Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 11 January 2024 (1)
Case C‑814/21
European Commission
v
Republic of Poland
(Failure of a Member State to fulfil obligations – Citizenship of the Union – Article 22 TFEU – Right to vote and to stand as a candidate in municipal elections and in elections to the European Parliament in the Member State of residence under the same conditions as nationals of that State – Citizens of the Union residing in Poland who are not Polish nationals – No right to become a member of a political party – Candidacy at municipal elections or elections to the European Parliament under different conditions from those laid down for nationals – Article 10 TEU – Principle of democracy – Charter of Fundamental Rights of the European Union – Articles 12, 39 and 40 – Justification – Article 4(2) TEU)
Table of contents
I. Introduction
II. Legal framework
A. European Union law
1. The FEU Treaty
2. The Charter
3. Directive 93/109/EC
4. Directive 94/80/EC
B. Polish law
1. The Law on Political Parties
2. The Electoral Code
3. The Law on Broadcasting
4. The Law on Associations
III. The pre-litigation procedure
IV. Forms of order sought
V. Analysis
A. The plea of inadmissibility raised by the Czech Republic
1. Arguments of the parties
2. Assessment
B. Substance
1. Arguments of the parties
(a) The Commission
(1) The basis of the action for failure to fulfil obligations
(2) Member States’ exercise of their competence
(b) The Republic of Poland
(1) The wording of Article 22 TFEU does not confer the right to become a member of a political party
(2) The restriction of membership of a political party is justified by the concern to limit the sphere of influence of ‘mobile’ Union citizens on national political life
(3) Candidates who are not members of a political party are not especially disadvantaged as compared with party members
(c) The specific arguments raised by the Czech Republic, the intervener, and the Commission’s observations in response
(1) The scope of Article 22 TFEU
(i) The Czech Republic’s arguments
(ii) The Commission’s observations
(2) The applicable legal basis
(i) The Czech Republic’s arguments
(ii) The Commission’s observations
(3) Evidence of the alleged failure to fulfil obligations
(i) The Czech Republic’s arguments
(ii) The Commission’s observations
(4) The limitation of the exercise of the rights conferred by Article 22 TFEU
(i) The Czech Republic’s arguments
(ii) The Commission’s observations
(5) The situation in the other Member States
(i) The Czech Republic’s arguments
(ii) The Commission’s observations
2. Assessment
(a) The scope of Article 22 TFEU
(b) The existence of a limitation on the exercise of electoral rights
(c) The justification for the restriction on membership of a political party
VI. Costs
VII. Conclusion
I. Introduction
1. By its action lodged pursuant to Article 258 TFEU and based on Article 22 TFEU, the European Commission asks the Court to declare that the Republic of Poland has failed to fulfil its obligations under Article 22 TFEU because, in essence, it has failed to grant the right to be a member of a political party to citizens of the Union who are not Polish nationals but who reside in its territory, (2) with the result that those citizens have less chance of being elected at municipal elections or elections to the European Parliament than Polish nationals. (3)
2. In this Opinion, I will explain why the position taken by the Republic of Poland, that is to say, that Article 22 TFEU should only be interpreted literally, in the sense that it governs only the legal conditions for standing as a candidate, cannot be accepted, and that, on the contrary, on the basis of a contextual and teleological analysis of the obligations arising from that provision, the view should be taken that the complaint raised by the Commission, alleging that the effective exercise of the right to stand as a candidate is undermined, is well founded.
II. Legal framework
A. European Union law
1. The FEU Treaty
3. Article 20 TFEU reads as follows:
‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
…
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
…
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.’
4. Article 22 TFEU provides:
‘1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
2. Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.’
2. The Charter
5. Article 12 of the Charter of Fundamental Rights of the European Union, (4) entitled ‘Freedom of assembly and of association’, reads as follows:
‘1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.
2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.’
3. Directive 93/109/EC
6. Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals (5) states, in the fourth recital thereof:
‘Whereas Article 8b(2) of the EC Treaty is concerned only with the possibility of exercising the right of vote and to stand as a candidate in elections to the European Parliament, without prejudice to Article 138(3) of the EC Treaty, which provides for the establishment of a uniform procedure in all Member States for those elections; whereas it essentially seeks to abolish the nationality requirement which currently has to be satisfied in most Member States in order to exercise those rights’.
7. Article 1(1) of that directive provides:
‘This Directive lays down the detailed arrangements whereby citizens of the Union residing in a Member State of which they are not nationals may exercise the right to vote and to stand as a candidate there in elections to the European Parliament.’
4. Directive 94/80/EC
8. Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals (6) states, in the fifth recital thereof:
‘Whereas the purpose of Article 8b(1) is to ensure that all citizens of the Union, whether or not they are nationals of the Member State in which they reside, can exercise in that State their right to vote and to stand as candidates in municipal elections under the same conditions; whereas the conditions applying to non-nationals, including those relating to period and proof of residence, should therefore be identical to those, if any, applying to nationals of the Member State concerned; whereas non-nationals must not be required to fulfil any special conditions unless, exceptionally, different treatment of nationals and non-nationals is justified by circumstances specific to the latter distinguishing them from the former’.
9. Article 1(1) of that directive provides:
‘This Directive lays down the detailed arrangements whereby citizens of the Union residing in a Member State of which they are not nationals may exercise the right to vote and to stand as a candidate there in municipal elections.’
B. Polish law
1. The Law on Political Parties
10. Article 2(1) of the ustawa o partiach politycznych (Law on Political Parties) (7) of 27 June 1997 provides:
‘Nationals of the Republic of Poland aged 18 or over may be members of a political party.’
11. Article 5 of that law provides:
‘Political parties shall be guaranteed access to public radio and television channels in line with the rules laid down in separate laws.’
12. Article 24 of that law states:
‘1. The assets of political parties shall derive from the membership fees, donations, legacies and bequests, from property income and from grants and subsidies as specified by law.
2. The assets of political parties may be used only for purposes specified in their constitution or for charitable purposes.
