Select Committee on European Scrutiny Sixteenth Report

2 Diplomatic and consular protection of Union citizens in third countries



COM(06) 712

Commission Green Paper on the diplomatic and consular protection of Union citizens in third countries

Legal base
Document originated28 November 2006
Deposited in Parliament25 January 2007
DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letter of 21 March 2007
Previous Committee ReportHC 41-x (2006-07), para 5 (21 February 2007)
To be discussed in CouncilTo be determined
Committee's assessmentLegally and politically important
Committee's decisionFor debate in European Standing Committee


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.


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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