Germany’s top court annuls 3% threshold for EU election


The German Constitutional Court in Karlsruhe ruled on Wednesday (26 February) that the 3% electoral threshold for German parties in the European elections was unconstitutional. EURACTIV Germany reports.

The German Constitutional Court in Karlsruhe has levelled the playing field for parties hoping to be elected to the European Parliament, ruling in favour of annuling the 3% threshold for entry.

The Court said in a press release, “under the current legal and factual circumstances, the serious interference with the principles of electoral equality and equal opportunities which the three-percent threshold entails cannot be justified”.

Germany’s lower house of Parliament, the Bundestag, signed off on the 3% threshold last June, after the German Constitutional Court ruled that the previous 5% minimum was unconstitutional. The election threshold denotes the minimum percentage of votes that a party must win in the European elections in Germany in order to earn a seat in the European Parliament.

Complaints in the case were filed by small groups like the Ecological Democratic Party (ÖDP), the Free Voters (Freie Wähler), the Pirate Party (die Piraten) and the Grey Panthers (Graue Panther), along with over 1,000 German citizens. With the threshold in place, it is more difficult for small parties to find willing and qualified candidates as well as to collect donations, they argue.

From 5% to zero

As a result Wednesday’s verdict, the chances for small German parties in the upcoming European elections have grown greatly. But the Court also made it clear that, pending further developments “a different constitutional assessment may be warranted if the conditions change significantly.”

For now, Germany has no threshold in place dictating a minimum percentage of votes for representation following this year’s European elections.

At a hearing in December, presiding judge Andreas Voßkuhle addressed the reservations against the 3% threshold. There is far-reaching agreement, he said, that every threshold in a European election constitutes an interference in the equal opportunity of political parties.

Representatives from the Bundestag and the European Parliament, on the other hand, see the 3% threshold as a protectionary measure for political stability. A corresponding change to German election law was negotiated in the Bundestag in June.

The 5% threshold, which applied in the European elections in Germany thus far, was toppled in 2011 under the justification that it hurt the equal opportunity of parties.

  • Socialists: Parliament will become more fragmented

Bernhard Rapkay, deputy chairman of the Socialist and Democrats (S&D) faction in the European Parliament, was invited by the Court for the announcement of the verdict.

He said he was disappointed with the ruling: "The elimination of the threshold means ever-growing fragmentation in the European Parliament. In the long run, an increasing number of non-attached MEPs means only the two biggest factions will be able to create a majority," he warned.

  • CDU/CSU: Vote will allow rise of radical parties

The German Constitutional Court has missed its chance to recognise the new realities in Europe, said the chairman and co-chairman of the Christian Democratic(CDU)/Christian Social Union (CSU) Group in the European Parliament, Herbert Reul (CDU) and Markus Ferber (CSU).

"The EU has made another qualitative shift with the Lisbon Treaty and democratic legitimacy in the EU has made much progress. All major EU member states have electoral thresholds - for good reason," the MEPs argued, "and with Europe-wide top candidates being chosen, the EU elections in May have gained a new dimension, also politically."

Now one must live with the verdict, the two MEPs said, including the fact that "as a result we will have splinter parties and radical powers from Germany in the European Parliament. That is not a very pleasant situation".

"The European Union is a sui generis construction, as the German Constitutional Court has already determined itself in the so-called Maastricht verdict. Thus, in some cases the EU deviates from the classical parliamentary governance system. But it is undeniable that the executive, in the form of the European Commission relies on the majority in the EP by which it is appointed and legitimised."

  • Greens: Parliament must be protected from greater divisions

Manuel Sarrazin, the European policy spokesman for the Green Party in the Bundestag, spoke of repercussions for the European institutional structure. "Over the last few years the EP has steadily been gaining power. That was very important to counterweight the national governments' power of decision with a parliamentary control at the European level," Sarrazin said.

"Even we Greens voted for the 3% threshold in the Bundestag, because the EP must be protected from greater division of political powers," the Green Party spokesman said, "Apparently [the German Constitutional Court in] Karlsruhe sees neither the increase in power nor the threat of a division as substantial enough for the time being. Still, Karlsruhe does not entirely rule out the threat of such developments."

"The German Constitutional Court's responsibility to act, in the event that these threats are realised, is something we will take seriously," referring to the Court's stated commitment to reconsider the verdict if future developments justify a new interpretation of electoral law.

  • Small parties hail victory

Unsurprisingly, representatives from smaller parties expressed satisfaction with the verdict.

Ulrike Müller, the top candidate for the Freie Wähler Europa, spoke of a "meaningful victory for European democracy and right next step on the way to a true European parliamentary democracy".

The Freie Wähler achieved 1.7% in 2009 "from a standstill", a percentage which would have won their party two or three MEPs in the Parliament.

"Finally now all the votes will be counted so that those parties can benefit, which voters actually favoured", said Sebastian Frankenberger, federal chairman and European candidate of the ÖDP. In the European elections in 2009, roughly 2.8 million votes were swept under the rug because they were submitted for parties not able to garner more than 5% of the votes each.

Thorsten Wirth, federal chairman of the German Pirate Party said: "After today's decision from the Court, it is guaranteed that a significant portion of votes will not be dropped - as was the case five years ago. But actually it should be the responsibility of politics to strengthen the legitimacy of the European elections, instead of trying to strengthen one's own position of power through questionable legal provisions in electoral law."

Even the governing parties should not be surprised at this verdict, said the German Pirate Party's top candidate for the European elections, Julia Reda. "After all," she said, "an internal statement from the Federal Ministry of the Interior already warned in 2011, that a 3% threshold would also be rejected by Karlsruhe."

Under EU law, the Direct Elections Act requires that members of the European Parliament be elected through a system of proportional representation in each of the 28 member states. Subject to the other provisions in the measure, the electoral procedure takes place in each member state according to its own national provisions.

During the European Parliament elections in May, each member state has the right to elect a fixed number of Members of the European Parliament (MEPs) based on population.

Elections are contested by national political parties but once MEPs are elected, most opt to become part of transnational political groups. Most national parties are affiliated to a European-wide political family so one of the big questions on election night is

which of these European groupings will exert greater influence on the decisions taken in the next legislative term. The European Council must take the election results into account when choosing a nominee for the post of president of the European Commission, the executive arm of the EU.

See more on European Parliament elections here.

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