CYIL vol. 11 (2020)

CYIL 11 (2020) HAVE EU CITIZENS A RIGHT TO BECOME MEMBERS OF NATIONAL POLITICAL PARTIES? of the Union Charter guarantees freedom of assembly and of association, stipulating that “ [e]veryone has the right to … freedom of association at all levels, in particular in political, trade union and civic matters …” (bolded by the author). This provision is relevant for the question of whether Union citizens have a right to become members of national political parties in the host state. In this connection, two remarks have to be made. First, as Groenendijk rightly observes, 29 the right to participate in political parties is expressly guaranteed only at the “Union level”, not at national level (Article 12(2) of the Union Charter and Article 10(4) TEU). Second, freedom of association can be restricted on legitimate grounds of public interest. The Explanations relating to the Union Charter note that the meaning of Article 12 of the Union Charter is the same as Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) with respect to Article 52(3) of the Union Charter 30 and, thus, limitations on that right stipulated by the ECHR are applicable also on Article 12 of the Union Charter. Although the European Union has not accessed to the ECHR, all Member States are contracting parties to the ECHR and the ECHR has always played important part in the Community/EU law. It represents one of the sources of general principles of EU law protecting fundamental rights in the EU (Article 6(3) TEU). Moreover, the aforesaid Article 52(3) of the Union Charter aims at ensuring convergence of fundamental rights in Europe stating that meaning and scope of rights contained in the Union Charter shall be the same as those laid down in the ECHR. It follows that the ECHR and the case law of the European Court of Human Rights have to be taken into account when applying the Union Charter. Article 11(1) ECHR guarantees freedom of assembly and association. Furthermore, Article 11(2) ECHR allows contracting parties to restrict the freedom in the interest of national security, prevention of disorder or crime, and other grounds. What is even more important, Article 16 ECHR allows contracting parties to impose restrictions on the political activities of foreigners. As explained, these provisions have to be taken into consideration when interpreting the Union Charter. Nevertheless, some Czech scholars 31 who are in favour of the membership of Union citizens (or foreigners generally) in Czech political parties, question the applicability of Article 16 ECHR in connection with Union citizens due to the developed level of European integration. They also refer to the judgment of the European Court of Human Rights in Piermont v France 32 . In this decision, the court excluded the application of Article 16 ECHR in the case of an applicant who was a Union citizen and the member of the European Parliament. It is true that the European Union can be understood as a quasi-federation and that the status of Union citizens in the host Member State is very close to the status of its nationals owing to the fundamental principle of prohibition of discrimination based on nationality. 29 See GROENENDIJK, K. Five Pragmatic Reasons for a Dialogue with and Between Member States on Free Movement and Voting Rights. In: BAUBÖCK, R. (ed.). Debating European Citizenship . Springer, 2019, p. 52. 30 „In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.“

31 See, for instance, ANTOŠ, p. 124, GRYGAR, p. 359, SKALKA, p. 301. 32 Judgment of 27 April 1995, applications Nos 15773/89 and 15774/89.

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