Some say that 2024 is the year of elections, as more than 70 countries hold various elections throughout the globe, such as parliamentary elections in India and the UK, and recently in the EU. As the elections for the European Parliament happened this June, it is interesting to look at a recent German landmark case regarding election thresholds guaranteeing European parliamentary representation to shed light on some of the constitutional implications of this issue.

Despite the great variability in the specific rules, European Parliament elections in all Member States are based on some form of proportional representation, using either a list or a single transferable vote system (as is prescribed in Article 1 of the 1976 Electoral Act). By nature, the proportional electoral system results in a more fragmented but also more representative legislature. In order to balance this fragmentation, election thresholds have been used in Europe (in national elections) since the early 20th century. This solution became widespread after the Second World War, making it a constitutionally established national arrangement suited to national political structures. However, the constitutionality of an electoral rule cannot be justified by tradition alone. Thus, the question of the constitutionality of election thresholds is raised in public discourse again and again. So far, efforts aimed at declaring such rules unconstitutional have only produced results in Germany. However, these results have been partially reversed by changes in EU law and the related decision of the German Federal Constitutional Court (GFCC) in February this year.

Although Germany was not the first country in the world to introduce an election threshold, it has been a stable part of the German constitutional system and culture since its introduction at a federal level in 1949 in response to the historical experience immediately preceding the Second World War. Maintaining stability is a key element of German and other somewhat German-inspired constitutional systems, such as the Hungarian one. One of these instruments of stability is the election threshold, which is intended to prevent the fragmentation of parliamentary forces and thus to facilitate the smooth performance of parliamentary functions and the formation of governments, thereby also supporting the executive function in these systems we call “fusion of powers”. This way, it can help ensure the sustainability of the parliamentary form of government under a proportional or mixed electoral system.

5% and 3% Thresholds: Null and Void.

Despite these fundamental constitutional features, the GFCC declared first the 5% threshold in 2011 and then the 3% threshold in 2014 unconstitutional for the European Parliamentary elections. In its 2014 decision (BVerfGE 135, 259 – 312), the GFCC, basing its reasoning largely on the principles of the 2011 decision, annulled the 3% threshold of the European Elections Act (Europawahlgesetz) on the grounds that it violated the principles of electoral equality and equal opportunities of the political parties as enshrined in the Fundamental Law. The GFCC emphasized that, although the aforementioned constitutional principles are not subject to an absolute prohibition of differentiation, they can only be restricted in a narrow sense and the restriction must always be justified by constitutionally legitimate reasons based on concrete factual considerations. Such a reason may be to ensure the functioning of the parliament to be elected.

In light of this, the GFCCexamined whether the limitation of the above-mentioned principles by an election threshold is justified in order to safeguard the performance of the functions of the European Parliament. The result of the examination was negative. The GFCC pointed out that in the case of the European Parliament, unlike the German Bundestag, a stable parliamentary majority is not a prerequisite for electing and maintaining a viable government, and that the EP has only limited parliamentary powers. Consequently, it did not consider the application of a 3% threshold justified. The GFCC reached this conclusion despite the Bundestag’s assertion that the need for a stable majority was fundamental due to the Spitzenkandidat system. According to the decision, given that there had been no change in EU law and that there was no speculative evidence that majorities would not be able to form in the EP and that the two large party families that usually have a majority would not be able to cooperate properly, this aspect did not change the unconstitutionality of the restriction. Another important consideration was that, if the European Parliament were to become dysfunctional because of the absence of a threshold, national parliaments could correct this, therefore the EP would not have to be able to produce the majority itself.

Strength in Numbers?

In Germany, the implicit (or natural/mathematical) election threshold is 0.5%. As a result, 14 parties shared Germany’s 96 seats in the European Parliament after the 2014 elections. In light of the data presented by the Federal Returning Officer, it can be assessed what the impact of a 3 (or 5) % percent threshold would have been.

If the GFCC had not annulled the 5% explicit threshold, the number of parties would have been only 6, and if the 3% threshold had been applied, Germany would have delegated MEPs from the lists of 7 parties, with the FDP coming seventh with its 3,4% result. 14 parties won seats in the 2019 elections as well, however, had the aforementioned thresholds been applied, that number would only have been seven. Thus, it can be observed that in the case of Germany, the implementation of an election threshold would likely have a significant impact on the fragmentation of MEPs by party, as either of the thresholds that were deemed unconstitutional would have at a minimum resulted in a halving of the number of parties gaining parliamentary representation.

The flip side of this effect, however, is that in 2014, a 5% threshold would have led to a total of 3,081,178 fewer citizens’ votes resulting in representation. With a 3% threshold, this number would have been 2,094,337. In 2019, 3,384,105 fewer citizens’ votes would have resulted in representation by either threshold. In 2019, these voters themselves accounted for 5.5% of all voters and 9% of all valid votes cast. The cases of the two elections and the application of the two thresholds would have left on average 4.6% of those eligible to vote and 8.9% of those who exercised their right to vote without representation of their choice, even though converting their votes into mandates was possible using the natural threshold. In light of these figures, it is indeed questionable whether the functions of the European Parliament actually require a degree of stability and unity that would limit electoral equality (and equality of opportunity of political parties) to such an extent.

