Is At That Spot A Correct To Last A Fellow Member Of A National Parliament Too The European Parliament Simultaneously?
November 27, 2018
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Steve Peers
It was announced concluding calendar week that Geert Wilders, the caput of the Dutch PVV in addition to a newly elected Member of the European Parliament (MEP), would convey legal challenges to assert a correct to live on an MEP spell also continuing to live on a fellow member of the Dutch national parliament. Is in that place such a right?
The starting indicate is Article 39 of the European Union Charter ofFundamental Rights, which provides that every European Union citizen ‘has the correct to vote in addition to stand upwards as a candidate’ for elections to the European Parliament. If that correct were unlimited, in addition to then Wilders would of course of didactics win his illustration (assuming, logically enough, that the correct to ‘stand’ as a candidate entails a correct to sit down as an MEP, if elected, as its obvious corollary).
However, most rights inwards the Charter are non unlimited. Article 52 of the Charter sets out (among other things) the rules on limitations of rights. Article 52(2) specifies that the rights ‘based on’ the European Union Treaties ‘shall live on exercised nether the weather in addition to inside the limits’ of the Treaties. More generally, Article 52(1) specifies that whatsoever limits on Charter rights must live on provided for past times law, non deprive the correct of its essence, accept a world involvement objective in addition to live on necessary in addition to proportionate to come across that objective.
The Court of Justice of the European Union (CJEU) has non soundless clarified the human relationship betwixt Article 52(1) in addition to (2). In the Commentary on the Charter, I propose that Article 52(2) is lex specialis, with the upshot that the limitations on rights based on the European Union Treaties which are laid upwards out inwards European Union legislation are prima facie valid, without having to consider the number whatsoever further. As nosotros volition reckon inwards a moment, that interpretation would directly parent one's hear the Wilders case.
However, it’s arguable, inwards the absence of clarification from the CJEU, that those limitations also accept to comply amongst the full general dominion on limitations on Charter rights laid upwards out inwards Article 52(1). So I volition consider that possibility also.
The root of the ban on the ‘dual mandate’ (ie beingness an MEP in addition to national MP simultaneously) is the 2002 Council Decision which amended the 1976 Decision on elections to the European Parliament (see the consolidated text of the Decision). Article 7(2) of that Decision sets out a dominion of incompatibility betwixt beingness an MEP in addition to a fellow member of a national parliament, as from the 2004 election to the EP. There is a transitional dominion for the United Kingdom of Great Britain in addition to Northern Ireland of Britain in addition to Northern Republic of Ireland (since expired) in addition to an indefinite particular dominion for Irish Gaelic MEPs: they tin retain a dual mandate until the adjacent Irish Gaelic election next their election to the EP.
According to the explanations to the Charter, which the CJEU constantly relies on to translate it, Article 52(2) way that rights derived from European Union citizenship inwards item (such as the Article 39 right) stay dependent area to the limits in addition to weather inwards the Union constabulary inwards which they are based. So that is the destination of Wilders’ argument.
But what if such weather also accept to come across the weather laid upwards out inwards Article 52(1)? First of all, the limitation on the dual mandate is plainly ‘prescribed past times law’. It doesn’t destroy the essence of the correct to stand upwards as an MEP, since in that place is no requirement to hand upwards a national topographic point earlier standing. Nor does it destroy the essence of the corollary correct to serve as an MEP in 1 lawsuit elected, since the somebody concerned tin ever produce therefore if he or she is willing to stand upwards downwards as a national MP.
Does it serve a legitimate world interest? Surely, yes: despite all the derision heaped upon national parliamentarians in addition to MEPs, both jobs are full-time in addition to demanding, in addition to cannot live on done simultaneously. In calorie-free of that consideration, it’s difficult to avoid the determination that the limitation is necessary in addition to proportionate.
There is a possible number of equality though (see Article xx of the Charter). It is strange that Irish Gaelic MEPs are dependent area to a particular dominion that allows them to concord a dual mandate, potentially for several years. Of course, the regulation of equality could every bit live on satisfied past times ruling that the Irish Gaelic exception is invalid. At most, it would hateful that Wilders could concord the dual mandate until the adjacent Dutch elections, non indefinitely.
Admittedly, the Council Decision does non dominion out asset other full-time jobs, likewise national parliamentarian, European Union official or fellow member of a national authorities (Article 7(1)). Again, though, the regulation of equality could every bit employ therefore as to extend to a ban on asset such jobs as well.
What almost other sources of law? Any correct to concord a dual mandate that mightiness arguably live on conferred past times the Dutch constitution is irrelevant, due to the supremacy of European Union law. The CJEU established concluding year, inwards the Melloni judgment, that Article 53 of the Charter, although it refers to national constitutional rights, does non hand them priority over European Union constabulary when European Union constabulary has fully harmonised an issue. As for the ECHR (referred to inwards Article 52(3) of the Charter), it has non ruled on the dual mandate number as regards national parliaments in addition to the European Parliament.
Finally, it should live on noted that the higher upwards conclusions would employ to whatsoever politician, whether I dislike their politics (as inwards Wilders’ case) or whether I fervently back upwards them.
