The composition of the European Parliament changed significantly with the last European elections. Despite the shift in the political balance of the House, four political groups of the European Parliament agreed to apply the so-called “cordon sanitaire”, a discriminative exclusion technique against the Patriots for Europe group, the third largest political formation in the House. The question comes into mind, is the application of the cordon sanitaire and thus the deprivation of certain political groups from leadership positions in the EP in line with the rule of law? This post looks at the applicable norms of the Rules of Procedure of the EP, at primary law, and also at relevant soft law instruments of international law to answer that question.

Preliminary: Is the (re-)application of the cordon sanitaire (i.e. illegal exclusion) contra legem?

In July 2024, the composition of the European Parliament changed significantly with right-wing MEPs gaining more seats allowing a new parliamentary group to be created. This happened in such a short time which is unprecedented in the institution’s history, signaling a demand for change in Europe. The new political group—christened the Patriots for Europe (and soon followed by the creation of the Europe of Sovereign Nations group)—emerged, while a previous one, Identity for Democracy disappeared. Plenary and committee votes are affected by this apparent political shift as well, tangibly seen in the adoption of the recent Venezuela resolution.

The right-wing groups voted for a strong text condemning the events in Venezuela and supporting the opposition and their position regarding the presidential election, while the left-wing groups urged caution and called for patience, arguing for the need to assess the reports of election observations. In the end, the proposals of the right-wing groups (in this context we count the European People’s Party too) got the majority in the plenary chamber and the text was adopted by 309 votes for, 201 votes against, and 12 abstentions. This is a significant signal of the shift, demonstrating that if the right-wing groups coordinate their voting behavior, they can adopt resolutions and amend their content to include their positions as well, leading to more balanced parliamentary decision-making. Nowadays it is referred as the Venezuela coalition.

Despite the will of the voters and the decisive change in the power dynamics, some old habits die hard. The EPP, S&D, Renew, and Green groups applied the so-called “cordon sanitaire” (or as the Germans put it, a “firewall”) against the Patriots for Europe group during the election for office positions in the Parliament (such as the presidency of the European Parliament, of the specific committees, and the delegations). This had previously happened during previous terms against the ID and ECR groups. Some argue that resurrecting this practice appears to be a coordinated effort to establish a parliamentary custom, in the form of isolating a political minority through “the principle of cordon sanitaire”, referencing it as a legal norm, a “principle” emerging from frequent practice. (As all constitutionalists are aware customs as well as conventions are considered unwritten sources of parliamentary law based on broad consensus.)

One of the groups discriminated against by this practice (the newly formed Patriots for Europe) decided to file an action to the European Court of Justice to have legal recourse. A decision of the Court might take some time; however, the filing of the lawsuit in itself is interesting as well.

Did the European Parliament really violate its own norms and the principle of rule of law and democracy while selecting its presidencies and quaestors? It is up to the Court to decide, but there are certain norms within EU law that come into mind when examining this topic.

What is at stake through the application of the “cordon sanitaire”?

If we assess the norms applicable to the election of the members of the presidency of the House, the bureau of the committees, and the election of quaestors, the “cordon sanitaire” clearly violates the European Parliament’s commitment to proportional representation, as assured by the d’Hondt method, making sure that leadership roles are fairly distributed according to election results. The explanation on the EP’s own website is the following: “This proportional distribution of leadership positions within Parliament prevents the dominance of political life by just one or two large political groups, ensuring that smaller political groups also have a say in setting the political agenda.” The method is needed to accurately translate votes proportionally into seats or positions. It is a mathematical formula that helps to facilitate majority formation, thus securing parliamentary operability. When talking about the representation of the voters in a parliamentary institution, the principle of the equality of votes must be upheld, so each vote should have the same chance of influencing the outcome of the debates and decisions.

There are specific norms that can be referenced in this case in the Rules of Procedure of the European Parliament. Rule 15 (2) of the Rules of Procedures of the EP states that “when electing the President, Vice-Presidents and Quaestors, account should be taken of the need to ensure an overall fair representation of political views, as well as gender and geographical balance.” In this case, the overall fair representation of political views might be breached.

Rule 219 (1) of the Rules of Procedure of the European Parliament stipulates that the “diversity of Parliament must be reflected in the composition of the Bureau of each committee” and that gender balance shall be ensured throughout the bureaus. The goal of this norm is to avoid a situation where certain political groups only respect the applicable rules if they can use them to pursue their own institutional (or personal) ambitions and political agenda. It is there to prevent cherry-picking, which is not in line with core democratic values, especially the principle of rule of law and the principle of democracy, guaranteed by—among other norms—Article 2 TEU. Such decisions can lead to further polarization of the political landscape, complicating efforts to engage in constructive dialogue on issues truly important for European citizens. Furthermore, Rule 219 (3) also states that the rules applicable to the election of the president, vice-presidents, and quaestors of the Parliament are applicable to committee bureaus as well.

