REPORT on the proposal for a Council directive amending Directive 93/109/EC of 6 December 1993 as regards certain detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals

29.6.2007 - (COM(2006)0791 – C6‑0066/2007 – 2006/0277(CNS)) - *

Committee on Constitutional Affairs
Rapporteur: Andrew Nicholas Duff

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a Council directive amending Directive 93/109/EC of 6 December 1993 as regards certain detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals

(COM(2006)0791 – C6‑0066/2007 – 2006/0277(CNS))

(Consultation procedure)

The European Parliament,

–   having regard to the Commission proposal to the Council (COM(2006)0791)[1],

–   having regard to the Communication from the Commission (COM(2006)0790)[2],

–   having regard to the Act of 20 September 1976 concerning the election of the members of the European Parliament by direct universal suffrage[3],

–   having regard to Regulation (EC) No 2004/2003[4] of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding,

–   having regard to Article 39 of the Charter of Fundamental Rights of the European Union[5],

–   having regard to Article 19(2) of the EC Treaty, pursuant to which the Council consulted Parliament (C6‑0066/2007),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Constitutional Affairs and the opinion of the Committee on Civil Liberties, Justice and Home Affairs (A6‑0267/2007),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

3.  Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

4.  Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

5.  Instructs its President to forward its position to the Council and to the Commission.

Text proposed by the Commission	Amendments by Parliament
Amendment 1 RECITAL 1
(1) The Commission report on the application to the 2004 elections of Council Directive 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals revealed the need to amend certain provisions of the Directive.	(1) The Commission report on the application to the 2004 elections of Council Directive 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals revealed the need to amend certain provisions of the Directive. Union citizenship guarantees the same rights for all EU citizens, whether they were born, or live, in the Union itself or in a third country. The Community institutions must therefore be vigilant in ensuring that citizens of the Union resident in a third country are able to exercise their rights in the case of elections to the European Parliament.
Amendment 2 RECITAL 1 A (new)
	(1a) The increasing mobility of people across the internal borders of the Union reinforces the need to provide fully portable democratic rights in the case of both European Parliamentary and municipal elections, as well as the need to ensure that citizens do not lose their democratic rights because they live in a Member State other than their own.
Amendment 3 RECITAL 2 A (new)
	(2a) The latter prohibition goes beyond what is necessary to ensure that citizens of the Union are not discriminated against on grounds of nationality when exercising their right to stand as a candidate. Member States should have the discretion to decide whether to allow candidacies in more than one State for the same election, and political parties should be left to decide whether to encourage such multiple candidacies.
Justification
See corresponding amendment 15.
Amendment 4 RECITAL 2 B (new)
	(2b) The Act of 20 September 1976 concerning the election of members of the European Parliament by direct universal suffrage1 provides that, where the primary law is silent, electoral law shall be subject to national provisions; moreover, the primary law expressly prohibits double voting but is silent on the issue of dual candidacy. –––––– 1 OJ L 278, 8.10.1976, p. 5. Act as last amended by Council Decision 2002/772/EC, Euratom (OJ L 283, 21.10.2002, p. 1.).
Justification
See corresponding amendment 15.
Amendment 5 RECITAL 3 A (new)
	(3a) The mandatory recognition, by the Member State of residence, of a disqualification with regard to the right to stand as a candidate is an additional condition for the exercise of that right, which is not covered by either the letter or the spirit of Article 19(2) of the EC Treaty. The Member State of residence should be entitled to establish whether an individual would have been deprived of the right to stand for election under the national law of that State under the same circumstances and in the same manner, and to decide on its own behalf whether to recognise the disqualification applicable in the home State.
Justification
See corresponding amendment 16.
Amendment 6 RECITAL 3 B (new)
	(3b) The Council should not go beyond the intention expressed in the primary law provisions, and the 'detailed arrangements' prescribed in Directive 93/109/EC under the terms of Article 19(2) of the EC Treaty should be limited to what is strictly necessary in order to give effect to the two intended rights, i.e. the right to vote and to stand for election in a State other than one's own, and should not introduce conditions for the exercise of those rights other than, or in addition to, those provided for in the law of the State of residence.
Justification
See corresponding amendments 15, 16 and 19.
Amendment 7 RECITAL 5
(5) The requirement for candidates to submit this attestation should accordingly be abolished and replaced by an item to that effect in the formal declaration that candidates must produce.	(5) The requirement for candidates to submit this attestation should accordingly be abolished and replaced by an optional item to that effect in the formal declaration that candidates must produce.
Justification
See corresponding amendments 21 and 22.
Amendment 8 RECITAL 6
(6) Host Member States should be placed under an obligation to notify the home Member State of this declaration in order to ensure that the Community candidate was not actually deprived of this right in the Member State of origin.	deleted
Justification
See corresponding amendments 21 and 22.
Amendment 9 RECITAL 9
(9) The exchange of information should accordingly be abolished but the obligation for the voter or candidate to produce a declaration undertaking to exercise his right to vote or to stand as a candidate only in the Member State of residence should be maintained.	(9) The exchange of information should accordingly be abolished but the obligation for the voter to produce a declaration undertaking to exercise his right to vote only in the Member State of residence should be maintained.
