[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 5.12.2007

SEC(2007) 1600

COMMISSION STAFF WORKING DOCUMENT

Accompanying document to the COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Effective consular protection in third countries: the contribution of the European Union Action Plan 2007-2009 IMPACT ASSESSMENT

{COM(2007) 767 final}{C(2007) 5841 final}{SEC(2007) 1601}

TABLE OF CONTENTS

1. Procedural issues and consultation of interested parties 3

2. Problem definition 4

3. Objectives 16

4. Policy options 18

5. Assessment of the impacts of policy options 20

6. Comparison of the policy options and elaboration of the preferred option 42

7. Monitoring and Evaluation 46

ANNEX 1 Summary of the replies to the Green Paper

ANNEX 2 Summary report of the public hearing

ANNEX 3 Answers to questionnaires

ANNEX 4: Representations of Member States in third countries

ANNEX 5: Number of citizens travelling to and living in third countries

Impact assessment

Lead DG: Justice, Freedom and Security

1. PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES

Article 20 of the Treaty establishing the European Community ("Article 20 EC") entitles Union citizens located in a third country in which their Member State is not represented to protection by the diplomatic and consular authorities of any Member State represented, under the same conditions as the nationals of that State. It requires Member States to establish the necessary rules among themselves to secure this protection. The same right is enshrined in Article 46 of the Charter of Fundamental Rights of the European Union. This impact assessment examines policy options for rendering this right more effective.

Diplomatic and consular protection of Union citizens in third countries is one of the strategic policy objectives for the Commission in 2007 which states:[1] " Given the increasing number of EU citizens travelling abroad and therefore likely to resort to diplomatic or consular protection in case of a problem, the low level of information on their rights is not acceptable."[2]

This report is based on consultations with Member States and other stakeholders. The Commission launched a wide public consultation on 28 November 2006 with the publication of a Green Paper on diplomatic and consular protection of Union citizens in third countries[3] which proposed a number of possible actions with a view to enhancing the protection of Union citizens in distress in third countries. The Commission received 50 replies to the Green Paper from a wide range of stakeholders[4] (Annex 1) . Civil society, other European institutions and individuals considered it essential to give impetus to Article 20 EC as a tangible expression of Union citizenship which needs to be developed. Several Member States called for caution and recalled that they have the primary responsibility for ensuring diplomatic and consular protection to their nationals. The European Economic and Social Committee has given its opinion on the Green Paper.[5] The opinion of the European Parliament is expected in December 2007. A summary report of the public hearing which took place on 29 May 2007 is attached (Annex 2) .[6]

This impact assessment has been prepared on the basis of an external study ordered by the Commission. The problem, objectives and policy options have been assessed on the basis of a report prepared by the contractor in close consultation with the Commission. Questionnaires were circulated to 27 Member States, consulates in third countries, NGOs and national associations of travel agents and tour operators. Replies were received from 16 Member States,[7] (2 consulates, 1 NGO and four national associations of travel agents and tour operators. The Commission sent a letter to the members of the Council working group on consular affairs ("the COCON group") asking them to make their best efforts to submit their replies by the end of August 2007 to enable the Commission to present its initiative on the basis of correct and reliable data. Meetings of an inter-service steering group took place on 27 June and 25 July 2007 in which representatives of the Secretariat-General, DG JLS, DG RELEX, DG RTD and DG COMM participated.

The Impact Assessment Board issued its opinion on the draft Impact Assessment report on 7 September 2007. Following this opinion, the report was substantially redrafted, in particular to better demonstrate the actual magnitude of the problem (point 2.1). It explains the reasons for the absence of an exact number of individual cases and gives real-life examples reported during the public consultation. The section on problem definition was reinforced to clearly distinguish between legal issues and other issues (point 2.2). The analysis of the necessity and added value of EU action was revised (point 2.8) and a more detailed analysis of the necessity and added value has been inserted for each of the proposed actions in the preferred option (points 5.2 and 5.3). Finally, the report was substantially amended to provide an estimate of the cumulative costs for all actions selected in the preferred option (points 5.2 and 5.3). Following the second opinion of the Impact Assessment Board of 28 September 2007, the report was amended as regards the size of the problem (point 2.3) and the monitoring and evaluation (point 7).

2. PROBLEM DEFINITION

2.1. Background

The principle of solidarity enshrined in Article 20 EC is an essential element of Union citizenship ensuring all Union citizens to protection in a third country where their own Member State is not represented.

The 27 Member States already apply high standards of protection. Nevertheless, more can be done to render Union citizens' fundamental right to consular and diplomatic protection in third countries even more effective. The intention is not to encroach upon the Member States' competence in this field, but on the contrary, to assist the Member States through a series of actions which have a true added value. Consular protection is a task for the national Ministries of Foreign Affairs. Member States' diplomatic and consular representations are currently limited in many third countries.

To date, all 27 Member States are represented in only three of the 166 third countries: the People's Republic of China, the Russian Federation and the United States of America.[8] There are 18 countries in which no Member State is represented, 17 countries in which only one Member State is represented and 11 countries in which two Member States are represented. This includes a number of popular tourist destinations for Union citizens (e.g. the Bahamas, Barbados, Madagascar, the Maldives and the Seychelles). The Member States' diplomatic and consular representations are especially limited in Central America and the Caribbean[9], Central Asia[10] and Central and West Africa[11].

Based on the 2006 list of the Secretariat General of consular offices in the world, there are currently 1,436 Member States’ consular representations in third countries. The country with the highest number of representations is France with 132 followed by Germany with 122 and the UK with 115. The countries with the lowest number of representations outside the EU are Estonia, Latvia (both 9), Malta (8) and Luxembourg (7) (Annex 4) .

According to the questionnaires submitted by Member States, the most common problems encountered by citizens travelling to third countries are loss of passport, accidents, theft, death, loss of financial resources, crime, sudden sickness and detention. EU citizens working and living in third states are usually more accustomed to the dangers of their host country and do not carry documents and large sums of money around, so loss and theft of passports or money is less common. Nevertheless, assistance is needed in the case of accidents and serious illness or for "day-to-day" services such as renewing passports or requesting birth certificates.

The fees for the different consular protection services vary between Member States. Some Member States, e.g. the U.K., base the fees on the costs of providing the consular assistance. Other Member States offset some of the costs and charge less than the full costs to the beneficiaries of consular protection. As a result, the costs vary between Member States' consulates. Obtaining an emergency passport from a Finnish consulate costs €135. The equivalent cost is €108 for Sweden, €100 for Ireland and €30 for Denmark. A certificate for the transport of corpses or ashes issued by the French authorities costs between € 25-40. The same certificate issued by the Italian consulates costs €30, €20 if issued by German consulates and €60 if issued by Dutch consulates. The consular fee for a death registration and certification is €143 for British consulates and €10 for Czech consulates. The most striking example is the cost of an emergency travel document provided by an Italian consulate which is free for Italians whilst the same document for other EU citizens costs €30.

2.2. The scope of the problem

It is estimated that 8,7% of the EU citizens travelling outside the EU travel to third countries where their Member States are not represented. Based on the number of trips made annually by EU citizens, it is estimated that the number of "unrepresented" EU nationals travelling to third countries each year is around 7 million. It is estimated that around 2 million EU expatriates live in a third country where their Member State is not represented (see below section 2.8). These numbers are likely to grow. The public consultation showed certain shortcomings under the current situation.

First, the majority of citizens are not aware of the existence and contents of Article 20 EC. A Eurobarometer survey carried out in 2006 showed that only 23% of the citizens were aware of this right.[12] The situation is made worse by the fact that there is no easy access to a complete and up-to-date list of the contact details of other Member States' representations in third countries.[13] The information provided on the web-sites of the Ministries of Foreign Affairs is not always sufficiently detailed in this respect. Although several web-sites inform citizens of their right to protection by other Member States, there is generally no specific reminder of this right as regards the third countries where the Member State is not represented. Instead, citizens are often advised to contact the Member States' nearest consulate in another third country.[14]

Second, the legal framework around Article 20 EC needs to be clarified. The scope and legal force of consular protection vary from one Member State to another depending on the respective national rules. One concrete example invoked during the public consultation was the difficulties in establishing the eligibility of some of the non European family members of Union citizens during the evacuation from Lebanon in 2006. Another example is the inconsistent assistance given to Union citizens who are held in immigration detention in Thailand due to the expiry of their visa or because their passport and travel document have been stolen. It appears that some Member States would provide new identity documents and financial advances within a few weeks whereas it can take up to 6 months to obtain these documents from other Member States. The existing acquis, Decision 95/553/EC, is non-exhaustive and does not explicitly cover important aspects, such as the repatriation of mortal remains or the assistance to Union citizens' family members who are third country nationals.

Another legal element that needs clarification is the consent of third country authorities. The consultations with the Member States show that the majority of them obtain the consent of third country authorities to protect citizens of another State through a unilateral notification. However, the absence of explicit consent of third countries does not ensure legal certainty and transparency for the citizens since it does not prevent third countries from unilaterally changing their mind.

