The Right to Consular Protection of EU Citizens Abroad
This book examines the right to consular protection as an illustrative case in the debate over a multilevel design of EU citizenship combining rules from several different legal systems, whose interplay is reinforced by the extra-territorial character of consular protection.
It offers a comparative analysis of the provision of consular protection in the 28 EU Member States as well as of the respective international law and EU rules. By examining the right to consular protection in its constitutional setting as a right flowing from EU citizenship, the book frames the analysis of all EU citizenship rights as fundamental rights in a multilevel-governance context.
Table Of Contents
- About the author
- About the book
- This eBook can be cited
- Table of Contents
- Chapter I: Complexity vs. Relevance of Consular Protection
- Chapter II: Conceptualising ‘Consular Protection’
- 1. Framing the Issue
- 2. Multilevel Context of Consular Protection
- 3. Consular Assistance vs. Consular Protection
- 4. Conclusions
- Chapter III: Multilevel Citizenship as a Source of Fundamental Rights
- 1. Framing the Issue
- 2. The Constitutional Relationship between Union Citizenship and Union Citizenship Rights
- 3. Subjective Rights in EU Law
- 4. Preliminary Considerations on the Right to Consular Protection as a Subjective Right
- 5. Conclusions
- Chapter IV: Enjoyment of the Right to Consular Protection
- 1. Direct Effect of Union Citizenship
- 2. Conditionality of Consular Protection?
- 3. The Right to Consular Protection as a Fundamental Right under the EU Charter of Fundamental Rights
- 4. Conclusions
- Chapter V: Holders of the Right to Consular Protection
- 1. ‘Unrepresented’ European Union Citizens
- 2. Family Members who are not Union Citizens
- 3. Third Country Nationals Enjoying Consular Protection by a Member State
- 4. Conclusions
- Chapter VI: Substantive Scope of the Right to Consular Protection
- 1. A Mere Right to Equal Treatment?
- 2. The ‘If’ and ‘How’ of Consular Protection
- 3. National Rules on Consular Protection
- 4. Scope of Coverage and Limits to the Right to Consular Protection
- 5. Conclusions
- Chapter VII: Guarantees of the Right to Consular Protection
- 1. Judicial Guarantees of the Right to Consular Protection
- 2. Non-Judicial Guarantees
- 3. Conclusions
- Chapter VIII: Consular Protection by the European Union
- 1. Political and Legal Background of the Consolidation of the EU Action Abroad
- 2. Consular Protection or Consular Coordination by EEAS?
- 3. Conclusions
- Chapter IX: Proposal for a Directive on Consular Protection
- 1. Legal Basis and Procedure for the Adoption of a Directive on Consular Protection
- 2. Is a Directive on Consular Protection Necessary?
- 3. Possible Content of a Directive on Consular Protection
- 4. The European Parliament’s Position
- 5. Transposition Requirements
- 6. Conclusions
- Chapter X: Final Remarks
The book of Eva-Maria Poptcheva addresses questions of utter importance for the way forward of European integration. The conviction that the future of the European Union towards a real federation passes inevitably through a positively construed ‘Union of Rights’, making citizens believing again in the European project, is in the centre of this book. The book acknowledges rightfully the stage in which European integration is at this moment by not trying to impose a rather idealistic concept of a federal Union citizenship, conceived of by the hierarchical relationship between national, supranational and international norms, but understands to combine both citizens’ aspiration to be part of a community entitling to certain rights, as well as Member States’ legitimate interest to remain Masters of core state competences inherent to their state sovereignty, and the strive of the international community to see observed the rules of the game between international law subjects. This is the great achievement of the paradigm of ‘multilevel constitutionalism’ – it allows us to overcome the shortcomings of the current stage of the European Union architecture, somewhere on the way to a federal union.
The multilevel-constitutionalism approach has turned into a quasi-philosophical paradigm, into a being and time, to put it with Heidegger’s words, seeking to explain in an abstract-juridical way the interplay of legal orders within one and the same subject. Nowadays, it is no longer possible to employ a legal approach to the analysis of a right without taking into account that the applicable normative framework features diverse levels of legal production, and, as shown by the European constitutional doctrine, needs to deploy its paramount efficacy ensuring to its right-holders the best possible protection. And there lies the greatest achievement of this book: it breaths new live into the legal-philosophical concept in applying the multilevel-constitutionalism approach to a concrete institution of law – the right to consular protection of Union citizens abroad.
