Consular protection for EU citizens abroad

The number of EU citizens living and travelling outside the Union is steadily increasing, but only in three third countries are all 27 Member States (MS) present. Large-scale crises, such as the tsunami in 2004, the 2008 Georgia conflict, as well as the uprisings in Tunisia, Egypt and Libya in spring 2011, highlighted the right of “unrepresented” EU citizens to be provided with consular protection by the embassy or consulate of another MS. The Commission proposed a Directive in December 2011, with the aim of clarifying the scope of consular protection.

According to Articles 20(2)(c), 23(1) TFEU and 46 of the EU Charter of Fundamental Rights, EU citizens shall, in the territory of a third country in which their MS of nationality is not represented, be entitled to protection by any MS, on the same conditions as the nationals of that state. Consular protection shall be provided only in cases of distress, and does not cover other consular functions such as authentication of documents. The Council stipulated in Decisions 95/553/EC and 96/409/­CFSP in which situations consular protection is provided to “unrepresented” EU citizens:

• Death,
• Serious accident or serious illness,
• Arrest or detention,
• Falling victim of violent crime,
• Loss or theft of identity documents, and
• Situations requiring repatriation or relief (e.g. armed conflicts, natural disasters). 

What protection is provided in such cases is governed by national law and practices, which has led to divergences in protection standards across the EU. Therefore, the Council issued guidelines in 2010 on Common Practices in Consular Assistance and Crisis Coordination.

Moreover, the Lead State concept was launched in 2007 through Council guidelines. The Lead State is a MS which takes the lead in a given third country in providing protection to Union citizens and coordinating the actions of other MS in times of crisis. The concept was put into practice for the first time in Chad in 2008, when France ensured the protection of EU citizens, evacuating more than 1 200 citizens from 12 MS and third countries.

Towards the Commission proposal

In 2006, the Commission adopted a Green Paper on diplomatic and consular protection of Union citizens in third countries, followed in 2007 by an Action Plan aimed at enhancing consular protection measures and improving the communication of this right to citizens. To this end, the wording of Article 23(1) TFEU has been reproduced in newly issued passports by many MS and a website was launched in 2010 including a list of MS’ diplomatic and consular missions in third countries.

The Lisbon Treaty introduced a new, second paragraph into Article 23 TFEU establishing the capacity of the Council to adopt, according to a special legislative procedure, directives on coordination and cooperation measures facilitating consular protection. In March 2011, the Commission adopted a Communication on the state of play and way forward for consular protection of EU citizens abroad.

The proposal

On 14 December 2011, the Commission submitted its proposal for a Council Directive. This would clarify the requirements for an EU citizen to be deemed “unrepresented” in a third country, stating that the embassy or consulate of the home MS is not “accessible” if the EU citizen cannot reach it and return to his/her place of departure the same day. The proposal furthermore aims to extend consular protection to third-country family members of “unrepresented” EU citizens, referring however to the relevant national rules. It also simplifies the procedures for reimbursement of financial advances and turns the Lead State concept into legally binding Union law.

The European Parliament (EP) has repeatedly called for the effective protectionof EU citizens abroad to be strengthened and for the scope

of protection offered to be clarified. In 2009, a debate on consular protection took place in plenary, where several MEPs reported on their experiences after the 2008 Mumbai attacks. On 19 September 2012, the LIBE Committee adopted a report (rapporteur Edit Bauer, EPP, Slovakia) on the Commission proposal.

The legal uncertainty surrounding consular protection has been repeatedly bemoaned by academics, the Commission and the EP.

Consular vs. diplomatic protection

The majority of scholars as well as the European Commission take the view that the EU rules refer only to consular protection and not to diplomatic protection. Under inter­national law, “diplomatic protection” applies only in cases of an internationally wrongful state act and is widely considered to be a state and not an individual right, whereas “consular protection” takes place in situations of distress not caused by a state act (e.g. natural disaster, illness, etc.).

Individual right to consular protection?

Some academics regard consular protection as an individual right, drawing an analogy with other Union citizenship rights (free movement, electoral rights). But many others, and some MS, deny it has the character of a right, claiming the vague substance of the “right” to consular protection is not possible to enforce (a right to what?). It is argued that since consular protection is designed as the mere right to treatment equal to that of nationals there can be no such entitlement in Union law. Rather it should be at the state’s discretion, since some MS do not recognise a legal “right” to consular protection under national law.

Referring back to divergent national rules and practices on consular protection, could, in the opinion of many commentators, lead to “protection shopping” causing a heavier burden for those MS which recognise for their nationals – and thus also to “unrepresented” EU citizens – an enforceable right to consular protection.

Third-country family members

In its 2011 Communication on consular protection, the Commission pointed to the fact that under MS’ national rules, EU citizens’ family members who are third-country nationals are either not granted consular protection or, when they are assisted, the categories of family members included vary as well as the circumstances under which protec­tion is offered. Nonetheless, the Commission’s proposal for a directive stipulates that third-country family members of unrepresented EU citizens shall be treated “under the same conditions as the family members of nationals of the assisting MS who themselves are not nationals”, referring back to the relevant national rules.

Cooperation arrangements

Although according to Article 23 TFEU, “unrepresented” EU citizens can ask for help to “any” of the Member States represented in a third country, different cooperation arrange­ments in place effectively limit this choice, e.g. burden-sharing agree­ments and the Lead State concept. Burden-sharing agree­ments seek to distribute the responsibilities for unrepresented EU nation­alities among MS’ representations in third countries, thereby preventing concentration of requests for consular protection. These apply to day-to-day consular business, whereas the Lead State concept applies only in crisis situations. Commentatorspoint to the threat such arrangements could pose to the effectiveness of consular protection if they led to referrals from one state to another, and call for transparency in these instruments.

According to Article 35(3) TEU, Union delegations, which are part of the European External Action Service (EEAS), shall “contribu­te” to the implementation of the right to consu­lar protection of Union citizens. Thus, in the run-up to the creation of the EEAS, it was suggested that the EEAS itself might provide protection to “unrepresented” Union citizens. However, against this approach it was argued that the EEAS lacks the necessary staff and expertise. Hence, the Commission, the EP and the Council agreed in Article 5(10) of Council Decision 2010/427/EU establishing the EEAS, that it shall merely support MS, on their request, and not itself provide protection to “unrepresented” EU citizens.