Opinion of Advocate General Richard de la Tour delivered on 11 January 2024.
| Jurisdiction | European Union |
| ECLI | ECLI:EU:C:2024:12 |
| Date | 11 January 2024 |
| Celex Number | 62021CC0808 |
| Court | Court of Justice (European Union) |
Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 11 January 2024 (1)
Case C‑808/21
European Commission
v
Czech Republic
(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 the Czech Republic who are not Czech 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
B. Czech law
1. The Law on Political Parties
2. The Law on municipal council elections
3. The Law on European Parliament elections
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. The basis of the action for failure to fulfil obligations
(a) Arguments of the parties
(1) The Commission
(2) The Czech Republic
(b) Assessment
2. The existence of a limitation on the exercise of electoral rights
(a) Arguments of the parties
(1) The Commission
(2) The Czech Republic
(b) Assessment
3. The justification for the restriction on membership of a political party
(a) Arguments of the parties
(1) The Commission
(2) The Czech Republic
(3) The Republic of Poland, intervener
(b) Assessment
VI. Costs
VII. Conclusion
VIII. Annex I: The rules on the financing of political parties provided by the Commission
IX. Annex II: The information provided by the Czech Republic regarding the composition of the lists and the candidates elected at elections to the European Parliament and municipal elections
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 Czech Republic 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 Czech 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 Czech nationals. (3)
2. In this Opinion, I will explain why the position taken by the Czech Republic, 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.’
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.’
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. Czech law
1. The Law on Political Parties
10. Paragraph 1(1) of zákon č. 424/1991 Sb., o sdružování v politických stranách a v politických hnutích (Law No 424/1991 on associations in political parties and political movements) of 2 October 1991, as amended, (7) provides:
‘Citizens shall have the right of association in political parties and political movements (“parties and movements”). The exercise of that right enables citizens to participate in the political life of society, in particular in the constitution of legislative bodies and of bodies of local and regional territorial authorities …’
11. Paragraph 2(3) of that law provides:
‘Every citizen aged 18 or over may join a party or a movement; however, he or she may join only one party or movement.’
2. The Law on municipal council elections
12. Paragraph 20(1) of zákon č. 491/2001 Sb., o volbách do zastupitelstev obcí a o změně některých zákonů (Law No 491/2001 on elections to municipal councils and amending certain laws) of 6 December 2001, as amended, (8) provides:
‘Registered political parties and political movements …, whose activities have not been suspended, as well as coalitions of those parties, independent candidates, associations of independent candidates or associations of political parties or political movements and of independent candidates, can constitute an electoral party under this law.’
3. The Law on European Parliament elections
13. Paragraph 21(1) of zákon č. 62/2003 Sb., o volbách do Evropského parlamentu a o změně některých zákonů (Law No 62/2003 on elections to the...
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