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 ...
document	COM(2023)930
date	December 6, 2023

(1) Council Directive (EU) 2015/637 ⁴ gives effect to the right enshrined in Article 23, first paragraph, of the Treaty on the Functioning of the European Union (TFEU) and restated in Article 46 of the Charter of Fundamental Rights of the European Union (the Charter) by laying down the cooperation and coordination measures necessary to facilitate consular protection for unrepresented citizens of the Union.

(2) Crises resulting in requests for consular protection are increasing in frequency and scale. The COVID-19 pandemic, 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 have provided a context to identify gaps and reflect on how to further facilitate the exercise of the right to consular protection. Drawing lessons from those experiences, and in order to simplify procedures for citizens and consular authorities, the rules and procedures of Directive (EU) 2015/637 should be clarified and streamlined so as to improve the effectiveness of the provision of consular protection to unrepresented citizens of the Union, in particular in crisis situations. Best use should be made of the available resources at Member State and Union level, both locally in third countries and at capital level.

(3) Directive (EU) 2015/637 defines ‘unrepresented citizen’ as every citizen holding the nationality of a Member State which is not represented in a third country. Pursuant to that Directive, a Member State is not represented in a third country if it has no embassy or consulate established there on a permanent basis, or if it has no embassy, consulate or honorary consul there which is effectively in a position to provide consular protection in a given case. Given the absence of more detailed criteria in Directive (EU) 2015/637, past experiences have shown that it may be difficult to determine whether the latter criterion is fulfilled. This can result in citizens being wrongly considered, by the consular authorities they have approached, as represented by their Member State of nationality and thus refused consular protection.

(4) To improve legal certainty for consular authorities and citizens, it is appropriate to lay down more detailed criteria that aid in the assessment whether a Union citizen is to be considered as unrepresented and thus eligible to receive consular protection from the Member State whose consular authorities have been approached. Those criteria should be sufficiently flexible and applied in light of local circumstances, such as ease of travel or security situation in the third country concerned. In this context, accessibility and proximity should remain important considerations.

(5) As first criterion, consular authorities should take into account the difficulty for citizens to safely reach or be reached by the embassy or consulate of their Member State of nationality within a reasonable period of time, taking into account the nature and urgency of the assistance requested and the means, notably financial resources, available to them. For example, the need for an EU Emergency Travel Document as a result of the loss of travel documents should, in principle, result in the citizen being considered as unrepresented if reaching the embassy or consulate of his or her Member State of nationality would require overnight or air travel, as he or she cannot be expected to travel under such circumstances.

(6) Possible closures of the embassy or consulate of the citizen’s Member State of nationality should also be considered, notably during crisis situations. Where the embassy or consulate from which the unrepresented citizen seeks consular protection cannot confirm, in a timely manner, that the embassy or consulate of the citizen’s Member State of nationality is operational and accessible, the citizen should be considered as unrepresented.

(7) The notion of absence of representation should be interpreted with a view to ensuring the effectiveness of the right to consular protection. Where, by redirecting the citizen to the embassy or consulate of his or her Member State of nationality, consular protection would likely be compromised, in particular where the urgency of the matter requires immediate action by the requested embassy or consulate, the citizen should also be considered as unrepresented. This is particularly relevant in crisis situations, where lack of timely assistance might have particularly negative impacts on the citizen.

(8) Given that honorary consuls usually do not offer the same range of services as embassies or consulates, the presence of an honorary consul of the citizen’s Member State of nationality should only be taken into account to determine whether a citizen is unrepresented if the assistance requested by the citizen is covered by the competences of the honorary consul.

(9) Unrepresented citizens are entitled to seek protection from the embassy or consulate of any Member State. At the same time, Directive (EU) 2015/637 offers Member States the possibility to enter into bilateral arrangements for the purpose of ensuring the effective protection of unrepresented citizens. Such arrangements, however, are not a precondition for providing consular protection to unrepresented citizens. It should be clarified that, in cases where such arrangements have been concluded, it is incumbent on the authorities of the Member State approached, not the citizen concerned, to transfer the application to the relevant embassy or consulate.

(10) Where a crisis situation results in a large number of applications for consular protection, the embassies and consulates of the Member States represented in the third country concerned should be given the possibility to agree to distribute applications based on available capacity with a view to making best use thereof. For that purpose, they may be assisted by Union delegations.

(11) Applications should not be transferred if consular protection would thereby be compromised, in particular if the urgency of the matter requires immediate action by the embassy or consulate of the Member State approached. That could be the case, for example, in cases of serious medical emergencies or seemingly arbitrary arrests. In addition, unrepresented citizens should be kept informed about any such transfers.