Third, there is a need to compensate for Member States' limited consular presence in third countries by favouring the pooling of resources, burden-sharing and exchange of best practices. It emerged from the public consultation that Member States already cooperate in third countries, but that more can be done in this respect to increase coverage in third countries and thereby ensure protection to Union citizens.

It is difficult to provide exact numbers on the number of individual cases concerned since most Member States do not keep such records. However, the following estimates can be made on the basis of the replies given by 11 Member States.[15] It is estimated that around 0,53%[16] of EU citizens who travel to third countries need consular assistance,[17] which would amount to approximately 425.0000 requests for consular services by EU citizens per year in third countries.[18] It is estimated that at least 37.000 of these cases come from Union citizens whose Member States are not represented in the third country.[19] The U.K. reported 1.815 cases of assistance to unrepresented Union citizens in 2003-2004 and 484 cases in 2005-2006. This relatively low number might be due to the limited knowledge by citizens. Citizens cannot invoke their rights under Article 20 EC unless they know that they have such a right.

The Commission has been informed of a limited number of cases where Member States have allegedly not fulfilled their obligations under Article 20 EC, e.g. by failing to issue an emergency travel document to an unrepresented Union citizen in a third country. To date, the Commission has not received any formal complaint from citizens about alleged violations of Article 20 EC. Previous experience, e.g. in the field of passenger rights, has shown that information campaigns may lead to an increase in the number of complaints.

It is necessary to act now since the demand for consular protection will almost certainly increase in the future as Union citizens become more aware of their rights under Article 20 EC and as a result of the increase in travelling to third countries. Natural disasters, terrorism attacks and political instability are other reasons for concern.

The aim of the Action Plan is to propose actions aiming to give substance to Article 20 EC and to address present and foreseeable shortcomings in this area.

There are four specific issues that require action at EU level.

2.3. Poor awareness of EU citizens about their right to diplomatic and consular protection in third countries

A Eurobarometer survey showed an overall lack of awareness by EU citizens of the right to consular protection stipulated in Article 20 EC. In 2006, only 23% of EU citizens were aware that in case of an urgent need for help (for example, in case of loss of a passport, arrest, or natural disaster) in a third country where their own country has no embassy or consulate, they have a right, under Article 20 EC, to receive the protection of a diplomatic or consular authority of any other EU Member State.[20] The most widely held perception was that in such cases people must contact their own Ministry of Foreign Affairs (34%). People were equally divided about the remaining options; with 16% believing that they had to use the services of a travel agent while 17% thought that they had to use the assistance from the Commission delegation in that country for administrative issues in case of emergency.

This lack of awareness of the right to diplomatic and consular protection is a potential cause of serious stress, distress and additional costs for EU citizens.

2.4. Unclear scope of protection under Article 20 EC

Differences under national legislation[21]

Article 20 EC requires each Member State to protect "unrepresented" Union citizens on the same conditions as those granted to its own nationals. Consequently, EU citizens are potentially faced with 27 different legal and practical arrangements for consular protection. The scope and legal force of consular protection vary between Member States (Annex 3 table 3).

Out of the sixteen Member States that replied to the questionnaire, six Member States recognise the right to consular assistance under national law (Austria, Denmark, Estonia, Finland, Lithuania, Portugal and Slovenia), three Member States under international law and bilateral consular conventions (Bulgaria, the Netherlands and Greece) while two Member States have this right inscribed in their national constitution (Poland and Slovakia). Certain Member States do not confer a right to consular protection under national law.

Out of the Member States that replied to the questionnaire, nine recognise the right of appeal, in different forms, in case of a refusal to provide consular protection (Estonia, Finland, Denmark, Lithuania, Poland, Portugal, Slovenia, Slovakia and the U.K) (Annex 3 table 4).

Only a limited number of Member States provide protection to family members who are third country nationals. Similarly, only a few Member States provide consular protection to third-country nationals who are long term residents in that State.[22]

These differences may deprive Article 20 EC of its full effect.

Unclear scope of Decision 95/553/EC

Decision 95/553/EC[23] outlines possible action by Member States in cases such as: arrest or detention; accident or serious illness; an act of violence against a citizen; death; help for a distressed citizen or his repatriation. It also covers the procedures for financial advances to citizens in difficulty. The above list is not exhaustive. The Decision states that a citizen can also apply for protection in other circumstances, in which, in so far as it is within the State's powers, immediate assistance should be given to a national in difficulties.

The fact that Decision 95/553/EC is non-exhaustive may lead to legal uncertainty insofar as it is not clear whether it applies to matters that are not explicitly included in its scope. It is e.g. unclear whether it applies to the identification and repatriation of mortal remains. Moreover, it does not explicitly apply to Union citizens' family members who are third country nationals. Finally, the procedure foreseen for the repayment of financial advances is complex.

Moreover, Member States have transposed Decision 95/553/EC into their national legislation at different times and in different ways (e.g. through laws, circulars, Constitution). It appears that some Member States have not yet transposed Decision 95/553/EC into national legislation and that others have not published their transposition of Decision 95/553/EC (Annex 3 table 3).

2.5. Limited representation of Member States in third countries and lack of clear burden-sharing between Member States

As pointed out above (point 2.1), all 27 Member States are represented in only three out of 166 third countries. The lack of representation was accentuated by the latest enlargements of the EU. The annual budget for national diplomatic and consular representations varies from country to country. Overall, resource-related problems are more acute for smaller Member States. However, bigger Member States might not have sufficient consular resources, in terms of staff and languages, to provide adequate assistance to citizens of several other Member States.

The consultation with Member States shows that burden-sharing arrangements are relatively limited for the time being.[24] Certain Member States use co-location arrangements and joint missions in third countries as a means to bring down costs and improve coordination.[25] In Dar es Salaam and Abuja, the Commission delegations share the premises with certain Member States. Each partner owns and pays its part of the building and the common costs are shared on a pro-rata basis.

The EU Member States are currently putting into place the "Lead State" framework as a form of consular cooperation in times of crisis in third countries where few Member States are represented.[26] One or several Member States are designated as a "Lead State" in the third country to ensure the protection of unrepresented Union citizens on behalf of the other Member States. In case of evacuation, the "Lead State" is responsible for the evacuation of all Union citizens to a safe place. Although the "Lead State" arrangement is a positive step towards a more effective burden-sharing, it is not sufficient, since it is limited to crisis management.

2.6. Lack of consent of third countries to secure protection under Article 20 EC

The implementation of Article 20 EC requires the consent of the third countries to secure protection to unrepresented EU citizens by the diplomatic and consular authorities of another Member State. It is a general principle of international law that the protection of a citizen of one State by another State is subject to the third country’s consent.[27]. Article 20 EC provides that Member States shall "start the international negotiations required to secure this protection". Each Member State is therefore expected to initiate bilateral negotiations with third countries. However, it is unclear to what extent Member States have obtained the consent of third countries and, if so, by what means. The consultations with the Member States showed that the majority of the countries obtain the consent of third country authorities to protect citizens of another state through simple notification.

2.7. Other issues

It emerged during the public consultation that Article 20 EC is subject to different interpretations. Certain Member States consider that this provision applies to diplomatic as well as consular protection whereas others claim that its scope is confined to consular protection. Diplomatic protection is commonly understood as a state-to-state process by which a state may bring a claim against another state in the name of a national who has suffered an internationally wrongful act committed by the other state and the individual has exhausted all available local remedies. Conversely, consular protection or assistance is the provision of support and assistance by a state to citizens in distress in another state, either its nationals or those nationals to whom it has agreed to provide assistance. This includes e.g. assistance in case of serious accidents or illnesses, criminal charges or detention and lost travel documents. The option of reinforcing and clarifying the scope of diplomatic protection was considered, but has been left out at this stage due to a lack of data on current practices and problems in this area. It is also a politically sensitive question since several Member States claim that diplomatic protection falls outside the scope of Article 20 EC. It appears that the majority of cases in which citizens need assistance concern consular protection.

2.8. The size of the problem

Numbers of EU citizens travelling in third countries

The statistical data as regards the number of EU citizens travelling in third countries varies. The COCON working group estimated in 2006 that EU citizens make some 180 million trips to third countries each year. This can be compared to Eurostat[28] which estimated the number of trips to around 80 million trips in 2005 (including trips to Romania and Bulgaria), corresponding to 30% of all foreign trips made by EU citizens. The Eurostat estimates have been used for the purpose of this report.

According to Eurostat, 66 million trips were made for leisure and 14 million for business reasons. The country generating the largest number of trips to third countries was Germany with over 24 million trips followed by the U.K. with some 12 million trips. The Member State with the highest percentage of trips outside the EU was Slovenia with 68% while the lowest was Luxembourg with 12%. The numbers and percentages of all trips for each Member State are given in Annex 5 . The major destinations outside the EU were the U.S., Turkey and Switzerland.

The number of trips made by EU citizens to third countries has increased over the last five years and is likely to increase further. In 2005, EU residents spent more than €86.5bn outside the EU (compared to €81.2bn in 2004 and €77.3bn in 2003), making them the biggest spenders in the world[29]. The World Tourism Organization (UNWTO) forecasts that international tourism will continue growing at an average annual rate of 4 %. With the advent of e-commerce, tourism products have become one of the most traded items on the internet. If the costs of international travel remain low in real terms, the numbers are likely to increase even more rapidly in the years ahead.

