Provisional text

19 November 2024 (*)

( Failure of a Member State to fulfil obligations – Article 20 TFEU – Citizenship of the Union – Article 21 TFEU – Right to move and reside freely within the territory of the Member States – Article 22 TFEU – Right to vote and to stand as a candidate in municipal and European Parliament elections in the Member State of residence under the same conditions as nationals of that State – Citizens of the Union residing in a Member State of which they are not nationals – No right to become a member of a political party – Articles 2 and 10 TEU – Democratic principle – Article 4(2) TEU – Respect for the national identity of the Member States – Article 12 of the Charter of Fundamental Rights of the European Union – Role of political parties in expressing the will of citizens of the Union )

In Case C‑808/21,

ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 21 December 2021,

European Commission, represented by P. Ondrůšek, J. Tomkin and A. Szmytkowska, acting as Agents,

applicant,

Czech Republic, represented by A. Edelmannová, T. Müller, M. Smolek and J. Vláčil, acting as Agents,

defendant,

supported by:

Republic of Poland, represented by B. Majczyna, E. Borawska-Kędzierska and A. Siwek-Ślusarek, acting as Agents,

intervener,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, T. von Danwitz, Vice-President, K. Jürimäe, C. Lycourgos, M.L. Arastey Sahún, A. Kumin and D. Gratsias, Presidents of Chambers, E. Regan, I. Ziemele (Rapporteur), Z. Csehi and O. Spineanu-Matei, Judges,

Advocate General: J. Richard de la Tour,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 12 September 2023,

after hearing the Opinion of the Advocate General at the sitting on 11 January 2024,

gives the following

1 By its application, the European Commission asks the Court to declare that, by denying EU citizens who are not Czech nationals but who reside in the Czech Republic the right to become a member of a political party or political movement, the Czech Republic has failed to fulfil its obligations under Article 22 TFEU.

Legal context

International law

2 Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), is entitled ‘Freedom of assembly and association’ and provides:

‘1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

3 Under Article 16 of the ECHR, entitled ‘Restrictions on political activity of aliens’:

‘Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.’

4 Article 3 of the Additional Protocol to the ECHR, signed in Paris on 20 March 1952, entitled ‘Right to free elections’, is worded as follows:

‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’

European Union law

The EU and FEU Treaties

5 Article 2 TEU provides:

‘The [European] Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’

6 Article 4(1) and (2) TEU reads as follows:

‘1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.

7 Article 5(1) and (2) TEU provides:

‘1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

8 Article 10 TEU provides:

‘1. The functioning of the Union shall be founded on representative democracy.

Member States are represented in the European Council by their Heads of State or Government and in the Council [of the European Union] by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.

3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.

9 The first paragraph of Article 18 TFEU states:

‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

10 Article 20 TFEU reads as follows:

‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

…

(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

…

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.’

11 Article 21(1) TFEU provides:

‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’

12 Article 22 TFEU provides:

‘1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

13 Article 12 of the Charter of Fundamental Rights of the European Union (‘the Charter’), entitled ‘Freedom of assembly and of association’, reads as follows:

‘1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.

14 Article 39 of the Charter, entitled ‘Right to vote and to stand as a candidate at elections to the European Parliament’, provides:

‘1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State.

15 Under Article 40 of the Charter, entitled ‘Right to vote and to stand as a candidate at municipal elections’:

‘Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.’

Directive 93/109/EC

16 Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals (OJ 1993 L 329, p. 34), as amended by Council Directive 2013/1/EU of 20 December 2012 (OJ 2013 L 26, p. 27) (‘Directive 93/109’), states, in the third to seventh recitals thereof:

‘Whereas the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence, laid down in Article 8b(2) [EC], is an instance of the application of the principle of non-discrimination between nationals and non-nationals and a corollary of the right to move and reside freely enshrined in Article 8a [EC];

Whereas Article 8b(2) [EC] is concerned only with the possibility of exercising the right of vote and to stand as a candidate in elections to the European Parliament, without prejudice to Article 138(3) [EC], which provides for the establishment of a uniform procedure in all Member States for those elections; whereas it essentially seeks to abolish the nationality requirement which currently has to be satisfied in most Member States in order to exercise those rights;

Whereas application of Article 8b(2) [EC] does not presuppose harmonisation of Member States’ electoral systems; whereas, moreover, to take account of the principle of proportionality set out in the third paragraph of Article 3b [EC], the content of Community legislation in this sphere must not go beyond what is necessary to achieve the objective of Article 8b(2) [EC];

Whereas the purpose of Article 8b (2) [EC] is to ensure that all citizens of the Union, whether or not they are nationals of the Member State in which they reside, can exercise in that State their right to vote and to stand as a candidate in elections to the European Parliament under the same conditions; whereas the conditions applying to non-nationals, including those relating to period and proof of residence, should therefore be identical to those, if any, applying to nationals of the Member State concerned;

Whereas Article 8b(2) [EC] provides for the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence, without, nevertheless, substituting it for the right to vote and to stand as a candidate in the Member State of which the citizen is a national; whereas the freedom of citizens of the Union to choose the Member State in which to take part in European elections must be respected, while taking care to ensure that this freedom is not abused by people voting or standing as a candidate in more than one country.’

17 Article 1(1) of Directive 93/109 provides:

‘This Directive lays down the detailed arrangements whereby citizens of the Union residing in a Member State of which they are not nationals may exercise the right to vote and to stand as a candidate there in elections to the European Parliament.’

18 Under Article 10(1) of that directive:

‘When he submits his application to stand as a candidate, a Community national shall produce the same supporting documents as a candidate who is a national. He shall also produce a formal declaration stating:

(a) his nationality, date and place of birth, last address in the home Member State and his address in the electoral territory of the Member State of residence;

(b) that he is not standing as a candidate for election to the European Parliament in any other Member State;

(c) where applicable, the locality or constituency in his home Member State on the electoral roll of which his name was last entered, and

(d) that he has not been deprived of the right to stand as a candidate in the home Member State through an individual judicial decision or an administrative decision provided that the latter can be subject to judicial remedies.’

19 Article 11(2) of that directive states:

‘Should a person be refused entry on the electoral roll or his application to stand as a candidate be rejected, the person concerned shall be entitled to legal remedies on the same terms as the legislation of the Member State of residence prescribes for voters and persons entitled to stand as candidates who are its nationals.’

Directive 94/80/EC

20 The fourth, fifth and fourteenth recitals of Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals (OJ 1994 L 368, p. 38) state:

‘Whereas application of Article 8b(1) [EC] does not presuppose complete harmonisation of Member States’ electoral systems; whereas the aim of that provision is essentially to abolish the nationality requirement to which most Member States currently make the exercise of the right to vote and to stand as a candidate subject; whereas, moreover, to take account of the principle of proportionality set out in the third paragraph of Article 3b [EC], the content of Community legislation in this sphere must not go beyond what is necessary to achieve the objective of Article 8b (1) [EC];

Whereas the purpose of Article 8b(1) [EC] is to ensure that all citizens of the Union, whether or not they are nationals of the Member State in which they reside, can exercise in that State their right to vote and to stand as candidates in municipal elections under the same conditions; whereas the conditions applying to non-nationals, including those relating to period and proof of residence, should therefore be identical to those, if any, applying to nationals of the Member State concerned; whereas non-nationals must not be required to fulfil any special conditions unless, exceptionally, different treatment of nationals and non-nationals is justified by circumstances specific to the latter distinguishing them from the former;

…

Whereas citizenship of the Union is intended to enable citizens of the Union to integrate better in their host country; whereas in this context it is in accordance with the intentions of the authors of the Treaty to avoid any polarisation between lists of national and non-national candidates’.

21 Article 1(1) of Directive 94/80 provides:

‘This Directive lays down the detailed arrangements whereby citizens of the Union residing in a Member State of which they are not nationals may exercise the right to vote and to stand as a candidate there in municipal elections.’

22 Article 8(3) of that directive is worded as follows:

‘Voters … who have been entered on an electoral roll in the Member State of residence shall remain thereon, under the same conditions as voters who are nationals, until such time as they are removed automatically because they no longer satisfy the requirements for exercising the right to vote.

