IMPLEMENTING UNION CITIZENSHIP: THE CASE OF ALIEN SUFFRAGE AND THE EUROPEAN UNION
Stephen Day and Jo Shaw*
Please note: This is a draft paper only, and sections of it – including the references – are so far highly provisional; please do not cite without permission. Comments and criticisms are welcome to the e-mail addresses provided.
I Introduction The right to vote is one of the most important formal legal indicia or ‘hallmarks’ of citizenship. Elections are vital moments of discursive democracy, moments at which communities are formed and form themselves. But is the converse always true? Is it right to assume that citizenship is crucial to the franchise, especially for immigrants? At first sight, the conferring of certain active and passive electoral rights upon citizens of the European Union by Article 19 of the EC Treaty, introduced by the Treaty of Maastricht, would appear to fit well with the breaking down of tight links between the state, citizenship and political rights in the context of mobile populations. Article 19(1) provides that a citizen of the Union residing in a Member State other than the one in which she is a national shall have the right to vote and stand as a candidate at municipal elections in which she resides ‘under the same conditions as nationals of that State.’ In very similar terms, Article 19(2) provides for the right to vote and stand as a candidate for a citizen of the Union residing in another Member State in European Parliament elections. Both provisions required further implementation through detailed arrangements which were laid down by the Council acting unanimously, after consulting the European Parliament.1 However, Article 19 should be viewed not just in the context of the citizenship provisions themselves (Articles 17-22 EC) which have a strong preoccupation with the links between citizenship and free movement, but also other ‘constitutional’ provisions of the EU and EC Treaties which encapsulate the wider constitutional pretensions of the EU as an emergent non-state polity which is not dependent upon intra-EU population mobility as its raison d’être. A good example is Article 191 EC which purports to constitutionalise transnational political parties by asserting that
‘Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.’
This paper explores one strand of a wider research project which we have undertaken on The Boundaries of Suffrage.2 This project explores the intersections between the liberal principle of alien suffrage, that is, the principle extending the suffrage in a given polity to include also all settled residents regardless of nationality or citizenship and not demanding that
* Stephen Day: Research Fellow on the Boundaries of Suffrage Project in the Centre for the Study of Law in Europe, Department of Law, University of Leeds, Leeds LS2 9JT. From October 1 2000, Lecturer, University of Southampton. Jo Shaw: Professor of European Law, University of Leeds. Part of this paper also draws upon the work of Anthea Connolly, PhD student attached to the Boundaries of Suffrage Project. Her contribution is gratefully acknowledged. E-mail contact coordinates for the participants in the project: [email protected]; [email protected]; [email protected]. 1 Directive 93/109/EC on European Parliament elections, OJ 1993 L320/34; Directive 94/80 on local elections, OJ 1994 L368/38. 2 This research on ‘The Boundaries of Suffrage’ forms part of the ESRC One Europe or Several Research Programme project entitled Strategies of Civic Inclusion in Pan-European Society (L213252022). The financial support of the ESRC is gratefully acknowledged. mainstream political participation through elections is solely premised upon adoption of the local citizenship, and the electoral rights conferred on Union citizens under Article 19, which we treat as a partial or modified case of alien suffrage. This paper concentrates upon the implementation of Article 19 in the context of the wider issues which it raises regarding the constitutionalisation of the EU, the construction of a concept of Union citizenship, the citizenship implications of the expected future enlargement of the EU towards the East and the intersection with the domestic constitutional and political environments of the existing Member States which the implementation of a new set of EU-level ‘rights’ for citizens necessarily entails. It explores the conceptual and theoretical issues which the alien suffrage principle arises, when viewed in the context of the evolving concept of Union citizenship, suggesting the normative potential of electoral rights framework in that context. More specifically, it uses empirical evidence drawn from case studies based in Austria, Germany, the United Kingdom and, to a lesser extent, Estonia, to examine some of the key issues raised at national level by the implementation debate.
II The ‘failure’ of Article 19 Article 19 EC is not commonly regarded as a significant constitutional innovation for the European Union. There are a number of reasons for this cautious assessment of the character of Article 19.
The only elections encompassed are local and European parliamentary elections. Those elections of real significance for the political direction of a Member State (general elections; elections for regional assemblies) are excluded. The rights themselves are subject to legislative conditions laid down by the Council which may taken into ‘problems specific to a Member State’ (Article 19(1) and (2) EC); the legislative framework established has in turn permitted the Member States to put in place some notable exceptions to the residency principle.3 These tend to protect the national character of the political sphere by reserving certain elected offices such as mayors for nationals of the host Member State alone, to limit the impact of the rights in geographical areas where there are large numbers of EU citizens and thus precisely where they might represent a strong political constituency, and to institute minimum residency periods of various lengths or relatively complex procedures for EU citizens to register to vote which may have a dissuasive effect on potential voters. As part of the policy programme associated with the introduction of the concept of Union citizenship through the Treaty of Maastricht, moreover, the ‘new’ electoral rights were not even innovatory for the EU. Proposals in this area had been emanating from the Commission since the 1970s, and thus the development of electoral rights in the 1990s could be seen as a part of the step-by-step progress towards establishing symbolic if limited citizenship policies in turn linked to the gradually evolving concept of political union. Political union itself has often been regarded as little more than the endeavour to add constitutional pretensions to the market-making aspects of the European Communities as economic integration project.
Furthermore, as these electoral rights are both limited to EU citizens and exclude other non- nationals resident in Member States and are also restricted to certain categories of elections only, they do not represent by any means a ‘pure’ case of alien suffrage involving a right on the part of all settled residents to be protected against political domination by majorities.4 On the contrary, EU electoral rights are themselves directly discriminatory against third country nationals who may be long term resident in the host Member State, in favour of EU citizens whose residence may be of much shorter duration but whose ‘citizenship’ of the Union none the less gives them certain political entitlements. In terms of the manipulation of the suffrage as an aspect of ‘polity building’, the creation of that new boundary between Union citizen and third country nationals – irrespective of the thickness or thinness of the political connection which the latter may have with their various host states – cannot be seen as wholly political
3 As laid down in Directives 93/109 and 94/80, above n.1. 4 Barbieri. innocent. It is strongly linked to an instrumentalist endeavour to construct the Euro-demos as one condition precedent of democracy and policy legitimacy in the European Union. Self- evidently, such top-down manipulation of notions of citizenship and belonging has an extremely limited capacity to generate loyalty. While the electoral rights attached to citizenship of the Union might be thought in principle to pursue the same public policy goals as the adoption of the principle of alien suffrage in terms of enhancing social cohesion and a sense of belonging, in a world increasingly characterized by high social and cultural mobility and interpenetration, in practice the picture in terms of both the a priori objectives of those who negotiated and agreed upon Article 19 EC and some of the key outputs from that provision appears much more complex.
Above all, it would be seem reasonable to suggest that one measure of constitutional innovation is the practical impact of any formal legal provisions introduced in order to drive a constitutional agenda. The evidence of the take-up and impact of the active and passive electoral rights of EU citizens resident in other Member States in local and European parliamentary elections since the mid 1990s certainly does not suggest that this new possibility for democratic self-expression has permeated very deeply into the consciousness of those who are able to benefit from it.5 It has not, indeed, generated loyalty. Nor is there direct evidence of it contributing discernibly to substantive electoral outcomes. This is partly because even the most formal of implementation steps at the national level have not always been quickly forthcoming from the Member States, as the Commission’s need to bring Belgium before the Court of Justice to ensure compliance with the local elections directive amply illustrates.6 However, the Court of Justice did make it clear in its judgment – in line with its longstanding approach to this question – that a Member State may not plead national constitutional restrictions or conditions as a ground for non-compliance with EU electoral rights. The legal capacity for the electoral rights to have disruptive effects at national level is therefore quite apparent. There are also the inevitable formal variations in implementation in states such as Germany, where the details are a matter for the constitutions and law of the Länder rather than the Bund. These are all factors which militate against the existence of the rights permeating national political consciences. Furthermore, this is not an issue which political parties generally choose to bring to the forefront of their statements about the political platforms on which they stand, and nor are the body of ‘EU citizens’ a constituency of voters which many parties appear actively to be competing to conquer.
