1 By its application, the European Commission asks the Court to declare that, by denying EU citizens who are not Polish nationals but who reside in Poland the right to be a member of a political party, the Republic of Poland has failed to fulfil its obligations under Article 22 TFEU.
2 Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), is entitled ‘Freedom of assembly and association’ and provides: ‘1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.’
3 Under Article 16 of the ECHR, entitled ‘Restrictions on political activity of aliens’: ‘Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.’
4 Article 3 of the Additional Protocol to the ECHR, signed in Paris on 20 March 1952, entitled ‘Right to free elections’, is worded as follows: ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’
5 Article 2 TEU provides: ‘The [European] Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’
6 Article 4(1) and (2) TEU reads as follows: ‘1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States. 2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.’
7 Article 5(1) and (2) TEU provides: ‘1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. 2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.’
8 Article 10 TEU provides: ‘1. The functioning of the Union shall be founded on representative democracy. 2. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council [of the European Union] by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens. 3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen. 4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.’
9 The first paragraph of Article 18 TFEU states: ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’
10 Article 20 TFEU reads as follows: ‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: … (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; … These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.’
11 Article 21(1) TFEU provides: ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’
12 Article 22 TFEU provides: ‘1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. 2. Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.’
13 Article 12 of the Charter of Fundamental Rights of the European Union (‘the Charter’), entitled ‘Freedom of assembly and of association’, reads as follows: ‘1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests. 2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.’
14 Article 39 of the Charter, entitled ‘Right to vote and to stand as a candidate at elections to the European Parliament’, provides: ‘1. Every citizen of the Union has the right to vote and to 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. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.’
15 Under Article 40 of the Charter, entitled ‘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.’
16 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 1993 L 329, p. 34), as amended by Council Directive 2013/1/EU of 20 December 2012 (OJ 2013 L 26, p. 27) (‘Directive 93/109’), states, in the third to seventh and tenth recitals thereof: ‘Whereas the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence, laid down in Article 8b(2) [EC], is an instance of the application of the principle of non-discrimination between nationals and non-nationals and a corollary of the right to move and reside freely enshrined in Article 8a [EC]; Whereas Article 8b(2) [EC] is concerned only with the possibility of exercising the right of vote and to stand as a candidate in elections to the European Parliament, without prejudice to Article 138(3) [EC], which provides for the establishment of a uniform procedure in all Member States for those elections; whereas it essentially seeks to abolish the nationality requirement which currently has to be satisfied in most Member States in order to exercise those rights; Whereas application of Article 8b(2) [EC] does not presuppose harmonisation of Member States’ electoral systems; whereas, moreover, to take account of the principle of proportionality set out in the third paragraph of Article 3b [EC], the content of Community legislation in this sphere must not go beyond what is necessary to achieve the objective of Article 8b(2) [EC]; Whereas the purpose of Article 8b (2) [EC] 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 a candidate in elections to the European Parliament 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 Member State concerned; Whereas Article 8b(2) [EC] provides for the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence, without, nevertheless, substituting it for the right to vote and to stand as a candidate in the Member State of which the citizen is a national; whereas the freedom of citizens of the Union to choose the Member State in which to take part in European elections must be respected, while taking care to ensure that this freedom is not abused by people voting or standing as a candidate in more than one country; … Whereas citizenship of the Union is intended to enable citizens of the Union to integrate better in their host country and that 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’.
17 Article 1(1) of Directive 93/109 provides: ‘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 elections to the European Parliament.’
18 Under Article 10(1) of that directive: ‘When he submits his application to stand as a candidate, a Community national shall produce the same supporting documents as a candidate who is a national. He shall also produce a formal declaration stating: (a) his nationality, date and place of birth, last address in the home Member State and his address in the electoral territory of the Member State of residence; (b) that he is not standing as a candidate for election to the European Parliament in any other Member State; (c) where applicable, the locality or constituency in his home Member State on the electoral roll of which his name was last entered, and (d) that he has not been deprived of the right to stand as a candidate in the home Member State through an individual judicial decision or an administrative decision provided that the latter can be subject to judicial remedies.’
19 Article 11(2) of that directive states: ‘Should a person be refused entry on the electoral roll or his application to stand as a candidate be rejected, the person concerned shall be entitled to legal remedies on the same terms as the legislation of the Member State of residence prescribes for voters and persons entitled to stand as candidates who are its nationals.’
20 The fourth, fifth and fourteenth recitals of 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 1994 L 368, p. 38) state: ‘Whereas application of Article 8b(1) [EC] does not presuppose complete harmonisation 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 [EC], the content of Community legislation in this sphere must not go beyond what is necessary to achieve the objective of Article 8b (1) [EC]; Whereas the purpose of Article 8b(1) [EC] 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 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 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 polarisation between lists of national and non-national candidates’.
21 Article 1(1) of Directive 94/80 provides: ‘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.’
22 Article 8(3) of that directive is worded as follows: ‘Voters … 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 are removed automatically because they no longer satisfy the requirements for exercising the right to vote. Voters who have been entered on the electoral roll at their request can also be removed from it if they so request. 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.’
23 Article 9(1) of that directive provides: ‘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. The Member State of residence may require him to produce a formal declaration stating his nationality and his address in the Member State of residence.’
24 Under Article 10(2) of that directive: ‘Should a person not be entered on the electoral roll or have his application form entry refused or have his application to stand as a candidate 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.’
25 Article 2(1) of the ustawa o partiach politycznych (Law on political parties) of 27 April 1997 (Dz. U. of 1997, No 98, item 604), as amended, provides: ‘Nationals of the Republic of Poland aged 18 or over may be members of a political party.’
26 Under Article 5 of the Law on political parties: ‘Political parties shall be guaranteed access to public radio and television channels in accordance with the rules laid down in separate laws.’
27 Article 24 of that law provides: ‘1. The assets of political parties shall derive from membership fees, donations, legacies, bequests, property income, and grants and subsidies as specified by law. 2. The assets of political parties may be used only for purposes specified in their constitution or for charitable purposes. … 4. A political party may derive income from its assets only in connection with: (1) interest yielded by funds held in bank accounts and term deposits; (2) trading in Treasury bonds and bills; (3) transfers of assets; …’
28 Article 28(1) of that law provides: ‘A political party which: (1) in elections to the Lower Chamber of the Polish Parliament, having established its own electoral committee, has received, nationally, at least 3% of the valid votes cast for its constituency lists of candidates for the office of Member of Parliament, or (2) in elections to the Lower Chamber of the Polish Parliament, is a member of an electoral coalition whose constituency lists of candidates for the office of Member of Parliament have received, nationally, at least 6% of the votes validly cast, shall be entitled to receive, for the duration of the legislative term and in accordance with the detailed arrangements and rules laid down in the present Law, a subsidy funded from the State budget … for the performance of its activities as specified in its constitution.’
