—Dr. Markus W. Gehring, Deputy Director, Centre for European Legal Studies, Faculty of Law, University of Cambridge & Fellow in Law, Hughes Hall, and Ad personam Jean Monnet Chair in Sustainable Development Law & Associate Professor, University of Ottawa, Canada
The German (Federal) Constitutional Court ruled two days ago on February 26 that the 3% hurdle for European Parliament elections is unconstitutional under German law, so that European Union (EU) elections will be conducted in Germany without a minimum percentage of the popular vote to be obtained by the contesting parties. This is the second judgment by the Constitutional Court on European Parliament elections after a first one in 2011 struck down a 5% threshold.
The judgment surprises in two ways. First, for national Bundestag elections, 5% hurdles have been defended by the Constitutional Court for the last six decades, and second because this is the second not particularly EU-friendly judgment within a few weeks.
Thresholds in German Electoral Law
German electoral rules establish for its mix-member proportionate system that only parties with more than 5% of the popular vote or more than three directly elected MPs should be represented in the Bundestag, the lower house of parliament, in order to ensure governability. The Constitutional Court has repeatedly upheld this rule. The concern in every proportionate electoral system is that too many small parties as in the Weimar Republic would render the polity ungovernable and make stable majorities impossible.
European elections in Member State Law
European elections are a curious constitutional creature. While it is generally true that there are currently no common rules governing EU elections, the conditions for EU elections are enshrined in the Treaties (Art. 20.2 b) TFEU) and the Charter of Fundamental Rights (Art. 39 CFR). Art 14.3 TEU further clarifies that “[t]he members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.” The history of the European Parliament is relevant for this discussion. Originally and very innovatively for an ‘international organization’, the Coal and Steel Community had established a parliamentary assembly in 1957. Initially, this embryonic parliamentary assembly consisted of members of Member State parliaments who were sent to Strasbourg to discuss relevant questions. It is unsurprising, therefore, that the assigned delegates had been selected in accordance with very different electoral traditions in the Member States. It is also this history which explains why no single unitary system of elections was expected, nor created. The general treaty provision was further explained in the (relatively short) 1976 Election Act which mandates in Art. 1 that European elections are conducted on the basis of proportional representation:
In each Member state, members of the European Parliament shall be elected on the basis of proportional representation, using the list system or the single transferable vote. 2. Member States may authorise voting based on a preferential list system in accordance with the procedure they adopt. 3. Elections shall be by direct universal suffrage and shall be free and secret (Art. 1.1-3).
Member states are also entitled to draw constituency boundaries as they see fit, though according to Art. 2, they are not allowed to “generally affecting the proportional nature of the voting system.”
These rules have begun to affect the laws governing European elections in each Member State. For instance, they eliminated the possibility for the UK to continue its adoption of the first-past-the-post electoral system, which was then changed to a system of regional lists. Most recently, the Court of Justice of the EU (CJEU) has clarified that the European Parliament has no power to challenge the administration of these elections, even when it believes the Member state in question did not follow its own procedures. The Court decided:
The respective powers of the Parliament and of the national authorities when they verify the credentials of Members of the Parliament are clearly divided between the Community institutions and the national authorities. [..] It is apparent from this that, by virtue of Article 12 of the 1976 Act, the Parliament is required to take note of the declaration made by the National Electoral Office and does not have the power to depart from it on account of the alleged irregularities affecting that national measure.
While the strict interpretation of the CJEU might surprise, it is in keeping with the spirit of the Treaties. But this compromise itself is a result of several attempts to unify the electoral system for the European Union, attempts which never materialized. Indeed, it has been suggested that the lack of consensus on these issues has led European Member States to change the mandate in the Treaty of Amsterdam in a way that allowed for each Member State to maintain its own electoral system.
The First German Constitutional Court Judgment in 2011
The German Constitutional Court decision concerning a minimum threshold for the allocation of seats, which was 5 per cent of votes cast in Germany. The Court concluded in this instance that there was no possibility that the German members of the European Parliament might disrupt its constitutional function, in which case the equal weight of each vote prevailed as an important constitutional principle. The Court concluded that the argument that the: “European Parliament’s ability to function would be impaired by the abolition of the five per cent barrier clause cannot rely on a sufficient factual basis and does not adequately take account of the European Parliament’s specific working conditions and its duties.” In other words, given that the European Parliament does not have many important or relevant governmental functions, a lack of cohesion engendered by fragmentation of voting rules and systems should not really prevent it from fulfilling its limited role at present.
The Constitutional Court concluded that the specific functions of the European Parliament are not such as to require a stable majority. The Constitutional Court said:
A similar interest [to create a stable government] does not exist at the European level as mandated by the European treaties. The European Parliament does not elect a union government, which would be dependent on its continued support. Nor is the legislation of the Union depended on a consistent majority in the European Parliament which would be formed through a stable coalition of certain groups who would face an opposition. This applies especially for information and control rights of the parliament that are designed as minority rights (which is also conventional in national parliaments). Therefore there is a lack of compelling reasons to intervene in the choice and opportunity by threshold clauses, so that the objective pursued by the arrangement of proportional representation at the European level based on the idea of representative democracy (Art. 10 para 1 TEU) can be realised in full in the European Parliament.
