Report from the Commission to the European Parliament and to the Council on granting a derogation pursuant to Article 19(2) of the EC Treaty, presented under Article 14(3) of Directive 93/109/EC on the right to vote and to stand as a candidate in elections to the European Parliament
Date: 2003-01-27
Institutions: European Commission
Subjects: EU national, European Parliament, European citizenship, European election, Luxembourg, derogation from EU law, right to stand for election, right to vote

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 27.01.2003
COM(2003)31 final

REPORT FROM THE COMMISSION
TO THE EUROPEAN PARLIAMENT AND TO THE COUNCIL

on granting a derogation pursuant to Article 19(2) of the EC Treaty,
presented under Article 14(3) of Directive 93/109/EC
on the right to vote and to stand as a candidate in elections to the European Parliament

1.

PURPOSE OF THE REPORT

Council Directive 93/109/EC1 lays down detailed arrangements for the exercise of
the right to vote and stand as a candidate in elections to the European Parliament for
citizens of the Union residing in a Member State of which they are not nationals.

The first sentence of Article 14(3) of the Directive provides that, 18 months prior to
to the
each election to the European Parliament, the Commission shall submit
European Parliament and to the Council a report in which it shall check whether the
grant to the Member States concerned of a derogation pursuant to Article 19(2) of the
Treaty establishing the European Community is still warranted and shall propose that
any necessary adjustments be made.

The next elections to the European Parliament will
take place in June 2004.
Therefore, the Commission must submit the abovementioned report in December
2002.

The only current Member State that has invoked a derogation pursuant
to
Article 19(2) of the Treaty is the Grand Duchy of Luxembourg. The objective in
relation to enlargement is that ten new members - Czech Republic, Estonia, Cyprus,
Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia - should accede to
the European Union in time for the elections to the European Parliament scheduled
for June 2004. The elections will thus take place in 25 Member States. None of the
ten candidate countries has raised the question of a derogation pursuant
to
Article 19(2) of the Treaty in the accession negotiations.

The aim of the report is, therefore, to establish whether the circumstances which
warranted the granting of the derogation to Luxembourg still exist and, if necessary,
to propose that adjustments be made.

2.

RIGHT TO VOTE AND STAND AS A CANDIDATE AT ELECTIONS TO THE EUROPEAN
PARLIAMENT

Every citizen of the Union has the right to vote and stand as a candidate at elections
to the European Parliament in the Member State in which he or she resides under the
same conditions as nationals of that State.2

This is one of the rights that citizenship of the Union, introduced by the Maastricht
Treaty in 1992, confers on citizens of the Union. The specific rights relating to taking
part in political life in the Member State of residence are laid down in Article 19 of
the Treaty establishing the European Community (hereinafter “the EC Treaty”).

Article 19(2) provides that every citizen of the Union residing in a Member State of
which he/she is not a national3 has the right to vote and stand as a candidate in

1

2

Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise
of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the
Union residing in a Member State of which they are not nationals (OJ L 329, 31.12.1993, p. 34),
hereinafter referred to as “the Directive”.
Article 39(1) of the Charter of Fundamental Rights of the European Union (OJ C 364, 18.12.2000, p. 1).

2

elections to the European Parliament in the Member State in which he/she resides,
under the same conditions as nationals of that State. This right is to be exercised
subject to detailed arrangements adopted by the Council. The arrangements may
provide for derogations where warranted by problems specific to a Member State.

The detailed arrangements for the exercise of the right to vote and stand as a
candidate at elections to the European Parliament were laid down in 1993 by the
abovementioned Directive. It stipulates in Article 3 that any person who, on the
reference date,

(a)

is a citizen of the Union within the meaning of Article 17 of the Treaty;

(b) 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 elections to the European
Parliament in the Member State of residence unless deprived of those rights pursuant
to Articles 6 and 7. Any such voter is called a "Community voter" and any such
candidate a "Community national entitled to stand as a candidate". Article 9 of the
Directive lays down rules on entering Community voters on the electoral roll in the
Member State of residence, and Article 10 governs applications by Community
nationals to stand as a candidate.

3.