Justification
See corresponding amendments 15 and 20.
Amendment 10 RECITAL 10
(10) Moreover, as a deterrent to voting or standing as a candidate twice and to exercising the right to vote or stand despite being deprived of these rights, Member States of residence should take measures to ensure that violations of the obligations provided for by the Directive are subject to proper penalties.	(10) Moreover, Member States of residence should take measures to ensure that inaccuracies in formal declarations made by citizens of the Union and provided for by the Directive are subject to proper sanctions.
Justification
See corresponding amendments 18 and 23.
Amendment 11 RECITAL 10 A (new)
	(10a) Member States have a duty, under Article 12 of Directive 93/109/EC, to fully inform EU citizens of their right to vote and to stand as a candidate in their Member State of residence in good time before each European Parliamentary election; Member States should be supported by the European Parliament and the Commission, and by political parties at both European and national levels, in choosing best practice in that regard, in order to improve the degree of participation in the elections.
Amendment 12 RECITAL 11
(11) In the report that it is required to prepare on the application of the amended Directive to the elections to the European Parliament in 2009, the Commission, on the basis of the information provided by the Member States, should base its analysis in particular on the results of checks and inspections conducted by the Member States after the elections with a view to measuring the frequency of double voting and double candidacies, if any.	(11) In the report that it is required to prepare on the application of the amended Directive to the elections to the European Parliament in 2009, the Commission, on the basis of the information provided by the Member States, should base its analysis in particular on the results of checks and inspections conducted by the Member States after the elections with a view to measuring the frequency of double voting, if any.
Justification
See corresponding amendments 15 and 20.
Amendment 13 RECITAL 12
(12) A routine check of all the votes and of all the candidacies would be disproportionate to the problems identified, and there would be problems of feasibility since there are in the Member States no uniform electronic methods of recording and storing data on the actual turnout at the poll and on the candidacies deposited; Member States should accordingly target their checks on the situations where there is a greater probability of double voting or double candidacies,	(12) A routine check of all the votes would be disproportionate to the problems identified, and there would be problems of feasibility since there are in the Member States no uniform electronic methods of recording and storing data on the actual turnout at the poll; Member States should accordingly target their checks on the situations where there is a greater probability of double voting,
Justification
See corresponding amendments 15 and 20.
Amendment 14 ARTICLE 1, POINT 1 A (new) Article 3 (Directive 93/109/EC)
	(1a) Article 3 shall be replaced by the following:
	"Article 3
	Any person who, on the reference date:
	(a) is a citizen of the Union within the meaning of Article 17(1) of the Treaty;
	(b) is not a national of the Member State of residence, but satisfies the same conditions, in respect of the right to vote and to stand as a candidate, as that State imposes by law on its own nationals,
	shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence, unless precluded from exercising those rights by the Member State of residence pursuant to Articles 6 and 7.
	Where, in order to stand as a candidate, nationals of the Member State of residence must have been nationals for a certain minimum period, citizens of the Union shall be deemed to have met that condition when they have been nationals of a Member State for the same period."
Justification
The rights of EU citizens to vote or stand as a candidate in the Member State of residence must be in line with the rights of citizens of the Member State of residence. The amendment replaces the words "unless deprived of those rights pursuant to Articles 6 and 7" by the words "unless precluded from exercising those rights by the Member State of residence pursuant to Articles 6 and 7" in order to show that there may not be an automatism. Any deprivation of electoral rights must be the result of an individual decision taken by the competent authorities of the Member State of residence in conformity with their national law.
Amendment 15 ARTICLE 1, POINT 1 B (new) Article 4, paragraph 2 (Directive 93/109/EC)
	(1b) In Article 4, paragraph 2 shall be replaced by the following:
	"2. Community voters may stand as a candidate in more than one Member State for the same election, as long as the law of the Member State of residence does not exclude that possibility in respect of its nationals, and the Community voter satisfies the conditions in respect of the right to stand as a candidate as provided for in the law of the other Member State concerned."
Justification
The Act of 1976 explicitly excludes double voting, but does not exclude double candidature. According to the applicable primary law it is therefore up to the discretion of the Member State concerned to allow dual candidature.
Amendment 16 ARTICLE 1, POINT 2, POINT (-A) (new) Article 6, paragraph 1 (Directive 93/109/EC)
	(-a) paragraph 1 shall be replaced by the following:
	"1. The Member State of residence may provide that citizens of the Union who, through an individual criminal or civil law decision, have been deprived of the right to stand as a candidate under the law of their home Member State, are to be precluded from exercising that right in the Member State of residence in elections to the European Parliament if they would have been deprived of that right under the national law of that State for the same misdemeanour and in the same manner."
Justification
