Explanatory Memorandum to COM(2024)316 - Strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right of free movement

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dossier	COM(2024)316 - Strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their ...
source	COM(2024)316
date	23-07-2024

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

On 17 April 2018, the Commission adopted a proposal for a Regulation 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 of free movement ¹ . The Commission proposed that the Parliament and the Council base the regulation on Article 21(2) of the Treaty on the Functioning of the European Union (TFEU). On the basis of that proposal, the Parliament and the Council adopted, on 20 June 2019, Regulation (EU) 2019/1157 ² , which has been in application since 2 August 2021.

In case Landeshauptstadt Wiesbaden ³ , the Court of Justice ruled that Regulation (EU) 2019/1157 is invalid due to it having been adopted erroneously on the basis of Article 21(2) TFEU and under the ordinary legislative procedure. According to the Court, Regulation (EU) 2019/1157 is one of the measures that falls within the specific scope of Article 77(3) TFEU, which provides for a special legislative procedure and, in particular, for unanimity in the Council.

While declaring Regulation (EU) 2019/1157 invalid, the Court ruled that the “effects of Regulation 2019/1157 are to be maintained until the entry into force, within a reasonable period which may not exceed two years from 1 January of the year following the date of delivery of the present judgment, of a new regulation based on Article 77(3) TFEU and intended to replace it”.

The purpose of this proposal is to set in motion the procedure for a new regulation 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 of free movement being adopted on the appropriate legal basis, namely Article 77(3) TFEU.

This proposal essentially reproduces the text of Regulation (EU) 2019/1157 as adopted by the Parliament and the Council. In particular, the Court ruled that the limitations of the right to respect for private life and of the right to the protection of personal data, enshrined in Articles 7 and 8 of the Charter respectively, flowing from the obligation to include two fingerprints in the storage medium of identity cards are not contrary to the principle of proportionality ⁴ .

Nevertheless, the Commission considers that it is appropriate to adapt the text in certain minor aspects. These adaptations are explained in the section on ‘Detailed explanation of the specific provisions of the proposal’.

• Consistency with existing policy provisions in the policy area

The Union offers its citizens an area of freedom, security and justice without internal borders, in which the free movement of persons is ensured in conjunction with appropriate measures regarding external border management, asylum, immigration and the prevention and combating of crime and terrorism. Many of the Union’s security measures rely upon secure travel and residence documents – such as the systematic checks established by the Schengen Borders Code ⁵ in the Schengen Information System.

According to Article 77¹ TFEU, and as noted by the Court in Landeshauptstadt Wiesbaden ⁶ , the Union is to develop a policy with a view to ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders, to carrying out checks on persons and efficient monitoring of the crossing of external borders, and to the gradual introduction of an integrated management system for such borders. The provisions concerning passports, identity cards, residence permits or any other such document referred form an integral part of any such Union policy. As regards Union citizens, the documents covered by the proposed regulation enable them, among other things, to certify that they benefit from the right to move and reside freely within the territory of the Member States referred to in Article 20(2)(a) TFEU and therefore to exercise that right.

Directive 2004/38/EC of the European Parliament and of the Council ⁷ sets out the conditions for the exercise of the right of free movement and residence (both temporary and permanent) in the Union for Union citizens and their family members. That Directive provides that, in conjunction with a valid identity card or passport, Union citizens and their family members may enter and live in another Member State and apply for the appropriate residence documentation. Directive 2004/38/EC, however, does not regulate the format and standards of identity cards to be used to enter or leave Member States. Similarly, it does not provide for specific standards for residence documents issued to Union citizens and their family members apart from their title.

By maintaining the security standards introduced by Regulation (EU) 2019/1157 applicable to identity cards issued by Member States to their nationals and to residence documents issued by Member States to Union citizens and their family members when exercising their right to free movement, this proposal is fully consistent with the existing policy measures outlined above.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

As stated by the Court in Landeshauptstadt Wiesbaden ⁸ , Article 77(3) TFEU confers on the Union a competence to adopt provisions on passports, identity cards, residence permits or any other such document intended to facilitate the exercise of the right to move and reside freely within the territory of the Member States guaranteed in Article 20(2)(a) TFEU. The Court ruled that it follows from the purpose and main components of Regulation (EU) 2019/1157 – to strengthen the security standards applicable to identity cards and residence documents and to set out the requirements, notably in terms of security, with which such documents must comply – that it is one of the measures that falls within the specific scope of Article 77(3) TFEU ⁹ . The same applies to this proposal, which replicates Regulation (EU) 2019/1157 with the exception of limited adjustments that do not affect its purpose and main components.

Article 77(3) TFEU provides for a special legislative procedure. When adopting measures pursuant to Article 77(3) TFEU, the Council is to act unanimously after consulting the Parliament.

