997 establishing an EU Emergency Travel Document - Main contents

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dossier	COM(2023)930 - Amendment of Directive (EU) 2015/637 on the coordination and cooperation measures to facilitate consular protection for ...
document	COM(2023)930
date	December 6, 2023

Article 1

Directive (EU) 2015/637 is amended as follows:

(1) Articles 6 and 7 are replaced by the following:

‘Article 6
Absence of representation

1. For the purposes of this 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 or consulate there which is effectively in a position to provide consular protection in a given case.

2. To determine whether a Member State has no embassy or consulate which is effectively in a position to provide consular protection in a given case, the embassy or consulate from which the unrepresented citizen seeks consular protection shall take into account the following criteria, in light of local circumstances:

(a) the difficulty for the citizen concerned to safely reach or be reached by the embassy or consulate of his or her Member State of nationality within a reasonable period of time, taking into account the nature and urgency of the assistance requested and the means available to the citizen;

(b) possible closures of the embassy or consulate of his or her Member State of nationality, including when it cannot be confirmed, within a reasonable period of time, as operational and accessible;

(c) whether, by redirecting the citizen to the embassy or consulate of his or her Member State of nationality, consular protection would likely be compromised, in particular if the urgency of the matter requires immediate action by the requested embassy or consulate.

3. For the purpose of determining, in accordance with paragraph 2, whether a Member State has an embassy or consulate which is effectively in a position to provide consular protection in a given case, the presence of an honorary consul of the citizen’s Member State of nationality may only be taken into account if the assistance requested by the citizen is covered by the competences of the honorary consul.

Article 7
Access to consular protection and other arrangements

1. Unrepresented citizens shall be entitled to seek protection from the embassy or consulate of any Member State.

2. Without prejudice to Article 2, a Member State may represent another Member State on a permanent basis and Member States’ embassies or consulates may, wherever deemed necessary, conclude practical arrangements on sharing responsibilities for providing consular protection to unrepresented citizens.

In such cases, an embassy or consulate from which the unrepresented citizen seeks consular protection, and which is not designated as competent according to the specific arrangement in place, shall transfer the application from the citizen to the relevant embassy or consulate, unless consular protection would thereby be compromised, in particular if the urgency of the matter requires immediate action by the requested embassy or consulate.

3. Where a crisis situation results in a large number of applications for consular protection, the embassies and consulates of the Member States represented in the third country concerned may, supported by the Union delegation, agree to distribute applications based on available capacity, unless consular protection would thereby be compromised, in particular if the urgency of the matter requires immediate action by the requested embassy or consulate. Such distribution may also be pre-agreed in the context of a joint consular contingency plan referred to in Article 13 and may derogate from practical arrangements that have been concluded in accordance with paragraph 2.

4. Unrepresented citizens who seek protection pursuant to paragraph 1 shall be kept informed of any transfers pursuant to paragraphs 2 or 3.’;

(2) in Article 9, points (e) and (f) are replaced by the following:

‘(e) relief, evacuation and repatriation in case of an emergency;

(f) need for an EU Emergency Travel Document established by Directive (EU) 2019/997*.

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* 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, ELI: http://data.europa.eu/eli/dir/2019/997/oj).’;

(3) Article 10 is amended as follows:

(a) paragraph 4 is replaced by the following:

‘4. Member States shall notify the European External Action Service (EEAS) through its secure internet site of the relevant contact point(s) in the Ministries of Foreign Affairs.’;

(b) the following paragraph 5 is added:

‘5. Where appropriate and necessary to provide consular protection, Member States may also involve, in their coordination and cooperation measures, honorary consuls and their security and military personnel, international organisations or diplomatic and consular authorities of third countries.’;

(4) Articles 11, 12 and 13 are replaced by the following:

‘Article 11
The role of Union delegations

1. Union delegations shall closely cooperate and coordinate with Member States’ embassies and consulates to contribute to local consular cooperation, crisis preparedness and crisis response, in particular by:

(a) providing available logistical support, including office accommodation and organisational facilities, such as temporary accommodation for consular staff and joint consular teams referred to in Article 13a(2);

(b) facilitating the exchange of information between Member States’ embassies and consulates;

(c) facilitating, where appropriate, the exchange of information with local authorities, diplomatic and consular authorities of third countries and international organisations;

(d) making general information available about the assistance that unrepresented citizens could be entitled to, particularly about agreed practical arrangements if applicable;

(e) chairing local consular cooperation meetings referred to in Article 12(2);

(f) coordinating the setting up and agreement of joint consular contingency plans referred to in Article 13;

(g) participating in crisis response activities in accordance with Article 13a, including, where relevant and appropriate, by providing support to the Lead State.

2. Union delegations shall support Member States in the provision of consular protection to unrepresented citizens in accordance with Article 5(10) of Decision 2010/427/EU. Such support may include carrying out, upon request by and on behalf of Member States, specific consular assistance tasks. The assisting Member State and the Member State of nationality shall provide the Union delegation with all the relevant information in the case concerned.

Article 12
Local consular cooperation

1. The consular authorities of the Member States and the Union delegation shall engage in local consular cooperation within each third country.

2. Local consular cooperation meetings shall include regular exchanges on:

(a) the security and safety of Union citizens and on other matters relevant to them;

(b) the drafting and delivery of joint consular demarches to third country authorities, where relevant;

(c) the setting up, agreement and review of joint consular contingency plans referred to in Article 13;

(d) the organisation of joint consular exercises;

(e) practical arrangements referred to in Article 7(2) to ensure that unrepresented citizens are effectively protected in the third country concerned.

3. Unless otherwise agreed by the consular authorities of the Member States, the Chair shall be a representative of the Union delegation. Where no Union delegation is present, meetings shall be chaired by a representative of a Member State.

Article 13
Crisis preparedness

1. In the context of local consular cooperation referred to in Article 12, Member States and the EEAS shall set up and agree a joint consular contingency plan for each third country. The joint consular contingency plan shall be updated annually and contain:

(a) an analysis of the consular situation in the country, including an overview of Member State embassies or consulates, an estimate of the number and location of Union citizens, and a risk assessment of the most plausible scenarios affecting Union citizens;

(b) joint consular crisis preparedness arrangements, including communication channels and contacts within local consular cooperation and with local authorities and relevant third countries;

(c) joint consular crisis response arrangements, including information-sharing and communication processes within local consular cooperation and with Union citizens, crisis meetings, cooperation with local authorities and relevant third countries and crisis and post-crisis actions;

(d) where a Member State assumes the role of Lead State in a given third country as referred to in Article 13a(3), a description of its responsibilities;

(e) other relevant information.

2. Where present, Union delegations shall coordinate the setting up and agreement of joint consular contingency plans, based on contributions made by the embassies or consulates of the Member States represented in the third country concerned and the consular authorities of unrepresented Member States. Joint consular contingency plans shall be made available to all Member States, the EEAS and the Commission services.

In third countries where no Union delegation is present, the coordination shall be done by the Chair of the local consular cooperation agreed pursuant to Article 12(3), supported by the EEAS.

3. Member States and Union delegations shall annually carry out consular exercises to update and improve local joint consular crisis preparedness and response.

4. Member States shall, in accordance with national law, provide their citizens with the possibility to register with or inform competent national authorities, by appropriate means and tools, of their travels to or residence in third countries.

5. Member States shall exchange information on changes to their travel advice to citizens at an early stage, in particular in the context of crisis situations, and shall seek to ensure consistency in the level of travel advice given.’;

(5) in Chapter 2, the following Article 13a is inserted:

‘Article 13a
Crisis response

1. In the event of a crisis, the Union and Member States shall closely cooperate to ensure efficient assistance for unrepresented citizens. They shall, where possible, inform each other of available evacuation capacities in a timely manner, including in case of operations using military assets.