Despite this apparently overwhelmingly negative assessment, which is doubtless dispiriting to those who have high hopes for the potential of Union citizenship to deliver the promised land of a genuine ‘union of peoples’ and to make a crucial contribution to the development of a European Union constitutional settlement, we do not accept that the alien suffrage dimension of Union citizenship is an irrelevance or a sideshow. At one level, this is a normative argument. We contend that it is important at a normative level to develop conceptualisations of Union citizenship which explicitly address the provision of limited electoral rights to resident non-nationals, as these represent an essential element of the constructive potential of the legal and political figure of the Union citizen. The definition of political community – to which the electoral rights debate necessarily contributes a great deal – is a crucial measure of the nature of a constitutional polity. It requires the reconsideration of fundamental issues of inclusion and exclusion. In consequence, therefore, the institutional forms and new political
5 It is extremely difficult to collect accurate and comprehensive statistics in this area. Given the secrecy of the vote, it is hard to see where the Commission has obtained its figures on the Euro-elections. In relation to local elections, the comparison rates for population and registration are the most comprehensive figures available, although there are figures for participation in the Berlin elections of October 1999. See Tables 1-5 (selected figures from the 1994 and 1999 European Parliamentary elections; selected figures from local elections in Germany and Austria). These provide at most a guide. 6 Case C-323/97 Commission v. Belgium [1998] ECR I-4281. relationships which the partial incorporation of the alien suffrage principle into the EU constitutional order has generated are key indicia of the steps towards a political conception of citizenship for the Union, beyond the juridical form of Union citizenship which has thus far tended to dominate. This is not, however, simply a fact-gathering exercise in support of a pre- determined normative position. We reject a simple linear determinism in which the more liberal position in favour of wider alien suffrage gradually gains acceptance both at the supranational and the national levels, with the logical conclusion therefore being the extending of electoral rights to a wider range of elections or polls (especially general elections and national referendums) and to a wider range of electors (especially third country nationals). Rather we suggest more complex grounds for reconceptualising Union citizenship in a way which explicitly includes the hitherto much derided electoral rights.
On the one hand, our research is rooted in theories of political community undergoing reconstruction in the light of the challenge of theorising the ‘postnational’, non-state polity which constitutes the European Union. In that context, the crucial links between the institutional form of the state and the traditional (national) domains of ‘the citizen’ and the political party have been put under stress. The traditional mechanisms used by states for determining the outer limits of the polity – naturalization, citizenship and immigration laws – although certainly not irrelevant may have to cede some space to new political constellations based on residency and a more cosmopolitan concept of belonging. Evidence of the more general trend towards the decoupling of rights and identity can also be seen in the general framework of Union citizenship. Concomitantly our work suggests a fruitful coupling of integration theory and citizenship theory.
On the other hand, in our research in Austria, Estonia, Germany and the United Kingdom, we have undertaken a detailed review of the direct and indirect effects of the EU electoral rights, in the context of the wider challenges which the principle of alien suffrage poses for those three Member States of the European Union and for a candidate state aspiring to accession to the EU. The pressures are different for the two categories of states, although both have resident immigrant or ethnic minority populations many of whom do not have the nationality of the host state and are conseqeuntly excluded from the suffrage as a result of the hegemonic link between the scope of citizenship and the scope of the suffrage established by the majority of nation states.7 For the Member States studied, perhaps the sharpest issue concerns the comparative treatment of EU citizens and third country nationals. For the candidate state under consideration, the aspiration to become a Member State is linked to achieving the liberal constitutional goals inscribed in the Treaty on European Union as conditions of membership. In the short term, this means the Copenhagen Principles enshrined in Articles 6 and 49 TEU, and in the longer term it includes the prospect of enforcing the electoral rights in Article 19 EC. These requirements may have the effect of constraining a state’s own processes of nation-building and community-building, because of the shadow which membership of the liberal community of the EU casts. Thus EU limitations upon a state’s capacity to restrict the franchise (as much as its injunctions partially to extend it) will inevitably affect the political direction chosen by a state.
However, in all cases whether located inside or outside the current geo-political boundaries of the EU, our conclusions highlight the disruptions and challenges which the partial alien suffrage principle of Article 19 generates for domestic political constellations. In other words, the disruptive effects extend beyond the juridical realm highlighted by the 1998 case brought against Belgium in the Court of Justice. The challenge of applying Article 19 can, for example, sharpen perceptions about the issues of immigration, nationality and the status of
7 The UK is, of course, a partial exception to this with voting for Irish citizens and Commonwealth citizens well established for historical reason. In any event, of course, the UK also has broader nationality laws than some nation states, with its historical attachment to ius solis (now largely broken). ethnic groups at national level. It enhances the political opportunity structures for immigrant populations in relation to the whole domestic political or constitutional agenda. For example, as a limited principle of alien suffrage upheld by EU law, it can have the effect of overriding a pre-existing constitutional objection to alien suffrage as a general principle, even where this has been articulated by a national authority as high as the constitutional court.8 It can interact with the limited Europeanisation of political parties resulting for the increased powers of the European Parliament, the constitutionalised status of political parties in the EC Treaty, and changed role of ‘European affairs’ within many domestic political agendas. Equally, of course, it has the capacity to generate a cautious or even hostile response within political parties and amongst political elites, which may prefer – in the light of growing nationalist agendas and movements – to keep the potentiality of the alien suffrage principle as hidden as possible in order to avoid national backlashes. This hostility or caution may arise notwithstanding the fact that a particular political party’s basic position on such a liberal principle of political community may be expected to be positive as part of its overall political programme. Less surprising, of course, is resistance posted by nationalist parties which consistently challenge measures which risk diluting the national electorate. Our research cautions against seeing the ‘drip drip’ effect of more European political rights as part of a seamless linear progress towards increased political union and greater degrees of Europeanisation, whether at the national or the supranational levels.
Our starting point, therefore, is a much broader assessment of the electoral rights question than the evidence of low take-up rates. On the contrary, it is important – when making an empirical assessment of the electoral rights provisions – to investigate in detail the orientation of key agents such as political parties and national political institutions towards the widening or questioning of the scope of the suffrage at national level which EU law has entailed whether directly (Member States) or indirectly (candidate states). This will show, for example, whether such agents have the will or capacity to deliver a coherent and effective implementation of the bare provisions of the Treaties and whether the structural conditions provided by the national political and constitutional environments are open to potential future extensions of the partial alien suffrage principle which Article 19 thus far enshrines. For agents of political change such as political parties continue to be nested principally within a domestic political and constitutional context, which consistently mediates and translates the meaning of participating in the evolving Euro-polity for citizens and non-citizens of the Member State alike. Likewise, for the citizens and non-citizens of the candidate country it mediates the meaning of potential future accession and its implications for the right to participate in both the national polity and the Euro-polity. That domestic political and constitutional framework contains – at least in relation to the key cases studied in this project – a number of fundamental variables. These include broad questions about the constitutional and political systems of the relevant states (e.g. the basis of the constituent authority and the nature of the constitutional framework). There are also narrower issues to be considered including the scope and nature of nationality law (including the conditions of naturalization or registration as a citizen), the acceptance or rejection of dual nationality and the treatment of resident ethnic or racial minorities (i.e. issues about multiculturalism, assimilation, integration and tolerance) whether these communities have been constructed as a result of immigration (the UK and Germany) or as a result of the redefinition of the boundaries of the polity (Estonia, and to some extent Austria).
In turn this approach will allow us – in future papers – to develop wider conclusions about the impact of electoral rights in the context of an emerging non-state polity with constitutional pretensions. The case of electoral rights for EU citizens – treated as a dimension of the liberal principle of alien suffrage – provides a fertile empirical terrain on which to investigate the multi-level and evolutionary character of the existing EU constitutional framework. The (thus
8 Notably in Germany, of the case study countries: See R. Rubio-Marín, Immigration as a Democratic Challenge, Cambridge: Cambridge University Press, 2000. far limited) viability of this framework is as dependent upon the anchoring of its political legitimacy through national political parties and other agencies operating in a semi- Europeanised political environment as it is upon the prescriptive contentions of the Court of Justice that the Treaty formal framework quite simply constitutes a new type of legal order which operates as an incipient constitutional charter and therefore is legitimised in a formal juridical manner through the authority of the rule of law.