…
4. A political party may derive income from its assets only from:
(1) the interest yielded by funds held in bank accounts and term deposits;
(2) the trading in Skarb Państwa [(Treasury, Poland)] bonds and bills;
(3) the sale of its assets;
…’
13. Article 28(1) of that law provides:
‘A political party which:
(1) in elections to [the Sejm (Lower Chamber of the Polish Parliament)], having established its own electoral committee, has received, nationally, at least 3% of the valid votes cast for its constituency lists of candidates for the office of Member of Parliament, or
(2) in elections to the Lower Chamber of the Polish Parliament, is a member of an electoral coalition whose constituency lists of candidates for the office of Member of Parliament have received, nationally, at least 6% of the valid votes cast
shall be entitled to a subsidy funded from the State budget, for the duration of the legislative term and in accordance with the detailed arrangements and rules laid down in the present Law, for the performance of its activities as specified in its constitution …
…’
14. Article 36(1) of the Law on Political Parties states:
‘A political party’s election fund may originate from the political party’s own contributions, as well as donations, legacies and bequests.’
2. The Electoral Code
15. Article 84 of the ustawa Kodeks wyborczy (Law establishing the Electoral Code) (8) of 5 January 2011 (‘the Electoral Code’) provides:
‘1. The right to nominate candidates for election is vested in electoral committees. Electoral committees also perform other electoral activities and, in particular, on the basis of exclusivity, conduct election campaigns for candidates.
2. In elections to the Lower Chamber of the Polish Parliament and to [the Senat (Upper Chamber of the Polish Parliament)] and in elections to the European Parliament in the Republic of Poland, electoral committees may be established by political parties and by coalitions of political parties, and by voters.
…
4. In elections to the bodies representing local government and elections for mayors, electoral committees may be established by political parties, coalitions of political parties, associations and social organisations (“organisations”), and by voters.’
16. Article 87(1) and (2) of that code provides:
‘1. Political parties may form electoral coalitions in order jointly to put forward candidates. A political party may be part of only one electoral coalition.
2. Election activities on behalf of an electoral coalition shall be performed by an electoral committee of the coalition, formed by bodies of the political parties authorised to represent each party externally.’
17. Article 89(1) of the Electoral Code provides:
‘A minimum of 15 nationals with the right to vote may form a voters’ electoral committee.’
18. Article 117(1) of the same code provides:
‘Electoral committees whose candidates have been registered shall, from the 15th day preceding polling day until the end of the election campaign, be entitled to have their electoral programme broadcast on public radio and television channels, at the broadcasters’ expense.’
19. Article 119(1) of the Electoral Code provides:
‘Notwithstanding the right referred to in Article 117(1), each electoral committee may, from the date of receipt by the competent electoral authority of the notice of the establishment of the committee until the end of the election campaign, have its electoral programme broadcast for a fee on public and private radio and television channels.’
20. Under Article 126 of that code:
‘Expenses incurred by electoral committees for election purposes shall be covered from their own resources.’
21. Article 130 of that code provides:
‘1. Liability for the financial obligations of the electoral committee shall be borne by the financial representative.
2. No debt may be incurred in the name and on behalf of the electoral committee without the written consent of the financial representative.
3. Where the assets available to the financial representative are not sufficient to meet the claims against the electoral committee:
(1) liability for the financial commitments of the electoral committee of a political party or of an organisation shall rest with the political party or the organisation which established the committee;
(2) liability for the financial commitments of an electoral committee of a coalition shall rest jointly and severally with the political parties which make up that coalition;
(3) liability for the financial commitments of a voters’ electoral committee shall rest jointly and severally with the members of the committee.
…’
22. Article 132 of that code states:
‘1. The financial resources of the electoral committee of a political party may come only from that party’s election fund, constituted in accordance with the provisions of the [Law on Political Parties].
2. The financial resources of an electoral committee of a coalition may come only from the election funds of the political parties which make up that coalition.
3. The financial resources of
(1) the electoral committee of an organisation,
(2) a voters’ electoral committee
may come only from contributions of Polish nationals who are permanently resident in the territory of the Republic of Poland, and from bank loans taken out solely for election purposes.
…’
23. Article 133 of the Electoral Code provides:
‘1. The electoral committee of a political party or of a coalition may use, free of charge, the premises and the office equipment of the political party or parties during the election campaign.
2. A voters’ electoral committee may use, free of charge, the premises and the office equipment of a member of that committee during the election campaign.
3. The electoral committee of an organisation may use, free of charge, the premises and the office equipment of that organisation during the election campaign.’
24. Under Article 341 of that code:
‘The following shall be entitled to put forward candidates at elections to the European Parliament:
(1) a political party’s electoral committee;
(2) a coalition’s electoral committee;
(3) a voters’ electoral committee.’
25. In accordance with Article 343 of that code, the candidate list must be supported by the signatures of at least 10 000 voters who are permanently resident in the electoral constituency concerned.
26. As regards the elections of representatives to local government, Article 399 of that code provides that electoral committees of political parties, of coalitions, of organisations and of voters are entitled to put forward candidates for the office of council member.
27. Pursuant to Article 400(1) of the Electoral Code, the electoral committee of a political party is obliged to give notice of its establishment to the Państwowa Komisja Wyborcza (National Electoral Commission, Poland) from the date of publication of the regulation on the holding of elections up until the 55th day preceding polling day.
28. Article 401(1) of that code provides that the electoral committee of a coalition may be established over the period from the date of publication of the regulation on the holding of elections up until the 55th day preceding polling day; the election representative of the electoral committee of the coalition is to notify the National Electoral Commission no later than the 55th day preceding polling day.
29. In accordance with Article 402(1) of the Electoral Code, the electoral committee of an organisation is required to give notice of its establishment to the relevant electoral commissioner on the basis of that organisation’s registered office from the date of publication of the regulation on the holding of elections up until the 55th day preceding polling day.
30. Article 403(1) to (3) of that code provides:
‘1. A minimum of 15 nationals with the right to vote may form a voters’ electoral committee.
