After Lisbon a reshuffle for the consular and diplomatic protection of the EU citizens ?

Will the Treaty of Lisbon, the new Stockholm Programme and the new figure of the European Union High Representative wake up the sleeping beauty of the consular and diplomatic protection of the European citizens ?

Even the Head of State and Government have recognised that “..This right, enshrined in the Treaties, is not well publicised, and more effort is needed to ensure its full application. Targeted communication campaigns could be conducted in connection with this right…” Moreover they have invited the Commission to “..consider appropriate measures establishing coordination and cooperation necessary to facilitate consular protection in accordance with Article 23 TFUE.”

As a matter of fact not many of the half billion European citizens know that since the entry into force of the Maastricht Treaty in 1994 …[e]very citizen of the Union shall, in the territory of a third country in which the Member State of which he 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 State.” (art. 23 TFUE, formerly art 20 of TEC)

It is worth recalling that under international public law, both customary and treaty law (1) , Consular and diplomatic protection should be provided by the States to their nationals.

In particular Consular protection or assistance is the provision of help and immediate assistance by a State to its nationals, both individuals and bodies, or to nationals of another State (2) when in distress. The most frequent situations are the relief and repatriation of distressed citizens of the Union, the assistance of victims of serious accident or serious illness, or of violent crime or the assistance to people arrested and detained or even the repatriation of the bodies in cases of death or catastrophes such the tragic Haiti earthquake. In these case, the State supports, by career or honorary consuls, its nationals (or non-nationals) in asserting their rights under the legal system of a foreign State, provided that the individual concerned has given his consent.

Diplomatic protection consists of the invocation by a State of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility (3) . In this case, the State acts on its own behalf, to protect its rights, on an international level and through diplomatic action or other means of peaceful settlement conducted by diplomatic officials or Government representatives (4) .

It is only very recently the EU has been associated to the exercise of these functions so deeply rooted in the States sovereign functions and this it happened only during the last twenty years with the developpement of the Schengen cooperation which brought progressively together the officials of the member states administrations in activities such as the visa delivering and by implementing the same common consular instructions.

Therefore Member States remain jealously attached to these functions and even after the Lisbon Treaty they avoided a legislative role of the EU institutions by stating that “Member States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.

Even if the wording of art. 23 TFUE is adamant in conferring directly to EU citizens (5) this right (confirmed also in Article 46 of the now legally binding Charter of Fundamental Rights of the European Union) to transform it in a reality and to enforce it before a judge, Member States should have had agreed a sound and coherent legal implementing framework.
Therefore the true fact is that since the entry into force in ’94 of art. 20 TEC only few binding acts have so far been taken by the Member States (6) and art. 1 of the first ’95 general decision (which entered into force only in 2002), covers only the consular protection .
Even in this case the approach has been minimalistic as it appears from the one page Decision of ’95 (7) which looks more anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, than to establish a full fledged system of assistance and alleviate suffering for EU citizens.

In the last twelve years no other bindings acts have been adopted on Consular protection and only recently, after 2006, under the pressure of the European Council and of the Commission the member states have agreed on some complementary and non-binding Guidelines on consular protection of EU citizens in third countries as well as on non-binding measures to counter crisis outside the territory of the EU (such as the notion of the “Lead State Concept” according to which a member state will on voluntary basis coordinate the consular protection in a specific third country and prepare if needed evacuation plans in case of disasters or of terrorists attacks) (8).

Moreover there are not many signs that Member States have started ” … the international negotiations required to secure this protection. “ as required by art. 23 of the TFUE (former art. 20 of the EC Treaty)

It could then be considered an understatement the European Parliament declaration according to which the right to consular and diplomatic protection has remained ‘underdeveloped’(9). The Strasbourg Assembly should then be praised as it asked to the Member States and Commission to foster the current situation by improving the current :
a) – lack of legal certainty : The generic brochure published on the Council Site and the publication on the EU Citizens passports of the art.23 TFUE (former 20 TEC) are useful but, still , could not be considered sufficient for European Citizens who can challenge this situation before the national and european Courts;
b) – lack of common EU standards. For the time being Member States are obliged not to discriminate between their own nationals and citizens of the other EU countries. Given that the standards granted are different according to the countries concerned (for instance it seems that Danes authorities, due to their constitutional duties ensure a wider protection than the one the UK authorities give) also the treatment granted for the non nationals will be different from the one they can enjoy from their own country.
c) – lack of operational transparency. The situation is unsatisfactory also as far as the practical issues are concerned as there is no simple way to know which consular post of an EU Member State could be contacted in a specific third country . Even the notion of “lead state” remain very vague even between the Member States themselves (guess how could be for one of the 180 millions of EU citizens travelling abroad ..)
d) – lack of financial solidarity. The most frequent cases are the ones of people who lost everything and need financial help. Due to the absence of common system of compensation between the member States (such as the ones who exists on the territory of the EU for other purposes) the Consular Offices are very reluctant in assuming financial burdens.

