Introduction
This essay addresses an issue that might seem utopian to many, namely the extension of voting rights to foreign residents in national legislative elections, a reform that might soon occur in Luxembourg. Such debates are indeed absent from other EU member states, in some of which foreigners’ right to vote even in local elections remains subject to lively controversy.Footnote 1 Whether Luxembourg will become the first country in the EU generally to allow foreign residents to vote in national legislative elections will be determined via a referendum in summer 2015,Footnote 2 the outcome of which the Luxembourg Government has vowed to respect.Footnote 3 One of the referendum questions asks whether non-Luxembourgish residents should be able to register as voters in national legislative elections, subject to two conditions. First, that the individual has resided for at least ten years in the Grand Duchy, and, secondly, that he or she previously participated in municipal or European elections in Luxembourg.Footnote 4 In order to grasp the potential impact of such a reform, it should be noted that Luxembourg has – by far – the highest proportion of foreign residents in the EU. Almost half of its population does not have Luxembourg nationality. Most foreign residents are, however, European citizens as 38 per cent of its population are non-Luxembourgish European citizens.Footnote 5
The perspective adopted by this paper is doubleheaded. It, first, draws attention to a possible national constitutional reform and its potential consequences. Secondly, however, it also examines this evolution from the perspective of EU law and integration. In the light of the intertwining of the domestic and European legal spheres, domestic constitutional change cannot occur in a vacuum.Footnote 6 Constitutional spaces in the EU have become a polycentric spider’s web, in which a ‘pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole’.Footnote 7 Thus, while questions pertaining to Luxembourg constitutional law rarely make the hearts of European lawyers race, this potential reform pertains deeply to EU law. It can be read as a test case, or maybe even a cas limite, of European integration, an unlikely evolution that appears to have been taken from a cosmopolitan utopia rather from than the current Union.Footnote 8 This story, full of paradoxes,Footnote 9 allows for a new perspective on the nature and possible future of the integrated, multicultural EU member state as well as the European Union itself.Footnote 10 Given the range of aspects addressed, the paper is of a largely descriptive nature. It aims to inform the reader about a domestic constitutional debate rather than seeking to map the potential reform in its entirety. Whereas the question raised in the referendum is profoundly normative in nature it also relates to a number of intriguing legal questions at which this paper will look in turn.Footnote 11 The analysis is structured as follows. It first introduces socio-demographic realities in Luxembourg in order to ground subsequent discussion. The second section then examines the traditional view of the national electorate of a state; and the third section illustrates how this link has come under pressure as a consequence of European integration and citizenship. The fourth section looks at the possible consequences of the enfranchisement of foreign residents for Luxembourg’s constitutional structure. The paper then evaluates the possible reform from an EU law perspective. The article concludes by reflecting on the intertwinement of constitutional spheres within the European space, a theme running through its entirety.
The background
The programme of Luxembourg’s coalition governmentFootnote 12 announces that, in order to further ‘democratic renewal’, a referendum will be held in which Luxembourgers will pronounce on ‘the political rights of their fellow citizens, who do not have Luxembourg nationality.Footnote 13 Polls from 2013 indicate that 50 per cent and, later, 59 per cent of Luxembourgers were in favour of such reform.Footnote 14 For the first time in decades the conservative party does constitute the executive and the current Government considers itself to have ‘the mission and the courage’ to undertake ‘the reforms necessary’ to create a ‘project of the future’ and a ‘new dynamic’ for Luxembourg and ‘all its inhabitants’ by strengthening democracy, transparency and dialogue in a multicultural society.Footnote 15 As ‘contextual differences between states also ground differences in the way questions of citizenship are approached’, an overview of Luxembourg’s demographic and socio-political structure is in order.Footnote 16 Luxembourg has almost 563,000 inhabitants, of whom 45.9 per cent do not have Luxembourg nationality.Footnote 17 16.4 per cent of the population are Portuguese nationals, 7 per cent French nationals, 3.3 per cent Belgians, 3.5 per cent Italians and 2.3 per cent are of German nationality.Footnote 18 Despite 150 nationalities being represented in the Grand Duchy, 86 per cent of all foreign residents are European citizens.Footnote 19 Mainly EU citizens would, therefore, be concerned by the reform.
