COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on measures to be taken by Member States to ensure participation of all citizens of the Union to the 2004 elections to the European Parliament in an enlarged Union

1. Introduction

By successfully concluding the accession negotiations in December 2002, the European Union honoured its commitment that the ten acceding States, Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, would be able to participate in the 2004 European Parliament elections as members. [1] These elections will thus take place in a Union of 25 Member States.

[1] Point 7 of the Presidency Conclusions, Copenhagen European Council, 12-13 December 2002, nro 400/02.

Citizens of an enlarged Union will then elect their representatives to a new European Parliament for the period from 2004 to 2009. The new Parliament will have 732 seats, representing the number of seats allocated in accordance with the provisions of the Protocol on the Enlargement of the European Union annexed to the Nice Treaty. [2]

[2] See Article 2 of the Protocol, which stipulates that the total number shall be equal to the number of representatives specified in Article 190(2) of the EC Treaty plus the number resulting from the accession treaties, taking into account the pro rata correction, so that the total number is as close as possible to 732.

Every Union citizen has the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he or she resides under the same conditions as nationals of that State. [3]

[3] Article 39(1) of the Charter of Fundamental Rights of the European Union, OJ C 364, 18.12.2000, p. 1.

The right to vote and stand in elections to the European Parliament is enshrined in Article 19(2) of the Treaty establishing the European Community and was put into effect by Council Directive 93/109/EC [4] laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals (hereafter 'the Directive'). [5]

[4] OJ L 329, 30.12.1993, p. 34.

[5] The Directive relates only to voting in the Member State of residence for the list of candidates of that Member State. Some Member States give their nationals residing in other Member State the right to vote for lists in the home country. This is governed solely by the domestic law of the home Member State, cf. Article 1(2) of the Directive.

2. Purpose of the Communication

As a result of accession, there will be new citizens affected by the right to vote and to stand as a candidate at elections to the European Parliament; citizens of the current 15 Member States living in the ten acceding States and citizens of the ten acceding States living in the current 15 Member States or in other acceding States are all included. These citizens' political rights are fundamental rights acknowledged by the Charter of Fundamental Rights [6] that must be respected already in the first elections after the enlargement.

[6] OJ C 364, 18.12.2000, p. 1.

The official date for accession has been set for 1 May 2004, while the polling days in the elections to the European Parliament are 10-13 June 2004. The tight time schedule means that practical arrangements to prepare for the elections will already start before the official accession.

The Commission stresses the importance of full legal and practical implementation of the Directive in relation to the 2004 elections to the European Parliament. The purpose of this Communication is to add momentum to the implementation process in the acceding States and to the early entry of all citizens on electoral rolls both in the current Member States and in the acceding States.

3. Legal framework for participation to elections to the European Parliament

The detailed arrangements for the exercise of the right to vote and to stand as a candidate in elections to the European Parliament were laid down in 1994 by the Directive. All the Member States have transposed the Directive, generally in a satisfactory manner. [7]

[7] COM(2000)843 final, 18.12.2000: Communication of the Commission on the application of Directive 93/109/EC to the June 1999 elections to the European Parliament.

On joining the European Union, the acceding States are expected to adopt and implement the "acquis". [8] They thus commit themselves to transposing the Directive by the time of accession. None of the acceding States has requested transitional arrangements or derogations concerning the Directive. [9]

[8] This will be binding by the Treaty of Accession due to be signed on 16 April 2003.

[9] The Directive belongs to Chapter 2 of the EU acquis, which has been closed in the negotiations with all the acceding States.

Progress in transposal is presented in Annex 1. It shows that, to date, three acceding States - the Czech Republic, Estonia and Slovenia - have adopted the legislation transposing the Directive.

The Commission urges all acceding States to take the necessary measures to finalise transposal, in order to have a firm legal basis for arrangements concerning the 2004 elections. The Commission follows progress as part of the monitoring exercise, and it recently drew the acceding States' attention to their obligations relating to the elections.

The Directive contains certain requirements concerning electoral procedure from the point of view of non-national citizens of the Union. The Member States and the acceding States have to ensure that steps are taken as follows:

(1) to identify non-nationals entitled to vote and stand as a candidate (Article 3);

(2) to inform them of their rights (Article 12);

(3) to receive expressions of the wish to vote (Article 8);

(4) to enter voters on the electoral rolls and receive applications to stand as a candidate (Article 9 and 10);

(5) to inform those concerned about the action taken on the application for entry on electoral rolls or for admissibility to stand as a candidate (Article 11);

(6) to exchange information with other States to prevent double voting (Article 13).

Besides transposal into legislation, the Member States and the acceding States must take practical measures to apply the main requirements of the Directive correctly in the context of the 2004 elections. Early planning is essential in view of the tight time schedule. As mentioned above, the States will need to carry out part of the practical arrangements already before the official date of accession to ensure that all non-national Union citizens can participate actively on polling day.

