TABLE OF CONTENTS

1........... Introduction.................................................................................................................... 4

2........... Policy context................................................................................................................. 5

3........... Procedural issues and consultation of interested parties.................................................... 6

4........... Problem definition........................................................................................................... 8

4.1........ General problem............................................................................................................. 8

4.1.1..... What are the identified administrative formalities?........................................................... 10

4.1.2..... What are the public documents concerned by these administrative formalities?................ 11

4.1.3..... Who is mainly affected by these administrative formalities?............................................. 12

4.1.4..... Why are these administrative formalities disproportionate?............................................. 15

4.1.5..... In which situations are these administrative formalities required?..................................... 17

4.2........ The fragmentation of the overall framework and the uncertainty affecting EU citizens, businesses and public administrations.............................................................................................................. 22

4.3........ Detection of fraud and forgery of public documents....................................................... 23

4.4........ Risk of discrimination.................................................................................................... 23

4.5........ How would the problem evolve in the base-line scenario?.............................................. 24

5........... Does the EU have the power to act?............................................................................. 25

5.1........ Legal basis................................................................................................................... 25

5.2........ Subsidiarity test: Why the EU is better placed to take action?......................................... 26

6........... Objectives.................................................................................................................... 26

7........... Description of policy options......................................................................................... 27

7.1........ Policy options............................................................................................................... 27

7.2........ Discarded options......................................................................................................... 31

8........... Impact analysis of policy options................................................................................... 32

9........... Comparative assessment of policy options..................................................................... 40

10......... Assessment of effectiveness of the preferred policy option against policy objectives (specific and operational) 43

11......... Monitoring and evaluation............................................................................................. 45

Annex 1...................................................................................................................................... 47

Annex 2...................................................................................................................................... 48

Legalisation and Apostille............................................................................................................ 48

Annex 3...................................................................................................................................... 50

1.1........ The Apostille Convention: application and scope........................................................... 50

1.2........ The Brussels 1987 Convention: application and scope................................................... 50

Annex 4...................................................................................................................................... 52

Annex 5...................................................................................................................................... 53

Annex 6...................................................................................................................................... 59

Annex 7...................................................................................................................................... 60

1.1........ EU citizens................................................................................................................... 60

1.2........ EU businesses (in particular SMEs)............................................................................... 61

Annex 8...................................................................................................................................... 64

Annex 9...................................................................................................................................... 66

Annex 10.................................................................................................................................... 68

Annex 11.................................................................................................................................... 73

Annex 12.................................................................................................................................... 81

Annex 13.................................................................................................................................... 86

Annex 14.................................................................................................................................... 98

1. Introduction

This impact assessment is for a legislative measure of a horizontal nature on simplifying administrative formalities related to the authentication of public documents issued in one Member State and circulating to (an)other Member State(s). These formalities are legalisation, Apostille (similar formality) and certified copies and certified translations (other formalities). The general objective of this measure is to facilitate and enhance the exercise of the EU citizens' right to free movement within the EU and of EU businesses' (in particular SMEs) right to freedom of establishment and freedom to provide services within the Single Market, whilst upholding the general public policy interest of ensuring the authenticity of public documents.

Without changing the existing EU law regulating the circulation of specific categories of public documents, this measure will complement it by abolishing the requirements of legalisation and Apostille and by simplifying the requirement of certified copies and certified translations. When abolishing legalisation and Apostille, it will focus on establishing the authenticity of public documents, drawing inspiration from the existing EU law and relevant international instruments. It is important to stress that the measure will not, on the other hand, cover the recognition of effects of public documents nor will it introduce full harmonization of all existing public documents in the Member States or situations in which they are required in cross-border scenarios by EU citizens and businesses.

This measure covers situations in which public documents are required in cross-border scenarios by: (i) public authorities of the Member States and (ii) entities of the Member States tasked by virtue of an act or administrative decision to carry out public duties.

The aim of this measure is twofold:

· to reduce legal uncertainty, costs and lengthy procedures caused by the above-mentioned disproportionate, burdensome and costly administrative formalities complicating the exercise of the EU citizens' right to free movement and EU businesses' (in particular SMEs) internal market freedoms; and

· to provide necessary safeguards preventing the use of forged public documents within the EU.

While the measure would identify the main categories of public documents, it would not define each and every public document existing in the Member States.

For the purposes of this Impact Assessment Report:

· "Legalisation" is defined as the formal procedure for certifying the authenticity of a signature on a public document, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears. The result is that the foreign public document has the same evidentiary value as the domestic public document as far as proof of its authenticity is concerned.

· "Similar formality" means the affixing of the Apostille, foreseen by the Apostille Convention[1], which proves the authenticity of the public document and thereby abolishes the requirement of legalisation for certain foreign public documents. The Apostille is a simplified form of legalisation.

· "Other formalities" mean the requirement to produce certified copies and certified translations of public documents.

· "Public documents" mean public documents drawn up by authorities of the Member States and having formal evidentiary value relating to birth, death, name, marriage/registered partnership, parenthood, adoption, residence, citizenship, nationality, real estate, legal status of a company or other undertaking, intellectual property rights and absence of a criminal record.

2. Policy context

The 2009 Stockholm Programme ''An open and secure Europe serving and protecting citizens''[2] stressed the importance of making EU citizenship effective and put the citizens at the heart of EU policies in the area of freedom, security and justice. The related Action Plan[3] confirms this mandate and states that a well-functioning European judicial area "should be put at the service of citizens and businesses so as to support economic activity in the single market (…)". In this context, the Action Plan foresees the adoption of a legislative proposal for dispensing with the formalities for the legalisation of public documents between the Member States.

In the same vein, in its Resolution on the Communication on the Stockholm Programme, the European Parliament considered that the priorities in the field of civil justice must first and foremost meet the needs expressed by individual citizens and businesses. Therefore, it "calls for a simple and autonomous European system for (…) the abolition of requirements for legalisation of documents".[4] In response to the invitation of the European Council in the Stockholm Programme, the European Commission adopted in December 2010 a Green Paper on "Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status''[5]. This Green Paper confirms the commitment of the Commission reflected in its 2010 Citizenship Report[6] to facilitate the free circulation of public documents within the EU and thus to simplify the life of citizens.

At the same time, the creation of the EU Single Market received a new impetus with the adoption of the Single Market Act "Working together to create new growth"[7], which aims at boosting the creation of a real integrated economic area for EU citizens and businesses. Fostering mobility of citizens and businesses across borders in the EU is also one of the main cornerstones of the Single Market Act II[8] and a precondition to deliver on its potential. To this end, the Commission is determined to continue working towards its vision of a Single Market where citizens and businesses are free to move cross-border whenever and wherever they want to and without unjustified restrictions caused by diverging national rules.

Consequently, cutting red tape, simplifying the procedures for cross-border use and acceptance of public documents between the Member States as well as harmonizing the related rules contributes to all actions aimed at moving towards the creation of a citizens' Europe and a well-functioning Single Market for EU businesses, especially when considering the challenges of the on-going economic and financial crisis.

This proposal is one of the key initiatives in the European Year of Citizens 2013 and provides at the same time a concrete contribution to the policy of the 'Justice for Growth'. It brings added value by establishing horizontal principles on free circulation of public documents within the EU, complementing existing EU law in this area, filling the gaps in those areas which remain currently unregulated by EU law and supporting all EU initiatives aimed at simplifying the life of citizens and business conditions for economic operators (e.g. Europe 2020 Strategy for growth and jobs, Action Plan on European company law and corporate governance, Digital Agenda for Europe, Entrepreneurship 2020 Action Plan, etc.). In parallel, the proposal promotes the principle of mutual trust between the authorities of the Member States and, at the same time, introduces simplification measures to the benefit of EU citizens and businesses in their contact with these authorities.

3. Procedural issues and consultation of interested parties

Public consultation

The issue of free circulation of public documents was first discussed in the aftermath of the Hague Programme as part of the mutual recognition policy. As a preparatory step, the Commission launched a comparative study on "The difficulties faced by citizens and economic operators because of the obligation to legalise documents within the Member States of the European Union, and the possible options for abolishing or simplifying this obligation", carried out by the British Institute of International and Comparative Law ('the Study of 2007').

A public consultation was carried out by the Green Paper from December 2010 until May 2011. The proposed measure relates to the first part of the Green Paper: 'the free movement of public documents' and does not address the problems described in its second part 'recognition of the effects of civil status records'. The Commission received altogether around 11.480 answers from different stakeholders[9]. The contributions are published on the Europa website: http://ec.europa.eu/justice/newsroom/civil/opinion/110510_en.htm.

