Changing Tides in European Election Law

On 15 June, the Bundestag approved a minimum percentage threshold for elections to the European Parliament (EP). Shortly before the summer break, the Bundesrat (Federal Council) also agreed to the clause. German lawmakers already failed twice in this endeavour before the Federal Constitutional Court (Bundesverfassungsgericht, short BVerfG). This time, the German legislator can refer to a binding EU legal act backing its reform efforts. This means the electoral threshold must now be treated (also by the constitutional court) as determined by EU law – with all consequences. However, even a 2% hurdle is not 100% safe from the BVerfG.

European turn with regard to EP election thresholds

So far, the BVerfG has declared a 5% (2011) and a 3% (2014) hurdle for European elections unconstitutional. It argued that the unequal treatment under Article 3 (1) and Article 21 (1) of the Basic Law (Grundgesetz) could not be justified by referring to the improved parliamentary function of the EP, given the limited parliamentary nature of the EP compared to the Bundestag (which is currently elected with a 5% threshold).

A new hurdle for European elections is part of the reform of the Direct Elections Act (DEA), which the Council of the European Union adopted with the consent of the EP in 2018. The reform obliges introducing a threshold that “shall not be lower than 2 per cent, and shall not exceed 5 per cent” in member states where elections are held according to lists and with more than 35 seats in Parliament allocated to them – including Germany. Incidentally, more than half of the member states already have a threshold clause. By giving its blanket approval to the DEA reform, the German Federal legislator has now helped to create Union law, which, due its primacy over national law overrides even German constitutional law to the extent that the control of their constitutionality by the BVerfG will in principle be inhibited. In the future, the lynchpin of the constitutional admissibility of the electoral threshold will no longer be primarily Article 3 (1) of the Basic Law (equal vote) and Article 21 (1) of the Basic Law (equal opportunities of political parties), but Article 23 (1) of the Basic Law (in conjunction with Article 79 (3)): the participation of the Federal Republic in European integration.

How high can the threshold be?

It is almost certain that a threshold will be introduced (provided that Cyprus and Spain also agree to the DEA reform soon). However, the German legislator has not yet decided on the exact percentage of the threshold it must now write into its European Election Act (Europawahlgesetz: EuWG) for the EP election in 2029.

At the same time, the reformed DEA is not neutral towards the threshold level. It is mandatory to introduce a threshold of “not lower than 2 %” (and not exceeding 5% – which should not be relevant in German electoral law). Setting a higher hurdle than 2% (and not more than 5%) is within the member states scope of implementation. However, this does not affect the transposition obligation to introduce a threshold of (at least) 2%. Unlike in the scope of binding requirements of EU law, the primacy of EU law does not supersede the examination of constitutional conformity within the member states’ scope of transposition (see BVerfGE 152, 152 – Right-to-be-Forgotten I; so also ECJ, C-399/11 – Melloni). Accordingly, a threshold > 2% would be within the scope of implementation, but could again be subject to a review against Article 3 (1) and Article 21 (1) of the Basic Law in accordance with the case law of the BVerfG. Such a threshold would thus continue to stand on a brittle foundation.

Is 2% already too much?

As is established in German constitutional case law, the primacy of Union law is not unlimited: it may not penetrate the core of German constitutional identity. If the 2 % were to fail the ‘identity control’, even the constitution-amending majority in the Bundestag and Bundesrat could not save the threshold clause, as it would not get past Article 79 (3) of the Basic Law. This article prohibits amendment to the core principles of the German constitution, no matter the majorities which attempt such a change. Whether a 2% hurdle violates the constitutional identity of the Basic law in the form of the principle of democracy (Article 20) shall only be briefly touched upon: the core of the principle of democracy is not affected by a 2% hurdle. The threshold does not endanger the equal influence of voters on the composition of the EP per se. Electoral equality is not abolished nor impaired to an extent that would undermine the right to equal participation in elections, but only restricted to a limited extent. In fact, there is already a significant mathematical 0.5 % threshold in Germany, simply because of the ratio of seats to the number of votes cast.

Furthermore, it is fundamentally questionable whether the German constitutional identity should be held against the assessment of the directly elected EP. The EP itself refers to the threshold as a means of protecting proper parliamentary functioning (cf. EP resolution, 11.11.2015, recital R) and also justifies its introduction with the promotion of “more equal electoral conditions” in the member states (EP recommendation, 2.7.2018, p. 7/9). With the activation of Article 223 (1) TFEU by the DEA reform, the EP, together with the Council, is itself concerned with regulating electoral law on the basis of which it is elected. Thus, the EP itself is also tasked with ensuring its own functioning.

In any case, before considering the violation of the constitutional identity, the BVerfG would first have to refer the matter to the ECJ by way of a preliminary ruling procedure – as has been established in case law (BVerfGE 126, 286 – Honeywell; BVerfGE 134, 366 – OMT preliminary ruling).

The electoral Right-to-be-Forgotten-III?

