Proposal for a COUNCIL DIRECTIVE laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals
Date: 1994-02-23
Institutions: European Commission
Subjects: EU national, Treaty on European Union, local election, nationality, right to stand for election, right to vote

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

COM(94) 38 final 
Brussels,  23.02.1994 

94/0034(CNS) 

Proposal  for  a 
COUNCIL  DIRECTIVE 

laying down  detailed  arrangements for  the  exercise  of the right to vote 
and to stand as a candidate in  municipal  elections by  citizens of the 
Union  residing  in  a Member  State of which  they  are not  nationals 

(presented  by the  Commission) 

— 
HUB 

m  '•„-.. „-x*i§S 

•«'.i*î., 

•:-..:;..-j^â3 

Contents 

EXPLANATORY  MEMORANDUM 

A.  General  comments 

I.  Nature  and  scale  of the  problem 

1.  Figures 
2.  Local  authorities 

3.  Legal  situation 

II.  Historical  background 

III.  Article 8b(l)  of the Treaty 

1.  General  rules 
2.  Derogations 

IV.  Subsidiarity  and  proportionality 

B.  Comments  on  individual  articles 

Scope 
Definitions 
Conditions governing  the right to vote and  to  stand  as a candidate 
Residence 
Ineligibility 
Incompatibility 
Registration  on  request,  obligation  to vote 
Formal  requirements  concerning registration  as a voter 
Formal  requirements  concerning  applications  to  stand  as a candidate 

Article  1: 
Article 2: 
Article  3: 
Article 4: 
Article  5: 
Article 6: 
Article  7: 
Article  8: 
Article  9: 
Article  10:  Appeals 
Article  11 :  Provision  of  information 
Article  12:  Derogations 
Article  13:  Established  rights 

TEXT OF THE  PROPOSAL 

EXPLANATORY  MEMORANDUM 

A.  General  comments 

I.  Nature  and  scale of the  problem 

I. 

Figures 

Today,  some five million  citizens of the Union  are living in  a Member  State of which 
they  are not nationals. 

Some  130 000  Belgians,  40 000  Danes,  290 000  Germans,  360 000  Greeks,  470  000 
Spaniards,  300 000 French,  630 000  Irish,  1.2  million  Italians,  11 000 Luxemburgers, 
240 000 Dutch,  840 000 Portuguese  and  400 000 Britons  are established  outside their 
home Member  State. 

The number  of  resident  non-nationals  who are citizens  of  other Member  States  stands 
at  approximately  541  000  in  Belgium,  27 000  in  Denmark,  1.3  million  in  Germany, 
50 000 in  Greece, 240  000 in  Spain,  1.3  million  in France, 62 000 in Ireland,  150 000 
in  Italy,  105 000 in Luxembourg,  163 000 in  the Netherlands,  29 000 in  Portugal  and 
880 000 in the  United  Kingdom(1). 

About  4 million  of  these  are  not  entitled  to  vote  or  to  stand  as  candidates  in  their 
Member  State  of  residence.  About  2.6  million  have  lost  their  rights  in  their  home 
Member  States  on  the  sole  ground  that  they  are  resident  abroad.  Some  1.6  million 
citizens of the Union  must travel  to their home Member  State in  order to vote in local 
elections there. 

2. 

Local  authorities 

(a)  Without  going  into  detail,  we  can  identify  a number  of features  shared  by  local 

authorities  in  all  Member  States(2): 

They  have  a  defined 
administrative  unit  for  central  government  purposes too. 

territory,  which 

is  very  often 

treated  as  an 

They  have a measure  of independence(3) given  them  by the  constitution  or 
by statute, either in general terms or by means of a list of  specified  powers. 
In  many  Member  States they  do  not  only  act  in  their  own  names  but  also 
exercise  certain  powers on behalf  of  central  government. 

(1) 

(2) 

(3) 

Eurostat  population  statistics,  1992. 
See Alain Delcamp, Les institutions locales  en Europe, Paris  1990, p. 41. 
See for  example Article  3 of the European Charter of Local  Self-government  agreed in 
the Council  of Europe framework  in  1985. 

There is always a representative council  elected by direct universal  suffrage. 

They  are provided  for  by law, by  statute if  not by  the constitution,  and are 
subject  to  the  supervision  of  central  government(4).  Statute  law  most  often 
lays down the  composition  of  councils and  executives, the  mechanisms by 
which  their  members  are  to  be  designated,  their  powers,  the  resources, 
particularly  financial  resources, which  are to be available to them,  and any 
supervisory  mechanisms. 

(b)  Local  authorities can also be classified  according to their place in the structure of 
government in their Member  State.  A distinction can be made between the basic 
local  government  units and  subordinate  local  government units: 

(aa)  Basic  local  government  units  are  the  authorities  closest  to  the  citizen.  They  are 
given a measure of independence by the constitution or by statute, and handle the 
main local government tasks. They have their own territory, their own democratic 
institutions  and their  own  staff. 

These  authorities  are  the  following:  Belgium:  commune/gemeente/Gemeinde 
Denmark, primaerkommune,  amishommune;  Germany: Gemeinde,  Kreis; Greece 
koinotis, dimos;  Spain:  municipio; France  and  Luxembourg:  commune;  Ireland 
county, county borough,  urban district, non-county borough,  town; Italy:  comune; 
Netherlands:  gemeente;  Portugal:  municipio,  United  Kingdom:  county,  district, 
in  Scotland,  region  and 
metropolitan  district,  London  borough  and, 
islandauthority. 

The  number  and  size  of  the  basic  local  government  units  is  extremely  variable 
from  one Member  State to  another: 

(4) 

See for  example  Articles  8 and  11 of the European  Charter of Local  Self-government. 

4 

Table 1 : Number and population of basic local government units 5 

Member State 

Number 

Average  size 

Minimum 

Maximum 

Belgium 

Denmark 
Germany 6 
Greece 

Spain 

France 

Ireland 

Italy 

Luxembourg 

Netherlands 

Portugal 

United 
Kingdom 

589 

276 

8.592 

5.761 

8.150 

36.600 

88 

8.000 

118 

700 

305 

444 

16.890 

18.600 

7.050 

1.740 

4.780 

1.580 

39.750 

2.500 (5 %) 

< 500 (53 %) 

< 500 (60 %) 

< 500 (61 %) 

7.190 

< 1000 (22%) 

3.200 

21.270 

< 5000 (10 %) 

33.890 

129.040 

< 75.000 

470.000 

503.000 

2.068.300 

885.730 

3.100.500 

2.152.000 

502.700 

2.816.400 

74.400 

700.000 

829.600 

810.000 

5 
6 

See Jacques  Ziller, Administrations  comparées, Les systèmes  politico-administratifs  de l'Europe de Douze, Paris  1993,  p. 180 
Before  reunification. 

Table 2 : Comparison  between number and population of basic local government units  7 

Member State 

Total 
population 

(rounded 
figure) 

o 

' 

\ 

B 

DK 

D 

EL 

E 

F 

IRL 

I 

L 

NL 

P 

UK 

9.000.000 

5.000.000 

80.000.000 

11.000.000 

38.000.000 

57.000.000 

3.000.000 

56.000.000 

400.000 

14.000.000 

10.000.000 

56.000.000 

Population over 10 000 ha 

1000 to 10.000 ha 

Less than 1000 ha 

% 

Number 

51,0 

18,5 

13,1 

1,5 

6,7 

2,3 

3,8 

16,0 

5,0 

51,0 

74,0 

100,0 

303 

45 

1.105 

91  I 

547 

765 

21 

1.292 

5 

367 

203 

481 

% 

49 

82,5 

50 

18,5 

33 

19,3 

30,6 

62,0 

48,0 

48,0 

26,0 

Number 

286 

227 

4.250 

1.114 

2.689 

6.886 

171 

5.006 

61 

340 

72 

% 

-

1,0 

38,9 

80,0 

60,3 

78,4 

65,6 

22,0 

47,0 

1,0 

Number 

. 

3 

3.145 

4.817 

4.914 

28.782 

558 

1.776 

60 

7 

_ 

7  See  Jacques  Ziller,  Administrations  comparées,  p.  181 

(bb)  There are subordinate local  authorities which at first sight appear closer again to 
the citizen.  But they are indeed subordinate to the basic unit both in law and in 
practice,  have very  limited powers,  and usually  cover  a subdivision  of the basic 
authority's territory(8). 

These  are  small  districts  or  neighbourhoods  in  certain  German  Lander 
(Stadtbezirke,  Gemeindebezirke,  Ortsbezirke,  Ortschaften,  Ortsteile)(9), 
neighbourhood  or community  councils  in Greece,  neighbourhoods or districts in 
Italy  (circoscrizioni), local  districts  in  some  Spanish  regions  (entidades locales 
menores), sections de communes and arrondisements in France(,0), neighbourhood 
councils in the Netherlands (deelgemeenten), parishes in Portugal (freguesias) and 
parishes and communities in the United Kingdom(11). 

3.  Legal  situation 

(a)  The right to vote and to stand as a candidate 

The right to  vote  and to  stand  as  a  candidate  in  municipal  elections  as  a rule 
depends on nationality or residence, or both, according to the political tradition of 
the  Member  State.  These  Member States  whose  legal  and  political  tradition  is 
strongly  marked  by  Roman  law  and the  French  revolution  tend  to  look  at the 
question in terms of nationality, while the United Kingdom (for historical reasons) 
and Ireland attach more importance to residence. 

At the present time the constitutions of half the Member States confine the right 
to vote and to stand as a candidate to their own nationals (Belgium (Article 4(2)), 
Germany (Article 20), Greece (Article  51), France (Article  3), Italy (Article 48), 
and Luxembourg (Articles 52 and 107)). 

(8)  Obviously their profile,  powers and legal  status are not the same in all  Member States. 
Their  profile  is  highest  in  the  United  Kingdom  (parishes  in  England,  communities in 
Scotland and Wales) and Portugal  (freguesias).  In France, sections de communes have 
legal  personality. 
In  Baden-Wurttemberg,  Bavaria,  Hesse,  Lower  Saxony,  North  Rhine-Westphalia, 
Rhineland-Palatinate,  Saarland,  Schleswig-Holstein,  and  the  city-states  of  Bremen, 
Berlin and Hamburg. Not all of the new Lander in eastern Germany have yet established 
new local  government structures. 

(9) 

(10)  Only the cities of Paris, Lyons and Marseilles are divided into arrondissements. 
(11)  Parishes exist only in England.  The approximate equivalent in Wales is the community. 

In Scotland the establishment  of communities is optional. 

Three  Member  States -Portugal,  Spain  and  the  United  Kingdom  -  give  voting 
rights to certain  foreigners  only.  In the case of Portugal  and the United  Kingdom 
this  is  due  to  historical  links  with  other  countries.  In  the  United Kingdom  all 
citizens  of  Ireland  and  all  Commonwealth  citizens  are  entitled  to  vote  and  to 
stand.  Portugal  gives 
to  nationals  of 
Portuguese  speaking  countries,  subject  to  reciprocity;  in  practice  the  rule  is 
applied  only  to Brazilians.  In  Spain  the  right  to vote  is to be granted  to  resident 
foreigners  subject  to  reciprocity,  but  because  the  necessary  bilateral  agreements 
have  not  been  concluded  or  have  not  entered  into  force(12)  this  rule  has  not  yet 
been  applied. 

to  vote  and 

the  right 

to  stand 

Denmark,  Ireland and the Netherlands give foreign  residents the right to vote and 
to  stand,  on different  conditions. 

Ireland  treats  national  and  non-national  residents  in  precisely  the  same  way 
(Section  2 of the Electoral  Amendment  Act  1985). 

In Denmark and the Netherlands non-national residents must meet certain  specific 
conditions  in  order  to  qualify.  In  both  countries  they  must  show  that  they  have 
been  living  in  the  country  for  a  minimum  period  (in  Denmark  three years, 
under  §  1  of  the  Local  Elections  Act;  in  the  Netherlands  five  years,  under 
Article B  1  A of the Elections  Act). In the Netherlands it is also stipulated that the 
person  concerned  must have a right of  residence,  and  may  not be working  in the 
service  of  a foreign  State  (Article  B.l.A  of  the  Elections  Act,  Article  21  of  the 
Municipalities Act). 

