Diplomats or fonctionnaires? The Contested Status of the EU’s ‘Embassy’ in the UK

May the European Union have a full diplomacy, on a par with States? This issue has been problematic since 1954, when the European Coal and Steel Community opened its first delegation – in London. Already in 1961, Pescatore wrote that ‘it is clear why the use of the term “diplomatic” to designate the Community’s missions in third countries must provoke misunderstandings’: since Community missions operated only within the scope of an economic organisation’s mandate, the ‘purely diplomatic function’ continued to fall to the missions of the Member States (p. 192, the translation is mine). The EU has developed considerably it diplomatic network since 1954: today, the EU has 135 delegations accredited to third States (see document EEAS(2020) 762). Their status, however, is not uncontested.

It was recently reported that the British government refuses to grant diplomatic privileges and immunities to the EU delegation in London because it treats it as an office of an international organisation (BBC; The Guardian). This decision raises a symbolic issue: The EU has long sought to secure ‘equality with States’ to legitimise itself as an international actor. According to the European Commission’s Guide diplomatique pratique (1992), ‘the regime of delegations  […] has, since the beginning of their history on 21 December 1954, been that of diplomatic missions and not of “representative offices” of an international organisation’ (not published in open sources; the translation is mine). Since the 70’s, the Commission has been seeking to obtain diplomatic privileges and immunities for its delegations, which were transformed into EU delegations in 2010, and are now part of the European External Action Service (EEAS).  The Commission was largely successful, to the extent that most EU delegations in third countries now enjoy diplomatic immunities.

After the Treaty of Lisbon, the EU became particularly assertive, to the point that the EEAS claims that, by virtue of their immunities and privileges, ‘EU Delegations are diplomatic missions in the same sense as are those of States’ (EEAS, EU Delegations’ Guide, 2020, not published in open sources). Delegations, therefore, should engage with host countries to establish ‘the principle of equality with States’, i.e. to make sure that the principle of precedence provided for in Art. 16 of the Vienna Convention 1961 also applies to EU Ambassadors (ibid.). The EU’s objective is transparent: being recognised as a State-like international subject, instead of a ‘traditional’ international organisation. By denying diplomatic immunities and privileges to the EU delegation, the British government challenges a long-standing policy of the European Union and its (self-proclaimed) legitimacy as a fully-fledged international actor.

The denial of privileges and immunities to the EU delegation in London has also practical relevance. Unlike the embassies of States, the offices of international organisations enjoy limited immunities. The staff of international organisations, in particular, are typically granted only the immunity necessary for the exercise of their functions (so-called ‘functional immunity’, see inter alia Schermers and Blokker 2011, pp. 385-387), whereas a State diplomat also enjoys personal immunity, including, for example, absolute immunity from criminal jurisdiction (see Vienna Convention 1961, Art. 31). Diplomatic immunities are indeed necessary for the performance of diplomatic functions without fear of retortions from the receiving governments (see e.g. Duquet 2019; McClanahan 1989; Ogdon 1937). It is worth noting that diplomatic immunities are granted to all diplomatic missions, including those in democratic and stable States, not least because democracy and stability are relative and uncertain, as demonstrated by the attack against the US Capitol of January 2021. One may wonder, at any rate, whether EU delegations are indeed diplomatic missions, requiring diplomatic privileges and immunities.

EU Delegations as Diplomatic Missions

When reference is made to ‘diplomatic missions’ in international law, that reference is generally intended to the missions of States (see e.g. Vienna Convention 1961, Art. 2). Nonetheless, it seems reasonable to argue that ‘EU Delegations are diplomatic missions in the same sense as are those of States’ (EU Delegations’ Guide, 2020). Delegations are similar to States’ embassies, in particular, from a functional perspective. This analogy is relevant, considering that diplomatic immunities, as noted above, are granted precisely to enable the performance of diplomatic functions.

Unlike the ‘Community’s missions’ of the 1960’s, current EU delegations do not operate within the scope of a purely economic integration organisation, but deal with topics ranging from trade, to development cooperation and foreign policy at large (the Common Foreign and Security Policy). EU delegations may thus perform most functions of diplomatic missions, i.e. representation, negotiation, information, promotion of friendly relations, and protection of the interests of the sending subject and its citizens (Vienna Convention 1961, Art. 3; see amplius Gatti 2016 pp. 285-288; contra, Kerres and Wessel 2015). The main functional limit of EU delegations lies with the protection of EU citizens, as consular and diplomatic protection is generally exercised by the Member States, notably through démarches of their missions to the hosting States. Nonetheless, EU delegations may, in some cases, participate in this activity (Gatti 2020, pp. 169-170; see also Council document Consular démarches: Toolkit on procedural issues).

