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EUOBSERVER / BRUSSELS - A top EU judge has argued that Britain acted in breach of EU law by allowing Commonwealth citizens to vote in the European Parliament elections although they are non-EU citizens.

Advocate-general Antonio Tizzano of the European Court of Justice (ECJ) in Luxembourg on Thursday (6 April) issued an advisory opinion to the court on a matter which critics say could exclude millions of people from EU ballot boxes.

The showcase scenario for extending EU voting rights to non-EU citizens is the British enclave of Gibraltar on the Spanish south coast, whose belonging is an on-going dispute between Spain and the UK.

The tiny territory has been a source of long dispute between Spain and Britain. It has been British since 1704, but Madrid questions London's right to keep a "colony".

Spain challenged a UK decision from 2003 to allow former British empire Commonwealth citizens in Gibraltar - mainly Pakistanis, Indians and Bangladeshis - the right to vote in the European Parliament elections, claiming only EU members should be entitled to vote.

Advocate-general Tizzano on Thursday sided with Madrid, and acknowledged that non-EU citizens in Gibraltar had no fundamental right to vote in European polls.

Mr Tizzano recommended that a British law from 1976 allowing citizens of the Commonwealth - although not members of the UK or any other EU member state - to take part in the European Parliament vote be declared illegal.

Independence/Democracy MEP Roger Knapman, representing the South West of England and Gibraltar in the European Parliament on Thursday dismissed the opinion.

"This opinion seems to mean that a Hungarian living in Gibraltar can vote, but a Gibraltarian cannot," he said.

"Of course EU citizens will be allowed to vote in the UK or Gibraltar, but a Gibraltarian without dual UK nationality, or an Indian or Nigerian might well fall foul of a judgement like this".

Mixed opinions on opinion

Advocate-general Tizzano rejected a second part of Madrid's case, which argued Britain acted illegally by including Gibraltar in voting districts in Wales and England just ahead of the European Parliament elections in 2003.

He also said that while Britain had an obligation to extend voting rights to British citizens in Gibraltar, extending such rights to non-EU Commonwealth citizens was illegal.

In 2003, the UK included Gibraltar in the European constituency of the South West, a geographical curiosity that the advocate-general did not question in his opinion.

British Conservative MEP Neil Parish, was therefore less pessimistic about Gibraltarians losing voting rights, saying the opinion was a "mixed bag".

"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," he said.

The advocate general's opinion is normally followed by the European Court of Justice.