997 establishing an EU Emergency Travel Document - Main contents

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dossier	COM(2023)930 - Amendment of Directive (EU) 2015/637 on the coordination and cooperation measures to facilitate consular protection for ...
source	COM(2023)930
date	06-12-2023

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

Union citizens travelling to or living in a third country where their Member State of nationality is not represented by an embassy or consulate are entitled to the protection of the diplomatic and consular authorities of any other Member State under the same conditions as the nationals of that Member State. This Union citizenship right, established by the Treaty of Maastricht, is set out in Articles 20(2)(c) and 23 of the Treaty on the Functioning of the European Union (TFEU) and Article 46 of the Charter of Fundamental Rights of the European Union (the ‘Charter’).

This right is the external dimension of Union citizenship, one of the practical benefits of being a Union citizen, and a tangible example of European solidarity. It protects Union citizens who find themselves in need of help in a third country where they are not represented by their Member State of nationality, for example due to an accident, serious illness, being victim of a crime or loss of travel documents.

On 20 April 2015, the Council adopted Directive (EU) 2015/637 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries ¹, replacing the intergovernmental framework that used to govern consular protection ². The Member States had three years, until May 2018, to implement the Directive into national legislation ³.

The 2021 Commission work programme ⁴ announced a review of Union rules on consular protection to improve the Union’s and Member States’ preparedness and capacity to protect and support Union citizens in times of crisis. This review would involve strengthening the Union’s supporting role and making best use of its unique network of Union delegations.

In addition, the Commission, in its Communication in the follow-up on the Conference on the Future of Europe, committed to consider new areas of action, such as making “European citizenship more tangible to citizens, including by reinforcing the rights attached to it and by providing reliable and easily accessible information about it”⁵.

The Strategic Compass for Security and Defence – For a European Union that protects its citizens, values and interests and contributes to international peace and security adopted by the Council in March 2022 ⁶ announced that the European External Action Service’s (EEAS) “crisis response mechanisms, our consular support and field security will also be reviewed and strengthened to better assist Member States in their efforts to protect and rescue their citizens abroad, as well as to support our EU Delegations when they need to evacuate personnel”⁷.

As noted in the Commission’s report of 2 September 2022 on the implementation and application of Council Directive (EU) 2015/637 ⁸, crises resulting in requests for consular protection are increasing in frequency and scale. The COVID-19 pandemic (unprecedented in scale and complexity), the crisis in Afghanistan, Russia’s war of aggression against Ukraine, the conflict in Sudan, the repatriations from Israel and Gaza and other similar crises allowed to identify gaps and reflect on how to strengthen Union citizens’ right to consular protection.

In view of the above, the Commission proposes to amend Directive (EU) 2015/637 with a view to improving and strengthening the coordination and cooperation measures necessary to facilitate consular protection of Union citizens.

To improve legal certainty for consular authorities and citizens, the Commission proposes to clarify when a Union citizen is to be considered as ‘unrepresented’ and thus entitled to receive consular protection from the consular authorities of other Member States. Changes to Directive (EU) 2015/637 should ensure that the cooperation between consular authorities, supported by Union delegations, is streamlined.

To make best use of the network of Union delegations, in particular in third countries where few Member States are present, the Commission considers that their tasks should be clarified and their supporting role enhanced, notably in the area of crisis preparedness and response. In that area, the proposal provides that so-called joint consular contingency plans (also known as ‘Joint EU Consular Crisis Preparedness Frameworks’) be drawn up for all third countries to facilitate the response to any possible future consular crises. In addition, the proposal provides a legal basis for the possible deployment of so-called joint consular teams, that is, voluntary multi-disciplinary teams staffed by consular experts from Member States and Union institutions, to support potentially lightly staffed local consular services of Member States in times of crisis ⁹.

The Commission also proposes to improve the information flow between Member States and Union institutions and the information provided to Union citizens, with a view to allowing them to make better-informed decisions regarding travel.

Finally, the Commission proposes to streamline the provisions on the financial reimbursements of costs resulting from the provision of consular protection. In the future, Member States should be entitled to request reimbursement directly from the citizen concerned to avoid lengthy bureaucratic procedures. In addition, Union delegations should also be entitled to obtain financial reimbursements if they support the provision of consular protection to unrepresented citizens. These new financial procedures should also apply in the context of Directive (EU) 2019/997 ¹⁰, which lays down rules on the conditions and procedure for unrepresented citizens in third countries to obtain an EU Emergency Travel Document (‘EU ETD’) and establishes a uniform format for such document.

