Maya Hertig Randall
- Nationality of individuals
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. The Concept of a European Passport
1 The European passport is a passport (Passports) issued by a Member State of the European Union (‘EU’; see also European Union, Historical Evolution). From a legal point of view, it is equivalent to a national passport, ie an official document for the purpose of travel, attesting to the holder’s identity and nationality, and obliging the issuing State to admit the holder to its territory should he or she be expelled from another State. From a political and sociological perspective, the European passport is an important symbol of European Citizenship. Established in a uniform format and bearing, in addition to the name of the issuing State, the words ‘European Union’ on its cover, the European passport expresses the double allegiance of European citizens to both their nation State and the EU.
B. Historical Background
2 The creation of a truly European passport was first examined within the framework of the Council of Europe (COE) after World War II. The Member States, however, rejected this idea as unfeasible, but considered the standardization of national passports and facilitation of travel desirable. The work of a governmental committee of experts on passports and visas resulted in a series of treaties reducing the strictness of existing passport regimes in the interest of free movement (Movement, Freedom of, International Protection). Efforts to standardize national passports were not undertaken until the 1970s, this time between the Member States of the European (Economic) Community, within the broader aim of establishing the Passport Union. The Passport Union was intended to satisfy both symbolic and practical needs. The European Commission considered the term ‘Passport Union’ to be new and evocative, bringing to mind ideas associated with the European Customs Union. Whereas the Customs Union concerned goods, the Passport Union would further the free movement of persons within the EC since it would entail the abolition of internal border controls and their transfer to the external frontiers of the EC. Moreover, the Passport Union was meant to confirm the EU as a political entity in relation to third countries, and to strengthen common foreign policy (European Common Security and Defence Policy). More specifically, as regards the European passport, it was expected to have a psychological effect, emphasizing, through its uniform appearance, the feeling of belonging to the EC. Introducing a uniform passport was also aimed at facilitating the equal treatment of third countries (Fair and Equitable Treatment), to be obtained incrementally through negotiation[s] between the Member States and non-members. It was hoped that these concrete results would reinforce the symbolic dimension of the European passport, expressing the equality of European citizens regardless of nationality.
3 The creation of a Passport Union was a highly sensitive issue as it touched upon central aspects of national security, identity and sovereignty. For these reasons, the Heads of Governments, meeting in Paris on 9 and 10 December 1974, decided to focus first on the limited task of introducing a standardized passport, and to postpone the abolition of internal border controls and the introduction of compensatory measures at the external frontiers. Based on a report of the European Commission, the European Council approved the introduction of a passport of uniform format at its meeting in Rome on 3 and 4 December 1975. Six years later, the Member States decided on the uniform passport format and adopted the Resolution of the Representatives of the Governments of the Member States of the European Communities, Meeting within the Council on 23 June 1981 (‘1981 Resolution’). In order, inter alia, to render passports more secure, the following complementary resolutions were subsequently adopted: Resolution of the Representatives of the Governments of the Member States, Meeting within the Council of 14 July 1986 Supplementary to the Resolutions of 23 June 1981, 30 June 1982 Concerning the Introduction of a Passport of Uniform Pattern; Supplementary Resolution to the Resolution Adopted on 23 June 1981 Concerning the Adoption of a Passport of Uniform Pattern, of the Representatives of the Governments of the Member States of the European Communities, Meeting within the Council on 30 June 1982; Resolution of the Representatives of the Governments of the Member States, Meeting within the Council of 10 July 1995 Supplementary to the Resolutions of 23 June 1981, 30 June 1982 and 14 July 1986 Concerning the Introduction of a Passport of Uniform Pattern; Resolution of the Representatives of the Governments of the Member States, Meeting within the Council of 17 October 2000 Supplementing the Resolutions of 23 June 1981, 30 June 1982, 14 July 1986 and 10 July 1995 as regards the Security Characteristics of Passports and Other Travel Documents; Resolution of the Representatives of the Governments of the Member States, Meeting within the Council of 8 June 2004 Supplementary to the Resolutions of 23 June 1981, 30 June 1982, 14 July 1986 and 10 July 1995 concerning the Introduction of a Passport of Uniform Pattern.
