Green Paper — Diplomatic and consular protection of Union citizens in third countries (presented by the Commission)
Date: 2007-02-10
Institutions: European Commission
Subjects: European citizenship, diplomatic protection, traveller

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Official Journal of the European Union

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Diplomatic and consular protection of Union citizens in third countries

GREEN PAPER

(presented by the Commission)

(2007/C 30/04)

1.

INTRODUCTION

1.2. There

are

several

proposing possible lines of action for
protection of citizens:

reasons why the Commission is
reinforcing this

1.1. Under Article 20 of the Treaty establishing the European
Community (hereafter EC), if a citizen of the Union is in a
third country in which the Member State of which he is a
national does not have an embassy or a consular post, he
is entitled to protection by the authorities of any Member
State represented on the spot, on the same conditions as
the nationals of that State.

Decision 95/553/EC (1) 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 citi-
zens in difficulties.

The above list is not exhaustive. The Decision states that a
citizen can also apply for protection in other circum-
stances,
is within the States'
powers, immediate assistance should be given to a national
in difficulties.

in so far as it

in which,

A working party on consular cooperation (‘COCON’) has
also been set up in the EU Council to organise exchanges
of information on best national practices. In June this year
it drew up guidelines on consular protection of EU citizens
in third countries (2). These non-binding guidelines focus
on the exchange of information between Member States
with a view to close cooperation, also involving the
Commission delegations (3).

(1) Decision of the representatives of the Governments of the Member
States meeting within the Council of 19 December 1995 regarding
protection for citizens of the European Union by diplomatic and
consular representations (OJ L 314, 28.12.1995, p. 73).

(2) Council of the European Union document 10109/06 of 2.6.2006.
(3) The guidelines require each Member State to prepare emergency plans,
which all Member States should be familiar with. Member States are
also encouraged to share changes to travel advice. Likewise, Member
States should encourage EU citizens to report to consulates and register
their details so that emergency plans can be implemented efficiently.

— Article 46 of

the Charter of Fundamental Rights,
proclaimed in Nice on 7 December 2000, enshrined
the right to consular and diplomatic protection as a
fundamental right of the European citizen;

— Decision 95/553/EC provides for it to be reviewed five
years after its entry into force, which was in May 2002;

— in 2007, the Commission will present its 5th report on
the citizenship of the Union, which could signal initia-
tives on the right to diplomatic and consular protec-
tion;

— the Commission Communication of

June 2006 on
implementing the Hague Programme (4) put forward
various suggestions on diplomatic and consular protec-
tion;

— the need to define the links between consular and
diplomatic protection and other areas (civil protection,
crisis intervention, humanitarian relief), highlighted in
the Report presented on 9 May by Mr Barnier (5) (here-
after Barnier Report).

1.3. Diplomatic and consular protection can concern indivi-

duals or groups of people.

1.4. To deal with crisis situations such as natural disasters,
terrorist acts, pandemics or military conflicts, the Union
has a range of instruments at its disposal:

— the civil protection mechanism, which can operate

inside and outside the Union;

— humanitarian relief for civilians hit by a disaster outside

the Union;

— specific instruments to cope with crisis management

situations such as the rapid reaction mechanism;

— civilian crisis management missions under the foreign,

security and defence policy.

All these instruments call for close cooperation between
the Council and the Commission to ensure the coherence
of the external activities of the Union and its Member
States.

(4) COM (2006) 331 of 28 June 2006 ‘Implementing the Hague

Programme: the way forward’.

(5) Report by Michel Barnier to the President of the Council of the Euro-
‘For a

pean Union and the President of the European Commission:
European civil protection force: europe aid.’

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These areas of intervention can be supplemented by a rein-
forcement of the protection for citizens provided for under
Article 20 EC.

more fully and also to enable every European citizen to be
aware of and enjoy full access to their existing rights.

1.5. Article 20 EC assumes particular importance because of
the sharp increase in the number of trips made by EU
nationals to third countries (6), and the rise in the number
of nationals who establish their residence in these coun-
tries. Not all the Member States, however, have a perma-
nent representation in every third country.

