COMMISSION STAFF WORKING PAPER EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT
Date: 2011-12-14
Institutions: European Commission
Subjects: EU national, European citizenship, diplomatic protection, help for victims, return migration, third country

EUROPEAN COMMISSION 

Brussels, 14.12.2011 
SEC(2011) 1555 final 

COMMISSION STAFF WORKING PAPER 

EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT 

Accompanying the document 

Proposal for a DIRECTIVE OF THE COUNCIL  

on consular protection for citizens of the Union abroad 

{COM(2011) 881 final} 
{SEC(2011) 1556 final} 

 
 
 
 
  
 
This  impact  assessment  is  on  coordination  and  cooperation  measures  regarding  consular 
protection for unrepresented EU citizens. 

An  EU  citizen,  travelling  to  or  living  in  a  third  country  where  his/her  Member  State  is  not 
represented  by  an  embassy  or  consulate,  has  the  right  to  enjoy  the  protection  of  the 
diplomatic and consular authorities of any other Member State under the same conditions as 
the nationals of that State. This right of the EU citizen is enshrined in Articles 20(2)(c) and 23 
TFEU and in Article 46 of the Charter of Fundamental Rights of the European Union. 

1. 

POLICY CONTEXT AND PROCEDURE 

Recent major crises have affected a considerable number of EU citizens in third countries (for 
instance in Libya or Egypt after the democratic uprisings in spring 2011 or in Japan in March 
2011). Yet also in day-to-day situations, for instance in case of serious illness or when being 
victim of a crime, assistance by consular authorities is often indispensable.  

In  the  Stockholm  Programme  the  European  Council  invited  the  Commission  to  "consider 
appropriate  measures  establishing  coordination  and  cooperation  necessary  to  facilitate 
consular protection in accordance with Article 23 TFEU"1. According to action 8 of the EU 
Citizenship Report 2010 2the Commission would consider increasing the effectiveness of the 
right  of  EU  citizens  to  be  assisted  in  third  countries,  including  in  times  of  crisis,  by  the 
diplomatic and consular authorities of all Member States, by proposing legislative measures in 
2011. The Commission reiterated this commitment in its Communication of 23 March 2011 
on consular protection for unrepresented EU citizens3.  

The  Lisbon  Treaty  abandons  the  previous  logic  of  intergovernmental  decision-making  and 
enables  the  Commission  to  propose  directives,  establishing  cooperation  and  coordination 
measures necessary to facilitate consular protection for unrepresented EU citizens4.  

For  this  impact  assessment  stakeholders  were  intensively  consulted,  including  through  a 
public  consultation,  two  workshops,  surveys  and  missions  to  selected  Member  States  and 
third countries5. Four recent external studies have also contributed to this impact assessment. 

2. 

PROBLEM DEFINITION 

2.1.  Magnitude 

On the basis of the information provided by Member States, in 2009 consular protection was 
provided  in  total  in  almost  300.000  cases6.  According  to  data  reported  in  comparable 
situations represented EU citizens appear to ask for and obtain consular protection much more 
often than unrepresented EU citizens. If one assumes that represented and unrepresented EU 
citizens equally often get in a situation in which they could request consular protection (e.g. 

1 
2 
3 
4 
5 
6 

OJ 2010/C 115/01 (Council document 17024/09). 
COM(2010) 603 final. 
COM(2011) 149 final. 
Article 23(2) TFEU. 
Field missions to Kazakhstan, Sri Lanka, Cuba and Egypt by an external consultancy. 
As not all Member States reported cases this figure is partially based on extrapolations. 

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victim  of  robbery)  around  7.300  unrepresented  EU  citizens  could  have  obtained  consular 
protection7.  In  fact,  only  16%  of  these  citizens  actually  profited  from  consular  protection  - 
although  according  to  a  recent  Eurobarometer  survey  79%  of  EU  citizens  know  about  the 
existence  of  this  right8  -  a  right  that  has  however  not  yet  been  fully  established9.  More  and 
more  citizens  will  be  finding  themselves  in  situations  where  they  are  eligible  for  consular 
protection  of  another  Member  State  and  EU  citizens  abroad  are  increasly  exposed  to  crisis 
situations  (since  1975  the  recorded  annual  number  of  crises  has  increased  fivefold  and  is 
likely to further increase)10. 

Figure:  Estimate  of  total  number  of  instances  when  travelling  EU  citizens  are  unrepresented  in  third 
countries (2009) 

2.2. 

