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CJEU - C 650/13 / Opinion

Thierry Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde

Policy area:
Justice, freedom and security
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
04/06/2015

Key facts of the case:

  1. In connection with court proceedings concerning the exclusion from the electoral roll of a citizen deprived for an indefinite period of his right to vote and stand as a candidate as an ancillary consequence of his conviction for the offence of murder, the Court is seised of two questions concerning the compatibility with EU law of the national legislation enabling that situation, with specific reference to two articles of the Charter of Fundamental Rights of the European Union (‘the Charter’) relating to two fundamental rights: the right to the retroactive effect of the more favourable criminal law (third sentence of Article 49(1)) and the right to vote and stand as a candidate in elections to the European Parliament (Article 39(2)). 
     
  2. As is frequently the case, every time the question arises of the possible application of provisions of the Charter (Article 51(1)) to an act of a national public authority, this occasion also calls for an examination, based essentially on the case-law laid down in Åkerberg Fransson, of the prior question whether the national statutory provisions concerned were adopted in order to implement Union law. 
     
  3. I shall suggest different replies to that prior question, which will then allow me to deal exclusively with the issue raised in the second question, which is whether the national legislation is consistent with the right to vote and stand as a candidate (‘the right to vote’) in elections to the European Parliament, at this point with important assistance from the case-law of the European Court of Human Rights.

Results (sanctions) and key consequences of the case:

...I propose that the Court should reply as follows to the questions referred for a preliminary ruling:

  1. The Court lacks jurisdiction, in the circumstances of the case, to give a ruling on the compatibility of the national legislation invoked by the Tribunal d’instance with the right recognised in the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union.
     
  2. Article 39 of the Charter of Fundamental Rights of the European Union does not preclude national legislation such as that at issue in the case in the main proceedings, provided always that it does not prescribe general, indefinite and automatic deprivation of the right to vote and stand as a candidate, without a sufficiently accessible possibility of review, the latter particularly being a matter which it is for the national court to establish.