Will this unsatisfactory situation be overcome ?

After the Lisbon Treaty the EU institutions even if without legislative powers will be entitled to financially and logistically support the MS actions in the framework of EU Directives to be adopted according to art. 23 of the TFUE as evoked in the Stockholm Programme.

It is more than likely that the first proposals will mainly try to overcome the weaknesses denounced by the EP resolution (clear definition of scope of the consular protection, financial compensation system between the Member States when anticipating money for another MS citizen, creation of an Internet global site which can give the links to the “Lead State” offices in each third Countries …etc etc) even if this institution will not be involved in codecision but will be only consulted…

Moreover a positive evolution could come out from the strengthened cooperation between the MS diplomatic missions with the new European Union External Action Service as defined by the Article 35 TEU (ex Article 20 TEU) which states that :
“The diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented.
They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 20(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 23 of that Treaty.”

It is worth noting that some signals of this change of attitude and more positive approach from the MS diplomats could be taken in the latest Council report on the ways to respond to disasters in third countries.
In the same perspective it is also possbile that the European Parliament even if it would not play a direct legislative role will probably make full use of its budgetary powers to make more evident the european solidarity in these situations.
EDC

NOTES
(1) See also Vienna Convention on Diplomatic Relations of 1961, United Nations, Treaty Series, Vol. 500, p. 95. http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf and Vienna Convention on Consular Relations http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf
(2) Article 5 (e) and 8 Vienna Convention on Consular Relations. In particular, the latter states: ‘Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State’.
(3) International Law Commission, Article 1 Draft articles on Diplomatic Protection.
(4) Provided that the requirements of diplomatic protection have been met, i.e. there has been a violation of international law for which the respondent State can be held responsible, local remedies have been exhausted and the individual concerned has the nationality of the acting State. According to Articles 46 and 45 (c) Vienna Convention on Diplomatic Relations, only temporary and at the request of a third State not represented in the receiving State or in case of breakdown in diplomatic relations between two States, a State may, with the prior consent of a receiving State, undertake the protection of the interests of the third State and of its nationals.
(5) In a consistent line of case law, the ECJ has elaborated different aspects and consequences inherent to these treaty provisions, emphasising that “citizenship of the Union is destined to be the fundamental status of nationals of the member states”. See inter alia ECJ, Case C-413/99, Baumbast [2002] ECR I-7091, para. 82; for a recent assessment see Attorney General Colomer, opinion in Cases C-11/06 and 12/06, Morgan and Bucher, 20.3.2007
(6) See: 95/553/EC: 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 ; 96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)
(7) As example of a MS Ratification see FR: http://www.franceurope.org/pdf/adapt/decret2002701.pdf LUX: http://www.legilux.public.lu/leg/a/archives/1997/0049/a049.pdf#page=2
(8) See Council of the European Union, Guidelines on consular protection of EU citizens in third countries, Council Doc. 10109/06, 2.6.2006(a), as adopted by the General Affairs Council during its 2736th Council meeting in Luxembourg, 12.6.2006. See Council of the European Union, Reinforcing the European Union’s emergency and crisis response capacities, Council Doc. 10551/06, Brussels, 15.6.2006(b); see also M. Barnier, For a European civil protection force: Europe aid, European Commission, Brussels, May 2006
(9) European Parliament, Committee on Civil Liberties, Justice and Home Affairs, Working Document on diplomatic and consular protection for citizens of the Union in third countries, 13 June 2007, Rapporteur Ioannis Varvitsiotis http://www.europarl.europa.eu/oeil/file.jsp?id=5531372
(10) “CONSULAR ASSISTANCE : Besides further refining the Lead State Concept, two papers have been studied and adopted by the Consular Affairs working group, as part of the consular guidelines already approved by the Council: an “Internal Information Strategy”, aimed at ensuring proper training of consular staff on issues derived from obligations under the treaties; and a paper on “Consular Crisis Coordination”, aimed at strengthening cooperation during consular crises affecting several Member States. The Commission will assist in the development of a “training kit” on EU-related obligations, to be used by Member States in their national training of staff to be posted abroad. Work has also been initiated to develop the next generation of European emergency travel documents (ETDs) containing new security features. A Troika meeting has been held with the US to discuss issues of common concern and possibilities for strengthened cooperation in third countries. Training sessions for Member State’s consular staff have been organised, facilitating the exchange of information and best practise between actors in the field of consular protection.”

