CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE INTERNATIONAL LAW ASPECTS OF THE NEW CZECH ACT … As such, the Foreign Ministry will probably have to focus on choosing the right candidates for consular service that could meet these new demands. Legal education should certainly be an advantage. Regarding the limits of consular protection, these can be found in three different aspects. First, while the Act on Foreign Service contains the above-stated list of situations when consular protection may be provided, including “in case of emergency”, it also limits its scope in § 17(5) by determining that “[t]he emergency is not when a citizen went abroad without sufficient financial means for travel and stay.” This sentence should provide a sufficient legal basis for the Czech consular officers to deal with their irresponsible countrymen. Second, even when there is a reason to provide consular protection, under certain conditions specified in § 17(10) of the Act it is possible to turn it down: “The representative office may deny the provision of help if the requesting citizen does not provide the consular officer appropriate cooperation, does not participate actively in dealing with his or her situation, has already abused the help provided in the past, gave the representative office untrue information, did not reimburse the costs for earlier provided consular protection or the provision of help would be manifestly inappropriate, unless by denial of help the citizen would suffer serious harm to health or find himself or herself in danger of life.” Third, § 17(11) of the Act on Foreign Service enables a “representative office” to use discretion to take into account specific circumstances of every consular case: “The process of providing consular protection in a specific case is determined by the representative office.” Although this sentence might from the purely legislative point of view be superfluous (who else should decide which steps to take than the “representative office” with complete knowledge of the consular case?), it may eliminate possible doubts and strengthen the position of consular officers “in the field”. As mentioned in the introduction, the Act on Foreign Service aims to achieve the transposition of the Council Directive 2015/637. For this reason, the second part (§ 24-31) on providing consular protection to unrepresented citizens of the EU in third countries was incorporated into Chapter IV on the exercise of consular service. This part confirms [in § 24(1)] the key principle that, “[i]n the territory of a third country, consular protection is provided also to the unrepresented citizens on the same conditions as to the [Czech] citizens…“ and further lays down conditions on how such consular protection will be provided, including financial procedures (in § 29 of the Act) on the repayment of costs. As this part of the Act constitutes mere transposition of the secondary EU law, most of its text just had to be copied from the Council Directive 2015/637, without any space left for possible legislative “creativity” by the Foreign Ministry. It should be recalled here that consular protection for unrepresented citizens of the Union in third countries is not a new concept, as it was already introduced by the Maastricht Treaty and further developed by the Amsterdam Treaty and the Charter of Fundamental Rights of the European Union. The transposition of the Council Directive 2015/637 into the Act on Foreign Service also has an international law aspect. Although the Vienna Convention on Consular Relations mentions in its Article 5 on consular functions only the “nationals of the sending State”, it enables in Article 8 the exercise of consular function on behalf of a third State: “Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf

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