Parltrack

The European Parliament adopted by 596 votes to 66 with 12 abstentions, in the framework of a special legislative procedure (consultation of Parliament), a legislative resolution on the proposal for a Council Directive on consular protection for citizens of the Union abroad.

Parliament approved the Commission proposal, stressing at the same time the essential role of this legislation for the implementation of the right of citizens of the Union to protection in the territory of third countries, as stated in Article 35 of the Treaty on European Union. The main aim of the Directive is thus to ensure that Member States' diplomatic and consular authorities shall closely cooperate and coordinate among each other and with the Union to ensure protection of unrepresented citizens under the same conditions as for nationals.

The main amendments may be summarised as follows:

Role of EU delegations: Parliament feels that where unrepresented citizens need protection in third countries efficient cooperation and coordination is required. In this case, not only the assisting Member State but also the Union delegation present in a third country and the Member State of origin of the citizen should cooperate closely and ensure consular protection for unrepresented citizens. New provisions laid out in the text set out the role of EU delegations, particularly in cases of crisis. In crisis situations, the Union delegations should ensure the necessary coordination among Member States, including facilitating assistance to unrepresented citizens.

Consular cooperation: noting that local consular cooperation may be more complex for unrepresented citizens, as it requires coordination with authorities not represented on the ground, Members feel that a stable framework should be ensured. Accordingly, they insert a new Chapter on the general principles of local consular protection cooperation and coordination.

Local consular cooperation should pay due attention to unrepresented citizens, for example by collecting the relevant contact details of the nearest regional embassies and consulates of Member States. Amongst other things, local consular cooperation should pay due attention to unrepresented citizens, for example by collecting the relevant contact details of the nearest regional embassies and consulates of Member States. In order to facilitate and improve consular protection for unrepresented citizens, the Commission should establish practical guidelines.

There are also provisions in the text regarding local cooperation, stressing the need to organise local cooperation meetings which must include a regular exchange of information on unrepresented citizens.

In general, Members feel that consular protection shall also extend to all other situations where the Member State represented would habitually provide assistance to its own citizens.

Arrangements and burden sharing: in order to provide unrepresented citizens with consular protection and ensure the effective treatment of applications, Member States' representations and where relevant, the Union delegation may conclude local arrangements on burden sharing and the exchange of information. After notification to local authorities, such local arrangements shall be reported to the Commission and to the EEAS and published on the Commission's website and on the relevant websites of the Member States concerned. Those arrangements shall fully respect the provisions of the Directive.

Consular protection in everyday situations and crisis situations: Parliament stresses that consular protection should cover assistance in a certain number of everyday situations, and also in crisis situations. Everyday cases of consular protection may cover arrest or detention. In this respect, the text provides that special situations should be taken into account, in particular when victims of trafficking in human beings are arrested or detained for committing crimes as a direct consequence of being trafficked.

In all cases, action must be taken in order to prevent ill treatment and ensure that minimum standards of detention conditions are granted. Where an unrepresented citizen is the victim of a crime or in danger of being victim of a crime, he must be provided with information on his/her rights and with access to proper legal assistance and counselling:

·        if the citizen of the Union is unable to produce a valid passport or identity card, (for example, due to theft) the assisting embassy or consulate shall provide unrepresented citizens with the necessary means for verifying their identity;

·        in crisis situations, Union delegations (and not the lead State or States in charge of coordination, as provided in the initial proposal) shall ensure coordination amongst Member States and shall coordinate any evacuation or other necessary support provided for an unrepresented citizen with the citizen's Member State of nationality.

Role and funding of EEAS: to be able to fulfil the role of coordination, Parliament proposes that the European External Action Service (EEAS) should be provided with the necessary financial means, including for the training of Member States' consular staff. The EEAS should organise training for consular staff in order to facilitate assistance to citizens, including unrepresented citizens as a part of preparation for crisis situations.

Extending consular protection for refugees and stateless persons: Parliament considers that the assisting Member State should consider providing protection to recognised refugees and stateless persons and other persons who do not hold the nationality of any Member State but who reside in one of the Member States and are holders of a travel document issued by that Member State, taking into account their particular situation.

Family members of unrepresented citizens of the EU: family members of unrepresented citizens who themselves are not citizens of the Union are entitled to consular protection under the same conditions as the family members of nationals of the Member State of origin, or to consular protection by a Union delegation.

Recourse to an interpreter: for effective coordination and cooperation between Member States' consular authorities, it is important to establish the different types of assistance which are delivered in specific situations. Those types of assistance should reflect the common practices among Member States, and Members consider that it should be ensured that language barriers are overcome and unrepresented citizens are provided with interpretation or other necessary assistance.

Training for consular staff: Parliament states that training courses should be organised for consular staff in order to improve cooperation and increase their knowledge of citizens' rights under the Treaties and this Directive.