29 Article 36(1) of the Law on political parties is worded as follows: ‘A political party’s election fund may originate from the political party’s own contributions, as well as donations, legacies and bequests.’
30 Under Article 84 of the ustawa Kodeks wyborczy (Law establishing the Electoral Code) of 5 January 2011 (Dz. U. of 2011, No 21, item 112), in the version applicable to the present action (‘the Electoral Code’): ‘1. The right to nominate candidates for election shall be vested in electoral committees. Electoral committees shall also perform other electoral activities and, in particular, on an exclusive basis, shall conduct election campaigns for candidates. 2. In elections to the Lower and Upper Chambers of the Polish Parliament and in elections to the European Parliament in Poland, electoral committees may be established by political parties and by coalitions of political parties, and by voters. … 4. In elections to the representative bodies of local authorities and elections for mayors, electoral committees may be established by political parties, coalitions of political parties, associations and social organisations (“organisations”), and by voters.’
31 Article 87 of the Electoral Code provides: ‘1. Political parties may form electoral coalitions in order jointly to put forward candidates. A political party may be part of only one electoral coalition. 2. Election activities on behalf of an electoral coalition shall be performed by an electoral committee of the coalition, formed by bodies of the political parties authorised to represent each party externally. …’
32 Under Article 89(1) of that code: ‘A minimum of 15 nationals with the right to vote may form a voters’ electoral committee.’
33 Article 117(1) of that code provides: ‘Electoral committees whose candidates have been registered shall, from the 15th day preceding polling day until the end of the election campaign, be entitled to have their electoral programme broadcast, free of charge, on public radio and television channels, at the broadcasters’ expense.’
34 Article 119(1) of that code states: ‘Notwithstanding the right referred to in Article 117(1), each electoral committee may, from the date of receipt by the competent electoral authority of the notice of the establishment of the committee until the end of the election campaign, have its electoral programme broadcast for a fee on public and private radio and television channels.’
35 Under Article 126 of the Electoral Code: ‘Expenses incurred by electoral committees for election purposes shall be covered from their own resources.’
36 Article 130 of that code provides: ‘1. Liability for the financial obligations of the electoral committee shall be borne by the financial representative. 2. No debt may be incurred in the name and on behalf of the electoral committee without the written consent of the financial representative. 3. Where the assets available to the financial representative are not sufficient to meet the claims against the electoral committee: (1) liability for the financial commitments of the electoral committee of a political party or of an organisation shall rest with the political party or the organisation which established the committee; (2) liability for the financial commitments of the electoral committee of a coalition shall rest jointly and severally with the political parties which make up that coalition; (3) liability for the financial commitments of a voters’ electoral committee shall rest jointly and severally with the members of the committee. …’
37 Article 132 of that code is worded as follows: ‘1. The financial resources of the electoral committee of a political party may come only from that party’s election fund, constituted in accordance with the provisions of the [Law on political parties]. 2. The financial resources of an electoral committee of a coalition may come only from the election funds of the political parties which make up that coalition. 3. The financial resources of: (1) the electoral committee of an organisation, (2) a voters’ electoral committee may come only from contributions of Polish nationals who are permanently resident in the territory of the Republic of Poland, and from bank loans taken out solely for election purposes. …’
38 Article 133 of the Electoral Code provides that, during the election campaign, the electoral committee of a political party or of a coalition, a voters’ electoral committee and the electoral committee of an organisation may use, free of charge, respectively, the premises of the political party, the premises of a member of the electoral committee and the premises of that organisation, as well as the office equipment belonging to those entities.
39 Section VI of the Electoral Code, concerning elections to the European Parliament, contains, inter alia, Articles 341 and 343 of that code. Under Article 341 of that code, the electoral committee of a political party, the electoral committee of a coalition and a voters’ electoral committee are entitled to put forward candidates in those elections. In accordance with Article 343 of that code, the candidate list must be supported by the signatures of at least 10000 voters who are permanently resident in the electoral constituency concerned.
40 Section VII of the Electoral Code, concerning elections of representatives to local government, contains, inter alia, Articles 399 to 403 of that code.
41 Article 399 of the Electoral Code provides that electoral committees of political parties, of coalitions, of organisations and of voters are entitled to put forward candidates for the office of council member.
42 Pursuant to Article 400(1) of that code, the electoral committee of a political party is obliged to give notice of its establishment to the National Electoral Commission from the date of publication of the regulation on the holding of elections up until the 55th day preceding polling day.
43 Article 401(1) of that code provides that the electoral committee of a coalition may be established over the period from the date of publication of the regulation on the holding of elections up until the 55th day preceding polling day; the election representative of the electoral committee of the coalition is to notify the National Electoral Commission thereof no later than the 55th day preceding polling day.
44 In accordance with Article 402(1) of the Electoral Code, the electoral committee of an organisation is required to give notice of its establishment to the electoral commissioner for the place where that organisation has its registered office from the date of publication of the regulation on the holding of elections up until the 55th day preceding polling day.
45 Article 403 of that code provides: ‘1. A minimum of 15 nationals with the right to vote may form a voters’ electoral committee. 2. After collecting at least 1000 signatures of nationals with the right to vote who support the creation of a voters’ electoral committee, the election representative shall give notice to the National Electoral Commission of the establishment of that committee, subject to paragraph 3. Notice may be given no later than the 55th day preceding polling day. 3. If the voters’ electoral committee has been created for the purpose of putting forward candidates in a single voivodeship: (1) the number of nationals referred to in paragraph 1 shall be five; (2) the number of signatures referred to in paragraph 2 shall be 20, and the notice referred to in paragraph 2 shall be addressed to the relevant electoral commissioner having regard to the committee’s registered office.’
46 Article 23(1) of the ustawa o radiofonii i telewizji (Law on broadcasting) of 29 December 1992 (Dz. U. of 1993, No 7, item 34), in the version applicable to the present action, provides that public radio and television channels are to afford political parties the opportunity to set out their views on key matters in the field of public affairs.
47 Under Article 4(1) of the ustawa Prawo o stowarzyszeniach (Law on associations) of 7 April 1989 (Dz. U. of 1989, No 20, item 104), foreign nationals residing in Poland may join associations.
48 On 26 April 2013, following unproductive discussions within the framework of the EU Pilot scheme, the Commission sent a letter of formal notice to the Republic of Poland drawing the attention of the Polish authorities to the incompatibility with EU law, in its view, of the legislation of that Member State which reserves the rights to found a political party and to become a member of such a party to Polish nationals alone. The Republic of Poland replied to that letter on 24 July 2013, disputing any infringement of EU law.
