The Long Delay in the Application of the 2018 Reform of the European Electoral Act: is it all About the Thresholds?

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     I. A reform pending application

In 2018, the Council approved Decision 2018/994 to reform the European Electoral Act (the ‘2018 reform’), which had to be subsequently approved by Member States observing ‘their respective constitutional requirements’ (Article 223(1) Treaty on the Functioning of the European Union). This reform brought changes concerning the electoral thresholds that political parties have to reach to obtain Members of the European Parliament (MEPs) in some Member States.

To the present day, the 2018 reform remains unapplied because one Member State, Spain, has not yet ratified it. Germany did so only in March 2024. This long delay in ratifying the reform derives from the difficulties that these two Member States encountered when implementing the new threshold regime. This post aims to provide an overview of the difficulties in approving the 2018 reform, focusing on the controversies surrounding the new electoral thresholds regime.

     II. Percentage thresholds in the elections to the European Parliament

According to Article 3 of the European Electoral Act, Member States can introduce thresholds for the allocation of seats in the elections to the European Parliament up to 5% of the votes. In other words, Member States have discretion to introduce a threshold but this cannot be more than 5%.

In 2015, the European Parliament proposed an amendment to the European Electoral Act, which included a reform concerning the thresholds. The European Parliament defended a mandatory threshold between 3% and 5% for those Member States with at least 26 MEPs. While the Council agreed on introducing a mandatory minimum threshold for some Member States, it proposed a more lenient approach. Instead of a threshold of  3%, it opted for a threshold of 2%. Moreover, this mandatory threshold would only affect those Member States with at least 35 MEPs, and not 26 MEPs as the European Parliament defended. Formally, only four Member States are be affected by the reform: France, Germany, Poland, and Spain. However, since France and Poland already have thresholds above 2%, only Germany and Spain are de facto affected.

     III. Member States approaches towards thresholds

Member States appear divided towards the employment of thresholds in the elections of the European Parliament: 14 Member States have thresholds against 13 that do not. Among those Member States that have thresholds, these vary. Generally, Member States apply the same thresholds they use for their national elections. For instance, in Cyprus, there is a 1.8% threshold which is the same threshold applied in the elections to the Cypriot parliament.

Thresholds in the European elections were the object of review by some Member States. Constitutional courts of CzechiaFrance, and Italy have not found reasons to object about to use of thresholds in the elections to the European Parliament. Initially, Germany opted for a 5% threshold, which is the same threshold that is employed in the German federal elections. In the same year, the first elections to the European Parliament were held, and the German Constitutional Court confirmed the constitutionality of such a threshold based on the argument that it would serve ‘the objective of counteracting excessive party fragmentation in the European Parliament’.

In 2011, a new constitutional complaint was brought against the 5% threshold. On this occasion, the German Constitutional Court found that the 5% threshold contravened Articles 3 and 21 of the German Constitution. Article 21 of the German Constitution enshrines the principle of equal opportunities between political parties which means that ‘each party, each group of voters and their candidates’ should be accorded, in principle, ‘the same opportunities throughout the electoral process and thus equal opportunities in the distribution of seats’. Unlike in the 1979 judgment, this time the argument that an excessive fragmentation of the European Parliament would impair its functioning was rejected. The German Constitutional Court highlighted that the existence of a threshold has not prevented fragmentation since, at that time, there were around 160 political parties represented in the European Parliament.

Shortly after the Constitutional Court tiered down the 5% threshold, the German legislature decided to introduce a 3% threshold instead. The German Constitutional Court found this new threshold to be unconstitutional too, based on the same argument of the previous judgment that this threshold impaired the principle of equal opportunities between political parties. Upon this decision, elections to the European Parliament in Germany have not had any thresholds. The effects of not having a threshold in the European elections could already be appreciated in the results of the 2014 elections. While in the 2009 elections, only six political parties obtained MEPs, 14 did so in 2014.

As already mentioned, the 2018 reform contains a mandate to introduce at least a 2% threshold for those Member States with more than 35 MEPs. Die PARTEI, a German political party that had entered the European Parliament benefitting from the lack of a threshold, brought a constitutional complaint against this reform. In the previous cases in which a constitutional complaint had been brought against the threshold in the EU elections, the threshold had been discretionally introduced by the German legislator. However, on his occasion, there was an EU law mandate to introduce a threshold. The possibility of reviewing EU law in light of the German constitutional standards has been a long-standing issue before the German Constitutional Law. Over the years, the German Constitutional Court has developed three main criteria that could be employed to review the ‘constitutionality’ of EU law: first, in case EU law contravened fundamental rights protected in the German Constitution. Nonetheless, for this, the German Constitutional Court has elaborated the presumption that EU law offers an equivalent standard of protection for fundamental rights as German law (the so-called ‘Solange II presumption’). The second possible ground for reviewing EU law is that it might hinder the German constitutional identity at its core – in particular, its democratic identity. Finally, the constitutional review of EU law would also be possible when EU law addresses aspects that fall outside the EU competencies.

