Koffer

22.5.2014 | Von:
Kees Groenendijk

Voting Rights for Nationals of Non-EU States

The EU citizenship which was introduced in 1992 in the Treaty of Maastricht grants all nationals residing in another Member State local voting rights in that state. So far, only 15 of 28 EU Member States have granted such rights to non-EU nationals as well.

Gemäß dem Prinzip "No taxation without representation" protestieren ausländische "Gastarbeiter" vor einem Wahllokal in Berlin (West) für ein Wahlrecht bei den Wahlen zum Abgeordnetenhaus (1979).Referring to the principle "no taxation without representation" foreign workers demonstrate in front of a polling station in Berlin (West) for local voting rights. (© picture alliance / Elke Bruhn-Hoffmann)

Limited Impact of the EU

The European Union has the power to make rules on voting rights for EU nationals and on migration, residence, and asylum of third-country nationals in Member States. However, the EU has no legal authority to make binding rules on the voting rights of third-country nationals residing in the Member States. EU bodies may discuss the way certain political rights are structured in Member States' national laws. Such discussions could result in recommendations, not in binding EU rules. EU institutions could promote legislation introducing or extending such rights to third-country nationals. Thus, the European Union can encourage but not legally oblige Member States to amend their national laws regarding voting rights of third-country nationals.

In 2003, the Council of Ministers adopted a directive on the status of long-term resident nationals from countries outside the EU, 'third-country nationals' in the legal jargon.[1] This directive codifies the denizen status — a status in which long-term resident non-nationals have some but not all the rights granted to citizens — in EC law. The directive grants a secure residence right, equal treatment, and under certain conditions mobility within the European Union to third-country nationals after five years of lawful residence in a Member State. It enumerates a long catalogue of matters where long-term residents shall enjoy equal treatment with nationals, but does not deal with voting rights. This illustrates that the EU Treaties do not provide a legal basis for obliging Member States to grant voting rights or other political rights to resident third-country nationals.

Granting Voting Rights to EU Nationals and Its Impact on Voting Rights for Non-EU Nationals

The granting of municipal voting rights to resident nationals of other Member States as a fundamental right and an expression of the principle of equal treatment may have a wider impact. In several Member States (e.g. Belgium, Luxembourg, Netherlands and Slovenia) the prospect of or the actual obligation to grant voting rights to nationals of other Member States paved the way for extension of municipal voting rights to residents of non-EU countries. A similar development occurred in the Nordic countries already during the 1970s and 1980s: voting rights were first granted to nationals of other Nordic countries and later on to all non-nationals with several years of residence in the country.

The 1992 Treaty of Maastricht obliged several Member States, e.g. Austria, Belgium, Germany and France, to amend their constitution to allow for nationals of other Member States to vote in municipal elections.[2] Those countries at that time had to make a political choice: restrict the amendment to EU nationals or use the occasion to open in their constitution the possibility to extend local voting rights to immigrants from third countries as well. Austria, Germany, France and, before accession, Poland choose the first restrictive option. In Germany, the debate continued during most of the 1980s but came to halt in 1990 when the Constitutional Court declared the local voting-rights legislation of certain Länder unconstitutional. The court argued that the constitutional clause granting voting rights to the German people had to be interpreted as covering only persons with German nationality.[3] In Austria the Constitutional Court handed down a similar judgment in 2004.[4]

Belgium chose for the other option: after a long political battle, the required constitutional amendment entered into force only in 1999, but it opened the possibility to grant the voting right to non-EU nationals as well.[5] In Denmark, Finland, Ireland, the Netherlands, Spain, Sweden and the UK the constitutional law did already allow for the participation of non-nationals in municipal elections. Spain, primarily with a view to reinforce the position of Spanish emigrants abroad, introduced in its 1978 constitution the possibility to grant voting rights to non-citizens on the basis of a treaty and on the condition of reciprocity, i.e. only if Spanish citizens resident in the other country are entitled to vote in municipal elections in that country. The municipal voting right was granted to nationals of other Member States on the basis of this pre-existing constitutional provision. A provision that applies to non-EU nationals as well. The Netherlands followed the example of the Nordic states by introducing a provision during the constitutional revision of 1983 in view of the discussions on extension of voting rights to nationals of other EEC countries but the revision covered all non-national residents.