The majority of the Member States, as well as of the consulted stakeholders, welcomed the objective to abolish the administrative formalities which are analysed in this Impact Assessment Report. However, they underlined the need to introduce accompanying safeguards, such as the possibility to verify the authenticity of public documents through strengthened EU-wide administrative cooperation in order to facilitate the transition from the current system to the new framework and ensure legal certainty and minimize fraud.[10]

Impact Assessment Study and additional consultations

To support the preparation of this Impact Assessment Report, the Commission requested an external study by Ernst & Young. The final study, presented on 4 September 2012, confirmed the existence of practical problems and the orientations of the Commission. The Commission also took into account the Study of 2007 as well as the study on "Legislation of the Member States on civil status, practical difficulties encountered in this area by citizens wishing to exercise their rights in the context of an European area of justice in civil matters and options available for resolving these problems and facilitating citizens' lives" ('the Study of 2008').

Parallel to the external study, DG Justice continued to meet and consult extensively with relevant stakeholders in 2012 to complete and update the contributions to the Green Paper. Meetings were held with, amongst others, the Council of the Notariats of the European Union (CNUE), the German and Austrian Chambers of Civil Law Notaries, the International Commission on Civil Status (ICCS), the European Association of Registrars (EVS), the European Land Registry Association (ELRA), the European Association of Craft, Small and Medium Enterprises (UEAMPE) and the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). The Hague Conference on Private International Law was consulted as well.

A meeting with Member States Experts was held on 27 September 2012 to discuss a working paper containing the main elements of the proposal. The Commission continued to discuss these elements with experts from several Member States.

Internal consultation

An Interservice Impact Assessment Steering Group (IASG) was established, consisting of representatives of DG Justice, the Secretariat-General, the Legal Service and all operational or otherwise affected DGs i.e. DG TAXUD, DG MARKT, DG ENTR, DG BUDG, DG COMM, DG ELARG, DG EAC, DG EMPL, DG ENER, DG HOME, DG CONNECT, DG AGRI and DG SANCO. IASG meetings were held on 31 May 2012, 28 June 2012 and 22 August 2012. At the meetings and in direct communication with individual DGs which expressed particular interest, comprehensive feedback was received which has been taken into account throughout this Impact Assessment Report.

This Impact Assessment Report was presented to the Commission's Impact Assessment Board on 3 October 2012. The detailed recommendations of the Board contained in its Opinion of 5 October 2012 have been integrated as far as possible in the final version of the Impact Assessment Report, which accompanies the legislative proposal.

Based on those recommendations, the main modifications following the presentation of the Report to the Board can be summarized as follows:

· The presentation of the scale of the problem has been improved, by clarifying the number of EU citizens and businesses (in particular SMEs) moving between the Member States, the number and kinds of relevant public documents that are involved in the exercise of free movement rights and are subject to administrative formalities, the costs and time waste for EU citizens, businesses (in particular SMEs) and national administrations. In addition, other issues defining the overall problem have been pointed out, i.e. uncertainty and difficulties encountered by EU citizens, businesses (in particular SMEs) and national administrations in relation to procedures and rules applied in different Member States/to different kinds of documents, and indirect discrimination between nationals and citizens of other EU Member States as well as between EU citizens from different Member States.

· The gaps of the international acquis and EU legislation have been specified as well as the issue of more problematic documents.

· Subsidiarity and proportionality arguments have been strengthened, based on the gaps in the applicable provisions both at EU and international level, supporting the need for action at EU level in order to obtain the sought-after simplification benefits.

· With regard to the content and choice of the policy options, the practical aspects of their implementation (and, in particular, of the policy options 3 and 4) have been better explained.

As for the possibility for considering some options on a stand-alone basis, it should be noted that sub-options 4.A, 4.B and 4.C on one side, and 4.D-4.F on the other side, have not been explicitly presented on a stand-alone basis, but each sub-option has been assessed by indicating the specific effects that their elements imply, regardless the provisions of the main policy option. This allows the description of the specific impact that these sub-options would achieve. In this respect, DG Justice has also precised that:

· the reinforced administrative cooperation assumes particular relevance when the abolition of legalisation, Apostille and simplification of other formalities is introduced;

· the introduction of EU multilingual standard forms would have only a limited effectiveness in terms of simplification benefits if not accompanied by the abolition of legalisation, Apostille and simplification of other formalities, and would hardly lead to the full achievement of the policy objectives.

· As for the assessment of the impacts, the assessment tables for each policy option and sub-options have been revised in order to better present the efficiency, effectiveness and coherence arguments (with existing rules, agreements) of the proposed measures.

Furthermore, the simplification benefits of the initiative have been emphasized and a detailed assessment of the costs related to the proposed system (i.e. the preferred policy option) have been added.

· Monitoring indicators have been specified in more detail and an operation plan for the evaluation has been defined.

· The stakeholders’ views has been integrated in the assessment of each policy option and sub-option.

4. Problem definition

4.1. General problem

What is the problem?

Today, if EU citizens and businesses (in particular SMEs) want to exercise their free movement rights or internal market freedoms by, for example, choosing to reside or do business in another Member State, they face a series of difficulties when presenting the necessary public documents to its authorities for an indefinite number of purposes and getting them accepted by that Member State contrary to its own nationals and companies. They have to undergo disproportionate, burdensome and costly administrative formalities to prove the authenticity of various public documents and fight legal uncertainty. This phenomenon is exacerbated by the absence of multilingual standard forms at EU level for the most frequently used public documents between the Member States. Difficulties in terms of cost and time arise also for national public administrations.

The formalities of legalisation, Apostille, certified copies and certified translations require administrative steps and involve loss of time and a quite considerable cost which varies greatly from one Member State to another. Furthermore, they do not necessarily prevent fraud and forgery of public documents. As a result, they can be considered outdated and disproportionate mechanisms for ensuring the wished objectives of legal security. More effective, secure and simpler mechanisms or systems should be identified, which would allow consolidating mutual trust and promoting closer cooperation between the Member States within the Single Market, in particular as regards a more effective prevention of fraud and forgery of public documents.

The aim of the EU to be an area of advanced social and economic integration should enable EU citizens and businesses to fully benefit from the rights and freedoms guaranteed by the Treaties and the EU Charter of Fundamental Rights, and entitle them to a simplification of their everyday life and operation.

What is the scale of the problem?

The mobility of EU citizens is a practical reality, evidenced in particular by the fact that some 12 million of them study, work or live in another Member State of which they are not nationals. This mobility is facilitated by the rights attached to citizenship of the European Union: in particular the right to free movement and, more generally, the right to be treated like a national in the Member State of residence. The same is truth for EU businesses (in particular SMEs). Nearly half of them are involved in some sort of international contact and a no less important number makes regularly use of the internal market freedoms through cross-border business transactions or clientele in various Member States.

Although an exact quantification of the public documents needed by EU citizens and businesses moving and doing business within the EU and affected by the identified administrative formalities is not feasible[11], the elements listed below provide a rough estimate to illustrate the scale of the problem:

(i) The number and categories of public documents that are involved in the exercise of free movement rights, which are subject to administrative formalities: notwithstanding the existing provisions of EU law and bilateral and multilateral agreements to which Member States are parties, a wide range of public documents needed to trigger the full enjoyment of the rights and freedoms under the free movement of persons, establishment or provision of services are still subject to legalisation, Apostille, certified copies and certified translations. It is estimated that, each year, around 1.4 million of public documents are exchanged between the Member States and are subject to the Apostille formality[12], whereas a similar number of certified translations and even a large number of certified copies are assumed to be requested from EU citizens and businesses in other Member States on a yearly basis[13].

The above figures represent, however, only a minimum estimate for the overall burden placed on EU citizens and businesses. In this respect, two additional elements have to be considered:

(ii) The number of EU citizens and businesses moving within the EU: potentially millions of EU citizens and businesses are involved. All these citizens and businesses need to produce public documents drawn up by the authorities or authorised entities of a Member State(s) where they have previously resided and to undergo the identified disproportionate, burdensome and costly administrative formalities even after years from moving residence/place of establishment from one Member State to another.

(iii) Costs and loss of time occur for EU citizens, businesses and national administrations, due to both fees paid and time needed to ensure fulfilment of the identified formalities, whereas additional practical difficulties are the result of the underlying legal uncertainty on procedures to be followed and rules to be applied.

In the following paragraphs, the points listed above are examined in more detail.

4.1.1. What are the identified administrative formalities?

While domestic public documents are presumed to be authentic without additional proof (in case of doubt, the supposed author of the document is contacted directly through administrative cooperation), public documents originating from other Member States are accepted in the Member State in which they are presented subject to:

· the proof of their authenticity through

· Apostille or

· legalisation[14];

· a particular form i.e. certified copies and

· certified translations.