The new powers of the Court of Justice after the entry into force of the Lisbon Treaty

The press release published on November 30th by the Court of Justice is worth reading by everybody interested in the European Law as well by the every individual whishing to bthe protection of its rights.
The very essential and clear text is the following:

The Treaty of Lisbon and the Court of Justice of the European Union

The Treaty of Lisbon, which was signed on 13 December 2007 by the 27 Heads of State or Government of the Member States of the Union, comes into force on 1 December 2009. It amends the two fundamental treaties – the Treaty on European Union (TEU) and the Treaty establishing the European Community, with the latter to be known in future as the ‘Treaty on the Functioning of the European Union’ (TFEU). (1)
The Treaty of Lisbon makes changes to the organisation and jurisdiction of the Court of Justice of the European Union.

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New prospects for relations between the Court of Justice and national courts

Everyone knows the fundamental role of the Court of Justice in the construction of a European legal space. Indeed, thanks to its preliminary rulings which guide the work of national courts when they are called upon to enforce community law. Over the decades, the dialogue between European and national courts has ensured an increasingly faithfully interpretation of community law as well as the development of a true common legal culture.

After all, what value might have fundamental rights to stakeholders if judges are not capable to secure their correct application?

In this regard it must be recognised that the increased synergy between European and national judges (acting in this case as ‘European’ judges) together with the new powers of European Court of Justice in the area of freedom, security and justice resulted by the entry into force of the Treaty of Lisbon will definitely increase individual’s rights in this domain.

For example, in the field of police and judicial cooperation in criminal matters (the so-called “third pillar”), before the entry into force of the Lisbon Treaty, the Court’s ability to issue preliminary rulings relied upon Member States’ discretion on the basis of Article 35 of the Treaty on European Union (*). Indeed up to the 30 November several of these Member States did not accept the Court’s competence competence.

Another example relates to the domains ‘communitarised’ in 1999 with the Treaty of Amsterdam (immigration, borders, asylum and judicial and criminal cooperation). Although in this case the situation was a bit better, Article 68 TEC (**) limited the possibility to obtain pre-trial interpretation only to judges of last appeal.

With the Treaty of Lisbon this situation has radically changed. With a Communication  appeared in the Official Journal on 5 December, the European Court of Justice has published a series of apparently non-binding guidelines aimed at establishing a daily relation between national and European judges.

In this regard, the guidelines concerning the urgent preliminary ruling procedure related to the area of freedom, security and justice are particularly interesting. They state:

The procedure is governed by Article 23a of Protocol (No 3) on the Statute of the Court of Justice of the European Union (OJEU 2008 C 115, p. 210) and Article 104b of the Rules of Procedure of the Court of Justice. National courts may request that this procedure be applied or request the application of the accelerated procedure under the conditions laid down in Article 23a of the Protocol and Article 104a of the Rules of Procedure.”

Conditions for the application of the urgent preliminary ruling procedure

33. The urgent preliminary ruling procedure is applicable only in the areas covered by Title V of Part Three of the TFEU, which relates to the area of freedom, security and justice.

34. The Court of Justice decides whether this procedure is to be applied. Such a decision is generally taken only on a reasoned request from the referring court. Exceptionally, the Court may decide of its own motion to deal with a reference under the urgent preliminary ruling procedure, where that appears to be required.

35. The urgent preliminary ruling procedure simplifies the various stages of the proceedings before the Court, but its application entails significant constraints for the Court and for the parties and other interested persons participating in the procedure, particularly the Member States.