Voters who have been entered on the electoral roll at their request can also be removed from it if they so request.

If such voters move to another basic local government unit in the same Member State, they shall be entered on the electoral roll of that unit under the same conditions as voters who are nationals.’

23 Article 9(1) of that directive provides:

‘When he submits his application to stand as a candidate, a person entitled to stand as a candidate within the scope of Article 3 shall produce the same supporting documents as a candidate who is a national. The Member State of residence may require him to produce a formal declaration stating his nationality and his address in the Member State of residence.’

24 Under Article 10(2) of that directive:

‘Should a person not be entered on the electoral roll or have his application form entry refused or have his application to stand as a candidate rejected, the person concerned shall be entitled to legal remedies on similar terms as the laws of the Member State of residence prescribe for voters and persons entitled to stand as candidates who are its nationals.’

Czech legislation

25 Paragraph 1 of zákon č. 424/1991 Sb., o sdružování v politických stranách a v politických hnutích (Law No 424/1991 on associations in political parties and political movements), as amended by zákon č. 117/1994 Sb. (Law No 117/1994) (‘the Law on political parties and political movements’), provides, in subparagraph 1:

‘Citizens shall have the right of association in political parties and political movements (“political parties and political movements”). The exercise of that right enables citizens to participate in the political life of society, in particular in the constitution of legislative bodies and of bodies of local and regional territorial authorities …’

26 Paragraph 2(3) of the Law on political parties and political movements provides:

‘Every citizen aged 18 or over may join a party or a movement; however, he or she may join only one party or movement.’

27 Under Paragraph 20(1) of zákon č. 491/2001 Sb., o volbách do zastupitelstev obcí a o změně některých zákonů (Law No 491/2001 on elections to municipal councils and amending certain laws), in the version applicable to the present action (‘the Law on elections to municipal councils’):

‘The following may constitute an electoral party under this law: registered political parties and political movements …, whose activities have not been suspended, as well as coalitions thereof, independent candidates, associations of independent candidates or associations of political parties or political movements and of independent candidates.’

28 Paragraph 21(1) of zákon č. 62/2003 Sb., o volbách do Evropského parlamentu a o změně některých zákonů (Law No 62/2003 on elections to the European Parliament and amending certain laws), in the version applicable to the present action (‘the Law on elections to the European Parliament’), provides that lists of candidates for elections to the European Parliament may be submitted by registered political parties and political movements whose activities have not been suspended, and by coalitions thereof.

29 Paragraph 22(2) and (3) of the Law on elections to the European Parliament provides:

‘(2) The list of candidates must be accompanied by proof of the nationality of the candidate and a declaration signed by the candidate indicating that he or she consents to standing as a candidate, that he or she is not aware of barriers preventing him or her from standing as a candidate, or as the case may be that those barriers will not exist on the day of the elections to the European Parliament, and that he or she has not consented to his or her inclusion on another list of candidates for elections to the European Parliament, including in another Member State. The candidate shall also state in his or her declaration his or her place of permanent residence or, in the case of a national of another Member State, his or her place of residence and date of birth. The candidate’s declaration may be drafted in Czech or in one of the working languages of the European Union in accordance with Paragraph 4.

(3) If the candidate is a national of another Member State, in addition to the information provided for in subparagraph 2, he or she shall state in his or her declaration his or her place of birth and the address of his or her last place of residence in his or her Member State of origin. He or she shall attach a declaration stating that he or she has not been deprived of the right to stand as a candidate in his or her Member State of origin pursuant to a judicial or administrative decision and shall attach to the list of candidates the documents referred to in the first sentence of subparagraph 2.’

Pre-litigation procedure and proceedings before the Court

30 In 2010, the Commission, within the framework of the EU Pilot scheme, informed the Czech Republic of its doubts about the compatibility with Article 22 TFEU of the fact that only Czech nationals could become members of a political party.

31 Since the information provided by the Czech Republic did not dispel those doubts, and taking the view that, by allowing only Czech nationals to become members of a political party, the Czech Republic had failed to fulfil its obligations under Article 22 TFEU, the Commission sent that Member State a letter of formal notice on 22 November 2012. The Czech Republic replied to that letter on 22 January 2013, disputing any infringement of EU law.

32 On 22 April 2014, the Commission issued a reasoned opinion in which it maintained that the Czech Republic had failed to fulfil its obligations under Article 22 TFEU by denying EU citizens who are not Czech nationals but who reside in Czech territory the right to found a political party or political movement and the right to become a member of such a party or movement. Consequently, the Commission invited the Czech Republic to take the measures necessary to comply with that reasoned opinion within two months of its receipt.

33 In its reply sent on 20 June 2014, the Czech Republic stated, in essence, that the measures taken by it had to be regarded as proportionate and consistent with EU law.

34 By letter of 2 December 2020, the European Commissioner with responsibility for justice asked the Czech Republic for information on changes in its position or on any legislative amendments introduced in order to safeguard the rights concerned for EU citizens who are not Czech nationals residing in its territory.

35 Having received no reply to that letter, the Commission decided to bring the present action, confining its subject matter to a failure by that Member State to fulfil its obligations under Article 22 TFEU by reserving the right to become a member of a political party or political movement to Czech nationals alone.

36 By decision of the President of the Court of 19 May 2022, the Republic of Poland was granted leave to intervene in support of the form of order sought by the Czech Republic.

The action

Admissibility of the action

Arguments of the parties

37 The Czech Republic submits that the present action for failure to fulfil obligations is inadmissible, since the failure alleged cannot be based on Article 22 TFEU. That provision is confined to applying the principle of non-discrimination on grounds of nationality to the right to vote and to stand for election, whereas membership of a political party or political movement is a different aspect of the conditions for the exercise of that right. The Commission therefore actually relies, in support of its action, on infringement of Article 18 TFEU and, by referring to restrictions on the right of association, on infringement of that right, as guaranteed by Article 12(1) of the Charter.

38 In that regard, it is argued, it is not clear from the application what are the matters of law on which the action is based and whether, in addition to the alleged infringement of Article 22 TFEU, the Commission also claims that the Czech Republic infringed Article 18 TFEU and Article 12(1) of the Charter.

39 The Czech Republic maintains that the Commission thus failed to comply with the requirements stemming from the case-law of the Court, according to which the Commission is bound to set out coherently and intelligibly the essential points of law and of fact on which the action is based, points which must correspond to those raised by that institution at the pre-litigation stage of the proceedings. The Commission may not, in its application, base a Member State’s alleged failure to comply with EU law on provisions which are not referred to in the form of order sought in that application and the infringement of which was not claimed at the pre-litigation stage of the proceedings.

40 The Commission disputes the merits of that line of argument.

Findings of the Court

41 It should be recalled that the subject matter of an action under Article 258 TFEU for failure to fulfil obligations is determined by the Commission’s reasoned opinion, so that the action must be based on the same grounds and pleas as that opinion (judgment of 28 June 2022, Commission v Spain (Breach of EU law by the legislature), C‑278/20, EU:C:2022:503, paragraph 24 and the case-law cited).

42

In addition, it is apparent from settled case-law in relation to Article 120(c) of the Rules of Procedure of the Court of Justice that an application initiating proceedings must state clearly and precisely the subject matter of the proceedings and set out a summary of the pleas in law relied on, so as to enable the defendant to prepare a defence and the Court to rule on the application. It follows that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself and that the forms of order sought must be set out unambiguously so that the Court does not rule <i>ultra petita</i> or indeed fail to rule on one of the heads of claim (judgment of 8 March 2022, <i>Commission</i> v <i>United Kingdom (Action to counter undervaluation fraud)</i>, C‑213/19, EU:C:2022:167, paragraph 132 and the case-law cited).

43

The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (judgment of 8 March 2022, <i>Commission</i> v <i>United Kingdom (Action to counter undervaluation fraud)</i>, C‑213/19, EU:C:2022:167, paragraph 133 and the case-law cited).