49 On 22 April 2014, the Commission issued a reasoned opinion in which it maintained that the Republic of Poland had failed to fulfil its obligations under Article 22 TFEU by denying EU citizens who are not Polish nationals but who are permanently resident in Polish territory the rights to found a political party and to become a member of such a party. Consequently, the Commission invited the Republic of Poland to take the measures necessary to comply with that reasoned opinion within two months of its receipt.
50 In its reply of 16 June 2014, the Republic of Poland argued that Article 22 TFEU does not confer on EU citizens who are not nationals of the Member State in which they reside the rights, in the Member State of residence, to found a political party and to become a member of a political party.
51 By letter of 2 December 2020, the European Commissioner with responsibility for justice asked the Republic of Poland for information on any changes in its position or on any legislative amendments introduced in order to safeguard the rights concerned for EU citizens who are not Polish nationals residing in its territory.
52 After the Polish authorities, by letter of 26 January 2021, restated their previous view that Polish law is not incompatible with Article 22 TFEU, the Commission decided to bring the present action, confining its subject matter to a failure by that Member State to fulfil its obligations under that provision by allowing only Polish nationals to be members of a political party.
53 By decision of the President of the Court of 10 May 2022, the Czech Republic was granted leave to intervene in support of the form of order sought by the Republic of Poland.
54 In its statement in intervention, the Czech Republic contends that the Commission’s action is inadmissible because the application does not clearly set out the matters of law on which the action is based and is not formulated in such a way as to prevent the Court from ruling ultra petita. Although it bases its action on Article 22 TFEU, the Commission also claims infringement of other provisions of EU law, in particular Article 11 and Article 12(1) of the Charter and Article 20(2)(b) TFEU, which are not mentioned in the form of order sought in its application.
55 The Commission disputes the merits of that line of argument.
56 Under the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, an application to intervene is to be limited to supporting the form of order sought by one of the parties.
57 The Republic of Poland, as the defendant in support of whose form of order the Czech Republic was granted leave to intervene, has not raised any plea of inadmissibility against the Commission’s action.
58 It follows that the Czech Republic, as intervener, has no standing to raise a plea of inadmissibility (see, by analogy, judgment of 8 November 2007, Spain v Council, C‑141/05, EU:C:2007:653, paragraphs 27 and 28).
59 However, the Court may consider of its own motion whether the conditions laid down in Article 258 TFEU for an action for failure to fulfil obligations to be brought are satisfied (see, to that effect, judgments of 2 June 2016, Commission v Netherlands, C‑233/14, EU:C:2016:396, paragraph 43, and of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 50 and the case-law cited).
60 In that regard, in accordance with Article 120(c) of the Rules of Procedure of the Court of Justice and the case-law relating to that provision, an application initiating proceedings must state the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. Such a statement must be sufficiently clear and precise to enable the defendant to prepare his or her defence and the Court to rule on the application. It follows that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself and that the forms of order sought must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on one of the heads of claim (judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 188 and the case-law cited).
61 The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 189 and the case-law cited).
62 In particular, the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under EU law (judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 190 and the case-law cited).
63 In the present case, it should be noted that it is clear from the form of order sought in the application initiating proceedings that the Commission takes issue with the Republic of Poland for infringing Article 22 TFEU in so far as that Member State denies EU citizens who are not Polish nationals but who reside in its territory the right to be a member of a political party. The application contains a coherent and precise statement of the reasons which led the Commission to take the view that that denial prevents those EU citizens from exercising their right to stand as a candidate in municipal and European Parliament elections under the same conditions as Polish nationals.
64 In particular, as the Advocate General stated in point 48 of his Opinion, it is clear from the grounds of the application that, according to the Commission, Article 22 TFEU must be interpreted in the context defined, inter alia, by Article 20(2)(b) TFEU and by taking into consideration the links between Article 22 TFEU and Articles 11 and 12 of the Charter, it not being possible to infer therefrom that the Commission is seeking to demonstrate a standalone infringement of those provisions. The reference, in certain paragraphs of the application initiating proceedings, to Article 20(2)(b) TFEU and to Articles 11 and 12 of the Charter does not therefore have the effect of rendering the wording of the application ambiguous.
65 Consequently, the conditions laid down in Article 258 TFEU for an action for failure to fulfil obligations to be brought are satisfied and the Commission’s action must be regarded as admissible.
66 The Commission submits that Article 22 TFEU guarantees all EU citizens residing in a Member State of which they are not nationals the right to vote and to stand as a candidate in municipal and European Parliament elections in that Member State under the same conditions as its nationals. Consequently, the Republic of Poland has failed to fulfil its obligations under Article 22 TFEU by, pursuant to Article 2(1) of the Law on political parties, allowing only Polish nationals to be members of a political party, thereby preventing EU citizens who reside in Poland but are not nationals thereof from exercising electoral rights in municipal and European Parliament elections under the same conditions as Polish nationals.
67 According to the Commission, Article 22 TFEU enshrines a general principle of equal treatment and entails the abolition of the nationality requirement as a prerequisite for voting and standing as a candidate in those elections as well as the abolition of all measures liable to prevent EU citizens residing in a Member State of which they are not nationals from exercising their right to stand for election under the same conditions as nationals of the Member State in which they reside. Those EU citizens should thus be able to benefit from all the means available under the domestic legal system to national candidates in those elections.
68 In the first place, the Commission states that political parties have a fundamental role to play in Member States’ electoral systems, as they are an essential form of participation in political life and the most commonly used means of taking part in elections as candidates. In those circumstances, it is argued, the fact that EU citizens who reside in Poland but are not nationals thereof are unable to be members of a political party and are thus unable to enjoy the many advantages entailed by such membership, particularly in terms of public profile, human and financial resources, organisational infrastructure and media access, undermines their ability to stand for election successfully and effectively under the same conditions as Polish nationals.
69 The Commission maintains that even if such an EU citizen could be included, by way of individual agreement, on the list of candidates of the electoral committee of a political party, he or she would nevertheless be in a less favourable position than candidates for election who are members of the party in question. An EU citizen who resides in Poland but is not a national thereof would not have the same prospects of securing a high ranking on that list and would have to endorse a programme in the preparation of which he or she had not, in principle, been involved. The very fact that he or she could stand on that list only as a non-member candidate of the party fielding him or her, whereas Polish nationals could stand as members of that party, in itself shows that EU citizens who reside in Poland but are not nationals thereof cannot stand as candidates for election under the same conditions as Polish nationals.
70 In the second place, the Commission states that although it is currently for the Member States to regulate matters relating to municipal and European Parliament elections which are not harmonised at EU level, those States must exercise their powers in accordance with EU law. A national measure liable to restrict the exercise of any of the rights deriving from citizenship of the Union, such as the right to stand as a candidate in those elections, may be justified by the public interest only if that measure is compatible with the fundamental rights guaranteed by EU law, which, it is argued, is not the case here.
