EU Fundamental Rights and Political Citizenship

Part I - Introduction

A. Political Citizenship and the 'Usual Suspects'

The central question of this chapter is: what does political citizenshipmean in the context of EU Fundamental Rights? We will begin with a verybrief discussion on historic ideals of citizenship in order tointroduce, as a first step, the concept of political citizenship.

In an important contribution to the academic literature oncitizenship, JGA Pocock draws a distinction between two classicalideals of citizenship; the Athenian citizen and the imperialRoman citizen.1 The Athenian citizen, we learn from Aristotle,was an intrinsically political being; the citizen was one whoboth ruled his fellow citizens and, in turn, was ruled by them.The defining element of Athenian citizenship was the freedom totake part in public decision making; freedom, and thus humanity,could only be achieved through self-rule ie through citizenship.Meanwhile the imperial Roman citizen, we learn from Gaius, was anintrinsically legal being; the citizen was a member of a legalcommunity, a person free to act by law and seek the law'sprotection. The defining element of imperial Roman citizenshipwas equal protection (rights, immunities and privileges) underthe law.2

The emergence of modern democracy saw the unification of thesetwo citizenship ideals in the form of constitutionallyestablished popular sovereignty and rule of law. The republicanconstitutions emerging from the French and American revolutionscame to be seen as contracts between citizens giving birth to aconstitutional polity by guaranteeing self-rule and establishingequal protection under the law. This unification of citizenshipas political role and citizenship as legal status is captured in

1 JGA Pocock, 'The Idea of Citizenship since Clascical Times' inGhershon Shafir (ed), The Citizenship Debates: A Reader (University of MinnesotaPress 1998)2 ibid 31-41.

the constitutionally articulated foundational moment of thedemocratic political community which typically follows theformula: We, the people of X subject ourselves to the following laws. Indeed, asimple glance through the preambles of the EU Member Stateconstitutions will reveal a plethora of first person plurals:whether it be 'We, the people of Éire', 'My, občané České republiky',3 'My, NaródPolski - wszyscy obywatele Rzeczypospolitej',4 or 'My, národ slovenský',5 it is thevery same 'We' that philosophers like Rousseau had in mind somany years ago when they talked of the citizens as sovereign andthe sovereign as the citizens.

What then is meant by political citizenship? As it is often understoodtoday, and as it will be understood in this chapter, politicalcitizenship denotes a set of rights that entitles the holder to avoice (ie the rights to vote and hold office)6 within a definedand usually territorially bound political community on the basisof membership (ie the legal status of citizenship ornationality)7 within that community.8 So political citizenship,understood this way, combines the Athenian ideal of participationin public decision-making (through voting or standing for office)with the imperial Roman ideal of equal protection under the law(through legally - often constitutionally - enshrined equalelectoral rights for all citizens).

What is clear whether we are talking of Athenian citizenship,Roman citizenship or of citizenship in early modern democracies,is that it has seemed to be a self evident truth that one must be3 ie 'We, the citizens of the Czech Republic'.4 ie 'We, the Polish Nation - all citizens of the Republic'.5 ie 'We, the Slovak nation'.6 ie "electoral rights", but also the rights to freedom of assembly,freedom of association and freedom of speech (although these will not belooked at in this Chapter).7 In this Chapter, "citizenship" or "nationality" will refer to therelationship, sanctioned by law, between an individual and a discreteterritorially bound state ie citizenship as a legal status.8 For example, TH Marshall defined the political element of citizenshipas: "the right to participate in the exercise of political power, as a member of a body investedwith political authority or as an elector of the members of such a body." See TH Marshall,'Citizenship and social class' in Christopher Pierson (ed), The WelfareState Reader (Polity Press 2006) 30.

a citizen to be entitled to a share of the sovereign power.9 Onlythose who are addressed by the first person plural, at theconstitutive moment of the political community, ie 'We, thepeople', are entitled to a voice within that political community.Or, to put it another way, only those entitled to a voice in thepolitical community are full citizens. In ancient Athens onlyAthenian men of the highest pedigree were entitled to be citizensand thus to participate in public decision-making. In ancientRome, populations of conquered territories were not given fullcitizenship but only 'civitas sine suffragio' (citizenship without theright to vote). Meanwhile the 1789 French Declaration of theRights of Man and of the Citizen reserved the right to vote tomale property owners only.

From this perspective political citizenship rights, or electoralrights as they will be more narrowly construed here, are thequintessential citizens' rights - the crucial mark of citizenshipitself - as they are the rights which constitute the citizens assovereign and demarcate the boundaries between first and secondclass citizenship. History has produced a short list ofcategories of people, 'usual suspects' one might call them, whoare typically denied a voice within the political community:slaves, women, foreigners, children, convicts, the mentally ill,the physically disabled and those citizens who have left theterritory of the political community, to name just the mostobvious examples.10 Thankfully today we can exclude slaves andwomen from this list but what is clear today just as it has beensince ancient times is that electoral law is "not merely a technical setof rules for administering elections, but a collection of coded pronouncements aboutwho counts as a full member of the political community and why".11

9 Jean-Jacques Rousseau, The Social Contract (first published 1762 Wordsworth1998) Book 1, Part 6.10 eg to be a citizen in ancient Athens, and therefore to vote, one hadto be a male aged 20 or over, born into an Athenian citizen family, thepatriarch of a household, a warrior posessing the arms and ability tofight and a master of labour of others (especially slaves). See Pocock(n 1) 33.11 H Lardy, 'Citizenship and the Right to Vote' (1997) OJLS 17.1, 100.

B. Citizens' Rights, Human Rights and EU Fundamental Rights

Given the foregoing discussion, it should be clear that the logicof political citizenship rights are in sharp contrast with thelogic of human rights in that, as is well known, human rights,unlike citizens' rights, are explicitly universal in scope andprecisely do not depend on membership within a defined politicalcommunity. Human rights, in theory, are not dependent onnationality, gender, age, residence, race, class etc. they existfor all without the distinction. Citizens' rights however, arecontingent on distinctions between citizen and non citizen and,as suggested above, sometimes even between first and second-classcitizen. In addition to their inclusiveness, another keydistinguishing factor between citizens' rights on the one handand human rights on the other, is the extent to which their scopeand definition depends on the exclusive authority of the state.In the words of Saskia Sassen, "[h]uman rights today are a force that canundermine the exclusive authority of the state over its nationals and thereby contributeto transform the interstate system and international legal order."12 So, we havenow identified two key distinguishing factors between citizens'rights and human rights that are especially relevant to us here:(1) their inclusive scope and (2) the extent of theirdetermination by the state.

Given the contrast between citizens' rights and human rights, howdo we understand 'EU fundamental rights' (as enshrined in theCharter of Fundamental Rights of the European Union) which areneither fully citizens' rights nor fully human rights but an oddhybrid of the two?

C. Chapter Overview

As we will discover in this chapter, to understand politicalcitizenship in the context of EU Fundamental Rights we arerequired to question the conventional understandings of politicalcitizenship. Accordingly, we will investigate the extent to which

12 S Sassen, 'The De Facto Transnationalizng of Immigration Policy', inChristian Jopke (ed), Challenges to the Nation State: Immigration in Western Europe andthe United States (OUP 1998) 70.

the state retains the authority to determine the scope ofpolitical citizenship in the EU, we will look at the position ofsome of the 'usual suspects' in the context of politicalcitizenship in the EU and we will probe the relationship betweencitizens' rights and human rights and between both of these and EUfundamental rights.

In Part II, the chapter will begin by running through therelevant law, not just in the Charter, but also in the treaties,regional and international human rights law and national (EUMember State) law. This part of the chapter will aim to situateEU political citizenship rights within the broader politicalcitizenship rights framework and identify the most likely legalsources for determining the scope of political citizenship rightsin the context of EU fundamental rights.

Following this, in Part III, the chapter will consider the pastand present of EU political citizenship. This part of the chapterwill aim to chart the development of EU political citizenshiprights over the past 60 years in order to reach some conclusionsabout how the past can explain some of the ambiguities in thecurrent legal regime. There will also be a discussion of somerelevant case law from the Courts of Justice of the EuropeanUnion and the European Court of Human Rights and recentinnovations including the Treaty of Lisbon. This part of thechapter will aim to draw some conclusions about the shape andquality of political citizenship within the EU based on thecurrent state of the law and to highlight some unansweredquestions.

In Part IV, the chapter will conclude by looking at thetheoretical tensions between human rights and citizens' rightsand will explore why these tension are particularly relevant topolitical citizenship rights in the context of European humanrights law. Finally, will engage into some ill-advised crystalball gazing and reflect on the future of political citizenship inthe EU.

Part II: Discussion of the Relevant Law

In order to understand political citizenship in the context of EUFundamental Rights it is crucial to first understand the legalbasis for political citizenship in the EU and broader European,international and national legal framework. Below, the key legalprovisions of EU, Council of Europe and International treatieswill be set out and briefly discussed together with an overviewof the legal situation in the Member States. The aim will be tosituate the electoral rights provisions of the Charter ofFundamental Rights of the European Union ("CFR") within theexisting legal framework and to understand to what extent thisexisting framework is likely to shape or have any substantiveadded value for the Charter provisions.

A. The Charter of Fundamental Rights of the European Union

Of course, the most important legal source here is the Charter ofFundamental Rights of the European Union. The key legalprovisions from the Charter, for the purposes of this chapter,are Articles 39 and 40:

Article 39

Right to vote and to stand as a candidate at elections tothe European Parliament

1. Every citizen of the Union has the right to vote and tostand as a candidate at elections to the EuropeanParliament in the Member State in which he or sheresides, under the same conditions as nationals of thatState.

2. Members of the European Parliament shall be elected bydirect universal suffrage in a free and secret ballot.

Article 40

Right to vote and to stand as a candidate at municipalelections

Every citizen of the Union has the right to vote and tostand as a candidate at municipal elections in the MemberState in which he or she resides under the same conditionsas nationals of that State.

Under the Charter, Articles 39 and 40 apply to the institutions,bodies, offices and agencies of the Union and to the MemberStates in fulfilling their pre-existing obligations under Unionlaw with respect to the guaranteeing of European Parliament("EP") and municipal electoral rights.13

Article 39, therefore, explicitly applies to Member States intheir implementation of the Direct Elections Act 197614 andCouncil Directive 93/109/EC15 (regarding EP elections), whileArticle 40 applies to Member States in their implementation ofCouncil Directive 94/80/EC (regarding municipal elections).16 Allof these secondary sources of EU law will be discussed in greaterdetail below at Part III of this Chapter.

