By Stephen Coutts
Citizenship is typically conceived of as membership in a political community, carrying with it certain rights and obligations, and especially the right to participate in the government of that community. Union citizenship has until recently been deficient in that regard. Despite the existence of a democratically elected assembly since 1979 in the form of the European Parliament, the links between this parliament and the status of Union citizenship have been ambiguous with the parliament representing not a single group of Union citizens but rather the ‘peoples’ of Europe, those peoples being defined by Member States and national law.
The Treaty of Lisbon changes that paradigm, stating boldly that the European Parliament represents no longer the peoples of Europe but rather the ‘citizens of the Union’. The link between Union citizenship and the European Parliament being made apparent, it was perhaps only a matter of time before the Court drew the conclusion that the rights of Union citizenship contained a stand-alone right to vote in European Parliamentary elections. That decision has just occurred in the judgment in Delvigne.
Facts of the Case
In Delvigne, a French national contested domestic provisions automatically and permanently stripping him of electoral rights, including the right to vote and stand for elections to the European Parliament, following his conviction for murder and the imposition of a custodial sentence of 12 years. Unable to benefit from subsequent changes to the law that would have limited the length of the ban, he contested a decision removing him from the electoral roll on the basis of two provisions of the Charter of Fundamental Rights (CFR) – Article 49 on the application of a more lenient sentence in criminal matters and Article 39 on the right to vote in European Parliament elections.
Opinion of the Advocate General
Advocate General Cruz-Villalón, found that the offence of murder and hence the question of the application of a more lenient sentence was a matter of national law. The first question therefore fell outside the scope of Union law and the Charter was not applicable. The second question, by contrast, dealt with the election to the European Parliament, following changes in the Treaty of Lisbon. Here the AG found that the Union did have sufficient ‘interest’ in the matter following from an as yet unexercised competence contained in Article 223(2) TFEU to adopt a uniform election procedure or common principles. Applying the ‘right’ contained in Article 39 CFR to the case at hand he found that the restriction imposed by France was proportionate and respected the essence of the right, being linked to the severity of the crime and allowing the possibility of review.
Judgment of the Court of Justice
The Grand Chamber of the Court likewise found that the Charter applied but that the French law was nonetheless a permissible limitation on the rights contained in the Charter. For the Court, the matter as a whole fell within Union law following not from the existence of an interest or unexercised competence but rather from the obligation contained in Article 14(3) TEU and the 1976 Act on the elections to the European Parliament that such elections be ‘universal and direct’. The matter thus fell within the scope of Union law and hence the Charter rights were applicable. Article 39 CFR, in combination with the aforementioned requirement contained in Article 14(3) TEU did in fact contain a specific right to vote in European Parliament elections that was conferred on Union citizens. That right could be limited but the French law appeared to be proportionate and did not affect the essence of the right itself. The argument based on Article 49 CFR on the application of a more lenient sentence was dismissed on the basis that change in law occurred after the ‘sentence’ was imposed definitively.
Delvigne is an important judgment from the point of view of constitutional law, the political nature of Union citizenship and the role played by the Court of Justice in reviewing increasingly large areas of national law. In particular, it contains important statements regarding the political rights of Union citizens. On the other hand, in a perhaps classic move, once the power to review national measures is asserted, the Court adopts a relatively hands-off approach, finding with a minimum degree of inspection that the national measures do in fact pass muster.
Firstly, Delvigne makes important findings with respect to the application of the Charter of Fundamental Rights, specifically extending its scope to encompass electoral law. In theory this applies only to the organisation of EP elections, however, to the extent that Member States apply the same electoral code to EP elections and national elections, potentially at least a whole range of national measures restricting voting rights could be subject to judicial review under Union law and especially a requirement of proportionality. The manner in which electoral law is brought within the scope of Union law is also noteworthy. It is not through the invocation of a substantive electoral right contained in the Treaties that Member States are restricting that the issue falls within Union law – rather it is an implicit obligation contained in Article 14(3) TEU as reflected in the 1976 Act that elections be universal and direct; it is a general obligation placed on Member States to ensure the democratic integrity of EP elections that catches electoral law and subjects it to review under the Charter.
Despite not relying on an individual right to find that the electoral law falls within the scope of Union law, the Court does find for the first time that Union citizens do enjoy a specific and autonomous right to vote in European Parliamentary elections contained in Article 39 CFR. Note that due to the nature of fundamental rights protection in the Union, it could not rely on this provision and the right it contains to find that the matter fell within the scope of Union law, hence the reference to Article 14(3) TEU to assert jurisdiction. Fundamental rights are ‘second order norms’ in the EU legal order and only apply if another ‘first order norm’ of substantive Union law applies.  Thus traditionally, national law will only be subject to a fundamental rights review based on Union law if they are acting ‘within the scope of Union law’, typically either implementing or derogating from EU law. EU Fundamental Rights themselves cannot form the basis of a review in the absence of some other element of Union law.
