Leiden Law Blog

Towards truly European elections?

Posted on by Paul Post in Public Law
Towards truly European elections?

The next elections for the European Parliament are set to take place in May 2019, but some propositions to fundamentally change the character of the vote have already been made. On Wednesday 11 November the European Parliament adopted an ambitious proposal for several reforms of the European Union’s electoral law. This vote marks the beginning of a long process, as reform requires unanimous support in the Council and ratification by all Member States. The eventual goal? To make the elections more attractive (the turnout in 2014 dropped to a historic low of 42.6 %), more transparent, and, paradoxically, more European.                                                                                                                          
While the European Parliament has been directly elected since 1979, a genuinely uniform electoral procedure is still lacking. The only reform of the 1976 European Electoral Act, which paved the way for the first direct election, took place in 2002 through Council Decision 2002/772 EC. This decision requires the Member States to conduct the elections on the basis of proportional representation and lays down the incompatibility of a national mandate with a seat in the European Parliament. Other important features are however left to the Member States to decide, such as election thresholds, the number of constituencies and even the day the election takes place. This has resulted in the European elections spanning four days, with domestic parties presenting manifestos and selecting candidates to compete in elections whose rules are nationally defined. It is this markedly national character of the European elections that the Committee’s report endeavours to change.         

In an attempt to ‘Europeanise’ the elections, the report proposes placing the names and logos of the European political parties on the ballot papers. According to the report, these parties, which comprise national-level parties of a particular affiliation (liberals, for example), are currently not able to fulfil their mandate because of a lack of visibility. The report, moreover, suggests a common deadline for the establishment of electoral lists (preventing last-minute candidates), and a simultaneous communication of the polling results. In addition, it is recommended to harmonise the minimum voting age at 16 years, to introduce the right of vote for citizens of the European Union living outside the EU, and to enable internet voting as well as voting by mail. These proposals, while seeming relatively insignificant, may contribute to strengthening the European dimension of the elections to the European Parliament.            

A potentially contentious issue may be the report’s proposal for an obligatory electoral threshold of between 3 % and 5 %, intended to avoid further fragmentation of the European Parliament. This may be disputed in countries such as Germany, where the Bundesverfassungsgericht in a February 2014 judgment declared the German threshold for the European elections to be unconstitutional. It remains to be seen if a threshold stated in European Union law would render the position of the Court any different. The proposal already provoked an angry reaction by Dutch MP Van Raak (Socialist Party), who blogged that ‘Europe wants to organise our elections’ and asserted that the chance of smaller parties being elected to the European Parliament would be reduced (Van Raak’s blog was subsequently taken up by Dutch weblog GeenStijl). These reactions seem somewhat overdone, as the effective percentage needed to win a seat in the Dutch elections to the European Parliament is already approximately 4 percent (as 26 seats are currently allocated  to the Netherlands).      
 
Another controversial proposal is to oblige European political parties to nominate their candidates for the position of European Commission President. This de facto already happened in the run-up to the 2014 elections, when all main political groups nominated a Spitzenkandidat (lead candidate). With the Spitzenkandidaten innovation, each ballot cast for the European Parliament would also be an indirect vote for the new President of the Commission. This set-up eventually succeeded in 2014, as Jean-Claude Juncker (the winning Spitzenkandidat) was proposed by the European Council and elected by the European Parliament in accordance with Article 17(7) Treaty on the Functioning of the European Union (TFEU).          

The current proposal may be regarded as an attempt to codify that procedure and can be expected to encounter substantial resistance. The European Council, when appointing Juncker in June 2014, decided to reconsider the process for the appointment of the President of the European Commission in the future, as an indication that the battle over the Spitzenkandidaten procedure had not yet been definitively decided. It seems unlikely that fervent opponents, such as the UK’s Prime Minister David Cameron, will easily accept the codification of the procedure.           

The changes have been proposed on the basis of Article 223(1) TFEU, which gives the European Parliament the right to initiate a reform of the European Union’s electoral law. Now that the proposal has been adopted, the Council needs to decide by unanimity. If the Council adopts the reform plans, ratification by all Member States in accordance with their respective constitutional requirements is required. And ultimately, as Dutch Minister of the Interior Plasterk already remarked in his letter to the Second Chamber on this report, the report may then become the subject of a Dutch referendum, like the EU Association Treaty with Ukraine. To be continued!

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