Published on July 18, 2012
Eman and Sevinger: What happened before the Preliminary Ruling?
The kingdom of the Netherlands consists of three separate countries, the Netherlands, the Netherlands Antilles and Aruba. Each has its own parliament. The Kingdom has a special government consisting of the Dutch government and the representatives of the Netherlands Antilles and Aruba. Citizens of these countries all have the same nationality, namely the Dutch.
The Kingdom of the Netherlands as a whole is a Member State of the European Union, but only the territory of the Netherlands is under the full effect of the European Union. The Netherlands Antilles and Aruba are not Member States of the European Union; they are only mentioned in the Annex II of the EC treaty (now Treaty on the Functioning of the European Union – TFEU) as Overseas Countries and Territories. According to article 182 EC (now article 198 TFEU), these overseas countries and territories are associated with the European Community, but Community law does not always apply. The aim of this association is to advance the economic and social developments in these countries and territories and to create close economic relations between them and the European Community.
Mr. Eman and Mr. Sevinger, requested the Municipal Executive of The Hague for registration on the register of electors for the election of members of the European Parliament on 10 June 2004. Their request was rejected and they went in appeal at the Raad van State (herein after RvS). The Dutch Court could not give a final decision, because it needed answers on how to interpret provisions of Community law, which were relevant in this case and therefore it asked for a preliminary ruling from the European Court of Justice (ECJ).
To understand the case of Eman and Sevinger, it is necessary to explain the Kieswet, the Dutch Electoral law. This law indicates who is entitled to vote in the Dutch elections and the elections for the European Parliament. In pursuance of Article B1, first paragraph, of the Kieswet the members of the Tweede Kamer (Second Chamber) of the States-General shall be elected by those who have reached the age of eighteen years on the day of the nomination of the candidates and on the day of the election. However, art. B1 (1) excludes those who have their real place of residence in the Netherlands Antilles or Aruba, unless, according to B1 (2), he or she has lived in the Netherlands for at least ten years. Additionally under Article Y3, part A of the Kieswet, those who are entitled to vote for representatives in the Tweede Kamer, are also entitled to vote for the members of the European Parliament. Therefore, the conclusion is that residents of the Netherlands Antilles and Aruba do not have the right to vote for the national elections or the elections for the European Parliament, unless they have lived in the Netherlands for a period of ten years.
In the appeal to the RvS, Eman and Sevinger had the following arguments. First, they argued that the denial of their requests was arbitrary and discriminatory, because other residents of Aruba, who have lived ten years in the Netherlands, could take part in the elections for the European Parliament, whereas the appellants to the same extent affected by the legislation of the European Union. Their second argument was that, because they had the Dutch nationality, they were also citizens of the European Union under article 17, first paragraph of the EC treaty (now article 20 TFEU). Thirdly, they argued that Article B1, first paragraph, of the Kieswet was in infringement with Community law and with article 3 of the Protocol No. 1 to the European Convention on Human Rights (ECHR) because the European Parliament must be considered a ‘legislative power,’ as mentioned in this provision. It was important to know whether the European Parliament, is also a legislator for the Netherlands Antilles and Aruba, because if they are citizens of the Netherlands Antilles and Aruba they should also have the right to vote in the elections for the European Parliament.
In the appeal, the summoned party, the municipal executive of The Hague, argued that they did not act in contrary with the Kieswet and that it was not up to them or the legislator to judge about a possible conflict of the law with the ECHR or the Community law.
To make a final decision in this case, the Dutch court needed answers on the interpretation of Community law. Consequently, the RvS could not give a final decision before the elections for the European Parliament on 10 June 2004. In order to get a faster decision of the ECJ, the RvS requested on 13 July 2004 and 22 February 2005 an accelerated procedure to the reference of a preliminary ruling under the first paragraph of article 104 of the Rules of Procedure. The President of the Court denied these requests on 23 August 2004 and 18 March 2005.
The difficulty in this case was that on the one hand, the appellants did have the Dutch nationality, but on the other hand, they could not vote in the elections to the European Parliament, because of the lockout in the Kieswet. This Dutch law stated that you could only vote for the elections of the European Parliament, if you are also allowed to vote for the national elections. The appellants were not allowed to vote for the national Dutch elections, because they had their real place of residence on the day of nomination in Aruba and they did not live for a period of ten years in the Netherlands. Therefore, the question was whether the possession of Dutch nationality implies European citizenship, even if you have your residence in an overseas country or territory. If that was the case, should the appellants then not be entitled to vote for the elections for the European Parliament? The RvS asked for a preliminary reference of the ECJ to tackle these difficulties.