Two hundred years ago, Luxembourg was a predominantly rural country. Its population has more than doubled in the past century.Footnote 20 The exploitation of iron ore allowed for economic growth as a steel industry emerged, from the 1960s onwards largely replaced by the financial sector, which entailed significant economic expansion.Footnote 21 Given its rapid economic growth and modest population, Luxembourg needed to rely on foreign workers to make its economy function. In addition to the large proportion of foreign residents, about 167,000 people not living in Luxembourg (the frontaliers referred to here as ‘cross-border workers’) cross the French, Belgian, and German borders each day to work in the Grand Duchy.Footnote 22 Foreign residents and cross-border workers make up 71 per cent of the country’s workforce.Footnote 23
Luxembourg is a founding member state of the EU, so that migration from other member states is facilitated by the existence of an internal market,Footnote 24 the rules inherent of which govern the status of EU citizens working in Luxembourg.Footnote 25 In accordance with the principle of non-discrimination, they must be treated no less favourably than Luxembourgers.Footnote 26 EU law, moreover, provides that European citizens residing in a state of which they do not have the nationality must be able to vote and stand for election in municipalFootnote 27 and European, but not national, elections.Footnote 28 Luxembourg, however, benefits from a partial derogation from this obligation.Footnote 29 Article 14 of Directive 93/109Footnote 30 and Article 12(1) of Directive 94/80/ECFootnote 31 provide that if a member state’s population accounted for more than 20 per cent of non-national EU citizens of voting age in 1996, it may restrict their right to vote in European and/or local elections. Luxembourg no longer applies this exception with regard to European elections but continues to require a residence period of five years before EU citizens can cast their ballot in local elections.Footnote 32 As a matter of EU law, Luxembourg is in no way required to take the step it might be taking. Rather, EU law explicitly recognises that ‘the very fact that EU citizens are present in large numbers and could present, therefore, a significant challenge to the system has been sufficient reason to deny, effectively, the implementation of Article 19 EC [now Article 22 TFEU].’Footnote 33 EU law, accordingly, considers that a state has a legitimate interest in ensuring that those that vote in elections (even local and European) should mainly be nationals of the state.
At present, only Luxembourgers participate in legislative elections, so foreigners wishing to exercise such political rights need to acquire the nationality. Anyone having resided in the country for seven consecutive years can apply to become a Luxembourg national.Footnote 34 The applicant must demonstrate a ‘sufficient degree of integration’ into Luxembourg societyFootnote 35 and demonstrate active and passive knowledge of at least one of the three official languages (Luxembourgish, French and German).Footnote 36 A certain command of Luxembourgish, the sole ‘national language’ must always be demonstrated.Footnote 37 It is worth noting that the Luxembourg Government also plans to facilitate access to Luxembourg nationality.Footnote 38 This is somewhat paradoxical, since facilitated access to nationality and to voting rights for foreigners are conventionally presented as alternative, not simultaneous, means of furthering the integration of migrants. It is worth noting that Luxembourg also accepts dual (and multiple) nationality and some of the main countries from which immigrants originate, such as Portugal, do too.Footnote 39 After setting out the background of my analysis, the next section evaluates voting rights and their link to nationality.
The traditional concept of the electorate: The (unbreakable?) link between nationality and voting rights
Voting rights are traditionally perceived as a corollary of nationality. Members of a given community vote to designate those in charge of establishing rules that must be followed by all. The relevant ‘community’ for these purposes is generally understood as that of nationals, rather than residents, of a state. Accordingly, the ‘disenfranchisement of non-citizens in democratic governments is close to universal.’Footnote 40 Beckman estimated in 2006 that ‘approximately 10 million adult long-term resident aliens in Europe (…) are denied the right to participate in the democratic process.’Footnote 41 Whereas significant variations exist regarding voting rights of non-citizens within the EU,Footnote 42 no member state allows non-nationals to vote in legislative elections, except for Ireland and the UK, which have created, by treaty and for historical reasons, this option solely for British, Irish and Commonwealth citizens.Footnote 43 International law, under which a regime protective of political rights has developed over time, explicitly allows only nationals to cast a ballot in domestic elections.Footnote 44 This reflects the current state of Luxembourg law. Article 52 of the Grand Duchy’s Constitution and Article 1 of the Election Law accordingly define nationality as a prerequisite of electoral rights.