Analysis of the problem 

The  implementation  of  EU  citizenship  as  a  concrete  reality  ensuring  equal  treatment  on 
consular  protection  is  currently  not  secured.  There  is  no  clear  consensus  on  the  content  of 
Article 23 TFEU and about the responsibilities which this right entails. 

To  be  effective  as  a  right  with  concrete  meaning,  the  succint  wording  of  the  Treaty  article 
does not suffice. Currently national laws and practices diverge considerably as do views about 
the underlying concepts. This is all the more important as consular cases frequently involve 
unrepresented  EU  citizens  and  their  relatives  in  very  difficult  life  situations  (death,  serious 
illness, detention, crime). Often, consular protection is the only way to get help (e.g. in cases 
of evacuation or detention) or at least greatly mitigates the process. Unlike when dealing with 
own nationals, assisting an unrepresented citizens requires cooperation between the assisting 
Member State present on the ground and the Member State of origin. Currently, cooperation 
and  coordination  often  works  on  an  ad-hoc  basis,  depending  to  a  large  extent  on  persons 
involved. 

More specifically, it is currently not clear who is an unrepresented citizen. An EU citizen is 
not only unrepresented if his/her home Member State has no embassy or consulate at all in a 
given third country but also if this representation is not "accessible"11. There is no common 

7 
8 
9 
10 
11 

Compared to how often represented nationals requested consular protection.  
Eurobarometer(2010), Flash EB No 294, European Union Citizenship. 
For the various reasons please see in the following. 
COM(2010)600 final, 26.10.2010. 
Article 1 of Decision 95/553/EC. 

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understanding about when a representation is accessible12 as well as to which extent non-EU 
family member of unrepresented EU citizens, long-term residents and recognized refugees are 
treated on an equal footing with unrepresented EU citizens. It is also unclear which Member 
State has to assist an unrepresented EU citizen and how assistance is to be coordinated. This 
induces delays and does not safeguard efficient protection under equal conditions. According 
to the Treaty an unrepresented EU citizen can freely choose which embassy/consulate he/she 
prefers  to  turn  to,  whereas  in  practice  derogations  exist.  Coordination  and  cooperation 
procedures are not sufficiently established. In practice consular officials would frequently first 
turn  to  their  own  authorities  in  the  capital  to  ask  for  specific  instructions.  Simple  forms  of 
legalisation  of  third  country  documents  and  simple  notary  services  are  currently  not 
included13. The role of the Union delegations is ambiguous and depends on persons and views 
represented  on  the  ground.  The  current  setting  is  thus  not  conducive  to  a  fully  coherent 
external action of the Union and induces a suboptimal use of resources. 

In crisis situations the current legal cooperation framework does not sufficiently establish who 
assists  unrepresented  EU  citizens,  including  as  to  the  role  of  the  so-called  Lead  State. 
Contingency planning does not specifically cater for unrepresented EU citizens. Activities are 
at  times  fragmented14  and  information  on  needs  as  well  as  available  resources  are  (without 
additional support from crisis teams) not always sufficient. Current legislation and guidelines 
on  reimbursement  of  assistance  entail  quite  generic  and  cumbersome  procedures,  which  are 
generally  not  applied  as  they  are  not  adapted  to  the  specific  needs  in  times  of  crisis15.  If 
financial burden-sharing is not clear and is not taking place in practice, there is less incentive 
to take a proactive approach which entails responsibilities not related to own nationals. 

3. 

SUBSIDIARITY 

Assistance  for  unrepresented  EU  citizens  by  definition  entails  a  cross-border  dimension, 
extending  the  rights  granted  by  EU  Citizenship  beyond  EU  borders.  This  initiative  is  on  a 
specific  right  granted  to  the  EU  citizen.  This  right  is  inherently  linked  to  concept  and 
competences  of  the  Union.  EU  action  should  bring  about  economies  of  scale.  Streamlined 
coordination  and  cooperation  procedures  and  a  clearer  role  of  local  actors,  including  of  the 
Union  delegations,  will  reduce  the  need  for  ad  hoc  decisions  taken  and  for  individual 
instructions.  EU  action  under  the  Lisbon  Treaty  will  also  allow  for  effective  monitoring  of 
implementation and facilitate ensuring compliance. 

4. 

OBJECTIVES 

Any measure taken should achieve the following objectives. 