2. After collecting at least 1 000 signatures of nationals with the right to vote who support the creation of a voters’ electoral committee, the election representative shall give notice to the National Electoral Commission of the establishment of that committee, subject to paragraph 3. Notice may be given no later than the 55th day preceding polling day.
3. If the voters’ electoral committee has been created for the purpose of putting forward candidates in a single voivodeship:
(1) the number of nationals referred to in paragraph 1 shall be five;
(2) the number of signatures referred to in paragraph 2 shall be 20, and the notice referred to in paragraph 2 shall be addressed to the relevant electoral commissioner on the basis of the committee’s registered office.’
3. The Law on Broadcasting
31. The ustawa o radiofonii i telewizji (Law on Broadcasting) (9) of 29 December 1992 provides, in Article 23(1) thereof, that public radio and television channels are to give political parties the opportunity to set out their views on key matters in the field of public affairs.
4. The Law on Associations
32. In accordance with Article 4(1) of the ustawa Prawo o stowarzyszeniach (Law on Associations) (10) of 7 April 1989, foreign nationals residing in Poland are also able to come together in associations.
III. The pre-litigation procedure
33. On 16 April 2012, in the context of an EU Pilot project, the Commission informed the Polish authorities of its preliminary opinion concerning the incompatibility with Article 22 TFEU of the Polish legislation which reserves for Polish nationals the right to found a political party and the right to become members of a political party.
34. Having received no response, on 26 April 2013 the Commission sent a letter of formal notice to the Republic of Poland with the same subject matter. In its reply of 24 July 2013, that Member State contended that it had not committed any infringement of EU law.
35. On 22 April 2014, the Commission issued a reasoned opinion in which it maintained that the Republic of Poland had failed to fulfil its obligations under Article 22 TFEU by denying ‘mobile’ Union citizens the right to found a political party and the right to become members of a political party.
36. In its reply of 16 June 2014, the Republic of Poland argued that Article 22 TFEU does not confer on ‘mobile’ Union citizens the right to found a political party and to become members of a political party in their Member State of residence.
37. By letter of 2 December 2020, the European Commissioner for Justice asked the Republic of Poland to inform him of any change in its position or of legislative amendments adopted with a view to guaranteeing the rights at issue for ‘mobile’ Union citizens.
38. After the Polish authorities, by letter of 26 January 2021, informed the Commission that they stood by their view, the Commission decided to bring the present action, restricting its subject matter to the limitation of the status of member of a political party to Polish nationals only. The Commission stated that, with regard to the question of the foundation of a political party by ‘mobile’ Union citizens, which was raised during the earlier stages of the procedure, it reserved the option of raising that matter in separate proceedings.
IV. Forms of order sought
39. By its application, the Commission claims that the Court should:
– declare that, ‘by denying citizens of the Union who do not have Polish nationality but who reside in the Republic of Poland the right to be members of a political party, [that Member State] has failed to fulfil its obligations under Article 22 [TFEU]’; and
– order the Republic of Poland to pay the costs.
40. The Republic of Poland contends that the action should be dismissed as unfounded and the Commission ordered to pay the costs.
41. By decision of the President of the Court of 10 May 2022, the Czech Republic was granted leave to intervene in support of the form of order sought by the Republic of Poland.
42. In its statement in intervention, the Czech Republic raised a plea of inadmissibility, expanded upon some of the arguments raised by the Republic of Poland and responded to certain arguments put forward by the Commission.
43. The Commission concludes its observations on that statement in intervention, which are restricted to new issues, by maintaining the form of order sought in its application.
V. Analysis
A. The plea of inadmissibility raised by the Czech Republic
1. Arguments of the parties
44. Unlike the Republic of Poland, the Czech Republic contends in its statement in intervention that the action for failure to fulfil obligations is inadmissible because it is unclear upon which provisions that action is based. That Member State argues that, while the Commission has asserted in the grounds of its application that there is an infringement of Article 22 TFEU, it has referred also to Article 20(2)(b) TFEU and to Articles 11 and 12 of the Charter.
45. The Commission submits that it unambiguously claims that the prohibition of ‘mobile’ Union citizens from becoming members of a party is incompatible with Article 22 TFEU. The Republic of Poland has fully understood that fact and, moreover, clearly defends itself against that claim in its pleadings. The Commission states, first of all, that a correct interpretation of the basis for its action requires that account be taken systematically of other provisions of primary law. Next, it has also made reference to the Charter so as to assert that, where Member States lay down rules governing the exercise of the political rights conferred by Article 22 TFEU, they are implementing EU law and must therefore respect fundamental rights. Lastly, that does not call into question the scope of the present case, as reflected in the application, namely that the national legislation at issue, which directly discriminates on the grounds of nationality, must be regarded as an infringement of Article 22 TFEU.
2. Assessment
46. The fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union provides that ‘an application to intervene shall be limited to supporting the form of order sought by one of the parties’. (11) Consequently, the plea raised by the Czech Republic is inadmissible, (12) since the Republic of Poland has not claimed that the action is inadmissible.
47. Nevertheless, in the light of the requirements set out in Article 120(c) of the Rules of Procedure of the Court of Justice and the Court’s case-law, (13) it is necessary to examine whether the Commission, in its action, has set out the complaints coherently and precisely, so that the Republic of Poland and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if that Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged.
