Equal voting power under scrutiny: Czech
Constitutional Court on the 5% threshold in the 2014
European Parliament Elections
Czech Constitutional Court 19 May 2015, Pl. ÚS 14/14
Hubert Smekal & Ladislav Vyhnánek*
Some commentators – half tongue-in-cheek but half seriously – have said that if
one wants to predict the outcome of a Czech Constitutional Court case, checking
what the German Federal Constitutional Court had to say in a similar issue is the
way to go. Indeed, the Czech Constitutional Court’s case law has undoubtedly
been influenced by the jurisprudence of its German counterpart, which can be
illustrated either by comparing individual (similar) cases or simply by looking at
the number of cases where the Czech Court approvingly cited a German Court
case or even used it as a crucial part of its reasoning.1
Recently, however, an exception to this ‘rule’ has emerged: the EU law.
Although the Czech Constitutional Court has adopted a form of Solange
doctrine,2
many of its European law decisions show that the respective
constitutional courts’ understanding of the relationship between the member
states and the EU differ. Even though in one exceptional case the Czech
*Hubert Smekal (hsmekal@fss.muni.cz) – Faculty of Social Studies, Masaryk University;
Ladislav Vyhnánek (ladislav.vyhnanek@law.muni.cz) – Law Faculty, Masaryk University. Ladislav
Vyhnánek also works as a part-time law clerk at the Constitutional Court of the Czech Republic, but
he did not participate in deciding the commented case. The opinions presented in this text are not in
any way attributable to the Czech Constitutional Court. The authors would like to thank to
participants of FSS MU Research Seminar and to Vít Hloušek, Roman Chytilek, Petr Kaniok,
Lubomír Kopeček and Oldřich Krpec for consultations. Special thanks belong to the reviewer who
helped us with many valuable suggestions.
The paper has been written as a part of the research project ‘Europe in Changing International
Environment’ funded by the Masaryk University (MUNI/A/1316/2014).
1
See L. Vyhnánek, ‘Judikatura v ústavním právu’, in M. Bobek and Z. Kühn (eds.), Judikatura a
právní argumentace Case Law and Legal Reasoning (Auditorium 2012), p. 348.
2
Cf. mainly Czech Constitutional Court 8 March 2006, Pl. ÚS 50/04.
148 Case Note
European Constitutional Law Review, 12: 148–163, 2016
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Constitutional Court adopted an almost hostile position towards the competences
of the European Court of Justice,3
the ‘mainline’ of its case law seems to be more
euro-friendly than recent German decisions.4
Recent decisions concerning the threshold in European Parliament elections can
be understood as yet another example of this divergence. After two deliberations
over the constitutionality of the thresholds in front of the German Court, the Czech
Court joined this interesting debate, which touched upon the constitutional nature
of the whole European Union. While the German Court struck down both the 5%
threshold in 2011 and then the 3% threshold in 2014,5
the Czech Court found the
5% threshold to be in accordance with the constitution.6
This article first provides readers with the factual and procedural background to
the case and a concise overview of the law concerning election to the European
Parliament. Second, we summarise and analyse the Czech ruling and compare its
reasoning with that of the German Court. While the remarks concerning specific
substantive arguments used by the courts are included throughout, additional, more
general, comments can be found in the final section of this text. We assert that the
two courts differ not only in the specific applications of constitutional concepts like
equality of voting power and proportionality, but also in their wider perspectives on
European integration which inform their decisions on legal thresholds. This case
note therefore goes beyond a mere comparison of the judgments and portrays the
variances through the wider lens of European democracy.
Background
Factual and procedural background
The case was initiated by two candidates in the 2014 European Parliament election
in the Czech Republic who did not succeed in earning a seat in Strasbourg/
Brussels due to the existence of the 5% national legal threshold. They asked the
Supreme Administrative Court, the Czech judicial authority on electoral affairs, to
annul the election of the two candidates who were elected to the European
3
Czech Constitutional Court 31 January 2012, Pl. ÚS 5/12; see also R. Zbíral ‘Czech
Constitutional Court, Judgment of 31 January 2012, Pl. ÚS 5/12: A Legal Revolution or Negligible
Episode? Court of Justice Decision Proclaimed Ultra Vires’, 49 Common Market Law Review (2012)
p. 1-18.
4
Compare, for example, the respective decisions concerning the Lisbon Treaty: BVerfG 30 June
2009, 2 BvE 2/08; Czech Constitutional Court 26 November 2008, Pl. ÚS 19/08 and Czech
Constitutional Court 3 November 2009, Pl. ÚS 29/09.
5
BVerfG 9 November 2011, 2 BvC 4/10 and others and BVerfG 26 February 2014, 2 BvE 2/13
and others. See, in this issue, B. Michel, ‘Thresholds for the European Parliament Elections in
Germany Declared Unconstitutional Twice’, 12 EuConst (2016) p. 133.