In this preliminary paper we explore some aspects of both dimensions of our argument. We want to establish the importance – in conceptual and geo-political terms – of a vision of Union citizenship which is open to the challenges and possibilities of ‘alien suffrage’ in terms of its impact upon the definition of political community and upon democratic practices including relationships between the state (in the broad sense of political authority), civil society and the individual. In a formal sense citizenship provides a means for settling the boundaries of the polity. Its predominant postwar meaning – as juridical figure – has been as a set of inalienable rights. It is also a more contingent discourse based upon a set of practices on the part of citizens themselves9 involving both collective negotiations over political power and individual settlements in relation to crucial discourses of identity and rights. Our argument also makes use of the contingency of the Euro-polity itself. The provisional form of any putative constitutional settlement means that the final version of the Euro-polity (if, indeed, it has a finality) is itself intensely contested, leaving open – as yet – the boundaries of any possible concept of Union citizenship which is more developed than that which exists at present. In sum, the paper seeks a linkage between citizenship theory and integration theory, and the relationship between Union citizenship and the principle of alien suffrage provides an area of linkage. Second, we review upon some institutionalised forms which have been adopted for the implementation of the EU electoral rights contained in Article 19 EC, concentrating upon the role of key agents and institutions at national level which have the capacity to translate the ‘theory of rights’ into the ‘practice of rights’, as well as, equally to mobilise resistance and hostility to intrusive Euro-rights. The paper examines the forces and pressures which impact upon these agents of change and resistance, working outwards from a set of hypotheses about the constructions which political parties place upon the boundaries of the suffrage, in accordance with their underlying political philosophies.10
III Union citizenship and alien suffrage: preliminary thoughts The premise of Union citizenship as a legal status is easily contested: equality of legal status and individual rights and entitlements does not overcome the effects of social exclusion, or confer ‘full membership’ of a community or a sense of identity.11 However, that does not preclude the inclusion of Union citizenship in the legal sense of its formal existence in the EC Treaty and its further instrumentalisation through various legislative instruments into a wider political theory or reconceptualisation of citizenship in the context of the constitutional project of the EU. It is vital, instead, to treat the legal or juridical form as only one part of the picture. In a similar way, electoral rights under Article 19, when taken in isolation, constitute a small and rather conditional case of the much broader challenge of alien suffrage as one moral precept which a political community may adopt as its ethical foundation of membership and indeed the even broader ongoing challenge of defining the boundaries of the suffrage and of political community in a world where the borders of order are continually in question. But the issues raised are both national and supranational/international in nature, as well as being both legal and political. In every case examined in this research, the accretion of new electoral rights as a dimension of Union citizenship and the issues related to the suffrage raised by the prospect of future membership of the EU have to be taken in their unique national context, comprising the domestic political and constitutional environment. More generally, these
9 Bellamy. 10 Table 6. 11 R. Bauböck, ‘Recombinant Citizenship’, in M. Kohli and A. Woodward (eds.), Inclusions/Exclusions, Routledge, London, forthcoming (EURCIT working paper). rights and the political practices on the part of actors such as political parties and national political institutions are located within a wider debate about membership and inclusion/exclusion which transcends the boundaries of the nation states of Europe (the geographical domain in which it is presently being researched), cuts across the membership of the European Union and extends beyond to the candidate countries and others experiencing a ripple effect from EU integration, and muddies the edges of the national/supranational divide commonly used to pigeonhole issues of political responsibility. It is an internal facet of Union citizenship as presently constituted; yet it also speaks to a more general language of citizenship, democracy and participation thereby invoking a deeper and more challenging heritage.
The approach taken, therefore, needs to combine citizenship as juridical and political figure, and must recognise that the constitution of Union citizenship is not a solely ‘European’ event, but a multidimensional process in which national conditions are often paramount.12 We advocate an approach to understanding and interpreting Union citizenship, which is based on identifying the space within which Union citizenship is simultaneously both constituted from outside, and self-constituting, as a form of ‘post-national’ political membership which represents a vital building block in the ongoing process of polity-formation (including constitutionalisation processes) within Europe. In that context, the complex heritage of citizenship and constitutionalism as highly contested concepts is not a distraction from the main objective of ‘defining Europe’, but a core part of the enterprise. The outlook, therefore, is normative in orientation so far as it is premised upon the existence of links between polity formation, constitutionalisation processes and the means through which Union citizens contest and practice their citizenship, including the electoral rights in Article 19.
The principle of alien suffrage is commonly studied in the primary context of migration and immigration, and of the incorporation or integration of immigrant communities into the socio- economic and political life of the host polity. The research is dominated by studies of postwar migration in Western Europe and, to a lesser extent, by studies of the United States. These provide a particular type of setting for debates about the (alleged) decline of citizenship especially as an exclusive national icon and even of national sovereignty, and the rise of concepts of universal personhood premised on international human rights instruments as representing the foundation stone for the treatment of non-citizens. Inevitably, there is a strong normative dimension to much of the work,13 at least so far as it is concerned with establishing the ethical and democratically legitimate foundations of the inclusive polity.
As Lardy has argued, it is difficult to reconcile the complete exclusion of those who lack legal citizenship from the franchise with accounts of political participation based on either liberal or communitarian theories.14 Consistent exclusion will enhance the sense of isolation and exclusion experienced by resident alien communities, and hence weaken the fabric and legitimacy claims of the society in which they are living. Moves towards conferring the local franchise on resident alien communities, visible not only in a number of European countries but also in some parts of the United States, is often linked to the increased mobility not only of persons and labour, but also of capital, goods and culture. It also has a significance in democratic practice. As Raskin argues:
as the world grows closer in terms of population mobility, capital, investment, labour markets, cultural production, and high technology, it is imperative that we create political norms to make the most of these processes of integration consistent with democratic values. The possibilities for exploiting displaced persons are too great if we make capital and labour mobile but political rights immobile. We cannot read the
12 E.g. Pernice 13 Rubio-Marín, above n.8. 14 H. Lardy, ‘Citizenship and the Right to Vote’, (1997) 17 Oxford Journal of Legal Studies 75. world as a global economic village but define it as a collection fo remote islands for the purposes of political participation. Eventually we may define a human right to democratic participation.15
Barbieri argues for a matching of the ethics of the inclusive polity and the provision of equal representation to all resident within its boundaries.16 All must have a share. Citizenship (membership of the polity) is, for Barbieri, an examination of the nature and basis of equality and it is also entwined with questions regarding the relations between morola nad legal rights and the foundations of law. Democracy, moreover, ‘is grounded in the human rights of individuals to self-determination and only this right forms the basis of the state’s claim to sovereignty’.17 In other words, the idea is that only democracy provides the legitimating force for state sovereignty but democracy is only attained when the polity is ethical, that is, when there is equality. This is, of course, a fundamentally liberal ideal and idea. Typically, therefore, normative arguments made by scholars in favour of extending the suffrage to resident aliens are based on liberal conceptions of equality and democracy, combined with a goodly dose of international human rights and universal personhood doctrine.
However, shifting away from a focus on normative arguments, the literature suggests that in terms of establishing the premises of the underlying political and legal changes which have occurred in the status of non-nationals, the better view (in the context of the immigration debate at least) appears to be the one supported by Hansen (and Joppke and Favell amongst others). They argue that the sources and causes of the evolving status of resident third country nationals are predominantly located in domestic conditions, rather than in the internationalisation and universalisation of human rights discourse or the institutionalisation of human rights at international level.18
In fact, as our study shows, versions of alien suffrage occur in contexts other than the classic immigration and integration policy dilemma as it has arisen for many nation states.19 The most obvious case is that of the Article 19 electoral rights, which were not generated by the types of political dilemmas which generated the limited electoral rights for non-nationals granted in the Netherlands or the shifting of the naturalization and dual nationality debates which has occurred in Germany. The cause of Article 19 is something quite different, as part of the EU’s constitutional project driven by a combination of domestic and international pressures. Article 19 electoral rights represent a component of the EU’s attempt to cross the boundary from attaching socio-economic rights to freemovement into the (sovereign national) realm of providing for civic equality with the polity, in this case in the name of Union citizenship. A different type of challenge to the boundaries of the suffrage is highlighted by the Estonian case of processes of nation-building and political redefinition transforming an Estonian minority in the USSR into the Russian minority in the more recently (re-)established state of Estonia. Here the causes of redefinitions of the polity and the suffrage which have occurred during the past ten years have the collapse of the Soviet Union, the emergence of many new or reestablished states within the same geographical domain, and the provisional and conditional receptiveness of the European Union to enlargement in the East. These complex factors surrounding the boundaries of the suffrage, in contexts where the basic geographical and political conditions are highly unstable, suggest to us the need to move the
15 J. Raskin, ‘Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage’, (1993) 141 University of Pennsylvania Law Review 1391 at 1460. 16 This section of the paper draws upon prior work by Anthea Connolly. 17 W.A. Barbieri, Ethics of Citizenship. Immigration and Group Rights in Germany, Durham and London: Duke University Press, 1998 at p.59. 18 See R. Hansen, ‘Migration, citizenship and race in Europe: between incorporation and exclusion’, (1999) 35 European Journal of Political Research 415. 19 In other work, Stephen Day is looking at the very different issues again which arise in relation to the alien suffrage question and civic inclusion/exclusion in the context of Japan. task of conceptualising the idea of alien suffrage away from the denizenship and human rights debates and away from the postwar immigration policy dilemmas of Western European nation states in particular, where it is so often nested, towards a more general arena of the ethics of participation and the political theories of membership and inclusion.