Number of citizens living and working in third countries

It is difficult to estimate the exact number of EU citizens living and working in third countries since citizens are not obliged to register when moving abroad. The association "Europeans throughout the World" (ETTW) estimates that between 30 million and 50 million EU citizens are long-term residents in non-EU countries. For 10 countries, specific figures (which are often estimates) have been accessed[30] (Annex 5). From this data, an estimate of 30 million EU citizens living abroad has been made[31]. The country with the biggest community living outside the EU is the U.K. with more than 11 million nationals in 2004-2005, while the country with the smallest community living in third countries is Estonia with 27,000 citizens in 2005. The number of nationals working and living in third countries increased for all countries for which data have been gathered with the exception of the UK. It is reasonable to assume that there will be a gradual increase in the number of EU citizens living abroad.

The extent of ‘unrepresentation’ of EU citizens travelling and living in third countries

Citizens of Germany, France and the UK, each of which has more than 100 consulates, are less likely to travel to or live in third countries where their Member State is not represented than citizens from Lithuania, Estonia, Malta and Latvia who have a high probability of travelling to countries where their Member State does not have a representation.

Figure 1 – degree of “unrepresentation’ for each Member State [32]

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It is estimated that 8,7% of EU citizens travelling outside the EU travel to countries where their Member States are not represented. If this proportion is applied to the number of trips made annually by the citizens of the EU (80,330,063), then the number of unrepresented EU citizens travelling to third countries each year is around 7 million.

It is estimated that around 2 million EU citizens are living in a third country where their Member States are not represented[33]. On average, between 5,7% (assuming that there are 40 million EU citizens living outside the EU) and 7,3% (assuming that there are 30 million EU citizens living outside the EU) of the EU population living in a third country does not have a representation.

2.9. Does the EU have the right to act?

The Member States expressed different views during the public consultation. Certain Member States welcomed increased cooperation and supported the suggestions made in the Green Paper (Estonia, Lithuania, Latvia, Luxembourg and Denmark). Other Member States questioned the need for Community action in this field (e.g. United Kingdom, France, Ireland, Austria, Portugal), arguing that diplomatic and consular protection is primarily the responsibility of the Member States and that the EU does not have a legal basis to act in this field. These reactions show that Community action in this field, which has traditionally been considered as a prerogative of the Member States, is not yet accepted by all Member States.

Article 22 of the EC Treaty allows the Commission to propose provisions to add or strengthen citizenship rights according to a burdensome procedure requiring the constitutional ratification by all Member States. The entry into force of the Reform Treaty will provide a clear legal basis for EU law in this area. The modified wording of Article 20 EC enables the Council to adopt directives "establishing cooperation and coordination measures necessary to facilitate such protection".

If Member States act alone, there is a risk that progress will be slow. As an illustration, Decision 95/553/EC took 5 years to enter into force due to the ratification procedures of the then 15 Member States. Without Community action, the problems identified would not be resolved and the policy objective of ensuring citizens' fundamental right to diplomatic and consular protection outside the EU would not be fulfilled. Community action is therefore necessary in the four areas invoked in this section.

First, Community action is necessary to effectively raise Union citizens' awareness of Article 20 EC and of its implications. Despite several information campaigns at national level and a brochure produced by the Council Secretariat, the vast majority of EU citizens remain unaware of their right to diplomatic and consular protection. Information campaigns carried out at EU level are likely to be more efficient in terms of awareness-raising. The printing of Article 20 EC in all new passports would be a simple and efficient means.

Second, it is necessary to reinforce and clarify the scope of Article 20 EC and ensure that Union citizens receive a similar level of protection. In the absence of clear rules, Union citizens cannot be sure to receive a minimum level of assistance. This would not only deprive Article 20 EC of its full effect, but it could ultimately encourage "consular shopping" and put a higher burden on Member States which offer a higher level of protection than others.

Third, to ensure the effective protection on the ground of unrepresented citizens in third countries, it is necessary to improve the current cooperation and coordination arrangements. This can be brought about by the pooling of resources and by clear burden-sharing rules. The current co-location arrangements between Member States in third countries are positive. However, these cases are still very limited. The "Lead State" concept that is currently put in place by Member States is also a positive step towards more effective burden-sharing, but would primarily operate in crises situations in third countries where only a few Member States are represented. Article 20 EC is however not limited to crises situations, but applies also to individual assistance, such as loss of passports. Increased cooperation and more effective burden-sharing (e.g. through common offices) would be in the interest of both smaller and bigger Member States. It would be useful for Member States with limited consular representations (such as Luxembourg, Malta and the Baltic States) since it would help them to ensure the protection of their citizens. An effective burden-sharing is likewise important for Member States with a wide consular network in third countries (such as France, Germany and UK) to ensure that these countries do not carry a disproportionate burden.

Finally, Community action would be necessary to effectively ensure the consent of third countries. The inclusion of a consent clause in future "mixed" agreements concluded with third countries would effectively ensure legal certainty and transparency for the Member States as well as for the third countries and the citizens. It would prevent third countries from unilaterally changing their mind. It would finally dispense Member States of the burdensome task of unilaterally notifying each third country individually.

3. OBJECTIVES

3.1. General policy objectives

There are four general policy objectives:

1. To increase awareness of EU citizens of their fundamental right to diplomatic and consular protection when they are outside the EU;

2. To reinforce and clarify the scope of consular protection of unrepresented EU citizens and their family members and to ensure that all EU citizens receive a similar level of protection;

3. To ensure more effective protection on the ground of unrepresented EU citizens in third countries;

4. To ensure the consent of third countries to secure protection under Article 20 EC.

3.2. Specific and operational policy objectives

The specific and operational objectives relating to each of the four general objectives are considered in turn below.

General objective 1: To increase awareness of EU citizens of their fundamental right to diplomatic and consular protection when they are outside the EU |

Specific policy objective:

- To increase awareness of the rights under Article 20 EC among EU citizens visiting third countries in which their Member States are not represented.

Operational policy objective:

- To disseminate information about citizens' rights under Article 20 EC by different means (posters, passports, website etc)

General objective 2: To reinforce and clarify the scope of consular protection of unrepresented EU citizens and their family members and ensure that all EU citizens receive a similar level of protection |

Specific policy objectives:

- To reduce variations in procedures for unrepresented EU citizens receiving consular protection in third countries

- To reduce variations in the scope of consular protection for EU citizens

- To reduce emotional stress and other costs of delays and complications in identifying and repatriating the remains of EU citizens

- To minimise unnecessary distress, costs and delays to EU citizens who have been deprived of financial means

- To reduce the emotional and other costs of third country family members of EU citizens who would otherwise not receive consular protection

Operational policy objectives:

- To improve standards and reduce variations as regards access to consular protection, the scope of protection and financial assistance.

- To ensure consular protection for family members of EU citizens who are not EU nationals

General objective 3: To ensure more effective protection on the ground of unrepresented EU citizens in third countries |

Specific policy objectives:

- To increase the number of unrepresented EU citizens who, when in need of protection, successfully access consular services from other Member States’ representations

- To improve the consular services provided to unrepresented citizens

Operational policy objectives:

- To provide for the exchange of best practices and training

- To set up common offices

- To ensure effective and transparent rules on burden sharing

General objective 4: To ensure the consent of third countries to secure protection under Article 20 EC |

Specific policy objectives:

- To ensure the consent of third countries that EU citizens can be assisted by any Member State represented in their country.

- To ensure consent of third countries for the Community to exercise protection in areas of Community competence via Commission delegations.

Operational policy objectives:

- To increase the instances of consent of third countries by way of mixed agreements to secure protection under Article 20

- To increase the instances of consent of third countries by way of bilateral agreements to secure protection under Article 20

4. POLICY OPTIONS

This Section elaborates the policy options that could address the problems in the current situation and contribute to the achievement of the policy objectives. The policy options include 26 separate actions. The actions have been grouped into four policy options:

Policy Option 1: A status quo policy option involving no new actions;

Policy Option 2: An option including mainly non-legislative actions that should be relatively inexpensive, uncontroversial and straightforward to implement in the short term;

Policy Option 3: An option including all of the actions of policy option 2 plus additional non-legislative and legislative actions that would require further discussion and would entail some expenditure; and

Policy Option 4: An option including all actions of policy options 2 and 3 plus a number of additional actions that are legally and technically complex and need more examination and likely to be long term in nature.

In practice defining the policy options in this way has been iterative. The policy options are outlined in Table 4.1. The actions have been numbered and classified according to whether they: would provide information to citizens; clarify the scope of protection; influence the relevant structures of Member States; and obtain the consent of third countries. They are also grouped as to whether they are legislative or non legislative.

Table 4.1 – Overview of Policy Options

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5. ASSESSMENT OF THE IMPACTS OF POLICY OPTIONS

Each of the policy options and their component actions has been assessed against the following criteria.

- The impact with respect to the four general policy objectives – i.e. how far does the action pursue each objective?

