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Europaudvalget 2023
KOM (2023) 0930
Offentligt

EUROPEAN

COMMISSION

Brussels, 6.12.2023

SWD(2023) 941 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT

Accompanying the document

Proposal for a Council Directive

amending Directive (EU) 2015/637 on the coordination and cooperation measures to

facilitate consular protection for unrepresented citizens of the Union in third countries

and Directive (EU) 2019/997 establishing an EU Emergency Travel Document

{COM(2023) 930 final} - {SEC(2023) 930 final} - {SWD(2023) 940 final} -

{SWD(2023) 942 final}

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CONTENT

INTRODUCTION: POLITICAL AND LEGAL CONTEXT .....................................4

PROBLEM DEFINITION ...........................................................................................7

2.1. Preparedness to ensure the protection of fundamental rights ............................7

2.2. What is the problem and why is it a problem?...................................................8

2.2.1. Overview ........................................................................................................8

2.2.2. Limitations resulting from the lack of preceding evaluation .........................9

2.2.3. Imprecise definition of ‘unrepresented citizens’ ............................................9

2.2.4. Unclear assignment of roles and tasks at local consular cooperation

networks .......................................................................................................10

2.2.5. Ineffective contingency planning .................................................................11

2.2.6. Ineffectiveness of Lead State concept ..........................................................13

2.2.7. Legal uncertainty related to the role of the EU and EU delegations ...........14

2.2.8. Inconsistent information to EU citizens .......................................................16

2.2.9. Lack of reliable information on EU citizens living or traveling abroad ......17

2.2.10. Complexity and ineffectiveness of reimbursement procedure ...................18

2.3. Magnitude of the problem ................................................................................19

2.3.1. Estimated number of unrepresented EU citizens .........................................19

2.3.2. Estimated number of cases of assistance to unrepresented EU citizens ......20

2.3.3. Feedback from EU delegations ....................................................................21

2.4. How will the problem evolve? .........................................................................21

2.4.1. Consular networks .......................................................................................21

2.4.2. Unrepresented EU travellers ........................................................................22

2.4.3. Number of crises requiring consular assistance ...........................................22

WHY SHOULD THE EU ACT? ...............................................................................23

3.1. Legal basis .......................................................................................................23

3.1.1. Mandate of the EEAS and function of EU delegations ...............................24

3.1.2. Compatibility of the role of EU delegations with the Vienna Convention

on Consular Relations ..................................................................................25

3.2. Subsidiarity: Necessity and added value of EU action ....................................26

OBJECTIVES: WHAT IS TO BE ACHIEVED? ......................................................27

4.1. General objective .............................................................................................27

4.2. Specific objectives (‘SO’) ................................................................................27

WHAT ARE THE AVAILABLE POLICY OPTIONS? ...........................................28

5.1. What is the baseline from which options are assessed? ...................................28

5.2. Description of the policy options per specific objective ..................................28

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5.2.1. SO1: Enhance the legal certainty for EU citizens with respect to the scope

of the right to consular protection ................................................................28

5.2.2. SO2: Ensure clear roles, coordination and cooperation mechanisms

between Member States and EU delegations, including in times of crisis. .29

5.2.3. SO3: Improve the information provision and communication with

(unrepresented) EU citizens. ........................................................................30

5.2.4. SO4: Increase the efficiency and use of the financial reimbursement

procedures ....................................................................................................30

5.3. Options discarded at an early stage ..................................................................31

WHAT ARE THE IMPACTS OF THE DIFFERENT POLICY OPTIONS AND

WHO WILL BE AFFECTED? ..................................................................................32

6.1. Impacts on fundamental rights .........................................................................32

6.2. Economic impacts ............................................................................................33

6.3. Compliance with the ‘Digital by Default’ principle ........................................38

6.4. Assessment of options......................................................................................38

6.4.1. Assessment of options for SO1 ....................................................................39

6.4.2. Assessment of options for SO2 ....................................................................41

6.4.3. Assessment of options for SO3 ....................................................................46

6.4.4. Assessment of options for SO4 ....................................................................48

HOW DO THE OPTIONS COMPARE? ..................................................................50

PREFERRED COMBINATION OF OPTIONS .......................................................53

8.1. Impacts of the preferred combination of options .............................................54

8.2. REFIT – Preferred option ................................................................................54

HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? ........55

GLOSSARY ......................................................................................................................57

ANNEX 1: PROCEDURAL INFORMATION .................................................................58

ANNEX 2: STAKEHOLDER CONSULTATION ...........................................................70

ANNEX 3: WHO IS AFFECTED AND HOW? ...............................................................86

ANNEX 4: ANALYTICAL METHODS ........................................................................102

ANNEX 5: RELEVANT PROVISIONS OF THE DIRECTIVE AND HOW IT

WORKS ...................................................................................................................111

ANNEX 6: LEVEL OF MEMBER STATES’ REPRESENTATION IN THIRD

COUNTRIES ...........................................................................................................113

ANNEX 7: FACTORS LIKELY TO INCREASE THE NUMBER OF CRISES WITH

AN IMPACT FOR CONSULAR PROTECTION ..................................................120

ANNEX 8: INTERVENTION LOGIC ............................................................................122

ANNEX 9: BASELINE SCENARIO ..............................................................................123

ANNEX 10: MEASURES NOT REQUIRING A POLICY CHOICE ............................126

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1. I

NTRODUCTION

: P

OLITICAL AND LEGAL CONTEXT

European Union (EU) citizens travelling to or living in a third (that is, non-EU) country where

their Member State of nationality is not represented (‘unrepresented EU citizens’) are entitled

to the protection of the diplomatic and consular authorities of any other Member State under

the same conditions as the nationals of that Member State. This right is set out in Articles

20(2)(c) and 23 of the Treaty on the Functioning of the European Union (TFEU) and in Article

46 of the Charter of Fundamental Rights of the European Union (the ‘Charter’).

This protection is an essential element attached to EU citizenship. It is an expression of EU

identity and the external dimension of EU citizenship, one of the practical benefits of being an

EU citizen

, and a tangible example of European solidarity appreciated by many EU citizens

On this basis of this right, unrepresented EU citizens in need of assistance abroad, be it in case

of accident, illness, being victims of crime, or loss of their travel documents, can turn to the

diplomatic and consular authorities of other Member States.

On 20 April 2015, the Council adopted Directive (EU) 2015/637 on the coordination and

cooperation measures to facilitate consular protection for unrepresented citizens of the Union

in third countries (from here on

the Directive

or the

Consular Protection Directive)

. This

Directive lays down the coordination and cooperation measures necessary to facilitate the

exercise of the right of EU citizens to enjoy, in the territory of a third country in which the

Member State of which they are nationals is not represented, consular protection on the same

conditions as the nationals of the represented Member State providing assistance. The Member

States had three years, until May 2018, to transpose the Directive into their national

legislation

The Directive replaced the ten-year long intergovernmental

sui generis

legal framework that

used to govern the implementation of the EU citizenship right to consular protection

. It does

not exist in a legal vacuum, however, and the following instruments are relevant to ensure

effective consular protection to EU citizens:

•

The

1963 Vienna Convention on Consular Relations (VCCR)

as the basis for

international consular cooperation between States;

The

European External Action Service (EEAS) Decision

outlining the mandate of the

EU delegations (EUDEL). According to Article 5(10) of that Decision, the EU delegations

are to “acting

in accordance with the third paragraph of Article 35 of the Treaty on

European Union (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”;

See Commission Proposal for a Council Directive on Consular protection for citizens of the European

Union abroad, COM(2011)881 final, Explanatory Memorandum.

According to Flash Eurobarometer 485, around three quarters of respondents (76%) are aware of this

right.

Council Directive (EU) 2015/637 of 20 April 2015 on the coordination and cooperation measures to

facilitate consular protection for unrepresented citizens of the Union in third countries and repealing

Decision 95/553/EC (OJ L 106, 24.4.2015, p. 1).

Article 17(1) of the Directive.

See Decision 95/553/EC of the Representatives of the Governments of the Member States meeting within

the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic

and consular representations (OJ L 314, 28.12.1995, p. 73).

See at

https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf

Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the

European External Action Service (OJ L 201, 3.8.2010, p. 30).

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•

Council Directive (EU) 2019/997

(the ‘ETD Directive’) on the issuance of

Emergency

Travel Documents (ETD),

which is a single-journey document, allowing the bearer to

return home, or, exceptionally, to another destination, in the event that they do not have

access to their regular travel documents, for example because they were stolen or lost. EU

ETDs were first introduced by Decision 96/409/CFSP

in 1996. The ETD Directive

provides for a modernised, harmonised and more secure EU ETD format. The issuance of

ETDs is one of the six types of consular assistance expressly mentioned by the Consular

Protection Directive;

The

European Union Civil Protection Mechanism (UCPM),

which may be used to

provide civil protection support to consular assistance to the citizens of the Union in

disasters in third countries

. During the COVID-19 crisis, the UCPM was activated an

unprecedented number of times in support of consular assistance requests (408 flights,

100 313 passengers repatriated on UCPM-financed flights)

. The UCPM also played a

significant role during the 2021 consular emergency in Afghanistan, supporting 98 flights

which evacuated 10 000 passengers (including a number of eligible persons who were not

EU citizens). The Union co-financed 75% of the costs of these repatriation flights.

According to Article 13(4) of the Consular Protection Directive, the Lead State or the

Member State(s) coordinating assistance to unrepresented citizens can resort to the UCPM

for help in crisis situations. Under the UCPM, Member State(s) are directly cooperating

with nine UCPM Participating States

. It should also be noted that in crisis situations, there

is the possibility to use UCPM’s co-financed flights to send teams of civil protection or

consular experts to the crisis-hit third country;

Consular protection provisions/clauses included in several international agreements

with a view to enabling represented Member States to provide consular protection to

unrepresented EU citizens and dispensing with the obligation to notify the receiving State

pursuant to Article 8 VCCR.

•

Council Directive (EU) 2019/997 of 18 June 2019 establishing an EU Emergency Travel Document and

repealing Decision 96/409/CFSP (OJ L 163, 20.6.2019, p. 1).

Decision of the Representatives of the Governments of the Member States, meeting within the Council

of 25 June 1996 on the establishment of an emergency travel document (OJ L 168, 6.7.1996, p. 4).

See Article 16(7) of Decision No 1313/2013/EU of the European Parliament and of the Council of 17

December 2013 on a Union Civil Protection Mechanism (OJ L 347, 20.12.2013, p. 924).

Map summarising the UCPM support to Member States and UCPM Participating State in organising the

repatriation of EU citizens from across the world during the COVID-19 pandemic:

https://civil-

protection-humanitarian-aid.ec.europa.eu/news-stories/stories/bringing-stranded-citizens-home_en

Albania, Bosnia and Herzegovina, Iceland, Montenegro, North Macedonia, Norway, Serbia, Türkiye and

Ukraine.

See, for example: Strategic Partnership Agreement between the European Union and its Member States,

of the one part, and Canada, of the other part ; Partnership Agreement on Relations and Cooperation

between the European Union and its Member States, of the one part, and New Zealand, of the other part;

Enhanced Partnership and Cooperation Agreement between the European Union and its Member States,

of the one part, and the Republic of Kazakhstan, of the other part; Framework Agreement on Partnership

and Cooperation between the European Union and its Member States, of the one part, and Malaysia, of

the other part; Political dialogue and Cooperation Agreement between the European Union and its

Member States, of the one part, and the Republic of Cuba, of the other part; Comprehensive and

Enhanced Partnership Agreement between the European Union and the European Atomic Energy

Community and their Member States, of the one part, and the Republic of Armenia, of the other part;

Cooperation Agreement on Partnership and Development between the European Union and its Member

States, of the one part, and the Islamic Republic of Afghanistan, of the other part.

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A short description of the provisions of the Directive and examples on how it works are

presented in Annex 5.

As mentioned in the 2020 EU citizenship report

, the 2021 Commission work programme

announced a review of the EU rules on consular protection to improve the EU’s and Member

States’ preparedness and capacity to protect and support EU citizens in times of crisis. This

would involve strengthening the EU’s supporting role

and making best use of its unique

network of EU delegations.

In addition, the Commission, in its Communication in the follow up on the Conference on the

Future of Europe

, committed to consider new areas of action, such as making “European

citizenship more tangible to citizens, including by reinforcing the rights attached to it and by

providing reliable and easily accessible information about it.”

The Strategic Compass for Security and Defence – For a European Union that protects its

citizens, values and interests and contributes to international peace and security adopted by the

Council in March 2022

announced that “the

EEAS crisis response mechanisms, our consular

support and field security will also be reviewed and strengthened to better assist Member States

in their efforts to protect and rescue their citizens abroad, as well as to support our EU

delegations when they need to evacuate personnel”

On 2 September 2022, the Commission published a report on the implementation and

application of the Directive (the ‘Commission Report’)

, which notes that crises resulting in

requests for consular protection are increasing in number and scale. In particular, the COVID-

19 pandemic (unprecedented in scale and complexity), the crisis in Afghanistan, Russia’s war

of aggression against Ukraine and the subsequent consular crises provided a context to identify

gaps and reflect on how to strengthen Union citizens’ rights related to consular protection and

to further facilitate its exercise.

Improving the consular protection of EU citizens abroad by reinforcing EU solidarity and

cooperation in this field would ensure that EU citizens continue to benefit from this

fundamental right according to the highest standards.

Report from the Commission to the European Parliament, the Council, the European Economic and

Social Committee, and the Committee of the Regions: EU Citizenship Report 2020 Empowering citizens

and protecting their rights (COM(2020) 730 final).

COM(2020) 690 final.

See Article 5(10) of the Council Decision of 26 July 2010 establishing the organisation and functioning

of the European External Action Service (2010/427/EU).

Report from the Commission to the European Parliament, the Council, the European Economic and

Social Committee, and the Committee of the Regions: Conference on the Future of Europe – Putting

Vision into Concrete Action (COM(2022) 404 final and Annex).

ST 7371/22.

Following on this call, an EEAS Crisis Response Centre (CRC) was created in July 2022 as the EEAS

permanent crisis response capability, liaising with all EU Institutions’, Member States’ and partners’

crisis cells.

Report from the Commission to the European Parliament and the Council on the implementation and

application of Council Directive (EU) 2015/637 of 20 April 2015 on the coordination and cooperation

measures to facilitate consular protection for unrepresented citizens of the Union in third countries and

repealing Decision 95/553/EC (COM(2022) 437 final).

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2. P

ROBLEM DEFINITION

2.1. Preparedness to ensure the protection of fundamental rights

“In

times of increasingly rapid change, growing complexity, and critical uncertainty,

responsible governance requires preparing for the unexpected”

Consular preparedness implies to anticipate and address the main issues related to the

protection of EU citizens abroad irrespective of whether hypothetical scenarios materialise.

This applies to regular consular protection but is even more relevant in crisis situations where

rapidity and adequacy of response is of utmost importance for an effective assistance.

Against this backdrop, there is a need to pinpoint existing weaknesses in the Member

States and EU assistance coordination in order to address them and to prevent risks for

EU citizens.

Crisis management is not limited to responding to emergencies, but rather is a

dynamic process that includes (1) prevention, (2) preparation (also called mitigation) and (3)

response and recovery actions.

Prevention activities aim to forecast critical events and identify possible crisis situations in

advance to avoid that EU citizens become victims of predictable dangers. These actions mainly

consist in offering travel information based on the assessment of a situation in a third country,

also known as ‘travel advice’. After having identified the most plausible risk scenarios, it is

essential to prepare accordingly in order to be ready to act if and when the emergency actually

occurs.

Good planning ahead of a possible crisis is essential to make the crisis response phase as

effective as possible. Finally, the recovery phase involves the evaluation of the results

achieved, thus giving the opportunity to learn from successes and failures.

It follows that while

crises could appear as ad-hoc problems, since they are often unforeseen and distinct from

each other, the mechanisms necessary to deal with them should not be ad-hoc ones.

In the case of consular protection, lack of preparedness and failure to provide protection in a

timely and effective manner may have serious consequences for EU citizens in a distressing or

even dangerous situation, either an everyday one or, most importantly, a crisis situation.

Even though most persons do not experience any serious trouble when travelling, it can occur

that a person or a group of persons suddenly face a life-or-death situation or require different

types of protection at once. In particular, situations where a large number of citizens require

the intervention of the diplomatic and consular representations can be particularly challenging.

Failures to provide effective consular protection to EU citizens in distress not only has concrete

negative consequences on the citizens concerned and their families, but it also poses a

reputational risk for the Member States and the EU.

Another important aspect to consider, when analysing problems in the provision of consular

protection, is the fact that from a practical point of view, consular assistance from the Member

States and the support of EU delegations is a dynamic process that is not only strictly connected

to the capacity of the diplomatic and consular missions on the ground, and to the resources

available for managing emergencies, but also to the existence of clear procedures and legal

safeguards providing a framework for an effective response.

Legal uncertainties for the actors involved in consular protection activities, including EU

delegations, in particular in crisis response, undermine their capacity to respond effectively to

OECD, Strategic Foresight see at

https://www.oecd.org/strategic-foresight/whatisforesight/.

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the situation, therefore hindering EU citizens’ enjoyment of their fundamental right to consular

protection.

In conclusion, the context of the provision of consular protection has specific characteristics,

including prevention and preparedness that are to be taken into account when illustrating the

problems and their magnitude in the next sections.

2.2. What is the problem and why is it a problem?

2.2.1. Overview

The figure below presents the key problems

identified, as will be explained in the following

sections.

Figure 1: Overview of problems identified and their consequences

1) Imprecise definition of unrepresented

citizens

2) Unclear assignment of roles and tasks at

Local consular cooperation networks

unrepresented citizens face risks of not being assisted

Coordination challenges in LCC meetings in assisting

unrepresented citizens

Coordination problems in relation to Joint Consular

Crisis Preparedness Frameworks

Inefficiencies in crisis situations when there is a Lead

State

unrepresented citizens face risks of not receiving effective

consular protection

3) Ineffective contingency planning (Joint

Consular Crisis Preparedness Frameworks)

4) Ineffectiveness of Lead State concept

5) Legal uncertainty related to the role of the

EU and EU Delegations in the provision of

consular assistance

6) Inconsistent information to EU citizens

EU citizens are not consistently or correctly informed on

the risks of travelling and on whom they can ask/rely for

assistance

Member States have difficulties in identifying EU citizens

to assist

7) Lack of reliable information on EU citizens

living or traveling abroad

8) Complexity and ineffectiveness of financial

reimbursements

Financial reimbursements are burdensome and not used

In addition to the study carried out to support this impact assessment

, the problems were

identified on the basis of the Commission Report and the evidence gathered for its preparation,

an inception impact assessment, the discussions among Member States in the Council Working

Party on Consular Affairs (COCON) and the public consultation for the 2020 EU Citizenship

report and the Flash Eurobarometer 485 on EU Citizenship and Democracy. For more

information, see Annex I.

Please note that an additional set of problems were investigated as part of the study. The rationale for not

including these in the impact assessment is presented in Annex I and II of the study.

Study supporting the impact assessment,

including its

annexes.

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2.2.2. Limitations resulting from the lack of preceding evaluation

A derogation from the ‘evaluate first’ principle was granted given the preparation of the

Commission Report and the fact that, shortly after the transposition of the Directive, the

datasets were insufficient to carry out a fully-fledged evaluation.

However, it must be acknowledged that the absence of such an evaluation has a negative impact

on the data and evaluative evidence available for this impact assessment, notably when

determining the scale of the problems and subsequently the proportionality of the possible

policy options. In view of these limitations, they are specifically addressed in the assessment

of the proportionality of the different options.

2.2.3. Imprecise definition of ‘unrepresented citizens’

In practice:

Nadine, a citizen of Member State A, was victim of a robbery on holidays in

third country X. She is without travel document. The embassy of Member State A is

2 000 km away and it would be very difficult for her to reach it. Member State B consulate

is in the same area where Nadine is located. When Nadine goes to the consulate of Member

State B, Member State B refuses to provide consular protection because Member State A is

present in the third country. Nadine is not provided with the consular protection needed.

Articles 4 and 6 of the Directive define ‘unrepresented citizen’ as every citizen holding the

nationality of a Member State which is not represented in a third country, which is the case 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’. Accordingly, when a citizen’s Member State of nationality has an

embassy, consulate or honorary consul established in a third country, but these are, for any

reason, unable to provide the protection the citizen concerned would otherwise be eligible to

receive according to national law or practice in a given case, that citizen should also be

considered ‘unrepresented’.

A citizen who seeks consular protection from the embassy or consulate of another Member

State should not be redirected to the embassy, consulate or honorary consul of his or her own

Member State of nationality when it is not possible. This might be due to local circumstances

(e.g. as a result of disruptions to the transport system due to a natural disaster) or lack of

resources for the citizen to safely reach or be reached by the consular authorities of his or her

Member State of nationality to receive consular protection. There are no quantitative data

available on such cases as Member States do not collect such information. However, the survey

of EU delegations conducted in the context of the study suggests that cases where EU citizens

were wrongly considered represented and were not assisted or redirected according to the

procedures of the Directive have indeed occurred

In addition, as noted in the Commission Report, some Member States have voiced difficulties

in determining whether an existing embassy, consulate or honorary consul is ‘effectively’ in a

position to provide consular protection as stated in Article 6 of the Directive. While some

Member States consider the issue of remoteness or capacity as a factor in the assessment, others

do not. Some Member States noted difficulties in determining to what extent a lack of

proximity could give rise to a lack of representation. Some Member States expect citizens to

Out of the 77 EU delegations that answered the survey, 8 EU delegations stated that they had encountered

such cases, of which two EU delegations stated this happened frequently. See Annex II, study, p. 38.

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make an effort to access representations of their Member State of nationality, including over

larger distances.

Generally, most Member States take the view that the threshold for assessing whether an

individual is unrepresented varies depending on the nature and urgency of the situation. In

particular in crisis situations, where Member States are faced with urgent requests for

assistance, it can be very difficult for them to confirm rapidly whether a citizen is

unrepresented.

For example, large land surface third countries, even while covered by Member States, raise

issues due to the size of the country. That is, while Member States may be represented in the

capital or in the main cities of a large country, large sections of the territory of that country

may remain uncovered, resulting in the Member States not being in a position to effectively

provide consular protection to citizens in those areas.

This legal uncertainty concerning representation hinders the effective exercise of EU citizens’

right to consular protection as unrepresented citizens may be deprived of the provision of

consular protection they are entitled to, both in crisis and non-crisis situations.

2.2.4. Unclear assignment of roles and tasks at local consular cooperation networks

In practice:

7 Member States are represented in third country X, where an EUDEL is also

established. They meet every month in a local consular cooperation meeting. Since the

chairing arrangements, as defined until now by the group, task the country holding the

rotating Presidency of the Council to chair the group, the LCC meeting is chaired only

every 2 years by a Member State present in third country X. In other instances, the group

is either chaired by the EUDEL, by the incoming Presidency, when present in the country

or, upon their request, by the Member States holding the Presidency accredited but not

present. This situation creates confusion with regards to the respective roles within the

LCC and compromises effective cooperation by failing to ensure, amongst other aspects,

business continuity as well as institutional memory.

Local consular cooperation (LCC) meetings are meetings held between consular officials of

usually

represented Member States in a third country and the consular correspondent in the

EU delegation. The purpose of these meetings is to improve communication and cooperation

between local actors. In those meetings issues such as contingency planning, safety of citizens,

prison conditions or consular access are typically discussed.

Article 12 of the Directive lays out that the Chair of the LCC meetings must be a representative

of a Member State unless otherwise agreed, in close cooperation with the EU delegation. As

per Recital 18 of the Directive, the competences and respective roles of all relevant actors

should be clarified. As noted in the Commission Report, Member States with lightly staffed

representations highlighted how local coordination is crucial, both as a source of information

and as a practical tool to solve issues arising from the provision of consular protection.

However, Member State and EU stakeholders consulted noted that it is difficult for lightly

staffed Member States to participate in all LCC discussions, let alone chair meetings. This is

particularly difficult for unrepresented Member States, notably due to the different time zones.

The COVID-19 crisis has led to a development of remote access/videoconference format for

these meetings allowing also unrepresented Member States to join when relevant.

In some cases, unrepresented Member States also participate virtually in the meetings.

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A few Member States noted as a shortcoming that the information discussed during LCC

meetings is not always available or accessible to those Member States not present in the third

country concerned (e.g. capitals or geographically close embassies). One Member State noted

in this regard the lack of sharing of information about repatriation flights, which was

considered an issue during the COVID-19 crisis. One Member State noted that although the

minutes of meetings are uploaded into the closed online information exchange platform CoOL

operated by the EEAS, in order to facilitate discussion and feedback, the EU delegations could

inform unrepresented Member States capitals of agenda of LCC meetings in advance to ensure

that continuous information flow takes place. In a similar vein, another Member State

highlighted that the functionality of the meetings could be further improved by identifying one

channel through which reporting is coordinated and disseminated to all Member States.

There does not seem to exist a clear practice of who chairs LCC meetings. In particular, the

role of EU delegations in LCC is not correctly reflected in the Directive. It is important to

reiterate that problems that might seem of purely administrative/technical nature in a non-crisis

context can become concrete and significant obstacles to smooth operations during crisis

situations. This is the case for arrangements in LCC meetings, which might lead to ineffectively

assisting EU citizens due to uncoordinated actions at local level.

2.2.5. Ineffective contingency planning

In practice:

A sudden political crisis erupts in third country X, for which no Joint Consular

Crisis Preparedness Frameworks (JFW) has been developed, and a military coup takes

place. Borders are closed and riots erupt. EU citizens seek to leave the country. The 9

Member States represented in the country turn to the EU delegation to organize a crisis

meeting, but have no updated key contact list for crisis situations, no pre-established

procedures on cooperation within the LCC or with local authorities and like-minded

partners, no agreed communication strategy with EU citizens and no overview of the

number or location of EU citizens, including unrepresented ones. Unrepresented Member

States turn to the EEAS and ask about coordination measures in third country X. As there

is no joint framework in place, compiling this information takes time and hampers

adequate coordination of EU efforts. EU citizens face delays in receiving adequate

information and assistance.

Joint Consular Crisis Preparedness Frameworks (JFWs) are a practical planning tool to map

the risks, the presence of EU citizens and consular assets, and to establish mechanisms of

consular cooperation in accordance with specific local conditions and in response to different

scenarios. They are a suitable tool for LCCs to establish cooperation and response measures

and the division of responsibilities in crisis situations.

As noted in the Commission Report, JFWs are considered particularly useful by the national

authorities of Member States already due to the mere fact that they raise awareness of the need

for crisis preparedness as such. They also allow for the different capacities, experiences, and

resources of Member States to be shared. But already the simple fact that they provide contact

numbers to reach representations through satellite phones is essential in cases where other

channels become unavailable. A few Member States further noted that a clear division of

responsibilities between represented and unrepresented Member States and the EU delegation

was essential to ensure adequate crisis preparedness and crisis management.

Two thirds of Member States consulted for the study agreed to a moderate or to some extent

that there are inefficiencies in the way the provision of consular protection to unrepresented

kom (2023) 0930 - Ingen titel

citizens is coordinated, especially in crisis situations

. However, as illustrated by the

successful repatriation of 600 000 EU citizens at the beginning of the COVID-19 pandemic

such coordination mechanisms are of utmost importance to provide effective and timely

assistance, all over the world.

Although JFWs have been put in place in more than 100 third countries, they do not exist for

all third countries or in the same level of quality. They may not be up-to-date or may not have

been subject to exercises to test their effectiveness in practice. Member States agreed to the

need for the organisation of practical exercises to be held on a regular basis (due to the rotation

of diplomatic personnel). The EU’s COVID-19 lessons-learned exercise highlighted the need

to review the JFWs locally in view of local experiences

. What is more, in third countries

without Member State presence, the main responsibility for preparing the JFW falls on the EU

delegations. This role is not adequately reflected in the Directive.

In this context, Member States consider that a certain level of universal approach should be in

place and rules for the periodic assessment of JFWs should be adopted

. Member States

recognise the role of EU delegations in coordinating the drafting of JFW and support to reflect

this practical role in the Directive

In addition, 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 also known as ‘Joint

Consular Teams’ (JCTs). Their role can be critical in helping to prevent that Member States

representations in third countries become overstretched and thereby rendered inoperable in the

event of a large-scale crisis. Although the Directive already envisages the possibility of

‘intervention teams’ (see Articles 11 and 13), it does not provide the principles that should

govern these teams

In this context, see also the Council conclusions on enhancing preparedness, response capability and

resilience to future crises of 23 November 2021 where the Council stated that ‘Many recent lessons

learned derive from the COVID-19 pandemic. Despite shortcomings, the EU has coped well, thanks to

coordination and solidarity. While exposing gaps in terms of preparedness and response to cross-sectoral

crises, our response to the pandemic has proven the necessity and added value of working together. The

use of EU consular cooperation and coordination for the successful repatriation by Member States with

support from the EEAS and Union Civil Protection Mechanism (UCPM) of EU nationals stranded abroad

because of emergency travel restrictions (…) underlines where relevant the importance of consular

coordination and cooperation during crises and the need to draw lessons from the response to the COVID-

19 outbreak and other crises, and awaits the presentation of a Commission proposal in 2022 on a revision

of the EU consular protection directive.’ (https://data.consilium.europa.eu/doc/document/ST-14276-

2021-INIT/en/pdf).

https://www.eeas.europa.eu/eeas/good-stories-consular-support-eu-citizens-stranded-abroad_en.

EEAS: COVID-19 – The Global Joint Consular Response: Discussion Paper for the attention of Member

States in the Council Working Party on Consular Affairs (WK 6381/2020 REV 1).

In particular in COCON discussions under Czech Presidency, see Outcome of the proceedings COCON

61 15876/22 available at:

https://data.consilium.europa.eu/doc/document/ST-15876-2022-INIT/en/pdf

and WK 17059/2022 in List of working papers (WK) distributed in the Working Party on Consular

Affairs in 2022

https://data.consilium.europa.eu/doc/document/ST-5013-2023-INIT/en/pdf.

See, for example, the EU’s role on Consular crisis management – Non-paper by Belgium, Finland,

Luxembourg,

Poland

and

The

Netherlands,

April

2022,

available

at:

https://europeanunion.diplomatie.belgium.be/sites/default/files/2023-

05/The%20EU%E2%80%99s%20role%20on%20Consular%20crisis%20management%20-%20Non-

paper%20by%20Belgium%2C%20Finland%2C%20Luxembourg%2C%20Poland%20and%20The%20

Netherlands.pdf

In that regard, Member States in COCON agreed the principles regarding the creation and operation of

Joint Consular Teams, namely participation (voluntary), solidarity (opportunity for unrepresented

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2.2.6. Ineffectiveness of Lead State concept

In practice:

Member State A has the largest representation in third country X. Its citizens

represent 90% of EU citizens present in the country. Only three other MS are represented,

with small embassies and consular sections. Member States present in country X suggest

not to adopt a JFW, as Member State A plays the role of lead state and is expected to

coordinate local consular cooperation, in particular should an evacuation of EU citizens

be considered. Unrepresented Member States trust that Member State A will take the

necessary measures in case of a crisis to provide assistance to their citizens. However, they

have not pre-established procedures on cooperation with Member State A and other

Member States present in the country (nor with like-minded partners), which therefore

have no information about all EU unrepresented citizens present and risk being

overburdened with the provision of assistance.

The ‘Lead State’ concept was adopted by the Council as conclusions in June 2007

. According

to the Council conclusions, the Lead State was responsible for transporting unrepresented EU

citizens to a place of safety. Guidelines on the implementation of the consular Lead State

concept were developed in 2008

. The Directive codifies this soft law practice, bringing the

concept of the Lead State within a legally binding EU act. It defines ‘Lead State’ as “one

more Member State(s) represented in a given third country, and in charge of coordinating and

leading the assistance of unrepresented citizens during crises”.

In practice, it seems that the

Lead State concept as codified by the Directive is generally viewed favourably, particularly by

Member States that are regularly unrepresented.

However, in the context of discussions in COCON, a number of Member States noted that the

concept of ‘Lead State’ as currently referred to in the Directive is outdated. Member State

considered that further clarification of the role of the Lead State within the JFWs is needed.

Since the interrelation between JFWs and Lead State is not considered, overreliance on the

Lead State might lead to an overall lower level of preparedness. In addition, Member States

that are the only ones represented in a given third country may still decide not to assume the

role of Lead State. Some Member States also question the overall feasibility of the concept, in

particular in crisis situations, when the Lead State may become overburdened.

However, other Member States insisted that the Lead State remains an operational concept but

stressed the need for fairer burden sharing among Member States. According to the study, some

Member States are currently of the opinion that some Lead States have too many

responsibilities looking after their own citizens during a crisis to effectively play the role of

Lead State. In other cases, one Member State felt it had to play this role in crisis situations in

practice due to the size of their consular presence. Finally, the implementation of the Lead State

concept varies between countries and regions in terms of what the role entails, with little

consistency in practice.

Member States to cooperate with represented ones), equality (with regard to decisions on internal

working structures), simplicity (regarding composition of teams – national and EU experts – and cost-

sharing - Member States answer for own operational cost), flexibility (targeted to specific needs),

visibility (of the coordinated EU response) and openness (the teams should remain open to third, like-

minded countries).

Council Conclusions on the Lead State Paper (10671/07).

European Union guidelines on the implementation of the consular Lead State concept (OJ C 317,

12.12.2008, p. 6).

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2.2.7. Legal uncertainty related to the role of the EU and EU delegations

In practice:

A group of citizens from Member State A are travelling through third country

X on a cruise. While they are supposed to transit only, they are stopped there because of a

bus accident injuring many of them. Some are unable to travel for several months. The

injured citizens need consular protection, but Member State A has no representation in

third country X. Only Member State Z has an embassy there but with a very limited number

of officials. The embassy of Member State Z requests support from the EU delegation

present in country X to provide protection to the unrepresented EU citizens. The EU

delegation is in principle in a position to provide support to Member State Z. However, the

possibility and terms of the support to be given are not provided for in the Directive,

creating legal uncertainty as to the possibility of the EU delegation to act.