The various arguments do, however, have one common factor, and it is crucial to the understanding of the role of Union citizenship within this conceptual matrix. This is the decoupling of identity and rights – or perhaps better the enhanced tension as identity and rights are constantly negotiated and re-negotiated, and the consequences of this for the concept of citizenship in a world where the nation state and sovereignty have shifting meanings against the background of supranationalism, nationalism and regionalism. This is not to deny citizenship’s strong dimension as an ideal or an icon, but rather also to suggest that any such dimension must be associated with empirical observation of the condition of citizenship which is historically situated and geographically and politically contextualised. This, then, demands the input not only of theories of citizenship and democracy into the understanding of the matrix of alien suffrage and Article 19 electoral rights, but also theories of integration and post-national polity formation. Only the latter groups of theories can explain, for example, crucial path-dependencies regarding the interactions between EU level rights conferred by decisions of the Member States at Intergovernmental Conferences, the instrumentalisation and ‘management’ of those rights by means of legislative measures adopted by the institutions and monitoring activities on the part of the Commission, and the effects of national political opportunity structures and national constitutional frameworks. Since the decision in the Treaty of Amsterdam to move the European Union towards a so- called Area of Freedom, Security and Justice, it is no longer possible by any means to separate out the politics of the integration process from the politics of immigration policies at national and EU level. The two are now intertwined. Hence it seems likely that despite the best efforts of many agents of change at national level to set strict confines to the effects of EU electoral rights, there will inevitably be a spillover from the treatment of EU citizens to the treatment of third country nationals.
IV EU electoral rights: alien suffrage in practice? The final part of this paper briefly develops the four case studies which have been researched in detail in our research. Much of this remains thus far in tabular form, and findings should be taken as preliminary in nature. An important reference point is a preliminary attempt to map some general precepts about the alien suffrage debate onto a fairly standardised framework for European political parties, derived from the types of considerations highlighted in the previous paragraph about the ethics underlying the alien suffrage principle and its relationship to the (nation) state and the evolving Euro-polity.20 This sets out some basic expectations and hypotheses which we can use to analyse the context and impact of Article 19.
Table 6: Extending the boundaries of suffrage: three general positions a) Understanding the context The momentum behind increasing EU integration and the impact of globalizing pressures has not surprisingly prompted a plethora of responses regarding possible final outcomes. Germany’s Foreign Secretary Joschka Fischer has spoken about the idea of a core Europe.21 As a reactive response to the perceived homogenisation of the national culture and threats
20 Table 6: Extending the boundaries of suffrage: three general positions. 21 See for example the speech made by Joschka Fischer ‘From Confederacy to Federation – Thoughts on the finality of European Integration’, (Humboldt University, Berlin, 12 May 2000), Waller Hallstein Institute for European Constitutional Law Homepage, http://www.rewi.hu-berlin.de/WHI/english/index.htm. A number of articles appeared in the Financial Times during the week beginning June 26, 2000 following the statement of the French President Jacques Chirac on the idea of a two-tier Europe. from the east, one of the main policy foundations of the Austrian Freedom Party (FPÖ) is the belief that there is no real Austrian nation, a situation which de facto leader Jorg Haider has argued must be rectified. For some, the term subsidiarity is seen as the best way for national identities and nation states to prevail within a European framework while others see it as a pre-text for the Member State to do nothing.’22 What emerges is three general positions (see Table 6) and two contrary positions for political parties when it comes to the type of Europe that is envisaged for the future: · how can society be made more democratic, a challenge of which voting is one integral but not sole component? · how can society be made more German, Estonian or Austrian?
The answer to such questions will have a significant impact not only upon third country nationals but also on EU citizens and the fate of the European project. In relation to the former will they be integrated in a democratic manner (where naturalization will be made easier) or will they be attacked via blood, culture and history? Will they eventually attain political rights via the provisions on EU citizenship or are they destined to remain disenfranchised by reference to both EU and national law? In relation to the EU citizens, the question is whether they are due to be portrayed as representing some form of dangerous enclave within the host state. If the public policy goal of EU electoral rights is to increase voting rates and representation amongst those EU citizens resident in another EU Member State, then an understanding of the structure of those communities will be necessary.
In London, for example, it has been noted that: The Italian community was the most structured, with cultural organisations, newspaper and local radio. The Spanish and Portuguese had various organisations. The French PS [Socialist Party] was small but there were various ex-patriate organisations, particularly Association des Français à l’Ëtranger (ADFE), who could find that a project to promote voter registration would be useful in the regeneration of their own organisations. The Belgians, Dutch and Scandinavians had small organisations, but although the German community was the largest, it was difficult to contact: the German SDP had no ex-patriate structures.23
In Germany the debate on citizenship and immigration is taking place against a background of serious economic problems in the east where the unemployment rate at 17.3 per cent (compared to 7.7. per cent in the west) and increasing racist violence (which is likely to increase in the face of freedom of movement for the prospective EU Member States after enlargement) which has resulted in racist violence and even murders and a nation-wide debate about what to do. A commission has been established to look into the legality of the National Democratic Party (NPD).24 Reform of the citizenship laws, at the start of 2000, and the question of identity have added to the complexity of the political debate. The divisive nature of this question of identity was aptly highlighted during the debate over the inscription that was to be hung over the main entrance of the German parliament (April 2000). Rather than using the term Das Deutsche Volk (We the German People) the commissioned artist used the term Die Bevölkerung (We the People of Germany). The parliamentary factions were given a free vote with 260 to 258 (31 abstentions) in favour of the use of the term Bevölkerung.25 For the left in Germany, the whole question of the fatherland needs to be addressed. Is it your region, village, country? As a representative of the Party of Democratic Socialism (PDS) put
22 Interview with Tony Venables, ECAS, Brussels, November 1999. 23 Notes of the meeting of the Party of European Socialists London Association held on June 20, 1997, London. 24 There have been a catalogue of racist attacks, a bombing in Dusseldorf and the murder of Alberto Adriano (a Mozambican naturalised German). To date (September 2000) one Nazi group ‘Blood and Honour’ has been proscribed. 25 See the parliamentary debate of April 5, 2000. it: ‘If we can’t address this question then we can’t persuade the people to deal with citizenship issues.’26
In October 1999, Jörg Haider’s Austrian Freedom Party (FPÖ) gained 27 per cent of the vote in a general election. This amounted to 52 seats in the Austrian parliament and in the first week of February 2000 the party obtained a place in the governing coalition with the Austrian People’s Party (ÖVP) at the (reluctant) invitation of the Austrian President. Much of the party’s success had related to, on the one hand, the ability of the FPÖ successfully to create and then stimulate a ‘fear factor’ amongst the Austrian electorate vis-à-vis immigrants/immigration and the EU and, on the other hand, its ability to portray itself as a legitimate protest vote against the activities and status of the post-war establishment, and the system of Proporz (i.e. the system of patronage whereby the two main parties, the Social Democrats - SPÖ - and the People Party – ÖVP – have always been represented in various public spheres according to their numerical electoral strength).
In both Austria and Germany domestic concerns over EU enlargement and the free movement provisions of Article 18 EC27 has prompted declining public support for the EU. In addition, in Austria Jorg Haider’s FPÖ has been able successfully to cast the relationship between Austria and the EU (or more specifically the other fourteen Member States which were responsible for the so-called ‘sanctions’) in terms of a David and Goliath confrontation. Although the Austrian government has stressed its commitment to work within the framework of the EU, it has also said that it will do so ‘in [Austria’s] own interest…and will also continue to represent [Austria’s] interests vigorously and effectively at the European level.’28 The idea of the ‘superstate verses the Member State’ is also apparent in both the UK and Estonia. In the UK, the relationship is intimately linked to the question of sovereignty. For Estonia, ‘joining Europe’ is about:
re-establishing traditional cultural, economic and political links that for centuries have existed between Estonia and the countries of Western Europe…For Estonia, this objective has both symbolic as well as practical significance. Full European Union membership would provide Estonia with the unique opportunity to retrieve, in full, its European identity and end the political, cultural and economic isolation that was imposed upon it for fifty years. On a practical level, Union membership would bolster Estonia’s economic and political development, bringing new opportunities for growth and general well-being of its citizenry.’29 b) The Impact of Article 19 Turning to the text and impact of Article 19, and in particular the relevant implementing legislation30 The goals of the legislation are apparent from the preambles to the Directives:
Whereas the Treaty on European Union marks a new stage in the process of creating an ever-closer union among the peoples of Europe; whereas one of the Union’s tasks is to organize, in a manner demonstrating consistency and solidarity, relations between the peoples of the Member Sates; whereas its fundamental objectives include
26 Interview with the author Berlin May 2000. 27 ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.’ 28 ‘Foreign and European Policy’, A New Governance for Austria, p.5. Document presented to the author. 29 NPAA 1996 Report, p.29 presented to the author by Gert Antsu 30 See Directives 93/109 and 94/80, above n.1. a strengthening of the protection of rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union.31
At the same time, though, the Directives allow safeguards for the national state which can, for example, exclude certain positions at the municipal level from the equal access principle of Article 19. Consequently, the preamble to the Local Elections Directive states that:
‘Whereas, since the duties of the leadership of basic local government units may involve taking part in the exercise of official authority and in the safeguarding of the general interest, member States should be able to reserve these offices for their nationals.’32
There are also a number of derogations in relation to the lunicipal and European elections, which stipulate increased residency periods for EU citizens prior to exercising their rights in those states where their total amounts to more than 20 per cent of the overall population. This was specifically applied to Luxembourg for municipal elections33 and was still deemed to be necessary in 1999.34 In the case of Belgium the derogation was in recognition of the specific characteristics of the Belgium State but was issued as a temporary measure.