- To what extent are relevant fundamental rights ensured and promoted? The following rights of the Charter of Fundamental Rights are relevant: the right to diplomatic and consular protection (Art. 46), right to human dignity (Art. 1), the right to respect for private and family life (Art. 7).

- What are the main costs linked to the implementation of the action? and

- Who will bear these costs?

The views expressed by Member States and other stakeholders have also been taken into account.

For each action, the anticipated impact has been assessed on an ‘intuitive’ scale of positive impact from one to five (five being the best score) with respect to the four policy objectives.

The policy options are a combination of actions. Most of the actions are complementary rather than alternative means to achieve the same ends. In these circumstances it is necessary to consider each action individually.

5.1. Policy Option 1 – Status quo

No changes are made to the current situation, i.e. the following EU level measures (legislative instruments) are maintained:

- Article 20 EC and Article 46 of the Charter of Fundamental Rights.

- Decision 95/553/EC

- The Guidelines on consular protection

The status quo provides important rights. However in the absence of action to ensure that citizens are aware of their rights and that Member States provide for them, Article 20 EC might be deprived of its full effect and the policy objectives would not be fulfilled.

5.2. Policy Option 2

This policy option foresees the adoption of legislative and non-legislative actions designed to increase the awareness of EU citizens of their right under Article 20 EC. These actions would not impose compulsory action on Member States, but rather depend on voluntary action and cooperation by national governments. Legislative action is limited to a non-binding Recommendation to Member States to print Article 20 EC in passports. This option also includes awareness raising campaigns for EU citizens.

This policy option would entail some financial costs which would be borne by the EU and the Member States.

Each action in the Policy Option is considered in turn:

Action 1: Recommendation to Member States to print Article 20 EC in passports

This action is designed to complement the Commission Communication "Towards an effective diplomatic and consular protection of Union citizens in third countries". It would be effective in increasing the awareness of EU citizens of their right to protection as enshrined in Article 20 EC. It is estimated that between 60% -70% of European citizens are passport holders[34] and thus the overall number of passport holders in Europe is between 295 and 344 million.

The printing of Article 20 EC in new passports issued after 1 July 2009 would not entail any significant cost[35]. It is estimated that around 12% of existing passports (35-41 million) are renewed annually in the EU. If no other action were taken, it would take between 8 and 10 years before all EU passports contained Article 20 EC.

In order to inform citizens whose passports are issued without a reference to Article 20, it is recommended to distribute a sticker. To assist the Member States, the Commission will make available stickers for voluntary distribution. It is for the Member States to decide if and how to distribute them. Each Member State would determine the competent authorities for distributing the sticker in accordance with national law. To ensure that the passports are not invalidated, it is recommended to affix the sticker on the outside rear cover of the passport.

The sticker would be self-adhesive and very simple (e.g. there is no need to include a security or anti-forgery chip because the sticker does not provide new rights or entitlements) and printed in all Community languages. There would be no extra costs for translation, since Article 20 EC is already translated in all Community languages. The estimated cost for the production of stickers is approximately €0,01 per piece (ca €10.000 for 1 million stickers).

It is estimated that approximately 50 million stickers would be required per year (based on the assumption that the estimated 80 million trips per year are made by ca. 50 million persons). The estimated total cost, to be borne by the EU, would then be €500.000 per year.

Action 2: Publish measures connected with the implementation of Article 20 EC

For the sake of transparency, citizens should be properly informed of their rights under Article 20 EC. The existing non-binding Guidelines on the application of this Article[36] and other implementing measures should therefore be published in the Official Journal and other places (e.g. the future EU web-site and the national web-sites of the Ministries of Foreign Affairs). This action would complement Action 1. The costs of this action would be very low and part of the costs for Action 3.

Action 3: Set up an EU website on consular protection

An EU website on consular protection on the "Europa" site could play a central role in fostering the awareness of EU citizens of their rights under Article 20 EC. Practical information, which is currently not easily available to citizens, such as up-dated contact details of the Member States' embassies and consulates in third countries could be made available this way. A future EU telephone number could be displayed as well as user-friendly explanations of Article 20 EC and Decision 95/553/EC. Links to the web-sites of the Member States' Ministries of Foreign Affairs’ websites and the web-site elaborated by the Council Secretariat could be established as well as links between the Member States' different sets of travel advice.

The costs will depend on the complexity of the website and other factors. A rough estimate for developing the new website would be €500.000. This would cover the inception (consulting stakeholders), the elaboration as well as the actual construction of the website. The maintenance costs could be estimated to amount to €100.000 per year.

Action 4: Dissemination of posters

Disseminating posters on the right to consular protection is likely to be another effective measure in increasing awareness. The Commission has elaborated a poster which explains citizens' right to consular protection under Article 20 EC and Decision 95/553/EC in simple terms. The poster has been translated in all Community languages and has been has been sent to travel agencies in three Member States in 2007 (Germany, Ireland and Czech Republic). To save costs, the poster has been printed only on demand and distributed in electronic version to those interested.

The cost estimated for this campaign would depend on the number of requests, but is likely to be rather low since the poster is ready for distribution in all Community languages. The cost for the production of the poster was €18.000 in 2007.

Action 5: In cooperation with Member States, assess the extent and nature of discrepancies in legislations and practices in the field of consular protection

A comparative study would be useful to assess the extent and nature of discrepancies in legislations and practices in the field of consular protection. The costs of this study, which would be carried out by an external contractor, could be estimated to amount to €150.000 if a call for tender is published.

Action 6: Publishing updated contact details of embassies and consulates of the Member States in third countries

To be able to assert their rights under Article 20 EC, citizens need access to an up-to-date list of the Member States' embassies and consulates in third countries, including their contact details. This information, which is collected on a bi-annual basis by the Council Secretariat, [37] is currently not easily available to the public. The Commission will therefore ask the Member States to provide it with this information in order to publish it on the proposed web-site (Action 3).

The cost of publishing the information would be small and the cost of updating the information would be modest. Member States would be requested to provide the Commission with up-dated information. According to a note of the Secretariat General,[38] Member States have 1436 consular representations in third countries. Approximately 5% of these representations (i.e. 70 representations) change address each year. This action would imply, per se, no additional cost, but would be part of the maintenance of the future website on the Europa site (Action 3).

Action 7: Explore the possibility of a coordinated presentation of travel advice

Travel advice has the potential to reduce calls on consular protection by deterring EU citizens from travelling to high risk areas or helping them to prepare. The majority of stakeholders responded positively to the suggestion to coordinate the presentation of Member States' travel advice. This would not harmonise the contents of the travel advice, which would remain different, since Member States' citizens face different threats and have different needs. One example quoted during the public consultation was the controversy concerning the Mahomet caricatures which did not touch Union citizens to the same extent.

It is proposed to facilitate access to the Member States' travel advice by establishing links between Member States' travel advice through the future website on the Europa site (Action 3). This could improve the efficiency of consular services through increasing the preparedness of travellers. The costs for this action would be part of the maintenance of the website on the Europa site (Action 3).

Action 8: Explore the need for sharing best practices and provide training to the key actors

The Commission organised a seminar at the end of 2007 to exchange best practices between Member States. The outcome of this first seminar will be evaluated to assess future needs in this field. The estimated cost for the 2007 seminar, to be borne by the Commission is ca € 350.000. The estimated costs for 2008-2009 remain to be decided on the basis of the needs identified by Member States.

Table 5.1. Policy option 2

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Necessity and added value of the proposed actions in Policy option 2

Policy option 2 focuses on awareness-raising. Community action is necessary to effectively raise Union citizens' awareness of Article 20 EC and of its implications. Information campaigns carried out throughout the EU are likely to be more efficient in terms of awareness-raising. The printing of Article 20 EC in all new passports would be a simple and efficient means (Action 1). Setting up a web-site on the "Europa" site dedicated to consular protection (Action 3) would be an efficient means of making available data which is currently not published or not readily available, such as measures implementing Article 20 EC (Action 2), providing contact details of Member States' representations in third countries (Action 6) and establishing links between Member States different sets of travel advice (Action 7). Finally, Action 8 would contribute to a more effective protection on the spot of unrepresented EU citizens.

5.3. Policy Option 3

This option comprises all actions listed in policy option 2. In addition, it includes actions that strengthen and clarify the scope of consular and diplomatic protection as well as consular cooperation between Member States. Some measures will entail medium to high costs. This “package” of actions includes legislative measures that would clarify the scope of with a view to ensuring a similar level of protection to all Union citizens. It could also ensure consular protection to EU citizens’ family members who are not EU nationals. Such legally binding measures would alleviate the negative consequences triggered by the existence of different levels of consular protection provided to citizens by the 27 Member States. It also includes several non-legislative actions to increase cooperation and burden-sharing between Member States and to ensure a more effective protection of unrepresented EU citizens. Each action in the Policy Option is considered in turn:

Action 9: Examine the possibility of ensuring citizens a similar level of protection irrespective of their nationality

Decision 95/553/EC provides already for "minimum standards" for consular protection. However, this Decision is not exhaustive and variations remain between Member States as regards the scope and legal force of consular protection. The adoption of standards going beyond the scope of Decision 95/553 could provide a definition of consular protection services and reduce variations between those currently provided. As an example, only a few Member States recognize the right to judicial review against a refusal of protection. This and other discrepancies may deprive Article 20 EC of its full effect. These differences should be further examined in view of a possible legislative initiative. The definition of such standards could be controversial among Member States. The costs for this action are difficult to estimate at this early stage of policy development.