However, such a right does in fact exist. This is distinct from the right contained in Article 20(2)(b) to vote in EP and local elections in another Member State. That right is simply a classic transnational right of non-discrimination, ensuring equal treatment of Union citizens in other Member States. It does not in and of itself found a right stricto senso to vote in EP elections, held by Union citizens and independent of movement. In Delvigne the Court does in fact recognise such a right for the first time. Union citizenship becomes a truly political and supranational status, involving a direct right to participate in the democratic life of the Union itself. It is true that the precise manner of its exercise and the procedures for elections are still matters of national law and how national electoral codes are now to be reconciled with this remains to be seen, but it is nonetheless an important moment in the development of Union citizenship as a political status.
The final point to be made concerning Delvigne is with the underlying issue of substance and the propriety of depriving individuals of electoral rights as a consequence of criminal activity. Perhaps motivated by the political sensitivity of the matter in certain Member States, once the Court has found jurisdiction to review the French measures, it applies a relatively light-touch review, refraining from a too-intrusive inspection of national electoral law. Firstly, and most glaringly there is no direct engagement with the recent and well-known jurisprudence of the ECtHR on the matter especially in Hirst, finding that an automatic and absolute ban on voting for prisoners breaches Article 3 of Protocol 1 of the ECHR. It is arguable that the reasoning of the Court of Justice, relying on the non-blanket nature of the ban does implicitly take into account the points made by the ECHR in Hirst. Nonetheless, an explicit engagement with ECHR caselaw as required by Article 52(3) of the Charter would be welcome.
Furthermore, while the Court does, to a limited extent, engage with the proportionality of the measure, it fails utterly to engage with the underlying substantive debate: is it justifiable to deny prisoners or convicted individuals electoral rights and, if so, on what basis? It seems Union law has nothing to say on the matter, beyond leaving a significant – and perhaps understandable – degree of discretion to Member States. Nor is there any exploration of the nature of this ban; is it punitive as it would appear the French believe it to be or is it in a slightly different vein, a means to protect the integrity of the electoral process by excluding certain inappropriate and untrustworthy individuals as suggested by the German submissions? If so how is this reconcilable with the increasingly important goal of rehabilitation in criminal justice systems? Despite the requirement in Art 52(1) CFR that any restrictions pursue an objective of general interest ‘recognised by the Union’, there is a complete absence on the part of the Court to actually identify such an interest. It would appear that at least in the view of the Court (and indeed the AG) is it taken simply as self-evident that there is a potential public interest in denying electoral rights as a consequence of criminal activity. The Court fails utterly to engage in the criminal justice issues underlying prisoner voting bans. Perhaps from a political perspective this is understandable; having found jurisdiction to review such a sensitive area of national competence, the Court does not wish to apply too intrusive a standard. Nonetheless part of that review does involve identifying an objective public interest ‘recognised by Union law’, identifying such an interest would not only appear to be an essential part of the test outlined in the Charter but would have been welcome in articulating the approach adopted by Union law towards the interaction of criminal activity and the exercise of the rights of Union citizenship, including the newly found political rights.
 See especially Joined Cases C-300/04 Eman and Sevinger v College van Burgemeester en Wethouders van Den Haag EU:C:2006:545,  ECR I-8055 and Case C-145/04 Spain v UK EU:C:2006:543,  ECR I-7902 and the analysis by Jo Shaw, ‘The Political Representation of Europe’s Citizens: Developments’ (2008) 4 EuConst 162.
 See ex Article 10(2) TEU.
 See ibid.
 Reflected in Article 51(1) CFR stating that the Chater shall only apply to Member State action when they are ‘implementing Union law’. For the purposes of Article 51(1) CFR ‘implementing Union law’ is to be understood as acting ‘within the scope of Union law’ see Case C-617/10 Åklagaren v Hans Åkerberg Fransson EU:C:2013:280.
 Leaving aside the more recent rights of a more direct nature contained in the Citizens’ Initiative. See Regulation 211/2011/EU on the citizens’ initiative  OJ L65/1.
 Hirst v United Kingdom (2006) 42 EHRR 41 (n X). Contrast with the Opinion of the AG at paras 117 ff.
 Contrast the discussion of the nature of criminal wrong-doing in its emphatic denial of residence rights to convicted criminals in Case C-378/12 Nnamdi Onuekwere v Secretary of State for the Home Department EU:C:2014:13.