affiliated to the International Association of Constitutional Law
Political attention over the last few days has shifted towards the composition of the newly elected European Parliament, leaving largely to one side reports that EU citizens were denied a vote during the recent EP election in the UK. While the number of affected citizens remains unclear at the time of writing, the question of whether disenfranchisement based on administrative formalities is compatible with EU and ECHR law remains a pressing one. This post argues that the barring of EU citizens’ ability to vote in EP elections in the UK, due to the requirement to complete a UC1 form in addition to registering to vote, is problematic on two grounds. The first is that it is discriminatory, as it draws an arbitrary distinction premised on nationality. Failing that, the measure is unable to meet the proportionality requirements for legitimate limitations of the right to vote. Both of these claims are derived from the case law of the Strasbourg Court and are rendered stronger by the applicability of EU law in this field, which is underpinned by broader commitments to non-discrimination on grounds of nationality and to ensuring the meaningful effect of EU citizenship. Finally, the post argues that European human rights law does not stop at the determination of the existence of breaches of the right to vote. It requires an investigation of individual complaints and appropriate remedies, as part of the positive obligation to hold a free election. The post thus highlights that the electoral authorities’ next steps are key to guarding against further possible breaches.
Scope of the right to vote of EU citizens in the UK for European Parliament elections
The right to vote is recognised as a fundamental human right in a range of international and regional human rights instruments, including Article 21 UDHR, Article 25 ICCPR, and Article 3 of Protocol 1 ECHR, which protects the right to free elections, including the right to vote, based on the principle of universal suffrage (Mathieu-Mohin and Clerfayt v Belgium, §51). This protection covers elections to the European Parliament (Matthews v the United Kingdom, §45-54). However, the voting process for these elections is more directly protected by EU law. Articles 20(2)(b) and 22(2) TFEU and Article 39(1) of the EU Charter of Fundamental Rights (hereafter ‘EUCFR’ or ‘Charter’) secure the right of EU citizens residing in a Member State other than their own to vote in EP elections ‘under the same conditions as nationals of that State.’ This right is further concretised in Council Directive 93/109/EC. Accordingly, in line with the settled case law of the ECJ, any restrictions of the right to vote in EP elections fall within the scope of EU law (Case C-650/13 Delvigne, §26; Case C‑617/10 Fransson, §19).
Of course, European human rights law does not envisage an absolute right to vote. Both the Convention and the Charter allow for limitations of this right, provided a) that such limitations pursue a legitimate aim prescribed by law in order to protect the interests of a democratic society or the rights of others and b) that the means chosen to achieve the stated aim are necessary and proportionate (Hirst v the United Kingdom, §62 (and the case law cited); Case C-650/13 Delvigne, §46 (and the case law cited)). Article 4 of Directive 93/109/EC specifies a limitation to the right to vote, namely that ‘no person may vote more than once at the same election’. Since it speaks to the very idea of equal universal suffrage (that each vote counts as one, and no vote should count more than others), the limitation clearly pursues a legitimate aim. Nevertheless, both the suitability of the UC1 form as a means of giving effect to that aim and its proportionality can be challenged.
The UC1 form discriminates on grounds of nationality against EU citizens from 24 Member States
The first stumbling block for the UC1 form is that it only applied to certain groups of voters eligible to vote twice and specifically excluded from its scope EU citizens with the nationality of three Member States (Malta, Ireland, and Cyprus).
The difference in treatment between classes of EU citizens was not prescribed by law. Whereas one might argue that the existence of historical links on the part of the United Kingdom with Malta, Ireland, and Cyprus, which also entitles citizens of these countries to participate in national elections, place this group of EU citizens in a different position to citizens of other Member States, this is not a pertinent consideration in respect of the legitimate aim listed in the Directive, i.e. the protection against double voting. Since the possibility of voting twice was still open to this group of EU citizens, the distinction drawn in the UC1 form does not clearly support the stated aim and is, therefore, likely to be considered arbitrary. Useful authority in this regard is offered by Aziz v Cyprus, which concerned the exclusion of Turkish-Cypriots from voting in national elections in Cyprus. In that case, the Strasbourg Court emphasised the need not only to ensure the effective exercise of the right to vote, but also to ensure that its operation is based on the principle of equality, thus finding a violation of both Article 3 of Protocol No. 1 and of Article 14 of the Convention (the protection from discrimination in the exercise of Convention rights).
