THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 8b (1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament1,

Having regard to the opinion of the Economic and Social Committee2,

Having regard to the opinion of the Committee of the Regions3,

Whereas the Treaty on European Union marks a new stage in the process of creating an ever-closer union among the peoples of Europe; whereas one of the Union's tasks is to organize, in a manner demonstrating consistency and solidarity, relations between the peoples of the Member States; whereas its fundamental objectives include a strengthening of the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union;

Whereas to that end Title II of the Treaty on European Union introduces a citizenship of the Union for all nationals of the Member States and confers on such nationals on that basis a number of rights;

Whereas the right to vote and to stand as a candidate in municipal elections in the Member State of residence, embodied in Article 8b (1) of the Treaty establishing the European Community, is an instance of the application of the principle of equality and non-discrimination between nationals and non-nationals and a corollary of the right to move and reside freely enshrined in Article 8a of that Treaty;

Whereas application of Article 8b (1) does not presuppose complete harmonization 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 of the Treaty, the content of Community legislation in this sphere must not go beyond what is necessary to achieve the objective of Article 8b (1) of the Treaty;

Whereas the purpose of Article 8b (1) 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 Article 8b (1) of the Treaty recognizes the right to vote and to stand as a candidate in municipal elections in the Member State of residence, without actually substituting it for the right to vote and to stand as a candidate in the Member State of which the Union citizen is a national; whereas the freedom of Union citizens to choose whether or not to take part in municipal elections in the Member State in which they reside must be respected; whereas it is appropriate that those citizens may express their wish to exercise their right to vote there; whereas provision may be made for those citizens to be registered automatically on the electoral roll in those Member States where voting is not compulsory;

Whereas the way in which local government operates in the different Member States is a reflection of different political and legal traditions and is characterized by an abundance of structures; whereas the term ‘municipal election’ does not mean the same thing in every Member State; whereas the object of this Directive must therefore be clarified by defining the term; whereas municipal elections are elections by direct universal suffrage at the level of basic local government units and their subdivisions; whereas the term covers elections by direct universal suffrage both to representative councils of municipalities and of members of a municipal executive;

Whereas disqualification may be ordered by an individual decision of the authorities either of the Member State of residence or of the home Member State; whereas, in view of the political significance of the holding of elected municipal office, Member States should be entitled to take the steps necessary to ensure that a person who has been deprived of his right to stand as a candidate in his home Member State is not enabled to recover that right merely by virtue of his residence in another Member State; whereas this problem, which is specific to non-national candidates, is important enough to justify a provision under which those Member States which consider it necessary are allowed to make such candidates subject not only to the rules on disqualification of the Member State of residence but also to those of the home Member State; whereas, in view of the principle of proportionality, it will be sufficient if the right to vote is made subject only to the rules on disqualification from voting of the Member State of residence;

Whereas, since the duties of the leadership of basic local government units may involve taking part in the exercise of official authority and in the safeguarding of the general interest, Member States should be able to reserve these offices for their nationals; whereas Member States should also be able to take appropriate measures for that purpose; whereas such measures may not restrict more than is necessary for the achievement of that objective the possibility for other Member States' nationals to be elected;

Whereas, it should likewise be possible for participation by elected municipal officers in the election of a parliamentary assembly to be reserved for own nationals;

Whereas, where Member States' laws provide that the holding of elected municipal office is incompatible with holding other offices, Member States should be able to extend their scope to include equivalent offices held in other Member States;

Whereas any derogation from the general rules of this Directive must be warranted, pursuant to Article 8b (1) of the Treaty, by problems specific to a Member State; whereas any derogation must, by its very nature, be subject to review;

Whereas such specific problems may arise in a Member State in which the proportion of citizens of the Union of voting age, who reside in it but are not nationals of it, is very significantly above average; whereas derogations are warranted where such citizens form more than 20% of the total electorate; whereas such derogations must be based on the criterion of period of residence;

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 polarization between lists of national and non-national candidates;

Whereas this risk of polarization concerns in particular a Member State in which the proportion of non-national citizens of the Union of voting age exceeds 20% of the total number of citizens of the Union of voting age who reside there; whereas it is important, therefore, that this Member State be able to lay down, in compliance with Article 8b of the Treaty, specific provisions concerning the composition of lists of candidates;

Whereas account must be taken of the fact that in certain Member States residents who are nationals of other Member States have the right to vote in elections to the national parliament and whereas the formalities provided for in this Directive can consequently be eased;

Whereas the Kingdom of Belgium is characterized by specific features and balances linked to the fact that Articles 1 to 4 of its Constitution provide for three official languages and a territorial division into regions and communities, as a result of which full application of this Directive in certain communes might have effects such as to necessitate providing for the possibility of a derogation from the provisions of this Directive in order to take account of those specific features and balances;

Whereas the Commission will assess the application of the Directive in law and in fact, including any changes in the electorate which have taken place since its entry into force; whereas the Commission will submit a report in this connection to the European Parliament and to the Council,

THE COUNCIL OF THE EUROPEAN UNION: