Marcus Hahn-Lorber

On 9 November 2011, the German Constitutional Court delivered a far-reaching judgment on European electoral law as it has been concretised by German legislation. The Constitutional Court declared the so called “five percent threshold”, which is provided by s. 2(7) Europawahlgesetz unconstitutional and therefore void. In order not to interfere with EU electoral law (European Direct Elections Act, Council Decision 2002/772/EC) and with the stability and existence of the present European Parliament, the Court rejected the claim to re-allocate German seats or to repeat the 2009 election in Germany. The judgment will therefore be relevant for the next European election in 2014.
According to the Europawahlgesetz which concretises and completes the mentioned Council Decision, 99 German MEPs are elected according to a system of proportional representation on the basis of nationwide lists of political parties. If, however, a party list fails to attract at least five percent of valid votes all over Germany, it will not be considered for the allocation of seats. In the 2009 election, 10.5 percent of voters elected party lists which remained unconsidered. Out of those, 7.3 percent were received by minor parties which would have sent at least one MEP to the Parliament without the threshold. In total, they would have gained nine seats.
The applicants submitted that the five percent threshold excluded smaller parties from political representation and therefore was incompatible with the democratic principle (Art. 20(2) German Constitution [GC]), the principle of electoral equality (Art. 38(1) GC) and the equal status of political parties (Art. 21(1), 3(1) GC). Differently from general elections to the Bundestag, there was no need to deprive smaller political parties from participation. Whereas the Bundestag required a well-functioning majority which ensures the stability of a coalition based government, this was not the case with the European Parliament which currently assembles more than 160 political parties from all over Europe who were well integrated within seven transnational factions.
In its decision, the Constitutional Court followed the appeals of the applicants and refused the argument of the electoral scrutiny committee of the Bundestag. The Bundestag argued that, against the background of increased competences of the European Parliament, the threshold now was even more necessary. It submitted that the principle of electoral equality was – intentionally – not implemented in European electoral law. Judicial review, based on this principle, would therefore interfere with the supremacy of European law.
The Court did not follow this interpretation and measured the five percent threshold for European elections against provisions of the German constitution: EU electoral law leaves the scrutiny of electoral procedure to the Member States (Art. 12(2) European Direct Elections Act ) and allows, but does not prescribe a five percent threshold (paras. 76 f. of the judgment). Within this scope of national discretion, constitutional review remains possible along the lines of the Solange II and Maastricht jurisprudence.
In recent years, the Court has chosen an approach of an increasingly strict enforcement of arithmetic electoral equality (para. 85) which is again criticised by the dissenting vote of the judges Di Fabio and Mellinghoff (paras. 145 ff.). The Court has required the legislator to plausibly justify deviations from equal opportunities of political parties. Even minor impacts, such as arithmetic anomalies resulting from the system of distributing seats in the Bundestag (BVerfGE 121, 266), were declared unconstitutional and eventually lead to a reform of the arithmetic of allocating seats (BT-Drs. 17/6290). As the reforms still favours “overhang seats” (Überhangmandate) which, in tendency, are beneficiary to the CDU, it will – possibly successfully – be challenged. The Court has increasingly taken seriously the Smendian dictum that elections are integrative procedures (para. 126), creating a body representative for the electorate as a whole.
If the legislator departs from a strictly arithmetic electoral equality, she has to pursue a legitimate goal, derived from the constitution itself (BVerfGE 95, 335 [393], 120, 82 [107], 121, 266 [298]).According to this standard, the legislator is not entitled to pursue an illegitimate aim, such as excluding fringe parties in favour of established parties. The five percent threshold, for example, can only be – and actually remains – justified by the operability of a parliament, dependent on its particular institutional function. The Court has departed from the expectation that the “operability of parliament” can be used as a general argument in favour of thresholds for any election to any parliament. This was, in particular, not the case with the elections to the European Parliament as the European Parliament does – distinctly from the Bundestag – not elect a responsible government based on a coalition agreement, ensuring the stability of the coalition majority. For similar reasons, state constitutional courts have declared unconstitutional five percent thresholds for elections to local councils (e.g. Constitutional Court of North Rhine Westphalia of 6 July 1999, VerfGH 14/98; BVerfG as State Constitutional Court of Schleswig Holstein of 13 February 2008, 2 BvK 1/07).
The Court does not pursue a purely normative approach to electoral equality. It rather refers to the actual political situation of a constitutional system. “The constitutional justification of a law can be questioned by new developments, such as a change of its presupposed factual and normative foundations or by acknowledging that the legislator’s original prognosis was erroneous” (para. 90). With this argument, the Court distinguishes the present case from a 1979 decision (BVerfGE 51, 222) when the legislator wrongly assumed that a national five percent threshold was a suitable means to protecting the European Parliament against political fragmentation. The other side of the coin is, however, that with a proceeding European integration towards federal statehood, equal and unitary elections across Europe and full parliamentary responsibility of the Commission, safeguards against the political fragmentation of the Parliament can become necessary.
It can, on the other hand, not be expected that constitutional change in Europe will trigger new constitutional justifications for – then probably outdated – national or Europe wide five percent thresholds. If legal safeguards will ever be enacted, they will probably be more dynamic and differentiated than a strict five percent threshold. A malfunction or instability of the European Parliament, due to the presence of more than 160 political parties, cannot be identified or expected (para. 102). Rather, the factions of the Parliament have proved their ability to ensure the functioning of parliament and to integrate new parties, in particular those from new member states. Currently, EU legislation does not depend on stable majorities, and information and control rights are even designed to be exercised by minorities or single MEPs (para. 118). The Court rightly concluded that this relatively stable political process would not be compromised by the allocation of a few seats to seven minor – hitherto excluded – parties in Germany.
Politically, the judgment could increase the dynamics of the German political party system. Through MEPs, fringe parties will be able to establish their profile and political positions which can influence their opportunities in federal and state elections to gain more than five percent of votes. Even if they all fail to enter the Bundestag or state parliaments, it can be expected that their vote share enlarges. This again could lead to questioning the five percent threshold in the national context again. As an increasing share of votes would be barred from being represented in parliaments, it is possible that the five percent threshold becomes unconstitutional under the empirical approach of the Court (para. 90).
In conclusion, the decision can be regarded as far-reaching. The Court again has shown its caution against challenging European law on national constitutional grounds. It would not challenge a Europe-wide regulation of electoral law. Rather, genuinely European principles of electoral law could emerge which could ultimately be scrutinised by the ECJ or the ECtHR. For Germany, the decision can well be seen as a further step to a fully egalitarian electoral law with the requirement to wisely justify any departure from a strict standard of electoral equality, questioning existing five percent thresholds in the long run in favour of alternative measurements.