Federal Constitutional Court - Press office -
Press release no. 70/2011 of 9 November 2011
Order of 9 November 2011 – 2 BvC 4/10, 2 BvC 6/10, 2 BvC 8/10 –
Five per cent barrier clause in the law governing the European elections
held unconstitutional
In its judgment pronounced today, the Second Senate of the Federal
Constitutional Court has ruled that under the present circumstances, the
five per cent barrier clause in force at the 2009 election to the
European Parliament (7th electoral term) violates the principles of
equal suffrage and of equal opportunities of the political parties. It
has therefore declared void the provision of § 2.7 of the European
Elections Act (Europawahlgesetz – EuWG), which is the basis of the
barrier clause. In contrast, the Senate has not found proportional
representation on the basis of “rigid” lists, which had been objected to
by one of the complainants, unconstitutional.
Nonetheless, the unconstitutionality of the five per cent barrier clause
does not lead to the 2009 election to the European Parliament being
declared invalid and to a new election being called.
Press Release No. 23/2011 of 29 March 2011 informs about the facts which
are at the basis of the three complaints requesting the scrutiny of an
election. It is available (in German) on the Federal Constitutional
Court’s website.
The decision has been passed with 5:3 votes. Justices Di Fabio und
Mellinghoff have submitted dissenting opinions.
In essence, the judgment is based on the following considerations:
1. As German federal law, the European Elections Act must be measured
against the standards of equal suffrage and of equal opportunities of
the political parties which are anchored in the Basic Law (Grundgesetz –
GG). In proportional representation, which also applies to the election
of the Members of the European Parliament, the principle of equal
suffrage requires that beyond the equality of the counting value of a
vote every voter’s vote must have the same influence on the composition
of the representative body to be elected. The principle of equal
opportunities of the parties requires every party to be accorded, in
principle, the same opportunities in the entire electoral procedure, and
thus equal opportunities with regard to the allocation of seats.
The five per cent barrier clause results in an unequal weighting of
votes with regard to their chance to contribute to success because the
votes which were cast for parties that failed to overcome the barrier
are unsuccessful. At the same time, the five per cent barrier clause
impairs the political parties’ claim to equal opportunities.
Provisions which differentiate with regard to equal suffrage and to
equal opportunities of the parties always require a special, factually
legitimised, “compelling” reason. They must be suitable and necessary
for pursuing their objectives. The legislature must review a provision
of electoral law that affects equal suffrage and equal opportunities
and, if necessary, amend it if the constitutional justification of the
provision is called into question by new developments.
The legislature only has narrow latitude for differentiation. The
elaboration of the law governing the European elections is subject to
strict constitutional review because there is a risk that the German
legislature drafting the electoral law might secure, by a majority of
its Members of Parliament, the election of its own parties at European
level by means of a barrier clause and by the exclusion of small parties
effected by this clause. The general and abstract assertion that the
abolition of the five per cent barrier clause would make it easier for
small parties and voters’ groups to win seats in the representative
bodies, which would make opinion-forming in these bodies more difficult,
cannot justify the encroachment on the principles of equal suffrage and
of equal opportunities. What is required instead to justify the five per
cent barrier clause is that an impairment of the representative bodies’
ability to function can be expected with some degree of probability.
2. According to these standards, it was not allowed to retain the five
per cent barrier clause. The factual and legal circumstances existing at
the 2009 European elections, which continue in existence, do not provide
sufficient reasons for justifying the serious encroachment on the
principles of equal suffrage and of equal opportunities of the political
parties that results from the barrier clause.
The legislature’s assessment 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. Admittedly, it can be expected that without a barrier
clause in Germany, and taking into account restrictions on access which
will possibly be abolished in other Member States, the number of parties
which are represented in the European Parliament merely by one or two
Members will increase; moreover, it can be expected that this will not
be a negligible quantity. Without a barrier clause in Germany, 169
instead of 162 parties would at present be represented in the European
Parliament. However, it is not apparent that this would with the
required probability impair the European Parliament’s ability to
function. The groups are the central working units of the European
Parliament; they have a considerable power of integration, and over the
years they have been able to integrate the parties which acceded
particularly in the course of the enlargements of the European Union
despite the broad spectrum of different political views. According to
this experience, it can be expected, fundamentally at any rate, that
other small parties which would be represented in the European
Parliament after the abolition of the barrier clauses can join the
existing groups.
The same applies to the groups’ ability to reach majority decisions by
agreements within a reasonable time. In parliamentary practice, the
“established” groups in the European Parliament have shown their
willingness to cooperate, and they are able to organise the necessary
voting majorities. It is not apparent that with the abolition of the
five per cent barrier clause, Members of Parliament from small parties
would have to be expected in a quantity which would make it impossible
for the existing political groups in the European Parliament to reach
decisions in a properly conducted parliamentary process. Finally, the
European Parliament’s development shows that adaptations of
parliamentary business to changed circumstances, such as for instance to
an increase in number of independent Members of Parliament, can be
expected.
It is true that the experts and the Members of the European Parliament
who were heard in the oral hearing concurred in their expectation that
the entry of more small parties into the European Parliament would make
it more difficult to achieve majorities. This alone, however, does not
show that an impairment of the European Parliament’s ability to function
will have to be expected with a sufficient degree of probability.