B. The EU Treaties

In accordance with Article 52(2) of the Charter, rightsrecognised in the Charter apply under the conditions and withinthe limits laid down in the EU treaties. Certainly then, the EUtreaties are crucial to understanding Articles 39 and 40 of theCharter. The relevant provisions are as follows:

Article 20(2)(b) TFEU provides:

13 Charter of Fundamental Rights of the European Union [2012] C 326/02,Articles 51 and 52 generally.14 The Council Decision and Act concerning the election of therepresentatives of the European Parliament by direct universal suffrage[1976] OJ C27/5.15 Council Directive 93/109/EC [1993] OJ L 329/34.16 Council Directive 94/80/EC [1994] OJ L 368/38.

Citizens of the Union shall enjoy the rights and be subject tothe duties provided for in the Treaties. They shall have,inter alia:

(b) the right to vote and to stand as candidates inelections to the European Parliament and in municipalelections in their Member State of residence, under the sameconditions as nationals of that State;

Article 22(1) TFEU provides:

Every citizen of the Union residing in a Member State of whichhe is not a national shall have the right to vote and to standas a candidate at municipal elections in the Member State inwhich he resides, under the same conditions as nationals ofthat State. This right shall be exercised subject to detailedarrangements adopted by the Council, acting unanimously inaccordance with a special legislative procedure and afterconsulting the European Parliament; these arrangements mayprovide for derogations where warranted by problems specificto a Member State.

Article 22(2) TFEU provides:

[E]very citizen of the Union residing in a Member State ofwhich he is not a national shall have the right to vote and tostand as a candidate in elections to the European Parliamentin the Member State in which he resides, under the sameconditions as nationals of that State. This right shall beexercised subject to detailed arrangements adopted by theCouncil, acting unanimously in accordance with a speciallegislative procedure and after consulting the EuropeanParliament; these arrangements may provide for derogationswhere warranted by problems specific to a Member State.

Article 10 TEU provides:

1. The functioning of the Union shall be founded onrepresentative democracy.

2. Citizens are directly represented at Union level in theEuropean Parliament.[…]

3. Every citizen shall have the right to participate in thedemocratic life of the Union. Decisions shall be taken asopenly and as closely as possible to the citizen.

4. Political parties at European level contribute to formingEuropean political awareness and to expressing the willof citizens of the Union.

Article 14(3) TEU provides:

The members of the European Parliament shall be elected fora term of five years by direct universal suffrage in a freeand secret ballot.

A quick comparison between these EU Treaty provisions andArticles 39 and 40 CFR reveals that Article 39(1) CFR looselycorresponds to Articles 20(2)(b) and 22(2) TFEU and Article 40CFR loosely corresponds to Articles 20(2)(b) and 22(1) TFEU.These provisions can be described as ‘EU citizen equal treatmentrights’. Meanwhile, Article 39(2) CFR loosely corresponds toArticles 10(3) and 14(3) TEU. These provisions could be broadlydescribed as ‘rights and principles of universal suffrage’.

It should be noted that while the concept of equal treatment inthe context of electoral rights for mobile EU citizens is perhapsrather unique to the EU project, the principle of universalsuffrage is of course not new (although of course its tying to atransnational electoral body is arguably new).

C. ECHR

Of the regional and international human rights instruments to bediscussed in this Chapter, the Convention for the Protection ofHuman Rights and Fundamental Freedoms ("ECHR") (1950) is the mostlikely to add substance to the electoral rights stipulated underthe Charter. In accordance with Article 52(3) CFR, for rightsrecognised in the Charter which correspond to rights guaranteedby the ECHR, the meaning and scope of such rights will be thesame as those laid down in the ECHR. It would not be impossibleto argue that the rights provided for by Articles 39 and 40 CFR(certainly the universal suffrage right at Article 39(2))correspond to the rights articulated at Article 3, Protocol 1

ECHR.17 Certainly CJEU and ECHR case law cross referring betweenEU electoral rights and Article 3, Protocol 1 supports thisargument.18 Therefore, it will be useful for us to consider theECHR as key background source. Article 3, Protocol 1 providesthat:

The High Contracting Parties undertake to hold freeelections at reasonable intervals by secret ballot, underconditions which will ensure the free expression of theopinion of the people in the choice of the legislature.19

Historically, Article 3 was construed narrowly, merely as arecognition of the principle of universal suffrage, creating anobligation on States to hold free elections without conferringany substantive rights.20 However, over the years, the substantivescope of the provision was enlarged as the European Commission ofHuman Rights (“EComHR”) began to interpret Article 3 as implying,within the framework of universal suffrage, “certain individual rights,such as the right to vote and the right to stand for election”.21 However, it hasalways been clear that these rights are not absolute. Forexample, in the 1974 case, X v the Netherlands,22 the EComHR noted that:

[although] the Commission […] has ruled that the undertakingof the Contracting Parties to hold free elections impliesthe recognition of universal suffrage […] it does not followthat Article 3 accords the right unreservedly to everysingle individual to take part in elections. It is indeedgenerally recognised that certain limited groups of individuals maybe disqualified from voting, provided that this disqualification is notarbitrary.

17 Protocol 1 was signed in Paris on 20 March 1952.18 See especially Matthews v UK App no 24833/94 (ECHR, 1999) and Case C-300/04 Eman and Sevinger v College van burgemeester en wethouders van Den Haag [2006]ECR I-8055.19 It is worth briefly noting that "the legislature" referred to inArticle 3 has been held to include both the EP (Matthews (n 18)discussed in more detail below) and state legislatures within afederation (X. v Federal Republic of Germany, App no 2728/66 (ECHR, 1967)).

20 DJ Harris, E Bates, M O'Boyle, C Warbrick and C Buckley, Law of theEuropean Convention on Human Rights (OUP 2009) 712, n 10.21 Alliance des Belges v Belgium, App no 8612/7 9 (ECHR, 1979), reference toApps No 6745/76 and 6746/76 v Belgium (ECHR, 1976).22X v the Netherlands App no 6573/74 (ECHR, 1974).

[Emphasis added]

Throughout the subsequent years, the ECHR jurisprudence hasdisclosed a lively debate over which groups of individuals maybe disqualified, on what basis and how wide the state's margin ofappreciation in this sphere is. Questions over the appropriatelimits on expatriate voting, prisoner voting and the voting ofpersons with mental disabilities have been very topical in therecent years and will be discussed in more detail below at PartIV of this Chapter.

D. UN Treaties

By virtue of Article 53 of the Charter, the Charter is not to beconstrued as restricting or adversely affecting human rights asrecognised in international law. While this provision in unlikelyto expand the protective scope of the electoral rights provisionsin the Charter, it undoubtedly makes the UN treaties a relevantbackground source. Certainly a great deal can be learned aboutthe origins and historical scope of the principle of universalsuffrage, as articulated at Article 39(2) of the Charter, bylooking at these treaties.

Article 21 of the Universal Declaration of Human Rights (“UDHR”)(1948) provides that:

1) Everyone has the right to take part in the government ofhis country, directly or through freely chosenrepresentatives.

2) Everyone has the right of equal access to public servicein his country.

3) The will of the people shall be the basis of theauthority of government; this will shall be expressed inperiodic and genuine elections which shall be byuniversal and equal suffrage and shall be held by secretvote or by equivalent free voting procedures.

Article 25 of the International Covenant on Civil and PoliticalRights ("ICCPR") (1966), provides that:

Every citizen shall have the right and the opportunity […]without unreasonable restrictions:

a) To take part in the conduct of public affairs,directly or through freely chosen representatives;

b) To vote and to be elected at genuine periodicelections which shall be by universal and equalsuffrage and shall be held by secret ballot,guaranteeing the free expression of the will of theelectors;

c) To have access, on general terms of equality, topublic service in his country.

Looking at these provisions, it is clear that the UN treatiesallocate political membership on the basis of citizenship as tiedto nationality ie recognising political rights as citizens’rights rather than human rights. While the UDHR grants everyonethe right to take part in the “government of his country” (if notexplicitly, perhaps implicitly excluding non-citizens),23 theformulation in the legally binding ICCPR is more restrictive andgoes so far as to explicitly reserve political rights to‘citizens’. There was, it seems, an implicit assumption on thepart of the drafters that, unlike to majority of rights in theconvention, which were unquestionably universal, voting rightswere citizens' rights.24

23 R Rubio-Marin, ‘Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and NationalityRetention of Emigrants’ (2006) 81 NYULR 190, 199, n 4.24 C Smyth, 'The right to vote and participate in local elections:citizen's right or human right?' (2006) unpublished paper, NationalUniversity of Ireland, Galway Law Working Paper Series 1, referring tothe travaux préparatoires, n 15. However, it should be pointed out that, theHuman Rights Committee, the body responsible for monitoring theimplementation of the ICCPR, noted in its General Comment No. 25 onArticle 25 that, distinctions between birthright citizens andnaturalized citizens may raise issues of discrimination (See HumanRights Comittee, General Comment 25 (57) [1996] UN DocCCPR/C/21/Rev.1Add.7, para 3). Moreover, in a 2006 report on the rightsof non-citizens, the Office of the United Nations High Commissioner forHuman Rights went so far as to assert that: "States should consider granting theright to participate in public life at the local level, including the right to vote in local elections, tolong-term non-citizen residents" (UN Office of the Commissioner for Human

Article 5(c) of the International Convention on the Eliminationof All Forms of Racial Discrimination ("ICERD") (1965) providesthat:

[…] States Parties undertake to prohibit and to eliminateracial discrimination in all its forms and to guarantee theright of everyone, without distinction as to race, colour,or national or ethnic origin, to equality before the law,notably in the enjoyment of the following rights:

(c) Political rights, in particular the right toparticipate in elections-to vote and to stand forelection-on the basis of universal and equal suffrage, totake part in the Government as well as in the conduct ofpublic affairs at any level and to have equal access topublic service […]

The ICERD, at first glance, appears to leave some normative spacefor the inclusion of non-citizens within the scope of the stateparties undertakings with respect to political rights. However,this inclusive interpretation is ruled out by Article 1(2) of theICERD which maintains that:

This Convention shall not apply to distinctions, exclusions,restrictions or preferences made by a State Party to thisConvention between citizens and non-citizens.

