2 Diplomatic and consular protection
of Union citizens in third countries
| (28304)
6192/07
COM(06) 712
| Commission Green Paper on the diplomatic and consular protection of Union citizens in third countries
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| Legal base | — |
| Document originated | 28 November 2006
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| Deposited in Parliament | 25 January 2007
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 21 March 2007
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| Previous Committee Report | HC 41-x (2006-07), para 5 (21 February 2007)
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| To be discussed in Council | To be determined
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| Committee's assessment | Legally and politically important
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| Committee's decision | For debate in European Standing Committee
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Background
2.1 Under Article 20 EC, a citizen of the Union is entitled, in
the territory of a third State where his Member State of nationality
is not represented, to protection by the diplomatic or consular
authorities of any Member State on the same conditions as the
nationals of that State.
2.2 The Commission has, during the past 2-3 years,
begun to highlight the need to improve the consular support given
to EU citizens in third countries, particularly in crisis situations.
It has previously made some informal suggestions, and supported
those made by others,[4]
about how the EU might improve cooperation in consular assistance
in third countries. The Green Paper is its most formal contribution
to date in this area.
The Green Paper
2.3 The Green Paper recalls that Decision 95/553/EC[5]
makes provision for action by the Member States in cases such
as, for example, arrest and detention, accident or serious illness,
acts of violence, death and repatriation and for advances of money
for citizens in difficulty. The Green Paper also notes the creation
within the Council of a working party on consular cooperation
(COCON) to organise exchanges of information on national best
practices and the drawing up by that body of guidelines on the
consular protection of EU citizens in third countries.
2.4 The Green Paper argues that its proposals would
fulfil more effectively the rights enshrined in Article 20 EC
and in Article 46 of the Charter of Fundamental Rights of the
European Union — that every EU citizen shall, in the territory
of a third country in which the Member State of which he is a
national is not represented, be entitled to protection by the
diplomatic or consular authorities of any Member State, on the
same conditions as the nationals of that State.
2.5 The Green Paper puts forward a number of proposals
covering the full range of consular services:
— improving
the information available to EU citizens on consular matters,
both on their rights, and on seeking advice and assistance;
— improving the links developed with third
countries to assure that all EU citizens have access to consular
assistance, including seeking agreement from third countries for
Commission delegations to exercise a duty of protection in appropriate
cases;
— broadening the entitlement to consular
assistance, to include non-EU family members of EU citizens;
— establishing EU procedures to identify
and repatriate remains of EU citizens who die abroad;
— simplifying procedures for providing
financial advances to citizens of other EU Member States;
— establishing common consular offices,
to provide assistance to all EU citizens in third countries; and
— the Commission becoming involved in organising
joint consular training for officials.
2.6 When we considered the Green Paper on 21 February,
the Minister for Europe (Mr Geoffrey Hoon) at the Foreign and
Commonwealth Office said that the paper's contention that these
articles mean that every EU citizen has a right to consular assistance
was "problematic". He said that the Government, in common
with the majority of other EU Member States, provided consular
assistance as a matter of policy rather than of obligation and
the exercise of that policy was discretionary. He acknowledged
that Article 20 EC places an obligation on Member States to exercise
their consular assistance policies in a non-discriminatory way
as among EU citizens, but said that this is not the same as creating
a right to consular assistance. He also noted that, under existing
international law, consular relations are between States, which
meant that the active role the Green Paper envisages for the EU
institutions in the delivery of consular assistance to EU citizens
was likely to involve legal difficulties.
2.7 He instead preferred building on existing national
capacities and continuing to improve coordination between Member
States, rather than creating new systems which might complicate
or duplicate effort. He noted that the Commission has no expertise
in providing consular assistance, and was therefore concerned
at the idea of the Commission becoming involved in consular service
delivery (e.g. the provision of training for consular staff).
He was also carefully examining the resource implications, to
ensure they did not duplicate existing structures and/or create
an unsustainable financial burden. He concluded by noting that
a public consultation, to which the Government would respond,
was due to end with a public meeting on 31 March 2007, after which,
he said, the timetable was unclear.
2.8 We noted that:
— consular
services are the responsibility of Member States;
— the provision of consular services is
the area in which diplomatic missions interface with members of
the public most often and most critically, with matters of great
sensitivity often at issue, in the most challenging circumstances
and when the individuals concerned are at their most distressed
and vulnerable;
— consular services are, unsurprisingly
and quite rightly, at the top of Ministers' and officials' agenda,
at home and abroad;
— a good level of cooperation between Member
States already existed, and work was underway to improve it further,
whereas it was difficult, if not impossible, to envisage circumstances
in which missions staffed by officials responsible to the Commission
could begin to provide a service of the same standard, with the
level of immediate accountability that ensures that it remains
thus; and
— while there might be scope for practical
support in specific circumstances, we hoped that the Government
would resist the expansionist elements in these proposals with
vigour and determination.
