Part I Mini-Symposium on EU Citizenship in the Shadow of Brexit: The Brexit effect – European Parliamentary Elections in the UK
By Ruvi Ziegler
The UK is scheduled to leave the EU on 30th March 2019 at midnight, Brussels time, by automatic operation of EU law (Article 50(3) of the Treaty on European Union(TEU) and, indeed, according to section 20(1) of the UK’s EU (Withdrawal) Act 2018. Consequently, the UK will not be participating in the May 2019 European Parliamentary (EP), Elections. Its 73 MEPs, including the 3 MEPs representing Northern Ireland, will be gone. This post appraises, first, the ramifications of Brexit for electoral rights of EU-27 citizens resident anywhere in the UK as a ‘third country’ and, second, the unique electoral predicament of residents in Northern Ireland. It argues that, unless Member States (MS) act promptly, hundreds of thousands of their citizens, qua Union citizens, stand to be disenfranchised this coming May – a democratic outrage that can and should be averted.
Now, under Article 50(3) of the TEU, above, the UK’s EU membership could be extended, should ‘the European Council, in agreement with the Member State concerned, unanimously decide[s]’ to do so. Following a preliminary reference to the CJEU from the Scottish Court of Session in Wightman, we learnt that the UK could revoke the notification of its intention to withdraw (issued pursuant to the EU (Notification of Withdrawal) Act (2017)) ‘unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing’, following a decision taken ‘in accordance with its constitutional requirements’ (Oliver Garner’s analysis).
However, unless one of the above scenarios materialises, the next EP elections will be held in the UK’s electoral absence. Indeed, Schedule 9 of the EU (Withdrawal) Act 2018 lists the European Parliamentary Elections Act 2002and the European Parliament (Representation) Act 2003 among the Acts to be wholly repealed, and the UK Government’s ‘Policy paper on citizens’ rights in the event of a no deal Brexit’ is silent in respect of the EP elections.
This contribution builds on my November 2017 written evidence to the House of Lords EU (Justice) Sub-Committee’s Brexit: Citizens’ rights inquiry and on my recently published report on ‘Political participation of mobile EU citizens: UK’.
The appraisal commences with Article 39(2) of the Charter of Fundamental Rights of the EU, which enunciates that ‘Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.’ This pronouncement is echoed by Article 10(3) of the TEU, which states that ‘every citizen shall have the right to participate in the democratic life of the Union’ and by Article 9 of the TEU, which stipulates that ‘in all its activities, the Union shall observe the principle of the equality of its citizens…’
In Delvigne, a case concerning the legality, under EU law, of the exclusion from voting in EP elections of a French national sentenced to twelve years’ imprisonment for murder, the Court considered the right to vote in EP elections to be free-standing. It held that,  by determining the franchise for EP elections, EU MS ‘must be considered to be implementing EU law’ and that,  ‘the deprivation of the right to vote represents a limitation of the exercise of the right of EU citizens to vote in elections to the EP’. It is therefore plausible for Union citizens to challenge, under EU law, enactments of their MS of citizenship which result in their disenfranchisement in EP elections.
EU-27 citizens resident in the UK as a third country
According to a 2015 European Parliament ‘Disenfranchisement of EU citizens resident abroad’ report, five EU MS (Germany, Denmark, Cyprus, Malta, and the Republic of Ireland) deprive their citizens, under varying conditions (table 3.2 thereof) of the right to vote in EP elections when they reside outside the Union. Thus (some) citizens of Germany, Denmark, Cyprus, Malta, and the Republic of Ireland residing in the UK stand to be disenfranchised in the 2019 EP elections, unless their MS of citizenship either amend their legislation to enfranchise their citizens resident outside the Union to vote or make an exception for residents of a former MS.
As I have argued elsewhere, while the case for enfranchisement of non-resident citizens is generally sound, the argument for enfranchisement of EU-27 citizens in the UK is particularly strong: they have not voluntarily moved to a third country; rather, they took up residence based on free movement rights they enjoy under EU law, and on the understanding and expectation that they will continue to enjoy EU citizenship rights throughout their lives. The CJEU held in Zambrano that,  MS should not hinder ‘the genuine enjoyment of the substance of rights conferred by virtue of their status as citizens of the Union’. By failing to amend their legislation accordingly, MS would be rubbing salt into the Brexit wounds of their citizens: having been denied a vote in the EU referendum, treated thereafter as ‘bargaining chips’, and faced with uncertainty about their settlement rights, their own countries would be disenfranchising them.
