EU citizenship right to equal

consular protection abroad –

EU citizenship benefits go beyond

the EU’s borders

Dr. Madalina Moraru

1

UNION CITIZENSHIP IN PRACTICE: OUR COMMON VALUES, RIGHTS AND DEMOCRATIC

PARTICIPATION

BRUSSELS 15 MARCH 2016

– Since 1993 all EU citizens enjoy, in the territory of a third country

where their Member State of nationality is not represented, the

protection of the diplomatic and consular authorities of any MS on the

same conditions as the nationals of that State.– Least known of all the core EU citizenship rights;

– The potential of this right is extraordinary given the current situation:

Increasing no. of crises affecting third countries;

Increasing mobility of EU citizens outside the EU (approx. 100 mil

travelling; 7 mil residing outside the EU);

Decreasing no. of external representations of Member States due to

financial crises: all MSs are represented in only 4 third countries (US,

Canada, China and Russia); 27 where no MS is represented);

Approx. 9% of EU citizens travelling abroad go to a third country

where their MS of nationality is not represented.2

EU citizenship right to equal

consular protection in third

countries

– Issues with the Maastricht Treaty based EU citizenship right:1) Unclear scope of the EU citizenship right → not clear what kind of

protection from the consular and diplomatic authorities were the EU

citizens entitled to receive; + unclear circumstances when an EU citizen

was not represented in a third country;

2) Unclear effects in practice → whether it was directly enforceable in third

countries, given that PIL (VCCR and VCDR) consular protection is a

right of the State of nationality; derogations have to be expressly agreed

by third countries;

– Decision 95/553/EC and Decision 96/406/CFSP clarified to a

certain extent the above critiques:• Unrepresented EU citizen= no permanent accessible representation or Honorary

Consul in the third country;

• Provided 6 mandatory situations for equal consular protection: death; serious

accident or serious illness; arrest or detention; victims of violent crime; and relief

and repatriation of distressed citizens; issue ETD.

3

Evolution of the EU citizenship

right to equal consular

protection

– Critiques against the consular protection Decisions:• Limited the personal and substantive scope of the Treaty based EU

citizenship right to equal protection abroad to such an extent that would

deprive the right of its effectiveness, in practice;

• A too wide margin of discretion and arbitrariness to the MSs – ad-hoc

arrangements not subject to rules preventing lack of transparency, abuse of

power by MSs

• The legal uncertainty created by the Decisions argued to be one of the

causes of the limited awareness of this right by the EU citizens.

Entry into force of the Lisbon Treaty - ground-breaking reinforcement of

the EU citizenship right to equal consular protection abroad

4

Evolution of the EU citizenship

right to equal consular

protection

Lisbon Treaty strengthened the EU citizenship right to equal consular

protection (Art. 20(2)(c) and 23 TFEU)

• It is also FR – Art. 46 EU Charter provides for a fundamental right to equal

consular and diplomatic protection

• Increased the legislative powers of the EU institutions: Council could now

adopt Directives by way of QMV for the purpose of facilitating the

implementation of the EU citizenship right; the European Parliament had to

be consulted (special legislative procedure);

• The EU citizenship right to equal protection abroad is subject to judicial

review, meaning that national courts and the EU Court of Justice can directly

apply Article 23 TFEU.

5

Evolution of the EU citizenship

right to equal consular

protection

Lisbon Treaty strengthened the EU citizenship right to equal consular

protection (Art. 20(2)(c) and 23 TFEU)

• EU was attributed a clear role in the consular protection of EU citizens:

an EU objective of contributing to the protection of EU citizens in the world Art.

3(5) TEU

A reciprocal obligation on the part of both the MSs and the EU to contribute to

the implementation the EU citizenship right to equal protection abroad (Art.

35(3) TEU)

Since 2009 MSs included Art. 23(1) TFEU in newly issued passports

However the right to equal consular protection abroad was still the least known

EU citizenship right

6

Evolution of the EU citizenship

right to equal consular

protection

Most recent step in raising awareness and facilitating the

implementation of the EU citizenship right to equal consular

protection.

• Entered into force in May 2015 after almost 4 years of negotiations;

MSs have until 2018 to transpose it;

• The EU institutions had different views on: the role of the EU;

divisions of competences between the EU and the MSs; personal and

substantive scope of the EU citizenship right to equal consular

protection;

• It is a pragmatical response to practical necessities:concentrates on those type of services which are most requested by EU citizens and

situations where they would be in great need of help – consular protection in day to

day situations and crisis;

7

Council Directive 2015/637on the coordination and cooperation

measures to facilitate consular protection

for unrepresented citizens of the Union in

third countries

Clarified personal scope of the EU citizenship right to equal consular

protection:

Union citizen is unrepresented when (Art.6 together with recital 8 of the

preamble):

1. His/her MS of nationality has no embassy or consulate established on

a permanent basis in the third country;

2. Even if it has an embassy, consulate or honorary consul present in loco,

these ones cannot effectively provide consular protection in a given

case; (e.g. the embassy/consulate is in Mumbai and the EU citizen in

need of urgent help is in New Delhi, India)

Novelty - The criteria for establishing who is unrepresented is no longer based

only on the geographical presence of the MS’s external representation but also

on fulfilling the criteria of accessibility, proximity and effectiveness of providing

equal consular protection

8

Council Directive 2015/637 –

who can benefit of equal

consular protection?

