CYIL vol. 11 (2020)

MAGDALÉNA SVOBODOVÁ CYIL 11 (2020) to bring the matter to the Court of Justice. Although the question of membership of Union citizens in Czech political parties has an inter-State element, the case shows that the Czech court treats it as a matter of national law. It was probably also a judicial strategy of the SAC not to bring the case before the Court of Justice. Should the SAC refer the question to the Court of Justice for preliminary ruling, the Court of Justice might have decided in favour of the right of Union citizens to membership in national political parties. However, we can find a restrictive approach to political rights of Union citizens in other countries too. For instance, an Austrian court ruled in 1997 57 that disenfranchisement of EU citizens for municipal elections for Vienna was admissible because Vienna was both a municipality and a Land but EU law grants electoral rights only for local elections. In my opinion, Czech law excluding EU citizens from membership in Czech political parties and movements is not in line with EU law by aforementioned reasons. As Fabbrini observes, “[t]he recognition that nationals of the EU Member States are citizens of a common Union, weakens the claims of the Member States to defend their local identities, and strengthens the demands by the citizens to be treated more equally.” 58 Yet, it has to be admitted that granting EU citizens the right to membership in Czech political parties entails their influence (to some degree) on national elections. However, given the fact that they cannot vote and stand as candidates in these elections, it is clear that this influence is rather hypothetical or very limited. In the Czech context, primarily Slovak citizens would benefit from the right to membership in Czech political parties because most Union citizens resident in the Czech Republic come from the Slovak Republic. It is well known that Czechs and Slovaks used to be united in the common state and both nations are still very close to each other. Second place belongs to Polish citizens. 59 I assume there are two legal options to provide equal treatment to Union citizens in the area of political association. First, I agree with Antoš that interpretation of the Czech Act on association in political parties (Section 1) in conformity with EU law comes into consideration. 60 Indeed, the Act stipulates that “citizens” are entitled to associate in political parties and political movements. Although this expression is traditionally interpreted in the Czech Republic as “citizens of the Czech Republic” it can be interpreted in a broader sense, to include Union citizens. Second option is (vertical) direct effect of relevant provisions of primary law (Articles 20(2)(b), 22 TFEU, Articles 39, 40 of the Union Charter) prohibiting discrimination of Union citizens in the State of residence. These provisions satisfy the conditions for direct effect contained in the case law of the CJEU because they confer specific rights upon Union citizens (the right to be treated equally in the area of electoral rights granted by EU law), the provisions are sufficiently clear and precisely stated, they are unconditional and not dependent on any other legal provisions (treatment of nationals from the State of residence and nationals from other Member States is either equal or is unequal). 61 57 VfGH B3113/96, B3760/97 [1997]. See FABBRINI, non-paginated. 58 FABBRINI, non-paginated. 59 There were 121 036 Slovak citizens in the Czech Republic and 21 209 Polish citizens in March 2020. See statistical data published by Czech Statistical Office, available in English at https://www.czso.cz/csu/cizinci/ number-of-foreigners-data [Accessed: 4. 6. 2020]. 60 See ANTOŠ, p. 125. 61 The Court of Justice already ruled in its landmark judgment C-26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos proti Nederlandse administratie der belastingen , ECLI:EU:C:1963:1, that a provision of primary law prohibiting discrimination based on nationality had (vertical) direct effect.

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