By Bruno Waterfield - 18th February 2004
Legal “creativity” has overcome barriers to plans for high-tech EU passports heralding moves to a central European database of fingerprints.
The security measure has faced a major legal obstacle – ‘harmonised’ or EU passports are explicitly ruled out under the existing European Nice Treaty.
And in a bid to sidestep EU law Brussels has been forced to include the passport under Schengen border cooperation; a body of European law excluding the UK, Ireland and Denmark.
Civil liberties and privacy campaigners are set to raise the alarm over related plans to set up a database containing the fingerprints and photos of all EU passport applicants.
“At EU level, a centralised, biometrics based ‘EU passport register’, which would contain the fingerprint(s) of passport applicants… could be created,” states the commission proposal.
Proposals to introduce an EU-wide biometric identity document are to be presented to Europe’s justice ministers on February 19.
The Irish EU presidency acknowledges that talks between Brussels lawyers and experts from the council of ministers have been “rather complicated”.
EU justice chief Antonio Vitorino has been concerned that proposals could be challenged in the courts.
“There has been discussion between the commission and the council legal services… about the legal base,” said an EU presidency source.
“Despite the doubts the commission is now satisfied they have found the legal base for [the proposal].”
Sources in January told EUpolitix that commission lawyers were having to exercise "creativity" to get around EU law in the face of post-September 11 attacks on the US.
"The Nice decision was taken before September 11, opinions have changed in the member states but the treaty remains unchanged," said an official.
"We are having to be very creative as regards the legal basis."
UK officials will have to examine the proposal to see if London is able to opt-in to the relevant Schengen legislation.
"We want to be involved and Britain leads the field in this technology but we will have to see if the legal framework is there," said a source.
The EU is also under external pressure to update passports.
An existing visa ‘waiver’ between the US and Europe, allowing travellers to visit America on passports alone, is set to expire on October 26 as Washington requires biometric 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.
European efforts will not be in place until at least 2005, but, say sources, “the US is struggling too”.
British officials reveal that the timeline has already “been delayed to an unspecified date in 2005” giving Europe a breathing space.
Vitorino will visit Washington in May in a bid to push the deadline back.
The likeliest scenario will see Trans-Atlantic talks this summer to postpone the October deadline after the EU first shows compliance by adopting the passport legislation in July.
Anti-terror requirements for identity documents containing digital ‘biometric’ data recording “a measurable physiological or behavioural trait of a living person” were backed by EU leaders last June.
Future EU passports are likely to include microchips with photo and fingerprints.
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