Legal provisions of COM(2011)881 - Consular protection for citizens of the Union abroad

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dossier COM(2011)881 - Consular protection for citizens of the Union abroad.
document COM(2011)881 EN
date April 20, 2015

Contents

CHAPTER 1 - GENERAL PROVISIONS AND SCOPE

Article 1 - Subject matter

1. This Directive lays down the coordination and cooperation measures necessary to facilitate the exercise of the right set out in point (c) of Article 20(2) TFEU, of citizens of the Union to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that Member State, also taking into account the role of Union delegations in contributing to the implementation of that right.

2. This Directive does not concern consular relations between Member States and third countries.

Article 2 - General principle

1. Member States' embassies or consulates shall provide consular protection to unrepresented citizens on the same conditions as to their own nationals.

2. Member States may decide that this Directive shall apply to the consular protection provided by honorary consuls in compliance with Article 23 TFEU. Member States shall ensure that unrepresented citizens are duly informed about such decisions and the extent to which honorary consuls are competent to provide protection in a given case.

Article 3 - Consular protection by the Member State of nationality

The Member State of nationality of an unrepresented citizen may request the Member State from whom the unrepresented citizen seeks or receives consular protection to redirect the unrepresented citizen's application or case to his/her own Member State of nationality in order for that Member State of nationality to provide consular protection in accordance with its national law or practice. The requested Member State shall relinquish the case as soon as the Member State of nationality confirms that it is providing consular protection to the unrepresented citizen.

Article 4 - Unrepresented citizens in third countries

For the purposes of this Directive, ‘unrepresented citizen’ shall mean every citizen holding the nationality of a Member State which is not represented in a third country as set out in Article 6.

Article 5 - Family members of unrepresented citizens in third countries

Consular protection shall be provided to family members, who are not themselves citizens of the Union, accompanying unrepresented citizens in a third country, to the same extent and on the same conditions as it would be provided to the family members of the citizens of the assisting Member State, who are not themselves citizens of the Union, in accordance with its national law or practice.

Article 6 - Absence of representation

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.

Article 7 - Access to consular protection and other arrangements

1. Unrepresented citizens shall be entitled to seek protection from the embassy or consulate of any Member State.

2. Without prejudice to Article 2, a Member State may represent another Member State on a permanent basis and Member States' embassies or consulates may, wherever deemed necessary, conclude practical arrangements on sharing responsibilities for providing consular protection to unrepresented citizens. Member States shall notify the Commission and the European External Action Service (EEAS) of such arrangements, which shall be publicised by the Union and Member States to ensure transparency for unrepresented citizens.

3. In cases where a practical arrangement has been concluded as provided for in paragraph 2, an embassy or consulate from which the unrepresented citizen seeks consular protection, and which is not designated as competent according to the specific arrangement in place, shall ensure that the application from the citizen is redirected to the relevant embassy or consulate, unless consular protection would thereby be compromised, in particular if the urgency of the matter requires immediate action by the requested embassy or consulate.

Article 8 - Identification

1. Applicants seeking consular protection shall establish that they are citizens of the Union by producing their passports or identity cards.

2. If the citizen of the Union is unable to produce a valid passport or identity card, nationality may be proven by any other means, if necessary including verification with the diplomatic or consular authorities of the Member State of which the applicant claims to be a national.

3. With respect to the family members referred to in Article 5, the identity and existence of the family relationship may be proven by any means, including verification by the assisting Member State with the diplomatic or consular authorities of the Member State of nationality of the citizens referred to in paragraph 1.

Article 9 - Types of assistance

The consular protection referred to in Article 2 may include assistance, inter alia, in the following situations:

(a)arrest or detention;

(b)being a victim of crime;

(c)a serious accident or serious illness;

(d)death;

(e)relief and repatriation in case of an emergency;

(f)a need for emergency travel documents as provided for in Decision 96/409/CFSP (8).

CHAPTER 2 - COORDINATION AND COOPERATION MEASURES

Article 10 - General rules

1. Member States' diplomatic and consular authorities shall closely cooperate and coordinate with one another and with the Union to ensure protection of unrepresented citizens in accordance with Article 2.

2. When a Member State receives a request for consular protection from a person who claims to be an unrepresented citizen, or is informed of an individual emergency situation of an unrepresented citizen, such as listed in Article 9, it shall consult without delay the Ministry of Foreign Affairs of the Member State of which the person claims to be a national or, where appropriate, the competent embassy or consulate of that Member State, and provide it with all the relevant information at its disposal, including regarding the identity of the person concerned, possible costs of consular protection, and regarding any family members to whom consular protection may also need to be provided. Except in cases of extreme urgency, this consultation shall take place before assistance is provided. The assisting Member State shall also facilitate the exchange of information between the citizen concerned and the authorities of the citizen's Member State of nationality.

3. If requested, the citizen's Member State of nationality shall provide the assisting Member State's Ministry of Foreign Affairs or competent embassy or consulate with all the relevant information in the case concerned. It shall also be responsible for any necessary contact with family members or other relevant persons or authorities.