48. In the present case, as the Commission claims, it is clear from the grounds of the application that Article 22 TFEU, upon which the application is based, must be interpreted by putting it into the context defined by Article 20(2)(b) TFEU and by taking into consideration the links to Articles 11 and 12 of the Charter. It does not follow, therefore, that the Commission is alleging an infringement of those provisions. (14)
B. Substance
1. Arguments of the parties
(a) The Commission
(1) The basis of the action for failure to fulfil obligations
49. The Commission has based its application on Article 22 TFEU on the following grounds:
– it confers on ‘mobile’ Union citizens the right to exercise electoral rights in municipal elections and elections to the European Parliament under the same conditions as nationals of the Member State in which those citizens reside;
– it establishes a general and universal principle of equal treatment, which is not restricted merely to the practical, administrative and procedural rules set out in particular in Directives 93/109 and 94/80, and which does not require that all specific aspects of access to elections be laid down in detail;
– accordingly, any measure based on a condition of nationality which prevents ‘mobile’ Union citizens from exercising their right to stand as a candidate under the same conditions as nationals of the Member State in which those citizens reside is prohibited; and
– the inability of ‘mobile’ Union citizens to become members of a political party, pursuant to Article 2(1) of the Law on Political Parties, which deprives them of access to a fundamental entity for the purpose of participating in elections, is detrimental to their prospects of being elected as compared with Polish nationals. It therefore deprives those citizens of the intended effect of the rights conferred by the Treaty based on those citizens’ integration in the Member State of residence. (15)
50. The Commission maintains that it does not claim that EU law affords ‘mobile’ Union citizens a right to participate in political life. It does, by contrast, refer to the fundamental role played by political parties in the electoral systems and political life in the Member States and, more generally, their contribution to representative democracy. It relies, in that regard, on the case-law of the European Court of Human Rights (16) and the Guidelines on Political Party Regulation of the European Commission for Democracy through Law (Venice Commission). (17)
51. It therefore states that a ‘mobile’ Union citizen cannot be a candidate in elections in his or her Member State of residence under the same conditions as the nationals of that State if he or she cannot stand in those elections as a member of a national political party.
52. The Commission claims, in that regard, that, for a candidate in elections, membership of a political party provides many specific advantages, which are without parallel outside such a party, contrary to the Republic of Poland’s analysis of certain national provisions relating to organisations. (18) Those advantages are as follows:
– the public’s familiarity with the party’s name, its historical roots and its reputation, as well as the links to socio-organisational structures (for example, trade unions, which might have historical ties to a party, youth organisations and so forth);
– use of the political party’s electoral machinery and its human and financial resources; and
– the specific prerogatives conferred by national law in terms of access to financing or to the media and in terms of taxation.
53. On the issue of financing in Poland, the Commission states that political parties which receive a certain number of votes in elections to the Lower Chamber of the Polish Parliament are entitled to a subsidy during the legislative period, in accordance with Article 28 of the Law on Political Parties. They have access to sources of funding, in accordance with Article 24 of that law, that are a lot higher in number than those available to the electoral committees of voters or organisations, and that may be used inter alia to finance the election campaign from their election funds, as supplemented by any donations, legacies and bequests pursuant to Article 36 of that law.
54. In that regard, the Commission refers to two further restrictions specific to electoral committees, that is to say:
– in the case of municipal elections, voters wishing to form an electoral committee must collect at least 1 000 signatures, pursuant to Article 403 of the Electoral Code; and
– non-Polish candidates are denied the right to contribute financially to the electoral committees of organisations or voters, with the result that they cannot transfer funds to the committee, even for their own campaign; that restriction has the effect of further reducing their prospects of being elected. (19)
55. As regards the media, the Commission maintains that political parties, as a general rule, have more significant financial resources to devote to activities intended to promote their candidates, to buy advertising on private channels or to be active on social media. In addition, in accordance with Article 5 of the Law on Political Parties and Article 23 of the Law on Broadcasting, political parties have guaranteed permanent access to the public service broadcasters and can therefore set out their views on public radio and television channels on key matters in the field of public affairs, even if those matters do not relate to a specific election campaign. According to the Commission, all those resources increase the prospects of the members of a party of being well known and of broadcasting the content of their election programme widely.
56. Furthermore, the Commission submits that the fact that there are some opinion polls that appear to show that voters are more often guided when casting their vote by the personality of the candidate than by his or her membership of a political party cannot invalidate the finding that Polish law gives rise to direct discrimination on grounds of nationality with respect to ‘mobile’ Union citizens wishing to stand in municipal elections or elections to the European Parliament. Specifically, account should also be taken of the fact that those citizens may be less well known in their host country.
(2) Member States’ exercise of their competence
57. The Commission states that, according to the Court’s settled case-law:
– Member States must exercise their powers in compliance with EU law; (20) and
– the application of a national measure which is likely to obstruct the exercise of the fundamental freedoms guaranteed by the Treaty can be justified in the light of EU law only if the application of that measure does not result in an infringement of the fundamental rights protected in EU law. (21)
58. The Commission submits, in that regard, that, in adopting provisions on the ability to stand as a candidate in municipal elections and elections to the European Parliament, the Republic of Poland must take into account the obligations arising from Article 20(2)(b) and Article 22 TFEU, with the result that EU law applies for the purposes of Article 51(1) of the Charter. (22)
59. Membership of a political party is an expression of the exercise of the freedom of association and the freedom of expression, which are enshrined respectively in Article 12(1) (23) and Article 11 of the Charter. According to the Commission, the scope of and the requirements laid down in Article 20(2)(b) and Article 22 TFEU should be interpreted by taking into account those provisions of the Charter. (24)
60. Thus, the Commission argues that denying the right to become a member of a political party constitutes a clear demonstration of a restriction of the fundamental right of association. In accordance with Article 52(3) of the Charter, such a restriction cannot go further than a restriction permitted under the ECHR. It also states that the case-law of the European Court of Human Rights recognises the specific status of Member States of the European Union. (25)
61. In addition, the Commission maintains that the inclusion of political rights in the provisions of the FEU Treaty on citizenship is intended to ensure that ‘mobile’ Union citizens can be integrated and play an active role in the Member State in which they reside, in the context of municipal elections and elections to the European Parliament; that negates any notion of interference in domestic affairs.
62. Moreover, Member States have the option of reserving for their nationals the right to stand as candidates in national (or, in some cases, regional) elections, which satisfies the principle of not undermining the national identity inherent in fundamental structures, both political and constitutional. In that regard, the Commission states that the Republic of Poland has not adduced any evidence of such an adverse effect, even though, aside from it and the Czech Republic, no other Member State restricts the conditions of membership of a political party. Furthermore, the Commission argues against the claim that it is seeking to establish an unrestricted right to participate in the political life of the Member State of residence. It submits that there is nothing to prevent the scope of ‘mobile’ Union citizens’ participation in political parties from being restricted, for example when putting forward candidates for national legislative elections.
