Considerations on 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) - Main contents
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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 ... |
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| document | COM(2021)732  |
| date | November 25, 2021 |
(1) A number of amendments are to be made to Council Directive 93/109/EC 23 . In the interests of clarity, that Directive should be recast.
93/109/EC recital 1 (adapted)
Whereas the Treaty on European Union marks a new stage in the process of creating an ever closer union among the peoples of Europe; whereas one of its tasks is to organize, in a manner demonstrating consistency and solidarity, relations between the peoples of the Member States; whereas its fundamental objectives include a strengthening of the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union;
93/109/EC recital 2 (adapted)
Whereas to that end Title II of the Treaty on European Union, amending the Treaty establishing the European Economic Community, with a view to establishing the European Community, introduces a citizenship of the Union for all nationals of the Member States and confers on such nationals on that basis a number of rights;
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(2) Article 20(2), point (b) and Article 22(2) of the of the Treaty on the functioning of the European Union (TFEU) confers on Union citizens residing in a Member State of which they are not nationals the right to vote and to stand as a candidate in elections to the European Parliament in their Member State of residence under the same conditions as nationals of the host Member State. The right, which is also affirmed in Article 39 of the Charter of Fundamental Rights of the European Union (Charter) gives specific expression to the principle of equality and non-discrimination on grounds of nationality set out in Article 21. It is also a corollary of the right to move and reside freely enshrined in Article 20(2) point (a) and Article 21 TFEU and Article 45 of the Charter.
(3) The detailed arrangements governing the exercise of the right to vote and to stand as a candidate in elections to the European Parliament are set out in Council Directive 93/109/EC.
(4) In its the EU Citizenship Report 2020 24 , the Commission stressed the need to update, clarify and strengthen the rules on the exercise of the right to vote and to stand as a candidate in elections to the European Parliament in order to ensure that they support the broad and inclusive participation of mobile EU citizens. Taking also into account the experience gained in the application of Council Directive 93/109/EC to successive elections and the changes introduced by the amendments to the Treaties, several of the provisions of that Directive should be updated.
93/109/EC recital 3 (adapted)
Whereas the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence, laid down in Article 8b (2) of the Treaty establishing the European Community, is an instance of the application of the principle of non-discrimination between nationals and non-nationals and a corollary of the right to move and reside freely enshrined in Article 8a of that Treaty;
93/109/EC recital 4 (adapted)
(5) Article 8b 20 (2) of the EC Treaty TFEU is concerned only with the possibility of exercising the right of vote and to stand as a candidate in elections to the European Parliament, without prejudice to Article 138 (3) of the EC Treaty 223(1) TFEU , which provides for the establishment of a uniform procedure in all Member States in accordance with principles common to all Member States for those elections; whereas it essentially seeks to abolish the nationality requirement which currently has to be satisfied in most Member States in order to exercise those rights.
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(6) In order to ensure that Union citizens who reside in a Member State of which they are not nationals (“non-national Union citizens”) are able to exercise their right to vote and to stand as candidates in elections to the European Parliament under the same conditions as nationals of their host Member State, the conditions governing registration and participation in such elections should be clarified in order to ensure equal treatment between national and non-national Union citizens. In particular, Union citizens seeking to vote and to stand as candidates in elections to the European Parliament in their Member State of residence should be treated equally as regards any periods of residence that are to be fulfilled as a condition for the exercise of the right, as well the proofs for demonstrating compliance with such a condition.
93/109/EC recital 5 (adapted)
Whereas application of Article 8b (2) of the EC Treaty does not presuppose harmonization of Member States' electoral systems; whereas, moreover, to take account of the principle of proportionality set out in the third paragraph of Article 3b of the EC Treaty, the content of Community legislation in this sphere must not go beyond what is necessary to achieve the objective of Article 8b (2) of the EC Treaty;
93/109/EC recital 6 (adapted)
Whereas the purpose of Article 8b (2) of the EC Treaty is to ensure that all citizens of the Union, whether or not they are nationals of the Member State in which they reside, can exercise in that State their right to vote and to stand as a candidate in elections to the European Parliament under the same conditions; whereas the conditions applying to non-nationals, including those relating to period and proof of residence, should therefore be identical to those, if any, applying to nationals of the Member State concerned;
93/109/EC recital 7 (adapted)
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(7) Whereas Article 8b (2) of the EC Treaty provides for the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence, without, nevertheless, substituting it for the right to vote and to stand as a candidate in the Member State of which the citizen is a national; whereas Tthe freedom of Union citizens of the Union to choose the Member State in which to take part in European elections to the European Parliament must be respected, while taking care to ensure that this freedom is not abused by people voting the appropriate measures to ensure that no one may vote more than once or standing stand as a candidate in more than one country.