Proof of EU citizenship- ID or passport

In case of loss of ID or passport - nationality may be proven by any other

means (Art. 8(2))

Novelty – Third country family (TCN) members can also benefit of the equal

consular protection treatment: Equal consular protection is extended to the TCN

family member of the unrepresented Union citizens in the same conditions as the

family member of the nationals of the assisting Member State. (Art. 5)

9

Council Directive 2015/637 –

who can benefit of equal

consular protection?

Unrepresented citizens shall be entitled to seek protection from the

embassy or consulate of any Member State present in the place where

the unrepresented EU citizen is located– Art. 7(1)

MSs can however conclude ad-hoc arrangements designating one of them

as the responsible MS;

ADDED VALUE of the Directive – subjects the ad-hoc arrangements to

certain requirements aiming to prevent arbitrary limitations (Art. 7(2)):

• Arrangements establishing the designated MS should be notified to the

EC and EEAS + publicised by the Union and the MS;

• The resorted MS should do itself the re-direction of the application of

the citizen to the designated consulate or embassy; HOWEVER

• No redirection to the designated MS when that would compromise the

right of the EU citizen, given the urgency of the matter (e.g. victim

of grave accident)10

Council Directive 2015/637 –

who has the obligation to provide

equal consular protection?

Relation unrepresented Union citizen – EU delegation(s) in third

countries:

Day-to-day situations: No direct consular protection, but EU delegations can

inform the EU citizens of the assistance they are entitled to, particularly

agreed practical arrangements (Art. 11)

Consular crisis situations: cooperation and coordination with the represented

MSs, in particular by providing available logistical support, including office

accommodation and organisational facilities, such as temporary

accommodation for consular staff and for intervention teams. (Art. 11)

11

Council Directive 2015/637 –

who has the obligation to provide

equal consular protection?

The principle of non-discrimination based on nationality is extended in

the following circumstances (Art. 9):

I. Day-to-day situations:

1. arrest or detention;

2. being a victim of crime;

3. a serious accident or serious illness;

4. death;

5. relief and repatriation in case of an emergency;

6. a need for emergency travel documents as provided for in Decision

96/409/CFS +

II. Consular crises situations

MSs may decide to confer equal consular protection in additional

situations (recital 14 of preamble)

12

Council Directive 2015/637 -

what kind of equal consular

protection?

Equal consular protection extends also to financial assistance (recital 25):

Unrepresented Union citizens can receive financial assistant in the same cdts. as

the citizens of the assisting MS

– Unrepresented Union citizens will undertake to repay the costs of consular

protection under the same cdt.s as the nationals of the assisting MS; FORM in

ANNEX 1;

– The MS of nationality enjoys discretion whether to ask or not for the

reimbursement; in cases of unusually high costs of consular protection incurred in

cases of arrest/detention of unrepresented Union citizens, there is max. period for

reimbursement= 12 months;

– In consular crisis situations, the submission of repayment forms is not requested,

however this does not impede the assisting MS from asking repayment from the

MS of nationality.

13

Council Directive 2015/637

financial assistance

Useful websites:

1. Raising more awareness of useful websites:

– EC consular protection for EU citizens abroad website,

http://ec.europa.eu/consularprotection/index.action

Offers information on the presence of the MSs embassies and consulates

in the world and the EU citizenship right to equal consular protection

– CARE Project website http://www.careproject.eu/database/

gathers the consular and diplomatic legislation and practices of all MSs

2. European information campaigns should be backed by more

information campaigns at national level – via MFAs; Art. 23 TFEU is

provided in all new passports, however few know of the existence and

benefits of this right.

3. Dissemination for EU citizens should be coupled with training of

national consular officials.14

Discussion –

recommendations for

dissemination

– Details on the precise services that can be offered to unrepresented

Union citizens in cases of detention/arrest;

Long-run policy recommendations:

– Taking advantage of the extensive capacity of EU delegations:

Given that the EU is represented in many third countries where no MS is

represented (Somalia, Maldives, Swaziland) or only few (Fiji, Haiti,

Djibouti, Gambia, Sierra Leone)

– Consider adding refugees, asylum seekers, stateless persons resident in

the MSs within the personal ambit of the right to equal consular

protection;

– Consider extending the equal consular protection treatment also within

the EU.

15

Discussion – policy

recommendations for the

future