63. Lastly, the fact that candidates who are not members of a political party can be included on the list of a party’s electoral committee is not such as to re-establish their equality with candidates who are party members, since it is sufficient to state that the latter stand as members of a party whereas the former are dependent on an agreement concluded following a favourable decision given by the party’s members, which the former cannot influence ‘internally’.
(b) The Republic of Poland
64. The Republic of Poland puts forward three series of arguments.
(1) The wording of Article 22 TFEU does not confer the right to become a member of a political party
65. According to the Republic of Poland, Article 22 TFEU is not directly applicable since its two paragraphs require the adoption of supplementary legislative acts which are not intended to achieve full harmonisation of the Member States’ electoral systems. (26) That article is concerned solely with the formal requirements to stand as a candidate and not the actual chances of being elected in a Member State. Extending the interpretation of Article 22 TFEU to encompass the right to become a member of a political party would be contrary to the principle of conferral referred to in Article 5(2) and Article 4(1) and (2) TEU.
(2) The restriction of membership of a political party is justified by the concern to limit the sphere of influence of ‘mobile’ Union citizens on national political life
66. The Republic of Poland submits that, given both the role of parties in matters of public policy and the objective of exercising public authority pursued by them, ‘mobile’ Union citizens’ membership of a political party is such as to affect in particular the results of legislative or presidential elections, which would be incompatible with Article 22 TFEU, the scope of which is limited to certain elections, and with Article 4(2) TEU.
67. In that regard, it contends that, as far as membership of political parties is concerned, Article 11(1) of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) guarantees the freedom to found political parties and the freedom of their activities, it being understood that political parties bring together, in observance with the principle of voluntary participation and equality, Polish citizens with a view to influencing, by democratic means, State policy.
68. The Republic of Poland contests the Commission’s analysis that denying the right to become a member of a political party constitutes a breach of the freedom of association enshrined in Article 12 of the Charter and Article 11 ECHR. It argues, first, that the States parties to that convention may impose restrictions on the political activity of aliens. (27) Second, in the absence of any provision of EU law on the right to become a member of a political party, Article 12 of the Charter does not apply.
(3) Candidates who are not members of a political party are not especially disadvantaged as compared with party members
69. The Republic of Poland argues, first, that Polish law does not make the possibility of standing as a candidate in municipal elections or elections to the European Parliament subject to membership of a political party.
70. Second, according to the Republic of Poland, the Commission should substantiate its claims that membership of a political party enhances the prospects of being elected in municipal elections or elections to the European Parliament, given that studies show that the choice made by voters is, on the contrary, guided by how voters perceive candidates, according to their participation in social and political life, (28) or, in other words, their reputation. Furthermore, the example given by the Commission, in which ‘mobile’ Union citizens come together in an association that can hold views similar to those of a political party, is detached from reality, since it assumes that that association would have no Polish members.
71. Third, the Republic of Poland claims that a ‘mobile’ Union citizen can be included on the list of candidates put forward by a political party or a coalition of parties. (29)
72. Fourth, the Republic of Poland states, in response to the Commission’s arguments relating to funding, that the Commission disregards the thresholds for expenditure imposed by the Electoral Code on the electoral committees of a party or of a coalition when it claims that, by comparison, electoral committees formed by voters or by organisations are placed at a disadvantage financially. Moreover, while it is true that only Polish nationals may contribute to the financing of a political party, they are required, in principle, to be permanently resident in Poland, in accordance with Article 25(1) of the Law on Political Parties.
73. Fifth, according to the Republic of Poland, while the requirement to collect 1 000 signatures, save in certain situations, (30) in order to form an electoral committee is not imposed on the electoral committees of parties, coalitions and organisations, ‘mobile’ Union citizens have the option of forming electoral committees of organisations, within which they may stand as candidates and benefit from the organisation’s infrastructure.
74. Sixth, as regards the media, the Republic of Poland states, first of all, that media access is governed, without any distinction being drawn between electoral committees, by Article 116 et seq. of the Electoral Code and by specific provisions of that code relating to the various elections. Next, as regards the right to set out views on public channels outside the election campaign period, the Republic of Poland states that that is the result of the role played by parties in the State’s political system and that Member States have exclusive competence in that matter. Lastly, it refers to the fact that access to social media, which is influential during election campaigns and outside them, is equal.
(c) The specific arguments raised by the Czech Republic, the intervener, and the Commission’s observations in response
(1) The scope of Article 22 TFEU
(i) The Czech Republic’s arguments
75. The Czech Republic argues that it follows from Directives 93/109 and 94/80, which guide the interpretation of Article 22 TFEU, that the nationality requirement is dealt with in relation to the right to vote and to stand as a candidate and not in relation to other factors, including the conditions for membership of a political party. According to it, that analysis is supported by the case-law of the Court. (31)
(ii) The Commission’s observations
76. The Commission contends that, while secondary law does indeed govern certain aspects of the rights of citizens of the Union in relation to elections, that secondary law cannot be relied on with a view to limiting the scope of Article 22 TFEU, and, accordingly, that of Article 20(2)(b) TFEU, to specific matters governed by that law. The Treaty defines the permitted scope of secondary law, not the other way around. (32)
(2) The applicable legal basis
(i) The Czech Republic’s arguments
77. The Czech Republic contends that, if EU law were applicable to the present case, the case should be assessed in the light of the general prohibition of discrimination on grounds of nationality contained in Article 18 TFEU, and not in the light of Article 22 TFEU, which lays down a specific prohibition of discrimination relating to the right of ‘mobile’ Union citizens to vote and to stand as candidates in certain elections. Since membership of a political party does not confer the status of candidate in an election on a ‘mobile’ Union citizen, only Article 18 TFEU applies in the absence of such a status. (33)
(ii) The Commission’s observations
78. The Commission contests the relevance of the case-law cited by the Czech Republic in support of its line of argument. The fact that the Court has found there to be discrimination contrary to provisions corresponding to the provisions of Article 18 TFEU does not mean that the discriminatory provisions at issue in the present proceedings, which concern the conditions for exercise of the political rights conferred on ‘mobile’ Union citizens by Article 22 TFEU, cannot be regarded as a failure to comply with the obligation of equal treatment expressly laid down in that provision. The EU legislature clarified in Directive 93/109 that ‘the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence, laid down in [what is now Article 22(2) TFEU], is an instance of the application of the principle of non-discrimination between nationals and non-nationals’. (34) In addition, the interpretation to the effect that the scope of Article 22 TFEU is limited only to citizens who have the status of candidate is contrary to the wording of that provision, which refers to the conditions to stand as a candidate, including the prospects of becoming a candidate and then standing in elections. (35)
(3) Evidence of the alleged failure to fulfil obligations
(i) The Czech Republic’s arguments
79. The Czech Republic submits that, in accordance with settled case-law of the Court, it is for the Commission to establish that obligations have not been fulfilled, and in so doing it may not rely on any presumption. (36) Consequently, the unsubstantiated allegations and presumptions relating to the weak position of ‘mobile’ Union citizens who are not members of a political party set out in the application cannot succeed.
