20 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
|
| Document numbers | (33569), 18821/11 + ADDs 1-2, COM(11) 881
|
Summary and Committee's conclusions
20.1 Under Article 23 TEU 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. A so-called "Lead Country" mechanism
has been the main vehicle for implementing this obligation (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 could
also handle serious crises.
20.2 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.
20.3 As the "Background" section below
relates, the Government and other like-minded Member States have
been reshaping the Commission proposals so that UK "red lines"
have not been crossed. Or — as revisions of the original
draft have been limité — so the Minister for
Europe (Mr David Lidington) says.
20.4 Now, the Minister declares that:
· the
majority of the UK's previous objections and concerns with the
Directive having been addressed during the negotiations —
with its title amended to better reflect its scope, viz., the
"Proposal on the coordination and cooperation measures to
facilitate consular protection for unrepresented citizens of the
Union in third countries" — the position was reached
where the Foreign Secretary and he could agree the text;
· the Presidency
pushed for a quick adoption of the Directive as Member States
were in broad agreement;
· the Directive
was adopted by QMV at the 20 April 2015 Foreign Affairs Council;
and
· the UK abstained
from voting on the grounds that the Directive had not cleared
scrutiny.
20.5 He also notes that Member States now have until
1 May 2018 to implement the Directive.
20.6 We ask the Minister to deposit the final
text of the Directive and, in his supplementary Explanatory Memorandum,
illustrate precisely where, and how, the UK's concerns have been
met, interests safeguarded and "red lines" not been
crossed.
20.7 We would also like the Minister to look into
the process by which scrutiny of the negotiations was handled
in the FCO. As noted in the "Background" section below,
the Committee made it clear more than a year ago that it envisaged
a revised text being deposited and — as with the precursor
Green Paper and Commission Communication — debated prior
to adoption by the Council. Yet nothing was heard from the Minister
until less than two weeks prior to its last, pre-dissolution meeting
— and then in a letter that went astray, and which made
no mention of this clear expectation.
20.8 In the meantime, we shall retain the document
under scrutiny.
20.9 We again draw these developments 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
20.10 The Commission's 2007 Green Paper (which was
debated in European Committee[ 195])
and two subsequent Communications put forward a number of proposals
covering the full range of consular services.[ 196]
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.
20.11 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."[ 197]
20.12 The Minister's concerns about the subsequent
draft Directive are summarised in our predecessors' February 2012
Report.[ 198] 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.
20.13 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 did 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.
20.14 Being a limité text, the Committee
pointed out that it was unable in any way to discuss the Minister's
assertion about its not crossing "UK red lines". The
Committee also made it clear that it would wish to recommend that
the final version of the draft Directive be debated prior to any
vote in Council; and asked the Minister to ensure that the text
was 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 did 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 had been achieved;
and
— how the financial procedures to which
he referred had been satisfactorily addressed.
20.15 The Committee also drew these developments
to the attention of the Foreign Affairs Committee.[ 199]
20.16 The Minister's further update of 6 June 2014
again said that he had "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 maintained that the "overly prescriptive"
first draft had 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 reflected "the reality that Member States
provide assistance to unrepresented EU nationals in line with
the assistance they would offer to their own nationals".
He was nonetheless "continuing to press for a text that was
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 were at the request of Member States".
These changes had occurred "as a result of a robust negotiation
strategy and lobbying of like-minded Member States to support".
He maintained that he had "ensured that the Directive no
longer tries to influence Member State national policy or practice,
as these are a Member State competence". Negotiations were
still ongoing, but he was "confident that we can maintain
the protection of our red lines and that consular policy is only
made by Member States".[ 200]
The Minister again concluded by undertaking to continue to keep
the Committee updated on the discussions.
The previous Committee's assessment
20.17 This further information was reassuring, but
the Minister was reminded that the Committee continued to await
the "complete package", as set out in paragraph 0.16
above.
20.18 In the meantime, the draft Directive remained
under scrutiny.
20.19 This further update was drawn to the attention
of the Foreign Affairs Committee.[ 201]
The then Minister's letter of 11 March 2015
20.20 The Committee did not become aware of this
letter until after the dissolution, when it was referred to in
a subsequent letter of 27 April (see below).
20.21 The then (and current) Minister refers to his
letter of 6 June 2014 and continues as follows:
"As I explained in my last letter, the majority
of our previous objections and concerns with the Directive had
been removed during the negotiations. We had met all UK red lines
by ensuring the removal of certain provisions from the Directive,
and that other provisions mirrored language from existing council
decisions. The majority of Member States were happy with the Directive
and supported concluding the negotiations. Member States also
agreed to amend title of the Directive to better reflect its scope
- it is now called the "Proposal on the coordination and
cooperation measures to facilitate consular protection for unrepresented
citizens of the Union in third countries".
"Over the course of the Italian Presidency,
the negotiations progressed and we worked to protect our remaining
outstanding red line on the role of the EU delegations. At the
end of 2014, we undertook bilateral discussions with the French
to explore a possible compromise on Articles 1 (General Provisions)
& 9 (Role of the Union delegations), and the corresponding
Recital (17), all of which refer to the role of the EU delegations.
"At their first COCON meeting in February 2015,
the Latvian Presidency judged that the negotiations at the technical
level were close to completion and announced their intention to
take the Directive to COREPER. They called an extra COCON meeting
on 5 March to have a final run through of their compromise text.
Prior to this, we met with the French, Commission and EEAS (hosted
by the Presidency) to look again at the compromise language on
Articles 1 & 9 and Recital 17.
"We successfully negotiated changes to Recital
17 which ensures that the role of the EU delegation remains within
the boundaries established by Article 35 of TFEU and Article 5
(10) of the EEAS Council Decision. We also secured a three year
implementation period, plus a three year review period, which
should limit the chance of any further discussion on the role
of the EU in consular work in the medium term.
"The remaining issues with the text were addressed
at COCON on 5 March, with the Presidency confirming the conclusions
of the discussions at the technical level. They will be presenting
the Directive for adoption at COREPER in April, with final adoption
at Council following shortly thereafter."
The Minister's letter of 27 April 2015
20.22 Recalling his letter of 11 March 2015, which
he says embodied "a position where the Foreign Secretary
and I could agree the text", the Minister continues thus:
"I am writing to inform you that the Directive
was adopted by Qualified Majority Voting (QMV) at the Foreign
Affairs Council on 20 April 2015. The Presidency pushed for a
quick adoption of the Directive as Member States were in broad
agreement. The UK abstained from voting on the grounds that the
Directive had not cleared House of Commons Parliamentary scrutiny.
As the vote was subject to QMV our abstention did not affect the
overall outcome. Member States now have until 1 May 2018 to implement
the Directive."
Previous Committee Reports
Fifth Report HC 219-v (2014-15), chapter 6 (2 July
2014), Forty-eighth Report HC 83-xliii (2013-14), chapter 6 (7
May 2014) and Fifty-fourth Report HC 428-xlix (2010-12), chapter
7 (1 February 2012).
195 See Stg Co Deb, cols. 3-16. Back
196 See the Committee's 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
197 See Stg Co Deb, cols. 3-12. Back
198 See the Committee's Fifty-fourth Report HC 428-xlix (2010-12),
chapter 7 (1 February 2012). Back
199 See our Forty-eighth Report HC 83-xliii (2013-14), chapter 6 (7
May 2014). Back
200 See Fifth Report HC 219-v (2014-15), chapter 6 (2 July 2014) for
the full text of the Minister's letter. Back
201 See Fifth Report HC 219-v (2014-15), chapter 6 (2 July 2014). Back
| 