44

In particular, the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under EU law (judgment of 5 June 2023, <i>Commission</i> v <i>Poland (Independence and private life of judges)</i>, C‑204/21, EU:C:2023:442, paragraph 190 and the case-law cited).

45

As regards, in the first place, the subject matter of the present action for failure to fulfil obligations, the Commission stated in the form of order sought in the application initiating proceedings that its complaint was that the Czech Republic had infringed Article 22 TFEU in so far as that Member State denies EU citizens who are not Czech nationals but who reside in its territory the right to become a member of a political party or political movement.

46

That complaint did indeed appear in the letter of formal notice and in the reasoned opinion.

47

As regards, in the second place, the Czech Republic’s arguments that the wording of the application initiating proceedings is not coherent and intelligible and does not enable that Member State to ascertain the exact scope of the alleged infringement of EU law, it must be observed that it is unequivocally clear from the form of order sought in that application that the Commission takes issue with the Czech Republic for having failed to fulfil its obligations under Article 22 TFEU, specifically the requirement that Member States must ensure that EU citizens residing in a Member State of which they are not nationals have the right to stand as a candidate in municipal and European Parliament elections under the same conditions as those applicable to nationals of that Member State. Since the Commission did not refer to Article 18 TFEU in its application, it cannot therefore be regarded as claiming that that Member State has failed to fulfil its obligations under that article and not under Article 22 TFEU. The question whether Article 22 TFEU does in fact contain an obligation to allow EU citizens residing in a Member State of which they are not nationals to become members of political parties and political movements in that State is, moreover, a question of substance, which must be assessed in the context of the examination of the merits of the alleged failure to fulfil obligations.

48

As for Article 12 of the Charter, it is equally clear from the application that the Commission submits that Article 22 TFEU must be interpreted in the light of that provision of the Charter, without pleading a standalone infringement of it.

49

Consequently, the view cannot be taken that that application is worded in ambiguous terms and does not satisfy, in that respect, the requirements of the case-law cited in paragraphs 42 and 43 above.

50

In view of the foregoing, the plea of inadmissibility must be rejected.

Substance

Arguments of the parties

51

The Commission submits that Article 22 TFEU guarantees EU citizens residing in a Member State of which they are not nationals the right to vote and to stand as a candidate in municipal and European Parliament elections under the same conditions as nationals of that Member State. Consequently, the Czech Republic has failed to fulfil its obligations under Article 22 TFEU since the Law on political parties and political movements confers the right to become a member of a political party or political movement on Czech nationals alone; EU citizens who reside in the territory of that Member State but are not nationals thereof cannot exercise the right to stand as a candidate in municipal and European Parliament elections under the same conditions as Czech nationals.

52

According to the Commission, Article 22 TFEU lays down a general obligation of equal treatment and entails the abolition of the nationality requirement as a prerequisite for voting and standing as a candidate in those elections as well as the abolition of all measures liable to prevent EU citizens residing in a Member State of which they are not nationals from exercising their right to stand for election under the same conditions as nationals of that Member State. Those EU citizens should thus be able to benefit from all the means available under the domestic legal system to national candidates in those elections.

53

In the first place, the Commission states that political parties have a fundamental role to play in Member States’ electoral systems, as they are an essential form of participation in political life and the most commonly used means of taking part in elections as candidates. There is also a direct link between membership of a political party and the possibility of successfully and effectively standing for election. In those circumstances, it is argued, the fact that EU citizens who reside in the Czech Republic but are not nationals thereof are unable to become members of a political party or political movement and are thus unable to enjoy the many advantages entailed by such membership, particularly in terms of public profile, human and financial resources, organisational infrastructure and media access, undermines their ability to stand for election under the same conditions as Czech nationals.

54

The Commission maintains that even if an EU citizen who resides in the Czech Republic but is not a national thereof could stand as an independent candidate on a political party or political movement’s list, he or she would nevertheless be in a less favourable position than candidates for election who are members of the party or movement in question. Such an EU citizen would not have the same prospects of securing a high ranking on that list and would have to endorse a programme in the preparation of which he or she had not, in principle, been involved. The very fact that he or she could stand only as an independent candidate on that list, whereas Czech nationals could stand as members of that party or movement, in itself shows that EU citizens who reside in that Member State but are not nationals thereof cannot stand as candidates for election under the same conditions as Czech nationals.

55

In the second place, the Commission submits that the content and material scope of Article 22 TFEU cannot be reduced solely to the formal aspects regulated by Directives 93/109 and 94/80, which were adopted on the basis of that article. Such an interpretation is not borne out by either the letter of that provision or the letter of Directives 93/109 and 94/80, and would deprive Article 22 TFEU of its effectiveness. Far from supporting a restrictive interpretation of the scope of the Member States’ obligation under Article 22 TFEU, the judgment of 12 September 2006, <i>Eman and Sevinger</i> (C‑300/04, EU:C:2006:545), underlines the crucial importance of the principle of non-discrimination on grounds of nationality in the interpretation and application of that provision. Furthermore, the obligation to ensure equal treatment flowing from Article 22 TFEU is not called into question by the fact that that provision does not contain an exhaustive list of the conditions which must be satisfied for that purpose.

56

In the third place, the Commission states that although it is currently for the Member States to regulate matters relating to municipal and European Parliament elections which are not harmonised at EU level, those States must exercise their powers in accordance with EU law. A national measure liable to restrict the exercise of any of the rights deriving from citizenship of the Union, such as the right to stand as a candidate in those elections, may be justified by the public interest only if that measure is compatible with the fundamental rights guaranteed by EU law, which, it is argued, is not the case here.

57

In the fourth place, according to the Commission, Article 20(2)(b) and Article 22 TFEU must be interpreted in the light of the provisions of the Charter, in particular Article 12(1) thereof, the wording of which corresponds to that of Article 11 of the ECHR.

58

It submits that the deprivation of the right to become a member of a political party is a limitation on the fundamental right to freedom of association and cannot, under Article 52(3) of the Charter, go beyond the limitations permitted by the ECHR. The grounds set out in Article 11(2) of the ECHR which may justify a limitation on the right to freedom of association do not apply in the present case. Furthermore, it is apparent from the judgment of the European Court of Human Rights of 27 April 1995, <i>Piermont v. France</i> (CE:ECHR:1995:0427JUD 001577389, § 64), that Member States cannot rely on Article 16 of the ECHR in relation to nationals of other Member States asserting rights conferred on them by the Treaties, especially since the concept of ‘citizenship of the Union’ is now expressly defined in the Treaties and confers rights on EU citizens.

59

In the fifth place, the Commission maintains that the key role played by political parties and political movements in national parliamentary elections does not justify a restrictive interpretation of Article 22 TFEU and that the prohibition on becoming a member of a political party or political movement cannot be justified by the objective of avoiding any interference in domestic affairs and any undermining of national identity.

60

First, it is argued that political rights were included in the provisions of the FEU Treaty on citizenship in order to ensure that EU citizens residing in a Member State of which they are not nationals can be integrated into and play an active political role in that Member State as regards municipal and European Parliament elections. And yet, Czech legislation on political parties and political movements merely grants such EU citizens the same status as that enjoyed by third-country nationals.

61

Secondly, the Commission asserts that it is open to Member States to reserve the right to stand as candidates in national or, in some cases, regional elections to their own nationals, or to adopt special rules that have the effect of restricting the rights conferred on EU citizens who reside in those Member States but are not nationals thereof as members of a political party or political movement, without the scope of those measures going so far as to undermine the equality of the conditions under which they participate in municipal and European Parliament elections. By contrast, a general prohibition preventing such EU citizens from becoming members of a political party or political movement that actively participates in municipal, parliamentary or European elections clearly also extends to areas in which the right to equal treatment is an enshrined right and is more restrictive than limiting their participation in certain decisions of the political party or political movement in question.