Non-crisis situation: The Directive specifies that EU delegations have a cooperation and

coordinating role. However, unlike the EEAS Decision

, it falls short from allocating

responsibilities or assigning specific duties to support Member States (upon their request) in

their role of providing consular protection to unrepresented EU citizens. In particular, the

Directive does not provide for the conditions and boundaries of such support, including

whether EU delegations can assist unrepresented EU citizens directly (even though this can be

occasionally the case

A number of Member States highlighted the need to strengthen the role of EU delegations in

supporting Member States providing assistance to unrepresented EU citizens. In addition, the

latest Eurobarometer

showed that EU citizens are also in favour of support from EU

delegations: respondents stated that if they were in a country outside the EU where their

Member State of nationality was not represented, they would like to seek support from an EU

delegation instead.

Most Member States are of the opinion that the Directive does not properly reflect the actual

role played by the EU delegations in practice. Several of them consider EU delegations are

well placed to provide assistance to EU citizens upon request from Member States, notably in

third countries with no or low Member State representation. As the Directive does not provide

for this possibility, it creates legal uncertainty as to the possibilities and conditions for EU

delegations to act, effectively undermining the provision of assistance by EU delegations to the

detriment of unrepresented EU citizens in need.

There are 25 countries in the world which have no Member State diplomatic and/or consular

representation

. In 2019, an estimated 12 200 EU citizens lived in these uncovered third

countries and 332 600 EU citizens travelled there. In many more third countries, the consular

or diplomatic presence of Member States is very low, and thus at high risk of being

See Article 5(10) of the EEAS Decision: the EU 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”.

See Commission Report.

Flash Eurobarometer 485: EU Citizenship and Democracy; February/March 2020;

https://data.europa.eu/data/datasets/s2260_485_eng?locale=en.

Six of these countries were previously covered by the UK but are now uncovered since the UK’s

withdrawal from the EU (Barbados, Belize, Grenada, Guyana, Solomon Islands and the Bahamas). In

2019, 2 590 EU citizens lived in these six countries and 200 625 EU citizens travelled there.

kom (2023) 0930 - Ingen titel

overwhelmed if a larger-scale crisis occurs: in 13 third countries, only 1 Member State is

represented, and in 9 third countries, only 2 Member States are represented

When compared to the consular network of EU delegations, among the 25 third countries

without the Member States present, five have an EU delegations present

. The Directive does

not address situations with no Member State embassy or consulate present, creating additional

legal uncertainty as to EU delegations’ role in providing assistance in such situations. In those

13 third countries where there is only one Member State, 5 countries also have an EU

delegation present. Out of the 9 third countries with only two Member States represented, the

EU delegations cover 7 of them

Problems in the provision of consular protection in countries with low or no Member State

representation do occur in particular in crisis situations, where Member States’ diplomatic and

consular authorities can be quickly overburdened and in no position to provide assistance to

unrepresented EU citizens

. The five EU delegations that are present in an “uncovered

country” confirmed that they occasionally receive requests from unrepresented EU citizens in

need of assistance.

Several Member States highlighted that the Directive’s lack of provisions regarding uncovered

third countries poses particular problems, notably regarding the issuance and delivery of ETDs.

Those cannot be solved efficiently by coverage from abroad by accredited

embassies/consulates

It has to be taken into account that the impact of the UK’s withdrawal from the EU cannot yet

be assessed fully, as the UK was still applying the Directive until 2020. In addition, travel

outside of the EU has not fully returned to pre-pandemic levels yet. The UK’s departure from

the EU represents an estimated 7% loss in the overall number of Member States’ embassies

and consulates providing consular functions.

Finally, while some Member States have increased the use of digital tools to provide remote

consular protection, this is yet to be fully developed and has its own challenges and

limitations

Crisis-situation: The Directive lays out that EU delegations are to closely cooperate and

coordinate with Member States’ embassies and consulates to contribute to local and crisis

cooperation and coordination, in particular by providing available logistical support, including

office accommodation and organisational facilities, such as temporary accommodation for

consular staff and for intervention teams.

The Directive does not reflect the actual engagement of EU delegations in crisis situations,

where they have exercised a more substantial role than the cooperation and coordinating role

See Table 16 in Annex 6 on the Level of Member States representation in third countries

Afghanistan, Barbados, Eswatini, Guyana, Lesotho. For further information, see Annex IV of the Study.

WK 10712/2022 INIT.

See concrete examples of the EU delegations’ role in crisis situations in the Commission Report, p.16

https://commission.europa.eu/system/files/2022-09/1_1_196921_impl_rep_cons_en_1.pdf.

There are multiple limitations such as the lack of contacts with local authorities, the possible difficulties

in accessing the country in times of crisis (i.e. if the borders are closed, in case of a natural disaster), the

lack of situational awareness and expertise on the country, the urgent character or the complexity of the

assistance required, etc., which make the provision of consular protection more difficult when there is

no consular presence on the ground.

This is further described in section 2.7 in Annex II of the Study.

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by providing substantive support to Member States in assisting EU citizens

. At the same time,

a lack of specification of the role of EU delegations creates legal uncertainty and even

incentivises inaction, thereby undermining unrepresented EU citizens’ effective consular

protection. For example, the EU delegations may be reluctant to provide assistance to EU

citizens directly in cases where no Member State is present in a third country.

2.2.8. Inconsistent information to EU citizens

In practice:

A binational couple from Member State A and Member State B is travelling

to third country X. When sudden violent riots erupt, Member State A advises its citizens to

leave the country, while Member State B does not change its travel advice. Whereas

Member State A is represented in country X, Member State B is not, but the agreement it

has with Member State A on the consular protection of its citizens is not well known, and

Member State B citizens are not necessarily aware of their right to seek assistance from

other Member States. The EUDEL’s website is not reflecting this arrangement either,

providing incomplete information. This creates uncertainty regarding the most

appropriate course of action.

Honorary consuls: EU citizens do not always have access to up-to-date information on the

extent to which honorary consuls are competent to provide consular protection

Some Member

States stated that it would be helpful to have further information regarding the level of

assistance provided by each Member State’s honorary consuls.

Inaccurate information for unrepresented EU citizens: Article 10(4) and Recital 16 of the

Directive require Member States to provide and update information on relevant contact points

in the Member States through CoOL

in order to ensure swift and efficient cooperation.

However, it does not provide any timeframes for these notifications. Member States’

information on consular presence in third countries is currently not provided in machine-

readable format, neither is it automatically updated on the closed CoOL platform nor on the

public Commission website. As a result, outdated and inaccurate information may be provided

to visitors of the Commission website.

Bilateral arrangements: To facilitate consular assistance to unrepresented EU citizens, the

Directive provides that permanent or practical arrangements can be put in place between the

Member State of nationality and another Member State. Article 7(2) of the Directive requires

the EU and the Member States to publicise the bilateral agreements and practical arrangements

concluded for the purpose of transparency to unrepresented citizens. A number of Member

States noted the lack of up-to-date and centrally available information on the practical and local

arrangements in place, both for Member States and EU citizens. This lack of information causes

delays in receiving assistance when citizens are not aware of the existing arrangements and are

redirected to another Member State embassy or consulate.

In addition, there are problems of coordination between Member States regarding travel advice.

While both the EU and the Member States have websites and other platforms providing

different types of information, and while discussions on travel advice for Member States’

nationals take occasionally place in COCON and travel advice is shared in the CoOL platform,

See concrete examples of the EU delegations’ role in crisis situations in the Commission Report, p.15

https://commission.europa.eu/system/files/2022-09/1_1_196921_impl_rep_cons_en_1.pdf.

CoOL is also used to keep an overview of Member States travel advice to third countries, serves as a

repository for the activities of LCC groups, and features a “discussion board” which Member States use

in times of crises to exchange consular information.

kom (2023) 0930 - Ingen titel

there is currently no obligation to coordinate regarding the provision of travel advice for third

countries, emergency/crisis communication, or on the provision of information on consular

protection by Member States. As a result, an EU citizen assessing whether it is safe to travel to

a third country may be faced with an array of different advice from different sources of

information, which may not be aligned with one another and/or provide up to date information

to the same extent. There could even be manifestly conflicting situations where a sole Member

State represented in a third country would advise its citizens to leave the country immediately,

while unrepresented Member States could still advise their citizens only against non-essential

travel.

Member States consider that a harmonization of travel advice is difficult to achieve due to the

difference between tourists, the regions visited, language barriers and the difference in the

standards used to evaluate danger and safety. However, they raised the need for increased co-

operation, both locally and at capital level, at an early stage when Member States are planning

to change the level of their travel advice. They also positively assess the cooperation and

exchange of information that took place during the COVID-19 crisis and highlighted their

willingness for more support and coordination during crises.

2.2.9. Lack of reliable information on EU citizens living or traveling abroad

In practice:

Most Member States have encouraged their nationals permanently residing

in country X to register with their embassies (for instance by making it a pre-requisite to

receive consular services). However, the large majority of EU citizens travelling on short

term trips (study, business, tourism) never register as they consider country X to be a safe

country or have privacy concerns. When a crisis hits country X, Member States have no

realistic estimate of the number of travellers present and face difficulties in assessing the

scope of the response needed.

All Member States offer the possibility for citizens to register their residence in a third country

or their travel abroad. Most of the Member States (24 out of 27) offer to their nationals the

possibility to register their contact details on a dedicated website/app for the purpose of

emergency communication during their travel (with the exception of one Member State, which

requires their nationals to send an email to the Consular Directorate General and respective

diplomatic mission/consular post about the trip). These websites/apps are divided in their

functionality: some are limited only to travelling citizens (six Member States), others also allow

citizens living abroad to register (18 Member States)

The difficulty in providing effective consular services in crisis situations is related to the lack

of reliable information on EU citizens presented in the area affected by the crisis. As a result,

during crises, Member States are not aware of the number of their citizens requiring assistance

and thus cannot provide this information to the Lead State or the Member State(s) coordinating

assistance, nor can they effectively reach these citizens through targeted communication

(emergency SMS, phone calls, etc.). The Afghanistan conflict has shown that Member States’

knowledge regarding the presence of their nationals who also have the nationality of the third

country concerned is limited. Furthermore, according to Member States, only a minority of

travelers register their trips (10-20%). The figure is higher regarding the nationals living

abroad: for instance, France estimates that 60-70% of people living abroad register. This is

likely due to the fact that most EU citizens are not aware of this possibility or are unwilling to

See Annex II of the Study, section 2.4.4.

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the view that the increasing number of expats and travellers creates new difficulties in reaching

out to stranded citizens (see table 1) in particular due to the lack of knowledge of how many

and where EU citizens are both in the world and within a third country.

Table 1: Level of agreement with “Statement 6: With the increasing number of expats and travellers, it is

becoming increasingly challenging to reach out to stranded citizens in case of an emergency/crisis situation

and to provide them with travel advice before departure.” (N=25) (from the

Questionnaire sent to Member

States)

Number

Share of

total

Not at

all

12%

To a small

extent

16%

To some

extent

32%

To a moderate

extent

16%

To a great

extent

24%

2.2.10. Complexity and ineffectiveness of reimbursement procedure

In practice:

Jonah, citizen of Member State A, was travelling in third country X when a

tsunami struck its coast, causing serious devastation and leading to the repatriation of all

tourists. While Jonah’s Member State A is present in country X, Jonah has an opportunity

to be repatriated in a flight made available by Member State B. However, Member State B

is planning to use the reimbursement procedure provided for in the Directive, which does

not apply to Jonah since he is represented in country X. This may hinder him from seizing

the opportunity to be repatriated as Member State B is not accepting direct payments by

citizens and it is not guaranteed to be reimbursed of the flight costs because the

reimbursement procedure under the Directive only applies to unrepresented EU citizens.

Currently, the Directive provides that Member States assisting unrepresented EU citizens may

ask for the reimbursement of costs incurred from the unrepresented citizens’ Member State of

nationality. The unrepresented EU citizen assisted then repays his or her Member State of

nationality for the cost of consular protection if so requested. The assisting Member State can

also request reimbursement from the Member State of nationality for any unusually high but

essential and justified costs in relation to assistance provided in cases of arrest or detention.

For this, there are two standard forms in the Annexes of the Directive, one to be used by citizens

and one to be used by the assisting Member States.

The financial reimbursement procedures are only applied in a very limited manner across the

Member States, which could already be an indication of their complexity. The Commission

Report highlighted issues with the implementation of the Directive’s provisions on financial

reimbursements. In fact, in those cases where reimbursement was sought, this was not done in

a consistent way across the Member States: while some Member State follow the procedure

outlined in the Directive (using the standard forms presented in the Annexes and requesting

reimbursement from the Member State of nationality), other Member States seek direct

reimbursement from the unrepresented citizens assisted, or have a hybrid approach of first

seeking reimbursement from the citizen, and if they are not successful, they seek

reimbursement from the Member State of nationality. There is also evidence to suggest that the

standard form in Annex I is not used consistently in the regular procedure of Article 14, and

that the lack of use of the Annex I form under the facilitated procedure (Article 15) may mean

citizens are not always clear about the need to reimburse the costs of assistance once they are

repatriated.

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The scope of the Directive is limited to unrepresented EU citizens, which means the

reimbursement forms in the Annex of the Directive only apply to unrepresented EU citizens.

Some Member States reported having provided consular protection to represented citizens

during crises due to the difficulty of distinguishing between represented and unrepresented

citizens, for example when organising repatriations. Moreover, assistance to represented

citizens is also possible under the UCPM, where the EU co-finances up to 75% of the costs of

repatriation flights. Therefore, there is currently an uncertainty regarding the possibility of

using the reimbursement forms in the Annex of the Directive when consular protection is

provided to represented citizens. This has a potential disproportionate impact on those Member

State with the most extensive consular network.

Furthermore, the financial reimbursement mechanism does not apply to EU delegations. This

creates additional difficulties if they are requested by Member States to support the provision

of assistance to unrepresented EU citizens while complying with the resource-neutrality

obligation of the EEAS Decision.

According to the study, there also seems to be the perception among some Member States that

the reimbursement procedure is lengthy and entails a disproportionate administrative burden

when compared to the relatively low cost of providing consular assistance to a low number of

unrepresented citizens. In COCON discussions, many Member States also voiced concerns

regarding the absence of a timeframe for the provision of the statement of expenses for costs

incurred by the assisting Member State, which has caused administrative issues between the

Member States. Member States clearly expressed the need to improve and simplify the current

financial reimbursement procedures.

2.3. Magnitude of the problem

2.3.1. Estimated number of unrepresented EU citizens

As can be seen in the table 2 below, the study estimates that of the 125 million trips that EU

citizens had made to third countries in 2019, 14.2 million trips were to third countries where

the EU citizens were not represented. In addition, the study estimates that 225 000 EU citizens

live in third countries where their Member State is not represented

This shows that the number of unrepresented EU citizens potentially impacted by the problems

outlined above is significant. For example, due to the sizeable number of trips to third countries

where the EU citizens’ Member State of nationality is not represented, the number of EU

citizens who could potentially be negatively affected by the imprecise definition of

‘unrepresented citizen’ is considerable. In addition, the large number of estimated trips to third

countries where EU citizens are unrepresented exacerbates problems linked to insufficient or

inconsistent information.

See

Outcome

the

proceedings

COCON

15876/22

available

at:

https://data.consilium.europa.eu/doc/document/ST-15876-2022-INIT/en/pdf.

The methodology for this chapter is presented in Annex VI of the Study, which provides more detailed

analysis, including data on case number by type of protection, the number of refusals and the proportion

of unrepresented EU citizens assisted. The Annex also compares the estimates against the estimates

presented in the 2011 Impact Assessment.

I.e. unrepresented EU expatriates excluding dual nationals, who hold an EU passport but were born in

the relevant third country.

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Table 2: Summary table on estimated number of unrepresented citizens

EU citizens unrepresented

living

citizens living abroad

abroad

(estimation)

2019

Within the

Outside the

EU /third

countries

TOTAL

16.7 million

16.1 million

25 000

225 000

EU citizens unrepresented

trips

citizens trips abroad

abroad

(estimation)

(2019)

238 million

125 million

2.6 million

14.2 million

36.2

million

250 000

363 million

16.8 million

2.3.2. Estimated number of cases of assistance to unrepresented EU citizens

In the absence of a legal obligation, Member States do no collect statistics on the number of

represented and/or unrepresented EU citizens assisted in a systematic or comparable way.

Some Member States do not collect this data at all, while others collect it only for some types

of protection (e.g. ETD or repatriations). However, based on the limited data reported by

Member States on the number of unrepresented EU citizens, the following two estimates have

been made:

Table 3: Estimations on the number of unrepresented EU citizens assisted

Low-end

estimate

Normal situation/average year

(2018/2019)

Global/large scale crisis situation

(2020)

1 300

6 000

Average

per MS

222

High-end

estimate

40 000

177 500

Average

per MS

1 574

6 574

The data shows that the number of unrepresented citizens assisted is only a fraction when

compared to consular assistance provided to Member States’ own citizens: Member States

reported between 1-3% of cases relating to unrepresented EU citizens in 2018 and 2019. The

share of unrepresented citizens assisted significantly increased in 2020 for two out of the three

Member States that provided data across all 3 years. This could suggest that in a crisis such as

the COVID-19 pandemic, unrepresented citizens place a higher burden on Member States.

The wide range between low-end and high-end estimate are due the limited data available,

given the absence of a legal obligation to collect data in a systematic or comparable manner.

By using these wide ranges, an attempt was made to ensure that when assessing the impacts of

The detailed methodology used for both estimates is further outlined in Annex VI of the Study.

Refers to an average year outside global pandemic. The 2018 and 2019 data was used for the estimation.

This refers to situations that fall out of the norm in terms of scale, frequency, or duration. The year 2020

was used for the estimation due to the large scale and impact of the COVID-19 pandemic.

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the different policy options available, the clearly existing limitations and uncertainties in

assessing the scale of the problem can be taken into account adequately.

2.3.3. Feedback from EU delegations

During the survey of EU delegations conducted in the context of the study, a majority of EU

delegations responded that, prior to the COVID-19 pandemic, they had sporadically received

requests for assistance from EU citizens. Since the outbreak of the pandemic, there appeared

to be a substantial growth in the number and frequency of EU delegations receiving requests

for assistance from EU citizens directly.

The increase in requests seems to be dependent on the presence of Member States in a given

third country. EU delegations in third countries were all or nearly all Member States were

present did not report an increase in the number of requests, with the exception of the EU

delegation in Russia. At the same time, EU delegations in third countries with a smaller

Member State presence experienced an exceptionally large increase in the number of requests.

EU delegations reported that prior to the pandemic, they had been most commonly approached

with requests for the issue of emergency travel documents. Not surprisingly, this changed with

the outbreak of the pandemic, when the majority of EU delegations most commonly received

requests concerning repatriation.

According to the survey, requests from unrepresented citizens would arise most frequently

when the embassy or consulate of a Member State present in the third country had refused to

provide assistance or when EU citizens did not know how consular protection was provided or

which Member State they could turn to. Finally, responding EU delegations noted challenges

regarding the travel information made available to and emergency communication with EU

citizens.

This data supports the finding that there is a lack of clarity as regards the role of EU delegations

as well the information provided to EU citizens who find themselves in a situation where they

require consular assistance.

2.4. How will the problem evolve?

2.4.1. Consular networks

There are currently only four third countries – the United States of America, India, Russia and

the United Kingdom – where all 27 Member States are represented

. It is not possible to predict

if Member States will increase their consular network or not in the coming years, in which

countries (i.e. countries with low or high levels of EU representation) and with what level of

capacity. Only 12 Member States provided data on their consular network both in 2018 and in

2020. Of these 12 Member States, eight saw an increase in the number of embassies and

consulates exercising consular functions. Two had a decrease and two remained unchanged.

Together, these 12 Member States had a 7% collective increase in the number of embassies

and/or consulate exercising consular functions from 786 in 2018 to 838 in 2020. While these

findings are limited due to missing data, they nonetheless suggest that Member States have

increased their consular footprint between 2018 and 2020.

The data collected from the questionnaire’s qualitative questions confirms that, out of the 26

Member States that replied, 14 (BG, EE, FI, HR, HU, LT, LU, MT, RO, SI, PL, ES) reported

an increase and only two reported a decrease (DK and FR). Seven replied “remained the same”

(AT, BE, DE, PT, SE, NL, LV) and one Member State (CZ) did not know. The digitalisation

Equal to around 3% of all non-EU countries.

kom (2023) 0930 - Ingen titel

of consular services, notably visa applications, could also have an impact on Member States’

decisions regarding their consular networks

2.4.2. Unrepresented EU travellers

The study shows that the number of EU travellers and expatriates is likely to increase

. In

order to estimate how the number of EU travellers will evolve in the future, the study followed

the two scenarios used by UNWTO in their latest update on International Tourist Arrivals dated

31 March 2021

Figure 2: future trends of EU-27 unrepresented travellers

Source: Annex II, section 2.7 of the underlying study.

2.4.3. Number of crises requiring consular assistance

Over the last few years, several events have posed challenges to the consular protection of EU

citizens, in particular the COVID-19 pandemic, the conflict in Afghanistan and Russia’s war

of aggression against Ukraine and, more recently, the conflict in Sudan. When it comes to the

increasing number of events requiring consular intervention, Section II of the 2021 Strategic

Foresight Report

identifies important structural global trends towards 2050 that will affect

the EU’s capacity and freedom to act: climate change and other environmental challenges;

digital hyperconnectivity and technological transformations; pressure on democracy and

values; shifts in the global order and demography. Consular protection is prone to become more

relevant in the future as the frequency, severity and duration of crises are likely to increase,

including the crises related to global warming, causing unavoidable numerous climate hazards

and presenting multiple risks to ecosystems and humans

. All these trends would impact the

For additional information see Annex 6.

A detailed overview of the estimated evolution of the number of unrepresented EU citizens needing

consular protection under the Directive over the next 10 to 30 years and their impact on the four problem

areas described above, is provided under Annex II, section 2.7 of the Study.

The Figure above shows the number of unrepresented EU-27 travelers under these two scenarios, based

on linear extrapolation of 2008-2019 trends of international visitors from the OECD outbound tourism

dataset, and assuming that the consular presence of Member States in third countries will remain

constant.

Note: the above slope appears broken after 2025 but it still follows the same trend as in the past. This

apparent break is only due to the change of scale of the horizontal axis (from one year to five years).

https://ec.europa.eu/info/sites/default/files/strategic_foresight_report_2021_en.pdf.

See report of Intergovernmental Panel on Climate Change “Climate Change 2022, Impacts Adaptation

and Vulnerability” page 15. See also “Summer 2022: Living in a state of multiple crises” by Hans

Bruyninckx,

European

Environmental

Agency

Executive

Director

https://www.eea.europa.eu/articles/summer-2022-living-in-a.

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need for consular protection by unrepresented EU citizens as explained in more details in

Annex 7.

The 2021 Strategic Foresight Report highlights that the “EU

needs to continue to play an

essential role in preventive diplomacy and support, adapting and upgrading its tools to ensure

effectiveness of its actions. Building trust and coordination amongst Member States, as well as

the capacity to better anticipate risks, while learning from experience, could provide the EU

with greater influence and the ability to act jointly on defence and security matters”.

Moreover,

“the increased likelihood of extreme weather events, future pandemics or other natural and

man-made disasters reaffirms the need for a stronger EU response and cooperation on civil

protection, including to improve prevention, preparedness and response to disasters such as

floods, wildfires and infectious diseases”.

As noted in a recent European Parliament study

, the “world

is increasingly characterised by

challenges with cross-sectoral, trans geographical and global consequences […]. If the

different types of crisis not only coincide in time but also persist for a considerable period, it

means societies move towards a paradigm of so-called 'permacrisis'.”

In this perspective, the EU’s capacity and freedom to act, based on a clear understanding of

megatrends, uncertainties and opportunities, should be enhanced also in relation to consular

protection, as these trends will impact the way the EU is able to assist its citizens abroad.

3. W

HY SHOULD THE

ACT

3.1. Legal basis

Article 3(5) TEU

provides that “[i]n

its relations with the wider world, the Union shall uphold

and promote its values and interests and contribute to the protection of its citizens”.

Article 35, third paragraph, TEU

provides that the EU delegations “shall

contribute to the

implementation of the right of citizens of the Union to protection in the territory of third

countries”

as referred to in Article 20(2)(c) TFEU and of the measures adopted pursuant to

Article 23 TFEU.

Pursuant to

Article 20(2)(c) TFEU,

EU citizens have “the

right to enjoy, in the territory of a

third country in which the Member State of which they are nationals is not represented, the

protection of the diplomatic and consular authorities of any Member State on the same

conditions as the nationals of that State”.

Article 23 TFEU

provides that every “citizen

of the Union shall, in the territory of a third

country in which the Member State of which he is a national is not represented, be entitled to

protection by the diplomatic or consular authorities of any Member State, on the same

conditions as the nationals of that State”.

Article 23 TFEU

also requires Member States to

“adopt

the necessary provisions and start the international negotiations required to secure this

protection”

and allows the Council, “acting

in accordance with a special legislative procedure

and after consulting the European Parliament”

to “adopt

directives establishing the

coordination and cooperation measures necessary to facilitate such protection”.

The special

legislative procedure requires

qualified majority

in Council.

Article 46 of the Charter

provides that “Every

citizen of the Union shall, in the territory of a

third country in which the Member State of which he or she is a national is not represented, be

Future Shocks 2023, Anticipating and weathering the next storms, EPRS

https://www.europarl.europa.eu/RegData/etudes/STUD/2023/751428/EPRS_STU(2023)751428_EN.p

kom (2023) 0930 - Ingen titel

entitled to protection by the diplomatic or consular authorities of any Member State, on the

same conditions as the nationals of that Member State.”

Article 25, second paragraph, TFEU

contains a so-called “passerelle

clause”

providing for

a simplified procedure for expanding EU citizenship rights under the Treaty, whereby the

Council,

acting unanimously

and after obtaining the consent of the European Parliament,

adopts provisions to strengthen or to add to the rights of Union citizens

. The use of the

passerelle clause

could first expand the scope of the EU citizenship right to consular protection,

which could subsequently serve as a basis for proposing secondary legislation in line with the

newly extended scope. These provisions enter into force after their approval by the Member

States “in

accordance with their respective constitutional requirements”

The use of this clause must be based on reporting by the Commission on the application of EU

citizenship rights. In its 2020 Citizenship Report, the Commission announced that it would

reflect on whether to expand the EU citizenship right to consular protection based on Article

25(2) TFEU.

3.1.1. Mandate of the EEAS and function of EU delegations

The EEAS was established to assist the High Representative of the Union for Foreign Affairs

and Security Policy in

Article 27(3) TEU,

which states that it “shall

work in cooperation with

the diplomatic services of the Member States”.

Its organisation and functioning is regulated by

the 2010 EEAS Decision.

EU delegations are required, pursuant to Articles 4(3) and 35 TEU, to cooperate with the

Member States for the purpose of ensuring the EU’s objective of protecting EU citizens in the

world.

Article 35 TEU

provides that that “[t]he

diplomatic and consular missions of the

Member States and the Union delegations [...] shall:

•

cooperate in ensuring that decisions defining Union positions and actions adopted […]

are complied with and implemented.

shall step up cooperation by exchanging information and carrying out joint

assessments.

shall contribute to the implementation of the right of citizens of the Union to protection

in the territory of third countries as referred to in Article 20(2)(c) of the TFEU and of

the measures adopted pursuant to Article 23 of that Treaty.”

The mandate of the EU delegations in the field of consular protection is to “support” and

“cooperate”, as per the following provisions:

•

Article 221 TFEU

provides that EU delegations “shall

act in close cooperation with

Member States' diplomatic and consular missions”.

Article 3(1) of the EEAS Decision

states that

“[t]he EEAS shall support, and work in

cooperation with, the diplomatic services of the Member States”.

Article 5(10) EEAS Decision

provides that 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

Hilpold P. (2021) Article 25 [Monitoring and Further Development of Union Citizenship]. In: Blanke

HJ., Mangiameli S. (eds) Treaty on the Functioning of the European Union – A Commentary. Springer

Commentaries on International and European Law. Springer, Cham.

K. Lenaerts, EU Citizenship and Democracy, New Journal of European Criminal Law, Vol. 7, Issue 2,

2016, 164-175.

kom (2023) 0930 - Ingen titel

providing consular protection to citizens of the Union in third countries on a resource-

neutral basis.”

3.1.2. Compatibility of the role of EU delegations with the Vienna Convention on

Consular Relations

The right to consular protection as provided by EU law is carried out in the sovereign territory

of third countries. This means that it depends, for its implementation, on compliance with the

applicable public international law, in this case the VCCR. Article 8 VCCR provides for the

“Exercise of consular functions on behalf of a third State”, specifying that: “Upon

appropriate

notification to the receiving State, a consular post of the sending State may, unless the receiving

State objects, exercise consular functions in the receiving State on behalf of a third State”.

Consistent with this notification requirement, Article 23 TFEU requires Member States to

adopt the necessary provisions and start the international negotiations required to secure this

protection. With a few exceptions

, this obligation has been mostly implemented by means of

the conclusion of international agreements between the EU and third countries. In practice,

Member States have experienced little to no objections by receiving third states to the exercise

of consular protection on behalf of another Member State.

Presently, EU delegations have, pursuant to Article 5(10) of EEAS Decision, the obligation to

support represented Member States in providing consular protection to unrepresented EU

citizens, which does not require the notification of third countries. However, the question arises

whether EU delegations could provide some of the consular assistance falling within the list of

Article 5 VCCR directly to unrepresented EU citizens.

The EU is not a party to the Vienna Convention on Diplomatic Relations (VCDR) nor to the

VCCR. However, it is widely accepted that EU delegations can rely on the VCDR by analogy

(a principle generally agreed in the Establishment Agreements between the EU and the

receiving States). Accordingly, diplomatic relations, including sensitive questions relating to

the status of the EU delegation in the host state, immunities and privileges are governed by the

rules contained in the VCDR. In view of the agreement by receiving States to grant the

application by analogy of the provisions of the VCDR, it is arguable that upon request by the

EU, the receiving States would likely accept that the provisions of the VCCR may also apply

by analogy to the EU delegation.

If no objection is raised pursuant to Article 8 VCCR, the Delegation should, in terms of

international law, in principle be able to provide certain types of consular assistance to

unrepresented citizens. While some of the consular functions enumerated in Article 5 VCCR,

such as issuing passports (lit. d) or acting as notary or civil registrar (lit. f), would clearly not

be carried out by EU delegations, other consular functions, notably helping and assisting

citizens (lit. e), could, from an international law perspective, be available to EU delegation as

well.

E.g. Italy and Portugal.

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3.2. Subsidiarity: Necessity and added value of EU action

The legal framework for the exercise of EU citizens’ right to consular protection involves the

interaction of EU and (inter)national rules. Indeed, the obligation of Member States to provide

consular protection to (unrepresented) nationals of other Member States has by definition a

cross-border dimension. This means that it cannot effectively be addressed by Member States

acting individually. The fact that the Treaty of Lisbon assigned this competence to the EU,

compared to the previous intergovernmental approach, is a clear sign that further action at EU

level was needed.

However, the provision of consular protection remains inherently linked to the national laws

of Member States in the way they provide consular protection. Nonetheless, the provision of

consular protection to unrepresented EU citizens will always require cooperation and

coordination with the national authorities of the unrepresented EU citizen, and at times with

the local authorities. To ensure the effectiveness of EU citizens’ right to consular protection,

this coordination and cooperation should be as efficient as possible. With a central role in the

implementation of the right to consular protection, the EU would be best placed to further

streamline the procedures to ensure that they are uniformly implemented by the Member States.

Providing for common EU standards, safeguards and clear procedures for cooperation and

coordination regarding unrepresented EU citizens is better achieved at EU level. A general

subsidiarity check of whether the EU is best placed to act in the field of coordination and

cooperation of consular protection to unrepresented citizens was already carried out at the time

of the adoption of the Directive

, and remains valid. EU citizens’ right to consular protection

is still, obviously, a cross-border issue and an integral part of EU citizenship, requiring better

cooperation and coordination at EU level.

Since the expiry of its transposition deadline in 2018, the Commission has closely monitored

the implementation of the Directive, as demonstrated by the recent publication of the

Commission Report. Combined with further consultations, the report showed that further

action at EU level is needed. Without timely and effective EU action, the problems identified

in the report and their causes would continue to hinder the exercise by unrepresented EU

citizens of their right to consular protection.

The Treaty of Lisbon also created the legal basis for the creation of the EEAS, set up to assist

the High Representative of the Union for Foreign Affairs and Security Policy/Vice-President

of the European Commission (HR/VP) in ensuring coherent and effective EU external action.

Its establishment has resulted in the reallocation of certain consular coordination tasks from

the Member States to the EU delegations. Subsidiarity check for these tasks, in particular EU

delegations’ supporting role to Member States in providing consular assistance to

unrepresented EU citizens was performed at the moment of the adoption of the EEAS Decision.

EU delegations’ role and contribution in supporting Member States and ensuring cooperation

and coordination among Member States is an essential element of the legal framework

governing consular protection of unrepresented EU citizens. Improving EU delegations’

functioning and the way they support Member States and EU citizens in consular protection

activities could not be achieved without an EU intervention.

Commission Staff Working paper – Impact Assessment accompanying the Proposal for a Directive of

the Council on coordination and cooperation measures regarding consular protection for unrepresented

EU citizens (SEC(2011) 1556 final).

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Overall, without EU intervention, the effectiveness of EU citizens’ right to consular protection

as outlined in the problems sections would continue to be put at risk and the added value of EU

delegations in this context would remain underexploited.

