COMMUNICATION FROM THE COMMISSION on the application of Directive 93/109/EC to the June 1999 elections to the European Parliament Right of Union citizens residing in a Member State of which they are not nationals to vote and stand in elections to the European Parliament

1. Introduction

The right to vote and stand in municipal elections and elections to the European Parliament in the Member State of residence is one of the new rights conferred on Union citizens under the Treaty.

The right to vote and stand in elections to the European Parliament is enshrined in Article 19(2) of the EC Treaty and was put into effect by Council Directive 93/109/EC [1] of 6 December 1993 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 [2].

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

[2] The Directive relates only to voting in the MS 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 country of origin. This is governed solely by the domestic law of the Member State of origin.

Directive 93/109/EC was applied for the first time on the occasion of the elections to the European Parliament in June 1994 [3]. In accordance with Article 16 the Commission reported to Parliament and the Council on the application of the Directive to those elections [4].

[3] The first elections to the European Parliament in Sweden, Austria and Finland were held on 17 December 1995, 13 October 1996 and 20 October 1996 respectively.

[4] COM(1997) 731 final.

Although the Directive does not provide for a second report to be drawn up on the June 1999 elections, an appraisal would appear to be necessary for a number of reasons. The first is the circumstances in which the Directive was applied in 1994; given the date the Directive was adopted, it was incorporated into the Member States' law only shortly before the June 1994 elections (the national implementing legislation was adopted between 22 December 1993 and 11 April 1994), leaving little time for the targeted campaigns needed to inform Union citizens of their rights and how to exercise them. Second, because of the special circumstances of the 1994 elections, the conclusions of the subsequent report were provisional, particularly as regards Article 12 (the duty to inform) and Article 13 (information exchange system to prevent electors voting twice) of the Directive. Finally, as a result of collaboration between the Commission and national government departments, several changes have been made to the detailed arrangements for exchanging information (under Article 13 of the Directive), the effectiveness of which needs to be verified.

The purpose of this communication is therefore to assess the application of the Directive to the June 1999 elections, highlight the main problems that emerged, and publicise and encourage the good practices developed in certain Member States, with the aim of increasing participation by Union citizens in the political life of their Member State of residence.

This communication should also be seen in the light of the Commission's commitment to ensure proper application of Community law and to bring the Union closer to its citizens. The political rights conferred on Union citizens residing in a Member State of which they are not nationals are an important factor in fostering a sense of belonging to the European Union and a key element in successful integration in the Member State of residence.

This communication will concentrate on problem areas, in particular the provision of information to Community nationals and the way the information exchange system works.

2. Directive 93/109/EC

2.1. General presentation

In pursuing the aims laid down in Article 19(2) of the EC Treaty, Directive 93/109 lays down the principles under which Union citizens residing in a Member State of which they are not nationals can exercise their rights in their Member State of residence, provided that they meet the conditions laid down by the electoral law of that State with regard to its own nationals. These principles are:

Freedom of choice

Union citizens are free to exercise their rights in their Member State of origin or in their Member State of residence.

Single vote and single candidacy

No one may vote or stand as a candidate in more than one Member State in the same election to the European Parliament. By opting to vote or stand in one Member State, the Union citizen automatically loses that right in the other Member State. To prevent electors voting or standing twice, the Member States exchange information on their nationals who exercise their electoral rights in another Member State.

First entry on the electoral roll in the Member State of residence by application only

Union citizens who wish to exercise their right to vote in their Member State of residence must apply to be entered on the electoral roll.

Equal access to electoral rights

On the basis of the principle of non-discrimination, Union citizens must enjoy electoral rights in their Member State of residence on the same terms as nationals of that State. This includes, for example, access to the same appeal procedures with regard to omissions or errors in the electoral roll or applications to stand as a candidate, or the extension of compulsory voting to non-nationals. Similarly, once on the electoral roll, the Union citizen remains registered on the same terms as nationals, unless he or she specifically asks to be removed. This also means that Union citizens must be able to participate fully in the political life of their Member State of residence, particularly as regards membership of existing political parties or the setting-up of new political parties.

Extra-territorial effect of the rules on the disqualification of candidates

Persons deprived of the right to stand in their Member State of origin may not be elected to the European Parliament in their Member State of residence.

A duty to inform

To ensure that Community electors living in a Member State other than their own are aware of their new entitlements, the Directive requires the Member State of residence to inform such persons "in good time and in an appropriate manner" of how they may exercise these rights.

