Explanatory Memorandum to COM(2021)732 - Arrangements for the exercise of the right to vote and stand as a candidate in European elections for citizens residing in a country of which they are not nationals (recast)

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dossier COM(2021)732 - Arrangements for the exercise of the right to vote and stand as a candidate in European elections for citizens residing in a ...
source COM(2021)732 EN
date 25-11-2021


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

It is important to ensure that mobile EU citizens can fully exercise their EU citizenship rights in the context of the next elections to the European Parliament.

Democracy is one of the values on which the European Union is founded. Every citizen has the right to participate in the EU’s democratic life and decisions are to be taken as openly and as closely as possible to the citizen. EU citizens are directly represented in the European Parliament.

EU citizenship entails specific democratic rights. EU citizens who have exercised their right to live, work or study in a Member State of which they are not a national (‘mobile EU citizens’) have the right to vote and stand as a candidate in elections to the European Parliament in their Member State of residence.

Council Directive 93/109/EC lays down the detailed arrangements for the exercise of their electoral rights in elections to the European Parliament in their Member States of residence.

In the EU Citizenship Report 2020 1 , the Commission expressed its intention to propose an update of Council Directive 93/109/EC on the right of mobile EU citizens to vote and stand as candidate in elections to the European Parliament. The aim is to facilitate the provision of information to citizens and improve the exchange of relevant information among Member States, including to prevent multiple voting. The Commission Work Programme for 2021 announced a legislative initiative to improve the electoral rights of mobile EU citizens.

Despite the measures currently in place, mobile EU citizens still face difficulties in exercising their electoral rights in elections to the European Parliament. Problems include difficulties in obtaining correct information on how to vote and stand as candidate, burdensome registration processes, and the effect of deregistration from elections in the Member State of origin. Specifically, the information exchange between Member States on registered voters and candidates in order to prevent multiple voting in elections to the European Parliament is being hindered by an inconsistent scope and deadlines for data exchange and collection.

This initiative updates, clarifies and strengthen the existing rules to address the difficulties faced by mobile EU citizens, with the aim to ensure broad and inclusive participation in the 2024 elections to the European Parliament, support mobile EU citizens in the exercise of their rights and protect the integrity of elections.

This proposal builds on long-standing and regular exchanges with Member State’s competent authorities through the Commission’s dedicated implementation group for the directives, the expert group on electoral matters, and two further dedicated joint meetings of the multidisciplinary European Cooperation Network on Elections and the expert group on electoral matters.

This is an initiative under the regulatory fitness and performance programme (REFIT).

• Consistency with existing policy provisions in the policy area

A New Push for European Democracy is a priority of the Commission as announced by President von der Leyen in the Political guidelines of the Commission 2019-2024 2 .

The European Democracy Action Plan 3 presented by the Commission on 3 December 2020 announced the Commission’s intention to reinforce the protection of electoral processes and propose a new EU operational mechanism to strengthen cooperation between Member States and regulatory authorities. All measures proposed are coherent with the objectives inspiring Council Decision 2018/994 on the revision of EU electoral law.

This initiative is also closely related to the proposal to recast Council Directive 94/80/EC of 19 December 1994 4 and to the work being done on the other initiatives in the transparency and democracy package of the Commission Work Programme 2021. This initiative will also be accompanied by a Communication in which one aim is to support electoral participation of mobile EU citizens.

• Consistency with other Union policies

The proposal ensures consistency with the EU Single Digital Gateway Regulation 5 regarding access to high-quality information with regard to Union and national rules applicable to citizens exercising or intending to exercise their rights derived from Union law in the field of the internal market and with the ‘Union of Equality: Strategy for the Rights of Persons with Disabilities 2021-2030’ 6 which seeks to guarantee political rights of persons with disabilities on an equal basis with others 7 . It also complements other EU policies related to democracy and the digital world 8 . By seeking equal access to electronic or internet voting solutions for mobile EU citizens, the proposal aims at better protecting their fundamental rights, and enhances overall democratic participation.

The initiative is consistent with EU legislation on data protection.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

Article 20 TFEU establishes Union citizenship. Articles 20(2)(b) and 22(2) TFEU and Article 39 of the EU Charter of Fundamental Rights, provide that citizens of the Union have the right to vote and stand as candidates in elections to the European Parliament in their Member State of residence, under the same conditions as national of that State. Article 22 TFEU provides that the exercise of this right is to be subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament.

Council Directive 93/109/EC sets down those detailed arrangements for the exercise of electoral rights for elections to the European Parliament.

