Race to the bottom: Germany’s abolition of the 3% threshold

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Pierre Thielboerger and Mark Dawson

Pierre Thielboerger and Mark Dawson

Some hope the upcoming elections will produce a stronger and more politicised EU Parliament. But this hope has been dashed by the court ruling in Germany that quashes the 3%-electoral threshold, write Mark Dawson and Pierre Thielboerger.

Mark Dawson is Professor of European Law and Governance at Hertie School of Governance in Berlin. Pierre Thielboerger is a Junior professor for International Law and International Humanitarian Law at the Ruhr-University Bochum.

In truth, the Court’s ruling was not wholly unexpected. In an earlier judgment – from November 2011 – the Constitutional Court struck down a 5% threshold on the grounds that this violated provisions in the German Constitution protecting the equality of voters. Recognizing the increasing preference of German voters for new political parties, the Court argued that their entry into the European Parliament would not damage the ability of that institution to function. Arousing suggestions of double-standards, the Court did not extend this line of reasoning to German regional or federal elections.

The most recent judgment follows the approach of its predecessor, arguing that ‘no significant change in the factual and legal circumstances’ has occurred since 2011. In general terms, the judgment reienforces the low regard in which the German Court holds the EP: it is viewed largely as an institution designed to ‘re-enforce’ the legitimacy of the other EU institutions (the Commission and Council) and to hold them accountable. As such, an increasing fragmentation of the Parliament would not do similar damage in Europe as it would nationally.

Much has changed since 2011. The reforms to the EU during the euro crisis have led to an increasing politicization of the EU’s role with the EU increasingly directing the budgetary decisions of the Member States. This has led to greater demands for citizen control of decisionmaking, with the EP demanding that it plays a greater role not just in holding accountable but in forming the Commission’s Presidency and its political agenda. A quite different reading of the Parliament’s role is equally credible i.e. to see it as an institution with significant legitimacy in its own right, voicing the interests of EU citizens directly (rather than just ‘piggy backing’ on the legitimacy of national governments).

Among the Court’s reasons for rejecting the threshold are a number of questionable counter-factuals. One is that voters may in fact vote strategically to counteract the fragmentation of parties by voting for the larger political groupings. Alternatively, newly elected parliamentarians may themselves join larger or more ‘mainstream’ existing groupings in the parliament, or at least cooperate with them via a new group of their own. In this way, one cannot assume that the Parliament’s functioning is in danger were the 3% rule abolished.

These are two wildly optimistic assumptions. Pollwatch’s most recent polling forecast for the upcoming vote shows no sign of voters flocking towards the major parties. In fact, the reverse is true – the latest forecasts show the share of seats of the three largest groupings falling from 554 in the current Parliament (74% of the total) to 472 in the new one (63%). The idea that new parties will join existing groups also seems fanciful. Of the parties unrepresented in the existing EP, but likely to benefit from the 3% rule’s removal (IE in Germany, the eurosceptic AfD, extremist NPD and Pirate party), few will join the major EP groupings. With new groupings – such as the planned alliance of the French Front National and Dutch Freedom Party – pledging to liberate Europe from ‘the monster of Brussels’, the Court seriously under-estimates the likely impact of fragmentation on the ability of the EP to act as a cohesive and functioning body.

The dissenting opinion by Judge Peter Müller points towards a final weakness in the court’s decision. Constitutional judgments often have to strike a balance between different competing constitutional values, andcompetencies of constitutional organs. In this particular case, this would require the courts to leave some discretion to the legislature about how to reconcile national and European electoral laws. In this regard, the Court’s 2011 judgment was – in spite of some criticism (see Die Zeit) – to be applauded in leaving considerable room to the legislature to determine alternatives to the 5% rule.

In striking down the legislature’s chosen 3% solution, the Court is in danger of overstepping its institutional legitimacy. As the Court recently acknowledged, the Bundestag paid significant attention to the previous Court judgment when determining a new electoral law. It forwarded a 3% threshold as a reasonable accommodation of that judgment, taking the approaches of other Member States into account (in all of those countries bar Spain, a party must reach (either by law or in practice) at least 3% of the vote to gain one seat in the EP). By setting aside that compromise, the Court has reduced the legislature’s margin of discretion to zero. From now on, for better or worse, Germany will have Europe’s most proportional European electoral system.

This opinion piece was posted on BlogActiv's ACELG blog by the Amsterdam Centre for European Law and Governance (ACELG), after being first published on the Berlin-based Hertie School of Governance's Decisions 2014 blog.

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