Jo Shaw, Salvesen Chair of European Institutions

Article 39(2) of the Charter of Fundamental Rights states:

‘European Parliament members shall be chosen through direct, universal suffrage in a free and secret ballot.’

The Grand Chamber of the Court of Justice, in a concise and understated judgment in Delvigne (Case C-650/13; ECLI:EU:C:2015:648) delivered on October 6, 2015, provided further definition to this provision. It found that national policies determining voter eligibility in European Parliament elections fall under EU law’s purview, as they implement EU law according to Article 51(1) of the Charter of Fundamental Rights. Therefore, Article 39(2) and other Charter Rights apply in such instances. This judgment aligns with Advocate General Villalon’s Opinion (ECLI:EU:C:2015:363) recommendations, though with more succinct reasoning and no mention of the ECHR or Strasbourg case law.

The CJEU examined French regulations that stripped the applicant of civic rights, including voting and standing for election. This penalty was a legal consequence of the applicant’s serious crime conviction and imprisonment. However, the Court determined that measures permanently revoking voting rights for individuals convicted of serious crimes did not violate Article 39(2) CFR. The Court refrained from referencing the European Convention on Human Rights and Fundamental Freedoms or relevant European Court of Human Rights case law on prisoner voting. However, it emphasized the need for proportionate restrictions on voting rights, ensuring they serve a legitimate general interest and consider the offense’s nature, severity, and punishment duration. Additionally, the Court found no breach of Article 49 CFR concerning the non-retroactivity of criminal penalties. This aspect of the case won’t be further explored in this analysis.

Before Delvigne, the Court of Justice had only significantly addressed European Parliament voting rights in 2006. In Spain v UK (Gibraltar), the Court dismissed Spain’s argument that EU law dictates the voting franchise for European Parliament elections. This invalidated Spain’s challenge against the UK incorporating Commonwealth citizens in Gibraltar’s electorate when extending European Parliament elections to that territory, following the Court of Human Rights’ judgment in Matthews. The same point, that Articles 1(3) and 8 of the 1976 Act on Direct Elections don’t definitively outline voter eligibility in EP elections, was reiterated in Eman and Sevinger (Aruba), decided concurrently. Furthermore, the Court in Eman and Sevinger explicitly stated that citizenship provisions in the then-Part Two of the EC Treaty don’t grant an “unconditional right to vote and stand as a candidate in European Parliament elections” to EU citizens (para. 52). They highlighted that Part Two’s citizenship provisions aimed to ensure voting access for EU citizens residing outside their home state. The Court added that using residency as a voter eligibility criterion was permissible for Member States, citing ECHR case law. However, the Court identified an equal treatment concern in this case due to differing Netherlands law approaches for two groups of non-resident Netherlands nationals. While those residing in Aruba couldn’t vote, those in third countries could. This unequal treatment (under the general equal treatment principle) required justification.

Delvigne builds upon the foundation laid by Eman and Sevinger in its application of the proportionality principle to analyze national prisoner voting rules. The applicant received a 12-year prison sentence in 1988 for a serious crime. Under then-applicable law, this sentence also meant losing his civic rights. Later, new Criminal Code provisions removed the automatic loss of civic rights and mandated that any total or partial deprivation must be court-ordered and not exceed ten years for serious offenses. However, these changes didn’t apply to Delvigne because his conviction became final before the new law. He contested the decision to remove his name from the electoral roll in his residential district, preventing his participation in the 2014 European Parliament elections, claiming it violated EU law. Seeking guidance, the French court referred several questions to the Court of Justice.

The French government (supported by interveners Spain and the UK) challenged the Court’s jurisdiction, claiming no EU law connection as determining voter eligibility in European Parliament elections falls under Member States’ purview. The Court noted that EU law applies under Article 51 CFR only when Member States implement EU law. Citing Gibraltar and Eman and Sevinger, the Court acknowledged (para. 31) that the Act on Direct Elections doesn’t explicitly define EP election voter eligibility. However, in exercising this competence, Member States are bound “by the obligation set out in Article 1(3) of the 1976 Act, read in conjunction with Article 14(3) TEU, to ensure that the election of Members of the European Parliament is by direct universal suffrage and free and secret,” a point supported by the European Commission, the European Parliament, and the German Government. This establishes the connection to EU law.

