Explanatory Memorandum to COM(2021)733 - Arrangements for the exercise of the right to vote and stand as a candidate in municipal elections by citizens residing in a country of which they are not nationals (recast)

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dossier COM(2021)733 - Arrangements for the exercise of the right to vote and stand as a candidate in municipal elections by citizens residing in a ...
source COM(2021)733 EN
date 25-11-2021


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

Democracy is one of the values on which the European Union is founded. Every citizen has the right to participate in the EU’s democratic life and decisions are to be taken as transparently and as closely as possible to the citizen.

EU citizenship entails specific democratic rights. EU citizens who have exercised their right to live, work, study or research in a Member State of which they are not a national, (‘mobile EU citizens’) have the right to vote and stand as a candidate in municipal elections in their Member State of residence.

Council Directive 94/80/EC sets down the detailed arrangements for the exercise of their electoral rights in municipal elections in the Member State of residence.

In the EU Citizenship Report 2020 1 , the Commission expressed its intention to propose an update of Council Directive 94/80/EC on the right of mobile EU citizens to vote and stand as a candidate in municipal elections. The main aim is to facilitate the provision of information to citizens and to update outdated and obsolete provisions in the Annex to the Council Directive. The Commission Work Programme for 2021 announced a legislative initiative to improve the electoral rights of mobile EU citizens.

Despite the measures currently in place, mobile EU citizens still face difficulties in exercising their electoral rights in municipal elections. Problems include difficulties for mobile EU citizens to obtain correct information on how to exercise their electoral rights, burdensome registration processes and the effect of deregistration from elections in the Member State of origin. It is necessary to revise the Directive´s Annex due to changes in some Member State’ ‘basic local government units’ and to the withdrawal of the United Kingdom from the European Union.

This initiative addresses the observed difficulties in the exercise of electoral rights by mobile EU citizens. It updates, clarifies and strengthens the rules in order to ensure that they support the broad and inclusive participation of mobile EU citizens in municipal elections in the Member State of residence.

This proposal builds on long-standing and regular exchanges with Member States’ competent authorities through the Commission’s dedicated implementation group for the directive, the expert group on electoral matters, and two further dedicated meetings of the multidisciplinary European cooperation network on elections and the expert group on electoral matters.

This is an initiative under the regulatory fitness and performance programme (REFIT).

• Consistency with existing policy provisions in the policy area

The proposal is closely related to the proposal for a recast of Council Directive 93/109/EC of 6 December 1993 2 and to the work being done on other initiatives in the transparency and democracy package of the Commission Work Programme 3 .

• Consistency with other Union policies

The proposal ensures consistency with the EU Single Digital Gateway Regulation 4 regarding access to high-quality information for citizens with regard to Union and national rules applicable to citizens exercising or intending to exercise their rights derived from Union law in the field of the internal market and with the ‘Union of Equality: Strategy for the Rights of Persons with Disabilities 2021-2030’ 5 , which seeks to guarantee political rights of persons with disabilities on an equal basis with others 6 . It also complements other EU policies related to democracy and the digital world 7 . By seeking equal access to electronic voting or internet-voting solutions for mobile EU citizens, the proposal aims to better protect their fundamental rights and enhances democratic participation for society at large. The initiative is consistent with EU legislation on data protection.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

Article 20 TFEU establishes Union citizenship. Articles 20(2)(b) and 22(1) TFEU, and Article 40 of the EU Charter of Fundamental Rights, provide that citizens of the Union have the right to vote and stand as candidates in municipal elections in their Member State of residence, under the same conditions as national of that State. Article 22 TFEU provides that the exercise of this right is to be subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament.

• Subsidiarity (for non-exclusive competence)

The right of mobile EU citizens to vote and stand as candidates in municipal elections in the Member State of their residence forms part of the rights attaching to the status of citizenship of the Union enshrined in Part Two of the Treaty on the Functioning of the European Union. Article 22(1) of the Treaty expressly provides for the laying down by the Council of detailed arrangements to ensure the effective exercise of that right throughout the Member States. Such arrangements were initially established at the adoption of Directive 94/80/EC.

