EU citizenship right to equal consular protection abroad – EU citizenship benefits go beyond the EU’s borders Dr. Madalina Moraru UNION CITIZENSHIP IN PRACTICE: OUR COMMON VALUES, RIGHTS AND DEMOCRATIC PARTICIPATION BRUSSELS 15 MARCH 2016 1
EU citizenship right to equal consular protection in third countries – 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
Evolution of the EU citizenship right to equal consular protection – Issues with the Maastricht Treaty based EU citizenship right: Unclear scope of the EU citizenship right → not clear what kind of 1) 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; Unclear effects in practice → whether it was directly enforceable in third 2) 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
Council Directive 2015/637 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries 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 2015/637 – who can benefit of equal consular protection? 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 has the obligation to provide 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 - what kind of 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
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