1 Diplomatic and consular
protection of Union citizens in third countries
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COM(11) 149
| Commission Communication: Consular protection for EU citizens in third countries: State of play and the way forward
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| Legal base | —
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| Document originated | 23 March 2011
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| Deposited in Parliament | 29 March 2011
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 18 April 2011
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| Previous Committee Report | None; but see (29353); 5947/08: HC 16-xxiii (2007-08), chapter 5 (4 June 2008); HC 16-xix (2007-08), chapter 1 (26 March 2008) and HC 16-xiv (2007-08), chapter 2 (20 February 2008); also see (28304) 6192/07: HC 41-xvi (2006-07), chapter 2 (28 March 2007) and HC 41-x (2006-07), chapter 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 | To be debated in European Committee B
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Background
1.1 Article 20 EC (and Article 46 of the EU Charter of Fundamental
Rights) provided that every EU citizen should, 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.
1.2 Council Decision 95/553/EC made 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 "Lead Country" mechanism became the
main vehicle for implementing the Article 20 EC obligations. The
Council also created a working party on consular cooperation (COCON)
to organise exchanges of information on national best practices
and draw up guidelines on the consular protection of EU citizens
in third countries. Experience during the south Asian Tsunami
and in Lebanon in 2006 demonstrated that the existing arrangements
was able to handle serious crises as well as routine individual
cases. Nonetheless, the Commission's 2007 Green Paper argued further
measures, and much greater Commission involvement, would fulfil
the Article 20 EC rights more effectively and put forward a number
of proposals covering the full range of consular services. This
was debated in the European Standing Committee on 15 May 2007,
when the Committee welcomed the Commission's contribution to the
ongoing debate on how to improve the efficiency and effectiveness
of the consular assistance provided by Member States to one another's
nationals, but noted the legal, political and practical difficulties
to many of the proposals, and agreed with the Government's approach
as laid out in its written response to the Commission.[1]
1.3 The Green Paper was intended to stimulate debate
and launch a process of consultation. The Commission then brought
forward detailed proposals for Community action in Commission
Communication 5947/08, Effective consular protection in third
countries: The contribution of the European Union Action Plan
2007-2009, together with Commission Staff Working Documents
containing an Impact Assessment and Summary of Impact Assessment
(+ ADDs 1 and 2). This covered 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 with third countries
to ensure 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;
— the Commission becoming involved in organising
joint consular training for officials.
1.4 As the previous Committee's Reports noted, the
then Government, from the outset, regarded the paper's contention
that these articles mean that every EU citizen had a right to
consular assistance as problematic. It noted that, in common with
the majority of other EU member states, consular assistance was
provided as a matter of policy, rather than of obligation, and
that the exercise of that policy was discretionary; while Article
20 EC placed an obligation on Member States to exercise their
consular assistance policies in a non-discriminatory way as among
EU citizens, this was not the same as creating a right to consular
assistance; and that, under existing international law, consular
relations were between States, which meant that the active role
the Green Paper envisaged for the EU institutions in the delivery
of consular assistance to EU citizens was likely to involve legal
difficulties.
1.5 The preference instead had been for building
on existing national capacities and continuing to improve co-ordination
between Member States, rather than creating new systems which
might complicate or duplicate effort. The Commission's lack of
expertise in providing consular assistance produced concern over
the idea of the Commission becoming involved in consular service
delivery (e.g. the provision of training for consular staff).
There was concern, too, over the resource implications, the possible
duplication of existing structures and/or the creation of an unsustainable
financial burden. All of these concerns were expressed in the
Government's response to the public consultation that the Green
Paper launched, which was annexed to the previous Committee's
Report of 28 March 2007.[2]
1.6 For its part, the previous Committee 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 ensured that it remained
thus;
— while there might be scope for practical
support in specific circumstances, it was hoped that the Government
would resist the expansionist elements in these proposals with
vigour and determination.
More detailed consideration, including the Minister's
views as of then, are set out in the first two previous Reports,
in the conclusion of the more recent of which the previous Committee
recommended that the Communication be debated in European Committee
B.[3]
1.7 Before that debate took place the previous Committee
received further information about the Government's position,
including a copy of its comments on the Commission Action Plan
(which formed the Annex to that chapter of its Report).[4]
The then Minister said that other Member States had made broadly
similar points, although only one had commented at a similar level
of detail. The then Government shared the Commission's overall
desire to improve consular co-operation at EU level, agreed that
there was scope to improve Member States' consular assistance
further still, through joint work and co-ordination, and would
continue to work with colleagues to do so. Although the Government
had reservations about some of the proposals in the Action Plan,
the then Government recognised "the Commission's wish to
contribute to this discussion". The then Minister reported
that, despite doubts expressed by a number of Member States, the
Commission intended to go ahead with their proposed study of consular
legislation and practice, though had undertaken to take on board
Member States' comments to avoid duplication with previous exercises.[5]
The previous Committee's assessment
1.8 The previous Committee concluded that this further
information, and particularly the UK comments on the Commission
Action Plan, which was received subsequent to the debate recommendation,
should be made available to the House in time for the debate.
