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Three-percent electoral threshold in the law governing European elections unconstitutional under the current legal and factual circumstances

Press Release No. 14/2014 of 26 February 2014

Judgment of 26 February 2014
2 BvE 2/13, 2 BvR 2238/13, 2 BvR 2221/13, 2 BvE 12/13, 2 BvE 10/13, 2 BvE 9/13, 2 BvE 8/13, 2 BvE 7/13, 2 BvE 6/13, 2 BvE 5/13, 2 BvR 2220/13

The three-percent electoral threshold in the law governing European elections is unconstitutional. This was decided in a judgment which the Second Senate of the Federal Constitutional Court delivered today. Under the current legal and factual circumstances, the serious interference with the principles of electoral equality and equal opportunities which the three-percent threshold entails cannot be justified. A different constitutional assessment may be warranted if the conditions change significantly. The legislature may duly consider future developments if, due to sufficiently reliable factual indications, they can already be predicted reliably at that time. The decision was taken with 5:3 votes; Justice Müller delivered a dissenting opinion.

Facts of the Case and Course of the Proceedings:

The Organstreit proceedings [proceedings relating to disputes between constitutional organs] and the constitutional complaints challenge § 2 sec. 7 of the European Elections Act (Europawahlgesetz - EuWG), which provides for a three-percent electoral threshold for elections to the European Parliament. This provision was inserted by the Fifth Act amending the European Elections Act of 7 October 2013 (Federal Law Gazette, Bundesgesetzblatt - BGBl. I p. 3749). In European law, the so-called Direct Elections Act requires that the members of the European Parliament be elected in each Member State under the system of proportional representation. Subject to the other provisions of this Act, the electoral procedure is governed in each Member State by its national provisions. With judgment of 9 November 2011 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts - BVerfGE 129, 300), the Federal Constitutional Court declared the five-percent electoral threshold, which applied to the 2009 European elections, incompatible with Art. 3 sec. 1 and Art. 21 sec. 1 of the Basic Law (Grundgesetz - GG) and therefore void.

Essential Considerations of the Senate:

The applications in the Organstreit proceedings, to the extent they are admissible, and the constitutional complaints are successful. Under the current legal and factual circumstances, the three-percent electoral threshold in the law governing European elections violates the principles of electoral equality (Art. 3 sec. 1 GG) and equal opportunities of political parties (Art. 21 sec. 1 GG).

1. There is no need to decide at this point under which conditions the legislature may, after a norm has been declared void, adopt a norm with identical content, because already the lowered minimum threshold is not a repetition of a norm with identical content. There is also no violation of the principle of faithful co-operation between organs (Organtreue); the legislature did not consciously disregard the decision of the Federal Constitutional Court on the five-percent electoral threshold of 9 November 2011, but considered and discussed this very judgment.

2. The Direct Elections Act provides a legal framework for the adoption of national electoral law, which is, however, subject to the constitutional commitments of the respective Member State. Neither the wording nor the interpretation of the Direct Elections Act allows the conclusion that the possibility to impose a threshold of up to 5% of the votes cast under the Direct Elections Act implies, on its own, that this would also be permissible under the constitutional law of the respective Member States.

3. The standards underlying the judgment of 9 November 2011 are also applicable in the present proceedings.

a) The principle of electoral equality, which follows for the election of the German Members of the European Parliament from Art. 3 sec. 1 GG, safeguards the equality of citizens which the principle of democracy presupposes, and constitutes one of the essential foundations of the state order. From this principle, it follows that each electorate's vote must generally count the same and have the same legal chance of success. In proportional representation, this principle moreover requires that each voter's voice must also have the same influence on the composition of the representation that is to be elected, because the objective of the system of proportional representation is that all parties are represented in the organ to be elected in a ratio that as much as possible approximates the number of votes.

