CYIL vol. 11 (2020)

MAGDALÉNA SVOBODOVÁ CYIL 11 (2020) In C-650/13 Delvigne, 24 the Court of Justice ‘Grand Chamber’ changed its attitude expressed in Eman and Spain v UK judgments and extended the scope of EU law. In this case, a French national was convicted of a serious crime and the sentence entailed, among others, loss of his right to vote and to stand as a candidate at elections to the EP. Although several Member States claimed that the Court of Justice had no jurisdiction to reply to the request for a preliminary ruling since the national legislation at issue fell outside the scope of EU law, the Court of Justice came to the conclusion that France was implementing Union law within the meaning of Article 51(1) of the Charter of Fundamental Rights of the EU (Union Charter) when laying down who was entitled to vote in elections to the EP and who was excluded (which entailed the application of the Union Charter). 25 It should be added that the Union Charter was already a legally binding instrument when the Court of Justice was deciding the Delvigne case (unlike in Eman and Spain v UK ). The Court of Justice tested French legislation in the light of the Union Charter and held that the Union Charter (namely Articles 39(2) and 49(1)) did not preclude such legislation. 26 It follows from the foregoing that the CJEU has not had an opportunity to deal with the issue of membership of Union citizens in national political parties yet. However, it is relevant for the issue in question that the court tends to extend the scope of EU law in connection with political rights of Union citizens ( Delvigne ) and it emphasizes the importance of the principle of prohibition of discrimination based on nationality ( Eman ). In 2009, the Union Charter was made legally binding by virtue of the Lisbon Treaty. 27 The Union Charter confirms the status of political rights of EU citizens as fundamental rights. The electoral rights to the European Parliament and to municipal elections are guaranteed in Articles 39 and 40 of the Union Charter. These provisions correspond to Articles 20(2) and 14(3) TEU and, thus, do not introduce any new rights for Union citizens. However, the additional value lies in combination with other rights in the Union Charter. 28 Article 12(1) 24 C-650/13 Thierry Delvigne v. Commune de Lesparre Médoc a Préfet de la Gironde , ECLI:EU:C:2015:648. 25 Paras 24-33 of Delvigne judgment. See also KORNEZOV, A. The right to vote as an EU fundamental right and the expanding scope of application of the EU Charter of Fundamental Rights. The Cambridge Law Journal , 2016, No 1. 26 In its recent judgment of 19 December 2019, C-502/19 Criminal proceedings against Oriol Junqueras Vies , ECLI:EU:C:2019:1115, the Court of Justice made a decision in a politically highly sensitive case having connection to the referendum on self-determination held in Catalonia (Spain) in 2017 and the subsequent attempt to found an independent Republic there. However, the substance of the case concerned an immunity of a member of the European Parliament and thus, the judgment is not relevant for the issue in question. 27 It is necessary to answer the question whether the Union Charter is applicable on the issue in question due to its limited scope of application in the Member States. Article 51(1) of the Union Charter provides that it is binding on the Member States “only when they are implementing Union law.“ Although EU law does not lay down rules on the membership of Union citizens in national political parties it may be considered to be a corollary of their right to stand as a candidate in the EP elections and in municipal elections (see infra ). Since the CJEU interprets the scope of application of the Union Charter in most cases extensively, we may come to the conclusion that the Union Charter is applicable. For field of application of the Union Charter see HAMUĽÁK, O., MAZÁK, J. The Charter of Fundamental Rights of the European Union vis-à-vis the Member States – Scope of its Application in the view of the CJEU. Czech Yearbook of Public & Private International Law, 2017, Vol. 8, LAZZERINI, N. The Scope and Effects of the Charter of Fundamental Rights in the Case Law of the European Court of Justice. In: PALMISANO, G. (Ed.). Making the Charter of Fundamental Rights a Living Instrument. Leiden, Boston: Brill – Nijhoff, 2014, LENAERTS, K. Exploring the Limits of the EU Charter of Fundamental Rights. European Constitutional Law Review , 2012, No 8. 28 See PEERS, HARVEY, KENNER, WARD, p. 1066.

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