EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Hardie Lord Bracadale	[2011] CSIH 67 P369/11 OPINION OF THE COURT delivered by LORD REED in the cause GEORGE McGEOCH Petitioner; against THE LORD PRESIDENT OF THE COUNCIL Respondent: _______

Petitioner: O'Neill, Q.C., Collins; Balfour + Manson LLP

Respondent: Crawford, Q.C., Office of the Advocate General

8 November 2011

Introduction

[1] In this application for judicial review the petitioner, a convicted prisoner, challenges the compatibility with EU law of the provisions of the Representation of the People Act 1983 ("the 1983 Act") which prevent him from being included in the Register of Local Government Electors.

Background

[2] The petitioner is serving a life sentence. The earliest date on which he can be considered for parole is July 2015. He is currently detained in HMP Dumfries. On 5 November 2010 he applied to the Electoral Registration Officer for Dumfries and Galloway ("the ERO") for his name to be included in the Register of Local Government Electors. Inclusion in that register is necessary in order to be able to vote in local government elections and elections to the Scottish Parliament. That application was refused by letter dated 11 February 2011, on the basis that the 1983 Act prevented his being registered. Section 3(1) of the 1983 Act provides:

"A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any Parliamentary or local government elections".

Section 4(3) provides that a person is entitled to be registered in the Register of Local Government Electors for any electoral area if on the relevant date he is, inter alia, resident in that area, and not subject to any legal incapacity to vote. Section 5(2) provides that, subject to certain exceptions which are not material to the present case, a person who is detained at any place in legal custody is not, by reason of his presence there, to be treated for the purposes of section 4 as resident there.

[3] The petitioner then brought the present application for judicial review, in which he seeks the following remedies:

(a) declarator that the application to him of the convicted prisoner disenfranchisement provisions of the 1983 Act insofar as he seeks to be able to be included in the Register of Local Government Electors is incompatible with his rights under article 20(2)(b) of the Treaty on the Functioning of the European Union ("TFEU") and article 40 of the Charter of Fundamental Rights of the European Union ("the Charter");

(b) an order requiring the ERO to include him on the Register of Local Government Electors; and

(c) in the event that local government elections, including elections to the Scottish Parliament, should take place on a franchise which excludes him by reason of these disenfranchisement provisions, Francovich damages for the resulting contravention of his rights under EU law.

[4] The petition came before the Lord Ordinary on 31 March 2011, on the petitioner's motion for orders for intimation and service and for an interim order under head (b) above. The motion was opposed on behalf of the ERO and on behalf of the Lord President of the Council (the respondent) as the responsible minister. After hearing submissions that day and on 7 April 2011, not only in relation to the motion but in relation to the petition as a whole, the Lord Ordinary issued his decision on 8 April 2011, in time for the Scottish Parliamentary election to be held on 5 May 2011. We would pay tribute to the evident care, as well as the expedition, with which he prepared his Opinion.

[5] The Lord Ordinary refused the petition. He held, in the first place, that the petitioner had failed to avail himself of a suitable alternative remedy in the form of a statutory appeal under the 1983 Act, and that it was inappropriate in these circumstances for the court to entertain an application for judicial review. Secondly, he held that EU law did not in any event confer upon the nationals of a Member State the right to vote in municipal elections in that state.

[6] The petitioner reclaimed against that decision. At a procedural hearing held on 12 May 2011, counsel for the ERO and the respondent confirmed that they were no longer founding on the petitioner's failure to use an alternative remedy, in particular because it was accepted that the ERO had failed to observe all the procedural requirements of the statutory scheme. It was also agreed that the only live issue was whether the Lord Ordinary had been correct in his conclusion that EU law did not confer upon the petitioner the right to vote in municipal elections in the United Kingdom. In that regard, counsel for the petitioner maintained that the Lord Ordinary - and, on appeal, this court - was obliged to make a reference to the Court of Justice of the European Union under article 267 TFEU in relation to the following to questions of EU law:

(1) Can the EU citizenship right conferred by article 20(2)(b) TFEU "to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State" be relied upon in a case such as the present, which involves a UK national seeking to rely upon this right against the UK, or can it be relied upon only by EU citizens who are residing in a Member State of which they are not nationals?

(2) If the answer to question 1 is that article 20(2)(b) TFEU can be relied upon by the petitioner in the present case, does the right to vote in municipal elections conferred by that provision cover only local government elections in Scotland, or does it also cover elections to the Scottish Parliament?

In the event, the ERO did not take part in the hearing of the reclaiming motion.

[7] It should be noted that although the proposed first question quoted the words in article 20(2)(b) which refer to elections to the European Parliament, the petitioner's application is concerned solely with local government elections and elections to the Scottish Parliament.