Mrs Poptcheva’s book embarks on a challenging journey of meticulously identifying the relationships between legal norms deriving from national, European Union and international law and practices, which only in their multilevel interplay construe the right to consular protection of Union citizens as an EU fundamental right. A great challenge and at the same time an achievement of the book is the lack of other constitutionalist analysis of the right to consular protection, having the constitutionalist relinquished the examination of consular protection under the law of the European Union to the foreign affairs science, depriving it in this way of a dogmatic analysis ← 9 | 10 → that does justice to its constitutional character as a right deriving from the Union citizenship status. The analysis of the elements construing consular protection as a right, turning it into an identifiable institution of law that cannot be desnaturalised, shows the potential that this right offers in times of globalisation to the protection of persons in distress, which was left in the past to the mercy of the political discretion. This book is therefore the first monograph offering a dogmatically founded analysis of the configuration elements of the right to consular protection (right holders, exercise, guarantees, etc.) providing scientific evidence for its character as a fundamental right, against the attempts of both some Member States and parts of the scientific community to write it off as a mere State discretion and denying it the advantages implied by the rights deriving from Union citizenship.
But the book goes beyond the mere appraisal of a fundamental right and frames the analysis of all Union citizenship rights under consideration of the symbiotic relation between the Union citizenship status as a constitutional paradigm and the rights flowing from that status. The book is visionary in the way it extrapolates the findings surrounding the dogmatic framework of the right to consular protection as a fundamental right, conceived of through the interplay of legal norms belonging to diverse legal orders, to the analysis of Union citizenship as ‘multilevel citizenship’. The book converts in this way the analysis of the right to consular protection into a case in point for the construction of multilevel citizenship as a constitutional paradigm best suited to explain the quasi-federal setting of Union citizenship in a triangle of legal relationships between Union citizens, Member States and the European Union.
The book’s innovative spirit is owed not only to the constitutionalist approach to the right to consular protection embedded in the dogmatic environment of Union citizenship as a constitutional status, but also in the coherent analysis of all legal norms operating within the provision of consular protection, including the 28 Member States’ legal norms and practices. Inspired by a study on the national rules governing consular protection in the EU Member States conducted by the Instituto Europeo de Derecho for the former Directorate General Justice, Freedom and Security of the European Commission, Mrs. Poptcheva undertook a major challenge in seeking to identify the dogmatic consequences of the divergent level of juridification of the right to consular protection in the Member States for the legal design of consular protection under the law of the European Union. There are not many scholars living up to the challenges posed by comparative analysis in the way done in this book by Mrs Poptcheva, not least owing to her background as a real European lawyer, being a Bulgarian national with a German law degree from the Albert-Ludwigs-University in Freiburg i.Br., and holding a European PhD in Law from the Autonomous University of Barcelona. ← 10 | 11 →
The comparative analysis requires indeed not only an understanding of the differences between the Member States’ legal cultures but also a mastery of a methodology enabling us to establish existing differences but also to positively construe a common European model. The book thus successfully strikes a balance between Union citizens’ strive for protection not only from their own country but also from other Member States on the one side, and the practicability of such aspirations under due account of the general interest to be observed by the EU Member States on the other side, making of this book, despite its coherent dogmatic approach, an indispensable guide for all actors operating in the field of consular protection.
As the supervisor of Mrs Poptcheva doctoral thesis, I am very glad about the publication of this book, as a culmination of a research initiated in a European project, followed by a doctoral thesis defended at the Universidad Autónoma de Barcelona with the highest distinction. It is a rigorous work and at the same time forward-looking to a future in which we, the Union citizens, wish to relate ourselves as such not only when we move across the Member States but also beyond EU territory, since consular protection, as a citizenship right, identifies us as such and makes us holders of a common legal baggage vis-à-vis the whole international community.