Action 10: Ensure consular protection for the identification and repatriation of remains

Ensuring consular protection for the identification and repatriation of remains would reinforce consular protection. It is estimated every year that approximately 415.000 Union citizens die in third countries.[39] Based on the assumption that 8.7% of Union citizens travel to countries where their Member States are not represented, it is estimated that ca. 1.326 Union citizens die each year in a country in which their Member State is not represented. The estimated costs of the repatriation of remains are in the order of € 3,000-4,000 per repatriation. This means that € 4 to 5.3 million are spent every year for the repatriation of unrepresented EU citizens who die outside the Union. Most of the direct costs are fully or in part charged to individuals. The administrative costs to organise death registration and certification and the certificate for the transport of corpses or ashes are relatively low.[40] In view of the limited number of estimated cases, the costs of this measure, which would be borne in part by the Member States, would therefore be limited.

Action 11: Simplify the procedures for repatriating remains of EU citizens who have died abroad

The repatriation of remains entails the translation and legalisation of documents and death certificates, enquiries by the local police, autopsy in case of murder, a special ‘laissez passer’, a certificate that there is no risk to public health, and a special seal from the consulate. The procedures tend to differ between Member States. There is merit in simplifying and minimizing the administrative formalities, e.g. to harmonise the documents at the European external borders and to ensure the passage of the coffin within the EU until final destination (e.g. a ‘laissez passer’ certificate could be printed in all European languages and be inserted in the European Border Code to make border guards aware of the existence of this document). There are potential efficiency and reinforcement impacts and the costs would be offset by efficiency benefits. In view of the limited number of estimated cases (ca. 1.326 cases per year, see Action 10), the costs of this measure, which would be borne in part by the Member States, would be limited.

Action 12: Examine the possibility of ensuring consular protection to EU citizens’ family members who are not EU nationals

Approximately 6 million EU citizens are married to non EU nationals (1.2% of the total EU population).[41] EU citizens may also have other family members who are non EU nationals. It is estimated that around 6000 third country nationals married to EU nationals could need consular assistance while travelling outside the EU. This constitutes almost 1.2% of total potential demand for ‘EU’ consular services.. The majority of Member States do not extend the consular protection to non-EU nationals married to their citizens.

The costs of this action are likely to be proportionate to the numbers of non-EU national family members. If consular protection is extended to EU family members and the demand for consular assistance is increased by 1.2%, the number of consular staff should also be increased by 1.2%. A rough estimate of the cost would therefore a proportional increase of 1,2 % of existing consular staff to manage the higher demand. The costs of the consular services would in part or fully be charged to individuals. The financial costs for the individuals would depend on the pricing policies of the individual Member States.

Action 13: Explore the need to simplify the procedure for financial advances required under Decision 95/553/EC

An estimated 6,000 financial advances are given annually to EU citizens outside the EU.[42] The provision of advances accounts for 1.4% of all cases of consular assistance provided by the Member States. If the same proportion is applied to cases of consular assistance provided to unrepresented EU citizens (estimated to be 41,376) the number of financial advances given annually to unrepresented EU citizens could be estimated at only 579 cases.

A possible solution mentioned in the Green Paper could be to centralise the processing of all files in a common office in the third country, thereby simplifying the administrative steps described in Decision 95/553/EC. If the procedures to obtain financial advances were simplified, the measure would reduce the time and efforts needed to obtain the money. This should therefore mean a cost-saving.

Action 14: Setting up an EU telephone number on consular protection

The telephone number would be an EU telephone line service which would provide citizens with practical information on consular services, e.g. on the contact details of the Member States' representations in third countries they plan to visit. This measure would be effective in enhancing visibility of Article 20 EC. One possibility could be to use the existing Europe Direct free phone number, which is usually free of charge with operators working in all Community languages. This infrastructure would obviously need to be adapted and the costs, to be borne by the EU, would depend on the how the telephone number is set up.

Action 15: Recommendation to Member States, which have not yet ratified the 1973 Council of Europe Convention, to accede to it.

This measure would help reduce the emotional stress and other costs in repatriating mortal remains from third countries. The number of deaths abroad is likely to increase as the number of people living in and travelling to third countries is growing. Currently, only 15 Member States have acceded to the Council of Europe Convention of 26 October 1973 on the transfer of corpses, which regulates the entry into their territory, or the passage in transit through the territory, of the corpses of persons deceased on the territory of another country. If the Convention was acceded by all the Member State, the formalities required for the international transfer of corpses would be simplified and a uniform mortuary "laissez-passer" could be introduced. This would also trigger the creation of an EU-wide provision to uniformly govern the repatriation of mortal remains from one Member State to another (see action 11 above). The costs would be minor and borne by the Member States. In the long term, it can be anticipated that the administrative costs linked to the transfer of corpses will decrease due to an increased efficiency of the system regulating the repatriation of mortal remains.

Action 16: Examine the possibility of setting up a compensation system between Member States

The most appropriate method of ensuring a debt compensation system needs to be further examined in order to enhance the efficiency of Member States' consular resources while providing consular services to citizens of other Member States. The system should enable Member States to be swiftly reimbursed of the costs incurred in providing consular protection to EU citizens of other Member States. The mechanism could be established between the Member States taking into account the relevant provisions in the existing Guidelines on consular protection to Union citizens in third countries. To provide added value, it would need to be administratively simple and efficient (i.e. reimbursement should be made within a reasonable amount of time). The modalities of such a system need to be further examined with Member States. The costs of such a compensation system could be further assessed in a study.

Action 17: Set up a common office as a pilot project in an area where Member States' representation is inadequate

The creation of common offices, open to all Union citizens, would enhance the effective operation of Article 20 EC and allow for savings and enhanced cooperation between Member States. As pointed out by several Member States, the practical modalities require careful examination and the modalities of such offices remain to be discussed. The Commission would therefore propose to set up a common office as a pilot project, in cooperation with Member States, in a third country in which few Member States are represented. Clear and transparent rules on sharing the work are therefore necessary. Following an evaluation of the pilot project, the common offices could be expanded to other areas of the world. The common offices could be housed together with Commission delegations. The costs should be shared pro-rate between the participating Member States. This measure could have elevated start-up costs (infrastructure, equipment, human resources, security arrangements). However, these costs are likely to be off-set by subsequent savings. Cost-efficiencies will be reached in the longer term through the establishment of common rules on charging and burden sharing.

Action 18: Publication of the arrangements on burden sharing between the Member States in third countries

The publication of the arrangements on burden sharing between Member States in third countries, such as the Guidelines on consular protection of EU citizens in third countries and the concept of "Lead State", would increase transparency and would be a complementary measure to Action 17. To complete the functions performed by the new common offices, the Member States would also need to draw up and make available to citizens a set of rules establishing a system for deputising and sharing the work done by the common office. The costs for this action are likely to be minor and part of the costs for Action 3.

Action 19: The insertion of a consent clause in “mixed” agreements concluded by the Community and its Member States and recommend Member States to insert a consent clause in their bilateral agreements with third countries

The insertion of a consent clause in “mixed” agreements concluded by the Community and its Member States would enhance legal certainty for citizens since it would ensure that third countries agree that EU citizens can be assisted by any Member State represented in their country. This measure could be complemented by a Recommendation to Member States to include consent clauses in their bilateral agreements. The measure is not likely to trigger any negative consequence and its costs would be minor. However, several Member States have questioned the need for this action.

Action 20: Authorise the Union to obtain the consent of third countries in areas of Community competence to exercise protection via the Commission delegations

The Commission will also consider the possibility of obtaining the consent of third countries to exercise its protection through the Commission delegations in cases falling under Community competence in line with the "Odigitria" case-law.[43] In that case, a vessel flying the Greek flag was seized by the authorities of Guinea-Bissau with which the Community had concluded a fishing agreement. The applicant claimed that the Commission delegation had failed to take action to request the release of the vessel pursuant to the fishing agreement. However, the Court of First Instance found that the Commission delegation had fulfilled its obligations to provide diplomatic protection to the master and the applicant.

Although no general lesson can be drawn from the judgment outside the context of the fishing agreement concerned, the Commission will in the longer term consider the possibility of obtaining the consent of third countries to allow the Union ot exercise its protection through its delegations. Although the Member States have the primary responsibility for ensuring protection to their citizens, the Commission delegations could, where authorised by the Council, exercise protection in matters falling under Community competence.

The exact costs and impacts of this action are difficult to estimate at this stage.

Table 5.2 – Policy option 3

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Necessity and added value of the proposed actions in Policy option 3

Informing EU citizens of their rights under Article 20 is necessary, but is in itself not enough to ensure an adequate level of protection for unrepresented citizens in distress in a third country. The creation of an EU telephone line on consular protection would have the double advantage of increasing awareness and facilitating citizens' access to protection (Action 14). Increased awareness is likely to entail an increase in the number of requests for consular protection.