Possibility of derogations where warranted by a specific situation in a Member State

Article 14 exceptionally allows for derogations from the principle of equal treatment where this is warranted by problems specific to a given Member State. The Directive contains two derogations. The first relates to minimum residence requirements which may be imposed on non-nationals by Member States where the proportion of Union citizens of voting age who are resident there but not nationals exceeds 20% of all electors. The second concerns Member States in which Community residents have already taken part in national elections and to that effect were entered on the electoral roll under exactly the same conditions as nationals. In this situation the Directive allows the Member States to refrain from applying some of its provisions (Articles 6 to 13) to nationals of other Member States.

2.2. Transposal of the Directive

Under Article 17, the Member States had until 1 February 1994 to incorporate the Directive into national law so that it would be in force by the June 1994 elections.

All the Member States transposed the Directive in time for its application in June 1994, although in many cases the date of implementation was very close to the elections (between 22 December 1993 and 11 April 1994).

Overall, the Directive has been satisfactorily transposed by the Member States, some of which made a few minor amendments to their implementing legislation at the Commission's request.

In one case (involving Germany), the infringement procedure provided for in Article 226 of the Treaty has had to be initiated and pursued up to the reasoned opinion stage. Under German legislation, an electoral roll is drawn up for each election and subsequently destroyed. For the purposes of establishing this electoral roll, the law implementing the Directive made a distinction between electors of German nationality and other Union citizens. German electors were entered automatically on the roll, which was drawn up on the basis of population registers. By contrast, non-German electors could be enrolled only on request, even if their names had been entered on the municipal population register and even if they had already been included on the electoral roll for the previous election and their situation had not changed. Union citizens therefore had to repeat their request for entry on the electoral roll before each election, whereas Article 9(4) of the Directive states that Community voters who have been entered on the electoral roll shall remain thereon, under the same conditions as voters who are nationals, until such time as they request to be removed or until such time as they are removed automatically because they no longer satisfy the requirements for exercising the right to vote.

The infringement proceedings are still in motion. Germany has announced its intention to amend its national legislation to bring it into line with Directive 93/109/EC.

Incorrect transposal of the Directive in Germany had significant repercussions on participation by Union citizens in the June 1999 elections (see point 3.2).

3. The June 1999 elections

3.1. General overview

In general, the June 1999 elections to the European Parliament saw an overall drop in turnout, continuing the trend since Parliament was first elected by direct universal suffrage.

The table giving voting figures in the fifteen Union Member States shows that slight increases in turnout were recorded only in Belgium, Spain, Greece, Ireland and Portugal. However, it is worth noting that the elections in Belgium and Spain were held on the same day as national and municipal elections respectively. In some countries there was a very significant fall in turnout, for example in Finland, Austria and Germany. Turnout in the European Union as a whole fell from 56.5% in 1994 to 49.7% in 1999 (at the first elections, held in 1979, it was 63%).

Overall turnout at EP elections in 1994 and 1999

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3.2. Participation in the June 1999 elections by Union citizens residing in another Member State

Once again the proportion of Union citizens entered on the electoral roll of their Member State of residence was generally low and varied greatly from country to country, as is evident from the following table:

Proportion of Union citizens registered to vote in their Member State of residence

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However, it is worth noting that, in all Member States except Germany, the proportion is on the increase. Moreover, the rate of voter registration is very low in the two Member States which have the greatest number of Union citizens from another Member State (Germany and France - host to 63% of the Union citizens residing in a Member State of which they are not nationals), thus bringing down the Union average (which would be 17.3 % without France and Germany).

Infringement proceedings have commenced against Germany for incorrect transposal of Directive 93/109/EC.

Union citizens registered in 1994 who, as a result of the incorrect transposal, had to apply to be re-entered on the electoral roll in 1999, in breach of the Directive, were not adequately informed of this requirement or of the relevant time-limits. This explains the fall in turnout and prompted most of the complaints to the Commission and petitions to Parliament (see Annex 5).

The percentage of voters registered in France changed very little compared with 1994 (an increase from 3.38% to 4.9%) and remains well below the Union average.

Greece has the lowest rate of registration of all the fifteen Member States, with only very little change compared with 1994.

No figures are available on how many Community citizens residing in a Member State of which they are not nationals actually turned out to vote. The only available figures are for the number of such citizens included on the electoral roll and, in some Member States, the number of such citizens registered to vote in their Member State of origin. However, it can be assumed that the great majority of Union citizens who go to the trouble of asking to be included on the electoral roll actually exercise their right to vote and that, consequently, the abstention rate for such persons is insignificant.