DEROGATIONS UNDER ARTICLE 14 OF THE DIRECTIVE

The Directive permits the introduction of exceptions to the principle of equal
treatment between national and non-national voters where this is justified by
problems specific to a Member State. Article 14(1) provides that if, in a given
Member State, the proportion of citizens of the Union of voting age who reside in 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 Articles 3, 9 and 10:

(a)

(b)

the right

restrict
Member State for a minimum period, which may not exceed five years;

to vote to Community voters who have resided in that

restrict the right to stand as a candidate to Community nationals entitled to
stand as candidates who have resided in that Member State for a minimum
period, which may not exceed 10 years.

However, Community voters and Community nationals entitled to stand as a
candidates, who, owing to the fact that they have taken up residence outside their
home Member State or by reason of the duration of such residence, do not have the
right to vote or to stand as a candidates in that home State shall not be subject to the
conditions as to length of residence set out above.

Article 14(2) of the Directive provides that, where the laws of a Member State
prescribe that the nationals of another Member State who reside there have the right

3

Hereafter referred to as “non-national citizen of the Union”.

3

to vote for the national parliament of that State under exactly the same conditions as
the first Member State may, by way of derogation from the
national voters,
Directive, refrain from applying Articles 6 to 13 in respect of such nationals.

4.

DEROGATION APPLIED BY LUXEMBOURG

The only Member State that has availed itself of a derogation is Luxembourg, on the
basis of Article 14(1). Luxembourg restricts the right to vote to non-national citizens
of the Union who have resided in its territory for five of the last six years before
registration.4 Regarding the right to stand as a candidate, Luxembourg requires
non-national citizens of the Union to have their legal domicile in the territory of
twelve years before
Luxembourg and to have resided there for ten of the last
submitting the application.5

5.

EVALUATION OF THE CIRCUMSTANCES FOR GRANTING THE DEROGATION

The circumstances described in Article 14(1) as a condition for granting a derogation
are that “the proportion of citizens of the Union of voting age who reside in a given
Member State but are not nationals of it exceeds 20% of the total number of citizens
of the Union residing there who are of voting age”.

Thus it must be established whether the proportion of non-national citizens of the
Union of voting age who reside in Luxembourg exceeds 20% of the total number of
citizens of the Union of voting age residing in Luxembourg.

The second sentence of Article 14(3) provides that Member States which invoke
derogations under paragraph 1 must furnish the Commission with all the necessary
background information. By letter of 5 June 2002, the Commission requested the
Luxembourg authorities to submit the most recent information concerning:

– the number of citizens of the Union of voting age who reside in Luxembourg but

are not nationals of it, and

– the total number of citizens of

the Union of voting age who reside in

Luxembourg.

The Luxembourg authorities replied by letter of 11 September 2002. According to
data provided by the letter, the latest numbers of citizens are based on the population
census carried out in February 2001 by STATEC (Service Central de la Statistique et
des Etudes Economiques). According to the census, the number of citizens of the
Union of voting age residing in Luxembourg but not nationals of it was 107 375. The

4

5

Article 1, Act of 25 February 1979 on the direct election of the representatives of the Grand Duchy of
Luxembourg to the European Parliament, amended by Act of 28 January 1994 laying down the
arrangements for the election of the representatives of the Grand Duchy of Luxembourg to the
European Parliament.
Article 98, Act of 25 February 1979 on the direct election of the representatives of the Grand Duchy of
Luxembourg to the European Parliament, amended by Act of 28 January 1994 laying down the
arrangements for the election of the representatives of the Grand Duchy of Luxembourg to the
European Parliament.

4

total number of citizens of the Union of voting age residing in Luxembourg was
326 027.

It follows that the proportion of non-national citizens of the Union of voting age
residing in Luxembourg was 32.93% of the total number of citizens of the Union of
voting age residing there at the time of the 2001 population census. There is no
reason to assume that the situation has changed since that time. The proportion is
clearly higher that the threshold laid down in the Directive, i.e. 20%.

6.

CONCLUSIONS

The Commission concludes that the circumstances warranting the granting to the
Grand Duchy of Luxembourg of a derogation pursuant to Article 19(2) of the Treaty
and to Article 14(1) of the Directive still apply. Consequently, the Commission does
not find it necessary to propose any adjustments.

5