2.9 We also noted that in its own report on the Green
Paper, our counterpart committee in the French Sénat
had noted that the Commission had not demonstrated that the aim
of its initiative would be better achieved by action at EU or
Community level rather than by pragmatic cooperation between the
Member States, and considered that the Member States are the best
placed to advise their citizens of those third countries where
they may be at risk and that the EU would bring no real "added
value" if it assumed responsibility for informing citizens
on this question. We respectfully shared these doubts and supported
those observations.
2.10 We looked forward to seeing the Government's
response to the consultation process, and asked to know in what
way UK views would be expressed at the open meeting; and in the
meantime retained the Green Paper under scrutiny.
The Minister's letter
2.11 The Minister encloses a copy of the Government's
response (at Annex 1) with his letter of 21 March 2007. He again
says that, from a legal perspective, there are a number of difficulties
with the Commission's approach. Firstly, he points out that, while
under the domestic law of some Member States, such as Sweden and
Finland, nationals do have such a right, in many others, including
the UK, France, Germany, the Netherlands, Bulgaria and the Czech
Republic, consular assistance is provided as a matter of policy.
2.12 Secondly, he cannot accept the Green Paper's
interpretation whereby Article 20 EC creates a legal right to
consular assistance independent of domestic law. In his view,
it "merely provides for the provision of consular assistance
to unrepresented Member States' nationals on the same terms as
it is provided to their own. Nor does it require setting minimum
or equal standards for consular assistance amongst Member States."
2.13 He then reiterates his concerns regarding the
Green Paper's suggestions that officials from EU institutions
may deliver consular assistance themselves in future, again recalling
that under international law, consular relations are between States:
"The Vienna Convention on Consular Relations,
and applicable bilateral consular conventions, provide a framework
for the conduct of inter-State relations; they do not cover the
provision of consular assistance by international or intergovernmental
organizations. Furthermore, we do not believe
that the Commission and
the EU have competence under the existing treaties to provide
consular assistance."
2.14 Turning to the question of subsidiarity, he
agrees that too few Member States' nationals may be aware of the
implications of Article 20 EC, and that efforts by the Commission
and Council to improve public awareness are unlikely to raise
issues of subsidiarity. Likewise, he welcomes efforts to improve
coordination amongst Member States, and agrees this too is unlikely
to raise issues of subsidiarity. His concerns for subsidiarity:
"are primarily related to the provision
of consular assistance by EU institutions, and particularly the
Commission. We believe consular assistance is most effectively
provided by Member States themselves."
2.15 Notwithstanding these concerns, however, the
Minister supports consideration of more effective and efficient
ways to deliver consular assistance, including closer co-operation
with other Member States, and sees many of the Commission's proposals
as a welcome contribution to these objectives. Others, however,
he says:
"are unclear and the benefits are not apparent,
perhaps as a result of the Commission's lack of direct experience
of consular work. The Green Paper is also unclear on how some
of the proposals would be achieved and often fails to take sufficient
account of the practical, and legal, realities of consular operations."
2.16 As an example of Member States' improved consular
crisis cooperation and collective capacity to react to crises
overseas, the Minister cites the evacuation from Lebanon last
summer, where he says the UK evacuated nationals from other Member
States, who likewise included British nationals in their evacuation
arrangements:
"Based on this success, we believe there
is potential to further improve our consular operation by broadening
EU co-operation to include more routine consular assistance. This
requires a detailed examination of the areas where there is scope
for greater co-operation and of the benefits of doing so. Our
response to the Green Paper recognises the value of the Commission's
contribution in this respect and, whilst commenting on the difficulties
many of the proposals present, seeks to encourage further discussion
of these issues amongst Member States".
2.17 Finally, the Minister says that he has discussed
the UK position with other EU Member States, "many of whom
share our objectives and concerns", and that "our views
will be further expressed by officials in the open meeting on
31 March as appropriate".
2.18 We now understand that this "open meeting"
will take place sometime after 31 March, with the precise date
yet to be announced.
Conclusion
2.19 While it would have been helpful to have
had a clearer insight into which of the Commission's proposals
the Minister sees as a welcome contribution and which ones he
sees as unclear and lacking evident benefits, his fundamental
position is nonetheless clear.
2.20 It corresponds to our own. It would also
be helpful to know if it corresponds to that of the House as a
whole, which we regard as an equally important contribution to
the public debate that the Green Paper is aimed at stimulating.
2.21 We therefore recommend that the Green Paper
be debated in the European Standing Committee.
4 The Minister cites Commission Communication COM (2006)
331 of 28 June 2006 and the report by Michel Barnier to the President
of the Council of the European Union and President of the European
Commission "For a European civil protection force: Europe
aid." Back
5
Decision of the representatives of the Governments meeting within
the Council of 19 December 1995 regarding protection for citizens
of the European Union by diplomatic and consular representations
OJ No. L 314, 28.12.95, p.73. Back
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