In those Member  States where non-nationals  are free  to vote and to  sit on  local 
councils, there are no specific provisions to prevent them from  taking part in local 
elections  in their  country  of origin  as well. 

Eight Member  States do not permit their own nationals to vote or to stand if they 
are  resident  outside  the  country.  In  Greece  and  Italy  voters  living  abroad  must 
travel  to  their  country  of  origin  to  vote  in  local  elections.  Only  in  the  case  of 
France  and  Spain  do citizens resident  abroad  retain  their voting rights in  full. 

(b)  Link  with  the place 

In  all Member  States a person  wishing to vote or to stand  as a candidate in local 
elections  in  any  of  the  basic  local  government  units  must  already  have  some 
specified  and  stable link  with  the place. 

(12)  An  agreement  between the Netherlands  and  Spain  concluded  on 23 May  1989 has not 

yet been  implemented. 

8 

As far as voting rights are concerned, all  Member  States require the voter to have 
his  domicile,  principal  residence*,3)  or  ordinary  residence  in  the  basic  local 
government unit in which he proposes to vote; the precise requirement varies from 
one  country  to  another.  In  three Member  States voters must  have been  resident 
there for  a minimum  period  (six months in Belgium, from  three to six months in 
Germany  depending  on  the  Land,  and  two  years  in  Greece  if  the  voter  has 
changed the unit in which he proposes to vote).  In other countries the voter must 
show that he was resident in the place on a stated reference date (Denmark,  Spain, 
France, Ireland, Italy, Luxembourg, Portugal  and the United  Kingdom).  In seven 
Member  States  a voter  must  also  satisfy  the general  obligation  to be  entered  on 
the  local  register  of  population  (Belgium,  Denmark,  Germany,  Spain,  Italy, 
Luxembourg  and  the Netherlands). 

In  two  Member  States  the  national  legislation  links  the  right  to  vote  to  the 
municipality  of  birth  (Greece  and,  for  emigrants  only,  Italy).  In France  anyone 
who has been entered on the income tax register for a particular municipality five 
times without  interruption  is entitled  to vote there. 

As  a  general  rule  candidates  seeking  office  in  the  representative  council  or 
executive  of  a  basic  local  government  unit  must  also  demonstrate  a  link  of  a 
specified  kind  with  the place.  According  to the Commission's  information  most 
Member  States  required  the  candidate  to  show  that  he  has  his  domicile  or 
principal  residence  there  (Belgium,  Denmark,  Germany,  Luxembourg,  the 
Netherlands, Portugal and the United  Kingdom).  In the United  Kingdom one may 
stand for election in a basic local government unit in which one has occupied land 
or  carried  on  one's  principal  business  for  the  twelve  months  preceding  the 
reference  date  (10 October).  In  France  one  must  be  entered  on  the  municipal 
income  tax  register,  or  show  that  one  should  have  been  entered  there,  on 
1 January  of the year  of the election. 

(c)  Disqualification 

The national  rules on disqualification  vary widely and are a reflection  of  different 
legal  traditions. 

(aa)  Disqualification  from  voting 

Members  of  the  electorate  may  be  disqualified  from  voting  by  means  of  an 
individual  decision  taken  on a variety  of grounds: 

A  criminal  conviction  may  entail  disqualification 
ten 
Member  States.  The  exceptions  are Denmark  and  Ireland.  In Ireland,  however, 
a person detained in any premises in legal  custody  must be registered in the place 
where  he would  have been  residing but  for  his having  been  so detained  in  legal 
custody.  Prisoners therefore  retain their right to vote and, if at liberty  on polling 
day,  may  exercise that right. 

from  voting 

in 

(13)  The concept  of  "principal  residence" used  in  other Member  States is  similar to that of 

"ordinary  residence"  in  Ireland  and the UK. 

In  Denmark  there  is  not  at  present  any  legal  basis  for  depriving  a  voter  of  the 
right  to vote on  the ground  that  he has been  given  a criminal  sentence. 

Other  grounds  for  disqualification  from  voting  are  moral  unfitness  in  Italy  and 
conviction  for  corrupt  or illegal  practice  in the United  Kingdom. 

Majors  under  some  form  of  guardianship  and  persons  suffering  from  mental 
disorder  are deprived  of the right to vote in ten Member  States.  Italy  is the sole 
exception.  In the  United  Kingdom  disqualification  may  result  from  the fact  that 
patients in mental hospitals are deemed to have no ordinary residence for electoral 
purposes. In Ireland, the situation of patients in mental hospitals is broadly  similar 
to  that  of  prisoners.  In  Denmark,  only  persons  declared  incapable  of  managing 
their  own  affairs  are deprived  of the right to vote. 

The  status of decisions to disqualify  from  voting vary  between  Member  States: 

A  voter  given  a  criminal  sentence  may  be  deprived  of  his  right  to  vote 
automatically,  by  operation  of  law,  or  disqualification  may  require  an  express 
decision  on  the  part  of  the  court.  In  Belgium,  France,  Italy,  Luxembourg  and 
Portugal disqualification  from  voting is an automatic consequence of a conviction 
for  certain  crimes.  In  the  UK,  disqualification  from  voting  is  an  automatic 
consequence  of  being  convicted  and  sentenced  to  a  term  of  imprisonment.  In 
Germany,  on  the  other  hand,  and  in  certain  situations  in  Spain,  France, 
Luxembourg,  the Netherlands  and Portugal,  a specific  court  decision  is required. 
In  Ireland  disqualification  in  practice  results  from  the  fact  that  the  elector  is 
imprisoned,  and  consequently  deprived  of his  ordinary  residence. 

The  national  systems  can  also  be  classified  by  reference  to  the  grounds  for 
disqualification.  In  Belgium,  France,  Luxembourg,  the  Netherlands  and  the 
United  Kingdom  disqualification  is  normally  linked  to  a  minimum  sentence  or 
conviction  for  a  particular  class  of  offence. 
In  Germany,  Greece  and  Portugal 
disqualification  is normally confined  to the offences  listed by law.  In France and 
the Netherlands the legislation  departs from  the general  principle and lists certain 
articles  of  the  penal  code  infringement  of  which  may  be  grounds  for 
disqualification  from  voting.  In  Spain disqualification  from  voting is a matter  for 
the  discretion  of  the  courts.  In  certain  cases  courts  in  France,  Luxembourg,  the 
Netherlands  and Portugal  have  a similar  power. 

As  a  general  rule  disqualification  from  voting  follows  automatically  where  a 
person's affairs  have to be managed for  him, or where he is confined  in a mental 
hospital.  In the United  Kingdom  the mentally  ill  in  confinement  are  considered 
to be without an ordinary residence.  In Denmark confinement  in a mental hospital 
from  voting.  In  Spain  and  Portugal 
does  not 
disqualification  from  voting  requires  an  express  decision.  In  Italy  majors  in 
guardianship  are entitled to vote, as an Act of Parliament has removed the earlier 
restrictions  permitted  by  the  Constitution.  In  the  United  Kingdom  the  mentally 
ill  may  exercise the right to vote  during  lucid  intervals. 

to  disqualification 

lead 

10 

It  is the  courts  who impose  criminal  convictions.  Decisions  on  guardianship  or 
the  confinement  of  the  mentally  ill  are  sometimes  taken  by  administrative 
authorities. 

As  far  as the  effect  of  foreign  decisions  is  concerned,  it  would  appear  that  as a 
general  rule a criminal  conviction  imposed  by a foreign  court  will  not  disqualify 
from  voting in the Member  State of origin.  The United  Kingdom  is an exception 
to  this  rule:  in  UK  law  the  test  is  whether  the  person  concerned  is  actually 
imprisoned  or  unlawfully  at  large,  and  not  whether  he  has been  sentenced  by  a 
domestic  or foreign judge. 

Under the rules  of  private  international  law,  an  enforceable  foreign  judgment  in 
a  civil-law  case  may  result  in  disqualification  from  voting  in  Germany  and 
Greece, and in certain cases in Belgium  and France.  In the Netherlands an elector 
can  never be deprived  of his right to vote except by  decision  of a Dutch  court. 

(bb)  Disqualification  from  standing  as a candidate 

The general  approaches  taken  fall  into three categories. 

In  Belgium,  Italy  and  the  Netherlands  the  grounds  for  disqualification  from 
standing  are the  same as those for  disqualification  from  voting. 

In Denmark,  Germany,  France and  Luxembourg the grounds for  disqualification 
from  voting  hold  good  for  disqualification  from  standing  too, but  there  are  also 
further  grounds  for  disqualification  from  standing. 

In  Greece,  Spain,  Ireland,  Portugal  and  the  United  Kingdom  the  rules  on 
disqualification  from  standing are different  from  those governing  disqualification 
from  voting.  In  Ireland  persons  who have been  given  a criminal  conviction  are 
disqualified  from  standing  only when  serving a prison  sentence of more than six-
months imposed  by  an  Irish  court. 

Looking  at  the  substance  of  the  rules,  two  types  of  arrangement  can  be 
distinguished. 

Certain  criminal  convictions  can  lead  to  disqualification  in  Belgium,  Germany, 
Greece,  Spain, 
the 
United  Kingdom. 

the  Netherlands  and 

Italy,  Luxembourg, 

Ireland, 

Under the law of Germany, Ireland, Italy and the United  Kingdom, bankrupts and 
persons  who for  other  reasons  are  considered  unfit  to  hold  elected  public  office 
In  Denmark  a  person  may  be  disqualified  only  if 
are  generally  disqualified. 
convicted  for  behaviour  generally  regarded  as  rendering  him  unfit  to  sit  on  the 
local  council.  An  elected  candidate  may  be  declared  to  be  an  unfit  person  and 
thus deprived  of his seat, but such  convictions  may never  be relied  on to prevent 
someone standing for  election. 

11 

(d) 

Formal  requirements 

In  all  Member  States citizens  have to complete  certain  formalities  in  advance  of 
polling  day  if they  are to be able to exercise their  right  to vote  and to stand  as a 
candidate  at  a  particular  election  in  any  given  local  government  unit  or 
constituency. 

(aa)  Exercise  of the right to vote 

In  order  to  be  able  to  exercise  their  right  to  vote,  citizens  of  voting  age  must 
normally  appear  on  the  electoral  roll  drawn  up  for  the  constituency  or  local 
government  unit  in  question.  There are  four  different  kinds  of  arrangement  for 
entry  on the electoral  roll: while France and Greece apply the principle whereby 
each  individual  has to  ask  for  his name to  be  entered,  in  Spain  and  Italy  voters 
can only be entered automatically.  In the other Member  States, with the exception 
of  Portugal,  voters  are  normally  entered  automatically  but  certain  categories  of 
people  can  be  entered  on  the  roll  at  their  request. 
In  Portugal,  where  it  is 
normally up to the individual to apply, the administration must automatically enter 
on the electoral  roll  all  voters of whose existence  it is aware. 

In  some Member  States where entry on the roll  is automatic (Belgium, Denmark, 
Germany,  Spain,  Italy,  Luxembourg  and  the  Netherlands)  the  electoral  roll  is 
normally  drawn  up  on  the  basis  of  the  information  on  another  public  register, 
notably  the population  register  or the register of births, marriages and  deaths.  In 
the  United  Kingdom  and  Ireland,  on  the  other  hand,  voters  are  registered 
automatically  on  the  basis  of  any  relevant  information  collected  by  the 
registration  officer  after  he  has  made  the  necessary  enquiries.  Clearly,  in  those 
Member  States  where  individuals  have  to  apply  to  be  entered  on  the  roll,  they 
have  to  furnish  the  competent  authority  with  all  the  necessary  information  and 
supporting  documents when  making their  application. 

In Denmark,  Greece, Spain, France, Ireland, Italy, Luxembourg, Portugal  and the 
United  Kingdom  electoral  rolls are periodically  revised.  In  most  of them  this is 
In  Belgium,  Germany  and  the 
done  once  a  year,  and  twice  a  year  in  Italy. 
Netherlands  new electoral  registers  are drawn  up before  each  election. 