• Subsidiarity (for non-exclusive competence)

The electoral rights of mobile EU citizens to participate in elections to the European Parliament are set down in the Treaty on the Functioning of European Union as part of their rights as Union citizens. The legal framework for the exercise of electoral rights by mobile EU citizens involves the interaction of EU and national rules. The Union acts to implement the Treaty principle establishing the electoral rights of mobile EU citizens, in particular through Council Directive 93/109/EC.

Since cross-border matters are beyond the reach of individual Member States, identified problems cannot be addressed by Member States acting individually. Providing common standards and procedures for the right of mobile EU citizens to vote and stand as candidates in elections to the European Parliament and on the exchange of information about the relevant voters and candidates to prevent multiple voting can only be properly achieved at EU level.

• Proportionality

The targeted measures proposed do not go beyond what is necessary to achieve the long-term objective of developing and strengthening EU democracy. They improve and refine the framework governing the exercise by mobile EU citizens’ electoral rights granted under the Treaties, and better address multiple voting in the context of the elections to the European Parliament by enhancing the current exchange of information system. The proposal therefore complies with the principle of proportionality.

• Choice of the instrument

The Council Directive already contains a robust set of norms on the standards and procedures for the exercise of electoral rights by mobile EU citizens. This proposal is intended to provide targeted changes to that Council Directive to address certain identified shortcomings and obstacles that Member States and citizens encounter. Given the necessity to update language, obsolete references and provisions, it is appropriate to recast the Council Directive. Since this proposal is to recast the Council Directive, the same type of legal instrument is the most appropriate.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

A derogation from the ‘evaluate first’ principle has been applied taking into account the existence of recent reports issued by the Commission. Evidence clearly shows the need for Directive 93/109/EC 9 to be updated, and this is considered sufficient for the evaluation step. Finally, the external study prepared in support of the impact assessment also includes elements of evaluation of the existing legal framework 10 .

• Stakeholder consultations

In preparing the current proposal, the Commission has been in close dialogue and consultation with the relevant stakeholders.

The proposal is based among others on an open public consultation 11 of citizens, non-governmental organisations and local and regional authorities, relevant studies including from the Academic Network on EU Citizenship Rights 12 , and the findings of an external study prepared to support an impact assessment conducted prior to the proposal 13 . In addition, it takes into account feedback received from dedicated stakeholder consultations, including from mobile EU citizens 14 , the European Cooperation Network on Elections 15 and the expert group on electoral matters 16 . This was complemented by conclusions from relevant projects funded under the programmes Rights, Equality and Citizenship 17 and Europe for Citizens 18 and by direct feedback from EU citizens received by the Commission and the European Parliament.

• Collection and use of expertise

The proposal was informed by sources of expertise. These sources of information comprised expert consultations with the Commission´s expert group on electoral matters and European cooperation network on elections.

Two joint meetings of the European cooperation network on elections and the expert group on electoral matters were hosted on 28 January 2021 and on 10 June 2021. Points discussed in these two joint meetings had already largely been debated in previous meetings and extensively analysed in the Commission’s report on the 2019 elections to the European Parliament 19 .

• Impact assessment

The proposal is supported by an impact assessment (SWD(2021) 357). Given the similarities between Council Directive 93/109/EC and Council Directive 94/80/EC in terms of both the main beneficiaries (mobile EU citizens) and the rights granted and associated requirements for Member States, the possibilities to improve them and their functioning was assessed in one document. The Regulatory Scrutiny Board issued a positive opinion on the impact assessment (SEC(2021) 576).

The impact assessment examined two alternative policy options for tackling the problems identified. The policy options present a range of potential measures considered to improve the exercise of electoral rights, and to support a fair electoral process by addressing the issue of multiple voting. Specifically, these policy options range from soft, non-legislative measures in support of awareness raising and enhanced administrative cooperation, to setting common standards for procedures to register mobile EU citizens and the exchange of data to prevent multiple voting. Option 1 provides targeted legislative amendments and soft measures. The aim is to consolidate and clarify existing provisions of the Council Directive.

Option 2 provides for an extensive legislative intervention. While respecting the non-discrimination principle as the basis of the Directive, the second policy option aims to put in place an extensive reform of the Directive by, for example, setting legal requirements on the time-limits for registration. The options were scrutinised as to their effectiveness, efficiency, coherence with other EU policies and subsidiarity and proportionality. Option 2 is considered to be the most effective option in achieving all the envisaged objectives. However, Option 1 is the preferred option for reasons of efficiency, coherence and subsidiarity and proportionality.

• Regulatory fitness and simplification

The proposal entails some costs for Member States’ and EU administrations arising from increased cooperation, but it is also expected to facilitate efficiencies for authorities due to harmonised processes. Moreover, some Member States already have systems in place that cover the obligations envisaged and would thus not face significant additional costs.

