Sunday, 9 March 2008

EU TFEU: Diplomatic or consular protection

Think of yourself in a faraway country, where your home country is unrepresented, if your companion dies, you are in a serious accident or fall seriously ill, or you are (wrongly) arrested or detained, or you are mugged or raped, or your money and passport are stolen and you lack the means to return home.

The Maastricht Treaty (1992) promised damsels and other EU citizens in distress in third countries diplomatic or consular protection by another member state’s diplomatic or consular authorities, if their own country is not represented where the calamities occurred.

But even after the Amsterdam and Nice revisions, the Treaty on European Union leaves the practicalities in the hands of the member state governments ‘among themselves’, without offering the EU any powers.

The Asian tsunami and the war in Lebanon have served as reminders that not only individual misfortunes, but large disasters can put considerable groups of EU citizens at risk.

***

The intergovernmental conference (IGC 2007) decided to amend Article 20 of the Treaty establishing the European Community (TEC), and the Treaty of Lisbon (ToL) changed the name of the treaty to become the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/52:

36) In Article 20, the words ‘establish the necessary rules among themselves and’ shall be replaced by ‘adopt the necessary provisions and’. The following new paragraph shall be added:

‘The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.’.

***

The current Article 20 TEC is found in the latest consolidated version of TEU and the TEC, in OJ 29.12.2006 C 321/50:

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.


***

The consolidated Lisbon Treaty version of Article 20 should look like this, in Part Two Non-discrimination and citizenship:

Article 20 TFEU (ToL), after renumbering Article 23 TFEU

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 adopt the necessary provisions and start the international negotiations required to secure this protection.

The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.

***

How does the Lisbon Treaty look compared to the preceding draft Treaty establishing a Constitution for Europe? The European Convention proposed (OJ 18.7.2003 C 169/30):

Article III-11 Draft Constitution

Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-8.

A European law of the Council of Ministers may establish the measures necessary to facilitate such protection. The Council of Ministers shall act after consulting the European Parliament.

***

The following stage was the IGC 2004 leading to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/57):

Article III-127 Constitution

Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-10(2)(c).

Member States shall commence the international negotiations required to secure this protection.

A European law of the Council may establish the measures necessary to facilitate such protection. The Council shall act after consulting the European Parliament.

***

Article 20 TEC left the tasks of establishing rules and negotiating internationally to the member states (bilaterally). The draft Constitution offered the opportunity to establish EU measures to facilitate protection for Union citizens.

The Constitutional Treaty added paragraph 2, which reinserted the international negotiations to be conducted by the member states.

The Lisbon Treaty adds the words ‘coordination and cooperation’ measures to limit the scope compared to the Constitution of the legal base for directives to be adopted by the Council, in accordance with the IGC 2007 Mandate, which said (point 19e): In Article 20 (diplomatic and consular protection), as amended in the 2004 IGC, the legal basis will be amended so as to provide in this field for adoption of directives establishing coordination and cooperation measures.

***

From an EU citizen’s point of view, diplomatic (state to state action) and consular protection (individual assistance) illustrate the ‘achievements’ of pure intergovernmental cooperation between sovereign nation states. It took the member states three years from the signing of the Treaty of Maastricht to arrive at a common decision:

95/553/EC: Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations

The one page decision seems as anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, as to alleviate suffering.

This international agreement then had to be ratified by the member states, entering into force in 2002, about ten years from the signing of the Maastricht Treaty.

***

The member states have managed to agree on another item, namely on a uniform format for an emergency travel document:

96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)

In addition, the member states have agreed on non-binding Guidelines on consular protection of EU citizens in third countries (Council document 10109/06).

***

The Charter of Fundamental Rights of the European Union, a compilation of existing rights, has a Title V Citizens’ rights, where the following are mentioned:

Article 39 Right to vote and to stand as a candidate at elections to the European Parliament

Article 40 Right to vote and to stand as a candidate at municipal elections

Article 41 Right to good administration

Article 42 Right of access to documents

Article 43 European Ombudsman

Article 44 Right to petition

Article 45 Freedom of movement and of residence

Article 46 Diplomatic and consular protection

***

Diplomatic and consular protection is today’s subject, so here is the Article in question (OJ 14.12.2007 C 303/12):

Article 46 Charter
Diplomatic and consular protection

Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she 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 Member State.

***

The Explanations relating to the Charter of Fundamental Rights deal briefly with Article 46 (OJ 14.12.2007 C 303/29):

Explanation on Article 46 — Diplomatic and consular protection

The right guaranteed in this Article is the right guaranteed by Article 20 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 23). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these two Articles.

***

The Commission has not been impressed by the progress of the member states this far. In 2006 it published a Green Paper, launching a public consultation with a view to strengthening protection of EU citizens:

Diplomatic and consular protection of Union citizens in third countries; Brussels, 28.11.2006; COM (2006) 712 final

At least the European Parliament offered wholehearted support for the Commission’s plans, whereas the member states’ responses were mixed.

In December 2007 the Commission issued an action plan accompanied by a recommendation and two working papers:

Effective consular protection in third countries: the contribution of the European Union – Action Plan 2007 – 2009; Brussels, 5.12.2007, COM (2007) 767 final

The Commission estimated that the number of "unrepresented" EU citizens travelling abroad annually is at least 7 million, and that around 2 million EU expatriates live in a third country where their Member State is not represented, and that these numbers are likely to grow.

The Commission aims to improve information on citizens’ rights, and to take practical steps to improve consular protection. Member states are encouraged to increase protection of family members who are third country nationals, to strive towards common protection standards and to obtain the express consent to EU protection arrangements through bilateral agreements with host states.


Ralf Grahn