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Franco Frattini

European Commissioner responsible for Justice, Freedom and Security

“The right to diplomatic and consular protection of Union citizens in third countries”

Public hearing: Diplomatic an consular protection (Centre Borschette)
Brussels, 29 May 2007

Strategic policy objective: effective consular protection in third countries. Diplomatic and consular protection is one of the strategic policy objectives of the Commission for this year. The ambition is to strengthen this right, which is a concrete expression of EU citizenship as recognised in Article 20 of the Treaty and enshrined in Article 46 of the Charter of Fundamental Rights of the European Union. The right to effective consular protection in third countries will become increasingly important, especially for citizens from the smaller Member States.

The right to consular protection: strengthening Union citizenship. I personally attach significant importance to reinforcing the right to consular protection, which will in turn strengthen Union citizenship.

Community action is necessary for several reasons:

Firstly, EU nationals make some 180 million trips each year to third countries and this number is likely to rise. A Eurobarometer survey shows that half of the EU citizens expect to travel to a non-EU country in the next three years.

Secondly, Member States do not all have consulates or embassies in all third countries. There are only three non-EU States where all Member States are represented: China, Russia and the United States of America. Moreover, a maximum of 10 Member States are represented in 107 third countries. No Member State is represented in, for example, the Bahamas or the Maldives.

Thirdly, events such as the 2004 Tsunami catastrophe in South East Asia, the 2005 terrorist attack in Bali and the civil war in Lebanon last year showed the shortcomings under the current situation. Thousands of EU citizens suddenly found themselves in need of urgent help in a third country in which their Member States were not represented.

Fourthly, consular protection is not only necessary in times of international crises, but also to solve individual problems. A Maltese tourist who looses his passport in Croatia or a Portuguese aid worker who is attacked and robbed in Cambodia would both have to rely on the assistance of other Member States since their own Member States are not represented in the third countries in question.

Fifthly, the Eurobarometer survey shows that Union citizens are not aware of the right to consular protection: only 23% of them had heard of the possibilities offered by Article 20. In addition, citizens have high expectations of Europe in this area: 17% of them believed that that they could seek protection from the European Commission delegations.

Finally, the Community acquis is very slim in this area. This is because Article 20 is not a legal basis allowing for a "normal" decision-making process. This also explains why the EC legal instrument on the protection for citizens of the European Union by diplomatic and consular representations, Decision 95/553/EC of 19 December 1995, is a Decision adopted by the Representatives of the Governments of the Member States.

The importance of Decision 95/553/EC. This Decision was - adopted in 1995 and entered into force in MS only seven years later following lengthy implementation procedures. - provides that every Union citizen, whose Member State has no accessible permanent representation in the third country, is entitled to consular protection of any Member State's diplomatic or consular representation as if he or she were a national of that State. This protection covers assistance in the event of death, serious accidents or illnesses, arrest or detention, assistance to victims of violent crime and the relief and repatriation of distressed Union citizens. This list is not exhaustive.

The Member States have also drawn up non-binding Guidelines on consular protection in third countries. The Guidelines, which were revised in June 2006, provide a framework for consular cooperation, especially in situations where the safety of Union citizens is endangered in third countries.

In this context, and in view of the obvious needs, the COM adopted a Green Paper on 28 November 2006 in which it proposed a number of actions to strengthen the right to diplomatic and consular protection; some of them to be carried out in the short term and others as part of a long-term strategy.

50 stakeholders have replied to the Green Paper including 18 Member States, civil society, individuals, academics, universities, lawyers and business associations. The overall response is very positive. It is particularly encouraging to see that many respondents not only agree with the proposals set out in the Green Paper, but urge the Commission to go further.

I will briefly comment upon some of four different topics addressed in the Green paper.

Four fundamental points of the Green Paper: I) The need for information; II) The scope of protection; III) Structure and resources; IV) The consent of third countries

I. The need for information

The Green Paper proposed a series of measures to ensure that citizens are fully informed about their right to consular protection.

The COM has taken the first step of launching an information campaign with the distribution of the poster you can see on this wall which explains in simple terms citizens' rights under Article 20. The COM started to send the poster to the national associations of travel agents in April this year. It will also be distributed to passport offices, embassies, airports, ports and railway stations.

Another suggestion put forward in the Green Paper was to use the "Europa" site to publish information on consular protection in a user-friendly way. This idea was very well received by the respondents.

The proposal in the Green Paper to publish and up-date information and contact details on the Member States' representation in third countries, with the help of the Member States, was very well received. One government recalled that this information is already collected, but that it could be made more visible. Another government voiced concerns that this might create a disproportionate workload for Member States with large consular networks.

The Green Paper proposed printing Article 20 in all passports to remind citizens of their rights, as already suggested in Michel Barnier's report of May 2006 "For a European civil protection force: Europe aid". This idea encountered considerable support. Some respondents suggested including additional information, e.g. the web-site address where EU citizens would have access to more information on these questions. Some Member States were concerned about the cost and recalled that they had recently issued new passports to incorporate biometric standards. One solution to this could be to include a "sticker" in the existing passports reminding citizens of their rights under Article 20.

The suggestion set out in the Green Paper to coordinate the presentation of travel advice met with mixed reactions. Several stakeholders were in favour of creating a common, easily accessible web-site with links to the different Member States' travel advice. Several Member States argued that travel advice should not be harmonised, since persons of different nationalities do not necessarily face the same risks in third countries. I would like to clarify in this context that the Green Paper did not propose to "harmonise" Member States' travel advice, but merely to coordinate their presentation.

One of the main problems in this area is the general lack of transparency. The suggestion to publish the implementing measures, in particular the Guidelines on consular protection, in the Official Journal met with large support. Many wanted to go further and publish them also by other means, using national media and the COM communication policy. It was also suggested to make the Guidelines on consular protection legally binding.