Subsidiarity check of additional coordination tasks in crisis situations: Fostering EU

cooperation to support all EU citizens in need abroad can only be achieved by a coordinated

EU intervention. The EU, and in particular the EEAS and its network of EU delegations around

the world, are well placed to take on such a coordinating role, in a way and to an extent not

possible for Member States acting on their own initiative and capacities.

Subsidiarity check of the role of EU delegations in providing direct assistance to unrepresented

EU citizens on their request: in third countries where no Member State embassy or consulate

is present, EU delegations would be best placed to fill in this gap and ensure that EU citizens’

fundamental right to consular protection is effectively protected.

4. O

BJECTIVES

: W

HAT IS TO BE ACHIEVED

4.1. General objective

The overarching general objective of the policy initiative in this area is to

improve the exercise

of the right to consular protection by unrepresented EU citizens.

4.2. Specific objectives (‘SO’)

This general objective can be broken down into four specific objectives:

•

SO1:

Enhance the legal certainty for EU citizens with respect to the scope of the right

to consular protection.

SO2:

Ensure clear roles, coordination and cooperation mechanisms between Member

States and EU delegations, including in times of crisis.

SO3:

Improve the information provision and communication with (unrepresented) EU

citizens.

SO4:

Increase the efficiency and use of the financial reimbursement procedures.

The overall intervention logic and how each of the problem is linked to a specific objective is

illustrated in Annex 8.

As the main objective of the initiative would be to strengthen an EU citizenship right of

consular protection, it should contribute to target 10.3

and target 5.c

of the Sustainable

Development Goals.

“Ensure

equal opportunity and reduce inequalities of outcome, including by eliminating discriminatory

laws, policies and practices and promoting appropriate legislation, policies and action in this regard”.

“Adopt

and strengthen sound policies and enforceable legislation for the promotion of gender equality

and the empowerment of all women and girls at all levels”.

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5. W

HAT ARE THE AVAILABLE POLICY OPTIONS

5.1. What is the baseline from which options are assessed?

The baseline is the current situation, under which the Directive and the other instruments

continue in their current form as described in the problem description section, together with

ongoing coordination and cooperation activities (a short summary of ongoing and future

activities can be found in Annex 9). Under the baseline scenario, the existing problems outlined

above would aggravate (see details in Annex 9), in particular those stemming from the current

wording of the Directive or which could only be addressed through changes to the wording of

the Directive (e.g. problems number 2, 3, 4, 5 and 8).

As explained in section 2.4, the need for consular protection is likely to increase as foresight

studies suggest that large disruptions to travel and other human activities are likely to increase

further, resulting from either man-made events (such as wars, conflicts or social unrest),

phenomena linked to global warming (such as fires or floodings) or large-scale health crises

and epidemics.

While the consular network of the Member States might possibly increase somewhat (see

Section 2.4.2), this has to be seen together with the fact that, following the UK’s withdrawal

from the EU, EU citizens are no longer entitled to seek assistance from UK embassies and

consulates. In addition, given that the number of unrepresented citizens is expected to increase,

the number of persons potentially affected by the problems under the baseline scenario would

increase as well.

The current and planned non-legislative initiatives would be able to mitigate the evolution of

the problems identified only to a certain extent but will not be able to resolve them significantly,

as explained in Annex 9.

5.2. Description of the policy options per specific objective

Under each objective, several options to achieve them have been identified. Measures that do

not require a policy choice are described in Annex 10.

5.2.1. SO1: Enhance the legal certainty for EU citizens with respect to the scope of

the right to consular protection

Option 1a) Combination of soft measures:

The Commission/EEAS would develop and share

guidance and best practices on the definitions and personal scope of the Directive.

Recommendations on training on the definitions and personal scope of the Directive to national

consular staff and training to EU delegations would also be produced.

Option 1b) Improvement to the definition through legislative amendments:

Similar to

option 1a), clarification of the scope of the Directive regarding the term ‘unrepresented citizen’

would be done through legal amendments. Rewording the current provisions would enhance

legal certainty as to what it means for an EU citizen to be ‘unrepresented’ and in particular the

types of situations in which a representation should not be considered “effectively

in a position

to provide consular protection”.

Indicative criteria for the assessment of those types of

situations could also be added in order to further support a coherent approach to the definition.

At the same time, such an amendment would not alter the geographical scope of the Directive

– unrepresented citizens would continue to enjoy a right to consular protection from other

Member States in each third country where their Member State of nationality is not represented.

The options have been based on the three options presented in the inception impact assessment, and

refined on the basis of the findings in the problem definition and the related policy objectives.

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Option 1c) Introduction of the concept of “presumption of unrepresentedness”:

rebuttable “presumption of “unrepresentedness” would be introduced in the Directive through

amendments. The level of intervention is the same as under option 1b, but this option presents

a shift in the approach. By introducing a “presumption of unrepresentedness”, the burden of

proof would be on the Member State, and not on the EU citizen, to demonstrate the

“representativeness”, otherwise the citizen will be considered to have the right to consular

protection. The presumption of unrepresentedness could be linked to the urgency of the request

for assistance (where it is difficult, or impossible for a Member State to confirm, in a timely

manner, whether a citizen is unrepresented).

5.2.2. SO2: Ensure clear roles, coordination and cooperation mechanisms between

Member States and EU delegations, including in times of crisis.

The options presented under this specific objective address separate problems, as outlined

below.

Unclear responsibilities in local consular cooperation networks

Option 2a) Guidelines on local cooperation:

The Commission/EEAS would adopt guidelines

and best practices on local cooperation for consular staff that would better structure the

different responsibilities in LCCs.

Option 2b) EU delegations to chair local consular cooperation networks meetings:

delegations would systematically chair LCC meetings in all locations where they are present

unless Member States decide otherwise. Where there is no EU delegation, Member States

would agree on the local arrangements. This can be introduced through amendments to the

Directive.

Ineffective contingency planning and Lead State concept

Given that the problems ‘ineffective contingency planning’ and ‘ineffective Lead State

concept’ are closely related, one option is presented to address both.

Option 2c) Review of the concept of Lead State and formalisation of the JFWs and JCTs:

The JFWs would establish a new division of labour, in which the responsibilities entrusted to

the Lead State would be clarified. JFWs would become compulsory in all third countries and

the Directive would require that the EU delegation leads on the drafting of the JFW (with input

from Member States). The Directive’s references to the Lead State concept would be reviewed.

This option would also enhance coordination in crisis situations by including a description of

the role and deployment conditions of JCTs, supported by the EEAS Crisis Response Centre

and the ERCC at the EU level.

Legal uncertainty regarding the role of EU delegations in providing consular assistance

It should be noted that amendments under option 2d) can be proposed on the basis of Article

23(2) TFEU, whereas amendments under option 2e) would require the use of the

passerelle

clause

under Article 25 TFEU (see section 3.1).

Option 2d) Detail the supporting role of EU delegations:

Legal amendments would

strengthen and clarify the supporting role of EU delegations by aligning it with the EEAS

Decision. This amendment would further specify the supporting role of EU delegations to

Member States in the provision of consular protection to unrepresented citizens. Member States

would be able to request assistance from the EU delegations to support them in their role of

providing consular protection to unrepresented citizens in third countries.

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Option 2e) EU delegations can provide direct consular assistance to EU citizens in

uncovered third countries:

Legal amendments would be introduced to enable the EU

delegations to provide direct consular protection to unrepresented EU citizens without the need

for a prior Member State request in uncovered third countries. They would support Member

States in covered third countries.

5.2.3. SO3: Improve the information provision and communication with

(unrepresented) EU citizens.

Inconsistent information to EU citizens

Option 3a) Legal amendments with new requirements regarding the provision of

information:

Legal amendments would include requirements for Member States to provide

the Commission and the EEAS with information within a certain timeframe and in machine-

readable format, namely:

1. up-to-date lists of contacts for their consular networks, including honorary consuls and

their functions if the Member State has chosen to apply Article 2(2) of the Directive;

2. information on the extent to which honorary consuls are competent to provide

assistance to unrepresented EU citizens, and on the scope of such assistance;

3. bilateral and practical arrangements.

The legal amendments would explicitly assign the Commission/EEAS with the task of

disseminating the information on the practical arrangements in place to all Member States on

the basis of notifications received.

The legal amendments would also require the Member States to endeavour coordination on

travel advice at local (LCC) and capital level (using CoOL), at an early stage when Member

States are planning to change the level of their travel advice.

Option 3b) An EU travel advice portal:

A European travel advice portal would be established

compiling information made available from individual Member States portals.

Lack of reliable information on EU citizens living or traveling abroad

Option 3c) Communication campaign:

An EU-wide campaign would be conducted to raise

awareness on the consular right to consular protection and the importance of registering prior

to traveling and/or living abroad.

Option 3d) Member States required to promote measures to inform on/record citizens:

Through legal amendments, Member States would be required to promote measures supporting

the possibility for their citizens to be able to inform consular authorities and/or record their

travelling or residence abroad.

5.2.4. SO4: Increase the efficiency and use of the financial reimbursement

procedures

Option 4a): Guidelines and training:

The Commission would develop guidelines to clarify

the process of financial reimbursement and training would be provided to the Member States.

Option 4b) Legal amendments to improve the procedure:

This option proposes to introduce

legal amendments adding the option for unrepresented EU citizens to pay the assisting Member

State, or, as the case may be, the EU delegation directly either before or after the consular

assistance has been provided. A deadline would be introduced for an assisting Member States

and EU delegations to provide the statement of expenses for costs incurred to the Member State

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of nationality. Finally, this option would introduce a revised form

in the Annex to cover

reimbursement both for unrepresented EU citizens and, in crisis situation, for represented

citizens when assistance is exceptionally provided. The revised standard form would also

mention EU delegations.

5.3. Options discarded at an early stage

Agreements with third countries:

Agreements with like-minded countries (e.g. UK) to

provide consular protection to EU citizens in third countries without Member State

representation were not considered as they would fail to provide unrepresented EU citizens

with the guarantees ensured by the fundamental right to consular protection. This is because

third countries providing assistance would not be under an EU law obligation to provide non-

discriminatory treatment to EU citizens and to comply with other fundamental rights in the

Charter (e.g. right to personal data protection, right to an effective remedy). In addition, such

agreements would fail to deliver on the right of EU citizen to receive consular protection from

other Member States. In fact, as consular affairs remain a national competence, this scenario

would possibly require bilateral agreements between the Member States and the relevant third

countries, which would result in different levels of consular protection to unrepresented EU

citizens from the same like-minded country.

EU delegations as exclusive providers of consular protection to unrepresented EU

citizens:

The inception impact assessment initially foresaw an option including “provisions for

local EU delegations to directly and exclusively take care of unrepresented EU citizens and

provide them with all types of consular protection beyond crisis situations”. However, when

such an option was tested with stakeholders, it became clear that such an exclusive role for EU

delegations would have a very low technical, political and legal feasibility.

Options aiming to address problems/measures that were considered outside of the

scope/reach of the Directive:

The problem where national authorities of third countries refuse

to recognise dual nationals (EU citizenship and third country nationality), hampering their

access to consular protection from Member States, was identified at the inception phase of the

study and was eventually discarded as it was considered to be outside the remit of the initiative.

In addition, one of the solutions considered to address the delays caused by the lack of clarity

around the process of redirecting and lack of up-to-date information of bilateral agreements,

was to prohibit Member States to put such agreements in place in the first place. However, it

was then agreed that such a prohibition would not be legally feasible, as it is the prerogative of

Member States to make such bilateral agreements.

Different combination of options:

a different combination of options was not taken into

account as it was considered that the best option for each problem, assessed separately, would

remain the best option also when taken together with the preferred options for the other

problems. Synergies between the different measures, such as on coordination and cooperation

and on reimbursement procedures, have been taken into account. In addition, the assessment

of each measure separately allows to cover all problems but to evaluate different levels of

intervention (legislative and non-legislative) depending on the problem.

A package of all non-

legislative measures

was not considered from the start, given that some of the problems could

not have been solved without a legislative intervention.

A procedure may be further established to facilitate future update of the forms by delegated acts.

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6. W

HAT

ARE THE IMPACTS OF THE DIFFERENT POLICY OPTIONS AND WHO WILL BE

AFFECTED

No environmental impacts (including the climate consistency check) and impacts on SMEs and

competitiveness have been identified. None of the options have social impacts, including

impacts on employment, working conditions or income distribution. There are no direct

impacts on access to and adequacy of social protection and inclusion, but any improvements

in consular protection of unrepresented citizens can have indirect positive impact on access to

social protection.

6.1. Impacts on fundamental rights

•

Article 46 of the Charter – right to consular protection

All measures considered have a positive – albeit to a different extent – direct impact on Article

46 of the Charter, as the general objective of the initiative is to improve the exercise of that

right.

Option 1a)

would have a limited positive impact, as the effective application of the new

definition would depend on the Member States voluntary implementation of the non-binding

guidance issued under this option. On the other hand,

option 1b),

by legally clarifying the

scope of the Directive, would have a more significant direct positive impact on the effective

application of Article 46 of the Charter, given that unrepresented citizens would be able to rely

on a new binding definition of what it means to be unrepresented.

Option 1c)

would have the

strongest impact on the effective application of Article 46 of the Charter, as due to the

presumption of unrepresentedness, chances are lowest that EU citizens would be denied

consular protection.

Both

Option 2a)

and

option 2b)

would contribute to smoother cooperation among actors

involved in the provision of consular assistance to unrepresented EU citizens. They would

facilitate procedures necessary for its effective application and therefore contribute to

enhancing the right to consular protection, as those actors and their collaboration are key to

deliver such protection. In the same vein,

option 2c)

would have a positive impact on the

provision of consular assistance to unrepresented EU citizens by improving the processes

necessary for its effective application, and in particular in crisis situations.

Option 2d)

would

strengthen the role of EU delegations. By resolving the legal uncertainties currently in place

for the activities of EU delegations, this measure would strengthen the fundamental right to

consular protection of unrepresented EU citizens. By giving a new role to EU delegations,

option 2e)

would be especially beneficial in securing the citizen’s right to consular protection

in uncovered third countries.

The new requirements for provision of information under

option 3a)

would allow citizens to

make better informed decisions with regard to where and how they can travel and receive

consular assistance. It would thus have a positive impact on their enjoyment of effective

consular protection. The centralised information of travel advice under

Option 3b)

would also

contribute to better informed citizens with regard to where to travel. By increasing awareness,

it would improve effective consular protection in time of crisis due to better preparedness by

those who decide to travel, or by limiting travel to riskier third countries.

The communication campaign in

Option 3c)

might have a positive impact on the right to

consular protection of unrepresented citizens, especially in crises situation.

Option 3d)

is also

considered to have a positive impact to facilitate the right of consular protection.

Finally,

Option 4a) and 4b)

do not have direct impacts on the right to consular protection.

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•

Article 41 of the Charter – Right to good administration

Article 41 of the Charter contains the fundamental right of EU citizens to have their affairs

handled fairly, transparently, and efficiently by EU institutions and other bodies. Any measures

taken to improve services provided by such bodies to unrepresented EU citizens would have a

positive effect on the principles enshrined in Article 41.

Several measures have direct and beneficial impacts on the application of Article 41 of the

Charter as they strengthen or extend, respectively, the role and the functioning of EU

delegations (option

2d)

and

option 2e)).

Option 2b)

and

option 2c)

have a positive impact on the right enshrined in Article 41 of the

Charter as these options envisage smoother collaboration among different actors with a leading

role for EU delegations.

Very limited impacts on the right to good administration is identified by the soft measures in

option 2a).

•

Article 21 – non-discrimination on the basis of nationality

All measures considered have a positive – albeit to a different extent – direct impact on Article

21 of the Charter, as the general objective of the initiative is to improve the exercise of the right

to consular protection on a non-discriminatory basis, that is, on the same conditions as the

nationals of that State.

•

Other fundamental rights

The measures outlined in Annex 10 would reinforce the right to an effective remedy and to a

fair trial (Article 47 of the Charter) and the rights to respect for private and family life and data

protection (Articles 7 and 8 of the Charter).

6.2. Economic impacts

When considering the economic outcomes of the options presented, it should be noted that such

impacts would concern only Member States and EU delegations rather than having a direct

impact on EU citizens. The economic impacts are difficult to quantify but are considered

overall very limited. More information on the methodology for assessment of costs can be

found in Annex 4.

Option 1a) Combination of soft measures on the scope of the right to consular

protection

Costs

Direct costs

Member

Member States being perceived as providing a better level of service could see

States

an increase in the number of requests for assistance from unrepresented EU

citizens, but it is not possible to estimate the recurrent costs of such increase and

their different distribution, if any, among different Member States. The training

to national consular staff is expected to be provided by the Member States

directly as it will be recurrent. Increased participation of unrepresented Member

States in LCC meetings might imply some recurrent costs in terms of time

dedicated to the meetings by consular staff.

EU or

The estimated resources needed to produce guidelines from the COM/EEAS

would be a maximum of 1 full-time equivalents (FTE) for one month at the

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EUDELs

outset. For trainings, the training modules for EU delegations are to be

developed by the EEAS internally, by existing staff involved in the current training

programme (no involvement of external trainers). Some EU delegations might

see an increase in the number of requests for support by Member States, but

this should not imply increased costs if those costs were reimbursed by the

citizens concerned.

Option 1b) Improvement to the definition through legislative amendments

Costs

Member

States

EU or

EUDELs

Direct costs

Member States could see an increase in the number of requests for assistance

from unrepresented citizens. It is expected that Member States with larger

consular networks will be proportionally more impacted.

Some EU delegations might see an increase in the number of requests for

support from Member States due to the clarification in the definition of

‘unrepresented citizen’.

Option 1c) Introduction of the concept of “presumption of unrepresentedness”

Costs

Direct costs

Member

The costs related to the potential additional number of

de facto

unrepresented

States

citizens to be assisted due to the introduction of a

“presumption

unrepresentedness” is difficult to estimate. For crisis situations, it will largely

depend on where those crises occur and how many consular offices are present.

Member States with larger consular networks are likely to bear a bigger part of

the costs associated with this measure given their denser consular footprint in

larger third countries and wider presence in general.

It is likely that situations will arise where it is established later that the citizen

that was provided with consular assistance during the crisis was in fact not

entitled to protection. These are additional costs that assisting Member States

would incur.

EU or

EUDELs

Some EU delegations might see an increase in the number of requests for

support from Member States. The issue of costs with assisting citizens not

entitled to protection would also apply to EU delegations, albeit to a lesser

extent given their supporting role.

Option 2a) Guidelines on local cooperation

Costs

Direct costs

Member

No costs

States

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The estimated resources needed to produce guidelines from the COM/EEAS

EUDEL

would be a maximum of 1 FTE for one month at the outset.

Option 2b) EU delegations to chair local consular cooperation networks meetings

Costs

Direct costs

Member

No costs. Member States are expected to make small recurrent savings in

States

administrative burden by not having to chair these meetings.

EU or

EUDEL

The additional recurrent costs to EU delegations would be marginal, as this is

partially already established practice.

Option 2c) Review of the concept of Lead State and formalisation of the JFWs and

JCTs

Costs

Direct costs

Member

Current Lead States will see savings while other Member States might have

States

limited costs due to the assignment of new tasks under JFWs. All Member States

might face some costs for the application of these revised concepts and

procedures, but these are difficult to quantify exactly, notably in view of their

contingent nature.

EU or

EUDELs

The only additional costs incurred could come from the mandatory annual

update of all JFWs requiring only limited additional resources, given that this is

to a large extent already established practice. The EEAS Consular Affairs Division

would be responsible for the activity. The use of Joint Consular Teams (JCT)

would be cost-neutral for the EEAS. The EEAS Consular Affairs Division (CRC2)

has been reinforced with the creation of a crisis preparedness and response

team. Participating in JCT is part of their duties, making this option cost-neutral.

Option 2d) Strengthen the supporting role of EU delegations

Costs:

Member

States

EU or

EUDELs

Direct costs

For some Member States, the salary costs

of 5 seconded national experts

(SNEs) to work in EU delegations (5 in total).

The role of EU delegations to support Member States will entail a limited

increase in staff and some additional training of existing staff to ensure they are

able to provide these services. Assuming EU delegations would mostly receive

requests from Member States in countries with low levels of representation,

The salaries depend on national salaries and benefits of the SNEs and a precise calculation is not possible

in advance. Based on the limited data available, estimations show that a costs for Member States for 1

cost-free SNE could range from 980 EUR net per month, for a civil servant in the first grade in Bulgaria

to 8 177.83 EUR gross monthly salary for a high-raking diplomat in Finland. For a detailed illustration

of the data and the estimations of costs, see Annex 4.

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this option would require at least 5 cost-free SNEs in total as stated above. In

addition to the salary costs for some Member States (to be allocated

accordingly to regional needs by establishing the key EU delegations), this

would imply operating expenditure for the EU budget of 37 500 EUR per year

for 5 SNEs

Option 2e) EU delegations can provide direct consular assistance to EU citizens in

uncovered third countries

Costs:

Member

States

Direct costs

The salary costs of a total of 10 SNEs to work in EU delegations

. There would

also be savings as consular protection would be provided directly on the spot

by the EU delegation instead of being provided either remotely, by dispatching

a consular officer on the field, or by the use of honorary consuls.

The extension of the role of EU delegations to have the capacity to provide

consular protection will entail an increase in staff and the training of existing

staff to ensure they are able to provide these services. This option would

require at least 10 cost-free SNEs: in total, this would amount to EUR 75 000

per year in terms of operating expenditure, in addition to the salary costs

borne by Member States

EU or

EUDELs

Option 3a) Legal amendments with new requirements for provision of information

Costs:

Direct costs

Member

Member States would have to share additional information with the

States

Commission and the EEAS. However, this information is already collected by the

Member States and would thus not add an additional burden beyond sharing

some additional data in CoOL and at local level and adjusting the information

into the machine-readable format required by the Commission.

EU or

EUDELs

The main costs under this option would be in enhancing the functionalities of

CoOL but this option would not create additional costs as the platform is

constantly upgraded with new functionalities (some recently added new

functionalities refer to topic-specific collaborative tables, possibility to attach

files to messages and to link messages). Updating the Europa website would

require one FTE for three months at the beginning and one month per year

See Annex 4 for the methodology applied to estimate the additional costs.

The salaries depend on national salaries and benefits of SNEs and a precise calculation is not possible in

advance. Based on the limited data available, estimations show that a costs for Member States for 1 cost-

free SNE could range from EUR 980 net per month for a civil servant in the first grade in Bulgaria to

EUR 8 177.83 gross monthly salary for a high-raking diplomat in Finland. For a detailed illustration of

the data and the estimations of costs, see Annex 4.

See Annex 4 for the methodology applied to estimate the additional costs.

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thereafter. Using the standard rate of EUR 171 000 per year, the cost for the first

year would be EUR 42 750 and then EUR 14 250 per year thereafter

Option 3b) An EU travel advice portal

Costs

Direct costs

Member

As the information would be gathered from Member States national travel

States

advice websites there would be no additional costs for the Member States.

EU or

EUDELs

It is estimated that one FTE at EEAS or in the Commission would be needed to

collect and aggregate the information received from the Member States. This

corresponds to EUR 171 000 per year. In addition, based on the yearly budget

of the consular protection website operated by DG JUST, it is estimated that

the operation, maintenance and development of a new dedicated website for

European travel advice would amount to around EUR 80 000 per year. While

the existing Europa website could be used as an alternative, the development

of a tailored independent website is recommended. Information would be

gathered from Member States national travel advice websites

Option 3c) Communication campaign

Costs:

EU or

EUDELs

Member

States

Direct costs

An awareness campaign would cost an estimated EUR 50 000 to EUR 100 000

For more effectiveness it should be recurrent.

If the campaign is also supported by Member States at national level, costs

would be between EUR 500 000 and EUR 1 million.

Option 3d) Member States required to promote measures to inform on/record citizens

Costs:

Member States

Direct costs

As all Member States already offer some possibility for citizens to

be needed but the registration system could be expanded to the

category not currently covered (residents or travellers), which could

involve some marginal software costs. Additional costs would arise for

the Member States to further improve the effectiveness of their

registration systems by rising their citizens’ awareness of the importance

to register their travels/residence abroad by means of information

campaigns at airports or by cooperating with insurance/travel/telecom

companies. The costs of these activities will depend on Member State

See Annex 4 for more information on estimation of costs.

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capacity and the measures chosen. However, it is estimated that they

would be recurrent to comply with the requirements.

EU or EUDELs

No costs.

Option 4a) Guidelines and training to increase the efficiency and use of the financial

reimbursement procedures

Costs

Direct costs

Member

No costs, with some very limited savings that might arise from the voluntary

applications of the guidelines.

States

EU or

EUDELs

The estimated resource needed to produce guidelines from the Commission or

EEAS would be a maximum of 1 FTE for one month.

Option 4b) Legal amendments to improve the procedure of financial reimbursement

Costs:

Member

States

Direct costs

The option would result in a considerable reduction of administrative costs for

the Member States and increase the likeliness of Member States having the

costs of providing consular assistance to unrepresented citizens reimbursed.

This would result in savings for the Member States providing assistance.

Member States would also be able to reduce administrative costs when the EU

delegations support unrepresented EU citizens as EU delegations would be able

to be reimbursed by citizens directly without mediation by the Member States.

No costs, as EU delegations would be able to be reimbursed by citizens following

the same procedures for reimbursement of Member States.

EU or

EUDELs

6.3. Compliance with the ‘Digital by Default’ principle

Options 3a)

and

3b)

would seek to make use of the possibilities offered by digitalisation by

providing for the provision of information in machine-readable format, allowing for easier

and automated processing and online presentation to the public.

6.4. Assessment of options

The options are assessed against the following criteria: effectiveness, efficiency

proportionality, coherence and political feasibility, with a proposed scoring of low (●), medium

(●●) and high (●●●)

For more information on the methodology for assessment of costs, see Annex 4.

See Annex 4 for more information on the assessment of each criterion.

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6.4.1. Assessment of options for SO1

Option 1a) Combination of soft measures

Effectiveness:

This option would have a somewhat positive impact on achieving SO1 by

fostering a gradual better understanding of the way in the scope of the Directive in terms of the

definition of “unrepresented” is to be defined and applied. It would further help in clarifying

situations in which an embassy or consulate is not “effectively

in a position to provide consular

protection in a given case”,

whether this is due to an honorary consul who is not authorised to

undertake certain action, a remoteness issue, or because of a temporary closure (due to a man-

made/natural disaster). This would support the development of a clearer understanding of when

an EU citizen is to be considered unrepresented. The effects of taking such a measure would

equally apply in future crisis and non-crisis situations, for the benefits of unrepresented EU

citizens and Member States. Both would profit from time savings in assessing “representation”.

However, clarifying rules through soft measures would not fully achieve SO1. The specific

objective aims at ensuring legal certainty for the unrepresented EU citizens and addresses

wrong assessments of specific situations as the major cause for certain cases of non-assistance.

Despite some level of compelling effect, soft measures are not legally binding and therefore

cannot be directly enforced by the Commission or relied upon by citizens when seeking to

uphold their rights. (Score: ●)

Efficiency:

As illustrated in the previous chapter, the costs associated with the combination of

soft measures are very limited. Their application would also bring some benefits to EU citizens

by clarifying the Directive’s scope, albeit to a limited extent only. (Score: ●●)

Coherence:

Improving the definition of unrepresented citizens is coherent with the objectives

of the ETD Directive as it contributes to facilitating the issuing process of an EU ETD. (Score:

●●)

Proportionality:

These measures are considered fully proportionate to achieve the objectives

as the very low costs for Member States and the EU correspond to a certain level of

effectiveness in achieving the general objective of improving the consular assistance of

unrepresented EU citizens. This is reinforced by the uncertainties regarding the scale of the

problems identified resulting from the limited data available. (Score: ●●●)

Political feasibility:

As guidelines are issued by the Commission or/and the EEAS, their

political feasibility is very high. Their adoption will only entail some collaboration between

the Commission/EEAS and the Member States. According to the study, Member States were

generally in favour of receiving further guidance and training on the application of the

Directive. It is thus expected that there would be support for this option 1 from a political point

of view. (Score: ●●●)

Option 1b) Improvement to the definition through legislative amendments

Effectiveness:

This option would achieve SO 1 and increase legal certainty for unrepresented

EU citizens. Similarly to option 1a), the amendments would benefit Member States by guiding

them in the assessment of concrete and quite often complex situations. This measure would

help to facilitate the identification of unrepresented EU citizens, leading to a more efficient

assessment by Member States regarding a citizen’s situation. Legal definitions and objective

criteria would produce unambiguous, enforceable results for the same set of circumstances,

ensuring a coherent application of the Directive across the world, both in time of crisis and

non-crisis. Transposition and application could be monitored more effectively. (Score: ●●)

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Efficiency:

In light of the analysis in the previous chapter, it appears that the costs of this

measure, requiring the revision of the current legal framework, would be minimal for the EU

and the Member States while it would deliver substantial benefits and positive impacts on the

right to consular protection of unrepresented EU citizens but also for Member States, as

explained above, arising in particular from the additional legal certainty. (Score: ●●●)

Coherence:

Improving the definition would facilitate the cooperation and coordination

between the assisting Member State and the unrepresented citizen’s Member State of

nationality and consequently will also contribute to achieve the objectives of the ETD Directive

as they increase the security and the speed of the issuing process of an EU ETD. (Score: ●●●)

Proportionality:

The evidence identified shows that this option would not require excessive

effort from Member States to implement the measures and it is considered proportional to the

achievement of the objective of the initiative. In addition, the changes would merely clarify the

existing scope of the Directive rather than extending it. This is also in line with the estimates

regarding the scale of the problem, notably on the number of trips by unrepresented citizens.

(Score: ●●●)

Political feasibility:

While most stakeholders consulted are content with the current wording

of the definition in Articles 4 and 6 of the Directive, there appears to be agreement that further

clarification would be helpful. Only two Member States stated that a revision of the measures

for provision of consular protection to unrepresented EU citizens is not needed. (Score: ●●)

Option 1c) Introduction of a “presumption of unrepresentedness”

Effectiveness:

The measure proposed would have a positive impact on achieving SO 1 as

citizens would have greater certainty to be covered in case of need for protection. The

presumption of “unrepresentedness” would accelerate the procedure of assistance as it would

not require the Member States of nationality to confirm the identity of its own nationals. This

can be critical for consular protection in crisis situations where assistance frequently has to be

provided as a matter of urgency. At the same time, this measure could result in assistance being

provided to citizens that are not legally entitled to protection (e.g. undocumented third

countries nationals posing as EU citizens). (Score: ●●●)

Efficiency:

This measure is particularly beneficial for unrepresented EU citizens, as it has the

best and most effective impact on the improvement of their right to consular protection, hence

it is the most effective to achieve the objective of the initiative. However, there is a non-

negligible risk that Member States, in particular those with larger networks, might end up

providing assistance to citizens who are later found not have been entitled to protection due to

their Member State of nationality being represented in the third country concerned. On the

basis of the assessment of costs and their distribution across actors, and taking into account the

scale of the problems, the efficiency of this option is therefore considered low. (Score: ●)

Coherence:

The ETD Directive allows for the issuance of EU ETDs without consulting the

Member State of nationality in cases of “extreme urgency” (Article 4(6)), therefore there is not

a particular conflict with the issuance of ETDs in crisis situations and the introduction of the

presumption of “unrepresentedness”. Some conflict might arise in non-crisis situations. (Score:

●●)

Proportionality:

The introduction of a presumption of “unrepresentedness” would expose

Member States and EU delegations to the risk of assisting citizens who are not entitled to

consular protection under the Directive. This measure is therefore going beyond what is

necessary to achieve the objective of legal certainty for unrepresented EU citizens. In addition,

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the uncertainties regarding the scale of the problem make such a shift in the approach regarding

the concept of ‘representation’ appear disproportionate. (Score: ●)

Political feasibility:

The idea to introduce a presumption of “unrepresentedness” was not

viewed favourably by many Member States and therefore its political feasibility is considered

low. (Score: ●)

6.4.2. Assessment of options for SO2

•

Unclear responsibilities in local consular cooperation networks

Option 2a) Guidelines on local cooperation

Effectiveness:

The guidelines and best practices would have a somewhat positive impact on

achieving SO2. This option would ensure that all relevant experiences are shared and would

help to codify lessons learnt such as some of the difficulties experienced during the COVID-

19 pandemic. Guidelines could help to strengthen some cooperation and coordination

procedures in the organisation of local cooperation, such as the involvement of the

unrepresented Member States, but it would still leave the chairing of the meetings to a

representative of a Member State (unless otherwise agreed by Member States, see Article 12

of the Directive). Therefore, it is likely that business continuity as well as institutional memory,

the two main issues linked to such meetings, might not be fully resolved. (Score: ●●)

Efficiency:

Based on the assessment of limited costs and limited benefits, including limited

impact on fundamental rights, the efficiency of this option is medium. (Score: ●●)

Coherence:

This policy option is considered largely coherent with the Commission’s priorities.