The recast of Directive 94/80/EC, and the revision and updating of the common standards and procedures contained therein, implies the need for action at Union level.

• Proportionality

The targeted measures proposed do not go beyond what is necessary to achieve the long-term objective of developing and strengthening European democracy. They improve and refine the framework governing the exercise by mobile EU citizens of their electoral rights granted under the Treaties. The proposal therefore complies with the principle of proportionality.

• Choice of the instrument

The Council Directive already contains a robust set of norms on standards and procedures for the exercise of electoral rights by mobile EU citizens. This proposal is intended to provide targeted changes to that Council Directive to address certain shortcomings and obstacles that Member States and citizens encounter. Given the necessity to update language, obsolete references and provisions, it is appropriate to recast the Council Directive. Since this proposal is to recast the Council Directive, the same type of legal instrument is the most appropriate.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

A derogation from the ‘evaluate first’ principle has been applied taking into account the existence of recent reports issued by the Commission. Evidence clearly shows the need for Directive 94/80/EC 8 to be updated, and this is considered sufficient for the evaluation step. Finally, the external study prepared in support of the impact assessment also includes elements of evaluation of the existing legal framework 9 .

• Stakeholder consultations

In preparing the current proposal, the Commission has been in close dialogue and consultation with the relevant stakeholders.

The proposal is based among others on an open public consultation 10 of citizens, non-governmental organisations and local and regional authorities, relevant studies including from the Academic Network on EU Citizenship Rights 11 , and the findings of an external study prepared to support the impact assessment conducted prior to the proposal 12 . In addition, mobile EU citizens 13 , the European cooperation network on elections 14 , and the expert group on electoral matters offered relevant feedback. This was complemented by conclusions from relevant projects funded under the Rights, Equality and Citizenship 15 and Europe for Citizens 16 programme, as well as direct feedback from EU citizens received by the Commission and the European Parliament.

• Collection and use of expertise

Relevant information was obtained through expert consultations in particular in with the Commission´s expert group on electoral matters 17 and the European cooperation network on elections 18 .

Two joint meetings of the European cooperation network on elections and the expert group on electoral matters were hosted on 28 January 2021 and on 10 June 2021. Points discussed in these meetings had already largely been discussed in previous meetings.

• Impact assessment

The proposal was supported by an impact assessment (SWD(2021) 357). Given the similarities between Council Directive 94/80/EC and Council Directive 93/109/EC in terms of both the main beneficiaries (mobile EU citizens) and the rights granted, and associated requirements for Member States, the possibilities to improve them and their functioning were assessed in one document. The Regulatory Scrutiny Board issued a positive opinion on the impact assessment (SEC(2021) 576).

The impact assessment examined two alternative policy options for tackling the problems identified. The policy options present a range of potential measures considered to improve the exercise of electoral rights. Specifically, these policy options range from soft, non-legislative measures in support of awareness raising and enhancing administrative cooperation, to setting common standards for procedures to register mobile EU citizens and for the prevention of de-registration practices.

Option 1 provides targeted legislative amendments and soft measures. The aim is to consolidate and clarify existing provisions of the Council Directive.

Option 2 provides for extensive legislative intervention. While respecting the non-discrimination principle as the basis of the Directive, the second policy option aims to put in place an extensive reform of the Directive by, for example, setting legal requirements on the time limits for registration.

The different options were scrutinised with regard to their effectiveness, efficiency, coherence with other (EU) policies and subsidiarity and proportionality.

Option 2 is considered to be the most effective option in achieving all the envisaged objectives. However, Option 1 is the preferred option for reasons of efficiency, coherence and subsidiarity and proportionality.

• Regulatory fitness and simplification

The proposal entails some costs for Member States’ and EU administrations arising from increased cooperation, but it is also expected to facilitate efficiencies for authorities due to harmonised processes. Moreover, some Member States already have systems in place that cover obligations envisaged in the preferred option and would thus not face significant additional costs.

The proposal simplifies the process of registering to vote and to stand as candidate in municipal elections for mobile EU citizens.

