EU ETD: Towards a New Chapter in EU Citizens’ Rights and a Better Administrative Cooperation

Introduction

The concept of a ‘People’s Europe’ first referred to benefits of traders and at the beginning of the economic integration the protection and rights under the same condition was already envisaged by the founders (EEC Treaty 1957, art 220). Later, step by step, the European integration has expanded its scope to different policies, and rights of the people was revaluated along with the concept of European identity. (Declaration on European Identity 1973, I; Checkel and PJ Katzenstein 2009, pp. 11-14) The cosmopolitan conception was first manifested in the European citizenship officially created by the Maastricht Treaty to confer rights to citizens of the Member States of the EU and established legal basis to create the necessary normative background for them. Maastricht Treaty 1992, art. 8 1.; 8c) Among these rights, the most challenging one was the right that enabled European Union (EU) citizens to turn to any foreign representation of any Member States for help in third States in case if their State of nationality is not represented there. At first glance, it seems that the adjectives ‘diplomatic’ and ‘consular’ are used as synonyms in the referred treaty provisions, although diplomatic protection and consular protection are two completely different legal concepts. Given the fact that consular function can also be practiced by both diplomatic and consular agents (VCCR art. 70) and considering the content of secondary sources that aim to give a substance to them, it becomes obvious that the European citizenship policy currently rather ensures consular protection and assistance. (Schiffner 2009, pp. 535–543; Vigni 2011, p. 100; Battini 2011, pp. 177–178; Becánics 2015; pp. 25–26, cf. C- 293/95, point 43-45 and Vigni 2010, p. 17)

Almost 7 million EU citizens travel or live outside the EU in places where their own country does not have an embassy or consulate, as basically there are only four countries in the world where every Member State is represented: USA, Russia, China and India.(European Commission - Press release 2015; cf. Green paper 2006, p. 4; Balfour-Raik 2013, p. 12; Forni 2012, p. 157) Large Member States who have well- developed, extended international relations (Impact Assessment 2011, pp. 39-49) are in a better position to serve their nationals in need, while most of the Member States are in a less favourable situations thus their nationals are more likely to rely on these provisions to benefit from their rights as EU citizens. The EU citizenship policy aimed to eliminate these differences. Given to the consular protection’s strong ties to foreign relations, first, it was placed under the unanimous decision-making capacity of the Council under the common foreign and security policy regime, but the Lisbon Treaty brought major changes for the success of citizenship policy not only for the consular protection policy of the EU (Shuibhne 2012, p. 141) but on the other hand, to the realisation of EU policies in general: inter alia it reinforced the right to get consular assistance in third States (EU Charter art. 46) as fundamental ones along with the right to good administration (EU Charter art. 41). The paper aims to examine the most wanted consular protection measure (COCON Report 2016), the issue of emergency travel document (ETD) in the view of recent developments embodied in a new directive (EU ETD Directive) and its evaluation through the prism of fundamental rights.

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