The Right to Participate in the European Elections and the Vertical Division of Competences in the European Union (original) (raw)

2020, European Citizenship under Stress

The right to vote and to run for the European elections predates de facto the creation of Union Citizenship with the Maastricht Treaty in 1992, since the Members of EU European Parliament have been elected by direct universal suffrage since 1976.4 However, the 1976 Act does not use the language of rights ("Elections shall be by direct universal suffrage and shall be free and secret"). By contrast, Art. 20(2) and 22 of the Treaty on the Functioning of the European Union (tfeu) provide that citizens of the EU enjoy, among others, the right to vote and to stand as candidates in elections of the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State. Therefore, the Maastricht Treaty constitutionalised the political rights of EU Citizens, which as such was a novelty. In any case, the right for EU Citizens to participate in the municipal elections of the Member State where they reside was undeniably something new in 1992. These new rights therefore constitute major improvements for the rights of Union citizens.5 In 2009, when the Charter of fundamental rights of the European Union came into force, these two Citizenship political rights became fundamental rights, enshrined in Art. 39 and 40. There is however a difference between the right to participate in municipal elections and the right to participate in European elections. Interestingly enough, the Court found that Art. 39 of the Charter not only contains a right to national treatment as regards European elections (just like Art. 40 contains a right to national treatment as regards municipal elections) but also an enforceable right to participate in European elections (ii). Furthermore, this right has a broad scope of application vis-à-vis Member States, since it is applicable to national electoral legislation, including in purely internal situations (iii). All this combined has the potential of blurring the distribution of powers between the European Union and the Member States in the field of election law (iv). Having explored these issues, I will then briefly offer a conclusion (v). ii An Enforceable Right to Participate in European Elections Art. 39 Charter contains not only, in its first paragraph, the right of EU citizens to vote and to stand as a candidate in elections of the European Parliament in 4 1976 Act concerning the election of the representatives of the Assembly by direct universal suffrage, annexed to the Decision 76/ 787/ ECSC, EEC, Euratom of the representatives of the Member States meeting in the council relating to the Act concerning the election of the representatives of the Assembly by direct universal suffrage.