71 The Commission submits that an interpretation of Article 22 TFEU to the effect that the EU legislature’s intention was to abolish solely the formal requirements imposed on EU citizens residing in a Member State of which they are not nationals is not borne out by either the letter of that provision or the letter of Directives 93/109 and 94/80, and would deprive Article 22 TFEU of its effectiveness. The content and material scope of that provision cannot be reduced solely to the formal aspects regulated by those directives and the obligation to ensure equal treatment flowing from Article 22 TFEU is not called into question by the fact that that provision does not contain an exhaustive list of the conditions which must be satisfied for that purpose.
72 In the third place, according to the Commission, by adopting provisions on the ability to stand as a candidate in municipal and European Parliament elections, the Republic of Poland is implementing EU law, within the meaning of Article 51(1) of the Charter, and is therefore required to comply with the provisions of the Charter. Thus, the scope of, and the requirements laid down in Article 20(2)(b) and Article 22 TFEU should be interpreted in the light of those provisions of the Charter, in particular Article 12(1) thereof, the wording of which corresponds to that of Article 11 of the ECHR.
73 It submits that the deprivation of the right to be a member of a political party is a limitation on the fundamental right to freedom of association and cannot, under Article 52(3) of the Charter, go beyond the limitations permitted by the ECHR. The grounds set out in Article 11(2) of the ECHR which may justify a limitation on the right to freedom of association do not apply in the present case. Furthermore, the European Court of Human Rights held, in its judgment of 27 April 1995, Piermont v. France (CE:ECHR:1995:0427JUD 001577389, § 64), that Member States cannot rely on Article 16 of the ECHR in relation to nationals of other Member States asserting rights conferred on them by the Treaties.
74 The Commission maintains that the prohibition on being a member of a political party cannot be justified by the objective of preventing EU citizens residing in a Member State of which they are not nationals from participating in the political life of their State of residence and from influencing, in particular, the results of parliamentary or presidential elections which fall within the exclusive competence of the Member States.
75 First, without claiming that EU law confers on EU citizens residing in a Member State of which they are not nationals an unrestricted right to participate in the political life of that Member State, the Commission states that political rights were included in the provisions of the FEU Treaty on citizenship in order to ensure that those EU citizens can be integrated into and play an active political role in their Member State of residence as regards municipal and European Parliament elections, as is also confirmed by the tenth recital of Directive 93/109 and the fourteenth recital of Directive 94/80. Secondly, the Commission asserts that it is open to Member States to reserve the right to stand as candidates in national or, in some cases, regional elections to their own nationals, or to adopt special rules that have the effect of restricting the rights conferred on EU citizens who reside in those Member States but are not nationals thereof as members of a political party, in particular by denying them the right to take part in decisions of the party in question concerning the nomination of candidates in national parliamentary elections.
76 The Commission argues that its proposed interpretation of Article 22 TFEU does not undermine the principle of respect for national identity since, on the one hand, Article 4(2) TEU must be interpreted in accordance with the other provisions of the Treaties, including Article 22 TFEU, and, on the other, Article 22 TFEU applies only to municipal and European Parliament elections, not to national parliamentary elections.
77 In any event, the Republic of Poland has not, it is submitted, adduced any evidence to show that the possibility for EU citizens who reside in that Member State but are not nationals thereof, and who wish to stand as candidates in municipal and European Parliament elections in that Member State, to become members of a political party poses a threat to the Republic of Poland’s national identity.
78 The Republic of Poland, supported by the Czech Republic, submits, in the first place, that Article 22 TFEU is not directly applicable and requires the adoption of additional legislative acts by the Council. The detailed arrangements for the exercise of the rights set out in Article 22 TFEU are laid down in Directives 94/80 and 93/109, the recitals of which expressly refer to the main objective and the circumstances surrounding the introduction of Article 8b(1) and (2) EC, which corresponds to what is now Article 22 TFEU. It is apparent from the fourth recital of Directive 94/80 and the fifth recital of Directive 93/109 that Article 22 TFEU does not presuppose complete harmonisation of Member States’ electoral systems. The EU legislature’s intention, it is argued, was to abolish the formal requirements which prevented EU citizens residing in a Member State of which they are not nationals from exercising their right to vote and to stand for election, or which limited that right as a result of additional conditions imposed exclusively on those persons by Member States without sufficient justification.
79 In the second place, the Republic of Poland, supported by the Czech Republic, states that Polish law implements the safeguards flowing from Article 22 TFEU. In particular, Polish law does not make the possibility for EU citizens residing in a Member State of which they are not nationals to stand as a candidate in municipal and European Parliament elections conditional on them being members of a political party. Furthermore, Polish law affords EU citizens who reside in Poland but are not nationals thereof the possibility of having recourse to all the forms of candidacy available, including candidacy on a list put forward by a political party or a coalition of political parties, since inclusion on such a list is not contingent on that person’s membership of any party.
80 In the third place, the Republic of Poland, supported by the Czech Republic, submits that Article 22 TFEU does not confer on EU citizens residing in a Member State of which they are not nationals the right to become a member of political parties and to participate without limitation in political life in their Member State of residence, and it does not require Member States to allow those citizens to exercise such a right and to exert influence, through the party system, over the outcome of national parliamentary and presidential elections. Membership of a political party facilitates participation in the election of that party’s internal bodies, which decide on the direction of its actions at all levels, not only as regards municipal and European Parliament elections.
81 It is argued that the determination of the operating rules, structure and objectives of political parties active in the Member States lies, in principle, within the exclusive competence of each Member State. The Commission’s proposed interpretation of Article 22 TFEU is at variance with the purpose and scope of that provision and with the principle of conferral laid down in Article 5(2) TEU. Such an interpretation would result in the application of Treaty provisions in an area in which the Member States are competent, in breach of Article 4(1) and (2) TEU.
82 It is further argued that, since Article 22 TFEU does not grant EU citizens the right to become a member of political parties, Article 12 of the Charter does not apply. On the other hand, Polish law fully respects the right of association referred to in Article 11 of the ECHR, having regard to Article 16 thereof, which permits the imposition of restrictions on the political activity of aliens.
83 In the fourth place, the Republic of Poland, supported by the Czech Republic, asserts that the Commission has not substantiated its claim that the prohibition on EU citizens who reside in Poland but are not nationals thereof becoming a member of a political party limits their ability to exercise their right to stand as a candidate in municipal and European Parliament elections, that claim being purely hypothetical and not supported by data or hard evidence.
84 The Republic of Poland disputes the Commission’s argument that membership of a political party entails many advantages for election candidates, advantages which independent candidates are unable to enjoy. First of all, the Commission has not shown that such membership has a bearing on the image which candidates in municipal and European Parliament elections project in the minds of voters. That image instead depends on candidates’ activities and is not tied to party membership. Such membership does not therefore affect their election prospects.