Useful information might be gleaned from a comparison of these figures with those for the number of citizens residing in a Member State of which they are not nationals who vote for lists in their country of origin. Unfortunately, only nine Member States have supplied such data - A, B, D, DK, E, I, IRL, NL and P. Also, some Member States (FI, IRL, L, NL, UK) have not broken down by nationality the data on Community nationals registered to vote, so that no comparison of the two sets of figures is possible. Nevertheless, despite these gaps, Annex 6 does highlight some broad trends. For example, there are enormous differences between Member States: while voting in the country of origin is negligible in some Member States (B, IRL), in others it is more common than voting in the Member State of residence (A, E, I, P). No doubt there are a number of reasons for this state of affairs, such as the provisions of the electoral legislation in the Member State of origin, the extent of effective links with the Member State of origin and the efforts made to inform people and encourage them to vote in the Member State of origin. In any event, this is an additional factor to be taken into account when analysing the turnout of Union citizens in the Member State of residence. No doubt the large proportion of voters who decide to vote for lists in their Member State of origin is also connected with the fact that political debate during the election campaign focuses little on European issues, but mainly on matters of national concern.

It can also be argued that the registration rate is influenced by the growing trend towards short-term stays in another Member State for professional or other reasons.

Union citizens residing in another Member State would probably be more inclined to exercise their electoral rights in their Member State of residence if they felt they were properly represented and their views heard. It is therefore important to give them a real opportunity to play an active part in the political life of their Member State of residence. Annex 5 shows that the right to set up and join political parties in the Member State of residence is not guaranteed in all Member States. The Commission would reiterate [5] that political rights are a necessary precondition for exercising the right to vote and stand in elections enshrined in Article 19 of the Treaty, particularly as in most Member States only political parties are allowed to put forward candidates for the European elections. Without the right to full participation in local political life, the right to stand in elections is incomplete.

[5] See second Commission report on Union citizenship (COM(1997) 230 final), point 1.4.

Against this background it is not surprising that, as in 1994, very few candidates stood for election - or were elected - in Member States of which they were not nationals. The table below shows the number of non-national candidates and the number of non-national elected MEPs in the June 1999 elections in each Member State.

Number of non-national candidates and elected MEPs by Member State

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In 1994, 53 non-national candidates stood for election in their Member State of residence and only one was elected.

3.3. Informing Union citizens (Article 12 of the Directive)

The June 1994 elections were the first in which non-nationals could take part [6].

[6] Except in Ireland and the United Kingdom, which had already granted non-nationals the right to vote.

In its report on the 1994 [7] elections to the European Parliament, the Commission concluded that not enough had been done to inform citizens of their new entitlements. It therefore suggested that Member States should substantially increase their efforts to inform their non-national EU residents as provided for by Article 12 of the Directive. This is particularly the case for those Member States that do not contact their EU citizens individually and make use of administrative posting only. A particular effort should be made to inform EU citizens of registration deadlines.

[7] COM(1997) 731 final.

There is no doubt that an enormous information effort was required if the rights conferred - by virtue of Union citizenship - on more than five million Europeans of voting age living in another Member State were to be exercised, as these citizens were unaware not only of their rights, but also of how to go about availing themselves of these rights in their Member State of residence. Moreover, the relevant procedures might well have differed from those in their Member State of origin.

We may well be justified in thinking that most of the persons concerned are now aware of their right to vote in their Member State of residence, but there is equal justification for supposing that most of them are not sufficiently familiar with the procedures for exercising that right, in particular how to be included on the electoral roll. This point emerges from the complaints received by the Commission and the many petitions handled by the European Parliament's Committee on Petitions (see Annex 5).

The table in Annex 1 shows the type of information campaign conducted in each Member State and the percentage of non-national Union citizens entered on the electoral roll. It is encouraging to note that six Member States sent information direct to potential electors (Denmark, Finland, Netherlands, Spain, Ireland [8] and the United Kingdom [9]). In other Member States (Italy, Germany), some municipal authorities sent the requisite information direct to electors, although it is difficult to evaluate its scope. This type of information once again proved its effectiveness, as the rate of registration of Union citizens in the six Member States named was 23.5%, compared with 9% for the Union as a whole.

[8] Information sent to all households on how to exercise the right to vote.

[9] Idem.

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. A first remark to be made on this Article is that its scope is not confined to the first elections conducted in accordance with the Directive. Nothing in the Article itself or in the general scheme of the Directive points to such a conclusion.

