Opinion of the European Data Protection Supervisor on the modified proposal for a Council Regulation amending Regulation (EC) 1030/2002 laying down a uniform format for residence permits for third-country nationals.
Date: 2006-12-28
Institutions: European Data Protection Supervisor
Subjects: admission of aliens, biometrics, data protection, electronic component, foreign national, harmonisation of standards, migration policy, residence permit, technical specification

28.12.2006

EN

Official Journal of the European Union

C 320/21

EUROPEAN DATA PROTECTION SUPERVISOR

Opinion of the European Data Protection Supervisor on the modified proposal for a Council Regu-
lation amending Regulation (EC) 1030/2002 laying down a uniform format for residence permits for
third-country nationals.

(2006/C 320/10)

THE EUROPEAN DATA PROTECTION SUPERVISOR,

Having regard to the Treaty establishing the European Com-
munity, and in particular its Article 286,

Having regard to the Charter of Fundamental Rights of the
European Union, and in particular its Article 8,

Having regard to Directive 95/46/EC of the European Parliament
and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and
on the free movement of such data,

Having regard to Regulation (EC) No 45/2001 of the European
Parliament and of the Council of 18 December 2000 on the
protection of
individuals with regard to the processing of
personal data by the Community institutions and bodies and on
the free movement of such data, and in particular its Article 41,

Having regard to the request for an opinion in accordance with
Article 28(2) of Regulation (EC) No 45/2001 received on 11
May 2006 from the Commission;

HAS ADOPTED THE FOLLOWING OPINION:

1. INTRODUCTION

On 13 June 2002, in an effort to harmonize the format of resi-
dence permits
to third-country
issued by Member States
nationals, the Council adopted Regulation (EC) No 1030/2002
laying down a uniform format for residence permits for third-
country nationals (1).
the regulation,
Member States and the European Commission agreed to
consider at regular intervals and according to technological
developments what changes
to
into permits. Biometric
enhance the security features built
features were given as an illustrative example.

should be made in order

In the sixth recital of

regulation

On 24 September 2003, the European Commission proposed a
No
Council
1030/2002 (2). This Regulation was proposed together with
another proposal for a Council Regulation amending regulation
(EC) 1683/95 laying down a uniform format for visas. The

Regulation

amending

(EC)

(1) OJ L 157, 15.6.2002, p. 1.
(2) COM/2003/558 Final.

main goal of both proposals was to introduce biometric data
(facial image and two fingerprint images of the holder) in these
new uniform formats of residence permits and visas. Due to a
number of technological uncertainties, the format of the resi-
(sticker or stand-alone card) was not defined.
dence permit
Following a consultation procedure,
these proposals were
submitted to the European Parliament.

On 10 March 2006, the European Commission submitted a
modified proposal (hereafter ‘the proposal’) for a Council regu-
lation amending Regulation (EC) 1030/2002. In this modified
proposal, a stand-alone card was the format decided upon due
to potential collisions between contact-less chips. A defined area
(zone 16 according to the annex of the proposal) will also be
offered to those Member States which intend to embed a
contact chip in the residence permit dedicated to e-services.

The proposal for the residence permit is based on Article 63(3)
(a) TEC. The EDPS stresses that a residence permit should not
be considered to be a travel document. It is unfortunate that the
2003 proposal
included proposals for the visa and residence
permit in the same document as this may have raised some
misunderstandings, although the aim was to adopt a coherent
approach on biometric identifiers in the EU. The EDPS therefore
welcomes the fact that the visa and the residence permit are no
longer linked.

2. ANALYSIS OF THE PROPOSAL

2.1 General

The EDPS welcomes being consulted on the basis of Article 28
(2) of Regulation (EC) No 45/2001. However, in view of the
mandatory character of Article 28(2),
the present opinion
should be mentioned in the preamble of the text.

The proposal introduces the use of biometrics in the residence
permit. The EDPS recognises the advantages of
the use of
biometrics, but stresses the major impact of the use of such
data and suggests the insertion of stringent safeguards for any
kinds of use of biometric data.