Under the proposal, no negative effects were identified arising from greater integration and democratic participation of mobile EU citizens in their host Member State. Simplifying registration requirements and improving information provision and awareness on voting for mobile EU citizens supports free movement and integration.

The proposal envisages that mobile EU citizens will have equal access to remote and electronic voting as compared with nationals of that Member State. Remote voting possibilities facilitate the electoral participation of mobile EU citizens.

• Fundamental rights

Article 2 of the Treaty on European Union (TEU) provides that ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 10(1) and (2) TEU provide that ‘The functioning of the Union shall be founded on representative democracy’ and that ‘Citizens are directly represented at Union level in the European Parliament’.

Article 26 of the EU Charter of Fundamental Rights states that the Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

This proposal pursues the objectives of these provisions, and is thus compatible with and gives effect to the fundamental rights guaranteed by the EU Charter of Fundamental Rights.

This proposal enhances the freedom of movement for EU citizens (Article 45 of the Charter). It also supports the access of mobile EU citizens to voting procedures on terms that are equal with nationals of the host Member State. Furthermore, it enhances the right to stand as a candidate in municipal elections (Article 40 of the Charter) and their right to good administration (Article 41).

4. BUDGETARY IMPLICATIONS

This proposal does not impose any financial or administrative burden on the EU. Therefore, it has no impact on the EU budget.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

Member States will be required to bring into force the laws, regulations and administrative provisions necessary to comply with the Council Directive within two years of its entry into force. Within three years of the entry into force and every four years thereafter, Member States must report to the Commission on the application of the Directive. The report is to contain relevant statistical data on the participation in municipal elections of voters and candidates and a summary of measures taken in that regard. Within five years of the entry into force and every five years thereafter, the Commission must submit a report to the European Parliament and the Council on the application of this Council Directive.

In order to ensure synergy and consistency of its policies on the participation in elections of mobile EU citizens, the Commission will conduct the evaluation of the application of this Directive at the same time with the evaluation of the application of the directive on the elections to the European Parliament. In addition, the evaluation will be informed on the reports of the Member States and on the meetings of the European cooperation network on elections. Therefore, within two years after the next two elections to the European Parliament, following the entry into force of this Directive, the Commission will assess its application and produce an evaluation report on the progress towards the achievement of its objectives.

• Explanatory documents

In its judgment of 8 July 2019 19 and in its further jurisprudence 20 the Court of Justice clarified that, when notifying national transposition measures to the Commission, Member States must provide sufficiently clear and precise information, and identify, for each provision of the directive, the national provision(s) ensuring its transposition.

• Detailed explanation of the specific provisions of the proposal

Explanations are only given for the provisions of the Directive that are proposed to be changed.

1. In order to facilitate access for mobile EU citizens to electoral information, Article 12 sets higher standards for providing electoral information to mobile EU citizens. The proposal requires Member States to appoint authorities that will proactively inform mobile EU citizens residing on their territory of the conditions and detailed rules for registration as a voter or candidate in municipal elections, before and after their registration, either for electoral purposes or for the purpose set out in Directive 2004/38/EC. This could also entail the provision of information and the use of means of communication adapted to specific voter groups such as young voters.

With the aim to increase mobile EU citizens’ awareness and understanding of procedures and practices to register and to participate in municipal elections, the same article provides for an obligation for the authorities appointed by Member States to communicate to mobile EU citizens who were registered as voters or as candidates, specific and tailored information on the following:

(a) the status of their registration;

(b) once available, the date of the election and how and where to vote;

(c) the relevant rules on voter and candidate rights and obligations, including prohibitions and incompatibilities, and applicable sanctions in the case of violation of electoral rules;

(d) means of obtaining further information on the organisation of the election including the list of candidates.

Under Regulation (EU) 2018/1724, Member States are required to ensure that users have easy access on their national webpages to user-friendly, accurate, updated and sufficiently comprehensive information on participating in municipal elections. Member States use different means and channels of communication. Therefore, in order to ensure consistency, the initiative envisages extending correspondingly the quality requirements set out in Regulation (EU) 2018/1724 to the direct and individual provision by Member States of official electoral information to mobile EU citizens.