The failure of Belgium to implement the Directives resulted in an enforcement action before Court of Justice.35 The comment Mario Monti (then Single Market Commissioner) upon this was as follows:
we cannot expect people to take seriously efforts made by the Union to make citizens’ concerns a priority if Member States fail to implement their rights in practice…In the case of Belgium the Directive incorporates special rules to take account of the large number of people from other Member States. In particular, there is a specific derogation allowing the Belgian authorities to request a minimum residence period before granting the right to vote in a limited number of municipalities where people from other Member States exceed twenty per cent of eligible voters. Despite this, Belgium has failed to fulfil its obligations to implement this Directive on time.36
In Britain, under s.3(1) of the Local Government Elections Regulations 1995,37 the London Mayor and Assembly elections,38 the Welsh Assembly39 and Scottish Parliament40 elections are all now classified as local government elections (see Table 10). The origins of this designation amongst policy-makers is not clear:
It is not clear exactly ‘how’ it was decided that EU nationals were to be able to vote in Assembly elections, but the principle (which also holds for elections to the Scottish Parliament, and indeed held at both devolution referendums) is that the Assembly
31 Preamble of the Council Directive 94/80/EC of 19 December 1994, Official Journal of the European Communities No L 368/38 31.12.94. 32 Preamble of the Council Directive 94/80/EC of 19 December 1994, Official Journal of the European Communities No L 368/38 31.12.94. 33 Article 12(1) of Directive 94/80/EC. 34 Commission Report, November 22, 1999 35 Case C-323/97 above n.6. 36 See ‘Municipal voting: European Commission decides to refer Belgium to Court of Justice’, Commission Homepage
It should be noted that in the case of Vienna, for example, its status as a city and as a Land means that EU citizens are not entitled to vote for elections at the Land level. In 1996, an Italian citizen contested this point.42 It was deemed however that because the city council had the power to make laws then an EU citizen does not have the right to vote. c) The outcome of Article 19
(i) Participation rates For the European elections, the evidence to date indicates a very low rate of participation by EU citizens resident in other Member States (see Table 5). This is usually blamed by the Commission on the considerable obstacles placed in the way of effective participation by the Member States. In Greece, France and Luxembourg for example registering as an alien voter for the European elections required submitting an application between 6 and 15 months in advance. In Italy the process for registration has been criticized for being highly complex.
‘First you have to go to the police for a resident’s card (‘carta di soggiorno’), then to the city council to become a resident and then back to the city electoral office twice to put your name on the two supplementary electoral rolls (one for the local elections and the other for the EP). We are lobbying both the city and the Ministry of the Interior to simplify this process as it obviously discourages EU residents from exercising their vote.’43
Germany has also been criticised for the lack of information about registration requirements. In fact, registration is fixed at a much more voter-friendly 34 days prior to the election. However, in Austria a voter must register at least 68 days prior to the election. The process requires a request to vote in Austria rather than at home. At the local level there is no difference between an Austrian and an EU national. Many EU citizens who attended polling stations in Germany to vote in the 1999 European elections were prevented from doing so because they were not aware that they had had to re-register, which is not a condition placed upon German nationals. This appears to contravene the Directive’s requirement that EU citizens and nationals of the host state must be treated alike.44 The impact of this situation can be demonstrated by reference to the difference between the turnout in the June European elections in Berlin and the October municipal elections (see also the significant decline in the number of registered voters between the 1994 and the 1999 European elections in Tables 2 and 3)45 Indeed both Germany and Greece (for stipulating a two-year residency period) were forced to respond to reasoned opinions emanating from the Commission. Germany had to respond to the discrepancy between EU nationals and German nationals in terms of registration. This is something that the Ministry of the Interior has said will be addressed in
41 Correspondence with an official involved in the Devolution Team for Wales, September 2000. 42 B3113/96 Verfassungsgerichtshof. 43 Dr James Walston, Chair British Labour Party in Rome, correspondence with the author, August 16, 2000. 44 Regarding Germany the Statistical Office of Berlin for example produced an information bulletin in English explaining the eligibility criteria, the procedure for registration and the electoral roll. To vote one needs to take both the polling card and identity document. 45 However, according to Michel Schlikker (Office of the Federal Government’s Commissioner for Foreigners’ Issues) though ‘even where towns and cities took the decision to inform people with a letter the turnout wasn’t any higher than where they didn’t.’ Michael Schlikker, , Berlin, May 2000. the future. A similar situation concerning a discrepancy over registration also occurred at the Land level in Saxony and Bavaria. It is interesting to note that both Länder make use of the safeguards stipulated in the preamble of Local Elections Directive to safeguard certain public offices for German nationals only. Concomitantly, though, a strong sense of apathy was clearly apparent.
Higher levels of participation tends to be associated with specific local characteristics rather than anything to do with the active encouragement of the Member State. In Austria, for example, it had much to do with the fact that the majority of resident EU citizens are German which obviously removes any language barrier. Although the Ministry of Interior has sought to comply with the EU guidelines their argument has been that getting information to EU nationals has been problematic because the process of registration is decentralised. In addition, although the Ministry told municipalities to inform people (not compulsory) and although the campaign material was indeed sent to every house, there was no provision for it to be produced in anything other than German language. At the local level, the nature of the criticism was reversed with claims that there was no co-ordinated campaign emanating from the Ministry of Interior and that it had been left up to the local authorities as to how they should carry out information campaigns.
Ironically, though, increasing participation may well cause its own set of problems. It is not difficult to envisage it becoming a problem if such voters were to participate en masse and were mobilised by a particular party. This was a point of concern for the Belgium authorities in citing their difficulties with implementing the Directives. It is likely to become an issue in the forthcoming October 2000 local elections, which will be the first opportunity for EU citizens to vote. One tactic of the pro-Flemish independence movement Vlaams Blok is to use this right as a way of attacking their pro-EU opponents. At the time of the July deadline for registration some 17.3 per cent of the 496,000 EU-nationals had registered – this is despite the compulsory nature of voting in Belgium. However, it does represent a considerable increase upon 7.71 per cent registration rate for the 1999 European elections.
(ii) The right to stand In terms of the right to stand for the European elections, few parties have been prepared to put forward non-nationals on their party lists. The party family that seems to have been the most receptive (the figure though remains minuscule) has been the Confederal Group of the European United Left/Nordic Green left. In 1994, for example, the German Party of Democratic Socialism (a member of this party group) drafted a federal list that included 3 non-Germans, and in 1999 a British citizen stood on the party-list in Leipzig. However the idea of some form of trans-national list and a Euro-left Party remains a long-way off. In terms of the right to stand there were no EU citizens on the lists of the ÖVP, SPÖ or Greens in Austria46
Although it is possible in principle for EU citizens to establish their own party organisations, there are considerable obstacles. In Germany at least 50 per cent of the membership and executive officers have to be nationals; in Austria the opportunity is a little wider, for in addition to the possibilites of forming a party, anyone can stand for with the signatures of 2,600 registered voters; in the UK, anyone can establish a political party as there is no state regulation; in Estonia only citizens have the right to form political parties. In practice, the reality of electioneering means that transnational parties with transnational lists seems to be the most likely vehicle for the effective implementation of this right at the European level. There does however seem to be some movement, albeit very slowly and quietly. Constitutionally, the on-going IGC and the proposed EU Charter of Fundamental Rights provide certain opportunities for a sustained drive in the direction of a truly transnational political party with a draft statute for transnational parties in circulation. This is in addition to
46 Interview with representatives of ÖVP, June 2000. the already existing constitutional provision Article 191 EC. Interestingly there is an ambiguity in Article 191, so far as it is ironic that ‘European’ parties are constitutionally recognised in the EU but have yet to receive formal recognition within the framework of the EU. This has led to a situation whereby the four main party groups within the EP have collectively sought to pursue a clearer definition of their own role via a submission of a draft European Party Statute to the Commission. It is possible that the general support for the revision of Article 191 (including within the present IGC) will assist/enable the Commission to draw up the necessary changes. Michel Barnier (Commissioner responsible for Regional Policy and the Intergovernmental Conference) stated in July 2000 that
‘This proposal will make an important provision of the Treaty operational. There is no question of replacing the national political parties; we simply wish to have a clearer and more stable framework in which truly European parties can develop.’47
In relation to municipal elections the opportunity to stand and succeed is seemingly greater though still problematic. Does one stand, for example, as a British candidate seeking British votes (which has the obvious disadvantage that there may well not be sufficient British voters to secure election and, and more dangerously, that it could lead to opponents claiming the existence of a British enclave)? Once again it seems to come back to the issue of transnational party links. In Italy, Dr James Walston was the first UK citizen to take advantage of the right to stand in another EU country during the 1997 Rome City Council elections. He did not participate as a stand-alone British candidate, but as an independent on the list of the Democratic Party of the Left (PDS) which provided him (and subsequently the Labour Party in Rome) with office space, guest speakers and the assistance of PDS activists. In return Labour Party activists have canvassed for the PDS.48
In the case of the UK it is the ultimate responsibility of the Electoral Registration Officer to accept the candidature of a candidate under Section 79 and 80 of the 1972 Local Government Act. Estonia is alone in making specific provision for a language requirement (imposed on citizens and non-citizens alike) and this is an issue that needs resolving prior to EU membership. In the Local Government Elections Law, the right to stand is presently open to citizens who have the appropriate knowledge of Estonian. If they are suspected of not having the appropriate level of language knowledge candidates can be taken to court. Such a position would seem to prevent EU citizens from standing, which contravenes Article 19. At the same time, however, many in Estonia believe that the fact that such a stipulation would apply to both Estonian and EU citizens is enough to continue its validity.49 This is almost certainly incorrect, for such a language requirement has a indirectly discriminatory and adverse impact upon more non-citizens than citizens.