At present there are only three countries where all the
Member States are represented: the People's Republic of
China, the Russian Federation and the United States of
America, and in 107 out of 167 third countries a
maximum of 10 Member States are represented (7). This
situation became patently clear at the end of 2004 when
the
the tsunami hit South East Asia, where most of
Member States did not have a representation in the coun-
tries affected by the disaster. In Thailand, for example, 17
Member States are represented whereas only 6 are repre-
sented in Sri Lanka and 3 in Brunei. In the conflict in
Lebanon in July this year, it also became clear that not all
the Member States had a permanent and accessible repre-
sentation on the spot. The Barnier report also showed that
the European presence in the form of
the European
Commission delegations was ensured in countries where
the national representations are sometimes very limited.
Although they do not have consular powers, these delega-
tions could be included in joint efforts to pool resources.

1.6. In view of the limits to the Member States' consular and
diplomatic networks,
the current Community acquis is
fairly slim, consisting only of Decision 95/553/EC and
exchanges of
information between the Member States
within the COCON.

Yet citizens want the European profile to be raised. A
recent Eurobarometer survey (8) revealed citizens' ignorance
of their rights and at the same time their high expectations
of Europe in this area. It also emerged that half the people
living in the Union plan to travel to a third country within
the next three years and that only 23 % of them claim to
be familiar with possibilities offered by Article 20 EC; at
the same time, 17 % believe that it is possible to seek
protection from the Commission delegations.

Lastly, in its Communication to the European Council of
10 May 2006 ‘A citizens' agenda’ (9), the Commission high-
lighted the Union's need to foster cooperation on consular
affairs in order to protect EU citizens in third countries

(6) In April 2006 the COCON Group estimated these trips at some 180

million per year.

(7) Council document 15646/05 of 12 December 2005 on Presidency
diplomatic representation in third countries, not published. There are
areas where the Member States' diplomatic and consular representa-
tions on the spot are inadequate: Central America and the Caribbean
(for example, 1 Member State is represented in Belize, 3 in Haiti, 4 in El
Salvador, none in the Bahamas), Central Asia (in Tajikistan only 1
Member State, and 3 in Turkmenistan); Central and West Africa (1
Member State is represented in Liberia and SaoTome and 3 in Mali and
Congo-Brazzaville).

(8) Eurobarometer No 188 of July 2006.
(9) COM (2006) 211 final.

The Commission proposes courses of action for informing citizens
more fully and examining the scope of the protection that they
should be offered and the structures and resources that the Union
should have for this and the links to be developed with third-
country authorities.

2.

INFORMATION FOR CITIZENS

is essential

It
informed about consular protection.

to ensure that citizens are more fully

The Commission suggests several measures, some of them
immediate, and others that require more complex decision-
making at European level.

2.1. Information on the right to diplomatic and consular

protection

The institutions and the Member States should ensure that
citizens and the trade sectors involved in passenger trans-
port, such as travel agencies, are provided with regular
information.

Examples include distributing information leaflets, putting
up posters in places such as airports, ports, railway stations
or passport offices, information on the ‘Europa’ site and on
the internet site of the Commission delegations in third
countries. Another example could be telephone calls or e-
mails to EUROPE DIRECT (10), enabling citizens to ask
questions about consular and diplomatic protection in
third countries.

Suggested actions:

— 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.

— Citizen information services.

2.2. Information on Member States' representation in third

countries

If their country does not have an embassy or consulate in
the third country of destination, citizens must be given
information about the other Member States' embassies and
consulates there.

(10) http://ec.europa.eu/europedirect/

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The Commission could take responsibility for conducting
this type of information campaign with the help of the
Member States. They would accordingly be asked to
provide the Commission with an updated list of all their
embassies and consulates in third countries, with the neces-
sary contact details.

Suggested action:

the competent authorities, and in accordance with the
advice given by the European Centre for Disease Prevention
and Control (ECDC).

Suggested action:

— Coordinated presentation of advice to travellers.

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

2.5. Publication of any measures implementing Article

20 EC

2.3. Using passports as a means of information

For the sake of transparency, citizens should be properly
informed of their rights under Article 20 EC. For example,
this Article should be
guidelines on the application of
published in the Official Journal.

The Barnier report suggested that all passports should have
Article 20 EC printed in them.

Suggested action:

In its report of 15 June 2006 to the European Council (11),
the Council Presidency asked the Member States to print
Article 20 EC in passports.

