Considerations on COM(2021)733 - Arrangements for the exercise of the right to vote and stand as a candidate in municipal elections by citizens residing in a country of which they are not nationals (recast) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)733 - Arrangements for the exercise of the right to vote and stand as a candidate in municipal elections by citizens residing in a ... |
|---|---|
| document | COM(2021)733  |
| date | November 25, 2021 |
(1) A number of amendments are to be made to Council Directive 94/80/EC 21 . In the interests of clarity, that Directive should be recast.
(2) Article 20(2) point (b) and Article 22(1) 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 a national the right to vote and to stand as a candidate in municipal elections 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 40 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), 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 municipal elections are set out in Council Directive 94/80/EC.
(4) In the EU Citizenship Report 2020 22 , 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 municipal elections in order to ensure that they support the broad and inclusive participation of mobile Union citizens. Taking also into account the experience gained in its application to successive elections, and in order to take account of changes introduced by the amendments to the Treaties, several of the provisions of that Directive should be updated.
(5) The electoral procedure related to municipal elections falls within the competences of the Member States that organise them reflecting their specific traditions and in accordance with international and European standards. In line with International Covenant on Civil and Political Rights as well as the law of the European Convention on Human Rights, Member States should not only recognise 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 their participation in elections as possible.
(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 municipal elections 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 municipal elections 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 as the proofs for demonstrating compliance with such a condition.
(7) In addition, non-national Union citizens should not be required to fulfil any special conditions in order to exercise the right to vote or stand in municipal elections unless, exceptionally, a different treatment of nationals and non-nationals is justified by circumstances specific to the latter distinguishing them from the former.
94/80/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 the Union's 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;
94/80/EC recital 2 (adapted)
Whereas to that end Title II of the Treaty on European Union 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;
94/80/EC recital 3 (adapted)
Whereas the right to vote and to stand as a candidate in municipal elections in the Member State of residence, embodied in Article 8b (1) of the Treaty establishing the European Community, is an instance of the application of the principle of equality and 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;
94/80/EC recital 4 (adapted)
Whereas application of Article 8b (1) does not presuppose complete harmonization of Member States' electoral systems; whereas the aim of that provision is essentially to abolish the nationality requirement to which most Member States currently make the exercise of the right to vote and to stand as a candidate subject; whereas, moreover, to take account of the principle of proportionality set out in the third paragraph of Article 3b of the Treaty, the content of Community legislation in this sphere must not go beyond what is necessary to achieve the objective of Article 8b (1) of the Treaty;
94/80/EC recital 5 (adapted)
Whereas the purpose of Article 8b (1) 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 candidates in municipal elections 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; whereas non-nationals must not be required to fulfil any special conditions unless, exceptionally, different treatment of nationals and non-nationals is justified by circumstances specific to the latter distinguishing them from the former;
94/80/EC recital 6 (adapted)
Whereas Article 8b (1) of the Treaty recognizes the right to vote and to stand as a candidate in municipal elections in the Member State of residence, without actually substituting it for the right to vote and to stand as a candidate in the Member State of which the Union citizen is a national; whereas the freedom of Union citizens to choose whether or not to take part in municipal elections in the Member State in which they reside must be respected; whereas it is appropriate that those citizens may express their wish to exercise their right to vote there; whereas provision may be made for those citizens to be registered automatically on the electoral roll in those Member States where voting is not compulsory;
94/80/EC recital 7 (adapted)
Whereas the way in which local government operates in the different Member States is a reflection of different political and legal traditions and is characterized by an abundance of structures; whereas the term ‘municipal election’ does not mean the same thing in every Member State; whereas the object of this Directive must therefore be clarified by defining the term; whereas municipal elections are elections by direct universal suffrage at the level of basic local government units and their subdivisions; whereas the term covers elections by direct universal suffrage both to representative councils of municipalities and of members of a municipal executive;
new
(8) 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 include 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.
(9) While Member States are competent to determine the right to vote or to stand as a candidate in municipal elections 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.
94/80/EC recital 8 (adapted)
new
(10) Disqualification from the right to stand as a candidate may be ordered by an individual decision of the authorities either of the Member State of residence or of the home Member State. In view of the political significance of the holding of elected municipal office, Member States should be entitled to obtain information from the home Member State related to the deprivation of the right to stand as a candidate in the candidate’s home Member State. take the steps necessary to ensure that a person who has been deprived of his right to stand as a candidate in his home Member State is not enabled to recover that right merely by virtue of his residence in another Member State; whereas this problem, which is specific to non-national candidates, is important enough to justify a provision under which those Member States which consider it necessary are allowed to make such candidates subject not only to the rules on disqualification of the Member State of residence but also to those of the home Member State; whereas, in view of the principle of proportionality, it will be sufficient if the right to vote is made subject only to the rules on disqualification from voting of the Member State of residence;
94/80/EC recital 9 (adapted)
(11) Since the duties of the leadership of basic local government units may involve taking part in the exercise of official authority and in the safeguarding of the general interest, Member States should be able to reserve these those offices for their nationals in full respect of the principle of proportionality . Member States should also be able to take appropriate measures for that purpose; such measures may not restrict more than is necessary for the achievement of that objective the possibility for other Member States' nationals to be elected.
