Source: EURLEX
Language: en
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# 52013SC0144

**COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012 /\* SWD/2013/0144 final \*/**

  

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 impact on the EU budget, except for the drafting of the proposed  instrument.

Transposition and compliance aspects || This international law instrument would require Member States to designate a competent authority in order to ensure the administrative cooperation with the exception of those Member States that already apply the 1987 Brussels Convention.

Views of stakeholders || Although little input is provided by stakeholders on this policy option, the contributions to the European Commission’s Green Paper highlight the interest in exploring the possibilities of the content of this Convention in order to achieve positive effects on citizens and SMEs.

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 optional standard forms

Expected Impact

Effectiveness in meeting objectives || The circulation of public documents of EU citizens and businesses between the Member States would be effectively and concretely supported. Intra-EU mobility and the functioning of the Single Market would be enhanced by eliminating the disproportionate, burdensome and costly administrative formalities of legalisation, Apostille as well as by  simplifying the use of certified copies and certified translations. The large scope of public documents to be covered would achieve a greater level of non-discrimination between public documents originating in other Member States as compared to domestic documents. Improved administrative cooperation Sub-option 4A (administrative cooperation as foreseen under policy option 3): effects will be low since there is no electronic support for this type of administrative cooperation and its efficiency would depend on the discretion of the Member States. In addition, information requests would need to be translated in order to be understood by the other public authority. Sub-option 4B (administrative cooperation based on the IMI): positive effects in cases of reasonable doubt about the autenticity of public documents. The IMI provides for fast and secure communication channels for cross-border information exchanges. Competent authorities would benefit from the existing functionalities of the IMI system, including the provision of a multilingual system for communications, the use of pre-translated and standard questions and answers as well as from the IMI repository allowing to share templates of the most frequently used public documents for citizens and companies cross-border. The exchange of information and documents by electronic means would allow efficient and secure exchanges of electronic versions of public documents. Sub-option 4C (administrative cooperation based on the creation of a network of civil registers): positive effects for civil registrars who could communicate between each other directly in case of doubt about the authenticity of a civil status document or other related issues. However, positive effects would be limited to one category of public documents, meaning civil status documents and the objective of the measure would only be partially met. Multilingual standard forms Sub-option 4D (status quo): no positive effects. Sub-option 4E (compulsory standard forms to be used in cross-border cases): medium positive impact on the difficulties and costs related to the translation and understanding of public documents originating in other Member States. Sub-option 4F (optional standard forms as annexes to national public documents): same effects as in sub-option 4E. However, the use of these standard forms would depend on the discretion of the users and the system might appear too complex for users as well as administrations. Sub-option 4G (optional standard forms used independently in cross-border cases): high positive impact on EU citizens and businesses as well as public administrations in terms of higher practical benefits, reduced difficulties and costs related to the translation and understanding of public documents in cross-border scenarios, even if the use of these forms would depend on the discretion of the users.

Economic and financial impact   || High savings for EU citizens and businesses would be obtained in terms of costs and time due to the elimination of the mentioned formalities. Each year, EU citizens and businesses could save between € 25.8 million and € 26.2 million only on Apostilles and between € 2.3 million and € 4.6 million on legalisation. The annual net cost savings for the Member State administrations when abolishing the Apostille could be estimated in a range between € 5 million and € 7 million and when abolishing legalisation between € 500.000 and € 1 million. There will be further savings for EU citizens and businesses due to the simplification of certified copies based on the estimation that one page costs up to € 30. The total amount of yearly savings for EU citizens and businesses for simplifying certified copies of public documents to be used in cross-border situations would be in the order of € 75-100 million. The removal of certified transaltions would also save costs, bearing in mind that the related cost for one page is € 30. The total amount of savings for EU citizens and businesses for abolishing certified translations of public documents to be used in cross-border situations would be in the order of € 100-200 million per year. The revenues of public administrations would only be marginally affected after the simplification of the requirement of certified copies and certified translations. This is mainly because certified copies are often issued without additional charges and certified translations are mainly performed by accretited  translators[60]. There could, however, be a decrease of income for private agencies that attend to administrative formalities on behalf of clients, but that is not considered significant since the business relating to public documents of non-EU countries/to non-EU countries would remain. In addition, the acceptance of non-certified translations could negatively affect the business of some certified translators. The losses of these professionals would depend on the share of certified translations, which represent only a part of all the requests for translations managed. Moreover, in some Member States only translations of public documents performed by specialized public authorities are accepted. Annual negative economic impact would range from € 50 to € 100 million but would be outweighed by savings of EU citizens and businesses  in the order of € 100-200 million[61]. As for the implementation and ongoing costs of the policy option, these would depend on the specific option for intervention and are, therefore, detailed below, for each sub-option. Improved administrative cooperation Sub-option 4A (administrative cooperation as foreseen under policy option 3): see economic impact under policy option 3. Sub-option 4B (administrative cooperation based on the IMI): IMI is flexible and can accommodate any national administrative structure (centralised, fully decentralised or in between) and its use generates no IT costs for the Member States. IMI works currently with ca. 13 000 registered users in several legislative areas (professional qualifications, services, SOLVIT case handling, posting of workers, cash in transit and patients' rights). Setting-up a new IMI module to support the administrative cooperation foreseen by this proposal will not require any new costs and can be covered by the generic workflows which have already been developed (e.g. software development, translation functionalities, maintenance of the system, support services, etc.). Consequently, there will be no need to establish new specific server for public documents. Sub-option 4C (administrative cooperation based on the creation of a network of civil registers): in addition to the recurrent costs for administrative cooperation activities, training of users involved and reporting on the new system (similar to those entailed by sub-option 4.B), high costs linked to the management and administration of the network among registrars (using a completely new IT system) would be borne both at the EU and Member State level. As compared to sub-option 4B (IMI), the costs entailed by the present sub-option would be additional. For example, the IMI (as a benchmark for estimating costs of an EU-wide IT communication platform) entails the following recurrent costs (maintenance and support services: € 350.000 per year; hosting: € 200.000 per year; and training and promotion: € 200.000 per year). Multilingual standard forms Sub-option 4D (status quo): no positive impact. Sub-option 4E (compulsory standard forms to be used in cross-border cases): Additional costs would be imposed on the Member States due to the introduction of new standard forms, with regard to printing of forms or creating templates for computer usage, and some limited training and promotion activities. Medium positive impact on cost savings for EU citizens and businesses due to the absence of translations and on administrations due to the reduced workload. Sub-option 4F (optional standard forms as annexes to national public documents): Same effect as in sub-option 4E. However, additional costs might be incurred due to the need to provide copies of national public documents to which these forms would be attached. Sub-option 4G (optional standard forms used independently in cross-border cases): same effects on Member States as in sub–option 4E.

Social impact || High positive impact on EU citizens and businesses in the exercice of their free movement rights due to the proposed simplification benefits. 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, Apostille and under a simplified certification regime. No more frustration or time wasted for EU citizens and businesses in the accomplishment of such administrative formalities.

Impact on fundamental rights || Possible positive impact in terms of fundamental rights: - dispensing with administrative formalities of public documents, including  the simplification of the requirement of certified copies and certified translations, would significantly reduce  the administrative burdens and costs 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). The proposed policy option could also facilitate the exercise of the right to social security entitlements in accordance with EU and national law (Article 34.2 of the Charter); - high positive impact on a number of  life events of EU citizens that  may occur during a stay in another Member State or that have a cross-border dimension. The proposed policy option would render the handling of documents in these situations less burdensome and would thus show consideration for the right to respect for private and family life and to an extent also for the right to marry and found a family, the right to property as well as for the rights of the child as provided in Articles 7, 9, 17 and 24 of the Charter; - the proposed policy option would furthermore effectively address the risk of indirect discrimination of non-nationals since documents emanating from other Member States would no longer require additional administrative formalities as compared to domestic documents; - the sub-options involving standard forms 4E-4G would have an overall positive effect in terms of minimising costs and time needed by EU citizens and businesses when presenting a public document in a host Member State. They would equally help to reduce the risk of indirect discrimination of non-nationals in comparison with nationals; Possible negative impact in terms of fundamental rights: -  the abolition of legalisation and Apostille requires the setting-up of an improved administrative cooperation for the exchange and processing of information. As regards its  impact on the right to the protection of personal data, it is necessary to precise that: Article 8 of the Charter protects the right to privacy with respect to the processing of personal data. Whenever personal data are processed, this right is interfered with. The proposed legal instrument would foresee that information is directly transmitted between two authorities in the framework of an administrative cooperation based on the IMI. The existing IMI system will be extended to serve as the structure for the administrative exchange. It is very likely that this information would contain personal data; consequently a transmission of such data falls under the protection of Article 8 of the Charter. According to Article 8(2) of the Charter, such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. The future legal instrument aims to ensure those safeguards by referring to Directive 95/46/EC on the protection of personal data and to the IMI-Regulation. Nevertheless, some of the abovementioned data protection safeguards have to be included in the legal instrument itself. This applies in particular to the purpose limitation. The reason is that a referral to legal acts regarding data protection/information exchange in general cannot substitute a clear definition of the specific purpose of the exchange of personal data in the scope of the legal instrument that will be proposed. These impacts would be handled by indicating clearly in the legal instrument itself that the documents shall be exchanged for the sole purposes of producing evidence before a competent authority of another Member State within the sphere of the competence of the said authority in a specific case. In addition, it will be made clear that the proposed legal instrument would only allow the exchange of documents between the authorities which are authorised to operate in IMI and no other authorities. To ensure other data protection safeguards, the proposed instrument would contain necessary references to Directive 95/46/EC and to the safeguards in the IMI-Regulation.

Impact on fraud || Sub-option 4B: effective fraud prevention mechanism ensured through the administrative cooperation (accompagnied by training and awareness activities) and the secure exchange of information under IMI. As compared to the status quo, the improved and easier administrative cooperation would effectively support the communication between the authorities of the Member States in order to verify the authenticity of public documents, whereas the cases of fraud due to the abuse of the Apostille certificate (e.g. the fraudulent attachment of the Apotille on fake documents in order to feign theri legitimacy) would be eliminated. The traditional visual chek and review of the document in detail to verify that there is no indication of forgery remains as possibility for the receiving authority. Sub-options involving standard forms (4E – 4G): the use of standard forms would also facilitate the detection of fraud of public documents in cross-border scenarios.

Impact on EU budget || In general, very low negative impact on EU budget under this policy option. In particular, very low negative impact under sub-option 4B: adding of new users to IMI after the application of this proposal could be handled within the capacity of the current IMI infrastructure. As regards potential training costs under this proposal, these will be covered by a cost-sharing model including the contribution of the Commission's DG Justice. It is estimated that the total (one-shot) costs for the necessary training would be around 50 000 EUR. For sub-option 4C: there would be management and IT costs. Based on data available for the implementation of IMI (which involves 5.700 public authorities), the costs for developing the network from scratch were around € 1,5 million. As regards the sub-options related to the standard forms (4E – 4G), the cost would be related to meetings  under the comitology procedure.

Transposition and compliance aspects || The new EU instrument would require implementation by the Member States which would need to designate competent authorities in order to ensure participation in the administrative cooperation and in the comitology procedure. The removal of all identified administrative formalities would necessarily require a high level of mutual trust between the authorities of the Member States and the need for implementing effective tools for guaranteeing the authenticity of public documents. As for the principal elements of this policy option, no major issues in terms of political acceptability are detected as most of the Member States have already concluded a number of bi/multilateral agreements abolishing legalisation or the Apostille. In addition, EU sectoral law already provides for simplification, administrative cooperation and mutual assistance between the competent authorities in the Member States in certain areas. This policy option would not interfere with substantive or procedural national or EU law at any level or concepts on which all Member States have already agreed, under the 1987 Brussels Convention itself and/or the Apostille Convention. Thus, the policy option identified would not go beyond what is necessary to achieve the objectives and would not raise issues in terms of compliance with existing legislation[62].

Stakeholders views || 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 solutions, such as the possibility to verify the authenticity of public documents through administrative cooperation in order to ensure legal certainty and minimize fraud[63]. The idea of introducing electronic systems such as the IMI is also welcomed by stakeholders and is in line with the trend to move away from paper documents (provided that the necessary legal certainty and fraud prevention measures are taken).

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, meaning that only one
document, e.g. birth or marriage certificate, would exist in all Member States.
These harmonised public documents would then be used in either national or
cross-border situations, as they would contain all the
required information in a fully standardised manner in all official languages. In addition, this policy option would completely
abolish the formalities of legalisation, Apostille, certified copies and
certified translations and fully harmonise situations in which public documents
are needed in cross-border scenarios by EU citizens and businesses. Finally, it
would introduce harmonisation of national rules concerning the authentication
of public documents within the EU, including those issued in third countries.

The expected impact in achieving objectives under this 'extreme'
policy option would be limited, most importantly because it would have
excessive intrusive impact on the national legal systems and administrative
practices. Despite possible benefits for EU citizens and businesses in terms of
costs, time, legal certainty and facilitation of their Treaty and Charter
rights, it would undoubtedly create difficulties as
regards the acceptability of the fully harmonised public documents in the
Member States. Another associated disadvantage of this
policy option would be its high compliance cost both at national and EU level.
Finally, even if this policy option would theoretically bring added value in
terms of detection of fraud and forgery of public documents (as a consequence
of the full harmonisation at national and EU level), this would be diminished
by the missing administrative cooperation allowing competent authorities to
prevent potential cases of fraud on public documents or enable other useful exchanges
between them (such as through IMI).

9.           Comparative
assessment of policy options

The table below sets out a comparison of
the relative rating of the 4 policy options as described in section 8 against
the general and specific objectives as defined in part 6. The policy options
are classified according to their potential to meet the objectives defined in
section 6, with three positive checkmarks (PPP) indicating
highest relative potential and three negative checkmarks (---) indicating
lowest relative potential. Ratings for expected effectiveness in achieving the
objectives are given equal weight in the final sum.

The rating takes into account, in particular,
the expected beneficial effects of each of the options on the level of
deterrence against illegal activities affecting EU financial interests.

Comparative
assessment of the policy options 1-5

                  Policy                   options    Comparison        criteria || 1 (Status quo) || 2 || 3 || 4 || 5

Effectiveness in achieving policy objectives || 0 || 0 (marginal) || savings of  € 25 million for abolishing Apostille per year,  savings between € 2.3 million and € 4.6 million for abolishing legalisation per year || savings of € 25 million for abolishing Apostille per year,  savings between € 2.3 million and € 4.6 million for abolishing legalisation per year, savings of € 75-100 million for  simplifying  certified copies per year and of € 100-200 million for simplifying certified translations per year  || P

Efficiency (costs of implementation) || 0 || 0 (marginal) || 0/- || 0/- || - - -

Impact on fundamental rights || 0 || 0/- || P || PP || PP

Impact on fraud (ability of authorities to verify the authenticity of public documents ) || 0 || P || PP || PPP || PP

The sub-options
under policy option 4 related to accompanying measures: improved administrative
cooperation and issuance of standard forms are set out in detail in a
comparative table below.

Comparative
assessment of the sub-options considered under policy options 4 as regards the
improved administrative cooperation

                  Policy                   options            Comparison              Criteria || 4A  (administrative cooperation as it is in the 1987 Brussels Convention extended to all MS) || 4B (expansion of IMI) || 4C (network of civil registers)

Reduction of cost and time of administrations related to verification procedures and translations || 0 || PPP || PP

Administrative/ implementation costs at Member States level || 0 || 0 || --

Administrative/ implementation costs at EU level || 0 || 0/- || ---

The preferred
sub-option as regards the improved administrative cooperation is
sub-option 4B: administrative cooperation based on the Internal
Market Information System (IMI). This sub-option was preferred since it
would represent an effective and secure means for assessing the authenticity of
public documents, preventing fraud and forgery, and, at the same time, for
simplifying the administrative burdens placed on EU citizens and businesses. It
would also promote the principle of mutual trust between the competent
authorities.

Its
advantages could be summarised as follows:

–
immediate direct contacts between the competent
authorities in the Member States aimed at verifying the authenticity of public
documents in the event of reasonable doubt;

–
immediate direct contacts between the competent
authorities in the Member States aimed at verifying the authenticity of public
documents in the event of reasonable doubt;

–
easy identification of the relevant
interlocutors in other Member States through secure electronic means and
reduced language barriers;

–
effective detection of fraud and forgery of the
circulating public documents;

–
very low negative impact
on EU budget  due to the use of the existing
functionalities and infrastructure;

–
advanced and up-to-date procedures and rules for
data protection, as already included within the new IMI Regulation (Regulation
1024/2012 that entered into force on 4 December 2012).

Comparative assessment of the sub-options
considered under policy options 4 as regards the issuance of multilingual standard
forms

                              Policy Sub-options      Comparison         criteria || 4 D (status quo) || 4 E (compulsory standard forms to be used in cross-border cases) || 4F (optional standard forms as annexes to the national documents) || 4G (optional standard forms used independently in cross-border cases)

Facilitating the acceptance of foreign documents || 0 || PP || P || PP

Implementation costs at EU level || 0 || - - || - || -

Transposition and compliance aspects || 0 || - - || - - || -

The preferred
sub-option as regards the issuance of multilingual standard forms is
sub-option 4G:  optional standard forms used independently in
cross-border cases.

This
sub-option was preferred since the issuance of these multilingual standard
forms would:

–
lead to important cost and time savings for EU
citizens, businesses and national public officials;

–
favour the mutual understanding of public
documents between  the Member States;

–
further reduce translation requirements as they
would exist in all official languages of the EU (multilingual forms);

–
substantially reduce cases of reasonable doubt concerning
the authenticity of the circulating public documents;

–
allow the parallel existence of the underlying
national public documents at Member States level.

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

The preferred option is Policy Option 4
with sub-options 4B and 4G.