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(8) In line with International and European standards, including, the requirements of International Covenant on Civil and Political Rights and the law of the European Convention on Human Rights, Member States should not only recognize and respect the right of Union citizens to vote and to stand as a candidate but also ensure easy access to their electoral rights by removing as many obstacles to participation in elections as possible.
(9) In order to facilitate the exercise by Union citizens of their right to vote and to stand as a candidate in their country of residence, such citizens should be entered on the electoral roll in sufficient time in advance of polling day. The formalities applicable to their registration should be as simple as possible. It should be sufficient for the Union citizens concerned to produce a valid identity card and a formal declaration that includes elements evidencing their entitlement to participate in the elections. Once registered, non-national Union citizens should remain on the electoral roll under the same conditions as Union citizens who are nationals of the Member State concerned, for as long as they satisfy the conditions for exercising the right to vote. Additionally, Union citizens should provide the competent authorities with contact information, enabling those authorities to keep them informed on a regular basis.
(10) While Member States are competent to determine the right to vote or to stand as a candidate in elections to the European Parliament as regards nationals who reside outside their territory, the fact that non-national Union citizens have been entered on the electoral roll of their Member State of residence should not in itself constitute grounds for their removal from the electoral roll of their home Member State for other types of elections.
(11) In order to ensure equal treatment of non-national Union citizens seeking to exercise the right to stand as candidates for election in their Member State of residence, such citizens should be required to produce the same supporting documents as those required from candidates who are nationals of the Member State concerned. However, in order to establish that such citizens are beneficiaries of the right laid down in Article 20(2)(b) and Article 22(2) TFEU, Member States should be able to require the production of a formal declaration that includes elements necessary to evidence their entitlement to stand in the elections in question.
(12) In order to facilitate the accurate identification of voters and candidates registered both in their home Member State and in their Member State of residence, the list of data to be required from Union citizens, when submitting an application to enter the electoral rolls or to stand as candidates in the Member State of residence, should include the personal identification number or the serial number of a valid identity or travel document.
(13) Union citizens who have been deprived of their right to vote and to stand as candidates, on the basis of an individual civil law or criminal law decision taken by the competent authority, should be precluded from exercising that right in the Member State of residence in elections to the European Parliament. When receiving an application for registration as a voter, Member States may require from the citizen concerned a formal declaration confirming that they have not been deprived of their right to vote. When standing as candidates in their country of residence, Union citizens should be required to produce a statement confirming that they have not been deprived of the right to stand in the elections to the European Parliament.
(14) It should be possible for the Member State of residence to check that Union citizens who have expressed a desire to exercise their right to stand as candidates have not been deprived of that right in their home country. Where a Member State receives a request to that effect from the Member State of residence, it should provide the necessary confirmation within a time-limit allowing for the admissibility of the candidacy to be effectively assessed. The personal data being exchanged may only be processed for that purpose. Given the fundamental importance of electoral rights, failure by the home Member State to provide timely information on the status of a Union citizen should not result in the deprivation of the right to stand as a candidate in the Member State of residence. In cases where the relevant information is provided at a later stage, the Member State of residence should ensure, by appropriate measures and in accordance with the procedures provided for by its national law, that Union citizens deprived of the right to stand in their home Member State who were registered as candidates or have already been elected, are prevented from being elected or from exercising their mandate.
(15) Given that the admissibility procedure in a Member State necessarily entails additional administrative steps for a national of another Member State than for the nationals of that Member State, it should be possible for Member States to set a different deadline for the submission of applications to stand as a candidate by Union citizens who are not nationals than that set for national citizens. Any difference in the deadline should be limited to that which is necessary and proportionate in order to allow for the notification of the information from the home Member State to be taken into account in good time. Establishing such a separate deadline should not affect the deadlines for obligations for other Member States to make notifications pursuant to this Directive.
(16) In order to prevent multiple voting or instances where the same person would stand as a candidate more than once at the same elections, Member States should exchange information gathered from the formal declarations produced by Union voters and Union citizens entitled to stand as candidates. As Member States rely on different data to identify citizens, a common set of data should be envisaged in order to accurately identify Union voters and Union citizens entitled to stand as candidates and stop them from voting or standing as a candidate more than once. The personal data exchanged should be limited to the minimum necessary to achieve these purposes.
(17) The information exchange between Member States to prevent multiple voting or instances where the same person would stand as a candidate more than once at the same election should not prevent their nationals from voting or standing as candidates in other types of elections. To facilitate communication between national authorities, Member States should be required to designate one contact point for that information exchange. A secure tool was developed in the past by the Commission to be used by the Member States under their responsibility to exchange the necessary data. That secure tool should be incorporated in this Directive, to further support exchanges between Member States’ competent authorities. Member States will act as separate controllers for their processing of personal data in this regard.
(18) For defining responsibilities and obligations for the operation of the secure tool, in accordance with Chapter IV of Regulation (EU) 2016/679 of the European Parliament and of the Council 25 , implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council. 26
(19) The accessibility of information on electoral rights and procedures is a key component in ensuring the effective exercise of the right enshrined in Article 20(2), point (b) and Article 22(2) TFEU.