Improving consular protection of Union citizens abroad by reinforcing Union solidarity and cooperation in this field ensures that Union citizens continue to benefit from this fundamental right according to the highest standards, in particular during times of crisis.

• Consistency with existing policy provisions in the policy area

Article 9(f) of Directive (EU) 2015/637 explicitly refers to the issuance of such emergency travel documents. This proposal ensures that Directive (EU) 2015/637 and the specific rules applicable to EU ETDs provided for by Directive (EU) 2019/997 remain aligned.

This proposal also ensures consistency with Council Decision 2010/427/EU ¹¹, which defines the mandate of Union delegations. According to Article 5(10) of that Decision, Union delegations are, acting in accordance with the third paragraph of Article 35 of the Treaty on European Union, and upon request by Member States, to support the Member States in their diplomatic relations and in their role of providing consular protection to citizens of the Union in third countries on a resource-neutral basis.

Directive (EU) 2015/637 contains references to the Union Civil Protection Mechanism (UCPM)¹², which is used to provide civil protection support to consular assistance efforts. The proposal ensures full alignment between Directive (EU) 2015/637 and the rules on the UPCM, including in view of the experiences gained from the COVID-19 pandemic and the 2021 consular emergency in Afghanistan.

To ensure the practical implementation of the right to consular protection, the Union continues to negotiate the inclusion of so-called consular protection clauses in international agreements to dispense with the obligation, provided for in Article 8 of the 1963 Vienna Convention on Consular Relations ¹³, for represented Member States to notify the third country where an unrepresented Union citizen is located of the provision of consular protection.

• Consistency with other Union policies

This proposal is consistent with policies concerning civil protection and crisis response.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The proposed directive would amend Directive (EU) 2015/637. It thus shares the legal basis of that Directive, namely Article 23 TFEU. Pursuant to the second paragraph of that provision, 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 consular protection for unrepresented Union citizens. This provision applies to all Member States.

The amendments of this proposal aim to improve the measures necessary to facilitate the provision of consular protection to unrepresented citizens provided for in Directive (EU) 2015/637.

• Subsidiarity

Consular protection for unrepresented citizens entails, by definition, a cross-border dimension, given its nature as a Union 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 Directive (EU) 2015/637. Action at Union level is thus necessary.

Absence to act at Union 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 experience gained during recent consular crises. As a result, Union citizens would not be able to enjoy their right of consular protection to a degree that would be possible by action at Union level.

• Proportionality

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 citizens, 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 this proposal ¹.

• Choice of the instrument

In line with the second paragraph of Article 23 TFEU, the proposed instrument is a directive.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Stakeholder consultations

This proposal takes into account the discussions in the Working Party on Consular Affairs of the Council, in particular the exchanges of views on further facilitating the exercise of Union citizens’ right to consular protection in third countries that took place after the adoption of the Commission’s report on the implementation and application of the Directive (EU) 2015/637 ¹. Concluding those discussions, the Council Presidency considered that there was scope to review the Directive, in particular based on the experiences from consular crises in the past years.

A dedicated questionnaire among Member State authorities was used to collect quantitative data on Member States’ national legislation and procedures, their consular networks and assets, the consular protection they provide, and on their travel and communication channels. Additionally, Member State authorities were also asked to provide qualitative feedback on the application of Directive (EU) 2015/637, on possible policy options, and on the lessons learnt from the consular response to the COVID-19 pandemic.

An online survey with Union delegations was used to obtain their assessment of the situation under the status quo (including under times of crisis, such as around the COVID-19 outbreak), on views regarding the functioning of Directive (EU) 2015/637, as well as on views regarding the policy options available.

In the course of 2021, in-depth interviews with Union delegations, Member State representations and tourist/expat organisations were carried out in five selected third countries ², as well as with officials from Union bodies with a supporting role in the field of consular protection.

More information on the feedback received can be found in the impact assessment accompanying this proposal.

• Collection and use of expertise

The Commission carried out Flash Eurobarometer 485 on EU Citizenship and Democracy ³ on a range of issues associated with Union citizenship and democracy, for which fieldwork was done in the Member States in February/March 2020. Among other things, the survey explored Union citizens’ understanding of the rights conferred by Union citizenship, including consular protection. A similar survey was carried out in 2023 ⁴.