4 The first European passports were issued on 1 January 1985, the deadline set in the 1981 Resolution. As national passports expired they were replaced by European passports. The gradual introduction of the European passport went hand in hand with the incremental realization of the other objectives associated with the creation of a Passport Union, first on a strictly intergovernmental basis. The Schengen Agreement on the Gradual Abolition of Checks at Their Common Borders and the Convention Applying the Agreement (‘Schengen Acquis’) of 1985 and 1990 respectively, realized the abolition of border controls among its signatories, including all Member States of the EU with the exception of the United Kingdom (‘UK’) and Ireland. Meanwhile, three non-EU Members, Norway, Iceland, and Switzerland, became associated (European Community and Union, Association Agreements). Following the terrorist attacks of 11 September 2001 (Terrorism), visa-free travel to the United States of America (‘US’) was made conditional upon the inclusion of biometric identifiers in passports. Global biometric standards for travel documents were established as a result of negotiations that took place under US leadership within the framework of the Group of Eight (G8) and the International Civil Aviation Organization (‘ICAO’). This move fuelled negotiations among the Member States of the EU to include biometric identifiers in the European passports. Apart from the fight against terrorism and the interest in participating in the US visa waiver programme, the need for biometric passports was also justified on the so-called coherent approach. Since two EC regulations required biometric identifiers, facial images and fingerprints, to be included in visa and residence permits for third-country nationals, it was argued that all travel documents, including those issued to one’s own citizens, should comply with these requirements in order to maintain coherence (International Organizations or Institutions, Secondary Law). In the Proposal for a Council Regulation on Standards for Security Features and Biometrics in EU Citizens’ Passports of 2004, the European Commission recommended that the facial image should be a mandatory biometric identifier, while fingerprints should be optional. Despite the optional character of fingerprints, the Commission also proposed the establishment of a centralized, biometrics-based EU passport register containing the fingerprints of passport applicants. In contrast to the European Commission’s recommendation, Council Regulation (EC) 2252/2004 of 13 December 2004 on Standards for Security Features and Biometrics in Passports and Travel Documents Issued by Member States (‘Biometric Passports Regulation’) establishes both facial images and fingerprints as mandatory identifiers. It requires new passports to include facial images within 18 months, and fingerprints within three years of the European Commission adopting the necessary technical specifications. For facial images, the deadline expired on 28 August 2006, while Member States have until 28 June 2009 to include fingerprints in biometric passports.
C. Legal Significance
5 To assess the legal significance of the European passport, it is helpful to distinguish between the rights bestowed on its holders, on the one hand, and the rules concerning the format and content, including the security features, on the other hand.
1. Rights of European Passport Holders
6 In addition to the standard rights connected with national passports, such as the right to enter the issuing State and to seek diplomatic protection abroad from one’s country of nationality, the European passport is linked with the rights conferred on the nationals of the Member States by the provisions on European citizenship (Arts. 17–22 Consolidated Version of the Treaty Establishing the European Community [‘ECT’]). These rights include, most importantly, the exercise of EC fundamental freedoms, namely, free movement of persons, freedom of establishment, and freedom to provide and receive services. According to Art. 18 (1) ECT, they also include, more generally, the ‘right to move and reside freely within the territory of the Member State’, which is independent of an economic activity. Although not drafted as an unconditional right, the case law of the European Court of Justice has considerably expanded the free movement and residence rights of European citizens (European Union, Court of Justice and Genral Court). This demonstrates the desirability of having a European passport and why it has become such a prominent symbol of the EU.
2. Rules concerning Format and Content
7 The initial method adopted to introduce the European passport and to determine its format and content was exclusively based on traditional intergovernmental co-operation, having recourse to legally non-binding resolutions (Non-Binding Agreements). These resolutions define the characteristics of the uniform passport based on the recommendations of the ICAO and define minimum standards of security in respect of the materials used, the issuing and printing technique, and the protection against photocopying. As regards the appearance of the European passport, specifications pertain to its format and colour, and to the information to be provided on its cover and the first page. Hence, the European passport normally contains 32 pages, the cover is burgundy red and indicates, like the first page, the words ‘European Union’, the name of the State issuing the passport, the emblem of the State, and the word ‘Passport’ (see also Emblems, Internationally Protected). These detailed specifications reflect the aim of fostering allegiance to the EU. This goal is also evident in the prescription made to the Member States to print the words ‘European Union’ in a typeface similar to that of the other text appearing on the cover and the first page, including the name of the issuing State. Although they regulate the format of the passport in great detail, the resolutions do not govern the fee, period of validity and conditions for obtaining the passport. These issues remain a national prerogative.
8 Even though the resolutions are limited to harmonizing the format of the passport, including minimum security requirements—arguably a politically less sensitive issue than establishing uniform rules concerning border controls—Member States have been reluctant to abandon the intergovernmental approach and to bring the standardization of passport formats within the competence of the EC. Moreover, Art. 18 (3) ECT aims at reserving to Member States the general competence to establish the rules pertaining to passports. It states that powers conferred upon the EC to adopt legislation facilitating European citizens’ rights to free movement and residence throughout the EC do not apply to provisions on passports, identity cards, and residence permits. This raises the question of whether the EC has exceeded its powers in adopting the Biometric Passports Regulation.