(iii) Increasing awareness and participation The lack of participation has caused considerable concern within the Commission where the feeling seems to be ‘that much of the problem lies at the feet of the Member States.’50 In the past few years there have been numerous initiatives, such as the Citizen’s First Initiative, Citizen’s Direct and the present Europe Direct51 campaign whose slogan states that ‘You can live, travel or study anywhere in Europe’. These have sought to assist EU citizens who have
47 See
‘seeks to encourage public debate about the future of Europe between European and national political leaders and the people of Europe…This initiative is in parallel to the Intergovernmental Conference (IGC) on the reform of the institutions that will run throughout 2000 and then continue in 2001 with the ratification of the new treaty.’
Along with a host of issues including the impact of enlargement, the question of how to increase participation amongst ordinary people is uppermost.52 Within the British Parliament, Roger Casale MP called upon the government to launch a national campaign to inform people of their rights:
I welcome the renewed emphasis on European citizenship and remind the House that, as a result of the single market and the freedom of movement that it allows, a very large number of European nationals to live in Britain today. I welcome the fact that they will be able participate fully as citizens in the local elections and in the London referendum next May. When talking about European citizenship, it is important to emphasise that, although the treaty states that European citizenship is important and that it should complement national citizenship, perhaps more can be done to enforce the rights of European citizens, in particular with regard to voting in local and European elections. Perhaps it would be wise for the government to see whether there is some possibility of a national campaign to make those rights more widely known to the large community of European nationals in this country, so that those rights can be exercised in full.53
Another type of initiative, aimed primarily at the political rights dimension of citizenship, has been a ‘bottom-up’ attempt to enhance participation which is known as the Party of European Socialist Associations.54 In response to the citizenship provisions contained within the Maastricht Treaty and the provisions on the active and passive right to vote social-democratic activists in Britain and Germany sought to fully operationalise these rights for the benefit of national and transnational social-democratic forces. Such rights have obviously enfranchised millions of voters across Europe, who firstly needed to be informed of their right to vote and secondly needed to be won over to a particular camp. In Britain there were estimates in 1995 that out of a figure of some 400,000 EU nationals only 7,000 were registered to vote. These are the types of baseline figures which have led such activists to use the electoral rights as a form of political opportunity to address marginalisation.
The basic idea behind the formation of PES local associations was to assist the transnational Party of European Socialists in dealing with these changes by providing the PES with a presence at the grassroots level. This was to be achieved via local networks which were seen as being necessary in order to ‘facilitate the identification of European nationals and encourage them to vote,’ i.e. to participate in the democratic process.55 The British based PES-London Association saw their rationale in the following terms:
52 See Dialogue on Europe: the Challenges of Institutional Reform: first public debate in 8 March 2000
In drawing-up a list of their potential capabilities they sought to convince the PES of their intrinsic merit. Their necessity, or so they thought, arose from their ability to: · Develop closer links between national parties and European socialists resident abroad · Enhance voter identification and encourage registration · Promote membership recruitment to national parties · Organise local social and promotional events · Develop inter-party networking · Mobilise support for local, national and European election campaigns · Disseminate information about the activities and campaigns of the PES · Reinforce links between the structures of the PES, national parties and the rank and file · Develop exchanges of experience and stronger co-operation between the national parties of the PES · To campaign for policies and programmes which are on the agenda of the PES57
In addition, PES Associations were established in Berlin, Frankfurt,58 Groningen and in Malaga where British Labour Party members were in contact with the Spanish PSOE. Although the PES London Association received recognition and approval from the National Executive Committee of the Labour party; and established working relationships with the European Parliamentary Labour Party, the European Co-ordinator of the Leaders Office (via Larry Whitty) and Nick Raynsford MP, as a representative of the London Labour MPs, the lack of ‘real’ tangible help, such as the provision of funds or assistance with printing leaflets etc., was perhaps a better indicator of the national party’s approach to it.
Parallel to these local developments for recognition there were also attempts to obtain recognition from the Party of European Socialists (PES). Although a number of informal links were established with the PES secretariat in Brussels, the Secretariat of the PES Group in the European Parliament, with the Office of the Leader of the PES group in the European Parliament, with ECOSY and with several MEPs, they failed to become officially consolidated. With such noble aims and as an initiative that attempted to enhance the citizenship provisions that the social-democratic left had so keenly supported, it seems rather strange that such aims caused various ruffles not least amongst those who were on the circulation list of the PESLA. Many foresaw a ‘hidden agenda’ of pushing individual membership of the PES. It seems as though this misunderstanding was used to undermine the idea of the association regardless of the fact that its primarily concern was with issues of citizenship. Official recognition was therefore not forthcoming, which in turn cut off another potential avenue of funds. The lack of formal recognition and formal assistance were, while not quite a death-knell, seriously undermined the ability of the PESLA to develop. d) Political rights and third-country nationals In a document prepared by the EU Presidency ‘Towards a Union of Freedom, Security and Justice: The Tampere Milestones’ point 18 reads
56 Personal correspondence presented to the author. 57 Report on PES Local Associations (June 1996) by Roger Casale (PES London Association) and Jean-Marie Langlet (PES Frankfurt Association) 58 The Frankfurt Association that aimed to ‘facilitate closer collaboration between its member parties, especially on projects where there is a need for reciprocal infrastructure support,’ received official recognition from the SPD regional branch of Frankfurt. The European Union must ensure fair treatment of third country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. It should also enhance non-discrimination in economic, social and cultural life and develop measures against racism and xenophobia. Point 21. The legal status of third country nationals should be approximated to that of Member States’ nationals.59
Prior to this the Lund Recommendations60 on the Effective Participation of National Minorities in Public Life went even further by stating that:
Effective participation of national minorities in public life is an essential component of a peaceful and democratic society…These Recommendations aim to facilitate the inclusion of minorities within the State and enable minorities to maintain their own identity and characteristics, thereby promoting the good governance and integrity of the State. (2) These Recommendations build upon fundamental principles and rules of international law, such as respect for human dignity, equal rights, and non- discrimination, as they affect the rights of national minorities to participate in public life and to enjoy other political rights. (3) States shall guarantee the right of persons belonging to national minorities to take part in the conduct of public affairs, including through the rights to vote and stand for office without discrimination.61
Across Europe, however, the issue of third-country nationals is becoming increasingly politicised as the issue of immigration and the existing and projected labour shortages begin to make headlines, with some mainstream (type 3) forces increasingly moving in the direction of type two (see Table 6). Confronted with social-nationalists and their ideology of Kulturkampf, social-democrats have seemingly begun to accommodate certain elements of their erstwhile opponents. Take, for example, the SPÖ (a type three party). Prior to 1988 the party was a very strong proponent of the right to vote at the local level. However with the fall of the Berlin Wall and the large influx of immigration and the rise of the far-right their commitment has waned and their position remains ambiguous i.e. ‘yes’ as a declaratory aspiration but in reality they are doing nothing to advance it.