(12) Article 9 of Directive (EU) 2015/637 lists, in a non-exhaustive manner, the most common situations in which unrepresented citizens may seek consular assistance from represented Member States. For reasons of legal clarity, it should nevertheless be clarified that the types of assistance cover both evacuations, that is, the rescue and transfer of persons from areas affected by an emergency to a safe location, which can be in in the same country or another third country, as well as repatriations, that is, the transfer of persons to the territory of the Member States.

(13) When providing consular protection to unrepresented citizens, Member States should take into account the specific needs of vulnerable groups, such as unaccompanied minors, pregnant women, persons with reduced mobility, persons with disabilities or individuals at risk of discrimination on any ground such as those referred to in Article 21 of the Charter.

(14) It is necessary to ensure optimal access to justice for Union citizens victimised in third countries, which requires closer contact and cooperation between authorities and support organisations of third countries and consular authorities and support organisations of Member States.

(15) For the sake of legal clarity, the reference to emergency travel documents should be updated following the adoption of Council Directive (EU) 2019/997 ⁵.

(16) Where appropriate and necessary to provide consular protection, Member States should also be entitled to involve, in their coordination and cooperation measures, their security and military personnel, honorary consuls, international organisations or diplomatic and consular authorities of third countries. This may be particularly relevant in crisis situations.

(17) Recent events have highlighted the important contribution of Union delegations, in close cooperation with Member States, to the implementation of the right to consular protection. This has been the case in particular in third countries where few Member States are represented, in crisis situations, and as regards the exchange of information. Against this background, it is appropriate to clarify the supporting role of Union delegations in the implementation of the right to consular protection. For reasons of consistency and business continuity, Union delegations should normally chair local consular cooperation meetings and lead the setting up and agreement of joint consular contingency plans. In order to ensure coordination and effective protection of unrepresented citizens, Union delegations should also take part in the coordination of crisis response in close cooperation with the Member States.

(18) Directive (EU) 2015/637 sets out practical means by which Union delegations can, pursuant to Article 35 of the Treaty on European Union (TEU), contribute to the implementation of the right of consular protection. When supporting Member States in the provision of consular protection to unrepresented citizens, Union delegations should do so upon request by Member States and on a resource-neutral basis, as provided for in Article 5(10) of Council Decision 2010/427/EU ⁶. In this context, Member States should also be able to request Union delegations to perform specific consular assistance tasks, including those referred to in Article 9 of Directive (EU) 2015/637. To be able to carry out their supporting tasks, Union delegations should be provided with all the relevant information by the assisting Member State or, as the case may be, the Member State of nationality.

(19) In order to ensure preparedness regarding possible consular crises requiring the provision of assistance to unrepresented citizens, local consular cooperation among Member States and Union delegations in third countries should include exchanges on matters relevant to such citizens, including their security and safety, the establishment of joint consular contingency plans and the organisation of consular exercises. In this context, it can be particularly relevant for the consular authorities of unrepresented Member States to be included in such local consular cooperation when coordinating on consular crisis preparedness and response.

(20) Consular crisis preparedness is an essential requirement to ensure effective consular crisis response. Member States, supported by the European External Action Service (EEAS), should therefore ensure that adequate consular preparedness measures for the protection of unrepresented citizens are discussed and implemented in all third countries.

(21) Past crises have shown the relevance of contingency planning and the usefulness of joint consular contingency plans, known as ‘Joint EU Consular Crisis Preparedness Frameworks’, in third countries, involving the participation of the diplomatic and consular authorities of all Member States, as well as of the local Union delegation. Such plans should be tailored to local circumstances, set a clear division of responsibilities between represented and non-represented Member States and the Union delegation and include a set of procedures and activities to be carried out at local level in case of a crisis, with a specific attention to the consular protection of unrepresented citizens.

(22) The effectiveness of existing coordination measures set out in Directive (EU) 2015/637 should be enhanced by making the preparation and annual update of joint consular contingency plans mandatory for all third countries, even if their level of detail may differ depending on local circumstances. For that purpose, the essential elements of such plans should be established, such as an analysis of the consular situation in the third country concerned, including a risk assessment of the most plausible scenarios affecting unrepresented citizens, arrangements for consular crisis preparedness, communication within local consular cooperation and with Union citizens, and cooperation with local authorities and relevant third countries.

(23) Joint consular contingency plans should also take into account, where appropriate, the roles and responsibilities of Lead States, that is, Member States represented in a given third country that are in charge of coordinating and leading the assistance of unrepresented citizens during crises, to ensure the effective coordination of consular assistance. In addition, joint consular contingency plans should be evaluated annually in the context of consular exercises to ensure their continued relevance. At the same time, joint consular contingency plans should not be understood as replacing existing national crisis plans of Member States or affecting their responsibility to provide consular assistance to their own nationals.

