IS the right to vote in European Parliament elections a matter for EU law? Until recently, the answer to this query seemed to be a clear “no”. Indeed, while Article 223(1) of the TFEU does confer on the European Union the competence to lay down a uniform procedure for the election of Members of the European Parliament (“MEPs”), this competence has not been exercised so far. Consequently, Article 8 of the Act concerning the election of the MEPs by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom (OJ 1976 L 278 p. 1, henceforth “the 1976 Act”), provides that the “electoral procedure shall be governed in each Member State by its national provisions”. Apart from the general principles of “direct universal suffrage in a free and secret ballot” and of non-discrimination on the ground of nationality, enshrined respectively in Article 14(3) of the TEU, Article 1(3) of the 1976 Act, and Article 20(2)(b) of the TFEU, there is nothing in EU law that governs specifically the eligibility to vote in EP elections.
The EU Court of Justice thus found, in 2006, that EU law contains “no rule defining expressly and precisely who are to be entitled to the right to vote” and that, consequently, “in the current state of Community law, the definition of the persons entitled to vote [in EP elections] falls within the competence of each Member State in compliance with Community law” (Cases C-145/04, Spain v United Kingdom EU:C:2006:543, at [65], [78], and C-300/04, Eman and Sevinger EU:C:2006:545, at [40], [43], [45]). Similarly, Lord Mance of the UK Supreme Court argued that “eligibility to vote is under the Treaties and the 1976 Act a matter of national Parliaments” (R. (Chester) v Secretary of State for Justice [2013] UKSC 63, at [58]).
However, in a recent judgment, the Grand Chamber of the EU Court of Justice held that voting eligibility now comes within the scope of EU law (Case C-650/13, Delvigne EU:C:2015:648). The case concerned a French national sentenced to 12 years of imprisonment for murder and who was, as a result, automatically and indefinitely deprived of his right to vote. The French criminal code was later modified by making the imposition of such bans subject to individual examination but the amendment had no retroactive effect. On substance, the Court ruled that neither Article 39(2) of the Charter, which lays down the principle of “direct universal suffrage in a free and secret ballot”, nor Article 49(1) thereof, which contains the rule of retroactive effect of the more lenient criminal law, precluded the contested national provisions. The Court's relatively lax approach as to the substance contrasts with the ECtHR's highly contentious case law, finding that an automatic and absolute ban on voting for prisoners breaches Article 3 of Protocol 1 of the ECHR (e.g. Hirst v United Kingdom [2006] 42 EHRR 41).
More significant, however, is the Court's conclusion that the Member States are implementing EU law within the meaning of Article 51(1) of the Charter when they legislate on matters concerning voting eligibility. The Court's broad interpretation of this provision was already evident in its landmark judgment in Åkerberg Fransson, where it held that the Charter applies “in all situations governed by EU law” (Case C-617/10, EU:C:2013:105, at [19]). Thus, for the Charter to apply, there must be another applicable provision of EU law. Since Mr. Fransson was accused, in particular, of VAT fraud and since EU law obliged the Member States to counter fraud affecting the financial interests of the Union, which include VAT revenues, his situation came within the scope of Union law, regardless of the fact that the national law in question was not intended to implement EU law (at [25]–[28]).
In Delvigne, the French criminal code was not intended to implement EU law either. Besides, Articles 20(2)(b) of the TFEU and 39(1) of the Charter were clearly irrelevant, since there was no issue of discrimination on the ground of nationality (at [42]–[43]). Nonetheless, the Court cited the principle of “universal suffrage”, proclaimed in Articles 14(3) of the TEU and 1(3) of the 1976 Act in order to show that the voting ban in question came within the scope of EU law (at [32]–[33]). This justified the application of the Charter as a whole.