• Subsidiarity (for non-exclusive competence)

The Union is committed to ensuring the free movement of persons within an area of freedom, security and justice. Secure identity cards and residence documents are essential elements to ensure the trust needed for free movement within that area.

Without a common standard at Union level, it is likely that the obstacles to free movement resulting from the problems in the acceptance of certain documents observed prior to the adoption of Regulation (EU) 2019/1157 re-emerge ¹⁰ . The same would apply to the previously experienced security gaps resulting from insufficiently secure documents. The absence of action at Union level would also result in more practical problems for Union citizens, national authorities and businesses in a context where citizens live and travel within the Union. Addressing such systemic problems by maintaining a high level of security for national identity cards and residence documents clearly requires continued action on a Union scale.

The objectives of any initiative seeking to prevent the re-emergence of such problems cannot be achieved at a national level. The documents covered by this proposal have an intrinsic European dimension because of their connection with the exercise of the right to free movement in an area of freedom, security and justice. Member States already confirmed the necessity to act at Union level by adopting Regulation (EU) 2019/1157.

The regulation would not require Member States to issue documents that are not currently being issued.

• Proportionality

Union action can continue to add considerable value in addressing the challenges outlined above. Union citizens face obstacles in the exercise of their rights if they cannot be sure that their documents will reliably be accepted outside their Member State(s) of issuance.

Ongoing security challenges demonstrate the inextricable link between free movement of persons inside the Union and robust external border management. Insofar as identity cards may be used to cross external borders, measures to improve security and external border management, such as the systematic checks against databases on all persons, including Union citizens, crossing the external borders would be weakened if security standards for identity cards were to deteriorate. Overall, the minimum standards for the information to be provided on the documents covered by this proposal and for security features common to all Member States that issue them will facilitate the exercise of free movement and improve security within the Union and at its borders.

Complete harmonisation of the design of identity cards is not warranted and a proportionate measure ensuring minimum document standards is proposed. This includes the mandatory use of fingerprints, which are a reliable and effective means of establishing, with certainty, the identity of a person, and a proportionate measure in light of the objectives to facilitate the exercise of the right to free movement and residence, to combat the production of fraudulent identity cards and identity theft, and to ensure the interoperability of identification document verification systems ¹¹ .

For residence cards issued to third-country family members, it is suggested to continue to use the same format as already agreed at Union level in respect of residence permits of third-country nationals.

• Choice of the instrument

A regulation is the only legal instrument ensuring the direct and common application of Union law in all Member States. In a field where divergences have previously proved detrimental to free movement and security, a regulation will ensure that the desired commonality is maintained.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Impact assessment

No impact assessment was carried out in the preparation of this proposal as it essentially reproduces the text of Regulation (EU) 2019/1157, which itself was based on a proposal ¹² that had been accompanied by an impact assessment ¹³ . Thus, this proposal is not expected to lead to new impacts. Moreover, this proposal considers the lessons learned from the implementation report adopted on 20 September 2023 ¹⁴ . Since not even three years have passed since the entry into application of Regulation (EU) 2019/1157, no evaluation was undertaken.

• Fundamental rights

This proposal has a positive impact on Union citizens’ fundamental right to free movement and residence under Article 45 of the Charter of Fundamental Rights of the European Union (Charter) by addressing difficulties in recognition and insufficient security of both identity cards and residence documents.

This proposal implies processing of personal data, including biometric data, namely a facial image and two fingerprints. Processing the personal data of individuals, including collection, access and use of personal data, affects the right to privacy and the right to protection of personal data enshrined in Articles 7 and 8 of the Charter.

In particular, the obligation to include two fingerprints in the storage medium of identity cards and residence cards, as well as the obligations to collect and temporarily store such biometric data for the purposes of producing the documents, constitutes a limitation to both the right to respect for private life and the right to the protection of personal data ¹⁵ .

Limitations on those rights must be provided for by law and respect the essence of those rights. In addition, in compliance with the principle of proportionality, such limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights of others ¹⁶ .

The limitations, as well as the conditions for application and scope of those limitations, will be defined in the regulation. The Court held that the limitation entailed by the obligation to include two fingerprints in the storage medium does not adversely affect the essence of the fundamental rights enshrined in Articles 7 and 8 of the Charter, as the information provided by fingerprints does not, in itself, make it possible to have an overview of the private and family life of data subjects ¹⁷ .

As noted by the Court, the specific objectives pursued by the regulation, namely combating document fraud and the interoperability of identification document verification systems, constitute objectives of general interest recognised by the Union. In addition, the Court found that the inclusion of two complete fingerprints is appropriate for attaining those general interest objectives ¹⁸ . As far as the necessity of the inclusion of fingerprints is concerned, the Court considered that the limitations placed on fundamental rights guaranteed in Articles 7 and 8 of the Charter arising from the obligation to include two complete fingerprints in the storage medium appear to comply with what is strictly necessary ¹⁹ .