36. It should therefore be requested only where it is absolutely necessary for the Court to give its ruling on the reference as quickly as possible. Although it is not possible to provide an exhaustive list of such situations, particularly because of the varied and evolving nature of the rules of European Union law governing the area of freedom, security and justice, a national court or tribunal might, for example, consider submitting a request for the urgent preliminary ruling procedure to be applied in the following situations: in the case, referred to in the fourth paragraph of Article 267 TFEU, of a person in custody or deprived of his liberty, where the answer to the question raised is decisive as to the assessment of that person’s legal situation or, in proceedings concerning parental authority or custody of children, where the identity of the court having jurisdiction under European Union law depends on the answer to the question referred for a preliminary ruling.

However, it must be pointed out that these new competences will not be applied before five years  in the area of police and judicial cooperation in criminal matters for acts adopted before the entry into force of the Treaty of Lisbon (art. 10 Protocol 36).

Also with this temporally exception it is nonetheless clear that a new phase has now started also for European judges. The interpretation of community law can now be based on an even more authority Court which in turn can rely on the Treaty and the binding Charter on Fundamental Rights binding for all the institutions, including European and national judges.

EDC

(*) EX Article 35 (TEU)
1. The Court of Justice of the European Communities shall have jurisdiction, subject to the conditions laid down in this Article, to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions established under this Title and on the validity and interpretation of the measures implementing them.
2. By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1.

3. A Member State making a declaration pursuant to paragraph 2 shall specify that either:

(a)any court or tribunal of that State against whose decisions there is no judicial remedy under national law may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity or interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment, or

(b) any court or tribunal of that State may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity of interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment. Treaty on European Union 25

4. Any Member State, whether or not it has made a declaration pursuant to paragraph 2, shall be entitled to submit statements of case or written observations to the Court in cases which arise under paragraph 1.

5. The Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

6. The Court of Justice shall have jurisdiction to review the legality of framework decisions and decisions in actions brought by a Member State or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The proceedings provided for in this paragraph shall be instituted within two months of the publication of the measure.

7. The Court of Justice shall have jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of acts adopted under Article 34(2) whenever such dispute cannot be settled by the Council within six months of its being referred to the Council by one of its members. The Court shall also have jurisdiction to rule on any dispute between Member States and the Commission regarding the interpretation or the application of conventions established under Article 34(2)(d).

(**) Article 68 TCE
1. Article 234 shall apply to this title under the following circumstances and conditions: where a question on the interpretation of this title or on the validity or interpretation of acts of the institutions of the Community based on this title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

2. In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) relating to the maintenance of law and order and the safeguarding of internal security.

3. The Council, the Commission or a Member State may request the Court of Justice to give a ruling on a question of interpretation of this title or of acts of the institutions of the Community based on this title. The ruling given by the Court of Justice in response to such a request shall not apply to judgments of courts or tribunals of the Member States which have become res judicata.

After Lisbon, still a bumpy road for transparency in the EU institutions..

Two weeks after the entry into force of the new Lisbon Treaty the main objective of which is to increase the democratic accountability of all the EU institutitions the European Parliament has invited the Council and the Commission to work together on the reform of the EU legislation in this sensitive matter building on the new art. 15 (*) of the Treaty on the functionning of the European Union.
Not surprisingly the debate has showed that the Strasbourg plenary is still alone in the search of more transparency.
The proof of it is the fact that on its side the Commission did’nt move of one comma of its 2008 contested initiative legislative proposal and even confirmed it as a basic text of the legislative work also under the Lisbon Treaty even if it is now clearly outdated face to the last two years of progressive judgments of the Court of Justice and to the Lisbon Treaty which impose the principle of transparency to all the EU Institutions, bodies and Agencies.
On its side the Council has taken an even more restrictive approach by adopting the minimum of possible amendments to its internal rules of procedures following the entry into force of the new Treaty and of some of its directly applicable rules (such as the one referring to the legislative proceedings), followed by the European Council itself where the Head of State and Governement have taken the confidentiality as a general principle in their internal rules.
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The “terrorists lists”: new (coordinated?) initiatives of the United Nations and European Union

Something is moving , at last, as far as protection of fundamental rights is concerned for people who have been erroneously registered by the EU or by the United nations in the so called “terrorist lists”.
It is happening after years of quarrels raised at political level by the European Parliament, the Council of Europe’s Assembly and even by the UN General Assembly and after several judgments notably by the European Court of Justice, as it happened with the landmark Kadi ruling in September 2008.

It is worth remembering that these lists are established by the UN Security Council acting in the framework of Title VII of the UN Charter which deals with the binding measures to be taken to preserve “…the peace, breaches of the peace, and acts of aggression”.