According to the statist, Westphalian conception of voting rights, foreign residents do not form an integral part of the political process.Footnote 45 One individual is presumed to belong to one community, that of which he or she is a national. This idea dates back to times when most individuals would spend their lives in the territory into which they were born. Over time, there has been a move away from this monolithic conception of citizenship towards the recognition that simultaneous membership of various communities is possible. In federal systems, for instance, citizens participate in different communities through voting.Footnote 46 The monolithic and static concept of political rights has also come under pressure as a result of European integration. First, individuals form part of two communities, the national and the supranational. Secondly, if they exercise their freedom to move, EU citizens entertain a relationship both with their state of origin and their state of residence. Thirdly, European citizenship, as defined by Article 9 TEU, has multiplied voting rights horizontally, as an individual can vote in municipal and European elections in member state A (based on residence) and in national elections in member state B (based on nationality).Footnote 47
Voting rights have a dual dimension, being both a human right and a tool of democracy. Depending on the concept relied on, the interest of the individual or of society constitutes the rationale underlying the right to vote. The human rights perspective was mainly, though not exclusively, at the basis of the enfranchisement of women and of people of colour in the U.S., for instance.Footnote 48 Although the two aspects of the right to vote cannot be neatly separated, the Luxembourg debate seems to relate mainly to democratic inclusiveness. In 2007, a collective entitled ‘Refresh Democracy’, composed of the youth organisations of all the country’s major political parties, kicked off the current debate by claiming that, in accordance with the spirit of universal suffrage, foreigners must vote to legitimise the democratic process.Footnote 49 Their initiative reflected the idea that ‘the core substantive principle of democracy is that those who are subject to the law ought to have a say in its formulation’.Footnote 50 The Luxembourg Government seems to have been inspired by these ideas, which are deeply paradoxical in the light of conventional discourses about incentives in politics, according to which the ruling class seeks its own renewal and to further its own self-interest.Footnote 51 Rather than striving to empower and perpetuate themselves, some Luxembourgers seem willing to loosen their control over the system. While such behaviour is paradoxical for a number of reasons, it could be understood against the background of European integration, and as an utterance of the de facto solidarity famously alluded to in the Schuman Declaration.Footnote 52 Should such solidarity have infiltrated voters’ mentalities, the referendum’s outcome will trigger electoral reform. Through such reform, a conceptual shift would occur as the capacity to vote in national elections would be determined by the criterion of residence rather than nationality, symbolising the decoupling of nationality and citizenship.
The evolving definition of the electorate: From the national to the resident worker?
There is nothing revolutionary in having the capacity to vote in the legislative elections in two countries. This indeed corresponds to the situation of many dual citizens across the globe. It is also true that a number of countries such as Chile,Footnote 53 New Zealand,Footnote 54 the United KingdomFootnote 55 (only for Irish and qualifying Commonwealth citizens) and Ireland (only for the British) have extended voting rights in national elections to residents.Footnote 56 These scenarios differ, however, from that envisaged in Luxembourg in important respects. The voting rights that emerge in these contexts are either due to the possession of multiple nationalities or a particularly strong bond between the state of origin of the foreign resident and the host state. What is more, these extensions were fashioned by a variety of reasons specific to the respective domestic contexts, none of which relates to European integration. An extension of voting rights to foreign residents in Luxembourg could, however, be conceptualised as a spillover effect of EU integration.Footnote 57 As a result of EU citizens exercising their freedom to move, member states’ demographic compositions are becoming ever more varied. The Luxembourg debates about social inclusiveness were triggered by its changed demographic structure. If these debates were to result in electoral reform, the notions of citizenship and nationality would be decoupled with regard to legislative elections, a process already initiated by the participation of European citizens in municipal and European elections.