62

The Commission argues that its proposed interpretation of Article 22 TFEU does not undermine the principle of respect for national identity since, on the one hand, Article 4(2) TEU must be interpreted in accordance with the other provisions of the Treaties, including Article 22 TFEU, and, on the other, Article 22 TFEU applies only to municipal and European Parliament elections, not to national parliamentary elections. The scope of Article 22 TFEU cannot be restricted on the basis of Article 4(2) TEU and cannot permit direct discrimination against EU citizens on grounds of their nationality.

63

In any event, the Czech Republic has not, it is submitted, adduced any evidence to show that the possibility for EU citizens who reside in that Member State but are not nationals thereof, and who wish to stand as candidates in municipal and European Parliament elections in that Member State, to become members of a political party or political movement poses a threat to the Czech Republic’s national identity.

64

In the sixth place, the Commission states that, in an action concerning an infringement of EU law as a result of national legislation and not the misapplication of EU law, the Commission is not required to provide the Court with statistical data on the number of EU citizens who have in practice been harmed by that legislation, since it is virtually impossible to prove the adverse effects of a discriminatory measure of a dissuasive nature.

65

It asserts that the statistical data provided by the Czech Republic to show that the situation in that Member State is in fact consistent with Article 22 TFEU are also irrelevant for that reason.

66

In any event, it is argued, the statistical data produced by the Czech Republic relate in general terms to ‘people with no political affiliation’, it not being possible to identify how many of them are EU citizens who reside in that Member State but are not nationals thereof. The situation of such EU citizens is a particular one because they have, by definition, a lower public profile in their host Member State and thus have a greater interest in becoming members of established political parties or political movements, the values and political orientation of which are well known and which have well-oiled election campaign machinery. It is also not possible to ascertain from those data how many applications for the inclusion of such EU citizens on lists of parties or coalitions of parties were unsuccessful.

67

The Commission submits that those data place in context, or even contradict, the Czech Republic’s assertion that the election prospects of a candidate included on a political party or political movement’s list are entirely comparable, whether he or she stands as an independent candidate or as a member of that party or movement. It follows from those data that, as regards the European Parliament elections held between 2004 and 2019, the vast majority of candidates stood as members of a political party or political movement and that, in three of the four European Parliament elections held during that period, the proportion of elected representatives was lower among candidates who were not members of such a party or movement than among candidates who were. Independent candidates elected to the European Parliament are very often individuals who are extremely well known and popular, and the single case in which an EU citizen who resided in the Czech Republic but was not a national thereof was elected to the European Parliament is not representative and does not cast doubt on the existence of <i>de jure</i> discrimination.

68

As for municipal elections, the Commission states that although the view may be taken, as the Czech Republic does, that, having regard to the local scale of those elections, voters tend to prefer candidates known at local level, making it somewhat less attractive for them to stand as members of a political party or a political movement rather than as independents, such a consideration appears relevant only if those persons are nationals of the Member State concerned. EU citizens residing in a Member State of which they are not nationals are, by definition, less well known at local level and would have precisely better prospects of being elected if they were able to stand for election as members of a political party.

69

Finally, according to the Commission, although municipal elections in the Czech Republic are also open to groups of candidates with no political affiliation and to groups of political parties and candidates with no political affiliation, and although the voting arrangements give each voter as many votes as there are members of the municipal council standing for election, which increases the various candidates’ prospects of being elected, that in no way eradicates the discrimination affecting EU citizens who reside in the Czech Republic but are not nationals thereof. In addition, under Paragraph 21(4) of the Law on elections to municipal councils, independent candidates – unlike candidates fielded by political parties and political movements – must submit a petition supporting their candidacy, signed by a specific number of voters depending on the size of the municipality in which they are standing.

70

The Czech Republic, supported by the Republic of Poland, submits, in the first place, that the acquisition of membership of a political party is not a matter falling within the scope of Article 22 TFEU. Such a conclusion follows from the wording of that article, which makes no reference to the conditions for becoming a member of a political party and does not permit the inference that that article encompasses the right of EU citizens residing in a Member State of which they are not nationals to be members of political parties. That is borne out by a historical, systematic and teleological interpretation of Article 22 TFEU and by the case-law of the Court, in particular its judgment of 12 September 2006, <i>Eman and Sevinger </i>(C‑300/04, EU:C:2006:545, paragraph 53), from which it follows that that article is confined to applying the principle of non-discrimination on grounds of nationality to the right to vote and to stand as a candidate in municipal and European Parliament elections, and that it does not cover other national measures relating to elections.

71

The Czech Republic contends that the expression ‘exercised subject to detailed arrangements adopted by the Council’ in Article 22 TFEU means that the exercise of the right to vote and to stand as a candidate in municipal and European Parliament elections is subject to the adoption of provisions of secondary legislation, it not being possible for that article to be applied independently, outside the relevant framework of secondary legislation. In adopting Directives 93/109 and 94/80 on the basis of Article 22 TFEU, the EU legislature took the view that the matters regulated by those directives are those which are necessary to ensure compliance with that article. Since those directives do not regulate other matters, including the acquisition of membership of a political party by EU citizens residing in a Member State of which they are not nationals, their respective material scope clearly confirms that those other matters are not among the ‘same conditions’, within the meaning of Article 22 TFEU, which those EU citizens must be able to enjoy vis-à-vis nationals of their Member State of residence. It follows from the recitals of Directives 93/109 and 94/80 that the EU legislature’s intention was merely to prohibit the nationality requirement for the exercise of the right to vote and to stand for election, and those directives make no reference to the possibility of the right provided for in Article 22 TFEU having any impact on the conditions under which such EU citizens may become members of a political party.

72

According to the Czech Republic, unlike Article 18 TFEU, which lays down a general prohibition on discrimination on grounds of nationality, Article 22 TFEU, as a special provision, applies to EU citizens only once they have obtained the status of voter or candidate in an election. The fact that a person may become a member of a political party does not mean that he or she will stand as a candidate in municipal or European Parliament elections or will be nominated as a candidate on the political party’s lists, which is why the general question of acquisition of membership of a political party cannot fall within the scope of Article 22 TFEU.

73

Article 22 TFEU, it is argued, is an exception to the restrictions which Member States may impose on the political activity of foreign nationals, restrictions which are also recognised by Article 16 of the ECHR.

74

The Czech Republic maintains that, against that background, even if the Commission’s argument that Article 16 of the ECHR cannot be relied on to limit the political activities of EU citizens in the exercise of their rights under the Treaties were to be upheld, there is nothing to prevent a Member State from restricting foreign nationals’ participation in political activities which go far beyond the exercise of that right to vote and to stand for election.

75

Consequently, it is argued, Article 22 TFEU cannot be interpreted broadly, in such a way as to narrow the scope of Article 4(2) TEU. The rules on the functioning of political parties are the cornerstone of Member States’ political and constitutional structures and the European Court of Human Rights recognises the fundamental role played by political parties in national parliamentary elections. Since EU law does not prevent a Member State from allowing only its own nationals to stand in those elections, it is logical that EU law should also not prevent a Member State from similarly limiting the ability of nationals of other Member States to participate in what is the ‘key platform’ for political activity at national level, namely political parties. Such a conclusion also follows from the right conferred on Member States by Article 5(3) of Directive 94/80 to allow only their own nationals to hold posts in municipal executive bodies.

76

The Republic of Poland adds in that regard that the interpretation of Article 22 TFEU advocated by the Commission would mean that EU citizens residing in a Member State of which they are not nationals would have a perpetual, unrestricted right to participate in the political life of that Member State, a right not conferred on them by that article. In principle, Member States have exclusive competence to determine the operating rules, structure and objectives of political parties active in their territories. Consequently, the Commission’s proposed interpretation of Article 22 TFEU is at variance with the principle of conferral, as set out in Article 5(2) TEU. Such an interpretation would also result in the application of Treaty provisions in areas in which the Member States are competent, in breach of Article 4(1) and (2) TEU.

77

In the second place, in the alternative, the Czech Republic, supported by the Republic of Poland, contends that although Czech law does not allow EU citizens who reside in the Czech Republic but are not nationals thereof to become members of a political party or political movement, that law fully implements the rights guaranteed by Article 22 TFEU.