A public consultation for the 2020 EU Citizenship Report ⁵ took place between 9 July 2020 and 1 October 2020 and contained questions on consular protection. The report described the unprecedented repatriation effort, in which Member States, supported by Commission services and the EEAS, managed to repatriate, between February and May 2020, over half a million Union citizens affected by COVID-19 travel restrictions across the world. The report estimated that, in 2020, 76% of Union citizens were aware of the right to seek assistance from other Member States, in case their own does not have an embassy or consulate in a third country.

In addition, the Commission used public feedback received as part of the consultation process to prepare the analysis of the impact assessment.

Finally, evidence was gathered and analysed in a dedicated study carried out on behalf of the Commission ⁶. More information can be found in the impact assessment accompanying this proposal.

• Impact assessment

As outlined in the impact assessment ⁷, the general objective of this initiative is to improve the exercise of the right of citizens of the Union to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that Member State.

This would be achieved through the following specific objectives: (i) to enhance the legal certainty for Union citizens with respect to the scope of the right to consular protection; (ii) to ensure clear roles, coordination and cooperation mechanisms between Member States and Union delegations, including in times of crisis; (iii) to improve the information provision and communication with (unrepresented) Union citizens; and (iv) to increase the efficiency and use of the financial reimbursement procedures.

The impact assessment examined several policy options for each specific objective with a range of potential measures to address the problems.

The options considered under the first objective seek to ensure that the definition of ‘unrepresented citizen’ is clarified and improved to avoid that unrepresented citizens are not assisted on the basis of a wrong interpretation or assessment of the situation by the Member States or Union delegations. Policy option 1(a) consists of soft measures, while policy option 1(b) consists of legislative changes to clarify the definition and personal scope of Directive (EU) 2015/637. Policy option 1(c) consists of the introduction of a new ‘presumption of unrepresentedness’.

Under the second specific objective, the impact assessment examined options that address the problems related to the main concepts and processes through which Member States and Union delegations interact for the purposes of providing consular assistance to unpresented citizens. On local consular cooperation networks, policy option 2(a) consists of soft measures to better structure the different responsibilities in such networks. Policy option 2(b) proposes to assign the role of the chair of local cooperation meetings to Union delegations. Policy option 2(c) consists of legislative amendments defining the assignment of clear tasks, in the joint consular contingency plans, to the different actors involved, and a review of the ‘Lead State’ concept. It also proposes to include such plans and so-called joint consular teams in Directive (EU) 2015/637. Policy option 2(d) consist of legal amendments to clarify the supporting role of Union delegations, notably by aligning it with the EEAS Decision. Option 2(e) consists of legal amendments granting Union delegations new competences that enable them to provide direct consular protection to unrepresented citizens in uncovered third countries on the latter’s request.

Options that pursue the third specific objective address the main drivers of the problems of communication with citizens: i) the problems with information provision by Member States and the Union and ii) the lack of information on citizens travelling or residing abroad. On the first issue, policy option 3(a) consists of legal amendments with new requirements on provision of information, while policy option 3(b) consists of the establishment of a Union travel advice portal. On the second issue, policy option 3(c) recommends a Union-wide communication campaign and policy option 3(d) would require Member States to promote measures enabling Union citizens to inform on/record their travels or residence abroad.

Finally, the options under specific objective four aim to reduce the complexity and ineffectiveness of financial reimbursements procedures with a view to increasing their use and accelerate the processes for the benefit of Union citizens and Member States. Policy option 4(a) consists of soft measures to clarify the process and provide training to Member States while policy option 4(b) consists of legal amendments to improve the procedures and to extend them to Union delegations to ensure compliance with the cost-neutrality requirement provided for in the EEAS Decision.

Based on the analysis outlined in the impact assessment, the preferred combination of options is made up of the following specific policy options: 1(b), clarifying the definition and personal scope of Directive (EU) 2015/637, 2(b), assigning the role of the chair of local cooperation meetings to Union delegations, 2(c), assigning clear tasks, in the joint consular contingency plans, to the different actors involved, and reviewing the ‘Lead State’ concept, 2(d), clarifying the supporting role of Union delegations, 3(a), provision of information, 3(d), promoting measures enabling Union citizens to inform on/record their travels or residence abroad, and 4(b), improving financial procedures.