85 Next, according to the Republic of Poland, the Commission also failed to take account of the mechanisms under Polish law to prevent the electoral committees of parties and of coalitions from receiving preferential treatment as compared with the electoral committees of voters and of organisations, in particular the cap on election advertising expenditure applicable to all electoral committees, the rules on the use of premises and equipment applicable to electoral committees, and the national legislation on media access, ensuring that all electoral committees are afforded such access under similar conditions. As to the remainder, the fact that political parties are guaranteed the right to express their views on key matters in the field of public affairs using public radio and television channels outside election campaign periods is due to their role in the political system of the State and falls within the competence of the State. In addition, all candidates have equal access to social media.
86 Lastly, the Republic of Poland contends that the Commission’s assertion that EU citizens residing in a Member State of which they are not nationals are less well known and that the advantages entailed by membership of a political party are therefore all the greater for them is also based on an a priori assumption not borne out by the facts. A person’s public profile depends exclusively on his or her initiatives and level of engagement and has nothing to do with his or her nationality. EU citizens who stand as candidates in municipal and European Parliament elections in Poland and who are not Polish nationals attract voters’ interest precisely because they are from another Member State and because their experience may bring something new to public life in Poland. Referring to a study report drawn up by the Centrum Badania Opinii Społecznej (Public Opinion Research Centre, Poland), the Republic of Poland claims to have demonstrated that, owing to the particularities of municipal and European Parliament elections, a candidate’s personality has a crucial impact on the image he or she projects to voters and his or her membership of a political party is, in that regard, of secondary importance.
87 The Czech Republic adds that the Commission has not demonstrated the existence of a direct link between membership of a political party and the possibility of putting forward an effective and efficient candidacy in municipal or European Parliament elections. The Czech Republic also submits that the legal basis on which the Commission relied in support of its action is incorrect. The compatibility with EU law of national legislation preventing EU citizens residing in a Member State of which they are not nationals from becoming members of a political party should be examined in the light not of Article 22 TFEU, but of the general prohibition of discrimination on grounds of nationality contained in Article 18 TFEU. Since such a citizen’s membership of a political party does not in itself confer on him or her the status of candidate in a municipal or European Parliament election, such national legislation cannot be regarded as incompatible with the general prohibition of discrimination referred to in Article 18 TFEU or with any other provision of primary law laying down a specific prohibition of discrimination.
88 By its action, the Commission asks the Court to declare that, by denying EU citizens who reside in Poland but are not nationals thereof the right to be a member of a political party, the Republic of Poland has failed to fulfil its obligations under Article 22 TFEU.
89 In order to examine the merits of that action, it is necessary to determine the scope of Article 22 TFEU before assessing whether the difference in treatment on grounds of nationality thus introduced by Polish legislation, as regards the possibility of becoming a member of a political party, is prohibited by that provision or may potentially be justified by reasons relating to respect for a Member State’s national identity.
90 It is settled case-law of the Court that the interpretation of a provision of EU law requires that account be taken not only of its wording and the objectives it pursues, but also of its context. The origins of a provision of EU law may also provide information relevant to its interpretation (judgment of 14 July 2022, Italy and Comune di Milano v Council (Seat of the European Medicines Agency), C‑59/18 and C‑182/18, EU:C:2022:567, paragraph 67 and the case-law cited).
91 In the first place, according to the wording of Article 22 TFEU, EU citizens residing in a Member State of which they are not nationals are to have the right to vote and to stand as a candidate in municipal and European Parliament elections under the same conditions as nationals of that Member State, and those rights are to be exercised subject to detailed arrangements adopted by the Council.
92 The wording of Article 22 TFEU contains no reference to the conditions for acquiring membership of a political party.
93 By contrast, it is apparent from that wording, first of all, that the right to vote and to stand as a candidate conferred on EU citizens residing in a Member State of which they are not nationals concerns municipal and European Parliament elections in that Member State.
94 It follows, next, that those EU citizens enjoy that right ‘under the same conditions’ as nationals of the Member State in which they reside. By referring to the conditions governing the right to vote and to stand for election applicable to nationals of the Member State of residence of such an EU citizen, Article 22 TFEU prohibits that Member State from making the exercise of that right by that EU citizen subject to conditions other than those applicable to its own nationals.
95 That provision thus lays down a specific rule of non-discrimination on grounds of nationality applicable to the exercise of the right to vote and to stand as a candidate in municipal and European Parliament elections (see, to that effect, judgments of 12 September 2006, Spain vUnited Kingdom, C‑145/04, EU:C:2006:543, paragraph 66; of 12 September 2006, Eman and Sevinger, C‑300/04, EU:C:2006:545, paragraph 53; and of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 42) and, consequently, applies to any national measure giving rise to a difference in treatment liable to undermine the effective exercise of those rights.
96 Furthermore, it should be noted that that rule of non-discrimination is simply a specific expression of one of the fundamental principles of EU law, namely the general principle of equality (see, by analogy, judgment of 20 February 2024, X (Lack of reasons for termination), C‑715/20, EU:C:2024:139, paragraph 43 and the case-law cited).
97 In accordance with settled case-law, the first paragraph of Article 18 TFEU is intended to apply independently only to situations governed by EU law with respect to which the FEU Treaty does not lay down specific rules on non-discrimination (judgment of 15 July 2021, The Department for Communities in Northern Ireland, C‑709/20, EU:C:2021:602, paragraph 65).
98 The Czech Republic cannot therefore validly claim in support of the Republic of Poland that the national legislation referred to in the Commission’s application falls within the scope of the first paragraph of Article 18 TFEU, and not Article 22 TFEU.
99 Finally, it is apparent from the wording of Article 22 TFEU that those rights to vote and to stand for election are to be exercised subject to detailed arrangements adopted by the Council.
100 In that regard, Directives 93/109 and 94/80, which were adopted under Article 8b EC, now Article 22 TFEU, lay down detailed arrangements for the exercise of the right to vote and to stand as a candidate in elections to the European Parliament and in municipal elections, respectively.
101 It is true that those directives - which, as is apparent from the fifth recital of Directive 93/109 and the fourth recital of Directive 94/80, do not carry out an exhaustive harmonisation of Member States’ electoral systems - do not contain provisions relating to the conditions for the acquisition, by EU citizens residing in a Member State of which they are not nationals, of membership of a political party.
102 However, the scope of those directives cannot, even implicitly, limit the scope of the rights and obligations arising under Article 22 TFEU. In that connection, it must be observed that the specific rule of non-discrimination on grounds of nationality contained in that provision is framed in general terms and, according to the very wording of Article 22 TFEU, only the exercise of the rights to vote and to stand for election laid down therein is subject to detailed arrangements adopted by the Council. While those arrangements may indeed ‘provide for derogations where warranted by problems specific to a Member State’, they cannot however, except in those particular circumstances, have the effect of generally undermining the effectiveness of those rights.