(ii) The Commission’s observations
80. The Commission claims that the alleged discrimination by the Republic of Poland stems directly from binding legal provisions and not from an administrative practice. There is therefore no need to provide the Court with statistical data on the number of ‘mobile’ Union citizens who have de facto been harmed by that discrimination. Nor is that possible, in practice, in a situation, such as the one at hand, in which the discriminatory measure has a deterrent effect. It is impossible to determine precisely how many ‘mobile’ Union citizens have not attempted to stand in elections because they have been deterred from so doing on account of being prohibited from joining a political party. (37)
(4) The limitation of the exercise of the rights conferred by Article 22 TFEU
(i) The Czech Republic’s arguments
81. The Czech Republic criticises the relevance of the case-law cited by the Commission, namely the judgment of 27 April 2006, Commission v Germany, (38) and states that, in any case, the fact that it is impossible for ‘mobile’ Union citizens to become members of political parties does not adversely affect the substance of the electoral rights provided for in Article 22 TFEU and that the Polish legislation allows those rights to be exercised fully.
(ii) The Commission’s observations
82. The Commission maintains that, where Member States establish rules relating to the exercise of the political rights conferred by Article 22 TFEU, they must do so in accordance with the requirements laid down in that provision and with respect for the fundamental rights. The Commission states that it follows from the case-law cited in its application, relating to the obligation on Member States to take account of those rights, that Member States are obliged to exercise their discretion in such a way that respect for those rights is ensured. (39)
(5) The situation in the other Member States
(i) The Czech Republic’s arguments
83. According to the Czech Republic, the Commission’s argument that only two Member States provide for restrictions on membership of political parties is irrelevant for the purpose of interpreting Article 22 TFEU. On the contrary, that argument confirms that the Commission is seeking to provide a different interpretation of that provision, whose wording has remained unchanged for a long time, on the basis of a development in the social context. However, such a development can merely be a reason for considering an amendment to the provision at issue and not a fundamental change in its interpretation.
(ii) The Commission’s observations
84. According to the Commission, that argument appears unintelligible. On the contrary, the fact that the vast majority of Member States do not restrict access to membership of a political party for ‘mobile’ Union citizens demonstrates the relevance of its interpretation.
2. Assessment
85. This action concerns the consequences for the ability to stand as a candidate in municipal elections and elections to the European Parliament resulting from the right to become a member of a political party, which, under Polish law, is not granted to ‘mobile’ Union citizens. Does that prohibition have the effect, as the Commission submits, that those citizens do not exercise their right to stand as candidates in those elections ‘under the same conditions’ as Polish nationals, within the meaning of Article 22 TFEU?
86. As EU law currently stands, membership of a political party is a matter falling within the competence of the Member States. However, it is clear from the settled case-law of the Court that, when exercising their competence, Member States are required to comply with the obligations deriving from EU law. (40)
87. It is therefore necessary to determine which requirements flow from Article 22 TFEU, upon which the Commission relies, and whether it can validly be argued that those requirements are liable to affect the national identity of a Member State, within the meaning of Article 4(2) TEU.
(a) The scope of Article 22 TFEU
88. According to its wording, the scope of Article 22 TFEU is restricted only to those elections to which it refers, namely municipal elections (paragraph 1) and elections to the European Parliament (paragraph 2), thereby excluding legislative or presidential elections.
89. By this action, the Court is asked to clarify whether the principle of equality set out in Article 22 TFEU must be understood as covering all the conditions under which any ‘mobile’ Union citizen may stand in elections or whether it is concerned only with the legal conditions to stand as a candidate.
90. It is therefore necessary to define the scope of the discretion afforded to the Member States, given that the detailed arrangements for the exercise of the right to vote and to stand as a candidate in elections to the European Parliament (41) and in municipal elections are laid down, respectively, in Directives 93/109 and 94/80.
91. The Republic of Poland’s argument based on a literal interpretation of Article 22 TFEU, to the effect that those directives restrict the principle of equality set out in that provision, must be dismissed from the outset because of the hierarchy of norms, as rightly submitted by the Commission, under which secondary law cannot restrict a right recognised by the Treaty. (42)
92. Thus, those directives simply determine a minimum framework within which concrete effect is given to the principle of equality in connection with the exercise of the right to vote and to stand as a candidate. (43)
93. However, first and foremost, the origin of Article 22 TFEU and the development of the legal framework of which the content of that provision forms part demonstrate, most clearly since the Treaty of Lisbon, that that provision must be interpreted by taking into account the two pillars upon which it is based, that is to say, citizenship of the Union and representative democracy.