The impact of European citizenship
Voting rights raise important issues of ‘us versus them’.Footnote 58 They contribute to the self-definition of a socio-political group, traditionally defined by the criterion of nationality. This state of affairs has been modified by virtue of European citizenship. The attached voting rights attribute to EU citizens ‘limited political participation rights’ based ‘on their residence and their common status as “citizens of the Union”’.Footnote 59 Notions of ‘us’ and ‘them’ are accordingly subject to redefinition, as European citizenship ‘narrows the gap in political rights possessed by a resident alien EU national and the nationals of the Member State in which he or she resides.’Footnote 60
Under EU law, residents enjoy voting rights only in municipal and European elections. Luxembourg has extended this right to all foreigners, not just EU citizens, perhaps in the light of the marginal share of non-Europeans in its immigrant population.Footnote 61 The rationale behind the electoral rights inherent in EU citizenship is that, once individuals had moved to a different state, they could often no longer vote in municipal and EU elections ‘simply because they are no longer in their Member State of nationality’.Footnote 62 European integration had led to the disenfranchisement (in local and European elections) of European citizens who had left their state of origin. This was seen as a ‘paradox of political integration’ in a Union founded on democracy.Footnote 63 The creation of voting rights remedied this paradox.Footnote 64 As the ability to vote in national elections is conventionally linked to nationality, however, no disenfranchisement occurs if nationals of one state move to another state unless their state of origin prohibits expatriate voting.Footnote 65 Mechanisms such as voting at a distance or by proxy ensure that those that have left the territory can still cast their ballot.Footnote 66
Defining voting rights as the privilege of nationals reflects a view of the demos as composed of a community of nationals rather than of residents. Via elections, the demos governs itself.Footnote 67 EU citizenship modified this connection between nationality and voting rights. Weiler argued that, normatively, European citizenship symbolises the
very conceptual decoupling of nationality from citizenship and as the conception of a polity the demos of which, its membership, is understood in the first place in civic and political rather than ethno-cultural terms.Footnote 68
Heuschling agrees, recognising that ‘the demos has already been denationalized at local level’, as residents can exercise their vote in municipal elections.Footnote 69 Whereas at present this apparent decoupling has mere symbolic effects, allocating the franchise to resident foreigners would alter this state of affairs. Nationality would no longer constitute the basis of citizenship but rather residence. With regard to local ballots this evolution is common to all member states. Its practical effects, however, remain limited, since local authorities often have very limited competences, especially in a small and centralised country such as Luxembourg.Footnote 70 Conceptually, the decoupling of citizenship and nationality has thus already been initiated due to European citizenship. This decoupling would, however, be pushed further if foreign residents were to be able to cast their ballot in national elections.
The decoupling of nationality and citizenship and national elections
Gerkrath noted that the possible Luxembourg reform indicates that:
The relationship between the concepts of citizenship and nationality is, thus, evolving not only under the influence of Union citizenship, which is in addition to national citizenship, but also under the demographic pressure of European citizens exercising their right to free movement.Footnote 71
A domestic constitutional reform resulting from side effects of economic integration could concretise the decoupling of nationality and citizenship more radically than did EU citizenship. The Luxembourg Government refers to foreign workers as ‘foreign citizens’ or ‘foreign co-citizens’ when announcing that ‘access to Luxembourg nationality and political participation’ must be facilitated for ‘foreign citizens living in Luxembourg.’Footnote 72 This language might surprise those that take citizenship and nationality for synonyms. Non-nationals are indeed considered to be ‘citizens’.Footnote 73 They are not, however, referred to as ‘fellow European citizens’, indicating that the concept of common citizenship has been transposed from the European to the domestic scale. Europeans are understood as sharing not merely a supranational citizenship but also a citizenship on a national scale. Foreign residents and Luxembourg nationals are referred to as having been fused into a unitary category of citizenship that is defined by territory, denoting a spirit of commonality absent from notions of ‘nationals’ and ‘foreign residents’. These statements indicate that the bond between citizenship and nationality has been torn apart. It is no longer a correct to say that the citizens of Luxembourg are those with a Luxembourg passport. Rather a novel category has emerged, which Heuschling describes as a ‘citizenship of residence’.Footnote 74 The criterion determining citizenship is accordingly no longer nationality but rather residence. This has an impact on the notions of citizenship, which becomes a ‘thicker’ notion, and of nationality, which becomes a ‘thinner’ notion.