103 In that regard, although, in the absence of specific provisions relating to the conditions under which EU citizens residing in a Member State of which they are not nationals may become members of political parties in that Member State, the determination of those conditions falls within the competence of the Member States, when exercising that competence, they are required to comply with their obligations under EU law (see, by analogy, judgments of 2 March 2010, Rottmann, C‑135/08, EU:C:2010:104, paragraph 41 and the case-law cited; of 14 December 2021, Stolichna obshtina, rayon Pancharevo, C‑490/20, EU:C:2021:1008, paragraph 38; of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 63; and of 5 September 2023, Udlændinge- og Integrationsministeriet (Loss of Danish nationality), C‑689/21, EU:C:2023:626, paragraph 30 and the case-law cited).
104 Thus, while complying with the arrangements laid down in those directives, a Member State may not, outside the areas governed by those directives, make an EU citizen who resides in that Member State but is not a national thereof subject to national provisions introducing a difference in treatment in the exercise of the rights conferred on him or her by Article 22 TFEU, otherwise the effectiveness of the rule of non-discrimination on grounds of nationality enshrined in that article will be undermined (see by analogy, as regards Article 21(1) TFEU, judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 54, and of 27 June 2018, Altiner and Ravn, C‑230/17, EU:C:2018:497, paragraph 26).
105 Consequently, neither the absence, in Directives 93/109 and 94/80, of provisions relating to the conditions under which EU citizens residing in a Member State of which they are not nationals may become members of political parties in that Member State, nor the principle that competences not conferred on the European Union in the Treaties remain with the Member States, enshrined in Article 4(1) and Article 5(2) TEU, supports the conclusion that the determination of the conditions for acquiring membership of a political party falls outside the scope of Article 22 TFEU.
106 As regards, in the second place, the context of Article 22 TFEU, reference should be made both to the other provisions of the FEU Treaty and to the provisions of the same rank contained inter alia in the EU Treaty and the Charter.
107 In that connection, it must be noted, first, that Article 22 TFEU is in Part Two of the FEU Treaty, containing provisions on non-discrimination and citizenship of the Union.
108 Article 20 TFEU confers on every person holding the nationality of a Member State citizenship of the Union, which, according to settled case-law, is destined to be the fundamental status of nationals of the Member States (judgments of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31; of 18 January 2022, Wiener Landesregierung (Revocation of an assurance of naturalisation), C‑118/20, EU:C:2022:34, paragraph 38 and the case-law cited; and of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques, C‑673/20, EU:C:2022:449, paragraph 49).
109 Article 22 TFEU, read in conjunction with Article 20(2) TFEU, links the right to vote and to stand as a candidate in municipal and European Parliament elections to citizenship of the Union (see, to that effect, judgments of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques, C‑673/20, EU:C:2022:449, paragraphs 49 to 51 and the case-law cited, and of 18 April 2024, Préfet du Gers and Institut national de la statistique et des études économiques, C‑716/22, EU:C:2024:339, paragraphs 40 and 41).
110 Moreover, under Article 20(2) and Article 21 TFEU, citizenship of the Union confers on each EU citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the FEU Treaty and the measures adopted for their implementation (judgment of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques, C‑673/20, EU:C:2022:449, paragraph 50).
111 There is thus a connection between, on the one hand, the right to freedom of movement and residence and, on the other, the right of EU citizens residing in a Member State of which they are not nationals to vote and to stand as a candidate in municipal and European Parliament elections. As the Advocate General observed in points 94 and 95 of his Opinion, that connection was established when that right to vote and to stand for election was enshrined in the Treaty of Maastricht, by attaching that right to the right to move and to reside freely within the territory of the Member States.
112 Secondly, under Article 10(1) TEU, the functioning of the European Union is to be founded on representative democracy, which gives concrete expression to democracy as a value. Democracy is, under Article 2 TEU, one of the values on which the European Union is founded (see, to that effect, judgments of 19 December 2019, Puppinck and Others v Commission, C‑418/18 P, EU:C:2019:1113, paragraph 64, and of 19 December 2019, Junqueras Vies, C‑502/19, EU:C:2019:1115, paragraph 63).
113 Article 10(2) and (3) TEU confers on EU citizens the right to be directly represented in the European Parliament and to participate in the democratic life of the European Union.
114 As the Advocate General stated, in essence, in point 101 of his Opinion, Article 10 TEU underscores, as regards elections to the European Parliament, the connection between the principle of representative democracy within the European Union and the right to vote and to stand as a candidate in European Parliament elections attached to citizenship of the Union, guaranteed by Article 22(2) TFEU.
115 Thirdly, Article 12(1) of the Charter enshrines the right of everyone to freedom of association at all levels, in particular in political, trade union and civic matters.
116 That right corresponds to the right guaranteed in Article 11(1) of the ECHR and must therefore be regarded as having the same meaning and scope as the latter, in accordance with Article 52(3) of the Charter (see, to that effect, judgment of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraph 111), which does not preclude EU law from affording more extensive protection (judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings), C‑660/21, EU:C:2023:498, paragraph 41).
117 In that context, it is apparent from the case-law of the European Court of Human Rights that the right to freedom of association is one of the essential foundations of a democratic and pluralist society, in that it allows citizens to act collectively in areas of common interest and, in so doing, to contribute to the proper functioning of public life (see, to that effect, ECtHR, 17 February 2004, Gorzelik and Others v. Poland, CE:ECHR:2004:0217JUD 004415898, §§ 88, 90 and 92).
118 The fundamental role of political parties in expressing the will of EU citizens is recognised, as regards political parties at European level, in Article 10(4) TEU and Article 12(2) of the Charter.
119 Political parties, one of whose functions is to field candidates in elections (see, by analogy, ECtHR, 8 July 2008, Georgian Labour Party v. Georgia, CE:ECHR:2008:0708JUD 000910304, § 142), thus fulfil an essential function in the system of representative democracy, on which the functioning of the European Union is founded, in accordance with Article 10(1) TEU.
120 It follows that membership of a political party contributes significantly to the effective exercise of the right to stand for election, as conferred by Article 22 TFEU.
121 In the third place, with respect to the objective of Article 22 TFEU, that article seeks, first, to confer on EU citizens residing in a Member State of which they are not nationals the right to participate in the democratic electoral process of that Member State. As pointed out in paragraph 93 above, that right extends to participation in that process through the right to vote and to stand for election at European and local level.
122 Secondly, that article seeks to ensure equal treatment between EU citizens, which implies that, if EU citizens residing in a Member State of which they are not nationals are to be able to exercise effectively their right to stand for election, they must have equal access to the means available under the domestic legal system to nationals of that Member State for the purpose of exercising that right in municipal and European Parliament elections.