(Score: ●●●)

Proportionality:

This policy option is considered fully proportionate to achieve the objective.

as the choice of guidelines would be very simple instrument to implement and would bring

certain benefits in the definition of the roles of the actors involved in local cooperation. This is

reinforced by the uncertainties regarding the scale of the problems identified. (Score: ●●●)

Political feasibility:

Guidelines have a high political feasibility as they are not binding. (Score:

●●●)

Option 2b) EU delegations will chair local consular cooperation networks meetings

Effectiveness:

This policy option on LCCs would have a positive impact on achieving SO2. A

major benefit of this measure is the standardisation of LCC meetings (e.g. work on preparation

and update of JFWs, involvement of unrepresented Member States, circulation of agendas and

minutes), increasing their usefulness and overall improving consular cooperation. By giving

this task to EU delegations when they are present in a third country, it would increase the

consistency of the meetings and secure businesses continuity in a much more effective way

than where different Member States alternate in chairing these meetings as describe in the

problem section. It would strengthen EU delegation’s ownership of consular coordination,

therefore improving information flows on consular matters towards the EEAS CRC and

Commission ERCC. The reinforcement of the overall coordination of EU delegations by EEAS

headquarters on the basis of this legal amendment would create a clear benefit to the

functioning of local cooperation meetings. This would be very useful in third countries where

there is a very low level of representation of Member States, as EU delegations would lift the

coordination burden from the few Member States present, enabling them to focus on practical

assistance to EU citizens. Even in countries where almost all Member States are represented,

there is space and need for better, more extensive coordination and therefore EU delegations

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could be well placed to streamline LCC meetings and ensuring everyone’s participation for

better consular crisis preparedness and, ultimately, response. (Score: ●●●)

Efficiency:

This option has low costs and only for EU delegations, while Member States will

see small savings. The benefits of this measures are instead significant, including with regard

to the impact on fundamental rights as explained above, the efficiency of this option is therefore

scored high. (Score: ●●●)

Coherence:

Giving the possibility to EU delegations to chair LCCs would increase the EU

delegation’s role on consular matters in third countries. It would facilitate a coherent consular

coordination response at EU level and will align the practice with the chairing of Local

Schengen Cooperation (LSC) meetings, which are already chaired by EU delegations and

already gather consular officials from Member States to discuss the issuance of short-term

visas. Therefore, this measure would be coherent with raising the profile of the EU action in

third countries as per Commission’s priorities. (Score: ●●●)

Proportionality:

This policy option is considered fully proportionate to achieve the objective

of better coordination without creating excessive burden and not requiring excessive efforts by

the actors involved, in particular if Member States are given the option to agree on an

alternative chair. This assessment is not affected by the uncertainties regarding the scale of the

problems identified. (Score: ●●●)

Political feasibility:

Member States expressed both in the study and in COCONs meetings that

are favourable on the option that EU delegations chair LCC meetings. (Score: ●●●)

•

Ineffective contingency planning, Lead State concept and JCTs

The measures for these two problems are presented together under the same option because of

their correlation and synergies. As only one option is proposed, its added value is compared

with the baseline scenario (description of problems section).

Option 2c) Review of the concept of Lead State and formalisation of the JFW and JCTs.

Effectiveness:

The review of the concept of Lead State and the formalisation of JFWs and JCTs

would lead to a more effective and proportionate sharing of the burden of assistance between

Member States and EU delegations. It would also clarify and simplify the mechanisms of

consular cooperation among Member States in third countries. Not only would this directly

benefit EU citizens, but it would also reinforce solidarity among Member States. It would have

a positive impact notably in crisis situations. As JFW have become the cornerstone of EU

consular protection preparedness, their explicit reference in the Directive together with rules

for their periodic assessment would ensure their systematic implementation, effectiveness and

broaden their use. The JCTs concept brings valuable synergies for optimising Member States’

and EU consular response in crises (including the participation of EEAS CRC crisis

preparedness and response and Commission civil protection teams). Overall, these measures

would be effective in achieving SO2.

Efficiency:

based on the assessment of costs and benefits, including the impact on fundamental

rights, this option is considered efficient.

Coherence:

According to Article 13(4) of the Directive, Lead States or the Member State(s)

coordinating assistance for unrepresented EU citizens may seek support from instruments such

as the UCPM and the crisis management structures of the EEAS. Therefore, measures that are

effective in simplifying and improving the procedures for cooperation and coordination

between the Member States and EU delegations, in particular clarifying their tasks and roles in

crisis situations would also be coherent with the EEAS Decision and the UCPM by supporting

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the deployment of their capacities and capabilities for the benefit of unrepresented citizens.

This measure is also coherent with the Commission’s objective to increase Member States’

solidarity in this field.

Proportionality:

this policy option is considered fully proportionate to achieve the objective.

The choice of building on and strengthening EU instruments and processes already in place

would contribute to a policy intervention that remains as simple as possible, proportional and

effective in achieving the policy objectives. While available data is limited, estimates show

that the scale of the problems identified is likely to increase in crisis situations (see Section

2.3.2).

Political feasibility:

The majority of Member States consulted during the study saw an added

value in EU delegations playing a larger coordination role in implementing JFWs and in setting

up JCTs. In COCON, JFW were identified by Member States as a suitable tool for LCC to

appoint a leading authority (or authorities). They expressed clearly the need for further

clarification of the tasks assigned to a leading authority within the JFW. Member States also

expressed that a certain level of universal approach should be in place and rules for the periodic

assessment of JFW should be included in the relevant provisions of the Directive. Member

States also recognized and highly appreciated the leading role of EU delegations in the process

of drafting JFW and some of them supported a suggestion to reflect this practical role in the

Directive. The study also collected positive feedback on the changes to the Lead State, JFW

and the role of EU delegations (see table below).

Table 4: Member States’ opinions on the replacement of the Lead State concept (n=26)

Yes

Do you see the need to replace the concept of lead State with a system where

responsibilities are shared among the represented MS and EU delegations,

which are agreed upon and defined in the JFW?

Do you see the need for the EU delegations to take a greater role to support

the Member States in the preparation and implementation of joint

contingency plans (JFW)? If so, what specifically could be improved? Are there

any barriers to an increased role for EU delegation?

Do you see the need for the JFW to also cover the provision of consular

protection services in non-crisis situations?

Source: Questionnaire with Member States national authorities

Maybe

N/A

The feedback received by Member States in the study also reflects the large majority of the 22

Member States that replied to the COVID-19 lessons learned questionnaire

that they would

be open to consider a concept for a future model of JCTs. However, a few Member States

raised reservations with regards to an institutionalised concept of JCTs. The majority of

Member States saw an added value in EU delegations playing a larger coordination role in the

LCC meetings, in implementing JFWs and in setting up JCTs.

The EU’s “Consular response to the COVID-19 crisis” (WK 6381/2020REV 1)” working paper

highlights several lessons learned, which were validated with the Member States through a COVID-19

lessons learned questionnaire.

kom (2023) 0930 - Ingen titel

•

Legal uncertainty with the role of EU delegations in providing consular assistance

Option 2d) Detail the supporting role of EU delegations through legal amendments

Effectiveness:

This policy option would increase legal certainty for EU delegations and

unrepresented EU citizens by providing a clearer framework for EU delegations to operate in

support of Member States and aligning the role of the EU delegations as defined in the

Directive with their mandate in the EEAS Decision. Under this option, in times of crisis, the

EU delegations could alleviate some of the pressures faced by the Member States, especially

in countries with a low level of representation. In normal times, they could usefully

complement the action of Member States in those countries (which are normally staffed with

very limited resources) when they provide consular assistance to unrepresented EU citizens.

The position of consular correspondents would be reinforced and formalized, entrusting them

with a number of key tasks and activities that would increase the EU delegations’ capacity to

support Member States. Overall, citizens would be better assisted by Member States with the

support of EU delegations, especially in those countries with low to very low Member States

presence. (Score: ●●●)

Efficiency:

The costs of Member States and EU delegations would be counterbalanced with

benefits for all actors involved in consular protection activities and would have significant

impacts on fundamental rights. Therefore, this measure is considered efficient. (Score: ●●●)

Coherence:

This measure would ensure coherence with the EEAS Decision and increase the

uniformity of the EU approach in third countries. Therefore, it is highly compatible with the

Commission’s priorities. This measure is also coherent with the “Strategic Compass” and

instruments of EU law, such as the EU ETD Directive. (Score: ●●●)

Proportionality:

This policy option is considered fully proportionate to achieve the objective.

The policy choice of aligning the role of the EU delegations as defined in the Directive with

their mandate in the EEAS Decision is a simple choice but would satisfactorily achieve the

objective of the initiative to increase legal certainty. While available data is limited, estimates

show that the scale of the problems identified is likely to increase in crisis situations (see

Section 2.3.2). (Score: ●●●)

Political feasibility:

In the context of the COCON discussions, there was an interest among

many Member States to clarify the role of EU delegations under certain conditions. Some

Member States would support to identify “specific missions that the EEAS could best

address”

. Several Member States in COCON stated their interest in the possibility to assign

consular tasks (including issuance of ETD) to EU delegations in third countries with no or very

low presence of Member States (often referred to as situations in which two Member States or

less are present). A significant number of Member States stressed that their final position on

this topic would also depend on a specific wording and proposed conditions. The majority of

Member States consulted for the study were in favour of allowing EU delegations to provide

some form of consular protection to unrepresented citizen directly and upon request of the

Member States. On this basis, targeted legal amendments to the Directive under Article 23

TFEU as proposed in this option would require a special legislative procedure, which entail a

qualified majority

in Council and consultation of the European Parliament, which has

The EU’s role on Consular crisis management - Non-paper by Belgium, Finland, Luxembourg, Poland

and

The

Netherlands,

April

2022,

available

at:

https://europeanunion.diplomatie.belgium.be/sites/default/files/content/download/files/non-

paper_be_fi_lu_nl_pl_-_eu_consular_crisis_management.pdf

kom (2023) 0930 - Ingen titel

historically been very positive about an increased role for EU delegations

. Overall, the

political feasibility of this is considered medium-high as the majority of the Member States are

supportive of the measures proposed and the qualified majority required to adopt the proposed

measures might allow for the adoption of these measures. (Score: ●●)

Option 2e) EU delegations can provide direct consular assistance to EU citizens in uncovered

third countries

Effectiveness:

This option would empower EU delegations, by means of the activation of

Article 25 TFEU (the

passerelle clause),

to provide consular protection to unrepresented EU

citizens directly, upon their own request (and not of Member States), in third countries where

only EU delegations are present. It would therefore be effective in enhancing the role of EU

delegations and a concrete help to EU citizens in those countries where Member States are

unable to provide direct and immediate protection. The option would alleviate some of the

pressures faced by the Member States (upon their request) in times of crisis, especially in

countries with no or a low level of representation. In both crises and non-crises, EU delegations

would be able to act within an enhanced role and with a clear legal mandate which would

bolster legal certainty. As such, this would have a very positive impact on achieving SO3.

(●●●)

Efficiency:

The costs for EU delegations would be counterbalanced with benefits for citizens

and Member States in uncovered countries, therefore this measure is considered efficient.

(Score: ●●●)

Coherence:

This measure is fully coherent with the Commission’s objectives of strengthening

the identity of the EU in third countries, reinforcing the external dimension of EU citizenship

and Member States’ solidarity. As the measure would require an extension of EU right to

consular protection, it would not be coherent with the EEAS Decision (which provides only a

supporting role to EU delegations on consular protection) nor with the other instrument of EU

law, such as the ETD Directive, which would need to be amended accordingly. (Score: ●●)

Proportionality:

This policy option is considered not fully proportionate to achieve the

objective. The measure envisages an extension of the right to consular protection that would

apply only in a limited number of countries and therefore could be considered as going beyond

what is necessary to achieve the objective of effective consular protection to unrepresented EU

citizens. However, the measure would be limited to those aspects that Member States cannot

achieve satisfactorily on their own. In addition, the uncertainties regarding the scale of the

problem raise questions whether such a shift in the approach regarding the provision of

consular protection would be proportionate. (Score: ●●)

Political feasibility:

Proposed measures are subject to the

passerelle clause

under Article 25

TFEU to strengthen or add to the existing right of consular protection, which would require a

unanimous decision by the Member States

which seems, for the moment, difficult to achieve

giving the opposition of several Member States to the use of that mechanism to grant EU

See as most recent example the European Parliament recommendation of 15 March 2023 to the Council

and the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and

Security Policy taking stock of the functioning of the EEAS and for a stronger EU in the world

(2021/2065(INI)) where the European Parliament calls for the establishment of

“the consular function

of EU embassies in third countries and strengthen and ensure cooperation and coordination between

EU Member State embassies and EU delegations in third countries, in particular in countries where

Member States have no consular representation; provide delegations with sufficient means to be able to

more effectively assist EU citizens, including in times of crisis, inter alia those facing criminal

proceedings and those in prison or on death row;”

(see point (ai)).

kom (2023) 0930 - Ingen titel

delegations new competences on consular protection. In addition, the provision of assistance

to unrepresented EU citizens without explicit request from a Member State is expected to have

a very limited support from Member States. Therefore, the political feasibility of this option is

very low. (Score: ●)

6.4.3. Assessment of options for SO3

•

Inconsistent information to EU citizens

Option 3a) Legal amendments with new requirements for provision of information

Effectiveness:

The option would ensure up to date information on the bilateral agreements and

other arrangements in place in third countries, as well as travel advice. Increasing the

information available to EU citizens and their clarity would make sure that EU citizens know

from which Member States they can seek consular assistance and reduce the number of justified

redirecting procedures by Member States. This would also help Member State staff to quicker

assess whether it is appropriate to assist a citizen or if the case should be transferred to the

embassy or consulate designated as competent under the terms of arrangement in place. This

would have a positive impact on achieving SO3 by developing a better sharing of up-to-date

information about the presence and the function of the consular presence (including honorary

consuls) of Member States and EU delegations. Furthermore, the improvement of the

information available on the CoOL would also be beneficial in fostering effective cooperation

amongst Member States’ consular networks providing consular protection to unrepresented EU

citizens. What is more, the coordination of travel advice at local and capital level (e.g. exchange

of primary information at an early stage or having a common structure of levels of risk) could

substantially improve the quality and consistency of travel advice to EU citizens, enabling them

to make better informed decisions and plans for safe travels abroad. (Score: ●●●)

Efficiency:

The measures are considered to be efficient when comparing the costs involved

with their advantages. The additional burden on Member States will be minimal as they already

collect that information, and it will be a matter of adjusting the information into the machine-

readable format required by the Commission. The impact on EU citizens will be important as

receiving the correct information is essential for them in all situations. Member States will also

save time and be more efficient as they will have to deal with less out-of-scope requests. (Score:

●●●)

Coherence:

New standards for information to EU citizens are coherent with Commission’s

objectives. They are also coherent with the ETD Directive and would be very helpful for the

Member States that receive ETD applications by reducing the number of out-of-scope

applications. (Score: ●●●)

Proportionality:

Providing comprehensive information regarding consular protection cannot

be achieved by Member States on their own without coordination mechanisms. Information is

key for unrepresented EU citizens and therefore the minimum costs for Member States can be

seen as those necessary. This policy option is considered to be proportionate to achieve the

objective, also taking into account that Member States would retain their competence to issue

travel advice. While available data is limited, estimates show that the number of EU citizens

travelling to third countries where they are not represented is considerable. (Score: ●●●)

Political feasibility:

The political feasibility can be assumed to be average as Member States

would not object to EU delegations sharing information that is already publicly available on

their website regarding their consular presence, the bilateral and other arrangements in place

or travel advice. As to the high-level obligation to coordinate limited aspects of travel advice,

kom (2023) 0930 - Ingen titel

this objective is presently actively pursued by the Member States in COCON, albeit on a non-

binding level, its political feasibility is assessed as somewhat high. (Score: ●●)

Option 3b) An EU travel advice portal

Effectiveness:

This option would help achieve SO3 by centralising on an EU website a

comprehensive compilation of the travel advice provided by the Member States to EU citizens.

It would streamline the provision of information for all EU citizens: they would be able to see,

for any third country, what travel advice, if any, is being provided. With the increasing mobility

of EU citizens within the EU, a single, user-friendly source of information where travel advice

provided by all 27 Member States is accessible could be useful for EU citizens temporarily or

permanently located outside of their country of nationality. However, information which would

not be comparable, as displayed in different languages, with different levels of travel advice

and details being provided, may not be of much use and even have adverse effects. Overall, the

option is considered to have a positive impact to the achievement of SO3. (Score: ●●)

Efficiency:

Considering the limitations outlined above, especially the non-comparability of the

information, the measure is not considered particularly efficient, considering the costs. (Score:

●●)

Coherence:

The measure in this option is coherent with the Commission’s objectives to raise

EU visibility and Member States’ solidarity in the external dimension of EU citizenship.

(Score: ●●●)

Proportionality:

This policy option is not considered proportionate to achieve the objective,

given that its administrative scope, legal complexity and costs outweigh its benefits despite the

estimated number of EU citizens travelling to third countries where they are not represented.

(Score: ●)

Political feasibility:

The political feasibility of developing a central gateway of information on

travel advice for EU citizens is considered as low. Member States saw the benefits in the EU

delegations providing emergency information to (unpresented) EU citizens in crisis situations.

Several countries recognised the experience of the COVID-19 crisis and repatriation exercise

as a positive example of such a solution. A central web-based portal could re-use existing

sources of information such as Member States own travel advice websites and CoOL.

However, a number of critical issues would need to be taken into account. Where data from

national sources of individual Member States would be used, questions were raised concerning

responsibility for data made available, cybersecurity, language barriers. This lowers the score

of political feasibility. (Score: ●)

•

Lack of reliable information on EU citizens living or traveling abroad

Option 3c) Communication campaign

Effectiveness:

Raising awareness of registration tools and their importance would increase the

number of EU citizens registering when traveling, which is important to allow Member States

to have a better picture of the (un)represented citizens living and/or travelling in a given third

country in order to better coordinate their actions in crisis situations. DG JUST regularly runs

information campaigns about consular protection rights of unrepresented EU citizens. A

communication campaign tailored to the necessity and importance of registering before

kom (2023) 0930 - Ingen titel

travelling could have a positive impact on SO3. However, the direct effect of such a campaign

is difficult to estimate

. (Score: ●●)

Efficiency:

Considering the costs of such campaign and the uncertainty regarding the benefits,

it is considered not particularly efficient. It should be considered that the more citizens register

the lower would be the financial cost per citizen registered. (Score: ●●)

Proportionality:

This policy option is considered fully proportionate to achieve the objective.

While available data is limited, estimates show that the number of EU citizens travelling to

third countries where they are not represented is considerable. (Score: ●●●)

Political feasibility:

A communication campaign run by the Commission focused on supporting

registrations of unrepresented EU citizens in a third country with their Member State of

nationality should not pose any subsidiarity concerns. As the campaign would be run by the

Commission but the registration systems are established nationally, a high level of

collaboration with Member States will be necessary. (Score: ●●●)

Option 3d) Member States will be required to promote measures supporting the possibility for

their citizens to inform on/record their travelling

Effectiveness:

This policy option would require Member States to provide their citizens with

the possibility to inform competent national authorities, by appropriate means and tools, their

travels or residence abroad and would thus facilitate that these citizens receive relevant

information in times of crisis. This requirement would further incentivize them to implement

measures encouraging citizens to register (e.g. national information campaigns at airports,

incentives, cooperation with insurance and travel companies as well as telecom providers). It

would be left to the Member States to decide what are the best and most appropriate measures

to implement this measure, taking into account their national circumstances. The measure is

expected to contribute to a more accurate knowledge of the number and whereabouts of EU

citizens traveling or residing abroad which is a crucial element for effective coordination in

times of crisis. The option is considered to have a positive impact for the achievement of SO3.

(Score: ●●)

Efficiency:

Considering the limited costs and benefits, the option is somewhat efficient. (Score:

●●)

Proportionality:

This policy option is considered fully proportionate to achieve the objective.

This measure leaves as much scope for national decision on possibilities for citizens to inform

on/record their travelling as possible while achieving satisfactorily the objectives set. While

available data is limited, estimates show that the number of EU citizens travelling to third

countries where they are not represented is considerable. (Score: ●●●)

Political feasibility:

The political feasibility of this option is considered high, as it leaves a

scope for Member States to implement the new requirement. (Score: ●●●)

6.4.4. Assessment of options for SO4

Option 4a) Guidelines and training

Effectiveness:

The development of soft measures under policy option 4a) would have very little

impact in achieving SO4. Some clarity on the procedures in place and greater awareness could

promote their use and contribute to uniformity in their application both in crisis and non-crisis

situations. However, this impact would be limited. Soft measures could not sufficiently solve

the issues that are connected to financial reimbursement by represented citizens. Confusion

Similar previous campaign run by DG JUST through social media reached 5.6 million people.

kom (2023) 0930 - Ingen titel

and insufficiency of procedures would partially remain and might continue to discourage the

use those procedures. (Score: ●)

Efficiency:

Overall, costs and benefits for this measure would be very limited. (Score: ●●)

Coherence:

Since the financial procedures provided for in Article 14 of the Directive apply to

the issuance of EU ETDs to unrepresented EU citizens, clarifying those procedures would

ensure coherence to some extent with the ETD Directive. In addition, clarification of current

procedure might help Member States to ensure that the repayment of repatriation costs does

not result in double funding with co-financing received from the UCPM. (Score: ●●)

Proportionality:

This policy option is considered fully proportionate to achieve the objective,

also in view of the uncertainties regarding the scale of the problems identified. (Score: ●●●)

Political feasibility:

Guidelines are legally non-binding documents. As they are issued by the

Commission or/and the EEAS, their political feasibility is therefore very high. Their adoption

would only entail some collaboration between the Commission/EEAS and the Member States.

However, feedback collected by Member States highlighted their need to review the current

rules and therefore, they might be less open to a solution which would simply clarify existing

provisions without adjusting them. (Score: ●●)

Option 4b) Legal amendments to improve the procedure

Effectiveness:

This policy option would enable assisted EU citizens to pay the assisting

Member State directly for the assistance provided (or an EU delegation in case the Member

State requested its support). It would considerably reduce the current administrative burden for

both the assisting and the Member State of nationality. This would increase the efficiency and

use of the financial reimbursement procedures, and thus achieving SO6. For EU citizens, this

would also allow a better and much more efficient service, as they would not be phased with

later reimbursement requests by their Member State of nationality. This measure would

therefore have a very positive impact both on Member States and EU citizens. (Score: ●●)

Efficiency:

Given the limited costs for Member States and the significant benefits in recovery

of such costs, this option is considered very efficient. (Score: ●●●)

Coherence:

Reforming and simplifying the financial procedures and making them more

efficient and applicable also to represented EU citizens would be fully coherent with the

objectives of the ETD Directive and with the UCPM. Presently, the UCPM allows Member

States to request EU citizens to contribute to the costs of the transport while the Directive only

foresees a contribution from the unrepresented citizen’s Member State of nationality. It follows

that this option will ensure more consistent financial procedures preventing the risk of double

funding. (Score: ●●●)

Proportionality:

This policy option is considered fully proportionate to achieve the objective.

The choice of legal amendments to improve the financial procedures is coherent with the

satisfactory achievement of the objective and could not be achieved by the Member States

acting alone. While available data is limited, estimates show that the number of EU citizens

travelling to third countries where they are not represented is considerable. (Score: ●●●)

Political feasibility:

The majority of Member States consulted for the study were in favour of

allowing EU citizens to pay for consular assistance directly, as it would reduce the

administrative burden relating to the reimbursement requests. However, two Member States

have national laws in place which prevent them from seeking reimbursement directly from the

citizen. In addition, one Member State noted it was better left for the Member States to organise

the reimbursement between themselves rather than involving individuals. One Member State

kom (2023) 0930 - Ingen titel

highlighted its concerns regarding the types of costs which would be reimbursed under this

mechanism

. Five Member States stated that there is the need to incentivize financial

compensation

. In COCON, most Member States favoured establishing a deadline for an

assisting Member States to provide the statement of expenses for costs incurred to the Member

State of nationality. This would complement the deadline for reimbursement already provided

in Article 14(2) of the Directive. The period of 12 months seemed to be adequate to most

Member States with an option for an extension in more complex cases, after prior notice of the

assisting Member States. As such, there would be a strong political support for the development

of a standard form for reimbursement of assistance to represented EU citizens. (Score: ●●●)

7. H

OW DO THE OPTIONS COMPARE

SO1: Conclusion/comparison of options:

Option 1a)

Combination of

soft measures

Option 1b)

Improvement to the

definition through

legislative

amendments

●●

●●●

●●

Preferred Option

Option 1c) Introduction of

the concept of

“presumption of

unrepresentedness”

●●●

●

●●

●

Effectiveness

Efficiency

Coherence

Proportionality

Political

feasibility

Result

●

●●

●●●

An example mentioned in this regard was that the respective Member State did not cover medical

repatriation as it was considered too costly. However, some Member States did cover this type of

assistance for their nationals and thus for unrepresented citizens. Therefore in theory these costs could

be sought to be reimbursed if their nationals received such assistance.

The EU’s role on Consular crisis management - Non-paper by Belgium, Finland, Luxembourg, Poland

and The Netherlands, April 2022, available at:

https://europeanunion.diplomatie.belgium.be/sites/default/files/2023-

05/The%20EU%E2%80%99s%20role%20on%20Consular%20crisis%20management%20-%20Non-

paper%20by%20Belgium%2C%20Finland%2C%20Luxembourg%2C%20Poland%20and%20The%20

Netherlands.pdf

kom (2023) 0930 - Ingen titel

SO2: Conclusion/comparison of options:

Option 2a) Guidelines on

local cooperation

Effectiveness

Efficiency

Coherence

Proportionality

Political feasibility

Result

SO2: Conclusion/comparison of options:

Option 2d) Detail the

supporting role of EU

delegations through legal

amendments

Effectiveness

Efficiency

Coherence

Proportionality

Political

feasibility

Result

●●●

●●

Preferred option

Option 2e) EU delegations can

provide direct consular assistance to

EU citizens in uncovered third

countries

●●●

●●

●

●●

●●●

Option 2b) EU delegations will chair

local consular cooperation networks

meetings

●●●

Preferred option

Synergies among the combination of preferred options to ensure better coordination:

Option 2b)

Local coordination meetings would be chaired by the EU delegations.

Option 2c)

Review of the concept of Lead State and formalization of tasks under JFW and

the EU delegations will lead on the drafting of the JFW.

Option 2d)

Strengthen the supporting role of EU delegations and align it with the Council

Decision setting up the EEAS.

A combination of the best options results in a limited increase in the role of EU delegations for

coordination and cooperation purposes with specific assigned tasks, including the chair of local

coordination meetings and the drafting of the JFW. Their explicit reference in the Directive

kom (2023) 0930 - Ingen titel

will provide a solid basis to further enhance legal certainty, consistency, business continuity,

innovation and largely improve effectiveness of local coordination.

In the case of option 2d, EU delegations would enjoy of a legally certain and better-defined

role for their actions in support of Member States, offsetting present concerns regarding their

competences. As EU delegations’ activity would primarily focus on the support to the weakest

nodes of Member States’ collective consular network, it would tap into unused resources,

trigger synergies and improve the overall effectiveness of EU right to consular protection.

This combination of options would streamline procedures in non-crisis situations, under the

lead of EU delegations, and would improve preparedness for crisis situations. Overall, the

effect of these options would increase the visibility of EU delegations and EU action with the

Member States and most importantly, with EU citizens, who are the ultimate beneficiaries of

the right to consular protection.

SO3: Conclusion/comparison of options:

Option 3a) Legal amendments with new

requirements for provision of information

Effectiveness

Efficiency

Coherence

Proportionality

Political

feasibility

Result

●●●

●●

Preferred option

Option 3b) An EU

travel advice portal

●●

●●●

●

SO3: Conclusion/comparison of options:

Option 3c)

Communication

campaign

Effectiveness

Efficiency

Proportionality

Political

feasibility

Result

●●

●●●

Option 3d) Member States required to

promote measures supporting the possibility

for their citizens to inform on/record their

travelling

●●

●●●

Preferred option for coherence with the other

measures and their level of intervention

kom (2023) 0930 - Ingen titel

SO4: Conclusion/comparison of options:

Option 4a) Guidelines and

training

Effectiveness

Efficiency

Coherence

Proportionality

Political feasibility

Result

●

●●

●●●

●●

Option 4b) Legal amendments to

improve the procedure

●●

●●●

Preferred option

8. P

REFERRED COMBINATION OF OPTIONS

Specific Objective

SO1: Enhance the legal

certainty for EU citizens

with respect to the scope

of the right to consular

protection

SO2: Ensure clear roles,

coordination

and

cooperation mechanisms

between Member States

and EU delegations,

including in times of crisis

SO3: Improve the

information provision

and communication with

(unrepresented) EU

citizens

Preferred options

Option 1b)

Legal amendments to clarify the definition of what

it means for an EU citizen to be unrepresented and in

particular the types of situations in which a Member State

representation should not be

considered “effectively

in a

position to provide consular protection”.

Option 2b)

Local coordination meetings are chaired by the EU

delegations

Option 2c)

Review of the concept of Lead State and definition

of division of tasks under JFW, formalization of JFWs and JCTs

Option 2d)

Strengthen the supporting role of EU delegations

and align it with the EEAS Decision

Option 3a)

a requirement for Member States to provide the

Commission and the EEAS with information in a certain

timeframe and in machine readable format on honorary

consuls functions and on bilateral and practical arrangements

in place.

Option 3d)

Member States required to promote measures to

inform consular authorities and/or record citizens’

presence

abroad

SO4: Increase the

efficiency and use of the

Option 4b)

legal amendments adding the option for

unrepresented citizens to pay the assisting Member State or

kom (2023) 0930 - Ingen titel

financial reimbursement

procedures

the EU delegation. Establish a timeframe for reimbursement

procedures and clarify application to represented citizens

It is suggested to propose a targeted revision of the existing legislative framework of the

Directive. Such an approach would maximise the effect of consolidating the relevant rules

governing consular protection of unpresented citizens, and achieve maximum impact for the

effective exercise of their fundamental right, while respecting national competences. The

preferred option will be complemented by the measures presented in Annex 10.

8.1. Impacts of the preferred combination of options

The impacts of the preferred combination of options would be positive compared to the

status

quo

and are expected to adapt the present consular protection framework to present and future

challenges

A clarification of the scope in the Directive would bring increased legal certainty,

resulting in a more effective consular assistance to EU citizens (SO1). Increased legal certainty

and effectiveness of the Directive’s rules applicable to crisis and non-crisis situations would

result in a strengthened EU delegations’ supporting role, a clearer division of tasks among

Member States and EU delegations in local cooperation meetings, JFWs and JCTs (SO2). The

effect of a more efficient and smooth coordination would be a better assistance to EU citizens,

especially in crisis situations, making best use of all EU resources allocated to that task. In

addition, a more effective and consistent communication with EU citizens on consular matters

would flow from enhanced cooperation between Member States’ consular networks and the

EU. More registrations of citizens abroad would allow Member States to better assist them

(SO3). Finally, simplification and reduction of the current administrative burden for both the

assisting and the Member State of nationality would increase the usefulness of financial

reimbursement procedures. What is more, the extension of the reimbursement mechanism to

EU delegations would contribute to filling in a gap hindering their practical support to Member

States on the provision of assistance to EU citizens on a cost-neutral basis (SO4)

There are no administrative costs and savings that would fall into the ‘one-in-one out’ tool.

8.2. REFIT – Preferred option

Table 5 shows efficiencies for authorities due to legal certainty, increased synergies and better

processes.

Table 5: REFIT - Scope for simplification and improving the efficiency of the existing legislation

Description

Increased clarity on various essential elements of the Directive (e.g.

scope and key terms) resulting in its more efficient application and

more streamlined procedures, reduction of delays, complexity and

costs.

Cost savings through efficiency gains realised through the improved

coordination with EU delegations and improved cooperation with

other Member States.

Comments

Benefitting MS

consular

authorities and

EU citizens

Benefitting MS

consular

authorities and

EU citizens

A more complete picture of the implications of the initiative is given in Annex 3.

kom (2023) 0930 - Ingen titel

Cost savings due to the increased legal certainty on the application

of personal data protection rules in the context of consular

protection.

Cost savings due to the reduction in burden when allowing citizens

to pay for the assistance provided directly; this would in turn

increase the likeliness of Member States having the costs of

providing consular assistance to unrepresented citizens be

reimbursed, which result in further savings.

Benefitting MS

consular

authorities and

EU delegations

Benefitting MS

and EU

delegations

9. H

OW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED

The envisaged indicators are presented in table 6 below.

Table 6: Monitoring and evaluation indicators

Indicator

Baseline

Target / How to

improve

An increase of the

overall number is

expected because of

the factors

influencing the

evolution of the

problem. However, it

is not possible to

estimate the

numbers (which will

notably depend on

future crises).

No complaints

received on lack of

assistance to

unrepresented

citizens.

Sources of

information

Member State

reporting based on

a legal obligation in

the Directive.

SO1

Number of

unrepresented EU unrepresented

citizens assisted.

citizens assisted,

based on

estimations

2018: 1087

2019: 1354

2020: 6046

SO1

Number of citizen

complaints

received.

Total number of

complaints was

10.

DG JUST Member

State questionnaire

Complaints

received by EU

delegations

(collected from EU

delegations

directly).

Table 47: Number of unrepresented EU citizens assisted between 2018-2020, as reported by Member

States in Annex VI of the study.

kom (2023) 0930 - Ingen titel

SO2

Number and type

of requests from

Member State

authorities to EU

delegations for

support.

SO3

Level of

awareness of EU

citizens about

their right to

consular

protection.

SO4

Number of

reimbursement

requests

submitted and

received.

No baseline

indicators at the

moment.

Data of Year 1 and

increases in the

following years.

Data collected by

EU delegations and

EEAS.

76% as per Flash

Eurobarometer

485.

Increase to more

than 80%.

Opinion polls

(Eurobarometer).

No baseline.

Baseline to be

established in year 1.

Member State

reporting based on

a legal obligation in

the Directive.

Given positive past experiences from the implementation report and preparation of this impact

assessment, the proposed sources of information are considered realistic. In particular, Member

States are, pursuant to Article 19(1) of the Directive, under an obligation to provide relevant

information. The feasibility of conducting opinion polls will depend on available financial

resources.

Pursuant to Article 19(1) of the Directive, the Commission was obliged to submit a report to

the European Parliament and the Council on the implementation and application of the

Directive by 1 May 2021. In that Commission Report, the Commission had to evaluate the way

in which the Directive had operated and consider the need for additional measures, including,

where appropriate, amendments to adapt the Directive with a view to further facilitating the

exercise of Union citizens’ right to consular protection.