Trust funds: Parliament feels that Member States should consider establishing a "trust fund" for consular protection, from which the embassy or consulate of the assisting Member State could advance its expenses for assisting an unrepresented citizen and into which the Member States of the assisted unrepresented citizen should reimburse the financial advance. The Commission, acting in cooperation with the Member States, should establish clear rules defining the division of financial burdens for the proper functioning of such a fund.

Hotline: Parliament proposes that the Commission should consider establishing a 24/7 hotline in order to make information easily accessible for those citizens seeking consular protection in cases of emergency.

Information on website of Foreign Ministries: Member States should encourage their own nationals to register themselves on the websites of their Ministries for Foreign Affairs before visiting third countries in order to facilitate their assistance in cases of need, in particular in crisis situations.

Member States shall make available, on the websites of their Ministries for Foreign Affairs, information on their citizens' right to seek, in a third country in which those Member States are not represented, consular protection, in accordance with this Directive, from the diplomatic or consular authorities of another Member State, and on the conditions of the exercise of that right.

Delegated powers: Parliament states that in order to ensure the swift and efficient functioning of the Directive, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of any amendment to the Annexes which consist of forms which may need to be updated from time to time. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure the simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council.

Lastly, it should be noted that Parliament stipulates that the Directive should not impose any obligations on the Member States to provide unrepresented citizens with those types of assistance that are not provided to their own nationals.

The Committee on Civil Liberties, Justice and Home Affairs adopted, following the special legislative procedure (consultation of the European Parliament), the report by Edit Bauer (EPP, SK) on the proposal for a Council Directive on consular protection for citizens of the Union abroad.

The committee recommends that Parliament amend the Commission proposal as follows:

Role of EU delegations: Members feel that where unrepresented citizens need protection in third countries efficient cooperation and coordination is required. In this case, not only the assisting Member State but also the Union delegation present in a third country and the Member State of origin of the citizen should cooperate closely and ensure consular protection for unrepresented citizens. New provisions laid out in the text set out the role of EU delegations, particularly in cases of crisis. In crisis situations, the Union delegations should ensure the necessary coordination among Member States, including facilitating assistance to unrepresented citizens.

Consular cooperation: noting that local consular cooperation may be more complex for unrepresented citizens, as it requires coordination with authorities not represented on the ground, Members feel that a stable framework should be ensured. Accordingly, they insert a new Chapter on the general principles of local consular protection cooperation and coordination.

Local consular cooperation should pay due attention to unrepresented citizens, for example by collecting the relevant contact details of the nearest regional embassies and consulates of Member States. Amongst other things, local consular cooperation should pay due attention to unrepresented citizens, for example by collecting the relevant contact details of the nearest regional embassies and consulates of Member States. In order to facilitate and improve consular protection for unrepresented citizens, the Commission should establish practical guidelines. Members feel that consular protection shall also extend to all other situations where the Member  State represented would habitually provide assistance to its own citizens.

Arrangements and burden sharing: in order to provide unrepresented citizens with consular protection and ensure the effective treatment of applications, Member States' representations and where relevant, the Union delegation may conclude local arrangements on burden sharing and the exchange of information. After notification to local authorities, such local arrangements shall be reported to the Commission and to the EEAS and published on the Commission's website and on the relevant websites of the Member States concerned. Those arrangements shall fully respect the provisions of the Directive.

Consular protection in everyday situations and crisis situations: Members stress that consular protection should cover assistance in a certain number of everyday situations, and also in crisis situations. Everyday cases of consular protection may cover arrest or detention. In this respect, the text provides that special situations should be taken into account, in particular when victims of trafficking in human beings are arrested or detained for committing crimes as a direct consequence of being trafficked.

In all cases, minimum standards of detention conditions must be monitored action taken in order to prevent ill-treatment and ensure that minimum standards of detention conditions are granted. Where an unrepresented citizen is the victim of a crime or in danger of being victim of a crime, he must be provided with information on his/her rights and with access to proper legal assistance and counselling:

·        if the citizen of the Union is unable to produce a valid passport or identity card, (for example, due to theft) the assisting embassy or consulate shall provide unrepresented citizens with the necessary means for verifying their identity;

·        in crisis situations, Union delegations shall ensure coordination amongst Member States and shall coordinate any evacuation or other necessary support provided for an unrepresented citizen with the citizen's Member State of nationality.

Role and funding of EEAS: to be able to fulfil the role of coordination, Members propose that the European External Action Service (EEAS) should be provided with the necessary financial means, including for the training of Member States' consular staff. The EEAS should organise training for consular staff in order to facilitate assistance to citizens, including unrepresented citizens as a part of preparation for crisis situations.

