Documents considered by the Committee on 14th October 2015 - European Scrutiny Contents


20 Diplomatic and consular protection of Union citizens in third countries

Committee's assessment Politically important
Committee's decisionCleared from scrutiny; drawn to the attention of the Foreign Affairs Committee
Document detailsProposal for a Council Directive on consular protection for citizens of the Union abroad
Legal baseArticle 23(2) TFEU; QMV; consultation
DepartmentForeign and Commonwealth Office
Document Numbers(33569), 18821/11 + ADDs 1-2, COM(11) 881

Summary and Committee's conclusions

20.1 This Directive replaced Decision 95/553/EC on consular assistance (referred to as "consular protection" in the TFEU) to represented and unrepresented EU nationals in third countries outside the EU, and established a new legal framework for consular cooperation.

20.2 The Minister for Europe (Mr David Lidington) recalls that the requirement for Member States to coordinate in the field of consular protection and provide assistance to unrepresented EU nationals in third countries dates back to the Treaty of Maastricht (1993). He also recalls that:

—   in the Stockholm Programme, [ 108] the Council invited the Commission 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)." [ 109]

—  on 27 October 2010 the European Commission adopted a "Citizenship Report" prepared by then EU Justice Commissioner Reding which included a commitment to propose measures, including legislation, on consular issues in 2011.

20.3 The Minister goes on to say that the draft Directive was subject to lengthy negotiations at the EU/Consular Working Group "COCON", which were concluded at the technical level under the Latvian Presidency on 5 March 2015; and that the Directive was then adopted by Qualified Majority Voting (QMV) at the Foreign Affairs Council on 20 April 2015:

"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."

20.4 The Minister says that the Directive:

—   has as its aims to:

·  clarify the content and operability of the right of unrepresented EU citizens to consular protection under equal conditions;

·  simplify cooperation and coordination between consular authorities.

—  replaces sui-generis Decision 95/553/EC regarding consular protection for EU citizens in view of the legal framework established by the Lisbon Treaty;

—  lays down the cooperation and coordination measures necessary to facilitate consular protection for unrepresented EU citizens and carries out "action 8" of the "EU Citizenship Report 2010 — Dismantling the obstacles to EU citizens' rights", pursuant to which the Commission is committed to increase the effectiveness of the right of EU citizens to be assisted in third countries by the diplomatic and consular authorities of all Member States.

20.5 The Minister recalls that, in his Explanatory Memorandum of January 2012, the first draft of the Directive:

"was overly prescriptive and looked to set out minimum standards of, and eligibility to receive, consular assistance. It also looked to potentially expand the role of the EEAS and it's EU Delegations beyond the scope of Article 23 TFEU, mainly by allowing them to chair local consular meetings and giving them more responsibility than their defined role currently restricts them to. These were all red lines for the UK."

20.6 He now says:

"We strongly support European consular and crisis cooperation. However, the first iteration of the Directive was unacceptable to the UK, as it sought to introduce minimum standards of consular assistance, and to expand the role of the EU Delegations in consular beyond what was agreed in the Treaties. The text as adopted clarifies the legal obligation to assist non-represented EU nationals established in the Lisbon Treaty. The Directive does not cross the UK's red lines on Member State competence, nor impose significant new commitments on the UK."

20.7 The full background is set out below (see "Background" for details). We are satisfied that the outcome is as described by the Minister, and therefore now clear the document.

20.8 We remain less satisfied with what the Minister says about the process by which scrutiny of the negotiations was handled in the FCO (see paragraph 20.33 below for details); the then Committee having made it clear more than a year beforehand that it envisaged a revised text being deposited and — as with the precursor Green Paper and Commission Communication — being debated prior to adoption by the Council. Instead, as we have noted before, nothing was heard from the Minister until less than two weeks prior to the then Committee's last, pre-dissolution meeting; and then in a letter that went astray, and which made no mention of this clear expectation — all of which sits oddly with comments that the Government is always seeking to "to schedule debates promptly", and of taking "the Committee's recommendations very seriously". The fact that the text of the Directive did become public before adoption, but only during the dissolution of Parliament, is immaterial: many other such texts were received during this period in the normal way. Given that there was plainly no urgency about the matter, at least some indication that the Minister had sought to have adoption postponed until a new House had time to consider it would have been welcome. The Committee made it clear in its first Report that it wished to have the revised text deposited under cover of an Explanatory Memorandum, in the customary fashion; so suggestions of a failure of communication between our and his officials is also somewhat wide of the mark.

20.9 All of this said, we would now like to put these matters behind us, and look to a future in which, in particular, debates are indeed scheduled promptly.

20.10 Given the importance attached to the provision of consular services to the general public, as one of the Government's three foreign policy priorities, we again draw these developments to the attention of the Foreign Affairs Committee.