94. With regard, in the first place, to citizenship of the Union, the Commission rightly relies on the application of Article 20(2)(b) TFEU, which states that that citizenship (44) affords, amongst other rights, enjoyment of the right to vote and to stand as a candidate in elections to the European Parliament and in municipal elections in the Member State of residence, under the same conditions as the nationals of that State.
95. That connection with citizenship has existed in primary law since the Treaty of Maastricht, signed on 7 February 1992. (45) From its inception, it has been attached to the right to move and reside freely within the territory of the Member States (46) and to the principle of non-discrimination on grounds of nationality, which is a component of each of the freedoms of movement.
96. However, that connection took on a specific dimension as a result of the amendments introduced by the Treaty of Lisbon because of the will of the Member States inter alia to give pre-eminent status to citizenship. First, the EU Treaty was supplemented by a Title II, entitled ‘Provisions on democratic principles’, which includes Article 9, under which, ‘in all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship’. The rights attached to citizenship of the Union are set out in Articles 20 to 24 TFEU, which correspond to Articles 17 to 21 EC. The rights of ‘mobile’ Union citizens in respect of elections to the European Parliament and municipal elections are laid down in Article 20(2)(b) and Article 22 TFEU.
97. Second, each of those rights also appears in Title V of the Charter, (47) entitled ‘Citizens’ rights’. The rights of ‘mobile’ Union citizens in respect of elections to the European Parliament as well as municipal elections are enshrined in that title, in Articles 39 (48) and 40 (49) thereof, in general terms.
98. Accordingly, on the entry into force of the Treaty of Lisbon, the electoral rights of citizens of the Union set out in Article 22 TFEU must be viewed as fundamental rights and as the expression of the principle of equal treatment, which is inherent in the fundamental status of nationals of the Member States. (50)
99. Their restatement in the EU Treaty and in the Charter is also intended to establish links with other rights or principles set out therein, such as equality and democracy, which are values common to the Member States upon which the European Union is founded. (51)
100. With regard, in the second place, to democratic principles, since the Treaty of Lisbon, Article 10 TEU has stated, in paragraph 1, that ‘the functioning of the Union shall be founded on representative democracy’ (52) and has recognised, in paragraphs 2 and 3, the right of Union citizens to be represented directly in the European Parliament and to participate in the democratic life of the European Union.
101. Thus, given the link effected by the Treaty of Lisbon, at least in relation to elections to the European Parliament, between the rights to vote and to stand as a candidate attached to citizenship of the Union and democratic principles within the Union, the objective of guaranteeing that ‘mobile’ Union citizens are effectively represented is clearly expressed.
102. The Commission rightly argues that such representation is the corollary to the integration of ‘mobile’ Union citizens in their State of residence, as is made clear in the recitals of Directives 93/109 and 94/80. (53) At the local level more specifically, the political rights granted to such citizens are intended to promote the social inclusion of those citizens who have chosen to reside in a Member State of which they are not nationals. With that in mind, attention must likewise be drawn to the objective recalled in those recitals, that is to say, the objective of ‘avoid[ing] any polarisation between lists of national and non-national candidates’.
103. I am therefore of the view that the Commission is entitled to claim, on the basis of Article 22 TFEU, as viewed in the context of the rights attached to citizenship of the Union and the democratic principles set out in the Treaties, that equality of the electoral rights of citizens of the Union must be guaranteed, without it being necessary to draw up an indicative, or exhaustive, list of criteria, by the general obligation not to discourage participation in elections by reason of various factors. (54)
104. In other words, Article 22 TFEU must be understood to the effect that any barrier to the exercise of electoral rights outside the respective framework determined by Directives 93/109 and 94/80, on grounds of nationality, constitutes discrimination within the scope of the Treaties, (55) which is prohibited. (56)
105. In those circumstances, consideration must now be given to the Commission’s analysis that the exercise of those rights can be hindered by it being impossible to become a member of a political party.
106. In the present case, the parties to the proceedings agree with the finding that the prospects of securing elected office at local or EU level depend upon the degree of participation in the democratic life of the Member State in which the ‘mobile’ Union citizens are candidates, regardless of whether they are candidates of a party or independents.
107. However, I am of the view, like the Commission, which relies on the Venice Commission Guidelines, (57) which the Republic of Poland does not criticise, that access to the resources available to political parties is a key component in promoting candidates at elections (58) at the municipal level or to the European Parliament.
108. In addition, as the Commission has argued, relying on the case-law of the European Court of Human Rights, political parties play a fundamental role in the exercise of political rights in the Member States. (59) At EU level, that role is clearly acknowledged in Article 10(4) TEU, (60) to which Article 12(2) of the Charter corresponds. (61)
109. There is a manifest link between Article 12(2) of the Charter and Articles 39 and 40 thereof. (62) In those circumstances and for the reasons which I have already set out, (63) and in strict compliance with the principle of conferral, as laid down in Article 15(2) TEU, each Member State must take account of those provisions, in order to guarantee the exercise of the rights conferred by Article 22 TFEU.
110. Accordingly, I share the Commission’s view that its action based on Article 22 TFEU must be assessed in the light of the right to freedom of association enshrined in Article 12(1) of the Charter, in conjunction with Article 11 thereof (64) on the freedom of expression. Those freedoms enjoy particular protection on account of their fundamental role in citizens’ participation in democracy. (65) Article 12(2) of the Charter contains an aspect of that link relating to EU political parties.
111. That right to freedom of association corresponds to the right guaranteed in Article 11(1) ECHR and must therefore be regarded as having the same meaning and scope as the latter, in accordance with Article 52(3) of the Charter. (66)
112. It is apparent from the case-law of the European Court of Human Rights that the right to freedom of association is one of the essential foundations of a democratic and pluralist society, in that it allows citizens to act collectively in areas of common interest and, in so doing, to contribute to the proper functioning of public life. (67)
113. Thus, it is also in the light of those provisions of the EU Treaty and of the Charter that it is necessary to assess whether, as the Commission submits, the legal impossibility for ‘mobile’ Union citizens to become members of a political party in Poland jeopardises the equality, as compared to Polish nationals, of the conditions governing their ability to stand as candidates in municipal elections and elections to the European Parliament, in particular in so far as it significantly reduces their prospects of being elected.