2. The Preliminary ruling in Case C-300/04
Generally on preliminary ruling
Under Article 234 EC Treaty (now article 267 TFEU) any courts and tribunals of the Member States may or are obliged to refer a question to the ECJ concerning:
“(a) the interpretation of the Treaty: (b) the validity and interpretation of acts of the institution of the Community and of the ECB; (c) the interpretation of the statues of bodies established by an act of the Council, where those statues so provide”
It is up to the ECJ to decide whether a body is a court or a tribunal under Article 234 EC Treaty (now article 267 TFEU). The main rule is that a national court or a tribunal is obliged to refer a question that is pending before a national court or a tribunal on the above-mentioned subjects if the decision of the court or the tribunal has no judicial remedy under national law of the Member State. However, that does not necessarily mean that the court or the tribunal is always obliged to refer the question to the ECJ even if there are no judicial remedies under national law. There are at least three exemptions of the main rule. First, in the CILFIT case the ECJ accepted the ´acte clair´ doctrine (though with strong conditions) which states that if a question is unequivocally clear the national court or a tribunal can refuse to refer a question to the ECJ. Secondly, the national court or tribunal can refuse to refer a question to the ECJ if it has already made a decision or a ruling on the subject the question is referring to. Thirdly, if the national court or tribunal fails to refer a question to the ECJ there will of course be no preliminary ruling.
Was the Court Obligate to refer the questions to the ECJ?
The case travelled through the court system and finally it had come under the jurisdiction of the RvS, which is the highest Administrative-Court in the Netherlands. Though one of the appellants’ arguments was based on Community Law and the court in question was the highest court in the country in this field of cases, it did not necessarily mean that the court had to refer the questions to the ECJ. It is right that Article 234 EC Treaty (now article 267 TFEU) is interpreted in the way that if there is no further possibility for judicial remedy under the national law and the case will be ruled based on Community Law, the main rule is that the court is under the obligation to refer the case to the ECJ for preliminary ruling. The RvS was the highest court in its field and there was no possibility for judicial remedy under the national law, but the case was basically about the interpretation of the Netherlands Electoral Law and the court could have ruled that it was not necessary to refer the case to the ECJ, though the appellants argued against the legality of a specific Article of the Electoral Law on the basis of Community Law. It has been confirmed in the Leclerc-Siplec case and the Pretore di Salo case that it is up to the court in question to decide if a preliminary ruling is necessary for the conclusion of a case. However, because of the fundamental precedent this case could possible possess and because the case was about a fundamental question, that is the right of EU Citizens to vote in the election to the European Parliament, it is the authors view that the court in question was under the obligation to refer the case to the ECJ, or at least it was a right decision of the court to refer the questions to the ECJ.
The questions referred to the ECJ
The first question the RvS asked the ECJ, referred to whether Part Two of the EC Treaty, relating to citizens of the Union, applied to persons who possesses the nationality of a Member State and who are residing or living in a territory which is one of the OCTs referred to in Article 299(3) (now article 355 TFEU). The answer the ECJ gave might be interpreted as indecisive, considering that the Court states in paragraph 26 of the ruling that; “persons who possess the nationality of a Member State and who reside or live in a territory which is one of the OCTs …may rely on the rights conferred on citizens of the Union….” But by saying ‘may’ and not shall, it actually stated that residents in the OCTs can have the rights of a EU citizens but it is really up to the Member States do decide if they will grant those citizens that right.
The second question of the RvS, was found not necessary to be answered as directly related to the first one.