Consequently, the preferred option would involve a combination of
the followings elements:

–
Abolition of legalisation, Apostille and
simplification of certified copies and certified translations.

–
Improved administrative cooperation between the
Member States through a modern and secure communication network based on the
existing Internal Market Information System (IMI).

–
Development of EU multilingual standard forms
used independently and separately from the underlying national public documents
in cross-border cases. Four types of such standard forms (concerning birth,
death, marriage/registered partnership and legal status and representation of a
company or other undertaking) would be directly established in the annexes of
the instrument.

As regards the legislative form of the
instrument, a Regulation appears to be the most appropriate taking into
account both the problems and objectives identified.

Summary of the preferred option

The preferred option would involve a combination of the following elements: Abolition of legalisation, Apostille as well as simplification of certified copies and certified translations. Improved administrative cooperation between the Member States, through a communication network based on the existing Internal Market Information System (IMI). Development of multilingual standard forms at EU level to be used independently and separately from the underlying national public documents in cross-border cases. These standard forms would be defined for the most frequently used public documents by EU citizens and businesses in cross-border scenarios, namely  for public documents concerning birth, death, marriage/registered partnership and legal status of a company or other undertaking. These would be established directly in the annexes to the instrument. || This would address the following problems, see section 4: Overall cost and time wasted for legalisation and Apostille. Overall cost and time wasted for certified copies and certified translations. Legal uncertainty and diversity. Risk of discrimination. Fraud and forgery of public documents. || This would achieve the following objectives, see section 6: Facilitate and enhance the exercise of EU free movement rights by EU citizens and businesses. 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. 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.

The benefits
for EU citizens, businesses and national public administrations under the
preferred policy option (e.g. cost and time savings, simplification and
reduction of practical difficulties, added security and more effective detection
of fraud) would not be outweighed by the creation of additional burdens for the
Member States. In fact, the administrative burdens for the Member States would
be reduced by € 5-7 million
annually[64], due to the abolition of the Apostille and moreover
between € 500.000 and € 1 million  as a consequence of the
abolished legalisation.

In any case, the administrative burden
placed on the Member States authorities for the exchange of information
concerning documents whose authenticity is in doubt would certainly be lower
than at present. Of all the public documents which currently need the issuance
of the Apostille, a minor percentage is likely to be of dubious authenticity.

It is worth noting that the costs of
administrative cooperation could differ between the Member States, depending on
the numbers of EU non-nationals making use of the right to free movement and/or
the number of documents issued for cross-border use. In Member States where one
or the other are higher than average (e.g. France, Belgium, Luxembourg,
Germany, Spain, UK, Italy), costs can be anticipated to be more significant.

Possible application of the EU
standard cost model

The application of the EU standard cost model is constrained by the
lack of evidence on the number of cases in which the authenticity of public
documents is questioned and the time required for solving each case.

Following some basic assumptions, the administrative costs due to
administrative cooperation through the IMI could be represented as follows:

Price = Tariff (average
hourly labour costs in the EU = 22,6 €[65]) x Time
(time spent for the activities required for administrative cooperation = around
half an hour)

multiplied by

Quantity = Number of entities (4
authorities involved in different Member States – i.e. each exchange would
involve at least 2 public authorities (the involvement of 1-2 further
authorities at local level per each Member State can be envisaged) x Frequency
(it can be estimated as the number of apostilled documents issued and giving
rise to doubts on their authenticity = around 1% of the Apostilles issued
annually in the EU, i.e. 14.000).

As a result of the core equation, the costs for the usage of IMI for
administrative cooperation would amount to around € 633.000.

Finally, the usage of the IMI would have very
low negative impact on EU
budget due to the use of the existing functionalities
and infrastructure.  Similarly, the introduction of multilingual standard forms would create
only limited and negligible costs at Member States level with regard to
printing of forms or creating templates for computer usage, and some limited
training.

Finally, in the long term unforeseeable
additional administrative burdens and costs may arise due to increased
mobility of citizens, businesses, goods and services within the EU and the
increased need for documents which on Member State level may already have been
replaced by inter-administrative cooperation and data access (e.g. when the
child benefit authority can electronically access the birth records). Firstly, this
development is a desired development since the cost and burden of intra-EU
mobility are greatly offset by the advantages of such mobility. Secondly,
similarly to the Member State level, in the long term further administrative
sectoral cooperation may also develop at EU level and should not negatively
impact on the proposal.

11.         Monitoring
and evaluation

Providing for a solid monitoring and evaluation
mechanism is crucial to ensure that the rules provided in the instrument are
complied with in practice. A transitional period will be provided in the
instrument in order to allow Member States to prepare for its implementation
and communicate to the Commission the requested information.

A review clause will also be inserted in
the instrument in order to evaluate its application by the Member States and
ensure the possibility for follow-up amendments. It is foreseen that the
Commission submits to the European Parliament, the Council and the Economic and
Social Committee, by 3 years after the date of application of this Regulation,
and every 5 years thereafter at the latest, a report on the application of the
new instrument, including an evaluation of any practical experiences relating
to the cooperation between central authorities. That report will be
accompanied, where appropriate, by proposals for amendments, in particular as
regards a possible extension of the application of the Regulation to broader
categories of public documents.

Progress indicators and periodical
reporting

A set of progress indicators will be
defined in order to monitor:

(i) The state of implementation and
correct application of the Regulation:

·
Correct/complete application of the new
Regulation reported by relevant national  authorities;

·
Infringements procedures - under Article 258 of
the TFEU - launched by the European Commission.

(ii) The progress towards objective and
expected impacts:

·
Number of accesses to IMI by designated competent
authorities for administrative cooperation on the authenticity of public
documents;

·
Change in the number of complaints concerning
obstacles related to the free movement of public documents in the EU, reported
by EU citizens and businesses;

·
Change in the number of cases of fraud or
forgery of public documents detected;

·
Trends and changes of the intra-EU mobility rates
of EU citizens;

·
Trends and changes of the intra-EU trade and
cross-border activities of EU businesses.

Monitoring and evaluation of the practical
effects will take place on three levels. Firstly, and as usual, the transposition
and implementation of the proposed Regulation would have to be monitored. Secondly,
the administrative cooperation based on the IMI would be designed to offer  certain
statistical data as to its usage, which would provide an indication about the
number of problems occurring under the new system as well as about  the costs
these problems create. Thirdly, external studies could be envisaged to
evaluate any relevant practical experiences.

Annex 1

Abbreviations

CNUE             Council of the Notaries of
the European Union

eAPP               electronic Apostille
Pilot Program

EC                   European Commission

EU                   European Union

HCCH             Hague Conference on
Private International Law

CIEC               International Commission
on Civil Status / Commission Internationale de l'Etat Civil

IMI                  Internal Market
Information System

IT                     Information
Technology

MS                  Member State

RP                   Registered Partnership

SME                Small-Medium Enterprise

TFEU               Treaty on the
Functioning of the European Union

Annex 2

Main definitions: legalisation and the similar
administrative formality

Legalisation
and Apostille

The legalisation is the formal procedure[66] for certifying the authenticity of a signature, the capacity in
which the person signing the document has acted and, where appropriate, the
identity of the seal or stamp which it bears[67]. It
has the effect of putting a foreign public document on the same footing as a
domestic public document as far as proof of its authenticity is concerned.

Although there is a nearly-homogeneous
interpretation by the MS of the legal concept of legalisation[68], divergences continue to exist, which results in different
requirements being imposed on the citizens and businesses needing the legalised
documents for cross-border use.

The practice of legalisation within the MS
appears to be insufficiently unregulated or merely contained in (internal)
ministerial guidelines[69]. The status and legal effects of this approach to the practice of
legalisation means that both the guidelines and their effects may be unclear,
allowing judicial and administrative authorities to be flexible in choosing
whether and how to give effect to them: the ultimate consequence is a
significant degree of uncertainty for individuals, i.e. the citizen or the business
needing the legalisation.

In the EU, the procedure of legalisation
has been largely substituted by the similar formality of the Apostille, a
simplified formality that envisages the addition of the certificate foreseen by
the Hague Convention of 1961 (i.e. the Apostille Convention) abolishing the
requirement of legalisation for foreign public documents. The Apostille is
issued by an authority of the state of origin, and certifies the genuineness or
“authenticity of the signature, the capacity in which the person signing the
document has acted and, where appropriate, the identity of the seal or stamp,
which it bears” (Article 3.1 Hague Apostille Convention).

There are, however, practical problems.
Sometimes, the authorities of the receiving state do not know whether the
issuing authority was competent to authenticate the document or whether the
procedure and/or the form required by the national law of the state of origin
have been complied with.

This problem is not solved by the Apostille
procedure because the Apostille proves only the genuineness of the instrument,
not the competence of the issuing authority or the compliance with all procedural
and formal requirements.

Only legalisation in the wider sense (which
may be issued by the diplomatic or consular authorities of the state of
destination in the state of origin) would certify also that the requirements
concerning competence, procedure and form have been met.

Even in cases where the Apostille is
abolished, only a public document issued by a competent authority following the
procedure and form required by the law of the state of origin can be rightly
expected to be accepted and used in the state of destination.

Annex 3

Main international agreements

1.1         The
Apostille Convention: application and scope

As explained in
the main text of the Impact Assessment Report, the Apostille Convention
abolishes the requirement of legalisation for relatively a broad range of
categories of public documents drawn up in all the states that are parties to the Convention (all EU MS and a
large number of non-EU MS). However, it does not cover
documents executed by private persons, commercial and customs related documents
(e.g. certificates of origin or import or export licenses) nor documents
executed by diplomatic or consular agents.

According to its
Article 1, it applies to the following documents:

a) documents emanating from an authority
or an official connected with the courts or tribunals of the State, including
those emanating from a public prosecutor, a clerk of a court or a process-server
(“huissier de justice”);

b) administrative documents;

c) notarial acts;

d) official certificates which are placed
on documents signed by persons in their private capacity, such as official
certificates recording the registration of a document or the fact that it was
in existence on a certain date and official and notarial authentications of
signatures.

Besides, provided
that the only effect of an Apostille is to certify the authenticity of the
signature, the capacity in which the person signing the document has acted and,
where appropriate, the identity of the seal or stamp which the document bears,
it does not relate to the content of the underlying document itself (i.e. the
apostilled document).

1.2         The
Brussels 1987 Convention: application and scope

The Brussels 1987
Convention is an EU intergovernmental Convention abolishing both legalisation
and the requirement for attaching an Apostille. This Convention did not
enter into force, because it has not been ratified by all MS (as required
by its Article 6(2)). However, those MS, which have ratified the Convention can
declare that the Convention nonetheless should apply between them (Article 6(3)).

As of today, the
Convention has been ratified and is applied provisionally by six MS, namely
Belgium (applicable since 16.3.1997), Denmark (26.10.1989), France (12.3.1992),
Italy (11.1.1991), Ireland (8.3.1999), and Latvia (21.6.2004). Cyprus
(29.4.2005) has acceded to the Convention, however without declaring it
provisionally applicable. The Convention was also signed by Germany, Greece,
Luxembourg, Netherlands, Portugal and UK, but these Member States have refrained
from its ratification.

As to its substantive
scope of application, Article 1(2) of the Convention basically applies to
the same types of documents as the Hague Apostille Convention, but without
the exceptions contained in Article 1(3) of the Apostille Convention (i.e.
documents executed by diplomatic or consular agents and administrative
documents dealing directly with commercial or customs operations).

Article 4 of the
Convention also provides for administrative cooperation in situations
where the authority of the MS of destination has serious doubts, with good
reason, in relation to the authenticity of public documents that originate in a
MS that provisionally applies the Convention.

However, the scope
for cooperation under the Convention is very limited: the Convention states
that authorities may request information directly from the relevant central
authority of the MS from which the act or document emanated only if they have
serious doubts, with good reason, as to the authenticity of the document’s
signature, the capacity in which the person signing the document has acted or
the identity of the seal or stamp (Article 4(1) of the Convention). The
Convention further limits the scope for activating the administrative
cooperation by stressing that requests for information may be made only in
exceptional cases and must set out the grounds on which they are based (identical
provision).

The 1987
Convention has a field of application that goes beyond that of the other
multilateral conventions. The Convention provides that when a treaty,
convention or agreement between two or more contracting MS contains provisions
which subject the certification of a signature, seal or stamp to certain
formalities, the Convention will override such provisions if those formalities
are more rigorous than the formality provided for in the Convention (Article 8
of the Convention).

Since the 1987
Convention contains less rigorous formalities than, for example, the Apostille
Convention, the Convention overrides the use of the Apostille formality between
the MS that apply the 1987 Convention provisionally, substituting it with its
own less burdensome provisions.

There is no
evidence about issues encountered by MS that ratified the Convention in terms
of increased cases of forgery or fraud related to the use of public documents
across different MS.

Annex 4

CIEC Conventions exempting public documents from
legalisation

Annex Box 1: CIEC/ICSS Conventions
exempting public documents from legalisation

Annex 5

Summary of EU laws and their relation to EU rights

The table below
summarizes the main EU law related to the following areas of EU rights:

·
Free movement of judgments

·
Access to justice (legal aid)

·
Entry and residence for Union citizens and their
family members

·
Free movement of workers

·
Entry and residence for self-employed persons

·
Recognition of professional qualifications

·
Free movement of services and freedom of
establishment

For each legal
instrument, the existence of provisions in terms of legalisation,
administrative cooperation or introduction of standard forms is highlighted.

Annex
Table 1: Provisions of legal Instruments related to different areas of EU
rights

Legal instrument || Provisions || Notes ||

Exemption from legalisation || Harmonisation of public documents || Administrative Cooperation ||

Free movement of judgments ||

Brussels I Regulation (Regulation No 44/2001) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters || Yes || Yes || No || Requires that a party seeking recognition of a judgment rendered in another MS produces a copy of the judgment “which satisfies the conditions necessary to establish its authenticity” Prohibits MS from requiring prior legalisation of a judgment rendered in another MS before accepting it Exempts certificates which are required for certifying the authenticity of judgments, court settlements and authentic instruments, as well as authentic instruments  and the documents used for their certification, as well as settlements which have been approved by a court in the course of proceedings and are enforceable in the Member State in which they were concluded ||

Regulation 1896/2006/EC creating a European order for payment procedure || Yes || Yes || Yes || Establishes the use of a standard form by the court that executes the order for payments Exempts from legalization: the copy of the European order for payment, as declared enforceable by the court of origin, satisfies the conditions necessary to establish its authenticity ||

Regulation 805/2004/EC creating a European Enforcement Order for uncontested claims || Yes || Yes || No || Lays down minimum standards for the free circulation of judgments, court settlements and authentic instruments without any intermediate proceedings brought in the Member State of enforcement prior to recognition and enforcement Allows a judgment to be enforced in all other MS without judicial review of the proper application of the minimum procedural standards in the MS where the judgment is to be enforced. ||

Regulation 2201/2003/EC concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility || Yes || Yes || No || Exempts judgments in matrimonial matters or in matters concerning parental responsibility from legalisation formalities Exempts from legalisation formalities certificates drawn up in the standard forms required for certifying the authenticity of judgments, authentic instruments and agreements between parties ||

Regulation 1206/2001/EC on cooperation between the courts of the MS in the taking of evidence in civil or commercial matters || Yes || No || Yes || Establishes the direct transmission and execution of requests for the taking of evidence between the competent courts in the MS Requires that MS draw up a list of the courts competent to receive requests for the taking of evidence and designate a central body responsible for  supplying information to the courts, seeking solutions to any difficulties which may arise in respect of a request; and forwarding, in exceptional cases, at the request of a requesting court, a request to the competent court ||

Regulation 1348/2000/EC on the service in the MS of judicial and extrajudicial documents in civil or commercial matters || Yes || No || Yes || Provides the direct transmission of all documents involved in the procedure between the competent authorities in the MS, as well as the competent authorities (Article 2) Exempts from legalisation ||

Regulation 1346/2000/EC on insolvency proceedings || Yes || No || Yes || Provides for the mutual recognition of judgments and decisions in cross-border insolvency proceedings but does not provide for standard forms Exempts documents by which a liquidator is appointed in a Member State and translations of such documents from legalisation formalities ||

Access to justice (legal aid) ||

Directive 2003/8/EC to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes || Yes || Yes || Yes || Provides for harmonised forms for legal aid applications and for the transmission of legal aid applications in the event of cross-border litigation Exempts from legalisation ||

1977 European Agreement on the transmission of applications for legal aid || Yes || Yes || Yes || Requires the MS to designate authorities competent to send (transmitting authorities) and receive (receiving authorities) the harmonised legal aid application forms Exempts from legalisation ||

Entry and residence for Union citizens and their family members ||

Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the MS || No || No || No || Contains no explicit exemptions from legalisation, meaning, in principle, that the regulation and implementation of legalisation formalities aimed at verifying the authenticity of foreign Public Documents remain subject to the domestic laws of the MS Contains though passages that shed light on the question whether formalities to ensure the authenticity of the documents required in the process of recognising the rights protected by the Directive can be justified ||

Free movement of workers ||

Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the MS Income tax issues of non-resident migrant workers || No || No || No || Specifies the supporting documents that may be required by the MS prior to recognising the existence of an EU right in order to avoid divergent administrative practices or interpretations constituting an undue obstacle to the exercise in practice of the right of entry and residence ||

Directive 2011/16/ EC, on administrative cooperation in the field of taxation || No || No || Yes || This directive addresses administrative cooperation in the field of taxation, by inviting MS tax authorities to actively cooperate in exchanging information There is  no explicit provision in the Directive to exempt Public Documents in this area from Legalisation requirements This is also because the Directive concentrates on administrative cooperation between the competent tax authorities, which can exchange public documents ||

Regulations 1408/71/EEC on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community || No || Yes || No || Establishes e-form certificates in relation to general information and requests transferred between the competent authorities in the MS, the posting of workers, sickness benefits, pensions, unemployment, family benefits and non-contributory benefits ||