OBJECTIVES 

12 

13 

14 
15 

Representatives of Member States consulted expressed different views (e.g. travel distance of less than 
400 km or on an island). 
These  services  may  not  relate  to  cases  of  immediate  emergency, but having  to  travel to  another  third 
country to obtain this service is often cumbersome. 
Individual actions focusing on own nationals rather than coordinated approach. 
Notably high time pressure and considerable numbers of citizens to be assisted. 

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GENERAL 

To foster the implementation of EU citizenship ensuring equal treatment for 
unrepresented  EU  citizens;  for  a  high  level  of  protection  of  citizens' 
fundamental rights and to promote EU values such as non-discrimination and 
mutual solidarity. 

SPECIFIC 

• 

• 

To clarify content and operationability of this right. 

To  simplify  cooperation  and  coordination  between  consular 
authorities. 

OPERATIONAL  To provide the basis for a stable framework on cooperation and coordination 

by defining: 

• 

• 

• 

• 

who is an unrepresented EU citizen; 

which of the Member States present in a third country has to assist 
an unrepresented EU citizen and how assistance is to be coordinated 
with the citizen's Member State of origin; 

how the authorities present in a given third country should cooperate 
and coordinate amongst each other and what the role of the European 
Union entails; 

how  and  by  whom  unrepresented  EU  citizens  should  be  assisted  in 
crisis situations and how financial reimbursement should operate. 

5. 

• 

• 

POLICY OPTIONS 

Policy Option 1: Retention of the status quo: no additional action at EU level. 

Policy  Option  2:  Directive  establishing  coordination  and  cooperation  measures  to 
further  facilitate  consular  protection  for  unrepresented  EU  citizens,  reinforced  by 
targeted awareness-raising measures. 

This option would cover the four operational objectives and ensure effective implementation 
due to targeted awareness-raising for citizens and practitioners. 

• 

Policy Option 3: Further and tighter cooperation measures. 

This  option  would,  in  addition  to  option  2,  ensure  that  consular  protection  is  also  given  on 
equal  terms  to  long-term  residents  and  recognised  refugees;  include  simple  forms  of 
legalisation and of notary services and reinforce reimbursement in crisis situations by setting 
up  a  reimbursement  mechanism  or/and  enhanced  EU  co-funding  specifically  for 
unrepresented EU citizens. 

6. 

ASSESSMENT OF IMPACTS 

The impacts of the options were assessed as follows. 

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Effectiveness in meeting objectives 

• 

• 

1. 

2. 

3. 

4. 

5. 

• 

1. 

2. 

3. 

Policy  Option  1:  This  option  will  not  contribute  to  further  facilitating  cooperation 
and  coordination  for  the  benefit  of  the  unrepresented  EU  citizen.  The  right  on 
consular protection will continue to lack clarity, hampering the full operability of this 
right. The spectrum of enforcement mechanisms will not be fully applied. 

Policy Option 2: A directive will foster the implementation of EU citizenship as a 
concrete  reality,  by  clarifying  the  content  of  this  right,  by  streamlining  cooperation 
and cooperation procedures and by allowing for enforcement mechanisms. This will 
be brought about by the following measures: 

Personal  scope:  Clarifying  when  a  citizen  is  unrepresented  (in  particular  under 
which  circumstances  the  consular  and  diplomatic  representation  of  his/her  home 
Member  States  is  not  "accessible")  and  to  which  extent  also  third-country  family 
members of unrepresented EU citizens are included. 

Access  to  consular  protection  and  cooperation/coordination:  Specifying  which 
Member State has to assist an unrepresented EU citizen and how this assistance is to 
be coordinated with the citizen's Member State of origin. 

Local  coordination/EU  added  value:  Laying  down  that  local  cooperation  should 
systematically include collecting pertinent information and clarifying the role of the 
Union  delegations  (logistic  and  operational  support,  facilitating  the  exchange  of 
information, etc.). 

Assistance 
including 
in  crisis  situations/financial  reimbursement:  Fully 
unrepresented  EU  citizens  in  contingency  planning,  clarifying  responsibilities  in 
times  of  crises  (notably  regarding  the  role  of  the  Lead  State),  simplifying  financial 
procedures for reimbursement. 

Awareness-raising for citizens and practitioners supporting the implementation of 
the Directive. 

Policy Option 3: The additional measures foreseen under this option would notably 
have the following effects: 

Personal  scope:  Treating  refugees  and  long-term  residents  like  unrepresented  EU 
citizens would foster the implementation of EU citizenship in a large sense, however 
–  given  that  Member  States  generally  do  not  by  law  grant  assistance  -  fixed  rules 
would currently appear too ambitious. 

