Explanatory Memorandum to COM(2011)881 - Consular protection for citizens of the Union abroad - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)881 - Consular protection for citizens of the Union abroad. |
|---|---|
| source | COM(2011)881  |
| date | 14-12-2011 |
EU citizens who travel to or live in a third country where their Member State of nationality does not have an embassy or consulate have the right to consular protection by the consular authorities of any other Member State. That Member State has to assist these unrepresented EU citizens under the same conditions as its own nationals.
Recent crises affected many EU citizens, for example in Libya, Egypt and Bahrain after the democratic uprisings in spring 2011 or after the earthquake in Japan in March 2011. Also in day-to-day situations, such as in case of serious illness or when being victim of a crime, consular protection is often indispensable.
This legislative proposal replaces sui-generis Decision 95/553/EC regarding consular protection for EU citizens i in view of the legal framework established by the Lisbon Treaty. It 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, including by proposing legislative measures in 2011 i.
The Treaty right to consular protection for unrepresented EU citizens under the same conditions as for nationals, enshrined in Articles 20(2)(c) and 23 of the Treaty on the Functioning of the European Union (TFEU) and in Article 46 of the EU Fundamental Rights Charter, is one of the specific rights granted by EU Citizenship. It is an expression of EU solidarity and of the identity of the Union in third countries, as well as of the practical benefits of being an EU citizen.
Consular protection is an integral part of the Union's policy on citizens' rights. The European Council, in the Stockholm Programme, invited the Commission to 'consider appropriate measures establishing coordination and cooperation necessary to facilitate consular protection in accordance with Article 23 TFEU' i. In its Resolution of 25 November 2009 the European Parliament advocated to strengthen the coordination and cooperation of consular protection i, thereby following up its Resolution of 11 December 2007 which suggested common concepts and binding guidelines and called for amending Decision 95/553/EC i once the Lisbon Treaty is in place.
In the "EU Citizenship Report 2010 - Dismantling the obstacles to EU citizens’ rights" the Commission announced it would increase the effectiveness of the right of EU citizens to be assisted in third countries, including in times of crisis, by the diplomatic and consular authorities of all Member States, by proposing legislative measures in 2011 and by better informing citizens via a dedicated website and targeted communication measures i. The Commission reiterated this commitment in its Communication of 23 March 2011 on consular protection for unrepresented EU citizens and announced that it would submit legislation establishing the coordination and cooperation measures necessary to facilitate consular protection for unrepresented citizens and addressing the issue of financial compensation of consular protection in crisis situations i.
Under the previous legal regime Member States were to establish the necessary rules among themselves. The Lisbon Treaty confers on the Commission the right to propose directives establishing the cooperation and coordination measures necessary to facilitate the right to equal consular protection for unrepresented EU citizens as for own nationals i. The current EU instrument, Decision 95/553/EC i, foresees a review following five years after its entry into force in 2002.
Currently, there is scope for further improvement regarding consular protection for unrepresented EU citizens. There is no clear consensus on the content of Article 23 TFEU and about the responsibilities which this right entails. To be effective as a right with concrete meaning, the succint wording of the Treaty article does not suffice. National consular laws and practices diverge as do views about the underlying concepts of consular protection for unrepresented EU citizens.
In particular in four areas further clarifications appear necessary:
The scope of beneficiaires needs to be clarified. An EU citizen is not only unrepresented if his/her home Member State has no embassy or consulate at all in a given third country, but also if this embassy or consulate is not 'accessible' i. There is however no common understanding about when an embassy or consulate is accessible i. Further, it should be clarified to which extent also third country family members of unrepresented EU citizens are beneficiaries of consular protection.
It should be clarified which Member State has to assist an unrepresented EU citizen and how assistance is to be coordinated with the citizen's Member State of nationality. This lack of clarity causes delays and does not safeguard efficient protection under the same conditions as for nationals. According to the Treaty an unrepresented EU citizen can choose which embassy/consulate he/she prefers to turn to, whereas in practice arrangements on burden-sharing exist. These arrangements may be acceptable as long as an efficient treatment of unrepresented citizens is secured. They tend however not to be widely publicised, which makes it difficult for a citizen to know which embassy or consulate would assist.
Coordination and cooperation between the assisting embassy or consulate and the Member State of origin are to be further established. Assisting an unrepresented EU citizen, unlike assistance to own nationals, requires efficient cooperation with the consular authorities of the citizen's home Member State. Clearer rules for cooperation and coordination between the assisting Member State and the citizen's Member State of nationality would benefit both consular authorities and citizens. This comprises which types of assistance consular protection for unrepresented EU citizens typically entails (e.g. in case of death, victim of crime, etc.) and how the assistance is to be coordinated between the assisting Member State and the citizen's Member State of nationality.
