract, commissioned a study on ‘the evaluation of an existing EU instrument on a European emergency travel document and impact assessment’.
• Impact assessment
The impact assessment supporting this proposal received a positive opinion by the Regulatory Scrutiny Board, with some suggestions for improvement15. The impact assessment considered a number of possible policy options: maintenance of the status quo; adopting non-binding measures only; revoking Decision 96/409/CFSP and doing away with EU ETDs; new legislation making EU ETDs compulsory for all EU citizens; new legislation establishing an EU ETD with enhanced security features; and new legislation establishing an EU ETD with biometrics.
The options of maintaining the status quo or doing away with EU ETDs were considered unsatisfactory and inefficient in achieving the objectives. Making EU ETD compulsory for all EU citizens was considered disproportionate. Soft, non-binding measures were also considered unsatisfactory if implemented on their own. However, soft measures should accompany the option ultimately chosen to assist in its implementation.
Of the two options requiring new legislation, the option to establish an EU ETD with enhanced security features was deemed more preferable than to establishing an EU ETD with biometrics, primarily for reasons of cost-efficiency and proportionality. In particular, while the former option would make use of existing equipment used for printing the uniform format for visas, the latter would require the installation of equipment capable of printing biometric information. This would likely result in significant costs for Member States and citizens.
The preferred option is expected to bring benefits in several areas. Unrepresented EU citizens in need would be able to obtain an EU ETD from all Member States’ consulates according to a streamlined procedure based on Directive (EU) 2015/637. They would benefit from a right
The opinion of the Regulatory Scrutiny Board is available at:
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to an EU ETD in more situations than envisaged under the current EU ETD Decision. They would also benefit from clearer issuance procedures and deadlines.
Member States and the EU would benefit from the increased security features of the new EU ETD. Increased use of the new document has the potential to increase its acceptance by third countries, and the adoption of up-to-date standards for machine-readability should result in easier border processing at the borders. Better recognition by third countries would help unrepresented citizens save money by reducing the need for additional hotel stays and alternative travel arrangements. A more secure EU ETD format, multilingual and produced at EU-level, can also be a cost-efficient alternative for Member States considering replacing any outdated national ETDs. Finally, the Commission would be able to enforce the new EU ETD legislation and monitor its implementation.
Regulatory
fitness and simplification
The initiative is included in the Commission Work Programme 2018 under the Regulatory Fitness and Performance Programme (REFIT) initiatives in the Area of Justice and Fundamental Rights Based on Mutual Trust16. In this context, the Commission has looked at opportunities to simplify and reduce burdens.
The proposal aims to streamline the procedure for issuing EU ETDs, leading to a reduced burden for public administrations and citizens in distress due to the loss of travel documents. At the same time, the proposal increases the security features of the EU ETD, as it can be used to enter the territory of the EU. To that end, the proposal relies on existing equipment and expertise in the context of the visa sticker. A uniform, more secure EU ETD can reduce costs and inconveniences for citizens and businesses (for example, airline companies) by improving acceptance by third countries and processing at the EU’s external border.
The simplification elements are estimated at EUR 93,000 annually for citizens. Given the lack of reliable data, the potential savings for businesses and border authorities have not been quantified.
• Fundamental rights
This proposal implements the fundamental right of EU citizens to diplomatic and consular protection, guaranteed by Article 46 of the Charter.
The proposal also affects Article 7 of the Charter on the respect of private life and Article 8 on the right to the protection of personal data. Processing of the personal data of citizens, including collection, access and use of personal data, affects the right to privacy and the right to protection of personal data under the Charter. Interference with these fundamental rights
must be justified17.
