Green Paper: diplomatic and consular protection of Union citizens in third countries

PURPOSE: to present the Commission’s Green Paper on diplomatic and consular protection of Union citizens in third countries.

BACKGROUND: Article 20 of the EC Treaty entitles all Community nationals to diplomatic and consular protection from a Member State of which they are not nationals if their Member State of origin does not have a Representation in the third country in question. The European Commission wishes to improve the information available to citizens, examine the scope of diplomatic and consular protection, set up Member State "common offices", and develop links with third-country authorities.

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. This situation became patently clear at the end of 2004 when the tsunami hit South East Asia, where most of the Member States did not have a representation in the countries affected by the disaster.

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 which 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 difficulties.

This 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 States' powers, immediate assistance should be given to a national in difficulties. 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.

This Green Paper sets out ideas to be considered for strengthening the right to Community diplomatic and consular protection. Before carrying out the actions needed for this, the Commission wishes to launch a wide-ranging public debate with the European Parliament and the Council of the Union and with all interested parties, including European citizens.

The Commission wishes to receive contributions 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. This dialogue will end with a hearing open to all interested parties.

CONTENT: it is essential to ensure that citizens are more fully informed about consular protection. The Commission suggests several measures, some of them immediate, and others that require more complex decision-making at European level.

1)          Improving information for citizens;

2)          Extending the scope of protection for citizens;

3)          Set up structures and provide adequate;

4)          Request the consent of the third-country authorities.

1) Improving information for citizens: the institutions and the Member States should ensure that citizens and the trade sectors involved in passenger transport, such as travel agencies, are provided with regular information. The Commission suggests the following 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;
• promoting citizen information services.

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. 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 necessary contact details.

Other actions include:

• adopting a Commission Recommendation calling on the Member States to print Article 20 EC in passports;
• providing advice to 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 knowledge of the country concerned or the nature of its links with that country;
• publishing any measures implementing Article 20 EC (e.g. guidelines on the application of this Article should be published in the Official Journal).

2) Enlarging the scope of protection for citizens: 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.

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

a)      protection of European citizens working and living in third countries : the Commission suggest including 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;

b)      protection of the 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 2006, 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 citizens 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 by appropriate means (amend Decision 95/553/EC or Commission proposal on the basis of Article 22 EC);

c)      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. The suggested actions are as follows: in the short term: i) amend Decision 95/553/EC in order to include the identification and repatriation of remains ; ii) recommend Member States which are not yet contracting parties to the 1973 Strasbourg Convention to accede to it. In the long term: i) simplify procedures for repatriating remains ; ii) possibly set up a European compensation system; iii) encourage research and development of DNA analysis tools and encourage some European laboratories to specialise in victim identification;

d)     simplifying procedures for financial advances : Decision 95/553/EC shows the complexity of the procedure 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 a document promising to repay; the Member State of 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.

3. Structures and resources: several actions have been proposed:

• 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 situation may be different in the case of large groups of people in the wake of disasters, pandemics, acts of terrorism or military conflicts. One way of dealing with this sort of situation would be to set up common offices, an idea which has been backed by European Parliament. 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 functions, under the authority of their State, in common offices. Initially, the four experimental areas proposed include: i) initially set up “common offices” in the Caribbean, the Balkans, the Indian Ocean and West Africa; ii) publish rules establishing a system of deputising between Member States in third countries; iii) organise information campaigns encouraging citizens to register at the common office; iv) in the long term, common offices could perform consular functions, such as issuing visas or legalising documents;
• 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 institution officials on, for example, EU external border checks, repatriation of remains or the right to diplomatic and consular protection.

4) Consent of the third-country authorities: 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. Under Article 20 EC Member States must start the international negotiations required to this end. Each Member State is therefore expected to initiate bilateral negotiations with third countries. But it would also be possible, in “mixed” agreements concluded by the Community 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 represented on the spot. In the long term, the question of the application of this diplomatic protection could arise if it resulted from the exercise of Community competence.