The main benefits of the preferred combination of options are the increased safeguarding and effectiveness of Union citizens’ fundamental right to consular protection on the same conditions as the nationals of the Member State providing assistance. This is achieved through a clarification of procedures and enhanced legal certainty for Member States and Union delegations. Other benefits include improved communication with Union citizens through facilitated access to reliable information and increased recording of their travels and residence abroad. The preferred measures also entail small savings and efficiencies for national administrations and time savings and less burden for Union citizens.

The costs of the preferred option are very limited and are born by Member States and the Union, including Union delegations.

On 6 July 2023, the Regulatory Scrutiny Board issued a ‘positive opinion with reservations’ on the resubmitted draft impact assessment ⁸.

• Regulatory fitness and simplification

No specific impacts on small and medium-sized enterprises have been identified in the preparation of this proposal. In line with the ‘digital by default’ principle, the proposal provides for provision of information in machine-readable form to facilitate automated processing.

• Fundamental rights

This proposal implements the fundamental right of Union citizens to diplomatic and consular protection, guaranteed by Articles 20(2)(c) and 23 TFEU and Article 46 of the Charter.

Insofar as it strengthens the role and the functioning of Union delegations in supporting the provision of consular protection, this proposal has a direct and beneficial impact on the application of Article 41 of the Charter, which contains the fundamental right of Union citizens to have their affairs handled fairly, transparently, and efficiently by Union institutions and other Union bodies.

The proposal also affects Article 7 of the Charter on the respect of private life and Article 8 on the right to the protection of personal data. Processing of the personal data of citizens, including collection, access and use of personal data, affects the right to privacy and the right to protection of personal data under the Charter. Interference with these fundamental rights must be justified ⁹. Regarding the right to the protection of personal data, including data security, the relevant Union rules apply ¹⁰. No derogation from the Union’s data protection regime is envisaged. Clear rules, conditions and safeguards must be implemented by Member States in line with the Union data protection rules.

By adding a dedicated provision, the proposal would also ensure the right to an effective remedy (Article 47 of the Charter).

4. BUDGETARY IMPLICATIONS

This proposal has implications in terms of administrative costs for the Commission and Union delegations. The limited recurrent costs of staff and other administrative expenditure would be covered under the budgetary heading ‘Administrative expenditure’.

The financial and budgetary impacts are explained in detail in the legislative financial statement annexed to this proposal.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

It is important to adopt a realistic approach to monitoring the implementation of Directive (EU) 2015/637 as amended and not to overburden national consular authorities. Member States are asked to provide the Commission with information on a limited number of key indicators on a yearly basis.

After eight years, the Commission will carry out an evaluation of Directive (EU) 2015/637 as amended by the proposal and publish a report on the main findings.

• Explanatory documents

To ensure the proper implementation of this directive, explanatory documents in the form of correlation tables are necessary.

• Detailed explanation of the specific provisions of the proposal

Article 1 contains the following amendments to Directive (EU) 2015/637 (the remaining provisions would remain unchanged):

Article 6: The changes to this Article seek to clarify when a Member State is not to be considered as represented in a third country due to the fact that it has no embassy or consulate effectively in a position to provide consular protection. For this purpose, a new paragraph is introduced, setting out the criteria to be taken into account by the embassy or consulate from which the unrepresented citizen seeks consular protection to determine whether a Member State has no embassy or consulate effectively in a position to provide consular protection in a given case. Those criteria should be applied in light of local circumstances.

Another new paragraph clarifies that the presence of an honorary consul of the citizen’s Member State of nationality may only be taken into account if the assistance requested by the citizen is covered by the competences of the honorary consul. This is to avoid that citizens are denied assistance with reference to an honorary consul who is not competent to assist them.

Article 7: Provisions on the notification of arrangements between Member States would be moved to the newly introduced Article 13b, grouping them with other notification requirements. A new paragraph is introduced that would allow represented Member States to transfer requests for assistance based on available capacity in crisis situations. This is to ensure efficient use of available resources in such situations.

Finally, the changes seek to clarify that applications are to be transferred by the consular authorities approached. Unrepresented citizens seeking assistance should not themselves be asked to approach another Member State. In addition, citizens should be kept informed of the transfer of applications.