94/80/EC recital 10
(12) It should likewise be possible for participation by elected municipal officers in the election of a parliamentary assembly to be reserved for own nationals.
94/80/EC recital 11
(13) Where Member States' laws provide that the holding of elected municipal office is incompatible with holding other offices, Member States should be able to extend their scope to include equivalent offices held in other Member States.
94/80/EC recital 6 (adapted)
(14) Article 8b (1) of the Treaty recognizes Tthe right conferred on non-national Union citizens to vote and to stand as a candidate in municipal elections in the Member State of residence, without actually substituting it is not a substitute for the right to vote and to stand as a candidate in the Member State of which the Union citizen is a national. It is therefore necessary to ensure that tThe freedom of Union citizens to choose whether or not to take part in municipal elections in the Member State in which they reside must be is respected. It is appropriate and that those citizens may are able to express their wish to exercise their right to vote in their Member State of residence there. Provision may therefore be made for those citizens to be registered automatically on the electoral roll in those by Member States where voting is not compulsory to automatically register those citizens on the electoral roll .
new
(15) 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(1) TFEU.
(16) 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(1) TFEU and the national rules and procedures regarding participation in and the organization of municipal elections. In order to ensure the effectiveness of communications, information should be provided in clear and comprehensible terms.
(17) 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.
94/80/EC recital 12 (adapted)
new
(18) Any derogation from the general rules of this Directive has to must be warranted, pursuant to Article 8b 22 (1) of the 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 the requirement that any limitations to the exercise of the right to vote and to stand as a candidate in municipal elections shall be provided by law and shall be subject to the principles of proportionality and necessity . Additionally, any derogation has must, by its very nature, to be subject to review as provided by Article 47 of the Charter .
94/80/EC recital 13 (adapted)
(19) 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. whereas derogations are warranted Wwhere such citizens form more than 20% of the total electorate, derogations are warranted . Such derogations are to must be based on the criterion of period of residence.
94/80/EC recital 14
Whereas citizenship of the Union is intended to enable citizens of the Union to integrate better in their host country; whereas 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;
94/80/EC recital 15 (adapted)
(20) Whereas this risk of polarization concerns in particular a Member State Member States in which the proportion of non-national Union 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; whereas it is important, therefore, that this Member State should be able to lay down, in compliance with Article 8b of the Treaty 22(1) TFEU , specific provisions concerning the composition of lists of candidates.
94/80/EC recital 16 (adapted)
(21) Account has to 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 consequently the formalities provided for in this Directive can consequently be eased.
94/80/EC recital 17
(22) The Kingdom of Belgium is characterized by specific features and balances linked to the fact that Articles 1 to 4 of its Constitution provide for three official languages and a territorial division into regions and communities, as a result of which full application of this Directive in certain communes might have effects such as to necessitate providing for the possibility of a derogation from the provisions of this Directive in order to take account of those specific features and balances;
94/80/EC recital 18 (adapted)
new
(23) 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 municipal elections, it is necessary to introduce regular monitoring and reporting of implementation by Member States, which should include, besides statistical data, information on the measures taken to support participation in elections of non-national Union citizens. The Commission will should assess the application of the Directive in law and in fact, including any changes in the electorate which that have taken place since its entry into force; whereas the Commission will and submit a report in this connection to the European Parliament and to the Council.
new
(24) It is necessary that the Commission conduct its own evaluation of the application of this Directive within a reasonable timeframe from its entry into force, in close connection to the evaluation of the application of the Council Directive 93/109/EC 23 of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for Union citizens residing in a Member State of which they are not nationals.
(25) In order to ensure that the list of basic government units in Member States remains up to date and that the formal declarations to be submitted by non-national Union citizens seeking to vote or stand in municipal elections 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 the list of basic government units and the template for the formal declarations. 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 of 13 April 2016 on Better Law-Making 24 . 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.
(26) The Member States, by ratifying, and the Union, by concluding 25 , have committed themselves to ensure compliance with the United Nations Convention on the Rights of Persons with Disabilities including on Article 29 on Participation in political and public life. 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 municipal elections should have due regard to the needs of citizens with a disability and older citizens.
(27) Regulation (EU) 2016/679 of the European Parliament and of the Council 26 and Regulation (EU) 2018/1725 of the European Parliament and of the Council 27 applies to personal data processed when implementing this Directive.
(28) This Directive respects fundamental rights and the principles recognised in particular by the Charter, in particular Article 21 and 40 thereof. Accordingly, it is essential that this Directive 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 municipal elections, the freedom of movement and of residence and the right to an effective remedy.
(29) 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.
(30) 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,
94/80/EC (adapted)