Extending consular protection for refugees and stateless persons: Members consider that the assisting Member State should consider providing protection to recognised refugees and stateless persons and other persons who do not hold the nationality of any Member State but who reside in one of the Member States and are holders of a travel document issued by that Member State, taking into account their particular situation.

Recourse to an interpreter: for effective coordination and cooperation between Member States' consular authorities, it is important to establish the different types of assistance which are delivered in specific situations. Those types of assistance should reflect the common practices among Member States, and Members consider that it should be ensured that language barriers are overcome and unrepresented citizens are provided with interpretation or other necessary assistance.

Training for consular staff: training courses should be organised for consular staff in order to improve cooperation and increase their knowledge of citizens' rights under the Treaties and this Directive.

Trust funds: Members feel that Member States should consider establishing a "trust fund" for consular protection, from which the embassy or consulate of the assisting Member State could advance its expenses for assisting an unrepresented citizen and into which the Member States of the assisted unrepresented citizen should reimburse the financial advance. The Commission, acting in cooperation with the Member States, should establish clear rules defining the division of financial burdens for the proper functioning of such a fund.

Hotline: the committee proposes that the Commission should consider establishing a 24/7 hotline in order to make information easily accessible for those citizens seeking consular protection in cases of emergency.

Information on website of Foreign Ministries: Member States should encourage their own nationals to register themselves on the websites of their Ministries for Foreign Affairs before visiting third countries in order to facilitate their assistance in cases of need, in particular in crisis situations.

Member States shall make available, on the websites of their Ministries for Foreign Affairs, information on their citizens' right to seek, in a third country in which those Member States are not represented, consular protection, in accordance with this Directive, from the diplomatic or consular authorities of another Member State , and on the conditions of the exercise of that right.

Delegated powers: the report states that in order to ensure the swift and efficient functioning of the Directive, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of any amendment to the Annexes which consist of forms which may need to be updated from time to time. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure the simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council.

Lastly, it should be noted that Members stipulate that the Directive should not impose any obligations on the Member States to provide unrepresented citizens with those types of assistance that are not provided to their own nationals.

PURPOSE: to establish a consular protection system for citizens of the Union abroad.

PROPOSED ACT: Council Directive.

BACKGROUND: 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". In its Resolution of 25 November 2009 the European Parliament advocated to strengthen the coordination and cooperation of consular protection, thereby following up its Resolution of 11 December 2007 which suggested common concepts and binding guidelines and called for amending Decision 95/553/EC 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. The Commission reiterated this commitment in its Communication on consular protection.

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. The current EU instrument, Decision 95/553/EC, 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. This is the purpose of this proposal.

IMPACT ASSESSMENT: three policy options were examined:

• Option 1: Retention of the status quo: no additional action at EU level.
• Option 2: Directive establishing coordination and cooperation measures to further facilitate consular protection for unrepresented EU citizens, reinforced by targeted awareness-raising measures. This option would cover the four operational objectives and ensure effective implementation due to targeted awareness-raising for citizens and practitioners.
• Option 3: Further and tighter cooperation measures. This option would, in addition to option 2, ensure that consular protection is also given on equal terms to long-term residents and recognised refugees; include simple forms of legalisation and of notary services and reinforce reimbursement in crisis situations by setting up a reimbursement mechanism or/and enhanced EU co-funding specifically for unrepresented EU citizens.

Following a comparison of the policy options, in view of their costs and effectiveness in attaining the objectives set, policy option 2 (EU Directive on cooperation and coordination measures) is identified as the best placed variant and therefore constitutes the preferred option.

LEGAL BASIS: Article 23 of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: 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:

(1) Personal scope: 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. 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.

(2) Access to consular protection and cooperation/coordination: 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 proposal 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 protection28, 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.

(3) Local coordination/EU added value: 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.

(4) Assistance in crisis situations/financial reimbursement: 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, fixed rates - 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.

BUDGETARY IMPLICATIONS: this proposal has no implications for the EU budget.

PURPOSE: to establish a consular protection system for citizens of the Union abroad.

PROPOSED ACT: Council Directive.

BACKGROUND: 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". In its Resolution of 25 November 2009 the European Parliament advocated to strengthen the coordination and cooperation of consular protection, thereby following up its Resolution of 11 December 2007 which suggested common concepts and binding guidelines and called for amending Decision 95/553/EC 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. The Commission reiterated this commitment in its Communication on consular protection.

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. The current EU instrument, Decision 95/553/EC, 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. This is the purpose of this proposal.