In other words the way the EU Treaties have designed the role of the European parliament does not require a stable majority because most of its functions can also be fulfilled in the eyes of the German Constitutional court by just relying on minority rights. It should be highlighted that there was a strong dissent in this decision by Judges Di Fabio and Mellinghoff who highlight that the Court might have misinterpreted the role of European elections and the European Parliament in their decision arguing that it is for all EU Member states to ensure that there is no “splintering” of parliamentary groups in the European Parliament. The Constitutional Court alluded to the fact that the German Bundestag sets the rules for European Elections and because of its 5% threshold does not run the risk of becoming un-governable. This argument might be seen as a bit of caricature of the European Parliament but was brought up in direct response to the German Government’s argument that faction (splinter parties) could block decision-making in Europe.
The representatives of these factions are not inserted into the structures of the European Parliament. […] Connecting members of these groups splinter parties to parliamentary groups would not result in stable groups or collective action because of their political fragmentation. […] Sufficiently secure majorities could not be reached, so that it would very difficult for the European Parliament to fulfill its legislative function. A higher number of factions could jeopardize forging a general majority. In particular, if qualified majorities are required, there could be a slowdown or even blockage of parliamentary activity and thus impair the functions of the European Parliament.
Interestingly the German government, as a participant in the EU system strongly supported the notion that the European Parliament has a legislative function which is worth protecting but it failed to convince its own Constitutional court.
The 2014 Constitutional Court Decision
The German Parliament had established a 3% threshold after the 2011 judgment. The German government strongly defended this rule and argued that under the Lisbon Treaty the constitutional function of the European Parliament had changed.
The 5-3 Majority in the Constitutional Court disagreed because the EP in their eyes does not yet have a function which would require it to support a government with stable majorities:
The legislature [Bundestag] rightly assumes that, if the government and opposition raised their profiles at the European level more aggressively, this could justify a threshold clause in the German law governing European elections, if the legal and factual conditions were comparable to those at the national level, where the formation of a stable majority is needed for the election and continued support of a viable government. While such a development of the European Parliament is aspired to politically, it is still in its infancy. An actual impact on the European Parliament’s ability to function is currently not foreseeable, which means that there is no basis for the legislature’s prognosis that, without the three-percent electoral threshold, an impairment of the European Parliament’s functioning is looming.
In other words the European Parliament is not yet worth a constitutional protection of its function in the form of an electoral threshold which would keep splinter groups and extremists out.
As in the recent OMT decision, this judgement is another EU unfriendly decision. The majority does not claim that there would never be a case for a minimum threshold, it just did not find any justification in the constitutional function of the European Parliament at this point in time. On the other hand the Court gives very little deference to the European constitutional structure and basically sees the only real democratic institution in form of Member state legislators, rather than seeing the European constitutional order as distinct and autonomous.
This judgment also puts into question the olive branch that the Constitutional Court seem to extend in OMT when it requested a preliminary reference. Perhaps commentators who did not see the preliminary reference as a recognition of the function of the Court of Justice of the EU but rather an ultimatum will feel confirmed in their view.
The powerful dissent by Justice Müller of the German Constitutional Court is actually more convincing. He highlights that the court should have granted the German legislator more discretion in its design of the European election law. He also criticizes the majority for downplaying the potential impairment of the EP’s function due to splinter parties.
A bit more constitutional respect for the European constitutional order would have been warranted.
Suggested Citation: Markus W. Gehring, The German Constitutional Court’s Latest Decision on European Elections: No Protection Needed, Int’l J. Const. L. Blog, February 28, 2014, available at: http://www.iconnectblog.com/2014/02/the-german-constitutional-courts-latest-decision-on-european-elections-no-protection-needed
 See generally Richard Corbett, Francis Jacobs, and Michael Shackleton. The European Parliament, 8th ed. (London: John Harper Publishing, 2011).
 See Barnett Cocks, The European Parliament; Structure, Procedure & Practice (London: H.M. Stationery Off, 1973) and Amie Kreppel, The European Parliament and Supranational Party System: A Study in Institutional Development (Cambridge: Cambridge University Press, 2001), p. 1-2.
 Act concerning the election of the representatives of the Assembly by direct universal suffrage, OJ L 278 , 08/10/1976 P. 0005 – 0011 as amended by 2002/772/EC, Euratom: Council Decision of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom, OJ L 283 , 21/10/2002 P. 0001 – 0004.
 Joined Cases C-393/07 and C-9/08 Italian Republic and Beniamino Donnici vs. European Parliament, 30 April 2009, 2009 ECR I-03679.
 Ibid, para 57
 There are Commission recommendations which lead a British newspaper to conclude that the UK is forced to hold elections on Sundays, which was evidently not true, see EU Representation in the UK in reply to Daily Telegraph and Daily Mail articles, http://blogs.ec.europa.eu/ECintheUK/no-forced-elections-on-sundays/ (13 March 2013).
 See Richard Corbett, Francis Jacobs, and Michael Shackleton. The European Parliament, 8th ed. (London: John Harper Publishing, 2011) p. 36.
 Judgment of 9 November 2011, 2 BvC 4/10, 2 BvC 6/10, 2 BvC 8/10. Online press release: http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg11-070en.html.
 Ibid. para. 118.
 Ibid. para. 177.
 Ibid. para. 70.
 Ibid. para. 70.