Opinion of the Advocate General — ECLI:EU:C:2024:12
Date: 2024-01-11
Language of the case: Czech
Procedure: Action for failure to fulfil obligations - successful
Origin: Czechia

summary of those pleas in law. Such a statement must be sufficiently clear and precise to enable the defendant to prepare his or her defence and the Court to rule on the application. It is therefore necessary for the essential points of fact and of law on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order sought to be set out unambiguously so that the Court does not rule ultra petita or fail to rule on a complaint; and – where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if that Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged. 34. In the present case, it is apparent from the grounds of the application, unambiguously and in line with the reasoned opinion, that Article 22 TFEU, on which it is based, must be interpreted by putting it into context and by taking into consideration the links to the Charter and, in particular, Article 12(1) thereof. 35. In that regard, the Commission has claimed that, in view of the central and fundamental role played by political parties in the Member States’ electoral systems and in order to participate in political life, a citizen of the Union cannot be deemed to be capable of standing in elections in his or her State of residence under the same conditions as the nationals of that State if he or she cannot stand as a member of a political party in that State, since that situation has a negative impact on the prospects of being elected. 36. It does not follow, therefore, that an infringement of Article 12(1) of the Charter is alleged. (14) 37. In addition, the ambiguity upon which the Czech Republic relies appears to be linked to its own analysis of the basis of the alleged failure to fulfil obligations, which in its opinion should be Article 18 TFEU. That is therefore a defence which that State has been able to put forward effectively and which must be examined on its merits and not when considering the admissibility of the action. 38. I therefore propose that the Court should dismiss this plea of inadmissibility. B. Substance 1. The basis of the action for failure to fulfil obligations (a) Arguments of the parties (1) The Commission 39. The Commission recalls that Article 20(2)(b) and Article 22 TFEU specifically require that ‘mobile’ Union citizens can stand as candidates in municipal elections or elections to the European Parliament ‘under the same conditions’ (15) as nationals. It accepts that Article 22 TFEU does not specify the various specific arrangements in accordance with which equal treatment is to be guaranteed, but it considers that that provision lays down a general and universal obligation of equal treatment. That obligation requires Member States, without there being an exhaustive list of requirements, including that relating to membership of a political party, to ensure that the existing rules enable citizens of the Union to vote and stand as candidates in municipal elections and elections to the European Parliament under the same conditions as their nationals. 40. Thus, in order to find that that obligation is actually fulfilled, it is necessary to examine whether legal or factual obstacles exist in a Member State which make it impossible or difficult for ‘mobile’ Union citizens to avail themselves of one of the forms of candidacy formally available under national law. (16) 41. The Commission also relies on the case-law of the Court to the effect that, first, although it is currently for the Member States to regulate matters relating to elections to the European Parliament which are not harmonised at Union level, they are required, in so doing, to comply with EU law. (17) Secondly, a national measure which could restrict the exercise of the fundamental freedoms guaranteed by the Treaty can be justified in the light of EU law by the public interest only if that measure is compatible with the fundamental rights guaranteed by EU law. (18) 42. In that regard, it claims that limitations on the exercise of the right to found a political party and the right to become a member of a political party clearly constitute limitations on the fundamental right of the freedom of association set out in Article 12(1) of the Charter, the wording of which corresponds to Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms. (19) 43. The Commission considers that, given the central and fundamental role played by political parties in the Member States’ electoral systems, a citizen of the Union cannot be deemed capable of standing in elections in his or her State of residence under the same conditions as the nationals of that State if he or she cannot stand as a member of a political party in the State in question. 44. Accordingly, it argues that: – in all Member States, political parties remain an essential form of participation in political life and the most commonly used means of taking part in elections as candidates; and – the importance of political parties has thus been acknowledged in the case-law of the European Court of Human Rights (20) and emphasised in the Guidelines on Political Party Regulation of the European Commission for Democracy through Law (Venice Commission). (21) 45. The Commission adds that the grounds set out in Article 11(2) ECHR which can justify a restriction on the exercise of the freedom of association, grounds to which reference must be made pursuant to Article 52(3) of the Charter, are clearly inapplicable in the present case. 46. In response to the arguments put forward relating to the limited scope of Article 22 TFEU in connection with the competence of Member States in matters of political activity, (22) the Commission submits, first, that the scope of Directives 93/109 and 94/80, which govern administrative and procedural matters relating to the electoral rights at issue, does not diminish the effect of the prohibition of any discrimination on grounds of nationality arising from Article 22 TFEU. That scope cannot serve as the basis of or a ground for a restrictive interpretation of the effect of primary law. (23) Moreover, such a line of reasoning would mean having to accept discrimination in relation to other rules, such as those on electoral campaigns concerning, for example, meetings or signage. Nor can the Czech Republic infer from the judgment in Eman and Sevinger (24) that it concerns the electoral rights of nationals of other Member States. 47. Secondly, the Commission contests that restrictions on the political activities of nationals of other Member States is permissible under Article 16 ECHR (25) and points out that account must now be taken of the concept of ‘citizenship of the Union’ and of the rights associated with it. The Commission recalls, in that regard, that it does not contest that Member States can adopt measures intended to restrict the participation of ‘mobile’ Union citizens in national general elections, but insists that the scope of the measures adopted cannot extend as far as undermining the equality of the conditions under which those citizens participate in municipal elections and elections to the European Parliament. It also observes that no Member State, with the exception of the Czech Republic and one other Member State, provides for such a restriction. 48. Thirdly, with regard to the constitutional aspect of limiting participation in political parties on account of their national significance, as justified by the Czech Republic’s reference to the judgment of the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic), (26) the Commission observes that paragraph 9 of that judgment expressly states that the subject matter of the proceedings was the decision to amend the articles of association of the party concerned and not an ‘alleged infringement of the rights of citizens of the Union … regarding the conditions for their participation in elections to the European Parliament and in municipal elections’. In addition, as regards the interpretation of the Listina základních práv a svobod (Charter of Fundamental Rights and Freedoms), which forms part of the constitutional order of the Czech Republic, by the Nejvyšší správní soud (Supreme Administrative Court), according to which the membership of persons who are not Czech citizens is prohibited, the Commission notes that the Ústavní soud (Constitutional Court, Czech Republic) has not ruled on such an interpretation and that it is the subject of differing legal views. (27) (2) The Czech Republic 49. According to the Czech Republic, Article 22 TFEU does not cover the question of membership of a political party. It relies, in the first place, on the origin and the consistency of the content of that provision. (28) From their initial incorporation into primary law in Article 8b EC, as amended by the Treaty of Maastricht, up until the Treaty of Lisbon, by virtue of which they are included in Article 22 TFEU, the electoral rights of ‘mobile’ Union citizens have been set out in the same terms. 50. In the second place, the Czech Republic argues that its interpretation follows from the wording of Article 22 TFEU and from the intention of the EU legislature as unambiguously expressed in the recitals of Directives 93/109 and 94/80. (29) The objective is to remove any condition of nationality in order to exercise the right to vote and to stand as a candidate, and no other aspects are relevant, including the conditions for membership of a political party. (30) In addition, the EU legislature has expressly stated that, in such matters, account must be taken of the principle of proportionality. 51. In the third place, the Czech Republic states that the EU legislature thus clarified in Article 22 TFEU that the rights to vote and to stand as a candidate at issue are to be exercised ‘subject to detailed arrangements adopted by the Council’. (31) Those arrangements are precisely the ones set out in Directives 93/109 and 94/80, which make no allusion whatsoever to the possibility of the right laid down in Article 22 TFEU having any impact at all on the conditions for membership of a political party. 