Indeed, in General Recommendation 30, the Committee on theElimination of Racial Discrimination, responsible for monitoringthe implementation of the Convention, noted that:

[S]ome of those rights [in the Convention], such as theright to participate in elections, to vote and to stand forelection, may be confined to citizens […] State Parties areunder an obligation to guarantee equality between citizens

Rights, ‘The Rights of Non-Citizens’ (2006) n 8). However, the samereport, in the introduction, notes that: "states may narrowly draw distinctionsbetween citizens and non-citizens with respect to political rights explicitly guaranteed tocitizens".

and non-citizens in the enjoyment of these rights to theextent recognised under international law.25

The ICERD then cannot be considered an advancement on theposition under the UDHR or the ICCPR.

Article 42 of the International Convention on the Protection ofthe Rights of All Migrant Workers and Members of Their Families("ICMW") provides that:

2. States of employment shall facilitate, in accordance withtheir national legislation, the consultation orparticipation of migrant workers and members of theirfamilies in decisions concerning the life and administrationof local communities.

3. Migrant workers may enjoy political rights in the Stateof employment if that State, in the exercise of its sovereignty, grantsthem such rights.

[Emphasis added]

It is notable that the ICMW proposes an allocation of politicalrights that is not based on citizenship or nationality (but onthe basis of employment with a relevant state). However, as withthe other UN treaties already discussed, the ball is again leftfirmly in the court of the states to determine the boundaries ofthe political community; their authority, left in tact. And, itseems that presently it remains unquestionably legitimate underthe UN treaties for states to exclude non-citizens from thefranchise.

E. National Legislation

By virtue of Article 52(4) CFR, Charter rights that result fromconstitutional traditions common to the Member States must beinterpreted in harmony with such traditions and by virtue Article53 CFR, the Charter is not to be construed as restricting oradversely affecting human rights as recognised in Member Stateconstitutions. Therefore it will be useful to build up a high-25 Committee on the Elimination of Racial Discrimination, ‘Generalrecommendation on discrimination against non-citizens’ (2004) Article 3.

level picture of the electoral rights situation certainly inrelation to some of the more contentious issues (ie non-citizen,expatriate, prisoner and mental disability electoral rights)across the Member States. Moreover, this exercise will help tofurther contextualize the Charter rights.26

Non-citizen electoral rights

On the whole, electoral rights in Member States are generallyreserved for citizens of those states. All Member States bar theUnited Kingdom (which grants electoral rights to Irish citizensand Commonwealth citizens)27 and Portugal (which grants electoralrights to Brazilian citizens)28 reserve the right to vote andstand in national elections to their own citizens. It should alsobe noted that the UK is the only Member State to enfranchiseselect third country nationals (ie Commonwealth citizens residentin the UK and not subject to immigration control) to vote in EPelections.29

Of the 16 Member States that hold regional legislative elections,only six allow for some form of non-citizen voting rights(Denmark, Hungary, Portugal, Sweden, Slovakia and the United

26 For a full discussion of all of the data discussed in the followingparagraphs please see J Arrighi, R Bauböck, M Collyer, D Hutcheson, MMoraru, L Khadar and J Shaw 'Franchise and electoral participation ofthird country citizens residing in EU and of EU citizens residing inthird countries' (2013) Study for the European Parliament’s Committee onConstitutional Affairs, PE 474.441. Available at: http://eudo-citizenship.eu/images/docs/afco%20study_updated_sept2013.pdf. See alsothe individual country reports on electoral rights throughout the EUavailbale at: http://eudo-citizenship.eu/about/fracit. 27 See Representation of the People Act 1983 s 1 and 2; Scotland Act1998 s 11; Government of Wales Act 2006 s 12; The Northern IrelandAssembly (Elections) Order 2001 s 4(1); Elected Authorities (NorthernIreland) Act 1989 s 1(c); Local Government Act 2000 s 43(1)(a); LocalGovernment Act 2000 s 45(4); and Ireland Act 1949.28 This is by virtue of the the Treaty of Friendship, Co-operation andConsultation, signed in the year 2000 and ratified in 2004.29 See the European Parliamentary Elections (Franchise of RelevantCitizens of the Union) Regulations 2001 s 3(1)(d); and the EuropeanParliamentary Elections Act 2002 s 8.

Kingdom), while just four allow for non-citizen candidacy rights(Denmark, Portugal, Sweden, and the United Kingdom).

At the local level, 16 of the 28 Member States30 enfranchise non-citizens in some respect in local legislative elections (justfour of those - Finland, Sweden, Denmark and Greece - grant theright to participate in local elections to all foreign residentssubject to minimum residence requirements) while 10 MemberStates31 grant candidacy rights to non-citizens at this level.

Expatriate electoral rights

Three Member States (Belgium, Greece and Hungary) entirelyprohibit expatriate voting in EP elections for their citizensresiding outside the EU. Meanwhile, all EU Member States providefor some limited form of expatriate voting rights in nationalelections (usually limited in time or subject to otherrequirements), while all bar seven (Belgium, Denmark, Latvia,Luxembourg, Malta, Romania and Slovakia) permit, at least intheory, expatriate candidacy rights at this level of election.Only seven states enfranchise expatriates in some manner at theregional level and only nine at the local level.32 The situationis roughly the same in relation to candidacy rights at theselevels of election.

Prisoner electoral rights

Meanwhile, only 13 Member States permit convicted prisoners tovote in elections (Cyprus, Czech Republic, Denmark, Finland,Spain, Ireland, Latvia, Poland, Portugal, Sweden, Slovenia,Slovakia and Croatia) while just five also permit convicted

30 Belgium, Denmark, Estonia, Greece, Spain, Finland, Hungary, Ireland,Lithuania, Luxembourg, the Netherlands, Portugal, Sweden, Slovenia,Slovakia, and the United Kingdom. 31 Denmark, Finland, Ireland, Lithuania, Luxembourg, the Netherlands,Portugal, Sweden, Slovakia, and the United Kingdom.32 Austria, Cyprus, Denmark, Estonia, France, Ireland, Italy, Latvia andMalta.

prisoners to stand as candidates in elections (Finland, Ireland,Poland, Portugal, Sweden, Slovenia and Croatia).33

Electoral rights of persons with mental disabilities

Just ten Member States fully enfranchise mentally disabledpersons (Austria, Cyprus, Spain, Finland, France, Ireland,Italy, the Netherlands, Sweden and the United Kingdom).

G. Part II Conclusions

A number of preliminary conclusions can be drawn about politicalcitizenship in the context of EU fundamental rights and morespecifically about the significance of the electoral rightsprovisions of the CFR against the backdrop of the existingelectoral rights framework.

Firstly, it should be noted that the Charter provisions areunique against the backdrop of human rights law and nationalelectoral law insofar as they allocate electoral rights notprimarily on the basis of nationality or citizenship, but on thebasis of residence. However, this novelty is curtailed in thatthe electoral rights are only extended to 'citizens of the Union'(meaning citizens of one of the EU Member States).

Secondly, electoral rights as articulated in human rightsinstruments, look much more like citizens' rights than like humanrights. As even in these ostensibly universalist and transcendentlegal instruments, the authority to determine the scope andmeaning of political citizenship is left squarely in the hands ofthe relevant states. Against this backdrop, the Charterprovisions are unique in that EU Member States have surrenderedtheir authority to determine their polities in the context ofmunicipal elections. This is in sharp contrast to the status quounder both human rights law and of course national law. However,

33 Currently, the UK, Bulgaria, Estonia and Hungary all apply a blanketdisenfranchisement in respect of all serving prisoners. The House ofCommons Library Standard Note, ‘Prisoners’ voting rights’, SN/PC/01764,5 November 2012; and the House of Commons Library Standard Note,‘Prisoners’ voting rights’, SN/PC/1747, 17 May 2011.

again this novelty is limited by the requirement of Unioncitizenship such that the states still ultimately retain theauthority to determine the franchise to the extent that theyretain the authority to determine their own citizenry.34

Thirdly, it should be noted that the Charter provisions, giventheir close resemblance to the EU Treaty provisions, should firstand foremost be construed as creatures of EU law rather thaninternational human rights law or even national electoral law.Indeed, unlike some of the human rights instruments that havebeen considered above which tend to deal with electoral rights ingeneral terms, the Charter provisions like the EU Treatyprovisions on which they are based, are exclusively concernedwith electoral rights at the EU and local levels. Moreover, theCharter is (bar Article 39(2)) exclusively concerned with theelectoral rights of non-citizens (second country nationals); thatis, EU citizens who reside in a Member State other than theirstate of nationality. This also immediately sets the Charterapart from other human rights instruments which are, for the mostpart, explicitly or implicitly concerned with the electoralrights of citizens who are nationals of a relevant state andnational electoral law which generally reserves electoral rightsto citizens. This makes for an odd mix in that the Charterelectoral provisions are, at the same time, both more and lessinclusive than electoral provisions under human rights law andnational electoral law. More inclusive insofar as the provisionsexplicitly apply to non-citizens and less inclusive insofar asthe provisions only relate to a narrowly defined set ofelections.

Finally, it should be noted that in light of the Charterprovisions on interpretation (ie Articles 51 to 53), the EUTreaties and ECHR law are likely to be the most relevant legalsources for interpreting the substantive scope of the Charterelectoral rights. Consequently these sources will be the focus ofanalysis in the remainder of the chapter.

34 Although see Case C-135/08 Janko Rottmann v Freistaat Bayern [2010] ECR I-01449.

Part III: The Past and Present of Political Citizenship inthe EU

As noted by Jo Shaw in her comprehensive and informative book oncitizenship and electoral rights in the EU,35 the development ofthe political aspect of EU citizenship over the course of thelast half century or so has in many ways been a microcosm of thekey issues at stake in the evolution of the EU integrationprocess more generally. Indeed, political citizenship in the EUhas been driven along two intertwined paths: the first moves frommarket to political integration, and the second from diplomaticto democratic institutions. These 'twin roots' of EU electoralcitizenship have been described by D’Oliveira as “the emergence of aCommunity or Union collectivity” in tandem with the promotion of the“principles of democracy” within the institutions of the Union. 36 Theaim of this part of the Chapter is firstly to highlight thepassage along these paths up to the 2007 Lisbon Treaty and intothe present day. Secondly, this Chapter heading aims to brieflyexplore a string of important cases which play a significant rolein determining the likely scope of the electoral rights containedin the Charter and finally, on the basis of the precedingdiscussions, we will draw some conclusions about the shape andquality of political citizenship within the EU and highlight someunanswered questions.

