«RAMSES A. WESSEL Professor of the Law of the European Union and other International Organizations, Centre for European Studies, University of Twente, ...»
In paragraph 3, the Working Arrangement gets more complex (or at least, meticulous) when it comes to preparing the briefings of the visitor to the third country or IO. Importantly, the notion of reciprocal cooperation of Article 3 (2) EEAS Council Decision imbues this paragraph. Here the Arrangement refers not to “EU delegations” but rather to the more generic EEAS – which implies that this paragraph pertains to staff at headquarters based in Brussels, and here institutional competences and division do matter: The basic principle is that “the EEAS will contribute to briefings for Commissioners’ visits to third countries”, and equally that “Commission services will contribute to briefings for the HR/VP’s visits” – with specific arrangements for briefings for candidate countries. Thus, the EEAS and Commission should together write the document the visiting official will read on the plane-ride to her or his destination. However, when it comes to meeting with the Commissioner or HR/VP, staff of ‘the other’ institution will not necessarily be present: “Where appropriate, the relevant Commission service(s) and the EEAS will participate in preparatory meetings with the Commissioner(s). Where appropriate, the relevant Commission service(s) will participate in preparatory meetings with the HR/VP.” (European Commission 2012).
Finally, the Working Arrangement states that “In accordance with Article 221 TFEU, EU Delegations in third countries and at international organisations represent the EU. Where the relevant Commissioner participates in meetings, conferences or negotiations related to international organisations, conventions and/or agreements, he/she will represent the EU position in non-CFSP matters. In meetings at official level, the non-CFSP EU position can be presented either by the EU Delegation or by Commission officials.” (Leffler 2012). That the High Representative speak in CFSP matters and Commissioners in non-CFSP matters comes as no surprise (Art. 40 TEU), but the sentence on meetings at ‘official level’ is perhaps more puzzling. This sentence concerns representation by the EU institutions in multilateral contexts such as the United Nations and the OSCE. Let us draw the parallel with national diplomatic activities: It is certainly not exceptional that diplomatic staff of a Member State to the United Nations would be joined by experts from national ministries (foreign ministry, agriculture, development, etc.) on topical issues such as for example ECOSOC meetings. However, the working arrangement does not speak of EEAS officials from Brussels (EU equivalent of a national foreign ministry) and Commission officials (the ‘other’ ministries) presenting the non-CFSP EU position aside from the EU delegation, but only of the latter category. Here too, we can have two interpretations: the ‘common sense’-interpretation implies that this simply replicates the situation of national experts joining their diplomats at the permanent representation in New York. However, the more ‘suspicious’ interpretation would be that this sentence is an extension of Article 17 (1) TEU, which is an article on which the Commission has been placing much emphasis in the post-Lisbon era. It reads: “With the exception of the common foreign and security policy, and other cases provided for in the Treaties, [the Commission] shall ensure the Union's external representation.” Thus, if this sentence in the Working Arrangement indeed means that the Commission shall ensure external representation alongside with, or instead of the EU delegations, this certainly detracts from the EU’s ambition for them to be the “one stop shop” for EU diplomacy and external representation.
This is especially so if it means that EU delegations are thus still associated with the task of representing the EU only on “CFSP issues”, something which Article 221 TFEU expressly seeks to avoid.
4. Diplomatic Protection and Consular Assistance for ‘EU Nationals’ and the Reality of International Law An important role for diplomatic missions abroad as described in Article 3 (1) VCDR is to “Protect the interests of the sending state and its nationals in the receiving state – within the limits permitted by international law” (Article 3, (b) VCDR). There is a strong basis in the Treaties for EU ambitions on this front. Articles 3 (5) TEU and 23 TFEU together provide the basis for diplomatic protection and consular assistance to EU citizens. Article 3 (5) TEU obliges the EU to protect the interests of its citizens abroad, and persons holding the nationality of a Member State are citizens of the Union. (Article 20 (1) TFEU).\ However, Member States are divided on how far the ambitions implementing these provisions would reach. In its most long-term version, if the Union were to achieve full diplomatic maturity, its most far-reaching implication might be that the EU provide such protection as if they were ‘nationals of the EU’ for the purposes of international law. While Article 3 (5) TEU could accommodate that interpretation, the role explicitly foreseen in the EEAS Decision for diplomatic protection and consular assistance by the EU does not, and is merely supplementary: “The Union delegations shall, acting in accordance with the third paragraph of Article 35 TEU, and upon request by Member States, 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.” (Art 5(10) of the EEAS Decision).
While one may argue that consular assistance thus is not a competence of the EEAS or the Union delegations per se, a role of the delegations in this area seems obvious and was already foreseen by the Commission prior to the entry into force of the Lisbon Treaty. 11 At that point in time the Commission has been quite active in working together with the Member States in the protection of their citizens in crisis situations in third countries (European Commission 2011a). In March 2011, the Commission published a state-of-play on this issue, where it argued that “the need of EU citizens for consular protection is expected to increase in the coming years.” (European Commission 2011a). To support that argument the Commission first quoted Eurostat numbers which show a steep upwards trend in EU citizens travelling to third countries: from 80 million trips in 2005 to 90 million trips in 2008. The Commission
also referred to major recent crises which affected a considerable number of EU citizens:
Libya, Egypt and Bahrain after the democratic uprisings in spring 2011, Japan after the earthquake in March 2011, or Iceland's volcanic ash cloud in spring 2010. In these circumstances, the Commission argued that “it appears particularly relevant to further reinforce the effectiveness of the right of EU citizens to be assisted in third countries for their different needs (e.g. practical support, health or transport).