II. The scope of protection

In view of the different standards of protection, the Green Paper suggested to explore the possibility of offering citizens similar protection irrespective of their nationality.

I am glad that this proposal was endorsed by several stakeholders, e.g. the Economic and Social Committee, which considered that the scope and legal basis for consular protection should be harmonised as soon as possible in order to prevent "consular shopping".

Whilst Article 20 requires each Member State to protect other EU citizens on the same conditions as its own nationals, it does not harmonise the national laws on diplomatic and consular protection. The replies to the Green Paper showed that the scope and legal force of the national arrangements vary between Member States. It was even argued that there is no legal obligation for a State to exercise consular assistance or exercise diplomatic protection and that, although a high level of protection could be offered to nationals, the same protection could not be offered to other EU citizens. The comments from two governments for example raise a fundamental question with regard to the interpretation of Article 20, the purpose of which is to ensure non-discrimination on the basis of nationality.

The Green Paper made a number of suggestions to extend the scope of consular protection to matters not explicitly covered by Decision 95/553/EC.

One suggestion was to extend consular protection to family members of EU citizens who are nationals of a third country. This approach has traditionally been applied in the area of free movement of EU nationals where secondary Community law, also applies to third country family members who accompany and join Union citizens moving to another Member State, extending to them the right to equal treatment. The majority of stakeholders supported this suggestion, although some underlined the need for clarification, for example on the scope of protection and the definition of "family member". Certain Member States, questioned the legal basis for this and advocated a flexible, pragmatic approach.

Certain respondents considered that the protection should not be limited to EU nationals and their family members, but that long-term residents, persons of dual nationality, stateless persons and recognised refugees should also be entitled to protection against serious violations of fundamental rights.

The Green Paper proposed several measures to facilitate the repatriation of mortal remains from a third country, including a recommendation to Member States which have not ratified the 1973 Strasbourg Convention on the transfer of corpses to accede to it.

The Green Paper suggestion to simplify the procedures for repaying financial advances, was received positively and sparked several proposals, such as the idea to introduce a simple system of balancing debts between Member States.

Although not explicitly mentioned in the Green Paper, several stakeholders raised the question of the exact scope of Article 20. Some Member States claimed that Article 20 and Decision 95/553/EC do not concern diplomatic protection, but only consular protection. Whilst it is true that Decision 95/553/EC clearly refers to consular protection, the wording of Article 20 seems to leave room for a wider interpretation. I am sure that today's discussions with our distinguished guests will shed further light on this matter.

III. Structures and resources

The Green Paper proposed to create common offices to increase efficiency and save costs. It proposed to set up offices initially in four experimental areas with many European tourists and a low representation of Member States: the Caribbean, the Balkans, the Indian Ocean and West Africa. This idea was already put forward in the report presented by Michel Barnier in May 2006. The aim is to streamline the functions and save on the fixed costs of the structures of Member States' diplomatic and consular networks. The offices could be housed either in one or several national representations or in a COM delegation, if useful.

The proposal to set up common offices was positively received by the majority of respondents. Several Member States referred to the existing arrangements of co-location whereby Member States share the same premises as a means to bring down costs and improve coordination.

The concept of "Lead State" was not mentioned in the Green Paper, but was invoked by several Member States. Under this approach, which is currently discussed in the Council framework, the Lead State, in close cooperation with the Presidency, would take responsibility for unrepresented EU nationals in third countries. COM delegations could usefully provide elements of logistical support to MS such as office accommodation and use of their existing transport resources, according to need as assessed by Lead State. This idea will be examined in the light of the outcome of this public consultation.

The idea to pool resources to compensate for the inadequate consular presence in some third countries already exists in the field of the common visa policy where significant progress has been made through the Common Consular Instructions and the "Common Visa Application Centres". The inauguration of the first EU "Common Visa Application Centre" in Moldavia, hosted in the premises of Hungarian Embassy last month, was a landmark. To see that Member States can share the premises, staff and equipment in a true spirit of solidarity and partnership can serve as inspiration for future work in this area.

IV. The consent of third countries

As a general principle of public international law, the protection of a citizen in a third country by a State other than the State of nationality requires the consent of the third country. Paragraph 2 of Article 20 therefore requires the Member States to start international negotiations to secure the protection mentioned in paragraph 1.

The proposal in the Green Paper to include a "standard consent clause" in future agreements with third countries met with mixed reactions. Some Member States questioned the need for this as long as third countries had been notified according to Article 8 of the Vienna Convention on consular relations and had not objected. However, the replies did not specify how these notifications had taken place. Other stakeholders were in favour of a "consent clause", on the basis that a unilateral notification would be insufficient since the third countries could change their mind at any time. The exact formulation and scope of the standard clause must of course be discussed, but the Commission believes that the consent of third countries by way of an international agreement would facilitate the implementation of Article 20.

Article 20, which was introduced with the Maastricht Treaty in 1992, has so far remained quite underdeveloped in comparison with the other "citizenship rights".

Time is now right. I am convinced that the time is now ripe to give new impetus to this right. This is a great challenge which requires innovative thinking and an ambitious long-term strategy. I call on your expertise to build this strategy together.

Today's discussions: the first step towards reinforcing this important right. This hearing will help the COM to develop the initiatives to be adopted in the short, medium and long-term. I am confident that today's discussions will be the first step towards reinforcing this important right. Encouraged by the positive reactions to the Green Paper, I can already announce that the COM intends to present a strategic initiative to be presented by the COM in the course of 2007. It is my intention to include in this initiative a proposal for a Recommendation to Member States to print Article 20 in the passports.

The most important is to translate proposals in concrete actions.

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