Fair Elections? German Court to Scrutinize European Parliament Rules

Smaller parties in the European Parliament elections can end up with no seats despite winning a small slice of public support. But this could soon change. Complaints about the voting system are to be heard at Germany's highest court on Tuesday -- and there are signs the judges may iron out some irregularities.


Gabriele Pauli, the leading candidate of the Free Voters, a minor conservative party in the southern German state of Bavaria, was among the politicians to walk away from the 2009 European Parliament election with a bitter aftertaste.

Despite winning enough votes to be able to claim two seats in parliament, German election laws ultimately silenced the electorate's voice. The Free Voters didn't win enough votes to surpass the key 5 percent threshold. That meant it did not obtain any seats in parliament. Pauli was forced to remain in Bavaria.

A total of seven smaller parties experienced a similar fate, including the Pirate Party and the Republicans. Had it not been for the 5 percent rule, those parties would have cornered at least one seat each in the parliament. But, as it turned out, the will of just under 2 million voters who had voted for these parties was ignored.

The European rebuff dealt to Pauli and her counterparts echoes the threshold clause which applies to both federal and state elections in Germany. If a party doesn't win at least 5 percent of the vote, it gets 0 percent of the seats in parliaments. The seats are then distributed among the larger parties. The country's constitution envisions elections that are free, equal, universal and direct. But this regulation renders the votes of many citizens worthless.

A Legal Challenge

That shouldn't be allowed, according to Hans Herbert von Arnim, a constitutional law expert from the southwestern city of Speyer, and two other plaintiffs. Their complaints against the election system will be heard this Tuesday by Germany's highest court, the Federal Constitutional Court. The court has already published a tentative plan for the proceedings. The attention to detail the judges have indicated in the written agenda already suggests the plaintiffs have good prospects for success.

The case is being heard by the so-called Second Senate of the court, under the leadership of Constitutional Court President Andreas Vosskuhle. And, contrary to appearances, the ruling will amount to more than a mechanistic legal trifle. Given that electoral law is a mechanism for allocating power, ruling on election laws is also a form of power politics. Until now, the established parties have been able to use the threshold clause to stop potential new competitors in their tracks. Voters, meanwhile, usually shy away from casting their votes for these kinds of minor parties because they believe that doing so might mean a wasted vote.

A German Headache

Many other European countries also have a percentage threshold for elections to the European Parliament, including Italy, Sweden and Lithuania. But the restrictions don't have as much of an impact in these countries because they ultimately dispatch fewer representatives to Brussels. That means that parties in these countries need to win a greater share of the vote than a party in Germany to secure a seat in parliament.

What's more, Germany has far fewer seats in the European Parliament than its share of the EU's total population would otherwise entitle it to. As a result, to surpass the 5 percent hurdle, a German party in the 2009 European elections had to win more votes than all of the 24 representatives from Estonia, Malta, Slovenia and Cyprus combined.

Viewed in this light, one can quickly get the impression that the system is unfair. And such complaints are not new. In fact, before the European Parliament's first elections were held in 1979 there was already detailed debate about how to determine the makeup of the parliament.

Loud Critics

Hans Herbert von Arnim, one of the loudest critics of Germany's system of political parties, would like to see two changes in the way the country's elections are held. First, he considers it unconstitutional that, during EU elections, voters can only check off a party list "en bloc" rather than being able to select individual representatives. However, the Federal Constitutional Court recently upheld the constitutionality of this practice in a decision on federal elections in Germany.

With the second point of his complaint, the attack on the 5 percent threshold clause, von Arnim has a completely different starting position. The Federal Ministry of the Interior has submitted a brief arguing that the clause is an "element of democratic elections known and trusted by citizens." It also claims that German representatives from "extremely small parties" in the European Parliament would lack "logistical support." They would have neither the "necessary apparatus" nor the "feedback via the national parliament," it argues, because the 5 percent hurdle would block them from having representatives there, as well.

Legal Changes

It's hard to say whether these arguments will win over the judges. Although the clause has been accepted for some three decades, von Arnim points to a "tightening of standards" in recent years.

For example, three years ago, the court declared using the hurdle for municipal elections unconstitutional. It had been argued that having a very fragmented popular representation would complicate the formation of governments. But since almost all mayors and district administrators are directly elected these days rather than selected by municipal or county councils, the argument had lost much of its force. Von Arnim believes that the same logic should apply to EU elections because the European Parliament doesn't select a government in the same way as German state and federal parliaments.

What's more, he argues that the "factual situation" has also changed. When the first elections for the European Parliament were held in 1979, representatives were only drawn from nine countries and 40 parties. Today, von Arnim points out, there are three times as many countries, and at least 162 parties are represented in parliament. Given these circumstances, von Arnim believes that adding a few more representatives from minor German parties couldn't really hurt.


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BTraven 05/03/2011
Will the 5% hurdle fall? I don't know whether the rule is also applied for the European Parliament.
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