35 J Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and theRestructuring of Political Space (CUP 2007).36 HUJ d’Oliveira, ‘European Citizenship: Its Meaning, Its Potential’,in R Dehousse (ed), Europe after Maastricht: An Ever Closer Union?, (Law Books inEurope 1994) 142-143. See also J Shaw and S Day, ‘European Unionelectoral rights and the political participation of migrants in hostpolities’, (2002) 8 INJPG, 183–199.

A. From 'homo economicus' to 'homo politicus' and peace building topolity building

1950s to 1970s

Although the electoral rights now set out in the Treaties and theCharter were first formally introduced with the 1992 Treaty ofMaastricht and the institution of 'citizenship of the Union' ithas been argued convincingly on a number of occasions, that theMaastricht Treaty should not be conceived of as 'year zero' forEU citizenship (or its political element).37 Nevertheless, itremains true that at the very outset, from the 1950 Schuman Plan,the architects of the 'European experiment' were, at leastostensibly, concerned with establishing a new form ofsupranational inter-state cooperation primarily for economic andsecurity ends.38 This is evidenced in the preamble to the 1951Treaty Establishing the European Coal and Steel Community ("ECSCTreaty") which lists some of the key aims of the ECSC as the"establishment of common bases for economic development" and the"maintenance of peaceful relations". The formal role of theEuropean individual, at this early stage, was certainly notpolitical and was limited to that of consumer, worker orproducer.39

However, on just the second day of the 1950 ECSC negotiations,Monet submitted proposals for, amongst other things, the creationof a parliamentary assembly, albeit a very weak one, to injectsome degree of democratic accountability into the proposed newcommunity.40 So from the very beginning there was some concern,even if only secondary, with creating democratic institutions inwhich European citizens, if not actively involved, would at least

37 See E Olsen, 'The origins of European citizenship in the first twodecades of European integration',  (2008) JEPP 15.1, 42 and C Closa,'The concept of Union citizenship in the Treaty on European Union',(1992) CMLR 9, 1137-69.38 B Rittberger, 'The Creation and Empowerment of the EuropeanParliament' (2003) JCMS 41.2, 211.39 Olsen (n 37), 45.40 K Featherstone, 'Jean Monnet and the ‘democratic deficit’in theEuropean Union' (1994) JCMS 32.2, 160.

be effectively represented. Indeed this concern made its wayinto Article 21(1) of the ECSC Treaty which, perhaps ratheroptimistically, provides that:

The Assembly shall consist of delegates whom the Parliamentsof each of the member states shall be called upon to appointonce a year from their own membership, or who shall be elected bydirect universal suffrage, according to the procedure determined byeach respective High Contracting Party.

[Emphasis added]

Unsurprisingly, the Member States did not avail themselves of theoption to implement direct universal suffrage.41 And six yearslater when Article 21 was amended, by virtue of Article 2(2) ofthe 1957 Convention on Certain Institutions Common to theEuropean Communities, the dream of direct universal suffrage wasframed, perhaps more realistically, as a goal to be to beachieved by the Assembly and the Council working jointly at someunspecified future point in time.42 It would ultimately take some30 years to achieve this goal.

By the time of the 1958 Treaty establishing the European EconomicCommunity ("the Treaty of Rome"), the goal of a democraticallyaccountable EP directly elected by universal suffrage remained adistant dream and the role the European individual remainedlimited to that of a market actor. Famously characterized byEverson as 'homo economicus',43 under the terms of the RomeTreaty, the European individual was understood as an economicallyactive national of a Member State.44 Such an individual would betransformed into a 'market citizen', benefiting from the41 This option was introduced on a proposal from the Foreign AffairsCommittee of the French National Assembly, see P Reuter, La Communautéeuropéenne du charbon et de l’acier, (1953) 59.42 This provision results from a proposal made by the Italian delegationto the Intergovernmental Conference that drafted the Rome Treaties, SeeF Piodo, Towards direct elections to the European Parliament (European Communities2009) 15.43 M Everson, 'The Legacy of the Market Citizen', in J Shaw and G More(eds) New Legal Dynamics of the European Union (OUP 1995) 71.44 Closa (n 37) 1141.

principle of non-discrimination on the basis on nationality, whenparticipating in or benefiting from the common market by takingadvantage of the free movement of persons, services and capitalacross Member State borders. Indeed, the idea of the Europeanindividual as a political citizen and member of a sovereignpolitical community, was nowhere to be found at this stage.45

For the first three decades of its life, the Assembly (or theEuropean Parliament as it was renamed in 1962) was rather morediplomatic than democratic in that it was populated byparliamentarians appointed by the executives of their respectiveMember States. Interestingly, Article 20 of the ECSC Treaty hadspecified that the Assembly consist of "representatives of thepeoples of the States", however, without any direct input from thecitizens at the supranational level, this was not entirelyaccurate if not strictly speaking inaccurate. All this, ofcourse, contributed to a perception that the institution lackedlegitimacy; a challenge which was also levelled at the Europeanintegration project more generally.46 These perceptions fuelledarguments within the Parliament for more effective politicalrepresentation of European citizens expressed in terms ofbuilding a European polity47 and establishing democracy to supportthis aim.48 However, not being convinced by the case for directelections to a parliament that was widely perceived as relativelypowerless,49 and preferring to prioritise economic over politicalintegration, the executives of the Member States did not respondenthusiastically to the Parliament's calls for change.50 Indeed,

45 Olsen (n 37) 48.46 Y Mény (ed) Building Parliament:50 years of European Parliament History (Office forOfficial Publications of the European Communities 2009), 35.47 Ninth General Report on the Activities of the Community, 1 February1960 to 31 January 1961. See Shaw (n 35) 103.48 ibid.49 ibid.50 However, the Italian Government had introduced measures concerningthe direct elections of Italian members of the European Parliament, andin 1968 Christian Democrat MEPs asked the Italian Government to inviteother European governments to begin the direct election of theirmembers; see Cahiers de documentation européenne, October-Décembre 1969,Parliament Européen, 69.

while the Assembly had adopted a proposal for a uniform electoralprocedure for direct elections to the EP in 1960,51 the foreignministers of the Member States took virtually no action inrelation to this proposal throughout the 60s.52

1970s to 2000s

It was not until the end of the 1970s that 'homo politicus' wouldformally enter the stage.53 In the early 1970s the Member Stateexecutives began to warm to the idea of direct elections to theparliament54 and the final communiqué of the Summit of Heads ofState or Government in Paris of December 1974 instructed the51 The proposal is to be found in a Resolution dated 17 May 1960,Journal Officiel 1960, 834, Article 7.52 A communiqué from the six Foreign Ministers announced that fiveMember States were willing to take it under consideration, but Francedid not consider it the right time, see F Piodo, Towards direct elections to theEuropean Parliament (European Communities, 2009) 25. It is worth notingthat while the forging of a direct political link between the EuropeanCommunities and the citizens of Europe foundered on the weak politicalwill of the executives of the Member States, a direct legal link wasbeing forged by the European Court of Justice ("ECJ"). In what arereferred to as the 'seminal decisions' (Van Gend en Loos v Netherlands (Case26-62 [1963] ECR 1) established that Community law confered rights uponnationals of Member States that becme part of their legal heriatge andwhich must be repected by national courts while Costa v ENEL (Case 6/64[1964] ECR 585) established that Community law would take precedenceover national law) of the ECJ, throughout the 1960s, the Courtestablished the principles of supremacy, direct effect and theprotection of fundamental rights. It has been argued that these casesestablished, for the first time, a direct link between the EU as apolitical unit with various powers and the individual citizens who were,prior to this, merely linked to their respective nation-states throughcitizenship (see Olsen (n 37) 48 - 50. See also J Weiler, The Constitution ofEurope:'Do the new clothes have an Emperor?'and other essays on European integration (CUP1999)). These judgements, albeit not challenging the 'homo economicus'model of European citizenship, challenged the exclusive authority of thenation state over its citizens and forged links between the citizens andthe supranational institutions that drove the European integrationproject. 53 The 1972 Paris Summit had launched a campaign to establish a"people's Europe" and the consequent Tindemans Report had promoted avision European citizenship based on the nation-state model including"special rights" for mobile Community citizens including the rights tovote in EP and municipal elections in the state of residence.

Council of Ministers to reach a decision on the implementation ofdirect elections by the end of 1976.55 Consequently, on 20September 1976, the Council Act on Direct Elections56 was adoptedand the first elections held in 1979. The 1976 Act, while layingdown a number of mandatory ‘uniform’ aspects for elections to theEP,57 ultimately left the Member States with very wide discretionin terms of implementation.58 The Act had not introduced a right

54 Mény (n 46) 36 and S Pinder, ‘Steps Towards a Federal EuropeanParliament’ (2000) 35 International Spectator: Italian Journal ofInternational Affairs, 15.55 ibid.56 The Direct Elections Act stipulates, inter alia, that: elections are tobe by direct universal suffrage and should be free and secret; membersof the European Parliament are to be elected on the basis ofproportional representation, using the list system or the singletransferable vote; in accordance with its specific national situation,each Member State may establish constituencies for elections to theEuropean Parliament or subdivide its electoral area in a differentmanner, without generally affecting the proportional nature of thevoting system; Member States may set a minimum threshold for theallocation of seats; and each Member State may set a ceiling forcandidates’ campaign expenses. See the Council Decision and Actconcerning the election of the representatives of the EuropeanParliament by direct universal suffrage [1976] OJ C27/5.57 Most of the limited aspects of uniform procedure contained in the1976 Act were introduced by amendment in 2002.See more on this below atn 58.58 However, the Act has been amended significantly on two occasions.Amendments in 1993, adopted partly to account for the unification ofGermany and the planned enlargement, introduced a scheme for theallocation of seats per Member State (Council Decision 93/81/ECSC [1993]OJ L33, 15)). Meanwhile, 2002 saw the introduction of Council Decision2002/772/EC [2002] OJ L 283. The Decision, while leaving a great deal atthe discretion of the Member States, constituted a clear step towardsthe introduction of a uniform electoral procedure for EP election. TheDecision standardized some aspects of EP election procedure, mostnotably by introducing proportional representation for EuropeanParliament elections (although Member States were left with discretionto implement this amendment by way of either the adoption of a list orsingle transferable vote system). Other notable amendments made by theDecision were the elimination of the dual mandate of European Parliamentmembers such that they were no longer responsible to their Member Stateparliaments and the introduction of a requirement that any minimumthreshold for the allocation of seats to a party set by a Member State

for European citizens to vote in their parliament,59 the Act merelyprovided a legal framework for elections which could only takeeffect once implemented by the Member States at the nationallevel. Moreover, citizens resident in a Member State other thantheir state of nationality were unable to vote at this pointunless provision had been made for this at the national level.60

In addition to this, the 1979 EP elections, famouslycharacterised as 'second-order' national elections,61 were for themost part fought on national issues giving voters littleindication that they were participating in transnational Europeanelections. So unlike the market citizen, the European citizen, inher political guise, was a distinctly national and nottransnational being, as the Member States retained virtually fullownership over EP elections in relation to both form andsubstance.

