Opinion of the Advocate General — ECLI:EU:C:2022:129
Date: 2022-02-24
Language of the case: French
Subject matter: General provisions;Economic and monetary policy;Principles, objectives and tasks of the Treaties;Anti-discrimination;Fundamental rights;Non-discrimination on grounds of nationality;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: France

Anonymised version 
Translation  C-673/20 – 1 
Case C-673/20 
Request for a preliminary ruling 
Date lodged:  
9 December 2020 
Referring court:  
Tribunal judiciaire d’Auch (France) 
Date of the decision to refer:  
17 November 2020 
Applicant: 
EP 
Defendant: 
Préfet du Gers 
Institut National de la Statistique et des Études Économiques 
  
TRIBUNAL JUDICIAIRE  
… 32000 AUCH … (COURT OF 
… 32000 AUCH … FRANCE) 
JUDGMENT 
  … 
  … 
  … 
…  … 
BETWEEN: 
… APPLICANT: 
 EP 
La Bordevieille 
32430 THOUX 
… … 
… … 
EN 
REQUEST FOR A PRELIMINARY RULING OF 17. 11. 2020 – CASE C-673/20 
 
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 AND 
 DEFENDANTS: 
 PREFET DU GERS 
(PREFECT OF GERS) 
… 32000 AUCH 
… 
 INSTITUT NATIONAL DE LA STATISTIQUE 
ET DES ETUDES ECONOMIQUES 
(NATIONAL INSTITUTE FOR STATISTICS 
AND ECONOMIC STUDIES; ‘INSEE’)  
… 92120 MONTROUGE 
… 
… [Or. 2] … 
 
PROCEDURE 
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. 
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 Commune of Thoux. 
EP therefore referred the matter to the Electoral Commission of the commune 
pursuant to Article L 18 of the code électoral (Electoral Code). 
PRÉFET DU GERS AND INSTITUT NATIONAL DE LA STATISTIQUE ET DES ÉTUDES ÉCONOMIQUES 
 
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By letter of 3 November 2020, she was informed that the Electoral Commission 
was not due to meet until March 2021, that is, about twenty days before the 
departmental elections. 
As she considered that that response implicitly confirmed the mayor’s refusal to 
re-register her, EP, pursuant to the provisions 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. 
… 
BACKGROUND TO THE DISPUTE  
EP requests that the court: 
– stay the proceedings and refer the questions to the Court of Justice of 
the European Union for a preliminary ruling on interpretation and 
validity (interpretation of Article 50 of the Treaty on European Union 
and of the Agreement on the Withdrawal of the United Kingdom; [Or. 
3] the possibility for UK nationals to retain their rights to EU 
citizenship; infringement of the principle of proportionality; 
infringement of the right to freedom of movement); 
– annul the decisions rejecting her application to be registered on the 
electoral roll of Thoux …; 
… In support of her claims, she points out that another UK citizen, HA, took the 
same action in May 2020 in order to be able to participate in the second round of 
the municipal elections of his commune. The tribunal judiciaire de Limoges 
(Court of Limoges, France) dismissed his action, and that decision was upheld by 
the Cour de cassation (Court of Cassation, France). Those two courts had found 
that the loss of EU citizenship did not disproportionately affect HA’s civil and 
political rights because he had been able to vote in the Brexit Referendum and in 
the general election held in 2019 in the United Kingdom. 
EP points out that her situation is different because she has been living in France 
for 36 years and that, unlike HA, she is the victim of the UK ʻ15-year ruleʼ which 
now prevents her from participating in English elections.  
Second, EP maintains that EU citizenship cannot be automatically revoked, as is 
apparent from several decisions taken pursuant to Article 20 of the Treaty on the 
Functioning of the European Union. Furthermore, the principle of legal certainty 
precludes any form of automatic revocation of any status that is as fundamental as 
that of EU citizenship. If such revocation were possible, it would be tantamount, 
in so far as concerns EP’s case, to preventing her from any participation in the 
democratic process, which would constitute an unacceptable interference with her 
right to be treated in the same way as any other citizen of a Member State, an 
infringement of her fundamental freedom and of her freedom of movement. 
REQUEST FOR A PRELIMINARY RULING OF 17. 11. 2020 – CASE C-673/20 
 