So far, so simple. From the perspective of both EU and constitutional law, the 2 % seem not to be in danger. However, in its Right-to-be-Forgotten-II decision, the first senate of the BVerfG recently found a way to continue asserting influence in areas fully determined by Union law, even beyond the identity check. Instead of reviewing measures on the basis of the Basic Law, the BVerfG now refers to the fundamental rights of the Union as the relevant and – importantly, equivalent – standard of review. In principle, this would also work in electoral law. Instead of examining the threshold against Article 3 (1) of the Basic Law, the BVerfG would have to look for an equivalent protection of electoral equality in EU primary law. The review of the threshold regulated in the German EuWG against EU rights would be a remarkable extension of the Right-to-be-Forgotten-II jurisprudence of the BVerfG: in contrast to the original jurisprudence, the BVerfG would not carry out a review of decisions by the specialized courts. It would instead review the cassation of an implementation act due to a possible violation of EU rights. The first question that arises is the following: Would the court find any electoral equality guaranteed under Union law?*

It is important to note that the BVerfG would not look for a 1:1 congruent protection of electoral equality under the Basic Law and Union law, but rather for a functional equivalent of Art. 3 (1) and Art. 21 (1) of the Grundgesetz. Otherwise, it would quickly draw blanks. In view of the degressive proportionality of the distribution of seats provided for in primary law (Art. 14 para. 2 TEU), there can hardly be any Union-wide, strictly formal electoral equality. However, electoral equality under EU law, which the BVerfG could apply, must only correspond functionally to electoral equality under the Basic Law. Functional equality means that the special features of the European Union can (and must) be taken into account. In a Union structured as a constitutional union, the fundamental rights under Union law do not always correspond exactly to those of all the different national constitutions.

So, is there a functional equivalent? At the Union level, electoral equality would in principle ensure the equal weight of the individual votes. Yet, it is already limited in its definition at the level of primary law by the federal concerns of the Union (see Art. 14 para. 2 TEU). The sui generis character of the EU has a particular impact on electoral equality under Union law, since the electoral law follows the design of the Union’s political system. The fact that the democratic system of the EU is structured according to different standards than the democratic system under the Basic Law has been worked out by the BVerfG in its Lisbon decision. The function of electoral equality under the Basic Law and under Union law is nevertheless the same: it serves to safeguard the democratic character of the election.

At the same time, it is not evident where a specific electoral equality, against which the threshold would have to be measured, is enshrined in EU primary law. According to its wording, Article 39 (2) of the Charta of Fundamental Rights of the European Union (CFR) does not protect electoral equality. Its scope would have to be extended by means of teleological interpretation or recourse would have to be taken to the general equality before the law clause in Article 20 CFR. The constitutional traditions common to the Member States could also entail electoral equality at Union level. Last but not least, Article 3 of Protocol No. 1 to the European Convention on Human Rights, based on which the ECtHR has already reviewed electoral thresholds (5% hurdle: ECtHR Partija “Jaunie Demokrati” and Partija “musu Zeme”/Latvia; 10% hurdle: ECtHR Yumak and Sadak/Turkey), must also be taken into account. Finally, the question arises whether Article 9 TEU possibly guarantees electoral equality under EU law: the principle of democratic equality of EU citizens (for this idea, please refer to the dissertation by Sophie Jendro, forthcoming). If, however, the BVerfG were to directly refer to Article 9 TEU as a functional equivalent, this would represent a further extension of its Right-to-be-Forgotten-II jurisprudence: not only would the BVerfG apply the fundamental rights of the Union, but also the fundamental values/principles guaranteed under primary law.

Here, too, the BVerfG would not be able to interpret Union law on its own but would first have to refer the matter to the ECJ and ask for a definition of equality of electoral rights under Union law. If the BVerfG were then of the opinion that equality of electoral rights under Union law falls short of the protection required under the Basic Law, it would ultimately resort to its constitutional identity test (whose conditions, however, are probably not fulfilled here, see above).

European standards for an increasingly European election

With the increasing harmonization of EP electoral law, the special features of the democratic system of the Union must also increasingly be taken into account by the member states. This also applies to the domestic constitutional courts and constitutional law scholarship. Indeed, within the framework of the responsibility for integration under Article 23 of the Basic Law as well as the jurisprudence of the BVerfG, there is room for an assessment of the threshold that is open to the characteristics of the political system of the European Union. This even holds true for the next chapter of this saga: while the German legislator was busy with the approval of the direct election act reform of 2018, the EP has already published a proposal for the enactment of a regulation on the election of the European Parliament, which increases the binding minimum level of the threshold once again, now to 3.5 % – higher than the 3 % hurdle overturned by the BVerfG in 2014.

*The authors owe essential insights into the protection of electoral equality at the Union level to Sophie Jendro’s dissertation, which was defended at the University of Leipzig in June 2023. This blog post was originally published in German language on 14 July 2023 under the title “Vorzeichenwechsel im Europawahlrecht”.