IP/03/1479

Brussels, 29 October 2003

Right to vote in EP elections in Gibraltar

In a declaration adopted today, concerning Spain's complaint against the United Kingdom for alleged violation of Community law as far as the right to vote in EP elections in Gibraltar is concerned, the college states that “The Commission considers, following an in depth analysis of the Spanish complaint and an oral hearing held on the 1^st of October, that the UK has organised the extension of voting rights to residents in Gibraltar within the margin of discretion presently given to Member States by the EU law. However, given the sensitivity of the underlying bilateral issue, the Commission at this stage refrains from adopting a reasoned opinion within the meaning of Article 227 of the Treaty and invites the parties to find an amicable solution”.

“The UK statute which Spain contests” says the declaration, “was adopted by the UK following the “Matthews” judgement of the European Court of Human Rights. Spain does not contest that the UK is under the obligation to give residents of Gibraltar holders of UK passports the right to vote for the European Parliament nor the UK present practice of giving certain Commonwealth citizens resident in the UK the right to vote for the EP”.

Background

The United Kingdom (UK) electoral legislation grants franchise to people defined as “Commonwealth citizens”, even if they are not nationals of the UK. As a result, non-EU citizens living in Gibraltar who qualify as “Commonwealth citizens” can vote in European parliamentary elections.

Spain had filed a complaint with the Commission against the United Kingdom on 27 July 2003, alleging that the UK European Parliament Representation Act 2003 (EPRA 2003) was contrary to Community law.

According to Spain, the UK legislation violates

• Articles 17, 19, 189 and 190 of the EC Treaty dealing with citizenship of the Union and with the European Parliament, because franchise is granted to persons who are not nationals of the UK and hence not EU citizens. EPRA 2003 grants franchise to "qualified Commonwealth citizens", which includes certain non-British third country nationals.

• And Annex II to the 1976 Act on elections of representatives to the European Parliament, because it creates a 'combined electoral region' incorporating Gibraltar into an existing electoral region in England and Wales.

The UK statute which Spain contests was adopted by the UK following the “Matthews v. United Kingdom” case of 18 February 1999 in which it had been condemned by the European Court of Human Rights because no European parliamentary elections had ever been held in Gibraltar. The UK adopted EPRA in May 2003 in order to enable the Gibraltar electorate to take part in such elections.

Uniform Procedure

The EC Treaty grants the European Community competence to lay down a uniform procedure for the elections to the European Parliament. This uniform procedure can include rules defining the category of persons entitled to vote. However, the 1976 Act does not address the issue of franchise. Thus national provisions are applicable.

Even if the franchise in European parliamentary elections is covered by general principles relating to elections (i.e. elections have to be direct, universal, free and secret), there is no general principle of Community law according to which the electorate in European Parliament elections cannot be extended beyond EU citizens.

Electoral Regions

As regards the question of electoral regions, the 1976 Act does not include provisions on establishment electoral constituencies, so it is for the Member States to lay down such provisions.

Annex II to the 1976 Act must be interpreted in the light of the European Convention of Human Rights, which guarantees holding of free elections in the choice of legislature, in order to respect the fundamental rights. It is therefore a provision that is sufficiently open to enable the UK to include Gibraltar electorate in the UK's electorate in European parliamentary elections, according to its national electoral system.