Legality questions over EU passport

Proposals for a high-tech European Union passport are facing legal questions as the clock ticks on a US October security deadline for travel documents.

Plans for the 'biometric' identity document – recording a “a measurable physiological or behavioural trait of a living person” – are to be discussed at a meeting of justice ministers on February 19 after winning the backing of Europe’s leaders at last year’s Thessaloniki summit.

But behind the scenes profound questions remain over the legal basis for such a move.

After 2001 terror attacks on the US the International Civil Aviation Organisation asked governments to work on making national travel documents – passports and visas – more secure.

The technological know-how to digitalise phots and fingerprints on passport chips is there but the legal and political picture is much less clear.

A number of legal options are currently with European Commission lawyers struggling to come up with proposals that are lawful under the EU’s own Nice Treaty.

Options have been mooted during talks between EU diplomats but, say sources, the commission remains concerned that it could still be left holding the baby if the legal basis is queried in such a politically sensitive area as ID documents.

Brussels has long favoured using 'citizenship' clauses in the Nice EU treaty to harmonise European identity documents.

Article 18.1 asserts that “every citizen of the Union shall have the right to move and reside freely”, with a second paragraph giving Brussels "necessary powers to act."

But moves in that direction at 2000’s Nice Inter-Governmental Conference were blocked by national capitals led by the UK.

To pacify the British Article 18.3 specifically rules out EU harmonised passports and four years on leaves Brussels with a severe headache. “Paragraph 2 [the 'necessary powers to act'] shall not apply to provisions on passports, identity cards, residence permits,” states the problem clause.

Legal experts are currently tying themselves in knots to come up with a watertight way around such a clear injunction enshrined in EU Treaty.

EU justice commissioner Antonio Vitorino, for one, is said to be unhappy and has returned at least one unsatisfactory legal formulation to EU lawyers for more work.

“The Nice decision was taken before September 11, opinions have changed in the member states but the treaty remains unchanged,” said a source. “We are having to be very creative as regards the legal basis.”

Another pressure on the EU is an external one. An existing ‘waiver’ between the US and Europe is set to expire on October 26 as Washington requires bio-metric identity documents from visitors.

The prospect of EU travellers to the US suffering the indignity of forced fingerprinting at American airport arrivals has concentrated minds.

“There is no way the EU will be ready by 2004”, concede officials, and discussions by ministers on the proposal are set for agreement in June or July, but, say sources, “the US is struggling too”.

British officials reveal that timeline has already “been delayed to an unspecified date in 2005” giving Europe a breathing space.

The likeliest scenario will see Trans-Atlantic talks this summer to postpone the October deadline after the EU first shows compliance by adopting passport legislation.

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