Full details of the document: Draft Council Directive on consular protection for citizens of the Union abroad: (33569), 18821/11 + ADDs 1-2, COM(11) 881.

Background

20.11 The Commission's 2007 Green Paper (which was debated in European Committee)[ 110] and two subsequent Communications put forward a number of proposals covering the full range of consular services.[ 111] 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."[ 112]

20.12 The Minister's concerns about the subsequent draft Directive are summarised in our predecessors' February 2012 Report.[ 113] The then 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 was 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 looked 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 As our 21 July 2015 Report 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) assured the Committee.[ 114]

20.15 Most recently, the Minister declared 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.

20.16 The Minister also noted that Member States now had until 1 May 2018 to implement the Directive.

Our assessment

20.17 We asked 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 had been met, interests safeguarded and "red lines" not been crossed.

20.18 We also asked the Minister to look into the process by which scrutiny of the negotiations was handled in the FCO; the Committee having made it clear more than a year beforehand 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.

20.19 In the meantime, we retained the document under scrutiny.

20.20 We also again drew these developments to the attention of the Foreign Affairs Committee.[ 115]

20.21 The Minister then provided a copy of the final version of the Directive, under cover of a further letter. He again referred to the "overly prescriptive" draft and the UK's "red lines", stating that the final text:

"reflects the reality that Member States provide assistance to unrepresented EU nationals in line with the assistance they offer to their own nationals and is based on the principle of non-discrimination. It does not look to influence Member State practices or competence — a key concern for us in the early stages of the negotiations — which is reflected in Recital 5 of the Directive: "This Directive does not affect Member States' competence to determine the scope of the protection to be provided to their own nationals."

20.22 Other aspects highlighted by the Minister were:

—  local consular meetings were now chaired by a Member State, supported by the EU delegation, which he said was in line with current practice and consistent with the role of the EU Delegations as defined in the relevant EU legislation;

—  the role of the EU Delegations was limited to supporting Member States in their consular activities;

—  in line with previously agreed legislation, the Directive did not give the EU scope to expand their role beyond the previously agreed boundaries; and

—  his original concerns about family members, the definition of "absence of representation", types of assistance, crisis cooperation and financial procedures had been removed, such that the relevant parts of the Directive now mirrored current practices between Member States and was consistent with existing definitions under current legislation.

20.23 These changes all occurred:

"as a result of a robust negotiation strategy and lobbying of like-minded Member States in support, resulting in a text that clearly defines the roles of Member States in providing assistance to unrepresented EU nationals, and also the role of the EU Delegations in supporting Member States."

Our assessment

20.24 It appeared, as hitherto, that, at the end of the day, this attempted "land grab" by the European External Action Service (EEAS) has been seen off, and the "status quo" maintained. But we were puzzled as to why the Minister had once again failed to deposit the final version of the Directive under cover of an Explanatory Memorandum, i.e., to follow the normal scrutiny procedure. He was aware that the Directive — even though adopted — had not been cleared from scrutiny, and could not be until he followed the normal procedure. So we asked him once again so to do.

20.25 We also asked the Minister, for the sake of clarity, to:

—  set out the main elements of the tried and tested arrangements;

—  illustrate how each one had been maintained and any ways in which they had been changed (even if UK "red lines" had not been crossed); and

—  explain what implementing the Directive would mean for the provision of UK consular services.

20.26 We also noted that the Committee's clearly expressed wish for this highly important process to be the subject of a debate, prior to adoption, had been thwarted. The Minister seemed to believe that, because he abstained when the matter was put forward for adoption under QMV on 20 April 2015, during the dissolution, all was well. But he also appeared to be arguing that a debate would have been impossible in any event "due to the text remaining "limité until after adoption by the Council". We found this an extraordinary notion: it might well be necessary for draft legislation to remain limité during negotiation, and even for some such, e.g., relating to EU restrictive measures, to be implemented forthwith; but this was not that sort of legislation. Was the Minister suggesting that, were the House to have been in session, he would not have submitted the final version of the Directive, once agreed at official level, for scrutiny in the normal way, and in time for a debate to have been held?

20.27 In the meantime, we retained the deposited document under scrutiny.[ 116]

20.28 We also again drew these developments to the attention of the Foreign Affairs Committee.

The Minister's Explanatory Memorandum of 25 September 2015

20.29 The Minister says that, though the Government strongly supports European consular and crisis cooperation, the first iteration of the Directive was unacceptable to the UK, as it sought to introduce minimum standards of consular assistance, and to expand the role of the EU Delegations in consular beyond what was agreed in the Treaties; whereas the text as adopted clarifies the legal obligation to assist non-represented EU nationals established in the Lisbon Treaty, and "does not cross the UK's red lines on Member State competence, nor impose significant new commitments on the UK".

