The Spanish Complaint

The Judge involved
Judge Antonio Tizzano

Born 1940; various teaching assignments at Italian universities; Legal Counsel to Italy's Permanent Representation to the European Communities (1984-92); Member of the Bar at the Court of Cassation and other higher courts; Member of the Italian delegation in international negotiations and at intergovernmental conferences including those on the Single European Act and the Maastricht Treaty; various editorial positions; Member of the Independant Group of Experts appointed to examine the finances of the European Commission (1999); Professor of European Law, Director of the Institute of International and European Law (University of Rome); Advocate General at the Court of Justice since 7 October 2000.

The Complaint

Hearing in Spain v UK, (C-145/04) 5 July 2005
Grand Chamber European elections – right to vote of Commonwealth citizens in Gibraltar

Following the European Court of Human Rights’ judgment in Matthews v UK, in which the UK was found to be breaching Gibraltarians’ right to vote by not allowing them to vote in European Parliament elections, the UK changed its voting rules. The European Parliament (Representation) Act 2003 combines Gibraltar with the South-West constituency in the UK and extends the right to vote to European and Commonwealth citizens legally resident in Gibraltar.

In challenging the UK’s voting rules, Spain claims that by allowing non-European citizens to vote in European elections and creating a combined region, UK law is contrary to Community law. The European Commission supports the UK’s position.

The ruling

The Advocate General proposes that the Court reject the first head of complaint in the action and uphold in part the second. According to the Advocate General, the possibility of extending the right to vote in elections to the European Parliament to citizens of non-member countries is not precluded by the general Treaty rules. Such an extension appears to be consistent with the democratic principle of universal suffrage, which argues in favour of recognising voting rights for the largest possible number of persons, and thus also extending such rights to non-nationals who are established in a particular Member State.

Member States are, however, under an obligation to comply with the general principles of the legal order, such as the principles of reasonableness, proportionality and non-discrimination, in addition to the specific Community provisions in the area under consideration (such as those imposed on the United Kingdom by Annex II to the 1976 Act). The extension of voting rights to citizens of non-member countries, however, infringes Annex II to the 1976 Act. That Annex requires the United Kingdom to apply the provisions of the 1976 Act only in relation to the United Kingdom itself.

According to the Advocate General, the United Kingdom was required, as a result of the judgment delivered by the European Court of Human Rights in Strasbourg in the Matthews case, to introduce a derogation from Annex II in order to guarantee voting rights for British citizens resident in Gibraltar.

The creation of a new electoral constituency, the carrying out of polling in Gibraltar and the establishment of the electoral register are legitimate measures inasmuch as they are necessary to guarantee the effectiveness of those citizens’ right to vote. By contrast, the extension of that right to persons resident in Gibraltar, but who are not citizens of the United Kingdom or of any other Member State of the European Union, is not required by the need to guarantee the exercise of a fundamental right and therefore does not justify aderogation from Annex II.

The Annex therefore retains its prohibitory scope in regard to citizens of non-member countries.

Glyn Ford MEP
Outrageous discrimination says MEP

Glyn Ford, representing the South West and Gibraltar, attacked the opinion which could discriminate against Commonwealth citizens. "If this outrageous opinion from the Advocate-General was to become a court ruling we would have the absurd situation of Commonwealth citizens unable to vote or stand for election as their counterparts on mainland UK could," he said.


Neil Parish MEP
SW and Gibraltar

Good news and bad news

Neil, Representing the South West and Gibraltar commented that the opinion was a mixed bag. He was pleased that it looks less likely a million UK residents will lose their right to vote but expressed regret that Spain's ill-motivated action may cost anyone their democratic rights.

He said:

"Our greatest worry was that over a million people could lose their right to vote in European elections on the UK mainland and that is now looking less likely.

It is still very sad to think that even one Commonwealth citizen living in Gibraltar could be prevented from voting by Spain's ill-motivated court case against the UK. Spain is determined to make the lives of Gibraltarians difficult over the sovereignty issue and it is frankly pathetic.

This opinion is not binding on the Court so Commonwealth citizens are not yet out of danger. I will travel to Gibraltar next week to see if we cannot get this mess sorted out so that Commonwealth citizens who contribute to Gibraltar's community can be allowed to vote in the next European elections. "


Graham Watson MEP
Lib Dem
SW and Gibraltar

Democratic rights endangered

The Lib Dem MEP for the South West and Gibraltar commented: "I am delighted that the Advocate-General of the Court of Justice has upheld the right of Gibraltarians to participate in European elections as part of the South West England constituency which I have the great privilege to represent.

Whilst the message is not a comforting one for non-UK Commonwealth citizens resident in Gibraltar, who may now find themselves disenfranchised, the main substance of the Spanish government’s complaint was rejected.

I hope that the final judgment of the Court will confirm that all those living on the Rock are able to enjoy their full democratic rights."


Roger Knapman MEP
SW and Gibraltar

A million UK voters could be affected

The opinion has enraged a Eurosceptic MEP who represents Gibraltar under the contested voting arrangements. The UK Independence Party’s Roger Knapman is concerned that a future ruling could disenfranchise up to a million Commonwealth voters.

"This opinion seems to mean that a Hungarian living in Gibraltar can vote, but a Gibraltarian cannot. In order to kow-tow to the paranoia of the Spanish, Europe appears to be intent on discriminating against those from the Commonwealth, this must not be allowed to happen."

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