52. In the fourth place, the scope of Article 22 TFEU, as thus restricted, and of the EU implementing legislation is entirely consistent with Article 4(2) TEU, (32) under which the Union is to respect the national identity of the Member States, which is inherent in their fundamental structures, both political and constitutional. Legislation relating to the functioning of political parties forms the cornerstone of such structures (33) and Article 16 ECHR also acknowledges that the Contracting Parties may impose restrictions on the political activity of aliens. In that regard, Article 22 TFEU constitutes an exception which cannot be interpreted broadly as covering any political activity. (34) The Commission’s reference to the number of Member States which have not adopted such a position is irrelevant. 53. Moreover, it follows from the case-law of the European Court of Human Rights, cited by the Commission, that political parties are fundamental for elections at the national level. However, as the Commission acknowledges, EU law does not apply at that level. 54. Lastly, the right of Member States to allow only their nationals to participate in what is the key platform for national political activity, namely political parties, is directly linked to the possibility of restricting candidacies in elections to the legislature, which is accepted by the Commission, and to that of excluding ‘mobile’ Union citizens from posts on the executive bodies of local authorities, in accordance with Article 5(3) of Directive 94/80. 55. In its rejoinder, the Czech Republic supplements its argument that the material legal basis of the present action should be Article 18 TFEU. (35) First, it infers from the judgment in Eman and Sevinger (36) that it is that article that applies to questions falling within the scope of EU law, from the perspective of possible discrimination on grounds of nationality, such as, for example, election advertising. 56. Secondly, the Czech Republic takes the view, in accordance with the case-law of the Court, that in choosing the applicable provision of EU law, between that laying down the general prohibition on discrimination and the special provisions of primary law, it is essential to ascertain whether the person concerned has acquired a ‘status’, (37) provided for in a special provision, (38) such as, inter alia, the status of worker within the meaning of Article 45 TFEU or that of established person for the purposes of Article 49 TFEU. 57. It is therefore the view of the Czech Republic that Article 22 TFEU applies to a ‘mobile’ Union citizen only if he or she obtains the status of voter or candidate in an election. The status of candidate cannot depend on membership of a political party since such membership does not guarantee that the person concerned will be included in a list of candidates. (39) (b) Assessment 58. This action concerns the consequences for the ability to stand as a candidate in municipal elections and elections to the European Parliament resulting from the right to become a member of a political party, which, under Czech law, is not granted to ‘mobile’ Union citizens. Does that prohibition have the effect, as the Commission submits, that those citizens do not exercise their right to stand as candidates in those elections ‘under the same conditions’ as Czech nationals, within the meaning of Article 22 TFEU? 59. As EU law currently stands, membership of a political party is a matter falling within the competence of the Member States. However, it is clear from the settled case-law of the Court that, when exercising their competence, Member States are required to comply with the obligations deriving from EU law. (40) 60. It is therefore necessary to determine which requirements flow from Article 22 TFEU, upon which the Commission relies. 61. According to its wording, the scope of Article 22 TFEU is restricted only to those elections to which it refers, namely municipal elections (paragraph 1) and elections to the European Parliament (paragraph 2), thereby excluding legislative or presidential elections. 62. By this action, the Court is asked to clarify whether the principle of equality set out in Article 22 TFEU must be understood as covering all the conditions under which any ‘mobile’ Union citizen may stand in elections or whether it is concerned only with the legal conditions to stand as a candidate. 63. It is therefore necessary to define the scope of the discretion afforded to the Member States, given that the detailed arrangements for the exercise of the right to vote and to stand as a candidate in elections to the European Parliament (41) and in municipal elections are laid down, respectively, in Directives 93/109 and 94/80. 64. The Czech Republic’s argument based on a literal interpretation of Article 22 TFEU, to the effect that those directives restrict the principle of equality set out in that provision, must be dismissed from the outset because of the hierarchy of norms, as rightly submitted by the Commission, under which secondary law cannot restrict a right recognised by the Treaty. (42) 65. Thus, those directives simply determine a minimum framework within which concrete effect is given to the principle of equality in connection with the exercise of the right to vote and to stand as a candidate. (43) 66. However, first and foremost, the origin of Article 22 TFEU and the development of the legal framework of which the content of that provision forms part demonstrate, most clearly since the Treaty of Lisbon, that that provision must be interpreted by taking into account the two pillars upon which it is based, that is to say, citizenship of the Union and representative democracy. 67. With regard, in the first place, to citizenship of the Union, the Commission rightly relies on the application of Article 20(2)(b) TFEU, which states that that citizenship (44) affords, amongst other rights, enjoyment of the right to vote and to stand as a candidate in elections to the European Parliament and in municipal elections in the Member State of residence, under the same conditions as the nationals of that State. 68. That connection with citizenship has existed in primary law since the Treaty of Maastricht, signed on 7 February 1992. (45) From its inception, it has been attached to the right to move and reside freely within the territory of the Member States (46) and to the principle of non-discrimination on grounds of nationality, which is a component of each of the freedoms of movement. 69. However, that connection took on a specific dimension as a result of the amendments introduced by the Treaty of Lisbon because of the will of the Member States inter alia to give pre-eminent status to citizenship. First, the EU Treaty was supplemented by a Title II, entitled ‘Provisions on democratic principles’, which includes Article 9, under which, ‘in all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. 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’. The rights attached to citizenship of the Union are set out in Articles 20 to 24 TFEU, which correspond to Articles 17 to 21 EC. The rights of ‘mobile’ Union citizens in respect of elections to the European Parliament and municipal elections are laid down in Article 20(2)(b) and Article 22 TFEU. 70. Secondly, each of those rights also appears in Title V of the Charter, (47) entitled ‘Citizens’ rights’. The rights of ‘mobile’ Union citizens in respect of elections to the European Parliament as well as municipal elections are enshrined in that title, in Articles 39 (48) and 40 (49) thereof, in general terms. 71. Accordingly, on the entry into force of the Treaty of Lisbon, the electoral rights of citizens of the Union set out in Article 22 TFEU must be viewed as fundamental rights and as the expression of the principle of equal treatment, which is inherent in the fundamental status of nationals of the Member States. (50) 72. Their restatement in the EU Treaty and in the Charter is also intended to establish links with other rights or principles set out therein, such as equality and democracy, which are values common to the Member States upon which the European Union is founded. (51) 73. With regard, in the second place, to democratic principles, since the Treaty of Lisbon, Article 10 TEU has stated, in paragraph 1, that ‘the functioning of the Union shall be founded on representative democracy’ (52) and has recognised, in paragraphs 2 and 3, the right of Union citizens to be represented directly in the European Parliament and to participate in the democratic life of the European Union. 74. Thus, given the link effected by the Treaty of Lisbon, at least in relation to elections to the European Parliament, between the rights to vote and to stand as a candidate attached to citizenship of the Union and democratic principles within the Union, the objective of guaranteeing that ‘mobile’ Union citizens are effectively represented is clearly expressed. 75. The Commission rightly argues that such representation is the corollary to the integration of ‘mobile’ Union citizens in their State of residence, as is made clear in the recitals of Directives 93/109 and 94/80. (53) At the local level more specifically, the political rights granted to such citizens are intended to promote the social inclusion of those citizens who have chosen to reside in a Member State of which they are not nationals. With that in mind, attention must likewise be drawn to the objective recalled in those recitals, that is to say, the objective of ‘avoid[ing] any polarisation between lists of national and non-national candidates’. 