Die PARTEI based its constitutional complaint on two main grounds. First, the 2018 reform meant a violation of the right to equality between political parties enshrined in Article 21 in conjunction with Article 3 of the German Constitution, and that would amount to a violation of the principle of democracy covered by Article 79. Secondly, Die PARTEI also argued that the 2018 reform violated the EU principle of subsidiary. The imposition of thresholds by the 2018 reform oversteps in an area that falls outside the scope of the EU competencies.

The German Constitutional Court considered that both arguments had not been properly substantiated, rejecting the constitutional complaint (for a more comprehensive analysis of this judgment, see Fiene Kohn’s post in the European Law Blog).

Barely one month after the judgment, the German legislator approved the 2018 reform, leaving Spain as the only Member State which has not approved it yet.

     IV. A reform stuck in Spain

The 2018 reform of the European Electoral Act is still awaiting Spain’s approval.  Minimum thresholds in elections are not unknown in Spain. While in the general nationwide elections there are no minimum thresholds, these exist in the elections held at the regional level. For instance, in the elections to the regional parliament of Galicia, there is a barrier of 5% of the votes that a party list has to receive in a constituency to obtain deputies. In the Basque Country, elections to the regional parliament require a party list to obtain at least 3% of the votes in a constituency.

Nonetheless, Spain does not have minimum thresholds at the nationwide-level elections nor for the European elections. Unlike in Germany, introducing a minimum threshold for the European elections in Spain does create a challenge from a constitutional perspective. The Spanish Constitutional Court has repeatedly endorsed/backed the possibility of introducing thresholds in elections (see e.g. STC 75/1985STC 72/1989;  or STC 225/1998). In Spain, the difficulties in introducing a minimum threshold have political roots. The current government, led by a left-to-centre coalition, relies on the parliamentary support of peripheral nationalist and regional parties. These parties might struggle to obtain MEPs if a 5% threshold is introduced. For instance, in the 2019 European Election, the coalition led by the Basque Nationalist Party (Partido Nacionalista Vasco), Coalition for a Solidary Europe (Coalición por una Europa Solidaria, CEUS), obtained one seat with 2.82% of the votes. That would not have occurred in case Spain had a threshold above 3%. The government could try instead to approve the reform with the Popular Party, the main opposition party. However, the Popular Party might ask to introduce the highest threshold possible, hindering the support of the peripheral nationalists to the government.

The Spanish government reached an agreement with the Basque Nationalist Party on the approval of the 2018 reform. However, to the present day, the formal legislative proceedings to approve it have not yet been initiated. This means that the 2024 elections to the European Parliament will be conducted according to the terms of the European Electoral Act before the 2018 reform.

     V. Introducing an even higher threshold?

In 2022, the European Parliament proposed the creation of a Council Regulation on the election of the MEPs by direct universal suffrage that would replace the 1976 European Electoral Act. Among other innovations, the proposed regulation aims to introduce a European-wide constituency that would be combined with the current national constituencies. For the national constituencies in Member States with more than 60 seats, there would be a mandatory 3.5% minimum threshold to obtain MEPs. Currently, only France, Italy, and Germany have more than 60 MEPs. That minimum threshold would not be an issue in France and Italy, since both already have a 5% threshold. Nonetheless, in Germany, given the difficulties of introducing the 2% threshold, 3.5% might also result in challenges. For the time being, the 2022 proposal of the European Parliament remains a proposal, still under discussion.

     VI. Concluding remarks

Thresholds in elections are at the crossroads between two opposing interests: avoiding the instability of an atomised parliament and giving all parties an equal opportunity to enter the parliament. Difficulties finding a balance between those interests are what makes establishing thresholds such a sensitive matter. This is why some Member States have struggled when implementing the 2018 reform of the European Electoral Act. This reform brought a more harmonised regime towards the thresholds, but it is still far from a further degree of uniformity that will put all EU citizens on an equal footing when voting for the elections to the European Parliament. With this new regime, most Member States will continue to have a wide margin of appreciation to decide if they establish thresholds as well as the percentage of votes of those thresholds. In practical terms, leaving the Member States such a degree of discretion concerning thresholds means that political parties might face more difficulties obtaining MEPs in one Member State than others. Still, given the challenges in approving the 2018 reform, it seems unlikely that a more radical reform concerning thresholds will soon be approved.

Tags EU law