6
Czech Constitutional Court 19 May 2015, Pl. ÚS 14/14.
149Case note: The threshold for European elections in the Czech Republic
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Parliament with the fewest votes: had the 5% threshold not existed, they would
have been replaced by the applicants. Together with the request for the annulment
of two candidates’ election, the applicants also petitioned for the annulment of
two provisions of the Czech European Parliament Election Act. They challenged
the provisions of the Act that introduced the threshold;7
they argued that these
provisions hinder the free competition of political parties in a democratic society
and violate the principle of voting equality as well as the right of citizens to equal
access to elected functions.
For the most part, the Supreme Administrative Court accepted the arguments
of the petitioners (although by the narrowest majority of four, with three judges
dissenting).8
It confirmed that in the absence of the 5% threshold, two mandates
of Members of the European Parliament (henceforth MEPs) would have been
won by the petitioners. Only the parties whose total share of all valid votes cast
exceeds 5% pass scrutiny. As the Czech Pirate Party received 4.78% of votes and
the Green Party received 3.77%, their candidates were automatically excluded
from the seat distribution. The Supreme Administrative Court pointed out that
due to the artificial threshold almost 20% of all votes were forfeited, and therefore
a sizeable portion of voters was not represented in the decision-making body.
Therefore, it stayed the proceedings and asked the Constitutional Court to annul
the statutory provisions regulating the 5% threshold.
The Constitutional Court needed almost a year to issue the ruling, as the
Supreme Administrative Court stayed the proceedings in June 2014 and the
Constitutional Court decided in May 2015. The judge rapporteurs switched
during the proceedings after the initial draft did not gain sufficient support. The
final ruling was drafted under the rapporteur-ship of Judge Jiří Zemánek, an
academic with a background in EU Law. The ruling was not adopted
unanimously; the majority consisted of nine judges, while three attached a joint
dissenting opinion.9
7
Art. 47.2 Zákon č. 62/2003 Sb. o volbách do Evropského parlamentu a o změně některých
zákonů [European Parliament Election Act].
8
Supreme Administrative Court 24 June 2014, Vol 16/2014-69.
9
The Constitutional Court consists of 15 judges, but three judges were unable to take part in the
decision-making process for procedural reasons. The dissenting judges sharply disagreed with
the opinion of the majority and curiously all of them ‘upgraded’ to the Constitutional Court from
the Supreme Administrative Court. The three dissenters found the conclusions of the German
Constitutional Court more persuasive than those of the Czech majority on some accounts, especially
in their emphasis on proportionality and equal voting power. They remained unconvinced that the
majority of the Court or the legislature put forward strong and legitimate reasons that could justify a
limitation of an important constitutional principle. Moreover, the dissenting opinion correctly
identified some partial setbacks in the argumentation of the majority. Unfortunately, both the
majority and the dissenting trio did not elaborate in detail on the main practical puzzle of the
150 Hubert Smekal & Ladislav Vyhnánek EuConst 12 (2016)
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Election to the European Parliament
Elections to the European Parliament have, since their inception in 1979, been
characterised as ‘second-order elections’ which are of less importance than national
parliamentary contests. In second-order elections voters typically turn away from
government parties (especially from large parties). Big parties tend to lose votes
compared to previous national elections, and smaller parties, particularly anti-EU
parties, gain votes. This is especially pronounced in the middle of parliamentary
cycles. Moreover, turnout is lower than in the most important elections. National
parties control candidate selection and carry out election campaigns to the
European Parliament which are based predominantly on national political issues.
All of this hampers the legitimation of the European parliamentarians, because
seats at the European Parliament are not won in contests on European issues, but
rather serve as punishment for incumbent national governments.10
Regulation of elections to the European Parliament at the European level has
remained laconic since the first direct election in 1979. The fundamentals are to be
found in the primary law11
which are then elaborated on in the brief Act
concerning the election of representatives to the European Parliament by direct
universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom, amended
by Council decision No. 2002/772/EC, Euratom (henceforth: the Direct
Elections Act) of June and September 2002. The aspects not covered are
explicitly left to the discretion of member states (e.g. issues of electoral system and
thresholds, constituency boundaries, entitlement to vote, right to stand for
election etc.). The Direct Elections Act specifies that MEPs shall be elected on the
basis of proportional representation. Member states can set a minimum threshold
for the allocation of seats, provided that it does not exceed 5% of the votes cast.12
Concerning maximum legal thresholds, in its resolution from November 2012,
the European Parliament called on member states to establish appropriate and
case – relationship (let alone causal mechanism) between the legal threshold, fragmentation in the
European Parliament and its hampered functioning.
10
S. Hix and M. Marsh, ‘Punishment or Protest? Understanding European Parliament Elections’,
69 The Journal of Politics (2007) p. 495-510; D. Judge and D. Earnshaw, The European Parliament,
2nd
edn. (Palgrave 2008) p. 74-81.