76. I am therefore of the view that the Commission is entitled to claim, on the basis of Article 22 TFEU, as viewed in the context of the rights attached to citizenship of the Union and the democratic principles set out in the Treaties, that equality of the electoral rights enjoyed by citizens of the Union must be guaranteed, without it being necessary to draw up an indicative, or exhaustive, list of criteria, by the general obligation not to discourage participation in elections by reason of various factors. (54) 77. In other words, Article 22 TFEU must be understood to the effect that any barrier to the exercise of electoral rights outside the respective framework determined by Directives 93/109 and 94/80, on grounds of nationality, constitutes discrimination within the scope of the Treaties, (55) which is prohibited. 78. Since the national measures at issue must be examined having regard to those specific rules on non-discrimination laid down by the FEU Treaty, Article 18 of that treaty, upon which the Czech Republic relies, is not applicable, in accordance with the settled case-law of the Court. (56) In addition, there is no need to establish any specific ‘status’ for the purpose of implementing Article 22 TFEU, since the equality of rights in electoral matters flows from the status of citizen of the Union. (57) 79. In those circumstances, consideration must now be given to the Commission’s analysis that the exercise of those rights can be hindered by it being impossible to become a member of a political party. 80. In the present case, the parties to the proceedings agree with the finding that the prospects of securing elected office at local or EU level depend upon the degree of participation in the democratic life of the Member State in which the ‘mobile’ Union citizens are candidates, regardless of whether they are candidates of a party or independents. 81. However, I am of the view, like the Commission, which relies on the Venice Commission Guidelines, (58) which the Czech Republic does not criticise, that access to the resources available to political parties is a key component in promoting candidates at elections (59) at the municipal level or to the European Parliament. 82. In addition, as the Commission has argued, relying on the case-law of the European Court of Human Rights, political parties play a fundamental role in the exercise of political rights in the Member States. (60) At EU level, that role is clearly acknowledged in Article 10(4) TEU, (61) to which Article 12(2) of the Charter corresponds. (62) 83. There is a manifest link between Article 12(2) of the Charter and Articles 39 and 40 thereof. (63) In those circumstances and for the reasons which I have already set out, (64) and in strict compliance with the principle of conferral, as laid down in Article 15(2) TEU, each Member State must take account of those provisions, in order to guarantee the exercise of the rights conferred by Article 22 TFEU. 84. Accordingly, I share the Commission’s view that its action based on Article 22 TFEU must be assessed in the light of the right to freedom of association enshrined in Article 12(1) of the Charter, in conjunction with Article 11 thereof (65) on the freedom of expression. Those freedoms enjoy particular protection on account of their fundamental role in citizens’ participation in democracy. (66) Article 12(2) of the Charter contains an aspect of that link relating to EU political parties. 85. That right to freedom of association corresponds to the right guaranteed in Article 11(1) ECHR and must therefore be regarded as having the same meaning and scope as the latter, in accordance with Article 52(3) of the Charter. (67) 86. It is apparent from the case-law of the European Court of Human Rights that the right to freedom of association is one of the essential foundations of a democratic and pluralist society, in that it allows citizens to act collectively in areas of common interest and, in so doing, to contribute to the proper functioning of public life. (68) 87. Thus, it is also in the light of those provisions of the EU Treaty and of the Charter that it is necessary to assess whether, as the Commission submits, the legal impossibility for ‘mobile’ Union citizens to become members of a political party in the Czech Republic jeopardises the equality, as compared to Czech nationals, of the conditions governing their ability to stand as candidates in municipal elections and elections to the European Parliament, in particular in so far as it significantly reduces their prospects of being elected. 2. The existence of a limitation on the exercise of electoral rights (a) Arguments of the parties (1) The Commission 88. Specifically, the Commission points to three kinds of advantages offered by membership of a political party when standing in elections. 89. First, candidates who are members of an established political party can benefit from the traditions, image and socio-organisational structures associated with that party. The Commission insists that, regardless of the individual, the name of the party alone is enough to characterise certain values or approaches to policy. 90. Secondly, those candidates are able to benefit from the electoral machinery and the resources of political parties. Thus, they support the candidates standing for elections through their experience, infrastructure and specific operating procedures (for example, networks, the media and communication systems). 91. Thirdly, since political parties are recognised political actors, they often enjoy, as a matter of national law, specific privileges, such as financial advantages, a special tax scheme and access to the media. With regard to financing in the Czech Republic, the Commission relies on a number of provisions relating to parties. (69) 92. Accordingly, in the Commission’s view, unlike citizens who are members of established political parties, ‘mobile’ Union citizens, who are obliged to stand as independent candidates in the Czech Republic, have to establish and exert their own political identity, and develop their own organisation with a view to conducting an election campaign, without any particular privileges in access to funding and to the media. 93. In addition, the Commission points to several difficulties relating to lists for independent candidates. It explains that, at municipal elections, only independent candidates have to submit a petition signed by voters supporting their candidacy. The number of such signatures required depends on the size of the local authority in which the candidate is standing. (70) 94. In addition, the Commission takes the view that it is undeniable that, when it comes to their inclusion on a political party’s list, independent candidates are in a weaker position than candidates who are members of that party, since they are dependent upon the party’s decision to include them on its list and to determine their position on that list, without being able to exert any influence at all within the party concerned. 95. It also points out that account must be taken of the fact that the lists of candidates and the ballot papers state whether a person is standing as an independent or ‘non-party member’ on a political party’s list. In those circumstances, as far as concerns the choice of political priorities or orientation, independent candidates enjoy less credibility than a party member, who can point voters to his or her active role within his or her party. (71) 96. Lastly, the Commission refers to the finding made by the Kancelář Veřejného ochránce práv (Czech Office of the Public Defender of Rights) that ‘mobile’ Union citizens are placed at a disadvantage during elections and to its opinion on the direct discrimination suffered by such citizens in elections to the European Parliament by virtue of the nomination of candidates by political parties only. (72) 97. In its reply, the Commission disputes any argument based on electoral practices. In the first place, it recalls that the difference of treatment has its origin in the law at issue, under which a Czech national may choose to become a member of a political party and represent that party at elections, or to remain independent and potentially accept an offer to be included as a ‘non-member’ candidate on the list of a political party who may approach him or her, whereas a ‘mobile’ Union citizen does not have that option and can only stand as an independent or hope to receive an offer from the political party which he or she would have liked to join to assign him or her the status of ‘non-member’ candidate. 98. In the second place, as regards the burden of proof, the Commission takes the view that, in the case of de jure discrimination such as that relied on, there is no need, in order to establish an infringement of EU law, to provide the Court with statistical data on the number of ‘mobile’ Union citizens who have in practice been harmed by such direct discrimination. It adds that it is virtually impossible to identify those situations in which ‘mobile’ Union citizens have been deterred from standing at elections because they are unable to join a political party. (73) 99. In the third place, the Commission considers that the statistical data provided by the Czech Republic (74) are irrelevant in the case of de jure discrimination. In so far as those data vaguely or indirectly relate to such discrimination, they tend to confirm the Commission’s position. The Commission states, in that regard, that those statistics relate in general terms to ‘people with no political affiliation’, it not being possible to identify how many of them are ‘mobile’ Union citizens whose position is covered by these proceedings. In addition, its detailed examination of those data leads it to observe, in the main, in relation to elections to the European Parliament, that: – almost two thirds of candidates stood for a political party; – in three of the four elections to the European Parliament, there are fewer elected members among independents than among members of political parties; and – independent candidates elected to the European Parliament are very often individuals who are very well known and popular. (75) 100. With regard to municipal elections, the Commission agrees that familiarity with well-known local individuals more readily shapes the choice of voters. However, it considers that this shows that ‘mobile’ Union citizens in particular have a greater need to join a political party in order to have the best prospects of being elected. (2) The Czech Republic 101. After again stating that this action does not concern the legal conditions for exercising electoral rights, the Czech Republic observes, first of all, that people who are not members of a political party are fully able to benefit from the advantages detailed by the Commission in its application by appearing on the list of candidates of any party whatsoever, and that this is a common practice in that country. (76) 102. Next, the Czech Republic states that the infringement upon which the Commission relies is based on unsubstantiated suppositions and allegations. (77) In addition, the explanations about the situation on the ground locally, which were provided as early as the pre-litigation stage, have not been taken into consideration by the Commission, even though they demonstrate that the Commission is wrong to claim that independent candidates are unquestionably in a weaker position. 