Regulation 883/2004/EC on the coordination of social security systems || Yes || Yes || Yes || EC legislation on the coordination of social security systems of the MS, explicitly exempting all documents that are required for this coordination from legalisation Regulation 883/2004 is clear when it comes to applicable legalisation formalities regarding documents required to be produced abroad for the implementation of the Regulation: “all statements, documents and certificates of any kind whatsoever required to be produced in application of this Regulation shall be exempted from authentication by diplomatic or consular authorities” (Article 80(2) of the Regulation). Moreover, this regulation creates: rules related to mutual cooperation between MS; a set of harmonized forms to be used by MS. ||

Entry and residence for self-employed persons ||

Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States || No || No || No || In relation to the right of entry and residence of self-employed persons, Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the MS is also relevant Directive 2004/38 contains no explicit exemptions from legalisation (see above development 1.2.4 on the entry and residence for Union citizens and their family members) Again, the Directive specifies the supporting documents that may be required by the MS prior to recognising the existence of an EU right within the scope of the Directive in order to avoid divergent administrative practices or interpretations constituting an undue obstacle to the exercise in practice of the right of entry and residence The Directive does not harmonise the form or substance of the public documents that may be required by the authorities of the MS and equally does not provide for administrative cooperation between the competent authorities of the MS for the purpose of verifying the authenticity of those documents ||

Recognition of professional qualifications ||

Directive 2005/36/EC on the recognition of professional qualifications || No || No || Yes || Envisages administrative cooperation in case of justified doubts about the authenticity or adequacy of public documents required as proof of professional qualifications ||

Lisbon Recognition Convention (six MS have not ratified this Convention) || No || Yes || No || Not ratified by six MS provides for the establishment of a harmonised public document to be attached to a higher education diploma, the so-called “Diploma Supplement” ||

Free movement of services and freedom of establishment ||

Directive 2006/123/EC on services in the internal market || No || Yes || Yes || Provides for the necessary legal basis for the establishment at the EU level of harmonised forms for documents which must be accepted by the MS as equivalent to certificates, attestations and any other documents required from a provider for the purpose of exercising the freedom of establishment Stresses the importance of efficient administrative cooperation between MS. It requires that MS give each other mutual assistance, and put in place measures for effective cooperation with one another, in order to ensure the supervision of providers and the services they offer Does not explicitly abolish legalisation formalities between the Member States. However, it is important to note that the formulation of the Directive in principle renders the preservation of legalisation formalities impossible between the Member States. The Directive contains an explicit prohibition for the Member States to require that a document originating in another Member State is 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. (Article 5(3) of the Directive) ||

Tax recovery ||

Directive 2010/24/EC on tax recovery assistance ||  - || Yes || Yes || Notification assistance is provided under this Tax Recovery Assistance Directive. In this legal instrument, a special provision was adopted (Article 8(1), 2nd para.) to avoid the translation issue and to protect the citizen's rights: the adoption of the Uniform Notification Form: "The request for notification shall be accompanied by a standard form containing at least the following information: (a) name, address and other data relevant to the identification of the addressee; (b) the purpose of the notification and the period within which notification should be effected; (c) a description of the attached document and the nature and amount of the claim concerned; (d) name, address and other contact details regarding: (i) the office responsible with regard to the attached document, and, if different; ii) the office where further information can be  obtained concerning the notified document or concerning the possibilities to contest the  payment obligation. The adoption of the Uniform Instrument Permitting Enforcement (UIPE) in the requested Member State (Art. 12(1) of the Directive: "Any request for recovery shall be accompanied by a uniform instrument permitting enforcement in the requested Member State. This uniform instrument permitting enforcement in the requested Member State shall reflect the substantial contents of the initial instrument permitting enforcement, and constitute the sole basis for the recovery and precautionary measures taken in the requested Member State. It shall not be subject to any act of recognition, supplementing or replacement in that Member State. "By using this UIPE, the problems of the past are avoided with regard to the recognition of enforcement titles of other MS. ||

Annex 6

Bilateral
agreements abolishing legalisation and similar requirements

Annex Table 2: Synoptic table of bilateral agreement between
selected EU MS abolishing legalisation and Apostille requirements (by date of
conclusion of the agreement)

MS || France (12) || Germany (6) || Poland (18) || Romania (9) || Sweden (-) || United Kingdom (2)

Austria || 15.6.1966 || 21.6.1923 || 11.12.1963 || 17.11.1965 || ||

Belgium || 9.11.1981 || 13.5.1975 || 17.12.1986 || 3.10.1975 || ||

Bulgaria || 18.1.1989 || || 4.12.1961 || 3.12.1958 || ||

Cyprus || || || 14.11.1996 || || ||

Czech Republic || 19.6.1995 || || 21.12.1987 || 31.5.1995 || ||

Denmark || || 17.6.1936 || || || ||

Estonia || || || 27.11.1998 || || ||

Finland || || || 27.5.1980 || || ||

France || - || 13.9.1971 || 5.4.1967 || 5.11.1974 || || 3.6.1937

Germany || 13.9.1971 || - || || || ||

Greece || || 11.5.1938 || 24.10.1979 || || ||

Hungary || 31.7.1980 || || 6.3.1959 || 7.10.1958 || ||

Ireland || || || || || ||

Italy || || 7.6.1969 || 28.4.1989 || || ||

Latvia || || || 23.2.1994 || || ||

Lithuania || || || 26.1.1993 || || ||

Luxembourg || 27.3.1923 || || || || ||

Malta || || || 26.8.1931 (see UK) || || ||

Netherlands || || || || || ||

Poland || || || - || 25.1.1962/ 15.5.1999 || || 26.8.1931/ 23.2.1967

Portugal || 20.7.1983 || || || || ||

Romania || 5.11.1974 || || 4.6.1962/ 15.5.1999 || - || ||

Slovakia || 7.8.1996 || || 21.12.1987 || 25.10.1958 || ||

Slovenia || 25.5.1994 || || 6.2.1960 || || ||

Spain || || || || 17.11.1997 || ||

Sweden || || || || || - ||

United Kingdom || 3.6.1937 || || 26.8.1931/ 23.2.1967 || || || -

Source: European Parliament - Comparative
analysis of the national provisions of private law and private international
law in the field of authentic instruments within selected EU MS

Annex 7

Examples of
situations where legalisation, Apostille, certified copies and certified
translations are disproportionately costly and time-consuming

1.1         EU
citizens

Civil status
documents

These include public documents related to
civil status events (such as birth, death, name, marriage,
registered partnership, parenthood or adoption), which are needed e.g. when requesting a registration certificate or residence
card, accessing social rights or in the context of life events that may occur during the stay in
another Member State. Cross-border marriages in particular give rise to
significant authentication costs and costs for certified translations of e.g. birth certificates and medical certificates in some Member States[70] as well as certificates of dissolution of previous marriages. In
the case of divorce, civil status documents such as marriage certificates are
required.

Cross-border marriages

Case example
- typical difficulties and costs: Based on the Study 2008, costs of
marriages between nationals of different Member States have been estimated by
taking into account translation costs, costs for travelling to the Member
States of origin/to the nearest consulate or embassy (when personal appearance
for obtaining an Apostille or an official translation was required) and further
costs when additional documents were required (such as the certificate of no
impediment). The average costs of such a marriage for EU citizens are about € 300
and the average time to fulfil the administrative formalities is about three
months. However, when a “difficult combination” of Member States is selected,
expenses can be more than € 1.000 and the duration of all administrative proceedings
can take up to 426 days.

Source: Von Freyhold,
JLS/2006/C4/004, 2008.

Administrative documents

Examples of public documents that can play
an important role during a citizen’s life abroad are extracts from property
registers, tax resident certificates and documents proving the absence of a criminal
record. All these documents need to be legalised or apostilled and/or their
certified translation needs to be provided, unless there is an exemption from
these requirements enshrined in EU or international law.

Difficulties in the
circulation of taxation documents

Case example – additional costs and double
taxation: A
Dutch employee worked from January to August in Italy but was subject to
taxation in Italy also for the working period spent in the Netherlands
(September-December) as he was qualified as tax resident in Italy for the whole
tax year. Due to this, he claimed tax credit in Italy for the double taxation
suffered. The Italian tax authority challenged his claim and asked for a formal
document from the Netherlands attesting the amount of taxes paid. The Dutch
citizen presented the Dutch assessment but the Italian tax authority did not
accept it because the translation was not certified according to Italian
requirements.

Impact: In Italy, a
certified translation of a tax return can cost up to € 300. In the present
case, the Dutch citizen suffered a double taxation in Italy and the
Netherlands, due to the lack of information and the bottlenecks in the
circulation of public documents attesting the tax payment between these Member
States.

Source: Examples of
practical experience of Ernst&Young – Human Capital Global Mobility
Services.

Professional documents

A typical example of this category of
public documents is diplomas. They are of vital importance for both
professional purposes (aimed at finding a job) and academic purposes (aimed at
the continuation of studies)[71].
The main costs are due to the need for authentication and certified
translations. This could discourage citizens and prevent them from moving
across the EU, as shown in the case example below.

Free
movement of professionals

Case example – circulation of professional documents: A relevant example of a negative impact of burdensome
requirements on the free movement of EU professionals can be found in an action
brought by the Commission against Italy, where the Court accepted the
complaints concerning the obstacles to freedom to provide services and to
freedom of establishment created by the Italian legislation requiring
architects wishing to obtain recognition in Italy of a qualification awarded to
them in another Member State. The Italian legislation requested originals of
diplomas or their certified copies and certified translations[72].

Impact: This requirement imposed
additional costs as well as risks of possible delays for architects applying
for recognition of their qualifications and thus created obstacles that were
disproportionate to the objective pursued. Moreover, the obligation to provide
certified translations (i.e. translations must be certified as true to the original
by the Italian diplomatic or consular authorities located in the Member State
in which the documents were drawn up or by an approved translator) of all
documents was regarded as unnecessary and an additional burden increasing
costs.

Case
C-298/99: Failure by a Member State to fulfil its obligations — Directive
85/384/EEC — Mutual recognition of formal qualifications in architecture —
Access to the profession of architect — Article 59 of the EC Treaty.

1.2         EU
businesses (in particular SMEs)

A high and steadily increasing number of EU
businesses, namely 44% of EU SMEs in 2010[73],
are engaged in cross-border activities and have to present a whole set of
public documents to different entities. This implies that a wide range of
public documents that may be used for business purposes have to meet these
formalities. The practical examples reported below show that the current EU
regulatory framework contains disproportionate, burdensome and costly
authentication and certification requirements[74].

Cross-border
economic activities

Case example - Cross-
border selling of cars: A German car-sale company bought for its client
a Fiat Punto in Poland. The car was to be registered in a county in Hessen. The
car registry office would not accept the Polish certificate of conformity. The
same category of cars was, however, registered with the same certificate in two
different counties in Baden-Württemberg without any problems. The car
registration office in Hessen requested further certified translations in
German or English.

Impact: This procedure caused a
time lag in registering the car which had a negative impact both on the company
and on the customer.

Source: SME
panel questionnaire 2012 – The top 10 most burdensome pieces of legislation for
SMEs.

While legalisation has been made redundant
to some extent in EU sectoral law, there are still public documents that may be
required for proving the fulfilment of national rules for the establishment of
a business or the provision of services, which still need to be authenticated and
accompanied by certified translations. This produces obstacles that delay or
make cross-border movements and activities burdensome, especially in terms of
costs and time.

Establishing an economic activity
in another Member State

Case example - 'Double'
legalisation of SME documents: A French company
wishes to buy land in Bulgaria in order to develop its activity in that Member
State. During the acquisition transaction there is a problem with the
legalisation of the company's documents. These are translated into Bulgarian
and are certified with an Apostille. In spite of this, the Bulgarian notary
requires the legalisation of the documents (even if, according to the Apostille
Convention, documents with an Apostille are exempted from legalisation).

Impact: In order
to solve the problem, the company wasted unnecessary time and money. The
documents were sent back to France for additional legalisation.

Source: SME panel questionnaire 2012 – The top 10 most
burdensome pieces of legislation for SMEs.

Additionally, when participating in
cross-border public tenders there are many documents that need to be provided
under the current legislative framework[75],
an issue that in 2008 has concerned about 9% of EU SMEs engaged in cross-border
public contracts. Businesses participating in cross-border tenders are required
to provide public documents that may need additional administrative
formalities. The examples of such documents are those attesting the absence of a
criminal record of the company's CEOs, certificates proving the financial,
professional and technical reliability of the company, documents proving that
the company is not insolvent or bankrupt and other documents proving the
compliance with EU law.

Administrative
formalities in EU public procurement

Case example 1 - 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 financial, professional and technical reliability. 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.

Case example 2:

A
Spanish company operating in the renewable energy sector, in order to submit
the offer and related documentation in a public tender in Greece, was requested
by the Greek authorities to provide a criminal record certificate of all
members of the company's Board. This entailed costs for providing certified
translations and Apostilles to the requested documents.

Impact: The requirement of the Greek
authorities hinders the possibility for foreign companies to enter the national
market and the potential benefits for the Greek economy and employment.

Source:
SME panel questionnaire 2012 – The top 10 most burdensome pieces of legislation
for SMEs.

Annex 8

The Internal Market Information System

The IMI is a web-based application that
allows national, regional and local authorities to communicate quickly and
easily with their counterparts abroad. It was developed by the Commission in
partnership with MS and it was launched in February 2008 under the IDABC
programme. The organization of IMI is based on the presence of the National IMI
Coordinator (NIMIC), designed by each MS and responsible for the IMI activities
in his/her country.  IMI makes it possible for the competent authority[76] to:

·
Find the right foreign partner authority to deal
with.

·
Provide standard sets of pre-translated
questions and answers and a tool for the translation of a free text.
Multilingualism is an essential element of the IMI service which is available
in 22 official EU languages.

·
Send, receive and answer to information requests
in the area of the area of services, professional qualifications and posting of
workers[77].

·
Attach documents to the requests.

·
Offer a directory of registers held by public
authorities all over the EU, such as trade registers or registers of lawyers,
with a multilingual search function. If a register is available online, IMI
provides the direct link to it.

Annex Figure 1: Total number of
information exchanges in IMI per legislative area. Source “IMI Annual report
for 2011”

With regard to the data protection issue,
IMI has been designed including a strict application of the purpose limitation
principle and appropriate access controls: it guarantees a high level of
technical and procedural data protection[78].

IMI is constantly under development. The
2011 Communication “Better governance of the Single Market through greater
administrative cooperation:  A strategy for expanding and developing the
Internal Market Information System"[79]
launched the inclusion of new policy areas (e.g. area of posting of workers[80]) and developed new
functionalities (new directory of registers interface). From a technical point
of view, there are no limits to the expansion of IMI, the system could include
further policy areas, representing an important benchmark in the communication
and cooperation workflow between the Member States.  Following COM proposal
(2011)522 final, the new Regulation 1024/2012 of 25 October 2012 on
administrative cooperation through the Internal Market Information System entered
into force on 4 December 2012.

That Regulation strengthens the rules for
security and data protection and, above all, provides a high level of
flexibility for future developments, by including a mechanism for expanding IMI
to new EU acts.

Annex 9

e-APP and ECRN

1.           e-Apostille Pilot Program

Following the 2003 Special Commission, in
2006 the Hague Conference and the NNA (National Notary Association) launched
the electronic Apostille Pilot Program (e-APP) to promote the
implementation of a new software technology with the following aims:

·
Introducing a paperless way to record and verify
Apostilles: with the implementation of the e-APP, it will be possible to
transmit electronic Apostilles by e-mail.

·
Providing a higher level of security which
exceeds the actual security standards in paper environment.

·
Providing assurance that the e-Apostille was
signed by the Competent Authority identified in the e-Apostille.

·
Improving the movement of public document
globally by avoiding the usage of a courier to dispatch paper documents.

At the same time, a relevant development in
this field is the e-Register, i.e. an electronic Register that can be
accessed online by recipients of Apostilles. The usage of an e-Register
can entail several benefits:

·
Make it easier to verify the authenticity of
Apostilles.

·
Saving space in the offices required to keep
paper records.

However, as for the simplification
benefits that such an initiative is likely to achieve, several shortcomings
would still remain: issuing an e-APP would continue
to entail certain verification procedures and the availability of some
electronic requirements (such as the electronic signature) would further
represent an obstacle to the full implementation of the e-APP.

2.           European Civil Registry Network

European Civil Registry Network (ECRN) is a
pilot project promoted by a consortium composed of 14 EU public authorities and
co-financed by the European programme CIP ICT-PSP[81], aimed
at providing an e-Government service for EU citizens. The project deals with
the establishment of an experimental platform for the transmission of civil
status documents and information among the Local Governments. The main purposes
of the ECRN are:

·
Increasing the efficiency of local
administrative actions by strengthening the administrations’ ability to use new
technologies, thus contributing to time efficiency and cost effective
solutions.

·
Improving the Citizen-Administration
relationship by shortening delays for the public bodies to manage procedures
and enabling citizens to reply in due time to requests for certification for
inscriptions to schools, universities, and employment opportunities.

·
Enabling public authorities to gain immediate
knowledge in case of any changes in a Citizens civil status, i.e. if a citizen
conceives a child, gets married, or dies; the public registry of her/his home
country can be immediately updated.

ECRN allows the Civil Status Registry
office of a Member State to request a specific certificate directly from its
counterpart. With ECRN, obtaining a certificate from one MS to another will
take 2-3 working days through a web platform rather than 2-3 months via
ordinary mail. And with regard to security issues, the certified and secure web
platform will guarantee the exchange of an authentic Civil Registry
certificate. However, it is limited to civil status documents.