Apart from this, the European Parliament’s duties have been formulated
by the European treaties in such a way that there are no compelling
reasons for encroaching on equal suffrage and on equal opportunities.
According to the European treaties, no interests exist at European level
which are comparable to the situation concerning the election to the
German Bundestag. The European Parliament does not elect a Union
government which would depend on Parliament’s continuous support. Nor is
the Union’s legislation dependent on a steady majority in the European
Parliament which would be made up of a stable coalition of specific
groups and which would face an opposition. Furthermore, according to
primary legislation, the Union legislation is organised in such a way
that it does not depend on specific majority situations in the European
Parliament.
3. However, the complaint lodged against the election according to
“rigid” lists is unable to succeed. According to European Union law, the
Member States are free to decide to organise the election with bound
lists, which cannot be changed by the voter, or with open lists, which
provide the possibility of altering the order in which the candidates
appear on the election proposals. With regard to national elections, the
Federal Constitutional Court has repeatedly held that the election
according to “rigid” lists is constitutionally unobjectionable. New
arguments that might give rise to a different assessment with regard to
the European elections have not been put forward.
4. The unconstitutionality of the five per cent barrier clause results
in the declaration of nullity of the provision of § 2.7 EuWG which
contains the clause. However, the electoral error does not lead to the
2009 election to the European Parliament being declared invalid in
Germany and to a new election being called. For in the context of the
required weighing, the interest in maintenance of the status quo of the
representation of the people composed in confidence in the
constitutionality of the European Elections Act is to be accorded
priority over the enforcement of the consequences of the electoral error
found. New elections in Germany would have a disruptive impact with
incalculable consequences on the current work of the European
Parliament, in particular on the cooperation of the Members of
Parliament in the groups and committees. In contrast, the electoral
error cannot be deemed “intolerable”. It only concerns a small share of
the German Members of Parliament and does not call into question the
legitimation of the German Members of the European Parliament in its
entirety.
Dissenting opinion of Justices Di Fabio und Mellinghoff:
Justices Di Fabio and Mellinghoff do not concur with the ruling with
regard to its result and to its reasoning. They hold the view that the
Senate majority, by applying the standards of review in too stereotyped
a manner, does not convincingly weight the encroachment on equal
suffrage and on equal opportunities of political parties. They put
forward that the Senate circumscribes the latitude of the legislature
drafting the electoral to narrowly and that it accepts a possible
impairment of the European Parliament’s ability to function in spite of
the latter’s increased political responsibility.
They argue that the five per cent barrier clause is not a
differentiation which is already prohibited on the merits. Instead, it
constitutes a provision that complements proportional representation.
From the perspective of the equality of the chance of a vote to
contribute to success, proportional representation with the annex
condition of a five per cent barrier clause is far less incisive than
single-stage majority voting, which is permitted by the Basic Law as
well, and which can result in even more than 50% of votes cast in a
constituency having no impact whatsoever on the allocation of seats. The
electoral principles under Article 38 GG do not compel to elaborate a
pure electoral system but admit of modifications and mixtures. The
review of constitutionality may not pick out a single element of an
electoral system and place strict equality requirements on it.
Electoral-law issues are subject to the legislature’s political freedom
of drafting whose legislative duty imposes restraint on the Federal
Constitutional Court with a view to the general nature of the electoral
principles.
They further argue that the five per cent barrier clause is factually
justified to prevent, with regard to the German contingent, too
far-reaching a fragmentation of the political parties represented in the
European Parliament. Here, Germany together with the other Member States
as a whole bears responsibility for the European Parliament’s ability to
function. Especially the states with a large contingent of seats make
contributions, within their margin of appreciation, against a further
fragmentation of the European Parliament. Apart from barrier clauses,
the electoral systems in the European Union Member States contain
provisions with regard to the technical organisation of elections which
result in differences in the chance of votes to contribute to success
anyhow. The isolated abolition of the German five per cent barrier
clause by the Senate is therefore tantamount to proceeding along a
go-it-alone path in the European context.
The Senate ultimately restricts the ground for differentiation of the
impairment of Parliament’s ability to function to an inability of
Parliament to function, but the Federal Constitutional Court’s case-law
does not provide a basis for this assessment. A factual ground for
justifying the five per cent barrier clause already consists in reducing
a possible impairment of the functioning of the European Parliament; it
does not only exist where Parliament’s future inability to function must
be expected.
The circumstance that the European Parliament has so far, under
conditions of great heterogeneity, succeeded in bringing about
opinion-formation capable of gaining majority support cannot be an
argument speaking in favour of the prevention of additional
parliamentary fragmentation not being able to justify the barrier
clause. Every further political fragmentation will increase the effort
of time and personnel involved with bringing about a consensus, and it
will reduce major political directions which have a recognition factor
for the voters. Especially against the background of the European
Parliament having started a new phase of its development after the entry
into force of the Treaty of Lisbon, the legislature must be accorded
latitude for assessing risks to its functioning.
This press release is also available in the original german version.
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