Source: EURLEX
Language: en
Format: md

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# 52013SC0145

**COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE 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/2013/0145 final \*/**

  

COMMISSION STAFF WORKING DOCUMENT

EXECUTIVE SUMMARY OF THE 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

TABLE OF CONTENTS

1........... Problem definition........................................................................................................... 3

2........... Analysis of subsidiarity.................................................................................................... 4

3........... Main policy objectives.................................................................................................... 5

4........... Policy options................................................................................................................. 5

5........... Assessment of the policy
options' impacts........................................................................ 6

6........... The preferred option....................................................................................................... 8

7........... Monitoring and evaluation............................................................................................... 8

1.           Problem
definition

If EU citizens and businesses want to
exercise their free movement rights or internal market freedoms by choosing to
reside or do business in another Member State, they face difficulties when
producing the required public documents and getting them accepted by that
Member State. They have to undergo disproportionate and burdensome
administrative formalities to prove the authenticity of various public documents
and fight legal uncertainty. These formalities are legalization, Apostille as
well as certified copies and certified translations.

The aim of this measure is twofold:

(1)
to reduce legal uncertainty, costs and lengthy
procedures caused by the above-mentioned formalities complicating the exercise
of the EU citizens' right to free movement and EU businesses' internal market freedoms; and

(2)
to provide necessary safeguards preventing the
use of forged public documents within the EU.

The principal function of public
documents is to provide factual proof of the acts of a public authority
recorded therein. While domestic public documents are presumed to be authentic without
additional proof, public documents originating from other Member States are
accepted in the Member State in which they are presented subject to proof of
authentication through Apostille or legalisation or a particular form, i.e.
certified copies and certified translations.

Typical examples of public documents related to EU rights of EU citizens and businesses, which are subject to the
identified administrative formalities, are

·
Civil status records (e.g. documents relating to
birth, death and marriage);

·
Documents relating to residence, citizenship and
nationality;

·
Documents relating to real estate;

·
Documents relating to legal status and
representation of a company or other undertaking;

·
Documents relating to intellectual property
rights;

·
Documents proving the absence of a criminal
record.

The formalities of legalisation, Apostille,
certified copies and certified translations are outdated and disproportionate
mechanisms to establish the authenticity of public documents, whereas more
effective mechanisms could be identified in cases of reasonable doubt which
would allow consolidating mutual trust between the Member States within the Single
Market.

The existing EU and international law
instruments do not provide satisfactory solutions for an easier acceptance of
public documents in the Member States.

The EU law addresses the issue of
authenticity of public documents on a sectoral basis, sometimes explicitly, but
generally in an inconsistent manner. Overall, three approaches can be
distinguished:

(1)
the relevant instrument of EU law explicitly
exempts the documents from the authentication requirement (e.g. civil justice
instruments for judicial documents);

(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 certified copies and certified
translations, there are examples in the existing EU law (e.g. Directive
2006/123/EC on services in the internal market) 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.

There is, in addition, a vast body of
international law instruments applying diverging approaches to these aspects of
public documents, including the Hague Apostille Convention, the Brussels Convention
abolishing the legalisation of documents in the Member States and different
Conventions of the International Commission on Civil Status.

Nevertheless, those instruments have proved
insufficient for achieving the desired facilitation of administrative burdens
for EU citizens and businesses and thus still limit the exercise of fundamental rights. Due to the
above mentioned shortcomings, EU
citizens and businesses are in many situations still faced with time-consuming and
costly procedures.

It can be estimated that over the course of one year, the cost for EU citizens
and businesses for obtaining Apostille for intra-EU use amounts to over € 25
million. The estimated overall annual costs for obtaining legalisation of
public documents can be between € 2.3 and € 4.6 million. In addition, annual costs
for certified copies for EU citizens and businesses can be estimated in the order of € 75 – 100
million. The overall costs of certified translations for EU citizens and businesses can amount to € 100-200 million
per year.

For all these reasons, a horizontal
approach is required in order to facilitate and enhance the exercise of the
right of EU citizens to free movement and of the right of EU businesses to freedom of establishment and
freedom to provide services within the Single Market.

2.           Analysis of subsidiarity

The EU is better placed than the Member
States to take action to abolish legalisation and Apostille and to simplify
the requirement of certified copies and certified translation and, at the same
time, to ensure EU cross-border and cross-sector framework for a more effective
level of detection of frauds and forgery of public documents.

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 the clear added
value of an EU action.

Action at EU level would respect the proportionality
principle by focusing only on the abolition and simplification of the
identified administrative formalities.

3.           Main policy objectives

Based on the problem definition, the
following general and specific objectives can be identified:

General objective:

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

Specific objectives:

·
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.

4.           Policy options

Five options and seven sub-options under
policy option 4 have been considered in detail:

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

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

Policy Option 3: Ratification of the 1987
Brussels Convention by all Member States encouraged by the Commission, i.e.
the abolition of legalisation and Apostille for a wide range of public
documents and the use of an administrative cooperation as established in the
Convention.

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 instrument would abolish legalisation
and Apostille and the scope of the initiative would be further broadened by
adding provisions simplifying the cross-border use of certified copies and
certified translations.

The improved administrative cooperation
can be addressed by three sub-options:

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

Sub-option 4B: Administrative cooperation
based on the Internal Market Information System (IMI) in cases of reasonable
doubt on the authenticity of public documents.

Sub-option 4C: The creation of a network of
civil registers, built on the European Civil Registry Network (ECRN).