Annex 10

Data tables on the number of Apostilles issued and
types of documents apostilled

Annex Table 3: Number of Apostilles issued
from 2008-2011 for the EU 27 + 1 MS

EU 27 + 1 (Croatia) || Number of Apostilles issued

2008 || 2009 || 2010 || 2011

AUSTRIA || || || ||

BELGIUM || 49.137 || 46.955 || 44.693 || 45.999

BULGARIA || 23.630 || 20.115 || 20.135 || 22.911

CROATIA || || || ||

CYPRUS || || || ||

CZECH REPUBLIC || 19.845 || 19.220 || 21.076 || 23.731

DENMARK || 48.985 || 48.208 || 45.670 || 46.414

ESTONIA || || || ||

FINLAND || 40.019 || 39.990 || 38.000 || 36.000

FRANCE || || || ||

GERMANY || || || ||

GREECE || || || ||

HUNGARY || 6.906 || 11.767 || 12.700 || 14.655

ITALY || || || ||

IRELAND || || || ||

LATVIA || 11.175 || 11.544 || 11.548 || 11.601

LITHUANIA || || || ||

LUXEMBOURG || || || ||

MALTA || || || ||

NETHERLANDS || || || ||

POLAND || 24.044 || 25.012 || 27.286 || 31.045

PORTUGAL || || 19.856 || 32.552 || 33.846

ROMANIA || 200.520 || 141.015 || 169.222 || 241.428

SLOVAKIA || 16.587 || 15.804 || 17.349 || 19.800

SLOVENIA || 14.516 || 14.307 || 16.078 || 16.338

SPAIN || || || ||

SWEDEN || || || ||

UK || 382.073 || 343.274 || 368.342 || 385.194

Source: HCCH Questionnaire, 2012

Annex Table 4: Estimation on the number of intra-EU Apostilles issued
from 2008-2011 for the EU 27 + 1 MS

|| Hypothesis 1: Missing data completed per Member States through estimations with series of immigrant population || Hypothesis 2: Missing data completed per

MS || Estimation on the number of Apostilles (in red estimated number, where HCCH data are missing) ||  Estimation on the number of Apostilles issued for intra-EU market [82] || Estimation on the number of Apostilles (in red estimated number, where HCCH data are missing) [83] ||  Estimation on the number of Apostilles issued for intra-EU market[84]

Austria || 89,281 || 43,748 || 41,876 ||                 20,519

Belgium || 45,999 || 22,540 || 45,999 ||                 22,540

Bulgaria || 22,911 || 11,226 || 22,911 ||                 11,226

Croatia || 4,894 || 2,398 || 4,894 ||                   2,398

Cyprus || 328,554 || 160,991 || 328,554 ||               160,991

Czech Republic || 23,731 || 11,628 || 23,731 ||                 11,628

Denmark || 46,414 || 22,743 || 46,414 ||                 22,743

Estonia || 1,106 || 542 || 6,701 ||                   3,283

Finland || 36,000 || 17,640 || 36,000 ||                 17,640

France || 385,619 || 188,953 || 385,619 ||               188,953

Germany || 180,000 || 88,200 || 180,000 ||                 88,200

Greece || 50,000 || 24,500 || 50,000 ||                 24,500

Hungary || 14,655 || 7,181 || 14,655 ||                   7,181

Ireland || 78,431 || 38,431 || 78,431 ||                 38,431

Italy || 256,200 || 125,538 || 301,702 ||               147,834

Latvia || 11,601 || 5,684 || 11,601 ||                   5,684

Lithuania || 11,299 || 5,537 || 11,299 ||                   5,537

Luxembourg || 53,992 || 26,456 || 53,992 ||                 26,456

Malta || 13,535 || 6,632 || 2,072 ||                   1,015

Netherlands || || || 82,875 ||                 40,609

Poland || 31,045 || 15,212 || 31,045 ||                 15,212

Portugal || 33,846 || 16,585 || 33,846 ||                 16,585

Romania || 241,428 || 118,300 || 241,428 ||               118,300

Slovakia || 19,800 || 9,702 || 19,800 ||                   9,702

Slovenia || 16,338 || 8,006 || 16,338 ||                   8,006

Spain || 459,189 || 225,003 || 459,189 ||               225,003

Sweden || 52,173 || 25,565 || 46,703 ||                 22,885

United Kingdom || 385,194 || || 385,194 || 188,745

TOTAL || 2.893.234 || 1.417.685 || 2.962.869 || 1.451.806

Annex
Table 5: Types of documents most frequently apostilled

Annex
Box 2: Summary on the number of Apostilles issued and documents concerned

Total
number of Apostilles issued

The total number of Apostilles issued
in 2011 by 13 Member States which responded so far to the HCCH Questionnaire
2012 amounts to 928.962. More responses were received to the HCCH Questionnaire
2008 (22 Member States): the number of Apostilles issued in 2007 corresponded
to 2.788.188.

Given the above, it can be estimated
that the number of Apostilles issued in 2011 by all the 27 Member States would
easily exceed 2.000.000.

Taking into account the number of EU
citizens (12.6 million) living in a Member State different from the one of
their citizenship and the fact that almost half of EU SMEs are engaged in some
form of cross-border activities, it is possible to roughly estimate that the
number of Apostilles potentially needed would be a lot higher than that reported
in the data above.

Furthermore, the trends reported by
the replies point towards an increase in the number of Apostilles issued as a
result of the free movement of workers, goods and services within the EU. This
confirms the need to address the red tape entailed by the Apostille in view of
a demand that will continue to increase.

Types of documents concerned

EU citizens and businesses (in
particular SMEs) need approximately the same amount of public documents in
order to move across the EU.

The most frequently apostilled
documents are civil status documents (which concern EU citizens) and notarial
authentications of signatures (concern both EU citizens and businesses),
followed by extracts from commercial registers and other registers (concern EU businesses).

Under the above estimation, half of
the public documents concerned by the Apostille formality are issued for
intra-EU usage: i.e. around 1 million.

Annex 11

Data tables on costs and time for the issuance of the
Apostille, legalisation and certified translations

Annex Table 6:
Cost range and time required to issue Apostilles

NB:
The average price indicted in the table above is an arithmethic (unweighted)
average. Calculations are developed further in the Annex Table 7 to derive the
weighted average.

Annex Table 7: Calculations and estimations on cost of
the Apostille to EU citizens and EU SMEs

||  Hypothesis 1: Missing data completed per Member States through estimations with series of immigrant population ||  Hypothesis 2: Missing data completed per Member States through estimations with series of total population

MS ||  Estimation on the number of Apostille issued for intra-EU market [85] ||  Cost of the Apostille (to the SME / citizen)[86] || Total cost of all Apostilles issued ||  Estimation on the number of Apostille issued for intra-EU market[87] || Cost of the Apostille (to the SME / citizen) [88] || Total cost of all Apostilles issued

Austria || 43,748 ||            16.40 € ||               717,466 € ||                 20,519   || 16.40 € ||   336,519 €

Belgium || 22,540 || 10.00 € ||               225,395 € ||                 22,540   || 10.00 € ||      225,395 €

Bulgaria || 11,226 || 2.50 € ||                 28,066 € ||                 11,226   || 2.50 € ||       28,066 €

Croatia || 2,398 ||    6.00 € ||                 14,388 € ||                   2,398   || 6.00 € ||      14,388 €

Cyprus || 160,991 ||      1.00 € ||               160,991 € ||               160,991   || 1.00 € || 160,991 €

Czech Republic || 11,628 ||         4.00 € ||                 46,513 € ||                 11,628   || 4.00 € ||   46,513 €

Denmark || 22,743 ||       25.00 € ||               568,572 € ||                 22,743   || 25.00 € ||    568,572 €

Estonia || 542 ||       14.70 € ||                   7,966 € ||                   3,283   || 14.70 € ||     48,265 €

Finland || 17,640 ||       11.00 € ||               194,040 € ||                 17,640   || 11.00 € ||    194,040 €

France || 188,953 ||       13.20 € ||            2,494,514 € ||               188,953   || 13.03 € ||   2,461,273 €

Germany || 88,200 ||        15.00 € ||            1,323,000 € ||                 88,200   || 15.00 € || 1,323,000 €

Greece || 24,500 ||       13.20 € ||               323,443 € ||                 24,500   || 13.03 € ||    319,133 €

Hungary || 7,181 ||     17.25 € ||               123,871 € ||                   7,181   || 17.25 € ||    123,871 €

Ireland || 38,431 ||     20.00 € ||               768,624 € ||                 38,431   || 20.00 € ||    768,624 €

Italy || 125,538 ||   13.20 € ||            1,657,319 € ||               147,834   ||       13.03 € ||    1,925,658 €

Latvia || 5,684 ||     14.50 € ||                 82,425 € ||                   5,684   || 14.50 € ||     82,425 €

Lithuania || 5,537 ||       10.50 € ||                 58,133 € ||                   5,537   || 10.50 € ||     58,133 €

Luxembourg || 26,456 ||       1.00 € ||                 26,456 € ||                 26,456   || 1.00 € ||    26,456 €

Malta || 6,632 ||     12.00 € ||                 79,583 € ||                   1,015   || 12.00 € ||    12,183 €

Netherlands || ||       16.00 € ||                        -   € ||                 40,609   || 16.00 € ||    649,740 €

Poland || 15,212 ||        14.00 € ||               212,969 € ||                 15,212   || 14.00 € ||    212,969 €

Portugal || 16,585 ||        13.20 € ||               218,945 € ||                 16,585   || 13.03 € || 216,027 €

Romania || 118,300 ||        7.50 € ||               887,248 € ||               118,300   || 7.50 € || 887,248 €

Slovakia || 9,702 ||           6.50 € ||                 63,063 € ||                   9,702   || 6.50 € || 63,063 €

Slovenia || 8,006 ||       3.25 € ||                 26,018 € ||                   8,006   ||  3.25 € || 26,018 €

Spain || 225,003 ||    13.20 € ||            2,970,427 € ||               225,003   || 13.03 € || 2,930,845 €

Sweden || 25,565 ||      13.20 € ||               337,497 € ||                 22,885   ||     13.03 € ||    298,092 €

United Kingdom || ||       64.75 € ||           12,221,243 € || 188,745 ||       64.75 € || 12,221,243 €

TOTAL || || || 25,838,175 € || || || 26,228,750 €

Annex Table 8: Calculations and estimations on cost and time
requirements for public administrations to issue Apostilles

||  Hypothesis 1: Missing data completed per Member States through estimations with series of immigrant population ||  Hypothesis 2: Missing data completed per Member States through estimations with series of total population

MS ||  Estimation on the number of Apostilles issued for intra-EU market[89] ||  Time required for adminis-tration to issue an Apostille[90] ||  Hourly Labour Cost[91] ||  Annual administrative cost to issue an Apostille ||  Estimation on the number of Apostilles issued for intra-EU market [92] ||  Time required for adminis-tration to issue an Apostille[93] ||  Hourly Labour Cost[94] ||  Annual administrative cost to issue an Apostille

EU 28 || 1 417 685 || 0,99 || 22,52 € || 31 837 858,75 € || 1 451 806 || 1,00 || 22,70 € || 33 135 949,73 €

EU 27 || 1 415 287 || 0,99 || 22,52 € || 31 810 858,39 € || 1 449 408 || 1,00 || 22,70 € || 33 108 730,63 €

Austria || 43 748 || 0,50 || 29,20 € || 638 719,42 € || 20 519 || 0,50 || 29,20 € || 299 584,12 €

Belgium || 22 540 || 1,50 || 39,30 € || 1 328 704,11 € || 22 540 || 1,50 || 39,30 € || 1 328 704,11 €

Bulgaria || 11 226 || 1,00 || 3,50 € || 39 292,37 € || 11 226 || 1,00 || 3,50 € || 39 292,37 €

Croatia || 2 398 || 0,50 || || 27 000,36 € || 2 398 || 0,50 || || 27 219,10 €

Cyprus || 160 991 || 0,50 || 16,50 € || 1 328 179,55 € || 160 991 || 0,50 || 16,50 € || 1 328 179,55 €

Czech Republic || 11 628 || 1,50 || 10,50 € || 183 143,99 € || 11 628 || 1,50 || 10,50 € || 183 143,99 €

Denmark || 22 743 || 0,50 || 38,60 € || 438 937,20 € || 22 743 || 0,50 || 38,60 € || 438 937,20 €

Estonia || 542 || 3,00 || 8,10 € || 13 168,19 € || 3 283 || 3,00 || 8,10 € || 79 784,46 €

Finland || 17 640 || 0,50 || 29,70 € || 261 954,00 € || 17 640 || 0,50 || 29,70 € || 261 954,00 €

France || 188 953 || 0,85[95] || 34,20 € || 5 468 151,28 € || 188 953 || 14,00 || 34,20 € || 5 468 151,28 €

Germany || 88 200 || 3,50 || 30,10 € || 9 291 870,00 € || 88 200 || 3,50 || 30,10 € || 9 291 870,00 €

Greece || 24 500 || 0,50 || 17,50 € || 214 375,00 € || 24 500 || 0,50 || 17,50 € || 214 375,00 €

Hungary || 7 181 || 1,50 || 7,60 € || 81 862,83 € || 7 181 || 1,50 || 7,60 € || 81 862,83 €

Ireland || 38 431 || 0,50 || 27,40 € || 526 507,30 € || 38 431 || 0,50 || 27,40 € || 526 507,30 €

Italy || 125 538 || 0,50 || 26,80 € || 1 682 207,62 € || 147 834 || 0,50 || 26,80 € || 1 980 972,97 €

Latvia || 5 684 || 1,00 || 5,90 € || 33 538,49 € || 5 684 || 1,00 || 5,90 € || 33 538,49 €

Lithuania || 5 537 || 1,00 || 5,50 € || 30 450,81 € || 5 537 || 1,00 || 5,50 € || 30 450,81 €

Luxembourg || 26 456 || 2,00 || 33,70 € || 1 783 139,79 € || 26 456 || 2,00 || 33,70 € || 1 783 139,79 €

Malta || 6 632 || 0,50 || 11,90 € || 39 460,01 € || 1 015 || 0,50 || 11,90 € || 6 040,51 €

Netherlands || || 1,07[96] || 31,10 € || 0,00 € || 40 609 || 7,00 || 31,10 € || 1 357 437,92 €

Poland || 15 212 || 0,50 || 7,10 € || 54 002,78 € || 15 212 || 0,50 || 7,10 € || 54 002,78 €

Portugal || 16 585 || 1,50 || 12,10 € || 301 009,40 € || 16 585 || 1,50 || 12,10 € || 301 009,40 €

Romania || 118 300 || 1,50 || 4,20 € || 745 288,24 € || 118 300 || 1,50 || 4,20 € || 745 288,24 €

Slovakia || 9 702 || 1,50 || 8,40 € || 122 245,20 € || 9 702 || 1,50 || 8,40 € || 122 245,20 €

Slovenia || 8 006 || 1,50 || 14,40 € || 172 921,39 € || 8 006 || 1,50 || 14,40 € || 172 921,39 €

Spain || 225 003 || 1,00 || 20,60 € || 4 635 053,77 € || 225 003 || 1,00 || 20,60 € || 4 635 053,77 €

Sweden || 25 565 || 0,50 || 39,10 € || 499 787,80 € || 22 885 || 0,50 || 39,10 € || 447 395,32 €

United Kingdom || 188 745 || 0,50 || 20,10 € || 1 896 887,85 € || 188 745 || 0,50 || 20,10 € || 1 896 887,85 €

Annex Table 9: Cost of legalisation of
public documents

Annex Table 10: Cost of certified translation of public documents (for
the translation of certificates related to cross-border marriages)

Annex 12

Statistical tables on intra-EU mobility

The increasing trend of intra-EU mobility
is confirmed by the trends recorded on the number of those born in an EU MS and
living in another MS: this trend has generally been characterized by an
increase over the years, going from around 15.7 million in 2009 to 16.4 million
in 2011 (4% increase)[97].
Finally, the annual data on EU migrants: the total number of EU migrants in
2010 amounted to 2.900.000 people, divided into approximately 1.000.000 EU
nationals and 1.900.000 EU non-nationals[98].

Annex
Figure 2: EU
citizens residing in another MS

Source:
Eurostat, Population and social conditions, Population by citizenship and
country of birth -Population by sex, age group and citizenship (migr\_pop1ctz),
2007-2011. Data for EU 27 MS and Croatia.

Data on EU
population and intra-EU mobility (migration, foreign workers, students)

Annex
Table 11:
Foreign population with EU 27 citizenship (except declaring country)

MS || % of foreign pop. on the total pop. (2011)

Austria || 4%

Belgium || 6%

Bulgaria || :

Cyprus || 0,01%

Czech Rep. || 1%

Denmark || 2%

Estonia || 1%

Finland || 1%

France || 2%

Germany || 3%

Greece || 1%

Hungary || 1%

Ireland || 7%

Italy || 2%

Latvia || 0,4%

Lithuania || 0,05%

Luxembourg || 37%

Malta || 2%

Netherlands || 2%

Poland || 0,04%

Portugal || 1%

Romania || :

Slovakia || 1%

Slovenia || 0,2%

Spain || 5%

Sweden || 3%

UK || 3%

Croatia || :

TOTAL || 2.5%

Source:
Eurostat, Population
and social conditions, Population by citizenship and country of birth -Population by sex, age group
and citizenship (migr\_pop1ctz), 2007-2011.Eurostat database – Population
by sex, age group and citizenship, 2007-2011

Another phenomenon which makes it possible
to quantify intra-EU mobility for working reasons, regards cross-border
commuters[99],
i.e. persons who work in an EU country but reside in a different one. According
to the most recent available data (2010[100]),
five people out of the 1.000 of those employed commute across borders between MS.