1.9 In the meantime, the previous Committee noted
that, in addition to commenting on specific proposals, the UK
comments reiterated two major points of principle:
"that it is for member States to take forward
any actions in the consular area. We welcome co-operation with
the Commission where it is appropriate, but we believe it is important
to respect the correct division both of formal responsibility
and of practical expertise"; and
"we do not accept that Articles of the Treaty
Establishing the European Community (TEC) and the Lisbon Treaty
establish or confirm a legal right to consular assistance. Under
the domestic law of some Member States nationals do have such
a right. But in many others, including the UK, consular assistance
is provided as a matter of policy. Article 20 TEC provides for
the provision of consular assistance to unrepresented Member States'
nationals on the same terms as it is provided to their own. It
does not require setting minimum or equal standards for consular
assistance amongst Member States."[6]
1.10 The debate took place in the European Committee
B on 23 June 2008, at the end of which the Committee passed the
following motion:
"That the Committee takes note of European Union
Document No. 5947/08 and Addenda 1 and 2, European Commission
Communication, Diplomatic and consular protection of union citizens
in third countries; recalls that such Communications are not legally
binding; underlines that the provision of consular assistance
remains a matter for Member States; and in this context, welcomes
the Commission's Communication as a contribution to continuing
reflections on promoting consular co-operation among EU Member
States".[7]
The Commission Communication
1.11 This Communication sets out Commission proposals
to facilitate co-operation and coordination between Member States
to ensure that unrepresented EU citizens in third countries can
access consular assistance in third countries where their own
government is not represented.
1.12 The Commission's aim is to
— take
stock of the European Union's contribution to effective consular
protection in third countries as announced in the Commission's
Action Plan 2007-2009; and
— to present the way forward based on the
experience gained and "the renewed institutional framework."
1.13 The Communication also "fulfils the Commission's
Treaty obligation to report every three years on the application
of Article 23 of the Treaty on the Functioning of the European
Union (TFEU) on consular protection, as announced by the Commission
in its Report under Article 25 TFEU on progress towards effective
EU Citizenship 2007-2010" and also "contributes to implementing
Action 8 of the "EU Citizenship Report 2010 — Dismantling
the obstacles to EU citizens' rights", which the Commission
describes as "a strategic initiative of the Commission, focusing
on obstacles citizens still face, notably when moving cross-border,
and presenting remedies to them."
1.14 The Communication is also described as a first
response to the invitation from the European Council, in the Stockholm
Programme (the European Council's Justice and Home Affairs plan
for 2010-2014, agreed by Heads of Government in December 2009)
to "consider appropriate measures establishing co-ordination
and cooperation necessary to facilitate consular protection in
accordance with Article 23 Treaty on the Functioning of the European
Union (TFEU)";
1.15 The Commission notes that:
— the
relevant provisions of the Lisbon Treaty are Article 35 TEU, Articles
20(2)c and 23 TFEU and Article 46 of the Charter of Fundamental
Rights;
— Article 23(2) TFEU provides "that
every citizen of the Union 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".
1.16 In reviewing "Where we are today",
the Commission notes that: the number of annual trips by EU citizens
to third countries has reached over 90 million and is expected
to increase further; only in the United States, China and Russia
are all Member States represented; recent political crises and
natural disasters, with more than 100,000 EU citizens present
in these third countries, demonstrated the need for consular protection
regardless of an EU citizen's nationality; over 60% of EU citizens
would expect the same kind of help regardless of which Member
State's embassy they turn to; and that, with public budgets under
pressure, the European Union and Member States need to foster
cooperation to optimise the effective use of resources.
1.17 With regard to the legal framework, the Commission
asserts that the Lisbon Treaty "abandons the previous logic
of intergovernmental sui generis decision-making" and "reinforces
and clarifies the capacity of the Union to act". Article
23 TEU "confers a clear individual entitlement for the citizen
of a Member States to be treated equally by the consular authorities
of another Member State in the territory of a third country where
his/her Member State is not represented". The Commission
states that the right to protection endowed in Article 23 TFEU
is subject to judicial review; that "National courts have
to apply Article 23 TEU as any other provision of EU law";
and that "a refusal decision is subject to judicial review
and in accordance with established case-law on State liability
may render liable for harm caused". The Communication also
states that, as well as replacing the previous approach of intergovernmental
sui generis decision-making, the Lisbon Treaty empowers
the Commission with the right to propose directives establishing
coordination and cooperation measures to facilitate such protection.
