Judgment;Summary — ECLI:EU:C:2024:339
Date: 2024-04-18
Language of the case: French
Court formation: Eighth Chamber
Subject matter: General provisions;Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: France

SUMMARY OF THE DISPUTE 
EP is married to a French citizen but she has not acquired French nationality by 
marriage because, as a former Foreign Office official, she took an oath of 
allegiance to the Queen of England. She has lived in France for many years, where 
she works as a farmer […]. 
Following the referendum held by the United Kingdom on 23 June 2016, the 
Council of the European Union approved, on 30 January 2020, the Agreement on 
the Withdrawal of the United Kingdom from the European Union, which was 
concluded by the European Union and the United Kingdom on 31 January 2020. 
Article 131 of the Withdrawal Agreement provides that, during the transition 
period, the institutions of the European Union, which include, among others, the 
General Court of the European Union and the Court of Justice of the European 
Union, are to have the powers conferred upon them by EU law. 
On 1 February 2020, pursuant to Article 50(3) of the [Treaty on European Union], 
all the EU Treaties and the Treaty establishing the European Atomic Energy 
Community ceased to apply to the United Kingdom. 
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EP was removed from the electoral roll with effect from 1 February 2020. She 
was therefore unable to participate in the municipal elections on 15 March 2020. 
On 6 October 2020, EP filed an application to be re-registered on the electoral roll 
for non-French citizens of the European Union. This was refused on 7 October 
2020 by the Mayor of the Municipality of Thoux. 
EP therefore referred the matter to the Electoral Commission of the municipality 
pursuant to Article L 18 of the code électoral (Electoral Code). 
By letter of 3 November 2020, she was informed that the Electoral Commission 
was not due to meet until March 2021, thus about twenty days before the 
departmental elections. 
As she considered that that response implicitly confirmed the mayor’s refusal to 
re-register her, EP, on the basis of Article L 20 of the Electoral Code, referred the 
matter to this court by application received on 9 November 2020 in order to 
contest the decision of the Mayor of Thoux. 
By decision of 17 November 2020, this court: 
– Ordered that the proceedings be stayed in respect of all the claims made by EP, 
– Ordered that the entire file be forwarded […] to the Registry of the Court of 
Justice [of the European Union] […]. 
By 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),] to which reference will 
be made for a fuller understanding of its reasoning, the Court of Justice held that 
United Kingdom nationals had all lost their Union citizenship and therefore their 
right to vote in municipal elections. 
The case returned to the tribunal judiciaire d’Auch (Court of Auch, France) on 
20 September 2022. 
In the absence of the respondents, who were duly summoned, EP has requested a 
further stay of proceedings by referring to the Court of Justice of the European 
Union a question for a preliminary ruling on the validity of the Agreement on the 
Withdrawal of the United Kingdom from the European Union relating specifically 
to the European elections and on the substance she has requested that the court: 
– annul the decisions rejecting the application submitted by EP to be re-registered 
on the electoral roll of Thoux (Gers); 
[…] [claim in relation to costs] 
She states that, although the loss of Union citizenship and the loss of the right to 
vote in municipal elections for Brexpats are now established at the level of 
Community law by the judgment of 9 June 2022 in Case C-673/20, the Court of 
REQUEST FOR A PRELIMINARY RULING OF 15. 11. 2022 – CASE C-716/22 
 
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Auch will admit that the Court of Justice of the European Union has not ruled on 
the question of the right of Brexpats to vote in European elections. 
The Court of Justice intentionally did not rule on that question, which merits its 
own full investigation in the light of the precedent set by Gibraltar concerning the 
right of non-EU citizens to vote in European elections granted by the Court of 
Justice and the European Court of Human Rights. 
The President of the Court of Justice has clearly invited EP to come back to the 
Court with a specific question for a preliminary ruling concerning European 
elections, which is why EP is referring a supplementary question for a preliminary 
ruling. 
EP also wishes to point out to the Court of Auch that, although the loss without 
exception of Union citizenship and of the right to vote in municipal elections for 
Brexpats has been acknowledged at the level of Community law by the Court of 
Justice of the European Union, incidentally omitting EP’s oath to the Queen of 
England, that position remains open to challenge at the level of the Convention for 
the Protection of Human Rights and Fundamental Freedoms in the light of the 
case-law of the European Court of Human Rights, and therefore EP’s removal 
from the electoral roll is contrary to the convention. 