The EU delegation in the UK is likely to be particularly involved in the protection of EU citizens. This delegation must supervise the application of the UK Withdrawal Agreement, which grants free movement rights, in the UK, to EU citizens who settled in this country before the end of the transition period. These EU citizens enjoy their rights ‘for their lifetime’ (Art. 39 of the Withdrawal Agreement). As the Withdrawal Agreement was concluded by the UK and the European Union, only the EU can invoke the UK’s responsibility for the violation of the rights conferred by the Withdrawal Agreement. Therefore, the EU delegation should be able to conduct démarches to UK authorities in respect of the violation of EU citizens’ rights protected by the Withdrawal Agreement (Gatti 2020, pp. 171-175). If there are doubts regarding, in general, EU delegations’ ability to protect EU citizens, they arguably do not concern the EU delegation in London. From a functional perspective, therefore, the EU delegation in the UK is very close to the embassy of a State.

Like all other diplomatic missions, the EU delegation in London would be unable to perform its functions if it (and its staff) lacked the protection offered by diplomatic immunities. By depriving the EU delegation of diplomatic immunities, the UK government would also set a dangerous precedent: other countries, including authoritarian States, might follow the example of the British government, putting the activity and even the lives of EU diplomats at risk. 

An Inimical but Probably Lawful Denial

This is not the first time a government has taken inimical diplomatic measures against the EU. In 2018, the Trump administration ‘downgraded’ the EU delegation to the United States. The US government, at any rate, did not question the diplomatic immunities of the delegation but changed the order of precedence of the diplomatic corps in Washington. Under Art. 16 of the Vienna Convention 1961, the heads of mission of States’ embassies take precedence in the order of the date and time of taking up their functions. The EU, as mentioned above, requests the application of this rule to its ambassadors too. In the US, the head of delegation was included in the order of precedence of States only in 2016. The Trump administration decided to reverse this decision, by listing the EU head of delegation among the representatives of international organisations (Deutsche Welle 2019; on the order of precedence, see Denza 2016, pp. 95 ff.). The EU strongly opposed the ‘downgrading’ of its delegation and obtained a return of its ambassador to the list of the representatives of States in 2019, where he remains to this day (see US Department of State 2021).

The British government has partly followed the Trump precedent, to the extent that it denies the EU delegation a place among the States in the order of precedence (see Foreign and Commonwealth Office 2021). However, the UK adopted a more drastic approach, as it also refuses to grant the EU delegation diplomatic privileges and immunities. The UK seems exceptional in this respect. According to the EEAS, ‘the Privileges and Immunities described in the Vienna Convention [of 1961] are extended to the EU Delegations’ (EU Delegations’ Guide, 2020). This assertion seems generally correct, though there might be a few exceptions; e.g. Canada seems to grant only functional immunities to the EU delegation and its staff (see European Communities Privileges and Immunities Order of 1976; see also Baroncini 2008, pp. 198-201). The UK, at any rate, is the only country that denied diplomatic privileges and immunities to an EU delegation in recent times.

The British decision seems a provocation, all the more so because it is hardly justified. The British government argues that it does not want to create a ‘precedent’ that would lead to the proliferation of diplomatic status (see The Guardian 2021), but this argument is specious, given that most EU delegations already enjoy diplomatic privileges and immunities. These ‘precedents’ were indeed approved, tacitly or expressly, by the British government, which, until January 2020, was represented in the EU Council. The UK representative in the Council even voted in favour of Decision 2010/427/EU, whose Art. 5(6) stipulates that, the High Representative must ensure that receiving States accord to EU delegations, their staff and their property, ‘privileges and immunities equivalent to those referred to in the Vienna Convention on Diplomatic Relations of 18 April 1961’, i.e. diplomatic privileges and immunities.

Although inimical, the British government’s decision is probably lawful. The immunities of offices and agents of international organisations are generally governed by international agreements. As long as the United Kingdom has been a member of the European Union, the European Commission Representation in London has enjoyed rights and immunities under Protocol 7 on the privileges and immunities of the European Union. The newly opened EU delegation in London also enjoyed these rights throughout the transition period set by the UK Withdrawal Agreement, i.e. between 1 February and 31 December 2020 (see Art. 127).

With the end of the transition period, the status of the London delegation and its staff has become uncertain. The issue is neither addressed in the UK Withdrawal Agreement nor in the subsequent EU-UK Trade and Cooperation Agreement or other bilateral agreements. Typically, the EU concludes an establishment agreement with the State hosting its delegation, a practice codified in Decision 2010/427/EU, that authorises the High Representative to conclude such agreements on the EU’s behalf. However, the conclusion of an establishment agreement with the UK seems impossible at present. As noted above, Decision 2010/427/EU stipulates that EU delegations, their staff and their property, must be granted ‘privileges and immunities equivalent’ to diplomatic privileges and immunities. As long as the United Kingdom refuses to grant diplomatic immunities to the delegation in London, EU law prevents the European Union from concluding an establishment agreement with the UK.