78

According to the Czech Republic, the expression ‘under the same conditions’, within the meaning of that provision, means that EU citizens residing in a Member State of which they are not nationals must be able to exercise their right to vote and to stand for election under the same conditions as nationals of that Member State and they must have the same remedies available to them there. Such an interpretation follows from the sixth recital in Directive 93/109 and Article 10(1) and Article 11(2) thereof and from the fifth recital of Directive 94/80 and Article 8(3), Article 9(1) and Article 10(2) thereof. It is fully implemented in Czech law.

79

The Czech Republic maintains that the ability of a person to stand for election on the lists of political parties or coalitions of political parties is not dependent on that person being a member of any political party or political movement and is common practice in that Member State.

It claims that it follows from the case-law of the Court that the Commission is required to substantiate its claims that candidates for election who are not fielded by a political party or political movement are in a less favourable position than those who are and have fewer prospects of being elected, it not being possible for the Commission to rely on any presumption in that respect.

81

The Czech Republic submits that, in any event, the facts belie those claims, as demonstrated by the statistical data it provided. Those statistical data show that there are many candidates with no political affiliation in that Member State, that they are in no way at a disadvantage during elections, that their status does not differ according to their nationality, and that they may stand as a candidate on the lists of political parties or coalitions thereof, including as lead candidate, and thus reap the full benefit of the reputation of those parties. A candidate’s success in elections depends not on his or her membership of a political party or political movement, but rather on factors such as his or her opinions and personality.

82

Thus, it is argued, during the European Parliament elections held in the Czech Republic in 2004, 2009, 2014 and 2019, at least 30% of candidates on the lists of political parties – including the major political parties – or coalitions thereof were candidates with no political affiliation. Those candidates were ranked sufficiently highly on the list, often as the leading candidate, and enjoyed sufficiently strong support for them to be elected, which is also illustrative of their influence on the drawing up and implementation of the manifesto priorities of those parties or coalitions thereof. In the European Parliament elections held in the Czech Republic in 2004, a German national standing in those elections in that Member State was elected.

83

As regards the municipal elections held in the Czech Republic in 2006, 2010, 2014 and 2018, it is submitted that candidates with no political affiliation accounted for the overwhelming majority of candidates and elected representatives and, in particular, occupied a high proportion of the top-ranked positions on the lists of the major political parties. Candidates with no political affiliation were chosen to head the lists and were also elected in large towns, such as Prague in 2010 and 2014.

84

In addition, the Czech Republic submits that, under Paragraph 20(1) of the Law on elections to municipal councils, independent candidates, groups of independent candidates or groups of political parties or political movements and independent candidates may, inter alia, stand in municipal elections. Under Paragraph 34 of that law, voters are to have as many votes as there are municipal councillors standing for election and may cast their ballot for specific candidates appearing on different lists. Voters are therefore not obliged to vote for a single list, but are able to cast their ballot for specific candidates, irrespective of the list on which they appear. In municipal elections, the personality of the various candidates plays a major role, so that the question whether or not they are members of a political party or political movement is of less importance.

85

The Czech Republic maintains that the Commission cannot downplay the success of candidates with no political affiliation in municipal elections in the Czech Republic by stating that they were prominent individuals, nor can it claim that EU citizens residing in a Member State of which they are not nationals may be less well known, which is all the more reason why they should be able to stand for election as members of a political party in order to have a chance of being elected. A candidate’s personality is a particularly important factor not only in municipal elections, where representatives are elected at the level closest to citizens, but also in European Parliament elections, especially in Member States with fewer Members of the European Parliament. An EU citizen who resides in the Czech Republic but is not a national thereof has exactly the same opportunity to showcase his or her personal qualities as a national of that Member State, and the fact that one such EU citizen, who was not particularly well known in that Member State before his election, was elected to the European Parliament cannot be described as an ‘isolated case’, as the Commission nevertheless claims. That shows, on the contrary, that such EU citizens are fully in a position to stand as a candidate in municipal and European Parliament elections and to be elected, even without being members of a political party or political movement.

86

In the third place, according to the Czech Republic, national legislation which has the effect of preventing EU citizens who reside in that Member State but are not nationals thereof from becoming a member of a political party or political movement is designed to ensure the protection of the political and constitutional system of that Member State and, therefore, to ensure respect for national identity, within the meaning of Article 4(2) TEU, by thus reserving the right to participate in a ‘key platform’ for national political activity to Czech nationals. The measure chosen to safeguard respect for that identity is consistent both with the primary objective of political parties and political movements, which is to influence State policy at the highest possible level, and with the fact that, in the case of municipal and European Parliament elections, membership of a political party or political movement is neither a prerequisite for standing for election nor, a fortiori, a guarantee of being elected. Such a measure is appropriate, it is argued, and does not adversely affect the substance of the right to vote and to stand for election referred to in Article 22 TFEU. In practice, it allows EU citizens who reside in that Member State but are not nationals thereof to exercise that right in full.

87

The Czech Republic contends that the legitimate objective pursued by Czech legislation cannot be achieved by a less restrictive measure. Allowing EU citizens who reside in that Member State but are not nationals thereof to become members of a political party or political movement, yet limiting their membership rights by tying them to decisions relating to municipal or European Parliament elections, is inconceivable; it would mean that such EU citizens could participate in only a marginal share of that party or movement’s activity and that they would be excluded from all other aspects of its activity. The Czech Republic, supported by the Republic of Poland, states that such legislation would be at variance with the fundamental principle of equal treatment of members of a political party and would not afford those EU citizens the strong position in the political party which the Commission – wrongly – considers to be necessary. Indeed, in its reasoned opinion, the Commission failed to identify which less restrictive measures could have been adopted by the Czech Republic in that regard.

88

Finally, the Czech Republic, supported by the Republic of Poland, submits that, according to the case-law of the Court, in the absence of specific provisions in the FEU Treaty relating to the right of EU citizens residing in a Member State of which they are not nationals to become a member of a political party, it is for the Member States to adopt the rules best suited to their constitutional system.

Findings of the Court

89

By its action, the Commission asks the Court to declare that, by denying EU citizens who reside in the territory of the Czech Republic but are not nationals thereof the right to become members of a political party or political movement, that Member State has failed to fulfil its obligations under Article 22 TFEU.

90

In order to examine the merits of that action, it is necessary to determine the scope of Article 22 TFEU before assessing whether the difference in treatment on grounds of nationality thus introduced by Czech legislation, as regards the possibility of becoming a member of a political party or political movement, is prohibited by that provision or may potentially be justified by reasons relating to respect for a Member State’s national identity.

91

It is settled case-law of the Court that the interpretation of a provision of EU law requires that account be taken not only of its wording and the objectives it pursues, but also of its context. The origins of a provision of EU law may also provide information relevant to its interpretation (judgment of 14 July 2022, <i>Italy and Comune di Milano </i>v<i> Council (Seat of the European Medicines Agency)</i>, C‑59/18 and C‑182/18, EU:C:2022:567, paragraph 67 and the case-law cited).

92

In the first place, according to the wording of Article 22 TFEU, EU citizens residing in a Member State of which they are not nationals are to have the right to vote and to stand as a candidate in municipal and European Parliament elections under the same conditions as nationals of that Member State, and those rights are to be exercised subject to detailed arrangements adopted by the Council.

93

The wording of Article 22 TFEU contains no reference to the conditions for acquiring membership of a political party or political movement.

94

By contrast, it is apparent from that wording, first of all, that the right to vote and to stand as a candidate conferred on EU citizens residing in a Member State of which they are not nationals concerns municipal and European Parliament elections in that Member State.

95

It follows, next, that those EU citizens enjoy that right ‘under the same conditions’ as nationals of the Member State in which they reside. By referring to the conditions governing the right to vote and to stand for election applicable to nationals of the Member State of residence of such an EU citizen, Article 22 TFEU prohibits that Member State from making the exercise of that right by that EU citizen subject to conditions other than those applicable to its own nationals.