The Treaty of Maastricht introduced genuine citizen's rights in the form of electoral rights for the citizens of the Union residing in another Member State. These rights depend on the fact that he or she has the nationality of one Member State but are not derived from or conditioned by the right to vote or to stand in the home Member State. Such citizens must be treated as far as possible as if they were nationals of the Member State of residence. This means that circumstances affecting electoral rights based on the legal situation in the home Member State have to be appreciated by the Member State of residence in the light of the relevant provisions of its own national law. There is therefore no need and no place for "exporting" disqualifications or for their mandatory recognition.
The prohibition to stand as a candidate in the home Member State does not lead to a general prohibition in all Member States.
Amendment 17 ARTICLE 1, POINT 2, POINT (A) Article 6, paragraph 2 (Directive 93/109/EC)
2. The Member State of residence shall check whether the citizens of the Union who have expressed a desire to exercise their right to stand as a candidate there have not been deprived of that right in the home Member State through an individual civil law or criminal law decision.	2. The Member State of residence may check whether the citizens of the Union who have expressed a desire to exercise their right to stand as a candidate there have not been deprived of that right in the home Member State through an individual civil law or criminal law decision.
Justification
It ought to be up to the discretion of the Member State of residence to check whether a candidate has been deprived of his right to stand as a candidate in the home Member State.
Amendment 18 ARTICLE 1, POINT 2, POINT (B) Article 6, paragraph 3 (Directive 93/109/EC)
3. For the purposes of paragraph 2 of this Article, the Member State of residence shall notify the home Member State of the declaration referred to in Article 10(1). To that end, the relevant information that is normally available from the home Member State shall be provided in good time and in an appropriate manner; such information may include only details which are strictly necessary for the implementation of this Article and may be used only for that purpose. If the information provided invalidates the content of the declaration, the Member State of residence shall take the appropriate steps to prevent the person concerned from standing as a candidate.	3. For the purposes of paragraph 2 of this Article, the Member State of residence may notify the home Member State of the declaration referred to in Article 10(1). To that end, the relevant information that is normally available from the home Member State shall be provided in good time and in an appropriate manner; such information may include only details which are strictly necessary for the implementation of this Article and may be used only for that purpose.
Justification
It ought to be up to the discretion of the Member State of residence to inform the home Member State about a candidate's formal declaration and to decide about the consequences of inaccuracies.
Amendment 19 ARTICLE 1, POINT 2 A (new) Article 7 (Directive 93/109/EC)
	(2a) Article 7 shall be replaced by the following:
	"Article 7
	1. The Member State of residence may provide that citizens of the Union who, through an individual criminal or civil law decision, have been deprived of their right to vote under the law of their home Member State, are to be precluded from exercising that right in the Member State of residence in elections to the European Parliament if they would have been deprived of that right under the national law of that State for the same misdemeanour and in the same manner.
	2. For the purposes of paragraph 1 of this Article, the Member State of residence may notify the home Member State of the declaration referred to in Article 9(2). To that end, the relevant, and normally available, information from the home Member State shall be provided in good time and in an appropriate manner; such information may only include details which are strictly necessary for the implementation of this Article and may only be used for that purpose.
	3. The home Member State may, in good time and in an appropriate manner, submit to the Member State of residence any information necessary for the implementation of this Article."
Justification
The amendment puts the right to vote in line with the right to stand as a candidate and is based on the same reasoning as amendment 16.
Amendment 20 ARTICLE 1, POINT 3, POINT (-A) (new) Article 10, paragraph 1, point (b) (Directive 93/109/EC)
	(-a) point (b) of paragraph 1 shall be replaced by the following:
	"(b) where applicable, that he or she is standing as a candidate for election to the European Parliament in another Member State, and"
Justification
If dual candidacy is no longer excluded by the Directive, it should be handled in a transparent manner.
Amendment 21 ARTICLE 1, POINT 3, POINT (A) Article 10, paragraph 1, point (d) (Directive 93/109/EC)
(d) that he has not been deprived of the right to stand as a candidate in the home Member State.	deleted
Justification
Consistent with the above.
Amendment 22 ARTICLE 1, POINT 3, POINT (C) Article 10, paragraph 3 (Directive 93/109/EC)
(c) paragraph 3 is renumbered paragraph 2.	(c) paragraph 3 is renumbered paragraph 2 and amended as follows:
	"The Member State of residence may also require Community nationals who are entitled to stand as candidates to produce a valid identity document. It may also require them to indicate the date from which they have been nationals of a Member State and whether they have been deprived of the right to stand as a candidate in their home Member State."
Justification
Consistent with amendment 21.
Amendment 23 ARTICLE 1, POINT 4 Article 13 paragraph 1 (Directive 93/109/EC)
1. The Member State of residence shall take the necessary measures to ensure that such inaccuracies in the formal declarations provided for by Articles 9(2) and 10(1) as have the effect of a violation of the obligations imposed by this Directive are subject to effective, proportional and dissuasive penalties.	1. The Member State of residence shall take the necessary measures to ensure that inaccuracies in the formal declarations provided for by Articles 9(2) and 10(1) are subject to effective, proportional and dissuasive penalties.
Justification
The wording of the provision as proposed by the Commission gives the impression as if the Directive creates direct obligations for the citizen of the Union which is and cannot be the case.

