Can someone completely lose the “European” right to vote? The answer is yes

On 23 June 2016, all the voters in United Kingdom were called to the polls: “Should the United Kingdom remain a member of the European Union or leave the European Union?”.

The victory of the leave side caused a political earthquake that created volatility in financial markets, a political crisis and a possible constitutional crisis caused by the reluctance of Scotland and Northern Ireland, respectively with 62,0% and 55,8% for the remain side, to leave the European Union; the leave side won with 17,410,742 voters (51.9% of the total), on the opposite side 16,141,241 voters (48.1 % of the total) wanted to remain in the EU.

All the European Union members (including, then, the UK) can withdraw from the European Union on the basis of Article 50 of the Treaty on European Union (TEU). It states that the withdrawal from membership should follow a phased approach: the process begins with a Member State’s formal notification to the European Council of its intention to withdrawn, that notification does not have to present precise characteristics, but in accordance with Article 50 must be made in a clear and unambiguous manner. The following stage provides for the European Council the urge to adopt guidelines for negotiations and for the conclusion of an agreement between the EU and the MS that intends to withdraw; the purpose of the agreement is to set the framework for the withdrawal of a Member State and its future relationship with the Union. On the side of the EU, this phase is concluded in accordance with paragraph 3 of Article 218 TFEU: the Commission should submit recommendations to the Council, which shall authorize the opening of negotiations and nominate the Union negotiator. The decision to conclude the agreement is taken by the Council. Article 50 TEU does not require the ratification of the withdrawal agreement by the remaining Member States, in order to defend the voluntary character of the withdrawal.

After the European Council, on 29 March 2017, received the notification from the United Kingdom of its intention to withdraw from the European Union, a corpus of guidelines has been drafted for the negotiations between the EU and UK; these negotiations should have been done in accordance with Article 218 (3) of the Treaty on the Functioning on the European Union (TFEU). On the 22nd of May 2017, the Council adopted a decision authorizing the opening of the negotiations, the text is based on a recommendation presented by the Commission on 3 May 2017 and the guidelines adopted by the European Council on 29 April 2017. Negotiations officially started on 19 June 2017, three negotiating groups were established: one for the rights of EU citizens living in Britain and vice versa, one for Britain’s financial obligations to the Union and the last one was dedicated to the border between Ireland and Northern Ireland. During the first days of December 2017, an Agreement in principle was reached: a partial agreement that ensured the absence of hard border in Ireland, protected the rights of UK citizens in the EU and the other way round, and also estimated the financial settlement. This first agreement led the negotiations to the second phase: discuss the future relationship between UK and European Union, a transition period and a trade deal. The final Withdrawal Agreement was ratified by the UK Government on 29 January 2020, and by the Council of the European Union the next day; the United Kingdom’s withdrawal from the EU took effect on 11 p.m. GTM on 31 January 2020, the moment when the Withdrawal Agreement came into force. The agreement covers different fields: citizen’s rights, border arrangements and market regulations, specifically it provided for a transition period until 31 December 2020, during which time the UK remained in the single market while a trade deal was discussed; but if no agreement was reached by this date, UK would have left single market without a trade deal the first day of 2021.