The Commission considers that this would be an effective
way of reminding citizens of their rights.

Suggested action:

— Adopt a Commission Recommendation calling on the

Member States to print Article 20 EC in passports.

2.4. Advice for travellers

In order to discourage citizens from going to a third
country where their safety and health could be endangered,
each of the Member States issues advice to its nationals,
giving its own assessment of the risk, which may differ
from that of other Member States depending on its knowl-
edge of the country concerned or the nature of its links
with that country (12).

— Publish any measures connected with the implementation of

Article 20 EC.

3.

THE SCOPE OF PROTECTION FOR CITIZENS

Given that protection is not uniform, since Article 20 EC
only requires each Member State to protect citizens of the
Union on the same conditions as those afforded to its own
nationals, EU citizens are confronted with the same
number of protection arrangements as there are Member
States.

The scope and legal
vary (15).

force of

these arrangements can

The Commission considers that differences between the
various aspects of protection should be examined over the
longer term, with a view to considering the possibilities of
offering citizens similar protection irrespective of
their
nationality.

The question is whether it is possible to have a coordinated
presentation of the different advice.

In the immediate future, the following courses of action
should be explored:

cooperation,

to promote

For example, Decisions 2119/98/EC of
the European
Parliament and the Council (13) and 2000/57/EC of the
Commission (14) have established a network at Community
level
coordination and the
exchange of information with a view to improving the
prevention and control of communicable diseases. The
information concerns public health measures taken by the
Member States
to cope with a public health threat,
including the threat of a pandemic. It is transmitted via an
Early Warning and Response System — EWRS.

also inform
The Commission and Member
concerned professionals and the general public of any
guidance agreed at Community level. It will also be impor-
tant to give preventive advice on the risks involved by
providing appropriate and common advice to citizens via

States

(11) Document 10551/06 of 15 June 2006: Reinforcing the European

Union's emergency and crisis response capacities.

(12) For a schematic presentation, see: http://www.travel-voyage.consilium.

europa.eu.

(13) OJ L 268, 3.10.1998, p. 1.
(14) OJ L 21, 26.1.2000, p.32.

3.1. Protection of European citizens working and living in

third countries

By its Decision 88/384/EEC setting up a prior communica-
tion and consultation procedure on migration policies in
relation to non-member countries (16),
the Commission
established a consultation procedure between Member
States aimed at promoting the inclusion of a maximum of
common provisions in bilateral agreements, and improving
the protection of Community nationals working and living
in third countries.

Provisions on the protection of EU citizens should there-
fore be included in bilateral agreements with third coun-
tries with a view to ensuring this protection, as provided
for by Article 20 EC.

(15) For example, only some Member States recognise the right of appeal

against the refusal of protection.

(16) OJ L 183, 14.7.1988, p. 35.

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Suggested action:

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

in order

3.2. Union citizens' family members who are not nationals

of a Member State

The need for joint protection of citizens and members of
their families who are not EU nationals emerged in the
Lebanon conflict in July this year, with the procedures for
evacuating and repatriating via Cyprus family members of
citizens whose Member State was not represented. It is
time to put an end to the considerable difficulties that citi-
zens and their families face in such situations and therefore
to lay down arrangements for joint protection of distressed
citizens and family members who are not nationals of an
EU Member State.

Suggested action:

— Extend consular protection to Union citizens' family members
who are third country nationals, by appropriate means
(amend Decision 95/553/EC or Commission proposal on
the basis of Article 22 EC).

3.3. Identifying and repatriating remains

The aftermath of the tsunami at the end of 2004 revealed
the scale of the problem of identifying and repatriating
remains. The third country local authorities can require a
series of formalities, such as obtaining a mortal remains
certificate (issued by the consular authority) or health and
police certificates confirming death and causes of death,
compliance with certain public health requirements
concerning the coffin, or a certified translation of
the
administrative documents.

encourage research and development of effective tools for
analysing DNA which are less costly than those currently
available.

Suggested actions:

In the short term:

— Amend Decision 95/553/EC in order to include the identifi-

cation and repatriation of remains.

— Recommend Member States which are not yet contracting
parties to the 1973 Strasbourg Convention to accede to it.

In the long term:

— Simplify procedures for repatriating remains.

— Possibly set up a European compensation system.