Following a period of economic stagnation and political stalematein terms of European integration throughout the early 1980s,Jacques Delors took over as President of the Commission and set atimetable for the completion of the internal market before 1992.62

This kick-started the Treaty reform process which led to the 1992Treaty of Maastricht and, as mentioned above, to the introductionof ‘citizenship of the Union’ together with the limited set ofelectoral rights that can be found in the Treaties and in theCharter today.

should not exceed 5%. For more detail on the debate around uniformelectoral procedure, see inter alia: Resolution on the draft uniformelectoral procedure for the election of Members of the EuropeanParliament [1993] OJ C115; Resolution on the European Parliament' sguidelines for the draft uniform electoral procedure [1991] OJ C280;Resolution on a draft uniform electoral procedure for the election ofmembers of the European Parliament [1982] OJ C87; and Case C-41/92Liberal Democrats v European Parliament [1993] ECR I-03153.59 N.B. the Direct Elections Act made no reference to a right to standas a candidate.60 Shaw (n 35) 105.61 K Reif and H Schmitt, 'Nine Second-order National Elections – aConceptual Framework for the Analysis of European Election Results'(1980) EJPR 8.1, 3-44.62 Commission White Paper on completing the Internal Market (COM(85)310).

It should be stressed that only those persons holding thenationality of a Member State were to become Union citizens andthat 'Citizenship of the Union' was strictly additional to nationalcitizenship; it in no way was to replace or alter the legalquality of national citizenship. This principle of additionality (nowset out in Article 9 TEU63 and Article 20(1) TFEU64) in turn meantthat Union citizenship would be characterized by an indirectrelationship between the individual and the Union necessarilypre-determined by a link (ie nationality) to the Member State.65

Moreover, it was abundantly clear the Member States would retainthe authority to determine their nationals for Union purposes.66

Furthermore, while the Maastricht Treaty had introduced an equaltreatment right for mobile European citizens voting in EP andmunicipal elections, their remained no universal right to vote inEP elections at the level of EU law embracing all Union citizensie including those who remained ‘static’.

The electoral rights provisions (Article 8 (b)(1) and (2)) of theMaastricht Treaty were implemented in 1993 and 1994 throughDirectives 93/109/EC,67 and 94/80/EC.68 Directive 93/109,structured around the concept of the ‘Community voter’,69

concerned the equal treatment rights of ‘mobile’ EU citizens(having exercised their free movement rights to move from theirMember State of nationality to a second Member State) withrespect to voting and standing in EP elections. In essence, theDirective lists the requirements to be met by such mobile EUcitizens wishing to vote or stand as a candidate in their countryof residence.70 Meanwhile, Directive 94/80 again dealt with the63 ie ‘Citizenship of the Union shall be additional to and not replace national citizenship'. 64 ie, ‘Citizenship of the Union is hereby established. Every person holding the nationality of aMember State shall be a citizen of the Union. Citizenship of the Union shall be additional to andnot replace national citizenship’.65 Closa (n 37) C 1160 - 1161.66 ibid, referring to the Declaration on nationality of a Member State.67 Directive 93/109/EC [1993] OJ L329/34.68 Directive 94/80/EC [1994] OJ L368/38.69 ie the national of one Member State (and consequently a citizen ofthe Union) who is resident in another Member State and who therefore hasthe right to vote in EP elections by virtue of the Directive70 See Directive 93/109/EC, Articles 3 to 6. Additionally, the Directivesets out some minimal procedural requirements and permissions, in termsof information exchange between Member States and the exercise of votingrights, and a further provision in relation to derogations (see Articles

equal treatment rights of ‘mobile’ EU citizens, this time inrespect of their rights to vote in municipal elections. TheDirective provided that citizens of the Union who were residentin a Member State other than their state of nationality, but whosatisfied all the conditions in respect of the right to vote andto stand as a candidate as that state imposed on its ownnationals, would be entitled vote in municipal elections.71

B. The Case Law of the ECJ and ECtHR

Between 1999 and 2007 three very important cases emerged from theECJ and the ECtHR in relation to the right to vote in EPelections ie Matthews v United Kingdom,72 Spain v United Kingdom73 and Emanand Sevinger v College van burgemeester en wethouders van Den Haag.74 The first case, Matthews v United Kingdom, arose when a Britishcitizen residing in Gibraltar75 was refused entry on the registerfor the 1994 EP elections by her local electoral registrationoffice. The refusal was justified on grounds of Annex II of the1978 Direct Elections Act, which provided that "[t]he United Kingdomwill apply the provisions of this Act only in respect of the United Kingdom", meaningthat Gibraltar was excluded from the franchise. A case was lodgedwith the EComHR claiming breach of Article 3, Protocol 1 of theECHR. The primary issue in the case was whether or not theEuropean Parliament could be characterised as a "legislature" in

7 to 13 and Article 14 respectively).71 See Directive 94/80/EC Following the implementation of theseDirectives, 2002 saw the introduction of Council Decision 2002/772/ECamending the 1976 Direct Elections Act [2002] OJ L 283.? The Decision,while leaving a great deal at the discretion of the Member States,constituted a clear step towards the introduction of a uniform electoralprocedure for EP election.? The Decision standardized some aspects of EPelection procedure, most notably by introducing proportionalrepresentation for European Parliament elections (although Member Stateswere left with discretion to implement this amendment by way of eitherthe adoption of a list or single transferable vote system).72 See Matthews (n 18).73 See Case C-145/04 Spain v UK, [2006] ECR I-07917.74 Case C-300/04 Eman and Sevinger v College van burgemeester en wethouders van DenHaag [2006] ECR I-8055.75 Gibraltar is a dependent territory of the United Kingdom. It formspart of Her Majesty the Queen’s Dominions, but is not part of the UnitedKingdom. The United Kingdom Parliament has the ultimate authority tolegislate for Gibraltar, but in practice exercises it rarely.

Gibraltar76 under the terms Article 3 of Protocol 1. The UK arguedthat the EP lacked fundamental characteristics usually attributedto legislatures (ie the power to adopt and initiate legislation).However, the ECtHR found a violation of the convention. Notingthe sui generis nature of the European Community and the atypicaldivision of powers between the executive and the legislature, theCourt found that the EP was "sufficiently involved in the specific legislativeprocesses leading to the passage of legislation [and] in the general democraticsupervision of the activities of the European Community, to constitute part of the“legislature” of Gibraltar".77 The Court noted that the universal suffrageright in the ECHR was not absolute and could be subject tolimitation by states which had a wide margin of appreciation inimposing conditions on the right to vote.78 However, in this case,the very essence of the right to vote had been denied to theapplicant.

The second case, Spain v United Kingdom, resulted from the first. Incomplying with the ECtHR judgment, the UK enacted the "EuropeanParliament (Representation) Act 2003",79 which extended the EPfranchise to Gibraltar and granted the right to vote to personsregistered in Gibraltar, including not only EU citizens but also,in line with the constitutional traditions in the UK, so-called“Qualifying Commonwealth Citizens”.80 This meant that a group ofaround 200 Commonwealth citizens (ie not Union citizens) residingin Gibraltar were rendered eligible to vote in EP elections.76 The TEC applied to Gibraltar by virtue of what is now Article 355(3)TFEU, which provided that the Treaty applied to the European territoriesfor whose external relations a Member State was responsible. While thereare some areas of EU law that did not, at the time, have effect inGibraltar, European Community legislation concerning, inter alia, freemovement of persons, services and capital applied.77 Matthews (n 18) paras 45 - 54.78 The Court stressed that this case was not comparable to the exampleof expatriate citizens who had distanced themselves from thejurisdiction. See Matthews (n 18) para 64.79 European Parliament (Representation) Act 2003 c. 7, Part 2.80 In the UK all Commonwealth citizens who are resident in the UK andwho have leave to enter or remain in the UK or do not require leave toenter or remain in the UK (“Qualifying Commonwealth Citizens”) areentitled to vote in all forms of elections in the UK. See Representationof the People Act 1983 ss1 and 2; Scotland Act 1998 s 11; Government ofWales Act 2006 s 12; The Northern Ireland Assembly (Elections) Order2001 s4(1); Elected Authorities (Northern Ireland) Act 1989 s1(c); LocalGovernment Act 2000 s 43(1)(a); and Local Government Act 2000 s 45(4).

Spain, objecting to the inclusion on non-EU citizens in thefranchise, brought an enforcement action under Article 226 TEC(now Article 258 TFEU). Spain contended that the, under the termsof the Treaty81 the right to vote in EP elections was confined tocitizens of the Union. Referring to Article 39 CFR, Spain arguedthat the provision “uses the expression “[e]very citizen of the Union”, and not theterm “everyone” or an expression referring to national law”.82 Spain submittedthat the right to vote in EP elections for non-EU citizens couldnot be characterized as a “human right” or a “fundamentalfreedom”, and so could not be protected by the prohibitionagainst adverse interpretations of recognised rights and freedomsfound in Article 53 CFR. 83 The European Commission, arguing withthe UK, submitted that the wording of Article 39 CFR should notbe viewed as necessitating the right to vote to be limited to Unioncitizens.84

The ECJ held that the UK had not breached the Treaty by extendingthe EP franchise to Commonwealth citizens residing in Gibraltar.The Court reasoned that the Treaty did not expressly set out whowas entitled to vote in EP elections or limit the franchiseexclusively to Union citizens. 85 The Court stressed that Article19(2) TEC (now 22(2) TFEU), was a rule of equal treatment betweencitizens of the Union and could not be interpreted in a way thatwould prevent a Member State from extending the right to vote tothose with whom it had a close link.86 In “the current state of Communitylaw”, the Court emphasised, it was a matter for individual MemberStates to determine the definition of the persons entitled tovote and to stand as a candidate in elections to the EP.87

81 Articles 19(2), 189 and 190 TEC.82 See Spain v UK (n 73) para 42.83 ibid.84 ibid at paragraph 56 – although it should be noted that the Courtwent on to say that the United Kingdom and the Commission interpretedArticle 39 CFR as not permitting the right to vote currently conferred by aMember State on third-country nationals to be impaired. This begs thequestion: what would the position be if a Member State, let’s say theUK, chose to enfranchise a new group of third country nationals inEuropean Parliament elections?85 ibid at para 65 to 70. No reference was made to Article 39 CFR.86 ibid at para 76.87 ibid at para 78.