The third question referred to whether Article 19(2) EC (now article 22 TFEU), read in the light of Articles 189 and 190(1) EC (now abandoned), must be interpreted as meaning that a citizen of the Union resident or living in an OCT had the right to vote and to stand as a candidate in elections to the European Parliament. The Court answered the question by stating that the provisions of the EC Treaty contained no rule defining expressly and precisely who are to be entitled to the right to vote and to stand as a candidate for the European Parliament and therefore it follows that the definition of the persons entitled to vote and stand for elections falls within the competence of each Member State in compliance with the Community law. However, the Court stated in paragraph 56-61 of the ruling, that the Dutch Kieswet infringed the principle of equal treatment, which is one of the general principles of Community law, by conferring the rights to vote and stand as candidate in elections to the European Parliament on all Netherlands nationals resident in non-member countries, but excluding Netherlands nationals resident in the Netherlands Antilles or Aruba. The final answer to the question was therefore that the Dutch Kieswet did not objectively justify the above mentioned discrimination between Dutch nationals which were resident in non-member states and Dutch nationals which were resident in the Netherlands Antilles and Aruba, concerning the right to vote to the European Parliament.
The fourth question the RvS asked was whether non-citizens of the European Union are precluded from having the right to vote or to be candidates in elections for the European Parliament under Article 17 EC (now article 20 TFEU) and Article 19(2) EC (now article 22 TFEU), combined with article 3 of Protocol No. 1 to the ECHR. The answer of the Court concerning this question was very clear and gives no space for further interpretation. Having answered to the previous questions, the Court stated that this question was irrelevant to this particular dispute and therefore there was no need to reply. Indeed, Article 299(3) EC (now article 355 TFEU) explicitly mentions that the special arrangements for association, set out in Part Four of the Treaty, apply to the overseas countries and territories listed in Annex II. Mr Eman and Mr Sevinger both had Dutch nationality and lived in Aruba, which is an overseas country and a member of the list in Annex II, so, the provisions within Part Four of the Treaty apply to this country.
Having regard to the fifth question, the Dutch Court asked the ECJ whether the Community law does impose conditions under which compensation shall be paid to persons in the case that the national courts decide that those persons who live in the Netherlands Antilles and Aruba and have Dutch nationality were refused improperly to be registered for the elections of 10 June 2004.
The Court stated that the decision concerning the question raised shall be taken at a national level. The principle of state liability is applied. Taking as a fact that the Member States have the power to determine whether a person is entitled to vote in the elections for the representatives in the European Parliament, the Court argued that, as a result to the above, disputes arising from those national provisions are a matter of national law, always in accordance with the principles of equivalence and effectiveness. Hence, the Member States are required to provide legal redress for damage caused to persons because of infringements of Community law. Then the Court added three conditions under which the reparation shall be given. Firstly, the EC provision that has been infringed must confer rights on individuals. Secondly, the infringement must be sufficiently serious. Thirdly, it must be a logical coherence, a link, between the infringement and the damage that has been caused to a specific person. Article 17 EC (now article 20 TFEU) does confer rights to individuals which are explicitly mentioned in paragraph 2. The Court also stated that the conditions mentioned above are not obligatory. By this it meant that a Member State can accept its liability and compensate for the damage caused only if the conditions set on the basis of national law are less strict comparing to those that the ECJ has imposed.
The principle of equal treatment
After taking into account the interpretation of the relevant provisions, the Court stated three conclusions based on the general principle of equal treatment. First of all, by elucidating Article 17 (2) TEC (now article 20 TFEU) in combination with Article 299 (3) TEC (now article 355 TFEU), the Court concluded that persons having a nationality of a Member State and living in one of the countries mentioned in Annex II TEC shall enjoy the rights conferred by Part Two of the EC Treaty.
Secondly, the Court explicitly stated that the principle of equal treatment as a general principle of law prevails over any national provision that leads to a different treatment of nationals of a Member State in a comparable situation, despite the fact that a Member State has the right to exclude from the electoral registers nationals living outside the territory where the elections for the European Parliament take place.
The right to equal treatment consists of the principle that everyone must be treated equally in the same positions, in analogical situations or in comparatively similar conditions. If a difference in treatment exists under the above mentioned conditions, this right is violated. Major concern of all Member States shall be the protection of this crucial fundamental right; an objective that is generally expressed in article 6 TEU.
The final conclusion that the Court has ruled was that it is a matter of the national law of the Member States to determine the rules under which a person can pretend to the right of legal redress for the exclusion, because of a national provision that infringes Community law, from the participation in the elections of the members of the European Parliament of 10 June 2004. The rules that the Member State will establish must always be in accordance with the principles of equivalence and effectiveness.