In most Member  States the electoral  roll has to be published before it is finalized; 
Belgium  and  the  Netherlands  are  the  exceptions  to  this  rule.  Voters  there  are 
entitled  to be informed  whether  or not they  are on the electoral  roll. 

is  refused,  citizens  can  seek  judicial  review 

in  all 
Where  registration 
Member  States.  Before  taking  the  matter  to  the  courts,  they  must  apply  for 
administrative  review  in  Belgium,  Denmark,  Germany,  Spain,  Ireland,  Italy, 
Luxembourg,  the  Netherlands,  Portugal  and the  United  Kingdom. 

(bb)  Exercise  of the right to  stand  as a  candidate 

When lodging their application, persons entitled to stand normally have to provide 
the  administration  with  a  number  of  particulars  and  supporting  documents 
concerning  their personal  situation. 

12 

II.  Historical  background 

Article  8b(1) of the Treaty  is in  some ways the culmination  of a political  debate which 
began  in the early  1970s.  It had become clear at that time that the millions of migrant 
workers  who  had  left  the  Mediterranean  countries  with  their  families  to  work  in  the 
industrialized  countries of western and northern  Europe would not be returning to their 
countries  of  origin,  and  would  be  settling  permanently  in  their  host  countries.  The 
number  of Italian  and  later Greek,  Portuguese  and  Spanish  immigrants meant  that to a 
great  extent this migratory  movement  took place inside the Community.  As it became 
clear that the migration was permanent, the question was asked whether the Community 
should  confine  itself  to  guaranteeing  Community  migrants  a  right  of  residence  and 
certain  social  entitlements,  or  whether  it  should  go  further  and  give  them  certain 
political  rights too, chief among these being the right to vote and to stand as a candidate 
at local  elections. 

The European  Council  meeting  in  Paris in  June  1974  asked  a working  party  to  study 
"special rights" for  citizens  of the Member  States.  When  the Commission  submitted  a 
report on the subject in  1975, which among other things proposed a right to vote at local 
elections, it was not favourably  received by the Council(14). But the idea put forward by 
the Commission  was taken  up by the European  Parliament,  which maintained  constant 
political  pressure between  1977 and  1983(,5). 

In  1985  the  Adonnino  committee,  set  up  at  the  European  Council  meeting  in 
Fontainebleau,  recommended  to  the  Milan  European  Council  that  discussion  of  this 
subject  should  continue,  through  it  stressed  that  the  matter  was  one  within  the 
competence  of  the  Member  States.  In  1986 the  Commission  submitted  to  Parliament, 
at its request(16), a report on voting rights in local  elections for  Community  nationals07). 

Parliament  asked the Commission to act immediately  (Vetter Report of  1987)(18) and in 
1988  the  Commission  submitted  a  proposal  for  a  directive  on  voting  rights  for 
Community  nationals in local  elections in their Member  State of residence(19), which  it 
amended  in  1989(20).  The Council  suspended  discussion  of the proposal  in view  of the 
work  of the intergovernmental  conference  drawing  up the Treaty  on European  Union. 

Article  8b(l)  of  the Treaty  on  European  Union  declares  citizens of  the  Union  entitled 
to  vote  and  to  stand  as  candidates  at  municipal  elections  in  their  Member  State  of 
residence. 

(,4)  Between  1976  and  1979  Coreper  discussed  a  report  and  preliminary  draft  resolution, 

0 5) 

(16) 

(17) 

(18) 

(19) 

(20) 

without  reaching  agreement. 
Resolution on the granting of special  rights to the citizens of the European  Community: 
OJ C 299,  12.12.1977, p. 26; Macciocchi  report:  OJ C  184,  12.7.1983, p. 28. 
Resolution:  OJ C 345, 31.12.1985, p. 82. 
Bulletin  of the European  Communities,  Supplement  7/86. 
OJC  13,  18.1.1988, p. 33. 
OJC  246, 20.9.1988, p. 3. 
OJC  290,  18.11.1989, p. 4. 

13 

In  1992 agreement  was reached  in the  Council  of  Europe framework  on a  Convention 
on  the  Participation  of  Foreigners  in  Public  Life  at  Local  Level, which  was  signed  by 
several Member  States (Denmark,  Italy and the United  Kingdom); Article  6 provides for 
the right  to vote  and  to  stand  for  election  for  all  foreign  residents*21 \ 

HI.  Article  8b(n  of  the  Treaty 

1.  General  rules 

(a)  Like  paragraph  2  of  Article  8b,  which  deals  with  elections  to  the  European 
Parliament,  paragraph  1 of the Article does not  seek to align  all the legislation  in 
the Member  States on the subject  of local elections: its purpose is a great deal less 
ambitious, and extremely  specific.  It sets out to remove the obstacles still  present 
in  the  legislation  of  the  various  Member  States  which  prevent  citizens  of  the 
Union  from  exercising  the right to  vote  and  to  stand  as candidates  at  municipal 
elections  in their  Member  State of residence whether  or not they are nationals of 
that  country.  The  main  objective,  therefore,  is  to  replace  the  nationality 
requirement by the requirement of citizenship of the Union. The Community  rules 
can therefore  be  confined  to what  is  strictly  necessary  to achieve this  objective. 

(b)  Like paragraph  2, paragraph  1  of Article  8b provides that Union citizens who are 
not  nationals  are to  have  the  right  to vote  and  to  stand  as candidates  "under  the 
same  conditions"  as  nationals;  it  introduces  the  principle  of  equal  treatment  of 
Union  citizens,  both  national  and  non-national.  Under  this principle  identical  or 
similar  situations  are  to  be  treated  in  the  same  way;  situations  can  be  treated 
differently  only  where  they  are  dissimilar.  No  special  requirements  are  to  be 
imposed  on  non-nationals  unless  there  is  a  difficulty  specific  to  non-nationals 
which justifies  a difference  of  treatment. 

(c)  Article  8b(l)  gives the  citizens  concerned  the  freedom  to take  part  in  municipal 
elections in their Member  State of residence. They may choose to avail themselves 
of  this  entitlement.  Only  then  will  they  be  subject  to  the  obligation  to  vote  in 
those  countries  where  voting  is  compulsory.  The  paragraph  does  not  affect  the 
right to vote and to  stand  as a candidate  in the home  Member  State  if  that right 
has not been  lost. 

(d) 

In  addition  to equal  treatment  Article  8b(l)  lays  down  two  other  principles,  the 
requirement  of  citizenship  of  the  Union  and  the  requirement  of  residence.  The 
concept  of  citizenship  is  clarified  by  the  "Declaration  on  Nationality  of  a 

(2D 

..(I)  E a cn  pa r ty  undertakes, subject to the provisions of Article  9, paragraph  1, to grant 
to  every  foreign  resident  the  right  to  vote  and  to  stand  for  election  in  local 
authority  elections,  provided  that  he fulfils  the  same legal  requirements  as apply 
to nationals  and  furthermore  has been  a lawful  and  habitual  resident  in the  State 
concerned  for  the five years  preceding  the elections. 

(2)  However,  a  Contracting  State  may  declare,  when  depositing  its  instrument  of 
ratification,  acceptance,  approval  or  accession,  that  it  intends  to  confine  the 
application  of paragraph  1 to the right to vote only." 

14 

Member  State" annexed  to the Treaty, but the concept  of residence is not  further 
clarified  in  the  Treaty  itself.  In the absence  of  any  alignment  of  Member  States' 
legislation  on the  point,  there  is no need  for  this Directive  to provide  a  uniform 
definition  of  residence;  leaving  it  undefined  will  ensure  the  greatest  possible 
measure  of equality  in the requirements  for  nationals  and  non-nationals. 

(e)  Given  the  profusion  of  administrative  and  electoral  arrangements  in  the 
Member  States, the term  "municipal  elections"  is in need  of clarification.  In  fact 
the  different  language  versions  of  the  Treaty  do  not  correspond  exactly.  The 
versions  in English  (municipal elections/22\  Spanish  (elecciones municipale sf1^, 
(elezioni comunali),  Dutch 
French 
(gemeenteraadsverkiezingen)(25)  and  Portuguese  (eleiçôes municipals)  refer  only 
to 
in  Danish 
(/communale  valg)(2(i\  German  (Kommunalwahlen){21) and  Greek  (di mot ikes  kai 
koinotikes  ekloges)  cover  not  just  that  level  but  a  second,  higher  tier  of  local 
government  as well. 

(élections  municipales/24\ 

local  government.  But 

the  versions 

tier  of 

Italian 

first 

the 

Definitions  accordingly  have to be provided  of the type of election, the offices  to 
be fille d and the level  of local  government. 

As  far  as  the  type  of  election  is  concerned,  it  is  clear  that  paragraph  1 of 
Article  8b,  like  paragraph  2,  refers  only  to  elections  by  direct  universal 
It  is  not  concerned  with  elections  inside  the  local  council  -  a 
suffrage. 

(22)  See the UK Representation of the People Act  1983, s 191(1).  Legislation in the UK and 
Ireland  usually  distinguishes between  "parliamentary  elections" and  "local  government 
elections", which include elections at all levels of local  government,  including parishes, 
districts and counties.  Under the Municipal  Reform  Act  1835, "municipal corporations" 
were formed  by the population  of a "borough".  Under the UK Local  Government  Act 
1972 the  "boroughs" were  absorbed  by  "districts". 

(23)  See  Title  III  (Disposiciones especiales para  las  elecciones  municipales)  of  the  Ley 
Orgânica of  19 June  1985;  the  election  of  provincial  representatives  is governed  by 
Title  V  of  the  same  law  (Disposiciones  especiales  para  la  election  de  diputados 
provinciales). 

(24)  See  Title  IV  of  the  Electoral  Code,  Dispositions spéciales à  l'élection des conseillers 
municipaux  et  des  membres  du  Conseil  de  Paris; 
however,  the  election  of 
representatives to  sit on  the councils  of departments  is dealt  with  in  Title III.  Belgian 
legislation  distinguishes  between  elections  at  parliamentary,  provincial  and 
commune/gemeente/Gerneinde  ("municipality") level. 

(26) 

(25)  See part  II  of the  Dutch  Electoral  Act  (Kieswet).  "De verkiezing van de leden van de 
Tweede  Kamer  der  Staten  Generaal,  van  de  provinciale  staten  en  van  de 
gemeenteraden. " 
The Local  Elections Act applies both to municipalities (primœrkommuner) and  counties 
(amtskommuner), and  in  fact  entitles  all  foreigners  resident  in  Denmark  for  at  least 
three years to vote  and  to  stand  for  election. 
The  Kommunalwahlgesetz of  North  Rhine-Westphalia  is  a  good  example  of  the 
legislation  of  the  German  Lander  on  the  subject,  which  always  applies  both  to 
municipalities (Gemeinden) and counties (Kreise).  When it ratified the Treaty Germany 
amended  the  constitution  to this  effect  (Article 28(1). 

(27) 

15 

French  mayor,  for  example,  is  elected  by  the  municipal  council  -  or  with 
elections  within  executive  boards  such  as  exist  in  Belgium  or  Germany. 
There is no "municipal  election" within the meaning of the Article where the 
municipal  council  designates special  delegates to take part in the election of 
the  upper  house  of  Parliament,  as  happens  in  certain  Member  States,  or 
where  members  of  municipal  councils  vote  in  their  capacity  as  special 
delegates  of this kind. 

It  follows  that  Article  8b(l)  is  concerned  with  those  offices  whose  holders 
are elected directly by the local voters.  Local councillors are directly elected 
in all Member  States, and the head of the local executive, and other members 
of the executive too, are directly  elected  in  some places. 

As to the level  of local  government,  Article  8b(l)  must refer  to elections at 
the basic level  which  exists in all Member  States.  Participation  in  elections 
at  that  level  is the  heart  of the rights which  the  Article  confers  on  citizens 
of  the  Union. 
In  those  Member  States  where  there  are  subordinate  local 
authorities, the Treaty also applies to any elections for representatives at that 
level  by  direct  universal  suffrage. 

2.  Derogations 

Under  Article  8b(l)  any  derogation  must  be  warranted  by  problems  specific  to  a 
Member  State; it must  relate only to the detailed  arrangements  for  the exercise of the rights 
conferred  by the Article,  and  must be of  a provisional  nature. 