4. New Community voters and Community candidates in the 2004 elections

The Directive defines a 'Community voter' as "any citizen of the Union who is entitled to vote in elections to the European Parliament in his or her Member State of residence". A 'Community national entitled to stand as a candidate' (called hereafter a 'Community candidate'), is defined as "any citizen of the Union who has the right to stand as a candidate in elections to the European Parliament in his or her Member State of residence".

According to Article 3 of the Directive the criteria for deciding that a person is a Community voter or a Community candidate are that, on the reference date, he or she is:

(1) a Union citizen within the meaning of Article 17(1) of the EC Treaty;

(2) not a national of the Member State of residence, but satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals.

The basic criterion for the benefit of the Directive is Union citizenship. Article 17(1) of the EC Treaty stipulates that nationals of the Member State are Union citizens. In the context of the accession this means that citizens of the acceding States will officially become Union citizens only when the accession treaties enter into fore and the acceding States accordingly become Member States.

The second criterion is that the person resides in a Member State that is not their home State. The Directive does not define conditions for being resident, but it requires equal treatment with nationals: if in order to vote or to stand as a candidate, nationals of the Member State of residence must have spent a certain minimum period as a resident in the electoral territory of that State, Community voters are deemed to have fulfilled that condition where they have resided for an equivalent period in other Member States.

Otherwise requirements for non-national citizens of the Union to vote and stand as a candidate are regulated by each Member State's national electoral legislation. The requirements must, however, be equal to those imposed on nationals. They must be satisfied on the reference date, which is decided by the law of the Member State of residence.

When applying these criteria in the accession situation, there are three groups of new Community voters and Community candidates:

(1) Current Union citizens (nationals of the current 15 Member States) living in the ten acceding States;

(2) Citizens of the ten acceding States living in the current 15 Member States;

(3) Citizens of the ten acceding States living in other acceding States.

The numbers of new Community voters and candidates per State are presented in the table at Annex 2. It can be seen that there will be a total of almost 1 million new citizens with right to vote and to stand as a candidate in their State of residence in the 2004 EP elections.

5. Informing the new Community voters and candidates of their rights

The 2004 elections are a new situation to the almost 1 million Europeans enjoying the right to vote and to stand as a candidate in their Member State of residence. It is clear that a considerable information effort will be needed if the rights conferred by Union citizenship are to be exercised, as these citizens are unfamiliar not only with their rights but also with how to go about availing themselves of these rights in their Member State of residence. Moreover, the relevant procedures might well differ from those in their home Member State.

Under Article 12 of the Directive, Member States must inform Community voters and Community nationals entitled to stand as candidates in good time and in an appropriate manner of the conditions and detailed arrangements for the exercise of the right to vote and to stand as a candidate in elections in that State.

Full realisation of requirements of Article 12 of the Directive is therefore of the utmost importance. The Commission considers that States must specifically inform new Community voters of the detailed arrangements and conditions for exercising their electoral rights. This means that a State cannot fulfil its obligation under Article 12 merely by providing the information it normally provides for its own nationals. The information must be tailored to meet the specific information requirements of Community voters.

The Commission encourages all Member States and acceding States which have not yet done so to use a system of direct personal letters mailed to Community electors residing on their territory. States can also provide them with appropriate information whenever they have contact with the local or national authorities. As far as possible, States should enable citizens to enter their names on the electoral roll simply by filling in a form and returning it by post. [10]

[10] COM(2000)843 final, 18.12.2000.

6. registration to electoral rolls

Under Article 8 of the Directive, Community voters exercise their right to vote in the Member State of residence if they have expressed their wish to do so. It must therefore be made absolutely clear that nobody may vote more than once at the same elections to the European Parliament, and Community voters must choose to vote either in the home country [11] or in the country of residence.

[11] It is up to the Member States whether they allow their nationals residing in other Member State to vote for lists in the home country. This is governed solely by the domestic law of the home Member State, cf. Article 1(2) of the Directive.

In most cases, a wish to vote is in practice expressed by applying to be entered on the electoral roll of the State of residence. The following table indicates the last dates for Community voters residing in the Member States and in the acceding States to apply for registration in the 2004 elections to the European Parliament.

Deadlines for non-national citizens of the Union to apply for registration regarding the June 2004 EP election

Last date to apply for registration [12] // Member State; Acceding State [13]

[12] The deadlines are estimations, counted on the basis of information received from the States. When polling date was not yet known, 10 June has been used as basis for counting.

[13] The information was not yet available for Latvia and Lithuania.