2. Where necessary, Member States may be supported by joint consular teams composed of experts from Member States, in particular from Member States not represented in the third country affected by the crisis, the EEAS and the Commission services. Joint consular teams shall be available for rapid deployment to third countries affected by a consular crisis. Participation in joint consular teams shall be voluntary.

3. Where applicable, the Lead State or the Member State(s) coordinating the assistance shall be in charge of coordinating any support provided for unrepresented citizens, with the support of the other Member States concerned, the Union delegation and the EEAS central administration. Member States shall provide the Lead State or the Member State(s) coordinating assistance with all relevant information regarding their unrepresented citizens present in a crisis situation.

4. When providing assistance, Member States may seek, if appropriate, support from Union instruments such as the crisis management structures of the EEAS and its Crisis Response Centre and, via the Emergency Response Coordination Centre established by Article 7 of Decision No 1313/2013/EU, the Union Civil Protection Mechanism.’;

(6) the following Chapter 2a is inserted:

‘CHAPTER 2a
PROVISION OF INFORMATION

Article 13b
Provision and dissemination of information

1. At least once per year, Member States shall provide the Commission and the High Representative of the Union for Foreign Affairs and Security Policy with the following information:

(a) up-to-date lists of contacts for their consular networks;

(b) lists of third countries where they are represented by another Member State or where they represent another Member State on a permanent basis in accordance with Article 7(2);

(c) practical arrangements concluded pursuant to Article 7(2);

(d) the number of unrepresented citizens having been provided consular protection referred to in Article 2 during the previous year, broken down by nationality and third country;

(e) the number of reimbursement requests submitted and received pursuant to Articles 14 and 15 during the previous year.

Where a Member State has decided, pursuant to Article 2(2), to apply this Directive to the consular protection provided by honorary consuls, the list referred to in point (a) shall include honorary consuls as well as information on the extent to which honorary consuls are competent to provide protection in a given case, in particular whether they are empowered to issue EU Emergency Travel Documents.

2. Member States, the Commission services and the EEAS shall make the information referred to in paragraph 1, points (a), (b) and (c), publicly available in a manner that ensures the coherence of the information provided.

3. Where requested by the Commission, Member States shall provide the information referred to in paragraph 1 in a machine-readable format.

4. The Commission may adopt implementing acts establishing the specific machine-readable format in which the information referred to in paragraph 1 is to be provided. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15a(2).

Article 13c
Information to Union citizens

1. Member States shall take measures to inform their citizens of their right set out in Article 20(2), point (c), TFEU. This may include in particular the following measures:

(a) reproducing the first sentence of Article 23 TFEU on national passports;

(b) including information on the right to consular protection in travel advice and campaigns relating to consular protection;

(c) cooperating on information campaigns with passenger transport service providers and transport hubs offering travel to third countries.

2. The Commission services and the EEAS shall contribute to informing Union citizens about their right to consular protection.’;

(7) Articles 14 and 15 are replaced by the following:

‘Article 14
General rules

1. Any costs charged by an assisting Member State for the provision of consular protection to unrepresented citizens shall be the same as the costs it would charge to its own nationals.

2. If an unrepresented citizen is unable to pay the costs referred to in paragraph 1 to the assisting Member State when making a request for assistance, the assisting Member State may require the unrepresented citizen to sign an undertaking to repay. On that basis, the assisting Member State may ask the unrepresented citizen concerned to pay such costs once four weeks have passed since the assistance was provided.

Being unable to pay the costs referred to in paragraph 1 when making a request for assistance shall not affect the right of the unrepresented citizen to receive consular protection.