As one of the five MS mentioned above, Germany’s approach in respect of its nationality laws can be instructive. Under German law, voluntary acquisition of nationality of a non-EU MS ordinarily results in loss of German citizenship. But last week, the German government introduced draft legislation in the event of a ‘disorderly Brexit’ (no deal) which would allow German applicants whose applications for British nationality have not been decided by 30th March 2019 to retain their German nationality, even though the UK will no longer be an EU MS. Alternatively, should the Agreement on the withdrawal of the UK from the EU and the European Atomic Energy Community be implemented, there will be a transition period until 31st December 2020 (which could be renewed for up to two years) during which the Acquis communautaire will continue to apply in the UK. The Brexit-Übergangsgesetz (Brexit Transition Act), due to be debated in the Bundestag on 17 January 2019, stipulates that, for German Federal law purposes, the UK will be considered an EU MS during the transition period: Germans acquiring UK citizenship will not lose their German (and EU) citizenship. Hence, the German Government stands ready to accept that the situation of Germans seeking UK citizenship is qualitatively different than that of Germans seeking other non-EU citizenships. The same logic could arguably apply to enfranchisement in EP elections.
European parliamentary elections in Northern Ireland
As noted above, Northern Ireland returns three MEPs in EP elections, representing the six counties. Article 1.iv of the ‘Good Friday’ Agreement recognises ‘the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland’.
The Preamble to the ‘Protocol on Ireland/Northern Ireland’ which forms part of the Withdrawal Agreement(above) states that ‘Irish citizens in Northern Ireland, by virtue of their Union citizenship, will continue to enjoy, exercise and have access to rights, opportunities and benefits, and that this Protocol should respect and be without prejudice to the rights, opportunities and identity that come with citizenship of the Union for the people of Northern Ireland who choose to assert their right to Irish citizenship’.
The Irish 1997 European Parliament Elections Act requires Irish citizens to be ordinarily resident in Ireland in order to vote and stand as candidates in elections to the EP (for analysis, see report on Political Participation of mobile EU citizens: Ireland). Pending legislative change, the most likely outcome is, therefore, that a region, Northern Ireland, where nearly all residents are eligible to be citizens of a remaining EU MS, the Republic of Ireland, will not be represented in the EP.
The consequences of disenfranchisement will be particularly profound should the Withdrawal Agreement be implemented, given that pursuant to Article 6(2) of the above Protocol, Northern Ireland will be subject to (many) provisions of Union law that, after the transition period, will cease to apply in Great Britain. Hence, it will not only be a case of disenfranchisement of EU citizens as individuals, but also of a territory subject to (many) EU regulations.To coin a phrase, no regulation without representation…
Oliver Garner suggests that, an analogy can be drawn with Gibraltar residents who, before the European Court of Human Rights’ Matthews judgment, were disenfranchised in EP elections, despite being EU citizens. Following Matthews, notwithstanding Spain’s protestation, Gibraltarians have been represented in the EP by the UK’s South West region MEPs. Indeed, one proposition is that, the three Northern Ireland MEPs can be reallocated to the Republic of Ireland, and that the Irish franchise be extended to include non-resident Irish citizens.
Brexit, if it goes ahead, is an opportunity for other EU MS to demonstrate their commitment to a ‘Europe of the citizens’ in a Union ‘founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’ (Article 2 of the TEU).
In Wightman, the CJEU (citing Grzelczyk Zhu and Chen and Rottman) noted that ‘citizenship of the Union is intended to be the fundamental status of nationals of the MS’ and therefore ‘any withdrawal of a MS from the EU is liable to have a considerable impact on the rights of all Union citizens’. Daniel Sarmiento argues elsewhere that ‘Wightman paves the way for an active stance of Member States in the protection of EU citizens’. Unless five MS act, many Union citizens stand to lose their voice in the Union. They should heed this call.