103. The Czech Republic produces a variety of concrete evidence as proof that ‘persons with no political affiliation’ are regularly the lead candidates on the lists of the major political parties in the Czech Republic, that they are often elected and go on to hold important offices in the institution to which they have been elected. (78) That Member State therefore concludes that a candidate’s success at elections is not dependent on his or her being a member of a political party, but rather on factors such as his or her opinions and personality. (b) Assessment 104. In the Czech Republic’s view, which is supported by the Republic of Poland, the Commission has failed to adduce evidence of the practical effects of the legal provisions at issue on the ability of ‘mobile’ Union citizens to stand for election. 105. The Court has held that the existence of a failure to fulfil obligations may be proved, where it has its origin in the adoption of a legislative or regulatory measure whose existence and application are not contested, by means of a legal analysis of the provisions of that measure. (79) 106. In the present case, the failure to fulfil obligations for which the Commission holds the Czech Republic responsible has its origin in the adoption of a legislative measure whose existence and application are not contested by that Member State and whose provisions are the subject of a legal analysis in the application initiating proceedings. 107. In addition, the issue here involves assessing to what extent that legislation has deterrent effects on potential candidacies at elections, which cannot be quantified. 108. Accordingly, the Czech Republic is not justified in alleging that the Commission has failed to adduce evidence of the practical effects, on the electoral rights of ‘mobile’ Union citizens, of the law which restricts membership of a political party to Czech nationals. 109. Turning to the Czech law at issue, which reserves the right to become a member of a political party to Czech nationals, the unequal treatment vis-à-vis electoral rights stems, in my view, from the mere finding that Czech nationals have an option open to them when standing as candidates in municipal elections or elections to the European Parliament, that is to say, they can stand as members of a political party or as independents, whereas only the latter pathway is available to ‘mobile’ Union citizens. As I have previously set out, access to political parties allows electoral rights to be exercised more effectively with a view to participating in democratic life. 110. None of the palliative measures to which the Czech Republic refers can alter that assessment. In particular, the fact that ‘mobile’ Union citizens may be allowed to be candidates on a party’s list is not such as to offset that limitation of their scope of action, since they are required to satisfy specific criteria, as the Commission has set out. 111. In addition, like that institution, even assuming that this action can be assessed on the basis of the figures and detailed information on elected candidates provided by the Czech Republic, (80) I take the view that those figures and that information are incapable of demonstrating that ‘mobile’ Union citizens are treated equally. It is true that the statistics do shed light on local situations specific to municipal elections. However, relevant conclusions cannot be drawn from those statistics as regards the position of ‘mobile’ Union citizens, which is the subject matter of this case. First, it is clear from the examples provided that candidates who are not party members and are elected to the European Parliament are mostly (if not exclusively) Czech nationals. Secondly, account must be taken of the difficulties which must be overcome if a candidate does not belong to a political party, in particular those relating to inclusion on the lists of candidates, which are the direct result of legal provisions deemed ‘discriminatory’ by the authors cited by the Commission. (81) 112. I therefore propose that the Court find that the Commission has sufficiently established the existence of a limitation on the exercise of electoral rights to the detriment of ‘mobile’ Union citizens when placed in the same position as Czech nationals. 113. It follows from the foregoing that, by adopting the national provisions at issue in the exercise of its competence, the Czech Republic has failed to comply with the requirements arising under EU law, namely those in Article 22 TFEU, which must be read in conjunction with Articles 12, 39 and 40 of the Charter. 3. The justification for the restriction on membership of a political party (a) Arguments of the parties (1) The Commission 114. In the first place, the Commission is of the view that the Court must reject the Czech Republic’s argument that the restriction on membership of a political party imposed on ‘mobile’ Union citizens is justified by the need to protect domestic political affairs from ‘interference’ from such citizens, which would result from membership of a political party, within which significant decisions are taken in relation to elections to the legislature. (82) 115. It considers that justification to be directly at odds with the fundamental spirit and the purpose of the Treaty provisions on citizenship. The political rights laid down in those provisions are specifically intended to ensure that ‘mobile’ Union citizens can be integrated into and play an active political role in their Member State of residence in municipal and European Parliament elections. 116. In that regard, the Commission observes that the obligation to ensure equal treatment provided for in Article 20(2)(b) and Article 22 TFEU, which must be interpreted in the light of Articles 11 and 12 of the Charter, which guarantee participation in political parties, by no means prevents Member States from restricting the ability to stand as candidates in elections to the legislature or to regional territorial authorities to persons who are nationals of the host Member State. 117. In the second place, in response to the argument concerning the protection of national identity, based on Article 4(2) TEU, in that the functioning of and the free competition between political parties are enshrined in the Ústava (the Constitution), the Commission recalls that that provision must be interpreted in accordance with the other Treaty provisions with which Member States have undertaken to comply by acceding to the Union, including Article 22 TFEU, which does not apply to elections to the legislature. (83) The electoral rights of ‘mobile’ Union citizens cannot therefore be regarded as prejudicial to the principle of respect for national identity. 118. In the third place, with regard to the objection raised by the Czech Republic that the Commission has not specified a less restrictive measure which would allow the objective pursued to be attained, the Commission doubts that a Member State can justify a national measure which derogates from the requirements of Article 20(2)(b) and Article 22 TFEU and directly discriminates on the basis of nationality. In addition, it is for that Member State to justify the proportionality of its measures. (84) 119. Furthermore, the Commission observes that, during the pre-litigation procedure, the Czech Republic failed to demonstrate – in particular in the circumstances of the present case – the existence of a public interest specific to the prohibition of ‘mobile’ Union citizens from joining a political party. It infers from that fact that neither the objective pursued nor the necessity or proportionality of that prohibition has been explained. 