In line with the Interinstitutional Agreement on Better Law-Making

, the amended Directive

should provide for its evaluation by the Commission. To ensure that there is enough practical

experience and information available, given the time needed to carry out the evaluation, and in

order not to impose unnecessary burden on national authorities, the evaluation report should

be published eight years after the transposition of the amendments

Interinstitutional Agreement between the European Parliament, the Council of the European Union and

the European Commission on Better Law-Making (OJ L 123, 12.5.2016, p. 1).

See

also

‘Better

regulation’

toolbox

2023,

tool

44,

available

at:

https://commission.europa.eu/system/files/2023-09/BR%20toolbox%20-%20Jul%202023%20-

%20FINAL.pdf

kom (2023) 0930 - Ingen titel

Glossary

Term or acronym

COCON

CoOL

EUDEL

EUDPR

Meaning or definition

Consular Affairs Working Party of the Council of the EU

Consular Online platform maintained by the EEAS

EU delegation

Regulation (EU) 2018/1725 of the European Parliament and of the

Council of 23 October 2018 on the protection of natural persons with

regard to the processing of personal data by the Union institutions,

bodies, offices and agencies and on the free movement of such data,

and repealing Regulation (EC) No 45/2001 and Decision No

1247/2002/EC

Emergency Travel Document

Regulation (EU) 2016/679 of the European Parliament and of the

Council of 27 April 2016 on the protection of natural persons with

regard to the processing of personal data and on the free movement

of such data, and repealing Directive 95/46/EC (General Data

Protection Regulation)

Joint EU Consular (crisis response) Team

Joint EU consular crisis preparedness frameworks

Local Consular Cooperation

Strategic Objective

European Union Civil Protection Mechanism

ETD

GDPR

JCT

JFW

LCC

UCPM

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Annex 1: Procedural information

Lead DG, Decide Planning/CWP references

The Staff Working Document was prepared by the Directorate-General for Justice and

Consumers (DG JUST). The Decide reference of this initiative is PLAN/2020/8637.

The preparatory work for the Commission’s initiative to review the provisions to secure the

protection of unrepresented EU citizens in third countries benefitted from two derogations from

the Better Regulation guidelines

First, the initiative was granted a derogation from the requirement of conducting a public

consultation. This was due mainly to the inherent limitations in reaching out to the direct

beneficiaries of the Directive

but also because of the evidence gathered in the public

consultation for the 2020 EU Citizenship report (9 July 2020 – 1 October 2020)

and the Flash

Eurobarometer 485 on EU Citizenship and Democracy

, which already surveyed opinions of

EU citizens on consular protection.

Nevertheless, the publication of an inception impact assessment on the Commission’s website

offered an opportunity for external feedback

and, in addition, the study developed a short

survey on EU citizens’ experiences on consular protection abroad

Secondly, a derogation to the “evaluate first” principle was granted, taking into account the

parallel delivery of the Commission Report and the limited data available soon after the

transposition of the Directive.

The study includes the results of consultations with different stakeholders, such as EU

delegations

, as well as the results of a questionnaire to national authorities of the Member

States

. In addition, the views of the Member States were available as the result of discussions

at the Council working party on consular affairs (‘COCON’) on further facilitating the exercise

of EU citizens’ right related to consular protection in third countries in the context of a possible

up-date of the Directive, between September and November 2022

SWD(2021) 305 final,

https://commission.europa.eu/law/law-making-process/planning-and-proposing-

law/better-regulation/better-regulation-guidelines-and-toolbox_en.

These are EU citizens who received assistance and their family members. The reasons for these intrinsic

limitations are justified by data protection requirements.

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12455-EU-Citizenship-Report-

2020/public-consultation_e.

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12455-EU-Citizenship-Report-

2020/public-consultation_e.

The feedback period was 13 January 2021 to 10 February 2021. Only 5 contributions were received.

Seven EU citizens replied to the survey.

Overall 77 EU delegations completed the survey (response rate of 60%).

Data collection at Member State level includes the use of a comprehensive questionnaire to collect

quantitative data on Member States’ national legislation and procedures; on their consular networks and

assets; on the consular protection they provided to unrepresented citizens; and on their travel and

communication channels. Additionally, Member States were also asked to provide qualitative feedback

on the application of the Directive; on proposed policy options; and on the COVID-19 pandemic lessons

learnt.

Minutes of discussions at the Council working party on consular affairs are not publicly available. The

Czech Presidency held three COCON meetings focusing on options to further facilitate consular

protection of EU citizens in third countries based on the Commission´s report on the implementation and

application of the Directive, COM (2022) 437, see Outcome of the proceedings COCON 61 15876/22

kom (2023) 0930 - Ingen titel

Organisation and timing

The Impact Assessment was prepared by DG JUST as the lead Directorate-General.

The Inter-Service Steering Group established for this initiative was associated and consulted

several times in the process, under the coordination of the Secretariat-General. It included the

following services: DG JUST, EEAS, ECHO, SJ, MOVE, NEAR, INTPA, SANTE, HOME

and FPI. The group had four meetings: 25 November 2020, 18 March 2021, 9 December 2021

and 24 May 2023. In addition, the group was regularly consulted in writing on the progress of

the study, including on the various deliverables (interim reports, final report) in both draft and

final form.

Consultations of the Regulatory Scrutiny Board (RSB)

An upstream meeting took place on 10 March 2020, and the recommendations of the RSB were

duly taken into account. DG JUST, working in close cooperation with the co-lead EEAS,

submitted the draft Impact Assessment for the revision of the rules on consular protection to

the RSB on 22 December 2021 and a complementary input on 1 February 2022. A hearing of

the RSB took place on 2 February 2022. On 4 February 2022, the RSB issued a negative

opinion.

The RSB’s recommendations have been taken into account in the Impact Assessment, as

outlined in the below table.

BOARD’s SUGGESTED

IMPROVEMENTS

IMPLEMENTATION

(1)The report lacks the solid

analytical basis that an evaluation

of the Directive would have

provided. It should clearly explain

why no evaluation has been

undertaken. In its absence, the

problem

description

should

complement the lack of evaluative

evidence. It should avoid drawing

conclusions along the lines of

evaluation criteria from the

implementation report, as its

findings cannot be considered as

reliable evidence of a problem.

(2) The report should be clear

about the existence and nature of

the problem. Theoretical problems

that may occur are not

Two derogations to the “evaluate first” principle have

been granted for this initiative and it is better

explained in Annex 1. At the same time, on substance,

a detailed assessment of the implementation and

application of the Directive has been recently

published. See Report issued on 2 September 2022,

COM(2022)

437

final,

available

at:

https://commission.europa.eu/system/files/2022-

09/1_1_196921_impl_rep_cons_en_1.pdf

Wrong references to the evaluation criteria in the

report and the deriving wrong conclusions have been

removed. The problem description has been

expanded.

Qualitative elements and examples in the problem

description have been added

(See sections named “in

practice” at the beginning of each problem)

and

appropriate references are made to concrete

available at:

https://data.consilium.europa.eu/doc/document/ST-15876-2022-INIT/en/pdf

and WK

17059/2022 in List of working papers (WK) distributed in the Working Party on Consular Affairs in

2022

https://data.consilium.europa.eu/doc/document/ST-5013-2023-INIT/en/pdf.

kom (2023) 0930 - Ingen titel

substantiated with the evidence of

relevant recurring cases needing

further regulatory coverage. For

example, there is no evidence in

the report of citizens being

deprived of assistance in a context

of crisis; there is no evidence of

citizens being deprived from

receiving consular protection as a

result of the practice of deferring

requests either. The report should

differentiate between endemic

problems requiring changes to the

legal framework and ad hoc,

occasional problems relating to the

unpredictable nature of crises. It

should narrow down its scope to

focus only on real general

problems for which there is reliable

and consistent evidence.

(3) The report should indicate the

scale of the problem. It should

estimate the amount of support

from UK consulates that EU citizens

in distress received in countries

with no other EU representation. It

should provide information about

bilateral agreements Member

States or the EU have with third

countries (e.g. Switzerland, Canada

or possibly in the future also with

the UK) and to what extent these

mitigate the problems. It should

clearly set out the relationship

between the Directive and the

Union Civil Protection Mechanism

in crisis situations. It should

substantiate with evidence, the

premise that there is a growing

number of crises worldwide

requiring consular assistance and

that existing arrangements are

insufficient to address these.

Finally,

should

clearly

demonstrate that all Member

examples contained in the Commission’s report on

implementation and application of the Directive (link

above).

The scope and the number of problems was reduced

to focus on structural problems. Explanations have

been added as to why problems that can be perceived

as of a small scale are, instead, of general importance.

See new Section 2.1 on Preparedness for

fundamental rights’ protection.

Drafting has been improved to better present the

scale of the problems. Explanations have been added

why there is a question of inadequacy of bilateral

agreements as a possible solution for ensuring the

consular protection of EU citizens in view of the policy

objective linked to the implementation of the

fundamental right to consular protection for reasons

related to the legal guarantees associated to that

fundamental right and the consistency of the

protection (see the section on disregarded policy

options). Section 1 on the context and legal

framework chapter has been extended and provides

more detail on the use of Union Civil Protection

Mechanism in crisis situations. Annex 5 contains a

short overview of the provisions of the Directive and

an illustrative example of a crisis and a non-crisis

situation.

For the increasing number of crises, megatrends as

identified by the European Commission 2021

Strategic Foresight Report have been used as a driving

factor of future crises. See section 2.4 and Annex 7.

Finally,

Member States’ views

have been better

integrated, as expressed in the context of the

Consular Affairs Working Party of the Council on the

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States favour the EU taking on the basis of the exchanges on the Commission report on

coordinating role in crises.

the implementation of the Directive, throughout the

text and added a section on “Political Feasibility” for

the assessment of options.

(4) The report should better justify

the proportionality of the

proposed legal basis, which, for the

preferred option, includes a Treaty

change via the use of the Article 25

TFEU passerelle clause. This does

not seem justified by either the

nature or scale of the identified

problems. The report should also

demonstrate that this approach

would not go beyond the cited

Council conclusions that advocate

a potential revision of the

Directive, rather than of the Treaty.

It should also clearly specify

upfront that recourse to this Treaty

Article requires unanimity at the

Council since this is relevant to

both the justification of the

preferred option and to the

political feasibility.

Considering the review of the Impact Assessment, the

preferred option is now a legislative intervention

which does not require the use of Article 25 TFEU.

This should resolve the proportionality concerns

between the problems identified and the solutions

proposed.

The majorities required in the Council for both Article

25 TFEU and Article 23 TFEU have been clarified (see

section on legal basis).

(5) The report should explain the An explanation has been added to the section on the

role of the Vienna Convention on legal basis in the form of a dedicated paragraph.

Consular Relations as the basis for

international consular cooperation

between states and how EU

delegations would fit into this

framework.

(6) The report should be more

explicit about the rationale behind

the policy options and the 3

proposed packages. The options

design should focus on real policy

options, leaving technical choices

in an annex. The baseline cannot

–

by definition

–

be a policy option

and should not be discarded. The

report

should

explain

the

difference between the dynamic

The policy choices have been simplified, their

organisation re-structured and their presentation

improved in order to be more reader-friendly. The

organisation in packages has been removed. The

options design now focus on real policy options and

technical choices have been moved to Annexes. (See

section on policy options and Annex 8 with the

updated intervention logic and Annex 10 for the

measures without policy choice).

The reference to the baseline as policy option has

been removed. A description of ongoing initiatives of

kom (2023) 0930 - Ingen titel

baseline and the measures

proposed in the non-legislative

option. It should clearly set out the

extent to which the identified and

substantiated problems could be

addressed by the combination of

the dynamic baseline and this

option. It should also clearly

highlight the differences and

similarities between option 2B and

option 3, given that both require

Treaty change. It should clarify if

option 3 is actually different to

option 2B only because it extends

beyond crisis situations. It is not

clear how option 2B could work

only in crisis situations given their

unpredictability

and

the

corresponding need therefore for a

universal

standing

consular

capability in all EU delegations

worldwide. The proposal that the

capabilities under option 2B could

only be triggered ad hoc in a crisis

situation by unanimity in the

Council calls into question both the

need for this standing capability as

well as the need to revise the

Treaty to provide it. The idea of

rapid reaction consular crisis

response teams is not covered or

analysed in the impact assessment

and cannot therefore be assessed.

(7) The political acceptability by

Member States of the options

should be taken into account and

could be used as a criterion to

discard some options. It is not clear

how the political feasibility of

option 2B differs from that of

option 3 given they both require

recourse to the passerelle clause

and therefore unanimity. It is not

therefore clear on this basis why

only option 3 is not considered

the dynamic baseline scenario has been added to

Annex 9.

The options concerning the role of EU delegations has

been simplified further. They are now only 2 instead

of 4 (now option 2d) and 2e)) and have been

differentiated more. Option 2d) does not require

Treaty change while option 2e) requires the use of the

passerelle clause. Option 2e) was also reconsidered

and the new extended role of EU delegations is now

limited to “uncovered third countries”.

The reference

to new rapid reaction consular crisis response teams

has been removed.

Member

States’ views

collected through the study

and as discussed in the context of the Consular Affairs

Working Party of the Council on the basis of the

implementation report of the Directive have been

integrated better to assess the political feasibility. In

the outcome of proceedings of the meeting of the

Working Party on Consular Affairs (COCON) on 12

December 2022) the Czech Presidency concluded in

view of the discussions held that “there is scope to

review the Directive, in particular based on the

experiences

from consular crises in the past years.”

See

here:

kom (2023) 0930 - Ingen titel

proportionate. The report should

make a clear distinction between a

normal and a crisis situation as this

has an impact on proportionality,

i.e. if the capabilities proposed in

option 2B are to be triggered only

on an ad-hoc basis, it is not clear

why options 1 or 2A would not

suffice.

https://data.consilium.europa.eu/doc/document/ST-

15876-2022-INIT/en/pdf

The drafting for the criterion of political feasibility to

compare the remaining policy options has been

improved. For option 2d) and 2e) on the role of EU

delegations, the difference in terms of political

feasibility has been clarified. Concretely, in option 2d)

EU delegations maintain, while strengthening, their

actual supporting role to Member States in providing

assistance to unrepresented EU citizens while in

option 2e) they are endowed with new competences

and an autonomous role in uncovered third countries

while keeping the supporting one in other countries.

This makes a big difference in terms of political

feasibility.

The drafting to explain why preparedness in a non-

crisis situation is important to address a crisis

situation has been improved (Section 2.1 on

Preparedness for fundamental rights’ protection).

(8) The impact analysis should be

comprehensive and clearly show

the benefits and costs. The report

should clarify the effectiveness

assessment of the options, in

particular regarding the personal

and

geographical

scopes,

accessibility and communication. It

should add the cost assessment for

each option issue by issue. It

should indicate clearly the precise

costs the initiative will entail, their

amount and their timeframe. It

should explain how this could be

covered by redeployment and

identify exactly when and where

the savings would come from. If

new financial resources would be

required, it should set out precise

costings and explain how these

would fit with the budgetary

ceilings

the

2021-2027

Multiannual Financial Framework.

It should also address the need to

revise

the

cost-neutrality

A comprehensive analysis of impacts has been added,

which includes: effectiveness, efficiency, coherence,

proportionality and political feasibility. An analysis of

impacts on fundamental rights has been added as

part of the effectiveness analysis.

The calculation of costs has been improved and

added per each policy option and measure to the

extent possible. Costs and benefits are summarised in

Annex 3.

The costs for this initiative for the EU are limited and

the majority of them is represented by one off costs.

Given the tight situation of Heading 7 (European

Public Administration) any additional costs will be

covered by internal redeployments within the

relevant entity. Therefore, there is no risk that due to

this initiative the budgetary ceiling of the 2021-2027

MFF would be exceeded.

In addition, an explanation has been added as to why

there is no need to revise the cost-neutrality

requirement of Article 5(10) of the EEAS Decision for

the preferred option (see assessment of option 2d

and Annex 4). However, it is also explained that, in

order to ensure cost-neutrality, there is a need to

kom (2023) 0930 - Ingen titel

requirement of Article 5(10) of the extend the reimbursement mechanism in the

EEAS Decision for the preferred Directive to EU delegations.

option, given the additional human

and financial resources that would

be required

(9) The report should provide the

justification for the quantitative

and qualitative cost assessment

conclusions. The cost assessments

for the preferred option lack

credibility. It is not clear what the

justification for low quantitative

estimates and ‘limited’ or cost

‘neutral’ qualitative conclusions is

and what evidence they are based

on. A Treaty change to give EU

delegations

competence

for

consular assistance would give rise

justiciable

legitimate

expectation on the part of EU

citizens that they would be able to

enjoy this right universally. That

cannot by definition, and given the

wide range of consular work, be

achieved on a resource-neutral

basis. The report should also clarify

how the gradual approach would

work

given

the

universal,

justiciable right the initiative would

create. Such an ad hoc approach

would seem to be more compatible

with a non-legislative option.

(10) The absence of a dedicated

public consultation is problematic

in terms of the evidence basis. By

way of mitigation, the views of

stakeholders

–

including dissenting

ones

–

expressed in the public

consultation for the 2020 EU

Citizenship Report, the Flash

Eurobarometer 485 on EU

Citizenship and Democracy and in

targeted

consultations

with

Member States and EU delegations

The quantitative and qualitative cost assessment

conclusions of the preferred option have been

improved, which no longer implies a Treaty change

(see methodology in Annex 4).

The views of stakeholders have been included where

possible and in particular those of the Member

States, both in the problem description and the

political feasibility sections. Additional information

on the views of the Member States were gathered

following discussions at the Council working party on

consular affairs (‘COCON’) on further facilitating the

exercise of the right to consular protection in third

countries in the context of a possible up-date of the

Directive, between September and November 2022.

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should be presented throughout

the report, not only in the problem

analysis. The views of Member

States are not sufficiently reflected

in the report. The initiative by eight

Member States favouring a review

of the Directive is given

disproportionate weight. The

views of the remaining 19 Member

States on the proposals in the

initiative

–

including dissenting

views

–

should be clearly set out.

DG JUST, working in close cooperation with the co-lead EEAS, re-submitted the draft Impact

Assessment to RSB on 8 June 2023. On 6 July 2023, the RSB issued a positive opinion with

reservations. The RSB’s recommendations have been taken into account in the Impact

Assessment, as the table below displays.

BOARD’s SUGGESTED

IMPROVEMENTS

IMPLEMENTATION

(1) The scope of the initiative

remains unclear, in particular in

what specific circumstances the

proposed legal changes on the

definition

unrepresented

nationals would give rise to a

justiciable consular right for

unrepresented

citizens

worldwide, or whether this would

be limited to specific third

countries where no Member States

is present with consular service.

This should be clarified as it could

have a direct bearing on the

resource implications for EU

delegations and Member States.

The report should demonstrate

compliance with Article 10 (cost-

neutrality) of the EEAS Decision.

(2) The scale of the problem is not

apparent raising doubts as to the

proportionality of, or justification

for, legally binding EU action. The

report should present how big the

Based on Article 23 TFEU, unrepresented EU citizens

already enjoy a justiciable right to be assisted by the

diplomatic and consular authorities of other Member

States in third countries where their Member State of

nationality is not represented. The initiative would

not affect the current scope of this right as

established by the Treaty. This has been clarified in

the description of policy option 1b).

The demonstration of compliance with Article 10

(cost-neutrality) of the EEAS Decision is outlined in

Annex 4.

The text has been redrafted to clarify the size of the

problem, in particular problem 1. In addition, further

elements have been added in Section 2 on the

limitations of the data available resulting from the

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problems are bringing in all

available evidence. If the problems

are small, this should be clearly

stated upfront and the scale and

nature of the measures proposed

should be commensurate with this.

lack of preceding evaluation and on the magnitude of

the problem.

The assessment of the proportionality of the different

policy options has been expanded to better explain

how their proportionality is impacted by the

limitations and uncertainties as to the scale of the

problem.

The description of the baseline in the main text has

been expanded, in particular by adding information

from the evolution of the problem, notably in terms

of the changes to consular networks and number of

travellers, as well as the impact of the UK’s

withdrawal from the EU.

In addition, explanations were added as to why some

of the problems could not be addressed under the

baseline scenario due to them being linked to the

current wording of the Directive.

See also expanded section on the baseline in Annex 9.

(3)

The

baseline

underdeveloped,

insufficiently

presented in the main report and

not dynamic. The report is not clear

on why certain non-regulatory

measures presented for each

problem could not already be done

under the baseline scenario. This

should be dynamic and go beyond

a narrative on the expected

continuation of the current regime.

It should integrate the expected

evolution of the problems covering

the envisaged changes in consular

network and the number of

unrepresented EU travellers, the

effects of the UK leaving the EU

and the expected increase of

crises.

(4) The report should explain that

not all the options are alternatives

and thus comparable, as they

address different problems under

the same specific objective.

Additional explanations have been added as to why

not all the options are alternatives given that they

address different problems under the same specific

objective (see notably specific objective 2).

In the section on discarded policy options,

The report should clarify whether explanations have been added an alternative

other combinations of options combination of measures has not been considered,

have been considered, for instance including a package non-legislative measures.

a combination of exclusively non- Elements have been added to Annex 9 to reflect the

regulatory measures only, and if uncertainties of the baseline scenario, in particular

not, explain why.

when it comes to future actions of the Member States

It should make a critical and the need for consular protection as a result of an

assessment of the limitations of increase in crises with a consular element.

the baseline as a reliable basis for

comparison of the options.

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(5) The impact analysis should be

further developed. The report

should include an explicit and

distinct

section

with

the

assessment of the impacts of each

policy option.

The report needs to distinguish

clearly between the categories of

impacts assessed and the criteria

on which the comparison of

options is based.

The impact analysis has been separated from the

chapter on the assessment of impacts of each policy

option (Chapter 6 and 7).

All mandatory categories of impacts have been added

and examined in Chapter 6.

It is clearly explained that no social or environmental

impacts, impacts on SMEs could be identified

(Chapter 6), nor impacts on competitiveness (Annex

3), given that the Directive does directly not concern

commercial entities.

The assessment of the costs under the economic

All mandatory categories of

impacts and the analysis of the benefits have been

impacts should be examined, and it

reviewed.

should be clearly noted if they are

deemed not relevant or not

significant.

The assessment of the costs should

be further developed as they

appear to be understated (see

point 1), particularly if the

amendments give rise to a

universal justiciable right, and

should be fully worked through

and set out.

Broad statements that the costs

will be “very limited” should be

sufficiently substantiated by the

analysis to allow policy makers to

take an informed assessment. The

analysis of the benefits should be

further developed to assess all

relevant types of benefits.

(6) The assessment of the options

against the comparison criteria

should be based on evidence. The

report should elaborate on the

assessment of proportionality for

all options rather than merely

stating ‘this policy option is

considered fully proportionate to

achieve the objective’.

The scoring

of the options is arbitrary and

should instead be supported by

The assessment of proportionality for each option has

been expanded.

The scoring has been reviewed and updated. An

explanation of the scoring system can be found in

Section 4 of Annex 4.

kom (2023) 0930 - Ingen titel

and consistent with the preceding

analysis. The report should explain

why the scoring of options with

different characteristics is often

the same, or options with similar

characteristics score differently.

(7) The report does not sufficiently

reflect and take account of the

views of different stakeholder

groups. It should include a clear

explanation why the “evaluate

first” principle was not respected

and

how

feedback

from

stakeholders was taken into

account to compensate for the lack

of evaluative evidence, particularly

in the problem definition.

Additional explanations have been added to Section

2.2. as to how stakeholder feedback was considered

for the problem definition.

A new subsection has been added to Section 2.2

explaining

why a derogation from the ‘evaluate first’

principle had been granted and acknowledging the

limitations resulting from the subsequent lack of data

and evaluative evidence.

More information can be found in Annex 1.

(8) The monitoring and evaluation

provisions should be further

developed. The report should be

more specific on the targets set for

the indicators beyond an expected

increase. It should re-assess the

statement that there is currently

no existing data for any of the

proposed indicators. It should also

assess how realistic are the

proposed sources of information.

Evaluation provisions and their

timing should be added.

Where possible, targets and available baselines for

the indicators have been added.

An assessment of the sources of information has been

added.

Explanations as to the evaluation of the proposed

action, with reference to existing legal provisions,

have been added.

Evidence, sources and quality

The evidence base is drawn in particular from the following:

•

the Inception Impact Assessment

and the responses provided by organisations in response

to it;

the Flash Eurobarometer 485 on EU Citizenship and Democracy

;

European Commission, Inception Impact assessment on Consular Protection – review of EU rules, Ref.

Ares(2021)282291 – 13/01/2021.

Flash Eurobarometer 485: EU Citizenship and Democracy; February/March 2020;

https://data.europa.eu/data/datasets/s2260_485_eng?locale=en.

kom (2023) 0930 - Ingen titel

•

the Joint Frameworks of four selected third countries (Costa Rica, Montenegro, Russia,

Ethiopia).

an anonymised sample of citizen’s complaints received by DG JUST;

the 2020 EU citizenship report

, including its Open Public Consultation survey with

consular questions;

Member States’ replies to the questionnaire developed by the Expert Group Meeting on

Consular Protection of 8 December 2020/ Discussion Note on the implementation of

Council Directive (EU) 2015/637, Chapter 1: General Provisions and Scope and Chapter

2: Coordination and cooperation measures. This dedicated questionnaire collected

quantitative data on Member States’ national legislation and procedures; on their consular

networks and assets; on the consular protection they provide to (un)represented citizens;

and on their travel and communication channels. Additionally, Member States were also

asked to provide qualitative feedback, through interviews, on the application of the

Directive and the problem definition; on the proposed policy options; and on the COVID-

19 pandemic lessons learnt;

an online survey sent to EU delegations (77 out of 134 responded);

a short survey collecting anecdotal information from a sample of unrepresented citizens;

interviews with stakeholders (citizens, industry, selected EU bodies);

Report on the implementation and application of Directive 2015/637/EU

, COM(2022) 437

final,

available

at:

09/1_1_196921_impl_rep_cons_en_1.pdf

https://commission.europa.eu/system/files/2022-

•

discussions at the Council working party on consular affairs (‘COCON’) on further

facilitating the exercise of EU citizens’ right related to consular protection in third countries

in the context of a possible up-date of the Directive, between September and November

2022

100

Data on consular activities provided by the EEAS Consular Affairs Division;

A dedicated study from a contractor, which gathered and analysed the evidence mentioned

above

101

•

100

101

https://ec.europa.eu/info/files/eu-citizenship-report-2020-empowering-citizens-and-protecting-their-

rights_en.

Minutes of discussions at the Council working party on consular affairs are not publicly available. The

Czech Presidency held three COCON meetings focusing on options to further facilitate consular

protection of EU citizens in third countries based on the Commission´s report on the implementation and

application of the Directive, COM (2022) 437, see Outcome of the proceedings COCON 61 15876/22

available at:

https://data.consilium.europa.eu/doc/document/ST-15876-2022-INIT/en/pdf

and WK

17059/2022 in List of working papers (WK) distributed in the Working Party on Consular Affairs in

2022

https://data.consilium.europa.eu/doc/document/ST-5013-2023-INIT/en/pdf.

Study supporting the impact assessment,

including its

annexes.

kom (2023) 0930 - Ingen titel

Annex 2: Stakeholder consultation

This impact assessment included the following stakeholder consultations:

1. Online survey with EU delegations

The approved survey questionnaire was uploaded into EU survey by the contractor, and the

survey link was then distributed to the EU delegations by the EEAS on 19 April 2021. The

survey was live for 3 weeks, from 19 April until 10 May 2021, as the initial deadline of 3 May

2021 was extended one week upon request by a number of EU delegations.

The survey data was then reviewed in the week of 10 May 2021 and duplicate entries were

clarified with the relevant EU delegations. Overall

77 EU delegations completed the survey

(response rate of 60%).

Through this survey, EU delegations were consulted on their

assessment of the situation under the status quo (including under times of crisis, such as around

the COVID-19 outbreak), on their views regarding the functioning of the Directive, as well as

on their views regarding the policy options. The responses regarding the policy options are

reported below

102

Policy option 1: Status quo

Directive 2015/637 would remain in force and only soft measure would be introduced, like for

instance providing more effective outreach for travel advice and communication channels, or

carrying out better training and exercises for consular protection and joint consular crisis

preparedness.

What types of soft measures would improve the way in which consular assistance is

provided to unrepresented EU citizens (e.g. training for consular staff, guidelines, best

practice guides, coordination exercises)? Describe and specify if these should be targeted

at the Member States, the EU delegations or both.

The EU delegations identified a number of soft measures that would improve the way in which

consular assistance is provided to unrepresented EU citizens. One of the most common

suggestions were more training to be offered for the staff (e.g. Eswatini, Fiji), as well as clearer

guidelines and instructions by the HQ (e.g. Albania). Some EU delegations also pointed out

the fact that they require more personnel in order to properly perform their consular

responsibilities (e.g. Malaysia). This could be potentially amended if additional resources were

assigned to employ local staff and agents with consular attributions (e.g. Papua New Guinea).

Furthermore, some EU delegations mentioned the need to organise joint EU delegation –

Member State consular coordination exercises (e.g. Barbados, Mauritania). Lastly, there are

challenges in reaching out to EU citizens in countries where local conditions make it very

difficult to use modern media (e.g. Eritrea).The EU delegation in Panama proposed to create

and maintain an updated database that would contain information on the citizens present in the

country; and all contacts of relevant persons tasked with consular responsibilities from

embassies, consulates and/or concurrent embassies.

102

Note that the policy option descriptions presented below are those provided to the survey respondents,

and differ from the policy options presented in this Impact Assessment.

kom (2023) 0930 - Ingen titel

Figure 3: In your opinion, does this policy option suffice to address the issues identified? (N=77)

Answers Ratio

Yes

Not applicable / I don't know

No Answer

36.36%

20.78%

40.26%

2.6%

Only around one third of the EU delegations considered soft measures as sufficient in

addressing the identified issues; almost an equal number did not have an opinion or viewed

soft policy options as not applicable in their case. As previously, a notable number of EU

delegations claimed that the problems are due to capacity constraints which will not be solved

with soft measures (Gambia, Iceland, India, Malaysia). Furthermore, some EU delegations

highlighted the need for more consular tools under their disposal (El Salvador). The EU

delegation in Russia also emphasised the need for Member States to persuade their diplomatic

missions to make use of the Directive more actively.

Policy Option 2: Measures establishing further and tighter rules on coordination and

cooperation.

A new legal instrument would amend the existing Directive and aim to achieve the following

results:

- enhance cooperation among Member States

- strengthen the EU’s supporting role, making best use of its unique network of EU delegations.

- preparation and implementation of joint contingency plans would be further elaborated.

- the voluntary use, by Member States, of joint consular teams in crisis situations.

- clarify the possibilities under the Union Civil Protection Mechanism,

- clarify provision of travel advice to citizens and information in times of crisis.

- financial procedures overhauled, including by adding provisions on the reimbursement of

costs for the assistance provided to represented citizens in crisis situations.

Under this policy option, the scope of the Directive would be extended to also cover

represented citizens in crisis situations. This would mean that any EU citizen could turn

to any MS embassy/consulate present in a third country, in crisis situations, to seek

consular protection, even when her/his country is represented. What would be the impact

of this extended scope on your delegation, considering your current role in supporting

Member States?

The proposed policy option raised certain concerns among EU delegations surveyed. In the

first place, there was a shared view is a potential lack of resources to manage a new stream of

requests. This is especially the case of countries with a limited diplomatic presence of Member

States but with a significant population of EU citizens (e.g. Uruguay). On the other side, EU

delegations in third countries with a minor population of EU citizens (e.g. Ethiopia) or with a

large network of diplomatic missions of the Member States (e.g. the U.S.) did not consider this

policy option as providing significant change. EU delegations in countries like Papua New

kom (2023) 0930 - Ingen titel

Guinea were more supportive of this policy option, as they considered it offers better protection

for the citizens. The second potential concern is that the proposed policy option would lead to

confusion and ‘forum shopping’ (e.g. Fiji), as the EU citizens would try to choose diplomatic

representation that would offer better chances of receiving more comprehensive consular

assistance. However, the EU delegation in Gambia considered that this policy option could

offer greater visibility for the EU, provided that it will be able to meet its new responsibilities.

Figure 4: To what extent do you think the role foreseen for EU delegations as captured in the Directive is

in line with the role and activities currently carried out by your Delegation in practice in non-crisis

situations? (N=77)

Answers Ratio

To a great extent

To some extent

To a little extent

To no extent

Not applicable / I don't know

No Answer

35.06%

29.87%

15.58%

2.6%

12.99%

3.9%

The broad majority of the delegations participating from the survey agreed to a great extent or

to some extent that the role foreseen for EU delegations as captured in the Directive is in line

with the role and activities currently carried out by a delegation. Almost one fifth of delegations

consulted were of the view that this is the case to a little or no extent.

Do you think that there is a need to strengthen the mandate and further define the role

of the EU delegations in the provision of consular protection to unrepresented citizens in

the Directive? If so, in what way?

The EU delegations were mostly open to new ways to strengthen their mandate and further

define their role in the provision of consular protection to unrepresented citizens in the

Directive. Among the suggestions, it was proposed to create a position of an EU consul

recognised by the third country (e.g. Bangladesh). In view of the EU delegations, the

strengthened mandate should also help in the situation where Member States are unwilling to

comply with the provisions of the Directive. Furthermore, a clearer division of labour between

the Member States and EU delegations would benefit every party. However, as highlighted

above, there is some concern in relation to the limited resources of EU delegations for consular

assistance (e.g. Iceland, Malaysia).

Do you see a role for the EU delegation in the setting up of joint consular teams in crisis

situations? If yes, what would this role be? What would be the benefits and challenges?

If no, why not?