Apart from Article 2 TEU, further primary law norms may be relevant. Article 39 of the Charter of Fundamental Rights protects active and passive voting rights and protects against violations of it through restrictions of the principle of plurality. Furthermore, Article 21 (1) prohibits discrimination based on political or other opinions.

If we look at the common constitutional heritage of the Member States, we can see a couple of examples of the respect for the political strength of the institution, when electing members of the officials of the parliament and its committees. The German Bundestag’s Geschäftsordnung (Standing Orders) in its Article 2 (1) stipulates that every group has to be represented in the bureau of the house and Article 12 states that the political strength of the groups has to be respected when electing the bureaus of the committees. The French National Assembly’s Rules of Procedure’s Article 10 (2) declares that the composition of the presidency has to reflect the political composition of the house, which is reinforced by Article 28 and Article 39 (2) for the committees of the house. The Rules of Procedure of the Italian Chamber of Deputies states in Article 5 (3) that all groups have to have representation in the presidency of the lower house. It is clear that norms protecting the rights of the political minority in participating in the official positions of the house and its committees are well established in the constitutional systems of the Member States.

Furthermore, we can see some examples in international soft law as well. The CDLAD(2010)025 report of the Venice Commission states (in line with the (1601(2008)) PACE resolution) that national parliaments of the Council of Europe Member States shall acknowledge the following rights in relation to the opposition or parliamentary minority. The PACE resolution safeguards the rights of the opposition to adequately participate in the work of the parliament in question and in its committees.

“(…) 2.1 freedom of expression and freedom of opinion; members of the opposition shall enjoy freedom of speech; they must be able to express their ideas freely; (…)

2.1.1 opposition members have the right to participate in the management of parliamentary business; they shall have access to posts of vice-president and other positions of responsibility in parliament; the composition of governing bodies of parliament shall respect the principle of proportional representation and reflect the political composition of the parliament or chamber; (…)

2.3 the opposition shall participate in parliamentary committees’ work:

2.3.1 the presidency of standing/permanent committees shall be allocated among parliamentary groups on the basis of proportional representation; at least one permanent committee shall be chaired by a member of the opposition; the chairmanship of committees responsible for monitoring government action, such as the committee on budget and finance, the committee on audit, or the committee supervising security and intelligence services, should be granted to a member of the opposition; (…)”

Discrimination with clear-cut controversies

The illegal exclusion can lead to breaches of not only the rights of MEPs but fundamental rights of millions of European voters—and can endanger European democracy and the principle of rule of law itself. It overrides the previously existing parliamentary practice and the constitutional traditions common to the Member States, which also generally characterize the operation of national parliaments. For example, the Hungarian National Assembly applies the d’Hondt method, ensuring fair and proportionate representation in its committees and other positions for all the parties present in the National Assembly, opposition included. If the past is any indication regarding the reactions of the EU to Hungarian regulations “swimming against the current,” one may easily venture a guess as to what the EP’s reaction would be if Hungary decided to apply different rules.

There are numerous norms beyond the Rules of Procedure of the European Parliament being breached, mainly EU primary law and international soft law. The only question is whether the European Court of Justice would support rejecting this “emerging practice” of discrimination or stay silent on the issue. If it approves or accepts it, it will mean a recognition thereof as a principle shaping the composition of the EP as a key political institution. One thing is for sure: this debate is far from over.

Dr. Boglárka Bólya graduated summa cum laude from the Faculty of Law and Political Sciences at Pázmány Péter Catholic University. Later she studied European Studies at the University of Nice and obtained a Master’s degree in European Law in Brussels, ULB. She started her career as a paralegal, then she began working at the State Secretariat for European Union Affairs of the Ministry of Foreign Affairs. From 2003 to 2019, she worked in the European Parliament, first as a political adviser in the European People’s Party, then as a legal adviser to the EPP, and finally as Head of Unit for Legal and Home Affairs. She continued her career as legal adviser to the President of the European Parliament, Antonio Tajani, from 2017 to 2019. During the Hungarian EU presidency in 2011, she chaired the Council working group on the drafting of the Treaty of Accession of Croatia to the European Union. From 2019, she was Deputy State Secretary for European Union Relations at the Ministry of Justice and then Chief Political Adviser to the State Secretary for European Union Affairs. Currently, she is working in the Hungarian EU Presidency as a Ministerial Commissioner. She speaks English, Spanish, French, German and understands Italian. She is married and has 3 children.

Árpád Lapu is an adviser at the Minister’s Cabinet of the Ministry of European Affairs of Hungary and an assistant research fellow at the Károli Gáspár University of the Reformed Church in Hungary. He was a policy adviser on constitutional issues at the European Parliament between 2019-2024. Between 2017 and 2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged, and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an LLM in international law at the Catholic University of Louvain (UCLouvain). His field of research is neutrality and non-participation in armed conflicts in international law and constitutional norms regarding permanent neutrality. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals, and policies of the EU, and conducted research in the field of social sciences.