At this stage, the ‘citizenship of residence’ finds expression in efforts for social cohesion and voting rights in local and European elections. Plans to facilitate the acquisition of Luxembourg nationality and consultations on whether voting rights should be extended denote a desire further to fuse nationals and foreign co-citizens into a homogeneous body of resident citizens. The simultaneous attempt to open up the franchise and facilitate the acquisition of nationality constitutes a conceptual paradox, as both elements are usually presented as alternatives to each other. This combined effort denotes that Luxembourg treats its foreign residents differently from other countries with a similarly large proportion of immigrants, such as, for instance, Qatar. Merely 15 per cent of the overall Qatari population are Qatari nationals and the large body of migrant workers enjoys no political rights and is in many ways oppressed.Footnote 75 This aside illustrates that evolution towards voting rights in a state with a large population of foreign residents is not self-evident. Such differences are rooted in many socio-cultural and economic factors that this paper will not go into. It is worth noting, however, that European integration may play a significant role in this respect. As already outlined above, the desire to optimise the social inclusion of foreigners who are largely citizens from other member states can be an expression of the ‘de facto solidarity’ between the peoples of Europe. This solidarity may indeed be more advanced in Luxembourg than other parts of the EU, not only due to its highly diverse population but also because the Grand Duchy has a long history of forming part of other countries, not disposing of absolute sovereignty, and sharing its territory with different nationalities.Footnote 76 This might very well remedy the sort of anxiety observed elsewhere in the EU with regard to integration. Luxembourg has indeed long been seen as a frontrunner in the process of European integration, which led to the award of the Charlemagne Prize (Karlspreis) to the people (the nationals!) of Luxembourg in 1986 ‘for the fact that they were convinced Europeans from the outset’.Footnote 77
There can be no denying that foreign residents and Luxembourgers share a common destiny. The socio-economic future of both Luxembourg and its foreign residents is dependent upon their collaboration.Footnote 78 If a redefinition of citizenship and nationality were to take place, definitions of ‘us’ and ‘them’ would undergo a process of modification. They would not, however, disappear altogether, because whenever a community defines itself it does so by delimitation from another community.Footnote 79
Electoral reform could give effect to the ‘ever-closer union’ between the peoples of Europe.Footnote 80 The citizenship of residence would be a united structure, counting diverse component parts, illustrating what unity in diversity could mean in Europe’s future at domestic level. This opening of the social contract would partly remedy Mill’s concern that no electoral arrangement ‘can be permanently satisfactory in which any person or class is peremptorily excluded – in which electoral privilege is not open to all persons of full age who desire to obtain it.’Footnote 81 The potential reform would recognise that ‘everyday lives […] and their economic, social, cultural, and political activities’ define human beings to a more pronounced extent than their nationality.Footnote 82 As citizenship through residence could emerge in one of the Union’s member states, the aspirations in the Schuman declaration gain practical force (Robert Schuman, who later on assumed public office in France, was a German national born and raised in Luxembourg) through the redefinition of the Luxembourg polity as one which defines its demos beyond nationality.
Profound conceptual challenges do, however, emerge. Beckman demonstrated that electoral rights are based either on the notion of ‘membership’ or on the ‘all affected principle’.Footnote 83 In the first scenario, voting rights are a privilege of nationality, which is currently the case in ‘virtually every democratic country.’Footnote 84 However, as ‘the inhabitants of most nations are less and less sharing the same citizenship’ (understood as nationality), this criterion ‘works more in the direction of political exclusion.’Footnote 85 This leads to a ‘citizen gap’Footnote 86 as political rights are not distributed evenly, which gives rise to ‘unequal rights among people living in the same country.’Footnote 87 This gap justifies extensions in voting rights to any person ‘affected by the government’s actions’,Footnote 88 that is to say, anyone residing in the country. Lansbergen and Shaw have argued that the all-embracing principle ‘considers any person who is affected by a governmental decision to be entitled to representation as a member of the political community.’Footnote 89 This criterion, however, creates a particular challenge with respect to Luxembourg.Footnote 90 The 150,000 cross-border workers who work in Luxembourg, pay taxes in Luxembourg and enjoy the related benefits of the welfare state are doubtlessly affected by the rules governing the Luxembourg polity, maybe even more so than by those in the own country. Their professional success and personal wealth is largely dependent on the economy of the Grand Duchy. This raises the obvious question whether they should also be entitled to cast their ballot. Further, if the all-embracing principle determines voting rights, one must wonder whether the voting rights of nationals living abroad, who currently engage in expatriate voting, need to be rethought.Footnote 91
It follows that a redefinition of voting rights would have an impact on the concepts of citizenship and nationality. The following section underscores that electoral reform would also affect a fundamental principle of Luxembourg’s constitutional structure, namely that of national sovereignty – which would undermine the very legitimacy of the Luxembourg State.