The fulfilment of these administrative formalities for the sake of acceptance of public documents in another Member State creates additional costs and inconvenience for EU citizens and businesses.

The administrative formalities in question relate in particular to paper documents, even if they could also be relevant for electronic documents. The authenticity issue of electronic documents are covered by the recent Commission proposal for a ‘Regulation of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market’[15], that aims to create a comprehensive EU cross-border and cross-sector framework for secure, trustworthy and easy-to-use electronic transactions that encompasses electronic identification, authentication and signatures. The latter proposal, however, doesn’t explicitly abolish the formalities of legalisation, similar formality or other administrative formalities for public documents to which it relates. At the end, both proposals would complement each other.

4.1.2. What are the public documents concerned by these administrative formalities?

The principal function of public documents is to provide factual proof of the acts of a public authority recorded therein. The process of fulfilment of an EU right may involve the requirement for the person claiming such right to provide a proof of the existence of certain factual circumstances under which the entitlement to that EU right exists. Consequently, public documents fulfil an essential function for the purpose of ensuring the exercise of EU rights. In this context, a wide range of public documents can be requested from EU citizens and businesses when moving between different Member States.

Typical examples of most frequently used public documents related to EU rights of EU citizens and businesses, which are subject to the identified administrative formalities Public documents of EU citizens: Civil status records (e.g. documents relating to birth, death, name, marriage, registered partnership, parenthood and adoption); Documents relating to residence, citizenship and nationality; Documents relating to real estate; Documents relating to intellectual property rights; Documents proving the absence of a criminal record. Public documents of EU businesses (companies and other undertakings): Documents relating to their legal status and representation; Documents relating to real estate; Documents relating to intellectual property rights; Documents proving the absence of a criminal record.

4.1.3. Who is mainly affected by these administrative formalities?

Although there may not necessarily be a direct correlation between the data on intra-EU mobility and economic activities and the amount of public documents used across borders, moving between different Member States for a range of life and business events often implies the fulfilment of administrative and legal requirements, including the requirements of legalisation, Apostille, certified copies and certified translations for the described categories of public documents. The latter requirements affect high numbers of both EU citizens and businesses that, increasingly, exercise their free movement rights guaranteed by the Treaties and the Charter.

EU citizens

In the last ten years, the free movement of EU citizens across Member States has become a steadily increasing phenomenon, as more and more citizens move every year within the EU to live, work or study. Around 2.5% of the EU population is residing in a Member State other than their Member State of origin[16]. In the last decade, larger numbers of EU-27 citizens took advantage of free movement. In 2011, around 12 million EU citizens resided in a Member State other than the Member State of origin; 1 million more than in 2009 and 24% more in comparison with 2007. There are multiple reasons for moving within the EU[17], although work is one of the most driving forces[18]. Indeed, out of 12.6 million EU citizens residing in a Member State other than their Member State of origin, 6.3 million are employed in the host Member State[19]. Marriages also motivate intra-EU mobility, whereby the percentage of international marriages on all marriages concluded in the EU for 2007 was 13%[20].

EU citizens exercising their free movement rights, wishing to live, work or study in another Member State, are requested to provide several categories of public documents in the host Member State, for an indefinite number of purposes such as getting married or divorced, obtaining a residence certificate or a driving licence, having access to social services, having access to tax benefits or avoiding double taxation, looking for a job, etc.

In all these situations, EU citizens are faced with various practical difficulties, requested to undergo additional administrative formalities and to spend a disproportionate amount of time and money to produce these documents in the host Member State(s).

A marriage between citizens from two Member States: cross-border use of civil status documents

Case example: Timea (a Hungarian citizen) married Matthias (a Belgian citizen) in Hungary.

They were misinformed by the Hungarian administrator, who realized too late that they needed the Apostille and not just a translation of Matthias’s civil status documents. Consequently, the couple’s file was not ready in time for the wedding. Moreover, they were further delayed by the translation issue. It emerged that the Apostille also had to be translated. Obviously, this required additional time. Once married, Timea and Matthias also had a problem with having the marriage certificate accepted in Belgium. Again, an Apostille was necessary from the Hungarian Ministry of Foreign Affairs. However, as the couple lives in Belgium, they had difficulties in sending the papers to Hungary to be apostilled and receiving them back. Another unexpected problem arose from the fact that the Apostille can only be attached to these types of documents when they are less than 3 months old. Theirs were 4 months old, so the couple was forced to ask the authority where they got married to issue a new original marriage certificate and then ask for another Apostille on it. Finally, in Hungary, all civil status documents need to be translated by the National Office for Translation, i.e. an accredited official translator is not sufficient. This means that even if you live abroad, you have to go to Hungary to submit the documents for translation to this office, and it is much more expensive than standard translations.

Impact: As an overall consequence, this marriage requested a disproportionate amount of money, time and stress to arrange all the administrative formalities[21].

Difficulties in the circulation of tax certificates and double taxation

Case example: An Italian citizen lives and works in Germany with his family. When he asks for the application of a more favourable tax class (i.e. the more favourable conditions applicable to married workers living with spouses who are not in paid employment), he is requested to produce a set of documents (e.g. certificates from the tax authorities of the Member State of origin or a marriage certificate) which also involves the obtaining of documentary evidence from abroad and the requests for an Apostille for each document to be presented in Germany accompanied by certified translations.

Impact: These requirements hinder or delay the correction of the tax class. In the present case, the Italian citizen and his wife suffered a rather significant economic loss[22].

EU businesses (in particular SMEs)

According to 2010 data, there are almost 21 million SMEs in the EU, representing over 99.8% of EU companies and other undertakings. More than 44% of them are involved in some form of international contact. The data collected show that:

· nearly 30% of SMEs are engaged in import/export activities;

· 2% have foreign direct investments abroad[23].

Moreover, about 7% of all EU SMEs are involved in international subcontracting practices (i.e. more than 1.4 million SMEs out of 21 million). While most of the EU SME subcontractors (90%) operate with client enterprises located within their own Member State, about 26% also have clients in other Member States (i.e. about 383.000 SMEs).

The increasing cross-border activity of EU SMEs implies that a wide range of public documents, used for business purposes, has to undergo these formalities[24]. This is the case for a high number of documents (see table on typical examples of public documents above), that are requested in the context of performance of cross-border activities, typically, in the context of establishment of an economic activity in another Member State or participation in cross-border public tenders. Administrative burdens due to legalisation, Apostille, certified copies and certified translations are among the reasons negatively affecting cross-border activities of EU businesses as well as their competitive force in comparison with similar businesses from third States[25].

Establishing an economic activity in another Member State

Case example: The Italian regulation on incorporation of companies, branches and representative offices as well as the common practice of local public notaries are quite burdensome. Different public documents are required to be filed, in Italian, with Italian public (civil) notaries and the local Register of Companies. In particular, when the above-mentioned documents (e.g. certificates related to the legal status and representation of a company) come from another Member State, they must be authenticated usually by a public (civil) notary who also certifies their compliance with the local rules and attaches an Apostille (unless this is not required due to bilateral agreements between Italy and the other Member State). A certified translation into Italian is also required.

Impact: Fulfilling the administrative requirements for establishing a business in Italy can require lengthy procedures and high costs (i.e. only certified translations can cost a few thousand euro) [26].

Administrative formalities in EU public procurement

Case example: A German company applied for a public contract in the Czech Republic. With its bid it had to provide a large number of documents and certificates proving its reliability (e.g. absence of a criminal record concerning its CEOs). The company faced various problems while preparing these documents, including their certified translations.

Impact: The company had to spend money and time to provide certified translations of the requested documents.[27]

For further examples, please see Annex 7.

Administrations

Finally, public administrations of the Member States (e.g. civil registrars, officers of business registers, competent authorities involved in the procedures for legalisation/issuance of the Apostille) also face difficulties when applying the requirements of legalisation, Apostille, certified copies and certified translations. They have to identify which law applies and which documents have to be authenticated, which further increases the disproportionate costs and time caused by the related procedures.

4.1.4. Why are these administrative formalities disproportionate?

Legalisation and Apostille are disproportionate because they:

(i) imply a negative presumption as regards the authenticity of public documents originating in other Member States contrary to the principle of mutual trust between the Member States;

(ii) create additional costs and delays, and constitute obstacles to the full enjoyment of EU fundamental rights and freedoms of EU citizens and businesses;

(iii) are unsuitable to effectively prevent fraud in relation to the cross-border use of public documents, as they are themselves sensitive to fraud;

(iv) are old fashioned compared to the technological progress since their introduction.