The broad majority of EU delegations saw benefits in establishing joint consular teams in crisis

situations. They viewed it as a chance to establish a more comprehensive assessment of the

situation, to better coordinate, and share information (e.g. Cuba, Mauritania). The EU

delegation in Russia was of the view that EU delegations can act as central information points

- gathering all relevant information from all stakeholders, streamlining and systematising it,

and then sharing it back with the Member States.

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Some EU delegations raised their reservations on a more active role in the setting up of joint

consular teams in crisis situations because of the perceived lack of resources (e.g. Malaysia).

Others considered that the present arrangements (for e.g. the joint coordination within the LCC)

offer enough coordination between the EU delegation and the Member States in crisis situations

(e.g. Egypt). EU delegations in third countries with a large presence of Member States (e.g.

Russia) did not see the need for additional coordination activities by the EU delegation.

If the Directive would foresee a role for the EU delegation to provide consular protection

to unrepresented EU citizens directly, what would this mean for your delegation in

practice? Would you need additional staff, budget, or tools? What would be the main

benefits and challenges?

The great majority of EU delegations agreed that such a role would bring enhanced visibility

to the work of the Delegations and provide unrepresented citizens with better and easier access

to consular protection.

Most EU delegations agreed that the main challenge to exercising a more active role is the lack

of resources. Some EU delegations were also concerned about potential reactions of the

Member States and meeting increased expectations of EU citizens (e.g. El Salvador, Eswatini).

With the exception of Egypt – where it is stated that nothing would really change, since almost

all Member States maintain their diplomatic presence – the consulted EU delegations agreed

that they would need additional staff, budget and tools to provide consular protection to

unrepresented EU citizens directly.

How would your answer change if the Directive would also foresee a role for the EU

delegation to provide consular protection to represented EU citizens directly in crisis

situations?

When consulted if they would be willing to provide consular protection to represented EU

citizens, EU delegations confirmed that they would need additional resources for this, including

an increased budget and more staff. Without an increase in capacity, this change would

overwhelm EU delegations. However, many delegations agreed that Member States with

diplomatic missions on the ground are better equipped to assist their citizens in crisis situations,

which would minimise the need for such change.

kom (2023) 0930 - Ingen titel

Figure 5: In which types of situations do you think it is appropriate/feasible for the EU delegation to

provide consular protection directly to unrepresented EU citizens? Please select all that apply. (N=77)

Answers Ratio

Arrest or detention

Being a victim of crime

Serious accident or serious illness

Death

Relief and repatriation in case of an emergency

Need for emergency travel documents as provided for in Decision

96/409/CFSP

None of the above

Not applicable / I don't know

No Answer

37.66%

31.17%

25.97%

46.75%

33.77%

24.68%

12.99%

2.6%

The EU delegations held divergent views on the types of situations where it is appropriate for

the Delegation to provide consular protection directly to unrepresented EU citizens. “Relief

and repatriation in case of an emergency” was the most common response, with c. 47% of

choices, followed by “arrest and detention” with c. 38% of choices. While many EU

delegations chose every possible option, they also emphasised the need for greater resources.

One quarter of the EU delegations did not see the need to provide consular protection directly

to unrepresented EU citizens.

If the EU delegations would be responsible for providing up to date information to EU

citizens (such as contacts of Member States consulates) and summarising travel advice,

what would this mean for your delegation in practice? Would you need additional staff,

budget, or tools? What would be the main benefits and challenges?

The great majority of the EU delegations consulted would need additional staff, budget and

tools if they were responsible for providing information to EU citizens and summarising travel

advice. Only 14 EU delegations stated they have adequate resources: some have mentioned

that they already do this on a routine basis (e.g. Togo, Philippines).

In terms of the benefits that this could bring, most EU delegations agreed that it would bring

new visibility to the delegations and provide unrepresented citizens with better and easier

access to consular protection.

When asked to reflect on the challenges, the broad majority of the EU delegations consulted

would have limited resources to perform these tasks and be overburdened with work. Some EU

delegations mentioned difficulties associated with communicating in certain EU languages and

the possible reactions of the Member States (e.g. India, Mongolia and Panama).

If in crisis situations, the EU delegations would be responsible to reach out and provide

emergency communication to EU citizens, what would this mean for your delegation in

practice? Would you need additional staff, budget, or tools? What would be the main

benefits and challenges?

kom (2023) 0930 - Ingen titel

If the EU delegations were responsible to reach out and provide emergency communication to

EU citizens in crisis situations, the great majority would need additional staff, budget and tools

for this task. Only 4 EU delegations stated they have adequate resources (Dominican Republic,

Egypt – if joint effort with the Member States, Mauritius, Togo).

In terms of the benefits that this could bring, most EU delegations agreed that it would bring

new visibility to the Delegations and provide unrepresented citizens with better and easier

access to consular protection.

When asked to reflect on the challenges, the broad majority of the EU delegations consulted

would have limited resources to perform these tasks and be overburdened with work. Some EU

delegations mentioned difficulties associated with communicating in certain EU languages and

the possible reactions of the Member States (e.g. Bangladesh, Congo, El Salvador).

Can any improvements be made to the development and implementation of the joint

contingency plans/joint frameworks? What additional role could the EU delegations

have?

The great majority of the EU delegations consulted welcomed potential changes to the

development and implementation of the joint contingency plans / joint frameworks with a view

to making these plans more practical, with better defined roles for EU delegations, Lead

Country, and other Member States. Some EU delegations would also seek more guidance from

HQ on how to make the joint frameworks as operational as possible (e.g. Albania). However,

there were a number of EU delegations that questioned the utility of having joint contingency

plans/joint frameworks (e.g. Bolivia, Burkina Faso, Singapore; they all were of the view that

no amount of planning can really prepare for a crisis situation) or argued that Member States

did not see the real utility of the joint contingency plans/joint frameworks in real life (e.g.

Malawi, Russia; they prefer to act

ad hoc

in a crisis situation).

Figure 6: To what extent do you see the need to clarify the possibilities under the Union Civil Protection

Mechanism? (N=77)

Answers

Ratio

To a great extent

To some extent

To a little extent

To no extent

Not applicable / I don't know

No Answer

24.68%

35.06%

6.49%

3.9%

27.27%

2.6%

The majority of the EU delegations consulted in the survey agreed to a great extent or to some

extent on the need to clarify the possibilities under the UCPM (c. 58%). In their view, both the

EU delegations and the Member States were not entirely aware of the possibilities under the

UCPM. The EU delegations mentioned that the UCPM was difficult to understand (e.g.

Mauritius), difficult to implement (e.g. Guyana) or that there was difficulty in finding reliable

information (Bolivia). Only three EU delegations claimed to have an adequate knowledge

about the UCPM (Iceland, Mozambique and Norway). One in every four delegations consulted

had no opinion or considered the matter not applicable to their specific situation.

kom (2023) 0930 - Ingen titel

Policy Option 3: Measures enabling EU delegations to provide consular protection to EU

citizens beyond crisis situations

This option would build on option 2 by introducing further elements of a harmonised approach:

- provisions for local EU delegations to directly and exclusively take care of unrepresented EU

citizens and provide them with all types of consular protection beyond crisis situations.

- Creation of a common information tool to advise EU citizens travelling to third countries,

- establish a single channel for communicating with EU citizens in third countries in times of

crisis.

If EU delegations would directly and exclusively take care of unrepresented EU citizens

in non-crisis situations and provide them with all types of consular protection, what

would this mean for your delegation in practice? Would you need additional staff, budget,

or tools? What would be the main benefits and challenges?

If the EU delegations were responsible for taking care of unrepresented EU citizens in non-

crisis situations and providing them with all types of consular protection, the great majority

would need additional staff, budget and tools for this task.

In terms of the benefits that this could bring, most EU delegations agreed that it would bring

new visibility to delegations and provide unrepresented citizens with better and easier access

to consular protection.

When asked to reflect on the challenges, the broad majority of the EU delegations consulted

would have limited resources to perform these tasks and be overburdened with work. They also

would not have the required expertise (e.g. Eswatini), would require additional office space

(e.g. Chile), would have difficulties in tracking unrepresented citizens (e.g. Ecuador), would

need to set up additional representations outside the capitals (India), and would encounter

potential obstacles from the resident state (Russia).

What do you see as the main benefits and challenges of this policy option (e. mandatory

extension of scope, mandatory use of joint consular teams, creation of Common European

Travel advice tool and crisis communication channel, direct activation of UCPM, EU

consular protection fund and/or IT system to digitalise reimbursement)?

The great majority of EU delegations agreed that this policy option would bring greater clarity,

better protection for citizens, greater efficacy, more visibility, and money savings.

However, they would not have sufficient resources to implement the measures in practice.

Furthermore, the EU delegations mentioned that Member States are better qualified for this

kind of responsibilities (Bangladesh). Also, this policy option would require overcoming

cultural challenges (Cameroon), could create confusion as to the delineation of responsibilities

between the Member States and delegations (Congo), would not be welcome by the Member

States (e.g. Dominican Republic, Eswatini), and would create new responsibilities that would

be very difficult to meet (e.g. Uzbekistan).

2. Interviews in 5 selected third countries

Table 7 below presents a detailed breakdown of the in-depth interviews carried out within the

selected third countries. As no response was received from the relevant contact within the EU

delegation in China, it was agreed with DG JUST and EEAS to replace this country with

Russia.

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Table 7: Progress interviews in selected third countries.

Stakeholder contacted/interviewed

Selected third

country

delegation

Russia

Interview

completed

representation Other (tourist

(embassy/consulate)

organisation)

expat

2 interviews completed 1 interview conducted with

(DE and FI)

Association

European

Business in Russia. Three

additional

organisations

identified and contacted, but

no response.

2 interviews completed Two

tour

organisation

(FR and DE)

identified and contacted (one

interview conducted), one

French expat organisation

contacted (no response).

1 interview completed No EU tourist identified. One

(DE), 1 declined (ES)

expat organisations contacted

(no response).

2 interviews completed (IT One EU tourist organisations

and SI)

identified, but no response.

1 interview completed No EU tourist or expat

(ES), 1 contacted but no organisations identified.

response (FR)

8 conducted

2 conducted

Ethiopia

Interview

completed

Costa Rica

Interview

completed

Interview

completed

Interview

completed

Montenegro

Fiji

TOTAL

Overall, 15 interviews were completed:

•

EU delegations:

All interviews with EU delegations were completed across the five

selected countries.

Member State representations:

Member States were suggested by the EU

delegations, in most cases due to their role as Lead State in the country.

Tourist and expat organisations:

Names of relevant organisations representing EU

tourists and expats were requested from the EU delegations and Member States

representations using the snowball technique, but this proved to be more challenging.

In some countries the stakeholders confirmed no such organisations were present (e.g.

in Costa Rica, expats rather organised themselves through a Facebook group, and

tourist organisations were mainly from the US), while in other cases the organisations

contacted did not reply. It was discussed with the EEAS to go back to the EU

delegations once more to ask about any relevant expat organisations, even if those are

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only for citizens of a specific Member State. Three further expat organisations were

contacted in Russia, Ethiopia and Costa Rica in June, but no responses were received.

3. Interviews with industry stakeholders

The objective of the interviews with industry stakeholders was to gather their views and

experiences in the types of challenges their passengers might have faced when seeking consular

protection, and feedback on their awareness and provision of information to and

communication with their passengers in the field of consular protection. During the data

collection phase, the contact details in the selected organisations representing the EU private

sector were identified by the contractor with the help of DG JUST, the EEAS and DG MOVE

with the aim to carry out up to five interviews with these industry stakeholders.

A number of organisations were contacted, but the majority was unable to answer, due to the

limited capacity they had over the period or the limited experience they had on the topic. Eight

organisations did not respond to the request for an interview. It was subsequently decided to

extend the scope of the exercise by contacting additional cruise line companies, and as a result

a round table was organised with members of the Costa Cruises Group (AIDA cruises and

Costa Cruises).

Table 8: Overview of industry stakeholders contacted and status

Type

Name

Date

contacted

22/4/21

Number

reminders sent

Status

Tourism/Travel

The European Travel Agents'

and Tour Operators' Association

(ECTAA)

European Tourism Association

(ETOA)

Declined

27/4/21

Declined

–

forwarded

the

request to ECTAA

No answer

European Travel Commission

(ETC)

World Travel and

Council (WTTC)

Aviation

International Air

Association (IATA)

Tourism

5/5/21

No answer

Transport

27/4/21

Declined

Airlines for Europe (A4E)

European

Association

Regional Airlines (ERA)

22/4/21

27/4/21

No answer

Declined

Airlines

International

Representation in Europe (AIR-

Cruise

Lines

International

Association Europe (CLIA)

27/4/21

No answer

27/4/21

No answer

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Cruise

industries

Line

Carnival

MSC

Royal Caribbean

Costa Cruise Line (AIDA cruises

and Costa Cruises).

20/5/21

06/2021

No answer

Completed

4. Interviews with EU bodies with a supporting role in consular protection

Interviews were carried out with six EU officials to directly inform:

•

the data collected through the document review on the EU network of consular

correspondents and assets

103

;

the policy objectives and policy options.

The final list of interviewees is presented in the table 9 below. In addition, the contractor

consulted extensively with DG JUST and the EEAS in relation to the feasibility of the proposed

policy objectives and policy options.

Table 9: Interviews conducted with EU level stakeholders

Proposed

interviewee

Victor Madeira

dos Santos

Role/Unit

Status

EEAS

Head of Division, Consular

Affairs

Division

EEAS.SG.CRC.2

Consular Affairs

EEAS.SG.CRC.2

Division

Completed

(22/06/2021)

Paulo Silva

Members of the Consular Task Force

set up by the EEAS as part of the

COVID pandemic

Soren Liborius

Information

and

Communication

Officer,

SG.AFFGEN.7;

formerly Deputy Head of the

Consular Affairs Division,

Emergency

Coordination

ECHO.A1

Response

Group,

Completed

(02/07/2021)

DG ECHO / European Commission’s

Emergency Response Coordination

Centre (ERCC)

Council Working Party on Consular

Affairs

Portuguese presidency

Dana Nicolau

Esther

Haddad

Completed

(23/06/2021)

Leni Rikkonen

–

Le Villain

Ricardo Cortes

Christopher

Marques

General Secretariat of the

Council, RELEX.2.C

Current chair of COCON

Completed

(23/06/2021)

Completed

(22/06/2021)

103

See Annex III of the Study.

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5. Consultation with unrepresented EU citizens that were in need of consular

protection, and with EU citizens in general

The study originally did not foresee consultations with EU citizens directly, due to the data

protection rules and other challenges foreseen in identifying and contacting such stakeholders.

However, upon request of the Steering Group, the contractor agreed to replace some of the

interviews foreseen with expat and tourist organisations to seek the opinions from EU citizens

directly. The approach proposed as part of the revised inception report, was to organise an

online focus group with up to 12 EU citizens who were stranded abroad during the COVID-19

pandemic in the five selected third countries, to discuss experiences of EU citizens related to

consular protection in times of crisis, including the challenges they faced abroad, the support

they received, the communication channels they identified and used, and any other additional

aspects linked to their stories.

As the recruitment of participants through EU delegations and Member State representations

proved to be challenging due to data protection restrictions, additional efforts to obtain this

feedback were attempted:

•

The contractor developed a

short survey on EU citizens’ experiences on consular

protection abroad,

aiming to generate real life stories which would enrich the

reporting process, as well as help identify candidates for follow-up interviews if

anything particularly relevant came up. It was live between 18 May and 18 June 2021

and was disseminated via

DG JUST’s Twitter account.

The contractor reviewed

additional sources

with potential to provide feedback from

the EU citizens’ perspective, referenced in: the inception impact assessment document

(feedback on the review of EU rules on consular protection)

104

(five responses), 2020

EU Citizenship report

105

and Flash Eurobarometer 485 on EU Citizenship and

Democracy

106

). Considering the coverage that these large-scale surveys have provided

in terms of consultation opportunities for the public, the impact assessment has a

derogation for an Open Public Consultation (‘OPC’), which is therefore not required.

•

The summary of these two points is presented below.

a) Complaints by EU citizens

EU citizens have the fundamental right to consular protection (as specified in Article 46 ECFR,

among others) and are the ultimate beneficiaries of consular protection under the Directive.

Therefore, it is important to understand how they have experienced the exercise of their right

as unrepresented citizens abroad in need of assistance. The complaints revolved mostly around

two main issues: lack of assistance in repatriation required in relation to the COVID-19

outbreak (4 complaints), and the impossibility to issue or renew a passport (3 complaints). The

complaints involved a range of Member States and third countries, but none of them was

involved more than once. The overview of the complaints is presented in the table 10 below.

104

105

106

The OPC for the Inception Impact Assessment received feedback submissions from 5 stakeholders,

which are summarised in Annex VII of the Study.

The public consultation for the 2020 EU Citizenship report, covering the period from 9 July to 1 October

2020 contained questions on consular protection and received 343 valid feedback instances.

This Flash Eurobarometer survey was carried out by the Kantar network in the 27 Member States

between 27 February and 6 March 202. It was completed by 25,563 respondents in total.

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Table 10: Overview of sample of EU citizen’s complaints reviewed

MS in

question

Country

Malaysia

Representation in

Country

Present

Complainer’s

nationality

Matter of the complaint

Impossibility to renew a passport of a

Swedish national

“Ignorance” of Spanish nationals (exchange

students) by the Embassy; presumably in

relation to repatriation

Impossibility to renew a passport and/or an

ID card of a Romanian national*

Lack of assistance in repatriation of a French

national

Delayed passport issuance for a Croatian

national’s new-born

child

Lack of assistance in consular protection in

relation to the violation of the Italian

complainer’s fundamental rights

violation

during an imprisonment

–

presumed non-

application of the Directive 2011/95

German embassy not willing to assist a

German national “whose life was in danger”;

presumed violation of Decision 1995/553 by

staff

Lack of assistance in repatriation of a Greek

national

Lack of assistance in repatriation of a Belgian

and Luxembourg national (the complaint

does not address any of the respective

embassies)

Mexico

Present

Tunisia

Present

Egypt

Present

ES, IT

Equatorial

Guinea

ES:

Present

IT: No

representation

Cambodia

Present

Ecuador

Embassy in Peru

accredited

BE:

Embassy in

Tanzania

accredited;

LU:

Honorary

Consulate

BE, LU

Mauritius

BE, LU

Source: Information provided by DG JUST

* This complaint seems to be obtained twice.

b) Inception Impact Assessment references

i. Feedback received during preparatory stages of the impact assessment

As part of the preparatory work to the impact assessment, the Commission sought feedback on

the review of EU rules for consular protections as part of its consultation process. The feedback

period was 13 January 2021 to 10 February 2021 and the responses were intended to feed into

the preparation of the impact assessment analysis. This part of the consultation received five

feedback submissions from the following stakeholders, summarised below:

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•

EU citizens (two);

Non-governmental organisations (two);

Business association (one).

Victim Support Europe (VSE) (Belgium)

made the following recommendations for the

review of Directive 2015/637 and provision of assistance to victims in consular services:

•

Strengthening co-ordination by identifying specific co-ordination action to assist

victims of crime;

Equal access to basic standards of victim assistance irrespective of which consulate or

embassy assists, by harmonisation of standards across all Member States;

Specifically recognise planning to assist

contingency plans for crisis situations;

victims

terrorism,

notably

Support exchange of best practices between Member States and with third countries

and facilitate the review and development of policies and practical measures to support

victims of terrorism.

At the Commission’s request, the contractor contacted VSE for a follow up interview, which

took place on 28 June 2021. Their additional feedback is summarised below.

Victims of crime are vulnerable by definition and the trauma experienced often warrants higher

standards of care and specific steps to be taken when providing them with assistance. The

Victims’ Rights Directive

107

establishes minimum standards on the rights, support and

protection of victims of crime and ensures that persons who have fallen victim to crime are

recognised and treated with respect. They must also receive proper protection, support and

access to justice.

VSE note that victims of crime abroad have highly variable experiences when seeking support

from representations. It appears that their trauma can be compounded when facing the

challenge to approach an Embassy or Consulate from a Member States which is not their own.

National representations abroad play an important role in the support that is provided to a

victim of crime. The victim of a crime abroad would approach the embassy / consulate often

in the immediate aftermath of the accident. It is very important that there is staff who knows

how to handle people who have been the victims of crime. The embassy / consulate should

know how:

➢

to help victim to liaise with police authorities of the third country to report the crime

and start proceedings;

to help victim find accommodation, food, flights;

to connect the victim to services in their home country;

(if an unrepresented citizen) to connect them with their national authorities as

efficiently as possible given the situation.

107

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing

minimum standards on the rights, support and protection of victims of crime, and replacing Council

Framework Decision 2001/220/JHA (OJ L 315, 14.11.2012, p. 57).

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But how well do the staff in national representations of Member States across the world deal

with supporting victims?

In this view, VSE consider that the Consular Protection Directive should at least make

reference to the special standards of care (set in the Victims’ Rights Directive) needed in the

treatment of an unrepresented citizen who has been the victim of a crime, as this would be an

opportunity to harmonise the legislations of Member States for the very specific cases of

victims of crime abroad. VSE consider that enshrining the special standards of care for the

treatment of victims of crime in legislation ensures that the regime is applied by all Member

States and not only the high-performing ones. The more detailed provisions, the better as it

would enable the enforcement of a general regime on victim protection (in the context of

consular assistance to unrepresented citizens).

For instance, this could be done in a recital to the Consular Protection Directive, but better in

the Article on the types of assistance offered (currently Article 9). It is arguable whether the

Consular Protection Directive is an appropriate vehicle for such regime and whether it should

include detailed provisions for such specific instances. However, the basic requirements of the

Victims’ Rights Directive for the safeguarding of victims of crime seeking consular assistance

advocated by VSE would be helpful. These could include, but would not be limited to, these

categories of the Victims’ Rights Directive as can be adapted for the Consular Protection

Directive context:

respectful treatment and recognition as victims;

protection from intimidation, retaliation and further harm by the accused or suspected;

support, including immediate assistance following a crime, physical and psychological

assistance and practical assistance;

access to justice to ensure that victims are aware of their rights and understand them,

and are able to participate in proceedings;

requirement for JFWs to include processes and procedures which are victim-centric.

The

German Federal Association ANUAS e.V.,

also a victim support organisation, called for

access to uncomplicated consular support for relatives of missing or dead persons, as well as

advice and help in the respective country which should not be conditional to the involvement

of lawyers and victim support organisations. Their contribution was developed in connection

with a number of cases of missing or dead persons in Greece. The same issue is relayed in one

of the EU citizens’ contributions. The other EU citizen welcomes the initiative.

Finally, a business association from Mexico (JFMO

SERVICIOS EN INTERMEDIACIÓN

PÚBLICA)

noted that guidance on consular protection should not be limited to legal guidance

for criminal acts, but also cover commercial, educational, labour and social aspect, and

reminded that few countries and consular services comply with legal guidance and assistance

for their citizens abroad.

ii. 2020 EU Citizenship report

The public consultation for the 2020 EU Citizenship Report

Empowering citizens and

protecting their rights

report took place between 9 July 2020 – 1 October 2020 and contained

questions on consular protection. The 2020 EU Citizenship Report recalls that the right to equal

access to consular protection is one of the specific rights that the Treaties grant to EU citizens

and is a tangible example of European solidarity. The Report references the unprecedented

repatriation effort, in which Member States, supported by the EC and the EEAS, managed,

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between February and May 2020, to bring home over half a million European citizens affected

by COVID-19 travel restrictions across the world. The report highlights that when organising

the repatriation of EU citizens stranded abroad due to the COVID-19 outbreak, Member States

rightly did not treat unrepresented and represented EU citizens differently. Where repatriation

capacities were available, all European citizens were assisted. Finally, the Report notes that the

COVID-19 crisis has demonstrated the need to further strengthen EU solidarity to better protect

EU citizens abroad, in particular during crises.

The 2020 EU Citizenship Report estimated that, in 2020, 76% of EU citizens are aware of the

right to seek assistance from other Member States, in case their own does not have an embassy

or consulate in a third country.

iii. Flash Eurobarometer 485 on EU Citizenship and Democracy

The Commission published a survey on a range of issues associated with EU citizenship and

democracy, for which fieldwork was done in 27 Member States in February/March 2020. The

survey also explored Europeans’ understanding of the rights conferred by EU citizenship,

including to consular support while staying in a non-EU country.

Overall, more than nine in 10 respondents agree that, if they were in a country outside the EU

where their Member State of nationality was not represented, they would like to seek support

from an EU delegation instead. On an individual country level, more than eight in 10

respondents in 25 Member States would seek such support if in need. Lower numbers (though

still over three quarters of respondents in these countries) would be interested in doing so in

Estonia (77%) and Hungary (78%). Most likely to seek such support were respondents from

Portugal, Spain and Cyprus (over 96%).

iv. Survey on EU citizens’ experiences on consular protection

The contractor developed a

short survey on EU citizens’ experiences on consular protection

abroad,

aiming to generate real life stories which would enrich the reporting process, as well

as help identify candidates for follow-up interviews if anything particularly relevant comes up.

It was live from 18 May to 2 July 2021 and was disseminated via

DG JUST’s Twitter account

and a selection of EU delegations

(see further explained in section 1.1).

Seven EU citizens replied to the survey and were originating from five Member States (Czech

Republic, Greece, Hungary and Italy) and one third country (Venezuela) (one participant did

not provide their nationality). Five of the respondents sought assistance in Costa Rica and two

– in Venezuela. All seven instances concerned assistance for repatriation during the COVID-

19 crisis in 2020.

The main point of contact for respondents was the consulate or embassy of their Member State

of nationality, located in the third country where consular assistance was sought (chosen by

three survey participants each). The next popular choice was the EU delegation in the country

in question. Only one respondent mentioned the representation of another Member State in the

country in question. The respondent who selected “Other” initially contacted the government

of their Member State of official residence, as they were a national of the third country they

wanted to leave. In the end, four respondents stated that they received existence from the EU

delegation in the third country, and three from the representation of another Member State in

the country where they were.

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Most of the respondents (four) received help in a matter of days, one in a few hours and one –

a few weeks. The final respondent declined the repatriation flight as they were waiting for a

direct flight to Europe which took 1.5 months. All but one respondent considered this delay as

reasonable. This respondent was from Italy and reported a very negative experience with their

consulate in Venezuela, tempered by the can-do attitude of the local EU delegation though the

latter did not resolve their situation. Another respondent received a response on their request

for consular assistance in a few days, but not solution and ended up waiting four months for a

flight to Europe from Costa Rica (Hungarian national who contacted their national

representation in a neighbouring country and the local EU delegation).

Two others responded noted very uplifting experiences with the representation of a Member

State other than their own. For one, the contrast with the unhelpful attitude of their own

representation in a neighbouring country was striking.

6. Consultation of Member States

Through the use of a comprehensive questionnaire complemented by interviews conducted by

the contractor, quantitative data was collected on Member States’ national legislation and

procedures; on their consular networks and assets; on the consular protection they provided to

(un)represented citizens; and on their travel and communication channels. Additionally,

Member States were also asked to provide qualitative feedback, through follow-up interviews,

on the application of the Directive and the problem definition; on the proposed policy options;

and on the COVID-19 pandemic lessons learnt. The output is summarized in Annexes IV and

VI of the study.

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Annex 3: Who is affected and how?

Practical implications of the initiative

Non-crisis situations:

First, a clearer definition of unrepresented EU citizens and the situation

in which a Member State mission/consulate should not be considered effectively in a position

to provide assistance

(Option 1b)

would better define the scope of the Directive and ensure

that

EU citizens

in need are correctly assisted. This would be strengthened by the fact that

unrepresented EU citizens

would be better informed from the beginning, thanks to the

improved quality of the information and communication channels, about the fact of being

unrepresented when travelling to a third country

(Option 3a).

They could also count on clearer

information on practical and bilateral arrangements between Member States and the function

of honorary consuls, which would prevent them to lose time in searching for the correct

authority that could help them and, at worst, avoid being redirected by different authorities

(even in justified cases)

(Option 3a). Member States,

on the other hand, would have to deal

with fewer out-of-scope requests for assistance and they would have the necessary legal

certainty to ask support from

EU delegations (Option 2d)

in case of need.

Industrial sectors

of tourism and transport would benefit from better quality of the information as well. The

clarifications on personal data protection rules would ensure smooth communication among

Member States, EU delegations and other actors. All this would improve the means and quality

of assistance to

unrepresented EU citizens.

EU citizens would have the option to pay

immediately the assistance received (to Member States or to the EU delegation in case the

support was requested by a Member State) or to pay it, in a timely manner, upon a

reimbursement request from their national authorities (Option

4b).

Should a EU citizen

consider that he or she was wrongly denied the assistance requested, he/she would have the

means to complain to the competent authorities and seek

legal redress

where necessary.

Crisis preparedness phase:

Thanks to their leading role in local cooperation meetings,

delegations

would be able to foster cooperation and coordination actions and improve crisis

preparedness among

Member States (Option 2b).

In the long term, this would result in better

planning and best practices shared across the world under coordination of

EEAS.

The

integration of Member States duties and tasks into the JFW would be effective in providing

increased coherence across the world and would allocate the different tasks according to

capacity of Member States

(Option 2c).

As JFWs would be updated at least annually, they

would maintain their relevance.

Member States,

included unrepresented Member States,

would be assigned tasks corresponding better to their actual capacity on the ground and

possible over-reliance on a lead state would cease. In the meantime, a larger number of

citizens

would be aware of the risks incurred by travelling to a zone potentially at risk of a crisis of any

nature (natural disasters or political unrest for instance).

EU citizens

would also gain increased

awareness of the possibility to register to be contacted by their Member State in case of a crisis

(Option

3d).

Crisis situations:

Building on the preparation explained above, local cooperation meetings

would be more effective through up-to-date procedures and sharing of information between

Member States

and unrepresented Member States and

EU delegations

would be smoother

(Option

2b and 2d).

Therefore, more coherent travel advice would be shared and updated

frequently, also impacting positively the

industrial sectors

of tourism and transport linked to

the provision of information

(Option 3a).

As the JFW would be up-to-date and tasks among

Member States would be distributed efficiently, no

Member State

would be overburdened

with requests for assistance, making crisis response more effective (Option

2c).

A clearer

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definition of “being unrepresented” would also contribute to this increased efficiency in crisis

situations

(Option 1b).

As more citizens would be informed about the importance of

registering

(Option 3d),

it would be easier to reach out to them and organise consular

assistance, also thanks to the reinforced legal basis for the exchange of their personal data

among all actors involved.

EU delegations

would see their coordinated role reinforced and

have a solid legal basis to support Member States in providing consular assistance to

citizens

(Option

2d). EU citizens

would receive better consular assistance in crisis situations.

Table 11 below summarize the types of stakeholders identified above as being affected by the

preferred combination of options.

Table 11: Assessment of the stakeholders affected by the preferred combination of options identified

delegat

ions

Other EU

stakehold

ers

(DG

JUST,

EEAS, DG

ECHO)

EU27

National

Authoriti

es (MFA

and

diplomat

represen

tations)

Unrepresented

EU citizens &

their

non-EU

family members

Industry

(tourist,

travel

and

transpo

organis

ations)

Option 1b) Legal

amendments to clarify the

definition of what it means

for an EU citizen to be

unrepresented and in

particular the types of

situations in which a

Member State

representation should not

be considered “effectively

in a position to provide

consular protection”.

Option

2b)

Local

coordination meetings are

chaired

the

delegations

Option 2c) Review of the

concept of Lead State and

definition of division of

tasks

under

JFW,

formalization of JFWs and

JCTs

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Option 2d) Strengthen the

supporting role of EU

delegations and align it

with the EEAS Decision

Option 3a) a requirement

108

for Member States to

provide the Commission

and

the EEAS with

information in a certain

timeframe and in machine

readable

format

honorary consuls functions

and on bilateral and

practical arrangements in

place

Option 3d) Member States

required

promote

measures

inform

consular authorities and/or

record citizens’

presence

abroad

Option

4b)

legal

amendments adding the

option for unrepresented

citizens to pay the assisting

Member State or the EU

delegation. Establish a

timeframe

for

reimbursement procedures

and clarify application to

represented citizens

Updated of the rules on

personal data protection

Measures on legal redress

109

XXX

108

109

Article 11 of the Directive specifies that Union Delegations shall also make general information available

about the assistance that unrepresented citizens could be entitled to, particularly about agreed practical

arrangements if applicable.

Article 7(2) states that Member States shall notify the Commission and the EEAS of practical

arrangements, which shall be publicised by the Union and Member States to ensure transparency for

unrepresented citizens.

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Given that the Directive does not directly cover commercial undertakings, there is no impact

in relation to competitiveness. The impacts on such entities, mentioned in the table above, is

limited to efforts of Member States to increase the awareness of the right to consular protection

by cooperating with airlines, tourist, travel and transport organisations.

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Summary of benefits and costs

I. Overview of Benefits (total for all provisions)

–

Preferred Option

Description

Increased legal

certainty

Amount

Direct benefits

Legal certainty for actions of Member States and EU

delegations and improves overall effectiveness on

the provision of consular assistance to

unrepresented EU citizens

Better protection arising from more frequent and

systematic EU delegations’

support to Member

States both in crisis and non-crisis situations

Better protection from further development,

effectiveness and innovation in local coordination in

particular in crisis situations

More effective, consistent and streamlined

communication with EU citizens

Reduced scope for litigation due to clearer and more

adequate rules

Applies to unrepresented EU

citizens in third countries,

Member States and EU

delegations

The current legal uncertainty and

administrative burden may cause

emotional distress and does

hinder the provision of consular

assistance to EU citizens when

travelling to or residing in a third

country, and especially in a crisis

situation. The amendments

stand to tackle the existing

problems by providing a more

complete, clearer and sounder

legal framework, thereby

improving the exercise by EU

citizens of their right to consular

protection

Comments

Increased

protection of

the

fundamental

rights

Time and

burden savings

Strengthened and more effective right to consular

Applies to unrepresented EU

protection

citizens in third countries

Higher level of compliance with the right to personal

data protection

Effective access to the right to an effective remedy

and to a fair trial

Less time and effort needed to be recognised as

unrepresented.