(24) The estimated number and location of Union citizens present in a third country is crucial information for the preparation of a joint consular contingency plan, notably where an evacuation or repatriation becomes necessary. In addition, Union citizens should be able to receive relevant information from their Member State of nationality in case of a crisis. It is therefore important that Member States provide their citizens with the possibility to register with or inform competent national authorities, by appropriate means and tools, of their travels to or residence in third countries. For that purpose, Member States should, in accordance with Union and national law regarding personal data protection, lay down the categories of personal data required and the retention periods of such data.

(25) Travel advice, that is, information issued by Member States about the relative safety of travelling to specific third countries, enables travellers to make an informed decision about a particular travel destination, including third countries where their Member State of nationality is not represented. While the issuance of travel advice is the responsibility of Member States, it is appropriate that they coordinate on that topic, notably in the context of crisis situations, with a view to ensuring, to the extent possible, consistency in the level of advice given. This could include agreeing on a common structure of the levels of risk indicated in travel advice, making use of the secure platform of the EEAS. Where possible, such coordination should take place at an early stage when Member States are planning to change the level of their travel advice.

(26) Efficient coordination is vital to ensure effective crisis response. To ensure such coordination, Member States should be supported by the Crisis Response Centre of the EEAS and the Emergency Response Coordination Centre of the Commission. Coordinated Union crisis response is particularly important in cases requiring evacuations to ensure that available support is provided efficiently, and that best use is made of available evacuation capacities. For that reason, information on available evacuation capacity should be shared in a timely manner, including in case of rescue and evacuation operations using military assets.

(27) The COVID-19 pandemic highlighted the need for Member States to work together and support each other in the context of multi-disciplinary crisis teams referred to as joint consular teams. The deployment of a joint consular team to a third country in crisis situations can be critical in helping to prevent that the consular authorities of represented Member States become overwhelmed with the demands of the situation.

(28) Joint consular teams should be based on the principles of voluntary participation, solidarity with represented Member States, equality with regard to decisions on internal working structures, simplicity regarding composition of teams, cost-sharing – with each Member State, Union institution or body bearing its own operational costs – flexibility, visibility of the coordinated Union response and openness to relevant third countries.

(29) To make best use of available capacity in crisis situations, the deployment of joint consular teams should ensure synergies with other crisis response measures, such as by taking advantage of outgoing repatriation flights or flights transporting humanitarian assistance.

(30) To support Union citizens in need, it is important to provide them with reliable information on how to avail themselves of consular assistance in third countries. The Commission services and the EEAS should contribute to that objective by disseminating relevant information, including information to be provided by Member States on their consular networks and third countries where they have concluded practical arrangements on sharing responsibilities for providing consular protection to unrepresented citizens. To facilitate the processing of such information, it should be provided in machine-readable format.

(31) Member States should take additional measures to further contribute to raising Union citizen’s awareness of their right to consular protection, also taking into account the specific needs of persons with disabilities. Given the limited costs it entails for the Member States, one possible way to do so would be to reproduce the wording of Article 23 TFEU in passports issued by Member States as a way to enhance citizens’ awareness of the right to protection by diplomatic and consular authorities, as already recommended by Commission Recommendation C(2007) 5841 ⁷. Member States could also feature information on the right to consular protection enjoyed by unrepresented citizens in travel advice and campaigns relating to consular assistance. They could also cooperate with passenger transport service providers and transport hubs offering travel to third countries, for example by inviting them to add relevant information on the right to consular protection to the information materials made available to customers.

(32) The financial provisions of Directive (EU) 2015/637 should be adapted to simplify reimbursements and continue ensuring financial burden-sharing. In particular, it should be possible for unrepresented citizens to directly reimburse costs, under the same conditions as nationals of the assisting Member State, for the service provided by that Member State to avoid the administrative burden resulting from seeking reimbursements from the citizen’s Member State of nationality. In addition, Member States should also be allowed to waive the charging of such costs. As, in certain situations, unrepresented citizens may not be able to pay when making the request for assistance, notably when their cash and means to access funds have been stolen, it is necessary to provide that they may be required by the consular authorities of the assisting Member State to sign an undertaking to repay. On the basis of such an undertaking, the authorities of the assisting Member State may ask for the reimbursement of the costs once four weeks have passed since the assistance was provided.

(33) In cases where the costs have not been repaid by the citizen directly, that is, neither immediately when making the request or at a later stage when having been requested to do so by the assisting Member State on the basis of the undertaking to repay, the assisting Member State should be entitled to ask for the reimbursement of the costs due from the unrepresented citizen’s Member State of nationality. To avoid being faced with requests for reimbursement after long periods, the assisting Member State and Member State of nationality should be given a reasonable deadline to, respectively, make the request and reimbursement.

(34) Member States should reimburse Union delegations for their support in providing consular protection to unrepresented citizens to ensure that such support is provided on a resource-neutral basis, as required by Article 5(10) of Decision 2010/427/EU.

