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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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