Advocate General Cruz Villalón took a different view. He argued that the application of the Charter should be examined separately in relation to each of the fundamental rights invoked. Insofar as Mr. Delvigne challenged the substantive ban on voting, his situation fell within the scope of Articles 223(1) of the TFEU and 1(3) of the 1976 Act and, hence, of the principle of universal suffrage enshrined in Article 39(2) of the Charter (at [89]–[104]). By contrast, since the punishment of murder was completely outside EU competence, the application of a supposedly more lenient subsequent law could not by itself trigger the application of Article 49(1) of the Charter (at [82]–[88]).
Against this background, it is clear that the judgment in Delvigne is set to become an important milestone, for several reasons. First, it potentially brings a large portion of national electoral law within the ambit of EU law. Although formally the judgment concerns EP elections, its spill-over effects into national elections seem obvious. The facts of the case confirm this: the contested voting ban applied to all elections; so did the contested electoral rolls (at least with respect to French nationals). Besides, Mr. Delvigne never pretended that the case was about EP elections only – in fact, the case was instigated in 2012, far ahead of the 2014 EP elections. Thus, given that most national electoral rules – such as limitations on grounds of age or interdiction; compulsory voting; registration requirements; electronic, postal, or other machine-based voting, etc. – apply to all elections and relate one way or another to the principle of “universal”, “direct”, “free” and “secret” suffrage, they may now be tested against the Charter.
Secondly, the judgment marks a significant development in EU citizenship law. It is the first to recognise that EU citizens have a stand-alone right to vote in EP elections – that is, regardless of the non-discrimination principle – thus reinforcing the political nature of Union citizenship. This right can be invoked in a purely internal situation. The Delvigne judgment can therefore be seen as applying implicitly the Zambrano formula, according to which national law cannot deprive Union citizens of the “genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”, even if there is no cross-border element (Case C-34/09, Zambrano EU:C:2011:124, at [42]). Indeed, voting in EP elections can be seen as forming part of the “substance” of the rights of Union citizens. Thus, the Delvigne judgment is the third manifestation of a stand-alone right of Union citizens, after the Zambrano-recognised right to remain on the territory of the Union and Rottmann's conditions on withdrawing a Member State's citizenship (Case C-135/08, EU:C:2010:104).
Thirdly, the judgment signals the expansion of the Charter's scope of application. Indeed, it suggests that some provisions of the Charter might be applied in a semi-autonomous fashion. As a rule, the Charter cannot be applied alone: it needs another provision of EU law as a proxy. For instance, in Åkerberg Fransson, the Court justified the application of the ne bis in idem principle contained in Article 50 of the Charter after finding that the contested national measure came within the scope of several EU provisions on VAT and combating fraud. By contrast, in Delvigne, the Court retained the application of Article 39(2) of the Charter, which proclaims the principle of “direct universal suffrage in a free and secret ballot” by citing Articles 14(3) of the TEU and 1(3) of the 1976 Act, which repeat precisely the same. The circular nature of this reasoning boils down, substantively, to a semi-autonomous application of Article 39(2) of the Charter.
Moreover, the Charter now seems capable of applying – by ricochet – to a national measure on which EU law has no bearing. Whereas the voting ban imposed on Mr. Delvigne necessarily affects the principle of “universal suffrage”, the non-retroactivity of the subsequent change in the way such bans are imposed impinges only collaterally upon the universal nature of suffrage. But, because these two national provisions are somewhat interrelated, if the former falls within the scope of EU law, so might the latter.
Finally, direct universal suffrage in a free and secret ballot is inherent to every democratic society. According to Article 2 of the TEU, democracy is a value on which the Union is founded, together with the respect for human dignity, freedom, equality, the rule of law, pluralism, non-discrimination, tolerance, justice, and solidarity. The Delvigne constellation thus flirts with the critical question of whether Article 2 TEU can be used as an entry point for the application of the Charter. Such a reading of the judgment would, however, inevitably lead to the extension of the Union's competences, contrary to Article 6(2) of the TEU.
By all standards, the sands have shifted.