These measures aimed notably at fighting international terrorism have been routinely adopted after 9/11 in the framework of the UNSC Resolution 1267/99 (which refers the establishment of “UN” terrorists lists by specialized Committees of the Security Council) and Resolution 1373/01 (which requires all the UN Member States to establish their own “national” terrorists lists).
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Council continues debates on the Proposal regarding the Framework Decision on Transfer of proceedings in criminal matters

The orientation debate held in the Council on Monday 30 November on the framework decision on the transfer of proceedings in criminal matters (*) (Interinstitutional Procedure 2009/0811, Council document 13504/09) highlighted that currently there are several different legal possibilities to transfer criminal proceedings within the Union and this contributes to legal uncertainty, incompatibility between legal systems and is contrary to the Treaty objective of creating an Area of justice within the Union. The Presidency is convinced that transfer of proceedings is a missing link in the cooperation between Member States and that a provision on the creation of jurisdiction would become a cornerstone in such cooperation.
According to the Council Press Release progress has been made on several provisions. There remain, however, outstanding questions related to an essential element of this draft legislation, namely the question of jurisdiction. Ministers held a substantial discussion on the principle of jurisdiction to be used for future work on this dossier.
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From the 1st of January Europol become operational as a full EU Agency

On January 1st the Europol Convention signed in ’98 will be definitely over and the Council Decision 2009/371/JHA adopted on 6 April 2009 will become fully operational.
Following the new legal basis , comparable to the one’s of Eurojust, the Europol mandate could be adapted more rapidly in response to trends in crime and every time that new tasks will be needed or should be modified there be no more need of a five years lasting procedure to ratify amending protocols (as it happened for the ones negotiated in 2000,2202 and 2003).
Moreover, instead of the Member States finances, Europol will from 2010 be financed by the EU budget and its officials and other servants will have the same statute of the ones serving the other EU institutions.
On November 30th the JHA Council adopted the latest implementing decisions needed to make Europol fully operational at the beginning of the new year in its new shape.
A first proposal was focused Europol’s relations with partners, including the exchange of personal data and classified information , the second determined the list of third States and organisations with which Europol shall conclude agreements, the third was focused on the rules for Europol analysis work and the fourth on the Europol rules on confidentiality.
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The Council signes the provisional agreement on SWIFT

Despite the European Parliament concerns, the Council has signed the last day before the entry into force of the Lisbon Treaty on Novembre 30th, an EU-US agreement on the processing and transfer of financial messaging data for the fight against terrorism. The agreement will be provisionnally applicable from 1 February 2010 and will expire on 31 October 2010.

However, due to the reservations put forward by two Member States the agreement has not been formally concluded under the Nice Treaty so that at the entry into force of the new Treaty on December 1st a new legal regime has entered into force which require for the conclusion the approbation by the European Parliament.

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Borders / Visas : Published the Regulation allowing a Visa Waiver for citizen of Serbia, Montenegro and the former Yugoslav Republic of Macedonia.

With five Western Balkan countries — Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Montenegro and Serbia — Visa Facilitation Agreements entered into force on 1 January 2008, as a first concrete step forward along the path set out by the Thessaloniki agenda towards a visa-free travel regime for the citizens of Western Balkan countries.

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A new European Union after Lisbon?

After many years of skirmishes, referendums and tense debates, the Treaty of Lisbon finally entered into force on 1 December 2009.

The institutional framework of the European Union will finally become more transparent and streamlined although a few exceptions remain for the opt-outs granted to the United Kingdom, Ireland, Poland and Czech Republic.

The European Parliament will have (almost) full legislative powers and the European Court of Justice will monitor adherence to and respect of the rule of law in (almost) all domains falling under the European Union competence.

The European Community will therefore disappear after fifty-two years of honourable service. It will be incorporated within the European Union which will not hide its political vocation any further by pretending to be an economic body, as “eurosceptic” countries wanted it to be.

This arm wrestling, lasted for almost thirty years. It began with the Council of the European Union in London in 1981 when the foreign affairs ministers of Germany and Italy, namely Genscher and Colombo, presented a project for a “European Act”. Its aim was to develop political cooperation as well as promote the culture, fundamental rights and harmonisation of national legislations outside the domains already covered by the Community treaties, together with the fight against terrorism and criminality.
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