Annex
Table 12: Employed persons in a EU MS, with citizenship of another MS, in 2011
(in thousands)

Employed persons

MS || Total || Declaring country || EU-27 countries except declaring country || Extra EU-27 || Total foreign countries || Percentage of EU employed persons on the total foreign employed population

Austria || 4.069,6 || 3.610,2 || 201,3 || 258,1 || 459,4 || 40%

Belgium || 4.470,5 || 4.069,4 || 297,6 || 103,5 || 401,1 || 70%

Bulgaria || 2.908,3 || 2.904,9 || : || : || : || :

Cyprus || 364,1 || 283,4 || 48,1 || 32,7 || 80,8 || 60%

Czech Rep. || 4.827,8 || 4.755,2 || 35,6 || 36,9 || 72,5 || 50%

Denmark || 2.643,1 || 2.485,1 || 69,2 || 88,6 || 157,8 || 40%

Estonia || 588,2 || 502,0 || 2,3 || 84,0 || 86,3 || 3%

Finland || 2.428,5 || 2.375,9 || 24,7 || 27,4 || 52,1 || 50%

France || 25.562,3 || 24.182,3 || 628,7 || 740,9 || 1.369,6 || 50%

Germany || 38.979,3 || 35.457,2 || 1.508,1 || 2.014,0 || 3.522,1 || 40%

Greece || 4.016,6 || 3.662,1 || 70,4 || 283,0 || 353,3 || 20%

Hungary || 3.779,0 || 3.748,1 || 21,5 || 9,4 || 30,9 || 70%

Ireland || 1.764,0 || 1.548,7 || 159,6 || 55,7 || 215,4 || 70%

Italy || 22.582,7 || 20.342,9 || 738,5 || 1.501,2 || 2.239,7 || 30%

Latvia || 949,3 || 810,5 || 1,4 || 137,5 || 138,9 || 1%

Lithuania || 1.342,1 || 1.335,3 || 0,6 || 6,2 || 6,8 || 10%

Luxembourg || 222,4 || 113,4 || 99,9 || 9,0 || 109,0 || 90%

Malta || 166,3 || 161,5 || 1,9 || 2,7 || 4,6 || 40%

Netherlands || 8.231,7 || 7.880,9 || 148,5 || 139,2 || 287,6 || 50%

Poland || 15.879,6 || 15.854,6 || 8,6 || 16,2 || 24,8 || 30%

Portugal || 4.557,4 || 4.402,8 || 27,0 || 127,5 || 154,6 || 20%

Romania || 8.750,0 || 8.746,1 || : || : || : || :

Slovakia || 2.339,3 || 2.335,1 || 2,9 || : || 4,2 || 70%

Slovenia || 914,8 || 896,0 || 0,8 || 18,0 || 18,8 || 4%

Spain || 17.953,3 || 15.582,7 || 759,0 || 1.611,6 || 2.370,6 || 30%

Sweden || 4.529,4 || 4.311,1 || 115,9 || 99,5 || 215,4 || 50%

UK || 28.207,3 || 25.672,2 || 1.316,0 || 1.217,9 || 2.533,9 || 50%

Total || 213.026,9 || 198.029,6 || 6.288,1 || 8.620,7 || 14.910,2 || -

Source: Eurostat -– Labour market, Labour
Force Survey, (lfsa) 2011

The number of EU-citizens moving to another
Member State for study reasons is generally increasing. The available data for
2009 shows that the highest number of EU students studying in another Member
State comes from Malta (71.8%), Cyprus (56.2%), Italy (19.5%), Latvia (14.8%)
and the UK (11.4%)[101].
Many of those students use the EU Erasmus programme. Indeed, since the
inception of the programme, the number of students benefitting from an Erasmus
grant has continued to grow, reaching a total of 231.410 students in 2010-2011,
with an annual increase of 8.5% compared to 2009-10 (the equivalent
year-on-year increase inn 2009-2010 was 7.4%)[102].

Annex
Table 13: EU Students studying in another EU-27 as % of all students

MS || 2000 || 2001 || 2002 || 2003 || 2004 || 2005 || 2006 || 2007 || 2008 || 2009

Austria || 3,8 || 3,8 || 4,7 || 4,7 || 4,7 || 4,4 || 4,6 || 4,7 || 4,3 || 4,5

Belgium || 2,4 || 2,4 || 2,4 || 2,6 || 2,6 || 2,6 || 2,5 || 2,6 || 2,9 || 2,7

Bulgaria || 3,2 || 4,3 || 6,0 || 7,4 || 8,6 || 8,7 || 8,9 || 8,3 || 7,9 || 8,0

Cyprus || 46,5 || 44,4 || 52,2 || 53,6 || 54,8 || 56,5 || 53,2 || 56,9 || 58,4 || 56,2

Czech Rep. || 1,3 || 1,5 || 1,6 || 1,8 || 1,8 || 1,8 || 2,0 || 2,1 || 2,6 || 2,7

Denmark || 2,7 || 2,6 || 2,6 || 2,7 || 2,5 || 2,3 || 2,6 || 2,5 || 2,4 || 2,5

Estonia || 2,5 || 3,2 || 3,0 || 3,2 || 3,5 || 3,6 || 4,1 || 4,5 || 4,9 || 5,2

Finland || 3,2 || 3,0 || 3,0 || 3,0 || 2,9 || 2,7 || 3,0 || 2,9 || 2,7 || 2,8

France || 6,2 || 7,2 || 4,3 || 9,2 || 10,4 || 11,9 || 11,9 || 10,5 || 8,4 || 8,0

Germany || 1,8 || 1,9 || 1,9 || 1,9 || 2,0 || 2,1 || 2,4 || 2,5 || 2,3 || 2,4

Greece || 1,8 || 1,9 || 1,9 || 1,9 || 1,9 || 2,2 || 2,8 || 3,1 || 3,5 || 3,6

Hungary || 12,4 || 10,9 || 8,6 || 7,9 || 7,3 || 6,0 || 5,5 || 5,8 || 5,2 || :

Ireland || 1,7 || 1,8 || 1,7 || 1,7 || 1,5 || 1,5 || 1,7 || 1,8 || 1,8 || 2,1

Italy || 16,9 || 16,3 || 15,3 || 15,7 || 15,5 || 17,0 || 17,4 || 17,8 || 18,2 || 19,5

Latvia || 9,4 || 8,0 || 7,4 || 7,5 || 8,5 || 9,3 || 13,8 || 14,2 || 17,7 || 14,8

Lithuania || 1,7 || 1,7 || 1,6 || 1,6 || 1,6 || 1,5 || 1,7 || 1,8 || 1,8 || 2,1

Luxembourg || 1,3 || 1,4 || 1,3 || 1,7 || 1,6 || 1,7 || 2,2 || 2,5 || 2,9 || 3,3

Malta || : || : || : || : || : || 77,1 || 73,6 || 51,0 || 67,7 || 71,8

Netherlands || 1,8 || 2,0 || 2,1 || 2,3 || 2,3 || 2,6 || 3,0 || 3,3 || 3,6 || 4,0

Poland || 74,5 || 68,6 || 66,0 || 66,7 || : || : || 80,8 || : || : || :

Portugal || 8,2 || 6,9 || 12,4 || 5,9 || 8,4 || 7,8 || 10,0 || 9,9 || 10,9 || 11,4

Romania || 1,9 || 1,8 || 1,7 || 1,8 || 1,8 || 1,8 || 2,1 || 2,1 || 2,2 || 2,5

Slovakia || 4,7 || 4,9 || 4,6 || 4,5 || 4,7 || 4,8 || 4,9 || 5,0 || 5,1 || 5,3

Slovenia || 0,9 || 0,9 || 1,0 || 1,1 || 1,2 || 1,3 || 1,6 || 1,8 || 1,8 || 2,0

Spain || 2,3 || 2,3 || 2,3 || 2,5 || 2,7 || 2,9 || 3,7 || 4,0 || 3,9 || 4,4

Sweden || 1,5 || 2,0 || 2,1 || 2,2 || 2,4 || 2,3 || 2,2 || 2,2 || 2,0 || 2,3

UK || 3,0 || 5,5 || 6,4 || 7,9 || 8,2 || 8,6 || 10,2 || 10,2 || 10,7 || 11,4

Croatia || : || : || : || 6,8 || 6,9 || 6,3 || 6,4 || 6,2 || 6,0 || 6,4

Source:
Eurostat database - Education and training, 2000-2009

 Annex
Table 14: Number of marriages in the EU Member States (2007)

Annex 13

Overview of citizens replies to the Green Paper

The following
tables provide an overview of the citizens’ responses to the 6 questions of the
Green Paper stakeholder consultation that are within the scope of this Impact
Assessment. Answers that were provided in a language other than English or
French have been translated into English.

The answers are colour-coded as follows to
represent the for/against nature of the answers with respect to the initiative:

Note:

No citizen replies were received from the
following MS: AT, CY, CZ, DK, EE, EL, ES, FI, IE, LT, LU, LV, MT, NL, PT, SE,
SI, SK.

Responses to
questions 1-2

Proposed solution à || || The abolition of administrative formalities for the authentication of public documents || || Cooperation between the competent national authorities

Question à || || 1 || || 2

|| Do you think that the abolition of administrative formalities such as legalisation and the Apostille would solve the problems encountered by citizens? || || Should closer cooperation between Member States' authorities be envisaged, in particular as regards civil status records, and if so, in what electronic form?

Member State ||

BE || || La législation des actes de l’ état civil et des autres documents administratives ou judiciaires doit être supprimée pour les pays de l’ union européenne. On doit avoir de la confiance à une autorité compétente qui délivre des données à une autre autorité compétente. || || Nous devons appliquer et mettre en œuvre les "policy options" mentionnés sur page 101 dans le rapport de Von Freyhold et dans son rapport de synthèse. L’adage doit être: Les données doivent courir pas les citoyens. Ça veut dire qu’une fois une donnée d’une personne ou un changement de cette donnée est registrée, le citoyen ne doit plus porter à quelconque autorité que soit, une copie ou une attestation de cette donnée. C’est l’autorité compétente (communes, provinces, états membres d’un pays, les ministères, l’union européenne, les états membres de l’union européenne, les tribunaux, les notaires) qui doit demander à l’autorité qui possède cette donnée, dont il a besoin de l’envoyer et ça par voie électronique, directement d’une autorité à l’autre, même au-delà des frontières. La création d’un document européen de la personne comme l’Association européenne des officiers de l’état civil avait proposé à son congres en 2005 doit être fait en forme électronique, ça facilitera "le libre trafic" de nos compatriotes européens.

BG || || No, I think this will increase the difficulties. || || Yes, but this requires specific proposals.

DE || || The Commission must ensure that the authenticity of documents may be determined in the future. || || Precise proposals must be developed.

|| Yes, the abolition of administrative formalities, such as legalisation, the apostille and of translation requirements would solve problems encountered by EU citizens. Civil status documents should be automatically recognised throughout the EU. || ||  - - - - - - - - - - -

|| No! It would be great for the individuals affected, but 2,5% of European citizens is a number too small to justify such an effort. It would also be suicide for individual states to deprive themselves of the money collected through taxes (to reach this objective). Instead of using the funds for the change/transition process, the majority of individuals should contribute by paying taxes.  || || Yes, but only if this does not require modification of Member States' civil status legislation. For example, certificates in different languages could be created. We reject the abolishment of certificates and documents, as this could lead to abuse and fraud. The low number of weddings between Finns and Cypriots does not justify this.

FR || || Pour rappel, la légalisation ou l’apostille sont des démarches qui visent à authentifier et légaliser des documents administratifs passés dans un état étranger. Sans aucun doute, la suppression de telles formalités simplifierait à première vue les démarches des administrés européens. Mais, aux regards des différences existantes entre les documents administratifs des États membres et des diverses langues, elle serait aussi à l’origine d’une grande insécurité juridique et source de nombreux dysfonctionnements. La Commission ne fait en effet aucune proposition pour pallier à ces différences. A moins de tenir pour acquis que les administrations de chaque pays seraient à même de connaître et reconnaître TOUS les actes administratifs passé dans les 26 autres pays membres, il conviendrait donc que la Commission associe à la suppression de telles formalités des mesures permettant néanmoins d’assurer une sécurité juridique suffisante. || || Si, à première vue, une réponse affirmative semble évidente, il s’avère en fait que la question de la Commission est trop imprécise pour pouvoir y répondre en toute connaissance de cause. Quel type de coopération est-il envisagé ? Comment inscrire celle-ci dans le respect des traités européens et de la souveraineté des États membres en la matière ?

|| Sans aucun doute la suppression de telles formalités simplifierait à première vue les démarches des administrés européens. Mais aux regards des différences existantes entre les documents administratif des États membres et des diverses langues, elle serait aussi à l’origine d’une grande insécurité juridique et source de nombreux dysfonctionnements. La commission ne fait en effet aucune proposition pour pallier à ces différences. A moins de tenir pour acquis que les administrations de chaque pays seraient à même de connaitre et reconnaitre TOUS les actes administratifs passé dans les 26 autres pays membres, il conviendrait donc que la Commission associe à la suppression de telles formalités des mesures permettant néanmoins d’assurer une sécurité juridique suffisante. || || Si, à première vue, une réponse affirmative semble évidente, il s’avère en fait que la question de la Commission est trop imprécise pour pouvoir y répondre en toute connaissance de cause. Quel type de coopération est-il envisagé? Comment inscrire celle-ci dans le respect des traités européens et de la souveraineté des États membres en la matière?

HU || || http://ec.europa.eu/justice/newsroom/civil/opinion/files/110510/citizens/hungary\_en.pdf

IT || || Although reducing administrative formalities would be useful, it is indispensable to ensure the legality and authenticity of external public documents. The principle of "blind trust" proposed by the EC is hardly practical and, more importantly, there seems to be no concern with regards to guaranteeing the legal nature and authenticity of external public documents. The EC should at least propose some alternative mechanisms to verify the authenticity of documents. || || Yes, but the Commission should present concrete proposals in this respect.

IT (cont'd) || || The Apostille and the legalisation of documents do not represent needless bureaucracy - they are aimed at providing authorities with a means of ensuring the legal nature and the authenticity of external public documents. If the Commission proposes to eliminate these formalities, it should also explain how authorities will be able to verify the validity and authenticity of an external public document. It can neither be demanded nor expected that public servants be aware of the "appearance" of all documents from all MS - indeed, these are often not uniform even within the same country. Therefore, it seems that the Commission is suggesting that MS have a blind trust in foreign citizens. Although this might simplify administrative procedures, it would damage public order in MS. || || I do not see the need for this.

|| The Commission should propose alternative methods to facilitate the verification of the authenticity of documents in conjunction with the reduction of administrative formalities. || || The Commission should present concrete proposals in this respect.

|| The Commission should propose alternative methods to facilitate the verification of the authenticity of documents in conjunction with the reduction of administrative formalities. || || This type of cooperation would undoubtedly be most useful. The Commission should present concrete proposals in this respect.

|| I would prefer it if it were clearer what mechanism would be used to verify the authenticity of documents. I therefore would ask the EC to add proposals with respect to this. || || In this case, too, I would like the Commission to present concrete proposals.

|| One could consider the elimination of legalization and the Apostille only for documents for which a European format is created, available in all the official languages and complemented by the technical infrastructure necessary to guarantee the authenticity of a document (i.e. that it comes from an official authority) and the fact that it has not been counterfeited. || || First of all, it would be necessary to set up a national information system for citizens' personal data. This would not be hard, as the legislation is homogeneous. It would be hard to create a unified system at European level. One could envisage that all MS be required to provide a translation of the data collected by them, so that individual MS may access the information systems of other MS to consult the data.

PL || || The abolition of legalization and apostille can only be considered in conjunction with a concrete proposal for an alternative method of determining the authenticity and validity of documents issued in another Member State. || || Yes, but this requires a specific proposal.

|| No, I think it would be more intensified. || || Yes, but it requires a specific proposal.

PL (cont'd) || || The Green Paper describes the apostille and validation of documents as an “outdated” and “inadequate” method. However, it does not give any arguments on which such an assessment can be based. The reduction of bureaucratic formalities would certainly be in the interests of the citizens. However, the apostille and validation of documents are not bureaucracy in itself. Their objective is to help the public authorities establish the legality and authenticity of official documents from abroad. Since the Commission is proposing the abolition of such formalities, it should also clarify how the public authorities will determine the authenticity and validity of foreign documents from this moment. It cannot very well be expected that civil servants will be familiar with the external appearance of all official documents from all Member States or know which body in another Member State has the competence to issue a given type of document. They will also be unable to read and understand all official languages used in the Member States. Therefore, what the commission is proposing looks like the establishment of the principle of “blind faith” without any control. This is certainly non-bureaucratic, but also dysfunctional. It would be better if, when proposing the abolition of such “formalities”, the Commission added something about alternative ancillary mechanisms which help ensure the authenticity of documents. || || Such cooperation would certainly be useful. The Commission should develop a more accurate proposal.

|| The document presented does not specify how the public authorities of the Member States would establish the legality and authenticity of civil documents from other MS. It is difficult to imagine registry offices at local level using all 27 official languages of the EU Member States in practice. In my opinion, such a solution would create legal chaos and more problems than potential benefits. || || Yes, but it is difficult to assess without reference to specific proposals.

|| Yes. I think this would solve the problems of citizens, however, create major complications for the offices. In my view, important documents should still have the statement of authenticity issued by the competent authority. || || Yes, because every collaboration will contribute to the facilitation for the citizens. Electronic form today is a very good idea, it would allow for easier and faster communication.

|| No. To my judgment it would rather make those problems more acute. || || Yes, but specific, concrete proposals are required.