The phrase “direct universal suffrage” has been in EU primary law for over 50 years, present in the original Treaty of Rome, albeit as an aspiration for the European Parliament. For almost 40 years (since the 1976 Act on Direct Elections), this aspiration has been realized through a process ensuring European Parliament members are elected by Member State citizens. Since the ECtHR’s Matthews case, it’s been evident that the EP is a legislature for these citizens, making elections subject to the overarching norm of universal suffrage outlined in Article 3 of Protocol 1 ECHR. This is reinforced by Article 14(3) TEU, mirroring Article 39(2) CFR. Why has it taken so long to establish that Member States’ franchise rules for European Parliament elections are, in principle, subject to universal suffrage norms within EU law (as opposed to solely through the ECHR, as per Matthews)? The Charter of Rights’ emergence might be a factor. Yet, the texts are identical. As the Court noted (para. 44):

“As regards Article 39(2) of the Charter, it is apparent from the considerations in paragraph 41 of the present judgment that this constitutes the expression in the Charter of the right of Union citizens to vote in elections to the European Parliament in accordance with Article 14(3) TEU and Article 1(3) of the 1976 Act.”

Therefore, Article 39(2) seems to add no new substantive weight to the principles of universal suffrage compared to the pre-Charter era. However, the Charter’s explanations clarify that Article 39(2) adopts the fundamental principles of electoral systems in democratic states. This likely references ECHR case law on Article 3 of Protocol 1. Perhaps Article 51 CFR’s clear articulation of EU law’s scope, encompassing situations where Member States implement EU law, encourages the CJEU to explicitly state that franchise restrictions are subject to EU law principles, unlike the ambiguity in Eman and Sevinger. The outcome is the same, but the path taken is more straightforward. In this sense, the Charter helps the Court of Justice scrutinize French prisoner voting regulations.

The CJEU’s resolution of the case’s substantive matters is brief. As any prisoner voting ban restricts a fundamental right protected by the Charter (voting in EP elections), it requires evaluation as a limitation under Article 52(1) CFR. The CJEU outlines the conditions for permissible rights limitations: they must be legally provided for, respect the essence of those rights and freedoms, and, following the proportionality principle, be necessary and genuinely serve general interest objectives recognized by the European Union or the need to protect others’ rights and freedoms (para. 46).

The ban is clearly established under French law (in fact, in a later section not discussed here, the Court found that the French legislature’s approach to upholding the ban for those sentenced before the new law’s enactment didn’t violate Article 49 CFR). Secondly, excluding specific individuals under certain conditions due to their conduct doesn’t compromise the right’s essence (para. 48). Lastly, significantly for those observing this case from the UK with its contentious prisoner voting debate, the Court stated that “a limitation such as that at issue in the main proceedings is proportionate in so far as it takes into account the nature and gravity of the criminal offence committed and the duration of the penalty” (para. 49). That was essentially all the Court offered on the subject. It chose to decide the proportionality issue directly rather than referring it back to the national court. The Court noted France’s observations that Delvigne’s deprivation of civic rights resulted from a 12-year sentence for a serious crime and that he could apply to have the sanction lifted.

As a Charter of Rights case, Delvigne doesn’t introduce novel concepts but offers helpful clarifications, particularly when considering the Advocate General’s Opinion. It logically follows from Eman and Sevinger and Article 39(2) CFR that the Court would find domestic restrictions on the European Parliament elections franchise to fall under EU law and thus subject to a proportionality test. The case’s significance lies in explicitly making this point, whereas the challenge after Eman and Sevinger was discerning the EU law connection that allowed the Court to review the Dutch state’s policies on external voting in EP elections and deem them arbitrary (by applying the general Aristotelian principle of equal treatment). Ideally, the Court in Eman and Sevinger should have followed the Advocate General (see paras. 69-71 of the Opinion) and acknowledged a freestanding (though not absolute) “right to vote” in EP elections for EU citizens. The issue partly stemmed from conflating this right to vote (as an expression of universal suffrage in a democratic context) with the right for non-national EU citizens in their residing Member State (reflecting EU law’s emphasis on integrating migrant EU citizens into their host state to prevent rights loss due to mobility). The Court in Delvigne meticulously distinguished these, clarifying that Article 39(1) CFR, corresponding to Article 20(2)(b) TFEU, doesn’t apply in such a case. This, however, doesn’t clarify the specific combination of Articles 39(1) and 39(2), along with relevant TFEU provisions, that might apply to non-national EU citizen prisoners facing voting bans in EP elections in their host state, as seen in the UK case of Teshome v The Lord President of the Council ([2014] EWHC 1468).