31 December 2003 // France

15 February 2004 // Hungary

29 February 2004 // Greece, Luxembourg

15 March 2004 // Italy

22 March 2004 // Finland

30 March 2004 // Austria

31 March 2004 // Malta

1 April 2004 // Belgium

2 April 2004 // Cyprus

7 April 2004 // United Kingdom

10 April 2004 // Portugal, Slovenia

11 April 2004 // Poland

28 April 2004 // Netherlands

29 April 2004 // Denmark

30 April 2004 // Slovak Republic

1 May 2004 // Date of accession

2 May 2004 // Czech Republic

3 May 2004 // Spain

14 May 2004 // Sweden, Estonia

23 May 2004 // Germany

26 May 2004 // Ireland

10 - 13 June 2004 // Polling days in the EP elections

It is clear from the table that the deadline for application is before the official date of accession, 1 May 2004 in at least 17 Member States/acceding States. The deadlines in the Czech Republic and in Spain are also so close to the accession date that is not feasible to think that new Community voters would be able to register during the couple of days.

The Commission urges the Member States and acceding States to take specific measures to ensure that all Community voters, including those becoming citizens of the Union in 1 May 2004, are able to apply for entry on the electoral rolls even before official accession.

This request is confirmed by Article 9 of the Directive, which provides that the Member States shall take the necessary measures to enable a Community voter who has expressed the wish to be entered on the electoral roll to be entered sufficiently in advance of polling day.

Lastly, the States must inform those concerned about the action taken on their application for entry on the electoral rolls. Any person who is refused entry on the electoral roll is entitled to legal remedies on the same terms as the legislation prescribes for voters who are nationals (cf. Article 11 of the Directive).

7. Exchange of information to prevent double voting

Article 13 of the Directive provides that Member States shall exchange the information required to implement the ban on double voting. To that end, the Member State of residence is required to supply the home Member State, sufficiently in advance of polling day, with information on the latter State's nationals entered on electoral rolls or standing as candidates. The home Member State, in accordance with its national legislation, must then take appropriate measures to ensure that its nationals do not vote more than once or stand as candidates in more than one Member State

The Commission considers that the acceding States should participate in the information exchange system regarding the 2004 elections and the exchange should also cover new Community voters.

8. Conclusions

The Commission fully recognises that electoral procedures, including time schedules and the rules governing entry on the electoral rolls, are within the powers of the Member States and the acceding States, and the attention of the Member States and the acceding States should be drawn to the importance of guaranteeing the fundamental rights of political participation for all Union citizens in the 2004 elections to the European Parliament. This is essential so that the common project of enlargement is meaningful also at the level of citizens in the whole Europe.

The Commission accordingly recommends that

- The acceding States, who have not yet done so, transpose Directive 93/109/EC without delay, in order to establish a legal basis for the right of Union citizens to vote and stand as candidates in the 2004 elections to the European Parliament;

- the current 15 Member States take the necessary measures to ensure that nationals of the acceding States residing in their territory are entered on the electoral rolls for the 2004 elections to the European Parliament in good time before the elections;

- the acceding States take the necessary measures to ensure that Union citizens residing in their territory are entered on the electoral rolls for the 2004 elections to the European Parliament in good time before the elections;

- the acceding States to take necessary measures to ensure that non-national citizens of other acceding States residing in their territory are entered on the electoral rolls for the 2004 elections to the European Parliament in good time before the elections.

The Commission will monitor the situation. The Commission will also convene a meeting of representatives of the Member States and the acceding States to exchange information on practical arrangements taken at the end of 2003.

ANNEX 1

Transposition of the Directive by acceding States State of play on 6 March 2003

Country // Directive 93/109/EC

Czech Republic // The directive has been transposed by the European Parliament Election Act, adopted on 19 February 2003.

Estonia // The directive has been transposed by the European Parliament Election Act, adopted on 18 December 2002.

Cyprus // Bill, not yet adopted

Latvia // European Parliament Election Bill; not yet adopted

Lithuania // Legislation in preparation; not yet adopted

Hungary // Legislation being prepared by the Ministry of Interior; not yet adopted

Malta // Legislation in preparation; not yet adopted

Poland // European Parliament Election Bill; not yet adopted

Slovenia // Transposed by Act on elections of Slovene representatives to the European Parliament, adopted on 25 October 2002.

Slovakia // European Parliament Election Bill; not yet adopted

ANNEX 2

Community voters covered by Directive 93/109/EC at the 2004 elections

Non-national citizens of the Union and citizens of acceding States (in voting age) residing in Member States and acceding States [14]

[14] The numbers are very rough estimates that serve to give an overall picture of new Community voters. They are based on population statistics of Eurostat, but come from different years, from different collections of population data (e.g. estimations drawn from total population/active population etc).

>TABLE POSITION>

Grey boxes = new Community voters at 2004 elections, in total 964 800