Clarifying the Court’s judgment in Préfet du Gers on UK nationals’ voting rights in local elections in the EU post-Brexit

On 9 June 2022, the Court of Justice delivered another Brexit-related ruling in Case C-673/20 Préfet du Gers and Institut national de la statistique et des études économiques concerning the EU-UK Withdrawal Agreement. The Agreement covers in particular the residence and social rights of the UK nationals resident in the EU and EU citizens resident in the UK. However, Brexit also affected the wider scope of EU citizenship rights, e.g. the voting rights of the UK nationals residing in the EU and vice-versa. The Court had to address the question whether these rights are protected by the Withdrawal Agreement, and if not, what is the impact on its validity. The Court found that following the loss of EU citizenship the UK nationals have lost their voting rights in local elections, and these are not protected by the Withdrawal Agreement. However, the judgment provoked various alarming media reactions that do not reflect reality and should be clarified.

Facts of the case

A British national, EP, resident in France since 1984, was removed from the municipal electoral roll. She challenged this removal before the referring French court, claiming that she was deprived of her active and passive voting rights in local elections in both the UK and France. Whilst the loss of the voting rights in the UK elections was the result of the domestic legislation preventing the UK nationals living for fifteen years abroad from exercising them, the removal from the French electoral roll was based on UK Withdrawal from the EU and the loss of EU citizenship. The French court, in essence, referred the following questions to the Court of Justice:

1. Have UK nationals, who were settled in the EU before the end of the transition period, lost their EU citizenship status and the rights stemmed therefrom, or do they retain such rights based on the Withdrawal Agreement?

2. If such UK nationals are not able to retain their EU citizenship rights based on the EU-UK Withdrawal Agreement, does the Agreement infringe Articles 18, 20, and 21 TFEU and 39 and 40 of the Charter of Fundamental Rights, and further the principle of proportionality?

The Court’s judgment

The Court confirmed that British nationals settled in the EU before the end of transition period have lost their EU citizenship status and rights. The Court emphasized that only EU citizens established in another EU Member State enjoy active and passive voting rights in local elections stemming under Article 22 TFEU and the Charter, and not third-country nationals (para 51). It does not matter here that the applicant has the nationality of a third state who was formerly an EU Member State (para 52). UK nationals lost their EU citizenship status on 1 February 2020, the day the UK withdrew from the EU, as an automatic consequence of a sovereign decision to leave the EU (paras 58 – 59). Following these conclusions, the Court did not find any grounds for declaring the Council’s decision to conclude the Withdrawal Agreement invalid. Among other reasons the Court justified this by highlighting the wide discretion of the EU institutions in the management of external relations, where the principle of reciprocity is one of the inherent elements (para 99). The institutions are not required to grant unilaterally voting rights to third-country nationals.

The judgment follows the Opinion of Advocate General Michael Collins, which confirmed the exclusion of the voting rights of UK nationals from the scope of the Withdrawal Agreement. Apart from coming to the same conclusion on the wide margin of appreciation in the management of EU external relations AG Collins pointed out that the sovereign choice to leave implied the rejection of the EU principles, hence the EU was not in position to insist that the UK adheres to them (para 75 of the AG opinion).  Consequently the AG Collins seems to be using even stronger language than the Court by emphasizing the lack of EU obligation to claim the UK adherence to the EU´s founding principles.

In any case the Court relied on clear wording of the provisions of the EU Treaties, Charter and the Withdrawal Agreement. Article 20 TFEU clearly grants EU citizenship only to nationals of the Member States (para 48). While this does not preclude the EU from extending certain EU rights to third countries and their nationals through international agreements, the EU is free in considering whether to grant them or not. This conclusion is also confirmed by the systematic interpretation of the Withdrawal Agreement. According to the Court, Article 127(1)(b) of the Agreement precluded during the transition period the exercise of certain rights vis-à-vis the United Kingdom and to its nationals, including the voting rights in local elections (para 75). The prohibition of discrimination on the grounds of nationality applies only to the second part of the Withdrawal Agreement, which does not cover the voting rights in local elections (paras 76 – 77).

Comments

Some newspapers rushed on with oversimplified headlines that UK citizens could not vote in local elections in the EU, according to the CJEU. An even more distorted headline claimed “EU bans British expats from voting in local European elections in major post-Brexit change”. However, these headlines lack nuance and do not reflect reality. Two key aspects need to be clarified.

First, the assumption that all UK nationals residing in the EU will automatically lose their voting rights in local elections following the Court’s judgment is too hasty. The reality is more complex. The Withdrawal Agreement indeed does not ensure voting rights for UK nationals in the EU post-Brexit. Hence, UK nationals can no longer rely on an EU citizenship status to enjoy electoral rights in local elections. However, the competence to grant the voting rights in local elections for third-country nationals remains with the Member States, as confirmed by the Court in para 82 of the judgment. They can grant this right either unilaterally on the basis of national law, or bilaterally by concluding an international agreement. Following Brexit, the UK has already negotiated bilateral agreements on reciprocal voting rights with Spain, Portugal, Luxembourg and Poland. Furthermore, many Member States granted the voting rights in local elections to third-country nationals. Thus, the judgment has no impact on the voting rights of UK nationals settled in Member States, which grant such rights either unilaterally or on the basis of a bilateral agreement with the UK.

Second, these headlines point to the EU as the one who is responsible for disenfranchising UK nationals in local elections in the EU. This is not true. Indeed, as the Court rightly points out in paragraph 83 of the judgment, the loss of the voting rights is an automatic consequence of Brexit. The EU has not adopted any measure aimed at depriving the UK nationals of their voting rights in local elections. Any claim blaming the EU to this effect is therefore not correct.

Arguably, the main significance of the judgment is that the Court has once again upheld the legality of the Withdrawal Agreement. Here, the Court confirmed that the lack of voting rights in local elections in the Withdrawal Agreement has no impact on the validity of the Agreement. Unfortunately, this means that British nationals who reside in Member States, that do not grant electoral rights to third-country nationals, must simply feel another consequence of Brexit.

In this context, the question arises whether the exceptional and one-off EU competence for arranging the UK’s withdrawal from the EU based on Article 50 TEU could have also been used to negotiate an reciprocal obligation to grant UK nationals in the EU and EU citizens in the UK voting rights in local elections. This has been suggested as a means of addressing the alleged imbalance in voting rights in local elections of EU citizens in the UK and the UK nationals in various EU Member States. The imbalance entails the fragmented approach on the EU side, affecting the UK nationals residing in some countries such as France more heavily than those who reside in the Member States, which leave the voting rights of the UK nationals intact. The Court did not address the question whether the EU has such a competence, as the question was only hypothetical in the situation at hand. On the one hand, one could argue that the EU does indeed have such a competence because UK nationals formerly derived their voting rights from their (now withdrawn) EU citizenship status. On the other hand, one may argue also to the contrary – the EU Member States have never conferred on the EU the competence in the area of voting rights of third-country nationals residing in the EU Member States.. In any case, we will most likely not know whether this exceptional and one-off competence exists  any soon as the voting rights of the UK nationals in local elections are clearly not covered by the Withdrawal Agreement according to the judgment in Préfet du Gers.