CYIL vol. 11 (2020)

CYIL 11 (2020) HAVE EU CITIZENS A RIGHT TO BECOME MEMBERS OF NATIONAL POLITICAL PARTIES? Constitutional law of the Czech Republic, namely the Charter of Fundamental Rights and Freedoms (Czech Charter) 44 , provides in Article 20(1): “The right of association is guaranteed. Everybody has the right to associate together with others in clubs, societies, and other associations.” Article 20(2) reads as follows: “ Citizens also have the right to form political parties and political movements and to associate therein.” (bolded by the author). Despite the fact that the Czech Charter explicitly grants the right to form political parties and political movements and to associate therein only to Czech citizens 45 , it does not preclude the introduction of the right of foreigners to form Czech political parties and to become members thereof by virtue of an Act of the Czech Parliament or international agreement. Other legal sources may introduce higher standards of fundamental rights in the Czech Republic than the Czech Charter but not lower. After all, only Czech citizens have the right to participate in the administration of public affairs through free election of their representatives within the meaning of Article 21(1) of the Czech Charter. Nevertheless, Czech Acts 46 lay down electoral rights of Union citizens as well (besides EU law which also forms a part of the Czech legal order). Czech Act No 424/1991 Sb., on association in political parties and political movements 47 (Czech Act on association in political parties) specifies details concerning the right to form political parties and political movements and to associate therein. The Act stipulates in its Section 1 that “[c]itizens are entitled to associate in political parties and political movements (…). By exercising this right, they are able to take part in political life, above all in formation of legislative assemblies, bodies of higher self-governing territorial units and local self-governing authorities. (…).” (bolded by the author). Most legal experts interpret the expression “citizens” as “citizens of the Czech Republic” which means that only Czech citizens are entitled to associate in political parties and movements in the Czech Republic. However, certain legal experts argue that cited Czech legislation does not prevent foreigners from becoming members of Czech political parties; they claim, among others, that political parties and political movements are private legal entities 48 but, it is a minority opinion. Furthermore, there are also proposals to interpret this expression in conformity with EU law as “Union citizens” because the restriction of Union citizens in the membership in Czech political parties leads to indirect discrimination of EU citizens in the exercising of electoral rights granted by EU law (for more details see infra ). 49 Respected authors of the commentary to the Czech Act on association in political parties Kysela and Kokeš aptly remark that this problem is not easy to cope with and they confess they do not concur with each other in this issue. 50 44 Constitutional Act No 2/1993 Coll., available in English at https://www.usoud.cz/fileadmin/user_upload/ ustavni_soud_www/Pravni_uprava/AJ/Listina_English_version.pdf [Accessed: 4. 6. 2020]. 45 Article 42(1) of the Czech Charter provides that the term “citizen” used therein is to be understood as a “citizen of the Czech and Slovak Federal Republic”. After the separation of the Czech and Slovak Federal Republic, it means a “citizen of the Czech Republic”. See for details WAGNEROVÁ, ŠIMÍČEK, LANGÁŠEK, POSPÍŠIL. 46 Act No 491/2001 Sb., on elections to municipal councils and Act No 62/2003 Sb., on elections to the European Parliament, available in English at https://www.psp.cz/en/docs/laws/2003/62.html [Accessed: 4. 6. 2020]. 47 Available in English at https://www.psp.cz/en/docs/laws/1991/424.html [Accessed: 4. 6. 2020]. 48 See SKALKA, p. 303, KOLMAN, P. Proč cizinec nesmí být členem české politické strany? [Why must not a foreigner be a member of a Czech political party?]. 26 January 2016. Bulletin advokacie , available at http://www. bulletin-advokacie.cz/verejne-pravo-proc-cizinec-nesmi-byt-clenem-ceske-politicke-strany [Accessed: 20. 4. 2020]. 49 See ANTOŠ, pp. 123-125. 50 See KYSELA, J., KOKEŠ, M. Zákon o sdružování v politických stranách a v politických hnutích. Komentář. [Act on on association in political parties and political movements. A Commentary]. Praha: Wolters Kluwer, 2017.

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