FantasticSearch

(1) The Treaty on European Union (TEU) resolved to facilitate the free movement of persons while ensuring the safety and security of the peoples of Europe, by establishing an area of freedom, security and justice, in accordance with the provisions of the TEU and of the Treaty on the Functioning of the European Union (TFEU).

(2) Citizenship of the Union confers on every citizen of the Union the right of free movement, subject to certain limitations and conditions. Directive 2004/38/EC of the European Parliament and of the Council gives effect to that right. Article 45 of the Charter of Fundamental Rights of the European Union (the ‘Charter’) also provides for freedom of movement and residence. Freedom of movement entails the right to exit and enter Member States with a valid identity card or passport.

(3) Pursuant to Directive 2004/38/EC, Member States are to issue and renew identity cards or passports to their nationals in accordance with national laws. Furthermore, that Directive provides that Member States may require Union citizens and their family members to register with the relevant authorities. Member States are required to issue registration certificates to Union citizens under the conditions set out therein. Pursuant to that Directive, Member States are also required to issue residence cards to family members who are not nationals of a Member State and, on application, to issue documents certifying permanent residence and to issue permanent residence cards.

(4) Directive 2004/38/EC provides that Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by that Directive in the case of abuse of rights or fraud. Document forgery or false presentation of a material fact concerning the conditions attached to the right of residence have been identified as typical cases of fraud under that Directive.

(5) Prior to the adoption of rules at Union level, considerable differences existed between the security levels of national identity cards and residence documents for Union citizens and their family members residing in another Member State. Such differences increase the risk of falsification and document fraud and also give rise to practical difficulties for citizens when they wish to exercise their right of free movement.

(6) Secure travel and identity documents are crucial whenever it is necessary to establish without doubt a person’s identity. A high level of document security is important to prevent abuses and threats to internal security, in particular related to terrorism and cross-border crime. Insufficiently secure national identity cards have in the past been among the most frequently detected false documents used for travel within the Union.

(7) In order to deter identity fraud, Member States should ensure that the falsification and counterfeiting of identification documents and the use of such falsified or counterfeit documents are adequately penalised by their national law.

(8) Issuing authentic and secure identity cards requires a reliable identity registration process and secure ‘breeder’ documents to support the application process. The Commission, the Member States and the relevant Union agencies should continue to work together to make breeder documents less vulnerable to fraud, given the increased use of false breeder documents.

(9) This Regulation does not require Member States to introduce identity cards or residence documents where they are not provided for under national law, nor does it affect the competence of the Member States to issue, under national law, other residence documents which fall outside the scope of Union law, for example residence cards issued to all residents on the territory regardless of their nationality. Furthermore, this Regulation does not affect the principle, arising from the case-law of the Court of Justice, that the entitlement to the right of free movement and residence can be attested by any means of proof.

(10) This Regulation does not prevent Member States from accepting, in a non-discriminatory manner, documents other than travel documents for identification purposes, such as driving licences.

(11) Identification documents issued to citizens whose right of free movement has been restricted in accordance with Union or national law, and which expressly indicate that they cannot be used as travel documents, should not be considered as falling within the scope of this Regulation.

(12) Travel documents compliant with part 5 of International Civil Aviation Organization (ICAO) Document 9303 on Machine Readable Travel Documents (seventh edition, 2015) (‘ICAO Document 9303’), that do not serve identification purposes in the issuing Member States, such as the passport card issued by Ireland, should not be considered as falling within the scope of this Regulation.

(13) The reference in this Regulation to ICAO Document 9303 should not be understood as preventing Member States from applying the specifications of subsequent editions.

(14) This Regulation does not affect the use of identity cards and residence documents with eID function by Member States for other purposes, nor does it affect the rules laid down in Regulation (EU) No 910/2014 of the European Parliament and of the Council , which provides for Union-wide mutual recognition of electronic identifications in access to public services and which helps citizens who are moving to another Member State by requiring mutual recognition of electronic identification means subject to certain conditions. Improved identity cards should ensure easier identification and contribute to better access to services.

(15) Proper verification of identity cards and residence documents requires that Member States use the correct title for each type of document covered by this Regulation. In order to facilitate the checking of documents covered by this Regulation in other Member States, the document title should also appear in at least one additional official language of the Union. Where Member States already use, for identity cards, well-established designations other than the title ‘Identity card’, they should be able to continue to do so in their official language or languages. However, no new designations should be introduced in the future.

(16) Security features are necessary to verify if a document is authentic and to establish the identity of a person. The establishment of minimum security standards and the integration of biometric data in identity cards and in residence cards of family members who are not nationals of a Member State are important steps in rendering their use in the Union more secure. The inclusion of such biometric identifiers should allow Union citizens to fully benefit from their right of free movement.

(17) The storage of biometric data as defined in Regulation (EU) 2016/679 of the European Parliament and of the Council , namely the facial image and two fingerprints of the holder, on identity and residence cards, as already provided for in respect of biometric passports for Union citizens and residence permits for third-country nationals, represents an appropriate combination of reliable identification and authentication with a reduced risk of fraud, for the purpose of strengthening the security of identity and residence cards. As the Court of Justice confirmed, the mandatory inclusion of fingerprints on the storage medium is compatible with the fundamental rights to respect for private life and to the protection of personal data as guaranteed in Articles 7 and 8 of the Charter.

(18) As a general practice, Member States should, for the verification of the authenticity of the document and the identity of the holder, primarily verify the facial image and, where necessary to confirm without doubt the authenticity of the document and the identity of the holder, Member States should also verify the fingerprints.

(19) Members States should ensure that, in cases where a verification of biometric data does not confirm the authenticity of the document or the identity of its holder, a compulsory manual check is carried out by qualified staff.

(20) This Regulation does not provide a legal basis for setting up or maintaining databases at national level for the storage of biometric data in Member States, which is a matter of national law that needs to comply with Union data protection law, including its necessity and proportionality requirements. Moreover, this Regulation does not provide a legal basis for setting up or maintaining a centralised database at Union level.

(21) The facial image stored on the storage medium of identity cards and residence documents should only be accessed by duly authorised staff of competent national authorities, Union agencies and private entities for the purposes of verifying the authenticity of the document or verifying the identity of the holder where the document is required to be produced by law. Such access should comply with Union data protection law. In addition, private entities should be required to obtain the consent of the holder to access the facial image, unless Union or national law provides that no such agreement is required in the specific case. Consent of the data subject should thus be understood as an additional safeguard and not provide in itself a legal ground for processing by private entities. This Regulation does not provide for rules on the retention of facial images, once accessed, outside the storage medium of identity cards and residence documents. Such retention would need to be provided for by other Union law or national law, which must comply with Union data protection law, and should be limited to the purposes of verifying the authenticity of the document or the identity of the holder. In addition, the facial images should not be retained for longer than is necessary for those purposes, should be deleted as soon as the verification has been completed and should not be transferred to third countries or international organisations unless permitted by Union data protection law. Those safeguards are intended to ensure appropriate protection of the facial image while not prohibiting its use to the benefit of the document’s holder, particularly in the context of cross-border travel.