The current differences among Member States when it comes to consular protection could result in situations where unrepresented citizens are treated differently and receive a less favourable treatment as a matter of chance because he or she is addressing a Member State which applies less stringent rules. It is therefore necessary to clarify at EU level the scope of protection to which citizens are entitled. Action at EU level is necessary since progress is likely to be slow if Member States act alone. First, it is necessary to examine the possibility of reducing variations between the Member States as regards the scope of protection (Action 9). Moreover, several actions are necessary to facilitate the often burdensome procedure of repatriation of mortal remains which is currently not explicitly covered by the existing acquis. It is therefore suggested to ensure consular protection for the identification and repatriation of remains (Action 10), to simplify the administrative procedures for repatriating mortal remains (Action 11) and to recommend Member States to ratify the relevant international convention (Action 15). In addition, the public consultation confirmed the need to examine the possibility of ensuring consular protection to EU citizens' family members who are not EU nationals (Action 12). Such protection is currently not foreseen in the majority of the Member States' legislation and is not explicitly covered by Decision 95/553/EC.

The difficulties in accessing consular assistance are increased by the limited burden-sharing arrangements between Member States. Lack of simple procedures is a further obstacle for the provision of effective consular protection. In this respect, it is proposed to explore the need to simplify the procedures for financial advances required under Decision 95/553/EC (Action 13) and to examine the possibility of setting up a compensation system between Member States (Action 16). Actions are also foreseen to assist Member States in pooling resources, in particular to set up a "common office" as a pilot project to be evaluated (Action 17) and publish existing rules on burden-sharing (Action 18). The preferred option finally addresses the question of the consent of third countries where it proposes to insert a standard "consent clause" in bilateral and "mixed" agreements with third countries (Action 19). The Commission will also consider the possibility for the Union to exercise protection through its delegations in cases falling under Community competence (Action 20).

Estimated cumulated costs for the preferred option

The cumulated estimated costs for the actions selected in the preferred option (actions 1-20) are approximately €2.850.000 for the time-span covered by the Action Plan (2007-2009).

This includes estimates for actions nr. 1, 2, 3, 4, 5, 6, 7 and 8. It does not include estimates for the other actions for which a reliable estimate cannot be given at this early stage of policy development.

Table 5.3. Estimate of cumulated costs of the preferred option

Action Nr. | Action | Estimated costs 2007-2009 | Costs borne by whom |

1 | a) Print Art. 20 in passports as of 1.7.09 b) Affix stickers on passports issued before that date | a) Printing of Art. 20: low costs b) Ca €500.000/year (2008-2009) Estimated nr. of stickers required per year: Ca 50 million. Estimated cost per sticker: € 0.01 | a) Member States b) the EU |

2 | Publish measures implementing Art. 20 | Would be part of costs for action 3 | The EU and the Member States |

3 | Set up a web-site on consular protection on the Europa site | A rough estimate for developing the new website would be €500.000. This would cover inception (consulting stakeholders), elaboration and the actual construction of the website. The maintenance costs could be estimated to amount to €100.000 per year. | The EU |

4 | Dissemination of posters | The costs will be part of the overall costs for information and training measures estimated to €400.000 per year. | The EU |

5 | Assess the nature and extent of discrepancies in legislation and practices in the field of consular protection | Ca. €150.000 | The EU |

6 | Publishing up-dated contact details of Member States' representations | Part of maintenance costs for web-site (Action 3) | The Member States and the EU |

7 | Coordinated presentation of travel advice | Part of maintenance costs for web-site (Action 3) | The Member States and the EU |

8 | Exchange of best practices and training | The costs will be part of the overall costs for information and training measures estimated to €400.000 per year. | The EU |

9 | Ensure citizens a similar level of protection | Difficult to estimate costs at this early stage of policy development |

10 | Ensure consular protection for the identification and repatriation of remains | Relatively low (administrative costs to organise death registration, certification, certificate for transport) | The Member States |

11 | Ensure consular protection for EU citizens' family members who are not EU nationals | Estimate increase of 1,2% of the consular staff (proportionate to the number of non-EU family members) | The Member States |

12 | Simplify the procedure for financial advances | Likely to be low in view of the few cases | The Member States and the individuals) |

13 | Set up an EU telephone number on consular protection | Medium to high development costs. | The EU |

14 | Recommend Member States to ratify the 1973 Convention on transfer of corpses | Low costs |

15 | Simplify the procedures for repatriating remains of EU citizens | Low costs | The Member States |

16 | Compensation system between Member States | Difficult to assess at this stage | The EU/Member States |

17 | Set up a "common office" in a third country as a pilot project | Difficult to assess at this stage | To be decided at a later stage |

18 | Publish arrangements on burden-sharing between Member States | Low | The EU |

19 | Insert a "consent clause" in mixed agreements with third countries | Difficult to assess | The EU |

20 | Examine the possibility for the Union to exercise a duty of protection in cases falling under Community competence | Difficult to assess | The EU |

5.4. Policy Option 4

This policy option comprises all the legislative and non-legislative actions listed in the policy options 2 and 3 and includes further measures.

Some of the actions in this policy option are characteristically “the most extensive way possible” to address the problems in the current situation. In addition to further extending the scope of consular protection, the actions proposed envisage an overall higher level of activity and responsibility at EU level, for example the establishment of common offices in several areas and an EU Consular Academy.

The public consultation showed that these measures are highly complex from a technical and legal point of view and need additional preparation in cooperation with Member States and other stakeholders. Some of the measures are controversial and questioned by certain Member States. Some of these actions trigger medium to high costs linked to their implementation. Each action in the Policy Option is considered in turn:

Action 21: Ensure consular protection for third country nationals who are long-term residents in a Member State of the EU

It could also be envisaged to ensure consular protection to third country nationals who are long-term residents in a Member State to ensure that they benefit from a level of consular protection similar to that enjoyed by EU citizens from their countries of residence. Of these, it is estimated that around 1.6 million third country national long term residents undertake trips outside the EU every year. An estimated 9.000 long term residents could need consular assistance while travelling outside the EU.

The costs of extending consular protection are likely to be proportionate to the numbers of third country nationals with long-term residence needing consular assistance. If consular protection was extended to third country nationals with long-term residence and the demand for consular assistance increased by 0.67%, the number of consular staff should also be increased by 0.67% in order to manage this higher demand. The costs of the consular services will in part or fully be charged to individuals. The costs will also depend on the payment policies of the individual Member States.

Action 22: Set up common offices in four areas of the world

This action would be effective in increasing the efficiency of the deployment of Member States' consular resources and in ensuring that unrepresented EU citizens have ready access to other Member States’ representations in third countries. These offices could be set up in four areas where the Member States have a low representation and a high number of European tourists (the Caribbean, the Balkans, the Indian Ocean and West Africa). They could act as a common consular corps that could assist any EU citizen in distress. The specificities and options for the offices are described under Action 17. Setting up common offices would help to streamline functions and save on the fixed costs of the structures of Member States' diplomatic and consular networks. This action could have elevated start-up costs (infrastructure, equipment, human resources, security arrangements). Some high costs might be also borne to ensure the security of the offices. However, cost-efficiencies will be reached in the medium to long term through the minimising the costs of being present even when calls for protection are low. The action would need to be supported by the establishment of rules on cross charging and burden sharing.

This action would ensure a better protection of unrepresented EU citizens travelling to and living in third countries. The beneficial impacts of this measure would be higher than those triggered by Action 17, which foresees the creation of one common office as a pilot project.

Action 23: Allowing the common offices to perform consular functions, such as issuing visas or legalising documents

Allowing the common offices to perform consular functions, such as issuing visas or legalising documents would reinforce consular protection and increase the efficiency of the use of EU Member States' consular resources. The Action would complement Actions 17 and 22.

Action 24: The establishment of a “European Consular Code” to define the burden sharing between the Member States

The "Barnier report"[44] suggested that a European Consular Code should be established to underpin cooperation between Member States’ diplomatic missions and the delegations of the EU. There would be benefit in drawing up a Code which clearly defines the stand-in arrangements in each country (for example Member State X would represent Member States Y and Z in India) in order to create consular synergies. It would strongly reinforce and clarify consular protection and contribute to efficiencies.

The system of deputising exists already in the field of the common visa policy where significant progress has been made through the Common Consular Instructions. The costs linked to this measure, which would be borne both by the EU and the Member States, are expected to be low.

Action 25: An EU consular academy

An EU consular academy could be created for the training of senior consular officers. The initiative would have the merit of improving consular coordination and consular assistance consistency across Member States. The academy would also enable the exchange of best practices and of consular staff.

Experiences could be drawn on similar initiatives at the European level (e.g. for lawyers, police, border guards). It is estimated that only 10% of consular staff are senior, and thus the academy would focus on training 1,500 persons.