The principle of equal opportunities of political parties that follows from Art. 21 sec. 1 GG requires that, in general, each party is given the same opportunities throughout the electoral process and thus equal chances in the distribution of seats.

b) There is a close relationship between electoral equality and equal opportunities of the political parties. The justification of limitations under constitutional law follows the same standards. Neither principle is subject to an absolute prohibition of differentiation; however, it follows from their formal character that the legislature is only left with little leeway. Differentiations in electoral law can only be justified by constitutionally legitimised reasons which are weighty enough to balance the principle of electoral equality. This includes in particular safeguarding the functionality of the parliament to be elected.

c) The current conditions are decisive. While the legislature is not prevented from also considering precisely foreseeable future developments, they can only be accorded significant importance if, due to sufficiently reliable factual evidence, the future development can already at present be reliably predicted.

In the present proceedings at there is no need to decide to what extent one should follow the approach of the German Bundestag, that threshold clauses are already justified in connection with preventing threats to parliament's ability to function. This can apply at most for parliaments for which a weakening of their ability to function is synonymous with a corresponding weakening of their ability to respond to this with a correction of electoral law. With regard to the European Parliament, corrections can be made by the national legislatures. A threshold that is determined purely pre-emptively would disproportionately shift forward the severe interference with electoral equality.

d) The design of electoral law is subject to strict constitutional review. This follows from the general consideration that, in a way, the parliamentary majority acts in its own interest with regulations that affect the conditions of political competition, and that the risk that the respective parliamentary majority is guided by the aim to preserve its power, instead of considerations of the common good, is especially high in electoral law. For this reason, the constitutional review cannot be scaled back by granting leeway for forecasts that could largely be filled at will.

4. According to these standards, the three-percent electoral threshold (§ 2 sec. 7 EuWG) is incompatible with Art. 3 sec. 1 and Art. 21 sec. 1 GG. In the judgment of 9 November 2011, the Senate found that the factual and legal circumstances that existed during the 2009 European elections, and which continued to exist, did not provide sufficient reasons to justify the serious interference with the principles of electoral equality and equal opportunities of political parties which the five-percent threshold entails. Since then, no significant change in the factual and legal circumstances has occurred. The three-percent electoral threshold cannot be justified in terms of expected political and institutional developments and related changes in the operating conditions of the European Parliament during the next election period.

a) The legislature 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.

b) As shown in its resolution of 22 November 2012 and in agreement with the current Commission, the European Parliament aims to reinforce the political legitimacy of both institutions, the elections of which are to be connected more directly linked to the choice of the voters. To further this aim, the European political parties are to nominate candidates for the Presidency of the Commission. However, no change of the basics of European law is sought. It also remains unclear how the political objective of strengthening the democratic decision-making process at the European level is to be implemented within the framework of existing Union law with relevance to the question to be decided here. The issues connected with this can, however, remain undecided.

c) Indeed, it is already not precisely foreseeable with regard to the facts that without a threshold clause in the German law on European elections, the political development that has been triggered could lead to an impairment of the functioning of the European Parliament.

aa) Currently one cannot even assess to what extent and with what effect it will be possible to get the representatives of the Member States in the European Council and the Council to agree with the position expressed in the resolution of 22 November 2012. The scope of the changes in the political process within the European Parliament in the coming election period that it might entail also remains speculative. The argument that the three-percent electoral threshold is justified by the consideration that the proposed "push for democratisation" should not be called into question by Germany accepting a fragmentation of the European Parliament, does not only fail to meet the constitutional requirements for the justification of interferences with electoral equality and equal opportunities for political parties. This argument would also fail to do justice to the openness of the political process, which is essential for parliamentary debate, particularly with regard to possible restructurings, and to which small political parties can make an important contribution. bb) Neither can it be proved that the formation of majorities in the European Parliament is structurally compromised as a result of the aspired politicisation.

(1) It cannot be excluded that the cooperation between the two major parliamentary groups in the European Parliament will in the future no longer, or to a significantly lesser extent, take place. Whether and to what extent this will be the case is, however, uncertain; in any case, developments that would not impair the functioning of the European Parliament are also conceivable. There may, for instance, be reasons to believe that the two major parliamentary groups that regularly hold the absolute majority of seats will still be interested in, if not reliant on, cooperation in a number of cases.