To ensure coordination and cooperation in regard to unrepresented EU citizens, the consular authorities present in a given third country need to liaise with each other and have specific information available i. Relevant information for unrepresented EU citizens is currently not systematically collected. Further, according to the Treaty on European Union, the diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisations shall contribute to the implementation of this right i. Respective spheres of competence and scope for action are not yet spelled out. The current setting is thus not conducive to a fully coherent external action of the Union and induces a suboptimal use of human and financial resources.
The legal cooperation framework should clearly establish who assists unrepresented EU citizens in crisis situations, including as to the role of the so-called Lead State, which is expected to take action in times of crisis i. Contingency planning does not specifically cater for unrepresented EU citizens and in crisis situations it is difficult to establish the number of unrepresented EU citizens. Particularly in serious crises the local staff needs support from crisis intervention experts.
To date legislation and guidelines comprise generic procedures on financial reimbursement of assistance i, which are generally not applied in crisis situations, as they do not seem adapted to the related specific needs i. If financial burden-sharing is not clear and is not taking place in practice, there is less incentive to take a proactive approach which entails responsibilities not related to own nationals.
A detailed analysis of the problems of the current system as well as the impacts of the different options considered for adressing them can be found in the Impact Assessment accompanying this proposal.
Interested parties were consulted widely. In a comprehensive public consultation on EU citizens' rights in 2010, contributions from all citizens and relevant stakeholders were sought and particular attention was given to consular protection for EU citizens. This public consultation followed a previous one related to the Green Paper of 2007 on diplomatic and consular protection of EU citizens in third countries i. The ideas put forward informed the policy debate of a conference dedicated to EU citizens' rights of 1-2 July 2010, during which consular protection was discussed in depth. Stakeholders involved in consular protection (such as Member States, travel associations, non-governmental organisations and academics) were further consulted, including via two dedicated workshops of 24 September 2010 and 23 June 2011. Consular and diplomatic authorities of all the Member States were informed in the Council Working Group Consular Affairs (COCON) and consulted via an online survey. Six representative Member States were recently visited and field missions to four selected third countries i were undertaken by an external consultancy to directly consult consular practitioners working on the ground. For this proposal the Commission took into account the results of four studies on different aspects of the revision i.
Stakeholders generally support the envisaged reform. Given the new legal regime established by the Lisbon Treaty a revision of Decision 95/553/EC is necessary, which in their view should be used to further improve coordination and cooperation and clarify the underlying legal concepts. Stakeholders' views on the main elements of the reform are as follows. Regarding the question when an embassy or consulate would be 'accessible' Member States consulted appeared not to have a common understanding of what it would mean i. However, following consultations with stakeholders i to reach the embassy or consulate, obtain consular protection and travel back at least within the same day would accordingly appear to be an appropriate time limit. Civil society representatives argued for clear and binding legal terms. The inclusion of third-country family members was flagged by civil representatives as an important issue i, a majority of Member States believed that they should at least possibly be included (though at times arguing that conditions for inclusion should be clarified) i. Regarding access to consular protection and coordination/cooperation Member States and civil society generally perceive a case for greater transparency as to bilateral and local arrangements on burden-sharing. Civil society representatives stress that it must be ensured that unrepresented citizens are able to obtain consular protection under the same conditions as nationals. Ensuring good communication channels and clear legal provisions are by a wide majority i considered as important or very important factors for an even more efficient assistance. As regards crisis situations and their financial implications Member State representatives strongly support the Lead State concept which should be further enhanced and stress the benefits of comprehensive crisis preparedness i. Civil society representatives underlined that also in crises it needs to be safeguarded that unrepresented EU citizens are being assisted efficiently like nationals.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- 1.1 Introduction
- 1.2 Context and grounds for the proposal
- 1. Personal scope
- 2. Access to consular protection and cooperation/coordination
- 3. Local coordination
- 4. Assistance in crisis situations/financial reimbursement
- 2. CONSULTATION OF INTERESTED PARTIES
- 3.1 Summary of the proposed actions
- 5. Personal scope
- 6. Access to consular protection and cooperation/coordination
- 7. Local coordination/EU added value
- 8. Assistance in crisis situations/financial reimbursement
- 3.2 Legal basis
- 3.3 Subsidiarity and Proportionality
- 3.4 Impact on fundamental rights
The main objective of this proposal is to
- clarify content and operability of right of unrepresented EU citizens to consular protection under equal conditions
- simplify cooperation and coordination between consular authorities.
To this effect, the proposal addresses the following issues:
The proposal clarifies that an EU citizen is to be considered as unrepresented in particular when an embassy or consulate of his/her own Member State is not 'accessible'. An embassy or consulate is not 'accessible', if the EU citizen cannot reach it and return to his/her place of departure (via means of transport commonly used in the third country) at least the same day. An exception is provided for in case the urgency of the matter necessitates even swifter assistance. The proposal further specifies that also third country family members of EU citizens are included in consular protection for EU citizens. Article 23 TFEU provides for non-discriminatory treatment, and in line with Articles 7 and 24 of the Charter of Fundamental Rights of the European Union and the case-law of the European Court of Justice the principal benefits of EU citizens' rights are also extended to their family members to ensure the full effectiveness of those rights i. Accordingly, the proposal provides that protection must be given to third country family members of EU citizens to the same extent as Member States provide it to the third country family members of their own nationals i.