It is also worth noting the difficulties in defining the concept of conveying information "in an appropriate manner". In reply to a Parliamentary question [10], the Commission stated that the only obligation incumbent on Member States is to inform residents in an appropriate manner whereas the choice of the way in which this information is carried out is left entirely to the discretion of the Member States themselves. While Member States are clearly given a broad margin of discretion, information must nonetheless be provided with due regard for the aims of the Article and in line with the stated objectives of the Directive.

[10] Written question No E-3111/95 - OJ C 79, 18.3.1996, p. 50.

The Commission considers that Member States must specifically inform the Union citizens residing on their territory of the detailed arrangements and conditions for exercising their electoral rights. This means that a Member State cannot fulfil its obligation under Article 12 merely by providing the information it normally provides for its own nationals. If this were the case, Article 12 would be deprived of any practical effect, which cannot be allowed. The information must therefore be tailored to meet the specific information requirements of those electors.

The Commission therefore feels that, in assessing whether this provision of the Directive is properly implemented, account must be taken not of the law transposing it but of the practical results of the provision of information and its effects on the turnout of Union citizens in the European Parliament elections. The Commission is aware of the difficulties in laying down minimum thresholds below which Article 12 of the Directive could be considered to be incorrectly applied. The very nature of the exercise means that a case-by-case approach must be adopted rather than setting general criteria or thresholds in advance.

The Commission considers that the Member States where the registration rate is lower than the EU average (which is already low because of the statistical weight of Germany and France) should implement specific information measures, which might include sending personalised information by post or providing EU citizens with appropriate information whenever they have contact with the local or national authorities.

The Commission considers that a very low participation rate well below the Union average, is an indication of inappropriate provision of information and could result in the Member State in question being held responsible for incorrect application of Article 12 of the Directive.

3.4. The information exchange system

Article 13 of the Directive provides that Member States shall exchange the information required for the implementation of Article 4. To that end, the Member State of residence shall, on the basis of the formal declaration referred to in Articles 9 and 10, 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 shall, in accordance with its national legislation, take appropriate measures to ensure that its nationals do not vote more than once or stand as candidates in more than one Member State.

This Article follows naturally from the two basic principles of the Directive: freedom of choice, and a single vote and a single candidacy.

At the 1994 European Parliament elections, the Commission detected a number of flaws in the implementation of the information exchange system. In its subsequent report [11], it stated that its services were working with Member States with a view to:

[11] COM(1997) 731 final, p. 24.

*pinpointing the national authorities to whom the notification must be addressed by the Member State of residence;

*identifying the exact information required by Member States in order to delete a voter's name from their own electoral roll;

*agreeing on a common format for the form used to exchange information;

*exploring ways in which the exchange can be made electronically to speed up proceedings.

However, the Commission went on to state that, should the attempt fail and the system as presently conceived prove to be incompatible with widely different registration deadlines in the Member States, the only alternative would be to amend the Directive.

The Commission has endeavoured to implement these recommendations in close cooperation with the Member States. Efforts have been concentrated on circulating a list of the national authorities responsible for receiving data, defining the data to be sent to the Member State of origin (drawing up a standard form), adopting a single electronic exchange format and laying down the practical arrangements for information exchange (computer diskettes and/or e-mail).

All conceivable measures in connection with the Directive have therefore been taken and their performance in 1999 now needs to be assessed.

In order to assess properly the working of the information exchange system at the June 1999 elections following the changes made, the Commission sent Member States a questionnaire on 12 July 1999 on the application of the Directive to the June 1999 elections. Annex 2 contains their appraisal of the effectiveness of the information exchange mechanism and their thoughts on whether to amend the Directive on this point.

In general, most Member States (B, DK, DE, ES, IRL, IT, P, UK) found that the information exchange system worked better than in 1994.

However, only Austria, Belgium, Denmark and Finland replied in the affirmative to the question of whether the data received made it possible to identify and delete from the electoral roll citizens registered in another Member State. Spain, Italy, Luxembourg, the Netherlands and Portugal were able to do so only partially. Many different reasons are given for the system's lack of effectiveness including:

*incomplete information;

*information received too late;

*illegible computer media;

*unusable information on paper;

*legal obstacles to amending the electoral roll once established.

In general the Member States see no need to amend the Directive with respect to the information exchange system. However, some of them (A, B, I, NL) highlight the need to set a period of time for the information exchange procedure which would allow all Member States to delete the persons in question from their electoral rolls. Others (IRL, UK) even suggest abolishing the exchange system altogether and replacing it with a statement on the part of the elector.