• [1]               Not yet published in OJ.
• [2]               European elections 2004, Commission report on the participation of European Union citizens in the Member State of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC, Euratom).
• [3]               OJ L 278, 8.10.1976, p. 5.
• [4]               OJ L 297, 15.11.2003, p. 1.
• [5]               OJ C 364, 18.12.2000, p. 1.

EXPLANATORY STATEMENT

The Commission has tabled a proposal for a Council Directive to amend Directive 93/109/EC of 6 December 1993 which lays down certain detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for EU citizens residing in a member state of which they are not nationals.

The proposal is drawn up after an assessment of the practical experience of previous elections, and particularly those of 2004 about which a detailed study was commissioned. This monitoring exercise is summarised in a Communication from the Commission COM(2006) 790 final of 12 December 2006, with three supporting documents SEC(2006) 1645, 1646, 1647.

Under the terms of Article 19.2 TEC the Parliament is merely consulted on this proposal and the Council has to act unanimously.

Background

The 1976 Act establishing direct elections to the European Parliament provides in Article 8 that where it is silent, ‘the electoral procedure shall be governed in each Member State by its national provisions’.

Article 9 says that: ‘No one may vote more than once in any election of members of the European Parliament’. No similar provision is made with regard to candidature.

The Treaty of Maastricht established a citizenship of the Union with certain electoral rights. Article 19(2) TEC, as amended by Maastricht, says:

‘Without prejudice to Article 190(4) [the uniform electoral procedure] and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.’ (the author's emphasis)

It should be noted that the Treaty provides electoral rights for non-nationals resident in another member state while it does not deprive the citizen of those same rights in their own member state. In other words, the Treaty confers new genuine citizen's rights on the citizens of the Union rather than substituting for existing ones.

Citizens' electoral rights have since been consolidated in the Charter of Fundamental Rights and in the Treaty establishing a Constitution for Europe[1]. Parliament has always championed an extension of these rights[2].

The 1993 Directive

Consequent on Maastricht, the 1993 legislation sought to lay down detailed arrangements in order to ‘abolish the nationality requirement which currently has to be satisfied in most Member States in order to exercise those rights’[3]. Directive 93/109/EC, duly respecting the principles of subsidiarity and proportionality, stopped way short of harmonising national electoral systems. However, while trying to respect the freedom of the citizen to choose where to exercise his or her electoral rights, it chose to interpret the Treaty narrowly by conflating the two specific rights, the right to vote and the right to stand as a candidate.

As far as the right to be on the electoral roll is concerned, it is the case that very many people can be registered to vote in more than one place at different residencies both within their own and other member states. The legislation sought to ensure that, despite multiple registrations, the citizen actually voted only once. It applied the same approach to candidature.

In 1993 a complicated system of information exchange was put in place whereby (i) the citizen wishing to enrol has to provide, beyond the normal identity and residency checks, a formal declaration of his or her intention to vote or to stand only once, and, if wishing to be a candidate, an official attestation from a competent authority of the home state that he or she is not disqualified from standing; (ii) the authorities in the member state of residence have to check whether the individual is banned from exercising his or her electoral rights in their home member state and, in any case, they have to inform the home member state of the identity of its nationals registered to vote and stand in their place of residence; and (iii) the authorities of the home state have to ensure that the same individuals do not vote or stand at home.

Some problems

Practical experience suggests that the administrative procedures for the necessary information exchange are too cumbersome either to work efficiently or to be effective in time. In particular, the need to provide a formal attestation of eligibility to stand as a candidate proves to be an insurmountable obstacle in the case of most member states. It has become clear that electoral law and its national and/or decentralised local supervision remain hugely diverse across the EU-27, and, equally, that approximation of these national practices championed by the EU would be very time-consuming, costly and intrusive. Specific problems relate to the identification of the competent authority, the formatting of data, lack of deadlines, and transliteration.

As we know, turnout in the European Parliamentary elections has fallen steadily from 63% in 1979 to below 46% in 2004. Although accurate data is hard to come by, it appears that very few EU citizens have been registering to vote outside their home state. In 2004 only 57 non-nationals stood as candidates[4]. Nevertheless, the Commission's research has identified a gradual rise in the number of people wishing to exercise their right to vote outside their home state[5]. With the increased mobility of the population subsequent to the 2004 enlargement, we can expect that trend to continue.

One reason for such low participation to date is that non-nationals are discouraged ‑ and in some cases even prohibited ‑ from joining political parties in their state of residence. The Commission is right to be concerned about this state of affairs, and Parliament should encourage all further efforts to inform non-nationals of their electoral rights (under Article 12 of Directive 93/109/EC). Political parties should be welcoming to all EU citizens whatever their nationality.