There are, however, examples of ‘type one’ positions. In the case of Germany, the Party of Democratic Socialism (PDS) argues that
A joint EU immigration policy must rest on the principle that foreign people who permanently live in the Union are put on the same legal footing as citizens of the member countries and be able to enjoy the same political, social and economic rights the respective national and Union legislation hold out to their own citizens. Foreigners who have permanently lived in one of the EU member countries deserve the right to obtain the citizenship of the country they live in and – if they so wish – retain the citizenship of the country of their origin or their previous citizenship. After
59 ‘Towards a Union of Freedom, Security and Justice: The Tampere Milestones’, Presidency Conclusions, Tampere European Council 15-16 October 1999. 60 This arose from Max van der Stoel, who as the first OSCE High Commissioner on National Minorities asked the Foundation on Inter-Ethnic Relations, in co-operation with the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, to bring together a group of internationally recognized independent experts to elaborate recommendations and outline alternatives, in line with the relevant international standards. 61 The Lund Recommendations on the Effective Participation of National Minorities in Public Life and Explanatory Note (Foundation on Inter-Ethnic Relations, September 1999)
However, even the leadership of the PDS cannot ignore the fact that at the local level PDS factions remain unhappy with making the issue such a high profile fearing that it would lose them votes. Ultimately therefore under such circumstances raising the issue of alien suffrage is highly problematic.
In both Germany and Austria third country nationals lack both the right to vote and a collective homogenous voice to be able to pressure for that right. The failure to obtain voting rights has led NGOs to re-orientate themselves towards pursuit of dual citizenship. The new citizenship law of January 2000 did not, however, empower the Turkish community as resident aliens, but rather gave the message that ‘once you have become naturalized then you will be able to participate in the political process.’
In Austria a limited form of participation has developed via the Arbeiterkammer (Chamber of Labour). All workers are potential members and by virtue of paying membership dues become entitled to vote in the Arbeiterkammer elections.63 A decision by the Austrian Administrative Tribunal in March 1999, in light of the Association Agreement between Turkey and the EC, led to Turkish workers being given active and passive voting rights. In 1999 there were three foreigners lists running for the election – Bunte Demokratie für Alle (which gained one of the 181 seats available); the Multikulturelle Aktion der Zukunft (no seats); and the Bündis Mosaik Wien-lists Öztürk (two seats). At present therefore there are four ‘classes’ of workers: 1. Austrian citizens – active and passive voting rights 2. EU citizens – active and passive voting rights 3. Citizens from countries with Association Agreements with the EU – active and passive voting rights 4. Third Country Nationals – right to vote but not the right to stand
The other primary area for associative participation in Austria comes from within the student community where every Austrian Institute has the chance to vote for a student parliament and every Austrian, EU and EEA student has the right to vote. Since 1998 EU citizens have the right to stand. The goal of giving all students the right to vote and stand is supported by all of the student political groups except the FPÖ. In 1998, a proposal to broaden the suffrage rights was blocked by the parliamentary ÖVP. According to Dagmar Hemmer they feared that ‘it would open up a can of worms in terms of active and passive voting rights for other bodies such the Chamber of Labour.’ At the time the SPÖ did not fight the position of the ÖVP much to the annoyance of the SPÖ Students Association who have been strong supporters of the proposal – indeed in 1997 they had put forward a Bulgarian student on their list but he was subsequently removed, as had been a Turkish candidate in 1997.64
What we are faced with therefore is another example of a situation where, despite the support for change from civil society, the fact that any change in the boundaries of suffrage requires change at the level of federal law means that the issue of party politics dominates the issue.
62 ‘For a change in politics in Europe: Europe needs peace, work and democracy in the 21st century’, PDS draft programme for the European elections (motion of the National Executive Committee to the 2nd Session of the 6th Congress to be held in Suhl on March 6, 1999) 63 The Chamber’s primary role is to ensure that the voice of employees is heard at the legislative and executive level. In addition they seek to ensure that workers are adequately equipped to effectively participate within the workers council. 64 In 1999 the SPÖ students Association sent a letter to all foreign students (in German – See Appendix G) informing them of their right to vote. See letter from Dagmar Hemmer ‘Ö- Hwahlen – Du bist wahlberechtigt!’, presented to author June 9, 2000. This of course brings us full circle in terms of the ‘national political scene.’ The fact that, in the near future, the college system throughout Austria is going to become members of the students’ unions thereby requiring legal change at the federal level, is seen as a pending opportunity to address the issue of voting rights once again.
V Conclusions The electoral rights enshrined in Article 19 represent both a threat and an opportunity from the perspective of the ongoing process of EU constitutional construction. On the one hand, opponents may make political capital out of EU measures which disrupt the legal and political landscape of the Member States in a field as closely linked to concepts of national sovereignty as voting rights. Generalised hostility to foreigners can interact with fear of dilution of the national electorate as a result of EU voting rights (and what they might lead to in terms of the enfranchisement of third country nationals) to produce an unpleasant mix of political positions representing a severe challenge to some of the more utopian aspirations which have been attached hitherto to Union citizenship. On the other hand, as the development of bodies such as the PES local associations and certain steps taken by the Greens and the PDS in Germany do demonstrate, electoral rights open new political opportunities in relation to the Europeanisation of domestic politics. Table 1. A breakdown of the percentage of EU citizens who registered for the June 1999 European Elections in Germany’s 16 Länder Land Total numbers Number of Percentage Comparison of EU- Registrations share of with share of Nationals (+18 EU- EU nationals years) eligible nationals registered in to vote 1994 Baden- 323,845 4,529 1.4% 4.4% Württemberg Bayern 281,904 5,674 2.0% 4.1% Berlin 56,063 2,127 3.8% 7.3% Brandenburg 4,778 102 2.1% 1.6% Bremen 9,622 187 1.9% 8.1% Hamburg 56,408 167 0.3% 6.6% Hessen 187,254 4,143 2.2% 7.5% Mecklenburg- 2,656 24 0.9% 3.0% Vorpommern Niedersachsen 94,700 2,816 3.0% 9.3% Nordrhein- 430,107 10,163 2.4% 6.0% Westfalen Rheinland- 66,673 696 1.0% 5.7% Pfalz Saarland 26,510 476 1.8% 4.3% Sachsen 10,220 82 0.8% 4.0% Sachsen- 4,528 70 1.5% - Anhalt Schleswig- 28,213 1,302 4.6% 10.3% Holstein Thüringen 3,543 20 0.6% 4.0% Deutschland 1,587,024 32,578 2.1% 6.6% Source: Der Bundeswahlleiter Mitteilung für die Presse 11 Juni 1999. We are grateful to Frau Gnendiger of the Statistisches Landesamt Berlin for these figures. Table 2. The number of EU Nationals who were eligible to vote and subsequently voted in the June 1999 European elections in Berlin Bezirk Eligible to Voted Turnout (%) vote Mitte 2048 42 2.1% Tiergarten 3388 127 3.7% Wedding 3722 112 3.0% Prenzlauer Berg 2751 130 4.7% Friedrichshain 1596 45 2.8% Kreuzberg 5321 172 3.2% Charlottenburg 6478 251 3.9% Spandau 3064 124 4.0% Wilmersdorf 4480 175 3.9% Zehlendorf 2277 93 4.1% Schöneberg 5106 214 4.2% Steglitz 3378 144 4.3% Tempelhof 2492 104 4.2% Neukölin 5718 173 3.0% Treptow 843 21 2.5% Köpenick 723 8 1.1% Lichtenberg 2780 14 0.5% Weißensee 557 3 0.5% Pankow 717 17 2.4% Reinickendorf 3680 136 3.7% Marzahn 381 13 3.4% Hohenschönhausen 417 5 1.2% Hellersdorf 239 4 1.7% Berlin 62,156 2127 3.4% ‘Wahlberechtige Unionburger und zahl der Eintragungen nach Staatsangehorigkeiten’; We are grateful to Frau Gnendiger of the Statistisches Landesamt Berlin for these figures. Table 3. The number of EU Nationals who were eligible to vote and subsequently voted in the October 1999 municipal election in Berlin Bezirk Eligible to Voted Turnout (%) vote Mitte 2008 236 11.8% Tiergarten 3445 512 14.9% Wedding 3641 591 16.2% Prenzlauer Berg 2802 446 15.9% Friedrichshain 1591 199 12.5% Kreuzberg 5291 803 15.2% Charlottenburg 6305 1301 20.6% Spandau 3070 724 23.6% Wilmersdorf 4434 949 21.4% Zehlendorf 2140 532 24.9% Schöneberg 5087 986 19.4% Steglitz 3348 847 25.3% Tempelhof 2465 532 21.6% Neukölin 5600 848 15.1% Treptow 719 82 11.4% Köpenick 626 54 8.6% Lichtenberg 2295 54 2.4% Weißensee 518 60 11.6% Pankow 649 94 14.5% Reinickendorf 3560 876 24.6% Marzahn 359 31 8.9% Hohenschönhausen 323 27 8.4% Hellersdorf 255 27 10.6% Berlin 60,522 10,811 17.9% Berlin-Ost 12136 1310 10.8% Berlin-West 48,386 9501 19.6% Source ‘Teilnahme der Unionsbürger an den Wahlen zu den Bezirksverordnetenversammlungen in Berlin am 10. Oktober 1999’; we are grateful to Frau Gnendiger of the Statistisches Landesamt Berlin for these figures Table 4. The number of EU citizens entitled to vote in Austria 31.12.98
