1. Protection by Member States Authorities (Art. 23 TFEU)
13 The right to protection by the diplomatic and consular authorities adds an external dimension to European citizenship. It is of significant practical relevance for European citizens travelling abroad. According to the European Commission, there are currently only three countries in which all Member States are represented with consular or diplomatic missions: China, Russia, and the United States. In 107 countries, only 10 or less Member States are represented.
14 The scope ratione personae of Art. 23 TFEU has been the issue of debate. While the language of the provision (‘citizen of the Union’) seems to suggest that only natural persons are included, systematic and teleological arguments counsel for an extension to legal persons. In particular, the fundamental freedoms are also applicable to legal persons. Likewise, the admissibility of consular and diplomatic protection for legal persons is an accepted principle in international law. Another issue is the applicability to third country nationals. Arguably, the protection of Art. 23 TFEU also extends to family members of Union citizens who are nationals of a third country. This follows from an interpretation of Art. 23 TFEU in light of Art. 8 ECHR and draws on the respective case law concerning the right to residence (Case 200/02 Zhu and Chen; Case C-413/99 Baumbast and R).
15 A further requirement is that the home State of the Union citizen is not represented in the third country. Under the principle of effet utile that includes cases in which a representation is not functioning or cannot be reached in due time, eg for geographical reasons. In contrast, it is not sufficient that the level of protection provided by the home State representation is less efficient.
16 As a result of the differences between the German and the other versions of Art. 23 TFEU, it is subject to debate whether this provision also extends to diplomatic protection. In the German version, Art. 23 TFEU refers to ‘diplomatic and consular protection’. This language obviously seems to include diplomatic protection. In all other languages, Art. 23 TFEU speaks of protection by the diplomatic and consular authorities. As diplomatic missions may also provide consular assistance, this wording is more open to a restrictive reading of the scope of the provision. In international law, diplomatic protection is associated with the law of State responsibility. It has a remedial function, namely to assert responsibility for an injury to a natural or legal person caused by an internationally wrongful act. In principle, diplomatic protection can only be exercised by the State of nationality. Consular protection, by contrast, has primarily a preventive function (Consular Functions). The distinction between those two regimes, however, is in itself not settled. Those advocating a limitation to consular protection, for example, often have a broader understanding of what constitutes consular protection (see Kluth 11; on the other hand Hilf 11–16, Künzli 332–37).
17 The existing complementary law has been limited to consular protection. In particular, Art. 5 (1) Decision 95/553/EC suggests that Art. 23 TFEU only encompasses consular assistance by consular and diplomatic missions of the Member States for distressed persons. However, acts adopted by the Member States on the basis of a Treaty provision have to be compatible with their legal basis, just as the legality of secondary law depends on its compatibility with primary law. While complementary law may serve as an indicator of the Member States’ interpretation of primary law, it cannot modify the rights provided for by the Treaties. Consequently, Decision 95/553/EC may not limit the scope of Art. 23 TFEU.
18 Whether a Member State is entitled to provide diplomatic protection for Union citizens who are not its nationals cannot be resolved unilaterally by the European Union. European citizenship itself does not provide a sufficient link to fulfil the requirement of nationality. Rather, the agreement of the State against which diplomatic protection shall be exercised is necessary. Accordingly, Art. 23 TFEU provides for an obligation of the Member States to enter into the necessary international negotiations. This provision provides the basis for a systematic interpretation indicating that diplomatic protection is in principle encompassed by the scope of Art. 23 TFEU. For the provision of consular assistance to nationals of another State, on the contrary, negotiations are in principle unnecessary, as Art. 8 Vienna Convention on Consular Relations (1963) (596 UNTS 261) only requires a notification. If the right to protection were limited to consular assistance, the negotiation clause would be stripped of its practical meaning. Further analysis underlines, however, that not all kinds of diplomatic protection are included by its scope. The applicability of Art. 23 TFEU is expressly limited to the territory of third States and it is subsidiary to the protection by the home State of a Union citizen. The exercise of diplomatic protection against another State will frequently not depend on the existence of a diplomatic mission in that State, ie in the case of international litigation. The scope of Art. 23 TFEU can thus be described in an institutional perspective: it is applicable if the involvement of a diplomatic or consular mission in a third State is necessary for the protection of a Union citizen. Examples include making legal declarations, transferring documents, official exertions for the release of imprisoned persons, assistance in the exhaustion of legal remedies (Kadelbach [2007] 76). So far, neither the European Union nor the Member States have entered into negotiations with a third State concerning the extension of diplomatic protection to Union citizens.