An important implication of the United Kingdom withdrawal that must be considered concerns the rights of the 3 million EU citizens living in the UK and of the 1.3 million UK citizens living all around EU. Despite the guidelines of the European Council claim that the right for every EU citizen to live, to work or to study in any EU Member State is a fundamental aspect of the European Union, the Court of Justice of the European Union, on the 9th of June 2022, decided that all the British citizens lost, due to the exit of the UK, the prerogatives related to European citizenship regarding the right to vote and the right to be a candidate in municipal election in the Member State of residence. This position has been taken in case C-673/20, concerning a British national, EP, married to a French citizen and resident in France since 1984, who never asked/obtained French nationality; in the spirit of the Withdrawal Agreement (WA), EP was removed from the electoral roll of the Commune of Thoux (France), therefore she could not participate in the municipal elections held in France on 15 March 2020. During October 2020, EP presented an application to be re-registered on the electoral roll for non-French citizens of the European Union, the application was refused and the woman brought an action before the Court of Auch, France, to contest that decision. In accordance with the British “15 year Rule” (British citizens living overseas for 15 years or more are ineligible to register to vote in UK), EP cannot take part in election held in United Kingdom, so the woman lost the right to vote and to stand as a candidate both in France and in the United Kingdom. The referring court asks to the Court of Justice if Articles 9 and 50 TEU and Articles 20 to 22 TFEU, read in conjunction with the WA, must be interpreted as meaning that since the withdrawal of United Kingdom on 1 February 2020, British citizens who exercised their right to reside in a Member State before the end of the transition period lose the benefits from the status of citizens of the Union, and specifically if this category of people lose the right to vote and to stand as a candidate in municipal elections in their Member State of residence, even if they are also deprived by the internal law of the State of which they are nationals, of the right to vote in election held by their State. In response the CJEU remarked that from 1 February 2020 the British nationals who transferred their residence to a Member State before the end of the transition no longer enjoy the status of EU citizens, including the cases where they are also deprived of certain rights in the national State in the name of the national law; in the specific case EP has lost the right to vote and to stand as a candidate in France, even though she cannot enjoy these rights in United Kingdom either.

The Court decision is rooted in the principle, specified at the Article 20 TFEU, that the citizenship of the Union requires possession of the nationality of a Member State; this status is not provided for those who are resident in a EU Member State, but are citizen of a third State. With reference to the specific case raised by EP, the Article 22 TFEU states that “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”. Since United Kingdom has been a third State as from 1 February 2020, British citizens, starting from this day, have lost the status of EU citizens, consequently they no longer enjoy, under Article 20 and Article 22 TFEU, the right to vote and to stand in their Member State of residence.

The Court of justice, in the Judgment of the 9 June 2022, paragraph 59, has emphasized that these heavy consequences can be imputed only to the sole sovereign decision taken by the United Kingdom to withdraw from the European Union, by virtue of Article 50 TEU.

The judgment of the CJEU provoked various alarming reactions among the British people living in a MS, it is obvious that after Brexit UK citizens have lost the political rights associated with the EU citizenship: they lost the right to vote for the elections of the European Parliament and the right to adhere to European citizens’ initiatives; but not all the UK nationals residing in the EU will lose the voting rights in local elections after the Court decision. The Withdrawal Agreement does not have the competence to ensure voting rights for UK nationals in the EU, but this competence remains with the specific Member States, political right can be assured by the MS both on the basis of national law or by concluding an international agreement. After Brexit, the United Kingdom has already negotiated bilateral agreement with different EU Member States, (e.g. Spain: the treaty between Madrid and London provides that British citizens living in Spain and Spanish citizens in the UK can participate in local elections; also a bilateral agreement with Portugal secures the rights of Portuguese and British citizens in both States, and other voting accords have been made with Luxembourg and Poland). British nationals maintain the voting rights in EU countries, regardless of a bilateral agreement, only if they have formal citizenship of that country

Nonetheless, it is important to consider those rights linked to the EU citizenship even if their scope of application does not coincide with those people who are EU citizens, ergo these rights are also granted to all the residents on the territory of a Member State; for example, Article 24 of the TFEU states that every resident of a Member State have the right to petition the European Parliament and apply to the Ombudsman, also the Nice Charter (2000) introduced the right to access documents from European Parliament, Council and Commission (Article 42); and right to good administration (Article 41) includes the right of every person to be heard before any individual measures, the right of every person to have access to his file and the obligation of the administration to justify its decision.

Since the British notification of its intention to leave the European Union, the indemnity of EU and UK citizens’ rights has always been a priority: some of the major rights are covered by the withdrawal agreement, in particular the above-mentioned treaty safeguards most of the EU free movement rights for UK citizens in the EU Member States and for EU citizens living in UK. Other benefits derive from the EU free movement rights: UK and EU citizens covered by the withdrawal agreement enjoy the family reunification rights; also, the agreement guarantees for these people and their families, the right to reside in the host State under current EU law. On the contrary voting rights for EU citizen living in UK and for British people resident in a MS, are not object of the withdrawal agreement, so the situation is always been uncertain and depending on the bilateral agreement between UK and each Member State.

As a result, the political rights of millions of people, both British and European, have been uncertain since 2016 and for some of these people the situation is still up in the air.