EU Citizens Bundesland Burgenland 1,438 Kärnten 6,616 Niederösterreich 11,911 Oberösterreich 11,388 Salzburg 10,137 Steiermark 8,686 Tirol 15,379 Vorarlberg 6,950 Wien 24,857 Österreich 97,362 Source: Unionsbürger in Österreich, Ministry of Interior 31.12.1998. Table 5: Selected figures from the 1994 and 1999 European Parliament Elections Member State Total Percentage Number of eligible Number of Percentage of electors Turnout (%) electors registered electors who voted (%) 1994 1999 1994 1999 1994 1999 1994 1999 Austria 67.73 49.4 91,385 97,359 7,261 14,659 7.94 15.06 Belgium* 90.7 90.8 471,277 496,056 24,000 38,236 5.1 7.71 Germany 60 45.19 1,200,00 1,573,31 80,000 33,643 6.6 2.14 6 Denmark 52.9 50.5 27,042 46,400 6,719 12,356 24.85 26.6 Spain 59.1 64.38 192,074 290,085 24,227 64,904 12.61 22.37 Finland 60.3 30.14 11,296 13,898 2,515 3,911 22 28.14 France* 52.7 46.76 1,427,315 1,427,31 47,508 70,056 3.38 4.91 5 Great Britain 36.4 400,00 7,845 1.96 Greece* 71.2 75.30 40,000 40,000 622 736 1.55 1.84 Eire* 44 50.21 13,600 67,900 6,000 29,804 44.11 43.89 Italy 73.7 70.81 152,139 109,8000 2,809 10,136 1.8 9.23 Luxembourg 88.5 105,000 6,907 6.58 * Holland 36 29.89 160,000 167,332 28,284 16.90 Portugal* 35.5 40.03 30,519 30,519 715 4,149 2.34 13.59 Sweden 41.64 150,000 36,191 24 Source: European Commission 10 November, 1999. *Belgium, Greece and Luxembourg have compulsory voting; in France and Portugal, no new information for the number of potential voters in 1999; the figures for Eire do not include British citizens. Table 6: Extending the boundaries of suffrage: three general positions Type of position Characteristics of position Outcome of position Advocates of position Type One 1) Advocates of alien suffrage. Europe of citizens. Enhance social cohesion Generally supported by Greens and Wide suffrage 2) Inclusive political community. by providing a sense of belonging, the Euro-Left formations such as the German 3) Provision of full active and passive creation of a European public opinion and an PDS. Generally oppositional forces or voting rights for legal aliens. emerging European identity. Rights based on junior coalition partners. 4) Jus soli principle of citizenship. residency. 5) Acceptance of dual nationality Support for the notion of Verfassungsnation. Type Two 1) Opponents of alien suffrage. Europe of Fatherlands. Cast the EU in Generally supported by far- Narrow suffrage 2) Exclusive political community. terms of a monolithic bloc that is seeking right/nationalist forces which are 3) Reservation of citizen rights for ethnic to destroy national identity, culture and increasing support and likelihood of population. history (in much the same way as the being junior coalition partners. 4) Jus sanguinis principle of citizenship. Soviet Union had been accused of 5) Opposed to dual nationality viewing it as a threat to national security undertaking with the Eastern Bloc). Restore sense of dignity to nation and citizreny via an appeal to those who feel threatened. Focus on fears of illegal immigrants. Support for the notion of Kulturnation Type Three 1) Declaratory support for alien suffrage A clear declaratory position that is somewhat Generally supported by Social Suffrage via and inclusive political community. clouded in practice. Tend to fear, as governing Democrats and Christian Democrats citizenship Somewhat ambivalent in practice. though the situation is becoming 2) Declaratory support for inclusive forces, the political fallout (rather than being increasingly fluid as the debate political community. Somewhat philosophically opposed) introduction of the gravitates in the direction of type two ambivalent in practice. 3) Seeks integration into the political positions advocated by a type one position. and the political system has to begin community via making the acquisition of accommodating advocates of a type citizenship easier. Gravitate between support for two position at the executive level at 4) Supportive of both jus soli and jus Verfassungnation and Kulturnation either/both the national and local sanguinis. level. 5) Supportive and opposed to dual nationality.
26 Tables 7-10: Constitutional and legislative provisions dealing with voting rights
Table 7: Austria
The legal basis of voting rights Constitutional provisions in The legal basis of active and passive voting rights – constitutional provisions relation to EU voters for EU nationals – statutory legislation Article 26 (1) The House of Article 117 of the Constitution Provisions contained within the constitutional provisions representatives is elected by the Eg1. Art 117 Abs. 2 B-VG (Bundes- of the Land. Take Vienna for example: nation in accordance with the Verfassungsgesetz) - Austrian S16 Abs. 2 GWO (Wiener Gemeindewahlordnung 1996) principles of proportional Constitution: "....Unter den von den – Viennese Election Law: representation on the basis of equal, Ländern festzulegenden Bedingungen "Wahlberechtigt zu den Bezirksvertretungswahlen sind direct, secret and personal suffrage steht das aktive auch Unionsbürger, die for men and women who have und passive Wahlrechtauch den completed their nineteenth year of Staatsbürgern anderer Mitgliedsstaaten life on a day appointed prior to the der election. Voting is compulsory in Europäischen Union zu. ...." the Federal States where this has been enacted by State law. Detailed provisions about the electoral procedure and compulsory voting, if necessary, will be made by federal law. Sources include: For translations of the German and Austrian constitutions see the ICL website
27 Table 8: Estonia
The legal basis of voting rights Constitutional provisions in The legal basis of active and passive voting rights – constitutional provisions relation to EU voters for EU nationals – statutory legislation Article 57 (1) of the Constitution The legislation that will require some form of ‘the right to vote shall belong to amendment is the Local Government Council Election every Estonian citizen who has Act (RT I 1996, 37,739; consolidated to 1999, 60,618) § attained the age of 18.’ (3) An Estonian citizen may run as a candidate (para 3) if he or she is proficient in Estonian to the level provided for in § 3.1. of this Act ‘The oral and written knowledge of Estonian of a member of a local government council shall enable him or her to participate in the work of the council…’
28 Table 9: Germany
The legal basis of voting rights Constitutional provisions in The legal basis of active and passive voting rights – constitutional provisions relation to EU voters for EU nationals – statutory legislation Article 20 (2) All state authority Article 28 (1) The constitutional order in Contained within the constitutional provisions of each emanates from the people. It is the States must conform to the principles Land and laid down by individual legislative provisions being exercised by the people of the republican, democratic, and social through elections and voting… state under the rule of law, within the Article 38 (2) Anyone who has meaning of this Constitution. In each of attained the age of 18 years is the States, counties, and communes, the entitled to vote (3) details are people has to be represented by a body regulated by federal statute chosen in general, direct, free, equal, and secret elections. During elections in counties and communes, persons who possess the citizenship of a European Community country are eligible to vote and being elected according to the laws of the European Community. In communes, the communal assembly can take the place of an elected body. Sources include: For translations of the German and Austrian constitutions see the ICL website
29 Table 10: United Kingdom
The legal basis of voting rights Constitutional provisions in The legal basis of active and passive voting rights – constitutional provisions relation to EU voters for EU nationals – statutory legislation European Parliamentary Elections (Changes to the Franchise and Qualification of Representatives) Regulations 1994 (SI 1994/342) Local Government Elections (Changes to the Franchise and Qualifications of Members) Regulations 1995 (SI 1995/1948)
Government of Wales Act 1998 10. - (1) The persons entitled to vote at an election of Assembly members (or of an Assembly member) in an Assembly constituency are those who on the day of the poll- (a) would be entitled to vote as electors at a local government election in an electoral area wholly or partly included in the Assembly constituency, and (b) are registered in the register of local government electors at an address within the Assembly constituency.
Scotland Act 1998 11. - (1) The persons entitled to vote as electors at an election for membership of the Parliament held in any constituency are those who on the day of the poll- (a) would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the constituency, and (b) are registered in the register of local government electors at an address within the constituency.
30