This aspect of the EU citizens’ case is even stronger under EU law. While it is open to the United Kingdom to allow EU citizens of only some nationalities to participate in national elections, the same is not true for elections to the European Parliament, and indeed for any other area of application of the Treaties (cf. Case C-145/04 Spain v UK, §79). The protection against discrimination and, particularly, discrimination on grounds of nationality, has a privileged status in EU law (see Joined cases 117/76 and 16/77 Ruckdeschel), and is specifically prohibited by Article 18 TFEU and Article 21(2) EUCFR. Since the measure explicitly differentiates between nationalities which are similarly positioned in their ability to vote twice, it constitutes direct discrimination on grounds of nationality, which generally cannot be justified (see, for an example of discrimination on grounds of nationality: Case 293/83 Gravier; see, on the concept of direct discrimination, Case C-177/88 Dekker).
The UC1 form is disproportionate to the aim of preventing double voting
Even in the unlikely event of it being found not to be discriminatory, the operation of the UC1 form went beyond what was necessary to prevent double voting. A series of questions can be raised as regards its compatibility with Article 9 of the Directive, which states that the necessary measures must be taken ‘in order to have [an EU citizen’s name] entered on the electoral roll’ (my emphasis) and only mentions the need for ‘a formal declaration’ against double voting, alongside regular registration documents. It is unclear why the additional form was deemed essential when the Directive does not call for this and while the online registration process already required disclosure of the compulsory information (nationality and intention to exercise the right to vote in the UK, rather than the state of origin). Similarly, it is unclear why the UC1 form entailed a more restrictive submission process than the form for registration: this form could only be sent by post, whereas registration could be completed by post or online. Building the UC1 form into the online registration system or into a single postal form would have prevented confusion and facilitated submission in a manner less restrictive of the right to vote.
Even more problematic was the lack of clarity associated with the UK’s communications in respect of the UC1, which arguably contravened the need stipulated in Articles 11 and 12 of the Directive to notify EU citizens about decisions concerning their registration on the electoral roll and to inform them ‘in good time and in an appropriate manner of the conditions and detailed arrangements for the exercise of the right to vote’, respectively. While an EU citizen who had registered to vote but not completed a UC1 form was still entered into the electoral roll in the UK and notified of their registration, this did not – as the Directive suggests – correspond to the ability to exercise the right to vote in EP elections, for which separate submission of the UC1 was needed. The unusual dissociation of registration from the exercise of the right to vote could be interpreted as actively misleading EU citizens in the UK, where registration is normally the only condition for voting. Moreover, even though the window the national authorities had to make the relevant information available was narrow due to the decision to hold EP elections having been taken late by the UK government, the fact that the deadline for submitting the UC1 form was the same as the deadline for registration (May 7th) could be found to be excessive. It made submission in good time practically impossible for anyone who sought – well within their rights – to register to vote close to this deadline.
The above considerations suggest that, both in virtue of the wording of the Directive and in light of the ECJ’s commitment to ensuring that the rights associated with the ‘fundamental status’ of EU citizenship are meaningful and effective (Case C-184/99 Grzelzcyk, § 31; recently restated in Case C-621/18 Wightman, §64), the UC1 form would fall short of the proportionality requirements established in EU law. In this field in particular, whereas Member States enjoy a degree of discretion as to how they organise their electoral system, they may not impose conditions that ‘curtail the right to vote to such an extent as to impair its very essence and deprive it of effectiveness’ (Case C-145/04 Spain v UK, §94).
