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: 2007-12-20
Institutions: European Commission
Subjects: EU national, European Parliament, European Union, European election, derogation from EU law, right to stand for election, right to vote

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 20.12.2007 
COM(2007) 846 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 

EN 

   EN 

 
 
 
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 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. 

Article 14(3) of the Directive provides that, 18 months prior to each election to the 
European  Parliament,  the  Commission  shall  submit  to  the  Parliament  and  to  the 
Council a report verifying whether the granting 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  if  appropriate  that  any  necessary 
adjustments be made. 

The next elections to the European Parliament, to be held in the 27 Member States of 
the Union, will take place in June 2009. The Commission must therefore submit the 
aforementioned report in December 2007. 

The only Member State that has requested a derogation pursuant to Article 19(2) of 
the  Treaty  is  the  Grand  Duchy  of  Luxembourg.  Neither  of  the  two  Member  States 
that joined the European Union since the previous elections in 2004 have requested 
this derogation. 

The  reasons  for  granting  the  derogation  to  the  Grand Duchy  of  Luxembourg  were 
verified ahead of the 2004 elections by the Commission which concluded in its report 
of 27 January 20032 that the derogation was justified and that there was therefore no 
reason to propose any amendment. 

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

1 

2 

Council Directive 93/109/EC of 6 December 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. 
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 (COM (2003) 31 final). 

EN 

2 

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2. 

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

Article 19(2) of the Treaty establishing the European Community 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 to stand as a candidate in 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. These arrangements may provide for derogations where this is justified 
because of problems specific to a Member State. 

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

is a citizen of the Union within the meaning of Article 17 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 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”.  

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. This is the case if the proportion of citizens of 
the Union of voting age resident in a Member State of which they are not a national 
is much greater than the average within the Union as a whole.  

The  first  sub-paragraph  of  Article  14(1)  states  that  if  in  a  given  Member  State,  the 
proportion of citizens of the Union of voting age who are residents but not nationals 
of it exceeds 20% of the total number of citizens of the Union residing there but who 
are of voting age, that Member State may, by way of derogation from Articles 3, 9 
and 10: 

restrict the right to vote to Community voters who have resided in that Member 

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

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

3 

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

EN 

3 

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However,  Community  voters  and  Community  nationals  entitled  to  stand  as 
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 candidates in that home State shall not be subject to the 
conditions as to length of residence set out above. 

4. 

DEROGATIONS APPLIED BY LUXEMBOURG 

The  Grand  Duchy  of  Luxembourg  is  the  only  Member  State  that  has  requested  a 
derogation  on  the  basis  of  Article  14(1).  Under  Luxembourg  law,  non-national 
citizens of the Union wishing to vote in Luxembourg must be domiciled in the Grand 
Duchy and have resided there for at least five years before requesting registration on 
the electoral roll4. 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 
Luxembourg  and  to  have  resided  there  for  five  years  before  submitting  their 
application as a candidate5.  

Luxembourg  law  also  provides  that  Community  voters  and  Community  nationals 
entitled  to  stand  as  candidates  who,  owing  to  their  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 candidates in that home State shall not be subject to the conditions 
as to length of residence set out above. 

5. 

EVALUATION OF THE CIRCUMSTANCES FOR GRANTING A 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”. 

The  second  sentence  of  Article  14(3)  provides  that  Member  States  which  invoke 
derogations under paragraph 1, shall furnish the Commission with all the necessary 
background information.  

The  Luxembourg  authorities,  by  letter  of  26 October,  sent  the  Commission  the 
necessary  information,  from  which  it  has  emerged  that  on  1 January  2007  135 400 
EU citizens of voting age were resident in Luxembourg but were not of Luxembourg 
nationality, whereas the total number of EU citizens (including those of Luxembourg 
nationality) of voting age resident in Luxembourg was 357 500 people. 

It  follows  that  the  proportion  of  non-national  citizens  of  the  Union  of  voting  age 
residing in Luxembourg was 37.87% of the total number of citizens of the Union of 
voting  age  residing  there  at  1  January  2007.  This  proportion  is  significantly  higher 
than  the  limit  set  in  the  Directive  (20%)  and  there  is  no  reason  to  assume  that  the 
situation has changed since. 

4 
5 

Article 3(5) of the Electoral Law, modified on 18 February 2003. 
Article 285(4) of the Electoral Law, modified on 18 February 2003. 

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4 

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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.  It  does  not  therefore  consider  it 
necessary  to  suggest  amendments  to  the  provisions  governing  the  Luxembourg 
legislation. 

EN 

5 

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