96

That provision thus lays down a specific rule of non-discrimination on grounds of nationality applicable to the exercise of the right to vote and to stand as a candidate in municipal and European Parliament elections (see, to that effect, judgments of 12 September 2006, Spain v United Kingdom, C‑145/04, EU:C:2006:543, paragraph 66; of 12 September 2006, Eman and Sevinger, C‑300/04, EU:C:2006:545, paragraph 53; and of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 42) and, consequently, applies to any national measure giving rise to a difference in treatment liable to undermine the effective exercise of those rights.

97

Furthermore, it should be noted that that rule of non-discrimination is simply a specific expression of one of the fundamental principles of EU law, namely the general principle of equality (see, by analogy, judgment of 20 February 2024, X (Lack of reasons for termination), C‑715/20, EU:C:2024:139, paragraph 43 and the case-law cited).

98

In accordance with settled case-law, the first paragraph of Article 18 TFEU is intended to apply independently only to situations governed by EU law with respect to which the FEU Treaty does not lay down specific rules on non-discrimination (judgment of 15 July 2021, The Department for Communities in Northern Ireland, C‑709/20, EU:C:2021:602, paragraph 65).

99

The Czech Republic cannot therefore validly claim that the national legislation referred to in the Commission’s application falls within the scope of the first paragraph of Article 18 TFEU, and not Article 22 TFEU, which it claims applies to an EU citizen residing in a Member State of which he or she is not a national only once he or she has obtained the status of voter or candidate in an election.

100

Finally, it is apparent from the wording of Article 22 TFEU that those rights to vote and to stand for election are to be exercised subject to detailed arrangements adopted by the Council.

101

In that regard, Directives 93/109 and 94/80, which were adopted under Article 8b EC, now Article 22 TFEU, lay down detailed arrangements for the exercise of the right to vote and to stand as a candidate in elections to the European Parliament and in municipal elections, respectively.

102

It is true that those directives – which, as is apparent from the fifth recital of Directive 93/109 and the fourth recital of Directive 94/80, do not carry out an exhaustive harmonisation of Member States’ electoral systems – do not contain provisions relating to the conditions for the acquisition, by EU citizens residing in a Member State of which they are not nationals, of membership of a political party or political movement.

103

However, the scope of those directives cannot, even implicitly, limit the scope of the rights and obligations arising under Article 22 TFEU. In that connection, it must be observed that the specific rule of non-discrimination on grounds of nationality contained in that provision is framed in general terms and, according to the very wording of Article 22 TFEU, only the exercise of the rights to vote and to stand for election laid down therein is subject to detailed arrangements adopted by the Council. While those arrangements may indeed ‘provide for derogations where warranted by problems specific to a Member State’, they cannot however, except in those particular circumstances, have the effect of generally undermining the effectiveness of those rights.

104

In that regard, although, in the absence of specific provisions relating to the conditions under which EU citizens residing in a Member State of which they are not nationals may become members of political parties or political movements in that Member State, the determination of those conditions falls within the competence of the Member States, when exercising that competence, they are required to comply with their obligations under EU law (see, by analogy, judgments of 2 March 2010, Rottmann, C‑135/08, EU:C:2010:104, paragraph 41 and the case-law cited; of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’, C‑490/20, EU:C:2021:1008, paragraph 38; of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 63; and of 5 September 2023, Udlændinge- og Integrationsministeriet (Loss of Danish nationality), C‑689/21, EU:C:2023:626, paragraph 30 and the case-law cited).

105

Thus, while complying with the arrangements laid down in those directives, a Member State may not, outside the areas governed by those directives, make an EU citizen who resides in that Member State but is not a national thereof subject to national provisions introducing a difference in treatment in the exercise of the rights conferred on him or her by Article 22 TFEU, otherwise the effectiveness of the rule of non-discrimination on grounds of nationality enshrined in that article will be undermined (see by analogy, as regards Article 21(1) TFEU, judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 54, and of 27 June 2018, Altiner and Ravn, C‑230/17, EU:C:2018:497, paragraph 26).

106

Consequently, neither the absence, in Directives 93/109 and 94/80, of provisions relating to the conditions under which EU citizens residing in a Member State of which they are not nationals may become members of political parties or political movements in that Member State, nor the principle that competences not conferred on the European Union in the Treaties remain with the Member States, enshrined in Article 4(1) and Article 5(2) TEU, supports the conclusion that the determination of the conditions for acquiring membership of a political party or political movement falls outside the scope of Article 22 TFEU.

107

As regards, in the second place, the context of Article 22 TFEU, reference should be made both to the other provisions of the FEU Treaty and to the provisions of the same rank contained inter alia in the EU Treaty and the Charter.

108

In that connection, it must be noted, first, that Article 22 TFEU is in Part Two of the FEU Treaty, containing provisions on non-discrimination and citizenship of the Union.

109

Article 20 TFEU confers on every person holding the nationality of a Member State citizenship of the Union, which, according to settled case-law, is destined to be the fundamental status of nationals of the Member States (judgments of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31; of 18 January 2022, Wiener Landesregierung (Revocation of an assurance of naturalisation), C‑118/20, EU:C:2022:34, paragraph 38 and the case-law cited; and of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques, C‑673/20, EU:C:2022:449, paragraph 49).

110

Article 22 TFEU, read in conjunction with Article 20(2) TFEU, links the right to vote and to stand as a candidate in municipal and European Parliament elections to citizenship of the Union (see, to that effect, judgments of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques, C‑673/20, EU:C:2022:449, paragraphs 49 to 51 and the case-law cited, and of 18 April 2024, Préfet du Gers and Institut national de la statistique et des études économiques, C‑716/22, EU:C:2024:339, paragraphs 40 and 41).

111

The right to vote and to stand as a candidate in municipal and European Parliament elections is thus conferred by citizenship of the Union and, contrary to what the Czech Republic claims, it cannot, therefore, be construed as an exception to a purported rule that only nationals of a Member State may participate in the political life of that State, which would require Article 22 TFEU to be interpreted restrictively. Such an interpretation would be at odds with the fact that citizenship of the Union is intended to constitute the fundamental status of those nationals.

112

Moreover, under Article 20(2) and Article 21 TFEU, citizenship of the Union confers on each EU citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the FEU Treaty and the measures adopted for their implementation (judgment of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques, C‑673/20, EU:C:2022:449, paragraph 50).

113

There is thus a connection between, on the one hand, the right to freedom of movement and residence and, on the other, the right of EU citizens residing in a Member State of which they are not nationals to vote and to stand as a candidate in municipal and European Parliament elections. As the Advocate General observed in points 68 and 69 of his Opinion, that connection was established when that right to vote and to stand for election was enshrined in the Treaty of Maastricht, by attaching that right to the right to move and to reside freely within the territory of the Member States.

114

Secondly, under Article 10(1) TEU, the functioning of the European Union is to be founded on representative democracy, which gives concrete expression to democracy as a value. Democracy is, under Article 2 TEU, one of the values on which the European Union is founded (see, to that effect, judgments of 19 December 2019, Puppinck and Others v Commission, C‑418/18 P, EU:C:2019:1113, paragraph 64, and of 19 December 2019, Junqueras Vies, C‑502/19, EU:C:2019:1115, paragraph 63).

115

Article 10(2) and (3) TEU confers on EU citizens the right to be directly represented in the European Parliament and to participate in the democratic life of the European Union.

116

As the Advocate General stated, in essence, in point 74 of his Opinion, Article 10 TEU underscores, as regards elections to the European Parliament, the connection between the principle of representative democracy within the European Union and the right to vote and to stand as a candidate in European Parliament elections attached to citizenship of the Union, guaranteed by Article 22(2) TFEU.

117

Thirdly, Article 12(1) of the Charter enshrines the right of everyone to freedom of association at all levels, in particular in political, trade union and civic matters.

118

That right corresponds to the right guaranteed in Article 11(1) of the ECHR and must therefore be regarded as having the same meaning and scope as the latter, in accordance with Article 52(3) of the Charter (see, to that effect, judgment of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraph 111), which does not preclude EU law from affording more extensive protection (judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings), C‑660/21, EU:C:2023:498, paragraph 41).