20.30 As a matter of general principle, the Minister says:

—  the provision of consular services to the general public is one of the Government's three foreign policy priorities;

—  maintaining a consular service that is "democratically accountable to Parliament, flexible, and able to respond to need, whilst delivering a professional product to our citizens and unrepresented EU Nationals" is a key objective for the Government;

—  he will be "working closely with other likeminded governments in the coming months to ensure that these concerns are reflected in the Directive".

The Government's view

20.31 The Minister analyses and comments upon the Directive as follows:

"We have considered carefully the implications on how this Directive will affect or augment our ability to provide consular services to British nationals and unrepresented EU citizens in third countries.

"The Directive was significantly reduced in size and scope 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 final text reflects the reality that Member States provide assistance to unrepresented EU nationals in line with the assistance they offer to their own nationals and is based on the principal of non-discrimination. It does not look to influence Member State practices or competence which was a key concern for us in the early stages of the negotiations. This is reflected in Recital 5 of the Directive: 'This Directive does not affect Member States' competence to determine the scope of the protection to be provided to their own nationals'.

"The role of the Union delegations is covered under Article 11 in the final text. We secured compromise language during the final round of negotiations that protected our red line that the EEAS should not have a greater role in the delivery of consular services. The text of Recital 17, when read in conjunction with Articles 1 (Subject Matter) and 11 (Role of the Union delegations — previously numbered as Article 9 in earlier iterations) makes it clear that the role of the EU Delegations is limited to supporting Member States in their consular activities, and in line with previously agreed legislation (Article 35 of TEU and Article 5 (10) of Decision 2010/427/EU). We were content that this redrafted text does not give the EU scope to expand their role beyond the previously agreed boundaries.

"Our original concerns, highlighted in FCO's Explanatory Memorandum, about family members (Article 5), the definition of 'absence of representation' (Recital 8 and Article 6), types of assistance (Article 7), crisis cooperation (Article 13) and financial procedures (Article 14) were all addressed by pushing for minor drafting amendments to the text — with the related articles now mirroring current practices between Member States and consistent with existing definitions under current legislation. They have been addressed by the following:

—  "Family members of unrepresented citizens in third countries. [Article 2, tiret 3, 2011/Article 5 and Recital 9, 2015]:

"We believed that the initial language needed to be much clearer to avoid mis-interpretation. We are content that the final agreed text makes clear that the consular protection shall only be provided to family members who are not themselves Union citizens in accordance with our own national laws and practices.

—  "Absence of Representation [Article 3, tiret 2, 2011/Article 6 and Recital 8, 2015]:

"We initially questioned why the European Commission needed to define 'not represented' in the original text. The final text states that 'for the purposes of this Directive, a Member State is not represented in a third country if it has no embassy or consulate established there on a permanent basis, or if it has no embassy, consulate or honorary consul there which is effectively in a position to provide consular protection in a given case'. This clarifies the legal obligation in relation to unrepresented EU citizens which was established under the Lisbon Treaty and which remains subject to national laws and practices.

—  "Types of Assistance [Article 6, tiret 2, 2011/Article 9 and Recital 14, 2015]:

"We were initially concerned that defining types of cases where assistance must be given will leave us open to legal challenge if assistance is not given, or is delayed. We believe that these types of decisions are best made locally, by the relevant experts on the ground. This concern has been met by an amendment in the final text from 'the consular protection referred to in paragraph 1 shall include' to 'may include'.

—  "General Rules [Article 7, 2011/Article 10 and Recital 16, 2015]:

"We were concerned that the words, "and with the Union" could imply a consular role for the European Union and External Action Service (EAS) in defining the assistance that Member States provide or in providing frontline consular assistance. We are content this is not the case. The role of the EU Delegations is limited to supporting Member States in their consular activities, and in line with previously agreed legislation (Article 35 of TEU, Article 5 (10) of Decision 2010/427/EU and Article 11 of the final Directive).

—  "Financial procedures [Articles 12 and 13, 2011/Articles 14 and 15 and Recital 25, 2015]:

"We were initially concerned that the initial paragraphs on financial procedures were too prescriptive, particularly as the UK will only consider a discretionary loan to UK nationals in very exceptional circumstances. The final text recognises that not all Member States provide financial loans and that, where available, this will always be a measure of last resort.

"Furthermore, we viewed the proposed reimbursement mechanism between Member States as unnecessarily bureaucratic when the current system works well. The final text makes it clear that the assisting Member State has a discretion whether to request reimbursement. The final text also reflects that the unrepresented citizen's Member State of nationality may ask the unrepresented citizen concerned to reimburse such costs.