https://ec.europa.eu/info/sites/info/files/cwp_2018_annex_ii_en.pdf
The Court of Justice of the European Union set out the criteria for justification of such interference in the context of Council Regulation (EC) No 2252/2004 in Case C-291/12 Schwarz v Stadt Bochum, ECLI:EU:C:2013:670. It recalled that limitations to Charter rights must be ‘provided for by law, respect the essence of those rights, and, in accordance with the principle of proportionality, [be] necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. It also found that the objective ‘to prevent the falsification of passports and the
Regarding the right to the protection of personal data, and data protection including data security, the relevant EU rules18 apply. No derogation from the data protection regime is envisaged. Clear rules, conditions and safeguards must be implemented by Member States in line with the EU data protection rules as appropriate. This initiative does not provide for the legal basis for the storage of data collected thereunder or for the use of such data for purposes other than verifying the identity of the applicant, printing the EU ETD sticker and facilitating travel of the person concerned. Any such storage of data would need to comply with the data protection rules as laid down in Regulation (EU) 2016/679. The compulsory inclusion on the sticker as well as transfer, to the Member State of nationality for the purposes of verifying the applicant’s identity, of the applicant’s personal data, including facial image, will be implemented with an adequate set of safeguards.
4. BUDGETARYIMPLICATIONS
The proposal has no implications for the EU budget.
5. OTHERELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Taking into account the limited number of EU ETDs issued by Member States, it is important to adopt a realistic approach to monitoring the implementation of the proposal and not to overburden national authorities. Member States are asked to provide the Commission with information on a limited number of key indicators on a yearly basis. If need be, it can be decided to collect additional information. After five years, the Commission will evaluate the implementation of the directive.
Detailed
explanation of the specific provisions of the proposal
Chapter I (Articles 1 and 2) describes the subject matter of the proposal and sets out a number of definitions. The proposal lays down the conditions and procedure for unrepresented citizens to obtain an EU ETD, and establishes a uniform format for such documents. It uses the same definition of ‘unrepresented citizen’ as Directive (EU) 2015/637.
Chapter II sets out in Article 3 the conditions to be issued with an EU ETD. Generally, an EU ETD should be issued to unrepresented citizens whose passport or travel documents are, for different reasons, unavailable, for a single journey to the citizen’s Member State of nationality or residence. The document should be issued after the citizen’s Member State of nationality has been consulted by the assisting Member State.
Article 4 describes the procedure for issuing an EU ETD, including the consultation between the Member State assisting the unrepresented citizen and the citizen’s Member State of nationality, as well as the applicable deadlines. Article 4 also sets out exceptions in duly justified cases or in crisis situations. It also contains security measures.
According to Article 5, an EU ETD should be valid for barely longer than the minimum period required for the return journey.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016,
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Article 6 provides that Member States may introduce or retain more favourable provisions provided they are compatible with the Directive
In particular, Article 7 lays down possible additional situations in which Member States can issue an EU ETD. Recipients of an EU ETD other than unrepresented EU citizens in third countries could be, for example, accompanying family members, a Member State’s own citizens or residents, and represented EU citizens of another Member State. Member States can also decide to issue EU ETDs within the EU.
Chapter III sets out in Article 8 the uniform format to be used for EU ETDs, consisting of a uniform form and sticker. The relevant data on the recipient of an EU ETD is printed on the sticker, which is then affixed to the form.
Article 9 lays down the procedure used to issue additional technical specifications for EU ETDs. These specifications can be secret if necessary.
Article 10 concerns Member State bodies that are responsible for printing EU ETDs. These bodies must be communicated to the Commission and other Member States.
Article 11 contains rules on the committee tasked with assisting the Commission in implementing the Directive.
Article 12 tasks the Union delegations in third countries with notifying the EU ETD uniform format to third countries and providing them with EU ETD specimens.
Chapter IV contains a number of final provisions.
Article 13 specifies the data protection framework.
Article 14 sets out the Member States’ obligation to monitor the application of the Directive and to supply information to the Commission on a yearly basis.
According to Article 15, the Commission should carry out an evaluation of the Directive and present a report on the main findings to the European Parliament and the Council.
Article 16 repeals Decision 96/409/CFSP.
Article 17 sets the date by which the Member States should transpose the Directive into national law.
Article 18 lays down that the Directive enters into force on the twentieth day following its publication in the Official Journal of the European Commission.
According to Article 19, the Directive is addressed to all Member States.
Annexes I and II contain specifications for the uniform EU ETD form and sticker.