This conclusion is also strongly supported by Strasbourg case law. In Georgian Labour Party v. Georgia, the Court found that changes to the electoral process fell within the right to vote in principle and, in finding that the electoral authorities had not violated the right to vote on that occasion, it placed particular emphasis on their active efforts to communicate the requisite obligations. The present situation is markedly different: first, indecisiveness to hold the EP elections in peacetime would likely attract less sympathy from the Court, compared to the Georgian electoral authorities’ efforts to communicate the new rules within a post-revolutionary context. Secondly, the UK authorities’ failure to respond to the issue when it came to their attention, including in a parliamentary debate from 25 April 2019, would weigh heavily against them in the evaluation of the proportionality of the measure. While the Strasbourg Court was not prepared to recognise an unrestricted right of franchise for mobile citizens in its judgment in Shindler v the United Kingdom, in that judgment it did note the particular vulnerability of mobile citizens in accessing representation, thus suggesting that it would take a strong stance on the proportionality of any measures that restrict their right to vote in the limited circumstances in which they are granted it.
The Duties Associated with Investigation of Breaches and the Availability of Effective Remedies
A key question that follows from the above analysis is how the authorities should address possible violations of the right to vote, such as the ones identified above. The ECJ has not yet determined what amounts to an effective remedy for breaches of electoral rights, but the case law of the Strasbourg Court offers some useful insights. The Court has recognised an obligation to ensure the existence of an appropriate system of review of individual complaints in electoral matters as an integral aspect of the positive obligation of contracting parties to ensure free elections under Article 3 of Protocol 1 (Uspaskich v Lithuania, §93). Furthermore, the Strasbourg Court’s case law has supported the idea that every vote must ‘count’, in the sense that it must in principle be capable of ‘influencing the make-up of the legislature’ (Riza and Others v Bulgaria, §148). As such, complaints about disenfranchisement could result in a need to hold fresh elections. Nevertheless, the Court’s position on this point is not clear. Other cases, such as Dupré v France and Davydov and Others v Russia, have emphasised the extent to which the affected votes would have a bearing on the overall composition of the legislature and recognised that temporal and numerical limitations may be placed on the ability to challenge the outcome of an election.
It follows that, while there is no automatic link between breaches of the right to vote and the need to hold a new election, as a minimum standard, a properly conducted inquiry into the election process should establish the extent to which the inability of EU voters duly registered by May 7th to cast a vote could have resulted in a different allocation of seats. In turn, the assessment of what is an appropriate remedy for breaches of the right to vote must take into account the scale and material impact of disenfranchisement. Having said that, if it were asked to provide an interpretation of EU law on this point, the ECJ would be at liberty to offer stronger protection than Strasbourg, in line with Article 52(3) EUCFR.
The above analysis has highlighted that there are important concerns over the compliance of the UC1 form applicable to EU citizens seeking to vote in EP elections in the UK with European human rights law and, indeed, possible breaches of EU citizens’ rights to vote and not to be discriminated against. The post has also highlighted that such breaches entail a corresponding obligation on the part of the UK authorities (and, insofar as the application of EU law is concerned, of EU authorities, too) to investigate the matter impartially and to offer redress. It is an essential tenet of the rule of law that these obligations are taken seriously. Unless they are ‘practical and effective’ (Airey v Ireland, §24), fundamental rights risk becoming reduced to little more than ‘a mere entreaty’ (Opinion of AG Bot in Joined Cases C‑569/16 and C‑570/16 Bauer, §95).
The author would like to thank Professor Virginia Mantouvalou for invaluable comments on an earlier draft.
Eleni Frantziou is Assistant Professor in Public Law and Human Rights at Durham Law School and Co-Director of its Human Rights Centre.
(Suggested citation: E. Frantziou, ‘Administrative Formalities and Collective Disenfranchisement: The Situation of EU Citizens in the UK #DeniedaVote during the European Parliament Elections 2019’, U.K. Const. L. Blog (31st May 2019) (available at https://ukconstitutionallaw.org/))