The third case, Eman and Sevinger v College van burgemeester en wethoudersvan Den Haag, concerned two Netherlands citizens resident in theisland of Aruba88 who were rejected entry on the register,maintained in the Netherlands, for EP elections. The rejectionwas on the basis of the Netherlands Electoral Act, which grantedthe right to vote in European Parliament elections to allNetherlands nationals with the exception of those resident inAruba and in the Netherlands Antilles.89 Initiating an action inthe Dutch courts, the claimants contended that the NetherlandsElectoral Act infringed the provisions in the TEC onCitizenship,90 and infringed Articles 18991 and 19092 TEC read inconjunction with Article 3, Protocol 1 of the ECHR which, theyargued, granted the right to vote in European Parliamentelections to all citizens of the Member States, including thoseresiding in overseas countries.

88 Aruba is one of the four constituent countries that form the Kingdomof the Netherlands, together with the Netherlands, Curaçao, and SintMaarten whose citizens share a Dutch nationality. The legislature inAruba is largely autonomous; however, there are a few areas, such asforeign affairs, defence and nationality which are still regulated byacts of the Staten-Generaal (legislature for the Kingdom of theNetherlands).89 LFM Besselink, ‘Case C-145/04, Spain v. United Kingdom, judgment ofthe Grand Chamber of 12 September 2006; Case C-300/04, Eman andSevinger, judgment of the Grand Chamber of 12 September 2006; ECtHR(Third Section), 6 September 2007, Applications Nos 17173/07 and17180/07, Oslin Benito Sevinger and Michiel Godfried Eman v. theNetherlands (Sevinger and Eman)’ (2008) 3 CMLR, 787–813.90 See the Treaty Establishing the European Community, Part Two(Articles 17 – 22) instituting citizenship of the Union for all MemberState nationals and articulating certain Citizens’ rights such as theright to equal treatment for non-national Union citizens wishing to votein European Parliament elections in the Member State in which theyreside (Article 19(2) TEC). 91 ie “The European Parliament, which shall consist of representatives of the peoples of theStates brought together in the Community, shall exercise the powers conferred upon it by thisTreaty”.92 ie “The representatives in the European Parliament of the peoples of the States broughttogether in the Community shall be elected by direct universal suffrage […]”.

The ECJ again held that the Treaty did not expressly state whowas entitled to vote in European Parliamentary elections93 andthat in the current state of Community law, the definition of thepersons entitled to vote and to stand for election fell withinthe competence of the Member States, although, acting in compliancewith Community law.94

The Treaty did not confer an unconditional right to vote and tostand as a candidate in elections to the European Parliament (inview of ECtHR jurisprudence, it was clear that Member States werepermitted to use residence as a criterion for determining whocould vote and stand in such elections).95 Moreover, Member Stateswere not required to hold elections to the European Parliament inoverseas countries or territories (“OCTs”)96 under the Treaty andas the provisions of the Treaty did not apply to OCTs, theEuropean Parliament could not be regarded as their “legislature”within the meaning of Article 3, Protocol 1 of the ECHR.97

However the Court felt that, in exercising their discretion anddetermining the persons entitled to vote and to stand forelection, Member States should not apply provisions arbitrarily,unreasonably or in contravention of the principle of equaltreatment.98 It had not, the Court concluded, been demonstrated,93 Eman and Sevinger (n 74) paras 40 - 44. 94 ibid at para 45. 95 ibid at paras 51 - 55.96 It should be noted that Aruba was an overseas country or territory(“OCT”) for the purposes of the TEC. This meant that EC law did not, inprinciple, apply to it expect in relation to the special regimecontained in Part Four of the TEC (ie Article 299(3) TEC (now Article355(2) TFEU), which should be distinguished from the separateprovisions, for Member States’ European territories, such as Gibraltar,under Article 299(4) TEC).97 Eman and Sevinger (n 74) paras 46 - 48.98 Which as one of the general principles of Community law, requiresthat comparable situations must not be treated differently and thatdifferent situations must not be treated in the same way unless suchtreatment was objectively justified – see ibid paras 54 - 60. Moreover,it should be noted that the reference to considerations of reasonablenessand arbitrariness was made in the context of a discussion on ECHRjurisprudence on Article 3, Protocol 1 ECHR. It is notable that theCourt relied on such jurisprudence.

in this case, that the principle of equal treatment had not beeninfringed given that all those Netherlands expatriate citizenswho resided in other parts of the world (ie outside of theNetherlands OCTs), were entitled to vote in European Parliamentelections, while those residing in OCTs, such as Aruba, weredisenfranchised.99

C. The Lisbon Treaty and other recent developments

Certainly the 2007 Treaty of Lisbon made a number of apparentchanges to the textual basis of political citizenship under EUlaw. However, the substantive legal effect of these changesremains unclear. The Treaty of Lisbon explicitly links theelectoral rights provisions in the TFEU (ie Articles 20(2)(b),21(2) and 22(2) TFEU) to the new provisions on democraticrepresentation in Title II of the reworked TEU (ie Article 10TEU).100 Thus, while Article 10(2) TEU provides that “Citizens aredirectly represented at Union level in the European Parliament”, Article 10(3)TEU states that “Every citizen shall have the right to participate in the democraticlife of the Union.” Shaw has suggested that the changes made by theLisbon Treaty can be best be understood as a codification of theprinciple (implicit in the CJEU and ECtHR case law discussedabove) that European citizens have a right, as a matter ofdemocratic principle, to vote for "their" parliament (ieregardless of whether they are ‘mobile’ or ‘static’).101 However,the validity of this claim remains to be considered by the CJEUand (as will be discussed in more detail below) the UK SupremeCourt has recently taken the view that no such 'universal' rightto vote in EP elections exists.

A recent development worth noting came in the form of theCommission Recommendation of 12 March 2013.102 This99 ibid. 100 J Shaw, ‘Citizenship: contrasting dynamics at the interface ofintegration and constitutionalism’, in P Craig and G de Burca (eds), TheEvolution of EU Law, (OUP 2011) 575-609101 See House of Lords Select Committee on Constitution Written Evidence,Memorandum by Professor J Shaw, Salvesen Chair of European Institutions,University of Edinburgh (2008).102 Commission Recommendation of 12 March 2013, on enhancing thedemocratic and efficient conduct of the elections to the EuropeanParliament, C(2013) 1303. This Recommendation has resulted in theadoption by the European Parliament of a resolution on improving the

Recommendation, geared towards the 2014 EP elections, aimed tostrengthen the transparency of EP elections by ensuring thatvoters were informed about the affiliation between national andEuropean political parties. The Recommendation also aimed toenhance the efficiency of EP elections by simplifyingadministrative processes such as data-exchange about electors andcandidates between Member States.

Another very interesting recent development was the CommissionRecommendation of 29 January 2014.103 This Recommendationessentially takes aim at the disenfranchisement by Member Statesof their expatriate citizens in national parliamentary orpresidential elections when they exercise their rights to freemovement and choose to reside in another Member State. TheRecommendation encourages Member States to allow nationals whohave exercised their right of free movement to remain on theelectoral register for national elections.104 This development is

practical arrangements for the holding of the European elections in2014, 2013/2102 (INL) - 04/07/2013. Another recent development worthnoting is the 2012 amendment to Directive 93/109/EC. Directive2013/1/EU, by eliminating the requirement on non-national candidates tosecure an attestation from their home State as to their eligibility tostand for election, has made it easier for non-national EU citizens tostand for election in their host State (Directive 2013/1/EU [2013] OJL26/27). There was some concern that candidates were having troubleidentifying the relevant authorities empowered to issue suchattestation. The Directive has simplified this procedure for thecandidate by shifting the burden to the Member States. Candidates arenow only required to sign a formal declaration that they are eligible tostand, and the State of residence will then be required to request thecandidate's home State to confirm. The home State will then have theobligation of verifying that the candidate has no judicial oradministrative decisions against his/her name depriving the candidate ofthe right to stand. If the home State does not respond to the requestingState within five days, the candidate will automatically be admitted.This amendment was based on an original (and broader) 2006 proposal fromthe European Commission, which was re-launched and stripped down (ieremoving a proposal on the subject of double voting which had provedcontentious amongst Member States), in 2011. The new rules will havebeen implemented in time for the European Parliament elections in 2014.103 Commission Recommendation of 29 January 2014, Addressing theconsequences of disenfranchisement of Union citizens exercising theirrights to free movement, C(2014) 391.104 Where Member States allready permit relevant nationals to remain onthe electoral register, the Commision recomends Member States to ensure

very interesting in that we see the EU targeting the bastion ofnational sovereignty: the authority of states to determine theboundaries of their political communities with respect to nation-wide elections.

D. Part III Conclusions

We are now in a position to draw some conclusions about the shapeand quality of political citizenship within the EU based on thecurrent state of the law and to highlight some unansweredquestions.

Firstly, it is abundantly clear that, in the current state of thelaw, a great deal of discretion remains in the hands of theMember States. The desire to preserve the diversity of nationalelectoral laws was abundantly clear in both of the electoralrights Directives as considerable scope was left for nationalvariation in implementation.105 Crucially the Member States wereleft with virtually absolute discretion in relation to settingthe boundaries of the franchisee for both EP and municipalelections (not to mention national general elections), meaningthat questions of prisoner voting, expatriate voting, non-citizenvoting (ie third country nationals) and the voting rights ofpersons with mental disabilities were all left to national law.The wide degree of discretion accorded to Member States isconfirmed by the jurisprudence which, although predating theTreaty of Lisbon, clearly established that it was for the MemberStates and not the CJEU, to determine the contours of theelectorate for the purposes of European parliamentary elections.Thus, even following the Maastricht Treaty, the electoral rightsdirectives and the string of CJEU and ECHR cases, the politicalelement of citizenship of the Union, remained legally under-defined, contingent on national authorities for its ultimate formand derivative of the individuals relationship to, and status in,the national political community. However, we do see smallencroachments on the discretion of Member States emerging bothfrom the case law, which requires Member States, at a minimum, tocomply with basic principles of EU and ECHR law (equality, non-discrimination, reasonableness and rationality), and the EUinstitutions which have begun to harmonise EP electoral

such nationals can remain on the register through a faclitatedreapplication process. 105 Shaw (n 35) 146.

procedures and even take aim at the practice of expatriatedisenfranchisement in national elections within the EU.

