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Diplomatic and consular protection

Diplomatic and consular protection

Outline of the Community (European Union) legislation about Diplomatic and consular protection

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Citizenship of the Union

Diplomatic and consular protection

Document or Iniciative

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.

Summary

Every citizen of the European Union located in the territory of a third country is entitled to consular and diplomatic protection in line with Article 20 of the Treaty establishing the European Community (the EC Treaty). The preamble to Decision 95/553/EC of 19 December 1995 recalls that the decision was adopted with a view to implementing the obligation set out in Article 20 of the EC Treaty (ex Article 8c).

The conditions for entitlement to diplomatic and consular protection are as follows:

  • the absence in the third country in which the citizen requesting protection is located of an accessible permanent representation (embassy, general consulate or consulate) of the citizen’s own Member State;
  • the absence of an accessible Honorary Consul competent for such matters of his or her own Member State or another State representing it on a permanent basis;
  • production by the citizen requesting protection of proof of his or her nationality (passport, identity card or other document) for the diplomatic or consular representation approached.

The diplomatic or consular representation giving protection must treat the person seeking help as if he or she were a national of the Member State which it represents.

Assistance in the event of difficulties: mandatory protection

The protection must cover:

  • assistance in the event of death;
  • assistance in the event of serious accident or serious illness;
  • assistance in the event of arrest or detention;
  • assistance to victims of violent crime;
  • the relief and repatriation of distressed citizens of the Union.

This list is not exhaustive as EU citizens may find themselves in difficulties in any number of situations in countries that are not members of the EU. In so far as it is within their powers, Member States’ diplomatic representations or consular agents may therefore assist citizens in other cases if they are requested to do so.

Authorised protection: financial assistance

Other than in cases of extreme urgency, no financial advance or assistance may be given or expenditure incurred on behalf of a citizen of the Union without the permission of the competent authorities of the Member State of which that citizen is a national, such permission being given either by the Foreign Ministry or by the nearest diplomatic mission.

Unless the authorities of the Member State of the applicant’s nationality expressly waive this requirement, the applicant undertakes to repay the full value of any financial advance or help and expenditure incurred plus, where applicable, a consular fee notified by the competent authorities. This requirement may be waived by the authorities of the applicant’s Member State.

The undertaking to repay takes the form of a document requiring the distressed national to repay to the Government of the Member State of which he is a national any costs incurred on his behalf or money paid to him.

The Government of the Member State of which the applicant is a national must reimburse all costs, on request, to the Government of the assisting Member State.

The Decision, published in 1995 in the Official Journal, entered into force on 3 May 2002 after a long process of ratification by the 15 Member States. It is to be reviewed five years after its entry into force, i.e. in 2007.

Guaranteeing protection for Community citizens

The protection of EU citizens by the embassies and consulates of the Member States has its basis in Article 20 of the EC Treaty. It is a fundamental right for all EU citizens in countries outside the Union where their own country has no representation (embassy or consulate).

Under public international law, an embassy or consulate of a State protects the citizens of that State. The added value of Article 20 of the EC Treaty compared to public international law is that, as a Union citizen, a citizen of any Member State may enjoy the diplomatic and consular protection of any other EU Member State as provided for under Article 20.

In the event of infringement of Community law by a Member State, citizens may register a complaint with the Secretariat General of the European Commission.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 95/553/EC 03.05.2002 OJ L 314 of 28.12.1995

Related Acts

European Commission Green Paper of 28 November 2006 on diplomatic and consular protection of Union citizens in third countries [COM(2006) 712 final – Official Journal C 30 of 10.2.2007].

In 2006 the European Commission launched public consultations by publishing a Green Paper on diplomatic and consular protection of Union citizens in third countries [PDF ]. The closing date for contributions is 31 March 2007. Replies should be sent to the e-mail address indicated in the final paragraph of the Green Paper.

 

Diplomatic and consular protection of Union citizens in third countries

Diplomatic and consular protection of Union citizens in third countries

Outline of the Community (European Union) legislation about Diplomatic and consular protection of Union citizens in third countries

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Citizenship of the Union

Diplomatic and consular protection of Union citizens in third countries (Green Paper)

Document or Iniciative

European Commission Green Paper of 28 November 2006 on diplomatic and consular protection of Union citizens in third countries [COM(2006) 712 final – Official Journal C 30 of 10.02.07].