D. Special Legal Problems
1. Community Competence to Adopt the Biometric Passports Regulation
9 During the negotiations of the Biometric Passports Regulation, the view prevailed that Art. 18 (3) ECT did not preclude the adoption of rules on passports if another treaty provision conferred upon the EC a specific legislative competence in this field. In its proposal, the European Commission presented the Biometric Passports Regulation as a development of the Schengen Acquis, choosing Art. 62 (2) (a) ECT as a legal basis. This provision does not specifically provide for EC competence to establish security features for the European passport but states more generally that the Council can adopt standards and procedures related to external border controls. Although the European passport is the main document to be checked at the external borders of the Member States, it is also relevant for identification purposes in third countries and within the EU, for instance when a European citizen exercises his or her rights to free movement. Considering the multiple purposes of the European passport and the specific exclusion in Art. 18 (3) ECT, it is debatable to what extent provisions relating to external border controls are sufficient to establish the EC’s competence to standardize security or other features of the European passport. Should this narrow interpretation of Art. 18 (3) ECT prevail (Interpretation in International Law), future rules concerning the format and content of the passport may also take the form of binding EC law, coexisting with or gradually replacing the existing resolutions.
2. The Scope of the Biometric Passports Regulation
10 The uniform passport format laid down in the 1981 Resolution and the subsequent regulations are limited to, but apply to all, passports issued by Member States of the EU. This does not hold true for the Biometric Passports Regulation. As it was conceived as a development of the Schengen Acquis, it also applies to the three associated non-EU Members, ie Norway, Iceland and Switzerland. By contrast, it does not apply to the UK and Ireland, and leaves Denmark the choice to opt in. For this reason, the three associated countries were not allowed to participate in its adoption. Dissatisfied with its exclusion, the UK has brought an action challenging the validity of the Biometric Passports Regulation, which was dismissed by the ECJ in Case C-137/05 United Kingdom and Northern Ireland v Council of the European Union on 18 December 2007.
3. Security and Privacy Issues
11 The negotiations of the Biometric Passports Regulation were to a large extent conducted by national governments without any public debate and in isolation from national parliaments. Due to the tight deadlines set by the Council of the EU, the input of the European Parliament was marginal. The Council of the EU ignored all amendments suggested by the European Parliament and did not consider the security and privacy issues raised by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, and human rights groups. Critics question the proportionality of the Biometric Passports Regulation, arguing that the inclusion of two biometric identifiers goes beyond the ICAO recommendations and is unnecessary for identification purposes. Serious doubts have been raised about the security of the new radio frequency identification technology, which enables the data stored in the chip contained in the passport to be transferred without physical contact with the document. This entails the risk that the data can be gathered not only by border control authorities but also by other people equipped with the necessary technology, thus opening the door to identity theft and other abuse. The danger of abuse, entailing the infringement of privacy rights (Privacy, Right to, International Protection), is also inherent in the plan to store the biometric data in an EU-wide database.
12 The biometric identifiers included in the passport are not the only issue raising privacy concerns for travellers. The transfer of Passenger Name Record (‘PNR’) data by air carriers to the US has also given rise to controversy. PNR data, consisting of information gathered by airlines in their booking and reservation systems, such as credit card numbers, email and billing addresses, and special dietary requirements, were first transferred to the US pursuant to the Agreement between the European Community and the United States of America on the Processing and Transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, signed 28 May 2004 Its validity (Treaties, Validity) was successfully challenged in Joined Cases C-317/04 and C-318/04 European Parliament v Council of the European Union and Commission of the European Communities, after which it was replaced by an interim agreement covering the period from 19 October 2006 to 31 July 2007. The new Agreement between the European Union and the United States of America on the Processing and Transfer of Passenger Name Record (PNR) data by Air Carriers to the United States Department of Homeland Security (DHS), signed 23 July 2007, reduces the amount of PNR data to be sent to the US as from 1 January 2008 from 34 to 19 elements, a concession which human rights groups consider insufficient to address privacy concerns.
13 Although essentially still a national passport, the European passport has become one of the best known symbols of the EU, reflecting, through its uniform appearance, the special status, equality and rights connected with European citizenship. However, the hasty adoption of the European Passports Regulation, in isolation from any significant public discussion and democratic scrutiny (see also Democracy, Right to, International Protection), betrays the ideals of an effective European democracy, which European citizenship aims to foster. Should the risks of abuse of the biometric data materialize, this would undermine the symbolic value of the European passport, turning it from a symbol of a common, rights-based identity into a threat to civil liberties.