Finally, the Court considered that the limitations resulting from the inclusion of two fingerprints do not appear to be – having regard to the nature of the data at issue, the nature of the processing operations, the manner in which they are carried out and the safeguards laid down – of a seriousness that is disproportionate when compared with the significance of the various objectives pursued by the regulation. Accordingly, such a measure must be regarded as being based on a fair balance between, on the one hand, those objectives and, on the other, the fundamental rights involved. As a result, the Court concluded, in Landeshauptstadt Wiesbaden, that the limitations on the exercise of the rights guaranteed in Articles 7 and 8 of the Charter are not contrary to the principle of proportionality ²⁰ .

4. BUDGETARY IMPLICATIONS

The proposal has no implications for the Union budget.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

To ensure an effective implementation of the measures foreseen, and to monitor their results, the Commission will continue to work closely with relevant stakeholders from national authorities and Union agencies, such as the European Border and Coast Guard Agency.

The Commission will adopt a monitoring programme to monitor the outputs, results and impacts of the regulation based on the monitoring programme adopted pursuant to Regulation (EU) 2019/1157 ²¹ .

The Commission will evaluate the effectiveness, efficiency, relevance, coherence and Union added value of the resulting legal framework 6 years after the date of application of the regulation. This will ensure that sufficient data is available for the evaluation.

• Detailed explanation of the specific provisions of the proposal

In essence, the attached proposal reproduces Regulation (EU) 2019/1157 as adopted by the Parliament and the Council. However, the Commission considers that the text of that Regulation should be adapted in the following respects:

–In order to take account of the ruling in Landeshauptstadt Wiesbaden, the legal basis for the regulation is Article 77(3) TFEU.

–In the recitals of the regulation, references to policy documents adopted several years ago are removed.

–The explicit reference in the recitals to the passport card issued by Ireland is removed, given that Ireland is not taking part in the adoption of the regulation unless it notifies that it wishes to take part in its adoption and application. In such case, while the passport card issued by Ireland is a travel document compliant with International Civil Aviation Organization Document 9303 on Machine Readable Travel Documents, it does not serve identification purposes in Ireland, and therefore should not be considered as falling within the scope of the regulation.

–In the recitals of the regulation, a reference is added to the fact that the Court of Justice has ruled that the mandatory inclusion of fingerprints on the storage medium is compatible with the fundamental rights to respect for private life and to protection of personal data as guaranteed in Articles 7 and 8 of the Charter.

–The recital on the phasing-out of documents not complying with the requirements of the regulation is adapted to reflect the fact that the deadlines established by Regulation (EU) 2019/1157 should continue to apply.

–Recitals are added to reflect the respective opt-outs of Ireland and Denmark.

–A new consultation of the European Data Protection Supervisor will be carried out.

–Since the Commission has not received a notification pursuant to Article 5(3), point (b), of Regulation EU 2019/1157, the references to such notifications are removed.

–Pursuant to Article 8(2) of Regulation (EU) 2019/1157, certain residence cards of family members of Union citizens who are not nationals of a Member State ceased to be valid at their expiry or by 3 August 2023, whichever was earlier. As this date is in the past, the regulation merely states that such residence cards are no longer valid.

–Pursuant to Article 11(6) of Regulation (EU) 2019/1157, biometric data stored in the storage medium of identity cards and residence documents, namely the facial image and two fingerprints of the holder, is only to be used by the duly authorised staff of competent national authorities and Union agencies. Given the electronic signature on the storage medium of identity cards, identifying the holder by checking the data in the storage medium is more reliable than a visual check of the document, in particular in situations of remote identification. Union citizens may therefore wish to use the data in the storage medium of their identity card, including the facial image, to identify themselves towards private entities, such as banks or air carriers. The wording of the provision is thus adapted to state that only fingerprints can be accessed exclusively by duly authorised staff of competent national authorities and Union agencies. In any event, cryptographic protection prevents unauthorised persons from accessing the fingerprints on the storage medium.

–To reduce reporting obligations for Member State authorities, the obligation to maintain, and communicate annually to the Commission, a list of the competent authorities with access to the biometric data stored on the storage medium is removed.

–To reduce reporting obligations for Member State authorities, the rules on reporting and evaluation are streamlined. Article 13 of the regulation provides that instead of evaluating the regulation every six years, a single evaluation will be carried out by the Commission six years after the regulation enters into force, specifically focusing on a number of elements falling within the scope of the regulation.

–Given that Member States are already applying Regulation (EU) 2019/1157, it is not necessary to delay the entry into application of this regulation. The regulation should thus start to apply with its entry into force.

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