120. Moreover, in its reply, with regard to the ‘fundamental principle of the equality of the members of a political party’ invoked by the Czech Republic, the Commission argues that it is completely wrong and inconsistent to consider that it is disproportionate discrimination to set the level of participation of citizens of the Union in political parties such that it reflects their political rights under EU law, including, for example, a limit on their involvement in certain political party decisions, and, on the contrary, to view the absolute prohibition on ‘mobile’ Union citizens from joining a political party as proportionate discrimination. (2) The Czech Republic 121. The Czech Republic raises the following three arguments: ‘First, the national legislation concerned pursues the legitimate objective of reserving participation in a key platform for political activity at the national level to Czech citizens, which is entirely consistent with Article 4(2) TEU... This is, moreover, acknowledged by the Commission in essence in the reasoned opinion … Secondly, allowing only Czech citizens to join a political party is an appropriate measure to achieve that objective, because it goes directly to the substance of that objective. Thirdly, the national legislation is proportionate. It does not affect the substance of electoral rights under Article 22 TFEU because it in no way alters the comprehensive active and passive electoral rights enjoyed by mobile Union citizens … and, in practice, allows those rights to be exercised fully … That being the case, the legislation at issue is wholly consistent with the case-law cited by the Commission …’ (85) 122. The Czech Republic explains that the legitimate objective concerned cannot by achieved by a less restrictive measure because it is inconceivable for ‘mobile’ Union citizens to be allowed to join a political party simply to take part in a marginal share of political activity, confined to municipal and European Parliament elections. It takes the view that legislation to that effect would be contrary to the fundamental principle of the equal treatment of the members of a political party. In addition, it would not afford those citizens the strong position in the political party which the Commission wrongly considers to be necessary. The Czech Republic observes that the Commission has not itself been able to state what measure could, in that regard, be deemed less restrictive. (3) The Republic of Poland, intervener 123. With regard to the limitation of the field of activities of ‘mobile’ Union citizens within political parties, as envisaged by the Commission, the Republic of Poland argues that ‘membership’ of a political party covers a much broader spectrum of activities than those that precede certain elections. They are tied up with the influence exerted over national policy, including political areas which remain the exclusive competence of the Member States. There is no obligation on a Member State to allow those citizens to influence the results of parliamentary or presidential elections via the party system. (b) Assessment 124. The arguments raised by the Czech Republic lead me to clarify in which circumstances a restriction of the principle of equal treatment set out in Article 22 TFEU could be justified. 125. That Member State relies on Article 4(2) TEU and contends, in essence, that EU law as interpreted by the Commission would mean that ‘mobile’ Union citizens would participate in public life at a different level from that allowed by the Member States and, in particular, would enable them to exercise influence over national decisions through the vector of political parties. 126. It should be recalled that, under Article 4(2) TEU, the Union is to respect the national identity of its Member States, which is inherent in their fundamental structures, both political and constitutional. 127. It is true that the organisation of national political life, to which political parties contribute, is part of the national identity within the meaning of Article 4(2) TEU. In that regard, respect for that identity is expressed by limiting the participation of ‘mobile’ Union citizens to elections to the European Parliament and municipal elections only, with no aim of harmonising Member States’ electoral systems. (86) The EU legislature also took into consideration the impact of facilitated access to such elections on the balance of political life in the Member State of residence by providing that certain defined (87) and transitional arrangements may be adopted by Member States in favour of their nationals. 128. As for the question of the impact at national level of ‘mobile’ Union citizens becoming members of political parties owing to the potential effects within those parties, I would observe that, in the view of all the parties to these proceedings, that is a matter for those political parties. They are free to establish their organisation and rules for selecting candidates. (88) I would note that the Czech Republic merely asserts, without proving its assertion, that it is impossible to limit the scope of activities of party members who are ‘mobile’ Union citizens to certain elections. 129. I therefore share the Commission’s view that allowing ‘mobile’ Union citizens to become members of a political party with a view to guaranteeing that those citizens’ rights are effective in municipal and European Parliament elections is not such as to undermine the Czech Republic’s national identity. 130. In addition, assuming that such harm were established, Article 4(2) TEU must be read taking into account provisions of the same rank. (89) 131. Accordingly, Article 4(2) TEU cannot exempt Member States from respecting the fundamental rights reaffirmed in the Charter, (90) which include the principle of democracy and the principle of equality, which is set out in Article 22 TFEU (91) and conferred by citizenship of the Union, in connection with the exercise of the right to stand as a candidate in municipal elections and elections to the European Parliament. Those principles form part of the founding values of the European Union. (92) 132. Moreover, given the Czech Republic’s arguments concerning the proportionality of the contested national legislation, it should be added that a justification for a limitation of the rights conferred by Article 22 TFEU may be examined only under the conditions laid down in that provision. 133. The electoral rights recognised in Articles 39 and 40 of the Charter are the subject of specific provisions in the FEU Treaty, namely Article 22. The only amendments to the exercise of those rights provided for in the secondary law to which that article refers (93) are concerned simply with the legal conditions to vote or to stand as a candidate. (94) 134. In the light of all those considerations, I propose that the Court should find that the Commission’s action is well founded. VI. Costs 135. Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since I consider that the Court should grant the form of order sought by the Commission, the Czech Republic should be ordered to pay the costs. 136. In accordance with Article 140(1) of the Rules of Procedure, the Republic of Poland should bear its own costs. VII. Conclusion 137. In the light of the foregoing considerations, I propose that the Court should rule as follows: (1) By denying citizens of the Union who are not Czech nationals but who are resident in the Czech Republic the right to become members of a political party or political movement, the Czech Republic has failed to fulfil its obligations under Article 22 TFEU. (2) The Czech Republic is ordered to pay the costs. (3) The Republic of Poland shall bear its own costs. VIII. Annex I: The rules on the financing of political parties provided by the Commission 138. Political parties which have obtained at least 1% of the votes at elections to the European Parliament receive 30 Czech koruny (CZK) (approximately EUR 1.20) for each vote as a contribution to electoral expenses (Paragraph 65 of the Law on European Parliament elections). 139. Political parties which obtain at least 1.5% of the votes in elections to the Poslanecká sněmovna (Chamber of Deputies, Czech Republic) receive CZK 100 (approximately EUR 4) for each vote as a contribution to electoral expenses (Paragraph 85 of Law No 247/1995 on elections to the Parliament of the Czech Republic and amending and supplementing certain laws). 140. Political parties which secured 3% of the votes at the most recent elections to the Chamber of Deputies also receive an annual contribution from the State of CZK 6 000 000 (approximately EUR 245 430) for the party or movement; at the same time the party or movement receives CZK 200 000 (approximately EUR 8 180) per annum for each 0.1% of additional votes (Paragraph 20(6) of the Law on Political Parties). 141. If a party or movement obtains more than 5% of the votes, the contribution does not increase and the party or movement receives CZK 10 000 000 (approximately EUR 409 000) (Paragraph 20(6) of the Law on Political Parties). 142. Political parties also receive an annual contribution of CZK 900 000 (approximately EUR 36 800) for the term of office of a member of the Chamber of Deputies or of the Senate, and CZK 250 000 (approximately EUR 10 200) for the term of office of a member of the regional council and of a member of the municipal council of Praha (Prague) (Paragraph 20(7) of the Law on Political Parties). 143. Subject to certain conditions, political parties and movements also receive an annual contribution to support the activities of a political institute, equating to 10% of the total amount of the contribution to the activities of such a party or movement (Paragraph 20(5) and (8) of the Law on Political Parties). 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 144. Elections to the European Parliament were held in the Czech Republic in 2004, 2009, 2014 and 2019. 1. The proportion of candidates with no political affiliation on the lists of the political parties or political coalitions was as follows: (a) in 2004, 37.22% of candidates had no political affiliation; (b) in 2009, 38.28% of candidates had no political affiliation; (c) in 2014, 30.27% of candidates had no political affiliation; and (d) in 2019, 33.89% of candidates had no political affiliation. 2. The following persons were elected: (a) in 2004, seven candidates with no political affiliation, or 29.17% of those elected in the Czech Republic; (b) in 2009, one candidate with no political affiliation, or 4.55% of those elected in the Czech Republic; (c) in 2014, eight candidates with no political affiliation, or 38.10% of those elected in the Czech Republic; and (d) in 2019, four candidates with no political affiliation, or 19.05% of those elected in the Czech Republic. 