COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a Council Directive amending Directive (EU) 2015/637 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and Directive (EU) 2019/997 establishing an EU Emergency Travel Document
Date: 2023-12-06
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, EU national, European passport, consulate, diplomatic protection, embassy, third country

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 6.12.2023  SWD(2023) 940 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a Council Directive amending Directive (EU) 2015/637 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and Directive (EU) 2019/997 establishing an EU Emergency Travel Document {COM(2023) 930 final} - {SEC(2023) 930 final} - {SWD(2023) 941 final} - {SWD(2023) 942 final}  
 
 
Subsidiarity Grid 

1.  Can the EU act? What is the legal basis and competence of the EUs’ intended action? 

1.1 Which article of the Treaty is used to support the legislative proposal? 

The legal basis for the proposal is the second paragraph of Article 23 of the Treaty on the Functioning 
of the European EU (TFEU). 

It  provides  that  the  Council,  acting  in  accordance  with  a  special  legislative  procedure  and  after 
consulting  the  European  Parliament,  may  adopt  directives  establishing  the  coordination  and 
cooperation measures necessary to facilitate the protection of EU citizens in the territory of a third 
country in which the Member State of which he is a national is not represented by the diplomatic or 
consular authorities of any Member State, on the same conditions as the nationals of that State. 

1.2 Is the EU competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

In the case of consular protection, the EU’s competence is shared. 

Subsidiarity does not apply for policy areas where the EU has exclusive competence as defined in 
Article 3 TFEU1. It is the specific legal basis which determines whether the proposal falls under the 
subsidiarity control mechanism. Article 4 TFEU2 sets out the areas where competence is shared 
between the EU and the Member States. Article 6 TFEU3 sets out the areas for which the EUs has 
competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at EU level? 

The proposal is based on various consultations that demonstrate that the action is best achieved at 
EU level. The evidence base is drawn in particular from the following:  

• 

the  Commission  Report  on  the  implementation  and  application  of  Directive  2015/637/EU  ( 
COM(2022) 437 final); 

•  discussions at the Council working party on consular affairs (‘COCON’) on further facilitating the 
exercise of EU citizens’ right related to consular protection in third countries in the context of a 
possible up-date of the Directive, between September and November 2022; 
the inception impact assessment and the responses received in response to it; 
• 
the Flash Eurobarometer 485 on EU Citizenship and Democracy; 
• 
•  an anonymised sample of citizen’s complaints received by DG JUST; 
• 

the  2020  EU  citizenship  report,  including  its  open  public  consultation  survey  with  consular 
questions; 

•  Member  States’  replies  to  the  questionnaire  developed  by  the  Expert  Group  Meeting  on 
Consular  Protection  of  8  December  2020.  Additionally,  Member  States  were  also  asked  to 

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https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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provide  qualitative  feedback,  through  interviews,  on  the  application  of  the  Directive  and  the 
problem  definition;  on  the  proposed  policy  options;  and  on  the  COVID-19  pandemic  lessons 
learnt; 

•  an online survey sent to EU delegations; 
•  a short survey collecting anecdotal information from a sample of unrepresented citizens; 
• 
interviews with stakeholders (citizens, industry, selected EU bodies); 
•  Data on consular activities provided by the EEAS Consular Affairs Division; 
•  a dedicated study from a contractor that gathered and analysed the evidence mentioned above. 

Consultations and their results are presented in Annex II of the impact assessment5. The explanatory 
memorandum  of  the  proposal6  and  the  impact  assessment  contain  a  section  on  the  principle  of 
subsidiarity as well as on the indicators to be used to assess the impacts of the proposal.  

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

Yes. Consular protection for unrepresented citizens entails, by definition, a cross-border dimension, 
given  its  nature  as  a  EU  citizenship  right  enjoyed  vis-à-vis  the  authorities  of  Member  States  other 
than those of one’s nationality.  

The  objectives  of this  proposal,  namely  to  improve  the  exercise  of  the  right  set  out  in  point  (c)  of 
Article 20(2) TFEU by unrepresented citizens, cannot effectively be achieved by the Member States 
independently,  given that doing  so  requires  amendments  to  certain  provisions  of  Council Directive 
(EU) 2015/6377. Action at EU level is thus necessary.   

In this context, the impact assessment contains the following: “Providing for common EU standards, 
safeguards  and  clear  procedures  for  cooperation  and  coordination  regarding  unrepresented  EU 
citizens is better achieved at EU level. A general subsidiarity check of whether the EU is best placed to 
act in the field of coordination and cooperation of consular protection to unrepresented citizens was 
already carried out at the time of the adoption of the Directive8, and remains valid. EU citizens’ right 
to consular protection are still, obviously, a cross-border issue and an integral part of EU citizenship, 
requiring better cooperation and coordination at EU level.  