Cooperation  and  coordination  measures:  Including  cooperation  and  coordination 
measures on simple forms of legalisation and notary services would increase service 
for  the  citizen  and  mutual  trust.  However  Member  States'  rules  still  vary 
considerably, with EU legislation within the EU being foreseen for 2013. 

Assistance  in  crisis  situations/financial  reimbursement: Member  States  could  be 
encouraged 
they  can  do  so  via  an  EU 
reimbursement/clearing house mechanism, however given stakeholders' views there 
is a risk that such a mechanism would not be sufficiently used. Enhanced financial 

reimbursement 

to  ask 

for 

if 

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support at EU level would reduce inequalities between assisting and assisted Member 
States but synergies with existing EU instruments should be fully exploited. 

Social impacts and fundamental rights 

• 

• 

• 

Policy  Option  1:  The  fundamental  right  on  consular  protection  will  not  gain  full 
effectiveness  as  core  concepts,  responsibilities  and  procedures  are  not  sufficiently 
clear and effective implementation and application will not be ensured. This could in 
turn undermine the credibility and perception of the Charter of Fundamental Rights 
and of a Union based on solidarity and non-discrimination. 

Policy  Option  2:  This  option  would  enhance  the  fundamental  right  on  consular 
protection.  Including  non-EU  family  members  would strenghten the  right to  family 
life as well as the rights of the child. Clearer responsibilities and improved burden- 
sharing  in  crisis  situations  would  ensure  non-discrimination  also  in  times  of  crisis 
when fundamental rights are a sensitive issue. Life and integrity of the person and the 
right of defence and of a fair trial would be reinforced. 

Policy  Option  3:  The  positive  impact  on  social  considerations  and  fundamental 
rights would generally be high. Consular protection would be further reinforced (e.g. 
by  providing  for  legalisation  services).  Facilitating  reimbursement  through  a 
compensation mechanism/clearing house and/or EU funding would better safeguard 
non-discriminatory treatment of unrepresented EU citizens. 

Financial and economic impacts 

• 

• 

16 
17 

18 

Policy Option 1: No direct new financial costs are induced by this option. However, 
efficiency losses will continue to occur and the use of the existing resources will not 
be further improved. Current inequalities in financial engagement in crisis situations 
will remain the same. 

Policy Option 2: The financial impact of the legal measures would amount to about 
750,000 EUR per year for the assisting Member States16; no additional resources will 
be  needed  for  the  Union  delegations17.  Regarding  facilitation  of  reimbursements 
implementation costs can be estimated at 89,610 EUR for all the Member States. The 
savings  of  the  assisting  Member  States  would  depend  on  the  individual  case.  The 
additional  financial  burden  for  unrepresented  Member  States  would  be  limited  and 
still  –  due  to  economies  of  scale  –  be  more  beneficial  than  organising  assistance 
separately  for  their  own  unrepresented  citizens.  Comprehensive  awareness-raising 
would  induce  costs  of  approximately  1  million  EUR  for  an  EU-wide  information 
campaign.  This  policy  option  would  also  have  a  positive  economic  impact  for 
unrepresented citizens who might be less inclined to seek support on their own from 
suboptimal alternative sources and save time18 (savings would amount to more than 
1,8 million  EUR). 

Due to the expected increase of cases concerning unrepresented EU citizens. 
The necessary involvement can be estimated at the level of 10 working days of an EU official per Union 
delegation (which would not require additional human resources). 
The benefits to unrepresented EU citizens in everyday situations were estimated using two elements: 1) 
time  saving  to  previously  unassisted  citizens  or  to  citizens  receiving  assistance  quicker  -  this  is 

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• 

Policy  Option  3:  Given  the  necessity  of  additional  human  and  financial  resources 
this option would generate considerably higher costs than option 2, both at EU level 
and  for  Member  States.  Notably  a  compensation  mechanism/clearing  house  would 
trigger additional costs at EU level (at least 112.000 EUR a year plus additional cost 
of establishment of electronic files/ maintenance), EU funding would induce costs of 
about  16-31  million  EUR  for  a  funding  period  of  6-7  years19.  Additional  costs  of 
managing  the  fund  at  EU  level  would  be  estimated  at  least  at  the  level  of  780.000 
EUR. 

7. 

