EP v Préfet du Gers and Institut national de la statistique et des études économiques (INSEE).

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:449
• Date: 09 June 2022
• Docket Number: C-673/20
• Celex Number: 62020CJ0673
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

9 June 2022 (*)

(Reference for a preliminary ruling – Citizenship of the Union – National of the United Kingdom of Great Britain and Northern Ireland residing in a Member State – Article 9 TEU – Articles 20 and 22 TFEU – Right to vote and to stand as a candidate in municipal elections in the Member State of residence – Article 50 TEU – Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community – Consequences of the withdrawal of a Member State from the Union – Removal from the electoral roll in the Member State of residence – Articles 39 and 40 of the Charter of Fundamental Rights of the European Union – Validity of Decision (EU) 2020/135)

In Case C‑673/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal judiciaire d’Auch (Court of Auch, France), made by decision of 17 November 2020, received at the Court on 9 December 2020, in the proceedings

EP

v

Préfet du Gers,

Institut national de la statistique et des études économiques (INSEE),

interested party:

Maire de Thoux,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, K. Jürimäe, C. Lycourgos, E. Regan, S. Rodin, N. Jääskinen (Rapporteur), I. Ziemele and J. Passer, Presidents of Chambers, F. Biltgen, P.G. Xuereb, N. Piçarra, L.S. Rossi, N. Wahl and D. Gratsias, Judges,

Advocate General: A.M. Collins,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– EP, by J. Fouchet and J.-N. Caubet-Hilloutou, avocats,

– the French Government, by A.-L. Desjonquères, D. Dubois and T. Stéhelin, acting as Agents,

– the Romanian Government, by E. Gane and A. Wellman, acting as Agents,

– the Council of the European Union, by J. Ciantar, R. Meyer and M. Bauer, acting as Agents,

– the European Commission, by E. Montaguti, H. Krämer, C. Giolito and A. Spina, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 February 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 50 TEU, Articles 18, 20 and 21 TFEU, Articles 39 and 40 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 2, 3, 10, 12 and 127 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7), which was adopted on 17 October 2019 and entered into force on 1 February 2020 (‘the Withdrawal Agreement’), and the validity of that agreement.

2 The request has been made in proceedings between, on the one hand, EP, a United Kingdom national who has lived in France since 1984 and, on the other hand, the Préfet du Gers (Prefect of Gers, France) and the Institut national de la statistique et des études économiques (National Institute for Statistics and Economic Studies, France; ‘INSEE’), concerning the removal of EP from the electoral roll in France and the refusal to re-register her on the relevant special electoral roll.

Legal context

European Union law

The EU and FEU Treaties

3 Article 9 TEU provides:

‘… Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’

4 Article 50 TEU provides:

‘1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) [TFEU]. It shall be concluded on behalf of the Union by the Council [of the European Union], acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

…’

5 The first paragraph of Article 18 TFEU states:

‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

6 Article 20 TFEU provides:

‘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.

…’

7 Article 21(1) TFEU provides:

‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’

8 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. …

2. … 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. …’

The Charter

9 Article 39 of the Charter, entitled ‘Right to vote and to stand as a candidate at elections to the European Parliament’, provides in paragraph 1:

‘Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State.’

10 Under Article 40 of the Charter, entitled ‘Right to vote and to stand as a candidate at municipal elections’:

‘Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.’

The Withdrawal Agreement

11 The Withdrawal Agreement was approved on behalf of the European Union and the European Atomic Energy Community (EAEC) by Council Decision (EU) 2020/135 of 30 January 2020 (OJ 2020 L 29, p. 1).

12 The fourth, sixth and eighth paragraphs in the preamble to that agreement state:

‘Recalling that, pursuant to Article 50 TEU, in conjunction with Article 106a of the Euratom Treaty, and subject to the arrangements laid down in this Agreement, the law of the Union and of Euratom in its entirety ceases to apply to the United Kingdom from the date of entry into force of this Agreement,

…

Recognising that it is necessary to provide reciprocal protection for Union citizens and for United Kingdom nationals, as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement, and to ensure that their rights under this Agreement are enforceable and based on the principle of non-discrimination; recognising also that rights deriving from periods of social security insurance should be protected,

…

Considering that it is in the interest of both the Union and the United Kingdom to determine a transition or implementation period during which – notwithstanding all consequences of the United Kingdom’s withdrawal from the Union as regards the United Kingdom’s participation in the institutions, bodies, offices and agencies of the Union, in particular the end, on the date of entry into force of this Agreement, of the mandates of all members of institutions, bodies and agencies of the Union nominated, appointed or elected in relation to the United Kingdom’s membership of the Union – Union law, including international agreements, should be applicable to and in the United Kingdom, and, as a general rule, with the same effect as regards the Member States, in order to avoid disruption in the period during which the agreement(s) on the future relationship will be negotiated’.

13 Part One of that agreement, entitled ‘Common provisions’, includes Articles 1 to 8. Article 2(c) to (e) of that agreement provides:

‘For the purposes of this Agreement, the following definitions shall apply:

…

(c) “Union citizen” means any person holding the nationality of a Member State;

(d) “United Kingdom national” means a national of the United Kingdom, as defined in the New Declaration by the Government of the United Kingdom of Great Britain and Northern Ireland of 31 December 1982 on the definition of the term “nationals” together with Declaration No 63 annexed to the Final Act of the intergovernmental conference which adopted the Treaty of Lisbon;

(e) “transition period” means the period provided in Article 126’.

14 Part Two of the Withdrawal Agreement, entitled ‘Citizens’ rights’, contains Articles 9 to 39. Article 9(c) and (d) of that agreement provides:

‘For the purposes of this Part, and without prejudice to Title III, the following definitions shall apply:

…

(c) “host State” means:

(i) in respect of Union citizens and their family members, the United Kingdom, if they exercised their...