Since  the  expiry  of  its  transposition  deadline  in  2018,  the  Commission  has  closely  monitored  the 
implementation  of  the  Directive,  as  demonstrated  by  the  recent  publication  of  the  Commission 
Report.  Combined  with  further  consultations,  the  report  showed  that  further  action  at  EU  level  is 
needed. Without timely and effective EU action, the problems identified in the report and their causes 
would  continue  to  hinder  the  exercise  by  unrepresented  EU  citizens  of  their  right  to  consular 
protection.” 

Absence to act at EU level would result in the rules of Directive (EU) 2015/637 not being adapted to 
address  the  shortcomings  identified  in  their  application.  In  addition,  the  rules  would  not  take  into 
account  the  experiences  gained  during  recent  consular  crises.  As  a  result,  EU  citizen  would  not  be 
able to enjoy their right of consular protection to a degree that would be possible by EU level action.  

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SWD(2023) 941 final. 
COM(2023) 930 final. 
Council Directive (EU) 2015/637 of 20 April 2015 on the coordination and cooperation measures to 
facilitate consular protection for unrepresented citizens of the Union in third countries and repealing 
Decision 95/553/EC (OJ L 106, 24.4.2015, p. 1, ELI: http://data.europa.eu/eli/dir/2015/637/oj). 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52011SC1556.  

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2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

The impact assessment contains the following: “The legal framework for the exercise of EU citizens’ 
right  to  consular  protection  involves  the  interaction  of  EU  and  (inter)national  rules.  Indeed,  the 
obligation  of  Member  States  to  provide  consular  protection  to  (unrepresented)  nationals  of  other 
Member States  has by definition a cross-border dimension. This means that  it cannot effectively be 
addressed by Member States acting individually.” 

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

Yes, the obligation of Member States to provide consular protection to (unrepresented) nationals of 
other Member States has by definition a cross-border dimension. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty9 or significantly damage the interests of other Member States? 

Yes,  as  national  action  to  address  the  shortcomings  identified  in  the  application  of  Directive  (EU) 
2015/637  may  result  in  Member  State  breaching  their  obligation  to  correctly  apply  the  national 
measures transposing that Directive. 

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

The proposed amendments would not affect Member States’ competences to determine the level of 
consular  protection  they  offer.  At  the  same  time,  they  cannot  put  in  place  measures  that  conflict 
with Directive (EU) 2015/637. 

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

The identified problems concern consular protection of EU citizens in third countries. They are cross-
border in nature and do not vary across national, regional and local levels across the EU. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

The  majority  of  Member  States  consulted  for  the  impact  assessment  saw  an  added  value  in  the 
proposed amendments.  

According to the impact assessment, of the 125 million trips that EU citizens made to third countries 
in  2019,  14.2  million  trips  were  to  countries  where  the  EU  citizens  were  not  represented  by  their 
Member  State  of  nationality.  There  are  currently  only  five  third  countries  –  the  United  States  of 
America, China, India, Russia and the United Kingdom – where all 27 Member States are represented.   

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

Absence to act at EU level would result in the rules of Directive (EU) 2015/637 not being adapted to 
address the shortcomings identified in their application. 

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

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The  majority  of  Member  States  consulted  for  the  impact  assessment  saw  an  added  value  in  the 
proposed  amendments.  Consultations  undertaken  for  the  preparation  of  this  legislative  proposal 
have shown that the views and preferred courses of action are mostly similar across the EU.  

2.4 Based on the answer to the questions below, can the objectives of the proposed action be 
better achieved at EU level by reason of scale or effects of that action (EU added value)? 

Yes.  The  proposal  aims  to  tackle  difficulties  experienced  by  unrepresented  citizens.  Improving 
consular  protection  of  EU  citizens  abroad  by  reinforcing  EU  solidarity  and  cooperation  in  this  field 
ensures that EU citizens continue to benefit from this right according to the highest standards.   

These objectives would be best achieved through targeted amendments to Directive (EU) 2015/637. 
The  adoption  and  uniform  application  of  these  rules  throughout  the  EU  cannot  be  achieved  by 
Member States acting individually but can be achieved by EU legislation. The mere application of soft 
measures  does  not  go  far  enough  to  tackle  the  problems  identified  and  thus  does  not  meet  the 
objectives fully.  

For reasons of scope and effects, the objectives of the proposal would  thus be best achieved at EU 
level in accordance with the principle of subsidiarity. 

(a)  Are there clear benefits from EU level action?  

Yes. The adoption of improved rules on the consular protection of EU citizens can be best achieved 
by EU legislation.  

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

The  current  problems  in  the  application  of  the  rules  on  consular  protection  of  unrepresented  EU 
citizens may have an adverse impact on the fundamental rights and other rights of those persons in 
crisis situations. In view of this, the quantitative size of the problem in terms of the absolute number 
of citizens affected by the problems should not be considered as the primary or only indicator of the 
seriousness of the problem, or as the basis to assess the need for the  EU to take action to address 
the problem. 

Each failure to provide effective consular protection to EU citizens in distress not only has concrete 
negative consequences for the citizens and their families concerned, but it also poses a reputational 
risk for the Member States and the EU. Consular protection is prone to becoming more relevant in 
the  future  as the  frequency,  severity  and  duration  of  crises  are  likely  to  increase,  including  due  to 
global warming. 