The main concern with Delvigne is that the Court, unlike the Advocate General, doesn’t indicate whether it reviewed the European Court of Human Rights’ case law on Article 3 of Protocol 1. Consequently, it’s unclear how the Court feels the tests and standards based on Article 52 align with the approach towards contracting states’ discretion on prisoner voting in cases like Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663. The AG concluded that legislation like the one in Delvigne didn’t violate Article 39(2) CFR “provided always that it does not prescribe general, indefinite and automatic deprivation of the right to vote, without a sufficiently accessible possibility of review, the latter particularly being a matter which it is for the national court to establish.” This closely adheres to the ECHR framework.

A detailed discussion on the strained political process, interplay between domestic and Strasbourg case law, and the UK Parliament’s tentative steps through the Draft Voting Eligibility Bill to find middle ground between Strasbourg and the seemingly prevailing view within the UK political elite that granting prisoners voting rights is unacceptable, is beyond this analysis’ scope. The complexities of this narrative are thoroughly presented in a regularly updated House of Commons Standard Note, which provides a useful timeline. Prisoner voting in the UK has become a focal point for anxieties about an overly interventionist Court of Human Rights, vague concerns that the Human Rights Act excessively safeguards the rights of those considered “less deserving,” and ongoing sensitivities regarding the appropriate roles of courts, including domestic courts, and the legislature in such matters. Aiming to avoid conflict, domestic courts have emphasized their final say on prisoner voting regarding the ECHR and their unwillingness to formulate a scheme complying with the ECHR, even if Parliament remains inactive. Certain judges, like Lord Sumption in the Supreme Court case of Chester and McGeoch, have criticized Strasbourg’s approach.

For many observers, politicians, and legal professionals, prisoner voting embodies a prime opportunity to challenge Europe and demand a distinctly “British” interpretation of human rights. Sadly, a balanced policy debate on prisoner voting in the UK and the current system’s inconsistencies now seem impossible. However, the joint committee of both Houses of Parliament tasked with overseeing prisoner voting, while it remains in political limbo, has effectively conducted consultations and generated a balanced report suggesting practical compromises to align UK law with the apparent requirements of Hirst (No. 2) and Scoppola (No. 3). Despite this, no further action has been taken, and the UK Government continues to inform Strasbourg that it awaits specific judgments—including Delvigne itself—before proceeding. At least one prominent legal scholar has urged the Justice Minister, Michael Gove, who has displayed more liberal leanings than anticipated in his relatively new position, to leverage this case to spearhead legislation granting voting rights to at least some prisoners. The Draft Voting Eligibility Bill might be revisited, though no parliamentary time has been allocated. Meanwhile, prisoner voting opponents persist in introducing private members’ bills in Parliament to solidify the current stance. Those arguing that Strasbourg isn’t progressive enough can only watch and hope for a significant shift in the political landscape.

The UK’s reception of the judgment wasn’t overwhelmingly negative. Most newspaper coverage assumed it wouldn’t impact the UK’s stance, largely misinterpreting the CJEU’s acceptance of France’s specific ban as inherently proportionate and skimming over the judgment’s details, focusing on the formal section:

“Article 39(2) [CFR]…must be interpreted as not precluding legislation of a Member State…which excludes, by operation of law, from those entitled to vote in elections to the European Parliament persons who, like the applicant in the main proceedings, were convicted of a serious crime…”