— Encourage research and development of DNA analysis tools
and encourage some European laboratories to specialise in
victim identification.

3.4. Simplifying procedures for financial advances

Decision 95/553/EC shows the complexity of the proce-
dure for repaying expenditure and the advances paid to
distressed citizens: the applicant must obtain permission
from the Member State of which he is a national and sign
the Member State of
a document promising to repay;
which he is a national reimburses all costs, on request, to
the assisting State; the citizen reimburses his own State.
Nationals of some Member States may be asked to leave
their passport with the assisting State as a guarantee.

A possible solution 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.

Suggested action:

The families of victims therefore have to cope with the
complex procedures and costs of repatriation.

— Simplify procedures for financial advances.

Some Member States have acceded to the Council of
Europe Convention of 26 October 1973 on the transfer of
corpses (17), which is designed to simplify administrative
formalities for repatriating remains. However, this instru-
ment leaves the Member States wide discretionary powers.
It is important to convince all the Member States to accede
to this instrument, while at
the same time continuing
efforts at simplification.

With regard to the costs of repatriating remains, a comple-
mentary action could be to set up a European compensa-
tion system.

Identifying remains is a necessary prerequisite for their
the Commission will
repatriation.

In this connection,

(17) Convention No 80 of the Council of Europe Treaty Series (15 Member

States have ratified).

4.

STRUCTURES AND RESOURCES

4.1. Setting up common offices

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

There needs to be a fair division of tasks between the
Member States in cases of requests for assistance or repa-
triation by a large number of citizens whose own State has
no representation. An attempt at this division of tasks has
been made in the abovementioned guidelines.

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One way of dealing with this sort of situation would be to
set up common offices, as proposed in the Barnier Report
and taken up in the abovementioned Communication, of
28 June 2006 on implementing the Hague Programme (18).
Similar proposals had been backed by European Parlia-
ment (19).

Setting up common offices would help to streamline func-
the structures of
tions and save on the fixed costs of
Member States' diplomatic and consular networks.

The functions performed by these common offices could
be based on a system of deputising between Member
States, which would enable the following proposals to be
put into practice:

— Depending on the countries and the presence of
Member State representations, these offices could be
housed in various representations or national embassies
or in just one, or they could share the Commission
delegation under arrangements still to be defined. In all
cases, the consular officials would perform their func-
tions, under the authority of their State, in common
offices. Initially, the four experimental areas proposed
in the Barnier report could be adopted: the Caribbean,
the Balkans, the Indian Ocean and West Africa. These
areas were proposed because of the number of Euro-
pean tourists visiting them, the relatively low represen-
tation of
the Member States and the presence of
Commission delegations, which could provide the
appropriate support. The programme of staff exchanges
between the Member States' national diplomatic
services, the Commission and the Council Secretariat
could be used on this occasion,
in the spirit of the
Commission Communication to the European Council
of 8 June 2006 on Europe in the world (20).

— To perform these functions, the Member States could
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 in each third
country.

— To facilitate the work of the common offices, informa-
tion campaigns could be organised, inviting citizens to
register on a voluntary basis, which would then make
possible rescue operations easier.

— Significant steps have been taken under the common
visa policy, through Council decisions amending the
Common Consular Instructions (CCI). These specific
measures provide an example of the added value that
Europe can offer. To make up for the drawbacks of an
inadequate consular presence in some third countries,
the possibility that already exists for one Member State

(18) See footnote on page 4.
(19) Resolution of 5 September 2000 on common Community diplomacy.
(20) COM (2006) 278 final ‘Europe in the World — Some Practical Propo-

sals for Greater Coherence, Effectiveness and Visibility’.

to represent another for the purposes of issuing visas
on its behalf should be further extended (21). Other
amendments to the CCI have also helped to strengthen
local consular cooperation and to give it a bigger role
in applying the common visa policy (22). Taking these
measures further, the Commission recently presented
initiatives to supplement
the existing acquis in this
field. First it presented a proposal to establish common
centres for the reception of visa applications (23),
in
order to facilitate the introduction of biometrics and to
extend the scope of representation. Then it put forward
a proposal for a Regulation establishing a Code on
Visas, a single instrument that reviews and incorporates
all the provisions on visa-issuing procedures (24). The
aim of the proposed Code is to reinforce and enhance
local consular cooperation in respect of visas. In the
long term, thought needs to be given to harnessing
moves towards common offices for the purposes of
consular protection with moves
towards common
centres for the purposes of visa policy.

