The EEC Treaty, signed in 1957, did not provide for political rights for nationals of Member States. On the contrary, the Treaty provided that the rules on the free movement of workers in the EEC Treaty "shall not apply to employment in the public Service". Workers from other Member States were granted equal treatment as regards trade union rights for membership and the right to vote in trade union elections only in 1968. They were entitled to be elected as member of workers' councils, but could be excluded from post in public law bodies representing workers. The right to be elected as a trade union official was added in 1976. The right to be elected in public law bodies representing workers was acquired only 15 years later.
In 1975 the EEC Court of Justice in one of its first judgments on the free movement of workers decided that the French authorities could not restrict the residence right of an Italian worker just because he had been politically active during the parliamentary elections and had taken part in a demonstration in 1968. Political activities of foreigners were considered as negative if not dangerous at that time.
After 1980, the remit of the exclusion of nationals of other Member States in the public service was considerably reduced due to persistent action of the Commission and a gradual development of the case-law of the Court, eventually restricting the exclusion of nationals of other EU Member States solely to posts involving the direct or indirect participation in the exercise of public law powers and duties designed to safeguard the general interest of the State and other public authorities, demanding a special relationship of allegiance to the State.
Municipal Voting Rights
In the mid-1970s, several European institutions began considering granting local voting rights to nationals of other Member States who made use of their free movement rights and were resident in another Member State. The two main ideas driving these discussions were the wish to introduce a European citizenship and Italy's desire to reinforce the position of its nationals working and living in other Member States. The first report on European citizenship of the European Parliament was written in 1977 by an Italian member. It was only in 1992, however, when the Member States agreed to create the EU citizenship granting all nationals of the Member States the additional status of citizen of the Union in the Maastricht Treaty. That treaty also granted Union citizens living in another Member State the right to vote and stand for election on the local level under the same conditions as the nationals of the country of residence.
Detailed arrangements for the exercise of these voting rights are laid down in the EC Directive 94/80 adopted in 1994. The directive provides that Member States apply to nationals of other Member States the same residence requirements for voting and standing for municipal elections that apply for nationals of their own state.
The Lisbon Treaty that entered into force in 2009 confirmed the voting rights in Article 20 of the Treaty on the Functioning of the European Union in the catalogue of rights of EU citizens. Article 20(2) provides that citizens of the Union shall enjoy “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.” An almost identical guarantee is provided in Article 40 of the EU Charter of Fundamental Rights.
Equal voting rights implies full equality not only on the day of the election but also in the preparation of the lists of candidates by the parties and other political activities relating to the elections such as the right to be member of or found a political party. The German rule in the Law on Political Parties that non-citizens may not constitute the majority of the membership of a political party or its board is hardly compatible with the principle of equal treatment of Union citizens of other Member States. In April 2014 the European Commission started formal infringement procedures against the Czech Republic, Latvia and Poland because these Member States restrict the right of nationals of other Member States to become member of a political party or to found a political party.
Do EU Nationals Actually Use Their Right to Vote?
Few hard data are available on the actual use of voting rights by EU nationals living in another EU member state. Elections are secret. The nationality of those who actually vote is not registered. Exit polls, the level of registration on the electoral rolls and the number of non-nationals elected as councilors may provide an indication. Reports commissioned by the European Commission on the exercise of local voting rights by EU nationals in the late 1990s and early 2000s came to the conclusion that little use was made of the voting rights in municipal elections in other Member States. Commentators such as UK law professors, among others, blamed the potential voters who, supposedly, had a limited political horizon or saw their primary interest with their state of origin. Little attention was paid to the possibility that administrative barriers in Member States requiring individual application for registration as a voter may be a major cause of low participation in those Member States. According to the European Commission at the end of 2010 there were eight million Union citizens of voting age living in another Member State. In 14 Member States registration on the electoral rolls is automatic with the registration of the residence in the municipality. In Spain, where a separate registration on the electoral rolls is still required, more than 50 percent of the non-national EU residents applied for registration on the electoral rolls after the authorities had sent them a personal letter on this issue. A considerable part of EU migrants appeared to be interested in their voting rights, once the information and administrative barriers had been overcome. In some Member States that still require individual application for registration, such as Cyprus, Greece, Italy and Portugal the proportion of registered non-national EU citizens is only ten percent or less. In Belgium their share was somewhat higher 18 percent in 2012. In the same year the European Commission reported that in France one third of the nationals of other EU states who stood for election were elected and one in five in Sweden. In Austria, Luxembourg and Spain a significant number of non-national EU citizens were elected as member of a municipal council.
This text is part of the policy brief "Interner Link: Voting rights and political participation of non-national immigrants".