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The Federal Constitutional Court of Germany – a punch in the face of European democracy

This post by me is cross-posted from OneEurope. The original post can be found here.

On February 26th, the Federal Constitutional Court of Germany ruled that the three-percent electoral threshold for the European elections is unconstitutional. This would mean that in May, any political party may enter the European Parliament provided that they obtain enough votes for at least one MEP.  In other words, there won’t be any electoral threshold to overcome in order to enter Parliament.

From the German perspective, this is pretty odd – the federal national parliament as well as many state parliaments (in the German Länder) have five-percent thresholds. In a proportional electoral system, the electoral threshold has always been a good tool to either make sure that radical parties with just  a small share of votes do not enter into parliament or that after the election, the formation of a government will be easily done. Germany learned from experience gained during the Weimar Republic when a lot of undemocratic parties were voted into parliament and the parliament consisted of so many parties that it was almost impossible to form a stable government.

At the same time as it ruled out the three-percent threshold for European elections, the Constitutional Court confirmed the five-percent threshold for elections to the German Parliament. The main reason for such a decision is that the judges consider the issue of forming a stable government in Germany more important than in the EU. They do not consider that the European Parliament has the same responsibilities as the German Bundestag. They said that the installation of an electoral threshold might be reconsidered in the case of a change in the situation but this time has not come yet.

It is true that the EP doesn’t have the same powers as the German Parliament, however if you put history and the future together you might just think that the German judges punched European democracy in the face.

The power of the European Parliament has increased steadily in recent decades, culminating in the Treaty of Lisbon which made it a political player with a weight close to that of the Council of Ministers. In many policy areas, the ordinary legislative procedure is the way European policy is shaped – national governments and the EP do it on an equal basis. Thus, the EP is a powerful political institution with the potencial to increase its influence even more in the future – if the European Union is not deconstructed in the coming years.

The  Lisbon Treaty stipulates that the President of the European Commission has to be proposed by the European Council taking into account the results of European elections. This means that the frontrunner of the political party which wins the election (or the party with a parliamentary majority) will be the next President of the European Commission. This pretty much looks like a normal democratic procedure of setting up a government – like the German Bundestag does it. In this manner, the EP is no different from the German Parliament and the judges are wrong  in saying that. It is true that the power of the EP is not so widespread as the power of a national parliament because it is only responsible for those policy areas which were given to it by the European treaties. But the EP is (and will be even more in the future) still a real parliament with the corresponding powers. And successfull implementation of European legislation needs an EP with clear majorities and a functioning structure. Bringing the electoral threshold down to zero does not help and will not support the creation of a democratic European Union. For years,  people have been complaining that the EU is undemocratic. The May election will make the EU obviously more democratic as people will be able to see what their vote stand for, be it in support to one candidate / party or another.

This is a huge step for European democracy that is now tackled by the German Constitutional Court, which sees the European integration process very sceptically.

The Constitutional Court stressed many times that electoral equality and equal opportunities are the main reason why the three-percent threshold is unconstitutional. Think about it.  This means that electoral equality and equal opportunities are worth less than the stable structure in the German Bundestag. In other words: democracy is fine, but only for those who gain more than five percent of the turnout – does not sound very equal. If European democracy can live with the voters, so does the German one. And the Court says very clearly that a threshold is needed to have a functioning parliament. If this is enough to preserve electoral equality and equal opportunities in Germany, then it should exist at the European level as well, where the EP has strong political powers.

Published inDemocracy & Human RightsEuropean Union

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