A preliminary issue

[8] At the outset of the hearing, counsel for the petitioner drew to the court's attention the fact that a member of the court, Lord Hardie, had been Lord Advocate at the time when the petitioner was indicted in respect of the offence for which he is currently serving a sentence. Counsel referred to the case of Piersack v Belgium (1982) 5 EHRR 169, where the trial judge had previously been the head of the section in the public prosecutor's office which had been responsible for the proceedings against the applicant, and the European Court of Human Rights concluded that there were in consequence reasonable doubts as to the outward appearance of impartiality. Counsel did not suggest that Lord Hardie should recuse himself, describing the issue as being in a sense a formality, but said that he had been instructed to raise the issue. He also invited the other members of the court to disclose whether they had had any previous involvement with the petitioner as prosecutors, trial judges or members of the Criminal Appeal Court. Those members of the court responded that they had no recollection of any such involvement, but could not exclude that possibility.

[9] The test of impartiality, in circumstances such as these, is whether a fair minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased (Davidson v Scottish Ministers (No.2) 2005 1 SC (HL) 7). The present proceedings are entirely distinct from the criminal proceedings against the petitioner, and concern an entirely different question. In those circumstances, we do not consider that a fair minded and informed observer would conclude that there was a real possibility that a member of this court might be biased by reason of having been Lord Advocate at the time when the petitioner was indicted in the criminal proceedings, or by reason of having had an involvement in those proceedings as a prosecutor, trial judge or appellate judge (even on the assumption that there had been any such involvement in the present case). We therefore see no reason why any member of the court should recuse himself.

The relevant provisions

[10] Before considering the parties' arguments, it may be helpful first to set out the relevant legislative provisions.

[11] Articles 20 to 25 TFEU are in the following terms:

"Article 20

(ex Article 17 TEC)

1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member States;

(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;

(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.

Article 21

(ex Article 18 TEC)

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

2. If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.

3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.

Article 22

(ex Article 19 TEC)

1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

2. Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

Article 23

(ex Article 20 TEC)

Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State. Member States shall adopt the necessary provisions and start the international negotiations required to secure this protection.

The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.

Article 24

(ex Article 21 TEC)

The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions required for a citizens' initiative within the meaning of Article 11 of the Treaty on European Union, including the minimum number of Member States from which such citizens must come.

Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 227.

Every citizen of the Union may apply to the Ombudsman established in accordance with Article 228.

Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 13 of the Treaty on European Union in one of the languages mentioned in Article 55(1) of the Treaty on European Union and have an answer in the same language.

Article 25

(ex Article 22 TEC)

The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.

On this basis, and without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may adopt provisions to strengthen or to add to the rights listed in Article 20(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements. "

[12] The directive adopted under what is now Article 22(1) TFEU, and was at the time article 8b(1) of the EC Treaty ("EC"), is Council Directive 94/80/EC laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, as amended. The preamble to the directive states, in the third to fifth recitals:

"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 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....."

[13] The pivotal provision of the directive is article 3:

"Article 3

Any person who, on the reference date:

(a) is a citizen of the Union within the meaning of the second subparagraph of Article 8(1) of the Treaty; and

(b) is not a national of the Member State of residence, but in any event satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals,

shall have the right to vote and to stand as a candidate in municipal elections in the Member State of residence in accordance with this Directive".

The expression "Member State of residence" is defined by article 2(1)(c):

"(c) 'Member State of residence' means the Member State in which a citizen of the Union resides but of which he is not a national".

The expression "municipal elections" is defined by article 2(1)(b):

"(b) 'municipal elections' means elections by direct universal suffrage to appoint the members of the representative council and, where appropriate, under the laws of each Member State, the head and members of the executive of a basic local government unit".

The expression "basic local government unit" is defined by article 2(1)(a):

"(a) 'basic local government unit' means the administrative entities listed in the Annex which, in accordance with the laws of each Member State, contain bodies elected by direct universal suffrage and are empowered to administer, at the basic level of political and administrative organization, certain local affairs on their own responsibility".

In relation to the United Kingdom, the administrative entities listed in the Annex are:

"counties in England; counties, county boroughs and communities in Wales; regions and islands in Scotland; districts in England, Scotland and Northern Ireland; London boroughs; parishes in England; the City of London in relation to ward elections for common councilmen".

Directive 94/80 was implemented in the UK by the Local Government Elections (Changes to the Franchise and Qualification of Members) Regulations 1995 (SI 1995/1948).