Political parties at European level have a particular duty to encourage the active engagement of EU citizens in the political processes of the European Union;

Proposed changes

Having conducted its study of the 2004 elections and having consulted widely, the Commission concludes that there is very little evidence of double voting in European Parliamentary elections[6]. It considered a number of options, including staying with the present system with its depressing effect on the number of individuals choosing to exploit their wider electoral rights as derived from EU citizenship.

The Commission therefore proposes a number of measures designed to simplify the procedure and to lessen the burden on electoral authorities and individuals. It proposes to scrap the current information exchange system but maintain the individual declaration not to vote or stand twice, strengthen ex-post checks and increase penalties for infringement. The special attestation of eligibility for candidates would also be abolished. In the view of the rapporteur, Parliament should welcome these technical proposals without reservation.

Parliament should also welcome the intention to give effect to these changes in time for the 2009 elections, the inclusion of a revision clause post-2009, and the requirement for member states to inform the Commission about how they transpose the directive into national law. Parliament should insist that it is kept fully informed by the Commission about the progress of transposition.

Parliament’s objectives

While Parliament would have no difficulty with the technical substance of the changes proposed, there remains the matter of the interpretation of the primary law which interpretation, in the view of the rapporteur, is excessively narrow in respect of giving effect to the right to stand as a candidate in a member state other than one’s own. The problem is particularly acute with respect to potential candidates who hold dual nationality.

Parliament’s interest is in maximising the number of people who choose to exercise their electoral rights to the full. In the age of increased citizen mobility across the internal frontiers of the Union, it is desirable to make electoral rights as portable as possible within the single political market.

One recalls that the 1976 Act prohibits double voting (Article 9). It does not prohibit standing as a candidate in more than one electoral constituency. The matter of candidature, therefore, remains a matter for national law (Article 8).

The ‘detailed arrangements’ prescribed for this Directive in Article 19(2) must be limited to what is strictly necessary to give effect to the two intended rights – that is, both to vote and to stand in a state other than one’s own. This includes arrangements for member states to ensure that the law is observed. The Council may not, however, introduce new conditions at the EU level for the exercise of the right to stand as a candidate other than or beyond those foreseen in national law.

Directive 93/109 is therefore disproportionate in at least three respects.

First, according to its Article 3(b), the citizen can vote or stand ‘unless deprived of those rights pursuant to Articles 6 and 7’. Under Article 7 the state of residence is obliged to stop a citizen from voting as soon as it is proven that this person is deprived of those rights ‘through an individual civil law or criminal law decision’ in the home state. The state of residence must take such preventative action regardless of whether the individual would have been deprived of his or her electoral rights according to the national law of the state of residence concerned for the same misdemeanour and in the same manner. The state of residence is not entitled to use its discretion on a case by case basis in the light of its own national legislation. Therefore, it could be that an individual is unfairly penalised and discriminated against on the grounds of his or her nationality.

Moreover, under Article 6(1) a citizen is precluded from standing if legally deprived of his or her right to stand ‘under either the law of the Member State of residence or the law of his home Member State’. The second aspect provokes the same criticism as formulated above with respect to the right to vote.

Interestingly, this blanket prohibition only pertains to European Parliamentary elections. As far as municipal elections are concerned, the state of residence has a power of discretion: ‘… may provide that … shall be precluded …’[7].

Finally, and in apparent breach of the 1976 Act, Article 4 of the 1993 Directive lays down categorically that: ‘No one may stand as a candidate in more than one Member State at the same election.’ Such a prohibition goes beyond what is strictly necessary to ensure that an EU citizen stands as a candidate under the same conditions as the state of residence ‘imposes by law on its own nationals’ (Article 3(b)). This prohibition is disproportionate because a member state may very well take the view that it has no objection under its national law to multiple candidatures. Indeed, many member states permit multiple candidatures within their own state. (Needless to add, a candidate successful in being elected in more than one constituency has to choose the place for which he or she will sit in the Parliament.)

In short, the Parliament, in being consulted about this Directive, should pose two questions:

1.  Why should being deprived of the right to vote or stand as a candidate in one member state automatically deprive the citizen of the same rights in another?

2.  Why should a candidate not be able to stand in more than one member state at the same time?

• [1]  Article 39 of the Charter of Fundamental Rights of the European Union and Article II-99 of the Treaty establishing a Constitution for Europe.
• [2]  As evidenced in the Opinion of the Committee on Civil Liberties, Justice and Home Affairs (Amendment 3), adopted as an amendment to Recital 1.
• [3]  Fourth recital of Council Directive 93/109/EC.
• [4]  Out of a total of 8974 candidates.
• [5]  The Commission's tentative figures suggest a doubling of the number from 1994 to 2004.
• [6]  Rather, it might be said that the lack of people voting once is more of an issue than the threat of people voting twice (or more).
• [7]  Article 5(1) of Council Directive 94/80/EC of December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, OJ L 368 of 31/12/1994, p.38.