It can appear disproportionate that e.g. a university requires certified copies of school certificates, whereas a tax or social security office accepts also simple copies of a similar or equivalent category of public documents (naturally provided that the originals are available upon request for inspection in the case of genuine doubt) within the same Member State. Indeed, the practice differs in the Member States depending on the purpose of the presentation of the public document and its type. This phenomenon is further exacerbated when public documents are needed in the cross-border context.

Certified translations appear disproportionate unless the Member States have reasonable doubt about the correctness or quality of the translation of the public document in an individual case. Such a scenario would be more in line with the principle of mutual trust between the Member States.

On the whole, in spite of the limited effectiveness of these formalities in ensuring the authenticity of public documents in practice or effective protection against fraud, disproportionate costs and time requirements are placed on EU citizens, SMEs and public administrations in each Member State (see the boxes below).

Costs and delays for EU citizens and businesses due to administrative formalities[28]

A. The scale of costs and time requirements for EU citizens and businesses related to the Apostille as the main formality for authentication of public documents

Considering that fees differ significantly between the Member States, the average cost for obtaining an Apostille amounts to € 13,20 (see Annex 11). Moreover, to overcome difficulties related to obtaining the Apostille, EU citizens and, most of all, EU businesses, can rely on service providers (i.e. private agencies) that will attend to all the administrative formalities on their behalf. The cost of such services varies according to the type of documentation, the number of pages, the country of origin and the time required but, generally, prices range between € 60 and € 450.

Over the course of one year, it can be estimated that the cost for EU citizens and businesses for obtaining the Apostille for intra-EU use amounts to over € 25 million (see Annex 11, Annex Table 7). The expenses for EU citizens and businesses are obviously much higher in the case of recourse to private service providers.

Although there are some Member States that issue Apostilles immediately, the majority of Member States need one working week.

B. The scale of costs for EU citizens and businesses related to legalisation

The cost of legalisation of public documents not covered by the Apostille Convention is significant, with a maximum price of € 80 (Germany) and an average price of € 16,50 (see Annex 11, Annex Table 9). Since the Apostille largely replaced legalisation in the EU for a wide range of documents, the costs resulting from legalization could be assumed to be lower than the costs of the Apostille. For example, assuming that the number of legalisation procedures is equal to 10%-20% of the number of Apostilles issued for intra-EU use, the total cost of legalisation procedures for EU citizens and businesses would range between 2.3 and 4.6 million on an annual basis[29].

C. The scale of the costs for EU citizens and businesses related to certified copies of public documents

The certified copy of a public document is generally provided by the public authority issuing the public document itself. In these cases, obtaining a certified copy can be free of charge, although in some cases limited fees can be applied. For example, in Italy, while the issuance of certified copies of civil status certificates is generally free of charge, the issuance of such copies of certificates from business registers for SMEs can range between € 5 and € 7.

In some Member States[30], notaries are involved in the process of issuing certified copies of documents in diverse situations, such as marriages, registered partnerships, extracts from company registers or real estate transactions. Notarial service fees are highly variable, depending on the type of the document and Member State (in Italy, the cost can range from € 6 to € 30 per page[31], in Spain, it is about € 3 per page[32]).

The minimum burden which would be placed on EU citizens and businesses can be calculated as follows: considering at least one working hour spent for obtaining a certified copy (with a cost equal to about € 23, based on the average hourly labour cost in the EU) and a minimum average fee equal to € 3, the total amount of money spent by EU citizens and businesses for obtaining certified copies of public documents to be used in cross-border situations would be in the order of 75-100 million[33].

D. The scale of the costs for EU citizens and businesses related to certified translations of public documents

In general (given that they vary between the Member States), the costs of certified translations can be calculated on a basis of € 30 per page (i.e. a 10 pages document can cost up to € 300[34]). The estimated cost for certified translations required for a cross-border marriage amounts to € 120 for the majority of Member States, as shown in 0, Annex Table 1. A certified translation of a tax return can cost up to € 300. Even more expensive are certified translations of certificates of registration to the enterprise registry: they generally consist of 20 pages and their certified translation by accredited translators can cost up to € 1.800.

Based on the number of Apostilles (i.e. estimated as 1.4 million documents each year), 90% of them have to be accompanied by a certified translation (i.e. 1.3 million documents)[35]. At the same time, there are public documents that do not need the Apostille, but they would need to be accompanied by a certified translation (we can assume 30% of documents moving across the EU, i.e. 420.000 documents)[36].

On the whole, more than 1.6 million public documents would need a certified translation. Based on the assumption that a public document can be, on average, made up of 3 pages (most of the civil status documents, such as birth or marriage certificates, are 1 page documents, whereas other documents, such as tax returns, can reach 10 pages) and considering a cost equal to € 30 per page, we can assume that the magnitude of costs of certified translations for EU citizens and businesses would amount to € 100-200 million per year.

Costs and delays for public administrations

Example showing the scale of costs and time requirements for administrations related to the Apostille as the main formality for authentication of public documents

Based on the time required to issue an Apostille[37] and on informal interviews with public administrations that issue an Apostille immediately (who reported that this takes up 30 minutes of a civil servant’s time[38]), it is possible to estimate that the average amount of hours required by a public administration to issue an Apostille is about one hour. The average hourly labour cost for EU27+1 Member States is calculated to be € 22,6.

The estimated total costs faced each year by the different public administrations involved in the issuance of the Apostille amount to approximately € 31-33 million. After deducting fees paid by citizens in the range of € 25 million, the annual net costs for EU administrations issuing the Apostille could be estimated in a range between € 5 million and € 7 million.

4.1.5. In which situations are these administrative formalities required?

Legalisation, Apostille as well as certified copies and certified translations are required for the cross-border use of public documents in the following scenarios:

(i) when they are presented to public authorities of a different Member State from that in which they were issued (e.g. certificate of no-impediment in the case of a cross-border marriage);

(ii) when they are presented to private or semi-public entities (such as banks or notaries) in the course of exercise of their public duties in a different Member State from that in which they were issued (e.g. tax residence certificate provided to a bank in order to benefit from a withholding exemption foreseen by a bilateral treaty).

Although the requirement to obtain administrative formalities for the cross-border use of certain public documents has been to some degree abolished or simplified through sectoral EU law and multilateral or bilateral agreements, such a trend is far from being the norm. On the contrary, it represents a serious shortcoming at both EU and international level and complicates the life and business of EU citizens and businesses.

Shortcomings of existing EU laws addressing such formalities

In addition to national rules, the circulation of public documents is also ruled by EU sectoral law (see Annex 5) and international instruments (see below as well as Annex 3, 4 and 6). EU law addresses the issue of authenticity of public documents on a sectoral basis, sometimes explicitly, but generally in an inconsistent and piecemeal manner. In general, three approaches can be distinguished: 1. the relevant instrument of EU law explicitly exempts the documents from the authentication requirement (e.g. court judgements under the majority of civil justice instruments), 2. the relevant instrument of EU law contains no explicit reference to authentication, but provides for other means to verify the authenticity of public documents originating in other Member States (e.g. mutual recognition of professional qualifications) and 3. the instrument contains neither an explicit reference to the abolition of authentication, nor does it provide alternative means to this end (e.g. free movement of persons). As regards other formalities (e.g. certified copies and certified translations), there are only few examples in the existing EU law which provide that Member States may not require a document to be produced in its original form, or as a certified copy or as a certified translation.

From this results that the existing sectoral EU law does not provide satisfactory solutions for an easier acceptance of public documents in the Member States and contains a number of shortcomings.

An example of a sectoral EU law simplifying the cross-border circulation of public documents is Directive 2005/36/EC on the recognition of professional qualifications[39]. The Directive stipulates that, where the competent authorities of the host Member State decide on an application for authorisation to pursue the regulated profession in question, those authorities may request certain documents and certificates. In situations of reasonable doubt, the host Member State may require from the competent authorities of the Member State of origin confirmation on the authenticity of the attestations and evidence of formal qualifications awarded in the Member State of origin. Nevertheless, the Directive does not contain a provision that would explicitly exempt public documents within its scope from legalisation or similar formality. Consequently, it does not provide for the necessary level of legal certainty for EU citizens and businesses.

Shortcomings of existing international law instruments addressing such formalities

There is, in addition, a vast body of international conventions applying diverging approaches to these aspects of public documents, including the Apostille Convention, the Convention abolishing the legalisation of documents in the Member States of the European Communities of 25 May 1987 (the 1987 Brussels Convention) and different Conventions of the International Commission on Civil Status (CIEC).