119

In that context, it is apparent from the case-law of the European Court of Human Rights that the right to freedom of association is one of the essential foundations of a democratic and pluralist society, in that it allows citizens to act collectively in areas of common interest and, in so doing, to contribute to the proper functioning of public life (see, to that effect, ECtHR, 17 February 2004, Gorzelik and Others v. Poland, CE:ECHR:2004:0217JUD 004415898, §§ 88, 90 and 92).

120

The fundamental role of political parties in expressing the will of EU citizens is recognised, as regards political parties at European level, in Article 10(4) TEU and Article 12(2) of the Charter.

121

Political parties, one of whose functions is to field candidates in elections (see, by analogy, ECtHR, 8 July 2008, Georgian Labour Party v. Georgia, CE:ECHR:2008:0708JUD 000910304, § 142), thus fulfil an essential function in the system of representative democracy, on which the functioning of the European Union is founded, in accordance with Article 10(1) TEU.

122

It follows that membership of a political party or political movement contributes significantly to the effective exercise of the right to stand for election, as conferred by Article 22 TFEU.

123

In the third place, with respect to the objective of Article 22 TFEU, that article seeks, first, to confer on EU citizens residing in a Member State of which they are not nationals the right to participate in the democratic electoral process of that Member State. As pointed out in paragraph 94 above, that right extends to participation in that process through the right to vote and to stand for election at European and local level.

124

Secondly, that article seeks to ensure equal treatment between EU citizens, which implies that, if EU citizens residing in a Member State of which they are not nationals are to be able to exercise effectively their right to stand for election, they must have equal access to the means available under the domestic legal system to nationals of that Member State for the purpose of exercising that right in municipal and European Parliament elections.

125

Thirdly, it follows from the connection between, on the one hand, freedom of movement and residence and, on the other, the right to vote and to stand as a candidate in those elections, referred to in paragraph 113 above, that the latter is intended, amongst other things, to promote the gradual integration of the EU citizen concerned in the society of the host Member State (judgments of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 56, and of 18 January 2022, Wiener Landesregierung (Revocation of an assurance of naturalisation), C‑118/20, EU:C:2022:34, paragraph 42).

126

As the Advocate General made clear in point 75 of his Opinion, Article 22 TFEU is thus intended to ensure that EU citizens residing in a Member State of which they are not nationals are represented, as a corollary to their integration in the society of the host Member State.

127

Consequently, it must be held that Article 22 TFEU, interpreted in the light of Articles 20 and 21 TFEU, Article 10 TEU and Article 12 of the Charter, requires that, if EU citizens residing in a Member State of which they are not nationals are to be able to exercise effectively their right to vote and to stand as a candidate in municipal and European Parliament elections in that Member State, they must be afforded equal access to the means available to nationals of that Member State for the purpose of exercising those rights effectively.

– Whether there is a difference in treatment prohibited by Article 22 TFEU

128

As is apparent from paragraph 90 of this judgment, Czech law establishes a difference in treatment on grounds of nationality as regards the possibility of becoming a member of a political party or political movement.

129

The Czech Republic, supported by the Republic of Poland, nonetheless argues, in the alternative, that that difference in treatment is not contrary to Article 22 TFEU since, first, Czech law affords EU citizens who reside in the Czech Republic but are not nationals thereof the possibility of having recourse to all the forms of candidacy available, including candidacy on a list put forward by a political party or political movement, with inclusion on such a list not being contingent on that person’s membership of any political party or political movement.

130

Secondly, the Czech Republic maintains that the Commission has not shown that the prohibition on such EU citizens becoming members of a political party or political movement limits the exercise of their right to stand as a candidate in municipal and European Parliament elections, or that candidates with no political affiliation are in a less favourable position than candidates who are members of a political party or political movement, an assertion that is moreover refuted by the statistical data provided by the Czech Republic.

131

In that regard, it should be recalled that, as is apparent from settled case-law of the Court, it is for the Commission to prove its allegations that obligations have not been fulfilled and it may not rely on any presumption for that purpose (judgment of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraph 36 and the case-law cited).

132

However, the existence of a failure to fulfil obligations may be proved, where it has its origin in the adoption of a legislative or regulatory measure whose existence and application are not contested, by means of a legal analysis of the provisions of that measure (judgments of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraph 37 and the case-law cited, and of 16 November 2021, Commission v Hungary (Criminalisation of assistance to asylum seekers), C‑821/19, EU:C:2021:930, paragraph 106).

133

In the present case, the failure to fulfil obligations for which the Commission holds the Czech Republic responsible has its origin in the adoption of a legislative measure, in particular Paragraph 1 and Paragraph 2(3) of the Law on political parties and political movements, whose existence and application are not contested by that Member State and whose provisions are the subject of a legal analysis in the application initiating proceedings.

134

It is therefore necessary to examine the merits of that analysis by determining whether the result of the difference in treatment established by Paragraph 1 and Paragraph 2(3) of the Law on political parties and political movements is that EU citizens who reside in the Czech Republic but are not nationals thereof do not enjoy equal access to the means available to nationals of that Member State for the purposes of effectively exercising their right to stand for election, in breach of Article 22 TFEU.

135

So far as concerns elections to the European Parliament, Paragraph 21(1) of the Law on elections to the European Parliament provides that the lists of candidates in those elections may be submitted by registered political parties and political movements and by coalitions thereof. Under Paragraph 22(2) and (3) of that law, nationals of a Member State other than the Czech Republic may be included on the list of candidates thus submitted.

136

As for municipal elections, in accordance with Paragraph 20(1) of the Law on elections to municipal councils, registered political parties and political movements, as well as coalitions thereof, independent candidates, associations of independent candidates or associations of political parties or political movements and of independent candidates may constitute an electoral party under that law.

137

It follows that, in European Parliament elections, only political parties and political movements, as well as coalitions thereof, are able to field candidates and, as regards municipal elections, those political parties and political movements are among the formations entitled to field candidates in those elections.

138

Paragraph 22(2) and (3) of the Law on elections to the European Parliament provides that nationals of a Member State other than the Czech Republic may be included on the list of candidates submitted by registered political parties and political movements and by coalitions thereof. The Czech Republic states – without being challenged on that point by the Commission – that that form of candidacy is also possible in municipal elections, on a list submitted by a political party or political movement or by a coalition thereof, and that, in any event, independent candidates may constitute an electoral party in order to stand in municipal elections.

139

While it is therefore possible, as the Czech Republic maintains, for a candidate who is not a member of a political party or political movement to be included on a list of candidates submitted by a political party or political movement, or by a coalition thereof, it must be observed, first, that the fact that an EU citizen who resides in the Czech Republic but is not a national thereof and who wishes to take part in those elections is not able to become a member of a political party or political movement, pursuant to Paragraph 1 and Paragraph 2(3) of the Law on political parties and political movements, is liable to preclude that person from participating in the decision of that party or movement concerning his or her inclusion and ranking on that list of candidates, or at the very least to limit that participation.

140

As regards potential candidates who share the political ideas of a political party or political movement, although the prohibition on becoming a member thereof does not act as an absolute bar to them being included on a political party or political movement’s list, it does at the very least make such inclusion more difficult, since, in principle, it will be for the members of the political party or political movement to choose the candidates to be included on their lists and to decide on the ranking of those candidates thereon, which may have an impact on the candidates’ prospects of being elected.

141

That circumstance places EU citizens who reside in the Czech Republic but are not nationals thereof in a less favourable position than Czech nationals, who are members of a political party or political movement in that Member State, as regards the possibility of standing as a candidate in municipal and European Parliament elections on the list of such a political party or political movement, or of a coalition thereof.

142

Secondly, the fact that Czech nationals may choose to stand as candidates either as members of a political party or political movement or as independents, whereas EU citizens who reside in the Czech Republic but are not nationals thereof are only afforded the latter possibility, demonstrates, as the Advocate General stated in point 109 of his Opinion, that those EU citizens are unable to exercise their right to stand as a candidate in those elections under the same conditions as Czech nationals.