Suggested actions:

— Initially set up ‘common offices’

in the Caribbean,

the

Balkans, the Indian Ocean and West Africa.

— Publish rules establishing a system of deputising between

Member States in third countries.

— Organise

information campaigns

encouraging citizens

to

register at the common office.

— In the long term, common offices could perform consular
functions, such as issuing visas or legalising documents.

4.2. Training for Member State officials

To ensure effective training, especially for the staff of the
‘common offices’,
the Commission could organise joint
training activities for Member State and Community insti-
tution officials on, for example, EU external border checks,
repatriation of remains or the right
to diplomatic and
consular protection.

Suggested action

— Training for Member State and Community institution offi-

cials.

(21) Council Decision 2004/15/EC of 22 December 2003 (OJ L 5,

9.1.2004, p. 76).

(22) Council Decision 2002/585/EC of 16 July 2002, on cooperation with
travel agencies (OJ L 187, 16.7.2002, p. 44) and Council Decision
2004/17/EC of 22 Decmber 2003, establishing the requirement to
have travel insurance (OJ L 5, 9.1.2004, p. 79).

(23) COM(2006)269 final of 31.5.2006.
(24) COM(2006)403 final of 13.7.2006.

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5.

THE CONSENT OF THE THIRD-COUNTRY AUTHORITIES

Suggested actions:

Implementation of Article 20 EC requires the consent of
the third countries.

It is a general principle of international law that the protec-
tion of a citizen of one State by another State is subject to
the third country's consent (25).

Under Article 20 EC Member States must start the interna-
tional negotiations required to this end.

Each Member State is therefore expected to initiate bilateral
negotiations (26) with third countries. But it would also be
possible,
in ‘mixed’ agreements concluded by the Com-
munity and its Member States, to negotiate a standard
consent clause for diplomatic and consular protection.
Under such a clause third countries would accept that
Union citizens can be assisted by any Member State repre-
sented on the spot.

A specific case concerns the boarding of fishing vessels
flying the flag of a Member State or the arrest of the
master and crew. Under some fishing agreements, the third
country authorities are required to inform the European
Commission delegation on the spot, which has ‘a duty to
provide diplomatic protection’ (27) as stated in the ‘Odigi-
tria’ judgment (28).

Although no general lesson can be drawn from the ‘Odigi-
tria’ judgment outside the context of the fishing agreement
concerned, in the long term, the question of the applica-
tion of this diplomatic protection could arise if it resulted
from the exercise of Community competence.

— Insert a consent clause in ‘mixed’ agreements concluded with

third countries.

— In the long term: examine the possibilities of getting the
consent of third countries for the Union to exercise a duty of
protection, via the Commission delegations, in cases relating
to Community competence.

6.

CONCLUSIONS

In this Green Paper the Commission sets out ideas to be
considered for strengthening the right
to Community
diplomatic and consular protection. Before carrying out
the actions needed for this, which call for initiatives on its
part or coordination with the Member States, the Commis-
sion wishes to launch a wide-ranging public debate with
the European Parliament and the Council of the Union and
with all
interested parties: Member States, NGOs, civil
society and European citizens.

To this end, the Commission wishes to receive contribu-
tions commenting on the actions suggested above, by 31
March 2007. These should be sent by e-mail
to the
following address: JLS-diploconsul-protection@ec.europa.eu.

The contributions received will be published on ‘Your
Voice in Europe’, giving the name of the authors, unless
they wish to remain anonymous or they ask for the entire
contribution to remain confidential.

This dialogue will end with a hearing open to all interested
parties.

(25) Articles 45 (c) and 46 of the 1961 Vienna Convention on diplomatic
relations and Article 8 of the 1963 Vienna Convention on consular
relations.

(26) These agreements supplement

those provided for by Decision

88/384/EEC : see paragraph 3.1 of this paper.

(27) For example, the Agreement between the EEC and the Republic of

Côte d'Ivoire on fishing (OJ L 379, 31.12.1990, p. 3).

(28) Judgment of the Court of First Instance of 6 July 1995, Case T-572/93.