The focus of the present book on Union citizenship and the rights flowing from the “fundamental status of Union citizens” is more than adequate in the current crisis bedeviling the European project. Today, the easy recourse to the moral and economic crisis is a demagogic charge against institutions, against the application of the law, against European integration. If we would listen to the many messages that overflood the media, we would see that, in many cases, all evil comes from Europe. And the alarm calls are made to discredit the democratic systems that we have implemented in Europe in recent decades. While acknowledging the difficulties and the mistakes done, that are present in our integration process, it is necessary to send a message of warning against populism, nationalism and other ‘isms’ that inundate us, just now, when we have to renew the legitimate representation of European citizens in the shape of the European Parliament. As recognized amongst those who want Europe to remain a bastion of defense of the values included in the Lisbon Treaty, we are also facing the challenge of reinventing the EU’s institutional architecture and our legal system and to bring all this nearer to the citizens.
I would like to thank Prof. Dr. Teresa Freixes for her personal and professional guidance and commitment to my research work. My deepest gratitude also to Prof. Dr. Yolanda Gómez for her advice and support. My thanks go also to Prof. Dr. Francesc de Carreras, Prof. Dr. José Carlos Remotti and Prof. Dr. Juan Carlos Gavara from the Autonomous University of Barcelona, as well as to Prof. Dr. Matt Henn and Prof. Dr. Elspeth Berry from the Nottingham Trent University. I would also like to express my gratitude to Prof. Dr. Alessandra Silveira, Prof. Dr. Pascuale Policastro, Prof. Dr. Markus Helfrich and Dr. Matthias Hartwig for the review of the previous drafts of this monograph.
Union citizenship has evolved – since its entrenchment first in the Treaty establishing the European Community by the 1992 Treaty of Maastricht, and, with the entry into force of the Treaty of Lisbon on 1 December 2009, also in the Treaty on European Union (TEU)1 – into the motor for a new stage and a new type of European integration creating an “ever closer union among the peoples of Europe”.2 European integration ushered in this new age by creating a direct link between the citizens of the Member States and the European Union, with the aim of fostering a sense of identity with the Union by strengthening the protection of the rights and interests of the nationals of its Member States.3 This direct political link between Union and Member States’ nationals was established through the introduction of a citizenship of the Union.4 The rights deriving from Union citizenship are in effect granted constitutional status by being enshrined in the Treaties themselves and became together with the central political status of the citizens the source of democratic legitimacy of the Union.5 This new approach in ← 17 | 18 → the European integration process prompted many scholars to proclaim the rise of a new “Union of Rights” replacing the former Union based mainly on the Common Market rules.6
Union citizenship describes the relationship between the nationals of the EU Member States and the European Union, which, like national citizenship, is characterised by competences for action of the EU institutions towards Union citizens on the one side, and citizens’ rights, duties and political participation on the other side. By this means the gap between the increasing impact on Union citizens caused by EU action as well as by measures adopted under the former second (Common Foreign and Security Policy)7 and third pillars of the European Union (Police and Judicial Cooperation in Criminal Matters), and the protection of rights and participation in democratic processes, as traditionally and almost exclusively national matters, shall be bridged.
Union citizenship is aimed to increase people’s sense of identification with the Union by fostering a sense of European identity.8 This European identity is based on a community of interests, improving substantially the legal position of the citizens vis-à-vis the European Union and the Member States through citizenship rights, and by drawing increasingly on these same European citizens to strengthen the democratic legitimacy of the EU decision-making. For the latter, the necessary European political consciousness is again narrowly linked to the impact of EU citizens’ rights on their lives.
According to Article 20 of the Treaty on the Functioning of the European Union (TFEU),9 as well as Article 9 TEU (as modified by the ← 18 | 19 → Treaty of Lisbon), every person holding the nationality of a Member State is a citizen of the Union.10 Nationality is defined according to the national laws of the Member States.11 Citizenship of the Union is additional12 to national citizenship but does not replace it, and it gives rise for a number of rights in addition to those stemming from citizenship of a Member State.13
European citizenship confers on every European citizen an individual right to move and reside freely without reference to an economic activity. With the Treaty of Maastricht also came additional electoral active and passive rights in European and local elections as well as the right to petition the European Parliament and to complaint before the European Ombudsman. Besides, recently the Treaty of Lisbon introduced a new citizens’ right into the TEU: the citizens’ initiative giving Union citizens the right to take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.14
But the Treaty of Maastricht went to introduce provisions applicable even beyond the borders of the then European Community and established ← 19 | 20 → a citizens’ right with an extraterritorial character by conferring upon Union citizens the right to ask for the help of any Member State represented in a third country if their own Member State is not represented there.
