Is the right to vote ‘governed’ by EU Law?

Dr Iyiola Solanke

Voting is a civil right, guaranteed by international instruments for the protection of human rights as well as in primary EU law. Article 10 TEU sets out that elections are central to the democratic life of the Union; Under Article 14 (3) TEU MEPs are to be elected in free and secret ballots for a term of 5 years; under Article 20 TEU, EU citizens enjoy the right to vote and stand in EP elections. This is repeated in Article 39 CFR. In addition, Article 3 of Protocol 1 of the ECHR, protects the ‘free expression of the opinion of the people in the choice of the legislature’.  Given this, is the deprivation of the right to vote under national law compatible with EU law?

The Facts

Mr Delvigne was sentenced in 1988 to 12 years in prison for murder – under the French Criminal Code of 1810 this sentence also attracted loss of the right to vote. In 1992, the Code was updated to enable anybody subjected to deprivation of civil rights to apply for their reinstatement, either wholly or in part. According to French electoral law, any person so deprived of the right to vote was not to be registered on the electoral roll for the period set out in the judgment. Mr Delvigne lost his right to vote not only in national but also in European Parliament elections. He argued that this was a breach of the principle of equality set out in Article 39 CFR – French law stripped him of his rights as a Union citizen. Being unsure as to the answer, the national court referred two questions to the CJ.

A preliminary question in this request for a preliminary ruling was whether the CJ had jurisdiction under Article 51 (1) CFR – was French electoral law implementing EU law? France, Spain and the UK argued that there was no connection thus no CJ jurisdiction. However, Germany, the EP and the Commission disagreed: by adopting national provisions on the right to vote in elections to the EP, France was implementing its obligation under Article 14 (3) TEU. The AG and the Grand Chamber agreed – by ‘performing a specific obligation derived from EU law’ [AG,31] to ‘ensure that the election of Members of the European Parliament is by direct universal suffrage and free and secret’ [CJ, 32] France was implementing Union law.

However, the Grand Chamber narrowed its enquiry to Article 39(2) – it held that as Delvigne was a French citizen seeking the right to vote in France, Article 39(1) CFR –  an expression in the Charter of Article 20(2)(b) TFEU – did not apply. Yet as an expression of Article 14 (3) TEU, the CJ was

‘… clear that the deprivation of the right to vote to which Mr Delvigne is subject …represents a limitation of the exercise of the right guaranteed in Article 39(2) of the Charter’ [45]

Although Mr Delvigne won in relation to this principle, he lost upon its application – the Grand Chamber found that the limitation arising from the French Criminal Code respected the ‘essence’ of the right to vote in the Charter, was proportionate and necessary to meet genuine objectives of general interest. The national rule therefore was not precluded by Article 39(2) of the CFR.

Comment

Clearly, it is not only in the UK that certain criminal sanctions result in deprivation of the right to vote. However, there is a wide variation across the member states. This practice was considered by the ECtHR in Hirst – it declared that permanent deprivation is possible provided that it is not a general and automatic consequence and is applied in a non-discriminatory manner. Legislation, such as the blanket ban in the UK, that applies in an automatic and categorical manner is incompatible with Article 3 of Protocol 1. It may also be incompatible with Article 39(2) CFR.

The Grand Chamber is efficient in its reasoning to demonstrate its jurisdiction over this situation. It began by recalling that Article 52 (2) CFR ‘…provides that rights recognized by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties’ [40]. It then confirms in four short paragraphs that Art 39(2) is an expression in the Charter of the EU citizenship right to vote in Article 14(3) TFEU [44].

Thus in line with Hirst but contrary to the Supreme Court decision in Chester, Delvigne makes it clear that national electoral law can be linked to EU law. This means that any national law that precludes incarcerated populations from voting in European Parliamentary elections falls per se within the scope of EU law. As seen, however, compatibility with EU law depends upon the contents and application of the law: under French law, there existed a possibility for review of the permanent removal of the right to vote. In addition, the deprivation only applied to offences with a certain level of gravity alone and not a general category. Thus where a) the ban was dependent on the seriousness of the offence and b) the possibility existed for the ban upon application to be lifted, a national rule would be compatible with EU law.

The French ban differs considerably from the blanket permanent ban in the UK imposed by Section 3 RAP – the question therefore now arises whether the UK rule will be seen to be justified as a proportionate response under EU law.  Although French law did deprive Delvigne of his Union rights, this deprivation was not a denial of the right – the ban could be re-assessed in light of the person’s individual situation. The same cannot be said of a blanket ban. A door has been opened – it is just a question of time before the UK rule is challenged in Luxembourg.

The case also gives some interesting insight into the role of Article 51 CFR:

  1. The Grand Chamber will not always conduct the ‘link’ test. A second question on whether Delvigne’s sentence breached the non-retroactivity clause set out in Article 49 CFR was declared inadmissible by the AG, as no link with EU law was found [AG, 77 – 82]. The Grand Chamber, however, did not even discuss this question – it immediately considered and dismissed this aspect of the claim [53-57].
  2. The AG gives further clarification on application of the Charter (although it must be noted that the CJ itself is silent on this) – if EU law applies, the Charter applies. It is irrelevant how national law connects to EU law – a situation may be ‘governed’ by EU law due to a direct or indirect, partial or complete link. In Franssen, the link arose because the member state adopted measures to perform an obligation imposed by EU law; in Delvigne the link arose because the national electoral law was adopted due to the obligation in Article 14 (3) TEU to enable the election of MEPs as required by Article 223(1) TFEU.
  3. An area does not have to be ‘entirely determined’ [AG, 105] by EU law. Where a competence is shared, that is not ‘entirely determined’ by EU law, national authorities retain autonomy to apply national standards to protect fundamental rights so long as these compromise neither the level of protection required by the Charter nor the ‘primacy, unity and effectiveness’ of EU law [AG, 105].
  4. The only time that Article 51 is not satisfied is when the member state exercises power in a field completely outside the competence of the Union such as, for example, the penalty for murder. Such fields must therefore be very specific and will inevitably be narrowly drawn.

 

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