Initially, this appears to endorse states’ rights more than it actually does. In reality, the judgment leaves UK courts with many unresolved issues as they handle the next wave of prisoner voting rights cases utilizing the new EU law avenue opened by Delvigne, assuming political inertia persists. Indeed, legal analysis has been more attuned to the implications. Notably, it directly challenges the Supreme Court’s conclusion in the 2013 Chester and McGeoch case that EU law arguments couldn’t support domestic cases seeking remedies for prisoner voting disenfranchisement in UK prisons. Lord Mance’s extensive analysis of EU law in this context, relying on a convoluted interpretation of Eman and Sevinger (suggesting that the EU law right granted to non-national EU citizens, rather than the inherent protection of universal suffrage in EP elections, triggered the jurisdictional link), led him to conclude that EU law didn’t apply. His reasoning is worth examining:

“The Court of Justice [in Eman and Sevinger] did not therefore endorse Advocate General Tizzano’s broad approach, or import the Strasbourg jurisprudence into the general provisions of Community and Union law referring to voting in European Parliamentary elections. There was good reason for this. Eligibility to vote is under the Treaties and the 1976 Act a matter for national Parliaments, one of considerable national interest. There is no sign that the European Commission has ever sought to involve itself in or take issue with voting eligibility in Member States or specifically with the restrictions on prisoner voting which apply in a number of such States. The Strasbourg jurisprudence operates as the relevant control, albeit one that has itself proved in some respects controversial. It would not only unnecessarily duplicate that control at the European Community or Union level, it could also lead to further conflict and uncertainty.”

The Court in Delvigne, once again, chose not to reference Strasbourg case law. However, the proportionality test applied within EU law might pose challenges for national courts, now forced to scrutinize their domestic prisoner voting regulations. Is aligning the ban with the sentence length (as opposed to a potentially longer ban subject to review, as in France) sufficient for proportionality, or does it inherently necessitate considering the crime’s gravity? Addressing these issues without referencing Strasbourg case law, where they’ve been most comprehensively examined, seems implausible. Lady Hale’s judgment in Chester and McGeoch demonstrates perhaps the strongest sympathy within the UK judiciary towards Strasbourg’s position that the UK’s blanket ban approach lacks the necessary nuance to meet the Article 3 of Protocol 1 standard articulated in Hirst (No. 2) and refined in Scoppola (No. 3). A custody threshold doesn’t clearly define the objective of disenfranchisement, which isn’t inherently wrong in itself. Additionally, fluctuating custody thresholds over time introduce arbitrariness into determining voter eligibility for specific elections based on the crime. The Supreme Court will inevitably revisit these issues, drawing guidance from Delvigne and applying it to the UK context. Considering the refusal to make a referral on scope in Chester and McGeoch, the Supreme Court likely won’t opt for a referral on proportionality. However, given the uncertainties remaining in Delvigne, a referral might provide a valuable opportunity for the Court of Justice to elaborate on its articulated proportionality test. That said, the CJEU might be as reluctant to receive such a referral as the Supreme Court would be to make one.

Furthermore, with the establishment of a freestanding right to vote in EU law, mirroring the principle of universal suffrage underpinning democratic European Parliament elections, other franchise restrictions might be challenged in UK courts and elsewhere. This includes limitations on external voting and those deemed incapable due to disabilities. The UK’s Brexit referendum franchise might even face challenges based on this argument.

Finally, after resolving these issues, the complex matter of remedies within the domestic legal order remains. The EU law route presents possibilities not available through the Human Rights Act and Strasbourg case law due to EU law supremacy and its relationship with national legal orders. Two options likely to be scrutinized are the disapplication of domestic regulations and potential state liability damages. Anticipating a potential error in his assessment of EU law’s scope, Lord Mance addressed these points preemptively in Chester and McGeoch. He argued that even if he misinterpreted EU law’s scope, disapplying UK law would be unfeasible for a national court. There would be no way to “read down” the Representation of the People Act 1983, containing the voting ban, without implementing positive action. This would include an administrative process enabling certain prisoners to exercise their voting right if the ban affecting them were deemed disproportionate. However, applying proportionality to such a sweeping ban is undoubtedly complex. Consistent with his approach to interpreting EU law in favor of national discretion, Lord Mance also interpreted the Francovich principles on state liability to suggest that a claim for damages would be unsuccessful.

Barnard & Peers: chapter 9, chapter 3

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