PL (cont'd) || || The Green Paper describes the apostille and validation of documents as an “outdated” and “inadequate” method. However, it does not give any arguments on which such an assessment can be based. The reduction of bureaucratic formalities would certainly be in the interests of the citizens. However, the apostille and validation of documents are not bureaucracy in itself. Their objective is to help the public authorities establish the legality and authenticity of official documents from abroad. Since the Commission is proposing the abolition of such formalities, it should also clarify how the public authorities will determine the authenticity and validity of foreign documents from this moment. It cannot very well be expected that civil servants will be familiar with the external appearance of all official documents from all Member States or know which body in another Member State has the competence to issue a given type of document. They will also be unable to read and understand all official languages used in the Member States. Therefore, what the Commission is proposing looks like the establishment of the principle of “blind faith” without any control. This is certainly non-bureaucratic, but also dysfunctional. It would be better if, when proposing the abolition of such “formalities”, the Commission added something about alternative ancillary mechanisms which help ensure the authenticity of documents. || || Such cooperation would certainly be useful. The Commission should provide more precise proposals.

|| No, I think that would create even more chaos in the status of documents, their hierarchy and relationships between them. In addition, lead to many misunderstandings, and even the paradoxical situation in which the status and rights arising from the document would be less in the country of origin of the citizen than in other EU Member States. || || Yes, but not in electronic form. Any official statement should be equivalent in paper form.

|| On the one hand, the advantages of such a solution can be seen, but in practice, the abolition of any form of audit and validation of documents creates the danger of a falsification of documents. Officials of individual Member States should not be required to be familiar with all forms and printed matter issued by authorities throughout the whole of the European Union, often issued in the national languages, which additionally makes it difficult to understand the content. In my opinion, a far better solution would be to consolidate the forms, which, regardless of the abolition of bureaucratization, would speed up decision-making processes. || || Such cooperation would certainly be useful. The best technical solution could be to use (and if necessary to develop new) open standards. Any proprietary software which is likely to expose the Member States to a so-called vendor lock-in should be especially avoided.

|| No, I think the problems would be intensified. This raises the question of how public authorities will determine the authenticity and validity of foreign documents. What is needed is that the European Commission provides specific proposals for alternative mechanisms. || || Yes, cooperation would be useful, but, once again, concrete proposals are needed.

|| No, I think it would be more intensified. || || Yes, but it requires a specific proposal

RO || || 1.1 Seen from the citizens' point of view, administrative formalities are an obstacle to the expedient realisation of their rights. They impose time, financial and other costs on the citizens, without producing any visible gains. They can also, due to time constraints, endanger the fast realisation of citizens' rights. 1.2 Seen from the state's point of view, administrative formalities fulfil an important function - that of keeping track of, and filtering, those proofs of a legal status which seek to enter the legal sphere - in other words, the legal environment - of the requested state. They provide a useful check of compatibility with that state's rules and with the legal situations already established in that state. Therefore, recognition acceptance of documents without any form of administrative formalities might endanger the stability of legal relationships in a particular state. 1.3 However, the European area of right and justice is based on the mutual trust between Member States' legal systems. In particular, this mutual trust applies to the legal exercise of prerogatives by the relevant authorities of each Member State. Since the apostille, for example, seeks only to give additional proof of this exercise, it might well be abandoned, something which has already been done between some Member States. However, legalisation, which sometimes seeks to provide a filter of legality to private transactions, also within one state, should be kept inasmuch as it serves functions enumerated at 1.2. || || 2.1 Cooperation between Member States' authorities is essential in the transition between multiple areas of right and law, and a unique area of right and law. This transition involves, on the one hand, mutual recognition of civil status situations which are established by the relevant authorities of any Member State, but, on the other hand, the clarification of existing, and possible future situations, which have been / will be solved differently by different Member States, because of their incompatible appreciations of facts, or their own legal traditions and rules. 2.2 Since the European Union does not have many prerogatives in the field of material rules of law, two of the most important means to achieve the objective stated in 1.2 are the adoption of unique rules of private international law, and the facilitation of information exchanges between Member States' authorities, with a view to preventing conflicting situations, and enabling the effective utilisation of legal documents done in one Member State within the other's legal environment. 2.3 Since electronic means are the most effective form of communication, a European network of civil status registries should be established, with facilities for exchanging information on cross-border civil status situations.

UK || || The Green Paper describes the apostille and legalisation of documents as “obsolete” and “not suitable”. But it fails to provide any argument on which such assessments can be based. A reduction of bureaucratic formalities would certainly be in the interest of citizens. However, the apostille and the legalisation of documents are not simply bureaucracy for bureaucracy’s sake. Their function is to help public authorities ascertain the legality and authenticity of public documents of foreign origin. If the Commission proposes the abolition of such formalities, it should also explain how public authorities will henceforth be able to ascertain the authenticity and validity of a document of foreign origin. It can hardly be expected that civil servants will be familiar with the outward appearance of all public documents from all other Member States. Nor can they be expected to know which authority in another Member State is competent for issuing which type of documents. Nor can they be expected read and understand all official languages of all Member States. What the Commission is proposing, therefore, looks like the establishment of a principle of “blind trust” without any control. This is certainly un-bureaucratic, but it is also dysfunctional. It would be far more helpful if the Commission, in the course of proposing the abolition of such “formalities”, could also give some thought to alternative mechanisms that could help to ascertain the authenticity of documents. || || Such co-operation would certainly be useful. The Commission should elaborate more precise proposals.

UK (cont'd) || || I cannot find any adequate arguments in the green paper as to why the apostille and legalization of documents is not suitable, nor does it explain what grounds it bases its conclusion on. Moreover, the main function of the legalization of documents is to enable authorities to assess the legality and authenticity of public documents of foreign origin. Therefore, these formalities should not be abolished without a proposal from the Commission on alternative mechanisms with which they can be replaced that are at least equally effective in determining the authenticity and validity of documents of foreign origin. || || Such cooperation would be useful for documents where national status provisions are virtually identical (e.g. birth and death certificates); I therefore request that the Commission elaborates a more precise proposal, but not for documents where national status provisions are different.

|| I consider that the Commission Green Paper does not give any adequate arguments as to why the apostille and legalization of documents is not suitable, nor does it explain what grounds it bases its conclusion on. I would like to point out that the main function of the legalization of documents is to enable authorities to assess the legality and authenticity of public documents of foreign origin. Therefore, these formalities should not be abolished without a proposal from the Commission on alternative mechanisms with which they can be replaced that are at least equally effective in determining the authenticity and validity of documents of foreign origin. || || I consider that such cooperation would be useful for documents where national status provisions are virtually identical (e.g. birth and death certificates). For these, I request that the Commission elaborates a more precise proposal. However, some documents have different status provisions within different MS which give their own, specific significance and legal effect to these documents [such as those relating to marriage, civil partnership, or adoption]. In such cases, mutual recognition of civil status documents cannot be automatic, but must be subjected to the receiving state’s own policy approach.

|| Yes the abolition of administrative formalities and the apostille would simplify matters for all EU citizens. || || Yes, closer cooperation between Member States’ authorities should be envisaged. A single online website/E-portal such the E-Justice portal would be convenient and advantageous.

|| The Commission’s Green Paper fails to give any adequate arguments as to why the apostille and legalization of documents is not suitable, nor does it explain what grounds it bases its conclusion on. Moreover, the main function of the legalization of documents is to enable authorities to assess the legality and authenticity of public documents of foreign origin. Therefore, these formalities should not be abolished without a proposal from the Commission on alternative mechanisms with which they can be replaced that are at least equally effective in determining the authenticity and validity of documents of foreign origin. || || Such cooperation would be useful for documents where national status provisions are virtually identical (e.g. birth and death certificates); we therefore request that the Commission elaborates a more precise proposal, but not for documents where national status provisions are different.

Responses to
questions 3-4

Proposed solution à || || (cont'd) Cooperation between the competent national authorities.

Questionà || || 3 || 4

|| What do you think about the registration of a person's civil status events in a single place, in a single Member State? Which place would be the most appropriate: place of birth, Member State of nationality or Member State of residence? || Do you think that it would be useful to publish the list of national authorities competent to deal with civil status matters or the contact details of one information point in each Member State?

Member State

BE || || On doit faire le régistrement des événements à une telle manière que l’échange de ces événements se produisent à la façon la plus efficace sans que les garanties légales soient en danger ni pour les citoyens ni pour les autorités compétentes. Pour atteindre ce but les données doivent être registrés à un centre central dans chaque pays membre (voir rapport Von Freyhold) ou on conserve et met à jour ces données. Bien sûr le lieu de naissance et de mariage doivent être averti de chaque changement dont on doit faire une mention marginale à l’acte de naissance ou de mariage. Aussi le lieu de résidence doit être averti pour qu’on puisse changer le registre de population. || La publication d’une liste des autorités compétentes nationales sera une très grande aide pour les citoyens et pour les autorités qui doivent chercher des données des personnes.

BG || || The proposal will create more chaos with respect the problems of the status of the majority of citizens, rather than solve the complex cases of a few individuals. || It should be enough to designate a contact point in each Member State.

DE || || The place of birth will always remain the same. The Commission will have to review its proposals before initiating this discussion. Only 2,5% of European citizens live outside the country where they were born. The higher costs and impacts are completely (100%) concern the population. || Each Member State should establish a contact point.

||  - - - - - - - - - - - ||  - - - - - - - - - - -

|| No! I do not want my data to be visible to MS with high corruption (Bulgaria, Italy, Romania, etc). || Yes.

|| What do you think about the registration of a person's civil status events in a single place, in a single Member State? Which place would be the most appropriate: place of birth, Member State of nationality or Member State of residence? || Do you think that it would be useful to publish the list of national authorities competent to deal with civil status matters or the contact details of one information point in each Member State?

FR || || Si tant est que l’enregistrement des événements d’état-civil d’une personne à un seul endroit dans un seul État représente un allègement des formalités administratives, ce qui reste à démontrer(\*), il est certain que le seul endroit pertinent est celui du lieu de naissance, étant le seul qui ne changera jamais. Cela pose néanmoins le problème des citoyens européens nés hors de l’Union européenne, pour lesquels devrait être envisagé le critère de nationalité. \*Cela suppose en effet que tous les États membres acceptent l’enregistrement des événements d’état-civil via internet, car on voit mal comment devoir se présenter à son lieu de naissance à chacun de ces événements représenterait une simplification administrative pour le citoyen européen. || La liste des autorités compétentes nationales en matière d’état-civil risquant d’être très longue, il semble préférable d’opter pour un point d’information par État membre.

||  - - - - - - - - - - - ||  - - - - - - - - - - -

HU || || http://ec.europa.eu/justice/newsroom/civil/opinion/files/110510/citizens/hungary\_en.pdf

IT || || Further detail on this proposal should be provided. At the moment, the benefits are not very clear, whereas the significant costs are apparent. The GP states that only 2,5% of the population in the EU lives outside its MS of origin. Is it fair to impose the cost of a reform that will only benefit 2.5% of the population to 100% of the same? || The second option is preferable. In some MS there are several national authorities working within the scope of civil status, and it would be complicated to involve all of them.

IT (cont'd) || || The proposal would increase administrative burden, not reduce it. It would also imply significant additional costs. Furthermore, out of the three options put forward in the Green Paper, the only criteria that remains unchanged over time is the place of birth which, however, may not always be within the EU. Therefore, none of these options would work. || I do not see a need for this.

|| Considering the significant costs of this proposal, the benefits seem unclear. || In order to avoid inefficiencies, it would make sense to designate a single point of contact per MS.

|| The Member State of nationality would be the most appropriate || I find the publication of such a list unnecessary.

|| The proposal needs to be better elaborated. Furthermore, I notice that the GP states that only 2,5% of the EU's population lives outside its country of origin. Therefore, is it really worth facing high costs that affect 100% of the population? || I think it would be better to set up a single point of contact in each MS.

|| Events related to civil status could be registered at the place of birth. However, it should be made a compulsory requirement to  indicate on all documents the MS and the place (city/town etc) of birth, perhaps assigning a code to these (e.g. the tax code in Italy contains a code made up of a letter and three numbers which represent the place of birth). || Local authorities (at municipal level) should be encouraged/obliged to be able to provide citizens with information on the competent authorities at national level. Furthermore, each State should communicate to the others what the competent authorities are, so that all states can divulge this through the information points.

PL || || Given that the law on marital status differs between the Member States, I believe that any change should be recorded in the country where the change in marital status took place. || It is advisable to publish a list indicating a central information point.

|| The proposal will result in rather greater chaos in matters of civil status than most people solve complicated cases of individuals. || Just designate a single point of contact in each Member State.

PL (cont'd) || || This proposal could bring new confusion into bureaucracy rather than eliminate it. Referring to the three options proposed in the Green Paper, it should be noted that place of birth is the only criterion which will always be the same, while citizenship and the permanent place of residence may be changed. Simultaneously, many people in the EU were born outside the EU. Therefore, none of the three criteria can exist without additional arrangements (i.e. if a person was born outside the EU, it must be the Member State certifying citizenship and, if the person is not a citizen of the EU, the State of permanent residence). In a word, the proposal requires further work. In the form in which it currently is, its benefits would not be obvious, while its costs would be substantial. (It should be noted that - according to the Green Paper – only 2.5% of the population of the EU live outside their country of origin. In such a case, does this particular interest in these people actually justify such expensive reforms affecting 100% of the EU population??) || Taking into account that in the larger Member States a list of national competent authorities to deal with matters of civil status would be quite long, it is better to designate a single point of contact in each Member State.

|| In my opinion, such a solution is impossible to implement for practical reasons. As for the place of birth, the problem arises of people born outside the EU. As for citizenship, how would the matter of people having citizenship of more than one country be resolved? In terms of the country of permanent residence, in many cases, it will be difficult to establish the definition of permanent residence. The proposal would rather create greater chaos regarding the civil status of the majority of citizens than resolve complex cases of individual people. In addition, it does not seem reasonable to implement such a proposal in the light of the fact that the vast majority of EU citizens live in the country in which they were born. || Given the diversity of legal and administrative systems in MS, I think that should be set in each EU country, one contact point.

|| This proposal would make the very complicated situation of many people much easier. The most appropriate place would be the Member State of permanent residence; this would enable the avoidance of the difficulties of travelling to the place of birth or the Member State certifying citizenship. || Yes, it would be another advantage.

|| Instead of solving complicated cases of particular individuals, the proposal would rather lead to greater chaos in problems of civil status of the majority of citizens. || Establishing of one contact point in each member state will be sufficient.

PL (cont'd) || || This proposal could bring new confusion into bureaucracy rather than eliminate it. Referring to the three options proposed in the Green Paper, it should be noted that place of birth is the only criterion which will always be the same, while citizenship and the permanent place of residence may be changed. Simultaneously, many people in the EU were born outside the EU. Therefore, none of the three criteria can exist without additional arrangements (i.e. if a person was born outside the EU, it must be a Member State certifying nationality and, if the person is not a citizen of the EU, the State of permanent residence). In a word, the proposal requires further work. In the form in which it currently is, its benefits would not be obvious, while its costs would be substantial. (It should be noted that - according to the Green Paper - only 2.5% of the population of the EU live outside their country of origin. In such a case, does this particular interest in these people actually justify such expensive reforms affecting 100% of the EU population??) || Bearing in mind that, in the larger Member States, the list of national authorities with competence for dealing with matters of civil status would be quite long, it would be better to designate a single point of contact in each Member State.

|| The proposal would rather create greater chaos regarding the civil status of the majority of citizens than resolve complex cases of individual people. I think that the mechanism for communicating information between the respective authorities in each of the States would fail with such a proposal. || Just designate a single point of contact in each Member State.

|| Each of the proposals creates a new bureaucratic problems: place of birth - constant, but creates the problem of registration of immigrants from outside the European Union; a place of permanent residence and citizenship - due to migration of people all documentation would also have to be safely transported. || Best to establish one point of contact, providing information about specific administrative units. The entire list would probably be quite large and difficult to search.

|| The place of birth is the only criterion which will remain the same, whereas citizenship or the permanent place of residence may change. However, many residents of the European Union were born outside the EU. It arises from this that none of the three criteria can exist without additional arrangements. The proposal would rather create greater chaos regarding the civil status of the majority of citizens than resolve complex cases of individual people. Therefore, it needs further work. || Just designate a single point of contact in each Member State.

|| The proposal will result in greater chaos in matters of civil status for most people, rather than solve complicated cases of individuals. || Just designate a single point of contact in each Member State.

RO || || 3.1 Registration of civil status events serves two main purposes. On the one hand, it serves the person in question, who is interested in proving, towards third parties, his civil status, and in having his position in society recognised by the state and fellow persons. On the other hand, it also serves society as a whole, and individual third parties, who can ascertain the civil status of a person at any given time, and correspondingly enter into relationships with that person, grant her/him the relevant rights, or implement policies for a given category of persons. 3.2 Therefore, in a way, every of the states mentioned in the question has an interest in the registration of civil status events. A system of unique registration can only be established if and when an underlying system of effective access to civil status documents registered in another Member State exists between every participating country. 3.3 In such a case, it would be preferable to register these events at the place of birth, since this would provide an immoveable and easily proven point of contact, and it is also compatible with the existing legislation of many Member States. || The publications of both categories of information would be preferable.

UK || || This proposal is likely to generate new bureaucratic burdens rather than reducing them. With regard to the three options proposed in the Green Paper, it is worth noting that the place of birth is the only criterion that will always remain the same, whereas a person’s citizenship and residence can change. But, at the same time, many EU residents have been born outside the EU. Thus, none of the three criteria can work without a subsidiary arrangement (i.e., if the person is born outside the EU, then the person’s civil status must be based on the Member State of nationality; if the person is not an EU citizen, then it must be based on the country of residence). In short, the proposal needs further elaboration. As it currently stands, its benefits would not be self-evident and the costs would be considerable. (It should be noted that, according to the Green Paper, only 2.5% of the EU’s population live outside their Member State of origin. Does the particular interest of a few expatriates really justify reforms that are expensive and which affect 100% of the population?) || Given that in the larger Member States the list of national authorities competent to deal with civil status matters would be rather long, it seems preferable to designate one contact point in each Member State.

|| Member state of residence may be the most convenient. || Yes it would be convenient.