Secondly, it can be concluded that the current state of the lawleaves a number of key questions unanswered, especially inrelation to EP elections. In terms of protective scope, the caselaw seems to suggest that it would be prudent to view theelectoral rights set out in the Treaties and the Charterprimarily as EU law non-discrimination and equal treatment rightsrather than as universal suffrage rights. However, strongarguments can be made that the Lisbon Treaty has established auniversal right for all Union citizens to vote in EP elections.Yet, without confirmation from the CJEU, it is far from clearthat this is a legal fact. Beyond this, it is wholly unclearwhether, if indeed the Treaty of Lisbon has established a rightto vote in EP elections, does it follow that the EU (as the ownerof the EP franchise) and not the Members States should determinethe scope of the franchise for such elections? Do all expatriateUnion citizens (like Eman and Sevinger) now have an automaticright to vote in EP elections solely on the basis of their Unioncitizenship? Do all Union citizen prisoners have such a right? Doall mentally disabled Union citizens have such a right? In viewof the CJEU's reliance on ECHR jurisprudence in Eman and Sevingerand the Charter's provisions on interpretation which incorporateECHR jurisprudence, it would be useful now to look to the ECHRcase law for some possible answers to these questions.

Part IV: General Conclusions on the Future of PoliticalCitizenship in the EU

A. Human Rights, Citizens' Rights and EU Fundamental Rights

The same essential rights were at once claimed as theinalienable heritage of all human beings and as the specificheritage of specific nations, the same nation was at oncedeclared to be subject to laws, which would supposedly flowfrom the Rights of Man, and sovereign, that is, bound by nouniversal law and acknowledging nothing superior to itself[and] from then on human rights were protected and enforcedonly as national rights […]

- Hanna Arendt, The Origins of Totalitarianism106

With this famous and often cited passage on the 1789 FrenchDeclaration of the Rights of Man and of the Citizen, HannaArendt, in 1951, powerfully drew our attention to the starkdifference between ‘human rights’ and ‘citizens’ rights’. Humanrights, she asserted, must necessarily be enforced and protectedby specific nations such that national citizenship was, ineffect, 'the right to have rights', a right so fundamental thatall other rights hinged on it. Contrary to all human rightsdeclarations, to be without citizenship was equivalent to beingwithout human rights altogether.

Consequently, while citizens’ rights were concrete andenforceable by an identifiable political and judicial authority,human were aspirational, elusive and all but imaginary. In thesubsequent years as human rights have become less aspirationaland more tangible through the establishment of international andregional human rights courts and the implementation of humanrights norms in domestic and regional law, many have argued forthe collapsing or narrowing of the distinction between humanrights on the one hand, and citizens’ rights on the other. WhileTom Bottmore, in 1992, argued that we 'examine civil, political,and social rights in the framework of a conception of generalhuman rights, rather than citizenship',107 Yasemin Soysal,famously proclaimed, in 1994, that:

106 H Arendt, The Origins of Totalitarianism (Andre Deutsch 1986) 291.107 J Shaw and I Stiks, 'What Do We Talk about When We Talk aboutCitizenship Rights?' in J Shaw and I Stiks (eds) Citizenship Rights (Ashgate2013) see introduction.

Today, … individual rights, expansively redefined as humanrights on a universalistic basis … undercut the import ofnational citizenship by disrupting the territorial closureof nations [and] the individual, as an abstract, humanperson, supplants the national citizen …. Within thisuniversalised scheme of rights … non-nationals participatein a national polity, advance claims, and achieve rights ina state not their own.108

Seyla Benhabib, meanwhile suggested that, within the EU, "there is adynamic toward narrowing the divide separating human rights from citizens' rights, orbasic rights from political rights ... and, given the growing role of the European Court ofHuman Rights these trends are quite irreversible."109

However, as we have seen throughout this Chapter, nowhere is thecontrast between human rights and citizens’ rights more apparentthan in the context of political citizenship rights. Returning tothe two key distinguishing factors between citizens' rights andhuman rights that were introduced at the beginning of thisChapter, it is clear that in terms of inclusiveness, electoralrights are far from universal and in terms of the extent ofauthority the state retains over the scope and substance ofpolitical citizenship rights, it is fair to say that it remainssignificant. Firstly, the ideal of universal human suffrage, asarticulated in many international human rights treaties, hashistorically been subject to the (virtually unquestioned) caveatthat this principle does not extend to non-citizens. It has, ininternational practice, been perfectly legitimate for States toexclude non-citizens from the scope of their franchise withoutany suggestion arising that the principle of universal suffragewas being encroached upon.110 Secondly, states continue to retainnear absolute authority to determine the internal boundaries oftheir political communities and, looking at Member State practicethroughout the EU (see Part II of this Chapter), human rights108 Y Soysal, Limits of Citizenship: Migrants and Post-National Membership in Europe, (UCP1994) 164.109 S Benhabib, The Rights of Others: Aliens, Residents, and Citizens, (CUP 2004) 167. 110 New Zealand, where non-nationals have been entitled to vote since1975, is perhaps the most complete exception to this.

law has done little to protect the 'usual suspects' (especiallyconvicts, the mentally ill and the physically disabled) fromlegal or practical disenfranchisement.111

As we have seen, the rights accorded under the EU Treaties andthe Charter to mobile citizens of the Union to vote and stand inEuropean parliamentary elections and municipal elections areentirely sui generis in that, on the one hand, they allocatepolitical membership on the basis of Member State nationality (ierecognising political rights as citizens’ rights rather thanhuman rights in line with the historical status quo) and on theother hand, they are accorded on the basis of residence such thatthey also, in some way, subvert the status quo. Moreover, theserights are explicitly targeted at non-citizens (second countrynationals) such that they transcend nationality to an extent andfurthermore, in the context of municipal elections, theyundermine the state's historic absolute discretion over itsfranchise. These rights have evolved out of the unprecedentedexperiment that is the European integration project and they arevery much the creature of that project. A crucial question thatremains unanswered with respect to the rights to vote and standin EP elections is what effect the changes introduced by the 2007Treaty of Lisbon and the coming into force of the Charter(particularly the new universal suffrage right at Article 39(2))will have. Are these signals that the EU will take ownership ofthe EP franchise, removing it from the hands of the MemberStates? If this is so how will the EU define the boundaries itspolitical community? Is there an EU 'We' and how inclusive is it?111 In 2011, the Organisation for Security and Cooperation in Europe,reported that the right to vote, for persons with disabilities, was amatter of serious concern and went so far as to make dedicatedrecommendations for five EU Member States (Bulgaria, Cyprus, Estonia,Finland and Latvia). Disability can be an impediment to the effectiveexercise of electoral rights by way of lack access to polling stationsor the lack of Braille templates for blind voters. See for moreinformation see Fundamental rights: challenges and achievements in 2011, Chapter 7:Participation of EU citizens in the Union's democratic functioning, FRA – European UnionAgency for Fundamental Rights, 2012, available fromhttp://fra.europa.eu.

Ultimately, what will political citizenship look like in thecontext of EU Fundamental Rights - and especially Article 39(2) -as articulated in the Charter?

The rest of this Chapter will be devoted to answering thesequestions by looking at some ECHR, national and CJEU case law,which perhaps, might contain some answers.

B. Answers in the case law?

Certainly, one of the most obvious places to look, if trying toassess the potential future substance of the universal suffrageright at Article 39(2), is to the jurisprudence of the ECtHR(especially if we note the wording of Article 52(3) CFR asdiscussed above). Perhaps the development of Article 39(2) willshadow the cautious jurisprudence of that Court, which has strucka delicate balance between recognising the historical right ofthe sovereign to demarcate the demos on the one hand, andextending the ostensibly universal right to human suffrage to evermore groups of individuals on the other.

The questions that pervade ECHR jurisprudence, as noted above,are: which groups may be legitimately excluded from electoralrights and how wide a ‘margin of appreciation’ do States havewhen determining the electorate? It seems clear that in spite ofthe interesting use of the words "the people" rather than "thecitizens" in Article 3, it is unlikely that the provisionapplies, as a whole, to non-citizens.112 Indeed, there have notyet been any cases before the court brought by non-citizensexplicitly challenging their exclusion from the franchise and soit is not yet clear to what extent the provision applies to non-citizens at all. Beyond non-citizens, recent cases such as Hirst vUnited Kingdom (No 2)113 and Scoppola v Italy (No 3)114 have confirmed that itis within the competence of States to disenfranchise prisoners solong as there is no general and automatic disenfranchisement ofall serving prisoners. The ECtHR has also established that

112 Smyth (n 24). 113 Hirst v United Kingdom (No 2) App no 74025/01 (ECHR, 2006).114 Scoppola v Italy (No 3) App no 126/05 (ECHR, 2012).

stipulating a residence or length-of-residence requirement forcitizens wishing to vote is within the competence of States115

and, in Sitaropoulos v Greece (No 1),116 that Article 3, Protocol 1, doesnot obligate States to enfranchise their expatriate citizens.Moreover, in Hirst v United Kingdom (No 2), the ECtHR also confirmed thatthe setting of a minimum age threshold equally does not fall foulof Article 3.117

The Court has, however, constrained the margin somewhat, notingfor example, as noted above, in Alajo Kiss v Hungary118 and in Hirst (No 2)that the margin of appreciation should also be narrower wherelegislation disenfranchised a particularly vulnerable group insociety.119 In the 2012 case of Sitaropoulos v Greece (No 2), the Courtrepeated its oft-recited caution that:

it is for the [ECtHR] to determine in the last resortwhether the requirements of Article 3 of Protocol No. 1 havebeen complied with; it has to satisfy itself that theconditions to which the right to vote and the right to standfor election are made subject do not curtail the rights inquestion to such an extent as to impair their very essenceand deprive them of their effectiveness; that they meet therequirements of lawfulness; that they are imposed in pursuitof a legitimate aim; and that the means employed are notdisproportionate.120

