Public documents and civil status records:
the European Commission and the removal of ‘bureaucratic obstacles’
The Commission estimates that around 12 million people in the EU live in a Member State different from their own. When these European citizens are required to prove a legal status in their host Member States administrative obstacles and differences in national legislations often come into play.
On 14 December last, the European Commission launched a public consultation concerning the promotion of free movement of public documents and the recognition of the effects of civil status records. The consultation will run until the 30 April 2011, leading to a legislative proposal in 2013.
The twin aims of the consultation
With regard to the free movement of public documents between Member States, the Commission refers mainly to the possible abolition of administrative formalities for the authentication of all public documents when they are presented in a Member State that is different from the one that issued them, accompanied by reinforced cooperation between the competent national authorities. The Commission also proposes the establishment of a central point for recording civil status events which take place in a Member State that is different from the one of origin of the citizen. The most advanced solution concerns the creation of an optional European civil status certificate that would exist alongside the national civil status records without replacing them. As for the notion of ‘public documents’ reference is made to administrative documents, notarial acts, birth, death or marriage certificates, miscellaneous contracts or court rulings, diplomas, patents. The stakeholders can provide further indications in this regard.
As for the issue of mutual recognition of the effects of civil status records, the Green paper exemplifies this by referring to civil status records concerning life events such as birth, filiation, adoption, marriage, recognition of paternity, death and also surname change following marriage, divorce, a registered partnership, recognition, change of sex or adoption. The question in this case is whether in cross-border cases a legal situation recorded in a civil status record in one Member State should be recognised in another one and whether it should also produce the civil effects connected with the situation. The Green paper hints at different solutions, from the less ambitious assistance for national authorities in identifying practical solutions to the more advanced automatic recognition: each Member State would accept and recognise, on the basis of mutual trust, the effects of a legal situation created in another Member State. The Commission emphasises that, in the latter case, in matters such as marriage, the option could be ‘complicated’. Another solution would be, as with divorce and legal separation, the harmonisation of conflict-of-law rules, including the possibility for citizens to choose the applicable law (which could lead to confusion rather than to positive effects). The stakeholders can suggest further innovative solutions.
A challenging exercise
The initiative at issue has, in some regards, the potential to facilitate the life of EU citizens. Some of the formalities, to which the first section of the consultation document refers, can create perceived bureaucratic obstacles. In this area, a closer cooperation between national authorities could lead to consistent improvements. On the other hand, the debate on the mutual recognition of the effects of civil status records deserves a much more careful approach. Some of the documents involved are closely linked with matters of high sensitivity that stand at the core of the Member States’ national sovereignty (e.g. marriage, civil partnerships, adoption). The doubts expressed by the Commission as to, for example, the advisability of extending the scope of the future proposal to marriage, should be widely shared. It will be important to ensure that an initiative aimed at helping EU citizens does not have the direct or indirect effect of creating interference with the Member States’ family law systems, as well as with their options concerning the benefits deriving from civil status. The focus should be maintained on those documents on which an evident European consensus exists (e.g. birth certificates). More generally, respect for the diversity of national legal orders and for the different Constitutional traditions, as well as for the Member States’ public policies, should guide the EU actions on this matter. The Commission has expressed its cautiousness with regard to this initiative’s scope and implications. One cannot but wish that this approach will be confirmed even after the consultation exercise.