Specific  problems  of the kind  referred  to  essentially  arise where there is a particularly  high 
proportion  of  nationals  of  other  Member  States.  More  precisely,  there  may  be  a  problem 
where there is a high proportion  of citizens of the Union who are not nationals and who have 
reached  voting  age.  The  statistics  to  be  looked  at,  therefore,  are  those  for  non-national 
Community  residents  of  voting  age,  and  for  the  proportion  of  those  voters  in  the  potential 
electorate as a whole. The average proportion  is currently between  0.3% and about 6% of all 
resident  Union  citizens. 

There is only  one Member  State in  which  the proportion  of Community  residents  of  voting 
age is substantially  higher,  at  about  29% of the total  potential  electorate. 

In  that  Member  State  there  are  21  municipalities  where  the  proportion  of  Community 
residents  is between  30% and  54%, and  another  38 where  it  is between  20% and  30%.  In 
the capital city the proportion is 41.2%.  The proportion of Community residents  is over 20% 
in more than  half the municipalities. 

Given the principle of equal voting rights any derogation  ought to apply to all  municipalities 
in the Member  State it  covers.  It does not  appear  permissible to  apply  arrangements which 
differ  from  one  municipality  to  another,  particuarly  in  view  of  the  proportion  of  electors 
within  the  scope of  Article 3 to the electorate  as a whole. 

16 

IV.  Subsidiarity  and  proportionality 

In  presenting  this  proposal  for  a  Directive,  which  comes  under  the  Community's  exclusive 
powers, the Commission  is aiming to discharge  its obligations under the  second  sentence of 
Article  8b(l)  of  the  Treaty  at  the  earliest  opportunity. 
In  keeping  with  the  principle  of 
proportionality,  the  Commission  proposes  that  the  detailed  arrangements  referred  to  in 
Article  8b(l)  be adopted  in the form  of a Directive,  and  that the content  of the Directive be 
limited  to what  is strictly  necessary  for  attaining the  stated  objective. 

B.  Comments  on  individual  articles 

Article  1: Scope 

Spelling out the scope of Article  8b(l) of the Treaty, Article  1  defines the field of application 
of this Directive. 

1. 

Paragraph  1  makes it clear that this Directive covers only citizens of the Union residing 
in  a Member  State  of  which  they  are  not  nationals  and  their  right  to  take  part  in  the 
its  aim  is  not, 
election  of  representatives  of  that  State  to  the  European  Parliament; 
therefore,  to achieve overall  approximation  of  Member  States' electoral  laws. 

Consequently, the Directive does not affect,  for instance, the rules of each Member  State 
governing the right  to vote and to stand  as a candidate of its own  nationals on its own 
territory. 

This  paragraph  also  makes  it  clear  that  the  Directive  is  concerned  with  municipal 
elections,  and  not with  regional  or  national  ones.  The  municipal  elections  referred  to 
in  Article  8b(l)  are those in  the basic local  government  units and  their  subdivisions. 

2. 

Paragraph  2  specifies  that  the  Directive  does not  affect  each  Member  State's  rules on 
the  conditions  in  which  nationals  may  vote  or  stand  as  a  candidate  in  their  home 
Member  State, even  if they  reside  outside the  electoral  territory  of that  State. 

Article  8b(l)  of the  Treaty  guarantees  the right to vote and  to  stand  as a candidate in 
municipal  elections in the Member  State of residence, without taking away the right to 
vote and to stand as a candidate in the home Member  State if that right is retained under 
the  law  of  that  country.  The  purpose  of  paragraph  3 is to  ensure  that  citizens  of  the 
Union  are free  to  decide whether  or  not  they  wish  to  take  part  in  municipal  elections 
in their  Member  State of  residence. 

If a citizen of the Union retains his right to vote and to stand as a candidate in his home 
Member  State,  despite  the fact  that  he is living  outside the  country,  he may  take  part 
in  municipal  elections  both  in  his  Member  State  of  residence  and  in  his  home 
Member  State.  To allow citizens to vote in separate elections is no infringement  of the 
principle "one man one vote", which is concerned with voting rights at a single election. 
The elections involved  here are legally  and politically  separate proceedings in  different 
Member  States,  and  "parallel  voting"  of  this  kind  does  not  affect  their  validity. 

17 

Politically  speaking it is desirable not only to encourage the integration  of non  national 
residents into the societies in which  they live, but also to respect the links they  maintain 
with their home Member  States.  The proposal avoids imposing a pointless déterrant and 
facilitates  as far  as possible the exercise of voting rights in the Member  State where the 
citizens  concerned  are  actually  living. 

However,  the  laws  of  all  Member  States  usually  require  specific  and  stable  links 
between  a basic  local  government  unit  and  citizens  of  the  Union  claiming the right to 
vote  or  to  stand  for  election  there  on  grounds  of  residence,  so  that  the  practical 
importance of parallel  voting will remain very limited.  The impact will also be reduced 
by  Article 4,  which  states  that  for  the  purpose  of  determining  principal  residence 
account  is to be taken  of any  residences  in other Member  States. 

Furthermore,  any  attempt to prevent  parallel  voting would  involve the establishment  of 
administrative  machinery  for  the  exchange  of  information  between  Member  States. 
Given  the  decentralized  way  in  which  municipal  elections  are  organized,  it  would  be 
very  difficult  to establish  such  machinery  and  to  ensure that  it worked  properly.  Only 
four  Member  States,  Greece,  France,  Italy  and  Spain,  allow  their  nationals  to  vote  if 
they  are  resident  outside  the  country,  and  it  would  hardly  be  in  accordance  with  the 
principle of proportionality to set up administrative machinery of that kind covering the 
whole  European  Union.  Elections  take  place  in  a  large  number  of  municipalities  on 
different  dates throughout  the Member  States, and  there is no rapid  and  effective  way 
of  preventing  citizens  from  voting  both  in  their  Member  State  of  residence  and  their 
home Member  State. 

As Article  8b( 1 ) of the Treaty  confers  a right to vote and to stand as a candidate only 
on citizens of the Union, paragraph  2 also states that the Directive is not concerned with 
the right of  nationals  of  non-Community  countries  to vote  and  to  stand  as  candidates 
at  municipal  elections.  The  Directive  in  no  way  affects  that  right  where  it  exists  in 
domestic law, that is to say in Denmark, Ireland and the Netherlands.  The same applies 
to the right of nationals  of independent  Commonwealth  countries to vote and to  stand 
as candidates in the United  Kingdom.  The Directive in no way  obliges Member  States 
to grant  this right  to  such  persons,  nor does it  prevent  them  from  doing so. 

Article 2:  Definitions 

1.  To clarify  the scope of the rights laid down in Article  8b(l)  of the Treaty,  a  definition 
has to be provided  of the level  of  local  government  in the Member  State  of  residence 
at which the citizens of the Union concerned  are to exercise these  rights.  The Directive 
therefore  avoids the words used  in  national  legislation,  such  as  "district,"  "commune," 
or  "municipality." 

For the sake of consistency,  particularly  with  Article  198a of the Treaty, the Directive 
uses the term  "basic local government unit" to designate that administrative body which 
under  the  domestic  legislation  forms  the  basic  level  of  government  in  the  particular 
Member  State. 

18 

In  all  Member  States these  bodies  are given  a  measure  of  political  and  administrative 
independence  from  central  government  by the constitution  or by  legislation.  There is 
usually  a  clause  conferring  certain  powers  on  them  either  in  general  terms  or  over 
certain  specified  matters.  Within  their  own  sphere they  manage  certain  public  affairs 
of  local  interest  on  their  own  responsibility.  Obviously  their  powers  are confined  to 
their  own  territory. 
There  is  an  important  distinction  between  these  basic  local 
government  units  and  the  decentralized  agencies  of  central  government  which  may 
provide  some  services  at  local  level.  It  has  to  be  borne  in  mind,  though,  that  the 
territory  a  local  government  unit  will  often  be  an  administrative  unit  for  central 
government  purposes  too,  and  that  the  municipal  executive  may  represent  the  central 
government  there or exercise  certain  central  government  powers. 

In  all  Member  States these  units  have  bodies  to  run  them  which  are  elected  by  direct 
universal  suffrage.  There  is  usually  a  representative  council  with  power  to  take 
decisions,  whose  term  of  office  varies  between  four  and  six  years.  There  is  also  an 
executive,  whose  powers,  composition  and  appointment  are very  varied. 

Where a unit  of  this kind  is  subdivided  under  the  law  of  the  particular  Member  State 
into administrative  units subordinate  to it,  with  certain  specific  powers,  and  governing 
bodies elected by direct  universal  suffrage,  the subordinate units are considered  to form 
an  integral  part  of  the basic unit. 

Basic local  government  units and  the subdivisions  referred  to in Article 2(1)  are listed 
in the Annex to the Directive. 

Given  the  wide  differences  in  local  government  between  the  Member  States,  and  the 
different  versions of  Article  8b(l)  of the Treaty  in  different  languages, there is a need 
If  necessary  a  uniform 
for  a  definition  of  the  words  "municipal  elections". 
interpretation  of  these  words  might  have  to  be  secured  from  the  Court  of Justice. 
Politically  speaking, the citizens concerned  are to be guaranteed  a hard core of political 
participation  in  the  basic  local  government  unit  in  their  Member  State  of  residence. 
reciprocity  which  must  exist  between 
This  will  also  ensure  the  fundamental 
Member  States 

(a)  Paragraph  2  states  that  the  elections  referred  to  include  elections  to  local 
representative  councils,  and  also  the  election  of  the  head  of  the  local  executive 
and  of  any  other  members of the local  executive, where there are such elections. 

(b)  The municipal  elections specified  are all elections by direct universal  suffrage,  and 
not  elections  inside  the  local  representative  council  or  the  local  executive.  It  is 
interesting  to  note  here  that  there  are  four  Member  States  (Germany,  Italy, 
Portugal  and  Spain) where the head  and in  some cases the members  of the local 
executive  are  elected  or  may  be  elected  by  direct  universal  suffrage;  they  are 
elected  by the  council  in  six  other Member  States  (Denmark,  Germany,  Greece, 
France, Ireland and the United  Kingdom), and are appointed by the crown in three 
(Belgium,  Luxembourg  and  the  Netherlands). 

19 

As the definition  of municipal  elections does not include elections inside the local 
representative  council,  and  the  Directive  does  not  affect  the  legislation  in  each 
Member  State dealing  with  the powers  and  responsibilities  of these councils and 
their  members,  the  Directive  does  not  prevent  those  Member  States where  local 
councillors  directly  or  indirectly  elect  members  of  a  house  of  parliament  from 
providing  that  councillors  who  are  nationals  of  other  Member  States  are  not  to 
take part  in that  election. 

3. 

4. 

(c)  As far  as the level  of local  government  is concerned,  the definition  includes only 
elections to the basic  local  government  units referred  to in paragraph  1, which  is 
in line with  Article  8b(l)  of the Treaty.  In those Member  States where there are 
subordinate  local  authorities,  the  Treaty  will  also  apply  to  the  election  of 
representatives  for  these  units by  direct  universal  suffrage. 

In  defining  the  concept  of the  Member  State of  residence,  Article 2(3)  reproduces  the 
relevant  phrase  in  Article  8b(l)  of  the  Treaty.  On  the  other  hand,  the  concept  of  the 
home  Member  State  is  defined  in  Article  2(4)  on  the  criterion  of  nationality.  These 
definitions  are identical to those in Article  2(3) and (4) of Council  Directive  93/109/EC 
laying  down  detailed  arrangements  for  the exercise of the right to vote and to 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(28). 

In defining  the electoral  roll. Article  2(5) aims not to alter but to embrace the  different 
types  of  official  registers  of  voters  which  currently  exist  in  the  Member  States, 
irrespective of the way in which they are drawn up (automatic registration or registration 
on  individual  application)  and  updated  (permanent  or  non-permanent  lists,  periodic 
revision  or compilation  before  each election).  The definition  also makes allowance  for 
the  special  situation  of  some Member  States which  do not draw up a specific  electoral 
register  but indicate eligibility  to vote on  the population  register.  Article  2(5) does not 
rule  out  the  electoral  roll  being  subdivided  into  categories  of  voter.  This  definition  is 
identical  to that  in  Article 2(7) of  Directive 93/109/EC. 