Article 9: A reference to ‘evacuation’ is added to this Article to comprehensively cover situations where Union citizens are rescued and moved from areas affected by an emergency to a safe location, which must not necessarily be the territory of a Member State, as well as situations where Union citizens are repatriated to Union territory. In addition, the reference to Decision 96/409/CFSP¹ is replaced by a reference to Directive (EU) 2019/997, given that the latter repealed the former.

Article 10: A new paragraph is added to clarify that Member States may involve, in their coordination and cooperation measures, security and military personnel, honorary consuls, international organisations or diplomatic and consular authorities of third countries. In addition, the abbreviation of ‘EEAS’ is introduced in paragraph 4 given the changes to Article 7.

Article 11: The changes to this Article clarify the supporting role of Union delegations, notably by listing the most relevant tasks in this context. The newly introduced paragraph 2 lays down that Union delegations are to support Member States in providing consular protection in accordance with Article 5(10) of the EEAS Decision, that is, upon request by Member States and on a resource-neutral basis, including by providing specific consular assistance tasks.

Article 12: Rules on local consular cooperation would be clarified, notably by listing the topics to be addressed by local consular cooperation meetings.

Article 13: This Article would be split in two, with Article 13 focusing on crisis preparedness and the newly added Article 13a focusing on crisis response. Within Article 13, joint consular contingency plans are established as the key instrument for crisis preparedness, together with annual consular exercises to test them.

A new paragraph would require Member States to offer their citizens the possibility to register with or inform competent national authorities of their travels to or residence in third countries. This is meant to improve the information available on the estimated number and location of Union citizens present in a third country for the purposes of crisis preparedness and crisis response. It would also make it easier to contact citizens affected by a crisis situation.

Finally, Member States would need to make efforts to coordinate changes to their travel advice at an early stage, notably in the context of crisis situations.

Article 13a: This new Article is based on paragraphs 2-4 of Article 13 of Directive (EU) 2015/637. Provisions on ‘intervention teams at Union level’, previously found in Article 13(2), are expanded to address the possible deployment of joint consular teams, participation in which should be voluntary for Member States.

Article 13b: This new Article consolidates the different notification requirements already found in Directive (EU) 2015/637. In addition, Member States would be required to provide limited statistical data to improve the monitoring of the Directive. Where necessary, that data should be provided in machine-readable format.

Article 13c: This new Article provides that Member States should take measures to inform citizens of their right to consular protection as set out in point (c) of Article 20(2) TFEU. To this end, the Article lists examples of possible measures that could be taken in this context, such as reproducing the first sentence of Article 23 TFEU on national passports as already recommended by Commission Recommendation C(2007) 5841 ². Commission services and the EEAS should contribute to these efforts.

Article 14: The rules on the reimbursement of the costs for consular protection would be adapted to provide that such costs are primarily to be reimbursed by the assisted unrepresented citizen directly, either when making the request or at a later stage. Only if such reimbursement does not take place, the assisting Member State should approach the Member State of nationality for reimbursement. Finally, a dedicated paragraph is added to establish the rules for the reimbursement of costs borne by Union delegations supporting Member States.

Articles 15: The changes to this Article ensure alignment with the changes to Article 14. In addition, a new paragraph provides that Member States that assist represented citizens in crisis situations may also ask for the reimbursement of costs, given that it may not be possible or practically feasible to distinguish them from unrepresented citizens in crisis situations. This is to reduce the administrative burden that would result from having to apply two different procedures. The last paragraph is adapted to ensure that reimbursements pursuant to Directive (EU) 2015/637 are taken into account in determining any contribution of the Union Civil Protection Mechanism, in line with the financial provisions applicable to such contributions.

Article 15a: This new Article concerns the committee procedure applicable to the adoption of implementing acts as foreseen by Articles 13b i and 14(6).

Article 16a: This new Article contains the rules applicable to the processing of personal data for the purposes of providing consular protection, including, where needed due to the nature of the consular case, special categories of personal data, and the transfer of personal data to third countries and international organisations, such as when organising evacuation flights.

Article 16b: This new Article implements the fundamental right to an effective remedy in the context of consular protection.

Article 19: A new paragraph is added to this Article to provide for an evaluation of Directive (EU) 2015/637 eight years after the transposition of the amendments.

Article 2 contains the following amendments to Directive (EU) 2019/997:

Article 5: The reference in this Article to the financial provisions of Directive (EU) 2015/637 is adapted given that this proposal adapts the numbering of the paragraphs in Article 14 of Directive (EU) 2015/637.