The ECtHR has had fewer occasions to deal with an allegedviolation of an individual's right to stand as a candidate forelection under Article 3. In Ždanoka v Latvia, the court noted thatthe ‘margin of appreciation’ was historically narrower withrespect to the right to vote than the right to stand as a

115 Doyle v the United Kingdom App no 30158/06 (ECHR, 2007).116 Sitaropoulos and Others v Greece (No 1) App no 42202/07 (ECHR, 2010)(confirmed in Sitaropoulos and Others v Greece (No 2) App No 42202/07 (ECHR,2012)). 117 Hirst (n 113).118 Alajos Kiss v Hungary App no 38832/06 (ECHR, 2010).119 ibid at para 41.120 Sitaropoulos and Others v Greece (No 2) (n 116) at para 64.

candidate and involved different considerations121 This positionwas echoed in the more recent case of Sitaropoulos (No 1).122

Meanwhile, in Melnychenko v Ukraine, the Court also recognised thatlegislation establishing domestic residence requirements for aparliamentary candidate was, in principle, compatible withArticle 3.123 Furthermore, in Glimmerveen and Hagenbeek v Netherlands,the EComHR declared inadmissible two applications concerning therefusal to allow the applicants, who were the leaders of a bannedorganisation with racist and xenophobic tendencies, to stand forelection.124

Although the Court has been more forthright in cases like Alajo Kissand Hirst (No 2), on the whole, the basic premise that States are tohave a considerable amount of discretion with respect todetermining the scope of the franchise (and electoral proceduremore generally) remains relatively unchanged.

Looking now to another interesting line of cases that have madetheir way through the UK courts this time, we can see oneperspective on the legal effect of the Lisbon Treaty changes andthe coming into force of the Charter. In McGeoch v Lord President of theCouncil Court of Session,125 an attempt was made by lawyers for theclaimant to extend the municipal franchise to prisoners inScotland by arguing that the convicted prisonerdisenfranchisement provisions under UK law were incompatible withrights granted under Article 20(2)(b) TFEU and Article 40 CFR.However, the Scottish courts held that the EU law did not conferupon the nationals of a Member State the right to vote inmunicipal elections in that state (ie only mobile EU citizens werecovered by the provisions). The Court was very careful todistinguish the right to vote in municipal elections from theright to vote in European parliamentary elections, noting thatwhile the franchise for municipal elections did not fall within

121 Ždanoka v Latvia App no 58278/00 (ECHR, 2006) at para 115.122 See Sitaropoulos and Others v Greece (No 1) (n 116) at paras 41 to 45.123 Melnychenko v Ukraine App no 17707/02 (ECHR, 2006) at paras 53 - 67.124 Glimmerveen and Hagenbeek v the Netherlands App nos 8348/78 and 8406/78(ECHR, 1979).125 McGeoch v Lord President of the Council [2011] CSIH 67.

the scope of EU law, the franchise for European elections did,under Article 14 TFEU (upon which Article 39(2) CFR is based).This begged the question of what would happen if Europeanparliament elections were brought into play, and this isprecisely what happened in the conjoined appeals to the UKSupreme Court in R (on the application of Chester) v Secretary of State for Justice &McGeoch (AP) v The Lord President of the Council and another (Scotland).126 In thiscase, the claimants argued that their right to vote in EPelections, deriving from the EU treaties and Article 39 CFR takentogether with the ECtHR jurisprudence, was violated by the UK’sapplication of an indiscriminate ban on prisoner voting. However,the UK Supreme Court took the position that the Lisbon Treatyinnovations taken together with the coming into force of theCharter, could not be read as establishing an individual right tovote for citizens of the Union in EP elections. The Supreme Courtadopted a very narrow reading of both the ECtHR and CJEUjurisprudence discussed above and also the Treaty provisionstogether with Article 39 CFR. In reaching its conclusions, theSupreme Court played down the universal suffrage component of theEU legislation, failing to discuss in any detail either Article10(3) TEU or Article 39(2) CFR. Finding that EU law contained noindividual right to vote in EP elections, the Court refused tomake a reference to the CJEU denying the European Court theopportunity to articulate its understanding of both the characterof the universal suffrage right in relation to EP elections andalso the scope of the Member States’ margin of appreciation inthat context.127 The case clearly illustrates the problems thatthe EU would encounter in trying to take control of the EPfranchise. Member States will be reluctant to have imposed onthem a franchise for EP elections that is more inclusive than thefranchise with respect to national domestic elections, especiallywhere this concerns prisoners voting rights.128

126 R (on the application of Chester) v Secretary of State for Justice & McGeoch (AP) v The LordPresident of the Council and another (Scotland) [2013] UKSC 63.127 ibid paras 43 - 68.128 The UK has refused to lift its current disenfranchisement of allserving prisoners (except those on remand), and during Prime Minister’squestions, on 24 October 2012, David Cameron told MPs that, ‘No one

Finally, looking at a recent string of cases from the CJEU we aregiven the indication that even if the EU were to take fullownership of the EP franchise, one group of 'usual suspects' maystill find themselves without a voice in the emergent EUconstitutional polity. A recent string of CJEU cases, includingDias,129 Tsakouridis,130 P.I.131 and Onuekwere132 have all suggested thatconvicted mobile EU citizens, or the convicted family members ofsuch citizens, are liable to punishment under Directive2004/38/EC (the 'citizens' rights directive') by way of reducedresidence security in the host state (ie by way of postponementof permanent residence status or deportation). There can bediscerned in all of these cases a moralizing tone on the part ofthe CJEU which encourages punishment of convicted EU citizens onthe basis of their failure to integrate into the host state (asevidenced by their conviction for violation of that state'slaws). This line of cases makes one wonder whether, even ifChester and McGeoch had been referred to the CJEU, that court wouldhave taken a sympathetic view towards enfranchising convicted(static) EU citizens. Certainly, one could imagine, that hadChester and McGeoch been mobile Union citizens convicted ofcrimes in their host state and desiring to vote in EP electionsin that state, the Court would have had a very curious debate onits hands. should be under any doubt—prisoners are not getting the vote under thisgovernment.’ The UK had been given six months from the date of the GrandChamber judgment in Scoppola (n 95) (22 May 2012) to put forwardproposals with a view to dealing with the established problems with UKlaw from the perspective the ECHR, and draft legislation—which standslittle present prospect of being adopted by Parliament—was duly putforward in November 2012, which offers a number of options which wouldsatisfy the Court of Human Rights, such as allowing prisoners servingsentences of less than four years to vote: see J Rozenburg, ‘PrisonerVotes: Government is playing for more time’, The Guardian, 22 November2012, www.guardian.co.uk/law/2012/nov/22/prisoner-votes-government-more-time. 129 Case C-325/09 Secretary of State for Work and Pensions v Maria Dias [1992] ECR I-4673.130 Case C-145/09 Land Baden-Württemberg v Panagiotis Tsakouridis [2010] ECR I-11979.131 Case C-348/09 P.I. v Oberbürgermeisterin der Stadt Remscheid [2012] ECR I-0000.132 Case C-378/12 Onuekwere v SSHD [2014] ECR I-0000.

C. Final observations: political citizenship in the context of EUfundamental rights

As suggested in the introduction, political citizenship as it hasbeen understood here, refers to a set of rights to politicalparticipation, to a voice, within a defined political communityon the basis of a legal status which signifies membership in thatcommunity. In the context of EU fundamental rights, politicalcitizenship refers to the rights, guaranteed under the Charterand the Treaties, to vote and stand as a candidate in EP andmunicipal elections granted to Union citizens on the basis oftheir membership within an emergent constitutional polity. Thesubstance and scope of these rights has been explored by lookingat their legal framework (in EU law), legal environment(international, ECHR, and national law) and the history of theiremergence within the unprecedented experiment that is theEuropean integration project.

Ultimately, we can conclude that EU political citizenship rightsare neither fully citizens' rights nor entirely human rights;they are an odd and absolutely novel product of Europeanintegration. Both impressively inclusive and transcendent at thesame time as they are predictably exclusive and anchored in statepractice. Second country nationals throughout the EU havemunicipal electoral rights that other non-citizens within the EUand throughout the world could only dream of. However, for themost part, the 'usual suspects' identified in the introduction(particularly prisoners/convicts, the mentally and physicallydisabled and expatriates) remain at the mercy of nationalgovernments and often at the margins of or even outside thepolitical community, relegated to a second class citizenship, asthey have been since ancient Athens and Ancient Rome.

However, while it is clear that under EU law, as in internationalhuman rights law, states retain considerable discretion todetermine the contours of their political communities, it is alsoapparent that such discretion is not, as it once was, absolute:it is subject to considerable regional oversight and regulation

and it is fettered by considerations of reasonableness, equality,non-discrimination, proportionality and the legitimacy of theostensible aims being pursued. This lends considerable credenceto the arguments of those like Soysal and Benhabib discussedabove.

The key question that remains is the extent to which the CJEU,the EP and the Commission will, on the basis of Lisbon Treatyinnovations and the coming into force of the Charter, takeownership of the EP franchise. Indeed, if the EU really does‘own’ the franchise to EP elections, following the reasoning ofthe Scottish courts in the first McGeoch case discussed above,and as would seem to follow from an argument based onunderstanding the EU as an emergent constitutional polity, thenquestions arise as to what kind political community the EU wouldconstruct, having rested the franchise from the grasp of theMember States. Analysis of ECHR, CJEU and Member State case lawsuggests that a cautious approach would be likely, balancingMember State sentiments and practices with the pursuit of an evermore inclusive franchise. It is certainly arguable that MemberStates are not permitted, under the current law, to excludecertain groups of EU citizens from the franchise altogether, asEman and Sevinger hints at (especially if this is not doneproportionately or rationally). This is an interesting thought,given the number of EU Member States that still disenfranchiseboth prisoners and persons with mental impairments. However, withrespect to prisoners, it seems likely that this group of Unioncitizens will remain wholly or partially excluded from thepolitical community whoever owns the EP franchise. Indeed, it isas true now as it has been since the time of the ancients to saythat that political citizenship laws are very much a "collection ofcoded pronouncements about who counts as a full member of the political communityand why".133

133 Lardy (n 11) 100.