3. If an unrepresented citizen to whom consular protection was provided has not paid the costs referred to in paragraph 1, neither when making a request for assistance nor when having been requested to do so by the assisting Member State pursuant to paragraph 2, the assisting Member State may, within 12 months of the date of signature of the undertaking to repay referred to in paragraph 2, ask for the payment of the costs from the unrepresented citizen’s Member State of nationality.

The unrepresented citizen’s Member State of nationality shall reimburse those costs within a reasonable period of time not exceeding 12 months from the date of the request. The unrepresented citizen’s Member State of nationality may ask the unrepresented citizen concerned to repay such costs.

4. When the consular protection provided to an unrepresented citizen involves unusually high but essential and justified costs related to travel, accommodation or translation for the diplomatic or consular authorities, the assisting Member State may, within 12 months of the assistance provided, ask for the reimbursement of such costs directly from the unrepresented citizen's Member State of nationality, which shall reimburse them within a reasonable period of time, not exceeding 12 months.

5. Member States shall reimburse Union delegations for their support in providing consular protection to unrepresented citizens. In that case, reimbursement of costs by the citizen’s Member State of nationality shall ensure that the support provided by Union delegations is on a resource-neutral basis.

6. The Commission may adopt implementing acts establishing standard forms to be used for the undertaking to repay referred to in paragraph 2 and for the repayment of the costs from the Member State of nationality referred to in paragraph 3. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15a(2).

Article 15
Facilitated procedure in crisis situations

1. In crisis situations, and unless the costs of the support provided have already been repaid by the unrepresented citizen directly, the assisting Member State may seek reimbursement of the costs from the unrepresented citizen’s Member State of nationality even if the unrepresented citizen has not signed an undertaking to repay pursuant to Article 14(2). This shall not prevent the unrepresented citizen’s Member State of nationality from pursuing repayment from the unrepresented citizen concerned on the basis of national rules.

2. The assisting Member State may ask the unrepresented citizen’s Member State of nationality to reimburse the costs referred to in paragraph 1 on a pro-rata basis, by dividing the full value of the actual costs incurred by the number of citizens assisted.

3. Where, in the crisis situations referred to in paragraph 1, it is not possible or practically feasible to distinguish between represented and unrepresented citizens, and where the possibility to provide assistance to unrepresented citizens requires or implies assistance to citizens who may also be represented, the procedure in paragraphs 1 and 2 shall also apply to consular protection provided by the assisting Member State to represented citizens of another Member State in crisis situations.

4. Paragraphs 1, 2 and 3 shall apply also to situations where a Union delegation has supported a Member State in providing consular protection. In that case, reimbursement of costs by the citizen’s Member State of nationality shall ensure that the support provided by Union delegations is on a resource-neutral basis.

5. Reimbursements requested pursuant to paragraphs 1, 2 and 3 shall be taken into account in determining any contribution of the Union Civil Protection Mechanism, in accordance with Decision No 1313/2013/EU, for the provision of civil protection support to consular assistance to Union citizens in disasters in third countries.’;

(8) in Chapter 4, the following Article 15a is inserted:

‘Article 15a
Committee procedure

1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council*.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

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* Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13, ELI: http://data.europa.eu/eli/reg/2011/182/oj).’;

(9) the following Articles 16a and 16b are inserted:

‘Article 16a
Protection of personal data

1. For the purposes of this Directive, the competent authorities of the Member States shall process personal data only to:

(a) transmit the application of a person seeking consular protection in accordance with Article 3 or Article 7;

(b) verify the identity of a person seeking consular protection in accordance with the procedure set out in Article 8;

(c) provide consular protection to that person, in particular by providing the types of assistance referred to in Article 9;

(d) cooperate, coordinate and provide support in accordance with Article 10, Article 11, Article 13(1) and Article 13a;

(e) provide the contact information referred to in Article 10(4) and Article 13b(1);

(f) process financial reimbursement requests regarding the consular protection provided in accordance with Article 14 and Article 15.