Improved

EU citizens’

access to information on who

can be assisted

Smoother and quicker financial payments

Easier registrations before travelling or when

residing abroad

Better and more efficient provision of EU citizens

location information during crisis situations

Applies to unrepresented EU

citizens in third countries

Efficiencies for

administrations

Better service provided to unrepresented EU citizens

Member States’ administrations

in assessing their situation and in deciding if the

and EU delegations

person should be assisted or not.

Better distribution of the burden of assistance

among Member States and between Member States

and EU delegations

Smoother and more effective coordination and

cooperation procedures

Improved registration procedures will result in

efficiencies for administrations when contacting

citizens in case of crisis situations

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Easier recovery of costs incurred for assisting

Member States

More coordinated and consistent travel advice

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II. Overview of costs

–

Preferred option

Citizens

One-off Recurrent

Option 1b) Legal

amendments to

clarify the

definition of what

it means for an EU

citizen to be

unrepresented and

in particular the

types of situations

in which a Member

State

representation

should not be

considered

“effectively in a

position to provide

consular

protection”.

Direct adjustment

costs

Time dedicated to the

additional requests for

support by Member States

for the assistance of a

potential increase of

unrepresented EU citizens.

EU institutions/EU delegations

One-off

Recurrent

One-off

For Member States

administration to

learn and apply the

new definition.

National Administrations

Recurrent

Some costs related to regular

training of consular staff.

Direct

administrative costs

Some costs for the increased

requests by unrepresented EU

citizens. It is assumed that Member

States with larger consular

networks will be impacted more by

these requests.

Direct regulatory

fees and charges

Direct enforcement

costs

Indirect costs

Some additional costs

for EU delegations to

organise coordination of

LCCs and their

standardisation.

Very limited costs for EU

delegations linked to

chairing those meetings and

coordinate. As they already

participate to those

meeting on a regular basis,

Direct adjustment

costs

Local coordination

meetings are

chaired by the EU

delegations

Direct

administrative costs

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the additional costs should

be limited.

Direct regulatory

fees and charges

Direct enforcement

costs

Indirect costs

Some costs for EU

delegations for the

reorganisation of tasks

in relation to

preparation and update

of JFWs, involvement of

unrepresented Member

States, circulation of

agendas and minutes.

Some additional costs for

the EEAS Consular Affairs

Division from the

mandatory annual update

of all JFWs.

Some costs related

to the application of

these revised

concepts and

procedures.

Direct adjustment

costs

Review of the

concept of Lead

State and

definition of

division of tasks

under JFW,

formalization of

JFWs and JCTs

Direct

administrative costs

Limited costs for some Member

States due to the assignment of

new tasks under JFWs.

Direct regulatory

fees and charges

Direct enforcement

costs

Indirect costs

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Direct adjustment

costs

Strengthen the

supporting role of Direct

EU delegations and administrative costs

align it with the

EEAS Decision

5 cost-free Seconded

National Experts for an

average estimation of costs

of 145 000 euros for all 5

SNEs per year for operating

expenditure and 80 000 for

mission and security.

For some Member States salary

costs of a Seconded National Expert

(SNE) to work in EU delegations (5

in total) 1 cost-free SNE salary could

range from 980 EUR net per month,

for a civil servant in the first grade

in Bulgaria to 8 177.83 EUR gross

monthly salary for a high-raking

diplomat in Finland.

Direct regulatory

fees and charges

Direct enforcement

costs

Indirect costs

A requirement for

Member States to

provide the

Commission and

the EEAS with

information in a

certain timeframe

and in machine

readable format on

honorary consuls

functions and on

bilateral and

Marginal costs for

adjusting the

information into the

machine-readable

format.

We estimate that

updating the Europa

website would require

one FTE person for

three months at the

beginning. Assuming a

grade AD7 Commission

One month per year

following the first year for

updating the Europa

website. Assuming a grade

AD7 Commission official

would carry out the

updates (average cost of

Direct adjustment

costs

Direct

administrative costs

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practical

arrangements in

place

official would carry out

the updates (average

cost of the EU official,

171 000 EUR per year),

the cost for the first

year would be EUR

42 750.

Due to the stable

staffing principle, this

post will be found

through internal

redeployment.

Direct regulatory

fees and charges

Direct enforcement

costs

Indirect costs

Direct adjustment

costs

the EU official, which is

171.000 EUR per year), it

would cost EUR 14 250 per

year thereafter.

Member States

required to

promote measures

Direct

to inform consular

administrative costs

authorities and/or

record citizens’

presence abroad

Additional costs to improve the

effectiveness of their registration

systems by rising their citizens’

awareness of the importance to

abroad by means of information

campaigns at airports or by

cooperating with

insurance/travel/telecom

companies.

Direct regulatory

fees and charges

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Direct enforcement

costs

Indirect costs

Some initial costs for

Member States to

adjust their

procedures. 2

Member States

indicated that they

have to change their

legislation in order

to allow request of

reimbursement from

citizens directly and

might therefore

incur in more

adjustment costs.

Legal amendments

adding the option

for unrepresented

citizens to pay the

assisting Member

State or the EU

delegation.

Establish a

timeframe for

reimbursement

procedures and

clarify application

to represented

citizens

Direct adjustment

costs

Direct

administrative costs

Direct regulatory

fees and charges

Direct enforcement

costs

Indirect costs

Updated personal

data protection

rules

Direct adjustment

costs

Some initial costs for EU

delegations to adjust

their procedures.

Some initial costs for

Member States to

adjust their

procedures. Some

Member States

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might have to adjust

their legislation

Direct administrative

costs

Direct regulatory

fees and charges

Direct enforcement

costs

Indirect costs

Legal redress

Direct adjustment

costs

Some initial costs for

Member States to

adjust their

procedures. Some

Member States

might have to adjust

their legislation

Direct administrative

costs

Direct regulatory

fees and charges

Direct enforcement

costs

Indirect costs

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III. Application of the ‘one in, one out’ approach –

Preferred option(s)

One-off

[M€]

(annualised total net present

value over the relevant

period)

Recurrent

(nominal values per year)

Total

Businesses

New administrative

burdens (INs)

Removed administrative

burdens (OUTs)

Net administrative

burdens*

Adjustment costs**

Citizens

New administrative

burdens (INs)

Removed administrative

burdens (OUTs)

Net administrative

burdens*

Adjustment costs**

Total administrative

burdens***

None

(*) Net administrative burdens = INs

–

OUTs;

(**) Adjustment costs falling under the scope of the OIOO approach are the same as reported in Table 2 above. Non-

annualised values;

(***) Total administrative burdens = Net administrative burdens for businesses + net administrative burdens for

citizens.

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Sustainable Development Goals – Preferred combination of options

Table 12: Overview of relevant Sustainable Development Goals – Preferred combination of Options

Relevant SDG

SDG no

–

5 Achieve gender equality and

empower all women and girls

Expected progress towards the Goal

Equal

consular

protection

for

unrepresented EU citizens who are

women and better consular protection

in case of unrepresented EU citizens

who are part of vulnerable groups.

SDG no. 10

–

Reduce inequality between and Enhance the EU fundamental right to

within countries

‘diplomatic and consular protection’

under Article 46 of the Charter, by

clarifying the content of this right and by

In particular target 3: Ensure equal opportunity facilitating

the

cooperation

and

and reduce inequalities of outcome, including coordination procedures necessary for its

by eliminating discriminatory laws, policies and application.

practices

and

promoting

appropriate

Ensure application of the right of non-

legislation, policies and action in this regard.

discrimination on the basis of nationality

under Article 21 of the Charter

Impact on fundamental rights – Preferred combinations of options

EU citizens’ rights confer a clear individual entitlement for unrepresented citizens to be treated

by the consular and diplomatic authorities of another Member State as if they were their own

nationals, when in the territory of a third country.

One of the main objectives of the revision is to ensure a higher level of protection of citizens’

fundamental right to consular protection and promote EU values such as non-discrimination

and mutual solidarity by fostering the implementation of EU citizenship as a concrete reality

for unrepresented EU citizens.

The preferred combination of option enhances the EU fundamental right to ‘diplomatic and

consular protection’ under Article 46 of the Charter, by clarifying the content of this right and

by facilitating the cooperation and coordination procedures necessary for its application.

The measures of cooperation and coordination protects the EU citizens' right to good

administration by the institutions and bodies of the EU (Article 41 of the Charter). Clearer

responsibilities and improved burden-sharing in crisis situations ensure non-discrimination

also in times of crisis when fundamental rights are a sensitive issue.

Measures aimed to facilitate the exchange of personal data of unrepresented EU citizens

between Member States, EU delegations, third countries and international organisations,

contribute to implement Article 8 of the EU Charter of Fundamental Rights on the right to

protection of personal data.

The measures also reinforce the right to an effective remedy and to a fair trial (Article 47 of

the Charter) and contribute to the implementation of the principles of non-discrimination, life,

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integrity of the person and presumption of innocence and right of defence (Articles 2, 3, 21 and

48 of the Charter).

Preferred options

Option 1b) Legal amendments to clarify

the definition of what it means for an EU

citizen to be unrepresented and in

particular the types of situations in which a

representation should not be considered

“effectively

in a position to provide

consular protection”.

Impact on Fundamental rights

Direct positive impact on the effective

application of Article 46 of the Charter and

on the right of non-discrimination on the

basis of nationality under Article 21 of the

Charter.

providing

better

service

unrepresented EU citizens, this measure has

also a positive impact on application of

Article 41 of the Charter EU citizens' right to

good administration.

Smoother cooperation among actors

involved in the provision of consular

assistance for unrepresented EU citizens will

facilitate procedures necessary for its

effective application and therefore

contributing to enhance the right to

consular protection under Article 46 of the

Charter.

Option 2b) Local coordination meetings are

chaired by the EU delegations

Option 2c) Review of the concept of Lead

State and definition of division of tasks

under JFW, formalization of JFWs and JCTs

Option 2d) Strengthen the supporting role

of EU delegations and align it with the EEAS

Decision

As the measures concern better procedures

among Member States and the EU

delegations, they contribute directly to a

positive impact on EU citizens' right to good

administration (Article 41).

Option 3a) a requirement for Member

States to provide the Commission and the

EEAS with information in a certain

timeframe and in machine readable format

By providing better service with regard to

information provision to unrepresented EU

citizens, this measure has a positive impact

on EU citizens' right to good administration

(Article 41).

Option 3d) Member States are required to

promote measures to inform on/record

A better sharing of information among

citizens

Member States and EU delegations of the

personal data of unrepresented EU citizens,

ensure their protection in line with

applicable rules (Article 8 of the Charter).

Option

4b)

legal

amendments

Although the measure does not have a

unrepresented citizens to pay the assisting

major impact on fundamental rights, it

Member State. Establish a timeframe for

could contribute to EU citizens' right to good

reimbursement procedures and clarify

administration by improving the financial

application to represented citizens

reimbursements.

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Updated personal data protection rules

Measures on legal redress

This measure facilitates the exchange of

personal data of unrepresented EU citizens

between Member States, EU delegations,

third

countries

and

international

organisations, thereby contributing to

applying Article 8 of the Charter on the right

to protection of personal data.

The measure reinforces the right to an

effective remedy and to a fair trial (Article

47 of the Charter) and contributes to the

implementation of the principles of non-

discrimination, life, integrity of the person

and presumption of innocence and right of

defence (Articles 2, 3, 21 and 48 of the

Charter).

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Annex 4: Analytical methods

1. Analytical framework

The impact assessment is prepared on the basis of a supporting study, intensive direct

stakeholder consultation, and the relevant literature and EU publications (reports,

Eurobarometers, studies and policy documents).

2. Methodology used to collect data

Data collection at

Mapping of Member States’ national

legislation and procedures

Member State level

implementing the Directive

Mapping of Member States’ consular networks and consular assets

Collection of quantitative data on the number of unrepresented

citizens and the number and type of consular protection provided

to EU citizens abroad

Mapping of Member States’ travel and communication channels

Validation with national authorities: prefilled questionnaire and

interviews

Data collection at Member State level was carried out by a team of national researchers between

March and May 2021. Through the use of a comprehensive questionnaire, quantitative data

was collected on Member States’ national legislation and procedures; on their consular

networks and assets; on the consular protection they provided to (un)represented citizens; and

on their travel and communication channels. Additionally, Member States were also asked to

provide qualitative feedback on the application of the Directive and the problem definition; on

the proposed policy options; and on the COVID-19 pandemic lessons learnt.

To collect this information, a questionnaire was developed and prefilled by the national

researchers on the basis of desk research and existing information shared by DG JUST and the

EEAS. Namely:

•

Member States’ replies to the questionnaire developed by the Expert Group Meeting

on Consular Protection of 8 December 2020/ Discussion Note on the implementation

of Council Directive (EU) 2015/637, Chapter 1: General Provisions and Scope and

Chapter 2: Coordination and cooperation measures;

2021 CoOL data on “Member States’ presence in third countries” collected and

provided by EEAS based on information received from EU delegations and Member

States;

Member States’ replies to DG JUST’s questionnaires reporting on the implementation

of Directive 2015/637;

Member States’ replies to the questionnaire included in the EU Consular work during

COVID-19 crisis – Discussion Paper, Consular Affairs Working Party (COCON), 23

June 2020.

•

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On 30 March 2021, the national researchers sent the pre-filled questionnaire to the national

authorities and a Q&A session was held to address any questions they might have. Once

completed and returned by the national authorities, the national researchers reviewed the

questionnaires and scheduled interviews with the national authorities to discuss any missing

information and to elaborate on the answers provided by the national authorities. These

interviews were conducted between 23 April and 7 May 2021.

Between 7 May and 21 May 2021, the completed questionnaires were reviewed by the study

team. Errors, missing data, and inconsistencies were flagged and followed up with the national

researchers and when relevant, with the national authorities. The data was then extracted from

the questionnaires and compiled into one Excel sheet, to allow for the analysis by the study

team to inform the second interim report.

Response rate and data availability / limitations

In total, twenty-six Member States completed the questionnaire

110

, with only Greece declining

to participate. As Greece did not provide input to the survey launched by DG JUST nor on the

questions concerning the implementation of the Detective (with the exception of data for 2020),

the information on Greece is limited as reflected in this report.

The following section highlights the general limitation of the quantitative and qualitative data

collected:

Quantitative data

Overall, the quantitative data provided by the 26 Member States was very limited, as this

information was not collected in a systematic manner by most Member States and had to be

compiled specifically for the purpose of the study by contacting the Member States’ individual

representations in the third countries (which was challenging for Member States given the time

constraints). For instance, only thirteen Member States provided data on their consular budget

in 2018, 2019 and 2020, seven Member States on their number of consular staff in 2018, 2019

and 2020, and eight Member States on their number of diplomatic staff in 2018, 2019 and 2020.

Additionally, the information provided by the Member States was in most cases not

comparable. For instance, among the 13 Member States that provided data on their consular

budget, the amount varied from EUR 3 000 to EUR 170 million as the types of expenses

included when calculating the budget (i.e. staff cost, facilities cost, etc.) varied between

Member States. Similarly, the type of staff that fell under the categories “diplomatic staff” and

“consular staff” varied from one Member State to the next due to overlaps between both

categories and diverging Member States’ interpretations. Lastly, only ten Member States

provided data on the total number of cases of assistance provided by Member States in third

countries and only 16 provided data on the number of cases of assistance provided to

unrepresented EU citizens in third countries.

Interviews conducted with the national authorities revealed that most Member States could not

provide the data requested as they did not collect these statistics. The reliability of this data is

further brought into question due to cases of double reporting (i.e. Member States providing

the same data for the total number of cases and the total number of unrepresented cases) and

instances whereby Member States reported a higher number of unrepresented citizens assisted

than the total number of citizens assisted (i.e. a mathematical impossibility). However,

mitigating actions were taken to caveat and address these limitations. For instance, all

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BE provided their input to the open questions through the interview, rather than through completing the

questionnaire.

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inconsistent or unexpected data was checked with the national authorities and mistakes and

outliers were disregarded. Additionally, estimations such as on the number of unrepresented

citizens, were calculated through a process of triangulation of data from both internal and

external sources, and ranges between conservative estimate and worse-case scenario were

calculated to allow for a margin of error.

Qualitative data

Regarding the mapping of Member States’ national legislation and procedures implementing

the Directive, all Member States provided their transposition measures in the national language.

However, seven Member states (BE, CY, DE, FR, IT, LU and RO) did not provide the English

translation of these transposition measures and 13 Member States did not provide the

explanatory documents (AT, BE, CY, DE, DK, FR, IT, LT, LU, MT, RO, SE, and SL).

Nonetheless, the validation and filling of the questionnaire by the national authorities together

with the interviews conducted with them were sufficient to address these limitations and to

conduct the legal mapping. The documents provided by DG JUST and EEAS were sufficient

to map Member States’ existing bilateral agreements on consular protection (permanent and

practical arrangements). Similarly, Member States’ replies to the questionnaire developed by

the Expert Group Meeting on Consular Protection of 8 December 2020 and the Discussion

Note on the implementation of Council Directive (EU) 2015/637 were sufficient to collect

Member States feedback on the COVID-19 lessons learnt. Similar to the legal mapping,

instances of missing data were addressed to a satisfactory extent during the validation of the

questionnaires and the interviews conducted with the national authorities.

Overall, while all 26 Member States provided answers to the questions on the application of

the Directive, the problem definition and on the proposed policy options, the feedback received

to the open questions was in most cases limited to short answers and in a large number of cases

left blank or answered by yes/no. Answers to the policy options were particularly limited with

several Member States highlighting their reluctance to provide feedback on what they

considered to be a political topic. However, during the interviews the national authorities were

more open to providing feedback as interviews provided the opportunity to provide further

context and nuance to their replies and the oral format of the interview was perceived as less

formal and committing than written responses. The study team was thus able to caveat the

limitation of the written responses.

Desk research

EU level desk research

(EU

legislation, EU citizens’ complaints,

mapping

of EU consular network and assets)

Desk research for a selection of third countries

The desk research involved a review of:

EU-level legal and policy documents to inform the political and legal context, the

intervention logic of the current Directive, the analysis on the EU legal basis for the new

initiative, as well as the mapping of the EU consular network and assets;

Data on the countries covered by the EU delegations, as well as the financial and human

resources of the selected EU bodies to inform the mapping of the EU consular network

and assets;

Joint Frameworks in the four out of the five selected third countries (Fiji confirmed no

such JFW is in place);

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Available documentation which reports feedback collected from EU citizens directly on

their right to consular protection, including a sample of citizen’s complaints received by

DG JUST, the responses provided by organisations in response to the Inception Impact

Assessment, the EU citizenship report and the Flash Eurobarometer 485 on EU

Citizenship and Democracy.

Stakeholder

consultation

Survey with EU delegations

Interview Programme

The study included the following stakeholder consultations:

•

Online survey with EU delegations;

Interviews in selected 5 countries;

Interviews with industry stakeholders;

Interviews with EU bodies with a supporting role in consular protection;

Consultation with unrepresented EU citizens that were in need of consular protection.

The stakeholder consultations are outlined in Annex 2.

3. Methodology for the calculation of costs

A detailed assessment of the costs involved – in terms of monetary cost, human resources, and

organisational effort – requires a level of data that is not currently available to this impact

assessment.

The below cost assessments therefore rely on a number of assumptions to provide a first

indication of the range of costs that may be required. As the exact design and implementation

of the measures will vary, the assessment seeks to present a range of costs, depending on how

extensive the ultimate formulation of a measure is. All costs are presented as possible excess

cost to the current expenditure – e.g. if a measure envisions four additional meetings, this is to

be understood as four meetings in additions to those already occurring currently.

Many of the implementation costs either entail human resource costs at the EU level

(Commission, EEAS) and the Member State level (competent authorities, practitioners). Costs

associated with administrative burden have been estimated using the Commission’s Standard

Cost Model (SCM), outlined in the EU Better Regulation Guidelines.

Costs are estimated based on the amount of work required for each specific objective under

each option, in light for instance of the cost of existing comparable work. Due consideration is

taken regarding costs that would be one-off, recurring or absorbed in the existing work. The

below table shows the costs reported by the EU and its network of delegations, on the financial

and human resources dedicated to consular protection.

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Table 13: Cost of consular protection incurred by key EU institutional actors

Institutional actor Annual budgets dedicated to consular Staff involved in consular

consular protection (2020)

affairs (2020)

protection

DG JUST

Democracy, Union

Citizenship and

Free Movement

unit (JUST.C.4)

Consular protection website - yearly budget 1 FTE

around

EUR

78-79 000

(operation,

maintenance and development).

Ad-hoc costs such as in for 2022

–

Support

the development of the EU Emergency

Travel Document technical specifications

–

EUR 200 000

Resources for actions in the area of consular

protection (conferences/workshops, studies

and communication campaigns)

–

ranging

from EUR 50-100 000.

EEAS Consular

Affairs Division

–

EEAS CRC.2

No data available

11 positions including 2

Seconded National Experts

from 1 August 2021

EU delegations

No data available. EU delegations

confirmed in the survey that no specific

budgets exist to support the coordination

of consular protection in crisis situations.

Only very few EU delegations dedicated

specific parts of their budget to consular

protection during the COVID-19 pandemic.

135 Consular Correspondents,

which are also DG ECHO-ERCC

EUCPM Focal points, and 133

Backup Consular

Correspondents.

This varies per EU delegation.

Most consular correspondents

would spend c. 20% of their

time on consular matters

(except in times of crisis. At

the peak of the COVID-19

crisis, some EU delegations

reported 3-5, or even more

than 5 FTEs, spent exclusively

on the provision of consular

assistance).

The first assumption when evaluating costs based on additional work for EU officials (e.g.

Commission official updating Europa website, etc.) is that they would be of grade AD7. In line

with relevant rules and internal guidance, the average annual cost of the EU official equals

EUR 171 000. The amount of work is calculated in FTE. As the principle of stable staffing

continues to apply in the 2021-2027 Multiannual Financial Framework, such a post would have

to be found through internal redeployment.

The second assumption when evaluating costs based on additional work for EU delegations is

that the additional staff are composed by cost-free SNEs, as they would bring the necessary

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consular expertise to EU delegations and expenses have only marginal impact on Heading 7 of

2021-2027 Multiannual Financial Framework. This is in line thus with the requirements of the

2021-2027 Multiannual Financial Framework.

The costs for cost-free SNEs within the EEAS budget cover operating expenditure, such as

building and IT related costs, missions (EUR 5 000 per SNE) and security-related expenditure

(EUR 2 500 per SNE). Applying EEAS standard budget methodology, this thus amounts to

EUR 7 500 annually per cost-free SNE.

Calculation of costs of national salaries of SNEs in EU delegations.

The first factor to take into account for the calculations of the national salaries of SNEs who

could be deployed in EU delegations is the

profile of the candidates.

In this regard, SNEs usually belong to foreign services and diplomatic corps, but they can also

be civil servants in other departments of national administrations.

In terms of calculation of costs, this already makes a significant difference as foreign services

and diplomatic corps, depending on the Member State, can have a different salary scale to those

belonging to civil servants in national administration.

Data on the average remuneration of national civil servants in central public is available in

Eurostat

111

: average net remuneration per month in 2022 range from EUR 980 in Bulgaria to

EUR 6 057 in Luxembourg.

Data on the remuneration of civil servant belonging to foreign services and diplomatic corps

are not publicly available for many Member States. However, for illustrative purposes, some

information could be gathered for:

Italy:

Salaries of Italian diplomatic service and civil servants of the Foreign Ministry are

publicly available

112

. The estimated gross salaries range per month from EUR 2 940.81 to EUR

7 996.70.

Finland:

Salaries of Finnish diplomatic service and civil servants of the Foreign Ministry are

based on the collective agreement for 2023-2025

113

. The salary is based on two factors: nature

of the position (required skills, importance of the position, how demanding etc.), defined as

level between 4 and 13 and personal performance, levels 1-13. Based on the combination of

these two factors, the estimated gross salaries per month range from EUR 1 906.46 to EUR

8 177.83.

Austria:

According to the relevant Austrian Law

114

and the information on the Ministry of

Foreign Affairs, gross salary per month starts at EUR 3 289.40.

The second important factor to take into account for the calculations of the national salaries of

SNEs is the

amount of benefits

that are given when the person is deployed in another country.

111

112

113

114

https://ec.europa.eu/eurostat/databrowser/view/PRC_REM_AVG/default/table?lang=en

https://www.esteri.it/it/trasparenza_comunicazioni_legali/personale/informazioni_dirigenti/

retribuzioni_dirigenziali_mae/

https://um.fi/documents/35732/0/Hallinnonalakohtainen+tarkentava+virkaehtosopimus+ulkoasiainhalli

nnon+virkamiesten+uudesta+palkkaus-j%C3%A4rjestelm%C3%A4st%C3%A4.pdf

and

https://um.fi/documents/35732/0/P%C3%B6yt%C3%A4kirja+ulkoasiainhallinnon+virkamiesten+palk

kausj%C3%A4rjestelm%C3%A4n+uudistamisesta.pdf

https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=

10008115

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These amounts are extremely variable and depend notably, on the Member State of origin, the

place of posting, the family situation of the individual.

Another option to estimate the SNEs’ national salaries costs for the Member States is to use

the

Eurostat salary calculator

115

, which provides an average gross wage according to the

variables entered by the user: gender, age, education, profession, job experience, type of

contract, NUTS region, NACE economic activity and enterprise size, for each Member State

of the European Union (EU). The official earning statistics based on occupation come from the

structure of earnings survey (SES)

116

. SES data on the economic activity sector (NACE rev.2)

for Public Administration is only collected on a voluntary basis at this stage.

As all the variables of the salary calculator are mandatory, data inserted are: male, 40 years

old, with Upper Tertiary Education, Senior government official, Public Administration &

Defence, 10 years of experience, with indefinite contract working full time. Assuming that

Member States that have high remuneration of civil servants according to Eurostat data

mentioned above, also have highest remuneration for diplomats/employees of the Ministry of

Foreign Affairs, calculation is made for: Germany (as Luxembourg is not available) and

Bulgaria.

For Germany, the estimation of the average monthly gross salary is: EUR 7 016.

For Bulgaria, the estimation of the average monthly gross salary is EUR 3 017.

Finally, for completeness sake, we could also take as a proxy the costs of cost-shared SNEs.

According to the relevant rules and applicable guidance, average cost for 1 cost-shared SNE

deployed in an EU delegation is EUR 93 000 a year, of which the salary is EUR 64 400 a year.

On the compatibility of the additional costs for EU delegations with EEAS Council

Decision on cost neutrality:

Costs to support Member States under the meaning of Article 5(10) of the EEAS Decision

qualify as operational costs (which involve expenses to improve the outside world for its direct

benefit such as repatriating EU citizens) and are part of the operational budget. EU delegations

should ask reimbursement of costs from the Member State of nationality of the unrepresented

citizens when they spend parts of their operational budget for such support activities. This could

be done (as proposed in option 4d) by extending the reimbursement mechanism of Articles 14

and 15 of the Directive to EU delegations. It should be noted that the costs of SNEs mentioned

above are not part of the operational budget but of the administrative budget and therefore are

not covered by the cost-neutrality clause. Human resources costs are part of the administrative

budget as they are linked to the institution’s staff (in a wide sense) working to realise its

objectives and for its direct benefit (e.g. salaries, offices, missions, and IT equipment/systems).

Estimation of costs for option 2d) related to the role of EU delegations:

The increase in

resources is projected to be gradual and would not concern immediately the full range of

identified Delegations, but rather create 5 regional pools and focus only on those locations

where support is needed in practice taking into account, amongst other aspects, the represented

Member States human resources. In crisis situations, the costs for the measures could be also

115

116

A simple tool providing estimates of the average gross wages according to the variables entered by the

user: gender, age, education, profession, job experience, type of contract, NUTS region, NACE economic

activity and enterprise size, for each Member State of the European Union (EU). These estimates are

based on microdata collected through the EU Structure of earnings survey (SES) 2018 and extrapolated

with the Labour Cost Index (LCI) up to reference year 2022.

https://ec.europa.eu/eurostat/cache/metadata/en/earn_ses_main_esms.htm#quality_mgmnt

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be met through deployment of existing resources within EEAS/EU delegations. A longer-term

assessment of yearly needs beyond the initial period of implementation would have to be done

in light of the observed increase in the workload.

Estimation of costs for option 2e) related to the role of EU delegations:

For this option the

estimation costs is based on similar parameters as option 2d). However, in order to enable EU

delegations in uncovered third countries to assist EU citizens, the necessary expertise on

consular matters in terms of quality and quantity would need to be ensured. For instance, in a

country like Barbados, a popular touristic destination among EU citizens, the EU delegation

would need to be reinforced from the outset to provide assistance to EU citizens.

Estimation of costs for option 3a) related to new requirements for provision of

information:

As showed in the table above, past communication campaigns carried out by the

EU have costed between EUR 50 000 and 100 000, therefore a similar budget is estimated for

the additional campaign.

Estimation of costs for option 3b) EU travel advice portal:

As showed in the table above,

costs for the consular website is around EUR 80 000 therefore a similar budget is estimated for

the additional campaign.

4. Methodology for comparison of options

Effectiveness:

Under this section, options are evaluated for their effectiveness to achieve their

specific objectives. In addition, as the main objective of the revision is to ensure a higher level

of protection of citizens’ fundamental rights and promote EU values such as non-discrimination

by clarifying the content of the right to consular protection and by facilitating the cooperation

and coordination procedures necessary for its application, impact on fundamental rights is also

assessed in this section. There is a direct correlation between effectiveness of the measures and

impact on fundamental rights, as the EU intervention is expected to enhance the EU

fundamental right to ‘diplomatic and consular protection’ under Article 46 of the Charter.

Proposed scoring: ● Minor contribution towards objectives; ●● Major contribution, but

without fully achieving objectives; ●●● Achieving objectives

Efficiency:

An analysis of the costs of each option and its benefits is performed under this

section. This criterion also assesses positively in case an option brings a simplification to the

EU legislation/removes red tape without at the same time reducing its benefits (or negatively

in case it complexifies it/adds red tape). It should be noted that main costs are on the Member

States and the EU/EU delegations. No costs were found for EU citizens who should, on the

contrary, benefit from the measures proposed. No indirect costs were detected.

Proposed

scoring: ● Considerable additional costs or effort, non-proportionate to the benefits and with

difficult implementation; no simplification ●● Neutral or small increase in costs, proportionate

to the additional benefits; some simplification; ●●● Any increases in costs are outweighed by

the benefits, important simplification.

Coherence:

under this criterion, the analysis considers if the measures are coherent with the

Commission’s objectives of strengthening the identity of the EU in third countries, reinforcing

the external dimension of EU citizenship and Member States’ solidarity and improving

Member States’ cooperation with regard to consular crisis preparedness and response. In

options where relevant, coherence with the EEAS Decision, the EU ETD Directive and the

UCPM are analysed.

Proposed scoring: ● Lacks coherence with legislation; ●● Broadly

coherent with legislation, but some gaps; ●●● Coherent with legislation.

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Proportionality:

Proportionate EU action should ensure that unrepresented EU citizens

receive adequate consular assistance on equal basis to own nationals without creating excessive

burden on the EU and the Member States. It should further build on and integrate previous

legal measures as well as recent developments.

Proposed scoring: ● Not proportionate; ●●

generally proportionate ●●● Fully proportionate.

Political feasibility:

examines political support for the each of the options proposed under their

respective legal basis.

Proposed scoring: ● low; ●● medium ●●● high

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Annex 5: Relevant provisions of the Directive and how it

works

The Directive lays down the coordination and cooperation measures necessary to facilitate the

exercise of the right of EU citizens to enjoy, in the territory of a third country in which the

Member State of which they are nationals is not represented (i.e. where they are

‘unrepresented’), the protection of the diplomatic and consular authorities of any Member State

on the same conditions as the nationals of that Member State, as set out in Article 20(2)(c)

TFEU. In particular, the Directive provides the definitions and procedures necessary to

implement this right.

The Directive contains the following elements:

•

The general principle of consular protection by Member States to unrepresented EU

citizens on the same conditions as to their own nationals (Article 2).

The possibility that the Member State of nationality of an unrepresented citizen requests

the Member State from whom an unrepresented citizen seeks or receives consular

protection to redirect the case to his/her own Member State of nationality, which the

requested Member State should relinquish (Article 3).

The personal scope of the protection, determining who is entitled to consular protection

(Articles 4, 5 and 6).

The conditions to access such protection, namely which Member State and what type

of body unrepresented EU citizens can seek protection from (Article 7).

Rules on how to identify unrepresented EU citizens (Article 8).

A non-exhaustive list of the types of situations that may give rise to the need for

consular protection (Article 9).

Rules on how Member States are to cooperate and coordinate with one another and the

EU to ensure protection of unrepresented citizens (Article 10).

Specifications regarding the role of EU delegations (Article 11).

Requirements for local cooperation between Member States (Article 12) and for crisis

preparedness and cooperation of Member States and EU delegations in third countries

(Article 13).

Rules on the reimbursement of the costs of consular protection (Articles 14 and 15).

•

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Figure 7: An example of the provision of consular assistance under the current legal framework (Consular

Protection Directive) in a non-crisis situation.

Source: European Commission

(1) Zuzana is from Czechia, and lives in

third country A. She needs consular

assistance as her travel documents have

been stolen, but Czechia does not have a

consulate or embassy in third country A.

(2) Italy, France and Poland have an

embassy in third country A. Zuzana

decides to seek assistance from the

French embassy.

(3) French embassy asks Czechia to

confirm Zuzana’s nationality and provide

necessary information, which it does.

(4) The French Embassy delivers the

required assistance to Zuzana and issues

an emergency travel document allowing

Zuzana to return home.