Customary international law does not contribute significantly to clarifying the position of the EU delegation in the UK. It confers privileges and immunities on the diplomatic missions of States (codified in the Vienna Convention of 1961) but the regime applicable to the offices of international organisations is different. Indeed, the customary nature of the immunities of international organisations is disputed (see, to this effect, Wood 2015) and even more controversial is the immunity of the agents of international organisations (Walter and Preger 2019, pp. 544-545). In any case, it can be excluded that diplomatic privileges and immunities should be recognised on a customary basis for agents of international organisations.

The EU, despite its sui generis character, is indubitably an international organisation under international law. Being part of an international organisation, EU delegations and their staff should not enjoy customary diplomatic immunities, at least in principle. In practice, as we have seen, non-member States systematically grant diplomatic privileges and immunities to EU delegations, albeit on a unilateral or treaty basis. One might argue that a customary rule regarding the recognition of the diplomatic immunities of EU delegations might be in the process of formation, but it may be doubted whether such a custom already exists, if only because the EU has not invoked such a customary rule vis-à-vis the UK. In its reaction to the UK’s decision, the EU reportedly expressed only ‘serious concerns’ about arrangements that ‘do not reflect the specific character of the EU’ (BBC). Possibly, the incident caused by the British government’s decision might, in the coming months, help to clarify whether or not the custom in question has been established.

The privileges and immunities of the EU delegation to the UK and its staff are not as yet precisely delineated in international law and, therefore, depend primarily on British law. Under the European Union (Future Relationship) Act 2020 (hereafter: Future Relationship Act) of 31 December 2020, the British government may decide that the Union, its organs and offices, and its staff, shall be granted such privileges and immunities as ‘it is in the opinion of Her Majesty in Council appropriate to confer on them’ (see International Organisations Act 1968, section 4B, subsection 2(b) and (c), as amended by the Future Relationship Act, section 27). The UK government has indeed declared that ‘the EU, its delegation and staff will receive the privileges and immunities necessary to enable them to carry out their work in the UK effectively’ (UK Foreign Office, cited in The Guardian 2021). In other words, the functional immunities typical of international organisations.

The Possible Response of the European Union

Although the UK’s action is probably lawful, it sets a dangerous precedent for the European Union. The EU could simply protest and wait: perhaps, the Johnson government, like the Trump administration, is willing to compromise on the status of the EU delegation.

It cannot be ruled out, however, that the British government might consider the issue to be in its national interest and stand firm in its resolve. In that case, the EU would need to adopt retorsions. In accordance with the principle of reciprocity, the EU may ‘downgrade’ the UK mission to the European Union, giving it the same status that the UK grants to the EU delegation. Reciprocity is indeed at the basis of diplomatic law and applies to EU diplomatic relations, too. While the EU does not have a territory of its own, it can request Belgium to grant privileges and immunities to the missions of third States. Under Article 16 of Protocol 7, the State in which the European Union has its seat ‘shall accord the customary diplomatic immunities and privileges to missions of third countries accredited to the Union.’ The triangular relationship involving the EU, the UK, and Belgium is relatively common: not only international organisations but also States may rely on similar solutions. For instance, the diplomatic missions accredited to the Holy See, which are located in Italy, are granted privileges and immunities by Italy on the basis of an agreement with the Holy See (see Patti Lateranensi (1929), Art. 12; see further Curti Gialdino 2015, p. 203). Notwithstanding the involvement of Italy, the Holy See routinely establishes reciprocal diplomatic relations with third States. The same reciprocity applies to the diplomatic relations between the Union and third States, via the protection offered by Belgium.

This reciprocity may eventually lead to the ‘downgrading’ of the UK mission in Brussels. International customary law does not impose any obligation to grant diplomatic immunities to the representations of States to international organisations (see Schermers and Blokker 2011, pp. 1163-1164; Fennessy 1976; El Erian 1967, pp. 142-143). Such an obligation is arguably inexistent in EU law, too. According to Article 16 of Protocol 7, the State in which the European Union has its seat ‘shall accord the customary diplomatic immunities and privileges to missions of third countries accredited to the Union.’ If interpreted literally, Article 16 of Protocol 7 might suggest that, once the representation of a third country is accredited to the Union, it automatically gains diplomatic immunities. However, a teleological interpretation is preferable: Article 16 of Protocol 7 is not intended to protect the representations of third States as such, but to enable the EU to receive diplomatic missions without suffering interference from its Member States (notably, Belgium). It can therefore be concluded that the EU has the right, not the obligation, to request Belgium to guarantee the diplomatic immunities of the UK mission to the EU. Since qui peut le plus peut le moins, the EU may ask Belgium to protect, not all the diplomatic immunities of the British mission, but only its functional immunities.

The exchange of ‘diplomatic’ missions between the UK and the first European Community was characterised by ‘absolute reciprocity’ already in 1954 (Guide diplomatique pratique, cit.). The same reciprocity should arguably apply today.

I thank the organiser and participants of the Informal Panel Discussion on The Diplomatic Spat Between the EU and the UK Regarding the Union Delegation in London (University of Leuven, 11 February 2021).