Steve Peers
The European Commission recently issued a communication and recommendation addressing the loss of voting rights for EU citizens who relocate to other Member States. The Commission acknowledges that national identity grants Member States the right to determine voter eligibility. However, they urge Member States to consider if their policies on disenfranchisement hinder political participation. The Commission argues that many citizens maintain an interest in their home country’s politics, staying informed about political developments is easier than ever, and there’s a growing trend towards allowing expatriates to vote.
Five Member States revoke voting rights from citizens who move abroad. Denmark, Ireland, Malta, and Cyprus impose this after citizens are absent for a period between six months and two years, while the UK does so after fifteen years. The European Court of Human Rights recently upheld the UK’s restrictions, deeming them compatible with the right to free elections as defined in the First Protocol to the ECHR (Shindler v UK, 2013). Furthermore, those residing in another Member State generally don’t gain voting rights in general elections there (except in the UK, for Irish and Commonwealth citizens). Their voting rights are limited to local and European Parliament elections (as per EU law).
The Commission views this disenfranchisement as contradictory to the principle of EU citizenship, which aims to enhance, not diminish, national citizenship rights. They argue it could complicate the exercise of free movement rights and result in a gap in political participation. The Commission highlights that while all eligible EU residents can vote for the European Parliament, those who relocate and are disenfranchised lose their say in the composition of the Council and the European Council.
Two potential solutions are dismissed: granting host State citizenship, which clashes with the transnational and complex nature of EU citizenship, and mutual recognition of voting rights.
Consequently, the Commission proposes short-term solutions within the EU framework. They suggest that Member States should, at a minimum, permit citizens residing in other Member States to retain their voting rights, especially if they express a desire to do so. In the long term, they encourage exploring enfranchisement in the host country, including for regional elections.
These principles and suggestions, excluding the long-term proposals, are outlined in the preamble and main text of the Commission Recommendation.
Comments
The Commission implies that Member State disenfranchisement policies might breach EU free movement and citizenship law. While the Court of Justice of the EU’s jurisprudence in this domain can be unpredictable (exemplified by the unexpected Rottmann and Ruiz Zambrano rulings), this interpretation initially seems inaccurate. The Treaties outline EU citizen rights, encompassing the right to vote and stand for election in another Member State’s local elections and European Parliament elections. Article 25 TFEU allows for new rights for EU citizens but requires a unanimous Council vote and national ratification. This suggests that additional political rights for EU citizens depend on the Council adopting such measures.
Would adopting such a measure be beneficial? While political citizenship is undeniably a core aspect of traditional citizenship, and the EU context implies that voting rights shouldn’t be forfeited due to exercising free movement rights, especially concerning the Council’s composition as co-legislator, it doesn’t necessarily follow that these rights should be retained in the country of origin. Transferring them to the country of residence seems more logical, considering citizens already have voting rights there for the European Parliament and local elections. Additionally, EU citizenship for those moving between Member States primarily focuses on equal treatment and integration in the host State, not maintaining ties with their home State. EU citizens who have relocated can return to their home State without prejudice, but this differs from claiming they should be treated as if they never left while still abroad. While the Commission rightly notes that expatriates retain an interest in their home country’s tax decisions, they likely pay most, if not all, of their taxes in their host State.
Nevertheless, Member States generally prefer retaining voting rights for their citizens abroad over extending them to resident foreigners. The Commission’s suggestion aligns with this tendency, making it more likely to succeed than the more logical alternative.
Curiously, the Commission only briefly addresses regional elections and omits referendums entirely. Allowing expatriates to vote in regional elections, which are inherently more territorial, seems even less logical. Regarding referendums (including regional and local ones), both expatriates and citizens of other EU Member States who have exercised free movement rights have a clear stake in national referendums on EU Treaty amendments and, potentially soon in the UK, on continued EU membership. British expatriates in other EU Member States, along with citizens of other Member States residing in the UK, might be more likely to vote for continued EU membership. Their votes could even be decisive, though there will always be those who vote against their own interests.
Barnard & Peers: chapter 13