3. Candidates with no political affiliation were often at the top of the lists of candidates, including for the major political parties. Specifically: (a) in 2004, three such candidates were elected as Members of the European Parliament on the party list of the Sdružení nezávislých a evropští demokraté (Union of Independents and European Democrats) (SNK), including the lead candidate, Mr Zieleniec, and Ms Hybášková, who was second on the list; there was also Mr Remek, who was second on the list of candidates of the Komunistická strana Čech a Moravy (Communist Party of Bohemia and Moravia) (KSČM); (b) in 2009, Mr Remek was second on the list of candidates of the KSČM; (c) in 2014, this was the case with the lead candidate on the party list of TOP 09 a Starostové (Top 09 and Mayors), Mr Niedermayer, as well as Mr Pospíšil, who was second on that list, and Mr Keller, the lead candidate on the list of the Česká strana sociálně demokratická (Czech Social-Democratic Party) (ČSSD), the most powerful party in government in the Czech Republic at the time, in addition to four Members elected on the list of the ANO party, the second-strongest party in the government at that time, whose leader, Mr Pavel Telička, was subsequently elected Vice-President of the European Parliament; and (d) in 2019, this was the case with three Members elected to the European Parliament who were the top three candidates on ANO’s list, including its leader, Ms Dita Charanzová, who was subsequently elected Vice-President of the European Parliament. 4. In 2004, Mr Stros, a German citizen, was elected in the Czech Republic to the European Parliament. 145. As regards the municipal elections (at local authority, borough and town/city level) which were held in 2006, 2010, 2014 and 2018. 1. The proportion of candidates and persons elected with no political affiliation was as follows: (a) in 2006, 79.85% of candidates and 84.51% of persons elected; (b) in 2010, 81.25% of candidates and 86.15% of persons elected; (c) in 2014, 84.13% of candidates and 88.30% of persons elected; and (d) in 2018, 84.97% of candidates and 89.96% of persons elected. 2. The high proportion of candidates and persons elected with no political affiliation is a phenomenon which may also be observed on the lists of the major political parties. For example, in the 2018 municipal elections: (a) on the lists of candidates of the ČSSD, the Czech Republic’s oldest political party which has strong roots in local politics, 54.58% of candidates were persons with no political affiliation and 57.31% of those elected from those lists had no political affiliation; (b) on the lists of the Občanská demokratická strana (Civic Democratic Party) (ODS), a traditional conservative party with strong roots in local politics, 59.47% of candidates were persons with no political affiliation and 52.93% of those elected from those lists had no political affiliation; and (c) on the lists of candidates of the Křesťanská a demokratická unie – Československá strana lidová (Christian and Democratic Union – Czechoslovak People’s Party) (KDU-ČSL), a traditional political party with the most candidates and elected persons in local politics, 73.62% of candidates were persons with no political affiliation and 72.49% of those elected from those lists had no political affiliation. 3. As for the major cities in the Czech Republic, in Prague, Mr Bohuslav Svoboda, a candidate with no political affiliation, was chosen, in 2010, to head the list of the ODS, the most powerful party in government in the Czech Republic at the time; he went on to become the mayor of Prague. In 2014, Ms Adriana Krnáčová, a candidate with no political affiliation and the lead candidate on ANO’s list, became the mayor of Prague, and Mr Tomáš Macura, also a candidate with no political affiliation and the lead candidate on ANO’s list, became the mayor of Ostrava, the Czech Republic’s third-largest city. 1 Original language: French. 2 ‘“Mobile” Union citizens’. 3 The Commission has brought an identical action directed against the Republic of Poland (Case C‑814/21), which is being dealt with in coordination with the present case. A joint hearing in these two cases was held on 12 September 2023. 4 ‘The Charter’. 5 OJ 1993 L 329, p. 34. 6 OJ 1994 L 368, p. 38. 7 ‘The Law on Political Parties’. 8 ‘The Law on municipal council elections’. 9 ‘The Law on European Parliament elections’. 10 ‘To become a member of a political party’. 11 The Czech Republic cites the judgment of 12 September 2006, Eman and Sevinger (C‑300/04, ‘the judgment in Eman and Sevinger’, EU:C:2006:545, paragraph 53). 12 With regard to the principle of non-discrimination, the Commission cites the judgments of 5 December 1989, Commission v Italy (C‑3/88, EU:C:1989:606, paragraph 8), and of 17 July 2008, Raccanelli (C‑94/07, EU:C:2008:425, paragraph 45), as well as the third recital of Directive 93/109. By way of illustration, it refers to the judgment of 16 December 2004, My (C‑293/03, EU:C:2004:821, paragraph 33 and the case-law cited), on Article 18 EC (now: Article 21 TFEU). As regards fundamental rights, the Commission refers to the judgment of 18 June 1991, ERT (C‑260/89, EU:C:1991:254, paragraphs 43 and 44), and recalls those judgments which it cited in its application, namely the judgments of 27 April 2006, Commission v Germany (C‑441/02, EU:C:2006:253, paragraph 108), and of 15 July 2021, The Department for Communities in Northern Ireland (C‑709/20, EU:C:2021:602, paragraph 88). On the requirement that national rules are to comply with the freedom of association enshrined in Article 12 of the Charter, it refers to the judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476). 13 See, inter alia, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraphs 188 to 190 and the case-law cited). 14 See, by analogy, judgment of 30 September 2010, Commission v Belgium (C‑132/09, EU:C:2010:562, paragraphs 40 and 41). 15 Emphasis added. 16 This argument is raised in response to the statement in intervention lodged by the Republic of Poland. 17 The Commission refers, in this regard, to the judgment in Eman and Sevinger. 18 The Commission refers to the judgment of 27 April 2006, Commission v Germany (C‑441/02, EU:C:2006:253, paragraph 108). 19 Signed in Rome on 4 November 1950; ‘ECHR’. 20 The Commission cites the judgments of the ECtHR of 30 January 1998, United Communist Party of Turkey and Others v. Turkey (CE:ECHR:1998:0130JUD001939292, § 44), and, with regard to the importance of political parties, by way of example, the judgments of 25 May 1998, Socialist Party and Others v. Turkey (CE:ECHR:1998:0525JUD002123793, § 41), and of 13 February 2003, Refah Partisi (The Welfare Party) and Others v. Turkey (CE:ECHR:2003:0213JUD004134098, §§ 86 to 89). 21 ‘The Venice Commission Guidelines’. See 2nd edition of those guidelines (Study No 881/2017). The Commission refers to the comments in paragraph 1 (p. 5) and in paragraphs 17 and 18 (pp. 8 and 9). With regard to the connection formed by parties between citizens and holders of public office, it refers to paragraph 18 (p. 9). 22 See points 51 and 52 of this Opinion. 23 The Commission observes that, in that regard, the argument advanced by the Czech Republic based on the provisions of Article 5(3) of Directive 94/80 is ill founded. In response to the statement in intervention lodged by the Republic of Poland, the Commission argues that a general prohibition on becoming a member of a political party goes beyond the restrictions allowed by secondary law. 24 Paragraph 53 thereof. 25 It refers to the judgment of the ECtHR of 27 April 1995, Piermont v. France (CE:ECHR:1995:0427JUD001577389, § 64), according to which Member States of the European Union cannot rely on that provision against nationals of other Member States asserting rights conferred on them by the Treaties. 26 See footnote 33 to this Opinion. The Commission explains that that ruling dismissed the action brought by the political party evropani.cz against the decision of the Ministerstva vnitra (Ministry of the Interior, Czech Republic) refusing to register an amendment to the articles of association of that political party which sought to allow citizens of the Union holding a permanent residence permit in the Czech Republic to become party members. 27 The Commission refers to the documents cited in footnotes 71 and 72 to this Opinion. 28 In its defence, as a preliminary point, the Czech Republic considers that the objective of the present action is political in nature, in that its purpose is to ensure the greater involvement of ‘mobile’ Union citizens in European political life, including their right to vote in national or regional elections. That Member State cites, by way of example, the Commission’s Fourth Report on Citizenship of the Union (1 May 2001 – 30 April 2004) (COM(2004) 695 final), p. 11, or the Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the application of Directive 94/80/EC on the right to vote and to stand as a candidate in municipal elections of 25 January 2018 (COM(2018) 44 final), p. 12. 29 The citations included in the defence correspond to the fourth to sixth recitals of the first of those directives and to the fifth recital of the second. 30 The Czech Republic states that the Court has interpreted Article 19(2) EC to that effect and cites the judgment in Eman and Sevinger (paragraph 53). 31 In its rejoinder, the Czech Republic argues that, by virtue of that expression, Article 22 TFEU must be distinguished, for example, from Article 59 TFEU, which refers to the adoption of provisions of secondary law with a view to ‘achieving’ the gradual liberalisation of a particular type of services. That Member State infers from that that the exercise of the freedom to provide services is not directly dependent on the adoption of secondary legislation. 