Opinion of Advocate General Richard de la Tour delivered on 11 January 2024.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:15
• Date: 11 January 2024
• Celex Number: 62021CC0814
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 11 January 2024 (1)

Case C‑814/21

European Commission

v

Republic of Poland

(Failure of a Member State to fulfil obligations – Citizenship of the Union – Article 22 TFEU – Right to vote and to stand as a candidate in municipal elections and in elections to the European Parliament in the Member State of residence under the same conditions as nationals of that State – Citizens of the Union residing in Poland who are not Polish nationals – No right to become a member of a political party – Candidacy at municipal elections or elections to the European Parliament under different conditions from those laid down for nationals – Article 10 TEU – Principle of democracy – Charter of Fundamental Rights of the European Union – Articles 12, 39 and 40 – Justification – Article 4(2) TEU)

Table of contents

I. Introduction

II. Legal framework

A. European Union law

1. The FEU Treaty

2. The Charter

3. Directive 93/109/EC

4. Directive 94/80/EC

B. Polish law

1. The Law on Political Parties

2. The Electoral Code

3. The Law on Broadcasting

4. The Law on Associations

III. The pre-litigation procedure

IV. Forms of order sought

V. Analysis

A. The plea of inadmissibility raised by the Czech Republic

1. Arguments of the parties

2. Assessment

B. Substance

1. Arguments of the parties

(a) The Commission

(1) The basis of the action for failure to fulfil obligations

(2) Member States’ exercise of their competence

(b) The Republic of Poland

(1) The wording of Article 22 TFEU does not confer the right to become a member of a political party

(2) The restriction of membership of a political party is justified by the concern to limit the sphere of influence of ‘mobile’ Union citizens on national political life

(3) Candidates who are not members of a political party are not especially disadvantaged as compared with party members

(c) The specific arguments raised by the Czech Republic, the intervener, and the Commission’s observations in response

(1) The scope of Article 22 TFEU

(i) The Czech Republic’s arguments

(ii) The Commission’s observations

(2) The applicable legal basis

(i) The Czech Republic’s arguments

(ii) The Commission’s observations

(3) Evidence of the alleged failure to fulfil obligations

(i) The Czech Republic’s arguments

(ii) The Commission’s observations

(4) The limitation of the exercise of the rights conferred by Article 22 TFEU

(i) The Czech Republic’s arguments

(ii) The Commission’s observations

(5) The situation in the other Member States

(i) The Czech Republic’s arguments

(ii) The Commission’s observations

2. Assessment

(a) The scope of Article 22 TFEU

(b) The existence of a limitation on the exercise of electoral rights

(c) The justification for the restriction on membership of a political party

VI. Costs

VII. Conclusion

I. Introduction

1. By its action lodged pursuant to Article 258 TFEU and based on Article 22 TFEU, the European Commission asks the Court to declare that the Republic of Poland has failed to fulfil its obligations under Article 22 TFEU because, in essence, it has failed to grant the right to be a member of a political party to citizens of the Union who are not Polish nationals but who reside in its territory, (2) with the result that those citizens have less chance of being elected at municipal elections or elections to the European Parliament than Polish nationals. (3)

2. In this Opinion, I will explain why the position taken by the Republic of Poland, that is to say, that Article 22 TFEU should only be interpreted literally, in the sense that it governs only the legal conditions for standing as a candidate, cannot be accepted, and that, on the contrary, on the basis of a contextual and teleological analysis of the obligations arising from that provision, the view should be taken that the complaint raised by the Commission, alleging that the effective exercise of the right to stand as a candidate is undermined, is well founded.

II. Legal framework

A. European Union law

1. The FEU Treaty

3. Article 20 TFEU reads as follows:

‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

…

(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

…

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.’

4. Article 22 TFEU provides:

‘1. 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 municipal elections 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 in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

2. Without prejudice to Article 223(1) 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 in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.’

2. The Charter

5. Article 12 of the Charter of Fundamental Rights of the European Union, (4) entitled ‘Freedom of assembly and of association’, reads as follows:

‘1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.

2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.’

3. Directive 93/109/EC

6. Council Directive 93/109/EC 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 citizens of the Union residing in a Member State of which they are not nationals (5) states, in the fourth recital thereof:

‘Whereas Article 8b(2) of the EC Treaty is concerned only with the possibility of exercising the right of vote and to stand as a candidate in elections to the European Parliament, without prejudice to Article 138(3) of the EC Treaty, which provides for the establishment of a uniform procedure in all Member States for those elections; whereas it essentially seeks to abolish the nationality requirement which currently has to be satisfied in most Member States in order to exercise those rights’.

7. Article 1(1) of that directive provides:

‘This Directive lays down the detailed arrangements whereby citizens of the Union residing in a Member State of which they are not nationals may exercise the right to vote and to stand as a candidate there in elections to the European Parliament.’

4. Directive 94/80/EC

8. Council Directive 94/80/EC of 19 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 (6) states, in the fifth recital thereof:

‘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’.

9. Article 1(1) of that directive provides:

‘This Directive lays down the detailed arrangements whereby citizens of the Union residing in a Member State of which they are not nationals may exercise the right to vote and to stand as a candidate there in municipal elections.’

B. Polish law

1. The Law on Political Parties

10. Article 2(1) of the ustawa o partiach politycznych (Law on Political Parties) (7) of 27 June 1997 provides:

‘Nationals of the Republic of Poland aged 18 or over may be members of a political party.’

11. Article 5 of that law provides:

‘Political parties shall be guaranteed access to public radio and television channels in line with the rules laid down in separate laws.’

12. Article 24 of that law states:

‘1. The assets of political parties shall derive from the membership fees, donations, legacies and bequests, from property income and from grants and subsidies as specified by law.

2. The assets of political parties may be used only for purposes specified in their constitution or for charitable purposes.

…

4. A political party may derive income from its assets only from:

(1) the interest yielded by funds held in bank...