(20) The lack of adequate information, in the context of electoral procedures, affects citizens in the exercise of their electoral rights as part of their rights as Union citizens. It also affects the capacity of competent authorities to exercise their rights and to deliver on their obligations. Member States should be required to designate authorities with special responsibilities for providing appropriate information to Union citizens on their rights under Article 20(2), point (b), and Article 22(2) TFEU and the national rules and procedures regarding participation in and the organization of elections to the European Parliament. In order to ensure the effectiveness of communications, information should be provided in clear and comprehensible terms.
(21) In order to improve the accessibility of electoral information, such information should be made available in at least one other official language of the Union than that or those of the host Member State, broadly understood by the largest possible number of Union citizens residing on its territory. Member States may use different official languages of the Union in specific parts of their territory or their regions depending on the language understood by the largest group of Union citizens residing therein.
93/109/EC recital 8 (adapted)
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(22) Any derogation from the general rules of this Directive must has to be warranted, pursuant to Article 8b 22 (2) of the EC Treaty TFEU , by problems specific to a Member State and has to be in line with the requirements of Article 52 of the Charter, including that any limitations to the exercise of the right to vote and to stand as a candidate at elections to the European Parliament is to be provided for by law and be subject to the principles of proportionality and necessity . In addition, any derogation must, has to by its very nature, be subject to review as provided by Article 47 of the Charter .
93/109/EC recital 9 (adapted)
(23) Such specific problems may arise in a Member State in which the proportion of Union citizens of the Union of voting age, who reside in it but are not nationals of it, is very significantly above average. Derogations are regarding the right to vote should be warranted where such citizens form more than 20 % of the total electorate; whereas such derogations must be based on the criterion of period of residence;
93/109/EC recital 10
Whereas citizenship of the Union is intended to enable citizens of the Union to integrate better in their host country and that in this context, it is in accordance with the intentions of the authors of the Treaty to avoid any polarization between lists of national and non-national candidates;
93/109/EC recital 11 (adapted)
(24) Whereas this risk of polarization concerns in particular a Member State Member States in which the proportion of non-national citizens of the Union of voting age exceeds 20 % of the total number of Union citizens of the Union of voting age who reside there and that, therefore, it is important that this Member State may should have the possibility to lay down, in compliance with Article 8b of the Treaty 22(2) TFEU , specific provisions concerning the composition of lists of candidates.
93/109/EC recital 12
(25) Account must be taken of the fact that in certain Member States residents who are nationals of other Member States have the right to vote in elections to the national parliament and certain provisions of this Directive may consequently be dispensed with in those Member States.
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(26) Data regarding the exercise of rights and the application of this Directive can be useful in the identification of measures necessary to ensure the effective exercise of Union citizens’ electoral rights. In order to improve the collection of data for elections to the European Parliament, it is necessary to introduce regular monitoring and reporting of implementation by Member States. In parallel, the Commission should assess the application of this Directive, and submit a report including such an assessment to the European Parliament and to the Council, after each election to the European Parliament.
(27) It is necessary that the Commission conduct its own evaluation of the application of this Directive within a reasonable timeframe after at least two elections to the European Parliament.
(28) In order to ensure that the templates of the formal declarations to be submitted by non-national Union citizens seeking to vote or stand in elections to the European Parliament continue to contain relevant data in the context of the exercise of electoral rights by Union citizens, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission to amend those templates. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 2016. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
(29) The Member States, by ratifying, and the Union, by concluding 27 , the United Nations Convention on the Rights of Persons with Disabilities have committed themselves to ensure compliance with that Convention. In order to support inclusive and equal electoral participation for persons with disabilities, arrangements for Union citizens residing in a Member State of which they are not nationals to exercise the right to vote and to stand as a candidate there in elections to the European Parliament should have due regard to the needs of citizens with a disability and older citizens.
(30) Regulation (EU) 2016/679 of the European Parliament and of the Council and Regulation (EU) 2018/1725 of the European Parliament and of the Council 28 applies to personal data processed when implementing this Directive.
(31) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on XX XX 2022
(32) This Directive respects fundamental rights and the principles recognised in particular by the Charter, in particular Article 21 and 39 thereof. Accordingly, it is essential that this Directive shall be implemented in accordance with those rights and principles by ensuring full respect for, inter alia, the right to protection of personal data, the right to non-discrimination, the right to vote and to stand as a candidate at elections to the European Parliament, the freedom of movement and of residence and the right to an effective remedy.
(33) The obligation to transpose this Directive into national law should be confined to those provisions, that represent a substantive amendment as compared to the earlier Directives. The obligation to transpose the provisions that are unchanged arises under the earlier Directives.
(34) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for the transposition into national law of the Directives set out in Annex IV, Part B,
93/109/EC recital 8 (adapted)