OPINION of the Committee on Civil Liberties, Justice and Home Affairs (6.6.2007)

for the Committee on Constitutional Affairs

on the proposal for a Council directive amending Directive 93/109/EC of 6 December 1993 as regards certain detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
(COM(2006)0791 – C6‑0066/2007 – 2006/0277(CNS))

Draftsman: Ignasi Guardans Cambó

SHORT JUSTIFICATION

I. Background to the Commission proposal

Under Article 19 of the Treaty establishing the European Community, ‘every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at European Parliament elections in the Member State in which he resides, under the same conditions as nationals of that State’. The detailed arrangements for the exercise of the right to vote and stand as a candidate are laid down in Directive 93/109/CE.

The objectives of this Directive are to ensure the participation of all citizens of the Union in European Parliament elections, to encourage all citizens to participate in these elections, and to guarantee the same electoral rights for all citizens residing in the same country (nationals or non-nationals)[1].

The Directive states that no citizen may vote more than once or stand as a candidate in more than one Member State in the same election (Article 4 of the Directive)[2].

However, in light of the experience of the European elections in June 2004, the Commission felt it would be possible to simplify the procedure and therefore presented this proposal for a directive. The Directive plans to abolish the obligation for Member States to exchange information (Article 13), to strengthen the provisions for sanctions in the event of a false declaration (Article 13), and to abolish the obligation for candidates to provide an attestation that they are eligible to stand as a candidate (Articles 6 and 10).

II. Scope of the Directive

This Directive is concerned only with citizens of the Union residing in a Member State of which they are not nationals.

As such, the Directive does not discuss

- citizens with dual nationality

- third-country nationals

1. Dual nationality

In its Communication on the 2004 European elections[3], the Commission discussed the problems that may be linked to dual or multiple nationality (of more than one Member State). In such cases, it is impossible to ensure that a citizen does not vote more than once, which is a breach of Article 8 of the Act of 20 September 1976 concerning the election of the representatives of the European Parliament by direct universal suffrage.

This issue does not fall within the scope of Directive 93/109/CE but is a potential source of double votes and the Commission should, therefore, study the options for avoiding such situations occurring.

2. Third-country nationals

This Directive deals only with citizens of the Union and does not cover the possible participation of third-country citizens in European Parliament elections. However, recent case law developments at the European Court of Justice are worth mentioning. The Court was consulted about whether a Member State is justified in extending the right to vote in European Parliament elections to third-country nationals, such as Commonwealth citizens fulfilling certain criteria (‘qualifying Commonwealth citizens’), living on European territory such as Gibraltar.

In its judgment of 12 September 2006[4], the Court pointed out that neither Article 190 EC nor the 1976 Act determines clearly or precisely who is eligible to have the right to vote and stand as a candidate at the European Parliament[5], while Article 8 of the 1976 Act states that the electoral procedure is governed by national provisions[6] in each Member State. The Court concludes that ‘the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each Member State in compliance with Community law, and that Articles 189 EC, 190 EC, 17 EC and 19 EC do not preclude the Member States from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory’. This judgment points out that is possible for third-country nationals to have the right to vote and to be elected to the European Parliament, but the Member States concerned must decide whether or not to grant these rights.

III. Rapporteur’s position

The rapporteur supports the Commission’s aim of simplifying the procedures for European citizens wanting to vote or stand for election in their Member State of residence.

In that it contributes to creating a European political community, this Directive is useful and necessary. Unfortunately, given the present political climate within the European Union, it is impossible to establish one single electoral system. However, it would be useful if, after the European elections in 2009, the Commission made a proposal regarding this matter, which could then be studied by Council and Parliament.

The other amendments presented by the rapporteur aim to ensure that the detailed arrangements for voting and standing as candidates applicable to Union citizens voting in their Member State of residence are identical to the arrangements applicable to nationals of that Member State, and also to facilitate the practical implementation of the Directive.

AMENDMENTS

The Committee on Civil Liberties, Justice and Home Affairs calls on the Committee on Constitutional Affairs, as the committee responsible, to incorporate the following amendments in its report:

Text proposed by the Commission[7]	Amendments by Parliament
Amendment 1 RECITAL -1 A (new)
	(-1a) It is essential to guarantee in an efficient and practical way the full exercise of their political rights to citizens of the Union residing in a Member State of which they are not nationals, among which the most important is the right to vote and stand as candidates in elections to the European Parliament in their country of residence.
Amendment 2 RECITAL -1 B (new)
	(-1b) It is regrettable that elections to the European Parliament are not true European elections but depend on twenty-seven different electoral systems, given the absence of a common electoral law, a situation which unfortunately cannot be remedied in the present political climate.
Amendment 3 RECITAL 1
(1) The Commission report on the application to the 2004 elections of Council Directive 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals revealed the need to amend certain provisions of the Directive.	(1) The Commission report on the application to the 2004 elections of Council Directive 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals revealed the need to amend certain provisions of the Directive. Union citizenship guarantees the same rights for all EU citizens, whether they were born, or live, in the Union itself or in a third country. The Community institutions must therefore be vigilant in ensuring that citizens of the Union resident in a third country are able to exercise their rights in the case of elections to the European Parliament.
Amendment 4 RECITAL 2 A (new)
	(2a) It is beyond the scope of this Directive, and nothing in its provisions may have any effect on the internal legislation of a Member State regarding the possible granting of the right to vote and to stand as candidates to:
	(a) third country nationals residing in that Member State;
	(b) nationals of the Member State residing in third countries;
	(c) stateless persons and others who do not hold the nationality of any country who are long-term residents of a Member State.

Amendment 5

ARTICLE 1, POINT 1 A (new)

Article 3 (Directive 93/109/EC)

	(1a) Article 3 is replaced by the following:
	“Article 3
	Any person who, on the reference date:
	(a) is a citizen of the Union within the meaning of the second subparagraph of Article 8(1) of the Treaty,
	(b) is not a national of the Member State of residence, but satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals,
	shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence under the same voting arrangements as nationals of that Member State, unless deprived of those rights pursuant to Articles 6 and 7.
	Where, in order to stand as a candidate, nationals of the Member State of residence must have been nationals for a certain minimum period, citizens of the Union shall be deemed to have met this condition when they have been nationals of a Member State for the same period.”

Justification

The different detailed voting arrangements offered to nationals of a Member State (distance voting or voting by proxy, etc.) should also be offered to Community voters.

Amendment 6

ARTICLE 1, POINT 2, POINT (B)

Article 6, paragraph 3 (Directive 93/109/EC)

3. For the purposes of paragraph 2 of this Article, the Member State of residence may notify the home Member State of the declaration referred to in Article 10(1). To that end, the relevant and normally available information from the home Member State shall be provided in good time and in an appropriate manner; such information may only include details which are strictly necessary for the implementation of this Article and may only be used for that purpose. If the information provided invalidates the content of the declaration, the Member State of residence shall take the appropriate steps to prevent the person concerned from standing as a candidate.	3. For the purposes of paragraph 2 of this Article, the Member State of residence may notify the home Member State of the declaration referred to in Article 10(1), by providing the State with the form referred to in Article 10(2). To that end, the relevant and normally available information from the home Member State shall be provided in good time and in an appropriate manner; such information may only include details which are strictly necessary for the implementation of this Article and may only be used for that purpose. If the information provided invalidates the content of the declaration, the Member State of residence shall take the appropriate steps to prevent the person concerned from standing as a candidate.

Justification

The formal declaration mentioned in Article 10 should be sent to the Member State of origin. It will be easier for Member States to deal with these declarations if they follow a standard format.

Amendment 7

ARTICLE 1, POINT 3, POINTS (B) AND (C)

Article 10, paragraphs 2 and 3 (Directive 93/109/EC)

(b) paragraph 2 is deleted;	(b) paragraph 2 is replaced by the following text: ‘This formal declaration shall be made using the form in Annex I.’
(c) paragraph 3 is renumbered paragraph 2;

Justification

The formal declaration mentioned in Article 10 should be sent to the Member State of origin. It will be easier for Member States to deal with these declarations if they follow a standard format.

Amendment 8

ARTICLE 1, POINT 3 A (new)

Article 12 (Directive 93/109/EC)

	(3a) The following subparagraph is added to Article 12:
	‘The detailed voting arrangements for the exercise of the right to vote for Community voters must be the same as those for nationals of the Member State of residence.’

Justification

The different detailed voting arrangements offered to nationals of a Member State (distance voting or voting by proxy, etc.) should also be offered to Community voters.

Amendment 9

ARTICLE 1, POINT 4 A (new)

Article 15 a (new) (Directive 93/109/EC)

	(4a) Article 15a is inserted into Chapter IV:
	‘Member States are obliged to notify the Commission, within six months after the entry into effect of this Directive, of the competent electoral authority responsible for implementing the obligations resulting from this Directive. The Commission will forward this information to all Member States.’

Amendment 10 ARTICLE 1, POINT 5 Article 16 (Directive 93/109/EC)
The Commission, on the basis of the information provided by the Member States, shall report to the European Parliament and the Council on the application of this Directive to the 2009 elections to the European Parliament, together if appropriate with a proposal for amendment of this Directive. The said report shall analyse in particular the application of Articles 4 and 13.	The Commission, on the basis of the information provided by the Member States, shall report to the European Parliament and the Council on the application of this Directive to the 2009 elections to the European Parliament. On the basis of that information, the Commission shall prepare a preliminary study with a view to establishing a common electoral system for the 2014 elections to the European Parliament.
For the purposes of the first subparagraph, Member States shall cooperate among themselves to carry out post-election checks on the possible occurrence of double voting and double candidacies; these checks and inspections may concentrate on situations where there is a greater probability of double voting or double candidacies.	Member States shall cooperate among themselves to carry out post-election checks on the possible occurrence of double voting and double candidacies; these checks and inspections may concentrate on situations where there is a greater probability of double voting or double candidacies.