In the EU Directive 94/80 adopted in 1994 an exception was made for Luxembourg because almost one third of the population of voting age were nationals of other EU states. Luxembourg first introduced long residence requirements (six years for the right to vote and twelve years for the right to be elected) as a barrier for participation. But after the first municipal elections where nationals of other Member States could vote in 1999, it reduced the residence requirement to five years both for the right to vote and to stand for election. Fears for “polarization between lists of national and non-national candidates”, used as justification for the exception in 1994, apparently, were overcome. Moreover, Luxembourg in 2003 granted voting rights to nationals of non-EU countries with five years of residence in Luxembourg.

Which EU Member States Grant Voting Rights to Third-Country Nationals?

A majority of 15 of the 28 EU Member States allow some categories of resident third-country nationals to participate in local elections. These states are Belgium, Denmark, Estonia, Finland, Hungary, Ireland, Lithuania, Luxembourg, the Netherlands, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. Four of these states do not allow third-country nationals to stand as candidates in municipal elections: Estonia, Hungary, Lithuania and Slovenia. Six EU Member States extend voting rights to certain categories of non-nationals (EU nationals and third-country nationals) to elections for regional representative bodies as well: Denmark, Hungary, Portugal, Slovakia, Sweden and the United Kingdom. The 13 EU Member States that exclude third-country nationals from voting in local elections are Austria, Bulgaria, Croatia, Cyprus, the Czech Republic, France, Germany, Greece, Italy, Latvia, Malta, Poland and Romania.

 
Table 1: Municipal Voting Rights for Third Country Nationals (TCNs) in the EU Member States
 
EU Member StateMunicipal Voting Rights for (some) TCNsRight of TCNs to stand as candidates in municipal elections
AustriaNONO
BelgiumYESYES
BulgariaNONO
CroatiaNONO
CyprusNONO
Czech RepublicNONO
DenmarkYESYES
EstoniaNOYES
FinlandYESYES
FranceNONO
GermanyNONO
GreeceNONO
HungaryNOYES
IrelandYESYES
ItalyNONO
LativaNONO
LithuaniaNOYES
LuxembourgYESYES
MaltaNONO
NetherlandsYESYES
PolandNONO
PortugalYESYES
RomaniaNONO
SlovakiaYESYES
SloveniaNOYES
SpainYESYES
SwedenYESYES
United KingdomYESYES
Source: Author’s own compilation.

Conditions for Voting

Member States that have granted voting rights to third-country nationals use four kinds of conditions to restrict that right: duration of residence, registration or application, a specific residence status or reciprocity. Some states apply several of these conditions. For example, Belgium requires five years of residence and registration. Portugal requires residency, reciprocity and registration.

The duration of residence required before a third-country national is entitled to vote varies between three years in Denmark, Estonia, Portugal, and Sweden, four years in Finland and five years in Belgium, Luxembourg, and the Netherlands. In Ireland and the United Kingdom the general residence requirement applies for nationals and non-nationals.

Five states, Estonia, Hungary, Lithuania, Slovakia, and Slovenia grant voting rights only to third-country nationals who have a permanent residence permit or long-term residence status. This condition may severely limit the number of third-country nationals who can vote, because the required status is granted infrequently or only to specific categories of immigrants (e.g. co-ethnics) and, generally, only after five or more years of lawful residence.

Several Member States require non-national voters to register with the local authorities. In Ireland, the Netherlands, the Nordic states and the United Kingdom, a simple registration, comparable to the registration nationals are required to perform when moving to a new address, is sufficient. The registration process itself can become a major obstacle for non-nationals who want to exercise their voting rights. Belgium requires non-citizens to file an application for registration and to sign a declaration pledging respect to the Belgian Constitution and legislation.

The Czech Republic, Malta, Portugal, and Spain apply the reciprocity condition. In practice, this condition results in far-reaching restriction or de-facto non-existence of voting rights. The Czech Republic and Malta have a reciprocity condition in their constitution. Since no agreements with third countries have been concluded third-country nationals do not have voting rights in those two Member States. Portugal has concluded bilateral agreements on reciprocal voting rights with more than ten countries outside the European Union. Spain has concluded bilateral agreements with several countries in South America and with Norway. In Spain, a special ambassador was appointed with the task to negotiate similar agreements with other countries outside the EU.[6] This approach not only requires quite some diplomatic activity, but the right to vote of residents will depend on the willingness of governments in the country of origin to conclude an agreement. Undemocratic countries may not be inclined to conclude such agreements. The result is that only resident immigrants from certain third-countries will have the right to vote and others (often the majority) will be excluded and probably perceive that exclusion as unjustified.

