Ms Barbara Nolan:

I thank the committee for inviting me to speak on this important issue of the disenfranchisement of Union citizens who exercise their right to free movement. As the committee will know, the European Commission issued a communication and a recommendation at the end of January this year which addressed the matter in detail.

In the interest of clarity, I will set out the scope of the Commission's communications and recommendations and provide an brief outline of what led to the January recommendation and ultimately what we are trying to achieve with all of this.

The bottom line is that in five EU member states – Cyprus, Denmark, Ireland, Malta and the UK – citizens who choose to live and work in another EU member state lose their right to vote in national elections. In the case of three of these countries the right is suspended after a certain period of time spent abroad which differs according to each member state. In the Irish case, the right is automatically suspended and is only reinstated if the citizen formally declares his or her intention to return to Ireland within 18 months. Ireland is at the extreme end of the five member states that do not give their citizens a right to vote when they move outside the country. The Commission’s view is that this represents a gap in the rights of EU citizens. We are particularly concerned that citizens exercising their right to free movement are losing out on their right to vote in national elections. The communication and recommendation that we published at the end of 29 January are aimed at addressing the gap.

I shall explain the legal context because I know that the subsidiarity issue will be foremost in people's minds. A communication is a policy document with no mandatory authority. The Commission publishes a communication when it wishes to set out its own thinking on a topical issue. Therefore, a communication has no legal effect.

Let me explain the accompanying recommendation. In European Community law, a recommendation is a legal instrument but one which encourages those to whom it is addressed to act in a particular way and is not binding. It essentially provides guidance to member states. I wanted to make it clear from the outset that this is not heavy legislation. The two documents are designed to give the Commission's thinking and to give guidance to member states on this issue.

The Commission underlined in its communication in January that, according to Article 4, paragraph 2 of the Treaty on European Union, it is a matter for each member state to solely decide on the composition of the electorate for its national elections. We do not question that is a right of member states and we are not trying to take that right over. We are asking member states to provide or look at providing for the possibility for citizens to renew their registration on the electoral roll if they demonstrate a genuine interest in national politics.

The recommendation and communication did not come out of thin air. We have arrived at this situation through a number of steps that I will briefly outline. The Treaty of Lisbon, which became law in 2009, among other things that I am sure members are familiar with, strengthened EU citizenship by establishing a close link between citizens, the exercise of their political rights and the democratic life of the Union.

In 2010, the European Commission published its first annual EU citizenship report. One of the issues it highlighted was the practice of disenfranchisement. Essentially, some EU citizens migrating from one EU member state to another and exercising their right to freedom of movement found that they were unable to participate in any national election either at home or in their new country of residence. As EU citizenship was clearly supposed to add to the rights citizens had, and not result in any diminution of those rights, this so-called disenfranchisement was identified as an obstacle to EU citizenship. We in the Commission received a number of petitions from citizens on the issue as well as questions from a number of Members of the European Parliament and correspondence from members of the public. Thus, it seemed appropriate that the issue should at the very least be addressed. Therefore, we announced that we would launch a discussion to identify the political options available.

In June 2011, Vice-President Reding wrote to certain member states explaining the context of the discussion and invited their contribution to a common reflection on the subject. The Irish Government was one of the countries that responded to his invitation. In February 2013, a joint European Parliament-European Commission hearing on EU citizenship, as part of the European Year of Citizens, heard that disenfranchisement was a key obstacle to EU citizenship. It was agreed at the hearing that the existing policies of disenfranchisement needed to be addressed.

I shall also mention an important court case that took place in the European Court of Human Rights, which is not an EU court, but gives a lot of guidance in terms of fundamental rights. The European Court of Human Rights issued its judgment on the Shindler case. Harry Shindler was a British Second World War veteran who had lived in Italy for more than 15 years and had consequently been denied his right to vote in national elections in his home country after the 15-year period. The judgment pointed to the fact that the emergence of new technologies and cheaper transport had enabled migrants to maintain a higher degree of contact with their state of nationality than would have been possible until recently. The court went on to state that this had led to a number of states amending their legislation to allow non-residents to vote in national elections. The court concluded that there was a clear trend in favour of allowing voting by non-resident citizens. I cite that case as jurisprudence in the area.

The European Commission has also taken note of the discussions that have taken place at the Irish Constitutional Convention. On 25 November, the convention formally submitted its report to the Oireachtas recommending the extension of voting rights in presidential elections for Irish citizens resident outside the State. The convention underlined the huge response that it had received to its online questionnaire on the issue from Irish citizens based in 64 countries ranging from Afghanistan to Zambia. The chairman of the convention stated that he was "astounded with the size of the response and the strength of opinion" on the issue. The Commission looks forward with interest to the Government’s response to the report, which I understand will happen in the very near future.

This leads me back to the Commission's communication and recommendation. The Commission's fundamental aim is to suggest constructive ways to enhance the rights of EU citizens to participate in the democratic life of the Union while exercising their right to free movement. Let me again underline that we do not question the sovereign right of member states to determine the composition of the electorate for national elections.

The Commission makes four recommendations. The committee has received the documents, but I will briefly summarise them. First, as opposition to the principle of non-resident voting is often based on the presumption that the connection with the political process in the home country is lost after a period, the Commission recommends that member states should enable nationals who make use of their right to free movement and residence in the European Union to retain their right to vote if they demonstrate a continuing interest in the political life of the member state of which they are nationals. This should include the possibility of applying to remain registered on the electoral roll. The Commission points to socioeconomic and technological realities such as cheaper air fares and the existence of online media in facilitating citizens who want to stay in touch with political developments in their own member states. Second, the Commission recommends that member states that put such a system in place can implement proportionate additional arrangements, such as the possibility of reapplying at certain intervals. Third, the Commission recommends that such applications be possible electronically. Finally, the Commission recommends that for those member states whose citizens automatically lose their right to vote in national elections - such as Ireland - when they move to another member state, the member state should inform the citizen by appropriate means and in a timely manner about the conditions and the practical arrangements for retaining their right to vote in national elections.

I shall conclude by emphasising again that neither the communication nor the recommendation are legally binding on Ireland. Also, both are intended to highlight what the Commission perceives as a gap in the political rights of EU citizens while providing guidance on how to fill the gap. The Commission is asking five countries - Cyprus, Ireland, Denmark, Malta and the UK - to show greater flexibility so that their own nationals are not denied the right to vote in national elections. Clearly the ball is in Ireland’s court as to how it wishes to respond to the recommendation.