IMPACT ASSESSMENT: three policy options were examined:

• Option 1: Retention of the status quo: no additional action at EU level.
• Option 2: Directive establishing coordination and cooperation measures to further facilitate consular protection for unrepresented EU citizens, reinforced by targeted awareness-raising measures. This option would cover the four operational objectives and ensure effective implementation due to targeted awareness-raising for citizens and practitioners.
• Option 3: Further and tighter cooperation measures. This option would, in addition to option 2, ensure that consular protection is also given on equal terms to long-term residents and recognised refugees; include simple forms of legalisation and of notary services and reinforce reimbursement in crisis situations by setting up a reimbursement mechanism or/and enhanced EU co-funding specifically for unrepresented EU citizens.

Following a comparison of the policy options, in view of their costs and effectiveness in attaining the objectives set, policy option 2 (EU Directive on cooperation and coordination measures) is identified as the best placed variant and therefore constitutes the preferred option.

LEGAL BASIS: Article 23 of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: 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:

(1) Personal scope: 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. 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.

(2) Access to consular protection and cooperation/coordination: 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 proposal 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 protection28, 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.

(3) Local coordination/EU added value: 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.

(4) Assistance in crisis situations/financial reimbursement: 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, fixed rates - 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.

BUDGETARY IMPLICATIONS: this proposal has no implications for the EU budget.

PURPOSE: to establish a consular protection system for citizens of the Union abroad.

PROPOSED ACT: Council Directive.

BACKGROUND: 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". In its Resolution of 25 November 2009 the European Parliament advocated to strengthen the coordination and cooperation of consular protection, thereby following up its Resolution of 11 December 2007 which suggested common concepts and binding guidelines and called for amending Decision 95/553/EC 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. The Commission reiterated this commitment in its Communication on consular protection.

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. The current EU instrument, Decision 95/553/EC, 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. This is the purpose of this proposal.

IMPACT ASSESSMENT: three policy options were examined:

• Option 1: Retention of the status quo: no additional action at EU level.
• Option 2: Directive establishing coordination and cooperation measures to further facilitate consular protection for unrepresented EU citizens, reinforced by targeted awareness-raising measures. This option would cover the four operational objectives and ensure effective implementation due to targeted awareness-raising for citizens and practitioners.
• Option 3: Further and tighter cooperation measures. This option would, in addition to option 2, ensure that consular protection is also given on equal terms to long-term residents and recognised refugees; include simple forms of legalisation and of notary services and reinforce reimbursement in crisis situations by setting up a reimbursement mechanism or/and enhanced EU co-funding specifically for unrepresented EU citizens.

Following a comparison of the policy options, in view of their costs and effectiveness in attaining the objectives set, policy option 2 (EU Directive on cooperation and coordination measures) is identified as the best placed variant and therefore constitutes the preferred option.

LEGAL BASIS: Article 23 of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: 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:

(1) Personal scope: 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. 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.

(2) Access to consular protection and cooperation/coordination: 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 proposal 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 protection28, 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.

(3) Local coordination/EU added value: 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.

(4) Assistance in crisis situations/financial reimbursement: 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, fixed rates - 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.

BUDGETARY IMPLICATIONS: this proposal has no implications for the EU budget.

PURPOSE: to establish a consular protection system for citizens of the Union abroad.

PROPOSED ACT: Council Directive.

BACKGROUND: 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". In its Resolution of 25 November 2009 the European Parliament advocated to strengthen the coordination and cooperation of consular protection, thereby following up its Resolution of 11 December 2007 which suggested common concepts and binding guidelines and called for amending Decision 95/553/EC 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. The Commission reiterated this commitment in its Communication on consular protection.

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. The current EU instrument, Decision 95/553/EC, 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. This is the purpose of this proposal.

IMPACT ASSESSMENT: three policy options were examined:

• Option 1: Retention of the status quo: no additional action at EU level.
• Option 2: Directive establishing coordination and cooperation measures to further facilitate consular protection for unrepresented EU citizens, reinforced by targeted awareness-raising measures. This option would cover the four operational objectives and ensure effective implementation due to targeted awareness-raising for citizens and practitioners.
• Option 3: Further and tighter cooperation measures. This option would, in addition to option 2, ensure that consular protection is also given on equal terms to long-term residents and recognised refugees; include simple forms of legalisation and of notary services and reinforce reimbursement in crisis situations by setting up a reimbursement mechanism or/and enhanced EU co-funding specifically for unrepresented EU citizens.

Following a comparison of the policy options, in view of their costs and effectiveness in attaining the objectives set, policy option 2 (EU Directive on cooperation and coordination measures) is identified as the best placed variant and therefore constitutes the preferred option.

LEGAL BASIS: Article 23 of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: 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:

(1) Personal scope: 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. 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.

(2) Access to consular protection and cooperation/coordination: 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 proposal 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 protection28, 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.

(3) Local coordination/EU added value: 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.

(4) Assistance in crisis situations/financial reimbursement: 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, fixed rates - 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.

BUDGETARY IMPLICATIONS: this proposal has no implications for the EU budget.