(35) The forms included in Annexes I and II to Directive (EU) 2015/637 are outdated and should thus be deleted. This should not prevent Member States currently providing for the use of those forms in their national laws from continuing to use them after the adoption of this Directive.

(36) When providing assistance in crisis situations, it may not be possible or practically feasible to distinguish between unrepresented and represented citizens and the possibility to provide assistance to unrepresented persons may require or imply the assistance to Union citizens who may also be represented. It should be clarified that in such situations, the provisions of Directive (EU) 2015/637 regarding the reimbursement of costs should also apply to consular protection provided by the assisting Member State to represented citizens of another Member State. This should avoid the existence of two separate reimbursement procedures depending on whether the assisted citizen is to be considered as represented or unrepresented.

(37) Where the Union Civil Protection Mechanism is used, in accordance with Article 16(7) of Decision No 1313/2013/EU of the European Parliament and of the Council ⁸, to provide civil protection support to consular assistance to Union citizens in disasters in third countries, the financial provisions in that Decision apply. In particular, the Member States applying for financial assistance and benefitting from such assistance are to provide the Commission with information about financial contributions collected from other sources, including the Member States and citizens assisted, and to ensure that there is no double funding received from other sources.

(38) In order to ensure uniform conditions for the implementation of this Directive regarding the machine-readable format to be used by Member States to provide information and the forms to be used in the context of the financial procedures, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council ⁹.

(39) The provision of consular protection to unrepresented citizens requires the processing of personal data for the purpose of verifying the identity of the person who seeks consular protection, cooperating and coordinating among the authorities of the assisting Member State and the Member State of nationality, carrying out the assistance requested, processing of financial reimbursement requests, and the exchange of relevant contact information. Any processing of personal data by the Member States should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council ¹⁰, including the principles of purpose limitation and data minimisation. Similarly, processing of personal data by Union institutions and bodies within the meaning of Regulation (EU) 2018/1725 of the European Parliament and of the Council ¹¹ should comply with the rules set out in that Regulation.

(40) Given that consular tasks can vary significantly, covering sensitive situations such as arrest, incarceration, injury or being a victim of a crime, it is necessary to ensure that competent authorities of the Member States and relevant Union institutions and bodies have access to and can exchange all the necessary information, including personal data, that is required to provide consular protection to Union citizens. In that context, the competent authorities of the Member States and, where they provide support, Union institutions and bodies should be entitled to process special categories of personal data, where doing so is strictly necessary to provide consular protection to the person concerned. This should cover health data, which may need to be processed in order to provide consular protection to an unrepresented citizen who has been seriously injured or has fallen seriously ill. Persons’ facial images need to be processed notably in cases where an EU Emergency Travel Document is to be issued. Providing assistance to an unrepresented citizen, including in the defence of legal claims, may also exceptionally require the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, or data concerning sexual orientation. In certain cases, providing consular assistance may also require the processing of genetic data, such as when providing assistance in the context of serious accidents requiring the unique identification of an incapacitated person or in the context of establishing paternity. Finally, consular cases linked to arrest or detention may likely require the competent authorities to process personal data relating to criminal convictions and offences.

(41) When processing such special categories of personal data, the competent authorities of the Member States and Union institutions and bodies should ensure suitable and specific measures to safeguard data subjects’ interests. This should include, where possible, encrypting such personal data and specific attribution of access rights for personnel who have access to the specified types of special categories of personal data.

(42) Where the provision of consular protection requires the transfer of personal data of Union citizens to third countries or international organisations, such as the United Nations, collaborating in the crisis response measures, such transfers should comply with Chapter V of Regulation (EU) 2016/679 and Chapter V of Regulation (EU) 2018/1725.

(43) It is necessary to further specify safeguards applicable to the personal data processed, such as the maximum retention period of personal data collected. To ensure the collection of any applicable costs, a maximum retention period of 12 months for the assisting Member State or Union institutions and bodies and 24 months for the Member State of nationality is necessary. The longer retention period applicable to the Member State of nationality is also necessary to prevent possible abuses or other fraudulent activities, including by persons who repeatedly seek consular protection and attempt to conceal such behaviour by approaching the consular authorities of different Member States. Finally, where the personal data concerns the contact details of public officials such as honorary consuls, the personal data should be retained for as long as the person remains the relevant contact. The erasure of personal data of applicants should not affect Member States’ abilities to monitor the application of this Directive.

(44) Pursuant to Article 47 of the Charter, everyone whose rights guaranteed by Union law are violated must have the right to an effective remedy. To implement this fundamental right in the context of consular protection, a provision on legal redress should be added to Directive (EU) 2015/637.

(45) Directive (EU) 2015/637 should therefore be amended accordingly.

(46) Since the objectives of this Directive cannot be sufficiently achieved by the Member States but can rather, by reason of the need to adapt existing rules at Union level, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(47) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents ¹², Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

(48) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on XXXX¹³.