32 In other words, according to the Czech Republic, Article 4(2) TEU does not serve to restrict the content of Article 22 TFEU because it does not have the scope alleged by the Commission, which allows ‘the Member States to adopt the rules which are best adapted to their constitutional structure’. That Member State cites the judgment in Eman and Sevinger (paragraph 50). 33 In that regard, the Czech Republic cites, by way of example, the judgment of the Nejvyšší správní soud (Supreme Administrative Court) of 10 January 2018, 6 As 84/2017-27. It states, in response to the Commission’s observations (see point 48 of this Opinion), that, in the absence of a ruling by the Ústavní soud (Constitutional Court), that case-law is decisive as far as concerns the interpretation of EU law. 34 In support of this argument, the Republic of Poland states that the interpretation of that provision advocated by the Commission is contrary to the principle of conferral, as set out in Article 5(2) TEU. 35 See points 29 and 37 of this Opinion concerning the admissibility of this action. 36 See footnote 30 to this Opinion. 37 The Czech Republic cites the judgment of 12 May 1998, Martínez Sala (C‑85/96, EU:C:1998:217, paragraphs 58, 59 and 63). 38 The Czech Republic refers to the judgment of 30 May 1989, Commission v Greece (305/87, EU:C:1989:218, paragraph 28). The Czech Republic states that ‘those specific provisions include, inter alia, the provisions establishing the fundamental freedoms, that is to say, Articles 34, 45, 49, 56 and 63 TFEU, as well as other provisions such as Article 54 or Article 94 TFEU, and finally Article 22 TFEU’. 39 According to that Member State, this approach was adopted by the Court in the judgment of 29 June 1999, Commission v Belgium (C‑172/98, EU:C:1999:335, paragraph 12), in which it held that the condition of nationality in order to recognise the legal personality of associations concerns the fundamental freedoms of the internal market and therefore falls within the scope of the general prohibition of discrimination within the meaning of Article 6 EC (now Article 18 TFEU). The Czech Republic states that the freedom of establishment, as a specific provision of primary law in connection with the prohibition of discrimination, was not relied upon in that case. 40 See, in electoral matters, with regard to the determination of the holders of electoral rights, judgments in Eman and Sevinger (paragraphs 45 and 52), and of 6 October 2015, Delvigne (C‑650/13, EU:C:2015:648, paragraph 42). See also, as regards the rights connected with citizenship of the Union, judgment of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’ (C‑490/20, EU:C:2021:1008, paragraph 52). See, lastly, with regard to the values of the European Union, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraphs 64 to 67 and the case-law cited). 41 The Court has held that it follows from the first paragraph of Article 8 and from Article 12 of the Act of 20 September 1976 concerning the election of the representatives of the Assembly by direct universal suffrage (OJ 1976 L 278, p. 5), which sets out the common principles applicable to the election of the Members of the European Parliament by direct universal suffrage, that Member States remain competent, in principle, to regulate the electoral procedure. See judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115, paragraphs 67 to 69). 42 See, to that effect, judgment of 16 June 2022, Commission v Austria (Indexation of family benefits) (C‑328/20, EU:C:2022:468, paragraph 57). 43 See Article 22 TFEU, in fine, as well as the fourth and sixth recitals of Directive 93/109 and the fourth and fifth recitals of Directive 94/80. Those directives specify the common conditions for exercise of the right to vote and to stand as a candidate relating, for example, to citizenship of the Union and to the length of residence determined by the Member State of residence, the arrangements for entry on the electoral rolls and the application to stand as a candidate, as well as the cases of exclusion. 44 On the classification as the ‘fundamental status’, see inter alia judgment of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques (C‑673/20, EU:C:2022:449, paragraph 49 and the case-law cited). 45 See the first to third recitals of Directives 93/109 and 94/80. According to Shaw, J., ‘Sovereignty at the boundaries of the polity’, in Walker, N., Sovereignty in Transition, Hart Publishing, London, 2003, pp. 461 to 500, in particular p. 471, the provisions on electoral rights represent much of the added value of the provisions of the Treaty of Maastricht. The possibility of participating in direct elections to the European Parliament has in fact existed since the Act of 20 September 1976 (see footnote 41 to this Opinion). It is only since the entry into force of the Treaty of Maastricht that that right has been governed by the EC Treaty, in Article 8b, then in Article 19 EC and now in Article 22 TFEU. For a summary of the legislative history, see Shaw, J. and Khadar, L., ‘Article 39’, in Peers, S., Hervey, T., Kenner, J. and Ward, A., The EU Charter of Fundamental Rights: A Commentary, 2nd ed., Hart Publishing, Oxford, 2021, pp. 1085 to 1112, in particular paragraphs 39.33 and 39.34 (pp. 1093 and 1094). The same is true of municipal elections since that treaty. For a detailed historical summary, see Groenendijk, K., ‘Article 40’, The EU Charter of Fundamental Rights: A Commentary, op. cit., pp. 1113 to 1123, in particular paragraph 40.17 (p. 1118). See, with regard to Article 19 EC, judgment of 12 September 2006, Spain v United Kingdom (C‑145/04, EU:C:2006:543, paragraph 66), and, in the same vein, judgment of 6 October 2015, Delvigne (C‑650/13, EU:C:2015:648, paragraph 42). 46 See the third recitals of Directives 93/109 and 94/80 and, to that effect, judgment of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques (C‑673/20, EU:C:2022:449, paragraph 50). 47 In accordance with Article 6(1) TEU, the Charter has the same legal force as the Treaties. 48 According to the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) (‘the Explanations relating to the Charter’), ‘Article 39(1) corresponds to the right guaranteed in Article 20(2) [TFEU]’ and Article 22 is the legal basis for the adoption of the detailed arrangements for the exercise of that right. 49 According to the Explanations relating to the Charter, that article ‘corresponds to the right guaranteed by Article 20(2) [TFEU]’ and Article 22 TFEU is the legal basis for the adoption of the detailed arrangements for the exercise of that right. See judgment of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques (C‑673/20, EU:C:2022:449, paragraph 51). 50 See judgment of 20 September 2001, Grzelczyk (C‑184/99, EU:C:2001:458, paragraph 31). 51 See Article 2 TEU. See, in this regard, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraphs 64 and 67 and the case-law cited); see judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 112), based on the implicit link between three values set out in Article 2 TEU, namely democracy, the rule of law and respect for human rights). On the institutions’ power of review, see judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 159). 52 The Court has held that Article 10(1) TEU gives concrete form to the value of democracy referred to in Article 2 TEU. See judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115, paragraph 63). 53 See the tenth recital and the second paragraph of Article 14(1) of Directive 93/109 and the fourteenth recital and Article 12(1)(c) of Directive 94/80. See also, in relation to the significance of this factor, Shaw, J., ‘Sovereignty at the boundaries of the polity’, op. cit., p. 478, according to which ‘electoral rights … are rights ancillary to the practice of migration by EU citizens, rights to be established by the EU acting as a protective policy in order to foster a deeper sense of involvement on the part of the EU migrant with the host state and with certain aspects of its political culture, and to limit the prejudice in terms of the loss of political rights which the migrant may suffer as a result of moving away from her home state’. 54 In accordance with settled case-law, the rules of equal treatment between nationals and non-nationals prohibit not only overt discrimination on grounds of nationality, but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. See judgment of 2 February 2023, Freikirche der Siebenten-Tags-Adventisten in Deutschland (C‑372/21, EU:C:2023:59, paragraph 29). 55 See, to that effect, the sixth recital of Directive 93/109 and the fifth recital of Directive 94/80. 56 See judgment of 11 June 2020, TÜV Rheinland LGA Products and Allianz IARD (C‑581/18, EU:C:2020:453, paragraph 33 and the case-law cited). 57 See judgment of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques (C‑673/20, EU:C:2022:449, paragraph 48). 58 See, in particular, paragraphs 17 and 18 (pp. 8 and 9). 59 See, in that respect, with regard to financing and media access, Venice Commission Guidelines, paragraph 185 (pp. 54 and 55). 60 See point 44 of this Opinion. See also judgment of the ECtHR of 8 July 2008, Yumak and Sadak v. Turkey (CE:ECHR:2008:0708JUD001022603, § 107 and the case-law cited). In its settled case-law, the ECtHR observes that the political debate, to which political parties contribute, ‘is at the very core of the concept of a democratic society’. 61 This provision concerns EU political parties. The wording of the first paragraph of Article 191 EC is essentially reproduced in it. 62 See Explanations relating to the Charter. 63 With regard to the link established between Articles 39 and 40 of the Charter and Article 12(2) thereof on the role of political parties, see Costa, O., ‘Article 39 – Droit de vote et d’éligibilité aux élections municipales et au Parlement européen’, in Picod, F., Rizcallah, C. and Van Drooghenbroeck, S., Charte des droits fondamentaux de l’Union européenne: commentaire article par article, 3rd ed., Bruylant, Brussels, 2023, pp. 1043 to 1068, in particular paragraph 6 (p. 1048), and, in the same work, Ducoulombier, P., ‘Article 12 – Liberté de réunion et d’association’, pp. 313 to 327, in particular paragraph 6 (pp. 317 and 318). See also Shaw, J. and Khadar, L., op. cit., paragraph 39.04 (p. 1087), and Groenendijk, K., op. cit., paragraph 40.26 (p. 1120). 