The transformation of the state as a consequence of European integration
National constitutional structures are undergoing transformation as ‘the substance, the spirit and the practice of these States are being transformed under the influence of their belonging to the Union’.Footnote 92 It has already been shown that a link between a possible extension of voting rights and European integration can be established. This section examines the potential consequences which this development could have on Luxembourg’s domestic constitutional structure.
Article 32(1) of the Luxembourg Constitution states that ‘Sovereign power resides in the Nation’.Footnote 93 A process of constitutional revision is currently underway,Footnote 94 but also the proposed new text announces that ‘Sovereignty resides in the Nation’.Footnote 95 The attachment to the principle of national sovereignty leads to the question of whether voting rights for foreign nationals would be constitutional, and, if sovereignty no longer resides in the nation, who or what the novel bearer of sovereignty would be. Whereas there is nothing in Luxembourg constitutional jurisprudence or doctrine that provides an answer to these questions, interesting insights can be gained via the adoption of a comparative perspective, as two of Luxembourg’s neighbouring countries, France and Germany, have in the past been faced with similar issues.
In 1990, the Bundesverfassungsgericht (the German Constitutional Court) issued two unanimous judgments that addressed the conflict between voting rights for non-nationals and national sovereignty. The first decision arose after Schleswig-Holstein allowed some foreigners to vote in local elections.Footnote 96 The Court held this to be in violation of Article 20(2)(1) of the Constitution, according to which all public power emanates from the ‘Volk’.Footnote 97 The term ‘Volk’ (which literally translates as ‘(the) people’) is understood to include only those of German nationality, so that voting rights cannot be granted to foreigners.Footnote 98 According to the principle of the sovereignty of the nation, the demos concerned with the democratic exercise can only be composed of nationals.Footnote 99 The same conclusion was reached in a second decision regarding a Hamburg law that extended voting rights in local elections to foreigners who had resided in Germany for eight years.Footnote 100 Whereas German law was modified as a result of European citizenship, the decision illustrates that, as a matter of constitutional theory, national sovereignty is generally understood to mean that only nationals can legitimise public power through the franchise.Footnote 101 The German Court moreover ‘explicitly rejected the principle of affected interests as the basis for a claim to political equality and access to the franchise’Footnote 102 in holding that the concept of popular sovereignty
does not mean that the decisions engaging state authority must be legitimated by those affected by them; rather state authority must be based on a people understood as a group of persons bound together as a unity.Footnote 103
The French Conseil constitutionnel was faced with a similar issue in its decision on the constitutionality of the Maastricht Treaty.Footnote 104 It found voting rights for foreign residents in local elections to conflict with Article 3 of the Constitution, according to which national sovereignty belongs to the peuple – the people, a notion understood to designate only those of French nationality. Allowing foreign citizens to vote in local elections would violate this principle, as mayors contribute to the election of the senators. The council found that, as a legislative chamber at national level, the Senate contributes to the exercise of national sovereignty and can therefore be chosen only by French nationals. This conflict was later remedied by the introduction of Article 88(3) into the French Constitution. That specified that, while European citizens can vote and stand for election in local elections, they cannot be mayors or participate in the election of senators,Footnote 105 a limitation on the electoral rights of EU citizens that is lawful under EU law.Footnote 106
These decisions are based on German and French law respectively and not on Luxembourg constitutional law. Nonetheless, the principle of national sovereignty constitutes a cardinal principle of all three constitutions. As a result of an opening up of the suffrage to non-nationals, questions regarding the constitutionality of this practice would arise, as it could be argued that a restructuring of the vote undermines Luxembourgers’ constitutional right to self-determination. It would be paradoxical for Luxembourg simultaneously to engage in constitutional revision, which upholds the principle of national sovereignty, yet also to seek to extend voting rights to foreigners. It also seems illogical for Luxembourg to uphold its restrictive regulation on the access of EU citizens to local elections given that with regard to national elections in Luxembourg. This would indeed mean that Luxembourg renders participation in local elections more difficult for EU citizens than does any other member state, yet would be the only member state allowing all EU citizens in its territory to vote in legislative elections. It seems difficult to identify a rationale for any such discrepancy. Since electoral reform would entail the abolition – or at least significant modification – of a core constitutional principle underlying the very legitimacy of the state, the question is no longer simply whether European integration is advanced enough to justify changes in voting rights but also whether it can justify transformations of the state itself.Footnote 107
Domestic electoral reform and its consequences for EU law
After an excursion into Luxembourg’s domestic context, the remaining part of this paper briefly deals with the consequences of an extension of voting tights to foreign residents under EU law.
