¹ ECJ 12 September 2006, Case C-145/04, Spain v United Kingdom; ECJ 12 September 2006, Case C-300/04, Eman and Sevinger v College van burgemeester en wethouders van Den Haag. But also see the earlier ECJ case of 9 July 1998, Case C-323/97, Commission v Belgium with regard to municipal elections.

² R (on the application of Chester) v Secretary of State for Justice and McGeoch v The Lord President of the Council and another (Scotland) [2013] UKSC 63.

³ ECJ 6 October 2015, Case 650/13, Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde.

⁴ ECJ 6 October 2015, Case C-362/14, Maximillian Schrems v Data Protection Commissioner.

⁵ Act concerning the election of the representatives of the Assembly by direct universal suffrage annexed to the Council decision of 20 September 1976, as amended and renumbered by Council decision No. 76/787/ECSC/EEC/Euratom of 20 September 1976 and Council decision No. 2002/772/EC/Euratom.

⁶ See Arts. 28 and 34 of the Criminal Code of 12 February 1810.

⁷ See Art. 2 of Law No. 77-729 of 7 July 1977 on European Parliament elections and Art. L 2 of the Electoral Code.

⁸ Law No. 92-1336 of 16 December 1992, as amended by Law No. 94-89 of 1 February 1994.

⁹ French law now provides that it is up to a court to rule on this matter. Also the permanency of the penalty has been dropped: it may now not exceed ten years in the case of a conviction for a serious crime and five years in the case of a conviction for a less serious crime.

¹⁰ The competent administrative commission made this decision pursuant to Art. L 6 of the French Electoral Code.

¹¹ See Art. 61-I Const.

¹² Judgment of 7 November 2013, RG No. 15-13-000003.

¹³ Art. 10(2) TEU.

¹⁴ Art. 8B of the Treaty of Maastricht established the right for EU citizens to vote and stand as a candidate for municipal and European elections in a host member state on equal conditions as the nationals of that member state.

¹⁵ Art. 1 of the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (OJ L 278 8 Oct. 1976). In 2002, the Direct Elections Act underwent an important amendment. See Council Decision 2002/772/EC (OJ L 283, 21 Oct. 2002). In turn, Art. 1 of the Direct Elections Act can be traced to provisions in the founding treaties, such as Art. 21(1) of the 1951 Treaty of Paris, establishing the European Coal and Steel Community. See generally Peers, Steve et al. (eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014)CrossRefGoogle Scholar.

¹⁶ Art. 190 TEC.

¹⁷ See Delvigne, supra n. 3, para. 40.

¹⁸ The reference to ‘the peoples of the States brought together in the Community’ could also be found in Art. 190 TEC, the predecessor of Art. 14(3) TEU.

¹⁹ Supra n. 1.

²⁰ Spain v United Kingdom, supra n. 1, paras. 70-76; Eman and Sevinger, supra n. 1, paras. 43-45; 52.

²¹ Spain, however, did try to address the provision. See Spain v United Kingdom, supra n. 1, para. 42.

²² Supra, n. 3.

²³ Chester and McGeoch, supra n. 2, paras. 46, 59. See on Chester and McGeoch: Lansbergen, A., ‘Prisoner Disenfranchisement in the United Kingdom and the Scope of EU Law: United Kingdom Supreme Court’, 10 EuConst (2014) p. 126Google Scholar.

²⁴ Ibid., para. 58.

²⁵ In consideration of the length of this contribution, we have decided to leave out an account of the (very informative and well-argued) Opinion of A-G Cruz Villalón. In our comments we will refer to the most interesting points of the Opinion.

²⁶ Delvigne, supra n. 3, paras. 25-27.

²⁷ Ibid., para. 33.

²⁸ Ibid., para. 38.

²⁹ Ibid., para. 40 and further on.

³⁰ Ibid., para. 44.

³¹ Ibid., para. 46.

³² Apparently, the information of the Court of Justice was not comprehensive, since it seems that the French legislation also excludes prisoners convicted before 1994 with a short-term imprisonment from electoral rights. See on this the blog of Julien Fouchet, the lawyer of Delvigne: <www.fouchet-avocat-bordeaux.com/cjue-6-octobre-2015-c-65013-delvigne-lesparre/>, visited 17 February 2016.

³³ Delvigne, supra n. 3, paras. 46-52.

³⁴ See Ward, A., ‘Article 51 – Field of Application’, in Peers et al., supra n. 15, p. 1431-1447Google Scholar; van Eijken, H. et al., ‘The European citizen as bearer of fundamental rights in a multi-layered legal order’, in T. van den Brink et al. (eds.), Sovereignty in the shared legal order of the EU (Intersentia 2015) p. 249-298Google Scholar.

³⁵ Explanations relating to the Charter of Fundamental Rights, OJ, 14.12.2007, 2007/C 303/02.

³⁶ For an overview of case law in this respect see Ward, supra n. 34, p. 1431-1447.