5.  Given  that  the  date  on  which  citizens  of  the  Union  must  satisfy  the  requirements  for 
voting or for  standing as a candidate is not the same in all  Member  States, Article  2(6) 
refrains from  any harmonization and introduces the concept of the reference  date, which 
is defined  in terms of the law of the Member  State of  residence.  Since the aim  is not 
to  approximate  Member  States'  electoral  systems, the  definition  also makes  allowance 
for the special  situation of certain  Member  States which specify  several  reference dates. 
This definition  is identical  to that  in  Article  2(8) of Directive  93/109/EC. 

6. 

In  defining  the  concept  of  formal  declaration,  Article 2(7)  refers,  avoiding  any 
approximation  of national  rules, to the different  types of declaration that currently exist 
in the Member  States. It can correspond, for example, to a "statutory declaration" under 
UK  law  or  an  "eidesstattliche  Versicherung"  (sworn  statement)  under  German  law. 
According to this definition, the declaration must be lodged with the competent authority 
referred  to  in  Articles  8  and  9  of  the  Directive.  Furthermore,  inaccuracy  in  the 
declaration  must  make the person  concerned  liable to penalties  in  accordance with  the 

(28)  OJL329,  30.12.1993, p. 34. 

20 

national  law  applicable.  When  they  transpose  the  Directive,  it  will  be  for  the 
Member  States to  spell  out the form  the declaration  has to take. 

This definition  is identical  to that  in  Article  2(9)  of Directive  93/109/EC. 

Article 3: Conditions  governing  the  right  to vote 
and  to stand  as a  candidate 

Within the framework  established by Article  8b(l) of the EC Treaty, Article  3 lays down the 
conditions  to  be  met  in  order  to  have  the  right  to  vote  and  to  stand  as  a  candidate  in 
municipal  elections  in the  Member  State of  residence.  The  date  on which  these  conditions 
must  be  met  may,  depending  on  the  law  of  the  Member  State  of  residence,  be  either  the 
polling day  or any other reference  date.  Clearly,  whether the reference  dates for  the right to 
vote  and  for  the  right  to  stand  as  a  candidate  are  the  same  also  depends  on  the  rules  laid 
down by  each  Member  State. 

1.  Given  that  the  second  sentence  of  Article  8(1)  of  the  Treaty  defines  the  concept  of 
Union  citizenship  and the  definition  is spelled  out  in the Declaration  on  nationality  of 
a Member  State annexed to the Treaty on European Union, point (a) of Article  3 merely 
refers  to  that  provision  of  the  Treaty.  In  so  doing,  Article  3 takes  account  of  the  fact 
that the rules on the acquisition and possession of the nationality of a Member  State fall 
within  the  scope, not  of the Treaty,  but  of the law  of  each  Member  State. 

This means in particular  that  determination  of the nationality  of persons  originating in 
overseas  countries  and  territories,  within  the meaning  of  Article  227(3)  of the  Treaty, 
is a matter exclusively  for the law of the Member  State which has a special  relationship 
with the overseas country  or territory  concerned.  Consequently,  persons originating in 
overseas  countries  or  territories  who  possess,  under  the  law  of  a  Member  State,  the 
nationality  of that  State and who reside in another Member  State have the right to vote 
and  to  stand  as  a  candidate  in  municipal  elections  there.  It  is  thus  for  the  individual 
Member  States to specify,  if it is necessary  for the purposes of applying this Directive, 
the persons who are to be deemed  their  nationals. 

On the other  hand,  since the Directive  concerns only  the right to vote and  the right to 
stand  as  a candidate  in  a Member  State  other  than  the  home Member  State,  it  cannot 
deal with the situation  of persons originating in overseas countries or territories who do 
not  have  the  nationality  of  a Member  State  or  of  those  residing  in  the  Member  State 
with  which the  overseas  country  or territory  has a special  relationship. 

2.  Within the framework  established by Article  8b(l) of the Treaty, point (b) of Article 3 
applies  the  principle  of  equality  and  non-discrimination  between  national  and 
non-national  voters  and,  at  the  same  time,  the  principle  of  interfering  as  little  as 
possible  with  Member  States'  electoral  systems.  Under  these  systems,  the  other 
conditions  to  be  met  in  order  to  have  the  right  to  vote  and  to  stand  as  a  candidate 
concern,  in particular,  age and  residence. 

After the condition of Union citizenship, that of residence in the Member  State in which 
the right to vote or to stand as a candidate is exercised is the second  key element in the 
guarantee  provided  by  Article  8b(l)  of  the  Treaty.  This  condition  highlights  the  link 

21 

with the right to move and reside freely  enshrined in Article  8a of the Treaty.  Although, 
unlike the  concept  of citizenship,  residence  is not defined  in  the Treaty  itself,  it  is not 
appropriate  to define  it uniformly  for  the purposes  of this  Directive.  Articles  3 and 5 
consequently  refrain  from  giving  any  such  definition,  which  enables  the  principle  of 
equal  conditions for national  and non-national  voters and for national and  non-national 
candidates to be complied with more effectively.  At the same time, the Directive avoids 
interfering,  in this area, with  Member  States'  electoral  systems. 

Nor  is  it  appropriate  to  determine  uniformly  a  minimum  period  of  residence  in  the 
territory  of the  host  Member  State,  it  being  clear  from  the  Treaty  that  the  concept  of 
residence is characterized, not by quantitative, but by qualitative factors. It is  significant 
that the Intergovernmental  Conference  did not adopt any of the suggestions made along 
those  lines(29).  Politically,  it  is  important  to  note  that  any  condition  as to  a  minimum 
period of residence would deprive a considerable number of Union citizens of the right 
to  vote  and  to  stand  as  a  candidate  in  their  Member  State  of  residence.  Though 
deprived  of  these  political  rights,  such  citizens  would  still  be  subject  to  the  same 
obligations  as  everyone  else  living  in  their  basic  local  government  unit,  notably  as 
regards local  taxes.  Like other residents there, they would be  subject  also to decisions 
taken  either  by  the  representative  council  or  by  the  executive  in  the  exercise  of  local 
autonomy and affecting  their daily lives.  Lastly, the smooth integration of non-national 
citizens requires that  they  be able to take part  not  only  in the  economic and  social  life 
of the local government  unit in which they  live but in its political  life  as well, and that, 
in  this context,  they  be  allowed  to  assume joint  responsibility  for  local  public  affairs. 

3.  Article  3 does  not,  however,  affect  the administrative  requirements  to be  met  in  each 
Member  State if a voter is to be able to exercise his right to vote in a particular locality 
or constituency  in  a given  election  or if  a person  entitled  to  stand  as a candidate is to 
be  able to  stand  on  a particular  list  or  in  a particular  constituency  in  a given  election. 
These  requirements  are  designed  to  ensure  that  elections  are  properly  prepared  and 
proceed  smoothly,  and  they  concern,  in  particular,  residence  in  the  locality  or 
constituency  in which the vote is to be cast, possibly  for  a minimum  period.  The same 
applies to the  administrative requirements  to be  met  by  candidates.  These  concern,  in 
particular,  nomination  procedures,  certain  means  of  proof  and  the  closing  dates  for 
applications.  It  goes  without  saying  that  any  voter  or  person  entitled  to  stand  as  a 
candidate within the scope of  Article  3 who wishes effectively  to take part in municipal 
elections in his Member  State of residence must comply with the relevant national rules 
applicable  to nationals. 

4. 

In the light of the rules on ineligibility  in  Article  5, Article  3 provides that the right to 
vote  and  to  stand  as a candidate  is recognized  only  subject  to the  other  provisions  of 
this Directive. 

(29)  Article  C(2)  of  the  initial  Presidency  draft  provided  that  the  conditions governing  the 
exercise of the right in question, which was to be defined  in accordance with Article F, 
should  provide  inter  alia  for  a  minimum  period  of  residence. 
Similarly,  the 
Intergovernmental  Conference  did  not  accept  the  following  wording  suggested  by  the 
Commission  (SEC(91)500 = Conf.UP  1740/91):  "Every  Union  citizen  shall  have  the 
right  to vote and  stand  as a candidate  at  municipal  and  European  elections  held  in  the 
place in  which  he has habitually  resided  for  at  least  [...]  years". 

22 

Article  4:  Residence 

Article 4  deals  with  the  condition  of  residence.  It  does  not  define  the  term  uniformly 
however,  but  refers  instead  to the  law of each  Member  State.  This enables the  principle of 
equal  conditions  for  national  and  non-national  voters  and  for  national  and  non  national 
candidates to be complied  with  more  effectively. 

1.  The  laws  of  some  Member  States  require  that  the  person  concerned  must  have 
completed  a  minimum  period  of  residence  there;  Article 4  seeks  to  prevent  any 
discrimination  against  non-national  voters  and  candidates  which  might  arise  if  this 
condition  could  in  practice  be  met  easily  by  nationals  of  the  country  but  only  with 
difficulty  by  non-nationals.  Article  4  makes  a  period  of  residence 
in  other 
Member  States, for example in the home Member  State, equivalent to a period  spent in 
the Member  State of residence. 

2.  Under the laws of the Member  States, the condition  of residence relates as a aile to the 
geographical location where the person concerned ordinarily resides in the Member  State 
in  question  and  does not take  account  of  any  further  residences  he may  have  in  other 
Member  States.  This  being  so,  Article 4  seeks  to  prevent  any  discrimination  against 
national  voters  and  candidates.  Such  discrimination  could  arise  as  a  result  of  their 
having to provide proof that their principal  residence is situated in the local government 
unit in which they wish  to vote, whereas non-national  citizens of the Union  could vote 
or be elected  on the basis of their only residence in that Member  State, despite the faci 
that it is actually their secondary  residence given that their permanent centre of interest:: 
is  in  another  Member  State,  such  as their  home  Member  State.  If,  under  the  law  of a 
Member  State, for  a person  to be able to vote in  a local  government  unit  his principal 
residence must be located in that unit, Article 4 piovides that fulfilment  of this condition 
must  be  verified  taking  into  account  any  other  residences  the  person  concerned  may 
have in  other Member  States. 

3. 

Since  Article 4  deals  only  with  the  conditions  to be  met  in  order  to  have the right to 
vote  or to  stand  as a candidate  in the Member  State of residence,  the requirement laid 
down  in  the  first  paragraph  does  not  affect  any  specific  conditions  laid  down  by  a 
Member  State in respect of the exercise of these rights by all voters and persons entitled 
to  stand  as  candidates,  whether  they  be  nationals  or  non-nationals,  in  a  particular 
constituency  or  locality  at  a  particular  municipal  election,  and  normally  linked  k; a 
minimum  period  of  residence  in  that  constituency  or  locality.  Such  conditions  are 
justified  as  a  rule  by  the  administrative  requirements  of  the  proper  drawing- up  of 
electoral rolls and the proper organization of elections.  Although such minimum  periods 
of  residence  vary  from  one  Member  State  to  another  and  are  sometimes  longer  in 
respect  of  entitlement  to  stand  as a candidate,  they  do not  normally  exceed  one year. 

Article  5:  Ineligibility 

Article  5 deals only with ineligibility, the state of a Union citizen who has been legally 
barred from  standing as a candidate at elections. The question of incompatibility, which 
concerns  the  legal  impossibility  of  combining  the  holding  of  elected  municipal  office 
in the Member  State of  residence with  other  offices  in the home  Member  State, is  for 
its part  dealt  with  in  Article 6. 

23 

2. 

Since  a  person  may  be  disqualified  from  standing  as  a  candidate  under  the  civil  or 
criminal  law either of his Member  State of residence or of his home Member  State and 
since, in the absence of international  conventions, such court decisions are not normally 
enforceable  in  the  Member  State  of  residence,  Article  5  lays  down  the  principle  that 
Member  States are entitled to apply both  sets of rules concurrently.  This possibility  is 
not incompatible with the Community principle of equality and non-discrimination: since 
the aim is to prevent possible distortion as a result of disparities between  disqualification 
rules in force  in the Member  States, such  a system  can be regarded  as forming  part of 
the  "detailed  arrangements"  to  be  adopted  by  the  Council  under  Article  8b(l)  of  the 
Treaty. 