123 Thirdly, it follows from the connection between, on the one hand, freedom of movement and residence and, on the other, the right to vote and to stand as a candidate in those elections, referred to in paragraph 111 above, that the latter is intended, amongst other things, to promote the gradual integration of the EU citizen concerned in the society of the host Member State (judgments of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 56, and of 18 January 2022, Wiener Landesregierung (Revocation of an assurance of naturalisation), C‑118/20, EU:C:2022:34, paragraph 42).
124 As the Advocate General made clear in points 101 and 102 of his Opinion, Article 22 TFEU is thus intended to ensure that EU citizens residing in a Member State of which they are not nationals are represented, as a corollary to their integration in the society of the host Member State.
125 Consequently, it must be held that Article 22 TFEU, interpreted in the light of Articles 20 and 21 TFEU, Article 10 TEU and Article 12 of the Charter, requires that, if EU citizens residing in a Member State of which they are not nationals are to be able to exercise effectively their right to vote and to stand as a candidate in municipal and European Parliament elections in that Member State, they must be afforded equal access to the means available to nationals of that Member State for the purpose of exercising those rights effectively.
126 As is apparent from paragraph 89 of this judgment, Polish law establishes a difference in treatment on grounds of nationality as regards the possibility of becoming a member of a political party.
127 The Republic of Poland, supported by the Czech Republic, nonetheless argues, in the alternative, that that difference in treatment is not contrary to Article 22 TFEU since, first, Polish law affords EU citizens who reside in Poland but are not nationals thereof the possibility of having recourse to all the forms of election candidacy available, including candidacy on a list put forward by a political party or a coalition of political parties, with inclusion on such a list not being contingent on that person’s membership of any political party.
128 Secondly, it is argued, the Commission has not shown that the prohibition on such EU citizens becoming members of a political party limits the exercise of their right to stand as a candidate in municipal and European Parliament elections.
129 In that regard, it should be recalled that, as is apparent from settled case-law of the Court, it is for the Commission to prove its allegations that obligations have not been fulfilled and it may not rely on any presumption for that purpose (judgment of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraph 36 and the case-law cited).
130 However, the existence of a failure to fulfil obligations may be proved, where it has its origin in the adoption of a legislative or regulatory measure whose existence and application are not contested, by means of a legal analysis of the provisions of that measure (judgments of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraph 37 and the case-law cited, and of 16 November 2021, Commission v Hungary (Criminalisation of assistance to asylum seekers), C‑821/19, EU:C:2021:930, paragraph 106).
131 In the present case, the failure to fulfil obligations for which the Commission holds the Republic of Poland responsible has its origin in the adoption of a legislative measure, in particular Article 2(1) of the Law on political parties, whose existence and application are not contested by that Member State and whose provisions are the subject of a legal analysis in the application initiating proceedings.
132 It is therefore necessary to examine the merits of that analysis by determining whether the result of the difference in treatment established by Article 2(1) of the Law on political parties is that EU citizens who reside in Poland but are not nationals thereof do not enjoy equal access to the means available to nationals of that Member State for the purposes of effectively exercising their right to stand for election, in breach of Article 22 TFEU.
133 It should be noted in that regard that, under Article 84(1) of the Electoral Code, the right to nominate candidates for election is to be vested in electoral committees which, on an exclusive basis, are to conduct election campaigns for candidates. It is apparent from Article 84(2) and (4) of that code that, in elections to the European Parliament in Poland, electoral committees are established by political parties, by coalitions of political parties and by voters, and that, in elections to the representative bodies of local authorities and elections for mayors, electoral committees are also established by social organisations.
134 It is therefore possible in principle, as the Republic of Poland submits, for an independent candidate who is not a member of a political party to be nominated by an electoral committee of a political party or of a coalition of political parties.
135 However, first, the fact of not being a member of a political party pursuant to Article 2(1) of the Law on political parties in principle precludes an EU citizen who resides in Poland but is not a national thereof from participating in the decision to be taken by that party concerning his or her nomination by its electoral committee, or at the very least limits that participation. The Republic of Poland’s arguments seeking to justify the prohibition on those EU citizens becoming members of a political party by the need to prevent them from exerting an influence, in particular, on the party’s internal bodies which decide on its actions, attests precisely to the importance of being a member of a political party in order to take part in its decisions.
136 As regards potential candidates who share the political ideas of a political party, although the prohibition on becoming a member thereof does not act as an absolute bar to them being nominated by an electoral committee of a political party or of a coalition of political parties, it does at the very least make such nomination more difficult, since, in principle, it will be for the members of the political party to choose the candidates to be nominated and to decide on their ranking on the lists, which may have an impact on the candidates’ prospects of being elected.
137 That circumstance places EU citizens who reside in Poland but are not nationals thereof in a less favourable position than Polish nationals, who are members of a political party, as regards the possibility of standing as a candidate in municipal and European Parliament elections on the list of a political party.
138 Secondly, the fact that Polish nationals may choose to stand as candidates either as members of a political party or as independents, whereas EU citizens who reside in Poland but are not nationals thereof are only afforded the latter possibility, demonstrates, as the Advocate General stated in point 119 of his Opinion, that those EU citizens are unable to exercise their right to stand as a candidate in those elections under the same conditions as Polish nationals.
139 The result of the difference in treatment established by Article 2(1) of the Law on political parties is therefore that EU citizens who reside in Poland but are not nationals thereof do not enjoy equal access to the means available to nationals of that Member State for the purposes of effectively exercising their right to stand as a candidate in municipal and European Parliament elections.
140 That conclusion cannot be called into question by the Republic of Poland’s arguments that (i) membership of a political party does not affect candidates’ prospects of being elected, since those prospects are in actual fact dependent on the candidates’ activities and personality, and (ii) EU citizens who reside in that Member State but are not nationals thereof are able to stand as candidates in municipal and European Parliament elections on the lists drawn up by electoral committees other than the electoral committees of political parties.
141 First, as pointed out in paragraphs 117 to 119 above, political parties play a crucial role in the electoral system and, consequently, in the proper functioning of the European democratic system. The Republic of Poland itself acknowledges that role with regard to national elections, stating that the establishment and functioning of political parties is mainly aimed at assisting their members in gaining access to power in the Member State concerned. That observation also applies to municipal and European Parliament elections.
142 Therefore, although the effect on voters of election candidates’ personality and activities cannot be underestimated, their membership of a political party that, by its very nature, seeks to secure for its candidates a favourable result in elections and whose organisational apparatus and human, administrative and financial resources are dedicated to the pursuit of that objective, is likely to enhance their chances of election. Furthermore, the study reports submitted by the Republic of Poland attest to the fact that membership of a political party is one of the factors steering voters in their choice.