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Third, EP submits that the automatic loss of EU citizenship would be a manifest 
infringement of the principle of proportionality under EU law. 
& 
The Mayor of the Commune of Thoux simply pointed out that the current 
statutory provisions did not enable him to register EP on the electoral roll. 
& 
The Prefect of Gers requests that all the claims raised by EP be rejected.  
He argues that the ratification of the Withdrawal Agreement by the European 
Parliament and the UK Parliament immediately triggered the definitive departure 
of the United Kingdom from the European Union at midnight on 31 January 2020 
and subsequently, for UK nationals in France, the loss of their right to vote and 
stand as candidates in municipal and European elections.  
Article 127 of the Agreement on the Withdrawal of the United Kingdom 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 are not to be applicable to the United Kingdom during the 
two-year transition period provided for by the agreement. [Or. 4] 
Accordingly, Brexit led, on 1 February 2020, to the automatic removal, by 
INSEE, of UK citizens from the supplementary electoral roll pursuant to 
paragraph III of Article L16 of the code électoral (Electoral Code), which requires 
that body to remove from the single electoral register voters who no longer have 
the right to vote. 
EP does not have dual nationality and therefore cannot be re-registered on the 
supplementary electoral roll of the commune of Thoux. 
GROUNDS FOR THE DECISION 
Request for a stay of proceedings 
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.  
PRÉFET DU GERS AND INSTITUT NATIONAL DE LA STATISTIQUE ET DES ÉTUDES ÉCONOMIQUES 
 
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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, without it being necessary to reply to all the arguments put 
forward by EP, it will primarily be held that, since she has been resident in France 
since 29 April 1984, as attested by the evidence submitted in the case file, EP 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.  
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 the provisions of 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, finds herself in a situation in which she is completely deprived of the 
right to vote. [Or. 5] 
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). 
It is not for this court to assess the relevance and reasons for the Agreement on the 
Withdrawal of the United Kingdom from the European Union on 31 January 
2020.  
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On the other hand, 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. 
The reference for a preliminary ruling is lawful as regards procedural 
requirements inasmuch as EP has complied with the time limit for challenging the 
decision which is implicit in the refusal to re-register her on the electoral roll.  
The reference for a preliminary ruling is lawful as regards the substance inasmuch 
as: 
– the dispute falls within the scope of EU law and is neither hypothetical 
nor contrived; 
– the question is new because the contested acts of EU law have not 
previously been declared to comply with EU law in a direct action or 
in preliminary ruling proceedings; 
– the reasons in fact and in law for making a reference for a preliminary 
ruling have been presented; 
– the national provisions which might be affected by the question 
referred for a preliminary ruling are: the decision of the National 
Institute for Statistics and Economic Studies to remove EP from the 
French electoral roll with effect from 1 February 2020, and the refusal 
of 7 October 2020 of the Mayor of Thoux 32430 to register EP on the 
electoral roll of her commune;  
The request for a stay of proceedings will therefore be granted and this case will 
be the subject of questions referred to the Court of Justice of the European Union 
for a preliminary ruling on interpretation and validity as explained above, without 
the need to resort to the expedited procedure.  
… ON THOSE GROUNDS  
The court, by final, inter partes judgment delivered in open court,  
Orders that the proceedings be stayed in respect of all the claims made by EP, 
… Refers the following questions to the Court of Justice of the European Union: 
1. Must Article 50 of the Treaty on European Union and the Agreement on the 
Withdrawal of the United Kingdom from the European Union be interpreted as 
revoking the EU citizenship of UK nationals who, before the end of the transition 
period, have exercised their right [Or. 6] to freedom of movement and freedom to 
settle freely in the territory of another Member State, in particular for those who 
PRÉFET DU GERS AND INSTITUT NATIONAL DE LA STATISTIQUE ET DES ÉTUDES ÉCONOMIQUES 
 
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have lived in the territory of another Member State for more than 15 years and are 
subject to the UK 15-year rule, thus depriving them of any right to vote? 
2. If so, is the combination of Articles 2, 3, 10, 12 and 127 of the Withdrawal 
Agreement, recital 6 of its Preamble, and Articles 18, 20 and 21 of the Treaty on 
the Functioning of the European Union to be regarded as having allowed those 
UK nationals to retain, without exception, the rights to EU citizenship which they 
enjoyed before the withdrawal of their country from the European Union? 
3. If the answer to Question 2 is in the negative, is the Withdrawal Agreement 
not invalid in part in so far as it infringes the principles underlying EU identity, 
and, in particular, Articles 18, 20 and 21 of the Treaty on the Functioning of the 
European Union, and also Articles 39 and [40] of the Charter of Fundamental 
Rights of the European Union, and does it not infringe the principle of 
proportionality, in that it contains no provision permitting them to retain those 
rights without exception? 
4. In any event, is Article 127(1)(b) of the Withdrawal Agreement not invalid 
in part in so far as it infringes Articles 18, 20 and 21 of the Treaty on the 
Functioning of the European Union, and also Articles 39 and 40 of the Charter of 
Fundamental Rights of the European Union, in that it deprives EU citizens who 
have exercised their right to freedom of movement and freedom to settle freely in 
the United Kingdom of the right to vote and to stand as candidates in municipal 
elections in that country and, if the General Court and the Court of Justice 
interpret them in the same way as the Conseil d’État (Council of State, France), 
does that infringement not extend to UK nationals who have exercised their 
freedom of movement and their freedom to settle freely in the territory of another 
Member State for more than 15 years and are subject to the UK 15-year rule, thus 
depriving them of any right to vote?  
…