In the first week of October, the European Court of Justice delivered an important judgement on the conditions under which an EU citizen may be deprived from their right to vote in the European elections. In addition, Advocate General Cruz Villalón issued two opinions which may have important implications for the right to free movement in the EU if they are retained by the Court.
In the first opinion, the Advocate General states that the UK’s residency tests, which are applied to non-nationals for granting them access to social security benefits, are compatible with EU Law and are justified by the necessity of protecting a State’s public finances.
In the second one, on the rights of the beneficiaries of international protection, the Advocate General argues that the German obligation to take up residence in a specific place in order for these persons to be entitled to social assistance is a restriction of freedom of movement within a Member State and cannot be justified on the basis that the burden of the social assistance should be distributed across the national territory.
The case concerns Mr. Thierry Delvigne, who challenged an automatic permanent ban on his civil rights under French Law, including elections for the European Parliament, after having been convicted of a serious crime in France in 1988. Mr Delvigne looked to be tried according to the reformed French Criminal Code of 1994, which indicates that such bans must be imposed by a Court and may not exceed 10 years.
In its judgement, the European Court of Justice recognizes that such a deprivation of the right to vote exemplifies a limitation of an EU citizen’s civil right to vote in European Parliament elections, which is guaranteed in the Charter of Fundamental Rights of the European Union. However, as long as the ban is proportionate to the nature and gravity of the criminal offence committed and the duration of the penalty for said offence, limits of this nature can in fact be imposed. Further, the Court concludes that it is possible to maintain a ban from voting in EU elections of a person convicted of a serious crime, as is the case with Mr Delvigne.
The Commission had received many complains from nationals of other Member States residing in the UK stating that local authorities had refused their claims for child allowance because they had no right of UK residence. This led to an action by the Commission against the UK on the grounds that these residency checks were discriminatory to non-nationals. The UK maintains that the host State may lawfully make the grant of social security benefits to EU citizens conditional upon them meeting the requirements for obtaining a right of residence in its territory.
Advocate General Villalón proposes that the Court dismiss the Commission’s action. He believes that these checks are not contrary to Directive 2004/38 (regarding an EU citizen’s right to free movement within the Member States) and do not impose additional conditions, but rather examine the lawfulness of that resident to receive the benefits. He recognizes that while it may be construed as indirect discrimination, it is justified by the necessity of protecting the host Member State’s public finances, and ensuring that these benefits are granted only to those who fulfill the necessary conditions. There had also been nothing to suggest that conditions of substance and form were being violated by the UK verification process.
Syrian nationals Mr. Alo and Ms. Osso had unsuccessfully applied for asylum in Germany, but were granted the status of beneficiaries of subsidiary protection and awarded social security benefits. Under German rules, such beneficiaries are subject to a condition requiring residence to be taken up at a particular place – a condition that does not apply to refugees. The rule seeks to ensure individual Länder or municipalities are not disproportionately burdened by granting social assistance to foreign recipients, as well as to facilitate integration and avoid the potential for social segregation.
Advocate General Villalón found that, through comprehensive interpretations, the obligation to take up residence in a specific place is a restriction of freedom of movement. Further, contrary to principle of proportionality requirements, the discrepancy in the treatment of refugees and beneficiaries of subsidiary protection must be addressed. In terms of the reasoning behind residence distribution for the sake of alleviating burden, AG Villalón believes that the current basis is abstract and insufficient, and that alternative measures to redistribute monetary and social responsibilities are possible. It can only be sufficient if it is linked to serious and concrete risks such as obvious cases of social tension that place public order at risk. Moreover, the national legal order must not limit the scope of that condition exclusively to beneficiaries of international protection.