11
Art. 14(3) TEU states that ‘[t]he members of the European Parliament shall be elected for a
term of five years by direct universal suffrage in a free and secret ballot’. Art. 20(2)(b) TFEU adds
that EU citizens living in another EU member state have the right to vote and to stand as candidates
in elections to the European Parliament under the same conditions as nationals (repeated also in Art.
39 EU Charter; further details provided in Art. 22(2) TEU and Directive 93/109/EC and its
amending Directive 2013/1/EU, which lay down detailed arrangements for the exercise of the right
to vote and stand as a candidate in elections to the European Parliament for citizens of the Union
residing in a member state of which they are not nationals).
12
Arts. 2 and 3 Direct Elections Act.
151Case note: The threshold for European elections in the Czech Republic
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proportionate minimum thresholds in their electoral law in order to safeguard the
functionality of Parliament, especially in the light of the changes introduced by the
Treaty of Lisbon and the changing relationship between the Parliament and
the Commission.13
The Parliament continues to push for electoral law reform and
calls for greater harmonisation of national laws governing European elections,
including the introduction of obligatory national/regional thresholds to
purportedly avoid further fragmentation of the Parliament.14
The degree of squeeze on the representation of small parties counts among the
most important aspects of an electoral system. If a political system sets too high a
barrier for new parties to enter parliament, it can lead to its staleness and also affect
the perception of fairness, and hence legitimacy, of the regime. On the other hand,
the more disproportional a system is, the less fragmented the party system.15
A legal threshold serves a step function, a sudden cut-off. The effective
threshold (T) closely relates to the district magnitude (M) which denotes the
number of seats in a district.16
The majority of countries use only a single district
in the European Parliament elections, therefore the formula for computation of
the effective threshold is quite widely applicable: T = 75% / (M + 1).17
This is
the case in the Czech Republic, where candidates battle for 21 seats and where the
effective threshold stands at approximately 3.4% (75% / (21 + 1)), which is
significantly lower than the legal threshold of 5%.
Exactly half of the 28 EU member states apply a legal threshold in the
European Parliament election. Most of them have set the threshold at 5%, three
states at 4%, Greece at 3% and Cyprus at 1.8%. It follows that the 5% legal
threshold looks like an ordinary instrument to prevent overcrowding of political
parties in representative bodies. In some cases, however, the introduction of the
13
Art. 4 European Parliament resolution of 22 November 2012 on the elections to the European
Parliament in 2014 (2012/2829(RSP)).
14
Item 1: Measures for a reform of the European Electoral Act, Working Document on the
Reform of the Electoral Law of the European Union, European Parliament, Committee on
Constitutional Affairs, 30 April 2015. See also the recent Art. 7 European Parliament resolution of
11 November 2015 on the reform of electoral law of the European Union (2015/2035(INL)).
15
C. Anckar, ‘Determinants of Disproportionality and Wasted Votes’, 16 Electoral Studies (1997)
p. 501 at p. 502.
16
To illustrate the problem, imagine a single district in which three seats are distributed. The
effective threshold to earn a seat will significantly exceed a legal threshold of e.g. 5 or even 10%.
Comparing the magnitude of the effective threshold with the legal threshold therefore tells us
whether the legal threshold has any effect at all.
17
See R. Taagepera, ‘Effective Magnitude and Effective Threshold’, 17 Electoral Studies (1998)
p. 393-404; R. Taagepera, ‘Nationwide threshold of representation’, 21 Electoral Studies (2002)
p. 383-401. It follows from the formula that a 5% legal threshold becomes relevant only when more
than 14 seats are available in a single constituency and a 3% legal threshold in single constituencies
with more than 24 seats.
152 Hubert Smekal & Ladislav Vyhnánek EuConst 12 (2016)
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legal threshold is only cosmetic, as the effective thresholds automatically prevent
small parties from succeeding in the election. Furthermore, some states (Belgium,
France, Ireland, Italy, Poland and the United Kingdom) subdivide their electoral
areas, which further heightens the effective threshold.
All in all, the European Parliament is not doing too badly in terms of the Gini
coefficient, used for measuring inequality. Gini stood at 0.27 for the 2009
European Parliament election seat allocation, which is less than in the case of the
German Bundesrat (0.35). On the other hand, the Bundestag comes in with a very
proportionate Gini of only about 0.04.18
However, Germany, with its very high
emphasis on voting power equality, is quite an exception.
