Opinion of the Advocate General — ECLI:EU:C:2024:15
Date: 2024-01-11
Language of the case: Polish
Procedure: Action for failure to fulfil obligations - successful
Origin: Poland

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 With regard to the application of Article 18 TFEU, on which the Czech Republic relies, reference should be made to the 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). The Court restated the principle that national measures can be examined having regard to the first paragraph of Article 18 TFEU only to the extent that they apply to situations which do not fall within the scope of specific rules on non-discrimination laid down by that treaty. 57 See, in particular, paragraphs 17 and 18 (pp. 8 and 9). 58 See, in that respect, with regard to financing and media access, Venice Commission Guidelines, paragraph 185 (pp. 54 and 55). 59 See point 50 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’. 60 This provision concerns EU political parties. The wording of the first paragraph of Article 191 EC is essentially reproduced in it. 61 See Explanations relating to the Charter. 62 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). 63 See point 99 of this Opinion. 64 This article corresponds to Article 10 ECHR. See Explanations relating to the Charter. 65 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. 66 See judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraphs 111 to 114). 67 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). 68 See judgment of 18 June 2020, Commission v Hungary (Transparency of associations) (C‑78/18, EU:C:2020:476, paragraph 37). 69 See report on political participation cited in footnote 19 to this Opinion, p. 14. 70 See, to that effect, the fifth recital of Directive 93/109 and the fourth recital of Directive 94/80. See also judgment of 12 September 2006, Eman and Sevinger (C‑300/04, EU:C:2006:545, paragraphs 52 and 53). 71 See point 104 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 29 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. 72 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). 73 See judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 72). 74 See the second and fifth recitals in the preamble to the Charter. 75 With regard to the scope of that article, reference should be made to points 101, 110 and 113 of this Opinion. 76 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).