Steve Peers

Recently, Geert Wilders, the leader of the Dutch PVV party and a newly elected Member of the European Parliament (MEP), declared his intent to pursue legal action to maintain his position as both an MEP and a member of the Dutch national parliament. This begs the question: does such a right exist?

The crux of the matter lies in Article 39 of the EU Charter of Fundamental Rights, which states that every EU citizen possesses the right to vote in and stand as a candidate for European Parliament elections. If this right were absolute, Wilders would undoubtedly succeed in his case, assuming that the right to stand as a candidate implicitly includes the right to serve as an MEP if elected.

However, most rights outlined in the Charter are not without limitations. Article 52 of the Charter outlines the parameters for these limitations, specifically stating in Article 52(2) that rights stemming from EU Treaties are to be exercised within the boundaries of said Treaties. Furthermore, Article 52(1) dictates that any limitations on Charter rights must be legally established, refrain from undermining the core of the right, serve a public interest, and be both necessary and proportionate in achieving that objective.

The Court of Justice of the European Union (CJEU) has yet to provide a definitive interpretation of the relationship between Article 52(1) and 52(2). One perspective posits that Article 52(2) holds a special status, implying that limitations on rights derived from EU Treaties, as stipulated in EU legislation, are inherently valid. This interpretation would immediately settle the Wilders case.

However, in the absence of a clear CJEU ruling, it can be argued that these limitations must also adhere to the general guidelines outlined in Article 52(1) for Charter right limitations. Therefore, this possibility warrants further exploration.

The prohibition of the “dual mandate” (holding both MEP and national MP positions concurrently) stems from a 2002 Council Decision that amended a 1976 Decision concerning European Parliament elections. Article 7(2) of this Decision establishes a rule prohibiting the simultaneous holding of MEP and national parliament memberships, effective from the 2004 EP elections. While a temporary rule was in place for the UK (which has since expired) and a special provision exists for Irish MEPs allowing them to retain both positions until the next Irish election following their EP election, these are exceptions to the general rule.

The explanations accompanying the Charter, frequently referenced by the CJEU in its interpretations, suggest that Article 52(2) implies that rights derived from EU citizenship, such as the right outlined in Article 39, are subject to the limitations and conditions stipulated in the relevant Union law. This effectively renders Wilders’s argument null and void.

However, if such conditions must also satisfy the criteria set forth in Article 52(1), the analysis becomes more nuanced. Firstly, the limitation on the dual mandate is undeniably “prescribed by law.” Secondly, it does not nullify the right to stand for EP elections, as it doesn’t mandate relinquishing a national seat beforehand. Neither does it invalidate the implied right to serve as an MEP after being elected, as individuals can always choose to do so by resigning from their national MP position.

Furthermore, it serves a valid public interest. Both national parliamentarian and MEP roles are demanding full-time positions that cannot be effectively performed simultaneously. This consideration strongly supports the notion that the limitation is both necessary and proportionate.

However, an issue of equality arises (as per Article 20 of the Charter) concerning the special provision for Irish MEPs, which permits them to hold a dual mandate, potentially for an extended period. Naturally, the principle of equality could also be upheld by deeming the Irish exception invalid. In such a scenario, Wilders would only be permitted to retain both positions until the subsequent Dutch election, rather than indefinitely.

Admittedly, the Council Decision does not explicitly prohibit holding other full-time positions alongside the MEP role, except for those of national parliamentarian, EU official, or member of a national government (Article 7(1)). Yet again, the principle of equality could be applied here to extend the ban to these other full-time positions.

Regarding other legal sources, any purported right to hold a dual mandate enshrined in the Dutch constitution is rendered irrelevant due to the supremacy of EU law. The CJEU established in the Melloni judgment that Article 53 of the Charter, despite referring to national constitutional rights, does not grant them precedence over EU law when EU law has fully harmonized a particular matter. As for the ECHR (referenced in Article 52(3) of the Charter), it has not issued a ruling on the dual mandate issue concerning national parliaments and the European Parliament.

Finally, it is crucial to emphasize that the aforementioned conclusions would apply to any politician, irrespective of personal political alignments.