COMPARISON OF OPTIONS 

Objectives/Costs:  Effectiveness 

in 

meeting 
objectives 

impacts 
Social 
and fundamental 
rights 

Financial 
economic 
impacts 

and 

0 

++ 

0 

low 

Policy Option 1: 

0 

Status quo 

Policy Option 2: 

++ 

EU  Directive  on 
and 
cooperation 
coordination 
measures 
and 
awareness raising 

Policy Option 3: 

++(+/-)20 

++(+/-)21 

medium/high22 

EU 
measures 
setting out further 
rules  and  further 
strengthening  the 
rights  of  the  EU 
citizens 

estimated  using  average  daily  wages  and  estimated  to  be  €60;  2)  avoiding  an  ‘inconvenience’  cost 
associated  with  receiving  sub-optimal  assistance  or  having  to  seek  out  other  forms  of  assistance. 
Estimating  this  cost  takes  the  system  of  compensation  for  air  passengers  as  the  point  of  departure, 
assuming  the  similarity  of  situation  of  a  citizen  requiring  the  consular  assistance  and  a  stranded  air 
passenger.  
Depending on whether 50% or a higher percentage of the activities would be financed. 
Depending  on  the  measure:  1.  Regulating  the  concept  of  "accessibility"  by  laying  down  a  specific 
amount  of  kilometres  may  even  reduce  effectiveness  as  local  circumstances  (quality  of  transport 
networks) would not be sufficiently taken into account. 2. Including long-term residents, refugees and 
legalisation would further enhance effectiveness (but depart too much from the current framework). 3. 
A reimbursement mechanism would not enhance effectiveness if only rarely used by Member States. 4. 
EU-funding  would  have  a  beneficial  effect  as  Member  States  would  be  more  inclined  to  proactively 
assist unrepresented EU citizens. 
Idem. 

19 
20 

21 

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Following  a  comparison  of  the  policy  options,  in  view  of  their  costs  and  effectiveness  in 
attaining  the  objectives  set,  policy  option  2  (EU  Directive  on  cooperation  and  coordination 
measures)  is  identified  as  the  best  placed  variant  and  therefore  constitutes  the  preferred 
option.  A  Directive  entailing  the  proposed  elements  would  provide  the  basis  for  a  stable 
framework  on  cooperation  and  coordination. It would ensure  equal protection, by providing 
for a right with a clear and reliable content based on simplied coordination and cooperation 
procedures.  This  may  lead  to  a  limited  increase  in  requests,  but  requests  would  be  more 
focused given the increased clarity about the content of this right. In comparison to the overall 
costs  of  assisting  nationals,  additional  costs  for  assisting  unrepresented  EU  citizens  are  still 
going  to  represent  a  minor  proportion;  for  more  costly  evacuations  an  improved 
reimbursement  system  will  be  provided  for.  To  maximise  effectiveness  of  this  option, 
awareness-raising  measures  should  be  included;  in  view  of  the  financial  impacts  a  fully 
fledged awareness-raising campaign should accompany the implementation of the Directive; a 
full understanding of the content of this right is a precondition. 

Option 3 is effective in achieving  the  objectives  set,  whilst option 2 is only marginally less 
effective.  Including  refugees  and  long-term  residents  as  well  as  simple  legalisation  of 
documents would however depart considerably from the current framework, which is deemed 
to be premature at this stage23. The costs induced by option 3 would be considerably higher 
than those likely to be incurred by option 224 and synergies with the European Civil Protection 
Mechanism would not be fully exploited. 

8. 

MONITORING AND EVALUATION 

The envisaged deadline for transposition of the Directive will be two years following its entry 
into force. Given that the Directive at least partially reflects existing practices, two years are 
deemed sufficient. 

To make sure that the provisions of the Directive are adequately complied with, a functional 
monitoring  and  evaluation  mechanism  will  be  provided  for.  To  remedy  the  current  lack  of 
comprehensive  data  the  Directive  will  call  on Member  States  to  inform  the  Commission  on 
the  implementation  of  this  right,  including  by  a  yearly  overview  on  statistics  and  relevant 
cases. A report, coming after 3 to 5 years of the implementation of the Directive, should entail 
a specific study with emphasis on data collection.  

22 

23 
24 

Depending  on  whether  regarding  reimbursement 
mechanism/clearing house or also EU-funding would be opted for. See Annex VI for further details. 
For further details please see above (analysis of impacts of the specific elements of option 3). 
In particular if EU co-funding would be opted for. 

in  crisis  situations  only  a  compensation 

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