[14] The directive adopted under what is now article 22(2) TFEU, and was at the time article 8b(2) EC, is Council Directive 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals. It is in broadly similar terms, mutatis mutandis, to Directive 94/80/EC. Directive 93/109 was implemented in the UK by the European Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001 (SI 2000/1184).

[15] It is also necessary to note articles 39 and 40 of the Charter of Fundamental Rights of the European Union:

"Article 39

Right to vote and to stand as a candidate at elections to the European Parliament

1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State.

2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.

Article 40

Right to vote and to stand as a candidate at municipal elections

Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State".

The Explanations relating to the Charter of Fundamental Rights, to which courts are required by Article 52(7) of the Charter to give due regard, state in relation to these articles:

"Explanation on Article 39 - Right to vote and to stand as a candidate to the European Parliament

Article 39 applies under the conditions laid down in the Treaties, in accordance with Article 52(2) of the Charter. Article 39(1) corresponds to the right guaranteed in Article 20(2) of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 22 of the Treaty on the Functioning of the European Union for the adoption of detailed arrangements for the exercise of that right) and Article 39(2) corresponds to Article 14(3) of the Treaty on European Union. Article 39(2) takes over the basic principles of the electoral system in a democratic State.

Explanation on Article 40 - Right to vote and to stand as a candidate at municipal elections

This Article corresponds to the right guaranteed by Article 20(2) of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 22 of the Treaty on the Functioning of the European Union for the adoption of detailed arrangements for the exercise of that right). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these Articles in the Treaties".

The petitioners' argument

[16] The starting point of the argument presented on behalf of the petitioner was that the ambit of article 20(2)(b) TFEU, unlike article 22(1) and (2), is not expressly restricted to "every citizen of the Union residing in a Member State of which he is not a national". In response to the suggestion that such a restriction is implicit in article 20(2)(b), since it guarantees to citizens of the Union the right to vote and to stand as candidates in their Member State of residence "under the same conditions as nationals of that State", counsel responded that such an implication should not be made, since article 20(2)(b) would then be equivalent to the first sentence of article 22(1) and (2). On this basis, counsel argued that article 20(2)(b) conferred a right upon a national of a Member State who was residing in that state. In support of that contention, reference was made to Case C-300/04 Eman and Sevinger v Netherlands [2006] ECR I-8055, Case C-135/08 Rottmann v Freistaat Bayern [2010] QB 766 and Case C-34/09 Ruiz Zambrano v Office national de l'emploi [2011] All ER (EC) 491.

[17] The next step in the argument was that the right conferred by article 20(2)(b) in respect of "municipal elections" covered elections to the Scottish Parliament and local government elections.

[18] The next step in the argument was that the right conferred by article 20(2)(b) was directly effective. In that regard, counsel contrasted article 20 with article 22, and acknowledged that the second sentence of article 22(1) and (2) implied that those articles did not confer directly effective rights. It was also acknowledged that the implementing measures adopted by the Council, notably in Directive 94/80/EC, have no application to EU citizens residing in the Member State of which they are nationals.

[19] The next step in the argument was that the right conferred by article 20(2)(b) TFEU had to be construed in conformity with the Charter and with the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), in accordance with article 6 of the Treaty on European Union ("TEU"). In that regard, reference was made in particular to articles 39 and 40 of the Charter; to article 52 of the Charter, which requires limitations on the exercise of the rights and freedoms recognised by the Charter to meet certain requirements, including proportionality, and which also requires rights contained in the Charter which correspond to ECHR rights to be given the same meaning as under the ECHR; and to Article 3 of Protocol No.1 to the ECHR, which guarantees a right to free elections of a "legislature".

Discussion

[20] In our opinion the argument advanced on behalf of the petitioner breaks down at the first step. We are sufficiently confident in reaching that conclusion for it to be inappropriate for us to make any reference to the Court of Justice.

[21] Counsel's argument that the concluding words of article 20(2)(b) TFEU ("under the same conditions as nationals of that State") do not imply that the right described in that provision is a right of citizens of the Union who are not nationals of their Member State of residence is based, first, on the supposed need to avoid duplication between that provision and article 22. The implicit proposition, in other words, is that articles 20 and 22 TFEU cannot be intended to refer to the same right, since there would then be duplication. In order to avoid such duplication, the concluding words of article 20(2)(b) are not to be read in their ordinary sense. The consequence, as it appears to us, is that those concluding words are effectively to be disregarded.

