64. The wording I have reproduced above created problems of interpretation from the outset, giving rise to an important doctrinal debate, fuelled in part by the attempt to emphasise a certain tension between the previous case-law and the wording of that provision.

65. Confirming the earlier settled case-law, the judgment in Åkerberg Fransson held that ‘in essence, … the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law. On the other hand, if such legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures’.

66. As a statement of principle, the Court declared at paragraph 21 of that judgment that ‘[s]ince the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of EU law, situations cannot exist which are covered in that way by EU law without those fundamental rights being applicable. The applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter.’

67. Lastly, as another statement of principle, paragraph 29 of the judgment refers to the case of situations governed by national law which are not ‘entirely determined by EU law’. In such cases, the national public authorities may legitimately ‘apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised’.

68. In that connection, it should be noted that on this point the Court cites the judgment in Melloni, paragraph 60 of which, referring to Article 53 of the Charter and, therefore, to the possibility of Member States establishing higher standards of protection, states that ‘Article 53 of the Charter confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised’.

69. The ‘scope of EU law’ is therefore defined as encompassing ‘all situations governed by EU law’. At the same time, the application of the Charter may not lead to an extension of the competences attributed to the Union by the Treaties, for, as observed in Åkerberg Fransson, in accordance with Article 6(1) TEU, ‘the provisions of the Charter are not to extend in any way the competences of the European Union as defined in the Treaties. Likewise, the Charter, pursuant to Article 51(2) thereof, does not extend the field of application of EU law beyond the powers of the European Union or establish any new power or task for the European Union, or modify powers and tasks as defined in the Treaties’. 

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85. On the same lines, the Court has also held that ‘the concept of “implementing Union law”, as referred to in Article 51 of the Charter, requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other’. The Court has also observed that ‘[i]n order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some of the points to be determined are whether that legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or capable of affecting it’.

86. In short, following that same line of argument, the fact that any retroactive effect of that reform could have had the collateral, and to a certain extent fortuitous, effect of recovery of the right to vote does not make it possible to assert that the third sentence of Article 49(1) of the Charter ‘governs’ that situation or, in other words, that the act of the national authorities was adopted in order to implement EU law.

87. I believe, therefore, that a national provision like that at issue in the present case, which precludes a particular retroactive effect as regards a provision of criminal law which was not adopted to implement EU law, cannot be regarded as a provision of national law adopted to implement EU law either.

88. In conclusion, it is my view that the Court lacks jurisdiction, in the circumstances of the case, to give a ruling on the compatibility of the national legislation invoked by the Tribunal d’instance with the right recognised in the third sentence of Article 49(1) of the Charter.

4. Whether the right to vote in elections to the European Parliament, as recognised in Article 39(2) of the Charter, may be relied upon against a provision of national criminal law under which the right to vote in elections to the European Parliament is definitively lost

89. By its second question, the Tribunal d’instance de Bordeaux asks whether the definitive deprivation of the right to vote, originally imposed on Mr Delvigne — and which he continues ‘to serve’ — in accordance with the criminal law in force at the time of the offences he was found to have committed, is compatible with the Charter.

90. Again, it is necessary to consider whether the requirements for linking the acts of the public authorities of the Member States to the provisions of the Charter, laid down in Article 51(1) of the latter, are met. Again, the question arising is, essentially, whether it may be stated that the situation is one in which EU law governed or determined the application of the criminal law at issue.

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105. It is important to recall the words of the Court at paragraph 29 of the judgment in Åkerberg Fransson, reproduced above: in situations governed by national law which are ‘not entirely determined by EU law’, the national public authorities may legitimately ‘apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised’. 

106. In that connection, it is clear from the foregoing that, as a whole, the electoral law governing elections to the European Parliament is not ‘entirely determined’, in law or in fact, by EU law. In other words, even in a situation in which the stipulation in Article 223(1) TFEU is complied with, the competence of the Union legislature does not encompass all electoral law in relation to elections to the European Parliament but only the establishment of a uniform procedure or common principles. That situation means that the national law laid down in that regard is not ‘entirely determined’ by EU law. That is all the more true in a situation in which the provision in Article 223(1) TFEU has not been given effect. That is why the Member States are free to apply standards of protection other — and, in accordance with Melloni, higher — than those provided for in the Charter, subject, of course, to the condition to which I referred at the end of the previous point.