With public budgets under pressure, the European Union and the Member States need to foster cooperation to optimise the effective use of resources.” (European Commission 2011a). However, the EU Member States are deeply divided on how far EU ambitions reach in this area, and what is the end-point of ‘optimisation of resources’? Some Member States have a strong interest for EU Delegations to develop a capacity for consular support for EU citizens, whereas others are clearly opposed to the EU taking such a role, since they see this as a purely national competence (European External Action Service 2011a). What is certain from the perspective of the EEAS, is that if the Union wishes to pursue such a role for EU delegations abroad, that significantly more financial and human resources will need to be allocated to the EU diplomatic service. The December 2011 EEAS evaluation report stated that “it is difficult to see how this objective could reasonably be achieved “on a resource neutral basis” as required by the EEAS decision. It would certainly not be responsible to raise citizens’ expectations about the services to be provided by EU delegations, beyond their capacity to deliver in such a sensitive area. And the existing expertise within the EEAS in this area is extremely limited. However, over the past year we have also seen that the EU Delegations can play an important role in the coordination of evacuations of citizens and that pragmatic solutions can be found on the ground.” International law generally makes a distinction between consular assistance and diplomatic protection. Diplomatic protection “consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, 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.” (Art. 1 See ‘Effective consular protection in third countries: the contribution of the European Union’, European Commission Action Plan 2007-2009, COM(2007) 767 final, p. 10: “In the longer term, the Commission will also consider the possibility of obtaining the consent of third countries to allow the Union to exercise its protection through the Commission delegations”.
of the 2006 Draft Articles on Diplomatic Protection). It is often considered to involve judicial proceedings, but protection of citizens may take different shapes, including the forceful protection by military missions (Larik 2011). Interventions outside the judicial process on behalf of nationals (issuing passports, assisting in transnational marriages, etc.) are generally not regarded as constituting diplomatic protection but as falling under consular assistance (Künzli 2006). For EU citizens consular assistance is mostly what they seek whenever they are in a third country and in need of some administrative actions, both in peace time and in crisis situations (Lindström 2009). Diplomatic protection may come up when they run into legal troubles and a governmental intervention is requested.
Is it at all possible for the EU to play a state-like role in these matters? With the entry into force of the Maastricht Treaty in 1993, a European Citizenship was created, and the European Court of Justice even hinted at the idea of European citizenship being the primary identity of the nationals of the Member States (Shaw 2007).12 On the basis of Article 23 TFEU, EU citizens are entitled to protection by the diplomatic and consular authorities of all Member States, when his/her own country has no representation (Art. 23 TFEU; Art. 46 of the EU Charter). Yet, it is clear that ‘EU citizenship’ cannot be said to have created ‘EU nationality’.
The experiences since 1993 are somewhat mixed. “[…] some States consider that very little has changed since the adoption of this provision, while others are more enthusiastic about it” (Vermeer-Künzli 2011). The fact is that, partly apart from the treaty provisions, the EU itself seems to be well on its way to further develop is capacities in the area of consular assistance.
As an answer to the differences between the 27 national legal frameworks on consular and diplomatic protection, a common EU legal framework may be developed (Moraru 2011).13 There are good reasons to believe that this development may have consequences for the diplomatic services of the Member States and that traditional international law is being sidestepped (Vermeer-Künzli 2011). In that sense, Article 23 TEU already forms a good example of a deviation from general international law, as it provides for the right of EU citizens to diplomatic and consular protection of Member States other than the State of nationality in the territory of a third country (Vigni 2011).
Indeed, one of the key problems is that the relevant international rules depart from the notion of ‘nationality’, defined as “the status of belonging to a state for certain purposes of international law” (Art. 3 VCDR and Art. 5 VCCR). Indeed, “the criterion of nationality helps to recognise the entity that is both competent and accountable to act in the name of individuals vis-à-vis third countries.”14 In principle, states can only protect their own nationals.15 In general, however, it is clear that ‒ irrespective of the invention of a ‘European Citizenship’‒ a Case 184/99, Grzelczyk.
The Commission hinted at new legislative measures in Consular protection for EU citizens in third countries:
State of play and way forward, Commission Communication, 23.3.2011, COM(2011) 149 final, at 13.
Panevezys-Saldutiskis Railway Case,  PCIJ Rep Series A/B No 76, 16. Also in the Nottebohm Case (Second Phase)  International Court of Justice Rep 4,22.
‘bond of nationality’ is by definition absent in the relationship between the EU and its citizens.
European citizenship is granted to the nationals of the Member States (Article 20 TFEU).