Action 26: Encourage research and development of DNA analysis tools

This action would contribute to increasing the effectiveness of victim identification processes and reducing emotional stress and other costs. The benefits of having effective tools for analysing DNA would largely be felt in circumstances of natural disasters and terrorist actions with high casualty level. The costs of this measure are likely to be medium and borne by the EU. This measure is not included in the preferred option as it is technically complex and requires further preparation in cooperation with Member States and other stakeholders.

Table 5.3. Policy option 4

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6. COMPARISON OF THE POLICY OPTIONS AND ELABORATION OF THE PREFERRED OPTION

The process of defining policy options involved grouping the proposals for actions into three policy options. Assessment of the policy options has involved systematically considering each of the individual actions described within the policy option and other actions that have not been retained. Many of the actions are complementary, but in a small number of cases the actions could themselves be alternative means of achieving the objectives. The pursuit of some actions could increase the need for other actions. For example, increasing the awareness of EU citizens of their right to diplomatic and consular protection when unrepresented in third countries could increase the need for training of consular staff to deal with citizens from countries other than their own.

The preferred policy option is outlined below. It is elaborated around the four main policy objectives. The elaborations indicate the main problems addressed, the rationale for EU intervention and the actions that contribute most effectively to the achievement of the objectives.

6.1. The preferred policy actions to achieve the main policy objectives

The following actions were not taken on board in the preferred options since the public consultation showed that they are not likely to be implemented in the time-frame covered by the Action Plan. They raise technical and legal issues that need in-depth examination with stakeholders, including Member States. Some of the measures could potentially entail significant costs and could also be politically controversial.

Action 21 : Ensure consular protection to long-term resident third country nationals. This action raises complex legal issues which need to be further examined. It is also likely to be controversial in those Member States which do not have any similar provisions at the moment.

Actions 22-23 : The setting up of "common offices" in four areas performing a wide range of consular functions is an ambitious proposal which needs to be further explored in cooperation with Member States.

Actions 24 and 25 : Establishment of a ‘European Consular Code’ and the creation of an EU consular academy are likely to be controversial and would require a considerable political commitment by Member States.

Action 26: To encourage research and development of DNA analysis tools for the identification of remains is a complex issue which needs to be further explored in cooperation with Member States.

On the basis of the comparison of the options and their impacts on meeting the policy objectives and contributing to and respecting fundamental rights, and in the light of Member States' and other stakeholders' views and practicality of costs, the preferred option is Option 3.

This includes actions which fulfil the four policy objectives, contribute to and respect fundamental rights, entail moderate costs and are not too controversial from the point of view of Member States and other stakeholders.

To increase awareness of EU citizens of their fundamental right to diplomatic and consular protection when they are outside the EU (policy objective 1):

The preferred option should include Actions 1, 2, 3, 4, 5, 6 and 7. Actions 1, 3 and 4 are particularly concerned with raising awareness and Actions 3 and 6 are concerned with ensuring that information is up to date and easily accessible to enable EU citizens to exercise their rights. Printing Article 20 in passports and inserting a sticker in existing passports (Action 1) would be inexpensive and efficient. However, far from all Union citizens own a passport. Other complementary actions are therefore needed. The distribution of posters (Action 4) is likely to be cost effective in achieving the objective. Publishing guidelines and other implementing measures (Action 2) will help clarify what might be expected of consular offices. Creating an EU web-site on consular protection on "Europa" with practical information and explaining the rights of citizens (Action 3) would mean that information would be more likely to reach EU travellers. The provision of up-dated contact details of Member States' representations in third countries (Action 6). The public consultation showed also support for an improved coordination of the presentation of the Member States' different travel advice. The future web-site could be used to establish links between the different travel advice (Action 7).

The financial costs of these measures are likely to be medium and borne by the Commission and Member States. There are unlikely to be significant drawbacks except that the publicity could raise expectations and lead to some unnecessary calls on the resources of consulates. It could result in an increase in ‘demand’ for consular services and there would be a need for consular services in third countries to meet these needs. The actions pertinent to the other general objectives would be beneficial in meeting these needs.

To reinforce and clarify the scope of consular protection of unrepresented EU citizens and their family members and ensure that all EU citizens receive a similar level of protection (policy objective 2);

There are a number of areas in which consular protection could be reinforced and clarified. They concern: facilitating access to consular protection; providing the right of appeal against a refusal of protection; improving the procedures for the identification and repatriation of remains; simplifying the procedures for the provision of financial assistance and ensuring consular protection for EU citizens' family members who are not EU nationals. These potential improvements and the actions that could be undertaken to achieve them are considered below.

The preferred option should include Actions 9, 10, 11, 12, 13, 14 and 15.

It is proposed to examine the possibilities of ensuring citizens a similar level of consular protection irrespective of their nationality (Action 9). The scope and legal force of consular protection vary between Member States. As an example, only some Member States recognize the right to judicial review against a refusal of protection. This and other discrepancies may deprive Article 20 EC of its full effect. These differences in Member States' legislation and practice in the field of consular protection will be assessed (Action 5).

It is proposed to take different actions to reduce the emotional stress and costs of delays in identifying and repatriating the remains from third countries (Actions 10, 14, 15 ). The costs are usually borne by families or insurers and sometimes reimbursed by public authorities. The rationale for actions in this area is humanitarian. It is proposed to recommend the 15 Member States which have not yet ratified the 1973 Council of Europe to accede to it (Action 15). There would be no significant costs associated with this recommendation yet benefits would be evident. Moreover, it is proposed to ensure consular protection for the identification and repatriation of remains (Action 10).

It is also proposed to examine the possibility of ensuring consular protection to EU citizens' family members who are third country nationals (Action 12). Approximately 6 million EU citizens are married to non EU nationals. EU citizens may also have other family members who are non EU nationals. It can reasonably be assumed that these family members will often travel together, particularly married couples, and are likely to be affected together by circumstances leading to the need for consular protection. It is also reasonable to assume that third country nationals married to EU citizens would need to benefit from consular protection similar to that enjoyed by their spouses (for example, emergency travel documents to enable travel back to the EU Member State in which they reside). The lack of protection may cause considerable difficulties and distress to EU citizens and their family members, as illustrated during the Lebanon crises in 2006. The costs are likely to be proportionate to the numbers of non EU national family members. It is estimated that 5,746 third country nationals married to EU nationals could need consular assistance while travelling outside the EU per annum. This is equivalent to around 1.2% of total potential ‘demand’ for ‘EU’ consular services.

Furthermore it is proposed to explore the need to simplify the existing procedures for financial advances foreseen in Article 6 of Decision 95/553/EC (Action 13). It is estimated that a total 6,000 financial advances are granted to EU citizens by EU Member State consulates in third countries per year. Based on this estimate, financial advances are only a small proportion of the ‘calls’ made on consular protection services (around 1.4%). If it is assumed that 1.4% of consular assistance cases provided to unrepresented EU citizens are financial advances, consular authorities receive around 500-600 cases per year from unrepresented EU citizens. There is a presumption that the advances will be reimbursed by the beneficiary and, if these advances are provided by a Member State other than that of the beneficiary, the Member State of the beneficiary will act as guarantor. Due to the improvements in communications (money transfers etc.) in recent years, financial advances are nowadays considered as a last resort. However, there could be circumstances where citizens genuinely require such financial advances and where the cumbersome procedure causes stress. When major incidents or natural disasters occur, the impacts on citizens can be extreme. Several Member States consider that the existing procedures function well. In the light of this, it is recommended to further examine the need to facilitate the procedures for financial advances in cooperation with Member States and other stakeholders.

The creation of an EU telephone line on consular protection (Action 14) will increase awareness and facilitate citizens' access to consular protection. Some Member States set up hotlines for their citizens and hotlines in the aftermath of natural disasters. A telephone line would be particularly beneficial for ‘unrepresented’ EU citizens, e.g. to inform the citizens of the contact details of Member States' consulates or embassies in the third country. It could also act as a ‘filter’, explaining to citizens the scope and effects of Article 20 EC and, where appropriate, direct citizens to the appropriate consulates.

To ensure more effective protection on the ground for unrepresented EU citizens in third countries (policy objective 3)

There is a general agreement that pooling resources to compensate for the inadequate consular presence in third countries is beneficial in terms of costs and effectiveness. There is scope for ensuring a more effective protection on the ground for unrepresented EU citizens. This could be achieved through: the coordination of travel advice; exchange of best practices and training; organising and pooling resources and effective and transparent burden sharing.

Another useful action would be to bring together the relevant actors to discuss common problems, promote the exchange of best practices, help preparing for future crises and facilitate the exchange of information between different actors. It is therefore proposed to explore the need for sharing best practices and training . (Action 8). A seminar was held at the end of 2007 to discuss these matters with Member States. The estimated cost for this seminar is €350.000.

There are 166 third countries in the world. 17 third countries do not have a consular representation from any EU Member State; 18 countries only have one EU Member State representation, and 14 only two representations[45]. There is therefore a strong logic to pool some of the resources required to maintain consular representations for EU citizens in third countries. Economies of scale exist and the pooling of infrastructure would make better use of public funds where demand for consular protection is low, and the costs of maintaining very small consular representations outweigh their benefits. It would be necessary to define the minimum amount of consular representation required to support a viable consular representation.