2. Processing of personal data by Union institutions and bodies within the meaning of Regulation (EU) 2018/1725 of the European Parliament and of the Council* for the purposes of this Directive shall take place only where necessary to carry out the tasks referred to in Article 10(1), Article 11, Article 13 and Article 13a, to process information received pursuant to Article 10(4) and Article 13b(1), or to process financial reimbursement requests in accordance with Article 14(5) and Article 15(4).

3. When processing personal data pursuant to paragraphs 1 and 2, the competent authorities of Member States and Union institutions and bodies shall be considered, within the scope of their respective activities under this Directive, as the controller referred to, respectively, in Article 4(7) of Regulation (EU) 2016/679 of the European Parliament and of the Council** and Article 3(8) of Regulation (EU) 2018/1725.

4. Personal data processed pursuant to paragraphs 1 and 2 shall be limited to what is necessary to carry out the tasks referred therein, such as the identity of the person in need of consular protection and the circumstances of the consular case.

5. The competent authorities of the Member States and Union institutions and bodies may process personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, data concerning sex life or sexual orientation or personal data relating to criminal convictions and offences of a person in need of consular protection where doing so is strictly necessary to be able to carry out the tasks referred to in Article 9, Article 10, Article 11 and Article 13a in relation to that person.

6. When processing the personal data referred to in paragraph 5, the competent authorities of the Member States and Union institutions and bodies shall ensure suitable and specific measures to safeguard data subjects’ interests. They shall also introduce internal policies and undertake necessary technical and organisational measures to prevent unauthorised access and transmission of such personal data.

7. For the purposes of this Directive, the competent authorities of the Member States shall transfer personal data to a third country or international organisation only to carry out the tasks referred to in Article 9, Article 10 and Article 13a and in accordance with Chapter V of Regulation (EU) 2016/679.

For the purposes of this Directive, Union institutions and bodies shall transfer personal data to a third country or international organisation only to carry out the tasks referred to in Article 10(1), Article 11 and Article 13a and in accordance with Chapter V of Regulation (EU) 2018/1725.

8. The assisting Member State, the Member State of nationality and, where applicable, Union institutions and bodies shall retain the personal data of an assisted person only for as long as necessary to carry out the tasks referred to in paragraphs 1 and 2. In no case shall that personal data be retained longer than 12 months by the assisting Member State and Union institutions and bodies, or longer than 24 months by the Member State of nationality, from the date of collection. Contact details exchanged in accordance with Article 10(4) and Article 13b(1) shall only be retained for as long as the persons exercise the relevant function.

The personal data shall be erased as soon as possible after the tasks referred to in paragraph 1 or 2 have been completed and at the latest upon the expiry of the retention periods referred to in the first subparagraph.

Article 16b
Remedies

Member States shall ensure that unrepresented citizens have an effective remedy under national law in the event of a breach of their rights under this Directive.

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* 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 (OJ L 295, 21.11.2018, p. 39, ELI: http://data.europa.eu/eli/reg/2018/1725/oj).

** 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) (OJ L 119, 4.5.2016, p. 1, ELI: http://data.europa.eu/eli/reg/2016/679/oj).’;

(10) in Article 19, the following paragraph 3 is added:

‘3. No sooner than [eight years after the transposition deadline of the amending Directive], the Commission shall carry out an evaluation of this Directive and present a report on the main findings to the European Parliament and the Council.

Member States shall provide the Commission with the information necessary for the preparation of that report.’;

(11) Annexes I and II are deleted.

Article 2

Article 5(3) of Directive (EU) 2019/997 is replaced by the following:

‘3. Where applicants are unable to pay any applicable fees to the assisting Member State when submitting their application, Article 14(2) and (3) and Article 15 of Directive (EU) 2015/637 shall apply.’.

Article 3

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [two years after the entry into force] at the latest. They shall forthwith communicate to the Commission the text of those provisions.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 4

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 5

This Directive is addressed to the Member States.