Reference will be made to a reading of the judgment of the Court of Justice of 
9 June 2022 for a fuller understanding of the questions referred to the Court of 
Justice for a preliminary ruling and the present dispute. 
[…] [procedural detail] 
GROUNDS FOR THE DECISION 
By removing EP from the electoral roll, the French administration has de facto 
deprived her not only of her right to vote in municipal elections but also in 
European elections. 
Paradoxically, EP lost her right to vote in municipal elections precisely because 
she had been stripped of her Union citizenship. 
While, in its judgment of 9 June 2022, the Court of Justice of the European Union 
restricted the answers, which were negative, only to EP’s right to vote in 
municipal elections, it did not rule on the right of British citizens to vote in 
European elections. 
The entire case is therefore still before the Court of Auch, even though, obviously, 
the loss of Union citizenship and the loss of the right to vote in municipal 
elections for Brexpats are now established at the level of Community law by the 
judgment of 9 June 2022 in Case C-673/20. 
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However, in its judgment of 18 February 1999, Matthews v. the United Kingdom, 
24833/94, the European Court of Human Rights held in respect of the inhabitants 
of Gibraltar who are not European citizens that ‘the Parliament was sufficiently 
involved both in the specific legislative processes leading to the passage of certain 
types of legislation and in the general democratic supervision of the activities of 
the European Community to constitute part of the legislature of Gibraltar for the 
purposes of Article 3 of Protocol No. 1’. 
In its judgment of 12 September 2006, Spain v United Kingdom (C-145/04[, 
EU:C:2006:543]), the Court of Justice of the European Union went on to hold that 
‘the Contracting States enjoy a wide margin of appreciation in imposing 
conditions on the right to vote. However, those conditions may not curtail the 
right to vote to such an extent as to impair its very essence and deprive it of 
effectiveness. They must pursue a legitimate aim and the means employed must 
not be disproportionate …’. 
Thus, in short, the fixed, stable and undisturbed residence in the territory of the 
European Union would allow a resident to consider that he or she belongs to a 
legislature, in this case the European legislature. A State may regulate his or her 
right to vote with measures that are proportionate to the objective pursued but do 
not impair that right to the point of rendering it ineffective. 
That is also the solution which appears to have emerged when the Court of Justice 
adopted reasoning for not excluding a non-European citizen in Gibraltar, as may 
be the case in accordance with criteria to be defined by the Court of Justice of the 
Union for former British EU citizens who still have close links with the Member 
States on account inter alia of their place of residence: ‘In the current state of 
Community law, the definition of the persons entitled to vote and to stand as a 
candidate in elections to the European Parliament falls within the competence of 
each Member State in compliance with Community law. Articles 189 EC, 190 EC, 
17 EC and 19 EC do not preclude the Member States from granting that right to 
vote and to stand as a candidate to certain persons who have close links to them, 
other than their own nationals or citizens of the Union resident in their territory. 
Neither Articles 189 EC and 190 EC nor the Act concerning the election of the 
representatives of the European Parliament by direct universal suffrage expressly 
and precisely state who are to be entitled to the right to vote and to stand as a 
candidate for the European Parliament. As regards Articles 17 EC and 19 EC, 
relating to citizenship of the Union, only the latter deals specifically, in 
paragraph 2, with the right to vote for the European Parliament. That article is 
confined to applying the principle of non‑ discrimination on grounds of 
nationality to the exercise of that right. 