Constitutional framework
In deciding the case, the Czech Constitutional Court (and accordingly the
referring Supreme Administrative Court) had to take into account the existing case
law concerning the constitutionality of legal thresholds. Legal thresholds have
been employed both in the election to the lower chamber of the Parliament and in
municipal elections and both of them have been challenged before the
Constitutional Court in the past.19
Even though the thresholds withstood the test of constitutionality each time,
the Constitutional Court’s decisions have set the framework for any further similar
case. First of all, the Constitutional Court made it clear that the threshold should
be considered a limitation (or deformation) of the principle of voting equality20
and as such must be justified by compelling reasons. This principle has two related
but separate dimensions. First of all, it may mean that every voter has the same
number of votes (equal voting rights). A second and more complex dimension is
related to the notion that every vote cast should have the same weight in relation to
the number of the gained mandates (equal voting power, referred to as
Erfolgswertgleicheit in the German Constitutional Court’s case law). Whereas the
first dimension of this principle should be – according to the Constitutional
Court – strictly observed, some concessions must be always made as regards the
second. In other words, the equal voting power principle is merely approximate;
many of its limitations stem from the very logic of election systems used in
18
R. Rose et al., ‘Evaluating competing criteria for allocating parliamentary seats’,
63 Mathematical Social Sciences (2011) p. 85-89.
19
Czech Constitutional Court 2 April 1997, Pl. ÚS 25/96 (parliamentary election) and Czech
Constitutional Court 25 August 2004, IV. ÚS 54/03 (municipal elections).
20
This principle can be derived from multiple provisions of the Czech constitutional order. For
the European Parliament case, Art. 21 paras. 3 and 4 (active and passive electoral rights) of the Czech
Charter of Fundamental Rights and Freedoms (henceforth Czech Charter) are arguably the most
relevant.
153Case note: The threshold for European elections in the Czech Republic
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representative democracies21
and some further limitations can be introduced
artificially.22
Given this, the Court had no trouble arguing that in the case of parliamentary
election, reasons that justify the limitation of the equal voting power principle can
be found. It stressed that the election should not only mirror the political opinions
of voters, but it must also serve as a basis for creating majorities capable of effective
decision-making. In other words, the principle of representative democracy allows
the incorporation of certain integration stimuli to the election mechanism which
prevent an ‘abundance’ of political parties in the representative body and the
subsequent inability to create a government which is able to perform its legislative
function. Full proportionality would lead to political fragmentation and
subsequent difficulties in forming stable governments. Therefore, endowing
electoral mechanisms with some integration stimuli such as a 5% threshold can be
justified. Already at this point some seeds of the later divergence between the
Czech and the German constitutional courts have emerged. The Czech
Constitutional Court held that the ability to adopt decisions effectively (in
abstracto, without the need to prove that such a risk is actually foreseeable) is a
legitimate and sufficiently specific aim and that as such it allows the legislature to
adopt measures which limit the equal voting power principle. The German
Constitutional Court, on the other hand, refused to do the same. It stressed that
even a 3% threshold cannot be justified by a mere (empirically unfounded)
concern that the decision-making process would be made more difficult by further
differentiation of the representative body. On the contrary, only an existing or
reliably foreseeable threat to the very functioning of the representative body can
outweigh the impairment of the voting equality.23
However, even the Czech
Court emphasised that the principle of voting equality cannot be deformed
beyond what is necessary to fulfil these goals and hinted that it would consider a
10% legal threshold unconstitutional.24
21
Still, we can find some interesting applications of this principle in comparative constitutional
law. In a famous line of case law, the US Supreme Court held that the ‘one man, one vote’ principle
protects even the weight of the vote. Therefore (though in a majoritarian system), the congressional
districts must contain roughly the same number of voters in order for their representation to be equal
(see for example Reynolds v Sims, 377 U.S. 533 (1964)). This later led to a massive wave of
redistricting. Even though this logic cannot be automatically transferred to a proportional system, it
illustrates that the equal voting power principle can be understood quite extensively.
22
Generally, the standard of review was quite deferential; the German Constitutional Court, on
the other hand, explicitly employed a strict standard of constitutional review (BVerfG 26 February
2014, 2 BvE 2/13 and others, para. 59 and BVerfG 9 November 2011, 2 BvE 4/10 and others,
para. 91).
23
See BVerfG 26 February 2014, 2 BvE 2/13 and others, paras. 60 and 61.
24
Czech Constitutional Court 24 January 2001, Pl. ÚS 42/2000.