143

The result of the difference in treatment established by Paragraph 1 and Paragraph 2(3) of the Law on political parties and political movements is therefore that EU citizens who reside in the Czech Republic but are not nationals thereof do not enjoy equal access to the means available to nationals of that Member State for the purposes of effectively exercising their right to stand as a candidate in municipal and European Parliament elections.

144

The Czech Republic nonetheless submits that there are many candidates with no political affiliation, that they are not at a disadvantage, and that membership of a political party or political movement does not affect candidates’ prospects of being elected, since those prospects depend on the candidates’ activities and personality. The statistical data produced by that Member State, it is argued, thus show that the legislation at issue has no adverse impact on EU citizens who reside in that Member State but are not nationals thereof and who wish to stand as candidates in municipal and European Parliament elections.

145

Yet, statistical data reflecting the proportion of independent candidates in municipal and European Parliament elections in general are not such as to call into question the finding, made in paragraph 143 above, that the difference in treatment established by the Czech legislation at issue in the Commission’s action deprives EU citizens who reside in the Czech Republic but are not nationals thereof of equal access to the means available to nationals of that Member State for the purposes of effectively exercising their right to stand as a candidate in municipal and European Parliament elections.

146

It is true that those data show that, as regards European Parliament elections, most candidates and elected representatives were members of a political party or political movement, although a not insignificant proportion of candidates and elected representatives stood in those elections as independents. Moreover, as for municipal elections, it can be inferred from those data that, in the four elections covered, the proportion of candidates and elected representatives who were members of political parties was lower than the proportion accounted for by independent candidates and independent elected representatives.

147

However, as the Commission maintains, those observations do not enable any decisive conclusions to be drawn concerning the specific situation of EU citizens who reside in the Czech Republic but are not nationals thereof as regards the effective exercise of their right to stand as a candidate in municipal and European Parliament elections.

148

First, those citizens are generally less well known than nationals of their Member State of residence and may thus have a greater interest than those nationals in being able to benefit from a party’s apparatus and image in order to boost their public profile and improve their prospects of being elected. Secondly, the statistics produced by the Czech Republic do not make any comparison between EU citizens who reside in that Member State but are not nationals thereof and Czech nationals concerning their respective prospects of being included as independent candidates on lists submitted by a political party or political movement.

149

As for the arguments seeking to place in context a person’s interest in standing as a candidate on a political party or political movement’s list in municipal elections, in the light of the voting arrangements which entitle voters to cast their ballot for candidates on different lists, they do not enable any conclusion to be drawn on the matter of access for EU citizens who reside in the Czech Republic but are not nationals thereof to a candidacy on a list put forward by a political party or political movement.

150

Furthermore, as the Advocate General observed in point 111 of his Opinion, the Commission, without being contradicted on that point by the Czech Republic, rightly states that access to an independent candidacy is subject to the statutory requirement to submit a petition signed by voters, the number of signatures being determined by the size of the municipality in which the candidate is standing, whereas candidates of political parties or political movements are not subject to such a requirement.

151

Lastly, although the effect on voters of election candidates’ personality and activities cannot be underestimated, their membership of a political party or political movement that, by its very nature, seeks to secure for its candidates a favourable result in elections and whose organisational apparatus and human, administrative and financial resources are dedicated to the pursuit of that objective, is likely to enhance their chances of election.

152

In the light of the foregoing, it must be held that the result of the difference in treatment established by Paragraph 1 and Paragraph 2(3) of the Law on political parties and political movements is that EU citizens who reside in the Czech Republic but are not nationals thereof do not enjoy equal access to the means available to nationals of that Member State for the purposes of effectively exercising their right to stand as a candidate in municipal and European Parliament elections; this therefore constitutes a difference in treatment of the kind prohibited, in principle, by Article 22 TFEU.

– Respect for national identity

153

It remains necessary to examine the Czech Republic’s arguments that Paragraph 1 and Paragraph 2(3) of the Law on political parties and political movements are intended to ensure the protection of the political and constitutional system at national level and therefore guarantee respect for national identity, within the meaning of Article 4(2) TEU, by reserving the right to become a member of a political party or political movement to Czech citizens alone, inasmuch as such parties and movements must be regarded as a ‘key platform’ for political activity at national level.

154

In that regard, it must be observed, first, that the organisation of national political life, to which political parties and political movements contribute, is part of national identity, within the meaning of Article 4(2) TEU.

155

However, secondly, since the right to vote and to stand for election conferred on EU citizens residing in a State of which they are not nationals by Article 22 TFEU concerns municipal and European Parliament elections in that Member State, that provision neither requires the Member State concerned to grant those citizens the right to vote and to stand as a candidate in national elections, nor prohibits it from adopting specific rules on decision-making within a political party or political movement regarding the nomination of candidates in national elections, rules which would preclude members of the party or movement who are not nationals of that State from taking part in such decision-making.

156

The Czech Republic’s argument that it would be inconceivable to limit the activity or participation of EU citizens residing in a Member State of which they are not nationals to matters relating exclusively to municipal or European Parliament elections, since such rules would be at variance with the fundamental principle of equal treatment of members of a political party or political movement, cannot be upheld.

157

It is apparent from Article 22 TFEU that EU citizens who reside in the Czech Republic but are not nationals thereof are not in a comparable situation to nationals of that Member State so far as concerns the exercise of the right to vote and to stand as a candidate in national elections, which is capable of justifying different treatment of the former compared with the latter in that regard.

158Thirdly, Article 4(2) TEU must be read in the light of provisions of the same rank, in particular Articles 2 and 10 TEU, and cannot exempt Member States from the obligation to comply with the requirements arising from those provisions (see, to that effect, judgment of 5 June 2023, <i>Commission</i> v <i>Poland (Independence and private life of judges)</i>, C‑204/21, EU:C:2023:442, paragraph 72).

159In that regard, it must be borne in mind that the principle of democracy and the principle of equal treatment are values on which the European Union is founded, in accordance with Article 2 TEU (see, to that effect, judgment of 3 June 2021, <i>Hungary </i>v <i>Parliament</i>, C‑650/18, EU:C:2021:426, paragraph 94).

160Article 2 TEU is not merely a statement of policy guidelines or intentions, but contains values which are an integral part of the very identity of the European Union as a common legal order, values which are given concrete expression in principles containing legally binding obligations for the Member States (judgments of 16 February 2022, <i>Hungary </i>v <i>Parliament and Council</i>, C‑156/21, EU:C:2022:97, paragraph 232, and of 16 February 2022, <i>Poland</i> v <i>Parliament and Council</i>, C‑157/21, EU:C:2022:98, paragraph 264).

161Furthermore, as is clear from paragraph 114 above, Article 10(1) TEU provides that the functioning of the European Union is to be founded on the principle of representative democracy, which gives concrete form to the value of democracy referred to in Article 2 TEU (judgment of 19 December 2019, <i>Junqueras Vies</i>, C‑502/19, EU:C:2019:1115, paragraph 63 and the case-law cited).

162By guaranteeing EU citizens residing in a Member State of which they are not nationals the right to vote and to stand as a candidate in municipal and European Parliament elections in that Member State, under the same conditions as nationals thereof, Article 22 TFEU gives concrete expression to the principles of democracy and, as pointed out in paragraph 97 above, of equal treatment of EU citizens, principles which are an integral part of the identity and common values of the European Union, to which the Member States adhere and whose observance they must ensure in their territories.

163Consequently, allowing such EU citizens to become members of a political party or political movement in their Member State of residence so as to implement in full the principles of democracy and equal treatment cannot be regarded as undermining the national identity of that Member State.

164In the light of all the foregoing considerations, it must be held that, by denying EU citizens who are not Czech nationals but who reside in the Czech Republic the right to become a member of a political party or political movement, the Czech Republic has failed to fulfil its obligations under Article 22 TFEU.

Costs

165Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Czech Republic has been unsuccessful in the present action, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

166Under Article 140(1) of those rules, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Republic of Poland is to bear its own costs.

On those grounds, the Court (Grand Chamber) hereby:

3. Orders the Republic of Poland to bear its own costs.

[Signatures]

Language of the case: Czech.