Voting rights for foreign residents as an incentive or a barrier to the free movement of workers?
Creating further avenues to political participation for EU citizens in their host state strikes one as a factor that facilitates their integration into the host society. Voting rights could lead to a more adequate representation of the interests of migrant workers, as the denial of such rights ‘is likely to adversely affect these people in social and economic terms.’Footnote 108 Electoral reform could further attribute more magnitude to the concept of EU citizenship, which ‘involves closer political integration of the migrant and the host polity’ including ‘voting rights based on residence without the acquisition of the badge of formal legal membership, i.e. nationality or national citizenship.’Footnote 109 Voting rights in legislative elections would equip foreign residents with a voice, generally accorded only to nationals, actively to shape the polity they live in.
Luxembourg is, however, one of the rare countries that have a system of compulsory voting. Voting is mandatory for anyone below 75 years of ageFootnote 110 and non-compliance with this obligation is punishable by fines, even though it appears that this penalty has not been enforced in past decades.Footnote 111 This points to a choice that needs to be made – that is, whether foreigners will be subject to an obligation to vote or merely have the option to do so. Both scenarios raise some intriguing legal questions. With regard to mandatory voting, it is questionable what the basis for the obligation would be. Compulsory voting is generally understood as enforcing a civic duty of nationals, as a corollary of the rights attached to nationality.Footnote 112 If the obligation to vote were imposed on foreign residents, this could arguably amount to an obstacle to the free movement of workers under Article 45 TFEU. National practices that prevent or substantially hinder the access of EU nationals to the market of a member state that is not their own are prohibitedFootnote 113 if they cannot be justified by imperative reasons that relate to the public interest.Footnote 114 Whereas voting requires minimal time and effort, it constitutes an expression of personal opinion that many systems feel they cannot oblige their nationals to undertake; this explains why, in most states, voting is a right and not a duty. Further, an obligation to vote would impose a degree of integration on residents that they might not wish to have. If voting rights are granted after a residence period of a number of years which exceeds the residence period necessary to apply for the nationality, the electoral reform would catch merely those that made the choice not to become Luxembourgers. In that scenario, an obligation to vote might force individuals to form part of the polity, whereas they themselves might wish only to be visitors in transit. We must thus wonder whether an obligation to vote in national legislative elections could amount to a violation of Article 45 TFEU. If this would be so, another paradox would emerge, as a national measure aimed at facilitating the integration of EU citizens would be precluded on the ground that it conflicts with another goal of the European project, namely market integration. Article 8 of Directive 93/109/EC provides that ‘[i]f voting is compulsory in the Member State of residence, Community voters who have expressed the wish to do so shall be obliged to vote.’Footnote 115 The interpretation of those ‘who have expressed the wish to do so’ is crucial in this respect, as it needs to be determined whether a participation in local or European elections could lead to a duty to vote in national elections. It appears likely, however, that such an obligation would found to be justified under the first sentence of Article 4(2) TEU as an expression of Luxembourg’s constitutional identity.Footnote 116
Luxembourg could also merely give foreign residents the option to vote. Indeed, for municipal and EU elections, residents decide freely whether to be put on the electoral listsFootnote 117 even though, once they are on the list, the obligation to vote arguably applies also to them.Footnote 118 Yet in this context Luxembourg did not have much of a choice, as the optional nature of the vote is mandated by Article 22 TFEU, which provides that EU citizens ‘have the right’ to vote and stand for election. This option could also be retained with regard to national legislative elections. The subsequent sub-section shows that this solution would not be without complications from an EU law perspective.