In total, more than 100 bilateral agreements apply between the Member States (see Annex 6) that explicitly provide for the exemption of public documents from legalisation and Apostille. Nevertheless, it is only in 75 out of 600 possible situations in which documents move between the Member States that all legalisation formalities have been completely abolished, on the basis of the Brussels 1987 Convention (not in force, but applied provisionally between six Member States) and approximately 22 bilateral agreements[40]. In most cases where legalisation formalities have not been abolished, they have been replaced by the Apostille, which remains a simpler but still burdensome procedure.

From these results that the existing international law instruments do not provide satisfactory solutions for an easier acceptance of public documents in the Member States and contain a number of shortcomings.

Shortcomings of the Apostille Convention

The legalisation process was replaced by the issuance of a standardised Apostille in all EU Member States as well as a large number of third countries through the Apostille Convention for certain categories of public documents. However, the most visible shortcomings of the Apostille Convention are the following:

(i) it is outdated, since it was adopted in a different legal and political culture of the early sixties and was not modified since;

(ii) it uses old fashioned and abstract legal terms motivating diverging interpretations by the State parties;

(iii) it applies only to limited categories of public documents and does not exempt public documents executed by diplomatic or consular agents and administrative documents dealing directly with commercial or customs operations from the legalisation requirement (for documents belonging to the mentioned categories, legalisation is still required);

(iv) it leaves excessive discretion to its State parties on the form of the public document to which an Apostille can be attached with the consequence that in the majority of cases a prior certification is required;

(v) its application increases legal uncertainty among public authorities and those presenting the public documents (i.e. EU citizens and businesses) regarding the scope of application of the Convention and whether or not an Apostille continues to be required when EU law or an bilateral agreement preclude this formality;

(vi) even as a simplified form of legalisation, its application requires a disproportionate amount of costs and time;

(vii) it does not provide for a sufficient fraud prevention mechanism due to the lack of an effective administrative cooperation as well as supervision and policing tools[41];

(viii) it allows the State parties to conclude bilateral agreements going beyond its scope to the detriment of legal certainty[42].

Shortcomings of the CIEC Conventions

The CIEC[43] introduced several Conventions abolishing legalisation for specific types or categories of public documents concerning civil status[44]. Three out of these Conventions deal directly with the legalisation of civil status records. The CIEC Conventions have also introduced model (multilingual) extracts from certain of these records and facilitated, to certain extent, the administrative cooperation in terms of information and document exchange between the competent public authorities of the participating States. Despite all these developments, the extent of the positive impact of these Conventions remains limited because:

(i) they are outdated and dominated by non-EU concepts of the circulation of public documents;

(ii) they only apply to a small number of Member States[45] and cover a limited category of public documents effecting citizens (i.e. civil status documents);

(iii) the multilingual extracts introduced by the Conventions are only related to birth, marriage and death;

(iv) they do not abolish the requirement of certified copies and certified translations;

(v) due to the mix of EU and non-EU members in the CIEC, they do not provide for an effective administrative cooperation;

(vi) they do not promise real expectation of speedy progress on all these issues.

Shortcomings of the 1987 Brussels Convention

The Apostille has been abolished by the 1987 Brussels Convention. The Convention applies to a wide range of public documents and establishes basic administrative cooperation[46]. It should be, however, emphasised that its positive impact in the context of the EU is minimal because:

(i) it has not entered into force since it has not been ratified by all Member States. As of today, the Convention has been ratified and is applied provisionally by only six Member States,[47] and remains predominantly unknown or obsolete (even in those Member States which should normally apply it in between themselves) [48];

(ii) it does not abolish certified copies and certified translations of public documents and deals only with legalisation and Apostille;

(iii) its administrative cooperation is not elaborated in detail and left to the discretion of the Member States. Furthermore, it is not supported by any network and functions without the indispensable electronic support or other effective and secure means to detect fraud and forgery of public documents;

(iv) it allows Member States to conclude bilateral agreements going beyond its scope to the detriment of legal certainty.

It is worth mentioning that, on the other hand, no specific and persuasive arguments against the ratification of this Convention by the Member State have been identified. On the contrary, the replies to the Green Paper launching the present initiative[49] prove the broad acceptance and willingness of the Member States to abolish the formalities linked to the circulation of public documents in the EU, based on the principle of mutual trust among the authorities[50].

Shortcomings of the existing EU and international laws on certified copies

Certified copies have been abolished to some extent by a limited number of EU sectoral law[51]. For illustration, Article 5-(3) of the Services Directive (2006/123/EC)[52] provides that Member States may not require a document from another Member State to be produced in its original form, or as a certified copy […], save in the cases provided for in other Community instruments or where such a requirement is justified by an overriding reason relating to the public interest, including public order and security. On the other hand, the international law instruments identified above contain practically no references to certified copies.

Moreover, the issue of the form in which public documents are accepted is not regulated in a uniform manner among the Member States. Generally, simple copies of public documents are not accepted by the Member States but originals and/or certified copies of public documents are required. In most Member States, a simple copy is not a public document and would therefore need to be certified before an Apostille is issued or legalisation is performed. Even in cases were legalisation and Apostille are abolished, the original form or a certified copy has to be provided and simple copies are not allowed.

Shortcomings of the existing EU and international laws on certified translations

Certified translations were abolished to some extent by a limited number of EU sectoral law which contains an explicit reference to this administrative formality. Using the example of Article 5(3) of the Services Directive, Member States may not require a document from another Member State to be produced in its original form […] or as a certified translation, save in the cases provided for in other Community instruments or where such a requirement is justified by an overriding reason relating to the public interest, including public order and security. As for the mentioned international law instruments, they do not abolish the requirement of certified translations.

In any case, this administrative formality is outdated and creates additional costs and time. This can be illustrated on the example of certificates of registration used by EU companies, which when translated by an accredited translator can cost up to € 1.800. Moreover, this practice doesn’t correspond with practical needs of EU citizens and businesses when using well known shorter standard documents and can be therefore qualified as superfluous in a high number of cases.

The absence of multilingual standard forms of the most frequently needed public documents at EU level further increases the translation requirements imposed on EU citizens and businesses when moving across the EU[53].

4.2. The fragmentation of the overall framework and the uncertainty affecting EU citizens, businesses and public administrations

In addition to the fragmentation of the EU and international legal framework with respect to the cross-border movement of public documents and the associated administrative formalities, differences in national systems also exist in terms of:

– the authorities involved in the procedures of legalisation, similar formality (Apostille) and issuance of certified copies and certified translations on the one hand, and acceptance of public documents on the other hand;

– incorrect implementation of these administrative formalities (e.g. due to the lack of legal knowledge of public officials, issuance of Apostilles for documents which fall out of scope of the Apostille Convention), combined with incorrect application of EU secondary law (e.g. request for authentication formalities not required by sectoral EU law).

The overall result is a high level of uncertainty and practical difficulties affecting all the parties involved which have to deal with the lack of clarity as to which procedures and rules to apply for the use of different public documents across the Member States. In addition, the identification of competent authorities for the issuance and acceptance of these formalities in the Member States proved to be a critical issue for EU citizens and businesses.

4.3. Detection of fraud and forgery of public documents

An important issue concerns the detection of fraud and forgery of public documents in their cross-border use under the current regime, in particular in the course of application of the Apostille Convention. The Apostille may be detached from one public document and reattached to another document. In addition, the Apostille stamp and seal can easily be recreated leading to the abuse of Apostille certificates (see the example below). Thus, the prevention of fraud in this area is not impeccable.

It is also worth restating that the Apostille Convention does not provide for supervision of the Apostille system, including penalties or other sanctions for fraudulent activities, as well as for effective administrative cooperation preventing fraud and forgery of public documents. Indeed, notwithstanding their availability, systems for administrative cooperation among Member States are in practice never or, at best, very rarely used, due to a set of practical problems, such as language barriers, difficulties to find the involved authorities in the other Member State or to consult registers in paper form or located at local level.

As a conclusion, the extent to which the Apostille Convention adequately protects the Member States’ interest of fraud prevention in relation to foreign public documents is largely questionable.

Example of fraudulent practices under the Apostille Convention

According to the Hague Conference on Private International Law (HCCH), many States have expressed concerns about fake academic credentials issued by "diploma mills", which may benefit from the Apostille process through notarisation. If a notarial certificate issued for a fraudulent educational document is valid, then there is nothing in the Convention to prevent an Apostille from being issued for the notarial certificate. Furthermore, in the absence of effective communication between the authorities of the Member States in order to verify the authenticity of public documents, the Apostille certificate itself can also be abused in order to 'pretend' the authenticity of public documents.

Notwithstanding the efforts of the HCCH to introduce the Electronic Apostille Pilot Project[54], the potential risk of fraud and forgery of apostilled public documents remains. This is mainly due to its limited scope, experimental phase involving a minimal number of Member States and the possibility of a fraudulent re-use of an electronic Apostille.