The proposal simplifies the process of registering to vote and to stand as candidates in European elections for mobile EU citizens. It would also reduce their costs compared with the status quo, in which no changes to current provisions would be made.

Under the proposal, no negative economic effects were identified arising from greater integration and democratic participation of mobile EU citizens in their host Member State. Simplifying registration requirements and improving information provision and awareness on voting for mobile EU citizens is expected to have only indirect wider economic impacts insofar as it supports free movement.

The proposal envisages that mobile EU citizens will have equal access to remote and electronic voting possibilities, under the same conditions as nationals of that Member State. Remote voting possibilities facilitate the electoral participation of mobile EU citizens.

The proposal supports optimisation of the technical tool for the exchange of data on registered voters between Member States. This would primarily include a formalised approach to the system supporting the exchange of data that has been operationalised via the encryption tool provided by the Commission, by introducing explicit references to it in Council Directive 93/109/EC. The whole transmission process facilitated by the encryption tool would be further strengthened through the secure transmission of data between Member States, including in case of doubts on individual cases. By doing so, the proposal facilitates the administrative tasks and ICT-related procedures for Member State administrations as main stakeholders.

The digital aspects of the proposal are therefore consistent with the “Digital Check 20 ”.

• Fundamental rights

Article 2 of the Treaty on European Union (TEU) provides that ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’

Article 10(1) and (2) TEU provide that ‘The functioning of the Union shall be founded on representative democracy’ and that ‘Citizens are directly represented at Union level in the European Parliament’.

Article 26 of the EU Charter of Fundamental Rights states that the Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

This proposal pursues the objectives of these provisions, and is thus compatible with and gives effect to the fundamental rights guaranteed by the EU Charter of Fundamental Rights.

This proposal enhances the freedom of movement for EU citizens (Article 45 of the Charter). It also supports equality in their treatment and opportunities to vote compared with nationals in their Member State of residence. Furthermore, it enhances the right to vote and to stand as a candidate in elections to the European Parliament (Article 39 of the Charter) and their right to good administration (Article 41).

4. BUDGETARY IMPLICATIONS

This proposal does not impose any financial or administrative burden on the EU. Therefore, it has no impact on the EU budget.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

Member States are to adopt and publish by 31 May 2023 the measures necessary to comply with this Directive. Six months after each election to the European Parliament, Member States are to send to the Commission a report on the application of this Directive. Within 1 year after each European Parliament election, the Commission is to submit to the European Parliament and the Council a report on the application of this Directive. The Commission may propose any amendments that it deems necessary. Within two years after the 2029 elections to the European Parliament, the Commission will also conduct its own evaluation of the performance of the Directive, in order to consolidate the information collected from the reports of the Member States and from the meetings of the European cooperation network on elections.

• Explanatory documents

In its judgment of 8 July 2019 21 and in its further jurisprudence 22 the Court of Justice clarified that, when notifying national transposition measures to the Commission, Member States must provide sufficiently clear and precise information, and identify, for each provision of the directive, the national provision(s) ensuring its transposition.

• Detailed explanation of the specific provisions of the proposal

Explanations are only given for the provisions of the Council Directive that are proposed to be changed by this proposal.

1. In order to facilitate access for mobile EU citizens to electoral information, Article 12 sets higher standards for providing electoral information to mobile EU citizens. The proposal requires Member States to appoint authorities that will proactively inform mobile EU citizens residing on their territory of the conditions and detailed rules for registration as a voter or candidate in elections to the European Parliament, before and after their registration, either for electoral purposes or for the purpose set out in Directive 2004/38/EC. This could also entail the provision of information and the use of means of communication adapted to specific voter groups such as young voters.

With the aim to increase mobile EU citizens’ awareness and understanding of procedures and practices to register and to participate in elections to the European Parliament, the same article provides for an obligation for authorities appointed by Member States to communicate to mobile EU citizens who were registered as voters or as candidates, specific and tailored information on the following:

(a) the status of their registration;

(b) the date of the election and how and where to vote;

(c) the relevant rules on voter and candidate rights and obligations, including prohibitions and incompatibilities and applicable sanctions in the case of violation of electoral rules;

(d) means of obtaining further information on the organisation of the election including the list of candidates.

Under Regulation (EU) 2018/1724, Member States have to ensure that users have easy access on their national webpages to user-friendly, accurate, updated and sufficiently comprehensive information on participating in elections to the European Parliament. Member States use different means and channels of communication. Therefore, in order to ensure consistency, the initiative envisages extending correspondingly the quality requirements set out in Regulation (EU) 2018/1724 to the direct and individual provision by Member States of official electoral information to mobile EU citizens.

