EU Citizens’ Right to Join Political Parties
The Maastricht Treaty formally created the concept of citizenship of the European Union, based upon holding the nationality of a Member State. Now provided for in Article 20 TFEU, EU citizenship includes the right for EU citizens to vote in municipal and European Parliament elections in a Member State other than that of their nationality on the same basis as nationals. These political rights are further set out in Article 22 TFEU (which provides for these rights to be exercised ‘subject to detailed arrangements’ adopted by the Council), Articles 39 and 40 of the EU Charter of Fundamental Rights, and legislation adopted on the basis of Article 22 TFEU. There is no express provision for further political rights for EU citizens in other Member States.
But in the absence of further express political rights, are any such rights implied, at least as a corollary of the rights expressly granted, where necessary to exercise those express rights effectively? In particular, given that political parties are a common vehicle for participating in politics at every level, is there a corollary right for EU citizens to join political parties in another Member State? The Court of Justice recently addressed these points in infringement actions brought by the Commission against Poland (Case C-814/21) and the Czech Republic (Case C-808/21), challenging national laws that provided that only citizens of Poland and the Czech Republic respectively could join political parties. Its judgments enhance the role of EU citizenship as regards political rights, but its recognition of the importance of national identity in this area means that Member States can still place some limits on non-nationals’ role in politics. Furthermore, the Court’s reliance on the role of EU values in the EU legal order in these judgments chimes with the increased impact that other areas of EU law – rather than EU citizenship – are having upon national political systems recently.
The Court’s Judgments
The Court’s analysis of the merits begins by assessing the scope of Article 22 TFEU. It noted that there was no express rule on joining a political party or political movement, but stated that the equal treatment rule ‘prohibits that Member State from making the exercise of that right by that EU citizen subject to conditions other than those applicable to its own nationals’, applying to ‘any national measure giving rise to a difference in treatment liable to undermine the effective exercise of those rights.’
As for the argument that Article 22 TFEU was subject to the application of detailed arrangements by the Council, given that the legislation concerned did not address the issue of membership of political parties, the Court replied that ‘the scope of those directives cannot, even implicitly, limit the scope of the rights and obligations arising under Article 22 TFEU’, because ‘the specific rule of non-discrimination on grounds of nationality contained in that provision is framed in general terms and, according to the very wording of Article 22 TFEU, only the exercise of the rights to vote and to stand for election laid down therein is subject to detailed arrangements adopted by the Council’.
Next, the Court noted that although the conditions of membership of political parties for EU citizens in another Member State were, in the absence of harmonisation, an issue of national competence, the exercise of national competence remained subject to obligations under EU law. In particular, national rules could not breach the equal treatment requirement in Article 22 TFEU.
The Court also examined Article 22 TFEU in the context of the rest of the TFEU, as well as the TEU and the Charter. It noted that the political rights were linked to EU citizenship, which ‘is destined to be the fundamental status of nationals of the Member States’, so therefore could not (as the Czech Republic argued) ‘be construed as an exception to a purported rule that only nationals of a Member State may participate in the political life of that State, which would require Article 22 TFEU to be interpreted restrictively.’ Furthermore, the voting rights were linked to EU citizens’ free movement rights, and to the principle of representative democracy referred to in Article 10 TEU, as regards the European Parliament – democracy being one of the values of the EU set out in Article 2 TEU.
Additionally, the judgment linked the issue to Article 12(1) of the Charter, concerning freedom of association, corresponding to Article 11(1) ECHR and having the same meaning and scope pursuant to Article 52(3) of the Charter. Strasbourg case law has emphasised that political parties have a role fielding candidates in elections; the CJEU concluded that parties ‘thus fulfil an essential function in the system of representative democracy, on which the functioning of the European Union is founded, in accordance with Article 10(1) TEU’, and that ‘membership of a political party or political movement contributes significantly to the effective exercise of the right to stand for election, as conferred by Article 22 TFEU.’
Next, the Court established that the national rules created different treatment prohibited by Article 22 TFEU, rejecting the specific arguments of the Czech Republic (independent candidates can be placed on a list of candidates submitted by a party list or political movement) on the one hand, and Poland (possible nomination by an electoral committee of voters, instead of a political party) on the other. In either case, the Court found that there was discrimination against nationals of other Member States.