[22] The argument calls for an examination of the relationship between article 20(2)(b) and article 22. Article 22 can be traced back to the Maastricht Treaty of 1992. That treaty inserted in the EC Treaty a group of provisions concerned with citizenship of the Union, which now appears (with some amendments which are immaterial for present purposes) in articles 20(1), 21, 22, 23, 24 and 25 TFEU. Article 20(2) TFEU was inserted by the Treaty of Lisbon, and originated in article 1-10 of the Treaty establishing a Constitution for Europe, which was never brought into force. The resultant structure in the TFEU is that article 20 contains a concise and general statement of rights of citizens of the Union, in the form in which such rights might be stated in a constitutional document, and articles 21 to 25 then set out the original, and generally fuller, statement of Union citizenship rights, including in particular the procedure by which more detailed provisions may be adopted by the EU's legislative institutions. There is in consequence a correspondence between article 20(2)(a) and article 21; between article 20(2)(b) and article 22; between article 20(2)(c) and article 23; and between article 20(2)(d) and article 24. As is stated in the Explanations relating to the Charter, article 22(1) in particular is the legal base for the adoption of detailed arrangements for the exercise of the right guaranteed by article 20(2)(b), in relation to municipal elections; and the same can be said of article 22(2) in relation to the right guaranteed by article 20(2)(b) in relation to elections to the European Parliament. The fact that there is an element of duplication between corresponding articles is only to be expected: it is not a problem which requires to be avoided by means of strained interpretations.

[23] The second basis on which counsel argued that article 20(2)(b) confers a right to vote in municipal elections upon a national of a Member State who is residing in that state was that such a construction was supported by a number of judgments of the Court of Justice. The case on which counsel primarily relied, and the only one which involved the right to vote, was Eman and Sevinger v Netherlands. The case concerned Dutch nationals who were not entitled under Dutch law to vote in an election to the European Parliament because they lived in a Dutch overseas territory forming part of the Kingdom of the Netherlands. They would have been entitled to vote if they had been living in the Netherlands or in a non-member country. The overseas territory in which they lived had special arrangements for association with the EU, under the EC Treaty. The national court referred a number of questions to the Court of Justice, including the following:-

"Must Article 19(2) EC, read in conjunction with Articles 189 EC, and 190(1) EC, be construed as meaning that - apart from the not unusual exceptions in national legal systems relating to, inter alia, deprivation of voting rights in connection with criminal convictions and legal incapacity - even in the case where the persons concerned are living in the OCTs [overseas countries and territories], the status of citizen of the Union automatically confers the right to vote and to stand as a candidate in elections to the European Parliament?".

Article 19(2) EC is now article 22(2) TFEU. Article 190(1) EC, which corresponds to article 14(3) TEU, requires the European Parliament to be elected by direct universal suffrage. Article 190(4) EC, now article 223(1) TFEU, requires the election to take place in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.

[24] In relation to the question referred, the Court of Justice observed at para 53 that article 19(2) EC, and Directive 93/109, were confined to applying the principle of non-discrimination on grounds of nationality to the right to vote and stand for election. It followed from the terms of article 19(2) EC and the provisions adopted for its implementation that it had no application to a citizen of the Union residing in an OCT who wished to exercise his right to vote in the Member State of which he was a national. The Court of Justice noted, however, that since article 190 EC provided the framework for elections to the European Parliament, but left it to Member States to define the persons entitled to vote, the Member States must exercise that competence in compliance with Community law, including the general principle of equal treatment. That principle prevented the criteria chosen from resulting in the different treatment of nationals who were in comparable situations, unless that difference was objectively justified.

[25] The decision in Eman and Sevinger, so far as founded upon by counsel for the petitioner, was not therefore based upon the right with which article 22 TFEU is concerned but upon the fact that the franchise for elections to the European Parliament fell within the scope of EU law: specifically, the provisions now contained in article 14 TEU and article 223(1) TFEU. The franchise for municipal elections, on the other hand, is not within the scope of EU law, except to the extent that articles 20 and 22 TFEU are applicable; and the implication of Eman and Sevinger, as well as of the text of the articles themselves and of the directive (94/80) adopted for their implementation, is that their scope is limited to the application of the principle of non-discrimination on grounds of nationality: in particular, they have no application to citizens of the Union who are resident in the Member State of which they are nationals.