Amendment 11

ARTICLE 1, POINT 5 A (new)

Annexe I (new) (Directive 93/109/EC)

	(5a) The following Annex I shall be added:

Formal declaration for a citizen of the Union residing in a Member State of which he is not a national to stand as a candidate in elections to the European Parliament

Name of the Member State of residence: ______________ Name of the Member State of origin: ______________       Declaration of eligibility to stand as a candidate in elections to the European Parliament in a Member State other than that of nationality __________________ I, the undersigned,   Surname:______________ First name:______________ born on ______________ in ______________ Nationality:______________ ID card/passport number: ______________ issued on ___________ expiry date ___________   Address in the Member State of residence: __________________________________________ __________________________________________ __________________________________________   declare that   I am not standing as a candidate in the elections to the European Parliament in a Member State other than my State of residence as indicated above;   I have not been deprived of my right to stand as a candidate in my Member State of origin as indicated above;   Place of my last registration on electoral lists in __________________ (name of Member State of origin): __________________________________________ I am aware that any inaccuracy in this declaration is a criminal offence according to legislation in my Member State of residence. Completed in _______________ , on _______________ Signature:

PROCEDURE

Title	Amendment of Directive 93/109/EC: right to vote and stand in elections to the European Parliament for EU citizens residing in another Member State
References	COM(2006)0791 - C6-0066/2007 - 2006/0277(CNS)
Committee responsible	AFCO
Opinion by        Date announced in plenary	LIBE 13.3.2007
Drafts(wo)man        Date appointed	Ignasi Guardans Cambó 20.3.2007
Discussed in committee	8.5.2007		5.6.2007
Date adopted	5.6.2007
Result of final vote	+: –: 0:	38 0 1
Members present for the final vote	Alexander Alvaro, Philip Bradbourn, Mihael Brejc, Kathalijne Maria Buitenweg, Michael Cashman, Giusto Catania, Carlos Coelho, Fausto Correia, Elly de Groen-Kouwenhoven, Panayiotis Demetriou, Agustín Díaz de Mera García Consuegra, Bárbara Dührkop Dührkop, Claudio Fava, Kinga Gál, Patrick Gaubert, Jeanine Hennis-Plasschaert, Ewa Klamt, Magda Kósáné Kovács, Stavros Lambrinidis, Henrik Lax, Dan Mihalache, Claude Moraes, Javier Moreno Sánchez, Martine Roure, Inger Segelström, Károly Ferenc Szabó, Adina-Ioana Vălean, Manfred Weber
Substitute(s) present for the final vote	Simon Busuttil, Gérard Deprez, Ignasi Guardans Cambó, Sophia in ‘t Veld, Sylvia-Yvonne Kaufmann, Bogdan Klich, Jean Lambert, Marianne Mikko, Hubert Pirker, Rainer Wieland
Substitute(s) under Rule 178(2) present for the final vote	Aloyzas Sakalas

• [1]  SEC(2006)1647.
• [2]  Also Article 8 of the Act of 20 September 1976 concerning the election of the representatives of the European Parliament by direct universal suffrage.
• [3]  COM(2006)0790.
• [4]  Case C-145/04 Kingdom of Spain/United Kingdom of Great Britain and Northern Ireland.
• [5]  Point 70 of the Judgment.
• [6]  Point 69 of the judgment.
• [7]  Not yet published in OJ.

PROCEDURE

Title	Amendment of Directive 93/109/EC: right to vote and stand in elections to the European Parliament for EU citizens residing in another Member State
References	COM(2006)0791 - C6-0066/2007 - 2006/0277(CNS)
Date of consulting Parliament	14.2.2007
Committee responsible        Date announced in plenary	AFCO 13.3.2007
Committee(s) asked for opinion(s)        Date announced in plenary	LIBE 13.3.2007
Rapporteur(s)        Date appointed	Andrew Duff 1.3.2007
Discussed in committee	20.3.2007		2.5.2007		26.6.2007
Date adopted	26.6.2007
Result of final vote	+: –: 0:	14 2 0
Members present for the final vote	Jim Allister, Enrique Barón Crespo, Richard Corbett, Andrew Duff, Bronisław Geremek, Íñigo Méndez de Vigo, Johannes Voggenhuber, Dushana Panayotova Zdravkova
Substitute(s) present for the final vote	Elmar Brok, Carlos Carnero González, Roger Helmer, Iliana Malinova Iotova, Gérard Onesta, Georgios Papastamkos, Bogdan Pęk, György Schöpflin, Alexander Stubb