Protecting the Fairness of European Parliament Elections via Preliminary Ruling

Supreme or constitutional courts regularly step in to protect the democratic process by deciding election disputes. It is remarkable that the Court of Justice of the European Union (CJEU) has so far barely been engaged concerning the European Parliament (EP) elections. Using Hungary as an example, I will argue in the following that the CJEU is institutionally well-positioned to help protect the integrity of the 2024 EP elections via preliminary ruling procedures.

Hungarian democracy has been in decline, according to the EP, the Commission and various democracy indices. The problems include the lack of a level playing field, targeted action by authorities against opposition parties, overlaps between the activities of the government and the governing party, state funding of campaigning and party financing in general, lack of media pluralism, and the different means of voting for citizens living abroad (postal vote for some and not for others). I argue that the CJEU could and should be engaged to protect the fairness of the EP elections in Hungary.

EU Law on Electing the European Parliament

Article 2 TEU provides for the principle of democracy as a foundation of the EU. Article 10 details this provision, adding the foundational value of representative democracy and direct representation in the EP. According to Armin von Bogdandy and Luke Dimitrios Spieker, “Article 10(3) TEU can translate the value of democracy into justiciable obligations”. Article 14 TEU, as well as Article 1(3) of the 1976 Electoral Act, require direct universal suffrage and a free and secret ballot for EP elections. Article 20 TFEU establishes EU citizenship and prescribes that the citizens of the EU have the right to vote and to stand as candidates in elections to the EP. Article 39(2) of the Charter establishes a fundamental right to free elections.

The CJEU has so far been given only limited opportunity to rule on the organisation of EP elections by Member States. In Delvigne, the Court ruled that Member States are implementing EU law when organising EP elections, and thus the Charter applies. In One of Us and Junqueras, the Court established that Article 10(1) TEU gives concrete expression to one of the Article 2 TEU values, namely representative democracy. In Eman and Sevinger, the Court set the conditions of equal treatment in the right to vote for the EP elections.

It can well be argued that Art 2 and Art 10 TEU are justiciable. In fact, the European Commission is of this opinion as it launched the infringement procedure in the Lex Tusk case primarily based on Article 2 and 10 TEU taken together. The standalone applicability of Article 2 TEU is not yet decided, but this might not be necessary because the problem could be construed in a similar way as Article 19 TEU was used in conjunction with Article 2 TEU by the CJEU in judicial independence cases. The underlying idea is that, just as with courts, the EP elections cannot be fair if one or more national electoral systems comprising it are fundamentally flawed [p. 83]. There is a lively debate [p. 69] about the topic, including the interpretation of Article 10 TEU [pp. 576, 580], some even understand it to mean that Hungary is not entitled to representation in the European Council and the Council, while others disagree.

Submitting a Preliminary Reference

The above legal provisions and the CJEU’s emerging rule of law case-law offer solid foundations for adressing the most important issues at the 2024 EP elections before the Court in order to maintain the integrity of the vote in Hungary. My claim is that a national court (or maybe an election commission) dealing with an electoral dispute shall – in a concrete case – submit a request to the CJEU for a preliminary ruling. After all, under Donnici and Junqueras, it is up to the courts [p. 75] – national courts or, after a preliminary reference, the CJEU – to decide on the lawfulness of EP elections.

Hungarian election disputes are generally handled by election commissions, and a judicial remedy is available. There have been no cases where a Hungarian court has referred an election question to the CJEU, and Hungarian law does not provide explicitly for a suitable procedure for suspension and referral either. This should, however, not be a matter of concern, because under settled CJEU case-law, the right of national courts to refer a preliminary question derives directly from Article 267 TFEU. Election disputes are to be handled expeditiously, and usually, this is the basic counter-argument against any suspension of the procedure. But the Kúria (the Hungarian supreme court having almost exclusive jurisdiction to exercise judicial review in EP election disputes) recognized [para. 23] that election cases might be suspended to refer a constitutional question to the Constitutional Court, despite the lack of a corresponding procedure in the law, if the applicant has no other realistic access to the Constitutional Court, which was a departure from earlier case-law [pp. 28, 65].

Moreover, it might not only be a possibility but an obligation for the Kúria to engage the CJEU under Article 267 TFEU. As a court of last instance, the Kúria is obliged to submit a preliminary reference unless very specific conditions are met: the question is not relevant to the case, EU law is unequivocal, or the CJEU already decided an essentially similar case. As seen above, none of the latter two conditions are met because of the uncharted nature of the territory. Besides the high relevance of the topic, statistics also tell that the Kúria would not run a high risk of its preliminary reference being rejected, as the CJEU accepts almost all questions from courts of last instances. The lack of reference for a preliminary ruling by a court of last instance, on the other hand, might result in several repercussions: infringement proceedings by the Commission, finding of a violation of fair trial rights by the European Court of Human Rights, and a liability for possible damages.

It would require further investigation whether a Hungarian election commission would satisfy the “court or tribunal” criteria under Article 267 TFEU. The question is relevant because the independence of the Kúria is under threat, and judges in general are discouraged from using the preliminary reference procedure. Therefore, all possible options require careful assessment to reach the CJEU. It is up to the CJEU to decide whether a body qualifies as a “court or tribunal”, and the CJEU uses several criteria: whether the body is (i) established by law, (ii) permanent, (iii) entrusted with a compulsory jurisdiction, (iv) applies rules of law, and (v) independent; and (vi) whether the procedure is inter partes, (vii) the existence of a dispute, and (viii) the judicial nature of the decision. The CJEU considers all factors as a whole and might accept the reference even in the absence of one or more individual criteria. While many of the criteria are most probably met by Hungarian election commissions, two issues remain: due to their composition of elected and delegated members by political parties, their independence can be questioned, and proceedings before the election commissions are not inter partes. As for the independence criterion, the CJEU has an extensive case-law on all types of bodies under which a detailed review can be done as to the nature of Hungarian election commissions. The CJEU also accepted references from procedures which were not inter partes.

Possible Questions for Referral

The election of the EP is running on short deadlines, for which even the rarely granted expedited procedure of the CJEU is not fast enough. Such an expedited preliminary ruling procedure lasted, on average, 7.4 months in 2022, which is way too long for an election dispute. Sure, some election-related questions might only be raised during an election period, but others might be raised afterwards as well. Persuading a judge to submit and the Court to rule in favour might be easier outside of the election periods with more time available and less attention focused on the dispute. In other words, it should not be a problem if a question does not bear immediate results, rather, it focuses on establishing precedent in a somewhat similar fashion to Eman and Sevinger.

Possible topics for a preliminary referenc