The Importance of the European Parliament’s Functions

Indeed, the role of the European Parliament is not the same as that of the parliament of a state with a parliamentary form of government. It has no independent legislative powers, and its composition does not directly determine the ability of a government to function or to exist. It must, however, form a majority in the EU legislative process (as it has joint legislative powers with the Council), in the election of the President and members of the European Commission, and also in its role in the adoption of the budget. It cannot therefore be confidently claimed that the EP’s stable majority-forming capacity is entirely dispensable for the smooth functioning of the Union.

At the same time, the role of the European Parliament (EP) within the institutional structure of the Union may be a noteworthy aspect. The EP is the only directly elected body of the Union and, according to Article 10(2) of the Treaty on the European Union (TEU), it is the institution that directly represents the citizens, as opposed to the European Council, whose members are only indirectly responsible to the citizens of each Member State in their capacity as Council members. The Council is also characterized by each Member State having the same number of seats, with only certain voting procedures (e.g. votes requiring a qualified majority) taking into account population proportions. It is, after all, an intergovernmental institution, which is why its decisions are sometimes characterized by a certain democratic deficit, at least in comparison with the EP.

In the Parliament, on the other hand, as the body directly representing the citizens of Europe, the number of delegates per Member State is distributed in proportion to population and the members are elected by proportional representation. These characteristics suggest that the European Parliament aims to be as representative as possible of the entire population of EU citizens, in contrast to an intergovernmental Council, which to some extent embodies the equality of the Member States. This creates something of a balanced solution. One can see how this structural role can be perceived as best achieved without a threshold—since its function is not to maintain stability and ease decision-making but to represent Europeans directly and proportionally to the greatest possible extent.

Therefore, from an institutional point of view we cannot commit ourselves with absolute certainty in either direction, or a middle ground would seem to be appropriate.

The Return of Election Thresholds

Since the 2018 amendment of the Direct Elections Act (DEA), an EU norm now requires Member States with more than 35 MEPs (including Germany)—as a middle-way solution—to apply a threshold of between 2 and 5%. Accordingly, the German Bundestag passed a law codifying the 2% threshold, thus implementing the EU norm.

Already in 2014, the GFCC took the view that a change in material circumstances could lead to a different constitutional assessment. The very existence of the EU norm can be considered as such a change, since it results in a narrowing scope of constitutional review, due to the primacy of EU law. Thus, in accordance with its own case law, the Court may only examine the constitutionality of the 2% threshold in the context of fundamental rights, and with regard to ultra vires or identity control.

When the case was brought before the GFCC, the applicants—despite briefly referring to the violation of the principle of democracy, which forms part of the German constitutional identity—mainly referred to the earlier (2011 and 2014) constitutional case law on election thresholds and thus to the violation of electoral equality and the equal opportunities of political parties.

Consequently, in its decision of 6 February 2024 (2 BvE 6/23), the GFCC did not find that the applicants had sufficiently substantiated their claim that their fundamental rights had been infringed, nor did it find that the act was ultra vires, or that the German constitutional identity had been breached. The reason for this is that, according to the Federal Constitutional Court, the relevant standard of review and the associated system of reasoning were not recognized by the applicants. This is the main reason for the applicants’ failure since, in the context of an Organstreit or a constitutional complaint procedure, it falls to the applicant to prove that the challenged act is ultra vires or violates the German constitutional identity.

However, this was not the only line of argumentation that the GFCC addressed. Their assessment of the European Parliament’s functions took a 180-degree turn. Although the legal basis of its role has not changed, other factual circumstances have changed and the role and pre-existing powers of the Parliament are now considered “important enough” to require the application of an election threshold to facilitate majority-building. In this respect, the GFCC explained that small parties with one or two MEPs make it difficult to form a majority and thus perform the functions of parliament. In its decision—beyond the analysis of the legal basis—it pointed out that there are and will continue to be deepening differences between the various parliamentary groups with regard to their views on the future of European integration, which will make the struggle for consensus even more difficult. In this context, it also referred to the trend whereby the parliamentary groups of the EPP (European Peoples Party) and the S&D (Socialists & Democrats) no longer form a majority in the European Parliament.

2024

For procedural reasons, Germany still faced the 2024 European elections without a threshold. Thus, 15 German parties managed to obtain seats in the EP. Only 10 of them managed to procure more than 2% of the vote. The remaining 5 parties hold 6 seats, which in the next elections could enlarge the numbers of other parties.

Conclusion

It thus can be seen from the above, that Germany will therefore be the second to last of the Member States with more than 35 seats to have an election threshold for the European Parliament elections. This represents a sharp shift from the previous GFCC position and opens a new chapter in the way the European Parliament and its powers are assessed by national constitutional jurisdictions.

János Rupnik is a fourth-year law student at the Faculty of Law of the Eötvös Loránd University. He holds a scholarship from the Aurum Foundation and is also a member of the Bibó István College for Advanced Studies. As a former intern at the Hungarian Constitutional Court, his research focuses on the relationship between EU and national law and the related judicial review procedures.