Consular Protection to EU citizens in third countries: A loss of interest? writes Igor Merheim-Eyre

globaleurope, Igor Merheim-Eyre |

The European Union very often likes to remind us that it is a community of values – solidarity, non-discrimination, human rights, and so on. This is all very well but, as Khrushchev once reminded Marxist enthusiasts in the Politburo, you cannot simply put theory into your soup. The question therefore is, what do these values mean in practice?

European citizenship is perhaps an area that raises eyebrows on all sides: it confuses eurocrats, while EU citizens merely understand its meaning beyond having the same coloured passport, or the right to vote in the European Elections, including in Member States they might be residing that are other than their own. Consular assistance to EU citizens is, however, one area that clearly deserves more publicity than it is given. Why? Well, numbers speak for themselves: according to the Commission, 90 million EU citizens travel annually outside the EU, of which 7 million travel or work in third countries where their Member State has no consulate or an embassy. Now, with a new Council Directive in place, this under-estimated but extremely important (and, it is safe to say, sensitive) area of European cooperation deserves a few words from an analyst who has been following its development now for a number of years.

Although consular cooperation in one form or another has been in existence since the Single European Act (1986), it was the Maastricht Treaty that explicitly stipulated that ‘every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State’.

In 1995 the Council agreed on a Directive (95/553/EC) which included basic provisions on issues such as stolen passports, detention, victims of crime and repatriation. The Directive, however, was not ratified by Member States’ legislatures until after the September 11 Attacks in the US brought the security of EU citizens abroad high on the agenda.

The post-9/11 debate opened two big questions. Firstly, string of man-made and natural disasters (Asian Tsunami, Bali bombings, Mumbai bombings or the 2006 war in Lebanon) shifted a focus on cooperation to post-disaster response, such as immediate humanitarian relief and repatriation away from the disaster area.

With lack of coordination between Member States (for example, planes carrying aid South East Asia in the wake of the 2004 tsunami have been accused of flying back to the EU empty), the Civil Protection Mechanism within the European Commission’s Directorate General for Humanitarian Aid & Civil Protection (DG ECHO) was re-organised to provide support in case of consular emergencies. This included a monitoring centre, and the possible dispatching of EU-funded transport and medevac planes.

Secondly, from 2006 and, in particular, from the coming into effect of the Treaty of Lisbon, further debate emerged on the possibilities of shared or even EU consulates in EU delegations. When the European External Action Service (EEAS) was created, a Consular Crisis Unit was put together in order to create a monitoring centre and work on possible EU-level synergies.

True, EU delegations (also backed up by the EEAS’ inherited Consular Online communication system) have provided armoured buses to evacuate 100 EU citizens from Gaza in 2009, and in March 2011 the EU Delegation in Tripoli provided important assistance on the ground to Member States’ evacuation efforts, as well as the Civil Protection Mechanism’s sponsored flight.

However, the possibility of the EEAS and its Delegations abroad to receive any formals role in consular assistance remained wishful thinking. The fact of the matter was that (except for obvious legal challenges) the EEAS continuous to have neither the funding nor the expertise to provide such service. Delegations abroad continue to be the reflection of their former past in DG RELEX, and their staff work on technical projects, rather than being representatives as in the case of national embassies or consulates. Quite frankly, the setting up of fore-mentioned monitoring centre within the EEAS was a useless duplication that Catherine Ashton sought to unsuccessfully address through a merger with DG ECO structures.

Further, while Member States continue to wrestle with falling foreign ministry budgets, very few have been prepared to give up sovereignty over an area where the foreign ministries have direct access with the public. Nevertheless, through the period, and as was reflected in the lengthy negotiations over the new Directive, financing remained a big issue.

Bigger Member States, in particular, became increasingly afraid that they will bear much of the burden of ‘open access’ consular assistance. Some Member States, including the United Kingdom, refused to formally accept consular assistance as a ‘right’ of EU citizens (despite it being enshrined in the Charter of Fundamental Rights of the EU), but merely an ‘entitlement’, stipulating neither the minimum nor maximum level of protection a Member State consulate is obliged to provide.

Not surprisingly, the new Directive reflects this pain-staking development. Firstly, the consultation was launched by the Commission in 2006 and a proposal to the Council and the European Parliament was only published in November 2011. The Directive was eventually concluded in April of 2015, and a long road of ratification in Member States is expected.

At the same time, the Directive sees a shift from the debates of the previous decade; speculations about the role of the EEAS and its network of Delegations have been put to rest. Enthusiasts of a truly European diplomatic and consular service (including the former French foreign minister and EU Commissioner Michel Barnier) will be disappointed to find a mere supporting role of the EEAS, including provisions for providing relevant information on their rights to EU citizens, and organising local consular cooperation.

The Civil Protection Mechanism has clearly been highlighted as an important tool to be used in crisis situations. However the Mechanism’s most important input is the financial reimbursement mechanism, which the Hungarian Presidency used in March 2011 to dispatch a plane to Tripoli. In practice, however, dispatching and coordination of transport or consular teams remains more practical on the Member State level, where a designated Lead State is responsible in particular third country, without the necessity to community back and forth with Brussels.

Finally, financing was solved two-fold. Firstly, an EU citizen cannot be charged for assistance by a consulate more than the citizens of the Member State assisting them. Secondly, if costs cannot be paid immediately, the Member State of his or her nationality will pay the costs incurred, but only once the citizen signs an undertaking to repay such costs to his or her Member State upon safe return.

The question then remains, was this low-profile Council Directive part of a long-term strategy or a vision, or did it symbolise a loss of interest in cooperation? In short, there is no loss of interest, but grand ideas are missing. Michel Barnier will clearly not see his vision of EU consulates fulfilled any time soon, nor will we necessarily see EU-hatted rescue teams appearing too often.

The Directive is, however, an important step in clearing up a technical mine field. The 95/553/EC Directive was vague and opened more questioned than it helped to answer. That the new Directive has 14 detailed pages, in comparison to 4, is a testament to this. They are not 14 pages of delightful bed-time reading that will stand proudly on one’s book shelf, but they are 14 pages of important details that help to pave a way towards a better organised cooperation in the next decade.

Grand visions might be buried for now, but a more practical framework has been created instead. Writing this piece in a day dominated by terrorist attacks in France, Tunisia, Kuwait and conflicts across the globe, providing better protection to EU citizens has never been more important. That this new Directive has not been given a fanfare is more a testament to the EU’s awful ability to communicate with the citizens, than its capacity to provide a better managed system to save and protect well-beings of those travelling further and farther.

It is a welcomed decision that deserves a better recognition but, nevertheless, a telling reflection of our ability to create a Europe serving its citizens and, perhaps, making people proud of their burgundy-coloured passports. Overall, a positive conclusion for a debut article!

Igor Merheim-Eyre

This piece was originally published in the Vocal International (July 7, 2015)