6 Diplomatic and consular protection
of Union citizens in third countries
| Committee's assessment
| Politically important
|
| Committee's decision
| Not cleared from scrutiny; further information requested; drawn to the attention of the Foreign Affairs Committee
|
| Document details
| Draft Council Directive on consular protection for citizens of the Union abroad
|
| Legal base
| Article 23(2) TFEU; QMV; consultation
|
| Department
| Foreign and Commonwealth Office
|
Summary and Committee's conclusions
6.1 Post the 1993 Maastricht Treaty,
under Council Decision 95/553/EC, an EU citizen in the territory
of a country in which s/he has no diplomatic mission is entitled
to protection by the diplomatic or consular authorities in that
country of any other Member State, on the same conditions as the
nationals of that State. The "Lead Country" mechanism
has been the main vehicle for implementing these obligations (each
EU mission in a given country has responsibility for particular
"unrepresented" Member States' nationals in line with
centrally-agreed allocations that ensure than no-one is left without
recourse to a local EU mission). A Council consular cooperation
working party (COCON) organises exchanges of information on national
best practices and appropriate guidelines. The south Asian Tsunami
and Lebanon in 2006 demonstrated that these arrangements can also
handle serious crises.
6.2 Nonetheless, since 2007, the Commission
has been set on a path towards 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.
6.3 The Government's view — endorsed
by both the Committee and its predecessor — has consistently
been that: consular services are the responsibility of Member
States; are, quite rightly, at the top of Ministers' and officials'
agenda, at home and abroad; a good level of cooperation between
Member States already exists, and work was underway to improve
it further; missions staffed by EU officials could not provide
a service of the same standard, with the level of immediate accountability
that ensured that it remained thus; the Government would resist
the expansionist elements in its proposals with vigour and determination.
6.4 The Minister for Europe's (Mr David
Lidington) concerns about the draft Directive are summarised in
our February 2012 Report.[21]
The Committee endorsed them, and also the high priority that
the Government attached both to the provision of consular services
and to keeping this service democratically accountable to Parliament,
flexible, able to respond to need, and professionally delivered.
6.5 Nothing more was heard from the
Minister until April 2014, when he reported that the Greek Presidency
had decided to press ahead, and that the most recent draft text
addressed "a number of concerns held by ourselves and other
Member States". He recalled that his major concerns were
around ensuring that it is Member States and not the EU Institutions
who provide consular services, and avoiding any restrictions on
the Government's freedom to choose which consular services to
provide and the manner in which those services are provided. While
the Directive was unnecessary, he was content that it "does
not cross UK red lines". Some changes to the text were,
however, being suggested; and Article 12 (which looks at financial
procedures) still needed to be addressed. The Minister concluded
by undertaking to continue to keep the Committee updated on the
discussions.
6.6 Being a limité text,
the Committee pointed out that it was unable in any way to discuss
the Minister's assertion that the revised text "does not
cross UK red lines". The Committee also made it clear that
we would wish to recommend that the final version of the draft
Directive is debated prior to any vote in Council; and asked the
Minister to ensure that the text is deposited in good time for
such a debate to be held, along with an Explanatory Memorandum
that demonstrated:
— how all the concerns outlined
in his original 2012 Explanatory Memorandum had been addressed;
— how it "does not cross
UK red lines";
— how consistency of language
with previous Council Decisions and the language on the EEAS review
agreed at the General Affairs Council in December 2013 has been
achieved; and
— how the financial procedures
to which he referred had been satisfactorily addressed.
6.7 We also drew these developments
to the attention of the Foreign Affairs Committee.[22]
6.8 The Minister's further update
(which, somewhat oddly, refers to correspondence with our Lords'
counterparts rather than to our previous Report) again says that
he has "met all UK red lines by ensuring the removal of certain
provisions from the Directive" and "that other provisions
mirror language from existing council decisions". He maintains
that the "overly prescriptive" first draft has been
significantly reduced in size, with the Articles that attempted
to set out standards of consular assistance in a range of scenarios
being removed in their entirety, so that the current draft reflects
"the reality that Member States provide assistance to unrepresented
EU nationals in line with the assistance they would offer to their
own nationals". He is nonetheless "continuing to press
for a text that is consistent with Article 5 (10) of the Council
Decision establishing the organisation and functioning of the
EEAS (2010/427/EU) and with the language agreed at the General
Affairs Council meeting in December, in particular to highlight
that any activities undertaken by the EU delegation are at the
request of Member States". These changes have occurred "as
a result of a robust negotiation strategy and lobbying of like-minded
Member States to support". He maintains that he has "ensured
that the Directive no longer tries to influence Member State national
policy or practice, as these are a Member State competence".
Negotiations are still ongoing, "but we are confident that
we can maintain the protection of our red lines and that consular
policy is only made by Member States".
6.9 This further information is reassuring
as far as it goes. But we continue to await the "complete
package", as set out in paragraph 6.6 above.
6.10 In the meantime, the draft Directive
remains under scrutiny.