(b) The existence of a limitation on the exercise of electoral rights
114. According to the Republic of Poland, supported by the Czech Republic, the Commission has failed to adduce evidence of the practical effects of the legal provisions at issue on the ability of ‘mobile’ Union citizens to stand for election.
115. The Court has held that the existence of a failure to fulfil obligations may be proved, where it has its origin in the adoption of a legislative or regulatory measure whose existence and application are not contested, by means of a legal analysis of the provisions of that measure. (68)
116. In the present case, the failure to fulfil obligations for which the Commission holds the Republic of Poland responsible has its origin in the adoption of a legislative measure whose existence and application are not contested by that Member State and whose provisions are the subject of a legal analysis in the application initiating proceedings.
117. In addition, the issue here involves assessing to what extent that legislation has deterrent effects on potential candidacies at elections, which cannot be quantified.
118. Accordingly, the Republic of Poland is not justified in alleging that the Commission has failed to adduce evidence of the practical effects, on the electoral rights of ‘mobile’ Union citizens, of the law which restricts membership of a political party to Polish nationals.
119. Turning to the Polish law at issue, which reserves the right to become a member of a political party to Polish nationals, the unequal treatment vis-à-vis electoral rights stems, in my view, from the mere finding that Polish nationals have an option open to them when standing as candidates in municipal elections or elections to the European Parliament, that is to say, they can stand as members of a political party or as independents, whereas only the latter pathway is available to ‘mobile’ Union citizens. As I have previously set out, access to political parties allows electoral rights to be exercised more effectively with a view to participating in democratic life.
120. None of the palliative measures to which the Republic of Poland refers can alter that assessment. In particular, the fact that ‘mobile’ Union citizens may be allowed to be candidates on a party’s list is not such as to offset that limitation of their scope of action, since they are required to satisfy specific criteria, as the Commission has set out. In addition, the extent of the role played by organisations supporting persons who are not members of a political party, on which the Republic of Poland has relied, is insignificant as compared with the extent of a political party’s role.
121. Furthermore, the Commission has proved the existence of an inequality concerning the financing of electoral committees arising as a direct result of the legal provisions, an inequality regarded as a ‘manifest obstacle’ by the authors of the report cited by the Commission. (69)
122. I therefore propose that the Court find that the Commission has sufficiently established the existence of a limitation on the exercise of electoral rights to the detriment of ‘mobile’ Union citizens when placed in the same position as Polish nationals.
123. It follows from the foregoing that, by adopting the national provisions at issue in the exercise of its competence, the Republic of Poland has failed to comply with the requirements arising under EU law, namely those in Article 22 TFEU, which must be read in conjunction with Articles 12, 39 and 40 of the Charter.
(c) The justification for the restriction on membership of a political party
124. The Republic of Poland justifies the difference in treatment of ‘mobile’ Union citizens, which stems from its choice to reserve membership of a political party for its nationals, on grounds based on the Treaty, in particular those related to respect for national identity.
125. That Member State relies on Article 4(2) TEU and contends, in essence, that EU law as interpreted by the Commission would mean that ‘mobile’ Union citizens would participate in public life at a different level from that allowed by the Member States and, in particular, would enable them to exercise influence over national decisions through the vector of political parties.
126. It should be recalled that, under Article 4(2) TEU, the Union is to respect the national identity of its Member States, which is inherent in their fundamental structures, both political and constitutional.
127. It is true that the organisation of national political life, to which political parties contribute, is part of the national identity within the meaning of Article 4(2) TEU. In that regard, respect for that identity is expressed by limiting the participation of ‘mobile’ Union citizens to elections to the European Parliament and municipal elections only, with no aim of harmonising Member States’ electoral systems. (70) The EU legislature also took into consideration the impact of facilitated access to such elections on the balance of political life in the Member State of residence by providing that certain defined (71) and transitional arrangements may be adopted by Member States in favour of their nationals.
128. As for the question of the impact at national level of ‘mobile’ Union citizens becoming members of political parties owing to the potential effects within those parties, I would observe that, in the view of all the parties to these proceedings, that is a matter for those political parties. They are free to establish their organisation and rules for selecting candidates. (72) I would note that the Republic of Poland merely asserts, without proving its assertion, that it is impossible to limit the scope of activities of party members who are ‘mobile’ Union citizens to certain elections.
129. I therefore share the Commission’s view that allowing ‘mobile’ Union citizens to become members of a political party with a view to guaranteeing that those citizens’ rights are effective in municipal and European Parliament elections is not such as to undermine the national identity of the Republic of Poland.
130. In addition, assuming that such harm were established, Article 4(2) TEU must be read taking into account provisions of the same rank. (73)
131. Accordingly, Article 4(2) TEU cannot exempt Member States from respecting the fundamental rights reaffirmed in the Charter, (74) which include the principle of democracy and the principle of equality, which is set out in Article 22 TFEU (75) and conferred by citizenship of the Union, in connection with the exercise of the right to stand as a candidate in municipal elections and elections to the European Parliament. Those principles form part of the founding values of the European Union. (76)
132. In the light of all those considerations, I propose that the Court should find that the Commission’s action is well founded.
VI. Costs
133. Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since I consider that the Court should grant the form of order sought by the Commission, the Republic of Poland should be ordered to pay the costs.
134. In accordance with Article 140(1) of the Rules of Procedure, the Czech Republic should bear its own costs.
VII. Conclusion
135. In the light of the foregoing considerations, I propose that the Court should rule as follows:
(1) By denying citizens of the Union who are not Polish nationals but who are resident in the Republic of Poland the right to become members of a political party, the Republic of Poland has failed to fulfil its obligations under Article 22 TFEU.
(2) The Republic of Poland is ordered to pay the costs.
(3) The Czech Republic shall bear its own costs.