Maddalen Martin-Arteche , 17 juin 2022

On 9 June 2022, the Grand Chamber of the Court of Justice delivered its ruling in case C-673/20 concerning a United Kingdom (UK) national who had been living in France since 1984 but had neither applied for nor obtained French nationality. The UK national found herself, as a consequence of the entry into force of the EU-UK Withdrawal Agreement on 1 February 2020, prevented from participating in the municipal elections held in France on 15 March 2020. She brought her case before the French courts, which, in turn, made a request for a preliminary ruling to the Court of Justice.

Firstly, the Court of Justice had to rule whether UK nationals who transferred their residence to another EU Member State before the end of the transition period provided for in the Withdrawal Agreement continued to benefit during such period (from 1 February to 31 December 2020) and beyond from the right to vote and/or stand as a candidate in municipal elections in their Member State of residence. Secondly, if the Court of Justice found that the answer to the latter question is negative, the referring jurisdiction asked the Court of Justice to examine the validity of the Withdrawal Agreement in light of Article 9 TEU  (citizenship of the EU), Articles 18, 20 and 21 TFEU (non-discrimination and citizenship of the EU), Article 40 of the Charter (right to vote and stand as a candidate in municipal elections) and the principle of proportionality. The two questions will be examined in turn below.

The right of every EU citizen residing in a Member State of which he/she is not a national to vote and stand as a candidate in municipal elections in that Member State, under the same conditions as nationals of that State, is part of the rights that EU citizens enjoy under the Treaties. The Court of Justice very clearly recalled that entitlement to EU citizenship in general and the right to vote and stand as a candidate in Member States’ municipal elections enshrined in Article 20(2)(b) TFEU, Article 22 TFEU and Article 40 of the Charter, in particular, is dependent on being a national of an EU Member State. No such right is granted to third country nationals under the Treaties. Following the withdrawal of the UK from the EU, UK nationals are to be considered third-country nationals for the purposes of Article 20(2)(b) TFEU, Article 22 TFEU and Article 40 of the Charter. Hence, UK nationals lost, as from 1 February 2020, the right to vote and stand in municipal elections in their Member State of residence. Following the Court of Justice, the Withdrawal Agreement does not confer a right to vote and stand as a candidate in municipal elections in the Member State of residence in favour of UK nationals who had exercised their right to reside in a different Member State before the end of the transition period. What is more, although certain provisions of EU law continued to apply during the transition period in the UK, Article 127(1)(b) of the Withdrawal Agreement expressly excludes the application to and in the UK of Article 20(2)(b) TFEU, Article 22 TFEU, and Article 40 of the Charter. The Court of Justice found that the exclusion applies as well to UK nationals having exercised their right to reside in a different Member State before the transition period, as it is the case of the UK national in casu. In conclusion, UK nationals who used to enjoy the rights deriving from the EU citizenship no longer benefit, after the withdrawal of the UK from the EU, from the right to vote and stand as a candidate in municipal elections in their Member State of residence.

The Court of Justice examined next whether Council Decision 2020/135 on the conclusion of the Withdrawal Agreement could have conferred pursuant to Article 9 TEU, Articles 18, 20 and 21 TFEU and Article 40 Charter, as well as the principle of proportionality, on UK nationals who exercised their right to reside in a different Member State before the end of the transition period the right to vote and stand as a candidate in municipal elections in the residing Member State during such period. The Court of Justice reiterated that such claim cannot be based on the aforementioned Treaty provisions because third-country nationals (UK nationals as from 1 February 2020) are not entitled to these rights. As regards the examination of the validity of Council Decision 2020/135 in light of the principle of proportionality, the Court of Justice found that the EU exercised its broad discretion in the conduct of external relations not to include the right to vote and stand as a candidate in municipal elections in the residing Member State within the Withdrawal Agreement. As a result, the Court of Justice upheld the validity of the Withdrawal Agreement.

The ruling of the Court of Justice shows clearly that EU citizenship and nationality of a Member State are inextricably linked. Consequently, neither long-term residence in nor close ties with a Member State can make up for the absence of such nationality. In addition, the loss of EU citizenship is treated as a collective thing, meaning that UK nationals are indistinguishable when it comes to the loss of EU citizenship.

Maddalen Martin, No right to vote and/or stand as a candidate in municipal elections held in the residing Member State for UK nationals after 1 February 2020, actualité du CEJE nº 16/2022, 17 juin 2022, disponible sur www.ceje.ch