19 It has been an issue of debate whether Art. 23 TFEU is directly applicable (Treaties, Direct Applicability). Mainly two arguments are cited against direct applicability. Art. 23 TFEU provides, first, that the Member States need to adopt the necessary provisions, and, second, that they enter into international negotiations. For those arguing in favour of direct applicability, the necessary rules among the Member States only concern those implementing measures that simplify the exercise of the right. They do not, however, question the existence of the right as such. This interpretation is reinforced by the Lisbon Treaty that replaces the obligation to establish complementary law with a competence for the Council to adopt directives to facilitate protection by the consular and diplomatic authorities (see Art. 23 TFEU). With respect to the necessary consent of a third State insofar as diplomatic protection is concerned, it has been argued that its lack only constitutes a legitimate reason for unequal treatment but does not call into question the direct applicability of Art. 23 TFEU itself. Alternatively, it has been argued that Art. 23 TFEU engages the scope of application of the EC Treaty and thus of Art. 18 TFEU. Under this premise, the right to equal treatment exists independently from the answer on the direct applicability of Art. 23 TFEU (Kleinlein and Rabenschlag 1314–15).
20 Not all national legal orders recognize an individual right of their citizens to consular and diplomatic protection. In that case, direct applicability of Art. 23 TFEU does not have practical effects if its content is limited to an equal treatment provision. Thus the question arises whether Art. 23 TFEU obliges the Member States to provide such protection or whether the entitlement of Union citizens to protection only flows from the relevant complementary law in conjunction with the applicable domestic provisions. It has been argued that Art. 23 TFEU provides for such an individual right to protection, as otherwise its effet utile would be undermined (Ruffert 471–72). Yet, it stretches the principle of effet utile if it is used to transform a non-discrimination provision into an obligation to fulfil a certain action. Moreover, this interpretation brings Art. 23 TFEU in line with Art. 21 TFEU and Art. 22 (1) TFEU. A duty to act, however, might flow from fundamental rights (Kleinlein and Rabenschlag 1311–12). A harmonization of the protection regime could be achieved by the simplified treaty modification procedure of Art. 25 (2) TFEU. Art. 23 (2) TFEU provides a legal basis for such harmonization insofar as it is part of a coordination and cooperation measure necessary to facilitate protection by the consular and diplomatic authorities.
2. Protection by EU Institutions and Commission Delegations in Third Countries
21 In practice, the Commission frequently gives assistance to Union citizens and exercises diplomatic protection on behalf of Union citizens, the basis for which can be seen in Art. 35 TEU. This provision underlines that the Commission delegations form an integral part of the cooperation in diplomatic and consular matters under the European Security and Defence Policy. Diplomatic protection has also been exercised by resolutions of the European Parliament on behalf of Union citizens and by the Council.
22 The competence of the EU is an implied power following its external competences, eg its commercial policy (see also International Organizations or Institutions, Implied Powers). In particular, the EU can act if third States violate obligations arising from treaties they have concluded with the Union, be it under the legal personality of the EC. In these cases, third States have implicitly consented to the exercise of diplomatic protection within the scope of the respective treaty.
23 In light of Union citizenship and Art. 47 TEU, the competence of the EU entails an obligation to exercise protection. Accordingly, the Court of First Instance has assumed an obligation of the Commission to exercise diplomatic protection in a case concerning the protection of ships sailing under the flag of a Member State (Case T-572/93 Odigitria AAE v Council and Commission).
24 The implied power of the European Union to afford diplomatic protection to its citizens remains a parallel competence, even if the underlying substantive field is within the scope of an exclusive competence of the EU. The Member States are not generally precluded from exercising diplomatic protection in these areas. This distribution of competences reflects the legal situation in general public international law (see ICJ Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion] 185–86). The Member States, however, are under the obligation to coordinate their actions with the EU institutions in accordance with Art. 4 (3) TEU.