154 Hubert Smekal & Ladislav Vyhnánek EuConst 12 (2016)
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The challenge, therefore, for the petitioners (and afterwards for the Supreme
Administrative Court) was to convince the Czech Constitutional Court that, in
the case of European Parliament elections, the reasons justifying the 5% legal
threshold are either too weak or absent. Accepting many of the petitioners’
arguments, the Supreme Administrative Court was convinced. It stressed that the
aforementioned Constitutional Court’s case law should not be hastily followed in
the present case, because the role of the European Parliament is different from the
role of national parliaments and consequently the need for integration stimuli
differs as well. The Supreme Administrative Court also pointed to the fact that
integration effect can be considered only from the point of view of the whole
institution, and not only from one of the individual seat clusters elected in
member states.25
In this regard, the Supreme Administrative Court said that the
idea of a national level legal threshold contributing to the integrity of the political
spectrum in the European Parliament is ‘rather illusory’, taking into account that
out of 751 MEPs only 21 are elected in the Czech Republic. Moreover, in a
democratic society, the legal threshold is not necessary to achieve the aim of
integration of political representation at the EU level because this role is
sufficiently fulfilled by the existence of the effective threshold.26
The Czech Constitutional Court’s Decision
Before the Constitutional Court turned its attention to the substantive problem at
hand, it had to answer one important meta-question: is the acceptability of the
threshold to be decided on the grounds of EU law or on the grounds of domestic
constitutional law? Although it ultimately came to the conclusion (or so it seems)
that the latter answer is correct, it also touched on some interesting points
concerning the effects that European law has on the national regulation of
European Parliament elections.
The Court considered the Czech European Parliament Election Act as
‘implementing’ EU law in the sense of Art. 51(1) of the EU Charter of
Fundamental Rights (henceforth the EU Charter), therefore the EU Charter and
the Czech constitutional order together form the referential criteria against which
the provision of the Czech European Parliament Election Act was measured.27
The EU Charter was then even used when debating justifiable restrictions on
25
The argument has also been elaborated by the German Court (see BVerfG 26 February 2014, 2
BvE 2/13 and others, para. 80-82).
26
See supra the discussion on the legal and effective threshold. The legal threshold in the Czech
Republic stands at 5%, while the effective threshold is slightly below 4%, which led the majority on
the Supreme Administrative Court to have doubts about the necessity for the legal threshold.
27
Czech Constitutional Court 19 May 2015, Pl. ÚS 14/14, para. 47.
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fundamental rights which are set in the EU Charter in greater detail than in the
Czech Charter.28
One may wonder then why the Constitutional Court has not
asked the Court of Justice a preliminary question in order to learn its perspectives
on the concepts of proportional representation and equal voting rights.
In any case, the Constitutional Court decided to answer the main question for
itself. That is, does the legislature sufficiently follow the (European) requirement
of electoral system proportionality and (European and national) respect for
fundamental rights when it introduces a legal threshold? European norms demand
the proportionality of national electoral systems while clarifying that a 5% legal
threshold is consistent with this requirement.29
In the Czech case, the legislature
fulfilled the EU requirement on the maximum legal threshold. However,
according to national standards on voting equality this may not have been enough,
given that the European Parliament is a different body than domestic
representative bodies.
We are aware that it is slightly unequal…
As stated above, the Constitutional Court had to evaluate the constitutionality of
the threshold through the prism of the principle of voting equality. The reasoning
of the Constitutional Court’s decision in this regard is quite long and at times
slightly eclectic. Still, the knowledge of the aforementioned previous case law
allows us to isolate the main line of argumentation leading to the ultimate
outcome – i.e. that the 5% threshold in European Parliament elections is
consistent with the constitution.
The previous case law of the Constitutional Court accepted legal thresholds in
parliamentary and municipal elections. This posed some constraints for the
constitutional judges. It was clear that the threshold in European Parliament
elections should also be considered a limitation (or deformation) of the principle
of voting equality according to the Czech Charter. On the other hand, should the
Court accept that there is a need for integration stimuli comparable to the case of
the Chamber of Deputies, this limitation would be justified and thus consistent
with the constitution.
It follows from the logic of proportionality analysis that the threshold could –
practically speaking – be declared unconstitutional only if one of the following
rationales was to be accepted by the Constitutional Court. First of all, it could be
argued that the role and position of the European Parliament are substantially
28
Art. 52(1) EU Charter.
29
Still, it remains debatable to what extent the system can be proportional e.g. in Malta with only
six seats in the European Parliament, or in Ireland with a mere 11 seats, but with four electoral
districts. In the context of these smaller states, many voters remain unrepresented as their votes go
in vain.
156 Hubert Smekal & Ladislav Vyhnánek EuConst 12 (2016)
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different from those of a national parliament in a parliamentary democracy, that it
therefore does not need artificial integration stimuli to perform its functions
properly and that the nature of these differences makes the integration stimuli
unnecessary or even illegitimate.30
Another possible argument is that even though
the European Parliament needs some integration stimuli, it is not effective to
introduce such stimuli at the national level (i.e. only for a single cluster of seats),
and even more impractical in smaller states where the effective and legal thresholds
are quite close to each other.
However, the Court rejected both of the above-mentioned counter-arguments.
It indeed utilised the basic argumentative structure contained in the previous case
law and then maintained that the legal threshold can be justified even in the case of
the European Parliament.
… but it can be justified.