Substantively,  the  option  of  concurrent  application  is justified  on  the  ground  that  the 
Member  State of residence may legitimately  wish to ensure that a person who has been 
deprived  of  his  right  to  stand  as  a  candidate  at  elections  in  his  home  Member  State, 
normally  by order  of a court,  should  not be able to recover this right merely by  virtue 
of his residence elsewhere.  To safeguard  the reputation  of representative councils and, 
where appropriate, of municipal  executives, it may be advisable to take steps to prevent 
a citizen  of the Union who has been  deprived  of his right to stand  as a candidate  from 
sitting  in,  or  even  campaigning  for  election  to,  such  bodies.  Clearly,  the  risks  of  the 
reputation  of elected  municipal  bodies being  undermined  are greater  and  more visible 
in  the  case  of  disqualification  from  standing  as  a  candidate  than  in  that  of 
disqualification  from  voting. 

The arrangements governing disqualification  do vary widely from  one Member  State to 
another;  concurrent  application  is  based  on  the  view  that  they  all  comply  with  the 
general  principles  of  democracy  and  the  rule  of  law,  and  that  there  is  consequently 
nothing to  prevent the Member  State of residence recognizing  a disqualification  in the 
home Member  State. 

3. 

To  implement  these  rules  on  concurrent  application,  Article 9(2)  permits  the 
Member  State of residence to ask the person concerned to produce, when he submits his 
application  to  stand  as  a  candidate,  an  attestation  from  his  home  Member  State 
certifying  that he has not been  deprived of the right to stand as a candidate in that state 
or that no such disqualification  is known to those authorities. On that basis, Article  5(2) 
permits the Member  State of residence to declare an application  to stand as a candidate 
inadmissible where the person is unable to produce the attestation.  Article 9(2) provides 
for  a procedural  requirement,  and Article  5(2) allows  a purely  formal  control  measure 
which  in  most  Member  States  will  normally  be  carried  out  before  the  election. 
Article  5(2)  in  no way  affects  certain  national  rules  on  disqualification  from  standing 
as a candidate whereby  a check  on the  substance of the matter  can  only be made  after 
the  election.  Given  the  political  importance  of  the  issue,  however,  it  is  desirable  that 
disqualification  should  wherever  possible  be  declared  before  the  election  campaign 
begins. 

4. 

In view  of  the fact  that  the  local  executive  also  participates  in the  exercise  of  official 
authority  and in the safeguarding  of the general  interest in the territory  of a basic local 
government  unit,  as defined  by the  Court  of Justice  in  its judgments  on Articles  48(4) 
and  55  of  the  Treaty,  Member  States,  in  full  compliance  with  Community  law,  may 
provide  that  only  their  own  nationals  may  hold  the  offices  of  head  or  member  of  the 

24 

executive  of  a  basic  local  government  unit.  Consequently,  the  members  of  the  locJ 
executive  are treated  in the  same way,  whether  they  be  elected  directly  or indirectly 

Article  6:  Incompatibility 

Paragraph  1 applies the principle  of equality  and non-discrimination  between  national 
and  non-national  voters  and  states  that  Article  6  does  not  affect  the  rules  on 
incompatibility  currently in force  in each Member  State.  In particular, Article  6 leaves 
the  concept  of 
untouched 
incompatibility  exists legally in the form  of ineligibility by operation of law, as a result 
of which the persons concerned  are prevented  from  standing as candidates in municipal 
elections. 

in  some  Member  States  where 

the  arrangements 

In order to apply as effectively  as possible the principle of equality between  citizens of 
the  Union  who  are  nationals  and  those  who  are  non-nationals,  paragraph  2  stipulates 
that Member  States may provide that the holding by a non-national  of elected municipal 
office  is  also  incompatible  with  offices  held  in  another  Member  State  which  are 
equivalent to those which, under domestic law, give rise to a problem of incompatibility. 
This  solution  is justified  by the  specific  situation  of the persons concerned.  It  may  be 
necessary  to  avoid  a  situation  in  which  the  holding  of  elected  municipal  office  in  the 
Member  State  of  residence  conflicts  with  certain  offices  which  the  person  concerned 
might hold in his home Member  State;  the question  may arise whether the same person 
is  capable  of  properly  representing  at  the  same  time  the  municipal  electorate  in  his 
Member  State of residence  and  in  his home Member  State. 

Article  7:  Registration  on  request,  obligation  to vote 

In  order to  respect the  freedom  of the Union  citizens  concerned  to  choose  whether  or 
not to take part in municipal  elections in their Member  State of residence,  Article  7(1) 
provides that  a voter within  the  scope of  Article  3 can be  entered  on the electoral  roll 
of the Member  State of residence  only  if  he requested  it beforehand.  The  importance 
of this provision  is due above  all  to the fact  that voting  is compulsory  in  a number of 
Member  States. 

In accordance with the principle of equality  between  national  and non-national  voters, 
Article  7(2) makes it  clear that,  where a voter  within  the  scope of  Article  3 has asked 
to  be  entered  on  an  electoral  roll  in  his  Member  State  of  residence  and  that 
Member  State  is  one  in  which  voting  is  compulsory,  he  too  will  be  subject  to  the 
obligation  to vote. 

1. 

2. 

1. 

2. 

Article  8:  Formal  requirements  concerning  registration  as a voter 

1.  Article  8(1) deals with  the time within  which  an  application  for  entry  on the  electoral 
roll  should  be  made  to  the  competent  authority  in  the Member  State  of  residence;  it 
seeks  to  interfere  as  little  as  possible  with  the  rules  in  force  in  the  Member  States, 
which  vary  widely  in  this respect. 

25 

In  those  Member  States  in  which  the  registers  are  updated  periodically,  voters  within 
the  scope  of  Article  3  would  be  able  to  submit  their  applications  during  that  period. 
Outside that period  registration  would be possible only  by way of exception,  under the 
same rules  as apply  to nationals. 

In  Member  States  where  the  register  is  finalized  before  each  election,  usually 
automatically,  voters  within  the  scope  of  Article  3  must  be  entitled  to  apply  within  a 
reasonable period before closure of the register.  When they transpose this Directive into 
their national  law, the Member  States concerned  will  have to determine an  appropriate 
period  taking  account  on the  one hand  of  the legitimate  interests  of voters and  on the 
other  of the need for  proper  organization  of the  election. 

2.  Article  8(2) deals with the documents which  a voter within the scope of Article  3 must 
produce  in  support  of  his application:  these  are to be the  same as those  required  of a 
In order that it can be verified  whether the requirements of Article  3 are met, 
national 
however,  voters within  the scope of that  article have to be  asked  for  a limited  number 
of further  documents.  The aim being to facilitate  as far  as possible the exercise of the 
right  to vote in the Member  State of residence,  these extra documents  have to be kept 
to  a strict  minimum.  Since the rules  on  supporting  documents  should  be based  on the 
principle  that  statements  made  by  the  persons  concerned  should  be  taken  on  trust, 
Article  8(2)  requires  non-national  voters  merely  to  produce  a  formal  declaration 
containing a limited number of particulars enabling the home Member  State to  identify 
them  easily  and verify  whether  the requirements  of Article  3 are met. 

In  order  to facilitate  even  further  the identification  of persons  asking to be  entered  on 
the  electoral  roll,  the Member  State  of  residence  may,  under  paragraph  3, require  one 
more  supporting  document. 

3.  Article  8(3) is aimed at preserving the freedom  of choice of voters within the scope of 
Article  3 while avoiding any interference  with the electoral  rules in the Member  States, 
and  at  the  same  time  at  facilitating  the  updating  of  the  registers  of  voters  by  the 
Member  States without imposing any unnecessary  administrative formalities  on voters. 
Consequently,  once  he  has  expressed  his  wish  to  exercise  his  right  to  vote  in  his 
Member  State  of  residence,  a voter  within  the  scope  of  Article  3 will  not  be required 
to resubmit the written  application  referred  to paragraph  1 before  each election;  unless 
he makes it clear that he wishes to be removed  from  it,  he will remain  on the electoral 
roll  in the Member  State  of  residence under the  same conditions  as national  voters. 

Article  9:  Formal  requirements  concerning  applications 
to  stand  as a  candidate 

1.  Article  9(1)  deals with  the  documents  which  a person  entitled  to  stand  as a  candidate 
within  the  scope  of  Article  3 is  to  produce  when  he  submits  his  application  to  stand; 
these  are  to  be  the  same  as the  documents  required  of  a  national.  In  order  to  verify 
whether  the  requirements  of  Article  3  are  met,  however,  Article  9(1)  requires 
non-national  candidates to produce a limited number of further  documents, but these are 
kept to a strict minimum.  The layout of Article  9(1) is identical to that of Article 8(2). 

26 

2. 

For the purpose of applying the rule on concurrent application  of disqualifications  fi i>.o 
standing  as  a  candidate  laid  down  in  Article  5,  Article 9(2)  provides  that  «he 
Member  State of residence may require a person entitled  to stand as a candidate within 
the scope of Article  3 to produce,  in  support of his application,  an attestation  from  the 
competent  administrative  authorities  in  his home  Member  State  certifying  that  he  has 
not  been  deprived  of  the  right  to  stand  as  a  candidate  in  that  Member  State.  If 
necessary,  and  in  particular  where  such  information  is  not  centralized,  the  home 
Member  State may confine  itself to certifying  that no such disqualification  is known  to 
its  authorities.  Clearly,  it  is for  each  Member  State to  decide which  of its  authorities 
are to be competent for the purposes of Article  9(2), and in particular to determine what 
role  could  be played  here by  its consular  authorities. 

The  Member  State  of  residence  may  also  require  the  person  concerned  to  produce  a 
limited  number  of  additional  supporting  documents  in  order  to  help  identify  him  or 
check that he does not hold any incompatible office  within the meaning of Article 6(2). 
This applies to those Member  States which have adopted provisions under Article  6(2) 
and  in  particular  those  in  which,  under  existing  domestic  law,  persons  holding  such 
offices  may  not  stand  as candidates. 

Article  10: Appeals 

The notification  required  by  Article  10(1) serves to enable  appeals to be lodged  under 
Article  10(2).  It leaves Member  States free to choose the way in which the  information 
is to be  supplied;  it  may  be given  to the person  concerned  individually,  or  announced 
when  the  electoral  roll  is  published,  but  whatever  method  is  chosen,  the  information 
must be  supplied  in  good time. 

Applying the principle that the rules governing nationals and non-nationals are to be the 
same,  Article  10(2)  provides  that  voters  and  persons  entitled  to  stand  as  candidates 
within  the  scope  of  Article  3  may  lodge  appeals  in  the  same  way  as nationals  of  the 
Member  State  of  residence,  whether  through  litigation  or  some  form  of  review 
procedure. 

Article  11 : Provision  of  information 

As voters  and  persons  entitled  to  stand  as  candidates  within  the  scope  of  Article  3  have to 
meet  the  same  conditions  as  nationals  as  well  as  certain  specific  conditions,  particularly  as 
regards  supporting  documents,  Article  11  requires  the  competent  authorities  in  the 
Member  State  of  residence  to  inform  them  of  their  entitlements  in  good  time,  in  order  to 
enable them  to  exercise  their  right  to vote  or  to  stand  as  a candidate  there if  they  so wish. 
It leaves Member  States free  to choose the most  appropriate  way  of  doing this. 

27 

Article  12: Derogations 

The  second  sentence  of  Article  8(b)(2)  of  the  EC  Treaty  allows  derogations  where 
warranted  by problems specific  to a Member  State;  such problems arise mainly  where 
there  is  a  particularly  high  proportion  of  nationals  of  other  Member  States. 
The 
average proportion  is currently between  about 0.3% and about 6% of all resident Union 
citizens.  There  is  only  one  Member  State  in  which  the  proportion  of  Community 
residents  of  voting  age  is  substantially  higher,  at  about  29%  of  the  total  potential 
electorate. 

In  view  of  this  situation,  paragraph  1 lays  down  a  threshold  of  20%  which  must  be 
reached  before  a  Member  State  can  derogate  under  points (a),  (b)  and  (c).  The 
proportion  is to be  calculated  on the basis  of  statistics for  all  Union  citizens  of voting 
age residing  in the  Member  State on  the  date  indicated. 