1.18 It also notes the Council Decision of 26 July
2010 establishing the European External Action Service (EEAS)
provides that EU delegations shall "upon request by Member
States, support them in their diplomatic relations and their role
of providing protection to EU citizens in third countries on a
resource-neutral basis".
1.19 The Communication asserts that citizens are
not sufficiently aware of the Treaty provisions relating to equal
treatment regarding consular protection, that the number of cases
where EU citizens have requested consular protection from another
Member State are low, and that the Commission should make Article
23 TFEU more effective. It argues that financial reimbursement
between Member States, for assistance provided by one for the
citizens of another, is not commonly used and that third country
nationals who are EU citizens' family members are often excluded
from consular assistance, with decisions on assistance taken without
clear criteria.
1.20 The Communication outlines: what has been done
in relation to its 2007-2009 Action Plan regarding information
measures; the present scope of consular protection; and stepping
up joint efforts in crisis situations and as regards common resources.
The Commission notes that it has launched an information campaign
on provision of consular protection, and has jointly organised
(with the EU Presidencies) seminars to discuss consular issues
and information exchange. The Commission notes that it has produced
an analysis of the extent and nature of discrepancies between
Member States' provision in the consular field and a study of
"common practices" among Member States
1.21 The Communication also details the efforts by
the EU Delegations regarding crisis work, several examples where
other Member States have assisted other EU nationals and the usefulness
of teleconferences and the EU secure website in co-ordinating
and facilitating Member States' consular work.[8]
The Commission explains that, since November 2007, the EU Civil
Protection Mechanism, if requested by Member States, can activate
the Commission's Monitoring and Information Centre and outlines
the ways in which, since then, it has been used to give access
to a wide range of civil protection resources available from 31
participating countries (the Member States, EEA countries and
Croatia), most recently during the Libya crisis.
1.22 The Communication groups its proposals into
three categories:
INCREASED AWARENESS RAISING THROUGH TARGETED COMMUNICATION
MEASURES
The Commission states that raising awareness of the
Treaty provisions is a joint responsibility of the Commission
and Member States. The Commission says that websites of national
Foreign Ministries should provide information of the Treaty provisions
and a link to the Commission's website. The Commission also says
that Member States' missions should disseminate information regarding
consular protection (including contacting local travel and residents'
associations). Given that, according to the Commission, Member
States' consular officials are still at least partially unaware
of the Treaty provisions on consular protection, it is preparing
a "training kit" for national consular staff. In addition
the Commission says that national best practices should be further
discussed and promoted.
ENHANCED CERTAINTY UNDER THE LISBON TREATY
The Communication states that the different levels
of consular facilities and protection offered by Member States
may make cooperation and coordination by consular and diplomatic
authorities challenging. The Commission accordingly proposes that
the scope and considerations of consular protection for unrepresented
EU citizens should be clarified and coordination procedures simplified.
With this in mind, the Commission intends to present legislative
proposals within the next 12 months establishing the coordination
and cooperation measures necessary to facilitate consular protection
and addressing the issue of financial compensation for consular
protection provided to third country nationals in crisis situations.
The Commission will also consider the provision of consular assistance
to third country family members of EU citizens; and a possible
update of the format of Emergency Travel Documents based on a
cost-benefit analysis. The Commission will continue to promote
the inclusion of consent clauses in mixed and bilateral agreements
(under international law, the consular protection of a citizen
by another State requires the consent of the receiving state)
and is already encouraging Member States to do likewise in their
own agreements with third countries.
IMPROVED BURDEN SHARING AND OPTIMISED USE OF RESOURCES
The Communication argues that the current rules on
reimbursement for consular protection in times of crisis are frequently
not applied in practice, and proposes to examine how to facilitate
further and simplify reimbursement procedures and encourage synergies
with existing tools of financial support. The Communication notes
that the 2007-2009 Action Plan suggested a common office as a
pilot project and that the co-location arrangements of Member
States and the EU delegation could save costs and enhance co-operation.
It sees EU teams of national consular staff as a way of improving
burden-sharing and coordination, but says that their feasibility
and added value should be considered first. The Communication
notes that the High Representative is due to submit an initial
report to the Council, the European Parliament and the Commission
by the end of 2011 on the functioning of the EEAS, including in
the area of consular protection, and in the meantime that says
that EU delegations could assist further in informing unrepresented
EU citizens about consular protection offered by Member States.