Voting rights for foreign residents and the doctrine of reverse discrimination
Luxembourgers could thus be obliged to cast a ballot, whereas foreign residents might merely have the option to do so. This would result in a difference in treatment arguably in conflict with Article 18 TFEU, which provides that ‘any discrimination on grounds of nationality shall be prohibited’. Under EU law, nationals cannot, however, rely on Article 18 TFEU, in accordance with what is commonly referred to as the ‘doctrine of reverse discrimination’. Under this doctrine, nationals cannot invoke the free movement provisions against their own member state unless they have exercised their right to free movement.Footnote 119 An examination of the rationale underlying this doctrine shows that it would become obsolete once foreign residents had the franchise.
The doctrine which emerged as ‘reverse discrimination’ was understood not to impede European, and in particular economic, integration.Footnote 120 Workers were initially perceived as mere ‘factors of production’,Footnote 121 picturing the individual as a ‘market citizen’.Footnote 122 According to this view, workers are ‘instruments to be used in the process of the construction of the internal market’ and the law merely stepped in where their status as factors of production, but not their rights per se, was at stake.Footnote 123 The concept of the individual under EU law has, however, undergone a process of modification, symbolised by EU citizenship and fundamental rights. Notwithstanding this transformative process, the ECJ continues to affirm the rule of reverse discrimination in its case law.Footnote 124 It made it very clear that ‘citizenship of the Union, established by Article 8 of the EC Treaty, is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law.’Footnote 125 Secondly, the doctrine is justified by the fact that ‘migrants cannot necessarily gain access to the host state’s political process so Union law intervenes on their behalf to correct laws which discriminate against them.’Footnote 126 As nationals have an influence on the laws to which they are subject via their political rights, foreign residents do not. If Luxembourg proceeds to an electoral reform that allows foreign residents to vote, this statement would no longer be true. As a consequence, the doctrine would simply no longer be tenable – at least in the Luxembourg context. A domestic electoral reform would accordingly place a central foundation of EU free movement law in jeopardy, underlining how dynamics in one constitutional sphere produce effects in another. A paradox would emerge if EU integration were advanced enough to lead to a redefinition of the demos in a state but the doctrine of reverse discrimination, based on differences between demoi and their respective political rights, were to persist. In this scenario, integration would proceed at a quicker pace domestically than it would at supranational level.Footnote 127
Conclusion: On the intertwinement of constitutional spheres in the EU
Two conclusions can be drawn from the analysis above. First, that foreigner voting would entail many consequences that might not be apparent at first sight and which must be discussed before the referendum. Secondly, the paper illustrates that the possible electoral reform is deeply connected to European law and the process of integration more generally. It cannot be causally proven that Luxembourg’s demographic structure and the possibility of electoral reform are the direct consequence of European integration.Footnote 128 Nonetheless, it appears that domestic constitutional reforms that occur in the context of the ‘spider’s web’ fashioned by EU and domestic constitutional law cannot be separated from EU law and EU integration. Stating that the domestic and supranational constitutional spheres are intertwined is of course hardly a novel statement.Footnote 129 This paper, however, reveals an as yet unknown consequence of such intertwinement. Luxembourg’s demographic structure is unique and an electoral reform could lead to greater inclusion of EU citizens into the Luxembourg polity. Such a reform would have consequences both domestically and on an EU scale, cementing the conclusion that the various ‘scales’ composing the complex European legal order are deeply interlinked. If the many EU citizens working in Luxembourg were to be given further voice through voting rights in legislative elections, the identity of the Grand Duchy’s demos as well as the very constitutional structure of this member state might be revised, maybe even to a much greater extent than the combined effects of EU integration have brought about thus far. Such a reform would in turn have an impact on EU law, in putting in doubt a doctrine central to it, namely EU integration.
