By Oliver Garner
Part II of the UK-EU Withdrawal Agreement provides extensive protection of the rights in the United Kingdom and the EU-27 that EU citizens currently derive from Article 21 TFEU. However, the Agreement is silent on the preservation of the rights to vote and stand as candidates in municipal and European Parliament elections that EU citizens derive from Article 22 TFEU. This ossifies a conception of EU citizenship as a status of passive ‘juridical objectity’ to the detriment of a conception of the status as one of political self-determination. This means that following the United Kingdom’s withdrawal from the European Union the voting rights of EU citizens within the United Kingdom and UK citizens within the EU-27 will revert to the discretion of the national legal orders. Therefore, I will argue in this piece that it would be more normatively desirable for the European Union’s legislature to adopt measures in order to preserve these electoral rights for UK citizens. The first section below will detail the arguments for why this would be acceptable, before the second section considers the legal methods by which this could be implemented.
Enabling UK nationals in the EU-27 to continue to exercise active and passive electoral rights in municipal and European Parliament elections would recognise the ‘genuine link’ that these individuals have built towards not only the Member States in which they are resident, but also the process of European integration itself by which they have been granted these rights. The (in)famous dicta in Rudy-Grzelczyk that EU citizenship is destined to be the fundamental status for nationals of the Member State may have overstated the material significance of European integration in which still a tiny minority of individuals exercise their free movement and residence rights. However, what the statement does recognise is that for millions of individuals the emotional resonance of being granted a ‘citizenship’ of Europe has fostered a sense of identity and belonging with the European project. The right to vote particularly in European Parliament elections provides the material means to manifest this sense of belonging into self-determination beyond the boundaries of the state of their nationality. This is the position which is under threat for UK nationals who have integrated their personal, professional, and social lives within another Member State of the European Union.
There is precedent for the continuing enfranchisement of individuals within a polity in which they have integrated their lives following the separation of that polity through secession or independence of a component part. After Ireland’s independence from the United Kingdom was secured, both Irish citizens within the United Kingdom and UK citizens within Ireland are enfranchised within the respective countries on the basis of domestic legislation. Therefore, the argument by analogy is that a similarly continuing enfranchisement could and should be ensured for UK citizens and EU nationals after Brexit, with the co-legislative institutions of the European Parliament and the Council operating analogously to a ‘domestic’ legislature for UK citizens in the EU-27. This would seek to ensure that the situation of all the UK nationals is preserved equally, rather than being determined by the prerogative of the state legislature which functions as their ‘host State’ for the purposes of the Withdrawal Agreement. The purpose of retaining the right to vote and stand as candidates in municipal elections would recognise the integration of these individuals within specific regional communities of the host States, whereas the retention of rights to vote in EP elections would recognise the stake of individuals in the European process whereby this local integration has been enabled.
The argument for continuing enfranchisement is reinforced by the fact that UK nationals are disenfranchised in local and national elections within the United Kingdom after 15 years of non-residence. Therefore, if these individuals have not naturalised as citizens of their host State, then they could find themselves barred entirely from any form of exercising their democratic voice through elections. The proposal to enable UK citizens to vote in European Parliament elections has already been discussed by Peter Niesen and Markus Patberg. These authors criticise a version of the proposal whereby all UK citizens would continue to be represented in the European Parliament as a means to keep the door open for the re-entry of the United Kingdom into the European Union. This version of the proposal is more nuanced insofar as it would not suggest that all UK citizens should remain enfranchised, but instead only those who adopt the new settled residence scheme under the Withdrawal Agreement within a Member State of the EU. Therefore the purpose of the reform would not not seek to preserve the influence of individuals qua UK nationals in the legislative processes of the EU, but would seek to vindicate their connection to their territory of residence and the incipient EU polity in their role qua EU citizen.
With regard to the possible means of implementation of such a proposal, there is already conditional scope for Third-Country Nationals to vote in local elections in Belgium, Denmark, Estonia, Finland, Hungary, Ireland, Lithuania, Luxembourg, and the Netherlands (see GLOBALCIT CER 2017). Article 79 TFEU, which establishes the competence for the EU to legislate on matters pertaining to the conditions of Third-Country Nationals, is silent on political rights. Therefore this discretion is left to the Member States to take unilateral action to enfranchise Third-Country Nationals in domestic elections, which will cover the status of UK citizens after Brexit.
Indeed, there is also precedent for the enfranchisement of Third-Country Nationals even in European Parliament elections. As Ruvi Ziegler highlights, within the United Kingdom, Commonwealth Citizens from non-EU states are enfranchised within the electoral constituencies established under the European Parliamentary Elections Act 2002. This arises on the basis of the unique political arrangements within the United Kingdom for Commonwealth citizens due to the legacy of the British Empire. Therefore, this functions very much as an exception to the norm of the limitation of the franchise in EP elections to those who hold EU citizenship.
Relying purely upon national legal measure to preserve the enfranchisement of UK citizens could only provide piecemeal guarantees and would inevitably lead to a fragmented regime in the absence of unanimous consensus amongst national legislatures. The only method by which to guarantee holistically that the enfranchisement of UK nationals is protected would therefore by through measures at the EU level. The basis for such measures arising through the future relationship agreement between the UK and the EU does not seem likely according to the current political declaration. Therefore, I would argue that the most practical method to achieve this goal would be through amendment of the secondary legislative provisions.
The passive and active electoral rights of Article 22 TFEU are currently implemented by Directive 94/80/EC on the right to vote and to stand as a candidate in municipal elections and Directive 93/109/EC on the right to vote and stand as candidates in EP elections. The possibility for the amendment of these directives in order to preserve the rights of nationals of ex-Member States could be a practically feasible due to the fact that the Commission is currently engaged in the process of consultation to consider possible revisions to these directives. This work includes the academic network on citizenship rights.
To conclude, preserving the political rights of UK nationals after Brexit would preserve the genuine connection that these individuals have built towards the polities of their host Member State, and towards the incipient polity of the European Union itself. Such a move to preserve citizenship rights beyond the interface of nationality of a Member State could be an incremental step towards the reconstruction of EU citizenship as an autonomous status of political self-determination. This could be the only method to ensure that crucial political and legal rights for EU citizens are insulated from the risks of the consequences of Member State withdrawal.