—  "Local cooperation [Article 14, 2011/Article 12 and Recital 19, 2015]:

"Unless agreed by Member States, local consular meetings (Article 12) are now chaired by a Member State, supported by the EU delegation — a role which is further clarified as being one of "close cooperation?. This is in line with current practice and consistent with the role of the EU Delegations as defined in Article 35 of TEU, Article 5 (10) of Decision 2010/427/EU and Article 11 of the Directive.

—  "Crisis cooperation [Article 15, 2011/Article 13 and Recital 20, 2015]:

"We agreed with the original assertion that EU Member States should keep each other informed about evacuation capacity but we were concerned that this text placed unrealistic constraints on Governments involved in evacuation operations. The final text was amended to make clear that Member States should inform each other of available evacuation capacities in a timely manner where possible. The final text also confirms that the Lead State (a term defined in Recital 23) in crisis should be in charge of co-ordinating the assistance shall be in charge of coordinating any support provided for unrepresented citizens, with the support of the other Member States concerned, the Union delegation and the EEAS headquarters.

"IMPACT FOR UK CONSULAR SERVICES

    "EU Member States have been obliged to provide assistance to unrepresented EU nationals since 1993. In the absence of formal arrangements for one Member State to represent another's nationals, Member States have predominantly dealt with any requests for assistance from unrepresented EU nationals on an ad-hoc basis, without the need for formal burden sharing arrangements. In some higher volume countries where fewer Member States are based, informal arrangements do exist to ensure that the workload is more evenly distributed. These arrangements do not however prevent an unrepresented EU national from approaching any of the Member States for assistance.

    "The mechanism for seeking financial reimbursement from the unrepresented Member State also existed prior to the adoption of the Directive, but is generally only used by some Member States to seek reimbursement for evacuations of unrepresented EU nationals in a crisis. These arrangements have not changed during the course of the negotiations of the Directive, and the Directive does not look to expand these further.

    "Implementation of the Directive does not have any practical impact on the standard provision of UK consular services to non-represented EU nationals over and above the obligation established in the Lisbon Treaty."

20.32 With regard to the Directive's Financial Implications, the Minister says:

    "The Directive may have minor financial implications on our Consular Service. Where assistance is provided on behalf of an unrepresented EU national the Directive makes clear that the assisting Member State may ask for the reimbursement of costs from the unrepresented citizen's Member State of nationality and the unrepresented citizen's Member State of nationality shall reimburse those costs within a reasonable timeframe.

    "In a crisis this Directive does not alter our commitments during an evacuation scenario. The final text makes it clear that the assisting Member State has discretion whether to request reimbursement. We will continue to evacuate EU citizens alongside British Nationals in a non-discriminatory fashion. The decision to charge other EU countries for this service lies with Ministers. It is unusual, but not unheard of, to be charged by other Member States, who have evacuated British Nationals in a crisis."

The Minister's letter of 25 September 2015

20.33 In response to the Committee's questions about the scrutiny aspects of this process, the Minister says:

—  contacts between our officials and his about his proposed approach of issuing a letter rather than an Explanatory Memorandum was such that "a letter had already been issued by the time the Clerks had made clear that they required an Explanatory Memorandum";

—  he "always seek[s] to schedule debates promptly", but "the nature of parliamentary business means that it is not possible to give an absolute guarantee";

—  as "discussed with the Committee on 16 September, I take the Committee's recommendations very seriously and I am keen for the outstanding debates to be scheduled as quickly as possible"; and

—  regarding the text remaining limité until after Council adoption, "confirm[s] the document did become public before adoption, however this occurred during the dissolution of Parliament. Had this not been during dissolution I would have sent the text to the Committees in the normal way".

Previous Committee Reports

Third Report HC 342-iii (2015-16), chapter 16 (9 September 2015) and First Report HC 342-i (2015-16), chapter 20 (21 July 2015); also see 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).


108   The European Council's five-year plan for EU Justice and Home Affairs matters for the years 2010 to 2014. Back

109   Article 23 paragraph 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". The Minister also cites Article 35 TEU, Articles 20(2)(c) and 23 TFEU, and Article 46 of the Charter of Fundamental Rights. Back

110   See Stg Co Deb, cols. 3-16. Back

111   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

112   See Stg Co Deb, cols. 3-12. Back

113   See the Committee's Fifty-fourth Report HC 428-xlix (2010-12), chapter 7 (1 February 2012). Back

114   See First Report HC 342-i (2015-16), chapter 20 (21 July 2015). Back

115   See First Report HC 342-i (2015-16), chapter 20 (21 July 2015). Back

116   See Third Report HC 342-iii (2015-16), chapter 16 (9 September 2015). Back


 
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Prepared 14 October 2015