Arguments For and Against Extending Voting Rights to Non-National Residents

Granting voting rights to non-national residents is a highly visible commitment to the public inclusion and equal treatment of immigrants. Within states, however, opinions vary on how much immigrant inclusion is desirable and which values are essential to the state’s identity. The main arguments used in favor of extending voting rights to resident non-nationals are:
  • "No taxation without representation." All members of the community who regularly pay taxes need to be represented in government bodies that decide how public funds are spent and on rules binding all residents.
  • Equal treatment of residents of the country. The longer non-nationals are living in a community, the more difficult it is to justify their exclusion from the public decision-making process.
  • Granting voting rights stimulates the political participation of immigrants and thus their integration in the host society.
  • Immigrants are permanent members of society. Providing voting rights sends an important symbolic message to the majority of the population that long-term resident immigrants are staying and that they are perceived as (future) co-citizens.
  • Pathway to citizenship. The right to vote in local elections encourages non-nationals to naturalize so that they can also vote in national elections and access public-service jobs.
The main arguments opponents give for not allowing non-nationals to vote are:
  • Voting rights should be an earned privilege. Voting rights are per definition linked to nationality; only full citizens should participate in political decision making.
  • Prevent foreign influence. Governments of the countries of origin may try to influence the political process through their nationals.
  • Prevent ethnic parties. If certain immigrant groups establish their own political parties this may weaken existing parties.
  • Immigrants should not be allowed to disturb existing power relations. Allowing non-nationals to vote could upset the current balance of power since some parties will benefit more from the immigrant vote than others.
  • The domino effect. Once local voting rights are granted, the argument for withholding voting rights in national elections becomes weaker. Some argue that national voting rights could create conflicting loyalties.
  • Granting voting rights diminishes immigrants’ interest in naturalizing. Naturalization should be encouraged rather than granting voting rights.
Some of these counter arguments have a long history. In the past, they were used to keep workers, women, and young citizens from voting.

How someone defines a community or a state will often influence how that person views voting rights for non-nationals. Proponents tend to have a liberal view and an open image of the state and the nation. Opponents tend to have a communitarian perspective on the state: only the present members ("citizens") should decide who belongs to the community. This perspective corresponds to a more closed, defensive or even ethnically homogenous image of the nation-state.

In the introduction we observed that ideas about the desirability of political participation of non-citizens in Europe changed over time. Ideological arguments for and against local voting rights can only be tested in debate. Empirical arguments about the effects of extending voting grants will be discussed in the last part of this paper.

When Were Municipal Voting Rights Granted?

In the UK the voting rights are related to the establishment of the Commonwealth that predates the Second World War. In Ireland the municipal voting right was granted to non-national residents in 1963. Among the five states of the Nordic Union (Denmark, Finland, Iceland, Norway, and Sweden) a regional consensus on this issue developed during the 1970s and 1980s. After some years, granting voting rights only to Nordic citizens led to voting rights for all non-nationals. The Nordic experience also shows that harmonizing voting rights does not require states to adopt binding international laws. Informal consensus can work. This development predates the granting of voting rights to EU nationals living in other Member States that occurred in the 1990s. The relevant provision in the Spanish constitution was introduced in 1978. The Netherlands granted voting rights to non-national residents in 1985 after room for this extension had been created in the 1983 general revision of the constitution, prior to the ratification of the Maastricht Treaty. Lithuania, Slovenia and Slovakia granted voting rights to non-EU residents in 2002 and therefore did so before their accession to the EU, Luxemburg in 2003 and Belgium in 2004.

This text is part of the policy brief “Voting rights and political participation of non-national immigrants”.

Fußnoten

1.
Council Directive of 25 November 2003 concerning the status of third-country nationals who are long-term residents, EC Official Journal 2004 L 16, pp. 44-53.
2.
Art. 8 of the Belgian Constitution, Art. 28(1) of the German Constitution, Art. 3 of the French Constitution and Conseil Constitutionel 9 April 1992, Decision No. 92-308 par. 21-37.
3.
Judgment of 13 October 1990, BVerfGE 83, 37.
4.
Verfassungsgerichtshof 30 June 2004, C 218/03.
5.
Act of 18 December 1998 adopted after the judgment of the CJEU of 9 July 1998 in case C-323/97, Commission/Belgium [1998] ECR I-4281; see Jacobs (1999).
6.
Migration News Sheet (September 2008), p. 27.
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