64 See point 72 of this Opinion. 65 That article corresponds to Article 10 ECHR. See Explanations relating to the Charter. 66 See also, in this regard, Article 3 of Protocol No 1 to the ECHR and judgment of the ECtHR of 18 February 1999, Matthews v. United Kingdom (CE:ECHR:1999:0218JUD002483394, § 44), concerning the application of that provision to the elections of members of the European Parliament. 67 See judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraphs 111 to 114). 68 See judgment of the ECtHR of 30 January 1998, United Communist Party of Turkey and Others v. Turkey (CE:ECHR:1998:0130JUD001939292, § 25). It is stated in that judgment that ‘political parties are a form of association essential to the proper functioning of democracy. In view of the importance of democracy in the [ECHR] system …, there can be no doubt that political parties come within the scope of Article 11’. With regard to the importance of the participation of citizens in public life within a broader context, see, inter alia, judgments of the ECtHR of 17 February 2004, Gorzelik and Others v. Poland (CE:ECHR:2004:0217JUD004415898, §§ 88, 90 and 92), and of 8 October 2009, Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan (CE:ECHR:2009:1008JUD003708303, §§ 52 and 53). 69 The provisions in question are Paragraph 65 of the Law on European Parliament elections and Paragraph 85 of zákon č. 247/1995 Sb. o volbách do Parlamentu České republiky a o změně a doplnění některých dalších zákonů (Law No 247/1995 on elections to the Parliament of the Czech Republic and amending and supplementing certain laws) of 27 September 1995, as well as Paragraph 20(5) to (8) of the Law on Political Parties. For a detailed summary of the content of those provisions, see Annex I to this Opinion. 70 The Commission refers to Article 21(4) of and the annex to the Law on municipal council elections. 71 The Commission relies on the opinion of Antoš, M., ‘Politická participace cizinců v České republice’, Politologický časopis, Masarykova univerzita, Brno, 2012, No 2, pp. 113 to 127, in particular pp. 123 and 124. 72 The Commission refers to the press release issued by the Czech Office of the Public Defender of Rights of 23 July 2014 entitled ‘Občané EU žijící v ČR mají právo účastnit se politického života’ (Citizens of the European Union living in the Czech Republic have the right to participate in public life), available at the following internet address: https://www.ochrance.cz/aktualne/obcane-eu-zijici-v-cr-maji-pravo-ucastnit-se-politickeho-zivota, final paragraph. 73 However, the Commission does refer to the impact assessment report accompanying the proposal for a Council Directive, presented on 25 November 2021, laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for Union citizens residing in a Member State of which they are not nationals (working document SWD(2021) 357 final). It notes that that report states that, during the public consultation, and even though only a limited response to that consultation was received from the public, at least one contributor was identified who claimed that he had attempted to stand as a candidate in elections to the European Parliament in another Member State and had found that it was impossible for him to found a political party or become a member of an existing one. 74 See Annex II to this Opinion. 75 The Commission points out that the people referred to are Czech nationals. They include, for example, the only Czech cosmonaut (Mr Vladimír Remek), a former Minister for Foreign Affairs (Mr Josef Zieleniec), a former well known Czech ambassador to Qatar and to Kuwait (Ms Jana Hybášková), a long-standing member of the Board of Directors of the Česká národní banka (Czech National Bank), who is well known in the media, and also the former Deputy Governor of that bank (Mr Luděk Niedermayer), a former Minister for Justice (Mr Jiří Pospíšil) and a popular leading academic who is well known in the media (Mr Jan Keller). As for Mr Franz Stros, a German national elected to the European Parliament, the Commission observes that he is a writer and former Czechoslovak citizen. 76 The Republic of Poland, the intervener, observes that the ‘non-member’ candidates of a party – including ‘mobile’ Union citizens – enjoy a comprehensive guarantee of access to all the forms of candidacy provided for in Czech law and that the choice to put forward candidates on the lists of political parties depends in practice solely on the candidates’ and parties’ mutual willingness to cooperate. 77 It recalls the case-law of the Court on the burden of proof borne by the Commission and cites the judgment of 14 March 2019, Commission v Czech Republic (C‑399/17, EU:C:2019:200, paragraph 51). 78 See Annex II to this Opinion. In its rejoinder, the Czech Republic states that drawing a distinction between Czech and non-Czech citizens is meaningless since it is common for candidates at elections to have ‘no political affiliation’ and that their status is in no way different on account of their nationality. It contests the way in which the Commission qualifies the information relating to the electoral success of certain candidates (see point 99 of this Opinion). 79 See judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 37). 80 They are viewed in the same vein by the Republic of Poland. 81 See in particular point 93 of this Opinion concerning the legal conditions for municipal elections, upon which the Commission relies and which are not discussed by the Czech Republic, as well as the documents cited in footnotes 71 and 72 to this Opinion. 82 In response to the arguments put forward by the Republic of Poland (see point 123 of this Opinion), the Commission infers from those arguments that this justification also covers the situation in which ‘mobile’ Union citizens elect to the internal bodies of political parties nationals of the host Member States who would interfere inappropriately in areas reserved for the Member States. 83 According to the Commission, this limitation shows that respect for the national identity ‘is fully reflected in Article 22 TFEU’. 84 The Commission cites the judgments of 8 May 2003, ATRAL (C‑14/02, EU:C:2003:265, paragraph 69), and of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraphs 76 and 77), as well as the judgment of 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraphs 81 and 90). 85 The case-law in question is the judgment of 27 April 2006, Commission v Germany (C‑441/02, EU:C:2006:253, paragraph 108). According to the Czech Republic, the Commission misconstrues the wording of this paragraph, the last part of which the Czech Republic emphasises, namely: ‘reasons of public interest may be invoked to justify a national measure which is likely to obstruct the exercise of the fundamental freedoms guaranteed by the Treaty only if the measure in question takes account of such rights’. 86 See, to that effect, the fifth recital of Directive 93/109 and the fourth recital of Directive 94/80. See also the judgment in Eman and Sevinger (paragraphs 52 and 53). 87 See point 77 of this Opinion. See, in this regard, in connection with the restriction of access to certain offices to nationals and of participation in elections to a parliamentary assembly, the fifth and tenth recitals and Article 5(3) and (4) of Directive 94/80. In relation to Member States’ legislation within that discretionary scope, see the impact assessment report cited in footnote 73 to this Opinion, paragraph 1.3.6 (p. 20), and the analysis of Blacher, P., ‘Article 40 – Droit de vote et d’éligibilité aux élections municipales’, in Picod, F., Rizcallah, C. and Van Drooghenbroeck, S., op. cit., pp. 1069 to 1088, in particular paragraph 16 (pp. 1083 and 1084). As regards the limitations on the right to vote and to stand as a candidate, specifically depending on the proportion of ‘mobile’ Union citizens in the Member State of residence and the periods of residence, see Article 14 of Directive 93/109 and Article 12 of Directive 94/80. See also comments by Shaw, J. and Khadar, L., op. cit., paragraph 39.74 (p. 1104), in relation to elections to the European Parliament, and by Groenendijk, K., op. cit., paragraphs 40.27 and 40.28 (p. 1121), as regards municipal elections. 88 See, in this regard, Venice Commission Guidelines, paragraphs 153 and 155 (pp. 45 and 46). See also, by way of illustration, the report by Alina Ostling funded by the Commission’s Rights, Equality and Citizenship programme (2014–2020), entitled ‘Fair EU Synthesis report: Electoral Rights for Mobile EU Citizens – Challenges and Facilitators of Implementation’, paragraph 4.1.2 (p. 27). 89 See judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 72). 90 See the second and fifth recitals in the preamble to the Charter. 91 With regard to the scope of that article, reference should be made to points 74, 84 and 87 of this Opinion. 92 See, to that effect, judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 127), and of 16 February 2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 145). See judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 72). 93 Contrary to what the Czech Republic contends, it must be observed, in accordance with Article 52(2) of the Charter, that, unlike other articles of the Treaty, such as, for example, Article 45(3) and Article 65(2) TFEU, Article 22 TFEU does not provide that, outside the scope of acts of secondary law adopted on its basis, Member States can adopt measures capable of obstructing the electoral rights of ‘mobile’ Union citizens. 94 See Article 1(1) and the first paragraph of Article 3 of Directive 93/109 and Article 1(1) and Article 3 of Directive 94/80. See also point 127 of this Opinion.