Saturday, 8 March 2008

EU TFEU: Citizen’s right to vote

The electoral rights of EU citizens do not evolve as a result of the Treaty of Lisbon, which retains the right to vote in local elections and in elections to the European Parliament in one’s member state of residence, as well as the right to stand as a candidate in these elections.

Regional and national elections are still uncovered by common provisions for EU expats.

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We notice that the intergovernmental conference (IGC 2007) leaves a gap in the Treaty of Lisbon between point 35 (Article 18 TEC) and point 36 (Article 20 TEC). See OJ 17.12.2007 C 306/51-52.

We discover the missing Article 19 TEC in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/206), where we find out that Article 19 TEC remains Article 19 TFEU (ToL), until it is renumbered Article 22 TFEU.

In addition, the IGC humours us by, under horizontal amendments, in point 3 listing specific Articles to be amended in the following way (OJ 17.12.2007 C 306/42):

3) In the following Articles, the words ‘acting unanimously on a proposal from the Commission’
shall be replaced by ‘acting unanimously in accordance with a special legislative procedure’:
— Article 13, renumbered 16 E, first paragraph
— Article 19(1)
— Article 19(2)
— Article 22, second paragraph
— Article 93
— Article 94, renumbered 95
— Article 104(14), second subparagraph
— Article 175(2), first subparagraph

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After playing IGC style hide and seek, and after coining today’s oxymoron, ‘specific horizontal amendment’, we are ready to take on the current Article 19 TEC (found in the latest consolidated version of the TEU and the TEC, in OJ 29.12.2006 C 321 E/50):

Article 19 TEC

1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

2. Without prejudice to Article 190(4) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

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The Lisbon Treaty version of Article 19 should look like this:

Article 19 TFEU (ToL), after renumbering Article 22 TFEU

1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

2. Without prejudice to Article 190(1) [renumbered Article 223(1)] and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

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For a look at the intermediary stages leading up to the Treaty of Lisbon, we turn to the draft Treaty establishing a Constitution for Europe, proposed by the European Convention (OJ 18.7.2003 C 169/30):

Article III-10 Draft Constitution

A European law or framework law of the Council of Ministers shall determine the detailed arrangements for exercising the right, referred to in Article I-8, for every Union citizen to vote and to stand as a candidate in municipal elections and elections to the European Parliament in their Member State of residence without being a national of that State. The Council of Ministers shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.

The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-232(2) and the measures adopted for its implementation.

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The IGC 2004 took over the proposal in the Treaty establishing a Constitution for Europe almost word for word, with natural changes of the Articles referred to (OJ 16.12.2004 C 310/57):

Article III-126 Constitution

A European law or framework law of the Council shall determine the detailed arrangements for exercising the right, referred to in Article I-10(2)(b), for every citizen of the Union to vote and to stand as a candidate in municipal elections and elections to the European Parliament in his or her Member State of residence without being a national of that State. The Council shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.

The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-330(1) and the measures adopted for its implementation.

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We see that the draft Constitution and the Constitutional Treaty used one paragraph to cover both municipal elections and elections to the European Parliament, where the current TEC and the ToL award the different elections their own paragraphs, but nothing changes in substance.

Citizens of the European Union have achieved essential equality with the nationals of their member state of residence at two levels, their municipality and the EU.

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Equal rights are not all-encompassing, since derogations are possible for certain states. In practice, the only member state to request (a continued) derogation in 2009 is Luxembourg with its high proportion of expats. See:

Report from the Commission to the European Parliament and to the Council on granting a derogation pursuant to Article 19(2) of the EC Treaty, presented under Article 14(3) of Directive 93/109/EC on the right to vote and to stand as a candidate in elections to the European Parliament COM/2007/0846 final

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National and (where applicable) regional elections are still outside the common arrangements, as are referendums irrespective of level.

For most people electoral rights are the ones that matter, but the active right to stand as a candidate is on offer in municipal and EP level elections.

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The legal base for the election procedure to the European Parliament is currently in Article 190(4) TEC, proposed to become modified Article 190(1) TFEU (ToL), after renumbering Article 223(1) TFEU.

The European Parliament draws up a proposal, and the Council unanimously lays down the necessary provisions after obtaining the consent of the European Parliament. The provisions have to be ratified by the member states. (See Article 190 TEC and OJ 17.12.2007 C 306/100, point 179.)

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For the current rules on EP elections, you could start by looking up Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom (OJ 21.10.2002 L 283).

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With a view to the EP elections of June 2009, the following documents could be mentioned, starting with the report on the latest elections:

Communication from the Commission European elections 2004 – Commission report on the participation of European Union citizens in the Member State of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC, Euratom)

Commission Staff Working document Accompanying document to the Communication from the Commission European elections 2004 - Commission report on the participation of European Union citizens in the Member States of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC) Impact assessment report for a possible amendment of Council Directive 93/109/EC laying down detailed arrangements for exercising the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals

Proposal for a Council Directive amending Directive 93/109/EC of 6 December 1993 as regards certain detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals

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For the sake of readers with an interest in UK affairs, two unilateral Lisbon Treaty declarations can be mentioned (OJ 17.12.2007 C 306/268):

63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’

In respect of the Treaties and the Treaty establishing the European Atomic Energy Community, and in any of the acts deriving from those Treaties or continued in force by those Treaties, the United Kingdom reiterates the Declaration it made on 31 December 1982 on the definition of the term ‘nationals’ with the exception that the reference to ‘British Dependent Territories Citizens’ shall be read as meaning ‘British overseas territories citizens’.

64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament

The United Kingdom notes that Article 9 A of the Treaty on European Union and other provisions of the Treaties are not intended to change the basis for the franchise for elections to the European Parliament.

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The first rules on direct elections to the European Parliament were issued in 1976, and the first directly elected EP commenced work in 1979. The next EP elections are due in June 2009.

If the Treaty of Lisbon is in force at the time, the elections to the European Parliament are to be taken into account in the process of electing the next President of the Commission. This offers the citizens of the European Union the opportunity to influence the choice to one of the top jobs within the EU, since the political parties at the European level are expected to field their candidates for the post.

The ‘Who do I call?’ campaign has seized on the possibility left open by the Lisbon Treaty to merge the offices of Commission and European Council presidents, to enhance the democratic legitimacy of the EU, although Declaration number 6 to indicates that the European leaders would have to change tack, since they still seem have three different office holders in mind (OJ 17.12.2007 C 306/248):

6. Declaration on Article 9 B(5) and (6), Article 9 D(6) and (7) and Article 9 E of the Treaty on European Union

In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.

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Lisbon Treaty Declaration 11 envisions consultations between the European Parliament and the European Council only regarding the President of the European Commission (OJ 17.12.2007 C 306/252):

11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union

The Conference considers that, in accordance with the provisions of the Treaties, the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission. Prior to the decision of the European Council, representatives of the European Parliament and of the European Council will thus conduct the necessary consultations in the framework deemed the most appropriate. These consultations will focus on the backgrounds of the candidates for President of the Commission, taking account of the elections to the European Parliament, in accordance with the first subparagraph of Article 9 D(7). The arrangements for such consultations may be determined, in due course, by common accord between the European Parliament and the European Council.

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EU citizens’ rights in municipal elections are governed by a Directive last amended by Directive 2006/106/EC in 2006, so look for the consolidated version of:

Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals

Ralf Grahn