Responses to
questions 5-6

Proposed solution à || || Limiting translations of public documents. || || The European civil status certificate.

Question à || || 5 || || 6

|| What solutions do you recommend in order to avoid or at least limit the need for translation? || || What kind of civil status certificates could be the subject of a European civil status certificate? Which details should be mentioned on such certificate?

Member State

BE || || On doit créer dans l’union européenne des actes plurilingues, pourvus des codes cfr. Convention nr 25 du CIEC. Tout acte doit être dressé dans la langue nationale (ou les langues nationaux) et en Allemand, Français et Anglais mais en forme documentaire (Système des extraits internationaux). Il faut créer un acte européen, qui sera le même dans toute l’Europe. Cela évitera que les citoyens ou autorités doivent laisser traduire les actes. || || Tous les actes doivent faire l’objet d’un certificat européen d’état civil (naissance, mariage, divorce, décès, adoption). Un certificat de personne doit contenir : - Le nom de famille - Les prénoms - Date et lieu de naissance - Sexe - Nom de famille et prénoms de ses parents - Date et lieu de mariage/partenariat - Date et lieu de dissolution de mariage/partenariat - Nationalité - Dernière adresse - Date et lieu de décès - Adoption

BG || || The only solution is to create standard forms that contain the necessary information in all languages ​​(as in the case of passports). || || Such certificate may be applied only in those areas where there is common ground between the laws of different Member States, i.e. for example. in MS where family is understood exclusively as a link between man and woman.

DE || || Standard forms which contain the necessary information in all official languages. || || Birth or death certificates.

|| As mentioned in the answer to question 2, certificates created in different (European) languages right from the start. || || The example given in the Green Paper makes the assumption regarding the certificate that "in this case, the Spanish authorities would probably ask for a translation". It would be better to know this from the very beginning. In Germany documents related to civil status already exist in an international format. Therefore, the European format would not be necessary.

FR || || La meilleure solution semble être dans l’élaboration de documents standards au niveau européen, ou à tout le moins de documents reprenant les mêmes rubriques, chaque fois que cela est rendu possible par une convergence suffisante entre les États membres de la signification de tel ou tel document administratif. Ceci est déjà le cas pour le passeport et le permis de conduire. || || Ne pourraient faire l’objet d’un certificat européen d’état-civil que les actes d’état-civil qui recouvrent une même signification et une même réalité dans chaque état membre. Ainsi, naissance et décès pourraient être concernés. Le mariage et les unions civiles, n’ayant plus la même signification dans tous les États membres depuis la reconnaissance par une minorité d’entre eux du mariage homosexuel, ne pourrait par contre pas faire l’objet d’un tel certificat.

HU || || http://ec.europa.eu/justice/newsroom/civil/opinion/files/110510/citizens/hungary\_en.pdf

IT || || The only solution is to create standard forms that contain the necessary information in all languages ​​(as in the case of passports). || || Strictly speaking, only death and birth certificates would be able to be part of a European Civil Status Certificate ("death" and "birth" should have the same meaning in all MS). In any case, the certificate can only exist in domains common to different legislations. For example, a standard format for a marriage certificate could only be used whereby all jurisdictions converge (i.e. only for heterosexual marriage).

IT (cont'd) || || When I registered in Germany (coming from Italy), I had to produce civil status documents on forms written in several languages. Therefore, based on my experience, this option already exists. It would be advisable for these forms to be available upon request, and that they are not imposed on everyone, given that 97,5% of the population will not need them. || || If a European Certificate is to be introduced, this can only relate to those aspects for which there is legal homogeneity between MS. Therefore, this would probably include birth and death, and exclude marriage, PACS, adoptions, etc.

|| The only solution is to create standard forms that contain the necessary information in all languages ​​(as in the case of passports). || || For sure birth and death certificates. For other certificates, this concept may only be applied whereby there is common ground between the legislation of individual MS.

|| The only solution is to create standard forms that contain the necessary information in all languages ​​(as in the case of passports). || || Only birth and death certificates could be the object of a European Certificate (as "death" and birth" probably have the same meaning in all MS). However, it should be noted that this concept may only be applied whereby there is common ground between the legislation of individual MS.  For example, a common European format for a marriage certificate could only be used when all  legal jurisdictions converge, i.e. only for heterosexual marriages.

|| The only solution is to create standard forms that contain the necessary information in all EU languages. || || The only certificates common to all legislations and for which the concept of a European certificate would therefore apply are those for birth and death. I totally exclude the possibility of such a certificate existing for "Family Status" and "marriage" given that, as stated in Art. 81(3) TFEU, for family status national parliaments are the competent authorities: in many MS, homosexual unions are not considered to be "marriage" and adoption by such couples is not permitted.

||  - - - - - - - - - - - || || It is hard to envisage a European Civil Status Certificate because one would need to foresee all the possible hypotheses regulated by the national laws of each MS. This would result in hundreds of different hypotheses. Instead of simplifying the certificate, this  would make it more complicated. For example, in Italy, the declaration of birth consists in 45 different formats depending on the different cases regulated by the law. Death is probably a more uniform discipline, and birth, too, as long as one only looks at the place and date of birth, without mentioning the parental relationships. As per the latter, marriage and civil partnerships are also treated very differently within the EU.

PL || || The creation of standard forms containing the necessary information in all languages. || || Such certificates could easily be used in relation to death certificates. Generally, however, such a certificate would apply only in areas where there is common ground between the laws of different Member States (for example, in MS where marriage is meant only as the union between man and woman).

|| The only solution would be to develop standard forms that contain the necessary information in all languages (as is the case of passports). || || Such a certificate would apply only in areas where there is common ground between the laws of different Member States and, therefore, for example, in MS where marriage is meant only as a union of man and woman.

PL (cont'd) || || The only solution would be to develop standard forms of short-circuiting the necessary information in all languages (as it has in the case of passports). || || This could be easily conducted in the case of birth and death certificates, assuming that “births” and “deaths” probably have the same meaning everywhere. It should be noted, however, that such a solution may only be applied in areas where there is common ground between the legislation of the various Member States. For example, the standard European form of the marriage certificate could only be used where there is common ground between all legal systems, i.e. in the case of marriages between people of opposite sexes.

|| Standardization of forms, so that they contain the necessary information in all languages. || || I do not think that it is possible to create such a certificate which is useful in practice in view of the large (and increasing) differences in definition by the legal systems of the Member States of even basic concepts, falling within the scope of civil law (e.g. it is difficult to speak of the notion of marriage being identical in MS where marriage is understood exclusively as a union of a women with a man, and those which allow unions of people of the same sex to be called marriages).

|| The only solution would be to develop standard forms that contain the necessary information at least in the official language of the country in which it was done and English. || || The subject of a European Certificate of civil status certificates could be all that would be needed to make various legal actions. It should contain all the information you need.

|| In my opinion the only solution would consist in preparing standard forms containing necessary information in all languages (as in the case of passports). || || Such a certificate could be applied only in such areas where a common basis exists in legal systems of different member states, e.g. in MS where marriage is understood exclusively as a union between a woman and a man.

PL (cont'd) || || The only solution would be to develop standard forms containing the necessary information in all languages (as is the case of passports). || || This could be easily conducted in the case of birth and death certificates, assuming that “births” and “deaths” probably have the same meaning everywhere. It should be noted, however, that such a solution may only be applied in areas where there is common ground between the legislation of the various Member States. For example, the standard European form of marriage certificate could be used only where there is common ground between all legal systems, i.e. in the case of marriage between persons of opposite sexes.

|| The only solution would be to develop standard forms that contain the necessary information in all languages (as is the case of passports). || || Such a certificate would apply only in areas where there is common ground between the laws of different Member States and, therefore, for example, in MS where marriage is meant only as a union of man and woman.

|| Harmonization of forms. On the one hand standard forms (like passports) may be set up, while on the other hand technology enables data to be kept in generally designed databases, the description of which each Member State may translate into the national language. || || They can be used for status, which have the same meaning everywhere, just like birth and death certificates. It should be noted, however, that such a solution may only be applied in areas where there is common ground between the legislation of the various Member States. For example, the standard European form of marriage certificate could be used only where there is common ground between all legal systems, i.e. in the case of marriage between persons of opposite sexes.

|| The only solution would be to develop standard forms that contain the necessary information in all languages (as is the case with passports). || || Such a certificate would apply only in areas where there is common ground between the laws of different Member States (for example, in MS where marriage is meant only as the union between man and woman).

|| The only solution would be to develop standard forms that contain the necessary information in all languages ​​(as is the case of passports). || || Such a certificate would apply only in areas where there is common ground between the laws of different Member States and, therefore, for example, in MS where marriage is meant only as a union of man and woman.

RO || || Information on documents can be unscientifically classified into two categories: self-contained data, and explanations. It is unavoidable that explanatory data, and other particular comments relating to a complex point will always need translations. However, both for self-contained data and complex messages, translation could be simplified or avoided through standardised forms, and through indices of situations, compiled with the input of Member States. These indices would provide a unique number for a given situation / type of data and they would be translated in every Member State. The filling and understanding of common forms would be much simplified. || || Traditionally, civil status documents have had their individual identity. A unification into a civil status certificate would involve the constant updating of this certificate throughout the person's life. Questions of preservation, duplication and proof should be considered before establishing such a certificate. However, if these questions are positively solved, then it would be preferable that this certificate should only mention the common data stored in national certificates of all Member States, avoiding those which are only to be found in one or a few Member States. The data should also be analysed from the point of view of their compatibility with Human Rights and privacy law.

UK || || The only foreseeable solution would be to develop standard forms that contain the necessary information in all official languages (as is already the case for passports). || || This could easily be done, for example, for birth or death certificates (given that “birth” or “death” probably has the same meaning everywhere. Given the divergences in material law with regards to artificial procreation, it would exclude documents related to these practices). However, it should be noted that such a solution can only be used in areas where there is common ground between the legislation of different Member States. For example, a European standard form for a marriage certificate could only be used where there is common ground between all legal systems (i.e., for marriage between two persons of different sex).

|| Developing standard forms that contain the necessary information in a uniform template as is currently the case for passports and driving licenses. || || A European civil status certificate may be a reasonable solution in areas where there is common ground between the legislation of different Member States, in cases such as for birth or death certificates for example, as these probably have the same meaning everywhere. However, this would be more problematic in the case of a standard European form for marriage or civil partnership certificates as there is no common ground between all legal systems of the EU Member States in this area.

||  - - - - - - - - - - - || || A European civil status certificate may be a reasonable solution in areas where there is common ground between the legislation of different Member States, in cases such as for birth or death certificates for example, as these probably have the same meaning everywhere. However, this would be more problematic in the case of a standard European form for marriage or civil partnership certificates as there is no common ground between all legal systems of the EU Member States in this area. For example, the European consensus on the definition of marriage was broken eleven years ago (2000) when the Netherlands became the first of a small minority of European MS to permit marriage between two persons of the same sex.

|| Multilingual forms in all EU languages would be necessary to help with translation issues. || || Civil status certificates such as birth, partnership, marriage, death, surname changes need to be mentioned on a European Civil Status Certificate. The date of the life event should be mentioned. Any changes to the life event should be noted on the certificate, as well.

|| Developing standard forms that contain the necessary information in a uniform template as is currently the case for passports and driving licenses. || || A European civil status certificate may be a reasonable solution in areas where there is common ground between the legislation of different Member States, in cases such as for birth or death certificates for example, as these probably have the same meaning everywhere. However, this would be more problematic in the case of a standard European form for marriage or civil partnership certificates as there is no common ground between all legal systems of the EU Member States in this area. The European consensus on the definition of marriage was broken eleven years ago (2000) when the Netherlands became the first of a small minority of European MS to permit marriage between two persons of the same sex.

Annex 14

Output of the stakeholders' consultation through the questionnaires of the
preparatory study

The preparatory study examined the views of
the stakeholders through a questionnaire. The outcome is summarized here.

EU Citizens and
SMEs

The stakeholders agree on the fact that the
most problematic documents are civil status documents, such as marriage
certificates and death certificates. The main difficulties are connected to the
fact that often the document requested does not correspond to the same document
in another MS.

The replies to the questionnaires also
underlined the difficulty of obtaining original copies, as it is not always
easy to get in contact with the competent authorities (or even to understand to
which authority one must refer).

From the answers provided, it is clear that
certified translations are mostly perceived as an obstacle.

As far as costs are concerned, citizens
actually complained about the need to pay the fees for the legalised documents,
whereas these costs and time wasted were indicated to be higher when documents
had to be searched for in the archives of the relevant authorities. All in all,
the respondents to the questionnaires qualified the costs placed on them as
excessive and an obstacle to the exercise of the free movement rights.

In addition, time needed for administration
formalities seemed to be approximately four to five working days. Several
respondents considered the formalities related to the cross-border use of
public documents to be lengthy and time-consuming and consequently having a
negative impact on their family situation.

In conclusion, the respondents suggested
that it would be useful to increase the usage of standard forms and digital
transmission of documents.

Public
authorities

The questionnaire was aimed at Public
Authorities (including competent authorities under the Apostille Convention and
the 1987 Brussels Convention) dealing with authentication and legalisation procedures
of public documents.

A practical example of a difficulty that
may arise with respect to issuing or accepting public documents originating in
other Member States is the requirement to obtain sample stamps and signatures,
but this issue is specifically related to public documents originating in third
countries. The authorities consulted also pointed out that Apostille seals
can be forged.

As regards the perspective of administrative
cooperation, the stakeholders consulted pointed out that, in some cases,
communicating with the official who issued the document to verify data contained
therein is a fundamental element, in the case of documents that, at first
glance, may not appear trustworthy (an example provided pointed out to the
relevance of direct communication between competent authorities in order to
avoid sending a widow back abroad to get the Apostille on her husband’s death
certificate). In any case, the existing means of administrative cooperation are
considered unsatisfactory since they do not solve citizens' problems through
direct contact between them, the country of origin and the State where that
citizen actually lives.

Furthermore, the success of the ECRN
platform was underlined, which aims at the provision of a reliable exchange
of civil status acts and certificates.

[1]               The Hague Convention of 5 October 1961 abolishing the
requirement of legalisation for foreign public documents (Apostille
Convention).

[2]               OJ C 115, 4.5.2010, p.1.

[3]               COM(2010) 171 final.

[4]               EP Resolution of 25 November 2009 on the
Communication of the Commission to the European Parliament and the Council – An
area of freedom, security and justice serving the citizen – Stockholm
programme, see point 95.

[5]               COM(2010) 747 final.

[6]               COM(2010) 603 final.

[7]               COM(2011) 206 final.

[8]               COM(2012) 573 final.

[9]               17 Member States, one third country, 21 International
Organisations and Associations and 33 National Organisations and Associations
(legal experts, professional associations, public bodies). As for EU citizens,
the vast majority of their replies was related to the second part of the Green
Paper (cca 10.800 standard letters).

[10]             See Annex 13 and Annex 14.

[11]             In addition to the lack of specific data both at EU and
national level on this issue, figures depend on a complex set of factors: on
the one hand, procedures and practices concerning the acceptance of foreign
public documents differ among the Member States; on the other hand, the
circulation of public documents is also ruled by international instruments and
sectoral EU law simplifying or abolishing the legalisation procedure and/or
providing for administrative cooperation between the competent national
authorities is specific areas. Moreover, public documents are often required in
a number of combinations: as copies, certified copies, originals, translations
and certified translations. Finally, there may not necessarily be a direct
correlation between the data on intra-EU mobility and economic activities and
the amount of public documents circulating within the EU. All these elements
make specific estimates on the total number of public documents circulating
between the Member States and subject to administrative formalities difficult,
which also applies to the number of EU citizens and businesses requested to
fulfil the identified administrative formalities to ensure acceptance of these
public documents in other Member States.

[12]             The number of Apostilles issued
yearly is estimated on the basis of the 2008 and 2012 HCCH Questionnaires,
available for 22 Member States (including Croatia). In those Member States for
which information is not available (AT, EE, IT, MT, SE, NL), data have been
estimated as a proportion of the immigrant and total population. See Annex 10 and Annex 11 for
further details.

[13]             On the one hand, public
documents exchanged among different Member States and subject to Apostille are
likely to be accompanied by certified translations; on the other hand, in some
cases, public documents can be exchanged without an Apostille (e.g. abolished
by bilateral or multilateral agreements), but certified copies remain to be requested.

[14]             For further details on legalisation and Apostille
please see Annex 2.

[15]             COM(2012)238, 4.6.2012

[16]             Eurostat data, Population by sex, age group and
citizenship 2007 – 2011 (see Annex 12, Annex Table 11).

[17]             See Annex 12.

[18]             Eurostat database, Labour Force Survey 2011, percentage
distribution of main reasons for migration, by country of birth (% of total
migrants born in EU 27) 2011. See Annex 12, Annex Table 12.

[19]             Eurostat database, Labour Force Survey 2011 percentage
distribution of main reasons for migration, by country of birth (% of total
migrants born in EU 27) 2011. See Annex 12, Annex Table
12.

[20]             See Annex 12, Annex Table 14.

[21]             The example of the Hungarian-Belgian marriage comes
from the citizens’ contributions to the Green Paper.

[22]             Example based on Case C-332/05, Aldo Celozzi vs.
Innungskrankenkasse Baden-Württemberg.

[23]             DG Enterprise and Industry, Internationalisation of
European SMEs, Final Report, 2010. Data are based on a survey of 9,480 SMEs
carried out in spring 2009. It involved 27 EU Member States and 6 non-EU
countries: Croatia, Iceland, Liechtenstein, Former Yugoslav Republic of
Macedonia, Norway and Turkey. The percentage includes data on SMEs which are
engaged in different “modes of internationalization”, such as imports, exports,
foreign direct investments, technological cooperation with enterprises abroad,
subcontracting with foreign enterprises.