The multilingual standard forms can
be addressed by four sub-options:

Sub-option 4D: Retention of the status quo,
meaning no standard forms would be introduced.

Sub-option 4E: The introduction of
compulsory standard forms for the use in a concrete cross-border case.

Sub-option 4F: The introduction of optional
standard forms as annexes to national public documents for the purpose of their
use in other Member States.

Sub-option 4G: The introduction of optional
standard forms used independently in cross-border cases. The corresponding
national public document would continue to exist at national level.

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

5.           Assessment
of the policy options' impacts

Policy option 1: No effect of this policy option in terms of effectiveness in
meeting the objectives is expected.

Policy option 2: The effectiveness of this policy option is deemed to be very low.
Notwithstanding the indirect positive effect due to the reduction of delays in
checking public documents originated in other Member States and better
exchanges of information, the existing administrative formalities would remain
and the legal framework would still be fragmented. Moreover,
very low positive impact on the detection of fraud is
to be expected.

Policy option 3: This policy option would not guarantee an improvement to the
current situation because there is no legal obligation for the Member States to
ratify that Convention. If and when ratified by all
Member States, then positive impact on the full enjoyment of EU citizens' right
to free movement and EU businesses' internal market freedoms due to the abolishment of legalisation
and Apostille in cross-border circulation of public documents. The overall added
value of this policy option for facilitating the full exercise of EU free
movement rights is very limited, as certified copies and certified translations
could still be required without exception.

Policy option 4: The policy option is expected to have a high positive impact in
terms of effectiveness resulting from abolishing legalisation and Apostille and
the additional simplification of certified copies and certified translations. As
a result, the circulation of public documents between the Member States would
be significantly and effectively supported and intra-EU mobility of EU citizens
and businesses enhanced. This would lead to annual savings for EU citizens and businesses between € 25.8 million and € 26.2 million
on Apostilles and between € 2.3 and € 4.6 million on
legalisation. There will be additional savings due to
the simplification of certified copies in the order of € 100 – 200 million per
year. Moreover, the removal of certified transaltions would also save costs between
€ 75 – 100 million annually for EU citizens and businesses, bearing in mind that the related cost for one page is € 30. The annual net cost savings for the Member State administrations
could be estimated between € 5 million and € 7 million on Apostilles and between € 500.000 and € 1 million on legalisations.

Improved administrative cooperation

Sub-option 4A: The effectiveness of this sub-option would be low since there is no
electronic support to this type of administrative cooperation and its
efficiency would depend on the discretion of the Member States.

Sub-option 4B: This sub-option would have, in cases of reasonable doubt about the
authenticity of a public document originating in another Member State, a
positive impact in terms of effectiveness. The existing IMI provides for fast
and secure communication channels for cross-border information exchanges and
electronic versions of public documents. In addition, through the
administrative cooperation and the secure exchange of information under IMI, a
positive impact on fraud is expected. Furthermore, to provide certainty as
regards certified copies, the authorities would have the same mechanism at
their disposal.

Sub-option 4C: The positive effects for civil registrars, who could communicate
between each other directly in case of doubt about the authenticity of a public
document, would only be limited to one category of public documents, namely
civil status documents. High negative economic impact and compliance costs at
EU and Member State level through the establishment and operation of a new IT
system.

Multilingual standard forms

Sub-option 4D: There would be no effects in terms of effectiveness in meeting the
objectives.

The effectiveness of sub-option 4E
is deemed to be medium positive as some difficulties and costs related to the
translation and understanding of public documents originating in other Member
States would remain.

The effectiveness of sub-option 4F
is considered to be as high as of 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. In addition, costs might incur due to the need to provide
copies of national public documents to which these forms would be attached.

The sub-option 4G is expected to
have a high positive impact on EU citizens and businesses in terms of increased practical benefits
and reduced difficulties when presenting public documents in cross-border
scenarios.

Policy option 5: 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, there would be undoubtedly 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.

6.           The
preferred option

A comparative
assessment of the impacts indicates that the legislative measure abolishing
legalisation and Apostille and simplifying the use of certified copies and
certified translations (policy option 4), combined with an improved
administrative cooperation between the Member States through a modern
communication network based on the existing Internal Market Information System
(sub-option 4B) and the development of multilingual standard forms used
independently in cross-border cases (sub-option 4G) would be the most effective
in achieving the identified objectives.

The preferred policy
option 4 is the most suitable means to achieve the policy objectives without
high implementation costs, including a considerable reduction of disproportionate
and burdensome administrative formalities for EU citizens and businesses. In particular, high savings due
to the abolition of legalisation or Apostille and the simplification of certified
copies and certified translations can be expected for EU citizens and businesses, while none of the alternative
options would result in an equal level of savings.

The preferred sub-option
4B, which results in using existing IT infrastructure with minimal budgetary
impact, would represent an effective and secure means for assessing the
authenticity of public documents or their certified copies, preventing fraud
and forgery, and, at the same time, for simplifying the administrative burdens
placed on EU citizens and businesses. Through secure electronic means and reduced language barriers it
would be easy to identify the relevant interlocutors in other Member States. The
preferred sub-option 4G would lead to cost and time savings for EU citizens, businesses and national public officials,
favour the mutual understanding of public documents across the Member States,
reduce the remaining translations requirements as multilingual forms would
exist, and allow the parallel existence of the underlying national public
documents at Member State level.

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

7.           Monitoring
and evaluation

Providing for a solid monitoring and
evaluation mechanism is crucial to ensure that the rules 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.

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