[26] The judgment of the Court of Justice in Case C-145/04 Spain v United Kingdom [2006] ECR I-7917, issued on the same date as Eman and Sevinger, provides further support for that conclusion. That case also was concerned with elections to the European Parliament: the issue was whether the United Kingdom was entitled to extend the right to vote to citizens of Gibraltar, who were not citizens of the Union. In the course of its judgment, the court repeated at para 66 that article 19(2) EC was confined to applying the principle of non-discrimination on grounds of nationality to the exercise of the right to vote for the European Parliament. At para 76 the court stated:

"As regards Article 19(2) EC, also relied on by the Kingdom of Spain in support of its argument that there is a link between citizenship of the Union and the right to vote and to stand as a candidate in elections to the European Parliament, it is confined, as pointed out in paragraph 66 above, to stating a rule of equal treatment between citizens of the Union residing in a Member State so far as concerns that right to vote and stand for election. While that provision, like Article 19(1) EC relating to the right of Union citizens to vote and to stand as a candidate at municipal elections, implies that nationals of a Member State have the right to vote and to stand as a candidate in their own country and requires the Member States to accord those rights to citizens of the Union residing in their territory, it does not follow that a Member State in a position such as that of the United Kingdom is prevented from granting the

right to vote and to stand for election to certain persons who have a close link with it without however being nationals of that State or another Member

State."

The second sentence of that paragraph is perhaps the high water mark of the petitioner's argument, at least if it is read in isolation. Article 19(1) EC - now article 22(1) TFEU - is of course premised on the fact that nationals of a Member State have the right to vote and to stand as a candidate at municipal elections in their own country; but it says nothing about the precise circumstances in which nationals possess such a right, that being a matter governed by the law of the Member State. All article 19(1) EC does, as the court states, is to require the Member States to accord those rights to citizens of the Union residing on their territory without discrimination on grounds of nationality. That is consistent with the wider principle, which the court has stated in a number of cases, that "citizenship of the Union is not intended to extend the material scope of the Treaty to internal situations which have no link with Community law" (Case C-212/06 Government of the French Community and Walloon Government v Flemish Government [2008] ECR I-1683, para 39).

[27] The cases of Rottmann and Ruiz Zambrano do not assist the petitioner. Rottmann concerned a decision to withdraw a person's naturalisation as a German national, with the consequence that he would lose his citizenship of the Union and be deprived of the rights attaching to that status. Although the issue was one between a Member State and one of its nationals, it fell within the scope of EU law because of its impact upon citizenship of the Union. The case of Ruiz Zambrano was analogous. It concerned a decision to refuse a right of residence and work permit to a person whose dependent children were citizens of the Union. The result of the decision was that the children would be removed from the EU, with the consequence that they would be deprived of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. EU Law was therefore engaged. We note that, in that case, Advocate General Sharpston discussed article 20(2)(b) TFEU in the course of her opinion, stating (at para 79):

"When one examines the various rights that the Treaty confers on citizens of the Union, it is clear that some - notably, the right to vote and to stand as a candidate in municipal elections and elections to the European Parliament - can only be invoked in a Member State other than the Member State of which the person concerned is a national (see Article 22 TFEU (formerly Article 19 EC), which refers specifically to 'residing in a Member State of which he is not a national', and Article 20(2)(b) TFEU (formerly Article 17 EC) which refers to citizens of the Union exercising those rights 'in their Member State of residence, under the same conditions as nationals of that State'). "

[28] In the present case, since the petitioner is a UK national residing in the UK, and this application is concerned only with the right to vote in elections to bodies in the UK, the case is concerned with an internal situation which has no link with EU Law. In particular, the petitioner's situation does not in our opinion fall within the scope of articles 20(2)(b) or 22(1) TFEU. General principles of EU law, such as those set out in the Charter, therefore do not apply.

[29] Having reached that conclusion in relation to the first step in the argument presented on behalf of the petitioner, it is unnecessary for us to consider the remainder of the argument in detail. The only point we would wish to add is that we do not consider that elections to the Scottish Parliament are "municipal elections" within the meaning of articles 20(2)(b) and 22(1) TFEU. That phrase would naturally be understood as referring to local bodies whose responsibilities are primarily of an administrative nature, rather than a regional legislature within a state with federal or devolved arrangements for law-making. The measures adopted for the implementation of the right, in Directive 94/80, proceed on that basis, defining "municipal elections" as elections to a "basic local government unit", that expression in turn being defined as meaning the administrative entities listed in the Annex: a list which excludes regional legislatures such as those of the German Länder. The Scottish Parliament is a legislature, not an administrative body; and it is not akin to the entities listed in the Annex to the Directive.

Amendment

[30] During the second day of the hearing, and following discussion of the case of Eman and Sevinger in argument during the previous day, counsel for the petitioner sought leave to amend the petition so as to extend its scope to elections to the European Parliament. The application was opposed on behalf of the respondent, on the basis that the proposed amendment was unnecessary in order to determine the present petition, and raised issues requiring careful consideration by those instructing counsel, which could not be completed within the time set down for the hearing. We accepted those submissions and therefore refused the application for leave to amend.

Conclusion

[31] For the foregoing reasons we shall refuse the reclaiming motion.