CJEU - C 650/13 / Judgment Thierry Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde

Key facts of the case:

REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal d’instance de Bordeaux (France), made by decision of 7 November 2013, received at the Court on 9 December 2013, in the proceedings Thierry Delvigne v Commune de Lesparre-Médoc, Préfet de la Gironde.

Results (sanctions) and key consequences of the case:

...the Court (Grand Chamber) hereby rules:

Article 39(2) and the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which excludes, by operation of law, from those entitled to vote in elections to the European Parliament persons who, like the applicant in the main proceedings, were convicted of a serious crime and whose conviction became final before 1 March 1994.

Paragraphs referring to EU Charter: 

 

  1. The French, Spanish and United Kingdom Governments claim that the Court does not have jurisdiction to reply to the request for a preliminary ruling, since, according to those governments, the national legislation at issue in the main proceedings falls outside the scope of EU law. They submit, in particular, that the national court has not invoked any provision of EU law that would establish a connection between the national legislation and EU law, and that therefore the national legislation does not constitute an implementation of EU law for the purposes of Article 51(1) of the Charter.
  2. It should be recalled that the Charter’s field of application so far as concerns action of the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing EU law (judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 17).
  3. Article 51(1) of the Charter confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (see judgments in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 19, and Torralbo Marcos, C‑265/13, EU:C:2014:187, paragraph 29).
  4. Thus, where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (see judgments in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 22, and Torralbo Marcos, C‑265/13, EU:C:2014:187, paragraph 30 and the case-law cited).

...

  1. As a preliminary point, it will be recalled that Article 52(2) of the Charter provides that rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties.
  2. It must be noted in that regard that, according to the explanations relating to the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, must be given due regard for the purpose of interpreting it, Article 39(1) of the Charter corresponds to the right guaranteed in Article 20(2)(b) TFEU. Article 39(2) of the Charter corresponds to Article 14(3) TEU. Those explanations also state that Article 39(2) takes over the basic principles of the electoral system in a democratic State.
  3. As regards Article 20(2)(b) TFEU, the Court has already held that that provision is confined to applying the principle of non-discrimination on grounds of nationality to the exercise of the right to vote in elections to the European Parliament, by providing that every citizen of the Union residing in a Member State of which he is not a national is to have the right to vote in those elections in the Member State in which he resides, under the same conditions as nationals of that State (see, to that effect, judgment in Spain v United Kingdom, C‑145/04, EU:C:2006:543, paragraph 66).
  4. Thus, Article 39(1) of the Charter is not applicable to the situation at issue in the main proceedings, since, as is evident from the material in the file available to the Court, that situation concerns a Union citizen’s right to vote in the Member State of which he is a national.
  5. As regards Article 39(2) of the Charter, it is apparent from the considerations in paragraph 41 of the present judgment that this constitutes the expression in the Charter of the right of Union citizens to vote in elections to the European Parliament in accordance with Article 14(3) TEU and Article 1(3) of the 1976 Act.
  6. It is clear that the deprivation of the right to vote to which Mr Delvigne is subject under the provisions of national legislation at issue in the main proceedings represents a limitation of the exercise of the right guaranteed in Article 39(2) of the Charter.
  7. In that regard, it must be borne in mind that Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights such as those set forth in Article 39(2) of the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (see, to that effect, judgments in Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 50, and Lanigan, C‑237/15 PPU, EU:C:2015:474, paragraph 55).
  8. In the context of the main proceedings, since the deprivation of the right to vote at issue stems from the application of the combined provisions of the Electoral Code and the Criminal Code, it must be held that it is provided for by law.
  9. Furthermore, that limitation respects the essence of the right to vote referred to in Article 39(2) of the Charter. The limitation does not call into question that right as such, since it has the effect of excluding certain persons, under specific conditions and on account of their conduct, from those entitled to vote in elections to the Parliament, as long as those conditions are fulfilled.
  10. Lastly, a limitation such as that at issue in the main proceedings is proportionate in so far as it takes into account the nature and gravity of the criminal offence committed and the duration of the penalty.
  11. As the French Government notes in the observations it submitted to the Court, the deprivation of the right to vote to which Mr Delvigne is subject as a result of his being sentenced to a term of 12 years’ imprisonment for a serious crime was applicable only to persons convicted of an offence punishable by a custodial sentence of between five years and life imprisonment.
  12. Furthermore, the French Government submitted that national law, in particular Article 702-1 of the Code of Criminal Procedure, as amended, provides for the possibility of a person in Mr Delvigne’s situation applying for, and obtaining, the lifting of the additional penalty of loss of civic rights leading to the deprivation of his right to vote.
  13. It follows from the foregoing that Article 39(2) of the Charter does not preclude legislation of a Member State, such as that at issue in the main proceedings, from excluding, by operation of law, from those entitled to vote in elections to the European Parliament persons who, like the applicant in the main proceedings, were convicted of a serious crime and whose conviction became final before 1 March 1994.
  14. As regards the rule as to the retroactive effect of a more lenient criminal law, set out in the last sentence of Article 49(1) of the Charter, that rule states that if, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty is to be applicable.
  15. In the present case, as noted in paragraphs 16 and 22 of the present judgment, when the old Criminal Code was reformed in 1994, the deprivation of the right to vote, as an ancillary penalty resulting by operation of law from a criminal conviction, was abolished and replaced by an additional penalty which must be imposed by a court pursuant to Article 131-26 of the new Criminal Code and which may not exceed ten years in the case of a conviction for a serious offence and five years in the case of a conviction for a less serious offence.
  16. That amendment did not however affect Mr Delvigne’s situation, since, owing to the fact that he was convicted of a serious crime before 1 March 1994, he remains subject to an indefinite voting ban under the combined provisions of the Electoral Code and Article 370 of the Law of 16 December 1992, as amended. The French Government explained at the hearing that the reason for maintaining the effect of convictions that became final before 1 March 1994 had been that the national legislature wanted to ensure that the deprivation of the right to vote resulting from a criminal conviction did not immediately automatically disappear on the entry into force of the new Criminal Code, when that code maintains the deprivation of the right to vote in the form of an additional penalty.
  17. Suffice it to note in that regard that the rule of retroactive effect of the more lenient criminal law, contained in the last sentence of Article 49(1) of the Charter, does not preclude national legislation such as that at issue in the main proceedings since, as is apparent from the wording of Article 370 of the Law of 16 December 1992, as amended, that legislation is limited to maintaining the deprivation of the right to vote resulting, by operation of law, from a criminal conviction only in respect of final convictions by judgment delivered at last instance under the old Criminal Code.
  18. In any event, as noted in paragraph 51 of the present judgment, that legislation expressly provides for the possibility of persons subject to such a ban applying for, and obtaining, the lifting of that ban. As is apparent from the wording of Article 702-1 of the Code of Criminal Procedure, as amended, that option is available to anyone deprived of the right to vote whether as a result, by operation of law, of a criminal conviction under the old Criminal Code, or as a result of a court having imposed an additional penalty under the provisions of the new Criminal Code. In that context, the seising of a national court having jurisdiction under that provision by a person in Mr Delvigne’s situation, who wishes to have a ban that resulted, by operation of law, from a criminal conviction under the old Criminal Code lifted, paves the way for that person’s individual situation to be reassessed, including with regard to the duration of that ban.
  19. Having regard to all the foregoing considerations, the answer to the questions referred is that Article 39(2) and the last sentence of Article 49(1) of the Charter must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which excludes, by operation of law, from those entitled to vote in elections to the European Parliament persons who, like Mr Delvigne, were convicted of a serious crime and whose conviction became final before 1 March 1994.