4.4. Risk of discrimination

EU law allows for some degree of differential treatment or 'discrimination' between domestic public documents (originating in one of the Member States) and foreign public documents (issued in third countries) if this is proportionate to the objective differences between such public documents. The Member States, however, do not only make distinction between domestic and foreign public documents, but also between the same types of public documents of different Member States as far as their authentication is concerned.

The requirement of a Member State to authenticate public documents originating in other Member States, including the formalities it involves, does not amount to direct discrimination. The requirement is, however, indirectly discriminatory, since it is a measure that is intrinsically liable to affect non-nationals more than nationals in relation to the exercise of fundamental rights and freedoms guaranteed by EU law[55].

In general, national authorities are not familiar with the requirements applicable to public documents in the Member State of origin, including their signatures, seals and stamps. This cannot, however, justify different treatment between domestic public documents and public documents originating in other Member States. At the same time, it must be acknowledged that the improvement of mutual trust between authorities in this area depends also on measures at EU level aimed at familiarising authorities with the form and substance of public documents of other Member States.

4.5. How would the problem evolve in the base-line scenario?

Assuming that the current framework remains unchanged, the identified problems would remain and worsen, as the need for public documents in cross-border situations steadily increases. The acceptance of public documents in other Member States than the Member State of origin would continue to be regulated by the existing rules at EU, international and national level and the circulation of public documents would continue to be restricted. The current legislative patchwork would further increase with a negative impact on legal certainty and security of EU citizens and businesses. At the same time, the public officials involved in the fulfilment of the administrative formalities in question would continue to face difficulties due to the lack of information on the applicable legal requirements in various Member States.

One might expect a certain improvement on the listed shortcomings of the Apostille Convention arising from the effective implementation of the ongoing Electronic Apostille Pilot Programme (e-APP) and the related e-Registers. However, this programme is currently implemented by only a minimal number of Member States and is still in a process of development. Moreover, although the electronic Apostille would to a certain extent simplify the movement of public documents and reduce costs, the problems in terms of fragmentation and overall uncertainty (e.g. lack of clarity as to which documents need to be apostilled and competent authorities involved) would remain.

Similarly, the use of electronic documents and electronic certified copies is expected to increase. Although this might in principle simplify the circulation of public documents, the downside would be further fragmentation (depending on the sectors and areas of EU law which will be concerned and different timing of these developments).

Moreover, as far as can be estimated to date, switching to electronic operations, for all public authorities in the EU, will take a long time, also due to the huge costs involved and certain additional security levels, above those of private entities, which public authorities are bound to observe. While the share of documents transmitted electronically is likely to increase in the future, paper documents will continue to circulate for a long time and an action in this field remains highly relevant.

Therefore, notwithstanding certain positive tendencies, the need to complement the existing EU law, by filling the gaps and to further simplify the overall framework regulating the circulation of public documents, remains a highly relevant issue to be addressed.

In conclusion, the existing situation would continue to produce costs, delays and dissatisfaction among EU citizens and businesses. If we put aside potential developments through sectoral harmonisation of EU law, the applicable legal framework would remain highly unclear and continue creating legal uncertainty as well as risks of indirect discrimination between EU citizens and businesses. Finally, the protection against fraud and forgery of public documents would rely on traditional methods of administrative cooperation introduced, in limited areas, by international conventions and/or EU legislation. As for the expected developments of the status quo, the practical obstacles to the cooperation and communication among the Member State authorities would remain basically unchanged (e.g. difficult communication due to language problems, obstacles when consulting registers in paper form or located at local level)[56].

5. Does the EU have the power to act?

5.1. Legal basis

The EU's competence to act in the area of use and acceptance of public documents between the Member States stems from two different provisions of the Treaty on the Functioning of the European Union (TFEU).

Article 21(1) TFEU provides that every EU citizen shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. Article 21(2) TFEU empowers the EU to adopt provisions with a view to facilitating the exercise of this right. Obstacles to the cross-border use and acceptance of documents have a direct impact on the free movement of citizens. Thus, removing or reducing these obstacles would facilitate the exercise of the free movement of citizens as foreseen in Article 21(2) TFEU.

Article 114 (1) TFEU empowers the European Parliament and the Council to adopt measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. Obstacles to the cross-border use and acceptance of documents have a direct impact on the full enjoyment of the internal market freedoms by EU businesses as described in Article 26 (2) TFEU and referred to in Article 114 (1) TFEU. It therefore could be the suitable complementary legal basis to cover public documents used by EU businesses in cross-border scenarios within the internal market.

For these reasons, the EU should ensure that effective and proportionate measures are in place to reduce legal uncertainty, costs and lengthy procedures caused by legalisation, Apostille as well as certified copies and certified translations, including additional necessary safeguards preventing the use of forged public documents within the EU.

5.2. Subsidiarity test: Why the EU is better placed to take action?

As described in the problem definition, the need for the identified administrative formalities continues to cause practical difficulties, delays and costs for EU citizens, businesses and public administrations and hinder the full enjoyment of their free movement rights.

The EU is better placed than the Member States to take action to abolish legalisation and Apostille as well as to simplify the use of certified copies and certified translations and, at the same time, to ensure a solid and coherent EU cross-border and cross-sector framework for the circulation of public documents between the Member States, including a more effective level of detection of their fraud and forgery. This is because these problems have a purely cross-border dimension and cannot by their nature be properly dealt with at the level of the Member States, since their partial efforts are further increasing the existent legislative patchwork. In addition, the Member States are unable to offer effective solutions to the relating challenges due to their EU dimension. Although the majority of the Member States are bound by a number of diverging multi/bilateral agreements abolishing or simplifying these formalities, the creation of a level playing field at EU level would require a complex re-negotiation and re-design of these agreements. This could be an extremely difficult and lengthy process.

An EU level action would help EU citizens and businesses to use different categories of public documents in cross-border situations without disproportionate, burdensome and costly administrative formalities. For these reasons, EU action would ensure higher efficiency.

The adoption of a directly applicable simplifying measure containing horizontal principles on the free circulation of public documents between the Member States demonstrates clear added value of an EU action.

Action at EU level would respect the proportionality principle by focusing only on the abolition of the identified administrative formalities, with the necessary accompanying elements, but not striving at full harmonisation of public documents and rules governing their circulation within the EU.

Moreover, the EU action would not interfere in purely domestic scenarios. It would also not affect any applicable sectoral EU law prescribing the identified formalities in justified cases, introducing harmonised forms of documents or establishing tailored administrative cooperation. Thus, the EU action would not go beyond what is necessary to achieve the objectives.

6. Objectives

Through a horizontal approach, the general objective of the Commission' proposal is to facilitate and enhance the full exercise of EU citizens' right to free movement within the EU and of EU businesses' (in particular SMEs) right to freedom of establishment and freedom to provide services within the Single Market. EU citizens and businesses should not be prevented or discouraged from exercising their rights guaranteed by the Treaties, including those enshrined in the EU Charter of Fundamental Rights, by the incompatibility or complexity of legal and administrative systems in the Member States. The general and specific objectives of the proposal are summarised in the following table:

Objectives:

General || · Facilitate and enhance the full exercise of EU free movement rights by EU citizens and businesses.

Specific || · Reduce difficulties caused by administrative formalities for the acceptance of public documents originating in other Member States. · Simplify the fragmented legal framework regulating the circulation of public documents between the Member States. · Ensure a more effective level of detection of fraud and forgery of public documents. · Eliminate risks of discrimination among EU citizens and businesses.

Operational || · Cut costs and delays caused by legalisation, similar formality (i.e. Apostille) and other formalities (certified copies and certified translations) for EU citizens, businesses and public administrations. · Reduce the need for translation of public documents within the EU. · Promote an efficient and secure cooperation exchange among Member States authorities as a means to verify the documents’ authenticity.

7. Description of policy options

7.1. Policy options

The following five policy options and seven sub-options under policy option 4 have been considered and further developed:

Policy Option 1: Retention of the status quo (base-line scenario)

Under this option, no new action would be taken at EU level to remove the identified problems. The circulation of public documents would continue to be regulated by the fragmented legal framework at EU, international and national level as explained in section 4.5.

Policy Option 2: A non-legislative measure promoting best practices between the Member States in order to facilitate cross-border circulation of public documents

According to this option, a non-legislative measure, such as a Communication, would promote best practices between the Member States in order to facilitate cross-border circulation of public documents, including the exchange of information and training for officials involved as well as the drafting of codes of conduct, in order to improve the level of information addressed to EU citizens and businesses. These activities would take place in a structured form, e.g. through the organization of information campaigns.