Figure 8: An example of the provision of consular assistance under the Directive in crisis situation.

Source: European Commission

(1) Many EU citizens are stranded in

third country B because of a hurricane.

(2) Member

States

organize

evacuation flights for their citizens and

share with other Member States and the

EEAS/EU delegations information on

available evacuation capacities.

(3) The EEAS/EU delegations and

Member States coordinate locally

(passenger lists and other logistical

aspects) and with unrepresented

Member States and ensure that all EU

citizens have access to evacuation

flights.

(4) The UCPM can co-finance

evacuation flights if citizens from more

than one Member States are on board.

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Annex 6: Level of Member States’ representation in third

countries

This Annex presents a global mapping of consular network, providing an overview of the third

countries in which Member States provide consular services and the countries where no

Member State is represented. It includes:

a comparison of the CoOL data and the data collected through the questionnaire by the

study;

the evolution of Member States’ consular network, including information collected in

COCON in 2022;

the impact of the UK’s withdrawal from the EU on the consular network.

The table below provides an overview of Member States’ level of representation in third

countries, based on data collected from the Member States through the questionnaire. It shows

in which third country Member States have a low presence in (0-25% of Member States

represented) and a high presence (27 Member States represented) in 2021.

Methodological caveat

The overall methodology for the data collection at the Member State level, including on

Member States’ consular network, is presented in Annex I. This methodological box further

explains the caveat of this mapping, namely that for the purpose of this mapping, only

embassies and consular posts (consulates and consulates-general) have been taken into account.

The following types of diplomatic presence were thus excluded:

Honorary consuls

were not included in the mapping as the national authorities of most

Member States confirmed that these generally provide consular protection to a more limited

extent when compared to the assistance provided by embassies and consulates. In addition, the

legal mapping confirmed that only very few Member States have decided to extend the

application of the Directive to Honorary Consuls (see Chapter 3.1) for further details.

- While an

accredited embassy and/or consular post

has the same consular protection

competences in the country it is accredited to as an embassy/ consulate post located in that

country would have, accredited embassies and consular posts were excluded from the mapping

as they may not offer consular protection as effectively, in particular in cases of emergency

requiring fast action or in times of crisis impacting transport routes such as during the COVID-

19 pandemic. For instance, if travel to third country A is restricted or reduced, an accredited

consul or ambassador based in third country B may not be able to assist EU citizens in third

country A. As such, and according to the 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.

According to the data collected, the following conclusions can be drawn on the level of

representation of the Member States in 2021:

1. At the time, only 5 third countries (China, India, Russia, UK, and USA) were covered

by all 27 Member States (3% of all third countries);

2. 41% of third countries are covered by seven Member States or less;

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3. In 21 of the 173 third countries listed, Member States are not present. Thus, 12% of the

173 third countries can be considered “uncovered”. Six of these third countries (the

Bahamas, Barbados, Belize, Grenada, Guyana, Solomon Islands) were previously

covered by the UK. The departure of the UK from the EU has therefore decreased

Member States’ consular coverage of third countries by 3%;

4. The Member States that have the largest consular network and that are therefore

represented in the most third countries

are France (present in 136 third countries),

Germany (127), Spain (103), Italy (101), Sweden (95) and the Netherlands (88);

5. The Member States that have the smallest consular network and that are therefore

represented in the least third countries

are Estonia (present in 19 third countries),

Luxembourg (19), Malta (19), Cyprus (22), Latvia (22) Lithuania (24), and Slovenia

(24).

Table 14: level of representation based on the data collected through the Questionnaire

Level

Member Number of third countries covered (2021)

States representation

No Member

represented

State 21 countries

(Antigua and Barbuda, the 12% of third

Bahamas, Barbados, Belize, Bhutan, Cook countries (21

Island, Dominica, Eswatini, Grenada, Guyana, out of 173)

Kiribati, Lesotho, Liechtenstein, the Maldives,

Marshall Islands, Micronesia, Nauru, Palau

Republic, Samoa, Solomon Islands, Tonga,

Tuvalu)

0-25% of Member 71 countries

(Andorra, Bahrein, Bangladesh, 41% of third

States represented (7

Benin, Bolivia, Botswana, Brunei Darussalam, countries (71

MS or less)

Burundi, Cambodia, Cameron, Cabo Verde, out of 173)

Central African Republic, Chad, Comoros,

Congo Republic, Costa Rica, Cote d’Ivoire,

Djibouti, Dominican Republic, Ecuador, El

Salvador, Equatorial Guinea, Eritrea, Fiji,

Gabon, The Gambia, Guatemala, Guinee

Bissau, Guinea Republic, Haiti, Holy See,

Honduras, Iceland, Jamaica, Korea Pyongyang,

Kyrgyzstan, Lao PDR, Liberia, Macao,

Madagascar, Malawi, Mali, Mauritania,

Mauritius, Mongolia, Namibia, Nepal,

Nicaragua, Papua New Guinea, Paraguay,

Rwanda Republic, Saint Kitts and Nevis, Saint

Lucia, Saint Vincent and the Grenadines, San

Marino, Sao Tome and Principe, Seychelles,

Sierra Leone, Somalia, South Sudan, Sri Lanka,

Suriname, Syria, Tajikistan, Timor Leste, Togo,

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Trinidad and Tobago, Turkmenistan, Vanuatu,

West Bank Gaza, Yemen, and Zambia.

All Member

represented

States 5 countries

(China, India, Russia, UK and USA)

3% of third

countries

out of 173)

Source: Study questionnaire to Member States (March 2021) providing an overview of Member

States presence in 173 third countries

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in 2021.

If honorary consulates as well as accredited embassies and consular posts are included, there

are no uncovered third countries. While honorary consulates can only provide partial consular

protection and accredited embassies/consular posts may not be able to provide consular

protection as effectively as in-country embassies/consular posts, their presence should not be

ignored.

For instance, while Bhutan may be uncovered, 16 Member States have accredited embassies

and consular post in neighbouring countries. Similarly, while Lesotho and Eswatini may be

uncovered, these two countries are located within South Africa from where 20 Member States

have accredited embassies and/or consular post providing consular protection to EU citizens in

Lesotho and 18 accredited embassies and/or consular post providing consular protection to EU

citizens in Eswatini.

Additionally, while certain third countries may be uncovered, their proximity to Member State

territory should not be overlooked. For instance, Dominica may be uncovered however it is

situated less than 50km away from Guadeloupe and Martinique, two French departments.

Similarly, Antigua and Barbuda is situated less than 100km from Guadeloupe. However, it

should be stressed that proximity and/or coverage by accredited embassies/consulates is not a

solution that can fully compensate the lack of in-country representation. There are multiple

limitations such as the lack of contacts with local authorities, the possible difficulties in

accessing the country in times of crisis (i.e. if the borders are closed), the lack of situational

awareness, etc which make the provision of consular protection more difficult. Additionally,

an oversea territory or department may also not have the logistic capacity to help, or to be in a

position to do so for legal and/or political reasons. Notably, the local authorities of EU

territories are not under a legal obligation to provide consular protection to unrepresented EU

citizens of neighbouring countries.

When compared to the consular network of EU delegations, among the 21 third countries

uncovered by the Member States, EU delegations are present in four (Barbados, Eswatini,

Guyana, Lesotho).

Comparison of CoOL data and the data collected through the questionnaire

The data collected through the questionnaire for the purpose of the study largely corresponds

to the data extracted from the CoOL tool. The table below provides an overview of the CoOL

data. The differences between both data sets are the following:

1. Macao SAR, New Caledonia, Saint Kitts and Nevis, St Vincent and the Grenadines were

reported as uncovered in CoOL. The study did not consider New Caledonia as a third

country but as a territory of France and therefore did not include it in its mapping.

Portugal reported being present and providing consular protection in Macao. Sweden

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Including islands (e.g. Cook Islands), and territories not formally recognized by all Member States.

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reported being present and providing consular protection in Saint Kitts and Nevis and in

St Vincent and the Grenadines.

2. Andorra and the Holy See were not included in CoOL. However, as both are recognised

third countries, the study team has decided to include them in the mapping. Six Member

States reported being present and providing consular protection in the Holy See and two

Member States in Andorra.

3. Burkina Faso, Hong Kong SAR, Myanmar, and Niger were previously included in

CoOL among the third countries with seven or less Member States present. However,

results collected through the questionnaire revealed a higher level of representation

(Nine Member States in Burkina Faso, eleven Member States in Hong Kong SAR, eight

Member States in Myanmar and eight Member States in Niger.)

Table 15: level of representation based on CoOl data

Level

Member Number of third countries covered (2021)

States Member States

representation

No Member

represented

State 26 countries

(Antigua and Barbuda, the 15% of third

Bahamas, Barbados, Belize, Bhutan, Cook countries (26

Island, Dominica, Eswatini, Grenada, Guyana, out of 171)

Kiribati, Lesotho, Liechtenstein, Macao SAR,

the Maldives, Marshall Islands, Micronesia,

Nauru, New Caledonia, Palau Republic, Saint

Kitts and Nevis, St Vincent and the Grenadines,

Samoa, Solomon Islands, Tonga, Tuvalu)

0-25% of Member 72 countries

(Bahrein, Bangladesh, Benin, 42% of third

States represented (7

Bolivia, Botswana, Brunei Darussalam, Burkina countries (72

Member States or less)

Faso, Burundi, Cambodia, Cameron, Cabo out of 171)

Verde, Central African Republic, Chad,

Comoros, Congo Brazza, Costa Rica, Cote

d’Ivoire, Djibouti, Dominican Republic,

Ecuador, El Salvador, Equatorial Guinea,

Eritrea, Fiji, Gabon, The Gambia, Guatemala,

Guinee Bissau, Guinee Conakry, Haiti,

Honduras, Hong Kong SAR, Iceland, Jamaica,

Korea Pyongyang, Kyrgyzstan, Lao PDR, Liberia,

Madagascar, Malawi, Mali, Mauritania,

Mauritius, Mongolia, Myanmar, Namibia,

Nepal, Nicaragua, Niger, Papua New Guinea,

Paraguay, Rwanda Republic, Saint Lucia, San

Marino, Sao Tome and Principe, Seychelles,

Sierra Leone, Somalia, South Sudan, Sri Lanka,

Suriname, Syria, Tajikistan, Timor Leste, Togo,

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Trinidad and Tobago, Turkmenistan, Vanuatu,

West Bank Gaza, Yemen, and Zambia.

All Member

represented

States 5 countries

(China, India, Russia, UK, and USA)

3% of third

countries (72

out of 171)

Source: EEAS 2021 CoOL data which provides an overview of Member States presence in 171

third countries

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in 2021.

Finally, table below focuses on Member States representation with low level of representation:

Table 16: level of representation based on Member States reporting in COCON in 2022

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Level of Member

States representation

No Member State

represented

Number of third countries (2022)

25 countries

(Afghanistan, Antigua and Barbuda, the Bahamas,

Barbados, Belize, Bhutan, Cook Island, Dominica, Eswatini,

Grenada, Guyana, Kiribati, Lesotho, Liechtenstein, the Maldives,

Marshall Islands, Micronesia, Nauru, Palau Republic, Saint Kitts

and Nevis, St Vincent and the Grenadines, Samoa, Solomon

Islands, Tonga, Tuvalu)

13 countries

(Central African Republic, Comoros, Macao (SAR),

Mauritius, Papua New Guinea, Saint Lucia, San Marino, Sao

Tome and Principe, Seychelles, Somalia, Timor Leste, Vanuatu,

Yemen)

9 countries

(Botswana, Brunei Darussalam, Djibouti, Fiji,

Madagascar, Malawi, Suriname, Tajikistan, Togo)

50 countries

(Bahrein, Bangladesh, Benin, Bolivia, Burkina Faso,

Burundi, Cambodia, Cameron, Cabo Verde, Chad, Congo

Brazzaville, Costa Rica, Cote d’Ivoire,

Dominican Republic,

Ecuador, El Salvador, Equatorial Guinea, Eritrea, Gabon, The

Gambia, Guatemala, Guinee Bissau, Guinee Conakry, Haiti,

Honduras, Hong Kong SAR, Iceland, Jamaica, Korea Pyongyang,

Kyrgyzstan, Lao PDR, Liberia, Mali, Mauritania, Mongolia,

Myanmar, Namibia, Nepal, Nicaragua, Niger, Paraguay, Rwanda

Republic, Sierra Leone, South Sudan, Sri Lanka, Syria, Trinidad

and Tobago, Turkmenistan, West Bank Gaza and Zambia.)

5 countries

(China, India, Russia, UK and USA)

One Member State

represented

Two Member State

represented

Between 3 and 7

Member States

represented

All Member States

represented

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Including islands (e.g. Cook Islands), and territories not formally recognised by all Member States.

WK 10712/2022 INIT.

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Evolution of the Member States consular network

In order to understand the evolution of the consular network between 2018 and 2020, it is

relevant to look at the information provided by Member States to the DG JUST’s survey

reporting on the implementation of the Consular Protection Directive. Only 12 Member States

provided data on their consular network both in 2018 and in 2020. Of these 12 Member States,

eight saw an increase in the number of embassies and consulates exercising consular functions

(not counting honorary consuls or countries covered from other countries). Two had a decrease

and two remained unchanged. Together, these 12 Member States had a 7% collective increase

in the number of embassies and/or consulate exercising consular functions from 786 in 2018

to 838 in 2020. While these findings are limited due to missing data, they nonetheless suggest

that Member States have increased their consular footprint between 2018 and 2020.

This was further collaborated by the data collected from the questionnaire’s qualitative

questions, which asked the national authorities whether their consular network increased

decreased or remained the same between 2018-2021. Out of the 26 Member States that replied,

14 (BG, EE, FI, HR, HU, LT, LU, MT, RO, SI, PL, ES) reported an increase and only two

reported a decrease (DK and FR). Seven replied “remained the same” (AT, BE, DE, PT, SE,

NL, LV) and one Member State (CZ) did not know.

Figure 9:

Question 1. In how many countries do you have an embassy or a consulate exercising consular

functions (not counting honorary consuls or countries you cover from other countries)?

250

200

150

100

2018

2019

2020

Source: EEAS 2021 CoOL data, which provides an overview of Member States presence in

171 third countries

120

in 2021.

120

Including islands (e.g. Cook Islands), and countries not formally recognised by all Member States (e.g.

Hong Kong).

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Impact of the UK’s withdrawal from the EU on the consular network of Member States

Since the end of the transition period provided for in the EU-UK Withdrawal Agreement

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31 December 2020, EU citizens no longer enjoy a right to request consular protection from UK

embassies or consulates abroad under the Consular Protection Directive. In addition, the UK is

longer able to serve as a Lead State, i.e. leading the assistance of unrepresented EU citizens

during crises, and shouldering the burdens of non-crisis consular assistance.

In 2018, the UK was the third most important Member States in terms of number of embassies

and consulates exercising consular functions (France did not provide replies to the 2018

questionnaire). The withdrawal of the UK from the EU therefore results in a considerable loss

in consular footprint. 21 Member States and the UK indicated having 1 710 embassies and

consulates exercising consular functions in 2018. Factoring in the 6 Member States

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that did

not provide data on their consular network results in an estimated 2 176 Member State

embassies and consulates in 2018

123

. The UK’s departure from the EU therefore represents an

estimated 7% lost in the number of Member State embassies and consulates providing consular

functions.

Currently, in 2021, the mapping identified 21 uncovered countries out of 173 third countries,

with six of these third countries (the Bahamas, Barbados, Belize, Grenada, Guyana, Solomon

Islands) having previously been covered by the UK. The withdrawal of the UK from the EU

has therefore decreased the EU’s consular coverage of third countries by 3%, not including

third countries where the UK was one of the few Member States present.

Following the UK’s withdrawal, unrepresented EU citizens need to rely on available embassies

and consulates of the 27 remaining Member States, which adds additional burdens to certain

Member States that are “second in line” regarding the density of their representations. At the

same time, the UK’s withdrawal also relieves the strain on the EU network of consular

protection in that UK nationals no longer enjoy a right to consular protection by the Member

States. Beyond quantitative data on the number of representations, the UK also plays an

important role in many aspects of consular affairs due to its long-standing diplomatic tradition

and extensive local networks, which make it an effective player in consular matters. For

example, according to a final report on Consular Cooperation Initiatives (CCI) by the Council,

the UK had a lead role in joint lobbying activities in Cambodia and was primarily in charge of

providing assistance in Nepal, which were two out of five countries where the CCI ran.

Finally, by changing the status of the UK from Member State to third country, the UK’s

withdrawal also widened the territorial scope of application of the Consular Protection

Directive.

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122

123

Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the

European Union and the European Atomic Energy Community (OJ C 384I, 12.11.2019, p. 1).

Cyprus, France, Greece, Hungary, Netherlands and Romania.

(1 710/22 = an estimated 78 embassies and consulates per Member State; 78*28 Member States = 2 176).

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Annex 7: Factors likely to increase the number of crises

with an impact for consular protection

Climate change

has already impacted every region on earth in unprecedented and irreversible

ways. On the current trajectory, global warming will likely surpass 1.5°C in the next two

decades and head towards 2°C by 2050. Every additional 0.5°C will increase the intensity and

frequency of extreme weather events, droughts, wildfires or floods, including in locations

where this was uncommon in the past. Over the past decade, weather-related events have

triggered an estimated displacement of around 23 million people on average each year, and the

migration pressures will only increase. By 2050, over 200 million people could need

humanitarian assistance every year partly due to climate-related disasters

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. There is also an

important interlinkage between climate change, biodiversity loss, environmental degradation

and public health. Loss of biodiversity, pressure on animal habitats, the excessive use of

antibiotics, risks relating to biological research of highly pathogenic microbes, unhealthy

lifestyles – all these factors make future pandemics or diseases more likely. As showed by the

COVID-19 pandemic, this triggered a global consular emergency due to the very severe

transport restrictions, quarantine measures and border closures which created a need to urgently

repatriate EU citizens (tourists and short-term travellers) stranded in third countries.

Hyperconnectivity

is another force of current transformations. It results in an increased

convergence of industries, products, technologies and services. The number of connected

devices globally might increase from 30.4 billion in 2020 to 200 billion in 2030. Increased

connectivity of objects, places and people will result in new products, services, business

models, life and work patterns. At the same time, it results in the increased risk of cyber-attacks

and network outages, in both digital and physical world, e.g. essential infrastructures like

pipelines and hospitals. Hyperconnectivity has only accelerated with the pandemic and its

social impact needs to be carefully monitored. The impact on consular protection is yet to be

felt but should not be underestimated. In this regard, by allowing us to connect and stay in

touch without much effort, technology has increased the possibility of working remotely,

including from third countries (e.g. digital nomads). This could contribute to more EU citizens

travelling abroad. Against this background, the digitalization of consular services may allow

Member States to provide some types of assistance even where they are not present on the

ground.

Democratic governance

is also declining globally

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and its consequences are likely to lead to

an increase demand for action at consular level. 2020 was the 15

consecutive year of a decline

in political rights and civil liberties at a global level, exacerbated by the COVID-19 pandemic

in many regions. Zones of instability and conflict close to the EU and beyond are likely to

persist and may even grow. Repression of freedoms and democratic reforms, as well as

continued instability in countries and regions in near and further EU neighbourhood, will

continue to have an impact on consular protection.

Global rivalry and fragility are likely to increase.

The USA-China competition could

become a defining feature of the geopolitical landscape. The energy transition will further

contribute to the redistribution of power. The EU can expect continued tensions and adverse

competition (including from China and Russia), requiring robust policies to project stability

124

125

International Committee of Red Cross and Red Crescent Societies (2019), The Cost of Doing Nothing.

Also: “The global state of democracy 2021, building resilience in a pandemic era”, 2021, International

Idea. The study concludes that ‘more countries are moving towards authoritarianism that at any other

point since 1995’.

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and prosperity, particularly in its neighbourhood. Increasing threats from organised crime,

corruption, extremism, terrorism, and hybrid threats, including the use of migration for political

purposes, could increasingly threaten EU security and raise the need for contingency planning,

including at consular level.

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Annex 8: Intervention Logic

PROBLEMS

1) Imprecise definition of unrepresented

citizens

2) Unclear assignment of roles and tasks

at Local consular cooperation networks

GENERAL OBJECTIVE

improve the exercise of the right to consular

protection by unrepresented EU citizens

POLICY OPTIONS

1a) Combination of soft measures

1b) Improvement to the definition through

legislative amendments

1c) Introduction of the presumption of

unrepresentedness

SPECIFIC OBJECTIVES

3) Ineffective contingency planning

(Joint Consular Crisis Preparedness

Frameworks)

4) Ineffectiveness of Lead State concept

SO 1: Enhance the legal certainty for EU

citizens with respect to the scope of the

right to consular protection

2a) Guidelines on local cooperation

2b) EU delegations will chair local consular

cooperation networks meetings

2c) Review of the concept of Lead State and

formalisation of JFW and JCTs

2d) Detail the supporting role of EU delegations

through legal amendments

5) Legal uncertainty related to the role

of the EU and EU Delegations in the

provision of consular assistance

6) Inconsistent information to EU

citizens

7) Lack of reliable information on EU

citizens living or traveling abroad

SO 2: Ensure clear roles, coordination

and cooperation mechanisms between

Member States and EU Delegations,

including in times of crisis.

SO 3: Improve the information provision

and communication with (unrepresented)

EU citizens

2e) EU delegations can provide direct consular

assistance to EU citizens in uncovered third

countries

3a) Legal amendments with new requirements

for provision of information

3b) An EU travel advice portal

3c) Communication campaign

8) Complexity and ineffectiveness of

financial reimbursements

SO 4: Increase the efficiency and use of

the financial reimbursement procedures

3d) Member States required to promote

measures to inform on/record citizens

4a) Guidelines and training

4b)Legal amendments to improve the

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Annex 9: Baseline Scenario

The baseline scenario assumes that ongoing coordination and cooperation activities will

continue to be carried out, as outlined below.

Member States will continue to meet regularly in COCON to discuss common approaches on

consular protection (including the sharing of best practices), coordinate consular crisis response

and related consular crisis preparedness issues, such as by:

•

identifying and addressing so-called “consular hotspots”, where certain types of consular

issues or problems arise regularly;

discussing ways to exchange information on travel advice;

identifying ways to improve crisis preparedness and response, including through the

development of JFWs and local consular exercises.

Consular dialogues with like-minded third countries (currently USA, Canada, Australia and

New Zealand), chaired by the Council Presidency, will continue.

Member States will start using the new uniform EU Emergency Travel Document format

established by the ETD Directive as of December 2025. This will improve the security features

of the documents and simplify the formalities to obtain them.

The Expert Group on Consular Protection will continue to meet to exchange on development

of national policies and implementation of the Directive.

The EEAS will continue developing its key activities, notably:

•

responding to consular crises, with the recently established EEAS Crisis Response Centre

as the permanent crisis response capability and the single entry point on all crisis related

issues in the EEAS, bringing together diplomatic, security and intelligence capabilities, and

ensuring a close interaction between delegations, missions and operations on the ground

when facing a consular crisis;

developing strategies, policies and tools to facilitate access to consular protection for EU

citizens through EU cooperation and coordination (e.g. rollout of joint frameworks,

management of the Consular Online platform);

supporting EU delegations, in particular the network of consular correspondents in EU

delegations, to play their coordination role at local level (e.g. contingency planning,

training, sharing of best practices, advice);

working with Member States to facilitate access to consular protection for EU citizens (e.g.

in COCON);

engaging with like-minded third countries to exchange and cooperate on consular matters

of mutual interest (e.g. in consular dialogues with Australia, Canada, New Zealand and the

USA);

addressing, together with the Commission, legal issues relating to consular protection (e.g.

negotiation and applications in international agreements, joint consular démarches, notes

verbales);

contributing to informing EU citizens of the right to consular protection for unrepresented

citizens.

•

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Ahead of touristic seasons, the Commission and the EEAS run social media campaigns, also is

relayed through EU delegations. The EEAS also supports EU delegations in including locally-

tailored information on the right to consular protection on their website and/or to adapt this

information in case of a consular crisis.

In 2023, the Commission will conduct an awareness raising initiative on EU citizenship rights,

including consular protection, at the occasion of the 30

anniversary of the establishment of

EU citizenship by the Maastricht Treaty.

It has to be noted that activities outlined above, such as the exchanges of best practices among

relevant Member States’ authorities in COCON, are part of the baseline scenario and are not

new activities. In the current scenario, where the measures are in place, the problems identified

in section 2 have already materialised. This means that by themselves, the measures outlined

are insufficient to address the problems identified, which will instead continue. In particular,

where these problems are linked to current wording of the Directive, they cannot be sufficiently

addressed through non-regulatory measures.

In addition, in a situation where all activities described above would continue to be carried out,

but no further action is taken, all problems identified under Chapter 2 will not only persist but

will worsen. The external factors described in Chapter 2 and Annex 7, such as the increase of

the number and frequency of crisis and the increase in the number of unrepresented residents

and travellers in third countries would put at risk the effective exercise of the right to consular

protection. Larger number of EU citizens would be affected by an increased number of crisis,

and the scale and the nature of the problems identified would increase as per below:

•

Based on the predicted increasing number of crises and on the increasing number of EU

travellers, with more cases of ‘unrepresentedness’ and no precise definition in the wording

of the Directive, the currently few reported cases of refusal of assistance and ‘redirection’

of EU citizens considered ‘unrepresented’ would likely become more frequent. As a result,

the risk of cases of EU citizens left without effective consular assistance would increase.

As outlined above, such a situation is also likely to cause reputation risks for Member States

and the EU. Due to the absence of a clear definition in the Directive, even a possible

increase in the consular network of Member States is unlikely to compensate this problem,

in particular when difficult cases arise.

In absence of clear assignments of tasks to the different actors, including EU delegations,

and the absence of a clear structure for Joint Consular Crisis Preparedness Frameworks,

coordination at local level is likely to become more and more difficult at a time of

‘permacrisis’ as described by a recent European Parliament study

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. A legal clarification

of such processes and clarification of roles is important to save time and efforts in a likely

scenario of increased crises and reduced timeframe for anticipation and preparedness – as

well as to provide the impetus to invest in the necessary preparedness, notably through the

drawing up of JFWs, even in third countries historically seen as less prone to consular

crises. Especially for lightly staffed Member States and in third countries with low Member

States presence, coordination is likely to become more burdensome. Digitalisation and

remote meetings could help to alleviate the burden but would not solve the underlying

issues.

•

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Future Shocks 2023, Anticipating and weathering the next storm, EPRS:

https://www.europarl.europa.eu/RegData/etudes/STUD/2023/751428/EPRS_STU(2023)751428_EN.p

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•

Aspects of administrative/technical nature, such as organisation of LCCs, minutes of

meetings, sharing of information and burden between Member States and EU delegations

and business continuity in a non-crisis context have the potential to become concrete

obstacles to smooth operations in crisis situations if they are not streamlined sufficiently.

Organisation and provision of information in situations that are likely to evolve more

rapidly is essential. Problems with EU citizens not being able to find the right information

about their rights and who could and should offer help in a situation of need will likely

increase with an increasing number of travellers and number of unrepresented citizens in

non-crisis situation. This will likely be exacerbated in crisis situations. Use of websites and

online information channels is widespread in the field of provision of information on

consular protection. With the increased use of digital tools and services in the next years

by citizens, the need for reliable, unique source of information will also increase. Member

States will have to adapt to the requirements of such environment.

The problem of lack of reliable information on EU citizens living or traveling abroad would

also pose more risks to effective provision of consular protection by Member States. At this

stage, it cannot be predicted if Member States would, absent an intervention at EU level,

take coordinated measures to improve the level of information they have on their nationals

living or travelling abroad. If that is not the case, the coordination of actions at EU level on

how to best assist citizens would become more and more challenging, given their increasing

number. Reaching out to people will become more difficult especially in crisis situations.

In situations where a Member State is not aware of the presence of an increased number of

its nationals in a certain third country where it is not represented, it might not help be able

to support the Member States present on the ground that are seeking to provide consular

protection to its nationals.

Finally, the complexity and ineffectiveness of reimbursement procedures is likely to also

worsen as more unrepresented EU citizens seek to be assisted with consular protection. In

the view of rising costs of provision of consular protection, inefficient reimbursement

procedures are likely to strain the budgets of those Member States more frequently

requested to provide consular protection due to their larger consular networks. This could

result in undermining the spirit of solidarity and collaboration among Member States that

is the foundation for the fundamental right to consular protection.

•

The evolutions of the problems under the baseline scenario will necessarily depend on outside

factors – notably the number, scale and geographical distribution of future crises with a

consular element – that cannot be predicted with certainty at this stage (see also Section 2.4.3).

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Annex 10: Measures not requiring a policy choice

1) EU citizens’ right to an effective legal remedy and redress

Article 2(1) of the Directive provides that Member States’ embassies or consulates must

provide consular protection to unrepresented citizens on the same conditions as to their own

nationals.

Article 47 of the Charter provides that ‘[e]veryone

whose rights and freedoms guaranteed by

the law of the Union are violated has the right to an effective remedy before a tribunal’.

The

provisions of the Charter are also addressed to the Member States when they are implementing

EU law (Article 51 of the Charter).

Consequently, Member States should provide explicit access to effective legal remedy and

redress mechanisms to unrepresented EU citizens, to ensure they have a venue to seek legal

remedy when their EU citizenship rights related to consular protection have been violated.

In this regard, although they did not identify many cases in which EU citizens were refused

assistance or treated in a discriminatory manner when receiving consular assistance, it seems

that such cases do exist.

The lack of official complaints and court cases could indicate that such problems are not

frequent. Alternatively, this could be an indication that unrepresented EU citizens face barriers

in accessing the national redress mechanisms in place. In COCON, Member States indicated

that they provide unrepresented citizens with access to means of redress already available to

their own citizens, noting though that, in some cases their national legislation does not contain

any specific provisions to that effect. Some Member States reported an increase in litigation

associated to the provision of consular assistance to represented EU citizens.

Absence of national rules explicitly enabling redress for unrepresented EU citizens is not in

line with the requirements of the Charter and the case law of the Court. What is more, such

absence creates legal uncertainty and hinders unrepresented EU citizens’ exercise of their

fundamental right to a legal remedy as they might not have or be sufficiently aware of the

avenues available to them to complain to the assisting Member State (they may instead choose

to turn to their own Member State or simply wave on the exercise of their right).

MEASURE PROPOSED:

Introduction of legal amendment that would require Member

States to provide access under equal conditions to an effective legal remedy and redress to

unrepresented citizens.

2) Legal uncertainty on conditions to process personal data for consular protection

purposes

Article 10 of the Directive provides for the exchange of information on the unrepresented EU

citizen between the Member State of nationality and the assisting Member State (including

honorary consuls who may be nationals of a third country) and, as the case may be, the EU

delegation, when a request for assistance is submitted by an EU citizen or when a Member

State is informed of an individual emergency situation. Personal data of EU citizens will also

need to be processed and exchanged by Member States (and possibly EU delegations) and

possibly transferred from Member States to third country authorities (including like-minded

countries) and international organisations (e.g. United Nations), in particular in the context of

crisis situations.

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Some Member States refuse to share information on unrepresented (and represented) EU

citizens, arguing that this would be in breach of data protection requirements

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. Although

bilateral cooperation between Member States was assessed to be good, some problems remain

due to the lack of legal clarity in the Directive as to the processing of personal data.

A fortiori,

this also applies to personal data transferred to third countries and international organisations.

While Articles 11 and 13 of the Directive and Article 5(10) of the EEAS Decision assigns

certain tasks to EU delegations to be carried out in the public interest, EU delegations could

benefit from the introduction, in the Directive, of a clear legal basis to process personal data.

Finally, while GDPR and EUDPR provide a legal basis for processing personal data in cases

necessary to protect the vital interests of the data subject, this only covers situations where

processing is “necessary

to protect an interest which is essential for the life of the data subject

or that of another natural person”

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. However, this legal basis could be relied on in crisis

situations only if there is a concrete or imminent danger to a data subject or a third person and

no another legal basis, such as data subject’s consent, could be used to justify the processing.

In addition, asking EU citizens for consent in crisis situations, where their

safety/health/integrity might be at risk or where the Member State representative is not in a

position to inform the data subjects at least of the identity of the controller and the purpose of

the processing due to the prevailing security/logistical conditions in the area of operations,

would not be appropriate, since the requirements of a freely-given and/or informed consent

required by EU data protection rules will not be met.

MEASURE PROPOSED:

amendments to the Directive to introduce provisions on the

processing by, exchange or transfer of personal data among Member States, EU delegations,

third countries and international organisations.

3) Other amendments

In addition, some other

clarifications

will be needed to ensure uniform application of the

Directive as identified in the Commission Report:

Overall, there appears to be a lack of clarity and understanding regarding the procedure for

redirecting applications from unrepresented EU citizens. In addition, although the Directive

allows for bilateral agreements to be put in place between Member States, there seems to

be a need to further clarify that this is not a precondition for providing consular assistance

to unrepresented EU citizens;

The Directive itself is silent on the accessibility of consular protection for certain vulnerable

groups among unpresented citizens. This may include,

inter alia,

demands for consular

protection by pregnant women, unaccompanied minors, persons with reduced mobility

(PRM), persons with disabilities, or individuals subject to discrimination on any ground.

Moreover, the Directive does not outline a specific regime for the consular assistance of

victims of crime, which may include victims of domestic and gender-based violence

(though such assistance is included in the types of assistance which can be provided as per

Article 9 of the Directive). Wording to the Directive would be strengthen in line with the

priorities of the EU Victims’ Rights Strategy

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Study.

See recital 46 GDPR.

Communication from the Commission to the European Parliament, the Council, the European Economic

and Social Committee and the Committee of the Regions, EU Strategy On Victims' Rights (2020-2025),

COM/2020/258 Final

EUR-Lex - 52020DC0258 - EN - EUR-Lex (europa.eu).

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