Although the Czech Constitutional Court provided a standard description of the
differences of the European Parliament when compared to national parliaments in
European liberal democracies,31
it later downplayed their significance and made it
clear that it still considers the European Parliament to be (at least for the purposes
of this case) comparable to its national counterparts.32
The Court majority perceived the need for the creation of a functioning
European Parliament capable of generating clear majorities as the most important
element for justifying the restriction of equal voting power.33
The Court
noted that the Lisbon Treaty generally strengthened the European Parliament’s
position, so that it is possible to consider it a ‘real’ parliament. More specifically,
the Court stressed that clear and effective majorities are necessary for the
proper functioning of the European Parliament, particularly in the legislative
process and in approving and dismissing the Commission.34
Unlike the German
Constitutional Court, the Czech Constitutional Court put great emphasis on
the desired ‘ability of the European Parliament to achieve consensual
[sic] solutions’.35
The Czech Court also rejected the argument that the national threshold
cannot be compellingly justified because it had only a marginal impact
30
A simplistic argument along the lines of ‘a national parliament in a parliamentary system needs
to form an effective majority to support a government; the European Parliament does not support a
government stricto sensu, therefore integration stimuli are unnecessary’ could serve as an example.
31
Czech Constitutional Court 19 May 2015, Pl. ÚS 14/14, paras. 38-41.
32
Ibid., paras. 70-75.
33
Ibid., para. 67.
34
Ibid., paras. 70 and 71.
35
Ibid., para. 70.
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on the composition of the European Parliament as a whole.36
The Court majority
developed a highly pro-European solution when it called for a multilateral
obligation erga omnes37
leading to the solidary responsibility of all member
states. The states should not view themselves as a small portion of the
whole, whose internal regulation of the European Parliament election will
not influence others, because if every state did the same, then the effect would
not remain marginal.38
The Court even stated that striking down the
threshold based on the ‘marginal effect’ argument would make a member
state a ‘free rider’ that shifts the responsibility for the proper functioning of
the European Parliament to other member states.39
This wording is obviously
quite controversial since it implicitly labels 14 member states as such free-riders.
Again, it stands in contrast to the German Court. While it is true that even
the German judges were ready, in principle, to adopt European level
justifications, there was little room for their practical application. Even
though the Czech Constitutional Court accepted that the effective
threshold was – in the Czech case – quite close to the legal threshold, it
allegedly did not amount to a sufficient pro-integration factor. The Court
explained its position by referring to the psychological effects of the legal
threshold; its existence is widely known amongst voters (unlike the existence
and value of the effective threshold), and therefore has a pro-integration effect on
voter behavior.
The Court concluded that the legal threshold was a justifiable restriction
of voting equality, free electoral competition of political parties and of the
citizen’s right to equal access to elected functions, because it is a
proportionate measure capable of contributing to the main objective –
the effective representation of the will of citizens in the European Parliament.40
36
This point was one of those that sharply divided the Court. The dissenting judges voiced their
opinion that the limitation of voting equality can hardly be justified if the legal threshold does not
have a noticeable potential to contribute to the integration of the political spectrum in the European
Parliament. See Czech Constitutional Court 19 May 2015, Pl. ÚS 14/14, joint dissenting opinion,
para. 4.
37
As explicitly stated by the Czech Constitutional Court, ibid. para. 77.
38
Czech Constitutional Court 19 May 2015, Pl. ÚS 14/14, para. 77. The dissenters on the other
hand stated that the concern about the situation when more countries abolish the legal threshold
which supposedly has a disintegrating effect on the European Parliament is completely unfounded.
In 14 countries with the legal threshold, that threshold is generally so low or the effective threshold
so high that the legal threshold cannot have any effects.
39
The German Constitutional Court, interestingly, did just that. Cf, in this issue, B. Michel,
‘Thresholds for the European Parliament Elections in Germany Declared Unconstitutional Twice’,
12 EuConst (2016) p. 133, where it is labelled quite fittingly as ‘national solipsism’.
40
Ibid., para. 85.
158 Hubert Smekal & Ladislav Vyhnánek EuConst 12 (2016)
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Additional comments
Perhaps the greatest difference between the perspectives of the German and Czech
Constitutional Courts concerns the nature of European democracy. The Czech
Court perceives democratic processes at both the Union and national level as
mutually complementary and mutually determinant, with the European Union
representative democracy, personalised by the European Parliament, playing an
important role. It explicitly challenges the perspective of the German Court, which
places the decisive responsibility for European integration on the national parliament
while downplaying the democratic-legitimising role of the European Parliament.41
A general framework for analysing the rulings
Democracy in the European Union has been an extensively contested issue for a
long time, therefore the brief sketch introduced here only provides a basic
framework for understanding the two different perspectives concerning the
European Parliament’s place and role in the Union’s political system. In its long
and elaborate rulings, the German Court seems to adopt a traditional view of
democracy and representation according to which the democracy presupposes the
existence of a demos and where representation requires both the equality of voting
rights and equality of the weight of each vote when translating votes to seats in a
representative body.42
Such a perspective stands tightly in traditional categories of
people, democracy, state, constitution, identity and loyalty. These categories are
well established in constitutional jurisprudence and their boundaries can be
determined by using a long-tested apparatus. Difficulties occur when applying
these static (and statist) categories to a sui generis entity like the EU with new
modes and multiple levels of governance and overlapping authorities. Joseph
Weiler states that the basic condition of representative democracy is the ability of
citizens to throw the scoundrels out at elections.43
But in the EU dual executive
model, the Council and the Commission share executive responsibilities for the
formulation, initiation and oversight of implementation of policies, therefore one
can hardly authorise or throw out a government.44
41
Czech Constitutional Court 19 May 2015, Pl. ÚS 14/14, para. 74.