Policy Option 3: Ratification of the 1987 Brussels Convention by all Member States

Under this option, the Commission would encourage the ratification of the 1987 Brussels Convention by all Member States with the aim to abolish legalisation and Apostille for a wide range of public documents. In addition, an administrative cooperation as foreseen in the Convention would be used and extended to all Member States. This cooperation would enable the competent authorities to verify the authenticity of public documents in situations of serious doubt, however, without an electronic support or other secure network.

This policy option is to be understood as a “non-legislative” option since the ratification of the 1987 Brussels Convention would not occur by a legislative act of the EU itself. The Member States themselves would have to act by ratifying this Convention, following the recommendation of the Commission (addressed particularly to those Member States that haven’t done so yet). To this purpose, the Commission would issue e.g. a Communication.

Policy Option 4: A legislative measure promoting the free movement of citizens and businesses by simplifying administrative formalities related to the use and acceptance of certain public documents in the EU, complemented by improved administrative cooperation between the Member States and issuance of multilingual standard forms

This policy option would consist of a legislative instrument abolishing legalisation and Apostille for the most frequently required public documents between the Member States by incorporating the principles of the 1987 Brussels Convention into EU law. The scope of the instrument would be defined in accordance with a comprehensive list of public documents, enabling its potential extension through future regular reviews. Moreover, since the formalities related to certified copies and certified translations of public documents are not covered by that Convention, the scope of the initiative would be broadened. Considering the importance of providing for an effective mechanism for authenticity verification of public documents in cases of reasonable doubt, this option would be accompanied by (i) improved administrative cooperation based on efficient and secure cross-border information exchanges. An additional important element aimed at reducing the remaining translation burdens for EU citizens, businesses and national public administrations consisting in the (ii) issuance of multilingual standard forms at EU level for the most frequently used national public documents would be added.

(i) Improved administrative cooperation

In order to guarantee the integrity and security of public documents as well as the necessary certainty for public authorities, the instrument would establish an accompanying measure, i.e. an improved administrative cooperation. Such cooperation would enable the public authorities and entities authorised by virtue of an act or an administrative decision to carry out public duties[57] in the receiving Member States to submit requests for information on the authenticity of public documents in cases of reasonable doubt.

These authorities or entities could submit similar requests in order to obtain certainty as regards the authenticity of certified copies of public documents. The improved administrative cooperation would be supported by electronic means and adapted to the needs of the authorities authorized to transmit and receive requests, i.e. facilities for communication exchange. The new system would also provide translation functionalities to facilitate the mentioned information requests. Thereby, the proposed cooperation system would contribute to the specific objective of reducing difficulties caused by administrative formalities for the acceptance of public documents originating in other Member States. It will also ensure a more effective level of detection of fraud and forgery of public documents, which represents another specific objective of this measure. Indeed, whereas under the current situation there exists only an incomplete, fragmented or partial protection against fraud (since the Apostille is vulnerable to fraud and communication among authorities is limited), the authorities of the Member States would be encouraged to effectively and promptly solve potential reasonable doubts on the authenticity of public documents, with the support of secure electronic means ensuring their permanent interaction.

All this should be reinforced by the appropriate training and awareness measures for the administrations involved.

It is important to stress that the envisaged administrative cooperation would not interfere with other systems of administrative cooperation established by Union law which provide for exchange of information between the Member States in specific areas, such as the CCN/CSI system in the area of taxation and customs.

This improved administrative cooperation can be addressed by 3 sub-options:

Sub-option 4A: administrative cooperation as foreseen under policy option 3.

Sub-option 4B: administrative cooperation based on the Internal Market Information System (IMI), offering translation facilities (multilingual tool) and a mechanism for fast and secure cross-border information exchanges. Such cooperation would be in line with the new Regulation of the European Parliament and of the Council on administrative cooperation through the Internal Market Information System (the “IMI Regulation”)[58].

In practical terms, this sub-option would require an amendment to the IMI Regulation (No 1024/2012 of 25 October 2012), by adding the present legislative instrument to its Annex titled "Provisions on administrative cooperation in Union acts that are implemented by means of IMI, referred to in Article 3". To address the specificities of public documents, a new section (module) would be developed within the general IMI platform to serve the purposes of this initiative. The competent authorities established at national, regional or local level and validated by an IMI coordinator under the IMI Regulation would mutually assist each other by replying to requests for information in cases of reasonable doubt about the authenticity of public documents. They would be assisted by central authorities designated by the Member States to take any other measures aimed at facilitating the application of the new proposal, including the resolution of problems which would arise in this context. For example, the central authorities could develop with the Commission:

(i) a repository of templates of the most frequently used national public documents within the EU, including their translation into all Union official languages, in order to support authorities with insufficient linguistic expertise to judge correctness or quality of translations of public documents presented to them;

(ii) an appropriate fraud prevention guidance concerning the circulating public documents; and

(iii) best practices on the promotion of the use of electronic versions of public documents.

The exchanges between the competent and central authorities would be facilitated by specific directories for searching the responsible 'contact' authority in other Member States.

Sub-option 4C: the creation of a network of civil registers. Under this sub-option, which would build on the European Civil Registry Network (ECRN), a network of contact points in each Member State involving civil registrars would be created, through the establishment of a Central Authority in each Member State. Since civil registrars as a defined category of public administrations are particularly affected by the need to exchange formal civil status documents with the highest possible degree of authenticity and security, this sub-option would therefore support such an exchange. Registrars of one Member State would be authorized and encouraged to contact registrars of other Member States directly in cases of reasonable doubt about the authenticity of civil status documents. To this purpose, a software application accessible via the Internet would be created, accompanied by tailored data protection systems. As for the latter point, the European Commission and the Member States would need to take all necessary precautions to ensure compliance with the rules on data protection and personal data processing.

(ii) Multilingual standard forms

Furthermore, with a view to reducing the remaining translation requirements imposed on EU citizens and businesses when moving across the EU, there is a need for an additional accompanying element to this policy option allowing the issuance of multilingual standard forms at EU level for public documents most pertinent to cross-border use. These forms would save costs and time for EU citizens and businesses and facilitate the verification of their authenticity by the national authorities involved. If such a standard form is introduced for a specific public document, the linguistic obstacles related to its cross-border circulation would be eliminated. Moreover, EU multilingual standard forms would substantially reduce the cases of forgery of public documents and the need of recourse to the administrative cooperation between the competent authorities of the Member States.

These standard forms would have the same formal evidentiary value as the equivalent public documents drawn up by the authorities of the issuing Member State. Their use would depend on the choice of the EU citizen or undertaking in a concrete cross-border case. Once the citizen or undertaking decides to use the EU multilingual standard form instead of its national equivalent existing in the issuing Member State, its authorities would have the obligation to issue the particular standard form. Similarly, the authorities of the requesting (receiving) Member State would have to accept that form and consider it equally authentic as its national equivalent drawn up by the authorities of the issuing Member State.

Notwithstanding, such multilingual standard forms would not produce legal effects as regards the recognition of their content when they are presented in another Member State than the Member State where they were issued.

The proposed instrument would establish EU multilingual standard forms for birth, death, marriage/registered partnership as well as for legal status and representation of a company or other undertaking.

It should be also emphasized that the issuance of a multilingual standard form on its own, without an explicit abolition of legalisation or Apostille, would not automatically exempt that form from the latter administrative formalities (e.g. under the Succession Regulation[59], the European Certificate of Succession is exempted from legalisation and similar formality by Article 74 of that Regulation). In addition, the proposed new system would not interfere with those situations where standard forms or harmonised public documents already exist under EU or international law. In particular, the standard forms established by several Conventions of the ICCS (e.g. Convention No 16 on multilingual extracts from certain civil status records) could provide useful inspiration at EU level. In this respect, it should be emphasided that the mentioned Conventions of the ICCS do not apply to all EU Member States, and consequently not all EU citizens and businesses can currently benefit from the ICCS work. The standard forms can be addressed by 4 sub-options:

· Sub-option 4D: status quo: no standard forms.

· Sub-option 4E: compulsory standard forms. The use of these forms would be compulsory in cross-border cases but not in 'domestic' cases. It means that only this compulsory standard form would be used in a concrete case involving cross-border circulation of the underlying national public document.

· Sub-option 4F: optional standard forms as annexes to national public documents. Such forms would be attached to specific types of (national) public documents for optional use in other Member States. Each national administration would continue to issue national public documents along with the EU standard forms.

· Sub-option 4G: optional standard forms used independently in cross-border cases. Under this sub-option, the standard form could be presented abroad independently and separately from the underlying national public document on an optional basis. The corresponding national public documents would continue to exist at national level.