[24]             Moreover, it is worth noting that some cross-border
activities of SMEs often entail the movement and residence of entrepreneurs or
of employees, or the movement of individual customers, from one Member State to
another and thus being closely connected to the free movement of citizens.

[25]             In 2012, DG Enterprise and Industry conducted a survey
on a sample of 485 EU SMEs in order to identify the most burdensome pieces of
EU legislation. The survey also provided practical examples of the issues that
SMEs encounter during cross-border transactions. Some of the examples are
directly related to the requests for legalisation, Apostille, certified copies
and certified translations of documents needed for the establishment, provision
of services or the participation to public procurement in other MS.

[26]             Examples of practical experience of Ernst&Young –
Corporate Mergers & Acquisition.

[27]             SME panel questionnaire 2012 – The top 10 most burdensome
pieces of legislation for SMEs.

[28]             The figures in the box are based on a set of estimates,
due to the lack of specific data on the issues concerned.

[29]             No specific data on the number of legalisation in the
EU is available, however, the MS’ replies to questionnaires delivered by HCCH
confirm that the number of Apostilles issued exceeds the number of
legalisations.

[30]             I.e. in the 21 EU Member States based on Roman law.

[31]             Decreto Ministeriale 27 novembre 2001,
Determinazione della tariffa degli onorari, dei diritti, delle indennità e dei
compensi spettanti ai notai.

[32]             Real Decreto 1426/1989, de 17 de
noviembre, por el que se aprueba el arancel de los Notarios.

[33]             This cost takes into account both: certified copies
free of charge (€ 0) and certified copies that have a cost (e.g. € 5,
corresponding to the fee for issuance or other costs paid, such as the cost of
postal services). On average (by considering both copies issued for € 0 and
copies issued for € 5), an additional cost of € 2 is considered. This cost is
additional to the time waste (quantified in terms of working hours invested).

[34]             SEC(2010) 1547 final. Impact Assessment accompanying
the Proposal for a Regulation of the European Parliament and of the Council on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters.

[35]             Indeed, some documents would be exchanged between
same-language Member States (e.g. AT-DE).

[36]             For example, when bilateral or multilateral agreements
abolish Apostille.

[37]             The issuing of an Apostille can take up to one week,
but this varies between the Member States.

[38]             Based on the known value for the immediate issuing of
Apostilles, proportionate increases were applied to estimate the amount of
working hours required by public administrations to issue the Apostille.

[39]             OJ L 255/22 of 30.9.2005.

[40]             This is an output of the 2007 study (Study
JLS/C4/2005/04).

[41]             The Apostille Certificate is a public document and, as
such, is susceptible to fraud and forgery. Apostille certificates are not
always placed on/attached to documents in a uniform and secure way: for
example, the Apostille may be detached from a public document and reattached to
another document in order to have it accepted by a foreign public authority.

[42]             See Annex 2 and Annex 5. For further details on the
application and scope of the Apostille Convention, please see Annex 3.

[43]             CIEC is an international organisation, which was set up in 1949 in order to promote international cooperation on
civil status matters and improve the functioning of civil status authorities.
Member States of the CIEC are Belgium, Croatia, France, Germany, Greece,
Hungary, Italy, Luxembourg, Mexico, the Netherlands, Poland, Portugal, Spain,
Switzerland, Turkey and the United Kingdom. States with observer status are
Cyprus, the Holy See, Lithuania, Moldova, Rumania, Russian Federation, Slovenia
and Sweden.

[44]             See for further details in Annex 2, Annex Box 1.

[45]             Austria, France, Italy, Luxembourg, the Netherlands,
Poland, Portugal and Spain are State parties to Convention No 17 on the
exemption from legalisation of certain records and documents.

[46]             Article 4(1) of the 1987 Brussels Convention. For
further details on application and scope of the Apostille Convention please see
Annex 3.

[47]             Namely Belgium (applicable since 16.3.1997), Denmark
(26.10.1989), France (12.3.1992), Italy (11.1.1991), Ireland (8.3.1999) and
Latvia (21.6.2004). Cyprus (29.4.2005) has acceded to the Convention, though
without declaring it provisionally applicable. The Convention was also signed
by Germany, Greece, Luxembourg, Netherlands, Portugal and UK, but these Member
States have refrained from its ratification and provisional application.

[48]          During
the 2008 study, the foreign ministries of the Member States were asked why they
had not ratified the 1987 Brussels Convention and if there were any general
objections to such a step. None of the Member States could give compelling
reasons. In one Member State, an official checked the files and explained over
the phone that there was an election shortly after the Convention had been
signed and the responsible ministerial official retired. Thereafter, the issue
was forgotten.

[49]             COM(2010) 747 final.

[50]             To this purpose, it is also worth noting that since the
ratification of the Brussels Convention - 25 years ago – many developments have
occurred in terms of mutual trust among authorities, progressive development of
the internal market as a fully integrated space for citizens and economic
operators and in terms of tools, such as the IMI, unavailable at the time.

[51]             See Annex 2.

[52]             Directive on services in the internal market. OJ L 376/36 of 27.12.2006.

[53]             Even if certain EU sectoral law have already
established standard forms (e.g. Succession Regulation, European Small Claims
Procedure Regulation, European Order for Payment Procedure Regulation, etc).

[54]             See Annex 6, section 6.1.

[55]             The summary of the conclusions of the 2007 Study
informs that certain Member States charge a different rate for the same
legalisation formality depending on the nationality of the applicant. The study
concludes that this practice is directly discriminatory, irrespective of the
fact that the requirement of legalisation itself is not (p. 38).

[56]             In this context it should be noted that administrative cooperation in situations of serious
doubt about the authenticity of public documents originating in other Member
States foreseen by the 1987 Brussels Convention is practically non-existent
between the six Member States which apply the Convention provisionally.

[57]             Authorities and other entities (including private entities
carrying out public duties) can be registered in IMI. Authorities and/or
private entities carrying out public duties that do not (or do not yet) have
direct access to IMI themselves and have reasonable doubt about the
authenticity of public documents may request information from the central
authority(ies) of their Member State. Such a possibility shouldn’t be, however,
awarded to private entities or individual citizens when being presented with
public documents originating from other Member States. Most documents
themselves (such as contracts, invoices, cheques, commercial documents) which
private entities deal with are not public documents and are beyond
certification or legalisations.

[58]          Following
the proposal COM(2011) 522 final, the new Regulation (Regulation 1024/2012 of
25 October 2012 on administrative cooperation through the Internal Market
Information System) was published in the Official Journal on 14 November 2012
and entered into force on 4 December 2012. The Regulation provides a high level
of flexibility for future expansion of IMI to Union acts not yet listed in the
Annex (Art. 4 of the “IMI Regulation”), based on pilot projects carried out by
the Commission and evaluations of their outcomes, including data protection
issues and effective translation functionalities.

[59]             Regulation (EU) No 650/2012 on
jurisdiction, applicable law, recognition and enforcement of decisions and acceptance
and enforcement of authentic instruments in matters of succession and on the
creation of a European Certificate of Succession. OJ L 201/107 of 27.7.2012.

[60]             As already mentioned, the costs placed on EU citizens
and SMEs for certified copies is based on the time waste and the combination of
copies issued without any charge (typically by public administrations) and
other additional costs (notarial services, postal services). Therefore, the
savings for EU citizens and SMEs are not directly related to the fees charged
by public administrations, but are also (and mainly) due to the reduction of
time waste, the use of notarial services, or postal services. Consequently, no
significant loss for public administrations would be envisaged based on this
estimate.

[61]             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). At the same time, there
would be public documents that would not need the Apostille certificate, but
they would need to be accompanied by a certified translation (we can assume 30%
of documents moving across EU, i.e. 420.000 documents). On the whole, more than
1.6 million public documents would need a certified translation. The estimated
savings of EU citizens and businesses are based on the assumption that a
document can be, on average, made up of 3 pages (the most of documents such as
birth/ marriage certificates are 1 page documents, whereas other documents such
as tax return can reach 10 pages) and considering a cost equal to €30 per page.

[62]             Moreover, it is worth noting that this initiatives
would relate only to administrative formalities and would not have implications
in terms of automatic recognition of the effects of public documents (i.e. the
second initiative of the Green Paper COM(2010) 747
final, focused on the recognition of the effects of
civil status records).

[63]             See Annex 14.

[64]             i.e. in the first step by € 31-33 million
annually, less fee revenue from citizens, by 5-7 million.

[65]             Eurostat,
“Hourly labour costs in the EU 27“.

[66]             Alternative
wording for "the formal procedure" could be "the formality used
to certify", based on Article 1, Convention of CoE 1968
("…legalisation means only the
formality used to certify the authenticity of the signature on a document, the
capacity in which the person signing such document has acted and, where
appropriate, the identity of the seal or stamp which such document bears.)

[67]             See Article 3 of the 1987
Convention.

[68]             All MS have adhered to an interpretation and use of the
concept of legalisation that is the same or similar to that introduced by the
Apostille Convention. Some differences exist, such as the fact that in Hungary,
Latvia, Lithuania, Portugal, Slovakia, Slovenia and Spain, legalisation has
been described as concerning merely the authenticity of the signature of the
public authority signing the public document; in Greece, the process of
legalisation also concerns the competence of the public authority signing the
public document.

[69]             In particular, this is the case in Denmark, Finland,
France, Greece, Lithuania, Luxembourg, Netherlands, Poland, Spain and Sweden.

[70]             Bulgaria, Luxembourg, Romania.

[71]             Specifically, documentary
requirements concern attestations of professional competence, evidence of
formal qualifications giving access to certain professions, attestations of
professional experience and documents proving the good reputation of the
citizen.

[72]             Decree No 129/92.

[73]             DG Enterprise and Industry,
Internationalisation of European SMEs, Final Report, 2010. Data are based on a

survey of
9,480 EU SMEs carried out in spring 2009. It involved 27 EU Member States and 6
non-EU countries: Croatia, Iceland, Liechtenstein, Former Yugoslav Republic of
Macedonia, Norway and Turkey. The percentage includes data on SMEs which are
engaged in different “modes of internationalisation”, such as imports, exports,
foreign direct investments, technological cooperation with enterprises abroad,
subcontracting with foreign enterprises.

[74]             Even though there is an attempt to harmonise the
purchase of cars on EU-level, namely by Directive

1999/37/EC
and Directive 2007/46/EC, these attempts do not expressly exempt registration
certificates from legalisation, similar formalities and other formalities.

[75]             Directives 2004/18/EC and 2004/17/EC.

[76]             Competent authority means any body established at
either national, regional or local level and registered in IMI with specific
responsibilities relating to the application of national law or Union acts
listed in the Annex in one or more internal market areas (Regulation No
1024/2012, of 25 October 2012).

[77]             In the areas concerning the Services Directive, the IMI
supports the administrative cooperation provisions

under Chapter
VI of the Directive, including requests for information and to carry out
checks, inspections and investigations, alert and case-by-case derogation
procedures. Under the Professional Qualifications Directive, requests are aimed
at verifying, for example: whether a citizen, holding a diploma for a specific
profession, has the right to pursue the relevant professional activities beyond
the territory of the MS of origin, what profession is a citizen entitled to
pursue, etc.

[78]             The IMI data exchange procedure between authorities are
fully compliant with EU data protection rules:

- The
European Commission Decision of 12 December 2007 concerning the implementation
of the Internal Market Information System (IMI) as regards the protection of
personal data. It is replaced by the IMI Regulation;

- The
European Commission Recommendation of 26 March 2009 on data protection
guidelines for the Internal Market Information System (IMI). It is replaced by
the IMI Regulation;

- The
European Commission Decision of 2 October 2009 setting out the practical
arrangements for the exchange of information by electronic means between MS
under Chapter VI of Directive 2006/123/EC of the Services Directive.

[79]             COM(2011) 75 final.

[80]             Directive 96/71/EC of the European Parliament and of
the Council of 16 December 1996 concerning the

posting of workers in the framework of the provision of services.

[81]             Competitiveness and Innovation Programme, Information
and Communication Technologies Policy Support

Programme.

[82]             HCCH Questionnaire 2012 or HCCH Questionnaire 2008
(most recent available). These figures have then

been
multiplied by 0,49 (i.e. 49%), which is the average (mean) of the percentage of
EU non-nationals on the total number of EU nationals (equal to 34%) and the
percentage of intra-EU trade as compared to total volume of trade (equal to
64%).

[83]             HCCH Questionnaire 2012 or HCCH Questionnaire 2008 or
Von Freyhold, Vial & Partner Consultants, 2008

(most recent
available). In cases where the data was in range format (minimum-maximum) the
midpoint has been calculated. Where data is lacking, we have applied the
weighted average of € 13,20.

[84]             HCCH Questionnaire 2012 or HCCH Questionnaire 2008
(most recent available). These figures have then

been
multiplied by 0,49 (i.e. 49%), which is the average (mean) of the percentage of
EU non-nationals on the total number of EU nationals (equal to 34%) and the
percentage of intra-EU trade as compared to total volume of trade (equal to
64%).

[85]             HCCH Questionnaire 2012 or HCCH Questionnaire 2008
(most recent available). These figures have then

been
multiplied by 0,49 (i.e. 49%), which is the average (mean) of the percentage of
EU non-nationals on the total number of EU nationals (equal to 34%) and the
percentage of intra-EU trade as compared to total volume of trade (equal to
64%).

[86]             HCCH Questionnaire 2012 or HCCH Questionnaire 2008 or
Von Freyhold, Vial & Partner Consultants, 2008

(most recent
available). In cases where the data was in range format (minimum-maximum) the
midpoint has been calculated. Where data is lacking, we have applied the
weighted average of € 13,20.

[87]             HCCH Questionnaire 2012 or HCCH Questionnaire 2008
(most recent available). These figures have then

been
multiplied by 0,49 (i.e. 49%), which is the average (mean) of the percentage of
EU non-nationals on the total number of EU nationals(equal to 34%) and the
percentage of intra-EU trade as compared to total volume of trade (equal to
64%).

[88]             HCCH Questionnaire 2012 or HCCH Questionnaire 2008 or
Von Freyhold, Vial & Partner Consultants, 2008

(most recent
available). In cases where the data was in range format (minimum-maximum), the
midpoint has been calculated. Where data is lacking, we have applied the
weighted average of € 13,20.

[89]             HCCH Questionnaire 2012 or HCCH
Questionnaire 2008 (most recent available). These
figures have then

been
multiplied by 0,49 (i.e. 49%), which is the average (mean) of the percentage of
EU non-nationals on the total number of EU nationals(equal to 34%) and the
percentage of intra-EU trade as compared to total volume of trade (equal to
64%).

[90]             HCCH Questionnaire 2012 or Von Freyhold, Vial &
Partner Consultants, 2008 (most recent available). All

values have
been converted to hours. In cases where the data was in range format
(minimum-maximum) the midpoint has been calculated.

[91]             Eurostat, “Hourly labour costs in the EU 27“,
http://epp.eurostat.ec.europa.eu/cache/ITY\_PUBLIC/
3-24042012-AP/EN/3-24042012-AP-EN.PDF. The latest available figure for each MS
has been used.

[92]             HCCH Questionnaire 2012 or HCCH Questionnaire 2008
(most recent available). These figures have then

been
multiplied by 0,49 (i.e. 49%), which is the average (mean) of the percentage of
EU non-nationals on the total number of EU nationals (equal to 34%) and the
percentage of intra-EU trade as compared to total volume of trade (equal to
64%).

[93]             HCCH Questionnaire 2012 or Von Freyhold, Vial &
Partner Consultants, 2008 (most recent available).  All

values have
been converted to hours. In cases where the data was in range format
(minimum-maximum) the midpoint has been calculated.

[94]             Eurostat, “Hourly labour costs in the EU 27“,
http://epp.eurostat.ec.europa.eu/cache/ITY\_PUBLIC/ 3-

24042012-AP/EN/3-24042012-AP-EN.PDF. The latest available figure for
each MS has been used.

[95]             The HCCH questionnaire revealed a figure of 14 hours
required to issue an Apostille. We have revised this

figure,
considering it abnormal. Instead a figure of 0.85 has been determined using
partial least squares regression (PLS regression), where three characteristics
have been considered: the number of Apostilles under hypothesis 1 (EU
non-nationals), the number of Apostilles under hypothesis 2 (total population),
and the Hourly Labour Cost.  See Bastien, P. Vinzi,VE, and Tenenhaus, M, “LS generalised linear regression”, Computational Statistics & Data
Analysis 48 (2005) 17 – 46 for more details on this method.

[96]             The HCCH questionnaire revealed a figure of 7 hours
required to issue an Apostille. We have revised this

figure, considering it abnormal, using the same PLS method as
explained in the footnote above.

[97]             Eurostat database, Population by sex, age group and
country of birth (see further in this Annex).

[98]             According to Eurostat, "Immigration" denotes
the action by which a person establishes his or her usual

residence in
the territory of a Member State for a period that is, or is expected to be, of
at least 12 months, having previously been usually resident in another Member
State or a third country.

[99]             A migrant worker is, as defined by the United Nations,
“a person who is engaged or has been engaged in a

remunerated
activity in a State of which he or she is not a National”. A commuter, instead,
is a person who travels to work on a regular basis, which can be daily, weekly
or even spread over a larger amount of time.

[100]            European Commission - Employment, Social Affairs and
Equal Opportunities, Mobility in Europe, 2011. The

study refers to 2010 data, more recent data were not available due
to the subject being very specific.

[101]            Eurostat, Education and training statistics.

[102]            EC, MEMO/12/310, The Erasmus programme in 2010-11: the
figures explained, 2012. The Erasmus

programme
enables those in higher education to spend between 3 and 12 months in another
European country – either for studies or for a placement in a company or other
organisation.

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