C-300/04, Eman and Sevinger (Opinion)

According to Advocate General Tizzano, a Member State which grants the right to vote in European elections to its own citizens living within the European territory of that State and to those residing in non-Member States, violates Community law - in particular the principle of equal treatment - when excluding from this right a number of categories of its own citizens resident in an overseas territory which is associated with the Community.

(This is a continuation of yesterday’s post).

In Case C-300/04, the Netherlands Council of State has asked whether a Member State can withhold the right to vote in European elections from its own citizens residing in another part of the State which constitutes an associated overseas territory of the Community (in casu, Aruba).

In 2004 Mr Eman and Mr Sevinger, two Netherlands citizens de facto resident in Aruba, applied for inclusion on the electoral register for the European parliamentary elections.

This request was rejected on the ground that Netherlands electoral law conferred the right to vote in European parliamentary elections only on Netherlands citizens who were de facto resident in the European territory of the Kingdom.

In his opinion, the Advocate General, referring to Hirst case of the European Court of Human Rights, argues that Member States retain the power to determine the scope of their own citizenship (and, consequently, citizenship of the Union), but they must comply with Community law in doing so.

The Netherlands legislation violates
the fundamental principle of equal treatment, since it, as summarised by Advocate General Tizzano:

"grants voting rights in European elections not only to Netherlands citizens residing in the Netherlands but also to those who reside in third countries, entirely denying that right only to those who live in Aruba and the Netherlands Antilles. Thus, the legislation grants that right to Netherlands citizens living in countries that are not part of the Netherlands or of the Community but denies it to those who reside in the abovementioned islands, even though they may be in the same situation as the others (they too are Netherlands citizens who reside outside the Netherlands) and may actually claim to reside in territories which maintain special links with the Netherlands and with the Community.”
(para. 165)