Monday, 21 January 2008

EU Treaty of Lisbon: Cooperation between diplomatic missions

The diplomatic and consular missions of the EU member states and the present Commission delegations (future Union delegations forming part of the European External Action Service) are precious resources for the member states and the European Union.

Cooperation between them offers possibilities to represent the interests of the EU and the member states effectively in third countries and international conferences and organisations.

Together they can improve the assessments and policy recommendations flowing back to the Council and the member states.

The citizenship of the European Union, established by the Maastricht Treaty, carries with it rights, including a subsidiary right to diplomatic and consular protection in third countries, where the citizen’s state is unrepresented.

For expats in trouble or stranded tourists, especially in remote parts of the world, this protection can be valuable. Citizens of smaller member states, with fewer diplomatic or consular missions, are more likely to profit from this practical example of growing EU solidarity, but even the bigger member states are thinly represented on the ground in many regions of the world.

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The intergovernmental conference (IGC 2007) agreed on the following amendments to Article 20 TEU (OJ 17.12.2007 C 306/30):

39) Article 20 shall be amended as follows:

(a) in the first paragraph, the words "Commission delegations" shall be replaced by "Union delegations" and the words "the common positions and joint actions adopted by the Council" shall be replaced by "decisions defining Union positions and actions adopted pursuant to this Chapter";

(b) in the second paragraph, the words "information, carrying out joint assessments" shall be replaced by "information and carrying out joint assessments" and the words "and contributing to the implementation of the provisions referred to in Article 20 of the Treaty establishing the European Community" shall be deleted;

(c) the following new paragraph shall be added:

"They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 17(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 20 of that Treaty.".

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The existing Article 20 TEU looks like this (latest consolidated version OJ 29.12.2006 C 321 E/18):

Article 20

The diplomatic and consular missions of the Member States and the Commission delegations in
third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that the common positions and joint actions adopted by the Council are complied with and implemented.

They shall step up cooperation by exchanging information, carrying out joint assessments and
contributing to the implementation of the provisions referred to in Article 20 of the Treaty
establishing the European Community.

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Article 20 of the Treaty establishing the European Community (TEC) referred to above builds on the citizenship of the Union and the rights of Union citizens mentioned in Article 17 TEC.

Article 20 TEC

Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.


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Consolidation, i.e. merging the amendments and the existing text leads to the consolidated and updated Article 20 TEU:

Article 20

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 cooperate in ensuring that decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented.

They shall step up cooperation by exchanging information and carrying out joint assessments.

They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 17(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 20 of that Treaty.

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Article III-207 proposed by the European Convention in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68) looked like this:

Article III-207

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 cooperate in ensuring that the European decisions relating to Union positions and actions adopted by the Council of Ministers are complied with and implemented. They shall step up cooperation by exchanging information and carrying out joint assessments.

They shall contribute to the implementation of the provisions referred to in Article I-8(2) on the rights of European citizens to protection in the territory of a third country and the measures
adopted pursuant to Article III-11.

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In the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/137 and 138) the corresponding Article was III-306:

Article III-306

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 cooperate in ensuring that the European decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented. They shall step up cooperation by exchanging information and carrying out joint assessments.

They shall contribute to the implementation of the right of European citizens to protection in the
territory of third countries as referred to in Article I-10(2)(c) and the measures adopted pursuant to Article III-127.

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There are only minor differences between the existing Article 20 TEU, by the way of the draft Constitutional Treaty Article III-207 and the Constitutional Treaty Article III-306, and the amended Article 20 TEU, including the references to Article 17(2)(c) and Article 20 of the Treaty on the Functioning of the European Union (TFEU).

The protection of EU citizens by diplomatic and consular authorities of any member state in the territory of third countries deserves a few comments.

First, this right to protection is subsidiary, i.e. it applies where the Union citizen’s own country is unrepresented.

Second, the principle of equal treatment applies: Protection is given on the same conditions as to the nationals of the state giving protection.

Third, the measures giving the citizens of the European Union diplomatic and consular protection are seen as intimately linked to the common foreign and security policy (CFSP) of the European Union. They belong to the sphere of intergovernmental cooperation, and the Council adopts the necessary directives in accordance with a special legislative procedure. The European Parliament is only consulted (Article 20 TFEU).

Fourth, the Charter of Fundamental Rights of the European Union Article 46 (OJ 14.12.2007 C 303/12) contains the right to protection by diplomatic or consular authorities, with wording almost identical to Article 17(2)(c) TFEU.

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Next time we turn to the modest role of the elected representatives of the citizens in the European Parliament in questions pertaining to the common foreign and security policy (CFSP).


Ralf Grahn


P.S. Did the drafting technique used for the Lisbon Treaty lead to a shorter text, given that both the text to be substituted and the amendment itself had to be mentioned in the Reform Treaty?