Finally, the Court assessed arguments based on ‘respect for national identity’, referring to Article 4(2) TEU, given the link between political parties and national elections. The Court accepted that ‘the organisation of national political life, to which political parties and political movements contribute, is part of national identity’. It acknowledged that Article 22 TFEU did not require Member States to permit EU citizens from other Member States from voting or running as candidates in national elections, or from preventing those EU citizens who were members of political parties from participating in decisions choosing who the party’s candidates would be for national elections. Although the Czech government cried crocodile tears at the prospect of discriminating between political party members based on nationality, the Court ruled that as regards national elections, Czechs and other EU citizens were not in a comparable situation, as the latter could not vote or run for office. Nor could Article 4(2) TEU outweigh ‘provisions of the same rank’, namely democracy and equal treatment in Articles 2 and 10 TEU – repeating its point from the budget conditionality judgments that ‘Article 2 TEU is not merely a statement of policy guidelines or intentions, but contains values which are an integral part of the very identity of the European Union as a common legal order, values which are given concrete expression in principles containing legally binding obligations for the Member States’. It followed that ‘allowing such EU citizens to become members of a political party or political movement in their Member State of residence so as to implement in full the principles of democracy and equal treatment cannot be regarded as undermining the national identity of that Member State’.
Elevating political rights
First of all, is the Court’s interpretation of Article 22 convincing? In fact, the Court flips the structure of the Article on its head. It was argued that the issue of membership of political parties falls outside the scope of EU law unless the Directives adopted on the basis of Article 22 TFEU address it. But the Court found rather the contrary: the issue falls inside the scope of EU law unless those Directives exclude it. Here the Court’s reasoning that the legislation only regulated the rights to vote and stand for election, and so implicitly could not have regulated membership of political parties, is unpersuasive – given that the rest of the judgment emphasises the intrinsic link between them.
On equal treatment as such, it is striking that both Member States’ arguments that their systems provided for ‘separate but equal’ treatment did not convince the Court. But the Court did accept that there could be a dividing line between national elections – where it expressly accepted that there are no EU law political rights – and municipal and European Parliament elections. Here the Court’s insistence that Member States could figure out a way that political party members who were citizens of other Member States could participate in some votes but not others makes sense; such a distinction is, after all, made anyway on national electoral lists.
Secondly, what are the specific implications of this judgment – besides a requirement to amend the national laws which prevent citizens of other Member States from joining political parties? The Court was not asked about unequal treatment of other EU citizens stemming from the statutes of a political party, as distinct from the State, but it is arguable both that Article 22 TFEU is horizontally directly effective against private (political) parties, and that Member States have a positive obligation to ensure equal treatment by means of legislating to prevent political parties from engaging in unequal treatment.
Similarly, what about the issue of political donations? Following the logic of this judgment, Article 22 TFEU is arguably infringed by a rule that treats citizens of other Member States differently than home State nationals as regards contributions to parties or candidates in municipal or European Parliament elections. But conversely Article 22 TFEU does not require equal treatment as regards donations during national elections, and Member States can take steps to distinguish between the two situations. In case of concern about foreign nationals ‘buying’ elections, it should be reiterated that Article 22 TFEU provides for equal treatment; any spending caps and other limits on political funding would therefore apply equally to citizens of other Member States.
This could potentially overlap with the free movement of capital, where it might be argued that its application to charity donations could extend to political donations too; and free movement of capital also extends to non-EU countries (with additional limits), and to abolition of non-discriminatory restrictions on such movement (see the golden shares judgments). However, it is arguable that limits on foreign donations (i.e. of non-residents) can be justified on the grounds of public policy (under Article 65 TFEU), especially given the Court’s acceptance in its recent judgments that the organisation of political life is part of national identity. If necessary, Article 64(3) TFEU can be used as the basis for adopting measures restricting donations from outside the EU – whether from South African billionaires seeking to influence politics in the rest of the world, or anyone else.
Finally, what are the implications of the judgment for EU values and national identity? The Court simultaneously relies on Article 11 ECHR (as reflected in the Charter) while ignoring arguments about Article 16 ECHR – which allows States to restrict the political activity of foreigners. It would have been better to address the point directly, by observing that Member States have already agreed that EU citizens should enjoy some political rights in each Member State, the ECHR being a minimum standard (Article 53 ECHR; Article 52(3) Charter, second sentence).
As for national identity, the Court does find a core of it here (national elections) which is unaffected by Article 22 TFEU, even extending to limiting other Member States’ citizens’ voting within political parties. Furthermore, as I suggested above, this should logically extend, if necessary, to defend limits on political spending too.
But remarkably, the Court links the implied political rights of EU citizens in municipal and European Parliament elections not only to the express rights of EU citizenship, but also to democracy and equal treatment, as represented in Article 10 TEU and the EU’s values – putting them at the same rank as national identity. So national identity cannot constitute an exception to democracy or the rule of law et al – but must be reconciled with those values.
The broader context here is that this particular hard core of national competence is being eroded not so much by EU citizenship, but by EU measures adopted to address rule of law concerns: directly as regards political advertising, but also tangentially as regards the Media Freedom Act, the anti SLAPP Directive, and the application of the Digital Services Act to TikTok during the Romanian elections.
