Case 145/04, Spain v. United Kingdom (Opinion)

Advocate General Tizzano on Thursday delivered on interesting opinion on the question whether a Member State is entitled to extend voting rights in European Parliament elections to nationals of non-member states resident in a European territory.

The judicial vacation of both the Court of Justice and the Court of First Instance allows some time for reflection on some more of last week interesting Cases and Opinions. Lets start with the Opinion of Advocate General Tizzano in Cases C-145/04 and C-300/04, which, although not joined, are dealt with in the same opinion.

In Case 145/04, a rare example of an Article 227 procedure, Spain contests the
validity of the UK European Parliament (Representation) Act 2003.

This statute extends the right to vote to Commonwealth citizens resident in Gibraltar, mainly Pakistanis, Indians and Bangladeshis.

Spain argues that it follows from the EC Treaty provisions on EU citizenship and elections to the European Parliament that only citizens of EU Member States should be entitled to vote, and also that the UK statute is contrary to Annex II to the 1976 Act concerning the election of representatives to the European Parliament.

Advocate Genaral Tizzano argues that the aforementioned Treaty provisions do not preclude the possibility of extending the right to vote to citizens of non-member states. Such extension “is clearly consistent with the democratic principle of universal suffrage upon which the European Union is based.” (para. 93).

Nevertheless, such unilateral power to extend voting right cannot be unlimited, simply “because the election of the European Parliament is not the concern of a single Member State but affects and has repercussions on the entire Union”.

The exercise of such power must meet certain conditions based on the general principles of the legal order, such as the principles of reasonableness, proportionality and non-discrimination, in addition to the specific Community provisions such as those imposed on the United Kingdom by Annex II to the 1976 Act.

As is well known, this issue has already been addressed by the European Court of Human Rights in the Matthews- case, in which the Court held that the United Kingdom had breached Article 3 of Protocol No. 1 to the European Convention of Human Rights by failing to organise European Parliament elections in Gibraltar.

According to AG Tizzano, the United Kingdom had, as a result of this judgement, introduced legitimate derogations from Annex II to the 1976 Act in order to guarantee voting rights for British citizens resident in Gibraltar, but by extending those rights to persons resident in Gibraltar who are not UK citizens the United Kingdom had unjustifiably derogated from Annex II.

(I will discuss Case C-300/04 in the next post).

Text of Opinion