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108. The wording of the question submitted by the referring court suggests that its focus is paragraph 1 of Article 39 of the Charter, for it is only that paragraph that refers to the principle of equality, albeit solely to guarantee that citizens of the Union residing in a Member State other than that of which they are nationals may participate in elections to the European Parliament under the same conditions as nationals of the State of residence. However, it is clear that the equal treatment invoked by Mr Delvigne and referred to by the Tribunal d’instance in its order for reference is not that under Article 39(1) of the Charter, but that under Article 39(2).

109. The referring court asks precisely whether ‘Article 39 of the Charter …, applicable to elections to the European Parliament, [is] to be interpreted as precluding the Member States of the European Union from making provision for a general, indefinite and automatic ban on exercising civil and political rights, in order to avoid creating any inequality of treatment between nationals of the Member States’. As we shall see, the reference to ‘a general, indefinite and automatic ban’ brings to mind immediately the case-law of the European Court of Human Rights in relation to deprivation of the right to vote in purely domestic contexts; in other words, in relation to the very definition of the right to vote as a political right. Therefore, when the Tribunal d’instance talks of ‘inequality of treatment between nationals of the Member States’, I believe that it is referring only to French nationals and not to the latter as compared with nationals of other Member States.

110. Attention must, therefore, be turned to Article 39(2) of the Charter, that is to say, to the exercise of the right to vote, sensu stricto, for the question of fundamental rights raised in the case of Mr Delvigne is not, properly speaking, whether, in the same circumstances as him, nationals of other Member States may participate in elections to the European Parliament, either in France or in other Member States. The question is whether, as a citizen of the Union, the national legislation applied to Mr Delvigne is compatible with a fundamental right granted in the Charter to all European citizens even when they exercise that right in their Member State of nationality.

111. The question being thus defined, it should be pointed out that it has arisen in proceedings concerning the exclusion of Mr Delvigne from the electoral roll as a result of his being sentenced in 1988 to a principal penalty of 12 years’ imprisonment and an ancillary penalty of permanent deprivation of the right to vote. Mr Delvigne claims in the main proceedings that the criminal legislation which, in 1992, abolished the automatic and indefinite nature of that ancillary penalty, albeit only in the case of convictions rendered after the entry into force of that legislation, ought to be applied to him retroactively.

2. Whether the national legislation respects the right to vote in elections to the European Parliament (Article 39(2) of the Charter)

112. The present case is concerned with definitive ineligibility attaching to the imposition of a specific sentence. It is concerned, in particular, with a situation that may be described as a ‘limitation’ of the exercise of a fundamental right, within the meaning of Article 52(1) of the Charter. Under that provision, such a limitation is allowed only when it is ‘provided for by law and respect[s] the essence’ of the right concerned, and it must, at all events, be a limitation that respects the ‘principle of proportionality’ and, in addition to being ‘necessary’, ‘genuinely meet[s] objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

113. It is necessary to examine whether, in accordance with the case-law on the subject, the conditions necessary for the limitation concerned to be regarded as compatible with the requirements of the Charter are satisfied in the circumstances of the case.

114. It is not disputed that that limitation was provided for by law, since it is the result of the combined application of the Criminal Code, the 1992 Law and the Electoral Code. The question is whether it also respects the essence of the right to vote, and it is necessary to agree with the German Government’s observation that ‘automatic and long-term’ deprivation of the right to vote in the event of a criminal conviction is contrary to the essence of universal suffrage, for it renders the exercise of that right impossible for certain citizens of the Union.

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115. In the context of the Charter, respect for the essence of the rights recognised therein acts as an absolute, insuperable limit, as a ‘limit of limits’. In other words, failure to respect the essence of the fundamental right in question leads to that right becoming ‘unrecognisable as such’ so that it will not then be possible to refer to a ‘limitation’ of the exercise of the right but rather, purely and simply, to the ‘abolition’ of the right.

116. Applying that consideration to the present case, and owing to the nature of the limitation at issue, it is necessary to determine whether that limitation is proportionate, for, if it is not, the limit imposed by the Charter on any possible limitation of the fundamental rights, that is to say, their essence, will have been disregarded.