The proposal stresses that EU citizens can turn to 'any' other Member State's embassy or consulate; though specific arrangements by Member States are possible as long as transparency (through notification and subsequent publication on the Commission's website) and effective treatment of applications are ensured.
The prosposal further specifies which assistance Member States typically provide in the most frequent events (i.e. arrest or detention, victim of crime, serious accident or serious illness, death, relief and repatriation in case of distress, need of emergency travel documents), on the basis of common practices of Member States on consular protection i, and the applicable procedures for cooperation and coordination between the consular authorities in these events. To comply with the citizens' right of self-determination, the proposal provides for enquiries regarding the wishes of citizens which should be respected, including as to whether family members or other related persons should be informed (e.g. about the arrest). Similarly, in the event of death, the wishes of the next-of-kin must be duly taken into account as to how to proceed with the corpse of the deceased citizen.
The proposal specifies that local cooperation meetings on consular protection should include regular exchange of information on unrepresented EU citizens and that the Chair of these meetings should collect the contact details of relevance for assistance to unrepresented EU citizens (e.g. regionally responsible embassy or consulate of unrepresented Member States). It provides that Union delegations can under specific conditions chair - or otherwise support - these meetings.
Regarding crises situations the proposal entails the following improvements. It provides that local contingency plans must systematically include unrepresented EU citizens. The proposal underlines the importance of the Lead State(s) for protecting unrepresented EU citizens and defines its role in this respect, i.e. that the Lead State is in charge of coordinating and leading assistance of unrepresented EU citizens. The proposal specifies that a Lead State can seek additional support from the EU Civil Protection Mechanism and the crisis management structures of the EEAS. The proposal also provides for additional support and full use of synergies by providing for the inclusion of national consular experts, notably from unrepresented Member States, in existing intervention teams at Union level. Regarding financial burden-sharing a facilitated reimbursement procedure, adjusted to crisis situations, is introduced. This entails simplifying the procedural exchange involving consular authorities and citizens, adding standard formats for requests and introducing an easier system for tracking the reimbursement costs (on a pro-rata basis i, fixed rates i - in case costs cannot be calculated). This improved reimbursement procedure complements the support available from the EU Civil Protection Mechanism and the EEAS crisis management structures.
Pursuant to the Lisbon Treaty, the EU competence to adopt legislation on consular protection for unrepresented EU citizens is conferred by Article 23 i TFEU. Under this Treaty provision the Council may adopt directives establishing the coordination and cooperation measures necessary to facilitate protection for unrepresented EU citizens. This provision applies to all Member States.
Consular protection for unrepresented EU citizens by definition entails a cross-border dimension, extending the rights granted by EU Citizenship beyond EU borders. This initiative is on a specific right granted to the EU citizen, a right to consular protection by the consular and diplomatic authorities of another Member State under the same conditions as for its nationals which is inherently linked to the concept of EU citizenship and the competences of the Union under the Treaty on the Functioning of the European Union. It therefore appears appropriate to include the necessary coordination and cooperation measures to facilitate this right in the legal order of the Union, rather than in sui-generis decisions of the Representatives of Governments of Member States. Practicability and coherence of this right will be further enhanced by embedding it in the legal orders of Member States, by the right of national courts to request guidance on interpretation from the European Court of Justice and by the Commission's powers to ensure compliance.
The proposal takes due account of the principle of proportionality by restricting itself to specifying cooperation and coordination measures for frequent events (e.g. death, victim of crime) and crisis situations. It further fully builds on and integrates previous legal measures as well as recent developments, e.g. the Lead State, with a clear focus on the unrepresented EU citizen. The attached Impact Assessment demonstrates that the benefits of each of the proposed amendments outweigh their costs; the proposed measures are therefore proportionate.
As set out in detail in the Impact Assessment accompanying this proposal and in accordance with the Union's Strategy for the effective implementation of the EU Fundamental Rights Charter i, the proposal reinforces the rights set out in the Charter. This reform enhances in particular the fundamental right to consular protection under the same conditions as for nationals laid down in its Article 46, by clarifying the content of this right, by facilitating the necessary cooperation and coordination procedures and by ensuring effective implementation and compliance. Including third country family members strengthens the right to family life as well as the rights of the child (Articles 7 and 24 Fundamental Rights Charter). Clearer responsibilities and improved burden-sharing in crisis situations would ensure non-discrimination also in times of crisis when fundamental rights are at stake. Further the principles of non-discrimination, life and integrity of the person and the right of the defence and to a fair trial are being reinforced (Articles 2, 3, 21, 47 and 48 Fundamental Rights Charter).