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The right to diplomatic and consular protection is an element of the rights conferred on the EU citizen in the second part of the EC Treaty since the entry into force of the Treaty of Maastricht. It is guaranteed by the Charter in the same terms and, in accordance with Article 52(2) of the Charter, it applies under the same conditions as Article 20 EC. This right marks the extension of the institution of EU citizenship to outside the borders of Member States. As with granting a right to vote in the Member State of residence, (Articles 39 and 40 of the Charter) it introduces a distinction between the nationality and its connection to the State that, traditionally, contains its legal effects. Nevertheless, if the international rule states that a State may only exercise diplomatic protection as regards its own nationals, the assimilation of some immigrants to the nationals is provided for in international law, especially in the case of agreements for international representation of one State by another. In the Community context, the benefit of diplomatic and consular protection by other Member States is in principle entrenched, the only condition being the possession of the Nationality of a Member State. This protection is "activated" by default in third countries where the Union State of citizenship of the person is not represented. In the second report on EU citizenship presented in 1997, the Commission notes that all Member States are represented in only five countries (Russia, Japan, the United States, China and Switzerland), and that there are seventeen countries in which only two Member States are represented.
Article 20 of the EC Treaty provides, for the implementation of this protection, for the Member States to establish among themselves the necessary rules and to engage in the necessary international negotiations. Two decisions have been adopted in this way by the government representatives of the Member States meeting within the Council:
- The decision 95/553/EC, of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations, which establishes the conditions for application of the principle laid down in the treaty and specifies the cases that must be covered by the protection.
- assistance in cases of death;
- assistance in cases of serious accident or serious illness;
- assistance in cases of arrest or detention;
- assistance to victims of violent crime;
- the relief and repatriation of distressed citizens of the Union.
At a citizen's request, other forms of aide may be contemplated, in particular financial aide under certain conditions and means of reimbursement.
- The decision 96/409/CFSP, of 16 July 1996 on the establishment of an emergency travel document, which establishes a uniform format for travel documents that can be issued by the diplomatic and consular authorities of the Member States for the benefit of EU citizens, for a single trip to the Member State where the applicant is a national or permanent resident, or, in exceptional circumstances, to another destination. The provisional travel permit may be requested when:
- The EU citizen no longer has a passport or travel documents (lost, stolen, destroyed or temporarily unavailable);
- The citizen is in a country in which the Member State of which he/she is a national is not represented, or access is difficult in order for the travel document to be issued;
- The authorities of the Member State of origin have given their authorisation.
These two decisions must enter into force when all Member States have completed implementation into national law, which is not yet the case. In the Third Report from the Commission on Citizenship of the Union,  the Commission stresses that, in practice, measures were taken to ensure appropriate protection and assistance to EU citizens who are not represented in a third country. In 1995, a third decision, not published in the Official Journal, was adopted within the Council to define the implementing rules for adoption by consular officers.
The draft Constitutional Treaty provides, in its Article III-127, that measures intended for facilitating diplomatic and consular protection of Union citizens in third countries should be taken by the Council, after consulting with the European Parliament. |