The Government's view
1.23 In his Explanatory Memorandum of 18 April 2011,
referring to the provisions in Articles 20(2)(c) and 23 TFEU for
EU citizens in third countries to receive consular assistance
from any other Member State on the same basis as the nationals
of that State where their own government is not represented, the
Minister for Europe (Mr David Lidington) says:
"It is the Government's view this does not establish
a right to consular assistance but that it establishes a principle
of non-discrimination in the provision of consular assistance
by Member States if an EU citizen's own State is not represented."
1.24 The Minister supports efforts to improve information
awareness about existing rights amongst EU citizens and consular
officials, and says that FCO consular guidance to staff in British
embassies, high commissions and consulates provides clear instructions
to provide consular assistance to unrepresented EU nationals.
The Minister also supports the idea of further training in this
regard, on a cost-effective basis, and says that the UK also plays
a full part in working with other Member States, including through
regular teleconferences and the EU secure website.
1.25 The Minister continues as follows:
"In line with the Treaties and the Council Decision
of 26 July 2010 establishing the European External Action Service,
the Government is clear that there is no role for the EU institutions
in defining the assistance that Member States provide or in providing
frontline consular assistance. In addition, any role by the EEAS
in helping to support implementation of Article 23 TFEU must be
resource neutral. It is unclear how the proposals for common offices
and/or teams would be compatible with these principles, and the
Government therefore has significant reservations about these
proposals.
"The Government will need to consider carefully
any legislative proposals to ensure that they respect the division
of competences set out in the Treaties. This includes any proposals
covering the terms on which Member States extend consular protection
to third country nationals. Given that consular assistance is
included in the Citizenship part of the TFEU the Commission can
now make legislative proposals "establishing the coordination
and cooperation measures necessary to facilitate such protection".
However such legislation must be necessary (i.e. it must address
a problem that cannot be resolved through existing frameworks
of cooperation), in accordance with the principle of subsidiarity,
and must be limited to the competence provided in the Treaty."
1.26 With regard to the Financial Implications,
the Minister says:
"The Commission is obliged to publish impact
assessments before tabling legislative proposals. One of the two
suggested legislative proposals relates specifically to financial
compensation arrangements. We need to see further detail on this
before we can assess any financial implications for the UK.
"Any future proposals stemming from this Communication
that involve an extension of responsibilities to Member States'
citizens in third countries may have an impact on Member States'
diplomatic networks. We will consider seeking a Commission Impact
assessment that takes full account of the prospective impact on
national diplomatic budgets."
1.27 The Minister concludes by noting that the timetable
for discussion in the Council and Parliament has yet to become
clear.
Conclusion
1.28 We recall, and endorse, the views of the
previous Committee (c.f. paragraph 1.6 above).
1.29 We also note the motion endorsed at the end
of the European Committee debate on the Commission Action Plan
(c.f. paragraph 1.11 above).
1.30 Conversely, the Commission seems determined
on a path that is likely to lead to increasing pressure for a
"right" to a common level of consular protection for
all Member States' citizens in third countries and for a leading
role by EU delegations in ensuring its provision.
1.31 The Minister's reservations are equally plain,
and we endorse them too. In order to enable him to develop them
further, and for the Commission to have the benefit of the views
of the House as a whole at the earliest opportunity, we recommend
that the Communication be debated in European Committee B. In
the meantime, it remains under scrutiny.
1 See Stg Ctte Deb cols 3-16; available at http://www.publications.parliament.uk/pa/cm200607/cmgeneral/euro/070515/70515s01.htm. Back
2
See headnote: (28304) 6192/07: HC 41-xvi (2006-07), chapter 2
(28 March 2007). Back
3
See headnote: (29353) 5947/08: HC 16-xvii (2007-08), chapter 1
(26 March 2008) and HC 16-xii (2007-08), chapter 2 (20 February
2008). Back
4
See (29353) 5947/08: HC 16-xxiii (2007-08), chapter 5 (4 June
2008). Back
5
Other detailed comments from the then Minister are set out in
the previous Committee's most recent Report: see (29353); 5947/08:
HC 16-xxiii (2007-08), chapter 5 (4 June 2008). Back
6
Ibid. Back
7
Stg Com Deb cols 3-17; available
at http://www.publications.parliament.uk/pa/cm200708/cmgeneral/euro/080623/80623s03.htm.
Back
8
Details of which are available at http://ec.europa.eu/consularprotection. Back
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