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The EDPS welcomes the reasoning of the Council and of the
Estonian government in particular to treat their citizens and
third country residents equally, giving them access to e-services
via ID-cards and residence permits (1). This sound statement
also confirms the fact that the residence permit shall not be
considered as a travel document per se.

2.2 Biometric features

As already underlined in several opinions of the EDPS (2) and of
the Article 29 Working Party (3), the introduction and proces-
sing of biometric data for identity related documents need to be
supported by particularly consistent and serious safeguards.
Indeed biometric data are highly sensitive, due to some specific
characteristics and present some risks in their implementation
which have to be mitigated.
In his opinion on the SIS II
proposal previously mentioned, the EDPS has proposed a non
exhaustive list of common obligations or requirements related
to the specificity of such data as well as a common metho-
dology and best practices for their implementation.

As biometric systems are neither accessible to all (4) nor comple-
tely accurate, readily available fallback procedures shall be imple-
mented in order to respect the dignity of persons who could
not provide readable fingerprints or could have been wrongly
identified and to avoid transferring onto them the burden of the
system imperfections.

The EDPS recommends that fallback procedures are developed
and included in Article 2, paragraph 1 of the proposal. These
procedures should neither decrease the security level of the resi-
dence permit nor stigmatize those individuals with unreadable
fingerprints.

Article 4a of the proposal states that ‘Member states shall also
include fingerprints in interoperable formats’. The EDPS recom-
mends modifying this provision as follows so as to make it
more accurate:
‘Member states shall also include two finger-
prints in interoperable formats’. This clarification will reinforce
the proportionality principle which shall be respected at all
stages of this proposal.

According to the third recital of the proposal, the integration of
biometric identifiers should follow the specifications set out in
the ICAO document No 9303 on machine readable visas. As
has already been stated, the residence permit is not a travel
document. As underlined in the explanatory memorandum, the
residence permit is usually considered to be an ID card for third
It is therefore logical that the same high
country nationals.
security standards defined for national ID card should also be
applied to the residence permit. The EDPS recommends there-
fore to delete the third recital and to define higher security
specifications for the biometric features which will be stored in
the residence permit. The reference made in the annex to the

(1) As described in the Explanatory Memorandum
(2) Opinion of 23 March 2005 on the Proposal for a Regulation of the
European Parliament and of the Council concerning the Visa Infor-
mation System (VIS) and the exchange of data between Member
States on short stay-visas, OJ C 181, 23.7.2005, p. 13.
Opinion of 19 October 2005 on three Proposals regarding the Second
Generation Schengen Information System (SIS II) (COM (2005)230
final, COM (2005)236 final and COM (2005)237 final), OJ C 91,
19.4.2006, p. 38.

(3) Opinion No 7/2004 on the inclusion of biometric elements in resi-
dence permits and visas taking account of the establishment of the
European information system on visas (VIS) (Markt/11487/04/EN —
WP 96) and Working document on biometrics (MARKT/10595/03/EN
— WP 80).

(4) Up to 5 % of people are estimated not to be able to enrol (because they

have no readable fingerprints or no fingerprints at all).

ICAO standards should also be replaced by high security specifi-
cations corresponding to the situations under which a residence
permit is used.

2.3 Access and use of data

As a preliminary remark the EDPS welcomes the progress made
by this latest proposal for respecting the principle of purpose
limitation better. Indeed, according to the proposed modifica-
tions biometric features stored in residence permits shall only
be used for verifying ‘the authenticity of the document and the
identity of the holder by means of directly available comparable
features’.

The first recital recalls the aim of the Amsterdam Treaty which
among others is to confer the right of initiative to the European
Commission in order to take the relevant measures on a harmo-
nised immigration policy.
It is therefore regrettable that the
European Commission cannot use this opportunity in the
proposal to clearly identify and define those authorities which
have access to the data stored in the residence permit storage
limitations. The EDPS recom-
medium due to constitutional
mends that the European Commission develop an appropriate
procedure to create better harmonisation of the definition and
the list of the competent authorities for carrying out checks on
residence permits. This list of competent authorities is not only
relevant for the Member State who issued the residence permit
but also for the other Member States within the Schengen area
where the third country resident might need to be identified.