The idea to set up common offices (Action 17) is therefore included in the preferred option. The creation of common offices, open to all Union citizens, would enhance the effective operation of Article 20 EC and allow for savings and enhanced cooperation between Member States. The practical modalities require careful examination. The Commission proposes therefore a gradual approach, i.e. to set up a pilot project in a Commission delegation in a third country in which few Member States are represented (Action 17). The Member States would be able to provide their consular services in the common office. Following an evaluation of the pilot project, the common offices could be expanded to other areas of the world (Action 22).

The possibility of setting up a compensation system between Member States (Action 16) is also included in the preferred option as a means to enable Member States to be reimbursed of the costs incurred in providing consular protection to citizens of other Member States. Moreover, the arrangements on burden-sharing between Member States (e.g. the Guidelines on consular protection, the concept of "Lead State") should also be published (Action 18).

To ensure the consent of third countries to secure protection under Article 20 (policy objective 4)

The requirement to ensure the consent of third countries is a general principle of international law. Article 20 EC provides that Member States shall "start the international negotiations required to secure this protection". It has been argued that a unilateral notification to the receiving State could suffice according to Article 8 of the Vienna Convention on consular relations.[46] However, the absence of an explicit consent does not ensure legal certainty. Moreover, the above Convention does not prevent States from obtaining the explicit consent of third countries.[47] This would ensure legal certainty and transparency for the benefit of the citizens, Member States and third countries. It would also prevent that third countries change their mind. It would finally dispense Member States' from the burdensome task of unilaterally notifying each third country individually.

The Commission would therefore recommend Member States to include a "consent clause" in bilateral agreements with third countries and to insert a "consent clause" in future "mixed" agreements concluded by the Community and its Member States with third countries (Action 19). It will also examine the possibility for the Union to exercise protection through the Commission delegations in cases falling under Community competence (Action 20)

7. MONITORING AND EVALUATION

Table 7.1 indicates potential monitoring indicators and information sources that are applicable should the preferred option be implemented.

Table 7.1 Potential monitoring indicators and information sources

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ANNEX 1

Summary of the replies to the Green Paper on diplomatic and consular protection of Union citizens in third countries

Following the presentation of the Green Paper on diplomatic and consular protection of Union citizens in third countries[48] in November 2006, the European Commission launched a wide-ranging public debate aiming to gather the opinions of interested parties. In this Green Paper, the Commission put forward ideas for debate, regarding the strengthening of the right of Union citizens to Community diplomatic and consular protection, as enshrined in Article 20 of the Treaty establishing the European Community.

The consultation launched by the Commission attracted a high number of responses (about 50) from a wide range of stakeholders, which signals the importance of the subject treated. The contributors can be broadly categorised in the following groups of stakeholders:

- Member States and institutional bodies (national governments, parliaments and European institutions);

- Civil society (NGOs);

- Business sector (travel agencies); and

- Other (lawyers, academics)

The full list of contributors is found at the end of this document.

In general, the Green Paper has been welcomed positively. Although a few of the responses criticised some of the more drastic measures put forward by the Commission in certain areas of diplomatic and consular protection, the relevance and effectiveness of the majority of the proposed actions were not contested.

This paper provides a summary of the replies to the Green Paper. Although not all of the comments made by specific representatives could be cited in this summary document, all contributions sent to the Commission have been read and analysed and will be taken into consideration.

1. Information for citizens

Information on the right to diplomatic and consular protection

Actions proposed by the Commission in the Green Paper:

Distribute leaflets, including to the relevant trade sectors;

Put information on the "Europa" site and on the internet site of the Commission delegations in third countries;

Put up posters in airports, ports, railway stations or any other appropriate points; and

Citizen information services.

The majority of stakeholders affirmed the need to improve citizens’ awareness on their consular rights in third countries by disseminating information and organising information campaigns.

Most of the respondents (Poland, European Economic and Social Committee, Province of Pistoia, Finnish Expatriate Society and YESTravel) pointed out that the Commission should cooperate with all of the stakeholders i.e. Member States, business organisations (such as travel agencies and airports), civil society (such as associations of expatriates and citizens) and local governments, because all of these have an important role to play in enhancing the effectiveness of the information campaigns and dissemination activities.

France however suggested that national governments would be better placed to inform their citizens since they can make clear what consular protection does and does not cover (the principle of subsidiarity). Matrix Legal Practice stressed that before running any information campaigns, the Commission and Member States would have to clarify the scope of the protection of Article 20 and the level of consular protection that a citizen has the right to access.

Information on Member States’ representation in third countries

Actions proposed by the Commission in the Green Paper:

Publish and update the contact details of embassies and consulates of the Member States represented in each third country

In the instances where stakeholders had commented on this issue, an overall agreement with the proposal was expressed.

France suggested that there would be scope for improving the information that is already available instead of trying to create a body of new information while the United Kingdom cautioned that this measure might impose an excessive burden on countries with extensive networks of embassies and consulates.

Printing Article 20 in passports

Actions proposed by the Commission in the Green Paper:

Adopt a Commission Recommendation calling on the Member States to print Article 20 EC in passports.

The majority of stakeholders welcomed the idea of printing Article 20 in passports. A civil society organisation, ECAS, also stressed that this measure would provide citizens with the necessary legal support when seeking consular assistance. It was suggested to print in passports not only Article 20 but also Article 46 of the European Charter of Fundamental Rights (Iniziativa Europea) and to stick an adhesive reporting the Article 20 in passports already emitted at the moment of the border control or at the moment of the renewal of the same document (Law students from Milan University).

The majority of Member States considered this measure as an effective means of further disseminating the information to EU citizens. The United Kingdom and Greece would consider printing Article 20 in the next generation of biometric passports if it is found to be cost effective. Ireland, however, was not convinced of the need to include Article 20 in Irish passports. As the authorities declared, there are many demands for inclusion in passports and they do not consider the inclusion of Article 20 to be a pressing issue for the Irish citizens.

Coordinated presentation of advice to travellers

Actions proposed by the Commission in the Green Paper:

Coordinated presentation of advice to travellers

The majority of stakeholders responded positively to this suggestion. In particular, the idea of creating a common and highly visible website that has links to travel advice for each Member State was welcomed.

Some Member States (France, United Kingdom, Poland, Ireland and Finland) and a representative of the business sector (the Group of National Travel Agents’ and Tour Operators’ Associations and the Guild of European Business Travel Agents), however, were more sceptical concerning the harmonisation and integration of different sets of national travel advice, given that different citizens face different threats and have different needs. With this in mind, it was considered that Member States would be better equipped to inform their own nationals.

Publication of measures implementing Article 20

Actions proposed by the Commission in the Green Paper:

Publish any measures connected with the implementation of Article 20 EC.

The majority of stakeholders expressed their overall support for the suggestion regarding the need to improve levels of information, albeit without providing any specific comments. A few stakeholders, however, did propose some interesting points. Poland and the European Economic and Social Committee stated that publishing measures concerning the implementation of Article 20 would be beneficial to the EU citizens. Nevertheless, the Official Journal should not be the unique source of that information and it would be recommendable to make it widely available to the general public by means of other media. YEStravel also stressed that locally monitoring of the implementation of Article 20 of the EC Treaty can be a complex task, unless Member States inform the Commission on local shortcomings affecting EU citizens.

2. The scope of protection for citizens

Although not specifically addressed by the Green Paper, several stakeholders invoked two additional issues concerning the scope of protection for citizens: the distinction between consular and diplomatic protection as well as the legal nature of consular protection.

In relation to the first point, a significant number of Member States as well as academics and lawyers were of the opinion that Article 20 covers consular protection but not diplomatic protection. The Commission was called to clarify this point.

As far as the legal nature of consular protection is concerned, the majority of Member States pointed out that Article 20 simply sets out an obligation of non-discrimination but does not create any right of assistance. Conversely, representatives from civil society, the business sector and other stakeholders were of the opinion that Article 20 creates an entitlement.

Inclusion of provisions protecting EU citizens working and living in third countries in Member States’ bilateral agreements

Actions proposed by the Commission in the Green Paper:

Include in Member States’ bilateral agreements with third counties provisions protecting Union citizens working and living in third countries, in order to apply Decision 88/384/EEC properly.

The majority of stakeholders responded positively as regards the inclusion in Member States’ bilateral agreements, of provisions to protect EU citizens working and living in third countries. This was also considered necessary for the proper application of Decision 88/384/EEC. In their contributions, the Member States considered such measure as a tool fostering the protection of EU citizens in third countries. Luxembourg expressed a particularly strong interest towards this measure. From the business sector, the ECTAA (the Group of National Travel Agents’ and Tour Operators’ Associations) and GEBTA (the Guild of European Business Travel Agents), particularly welcomed the proposal of the Commission to improve the protection of EU citizens working and living in third countries.

Extension of consular protection to Union citizens’ family members who are third country nationals

Actions proposed by the Commission in the Green Paper:

Extend consular protection to Union citizens’ family members who are third country nationals, by appropriate means (amend Decision 95/553/EC or Commission pr