³⁷ ECJ 30 April 2014, Case C-390/12, Pfleger, para. 36.

³⁸ However, the case Dano suggests that the Court in other cases is much more hesitant to apply the Charter. In the light of Åkerberg Fransson and earlier case law of the Court, it is unclear why the Court in Dano held that the situation at stake did not fall within the ambit of the Charter. ECJ 14 November 2014, Case C-333/13, Dano. See on Dano Düsterhaus, D., ‘Timeo Danones et dona petentes’, 11 EuConst (2015) p. 121Google Scholar.

³⁹ ECJ 21 December 2011, Joined Cases C-411/10 and C-493/11, N.S.

⁴⁰ See also Coutts, S., ‘Case C-650/13 Delvigne – A Political Citizenship?’, on www.europeanlawblog.eu/?p=2946Google Scholar, visited 17 February 2016.

⁴¹ Opinion of A-G Cruz Villalón, 4 June 2015, Case 650/13, Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, para. 92-95.

⁴² See in this respect also ECJ 10 July 2014, Case C-198/13, Hernandez, para. 36.

⁴³ This point will be discussed in more detail below.

⁴⁴ Respectively Art. 7 and Art. 10 Charter.

⁴⁵ Delvigne, supra n. 3, para. 44.

⁴⁶ Explanations relating to the Charter of Fundamental Rights, OJ, 14.12.2007, 2007/C 303/02.

⁴⁷ Delvigne, Opinion of A-G Cruz Villalón, supra n. 41, para. 43.

⁴⁸ Ibid. The European Parliament was supported in this argument by the Commission and, at least so it seems, by Germany.

⁴⁹ See e.g. Art. 21 of the Universal Declaration of Human Rights (1948); Art. 25 of the International Covenant on Civil and Political Rights; Art. 38(1) of the German Grundgesetz.

⁵⁰ ECtHR 2 March 1987, Series A, No. 113, Mathieu-Mohin and Clerfayt v Belgium, para. 51.

⁵¹ ECtHR 6 October 2005, Case No. 74025/01, Hirst v United Kingdom.

⁵² The subject of limitation of fundamental rights will be discussed in more detail below.

⁵³ Opinion of A-G Tizzano 6 April 2006, Case C-145/04, Spain v United Kingdom and Case C-300/04, Eman and Sevinger v College van burgemeester en wethouders van Den Haag, para. 69.

⁵⁴ ECtHR 2 March 1987, Series A, No. 113, Mathieu-Mohin and Clerfayt v Belgium, para. 51.

⁵⁵ To sustain its argument in Delvigne, the Court called in the support of the Explanations relating to the Charter, OJ, 14.12.2007, 2007/C 303/02. (See Delvigne, supra n. 3, para. 41.) This support is not really compelling. The Explanations only relate that Art. 39(2) takes over the basic principles of the electoral system in a democratic state. This is no conclusive evidence that the framers of the document – the European Parliament, Commission and Council – intended to change the constitutional arrangement in the (then valid) Treaties. Again, the question may be asked whether this formula confers a right which was previously not conferred.

⁵⁶ Delvigne, Opinion of A-G Cruz Villalón, supra n. 41, para. 99.

⁵⁷ The German Constitutional Court does not think that these new provisions have changed the face of political representation and democracy. In its Lisbon judgment of 30 June 2009, 2 BvE 2/08, the Constitutional Court maintained that ‘(e)ven in the new wording of Article 14.2 Lisbon TEU, and contrary to the claim that Article 10.1 Lisbon TEU seems to make according to its wording, the European Parliament is not a representative body of a sovereign European people’ (para. 280). Instead, the EU would show ‘an assessment of values in contradiction to the basic concept of a citizens’ Union (…)’ (para. 287). In this light, it is interesting that the German government in Delvigne sided with the Parliament and the Commission as regards the view that Art. 39(2) Charter contains a subjective right to vote for Union citizens.

⁵⁸ Eman and Sevinger, supra n. 1, para. 45, 52. The closest the Court comes to assuming a freestanding right to vote for Union citizens is in Spain v UK, supra n. 1, para. 76.

⁵⁹ This was repeated by the Court in Delvigne, supra n. 3, para. 42.

⁶⁰ Specifically, the Court ruled that the Netherlands violated the principle of equal treatment by denying the franchise to one class of Union citizens (Arubans and other Dutch nationals from the Caribbean Netherlands) and by granting the franchise to another class of Union citizens (Dutch nationals resident in a non-member state). See Eman and Sevinger, supra n. 1, para. 60. See also Shaw, J., ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law, 2^nd edn. (Oxford University Press 2011) p. 600-603Google Scholar.

⁶¹ ECJ 8 March 2011, Case C-34/09, Ruiz Zambrano, para. 42. Cf. also ECJ 2 March 2010, Case C-135/08, Rottmann, para. 42.