42
In addition to both rulings on legal thresholds, the ruling on the Lisbon Treaty also offers an
important hint as to the Court’s position (German Constitutional Court 30 June 2009, 2 BvE 2/08).
In the Lisbon judgment, the German Court criticised the severely imbalanced number of votes needed
to earn a seat in the European Parliament in the smallest and biggest states where the number of votes
can differ by as much as twelve times. Cf. Ch. Lord and J. Pollak, ‘Unequal but democratic? Equality
according to Karlsruhe’, 20 JEPP (2013) p. 190-205.
43
J. Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on
European Integration (Cambridge University Press 1999) p. 266.
44
Judge and Earnshaw, supra n. 10, p. 84.
159Case note: The threshold for European elections in the Czech Republic
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In this regard, the Czech Court seems to more readily accept that the EU does
not necessarily need to be viewed through a strict democratic lens and that
consequently the traditional constitutional principles (such as the equal voting
power principle) might be interpreted in a more relaxed manner in order to allow
some flexibility for the EU in organising its operations to better suit its specific
make-up. In this, the Czech Court showed greater openness towards the Union
and did not insist on the strict application of the traditional understandings of
state and democracy in the case of a supranational polity. For the Czech Court, the
functioning of European Parliament and considerations concerning the general
functioning of democracy at the EU level was not relevant ‘merely’ as a possible
legitimate aim within the framework of proportionality analysis. It also played a
second (less obvious but equally significant) role – as a part of an indivisible legal
and political system to which the Court owes its loyalty.
This approach seems to be in line with (and is perhaps an unconscious approval
of) some modern conceptions which have appeared, and which refute the classical
legitimation of the EU either through national parliaments or the European
Parliament. The most influential of these seem to be gathered around the concept
of ‘demoicracy’.45
Demoicracy denotes ‘a Union of peoples, understood both as
states and as citizens, who govern together but not as one’.46
Such a view has a
greater appreciation for the flux in which identities and loyalties overlap and
develop and for the related flexibility of concepts. Demoicracy does not require a
single demos, but rests on a polity composed of multiple demoi in which decisionmaking
should be based on a plurality of majorities of peoples.47
The European
Parliament represents only one legitimation source of many within the multilevel
EU. Legitimacy should not be viewed here as a zero sum game where either
national parliaments or the European Parliament serve as single sources of
European legitimacy.
Emphasising legal texts, side-lining practice
Both constitutional courts share a legalistic view of the European Parliament. They
focus on its legal position in the Treaties, and do not fully appreciate its practical
operation and position in the EU political system. This is especially true of the
Czech Constitutional Court. Even the German Constitutional Court, however,
despite its more careful analysis of the European Parliament’s nature and
functioning, seems to overlook recent political science literature on the power and
importance of the Parliament in the European polity.
45
Weiler, supra n. 43, p. 346-347.
46
K. Nicolaïdis, ‘European Demoicracy and Its Crisis’, 51 JCMS (2013) p. 351 at p. 353.
47
K. Nicolaïdis, ‘Germany as Europe: How the Constitutional Court unwittingly embraced EU
demoi-cracy’, 9 ICON (2011) p. 786 at p. 790.
160 Hubert Smekal & Ladislav Vyhnánek EuConst 12 (2016)
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Most of the relevant literature seems to support the notion that the
European Parliament has gradually acquired many features typical of traditional
national parliaments.48
First of all, it is an essential policy-maker. In one
of the preeminent books on the European Parliament, Simon Hix et al. point to
the fact that a large proportion of social and economic legislation is now adopted
at the European level. And there the European Parliament plays a key role in
policy-making because it amends and rejects laws, and influences the
make-up and political direction of the Commission. Moreover, the co-decision
procedure triggered a dramatic rise in interactions between the European
Parliament and the Council which increasingly deliberate informally
and contribute to technocratisation and depoliticisation of EU decision
making.49
Also, the role of political parties in the Parliament has been evolving
dynamically for decades. Voting in the Parliament is increasingly structured
around the European party position and parties have become more and more
coherent over time. However, with the Eastern enlargement when many new
national parties entered the Parliament, ideological heterogeneity has increased.