3. The Follow-up on Eman and Sevinger
The Raad van State (RvS), in the follow-up case on Eman and Sevinger, returned to the issue at hand. The RvS extensively quotes the preliminary ruling of the ECJ. It then goes on by concluding that the ECJ had shown that there was insufficient objective justification for the difference in treatment between Dutch nationals in a third country and Dutch nationals on Aruba, as based on article B1 and Y3 of the Kieswet. The RvS consequently accepts the ECJ’s suggestion that the unequal treatment in equal situations is the real issue at hand in this case. Based on this point, the RvS rules that the above mentioned articles cannot apply and based on that, the decision of the College van b&w van Den Haag to deny registration for the election of the European Parliament is void.
However, more importantly in this case is how the RvS addressed the inequality, displayed by the ECJ. According to the RvS, it lies outside its competence to decide how this structural inequality can be overcome. Furthermore, the RvS calls this a ‘political decision,’ thereby indirectly referring this issue to the legislative body of the state. The RvS does, however, not directly request the legislator to act; it merely states that the RvS will assume that the legislator deals with this issue in time, more specifically, before the next election of the European Parliament. The RvS and the ECJ do, however, both suggest two possible ways to address this inequality between Dutch nationals, resident of third countries, and Dutch nationals resident in Aruba. The first is to take away the right to vote from residents of third countries. The second is to grant residents of Aruba the right to vote. The Dutch government, by name of the Secretary of State of Internal Affairs, Bijleveld-Schouten, took up the gauntlet and suggested, at 31st of March 2008, a change of the Kieswet. This change of law is in line with the second suggestion of the ECJ and the RvS, namely to grant residents of Aruba the right to vote in the European Parliament elections.
The Kieswet will, according to the suggested law, now, under art. Y3, state that those who are Dutch nationals at the time of their candidacy and the day voting commences are not excluded from the right to vote. This directly tackles the points that were considered to be in contradiction with the notion of equality. More specifically, it removes the contested part of the law that stated that a Dutch citizen, living in Aruba, should have either lived in the Netherlands for at least 10 years, or be in active public service in Aruba, to have active and passive voting rights. The alterations were deemed acceptable by the state organ that executes elections in the Netherlands in general, the Kiesraad. The suggested law has recently been accepted by the Tweede Kamer and has been officially published, and thereby enacted, in November 2008.
It should be noted, though, that the RvS only ruled article B1 and Y3 inapplicable concerning elections for the European Parliament. Similarly, the newly enacted law only applies to European Parliament elections. In a case similar to the follow-up case on Eman and Sevinger, the same appellants also requested a ruling on the decision of the College van b&w van Den Haag to deny registration for national elections, for the Tweede Kamer. This case was decided at the same day. However, in this case the RvS ruled the appellants claim invalid.
The other important issue addressed in the preliminary ruling, answering the fifth question posed by the RvS, concerned repair or legal redress (rechtsherstel). The ECJ ruled that it is up to the Member States to decide on the possible legal redress, basing its ruling on Brasserie du Pecheur and Factortame. The RvS generally accepted the ruling by the Court of Justice, but had its own interpretation, considering the fact that this was a difficult situation. It would be hard to grant the two appellants repair, since the election, in which the appellants wanted to participate, had already taken place. The RvS thus concluded that again denying participation in the election would be a breach of Community law, but afterwards granting the participation would have been outside the competence of the RvS. The RvS argued in this fashion precisely because it concerned elections that had already taken place. Undoing these elections in retrospect should be considered a too strong, and impossible, measure in this case. However, the RvS left the question of repair unanswered. Although it ruled that the College van b&w van Den Haag should reimburse the juridical expenses made by the appellant, the RvS states that it is up to the College van b&w van Den Haag to decide on the appellants repair. It can be argued that the RvS returned this difficult issue to the College van b&w van Den Haag.
The Authors
Konstantinos Margaritis, LLM is a PhD candidate at the National and Kapodistrian University of Athens, Faculty of Law, Attorney at Law, member of Heraklion Bar Association.
Björn Þór Rögnvaldsson, LLM is Head of the Legal Department, Administration of Occupational Safety and Health in Iceland (AOSH), member of the Icelandic Bar Association.
Boris Yland, MA, LLM is a political philosopher and writer who has served in various positions in the D66, the Dutch Liberal Democratic Party. The most recent include: Member of the Permanente Programma Commissie, member of the Filosofie Platform and member of the Team Academie.
Renée Engel, LLM is a Legal Advisor at Stichting Achmea rechtsbijstand.