Points (a), (b) and (c) in paragraph  1 limit the possible derogations, which  may not go 
beyond  the  requirement  that  voters  and  persons  entitled  to  stand  as  candidates  within 
the  scope of  Article  3 must have  resided  in that  Member  State for  a minimum  period. 
As far  as  the  right  to  stand  is concerned,  it  is  reasonable  to  set  a period  which  is  no 
longer  than  tv/ice the  term  for  which  the  representative  council  of the  municipality  is 
elected.  As far  as the right to vote is concerned, the minimum  period of residence may 
not  be  longer  than  one  such  term.  The  Member  State  concerned  may  also take,  with 
due regard for Community law, appropriate measures concerning the composition of the 
lists  of  candidates  aimed  at  facilitating  the  integration  of  non-national  Union  citizens 
in the  host  country. 

Furthermore,  problems  specific  to  a  Member  State  and  warranting  derogations  under 
Article  8b(l)  of  the  Treaty  can  stem  from  the  fact  that,  in  certain  Member  States, 
nationals  of  other Member  States already  have the right to vote not  only  in  municipal 
elections but  also in  elections to the national  parliament. 

In one Member  State, citizens of a neighbouring Member  State are not treated as aliens 
and have had the right to vote and to stand as candidates in parliamentary  elections and 
local  elections since  1948 under conditions that  are exactly  the  same in both  form  and 
substance  as those applying  to nationals. 

In  the  neighbouring  Member  State,  persons born  in  the  other  Member  State have  not 
been  treated  as  aliens  since  1935.  In  addition,  the  constitution  has been  amended  to 
allow the legislator to grant  non-national  residents  the right to vote in  elections to the 
national  parliament.  On  that  basis,  the  electoral  law  adopted  in  1985  provides  that 
citizens of  the other Member  State in  question  and,  on a reciprocal  basis, nationals of 
all  other  Member  States have the right to vote  in  elections to the national  parliament. 

Consequently,  nationals of these two Member  States residing in the other one normally 
appear,  in  the  Member  State  of  residence,  on  the  electoral  rolls  for  elections  to  the 
national  parliament,  and  on  the  electoral  rolls  for  local  elections,  which  are  both 
established  automatically  in both  the Member  States. 

28 

Nationals of the two Member  States concerned  who reside in  the other one should  not 
therefore  have to comply  with  the specific  formalities  laid  down by Articles  5 to  11 of 
this Directive. 

3. 

The  clause  in  Article  8b(l)  of  the  EC  Treaty  which  allows  derogations  is  concerned 
with  the arrangements  for  the exercise  of the  rights guaranteed,  and  not  the  guarantee 
itself.  Any derogation  must therefore  be subject to review.  Article  12(3) accordingly 
establishes a system  of regular reports. 

In  order  to enable  the  Commission,  as guardian  of  the  Treaty,  to  verify  whether  the 
tests  of  paragraphs  I  and  2  are  still  satisfied,  Member  States  which  derogate  must  be 
required  to supply  the Commission  with all the necessary  background  information,  and 
in  particular  with  the relevant  statistics. 

Article  13:  Established  rights 

Since,  in  some  Member  States,  all  Union  citizens  or  the  nationals  of  certain  other 
Member  States already  have the right to vote in local  elections and may therefore  be entered 
on the electoral  rolls even this Directive enters into force,  their  established  rights need to be 
recognized  and it must accordingly  be provided  that their registration  is not affected  by  this 
Directive.  When  the first municipal  elections to  which  this Directive is applicable  are  held, 
those  concerned  need  neither  submit  an  application  within  the  meaning  of  Article  7  nor 
produce  the  supporting  documents  required  by  Article  8.  Under  Article  8(3), this  state  of 
affairs  may  be prolonged  beyond  those  elections  if existing  national  law so permits. 

29 

Proposal  for  a 
COUNCIL  DIRECTIVE 

laying  down  detailed  arrangements  for  the  exercise  of  the right to vote 
and to  stand  as a candidate  in  municipal  elections by  citizens of the 
Union  residing  in  a Member  State of which  they  are not  nationals 

THE  COUNCIL  OF  THE  EUROPEAN  UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article  8b(l)  thereof, 

Having regard  to the proposal  from  the  Commission, 

Having  regard  to the  opinion  of the European  Parliament, 

Having  regard  to the  opinion  of the  Committee  of the Regions, 

Whereas the Treaty  on European  Union  marks a new stage in the process of creating an ever 
closer union  among the peoples  of Europe;  whereas  one of the Union's tasks is to organize, 
in  a manner  demonstrating  consistency  and  solidarity,  relations  between  the  peoples  of  the 
Member  States; whereas its fundamental  objectives include a strengthening  of the protection 
of the rights  and  interests  of the  nationals  of  its  Member  States through  the  introduction  of 
a  citizenship  of  the  Union; 

Whereas to that end Title  II of the Treaty  on  European  Union  introduces a citizenship  of the 
Union  for  all  nationals  of the  Member  States  and  confers  on  such  nationals  on  that  basis  a 
number  of rights; 

Whereas  the  right  to  vote  and  to  stand  as  a  candidate  in  municipal  elections  in  the 
Member  State  of  residence,  embodied  in  Article  8b(l)  of  the  Treaty  establishing  the 
European  Community,  is an  instance  of the application  of the principle  of equality  and non 
discrimination  between  nationals and  non-nationals  and a corollary  of the right  to move and 
reside  freely  enshrined  in  Article  8a of that  Treaty; 

Whereas  application  of  Article  8b(l)  does  not  presuppose  complete  harmonization  of 
Member  States' electoral  systems; whereas the aim  of that provision  is essentially  to abolish 
the nationality  requirement  to which  most Member  States currently  make the exercise of the 
right to vote and  to stand  as a candidate  subject;  whereas,  moreover,  to take account  of the 
principle  of  proportionality  set  out  in  the  third  paragraph  of  Article  3b  of  the  Treaty,  the 
content  of  Community  legislation  in  this  sphere  must  not  go  beyond  what  is  necessary  to 
achieve the  objective  of  Article  8b(l); 

Whereas  the purpose  of  Article  8b(l)  is to ensure that  all  citizens  of the Union,  whether  or 
not  they  are nationals  of the  Member  State  in  which  they  reside,  can  exercise  in  that  State 
their right to vote and to stand as candidates in municipal  elections under the same conditions; 
whereas the conditions applying to non-nationals, including those relating to period and proof 
of  residence,  should  therefore  be  identical  to  those,  if  any,  applying  to  nationals  of  the 

30 

Member  State  concerned;  whereas  non-nationals  must  not  be  required  to  fulfil  any  special 
conditions unless, exceptionally, different  treatment of nationals and non-nationals is justified 
by  circumstances  specific  to the latter  distinguishing  them  from  the  former; 

Whereas  Article  8b(l)  recognizes the right  to vote and  to  stand  as a candidate  in  municipal 
elections  in  the  Member  State  of  residence,  without  actually  substituting  it  for  the  right  to 
vote and to stand as a candidate in the Member  State of which the Union citizen is a national; 
whereas  the  freedom  of  Union  citizens  to  choose  whether  or  not  to  take  part  in  municipal 
elections in the Member  State in which they  reside must be respected;  whereas if they wish 
to exercise their right to vote there they  should  manifest  that  wish; 

Whereas  the  way  in  which  local  government  operates  in  the  different  Member  States  is  a 
reflection  of  different  political  and  legal  traditions  and  is characterized  by  an  abundance  of 
structures;  whereas  the  term  "municipal  election"  does  not  mean  the  same  thing  in  every 
Member  State; whereas the object of this Directive must therefore be clarified by defining the 
term; 

Whereas  municipal  elections  are elections  by  direct  universal  suffrage  at the  level  of  basic 
local  government  units  and  their  subdivisions;  whereas  the term  covers  elections  by  direct 
universal  suffrage  both  to  representative  councils  of  municipalities  and  of  members  of  a 
municipal  executive;  whereas  it  does  not  include  elections  within  municipal  bodies  and 
elections,  whether  direct  or  indirect,  of  members  of  a  parliamentary  assembly  by  those 
holding municipal  office; 

Whereas  disqualification  may  be  ordered  by  an  individual  decision  of the  authorities  either 
of  the  Member  State  of  residence  or  of  the  home  Member  State;  whereas,  in  view  of  the 
political  significance  of  the  holding  of  elected  municipal  office,  Member  States  should  be 
entitled to take the steps necessary to ensure that a person who has been deprived of his right 
to stand as a candidate in his home Member  State is not enabled to recover that right merely 
by virtue  of his residence  in another Member  State; whereas this problem, which  is  specific 
to  non-national  candidates,  is  important  enough  to justify  a  provision  under  which  those 
Member  States which  consider  it necessary  are allowed  to make  such candidates  subject  not 
only to the rules on disqualification  of the Member  State of residence but also to those of the 
home Member  State;  whereas, in view of the principle of proportionality, it will be  sufficient 
if  the  right  to vote  is  made  subject  only  to the  rules  on  disqualification  from  voting  of  the 
Member  State of residence; 

Whereas, since the duties of the head and members of the executive of basic local government 
units involve  taking  part  in  the  exercise  of official  authority  and  in the  safeguarding  of  the 
general  interest,  Member  States  should  be  able to reserve these  offices  for  their  nationals; 

Whereas, where Member  States' laws provide that the holding of elected  municipal  office  is 
incompatible with holding other offices,  Member  States should be able to extend their  scope 
to include  equivalent  offices  held  in  other Member  States; 

Whereas any derogation from  the general  rules of this Directive must be warranted,  pursuant 
to  Article  8b(l)  of  the  Treaty,  by  problems  specific  to  a  Member  State;  whereas  any 
derogation  must,  by  its very  nature, be  subject  to review; 

31 

Whereas  such  specific  problems  may  arise  in  a  Member  State  in  which  the  proportion  of 
citizens  of  the  Union  of  voting  age,  who  reside  in  it  but  are  not  nationals  of  it,  is  very 
significantly  above average; whereas derogations are warranted where such citizens form  more 
than  20% of the total  electorate; whereas such  derogations must be based on the criterion of 
period  of  residence; 

Whereas  citizenship  of  the  Union  is  intended  to  enable  citizens  of  the  Union  to  integrate 
better in their host country;  whereas in this context it is in accordance with the intentions of 
the authors of the Treaty to avoid any polarization between  lists of national  and  non-national 
candidates; 

Whereas  this  risk  of  polarization  concerns  in  particular  a  Member  State  in  which  the 
proportion  of  non-national  citizens  of  the  Union  of  voting  age  exceeds  20  %  of  the  total 
number  of  citizens  of  the  Union  of  voting  age  who  reside  there;  whereas  it  is  important, 
therefore,  that  this Member  State be able to  lay  down,  in  compliance  with  Article  8b of the 
Treaty,  specific  provisions  concerning  the  composition  of  lists of  candidates; 

Whereas  account  must  be taken  of  the fact  that  in  certain  Member  States  residents who  are 
nationals of other Member  States have the right to vote in elections to the national  parliament 
and whereas the formalities  provided  for  in this Directive  can  consequently  be  eased; 

Whereas  some Member  States already  grant the right to vote  and  to  stand  as a candidate in 
local  elections to all citizens of the Union or to the nationals of certain  other Member  States; 
whereas these  established  rights  must  be respected  by  exempting  such  persons from  certain 
formalities  provided  for  in this Directive, 

HAS  ADOPTED  THIS  DIRECTIVE: 

Chapter  I: General  provisions 

Article 1 

1.  This  Directive  lays  down  the  detailed  arrangements  whereby  citizens  of  the  Union 
residing  in  a Member  State  of  which  they  are  not  nationals  may  exercise  the  right  to 
vote  and to  stand  as a candidate there  in  municipal  elections. 

2.  Nothing  in  this  Directive  shall  affect  each  Member  State's  provisions  concerning  the 
right  to  vote  or  to  stand  as  a  candidate  either  of  its  nationals  who  reside  outside  its 
territory  or of third  country  nationals who reside in that  State. 