Globalisation, entailing a steadily growing number of EU citizens travelling to third countries (which are not members of the EU), as well as recent humanitarian crises caused by natural disasters, armed conflicts or terrorist attacks such as those in Thailand as consequence of the Indian Ocean tsunami on 26 December 2004, the Bali bombings on 23 July 2005, the 2006 Lebanon conflict, the 2008 Georgia conflict, the Haiti earthquake in January 2010 and the earthquake in Japan in March 2011, as well as the uprisings in Tunisia, Egypt and Libya in spring 2011 and recently the Syrian conflict demanded the attention of the EU institutions to this fourth block of EU citizens’ rights, those on protection by diplomatic and consular representations abroad. In particular the tsunami and the Lebanese crisis impressively demonstrated that even the most traditional, widest and best organised national consular services could not cope with these situations on their own.15
As a result, the right to consular protection became a focal point of European policy, being a possible remedy to the challenges of globalisation and of its accompanying phenomena. The growing number of Union citizens living in and travelling to third countries outside the EU and the grave crisis situations involving a large number of EU citizens from different EU Member States on the one side face on the other side the fact that not every Member State is represented by a diplomatic and/or consular mission in every third country. There are currently only three countries in which all 28 Member States are represented (China, Russia and the United States of America). Member States’ diplomatic and consular representations are especially limited in Central America and the Caribbean, Central Asia and Central and West Africa. A maximum of ten Member States are represented in 107 of the 166 third countries in the world.16 Some Member States have more than 100 representations (France, Germany and the United Kingdom) in third countries while others have less than ten (Estonia, Latvia, Malta and Luxembourg).17 ← 20 | 21 → There are eighteen countries in which no Member State is represented at all,18 seventeen countries in which only one Member State is represented19 and eleven countries20 in which only two Member States are represented.21
Accordingly, the need for consular protection concerns potentially thousands of EU citizens each year since Union citizens are increasingly travelling and living in third countries as tourists, workers, students, etc. The Austrian Presidency of the Council estimated in 2006 that Union citizens make some 180 million trips every year to destinations outside the European Union.22 Furthermore, between 30 and 50 million citizens reside permanently outside Europe. It is estimated that 8.7% of the EU citizens travelling outside the EU go to third countries where their Member State has no consular or diplomatic representation. Based on the number of trips made annually by EU citizens to third countries, the estimated number of ‘unrepresented’ Union citizens travelling abroad annually is at least 7 million. In addition, around 2 million EU expatriates live in a third country where their Member State is not represented.23
Most Member States do not keep records of the number of requests for consular assistance in third countries. However, on the basis of available data it is estimated that around 0.53% of EU citizens need consular assistance when travelling outside the EU, which would amount to at least 425,000 cases per year.24 In addition, it is estimated that at least 37,000 of these cases concern Union citizens whose Member States are not represented in the third country.25 The number of the cases of Union citizens looking for assistance by the embassy or consulate of another EU Member State in a third country is expected to increase during the ← 21 | 22 → next years due to growing popularity of the EU provisions on consular protection among the citizens of the EU. It should be highlighted in this regard that while a Eurobarometer survey published in 2006 showed that only 23% of those interviewed were aware of the possibilities offered by ex-Article 20 TEC,26 a Eurobarometer Flash Report of October 201027 indicates that an average of 79% of the citizens of the twenty-seven EU Member States are aware of their “right to ask for help at embassies of other EU Member States, if his/her country does not have an embassy there”.28
In these circumstances, aggravated by globalisation reflected in different patterns such as placement of Union citizens working for multinational companies in third countries, permanent residence of Union citizens in third countries as a consequence of their family links with third-country nationals as well as low-cost travel possibilities leading to an increasing number of Union citizens travelling outside the EU, to places that have not been tourism hotspots during the last decades, the right to consular protection under Union law has steadily gained in relevance while its legal design is continuing being afflicted with legal uncertainty.
- ISBN (PDF)
- ISBN (ePUB)
- ISBN (MOBI)
- ISBN (Softcover)
- Publication date
- 2014 (July)
- globalised world international law directive
- Bruxelles, Bern, Berlin, Frankfurt am Main, New York, Oxford, Wien, 2014. 286 pp.