In addition to use the official language of the Member State of residence, information is also to be communicated in an official EU language that is broadly understood by the largest possible number of EU citizens residing on its territory. Member States will be able to rely on the Your Europe portal. Along with the contact information introduced by amendments to the data mobile EU citizens need to submit in order to register as voters and candidates, this will allow Member States to use electronic channels to communicate information directly. To ensure inclusive electoral participation, the initiative also sets accessibility requirements for the information provided to persons with disabilities and the older citizens using as a source of inspiration the general comments of the United Nations Committee on the Rights of Persons with Disabilities regarding Article 21 and 29 of the United Nations Convention on the Rights of Persons with Disabilities.

2. With a view to reducing the administrative barriers faced by mobile EU citizens, the initiative (Articles 8 and 9) puts in place standardised templates for the formal declarations, set out in Annexes II and III that have to be produced by mobile EU citizens in order to register as voters and candidates. The data is supplemented with contact information, which allows Member States to deliver on their obligation to inform. As the annexes to the directive will be published in the Official Journal of the European Union, they will be available to citizens and national authorities alike in all the EU official languages.

3. The proposal (Article 8(5)) limits the scope of registration of mobile EU citizens on the electoral rolls of the host Member State, preventing de-registration from electoral rolls of the home Member State solely on this basis.

4. Article 14 requires regular monitoring and reporting of implementation by Member States. Reports will contain relevant statistical data on the participation in municipal elections of voters and candidates pursuant to Article 3 and a summary of measures taken in that regard. This will allow the Commission to assess the efficiency of the methods employed by Member States and offer alternatives for improvement. Article 16 provides for the evaluation of the application of the Directive within two years after the 2029 elections to the European Parliament.

5. Articles 2, 8 and 9 confer upon the Commission the power to adopt delegated acts to ensure that the list of basic local administrative units remains up-to-date and that the templates of the formal declarations submitted by mobile EU citizens at their registration as voters or candidates continue to comprise relevant data. Article 16 sets the limits of the delegation in accordance with Article 290 TFEU.

6. In line with the non-discrimination principle, Article 10 requires Member States to ensure access for mobile EU citizens to the same means of advance voting, postal voting, electronic voting and internet voting, that is available to their own nationals in municipal elections.

7. The proposal deletes the term ‘automatically’ from Article 8(3) in line with the General Data Protection Regulation’s provisions on restrictions to automated decision-making. In addition, to ensure access to information on equal terms with their nationals, Member States are required to notify mobile EU citizens of their removal from the electoral roll, if such an obligation regarding its own nationals is in place.

8. Currently, host Member States have the possibility to require EU non-national candidates to produce, before or after the election, an attestation regarding their right to stand as candidates. This attestation may be requested if there is doubt regarding the content of the declaration that states they have not been deprived of this right in their home Member States or in every case, as long as it is laid down by national legislation.

As the obligation of such a declaration is, in itself, a deterrent to standing as a candidate without having the right to, this initiative aims at eliminating the possibility to impose a blanket obligation on all EU non-national candidates to produce the above-mentioned attestation. Meanwhile, the proposal provides Member States with the option to require such an attestation on a case-by-case evaluation of the credibility of the declaration.

9. With the same aim of increasing awareness of mobile EU citizens, the proposal also envisages the amendment of Article 11(1) by providing for the obligation of Member States to use clear and plain language when informing mobile EU citizens on their registration status. It also clarifies the extent of the obligation on the Member States by replacing the term ‘measures’ with ‘decision’. Under a new paragraph in Article 11, it provides for the right of voters and candidates pursuant to Article 3 of the Directive to correct any inconsistencies or errors in the data contained in the electoral rolls or the lists of candidates under similar terms as for nationals of the host Member State.

10. The proposal also envisages adaptations of the outdated language and references (Article 3(a), Article 7(1), Article 8(2), Article 9(1) by replacing the Treaty establishing the European Community with the Treaty on the functioning of the European Union and by employing gender-neutral language.

11. Amendments to the list of basic local government units are in response to notifications received from Member States and to the withdrawal of the United Kingdom from the European Union.

12. Article 17 provides for transposition of the Directive.


94/80/EC (adapted)