Also, as regards the possible existence of a clear link between citizenship of the 
Union and the right to vote and stand for election which requires that that right be 
always limited to citizens of the Union, no clear conclusion can be drawn in that 
regard from Articles 189 EC and 190 EC, relating to the European Parliament, 
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which state that it is to consist of representatives of the peoples of the Member 
States. The term “peoples”, which is not defined, can have different meanings in 
the Member States and languages of the Union. As regards the Treaty’s articles 
relating to citizenship of the Union, no principle can be derived from them that 
citizens of the Union are the only persons entitled under all the other provisions of 
the Treaty, which would imply that Articles 189 EC and 190 EC apply to those 
citizens alone. In fact, while Article 17(2) EC provides that citizens of the Union 
are to enjoy the rights conferred by the Treaty and be subject to the duties 
imposed by it, the Treaty recognises rights which are linked neither to citizenship 
of the Union nor even to nationality of a Member State. As regards Article 19(2) 
EC, while it implies that nationals of a Member State have the right to vote and to 
stand as a candidate in their own country and requires the Member States to 
accord those rights to citizens of the Union residing in their territory, it does not 
follow that a Member State is prevented from granting the right to vote and to 
stand for election to certain persons who have a close link with it without however 
being nationals of that State or another Member State. In addition, since the 
number of representatives elected in each Member State is laid down by 
Article 190(2) EC and since, in the current state of Community law, elections to 
the European Parliament are held in each Member State for the representatives to 
be elected in that State, an extension by a Member State of the right to vote at 
those elections to persons other than its own nationals or other than citizens of the 
Union resident in its territory affects only the choice of the representatives elected 
in that Member State and has no effect either on the choice or on the number of 
representatives elected in the other Member States. 
It follows that the United Kingdom did not infringe Articles 189 EC, 190 EC, 17 
EC and 19 EC by adopting a law which provides, in relation to Gibraltar, that 
Commonwealth citizens resident in Gibraltar who are not Community nationals 
have the right to vote and to stand as a candidate in elections to the European 
Parliament.’ 
Using those legal criteria, it is necessary to assess EP’s situation in concreto: 
– EP has maintained close links with France, an EU Member State, but in 
addition, on account of her exclusion from the right to vote in British elections by 
reason of the 15 year rule under the law of the United Kingdom and the loss of her 
right to vote in municipal elections following Brexit in accordance with the 
judgment of the Court of Justice of 9 June 2022 in Case C-673/20, EP has been 
left with no voting rights, 
– Her human dignity is significantly affected since, even though she remains a 
respected person who has never been convicted, she is deprived of the most basic 
right to freedom of expression, which seems entirely disproportionate to the 
primary objective of the treaty organising the withdrawal of the United Kingdom 
from the Treaties on the Functioning of the European Union, 
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– The harm to EP’s private and family life is clear since she is deprived of any 
right to vote in the British, French and European elections because the 15 year 
rule and the ratification of Brexit on 31 January 2020 are both applicable to her, 
In conclusion, in the light of the case-law of the abovementioned European 
Courts, it would be conceivable for EP, a British national who has been resident in 
France for several decades and who has legitimately enjoyed the right to vote in 
municipal and European elections, to be able to continue to exercise peacefully 
her right to vote in European elections. 
***** 
Furthermore, as already mentioned in the interim decision of 17 November 2020, 
it is apparent from French civil and administrative case-law that the purpose of the 
principle of proportionality is to limit the power of public authorities in order to 
safeguard the rights and autonomy of individuals and to prevent infringements 
which, because they are excessive or too radical, compromise the very substance 
of rights and freedoms. 
Specifically, the State can limit the freedom of citizens only to the extent 
necessary to protect public interests and it must prioritise respect for fundamental 
rights. A measure which restricts rights and freedoms must therefore be both 
appropriate or fitting, necessary and proportionate. 
The principle of proportionality, which is enshrined by the case-law of the 
European Court of Human Rights (‘ECtHR’), is now a general principle of EU 
law recognised by Article 5(4) of the Treaty on European Union. It has the same 
aim: to restrict the power of public authorities by preventing infringements which, 
because they are excessive or radical, compromise the very substance of rights 
and freedoms. That principle must therefore be borne in mind by the institutions 
of the European Union and by the Member States when they apply the law. 
In addition to the case-law of the Conseil d’État (Council of State, France), the 
proportionality criterion now also pervades constitutional law, which has affirmed 
the need for proportionality on the basis of the requirement that penalties be 
established only to the extent that they are necessary, as provided by Article 8 of 
the Declaration of the Rights of Man and of the Citizen. 