The legal threshold has the ability to reduce the number of parties in the
Parliament, therefore making deliberations within the European parties smoother.
National parties still play the key role in the cohesion of European parties:
members of Parliament coming from one national party delegation almost
always vote together. Big European parties tend to have greater levels of voting
cohesion than the smaller parties. In addition to the classical left-right
political conflicts which dominate voting, a second division is present –
speed and the nature of European integration.50
Links between national parties
and their MEPs are gradually becoming stronger, as national parties increasingly
coordinate their policy positions with MEPs and occasionally instruct them on
how to vote.51
Of course, taking these academic findings into account would not necessarily
determine any specific outcome in the respective cases. If the Czech Court were to
take the findings into consideration however, the persuasiveness of its reasoning
would definitely increase.
48
But one should not jump to conclusions too quickly. Judge and Earnshaw point out that the
European Parliament performs defining parliamentary functions of legitimation, linkage and
decision-making, but it is disputed whether the EU’s political system as such can be defined as a
parliamentary model: supra n. 10, p. 5-24.
49
T. Raunio, ‘The European Parliament’, in E. Jones et al. (eds.), The Oxford Handbook of the
European Union (Oxford University Press 2012) p. 365 at p. 368-369.
50
S. Hix et al., Democratic Politics in the European Parliament (Cambridge University Press 2007)
p. 3-10, 93-102 and 136-160.
51
Raunio, supra n. 49, p. 371.
161Case note: The threshold for European elections in the Czech Republic
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Conclusion
The judgments of the Czech and German constitutional courts on the
constitutionality of legal thresholds in the European Parliament elections
address many minor points (especially the Czech ruling) which could reasonably
be questioned and debated. But paying undue attention to every peculiar
detail, formulation and footnote would obscure our main point that the
divergence between the Czech and the German constitutional courts cannot be
explained in purely legalistic terms. After all, both courts adopted the same general
framework of analysis: the threshold limits the principle of equal voting power
and a three-step proportionality test shall be used to determine its
constitutionality. The explanation of their divergence thus has to (at least
partially) lie elsewhere.
Admittedly, the most obvious difference between the judgments here analysed
could be described as ‘legal’. The extensive and quite strict German conception of
the equal voting power principle differs from the more relaxed Czech
understanding. Still, it remains to be explained what caused the divergence at
this level.
The reasoning of the German judgments is perhaps more helpful in this regard
as it explicitly lists the reasons for the position of the Karlsruhe judges. Particularly,
the German Court emphasised that any state interference with the equality of
opportunities of political parties must be strictly scrutinised, because such
measures can be used by the respective majority in order to disadvantage its
opponents and preserve its power.
The nature of the European Parliament was another important issue. In this
regard, both courts admit that the European Parliament is not fully equivalent to
‘classical’ state parliaments. But only the German Constitutional Court
understood this as an argument that even further narrows the room for the
legislature to limit the Erfolgswertgleicheit principle (and that consequently makes
the proportionality test even stricter).
A further significant ingredient contributing to the practical strictness of the
proportionality test was the German Court’s reluctance to accept the legislature’s
desire to avert ‘purely theoretical’ and unsubstantiated dangers as a legitimate aim
for the limitation of equal voting power.52
These strict overtones of constitutional scrutiny are missing from the Czech
judgment. The majority of judges in Brno did not protect the Erfolgswertgleicheit
principle so rigorously; it was satisfied that the legal threshold is capable of
contributing to the effective representation of the will of citizens in the European
Parliament and to its proper functioning.
52
BVerfG 26 February 2014, 2 BvE 2/13 and others, paras. 50 and 60.
162 Hubert Smekal & Ladislav Vyhnánek EuConst 12 (2016)
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This may be partly attributed to the general message of the Czech
Constitutional Court’s previous case law that the equal voting power principle is
something that inevitably will and perhaps even should be limited in proportional
representation systems for the sake of their effectiveness. But this case law alone
could not have been the reason for the divergence – it merely created the
opportunity for the Czech Court to decide either way (whereas the German Court
was arguably more constrained by its previous case law). Thus, in order to
understand the divergence from the Czech point of view, one has to go beyond the
text of the judgment.
While the German court viewed the problem through the traditional lens of
democracy at the national level53
and the protection of political rights, the Czech
judges did not hesitate to adopt a ‘euro-friendly’ attitude that assigns greater
importance to the smooth functioning of the European Parliament and tries to
protect it even against barely foreseeable threats.
Consequently, even though both courts adopted the same general framework
of constitutional analysis and even worked with the same concepts, they filled the
framework and the concepts with different understanding and emphasis.
Metaphorically speaking, the judges worked with the same text but used very
different lenses to read it.
53
See, in this issue, B. Michel, ‘Thresholds for the European Parliament Elections in Germany
Declared Unconstitutional Twice’, 12 EuConst (2016) p. 133.
163Case note: The threshold for European elections in the Czech Republic
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