- DC Turack The Passport in International Law (Lexington Books Michigan 1972).
- E Denza ‘Le passeport européen’ (1982) 25 Revue du Marché Commun et de l’Union Européenne 489–93.
- C Taschner ‘Schengen oder die Abschaffung der Personenkontrollen an den Binnengrenzen der EG’ (11 December 1990).
- A Wiener ‘European Citizenship Practice: Building Institutions of a Non-State’ (Westview Press Colorado 1998).
- JC Torpey ‘Surveillance, Citizenship and the State’ in The Invention of the Passport (CUP Cambridge 2000).
- T Bunyan (ed) ‘The Road to “1984” Part 2: EU: Everyone Will Have to Have Their Fingerprints Taken to Get a Passport’ (26 February 2004).
- S Peers ‘Statewatch Analysis: The Legality of the Regulation on EU Citizens’ Passports’ (26 November 2004).
- T Bunyan, A Dietl, and G Husein ‘An Open Letter to the European Parliament on Biometric Registration of All EU Citizens and Residents’ (30 November 2004).
- A Rossnagel and G Hornung, ‘Reisepässe mit elektronischem Gesichtsbild und Fingerabdruck’ (2005) 23 Die Öffentliche Verwaltung 983–90.
- JP Aus ‘Decision-Making Under Pressure: The Negotiation of the Biometric Passports Regulation in the Council’ Centre for European Studies University of Oslo Working Paper Series 11/2006 (25 September 2006).
- A Meloni Visa Policy within the European Union Structure (Springer Berlin 2006).
- Agreement between the European Community and the United States of America on the Processing and Transfer of PNR Data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection (signed and entered into force 28 May 2004)  OJ L183/84.
- Agreement between the European Union and the United States of America on the Processing and Transfer of Passenger Name Record (PNR) data by Air Carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement) (signed 23 July 2007, entered into force 1 August 2007)  OJ L204/18.
- Case C-137/05 United Kingdom and Northern Ireland v Council of the European Union .
- Consolidated Version of the Treaty Establishing the European Community (signed 16 April 2003, entered into force 1 May 2004)  OJ 321E/37.
- Council Regulation (EC) 2252/2004 of 13 December 2004 on Standards for Security Features and Biometrics in Passports and Travel Documents Issued by Member States (done 13 December 2004, 18 January 2005)  OJ L385/1.
- Joined Cases C-317/04 and C-318/04 European Parliament v Council of the European Union and Commission of the European Communities  ECR I-04721.
- Proposal for a Council Regulation on Standards for Security Features and Biometrics in EU Citizens’ Passports COM (2004) 116 final (18 February 2004).
- Resolution of the Representatives of the Governments of the Member States of the European Communities, Meeting within the Council on 23 June 1981  OJ C241/1.
- Resolution of the Representatives of the Governments of the Member States of the European Communities, Meeting within the Council on 30 June 1982 Supplementary to the Resolution of 23 June 1981 concerning the Adoption of a Passport of Uniform Pattern  OJ C179/1.
- Resolution of the Representatives of the Governments of the Member States, Meeting within the Council of 14 July 1986 Supplementary to the Resolutions of 23 June 1981, 30 June 1982 concerning the Introduction of a Passport of Uniform Pattern  OJ C185/1.
- Resolution of the Representatives of the Governments of the Member States, Meeting within the Council of 10 July 1995 Supplementary to the Resolutions of 23 June 1981, 30 June 1982 and 14 July 1986 concerning the Introduction of a Passport of Uniform Pattern  OJ C200/1.
- Resolution of the Representatives of the Governments of the Member States, Meeting within the Council of 8 June 2004 Supplementary to the Resolutions of 23 June 1981, 30 June 1982, 14 July 1986 and 10 July 1995 concerning the Introduction of a Passport of Uniform Pattern  OJ C245/1.
- Resolution of the Representatives of the Governments of the Member States, Meeting within the Council of 17 October 2000 Supplementary to the Resolutions of 23 June 1981, 30 June 1982, 14 July 1986 and 10 July 1995 as regards the Security Characteristics of Passports and Other Travel Documents  OJ C310/1.
- Schengen Agreement on the Gradual Abolition of Checks at Their Common Borders and the Convention Applying the Agreement (Agreement done 14 June 1985; Convention done 19 June 1990, entered into force 1 September 1993) (1991) 30 ILM 68.