In view of the Member States' replies, it appears that the present system could be retained, subject to a number of practical improvements. For example, further discussion is needed on the data required for identification in each Member State, which vary enormously according to each State's administrative traditions. Practical solutions must also be found to the problems posed by countries which do not have a centralised register.

Nevertheless, we must not lose sight of the fact that the information exchange system must remain simple; otherwise it would be disproportionate to the scale of the problem it sets out to resolve.

The actual exercise of exchanging information threw up a number of new problems, which will no doubt worsen at future elections and must be resolved.

The most serious of these problems - in terms of its consequences - is that electors included on the list communicated, as part of the exchange provided for in Article 13, by the Member State of residence were removed from the electoral roll in their home Member State, although they had already left the territory of the Member State of residence and returned to their home Member State. The persons concerned were deprived of their right to vote in the European Parliament elections. This matter will have to be discussed with the Member States in order to establish the causes and find a practical solution.

Several Member States pointed to the gap in the Directive regarding persons with dual nationality where both countries are EU Member States. In the absence of any relevant provisions in the Directive, this is a potential source of double voting.

However, the question of dual nationality falls outside the scope of the Directive, which is concerned with Union citizens residing in a Member State of which they are not nationals. A citizen who has dual nationality, including nationality of the Member State of residence, is not, by definition, residing in a Member State of which he is not a national.

In any event, whatever the real extent of the problem, dual nationality is a potential source of double voting. It is therefore worth investigating whether this loophole can be closed using the information exchange system. The Commission feels that, although formally this question falls outside the scope of the Directive, it should be examined further in discussions with the Member States on the information exchange system.

Two Member States have raised the question of the different regulations governing residence, which may lead to a situation where a person is considered as legally resident in two different countries. The Commission feels that this problem deserves to be examined and discussed further with the responsible authorities in the Member States.

4. Conclusions

4.1. Informing citizens

Participation in elections in the Member State of residence admittedly depends on various factors and should be seen in the light of the overall reduction in election turnout. Nevertheless the divergences between the rate of registration on the different Member States' electoral rolls are too wide to be attributed solely to factors that cannot be influenced by information campaigns.

The Commission's view is that, although Member States enjoy great discretionary power in choosing the practical arrangements for informing Union citizens, this should be done "in good time and in an appropriate manner". Member States where the rate of registration is well below the Union average (chiefly Greece, Germany and France) must therefore do their utmost to meet in full their obligation to inform Community nationals by improving the effectiveness of information. The Commission feels that these three Member States must now make a start towards achieving that goal.

The Commission encourages all the Member States which have not yet done so to use a system of direct personal letters sent out by post to Community electors residing on their territory. As far as possible, Member States should enable citizens to enter their names on the electoral roll simply by filling in a form and returning it by post.

The Commission feels that other avenues should be explored, in particular the possibility of providing Community nationals with application forms for electoral registration whenever they have contact with the local or national authorities. Efforts must now focus as much on encouraging and helping citizens to enrol in the Member State of residence as on informing them of their right to vote and stand in elections. Whereas traditional information campaigns are mounted only in the run-up to each election, encouraging citizens to register must be a permanent task.

4.2. The information exchange system

Once again, the operation of the information exchange system has proved unsatisfactory. There are two factors at work here - failure by some Member States to adhere to the rules laid down for exchanging information and the electoral legislation of some of the Member States.

In cooperation with the authorities responsible in the Member States, the Commission intends to press ahead with efforts to improve the practical exchange of information within the present legislative framework. The Commission believes there is no need to amend the Directive, even though the lack of harmonised time-limits for inclusion on the electoral roll makes the exercise difficult to put into practice.

The Commission would also stress that any system that is introduced must remain in commensurate with the scale of the problem it is meant to resolve.

Annexes

ANNEX 1

Information campaign

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ANNEX 2

Workings of the information exchange system

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ANNEX 3

Information exchange system

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ANNEX 4

Percentages of potential and actual non-national voters

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ANNEX 5

NUMBER OF COMPLAINTS AND PETITIONS BY MEMBER STATE CONCERNED

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ANNEX 6

Involvement of nationals of other EU Member States in political activity prior to the elections [12]

[12] Table taken from the report on the application of Directive 93/109/EC to the EP elections in June 1994 (COM(1997) 731 final.

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ANNEX 7

Number of nationals resident abroad voting in the Member State of origin and in the Member State of residence [13]

[13] This table shows only general trends, as only nine Member States have sent in data on nationals residing in another Member State who voted for lists in the Member State of origin and only five Member States have broken down by nationality the data on Community nationals on their electoral roll.

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