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Multilevel Citizenship

The Right to Consular Protection of EU Citizens Abroad

Eva-Maria Poptcheva

This book is the first monograph on one of the least studied and most controversial European Union citizenship rights. Despite the importance of consular protection in a globalised world, many EU Member States are reluctant to recognise consular protection for EU citizens abroad as a right, leading to a protracted struggle to place the right to consular protection on a solid legal basis through a directive.
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.
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Chapter VI: Substantive Scope of the Right to Consular Protection

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CHAPTER VI

Substantive Scope of the Right to Consular Protection

1.  A Mere Right to Equal Treatment?

The function of the right to consular protection – to fill out with legal power the political status of Union citizens in particular situations requiring action by a Member State – faces a challenge in the structure of the right to consular protection that suggests indeed a claim to a positive action but fails to identify what the positive action shall consist of. Rather, the wording of Article 23 TFEU and Article 46 EU Charter seems to limit the positive obligation imposed upon the Member States to the obligation to secure the equal treatment of unrepresented Union citizens in third countries when providing them with consular protection. The Treaties therefore set up the right to consular protection as an equal-treatment right.

The design as an equal-treatment right is not unusual for a citizens’ right and its equal-treatment character deprives it not from being a subjective right, as the look at the rights to vote and stand as a candidate at municipal elections as well as in elections to the European Parliament shows.1 Besides, the Court of Justice has repeatedly confirmed the subjective-right character of the general principle of non-discrimination on the grounds of nationality enshrined in Article 18 TFEU (ex-Article 12 TEC). The Court went to conclude in the case Bickel for instance that the nationals of the Member States had a “right to equal treatment”2...

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