(2) In addition to this, one also cannot simply assume that the traditional practice of flexible forming of majorities in Parliament would be significantly complicated by the election of new parliamentarians from smaller parties. It is also possible that clearer political differences between the individual parliamentary groups will increase their internal cohesion. In addition, a changed perception of the European Parliament, resulting from raising the party-specific profiles more strongly, might induce voters more than previously to vote strategically and thus counteract an increase in the number of parties represented in the European Parliament.

(3) In view of such uncertainties, the number of possibly 80 future parliamentarians unwilling to cooperate mentioned in the oral hearing cannot be predicted with the necessary probability. In any case, the remarks in question did not concern the expected number of non-attached parliamentarians from smaller parties with one or two parliamentarians, but parliamentarians of certain parties that are critical of the Union, and which are not expected to fail because of a threshold clause.

(4) Finally, in view of the integrating power of parliamentary groups, it is not apparent that in the upcoming election period, newly elected parliamentarians from smaller parties could, from the outset, not be included in one of the established parliamentary groups, or a newly created parliamentary group. It will be, however, have to be observed what effect a possible election of parliamentarians from other parties that compete in the German political landscape might have. Sound assessments are currently not possible in this respect either. If there are signs of specific undesirable developments, the legislature can take this into account.

d) It is true that the three-percent electoral threshold interferes less intensely with electoral equality and equal opportunities for political parties than the previous five-percent electoral threshold. It does, however, not follow that the interference with electoral equality which the three-percent electoral threshold entails would be negligible and require no justification. A seat in the European Parliament can already be won with about one percent of the votes cast, which means that the threshold clause has practical effects. Since already at present, a threshold clause is not necessary under the German law on European elections, which means that, from the outset, there is no justification, questions regarding the appropriateness of the three-percent threshold are irrelevant.

Dissenting Opinion of Justice Müller:

It is my conviction that the Senate places too high demands on establishing an impairment of the European Parliament's ability to function, and thus insufficiently addresses the legislature's mandate to design electoral law. The assessment of the corridor between the purely theoretical possibility and the certain occurrence of an impairment of the ability to function is reserved to the legislature. It is not for the Federal Constitutional Court to replace the reasonable decision of the legislature with its own reasonable decision. Ultimately, the Senate's decision leads to accepting the risk of an impairment of the European Parliament's functioning for the duration of at least one election period. I cannot perceive this as a constitutional requirement.

The Senate's decision leads to the inadmissibility of any threshold clause in the elections of the European Parliament. The constitutional assessment of § 2 sec. 7 EuWG thus has to start with the question whether one can assume that a Union-wide renouncement of threshold clauses would lead to an impairment of the European Parliament's ability to function. The legislature's prognosis that a further fragmentation of the European Parliament could frustrate the formation of necessary majorities is not objectionable in this context. Its plausibility does not fall short of the plausibility of comparable forecasts which refer to national parliaments. The extent to which the integrating power of the existing parliamentary groups could counteract a further fragmentation of parliament is just as unpredictable as the formation of new parliamentary groups. Insofar as a collaboration of the major parliamentary groups is referred to, this argument is already precluded by the fact that the continuation of their absolute majority is not guaranteed. The legislature was thus allowed to not consider these aspects in its prediction-based decision.

The impairment of the European Parliament's ability to function is sufficiently important to justify an interference with the principles of electoral equality and equal opportunities of political parties. The European Parliament is a parliament sui generis. The differences in tasks and functions to the German Bundestag (still) vary significantly, but they do not justify a fundamentally different assessment of the importance of ensuring its ability to function.

I have no serious doubts that § 2 sec. 7 EuWG meets the requirements of the principles of suitability and necessity. Considering that, with the exception of Spain, it is necessary in all Member States to reach a voting share of at least 3% for the allocation of a mandate in the elections to the European Parliament, it is not objectionable that the legislature considered a clause setting a threshold at this level suitable for ensuring the European Parliament's ability to function. The option to correct the law on European elections by the national legislature, which could take effect only for the subsequent term, cannot mitigate the necessity of the interference either. Instead, the legislature would be required to amend § 2 sec. 7 EuWG, should its prognosis subsequently prove to be incorrect.

This press release is also available in the original [Link auf: german version.]