143 Secondly, as regards the possibility for EU citizens who reside in Poland but are not nationals thereof to stand as candidates in those elections other than on a list put forward by the electoral committee of a political party, namely by being nominated by an electoral committee of voters or of an organisation, in elections to the representative bodies of local authorities and elections for mayors, it should be observed that encouraging those EU citizens to use routes other than that of inclusion on a list put forward by a political party is likely to lead to polarisation between lists of national and non-national candidates, to the fragmentation of political discourse and to the marginalisation of those candidates, which would run counter to the objective of integration pursued by Article 22 TFEU.
144 Thirdly, as for the Republic of Poland’s argument that Polish law provides for mechanisms designed to prevent the electoral committees of political parties and of coalitions of political parties from benefiting from more favourable conditions than other types of electoral committee, it should be noted, first of all, that, under Article 126 of the Electoral Code, expenses incurred by electoral committees for election purposes are to be covered from their own resources.
145 In that regard, Article 132(1) of the Electoral Code provides that the financial resources of the electoral committee of a political party may come only from that party’s election fund, constituted in accordance with the provisions of the Law on political parties. Under Articles 24 and 28 of that law, the resources of a political party are made up of membership fees, income from donations, legacies and bequests, property income, grants and subsidies provided for by law, income from, inter alia, bank interest, bond trading and the transfer of certain assets, and, if that party has received a given number of votes in elections to the Lower Chamber of the Polish Parliament, a grant for the duration of the legislative term. In accordance with Article 36(1) of the Law on political parties, a political party’s election fund may originate from the political party’s own contributions, as well as donations, legacies and bequests.
146 By contrast, the sources of funding of an electoral committee of voters or of organisations are limited, pursuant to Article 132(3) of the Electoral Code, to contributions paid by Polish citizens who are permanently resident in Poland and to bank loans taken out solely for election purposes.
147 Consequently, even though the applicable national provisions impose expenditure caps which all electoral committees must observe, the fact remains that political parties have a wider range of sources of funding, sources which are therefore, in principle, more substantial in nature, in order to finance their election campaigns.
148 Next, Article 133 of the Electoral Code provides that, during the election campaign, the electoral committee of a political party or of a coalition, a voters’ electoral committee and the electoral committee of an organisation may use, free of charge, respectively, the premises of the political party, the premises of a member of the electoral committee and the premises of that organisation, as well as the office equipment belonging to those entities. The fact that political parties have numerous sources of funding, as is clear from paragraph 145 above, in particular for the purposes of acquiring or renting premises and office equipment, has as its corollary that, compared with the other types of electoral committee, electoral committees of political parties generally have greater capacity in terms of premises and office equipment to promote their electoral campaigns.
149 Finally, for the same reasons, committees of political parties or of coalitions of political parties generally have greater means to devote to political communication expenses other than those mentioned in Article 117(1) of the Electoral Code, concerning the broadcast, free of charge, of electoral programmes on public radio and television channels at the broadcasters’ expense, and in particular to advertising on social networks.
150 In the light of the foregoing, it must be held that the result of the difference in treatment established by Article 2(1) of the Law on political parties is that EU citizens who reside in Poland but are not nationals thereof do not enjoy equal access to the means available to nationals of that Member State for the purposes of effectively exercising their right to stand as a candidate in municipal and European Parliament elections; this therefore constitutes a difference in treatment of the kind prohibited, in principle, by Article 22 TFEU.
151 It remains necessary to examine the Republic of Poland’s arguments that an interpretation of Article 22 TFEU according to which, in order to ensure observance of the principle of non-discrimination enshrined in that article in the exercise of the right to vote and to stand as a candidate in municipal and European Parliament elections, the Member States must allow EU citizens residing in a Member State of which they are not nationals to become members of a political party in that Member State, is contrary to Article 4(2) TEU, which provides that the European Union is to respect the national identities of the Member States, inherent in their fundamental structures, political and constitutional.
152 The Republic of Poland submits that a Member State cannot be required to allow such EU citizens to participate on a permanent and unrestricted basis in the political life of their Member State of residence and to exert influence, through the system of political parties, over the outcome of national parliamentary and presidential elections, which would be the case if such citizens were entitled to become a member of a political party.
153 In that regard, it must be observed, first, that the organisation of national political life, to which political parties contribute, is part of national identity, within the meaning of Article 4(2) TEU.
154 However, secondly, since the right to vote and to stand for election conferred on EU citizens residing in a State of which they are not nationals by Article 22 TFEU concerns municipal and European Parliament elections in that Member State, that provision neither requires the Member State concerned to grant those citizens the right to vote and to stand as a candidate in national elections, nor prohibits it from adopting specific rules on decision-making within a political party regarding the nomination of candidates in national elections, rules which would preclude members of the party who are not nationals of that State from taking part in such decision-making.
155 Thirdly, Article 4(2) TEU must be read in the light of provisions of the same rank, in particular Articles 2 and 10 TEU, and cannot exempt Member States from the obligation to comply with the requirements arising from those provisions (see, to that effect, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 72).
156 In that regard, it must be borne in mind that the principle of democracy and the principle of equal treatment are values on which the European Union is founded, in accordance with Article 2 TEU (see, to that effect, judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 94).
157 Article 2 TEU is not merely a statement of policy guidelines or intentions, but contains values which are an integral part of the very identity of the European Union as a common legal order, values which are given concrete expression in principles containing legally binding obligations for the Member States (judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 232, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 264).
158 Furthermore, as is clear from paragraph 112 above, Article 10(1) TEU provides that the functioning of the European Union is to be founded on the principle of representative democracy, which gives concrete form to the value of democracy referred to in Article 2 TEU (judgment of 19 December 2019, Junqueras Vies, C‑502/19, EU:C:2019:1115, paragraph 63 and the case-law cited).
159 By guaranteeing EU citizens residing in a Member State of which they are not nationals the right to vote and to stand as a candidate in municipal and European Parliament elections in that Member State, under the same conditions as nationals thereof, Article 22 TFEU gives concrete expression to the principles of democracy and, as pointed out in paragraph 96 above, of equal treatment of EU citizens, principles which are an integral part of the identity and common values of the European Union, to which the Member States adhere and whose observance they must ensure in their territories.
160 Consequently, allowing such EU citizens to become members of a political party in their Member State of residence so as to implement in full the principles of democracy and equal treatment cannot be regarded as undermining the national identity of that Member State.
161 In the light of all the foregoing considerations, it must be held that, by denying EU citizens who are not Polish nationals but who reside in Poland the right to be a member of a political party, the Republic of Poland has failed to fulfil its obligations under Article 22 TFEU.
162 Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Republic of Poland has been unsuccessful in the present action, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
163 Under Article 140(1) of those rules, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Czech Republic is to bear its own costs.