This is just a short development of my thoughts regarding why UK's Referendum Bill franchise infringes Art 18 TFEU. For an analysis of the voting franchise and the difficult issues it raise, see Prof Jo Shaw's excellent piece here. I will develop lengthier arguments in view of the debate I hope this will spur. For now, this is a broad brushstroke presentation of the argument:
Art 18 TFEU prohibits any discrimination
on grounds of nationality, and that prohibition of discrimination applies within
the scope of application of the Treaties and without prejudice to any special
provisions contained therein. As recently stressed by the CJEU in Dano (C-333/13, EU:C:2014:2358) “Every Union citizen may therefore rely on
the prohibition of discrimination on grounds of nationality laid down in
Article 18 TFEU in all situations falling within the scope ratione
materiae of EU law. These situations include those relating
to the exercise of the right to move and reside within the territory of the
Member States conferred by point (a) of the first subparagraph of Article
20(2) TFEU and Article 21 TFEU”… “the
principle of non-discrimination, laid down generally in Article 18 TFEU, is
given more specific expression in … Directive 2004/38 in relation to Union
citizens who … exercise their right to move and reside within the territory of
the Member States” (59 & 61).
I will limit my points to non-UK EU
citizens that have resided in the UK for more than five years, which have
acquired permanent residency under
Art 16 Dir 2004/38 (thought the same arguments apply functionally to the rest of non-UK EU citizens residing in the UK,
at least those who are not an unreasonable burden on the social assistance
system).
Those non-UK residents will (likely)
see their permanent residency right affected (if not taken away) should the UK
pull out (barring a general grandfathering of those rights). While some non-UK
EU citizens are given right to vote in the referendum (Irish, Maltese,
Cypriots) regardless of any other condition linked to their right to residence
under Art 16 Dir 2004/38 or otherwise; others (rest of nationalities) do not
get the right to vote on an issue that affects the continuity of the rights
acquired under Dir 2004/38—and, ultimately, Arts 20-21 TFEU, which clearly
engages Art 18 TFEU. This is discrimination based on nationality and,
consequently, prohibited by Art 18 TFEU. Moreover, given the relevance of permanent
residence rights for the development of basic human rights as recognised in the
EU Charter (such as private and family life, Art 7; or property, Art 17, just
to mention the most likely to be affected), this sort of discrimination is
unacceptable.
Of course, the only valid argument
against this is that Art 50(1) TEU determines that “Any Member State may decide
to withdraw from the Union in accordance with its own constitutional
requirements”. However, even then, it seems contrary to UK constitutional
principles to force non-UK citizens to apply for citizenship (if they can) in
order to have their basic fundamental rights upheld. Hence, this is not only
politically and socially unacceptable, but legally flawed and open to challenge
before the Court of Justice of the European Union.