Report from the Commission to the European Parliament and to the Council on granting a derogation pursuant to Article 19(1) of the EC Treaty, presented under Article 12(4) of Directive 94/80/EC on the right to vote and stand as a candidate in municipal elections
Date: 2005-08-22
Institutions: European Commission
Subjects: EU Member State, EU national, Luxembourg, civil rights, derogation from EU law, local election, residence, right to stand for election, right to vote

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 22.08.2005 
COM(2005) 382 final 

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

on granting a derogation pursuant to Article 19(1) of the EC Treaty,  
presented under Article 12(4) of Directive 94/80/EC  
on the right to vote and stand as a candidate in municipal elections 

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1. 

PURPOSE OF THE REPORT 

Council Directive 94/80/EC1 lays down detailed arrangements for the exercise of the 
right  to  vote  and  to  stand  as  a  candidate  in  municipal  elections  for  citizens  of  the 
Union residing in a Member State of which they are not nationals2.  

Article  12(4)  of  the  Directive  provides  that,  by  31  December  1998  and  every  six 
years thereafter, the Commission shall submit to the 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(1)  of  the  Treaty  establishing  the 
European  Community  is  still  warranted  and  shall  propose  that  any  necessary 
adjustments be made. 

2. 

RIGHT TO VOTE AND TO STAND AS A CANDIDATE AT MUNICIPAL ELECTIONS 

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

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(1)  provides  that  every  non-national  citizen  of  the  Union  has  the  right  to 
vote and to stand as a candidate in municipal elections 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 
to  a 
may  provide  for  derogations  where  warranted  by  problems  specific 
Member State.  

The  detailed  arrangements  for  the  exercise  of  the  right  to  vote  and  to  stand  as  a 
candidate  at  municipal  elections  were  laid  down  in  1994  by  the  abovementioned 
Directive. Article 3 stipulates that any person who, on the reference date, 

(a) 

(b) 

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

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, 

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3 

Council Directive 94/80/EC of 19 December 1994 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  (OJ  L  368,  31.12.1994,  p.  38),  as  amended  by 
Council  Directive  96/30/EC  of  13  May  1996  (OJ  L  122,  22.5.1996,  p.  14)  and  adapted  by  Act  of 
Accession of 16 April 2003 (OJ L 236, 23.9.2003, p. 334), hereinafter referred to as “the Directive”. 
Hereafter referred to as “non-national citizens of the Union”. 
Article 40 of the Charter of Fundamental Rights of the European Union (OJ C 364, 18.12.2000, p. 1). 

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

In general, the Directive does not allow the Member State of residence to require that 
non-national Union citizens must reside a certain minimum period in the territory of 
that Member State before being entitled to vote or stand as a candidate, if there is no 
similar requirement for their own nationals. In addition, non-national citizens of the 
Union  are  in  such  a  case  deemed  to  have  fulfilled  a  condition  of  residence  for  a 
minimum period in the territory of the Member State of residence where they have 
resided for an equivalent period in other Member States, c.f. Article 4(1). 

3. 

DEROGATIONS UNDER ARTICLE 12 OF THE DIRECTIVE 

The  Directive  permits  derogations  from  the general  rules.  The  derogations  must  be 
justified  by  virtue  of  problems  specific  to  a  Member  State.  Article  12(1)  provides 
that 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 the Directive: 

(a) 

(b) 

restrict the right to vote to voters within the scope of Article 3 of the Directive 
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  a 
candidate  within  the  scope  of  Article  3  of  the  Directive  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  citizens  of  the  Union,  who  are 
nationals of another Member State. 

Article 12(2) provides that the Kingdom of Belgium may, by way of derogation from 
provisions  of  the  Directive,  apply  the  provisions  of  Article  12(1)(a)  to  a  limited 
number of local government units, the list of which it shall communicate at least one 
year  before  the  local  government  unit  elections  for  which  it  intends  to  invoke  the 
derogation. 

Article  12(3)  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 
to vote for the national parliament of that State under exactly the same conditions as 
national  voters,  the  first  Member  State  may,  by  way  of  derogation  from  the 
Directive, refrain from applying Articles 6 to 11 in respect of such nationals. 

4. 

DEROGATION APPLIED 

Luxembourg is the only Member State that has availed itself of a derogation on the 
basis of Article 12(1). Luxembourg restricts the right to vote to non-national citizens 

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of the Union who have had their legal domicile in the territory of Luxembourg and 
have resided in its territory at least five years before registration.4 Regarding the right 
to stand as a candidate, Luxembourg requires non-national citizens of  the Union to 
have resided there also at least five years before submitting the application.5 

Members  of  the  municipal  council  are  elected  for  a  term  of  six  years.6  Thus  the 
minimum period of residence required for entitlement to vote is shorter than the term 
for which the representative council of municipality is elected, and complies with the 
Directive. The same applies to the minimum period for residence as regards the right 
to stand as a candidate: it is shorter than “twice the term for which the representative 
council of the municipality is elected”. 

As  regards  Article  12(2),  Belgium  has  never  communicated  any  local  government 
units for which it would apply a derogation. 

5. 

EVALUATION OF THE CIRCUMSTANCES FOR GRANTING A DEROGATION 

The circumstances described in Article 12(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  12(4)  provides  that  Member  States  which  invoke 
derogations  under paragraph 1 must  furnish the Commission with  all  the  necessary 
background information. The Commission requested7 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. 

According  to  data  provided  by  the  Luxembourg  authorities,  the  number  of  non-
national  citizens  of  the  Union  residing  in  Luxembourg  was  133  831.  The  total 
number of citizens of the Union of voting age residing in Luxembourg was 356 274. 

It  follows  that  the  proportion  of  non-national  citizens  of  the  Union  of  voting  age 
residing in Luxembourg was 37.6% of the total number of citizens of the Union of 
voting  age  residing  there.  The  proportion  is  clearly  higher  that  the  threshold  laid 
down in the Directive, i.e. 20%. 

4 
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6 
7 

Article 2, Loi électoral du 18 février 2003. 
Article 192, Loi électoral du 18 février 2003. 
Article 186, Loi électoral du 18 février 2003. 
Letter of 30 August 2004. 

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As far as the derogation pursuant to Article 19(1) of the Treaty and to Article 12(2) 
of  the  Directive  is  concerned,  the  situation  in  Belgium  –  although  it  never  has 
invoked the derogation yet – connected with specific features and balances linked to 
the  fact  that  its  Constitution  provide  for  three  official  languages  and  a  territorial 
division into regions and communities, has not changed.  

6. 

CONCLUSIONS 

The  Commission  concludes  that  the  circumstances  warranting  the  granting  to 
Luxembourg  of  a  derogation  pursuant  to  Article  19(1)  of  the  Treaty  and  to  Article 
12(1) of the Directive still apply as the grounds for justifying the derogation are still 
valid. 

The  Commission  concludes  that  the  circumstances  warranting  the  granting  to 
Belgium of a derogation pursuant to Article 19(1) of the Treaty and to Article 12(2) 
of the Directive still apply as the grounds for justifying the derogation are still valid. 

Consequently,  the  Commission  does  not  find  it  necessary  to  propose  any 
adjustments. 

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