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

The  right  to  consular  protection  is  a  cross-border  issue  and  an  integral  part  of  EU  citizenship, 
requiring cooperation and coordination at EU level. The introduction of improved rules at EU level on 
consular protection would avoid the current problems faced by unrepresented citizens and consular 
authorities.  This  would  provide  greater  legal  certainty  and  remove  gaps  and  inconsistencies  in  the 
application  of  the  rules  on  consular  protection.  This  would  be  in  line  with  the  values,  rights  and 
objectives of the Treaties. 

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(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

Under  this  proposal,  Member  States  retain  their  regulatory  autonomy  with  regards  to  the  level  of 
consular  protection  they  provide.  Already  existing  rules  at  EU  level  would  be  amended.  Therefore, 
the proposed new rules would – if at all – only result in a minimal loss of competence for Member 
States  and  their  competent  authorities.  The  benefits  of  proposed  amendments  outweigh  any 
potential loss of competence. 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

The proposal aims to ensure legal certainty for unrepresented citizens and consular authorities. Legal 
uncertainty  for  the  actors  involved,  in  particular  in  crisis  situations,  undermines  their  capacity  to 
respond  effectively  to  the  situation,  therefore  hindering  EU  citizens’  access  to  their  fundamental 
right to consular protection. 

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

The  explanatory  memorandum  contains  the  following  text  on  the  proportionality  of  the  legislative 
proposal: 

“The  objectives  of  this  proposal  can  be  achieved  by  way  of  amendments  to  certain  provisions  of 
Directive (EU) 2015/637. 

In doing so, the proposal does not go beyond what is necessary to achieve this objective, as it does 
not fundamentally alter the existing rules and procedures of Directive (EU) 2015/637. In particular, it 
does not propose the introduction of additional procedures, but rather strives to streamline existing 
ones  to  lower  the  administrative  burden  on  Member  States  and  facilitate  the provision  of  consular 
protection. For example, the proposal would allow assisting Member States to collect costs, in a non-
discriminatory  manner,  directly 
from  unrepresented  citizen,  rather  than  having  to  seek 
reimbursement from the citizen’s Member State of nationality.” 

Additional explanations as to the proportionality of the different policy options – including the policy 
options not retained – can be found in the impact assessment accompanying the proposal. 

3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

The  legislative  proposal  addresses  the  identified  issues  in  the  most  appropriate  and  proportionate 
way to achieve the intended objectives.  

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the EU can do better? 

Yes.  The  proposal  only  contains  common  rules  to  the  extent  necessary  to  achieve  the  policy 
objectives and is limited to those aspects that Member States cannot achieve satisfactorily on their 

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own.  In particular, the  proposal does not interfere with national substantive  law  in the field of the 
consular protection.  

(b)  Is the form of EU action (choice of instrument) justified, as simple as possible, and coherent 
with the satisfactory achievement of, and ensuring compliance with the objectives pursued 
(e.g. choice between regulation, (framework) directive, recommendation, or alternative 
regulatory methods such as co-legislation, etc.)? 

In line with its legal basis, Article 23(2) TFEU, the proposed instrument is a directive. As it seeks to 
amend the rules contained in Directive (EU) 2015/637, no other form is possible.  

(c)  Does the EU action leave as much scope for national decision as possible while achieving 

satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument or approach?) 

The proposal strikes a balance between the regulatory autonomy of Member States and the need to 
tackle the identified issues in providing consular protection to unrepresented EU citizens. As it seeks 
to  amend  the  rules  contained  in  Directive  (EU)  2015/637,  limiting  the  proposal  to  a  less  stringent 
policy instrument is not possible. 

(d)  Does the initiative create financial or administrative cost for the EU, national governments, 
regional or local authorities, economic operators or citizens? Are these costs commensurate 
with the objective to be achieved? 

It  is  assessed  that  the  proposal  will  result  in  financial  and  administrative  benefits  to  stakeholders 
compared to the status quo: 

Less time and effort needed from citizen to be identified as unrepresented. 

- 
-  Better distribution of the burden of assistance among Member States. 
- 
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- 

Smoother and more effective coordination and cooperation procedures. 
Improved access by EU citizens to information on who can be assisted. 
Improved  registration  procedures,  resulting  result  in  efficiency  gains  for  administrations  when 
seeking to contact citizens in case of crisis situations. 
Smoother and quicker financial reimbursements. 

- 

The  costs  of  the  initiative  would  be  commensurate  with  the  objectives  to  be  achieved.  A  detailed 
estimation of the costs can be found in the impact assessment accompanying the proposal. 

(e)  While respecting the EU law, have special circumstances applying in individual Member 

States been taken into account? 

No special national circumstances requiring a specific treatment for individual Member States in the 
legislative  proposal have been identified during the performance of the supporting study or during 
the consultations undertaken to prepare this legislative proposal. 

The proposed provisions aim to respect national legal traditions in the field of consular protection. 

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