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Consular Protection Abroad: a Union Citizenship Fundamental Right?

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Consular Protection Abroad: a Union Citizenship Fundamental Right? UNIVERSIDAD AUTÓNOMA DE BARCELONA FACULTAD DE DERECHO DEPARTAMENTO DE CIENCIA POLÍTICA Y DERECHO PÚBLICO CONSULAR PROTECTION ABROAD: A UNION CITIZENSHIP FUNDAMENTAL RIGHT? TESIS DOCTORAL Presentada por Eva­Maria Alexandrova POPTCHEVA bajo la dirección de la Dra. Teresa FREIXES SANJUÁN Bellaterra, febrero 2012 «Les hommes n'acceptent le changement que dans la nécessité et ils ne voient la nécessité que dans la crise.» Jean Monnet Mémoires 1976 Table of Contents A. INTRODUCTION......................................................................................................7 B. CONCEPTUALISING “CONSULAR PROTECTION” ..................................27 I. Problem‐Statement..........................................................................................28 II. Multilevel Context of Consular Protection ...........................................29 1. Differentiation between Diplomatic and Consular Protection 31 1. 1. Triggering Event.................................................................................45 1. 2. Nationality Rule and Third States’ Consent ............................47 1. 3. Right to Diplomatic Protection under European Union Law?...................................................................................................................50 1. 4. Discretionary Character of Diplomatic Protection...............59 1. 5. Interim Findings .................................................................................61 2. Relationship between International Law‐ and European Union Law‐Rules ..............................................................................................62 3. Best Possible Effectiveness of Union Provisions in Light of International‐Law Rules ...............................................................................82 III. Consular Assistance and Consular Protection ..................................85 IV. Conclusions ......................................................................................................94 C. DOGMATIC FRAMEWORK OF THE LEGAL CHARACTER OF THE PROVISION OF CONSULAR PROTECTION UNDER EUROPEAN UNION LAW ................................................................................................................97 I. General Considerations..................................................................................98 II. Constitutional Dimension of Union Citizenship.............................. 104 III. Subjective Rights in European Union Law....................................... 114 1. Invocabilité and Subjective Rights under Primary Union Law114 2. Rights as Institutions of Law ............................................................... 120 3. Preliminary Considerations to the Right to Consular Protection as a Subjective Right ............................................................. 125 IV. Conclusions ................................................................................................... 141 1 D. DIRECT EFFECT OF UNION PROVISIONS ON CONSULAR PROTECTION: EXERCISE OF THE RIGHT TO CONSULAR PROTECTION........................................................................................................... 147 I. Direct Effect and Direct Applicability of Union Provisions.......... 148 II. Direct Effect of Primary European Union Law................................ 151 III. Direct Effect of Union Citizenship’ Rights........................................ 154 IV. Conditionality of the Provision of Consular Protection? ........... 158 1. Implementing Rules ................................................................................ 159 2. International Negotiations................................................................... 164 3. Member States’ Discretion ................................................................... 170 4. Conditionality of Financial Advance? .............................................. 174 V. The Right to Consular Protection as a Fundamental Right under the Charter of Fundamental Rights of the European Union............ 179 VI. Conclusions ................................................................................................... 189 E. HOLDERS OF THE RIGHT TO CONSULAR PROTECTION................. 193 I. “Unrepresented” European Union Citizens........................................ 194 1. Holders of Union Citizenship............................................................... 194 2. Lack of Diplomatic or Consular Representation of the Member State of Nationality....................................................................................... 200 2. 1. Representation by the own Member State or by another State Representing it on a Permanent Basis ................................. 202 2. 2. Consular Protection Provided by Honorary Consuls....... 207 2. 3. Accessibility of the Representation of the Member State of Nationality .............................................................................................. 212 II. Family Members who are not Union Citizens.................................. 218 III. Third Country Nationals Enjoying Consular Protection by a Member State...................................................................................................... 233 IV. Conclusions ................................................................................................... 236 F. SUBSTANTIVE SCOPE OF THE RIGHT TO CONSULAR PROTECTION........................................................................................................... 239 I. Mere Right to Equal Treatment?............................................................. 241 II. The “If” and “How” of Consular Protection ....................................... 246 1. Problem‐Statement ................................................................................. 246 2. National Rules on Consular Protection........................................... 248 2.1. AUSTRIA............................................................................................... 248 2.2. BELGIUM.............................................................................................. 249 2.3. BULGARIA............................................................................................ 250 2.4. CYPRUS ................................................................................................. 251 2.5. CZECH REPUBLIC ............................................................................. 252 2.6. DENMARK............................................................................................ 252 2 2.7. ESTONIA............................................................................................... 253 2.8. FINLAND .............................................................................................. 253 2.9. FRANCE................................................................................................. 254 2.10. GERMANY.......................................................................................... 254 2.11. GREECE .............................................................................................. 256 2.12. HUNGARY.......................................................................................... 256 2.13. IRELAND............................................................................................ 257 2.14. ITALY................................................................................................... 258 2.15. LATVIA ............................................................................................... 258 2.16. LITHUANIA....................................................................................... 259 2.17. LUXEMBOURG................................................................................. 260 2.18. MALTA................................................................................................ 261 2.19. THE NETHERLANDS..................................................................... 261 2.20. POLAND ............................................................................................. 262 2.21. PORTUGAL........................................................................................ 263 2.22. ROMANIA .......................................................................................... 264 2.23. SLOVAKIA.......................................................................................... 265 2.24. SLOVENIA.......................................................................................... 266 2.25. SPAIN .................................................................................................. 267 2.26. SWEDEN ............................................................................................ 268 2.27. THE UNITED KINGDOM.............................................................. 270 3. Scope of Coverage and Limits to the Right to Consular Protection......................................................................................................... 271 3. 1. A Multilevel Right............................................................................ 271 3. 2. Discrimination against Nationals? ........................................... 275 3. 3. The Right to Consular Protection as a Right in Process of Legal Construction.................................................................................... 278 3. 4. Positive Claim under the Right to Consular Protection: an “Umbrella Right” ....................................................................................... 279 4. Limits on the Limits
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