32 

For the purposes  of this  Directive: 

Article 2 

1. 

2. 

3. 

4. 

5. 

6. 

"basic  local  government  unit"  means  the  administrative  entities  listed  in  the  Annex 
which,  in  accordance  with  the  laws  of  each  Member  State,  contain  bodies  elected  by 
direct universal suffrage  and empowered to administer, at the basic level of political and 
administrative  organization,  certain  local  affairs  on their  own  responsibility; 

"municipal  elections"  means  elections  by  direct  universal  suffrage  to  appoint  the 
members  of  the  representative  council  and,  where  appropriate  under  the  laws  of  each 
Member  State, the head and members of the executive of a basic local government unit; 

"Member  State of residence" means the Member  State in which  a citizen  of the  Union 
resides but  of which  he is not  a national; 

"home  Member  State"  means  the  Member  State  of  which  a  citizen  of  the  Union  is  a 
national; 

"electoral  roll" means the official  register  of all  voters entitled to vote in a given  basic 
local government unit or in one of its subdivisions, drawn up and kept up-to-date by the 
competent  authority  under  the  electoral  law  of  the Member  State  of  residence,  or  the 
population  register  if it  indicates  eligibility  to vote; 

"reference  date"  means  the  day  or  days  on  which  citizens  of  the  Union  must  satisfy, 
under  the  law  of  the  Member  State  of  residence,  the  requirements  for  voting  or  for 
standing  as a candidate  in that  State; 

7. 

"formal  declaration" means a declaration by the person concerned, inaccuracy  in which 
makes that person  liable to penalties,  in  accordance  with the national  law applicable. 

Any  person  who, on the reference  date: 

Article 3 

(a) 

(b) 

is a citizen  of the Union within the meaning of the second  subparagraph  of Article  8(1) 
of the Treaty;  and 
is 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, 

shall  have  the  right  to  vote  and  to  stand  as  a  candidate  in  municipal  elections  in  the 
Member  State of  residence  in  accordance  with  this  Directive. 

33 

Article 4 

1. 

2. 

3. 

If,  in order to vote or to stand as candidates, nationals of the Member  State of residence 
must  have  spent  a  certain  minimum  period  as  a resident  in  the  territory  of  that  State, 
voters and persons entitled to stand as candidates within the scope of Article  3 shall be 
deemed to have fulfilled  that condition where they have resided for an equivalent period 
in  other Member  States. 

If under the laws of the Member  State of residence its own nationals may vote or stand 
as candidates only in the basic local  government unit in which they have their principal 
residence,  voters  and  persons  entitled  to  stand  as  candidates  within  the  scope  of 
Article  3  shall  also  be  subject  to  this  condition.  For  the  purpose  of  determining  the 
principal  residence  of  such  persons  account  shall be taken  of any  residences they  may 
have in  other  Member  States. 

Paragraph  1 shall  not  affect  the  provisions  of  each  Member  State  under  which  the 
exercise by any  person  of the right to vote and to  stand as a candidate in  a given  basic 
local government  unit is subject  to his having spent a minimum  period as a resident in 
that  unit. 

Article 5 

1.  Member  States of residence may provide that any citizen  of the Union who, through an 
individual  decision following within  either civil law or criminal  law, has been deprived 
of his  right to  stand  as a candidate under the law  of his home  Member  State,  shall  be 
precluded  from  exercising that right in municipal  elections. 

2.  An  application  from  any  citizen  of  the  Union  to  stand  as  a  candidate  in  municipal 
elections  in  the  Member  State  of  residence  may  be  declared  inadmissible  where  that 
citizen  is unable to provide the attestation  referred  to in  Article 9(2). 

3.  Member  States may provide that only their own nationals may hold the office  of elected 

head  or member  of the  executive  of  a basic  local  government  unit. 

Article 6 

1. 

Persons entitled to stand as candidates within the scope of Article  3 shall be  subject  to 
the  same  conditions  concerning  incompatibility  as  apply,  under  the  laws  of  the 
Member  State of  residence,  to nationals  of that  State. 

2.  Member  States may provide that the holding of elected municipal  office  in the Member 
in  other 
State  of  residence  is  also  incompatible  with  the  holding  of  offices 
Member  States which  are equivalent to those which  give rise to incompatibility  in the 
Member  State of residence. 

34 

Chapter  II: Exercise  of the  right  to vote  and  the right 
to  stand  as a candidate 

Article 7 

1.  A  voter  within  the  scope  of  Article  3  shall  exercise  his  right  to  vote  in  municipal 
elections  in the  Member  State of residence if  he has expressed  the wish  to do so. 

2. 

If  voting  is  compulsory  in  the  Member  State  of  residence,  voters  within  the  scope of 
Article  3 who have been  entered  on  the  electoral  roll  there  shall  be obliged  to vote. 

Article 8 

1.  Member  States shall  take the necessary  measures to enable a voter within the scope of 
Article  3,  who  has  so  requested,  to  be  entered  on  the  electoral  roll  sufficiently  in 
advance  of  polling  day. 

2. 

In  order  to  have  his  name  entered  on  the  electoral  roll,  a  voter  within  the  scope  of 
Article  3 shall  produce the same documents as a voter who is a national.  He shall  also 
produce a formal  declaration  stating his nationality  and his address in the Member  State 
of residence. 

The  Member  State of residence  may  also require  a voter within  the scope  of Article 3 
to produce  a valid  identity  document. 

3.  Voters  within  the  scope of  Article  3 who have been  entered  on  an  electoral  roll  in the 
Member  State  of  residence  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.  If such voters move to another basic local government unit 
in the same Member  State, they  shall be entered  on the electoral  roll of that unit under 
the same conditions  as voters who are nationals. 

Article 9 

1.  When  he  submits  his application  to  stand  as a candidate,  a person  entitled  to  stand  as 
a candidate within  the scope of Article  3 shall  produce the same supporting  documents 
as a candidate who is a national.  He shall  also produce  a formal  declaration  stating his 
nationality  and  his address in  the  Member  State  of residence. 

2. 

The  Member  State  of  residence  may  also  require  a  person  entitled  to  stand  as  a 
candidate  within  the  scope of  Article  3 to: 

produce,  when  submitting  his  application  to  stand  as  a  candidate,  an  attestation 
from the competent administrative authorities in his home Member  State certifying 
that he has not been  deprived  of the right to stand as a candidate in that  State or 
that  no such  disqualification  is known  to those authorities; 

35 

produce  a valid  identity  document, 

state in the formal  declaration he produces in accordance with paragraph  1  that he 
holds no office  which  is incompatible  within  the  meaning  of  Article 6(2); 

indicate  his last  address in  his home Member  State. 

Article  10 

The Member  State  of  residence  shall  inform  the person  concerned  of the  action  taken 
on  his  application  for  entry  on  the  electoral  roll  or  of  the  decision  concerning  the 
admissibility  of  his application  to  stand  as a candidate. 

Should  a person be refused  entry  on the electoral  roll or should  his application to stand 
as a candidate  be  rejected,  the  person  concerned  shall  be entitled  to legal  remedies on 
similar  terms  as  the  laws  of  the  Member  State  of  residence  prescribe  for  voters  and 
persons  entitled  to  stand  as candidates  who are  its nationals. 

Article 

The Member  State of residence shall inform  voters and persons entitled to stand as candidates 
within the scope of Article  3 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. 

Chapter  III:  Derogations  and  transitional  provisions 

Article  12 

Where,  on  1  January  1996, in  a given  Member  State, the proportion  of  citizens  of the 
Union of voting age who reside in it but are not nationals of it exceeds 20% of the total 
number of citizens of the Union residing there who are of voting age, that Member  State 
may,  by  way  of  derogation  from  this  Directive: 

(a) 

(b) 

restrict  the right to vote to voters within  the  scope of Article  3 who have resided 
in  that  Member  State  for  a  minimum  period,  which  may  not be  longer  than  the 
term  for  which  the representative  council  of the municipality  is  elected; 

restrict the right to stand  as a candidate to persons entitled  to stand  as candidates 
within  the  scope  of  Article  3  who  have  resided  in  that  Member  State  for  a 
minimum  period,  which  may  not  be  longer  than  twice  the  term  for  which  the 
representative  council  of the  municipality  is elected;  and 

(c) 

take appropriate measures with  regard to the composition  of lists of candidates to 
encourage  in  particular  the  integration  of  non-national  citizens  of the  Union. 

36 

2.  Where,  on  1 January  1996, the laws  of a Member  State prescribe that the nationals  of 
another Member  State who reside there have the right to vote for the national  parliament 
of  that  State  and,  for  that  purpose,  may  be  entered  on  the  electoral  roll  of  that  State 
under  exactly  the  same  conditions  as  national  voters,  the  first  Member  State  may, by 
way of derogation from  this Directive, refrain  from  applying Articles  5 to  11 in respect 
of  such  persons. 

3.  By  31  December  1998 and thereafter  every  six years, the Commission  shall  present  to 
the Council and to the European  Parliament a report in which it shall check whether the 
grant  to the  Member  States concerned  of  a derogation  pursuant  to Article  8b(l)  of the 
Treaty  is still  warranted  and  shall  propose that  any  necessary  adjustments  be made. 

Member  States  which  invoke  derogations  under  paragraphs  1 and  2  shall  furnish  the 
Commission  with  all  the necessary  background  information. 

Article  13 

Citizens  of the  Union  who,  on  1 January  1996,  already  have  the  right  to vote  in  municipal 
elections  in  the Member  State of  residence  and  whose  names  appear  on  an  electoral  roll  in 
that State shall not be subject to the formalities  laid down in Article  8 at the time of the first 
municipal  elections to which  this Directive  applies in  accordance  with  Article  14. 

Chapter  VI: Final  provisions 

Article  14 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary  to  comply  with  this  Directive  before  1 January  1996.  They  shall  immediately 
inform  the Commission  thereof. 

When Member  States adopt these provisions, these shall  contain  a reference  to this Directive 
or  shall  be  accompanied  by  such  reference  at  the  time  of  their  official  publication.  The 
procedure for  such  reference  shall  be  adopted  by Member  States. 

Article  15 

This Directive  shall  enter into force  on the twentieth  day following  that of its publication  in 
the Official  Journal  of the  European  Communities. 

37 

This Directive is addressed  to the Member  States. 

Article  16 

Done at Brussels, 

For the  Council 
The  President 

38 

ANNEX 

to the  Directive  laying  down  detailed  arrangements  for  the 
exercise  of  the  right  to vote  and  to stand  as a candidate  in 
municipal  elections  by citizens  of the  Union  residing  in a 
Member  State  of which  they  are not  nationals 

"Basic local government unit" within the meaning of Article 2(1) of this Directive means any 
of the  following: 

in  Denmark: 

amstkommune,  Kobenhavns kommune,  Frederiksbergs  kommune, 
primœrkommune, 

in  Belgium: 

commune/gemeente/Gemeinde, 

in Germany: 

kreisfreie Stadt bzw. Stadtkreis,  Kreis, 
Gemeinde,  Bezirk in der Freien und Hansestadt Hamburg und im Ixmd Berlin, 
Stadt  , Gemeinde  oder Ortsbezirke bzw.  Ortschqften, 

- 

in Greece: 

xotvÔTîfç (koinotis), 
âtffioç (dimos), 

mumcipw, 

in  France: 

commune, 
arrondissement dans les villes déterminées par  la législature interne,  section de 
commune, 

in  Ireland: 

county, county borough, 
urban district, nan  county borough,  Umn, 

39 

in  Italy: 

comune, 
circoscrizione, 

in  Luxembourg: 

commune, 

in the  Netherlands: 

gemeente, 
deelgemeente, 

in  Portugal: 

municipio, 
freguesia, 

in the  United  Kingdom: 

counties in England and  Wales, regions in Scotland, 
districts, metropolitan districts, London boroughs, Isles authorities, 
parishes  in England, communities in Scotland and Wales. 

40 

ÏSSN 0254-iLs7: 

COM(94) 38 final 

DOCUMENTS 

EN 

0106 

Catalogue number : CB-CO-94-045-EN-C 

ISBN 92-77-65317-5 

Office for Officiai Publications of the European Commimities 
L-2985 Luxembourg 

41