To increase accessibility and improve information levels, Member States will be required to use the official language of the Member State of residence and an EU official language that is broadly understood by the largest possible number of EU citizens residing on its territory. Member States will also be able to rely on the Your Europe portal. Along with the contact information introduced by amendments to the data mobile EU citizens need to submit in order to register as voters and candidates, this will allow Member States to use electronic channels to communicate information directly. To ensure inclusive electoral participation, the initiative also sets accessibility requirements for the information provided to persons with disabilities and to older people using as a source of inspiration the general comments of the United Nations Committee on the Rights of Persons with Disabilities regarding Article 21 of the United Nations Convention on the Rights of Persons with Disabilities.

2. With the view to reducing the administrative barriers faced by mobile EU citizens, the proposal (Articles 9 and 10) introduces standardised templates for the formal declarations, set out in Annexes I and II, that have to be produced by mobile EU citizens in order to register as voters and candidates. In order to facilitate the identification of mobile EU citizens, in line with the accuracy principle set out in Article 5(1)(d) of the General Data Protection Regulation, current data are supplemented with the personal identification number issued by the home Member State (where applicable) or alternatively with the type of identity document or travel document issued by the home Member State and its serial number. The forms will also contain contact information, to allow Member States to deliver on their obligation to inform. As the annexes to the Directives will be published in the Official Journal of the European Union, they will be available to citizens and national authorities alike in all EU official languages.

3. Amendments to Article 13 aim at streamlining the current information exchange system on the electoral rights of mobile EU citizens. Measures taken to that end include the establishment of a unique set of data, set out in Annex III, which, in addition to the data currently exchanged, will include, the personal identification number issued by the home Member State (where applicable) or the type of identity document or travel document, and the registration date. In addition, the amendments expressly reference the electronic means offered by the Commission to Member States to support the security of the data exchange. The same article limits the scope for registering mobile EU citizens on electoral rolls and on the list of candidates of the host Member State only to European Parliament elections, preventing de-registration from other elections. The Commission will be empowered to adopt implementing acts for the purpose of defining the responsibilities and obligations for the operation of the secure tool set, in accordance with the examination procedure referred to in Article 19.

4. Article 17 introduces regular monitoring and reporting of implementation by Member States. Reports are to contain relevant statistical data on the participation, either as voters or as candidates, of mobile EU citizens in European Parliament elections. In order to better assess the implementation of measures envisaged by the Directive, Member States will be expected to improve their collection of data on the number of mobile EU citizens registered as voters and candidates, where applicable, and on the number of mobile EU citizens who voted. Article 18 provides for the evaluation of the application of the Directive within two years after the 2029 elections to the European Parliament.

5. Articles 9, 10 and 13 confer on the Commission the power to adopt delegated acts to ensure that the templates of formal declarations submitted by mobile EU citizens at their registration as voters or candidates and data set that will be exchanged between Member States, continue to comprise relevant information. Article 20 sets the conditions of the delegation in accordance with Article 290 TFEU.

6. In line with the non-discrimination principle, Article 14 requires Member States to ensure access for mobile EU citizens to the same means of advance voting, postal voting, electronic voting and internet voting, that is available to their own nationals in elections to the European Parliament.

7. The proposal deletes the term “automatically” from Article 9 i in line with the General Data Protection Regulation’s provisions on the restrictions to automated decision-making. In addition, to ensure access to information on equal terms with their nationals, Member States are required to notify mobile EU citizens of their removal from the electoral roll, if such an obligation regarding its own nationals is in place.

8. With the same aim of increasing awareness of mobile EU citizens and their access to electoral rights, amendments to Article 11 require Member States to inform mobile EU citizens, clearly and in a timely manner, of their registration and of their legal remedies if their application is rejected. It also clarifies the extent of the obligation of Member States by replacing the term ‘action’ with ‘decision’. Under a new paragraph in Article 11, it provides for the right of voters and candidates within the scope of Article 3 of the Directive to correct any inconsistencies or errors in the data contained in the electoral rolls or the lists of candidates under similar terms as for nationals of the host Member State.

9. The proposal also envisages adaptations of the outdated language and references (Article 2(5) and (6), Article 3(a), Article 4(1) and Articles 5, 8, 9, 10, 11 and 16) by replacing the references to the Treaty establishing the European Community with references to the Treaty on the Functioning of the European Union and by employing gender-neutral language.

10. Amendments also delete Article 15 as this provision referred to the 1994 European Parliament elections.

11. Article 21 provides for the transposition of the Directive by 31 May 2023, in line with the guidance provided by the Venice Commission of the Council of Europe.


93/109/EC (adapted)