In the present case, EP, who has been resident in France since 29 April 1984, as 
attested by the evidence submitted in the case file, can no longer vote in any UK 
elections under the Representation of the People Act 1985. 
With regard to that UK statutory regime, the ECtHR ruled on the case of 
Mr Shindler on 7 May 2013, holding that there had been no violation of Article 3 
of Protocol No 1 of the Convention. In that case, the party concerned could still 
vote in European and municipal elections in 2013 at the time of the ECtHR’s 
decision. 
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EP’s case is different since, although she was registered on the electoral roll in 
Isère and then from October 2000 in Thoux 32, she lost the right to vote in 
European and municipal elections in 2020, under Article 127 of the UK 
Withdrawal Agreement, which states that the provisions of the Treaty on the 
Functioning of the European Union which establish the rights of EU citizens to 
vote and to stand as candidates in European and municipal elections shall not be 
applicable to the United Kingdom during the two-year transition period. 
EP, a person over the age of majority with full legal capacity and no criminal 
convictions, therefore finds herself in a situation in which she is completely 
deprived of the right to vote. 
However, as pointed out by the ECtHR, the right to vote, far from being a 
privilege, constitutes a right guaranteed by the Convention (Albanese v. Italy, 
23 March 2006). Moreover, a restriction on the right to vote must pursue a 
legitimate aim and cannot constitute an absolute bar (Alajos Kiss v. Hungary, 
20 May 2010). 
This court finds that the application of the provisions of that agreement to the case 
of EP, who has also been deprived of the right to vote in the United Kingdom, 
constitutes a disproportionate infringement of her fundamental right to vote. 
***** 
For all of those reasons, it is necessary to refer a supplementary question to the 
Court of Justice for a preliminary ruling, [as] set out below. 
[…] 
[…] [procedural detail] 
ON THOSE GROUNDS 
The court, by inter partes judgment delivered in open court and at first instance, 
Orders that the proceedings be stayed in respect of all the claims made by EP, 
[…] [procedural detail] 
Refers the following questions to the Court of Justice of the European Union: 
1. 
Is Decision 2020/135 on the conclusion of the Agreement on the Withdrawal of 
the United Kingdom of Great Britain and Northern Ireland from the European 
Union and the European Atomic Energy Community partially invalid in that the 
Agreement on the Withdrawal of the United Kingdom from the European Union 
infringes Articles 1, 7, 11, 21, 39 and 41 of the Charter of Fundamental Rights of 
the European Union, Article 6(3) of the Treaty on European Union and the 
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principle of proportionality in Article 52 of that Charter in so far as it does not 
include a provision allowing the right to vote in European elections to be retained 
for British nationals who have exercised their freedom of movement and their 
freedom to settle freely in the territory of another Member State, whether or not 
dual nationality is permitted, in particular for those who have lived in the territory 
of another Member State for more than 15 years and who are subject to the United 
Kingdom’s 15 year rule, thus aggravating the deprivation of any right to vote, for 
persons who have not had the right to vote against the loss of their Union 
citizenship and also for those who have sworn allegiance to the British Crown? 
2. 
Must Decision 2020/135, the Agreement on the Withdrawal of the United 
Kingdom from the European Union, Article 1 of the Act concerning the election 
of the members of the European Parliament annexed to Council Decision 
76/787/ECSC, EEC, Euratom of 20 September 1976, the judgment of the Court of 
Justice of the European Union of 12 September 2006, Spain v United Kingdom, 
C-145/04, Articles 1, 7, 11, 21, 39 and 41 of the Charter of Fundamental Rights of 
the European Union, Article 6(3) of the Treaty on European Union and the 
judgment of the Court of Justice of the European Union of 9 June 2022, Préfet du 
Gers, C-673/20, be interpreted as depriving former Union citizens who have 
exercised their right to free movement and the freedom to settle freely in the 
territory of the European Union of the right to vote and to stand as a candidate in 
European elections in a Member State, as well as, in particular, former Union 
citizens who no longer have any right to vote because they have exercised their 
private and family life in the territory of the European Union for more than 
15 years and who were unable to vote against the withdrawal of their Member 
State from the European Union which entailed the loss of their Union citizenship? 
[…] 
[…] [procedural detail]