⁶² See Khadar, L. and Shaw, J., ‘Article 39 – Right to Vote and to Stand as a Candidate at Elections to the European Parliament’, in Peers et al, supra n. 15, p. 1040-1046Google Scholar.

⁶³ ECtHR 18 February 1999, Case No. 24833/94; Eman and Sevinger, supra n. 1, paras. 45-49. See extensively on the interplay between the ECHR and Community law: Besselink, L. F. M., ‘Case C-145/04, Spain v. United Kingdom, judgment of the Grand Chamber of 12 September 2006; Case C-300/04, Eman and Sevinger, judgment of the Grand Chamber of 12 September 2006; ECtHR (Third Section), 6 September 2007, Applications Nos. 17173/07 and 17180/07, Oslin Benito Sevinger and Michiel Godfried Eman v the Netherlands (Eman and Sevinger)’, 45 Common Market Law Review (2008) p. 787-813Google Scholar.

⁶⁴ Cf. J. Shaw, ‘Prisoner voting: now a matter of EU law’ on <eulawanalysis.blogspot.nl/2015/10/prisoner-voting-now-matter-of-eu-law.html>, visited 17 February 2016, where a different explanation is given as to how the Charter, despite similar language, might have tipped the balance in favour of a subjective conception of the right to vote in European elections.

⁶⁵ Ibid.

⁶⁶ See Lenaerts, K., ‘The Court of Justice of the European Union and the Protection of Fundamental Rights’, Polish Yearbook of International Law (2011) p. 79-105Google Scholar, especially on p. 98 and further.

⁶⁷ On this point also Sarmiento, D., ‘What Schrems, Delvigne and Celaj tell us about the state of fundamental rights in the EU’ on Verfassungsblog: <verfassungsblog.de/en/what-schrems-delvigne-and-celaj-tell-us-about-the-state-of-fundamental-rights-in-the-eu/#.Vih9Vuuhdjo>>Google Scholar, visited 17 February 2016.

⁶⁸ Douglass-Scott, S., ‘The relationship between the EU and the ECHR five years on from the Treaty of Lisbon’, in S. A. de Vries et al. (eds.), Five Years Binding EU Charter of Fundamental Rights (Hart Publishing 2015), p. 21-46Google Scholar, de Búrca, G., ‘After the EU Charter of Fundamental Rights: The Court of Justice as a human rights adjudicator?’, 2 Maastricht journal of European and comparative law (2013) p. 168-184CrossRefGoogle Scholar.

⁶⁹ ECtHR 22 May 2012, Case No. 126/05, Scoppola v Italy.

⁷⁰ Ibid., para. 102.

⁷¹ Ibid., para. 49.

⁷² The locus classicus in this respect is the American case of Marbury v Madison, 5 U.S. 137 (1803), in which the U.S. Supreme Court developed the power of judicial review. In European constitutional history, the classical case is ECJ 15 June 1964, Case 6/64, Costa/ENEL.

⁷³ Member states with a similar blanket ban are Hungary, Bulgaria and Estonia.

⁷⁴ Cameron made this remark during a debate in 2010 in the House of Commons. See <www.youtube.com/watch?v=DjzmvvozHuw>, visited 17 February 2016.

⁷⁵ See <www.telegraph.co.uk/news/uknews/law-and-order/11911057/David-Cameron-I-will-ignore-Europes-top-court-on-prisoner-voting.html>, visited 17 February 2016.

⁷⁶ This was the sentiment that dominated British newspapers after the ruling in Delvigne had been handed down. See e.g. <www.theguardian.com/politics/2015/oct/06/uk-ban-on-prisoner-voting-is-lawful-eus-highest-court-rules>, visited 17 February 2017.

⁷⁷ The list of member states that restrict the franchise on grounds of mental disability is rather long. See the 2012 report of the Fundamental Rights Agency: Fundamental rights: challenges and achievements in 2011, <fra.europa.eu/sites/default/files/annual-report-2012-chapter-7_en.pdf>, visited 17 February 2016.

⁷⁸ ECtHR 20 May 2010, Case No. 38832/06, Alajos Kiss v Hungary (disenfranchisement of mentally disabled people under partial guardianship).

⁷⁹ In the context of free movement and social benefits this point is raised by Dougan, M. and Spaventa, E., ‘New Models of Social Solidarity in the EU’, in M. Dougan and E. Spaventa (eds.), Social Welfare and EU law (Hart Publishing 2005) p. 211Google Scholar.

⁸⁰ This did not happen in the Netherlands after Eman and Sevinger. Up until that point, most restrictions to the right to vote in elections to the European Parliament were linked to restrictions to the right to vote in elections to the Dutch parliament. After Eman and Sevinger, the Dutch legislator removed the contested residence restriction with respect to elections to the EP, but left the restriction intact with respect to elections to the Dutch Parliament.

⁸¹ See Shaw, J., ‘Sovereignty at the Boundaries of the Polity’, in N. Walker (ed.), Sovereignty in Transition (Hart Publishing 2003) p. 461-500Google Scholar.