REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on granting a derogation under Article 22(2) on the Treaty on the Functioning of the European Union, 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: 2023-11-07
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, EU national, European Parliament, European election, derogation from EU law, residence, right to stand for election, right to vote

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  EN 

   EUROPEAN COMMISSION  Brussels, 7.11.2023  COM(2023) 688 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on granting a derogation under Article 22(2) on the Treaty on the Functioning of the European Union, 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     
 
 
REPORT FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT AND TO THE COUNCIL 

on granting a derogation under Article 22(2) on the Treaty on the Functioning of the 
European Union, 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  exercising  the 
right to vote and stand as a candidate in elections to the European Parliament for EU 
citizens who are resident in a Member State of which they are not nationals. 

Article  14(3)  of  the  Directive  specifies  that,  prior  to  each  election  to  the  European 
Parliament, the Commission must (i) submit to the Parliament and the Council of the 
EU  a  report  verifying  whether  the  granting  to  the  Member  States  concerned  of  a 
derogation  under  Article  22(2)  of  the  Treaty  on  the  Functioning  of  the  European 
Union  (TFEU)  is  still  warranted  and  (ii)  propose,  if  appropriate,  that  any  necessary 
adjustments be made. 

The  next  elections  to  the  European  Parliament,  to  be  held  in  the  27  EU  Member 
States, will take place between the 6 and 9 June 2024.  

The only Member State that applies a derogation under the Directive is Luxembourg. 

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

2. 

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

Article  22(2)  TFEU  specifies  that  EU  citizens  resident  in  a  Member  State  of  which 
they are not nationals (‘mobile EU citizens’) have the right to both vote and stand as a 
candidate  in  elections  to  the  European  Parliament  in  that  Member  State,  under  the 
same conditions as nationals of that state.  

This right is to be exercised subject to detailed arrangements adopted by the Council, 
after  consulting  the  European  Parliament.  These  arrangements  may  provide  for 
derogations, where this is justified on account of problems specific to a Member State. 

The detailed arrangements for exercising the right to vote and stand as a candidate in 
elections  to  the  European  Parliament  were  laid  down  by  the  above-mentioned 
Directive.  

1  

 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, 30.12.1993, p. 34. 

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It stipulates in Article 3 that any person who, on the reference date,  

(a) is an EU citizen within the meaning of Article 20 TFEU and;  

(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 of the Directive.  

Any such voter is referred to here as ‘mobile EU citizen voter’ and any such candidate 
a ‘mobile EU citizen entitled to stand as a candidate’.  

3. 

DEROGATIONS UNDER ARTICLE 14 OF THE DIRECTIVE 

The recitals of the Directive record the possibility for Member States to derogate from 
the general rules of this Directive, if warranted (as referred to in what is now Article 
22 TFEU) by problems specific to a Member State.  

The recitals further explain that such specific problems may arise in a Member State 
where the proportion of mobile EU citizens of voting age is very significantly greater 
than the average within the EU as a whole. 

The  first  sub-paragraph  of  Article  14(1)  states  that  if,  in  a  given  Member  State,  the 
proportion of  mobile EU  citizens of voting age exceeds 20% of the total  number of 
EU  citizens  of  voting  age  resident  there,  that  Member  State  may,  by  way  of 
derogation from Articles 3, 9 and 10: 

(a) restrict  the  right  to  vote  to  mobile  EU  citizens  who  have  resided  in  that 

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

(b) restrict the right to stand as a candidate to mobile EU citizen who have resided 
in that Member State for a minimum period (which may not exceed 10 years). 

However, mobile EU citizens who, because they have taken up residence outside their 
home Member State or because of the duration of that residence, do not have the right 
to vote or stand as candidates in their home state will not be subject to the conditions 
regarding length of residence set out above. 

The  second  sub-paragraph  of  Article  14(1)  states  that  “these  provisions  are  without 
prejudice to  appropriate measures which this Member State may take with regard to 
the  composition  of  lists  of  candidates  and  which  are  intended  in  particular  to 
encourage the integration of non-national citizens of the Union.” 

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4. 

DEROGATIONS APPLIED BY LUXEMBOURG 

Luxembourg is the only Member State that applies a derogation on the basis of Article 
14(1) of the Directive.  

Under  Luxembourg  law  a  list  for  the  elections  to  the  European  Parliament  may  not 
include more than six candidates; it must be composed of a majority of candidates of 
Luxembourgish nationality.2 As confirmed by the authorities in Luxembourg, this law 
means that only two mobile EU citizens who are not nationals of Luxembourg can be 
included in a list. 

Since 2013,3 Luxembourg does not  make  the  right  of mobile EU citizens to  vote or 
stand  as  a  candidate  in  elections  to  the  European  Parliament  conditional  on  a 
minimum period of residency in Luxembourg. 

5. 

EVALUATION OF THE CIRCUMSTANCES FOR GRANTING A DEROGATION 

The circumstances  described in  Article 14(1) as  a condition  for derogating from  the 
general  rules  laid  down  in  the  Directive  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)  specifies  that  Member  States  which  invoke 
derogations  under  paragraph  1  must  provide  the  Commission  with  all  the  necessary 
background information. 

The  Luxembourg  authorities,  in  a  letter  dated  25  November  2022,  sent  the 
Commission  the  necessary  information,  from  which  it  has  emerged  that  on  16 
November  2022,  201 524  mobile  EU  citizens  of  voting  age  were  resident  in 
Luxembourg,  whereas  the  total  number  of  EU  citizens  (including  those  of 
Luxembourg nationality) of voting age resident in Luxembourg was 481 184 people. 

It  follows  that  on  the  16  November  2022  the  proportion  of  mobile  EU  citizens  of 
voting age residing in Luxembourg was 41.88% of the total number of EU citizens of 
voting age resident there. This proportion remains significantly higher than the limit 
set  in  the  Directive  (20%)  and  there  is  no  reason  to  assume  that  the  situation  has 
changed since. 

Luxembourg exercises a derogation on the basis of its large population of mobile EU 
citizens. According to the Luxembourgish authorities, the measure on the composition 
of lists is intended to avoid any polarisation between lists of national and non-national 
candidates. 

2  Article 291(5) of the Electoral Law. 
3   Law of the 20 December 2013, modifying the Electoral Law. 

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In  the  2014  elections  to  the  European  Parliament,  out  of  54  candidates  in 
Luxembourg, 3 were non-national citizens. In 2019, out of 60 candidates, 2 were non-
national citizens. 

6. 

CONCLUSIONS 

The Commission welcomes the fact that Luxembourg has stopped making mobile EU 
citizens’  right  to  vote  or  stand  as  candidates  in  the  elections  to  the  European 
Parliament conditional on a minimum period of residence in Luxembourg. 

Regarding the composition of lists of candidates, based on the fact that the proportion 
of  mobile  EU  citizens  of  voting  age  resident  in  Luxembourg  remains  significantly 
higher  than  the  threshold  of  20%  referred  to  in  Article  14(1),  the  granting  of  a 
derogation is still warranted. 

The Commission encourages  Luxembourg to  continue taking measures  fostering  the 
integration  of  mobile  EU  citizens,  including  as  regards  the  composition  of  lists  of 
candidates. 

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