Summary

Despite the existing provisions in the field of diplomatic and consular protection, a Eurobarometer survey shows that few citizens are actually aware this right exists. This Commission Green Paper proposes courses of action for:

  • giving citizens more comprehensive information;
  • examining the scope of the protection which citizens should be offered;
  • initiating a debate on the resources that the Union should have for this (creation of “common offices”);
  • developing links with third-country authorities
  • ensuring citizens are informed of their rights.

The Commission wishes to ensure that citizens are more fully informed about their rights as regards diplomatic and consular protection under Article 20 of the Treaty establishing the European Community (EC Treaty) and Article 46 of the European Union Charter of Fundamental Rights. The institutions and the Member States should ensure that citizens and the business sectors involved in passenger transport, such as travel agencies, are provided with regular information. This could be done by distributing information leaflets, posting information on the “Europa” site and on the websites of Commission delegations in third countries, putting up posters in places such as airports, railway stations, ports, etc. The Commission also moots the possibility of citizens’ putting questions about consular and diplomatic protection to ” Europe Direct “.

If their country does not have an embassy or consulate in a given third country, citizens must be given information about other Member States’ embassies and consulates there. There are currently only three countries where all 25 Member States have either an embassy or a consulate: the People’s Republic of China, the United States of America and the Russian Federation.

The Commission proposes adopting a recommendation calling on the Member States to print Article 20 EC in the passports of all Community nationals as a way of reminding citizens of their rights. It also suggests publishing any measures connected with the implementation of Article 20 EC in the Official Journal.

As regards travel advice, each Member State issues advice to its nationals, giving its own assessment of the risk entailed, which may differ from that of other Member States. The possibility of coordinated presentation of the different advice given should be investigated.

Ensuring extensive protection of citizens

Article 20 of the EC Treaty obliges Member States to protect EU citizens as they would their own nationals. That said, the type of protection offered differs from State to State: citizens are therefore confronted with as many protection schemes as there are Member States. The Commission considers that differences between the various aspects of protection should be examined over the longer term, and intends to look into the possibilities of offering citizens similar protection, irrespective of nationality.

The European Commission wishes to explore the following courses of action:

  • Protecting European citizens working and living in third countries. The Commission suggests including provisions protecting Union citizens working and living in third countries in Member States’ bilateral agreements with third counties, in order to apply Decision 88/384/EEC as intended.
  • Protecting EU citizens’ family members who are not nationals of a Member State. Community nationals and their non-Community family members must be protected jointly, for instance, in the event of evacuation or repatriation in times of conflict. The Commission suggests extending consular protection to EU citizens’ family members who are nationals of a third country, either by amending Decision 95/553/EC or by means of a Commission proposal based on Article 22 of the EC Treaty.

The aftermath of the tsunami at the end of 2004 revealed the scale of the task of identifying and repatriating remains. Third-country local authorities can require a series of formalities, such as a mortal remains certificate or health and police certificates confirming death and causes of death, public health requirements concerning the coffin, or a certified translation of the administrative documents. The families of victims therefore have to cope with the complex procedures and costs of repatriation.

The European Commission considers it important to prevail on all Member States to accede to the Council of Europe Convention of 26 October 1973 on the transfer of corpses, which is designed to simplify administrative formalities for repatriating remains but which only fifteen Member States have ratified. Furthermore, the European Commission envisages setting up a European compensation system for the costs of repatriating remains. It also wishes to simplify procedures for financial advances.

Setting up “common offices” between Member States

Requests for protection should not cause any particular problem when dealing with individual situations, such as loss of documents. However, the situation may be different in the case of large groups of people in the wake of pandemics, acts of terrorism or military conflicts.

The European Commission considers that there needs to be a fair division of tasks between the Member States in cases of requests for assistance or repatriation by a large number of citizens whose own State has no representation. The Commission envisages setting up common offices between Member States and staff training to help streamline functions and save on the fixed costs of the structures of Member States’ diplomatic and consular networks. The functions performed by these common offices could be based on a system of deputising between Member States. In the long term, common offices could perform consular functions, such as issuing visas or legalising documents.

Inserting consent clauses in mixed agreements entered into with third countries

Finally, the Commission notes that implementation of Article 20 EC requires the consent of the third countries. It suggests inserting a consent clause in mixed agreements concluded with third countries and looking into the possibilities of getting the consent of third countries for the Union to exercise a duty of protection, via the Commission delegations, in cases relating to Community competence.

Any interested parties may contribute to this Green Paper until 31 March 2007.