4. Member States shall notify the EEAS through its secure internet site of the relevant contact point(s) in the Ministries of Foreign Affairs.

Article 11 - The role of Union delegations

Union delegations shall closely cooperate and coordinate with Member States' embassies and consulates to contribute to local and crisis cooperation and coordination, in particular by providing available logistical support, including office accommodation and organisational facilities, such as temporary accommodation for consular staff and for intervention teams. Union delegations and the EEAS headquarters shall also facilitate the exchange of information between Member States' embassies and consulates and, if appropriate, with local authorities. Union delegations shall also make general information available about the assistance that unrepresented citizens could be entitled to, particularly about agreed practical arrangements if applicable.

Article 12 - Local cooperation

Local cooperation meetings shall include a regular exchange of information on matters relevant to unrepresented citizens. In those meetings, Member States shall agree, wherever necessary, on practical arrangements as referred to in Article 7 to ensure that unrepresented citizens are effectively protected in the third country concerned. Unless otherwise agreed by Member States, the Chair shall be a representative of a Member State, in close cooperation with the Union delegation.

Article 13 - Crisis preparedness and cooperation

1. Local contingency planning shall take unrepresented citizens into account. Member States represented in a third country shall coordinate contingency plans among themselves and with the Union delegation to ensure that unrepresented citizens are fully assisted in the event of a crisis. The competent embassies or consulates shall be adequately informed of crisis preparedness arrangements and, where appropriate, involved therein.

2. In the event of a crisis, the Union and Member States shall closely cooperate to ensure efficient assistance for unrepresented citizens. They shall, where possible, inform each other of available evacuation capacities in a timely manner. Upon their request, Member States may be supported by existing intervention teams at Union level, including consular experts, in particular from unrepresented Member States.

3. The Lead State or the Member State(s) coordinating 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. Member States shall provide the Lead State or the Member State(s) coordinating assistance with all relevant information regarding their unrepresented citizens present in a crisis situation.

4. The Lead State or the Member State(s) coordinating assistance for unrepresented citizens may seek, if appropriate, support from instruments such as the crisis management structures of the EEAS and the Union Civil Protection Mechanism.

CHAPTER 3 - FINANCIAL PROCEDURES

Article 14 - General rules

1. Unrepresented citizens shall undertake to repay to their Member State of nationality the cost of consular protection, on the same conditions as the nationals of the assisting Member State, using the standard form set out in Annex I. Unrepresented citizens shall be required to undertake to repay only those costs that would have to be borne by nationals of the assisting Member State under the same conditions.

2. The assisting Member State may ask for the reimbursement of costs referred to in paragraph 1 from the unrepresented citizen's Member State of nationality, using the standard form set out in Annex II. The unrepresented citizen's Member State of nationality shall reimburse those costs within a reasonable period of time, not exceeding 12 months. The unrepresented citizen's Member State of nationality may ask the unrepresented citizen concerned to reimburse such costs.

3. When the consular protection provided to an unrepresented citizen in the case of arrest or detention involves unusually high but essential and justified costs related to travel, accommodation or translation for the diplomatic or consular authorities, the assisting Member State may ask for the reimbursement of such costs from the unrepresented citizen's Member State of nationality, which shall reimburse them within a reasonable period of time, not exceeding 12 months.

Article 15 - Facilitated procedure in crisis situations

1. In crisis situations, the assisting Member State shall submit any requests for reimbursement of the costs of any support provided to an unrepresented citizen to the Ministry of Foreign Affairs of the unrepresented citizen's Member State of nationality. The assisting Member State may seek such reimbursement even if the unrepresented citizen has not signed an undertaking to repay pursuant to Article 14(1). This shall not prevent the unrepresented citizen's Member State of nationality from pursuing repayment from the unrepresented citizen concerned on the basis of national rules.

2. The assisting Member State may ask the unrepresented citizen's Member State of nationality to reimburse such costs on a pro-rata basis, by dividing the full value of the actual costs incurred by the number of citizens assisted.

3. Where the assisting Member State was financially supported by way of assistance from the Union Civil Protection Mechanism, any contribution from the unrepresented citizen's Member State of nationality shall be determined after deduction of the Union's contribution.

CHAPTER 4 - FINAL PROVISIONS

Article 16 - More favourable treatment

Member States may introduce or retain provisions more favourable than those of this Directive in so far as they are compatible herewith.

Article 17 - Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 May 2018.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 18 - Repeal

Decision 95/553/EC is repealed with effect from 1 May 2018.

Article 19 - Reporting, evaluation and review

1. Member States shall provide the Commission with all relevant information regarding the implementation and application of this Directive. On the basis of the information provided, the Commission shall submit a report to the European Parliament and the Council on the implementation and application of this Directive by 1 May 2021.

2. In the report referred to in paragraph 1, the Commission shall evaluate the way in which this Directive has operated and consider the need for additional measures, including, where appropriate, amendments to adapt this Directive with a view to further facilitating the exercise of Union citizens' right to consular protection.

Article 20 - Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 21 - Addressees

This Directive is addressed to the Member States.