Ochrona konsularna niereprezentowanych obywateli Unii Europejskiej w państwach trzecich (art. 23 TFUE)
Consular Protection of Unrepresented EU Citizens in Third Countries (art. 23 TFEU)
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Consular protection of unrepresented EU citizens exercised by other Member States is a relatively new concept which in recent years began to develop intensively. The essence of the right expressed in art. 23 TFEU, derived from the nature of the EU citizenship, is the right of an unrepresented citizen of the Union to seek consular protection provided by the diplomatic or consular authorities of another Member State located in a third country. Despite some doubts, it should be stated that the Treaty does not confer upon individuals a right to diplomatic protection, although some argue that the development of EU law might bring some changes. The right to consular protection relies on the principle of non-discrimination which means that a Member State is obliged to grant the protection only to the extent to which its’ own citizens would be entitled. Considering that Member States do not present unified level of protection, there has to be a case-by-case approach to every aid that is granted and the results, depending on the relevant Member State, may differ significantly, including even a refusal of the assistance. Direct effect of the art. 23 TFEU and control thereof are limited to the examination whether the Member State correctly adopted the non-discriminatory rule. If it was concluded that the consular protection would not have been granted to the citizen of this particular MS, the Member State should not be obliged to provide the aid to unrepresented EU citizen. Nevertheless, some consider that in the future an international custom might be constituted, according to which the refusal to grant the protection to the EU citizen by other MS will not be allowed nor justified. Moreover, the significance of the Charter of Fundamental Rights might play a pivotal role in the development of the right to consular protection, as Member States, while implementing EU law, are obliged to comply with the EU standard of fundamental rights. In addition, in the case of strengthening the role of EU delegations, the rights stated in the CFR, such as the right to good administration, will create a framework defining obligations and procedural guaranties of the EU institutions. Since the Maastricht Treaty, the European Union seeks to create a sense of community and belonging, the next few months dedicated to the implementation of the Directive 637/2015 will be decisive to determine effectiveness and the actual impact of EU legislation on the situation of EU citizens.
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