Policy Option 5: Full harmonisation of public documents and rules governing their circulation within the EU

This policy option would consist of a full harmonisation of public documents at national level for their use both in national and cross-border situations, of situations in which public documents are needed in cross-border scenarios by EU citizens and businesses and of rules concerning the authentication of public documents within the EU, including those issued in third countries.

7.2. Discarded options

The following policy options have been discarded after an initial evaluation:

· Amendment to all EU sectoral law which contains provisions on legalisation, similar or other formalities and/or provide for a certain form of administrative cooperation: this option would complement the existing EU sectoral law regulating these issues. However, it would not meet the objective of establishing a horizontal approach and consequently lead to further fragmentation. Moreover, this option would keep outside of the scope of the instrument the currently unregulated policy areas at EU level.

· A legislative initiative limited to a specific category of public documents (e.g. civil status documents): this option would not meet the objective of establishing a horizontal approach because its scope of intervention would be limited. Consequently, it would contribute to an increased fragmentation of the current legal framework.

8. Impact analysis of policy options

Policy Option 1: Retention of the status quo (base-line scenario)

The existing costs, delays and dissatisfaction among EU citizens and businesses due to the requirements of legalisation, similar and other formalities would continue. The same applies to the fragmented legislative framework. In conclusion, the current situation would follow its natural development at EU, international and national level.

Policy Option 2: A non-legislative measure promoting best practices between the Member States in order to facilitate cross-border circulation of public documents

Expected Impact

Effectiveness in meeting objectives || The promotion of best practices concerning in particular administrative cooperation would reduce delays in checking public documents originating in other Member States for the authorities concerned, by allowing better exchange of information. This would have an indirect positive effect in improved services for EU citizens and businesses. However, the overall postive impact would be limited because the administrative formalities would remain and the legal framework would still be fragmented. In addition, risks of indirect discrimination between EU nationals and EU non-nationals would continue to exist.

Economic and financial impact || An indirect positive economic impact (enhanced intra-EU mobility, cross-border activities, functioning of the EU Single Market and national markets) could be achieved with better understanding and information. Notwithstanding, no direct savings for EU citizens and businesses would be achieved in terms of money. At Member States level, some savings for administrations in terms of time could occur as a result of better mutual understanding between the authorities of the Member States.

Social impact || Medium positive effects would occur for EU citizens and businesses in terms of reduction of uncertainty as a result of information campaigns and/or the implementation of further tools for increasing awareness of the existing requirements in different Member States. This would result in less frustration for EU citizens and businesses. However, since the formalities would remain, very low positive impact on simplification benefits for EU citizens and businesses.

Impact on fundamental rights || The current problems in terms of i.e. the risk of indirect discrimination between EU nationals and EU non-nationals would persist. Promoting best practices between the Member States in order to facilitate cross-border circulation of public documents beyond the already existing level would result in a more frequent exchange of information, including on personal data. Consequently, the right to the protection of personal data as enshrined in Article 8 of the EU Charter of Fundamental Rights would require the obligation of the Member States to comply with Directive 95/46/EC. Depending on the role which the Commission might play (e.g. data controller) under this non-legislative measure, Regulation 45/2001/EC might also be applicable. This is either because the Commission would keep data which would be discussed during the meetings to be organised between the Member States or because the Commission would be in charge of these meetings (e.g. list of participants).

Impact on fraud || Very low positive impact on detection of fraud. Improved knowledge of documents and practices in other Member States would to a certain extent enable public officials to better identify potential cases of fraud.

Impact on EU budget || As for the potential impact on EU budget, there would be costs for information campaigns (such as conferences, meetings, publications, audiovisuals, etc). Costs for training and related actions aimed at stakeholders for the purpose of raising awareness and aiding the dissemination of information also have to be considered.

Transposition and compliance aspects || No difficulties, since this policy option would not impose any additional legislative interventions. Possible exchange of know-how and best practices would entail additional implementation costs for Member States.

View of stakeholders || The stakeholders consider that a soft law intervention such as this one would be less of an imposition on Member States than a binding Regulation. However, they also recognise that it would not be sufficient to eliminate the identified difficulties faced by EU citizens and businesses, especially with respect to the burdensome costs and administrative formalities that the current situation imposes on them.

Policy Option 3: Ratification of the 1987 Brussels Convention by all Member States

Expected Impact

Effectiveness in meeting objectives || This option would not guarantee an improvement to the current situation because there is no legal obligation for the Member States to ratify that Convention. In addition, the ratification process by so many Member States is very time-consuming and could stretch over many years. Consequently, legal uncertainty would continue to exist. If and when ratified by all Member States, then positive impact on the enjoyment of EU citizens' right to free movement and EU businesses ' (in particular SMEs') internal market freedoms, due to the abolishment of legalisation and Apostille in cross-border circulation of public documents. Savings for EU citizens and businesses would occur in terms of costs and time required as a result of the abolition of these formalities. However, obstacles caused by certified copies and certified translations would remain, since their simplification would not be covered by this policy option. Cases of serious doubt as regards the authenticity of public documents originating in other Member States could be dealt with more easily through the administrative cooperation foreseen in the Convention. However, it would not be accompanied by an electronic support or other secure network and depend largely on the wilingness of the Member States. Positive non-discriminatory effect since the different treatment of public documents originating in other Member States as compared to domestic documents would be removed.

Economic and financial impact || Each year, EU citizens and businesses could save between € 25.8 million and € 26.2 million on Apostilles and between € 2.3 million and € 4.6 million on legalisation. Annual costs for the Member States administrations for issuing the Apostilles can be estimated in a range between € 31 million to € 33 million. However, the costs faced by EU citizens and businesses for obtaining Apostille can be considered as revenues for competent authorities between € 25.8 million and € 26.2 million each year. In end effect, the net cost savings for the Member State administrations when abolishing the Apostille could be estimated in a range between € 5 million and € 7 million. Assuming that the number of legalisation procedures could be equal to 10% - 20% of the number of Apostilles issued for intra-EU use (i.e. 140.000/280.000 legalisations per year), and considering that an average price for legalisation amounts to € 16,50, the total annual costs for legalisation procedures for EU citizens and businesses would range between € 2.3 and € 4.6 million. The net cost savings for the Member State administrations when abolishing legalisation could be estimated between € 500.000 and € 1 million. On the other hand, no saving for EU citizens, businesses or public administrations would be obtained in terms of costs of certified copies and certified translations.

Social impact || Similarly, if and when ratified, positive impact for EU citizens and businesses in the exercice of their free movement rights. Public documents originating in different Member States, and needed e.g. for the purposes of residence or establishment of economic activities, would be accepted without legalisaton or Apostille. No more frustration or time wasted for EU citizens and businesses in the accomplishment of such administrative formalities. However, the simplification benefits would be limited due to the absence of simplification action as regards certified copies and certified translations.

Impact on fundamental rights || Possible positive impact in terms of fundamental rights: - this option could to an extent simplify the administrative burdens of EU citizens and businesses in terms of the right to take up residence, to seek employment, to exercise the right of establishment and to provide services or conduct business in another Member State (Articles 45, 15.2 and 16 of the Charter). This option could also simplify the administrative requirements involved in the exercise of the right to social security entitlements in accordance with EU and national law (Article 34.2 of the Charter); - impact on a number of life events of citizens that may occur during a stay in another Member State and that could effect their possibilities to take full advantage of the Single Market. This policy option would make the handling of documents in these situations less burdensome and would thus show consideration for the respect of the right to private and family life and to an extent also for the right to marry and found a family as well as for the rights of the child as provided in Articles 7, 9 and 24 of the Charter; - this policy option would also to a certain extent address the risk of indirect discrimination of non-nationals as documents emanating from other Member States would no longer require legalisation or Apostille, similarly to domestic public documents. Possible negative impact in terms of fundamental rights: - the risk of indirect discrimination of non-nationals would not be fully dealt with under this option as the costs and administrative constraints involved in providing certified copies as well as certified translations are not addressed; - personal data will be processed frequently and in depth by competent authorities when they check the authenticity. Consequently, the right to the protection of personal data as enshrined in Article 8 of the Charter would require the obligation of the Member States to comply with Directive 95/46/EC; - depending on the role which the Commission might play (e.g. data controller) under this option, Regulation 45/2001/EC might also be applicable.

Impact on fraud || The provisions concerning administrative cooperation would be specifically aimed at limiting the risk of fraud and forgery of public documents. However, no significant improvement, as compared to the status quo, is expected since the system is paper based, unsophisticated and does not allow fast and secure exchanges.

Impact on EU budget || No significant cost/very low negative impa