The Commission’s war on red tape continues
For many of the 12 million EU citizens who study, work or live in a Member State of which they are not nationals, free movement does not equal freedom from bureaucracy.
What happens, for instance, in the case of two people from two different EU Member States when they decide to marry and live in a third one of which neither of them is a national? Official documents from their respective countries have to be presented, and while they are happy to go along with this in order to realise their life project, an unpleasant surprise awaits them: loss of money and time ‘only’ to prove the authenticity of their documents. Cases such as this are by now familiar to citizens of a Union where cross-border relations are less and less an exotic exception. The proposal for a Regulation on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012 addresses problems such as this and others besides.
Simplification as the key word
The core elements on which the Commission is hoping to carry the day are two. The first one is the exemption from all forms of legalisation or similar formality (Apostille) aimed at proving the authenticity of public documents in view of their acceptance between Member States. The scope of application of the proposal covers a varied range of public documents, regarding: birth; death; name; marriage and registered partnership; parenthood; adoption; residence; citizenship and nationality; real estate; legal status and representation of a company or other undertaking; intellectual property rights; absence of a criminal record. It is also for this reason that the Commission has set clear limits to the possible impact of the text, by stressing that the proposal is not intended to modify the substantive law of the Member States in these areas; and that it applies to the acceptance of the documents listed in it, but not to the recognition of their contents by the Member States in which they are presented.
The second element is the creation of a EU multilingual standard form for public documents on birth, death, marriage, registered partnership and legal status and representation of a company or other undertaking. Such forms, when presented in another Member State, would have the same formal evidentiary value with regard to their authenticity, as the equivalent public documents of the issuing Member State. However, they would not produce legal effects as for the recognition of their contents in the different Member State in which they are presented.
Additional measures and safeguards
Obviously, formalities like legalisation and Apostille have been until now in place not just to drive citizens mad or out of administrative cruelty, but also to prevent possible fraud and abuse. Therefore their removal is compensated with a new mechanism to verify the authenticity of public documents in cases of ‘reasonable doubt’.
The Regulation also promotes a more effective cooperation among the authorities of the Member States. A particularly useful element is the required establishment of at least one ‘central authority’ for the areas covered by the Regulation in each Member State.
This initiative has the potential to make the life of a significant number of EU citizens easier, as some of the targeted formalities can indeed give rise to bureaucratic obstacles and painful delays and costs. Greater resistance will probably be reserved to a second proposal that should also, like the present one, be a follow up to the Green Paper on Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status record. This will concern the mutual recognition of the effects of civil status records.
Nevertheless, while the first proposal presented for the moment might be relatively uncontroversial, the text, and especially its scope, should not prejudice the contents of the forthcoming second proposal. The latter may also concern - just to refer to one of the thorniest issues - the fact of having legal status granted through a same-sex ‘marriage’ in one Member State having to be recognised and having the same legal consequences in another Member State that does not provide for it. It is already unclear whether and how it will be possible to reconcile the scope of the proposal for the moment on the table with the non-existence of certain legal arrangements in a significant number of national legal regimes (e.g. registered partnerships are provided for only in some of them; only marriage between two persons of different sex exists in all Member States).
More generally one has to bear in mind that while simplification is a goal to be supported, simplistic solutions are not: will the proposal tabled by the Commission prove to be fit for purpose?