This recommendation is even more important in view of a
possible inclusion in the residence permit of an additional chip
for e-services. This new element will no doubt increase the
number of authorities which might have access to the residence
permit. According to the EDPS, such a result is highly undesir-
able.

2.4 Comitology

Article 2 of the regulation lists the cases in which additional
technical specifications for the uniform format for residence
permits relating to the following shall be established in accord-
ance with the comitology-procedure referred to in Article 7(2).
The present proposal gives a further specification of the cases in
which such decisions should be taken. These decisions will have
a significant impact on the proper implementation of the prin-
ciple of purpose limitation and the proportionality principle.
The EDPS advises that decisions with a substantial impact on
data protection such as access to and introduction of data,
quality of data,
storage medium,
technical compliance of
security measures for the protection of the biometric features,
etc. should be made by way of Regulation, in accordance with
co-decision procedure.

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For all other cases with an impact on data protection, the EDPS
should be given the possibility to advise on the choices made by
this committee. The EDPS' advisory role should be included in
Article 7 of the Regulation.

2.5 Electronic platform

As the residence permit is not a travel document, there is no
consistent reason for following the ICAO standards and there-
fore to use a contact-less chip. This technology has not been
proven to be safer than a contact chip and will only bring addi-
tional risks to the deployment of the residence permit.

According to the new proposed Article 4, the Member States
could embed a second chip in the stand-alone card of the resi-
dence permit. This second chip would be a contact chip and be
dedicated to e-services. The EDPS would like to specifically
stress the inadequacy of such a proposal since it does not
respect basic and elementary rules of security policy required for
sensitive data.

This additional chip offers a full range of new applications and
purposes for the residence permit card. The structure of the
security protection profile of the first contact-less chip which
will store biometric features can only be rigorously and properly
defined in the light of the risks produced by the other purposes
such as e-business and e-government applications. There is no
guarantee indeed that these applications will not take place for
example in a relatively unsafe environment for the contact-less
chip. It would indeed be unfortunate if the use of this additional
chip jeopardizes the security of the sensitive data stored in the
primary chip. The EDPS strongly recommends therefore that the
proposal defines the following elements:

— a limited list of purposes envisaged for the additional chip

3. CONCLUSION

The EDPS welcomes this proposal which aims at better harmo-
nising the EU immigration policy in general and the develop-
ment of a uniform format for residence permit in particular.

The EDPS recognises the fact that the use of biometric features
may improve protection of resident permits as well as fighting
illegal immigration and illegal residence. However, the insertion
of biometric data will contribute to these goals only if stringent
their
safeguards for their use are implemented and only if
imperfections are mitigated with proper fallback procedures.

The EDPS recommends postponing the insertion of an addi-
tional chip for e-services purposes until complete impact assess-
ment and risks assessment studies have been conducted and
their results have been properly analysed.

Considering that while a residence permit is not a travel docu-
ment it will be used in the Schengen area as an ID related docu-
ment, the EDPS stresses the need for adopting highest security
standards in line with the security specifications adopted by the
Members States which are developing an e-ID card.

technological choices with consistent

Concerning the residence permit development and implementa-
impact on data
tion,
protection should preferably be made by way of regulation, in
accordance with the co-decision procedure. In other cases with
an impact on data protection, the EDPS shall be given an advi-
sory role included in Article 7 of the Regulation on the choices
made by the committee foreseen by the proposal.

— a list of data which will be stored in the additional chip

Done at Brussels on 16 October 2006

— the need for an impact assessment and a risk assessment of
the co-existence of the two chips on the same stand-alone
card

Peter HUSTINX

European Data Protection Supervisor