6.11 We are also drawing this chapter
of our Report to the attention of the Foreign Affairs Committee.
Full details of the documents:
Draft Council Directive on consular protection for citizens of
the Union abroad: (33569), 18821/11 + ADDs 1-2, COM(11) 881.
Background
6.12 The Commission's 2007 Green Paper
(which was debated in European Committee)[23]
and two subsequent Communications put forward a number of proposals
covering the full range of consular services.[24]
The Commission seemed determined on a path that was 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.
6.13 The most recent European Committee
B debate, on the second of the Commission Communications, took
place on 12 July 2011, at the end of which the Committee agreed
the following motion:
"That the Committee takes note
of European Union Document COM (2011) 149, relating to consular
protection for EU citizens in third countries; recalls that such
Communications are not legally binding; underlines that the competence
for consular protection remains with Member States; and agrees
with the Government's approach to the EU's consular work."[25]
6.14 The Minister's concerns about the
subsequent draft Directive are summarised in our February 2012
Report.[26] The Committee
endorsed them, and also the high priority that the Government
attached both to the provision of consular services and to keeping
this service democratically accountable to Parliament, flexible,
able to respond to need, and professionally delivered.
The Minister's letter of 6 June 2014
6.15 Given the background, the Minister
begins his letter somewhat curiously, by saying that he is writing
in response to Lord Boswell of Aynho's (the Chair of our Lords'
counterparts) letter of 13 May, in which "he asked for clarification
on how UK red lines on the proposed Council Directive on consular
protection for citizens of the Union abroad have been met, in
particular with relation to your concerns over Articles 8 to 11
in the original draft". The Minister apologises "for
the slight delay in replying", noting that "the consular
working group 'COCON' met on 22 May and I wanted my reply to reflect
the latest state of play with the negotiations on the Directive".
6.16 The Minister then continues as
follows:
"We have met all UK red lines by
ensuring the removal of certain provisions from the Directive
and that other provisions mirror language from existing council
decisions.
"The first draft of the proposed
Directive was overly prescriptive and looked to set out minimum
standards of assistance and eligibility to receive consular assistance.
It also looked to expand the role of the EEAS/EU Delegations
beyond the scope of Article 23 TFEU, mainly by allowing them to
chair local consular meetings and give them more responsibility
than their role currently restricts them to. These were all red
lines for the UK.
"The Directive has been significantly
reduced in size over the course of the negotiations, with the
original Articles 8-11 (which attempted to set out standards of
consular assistance in a range of scenarios including deaths,
arrests and detentions and victims of crime) being removed in
their entirety. The current draft reflects the reality that Member
States provide assistance to unrepresented EU nationals in line
with the assistance they would offer to their own nationals.
"The role of the Union delegations
is now covered under Article 9. We are continuing to press for
a text that is consistent with Article 5 (10) of the Council Decision
establishing the organisation and functioning of the EEAS (2010/427/EU)
and with the language agreed at the General Affairs Council meeting
in December, in particular to highlight that any activities undertaken
by the EU delegation are at the request of Member States.
"Local consular meetings are now
chaired by a Member State, supported by the EU delegation, and
the role of the EU delegation is further defined as being one
of 'close cooperation' and in support of Member States' consular
activities. These changes have occurred as a result of a robust
negotiation strategy and lobbying of like-minded Member States
to support.
"In our Explanatory Memorandum
of 20 January 2012 we also outlined concerns that the Directive
contained definitions (including of eligibility, represented and
family members) that sought to alter or shape Member State national
policy or practice. We have ensured that the Directive no longer
tries to influence Member State national policy or practice, as
these are a Member State competence.
"Whilst we still consider the Directive
unnecessary, we accept that the Council is increasingly likely
to accept a version of the text. You will recall that this dossier
is decided by QMV. Negotiations are still ongoing, but we are
confident that we can maintain the protection of our red lines
and that consular policy is only made by Member States."
6.17 The Minister again concludes by
undertaking to continue to keep the Committee updated on the discussions.
Previous Committee
Reports: Fifty-fourth Report
HC 428-xlix (2010-12), chapter 7 (1 February 2012) and Forty-eighth
Report HC 83-xliii (2013-14), chapter 6 (7 May 2014).
21 See Fifty-fourth Report HC 428-xlix (2010-12), chapter 7
(1 February 2012). Back
22
See our Forty-eighth Report HC 83-xliii (2013-14), chapter 6 (7
May 2014). Back
23
See Stg Ctte Deb cols. 3-16; available at http://www.publications.parliament.uk/pa/cm200607/cmgeneral/euro/070515/70515s01.htm.
Back
24
See our Fifty-fourth Report HC 428-xlix (2010-12), chapter 7 (1
February 2012).for a full summary of the Green Paper and the subsequent
Commission Communications. Back
25
Stg Com Deb cols. 3-12; available at: http://www.publications.parliament.uk/pa/cm201012/cmgeneral/euro/110712/110712s01.htm. Back
26
See our Fifty-fourth Report HC 428-xlix (2010-12), chapter 7 (1
February 2012). Back
| 
