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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

Published online by Cambridge University Press:  11 April 2016

Hubert Smekal  and
Ladislav Vyhnánek
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Case Notes
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European Constitutional Law Review , Volume 12 , Issue 1 , May 2016 , pp. 148 - 163
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Copyright © The Authors 2016 

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Footnotes

*

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).

References

1 See Vyhnánek, L., ‘Judikatura v ústavním právu’, in M. Bobek and Z. Kühn (eds.), Judikatura a právní argumentace Case Law and Legal Reasoning (Auditorium 2012), p. 348Google Scholar.

2 Cf. mainly Czech Constitutional Court 8 March 2006, Pl. ÚS 50/04.

3 Czech Constitutional Court 31 January 2012, Pl. ÚS 5/12; see also Zbíral, R. ‘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. 1-18Google Scholar.

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, Michel, B., ‘Thresholds for the European Parliament Elections in Germany Declared Unconstitutional Twice’, 12 EuConst (2016) p. 133Google Scholar.

6 Czech Constitutional Court 19 May 2015, Pl. ÚS 14/14.

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 case – relationship (let alone causal mechanism) between the legal threshold, fragmentation in the European Parliament and its hampered functioning.

10 Hix, S. and Marsh, M., ‘Punishment or Protest? Understanding European Parliament Elections’, 69 The Journal of Politics (2007) p. 495-510CrossRefGoogle Scholar; Judge, D. and Earnshaw, D., The European Parliament, 2nd edn. (Palgrave 2008) p. 74-81CrossRefGoogle Scholar.

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.

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 Anckar, C., ‘Determinants of Disproportionality and Wasted Votes’, 16 Electoral Studies (1997) p. 501CrossRefGoogle Scholar 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 Taagepera, R., ‘Effective Magnitude and Effective Threshold’, 17 Electoral Studies (1998) p. 393-404Google Scholar; Taagepera, R., ‘Nationwide threshold of representation’, 21 Electoral Studies (2002) p. 383-401CrossRefGoogle Scholar. 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.

18 Rose, R. et al., ‘Evaluating competing criteria for allocating parliamentary seats’, 63 Mathematical Social Sciences (2011) p. 85-89CrossRefGoogle Scholar.

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.

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.

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.

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.

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.

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, Michel, B., ‘Thresholds for the European Parliament Elections in Germany Declared Unconstitutional Twice’, 12 EuConst (2016) p. 133Google Scholar, where it is labelled quite fittingly as ‘national solipsism’.

40 Ibid., para. 85.

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. Lord, Ch. and Pollak, J., ‘Unequal but democratic? Equality according to Karlsruhe’, 20 JEPP (2013) p. 190-205Google Scholar.

43 Weiler, J., The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (Cambridge University Press 1999) p. 266Google Scholar.

44 Judge and Earnshaw, supra n. 10, p. 84.

45 Weiler, supra n. 43, p. 346-347.

46 Nicolaïdis, K., ‘European Demoicracy and Its Crisis’, 51 JCMS (2013) p. 351Google Scholar at p. 353.

47 Nicolaïdis, K., ‘Germany as Europe: How the Constitutional Court unwittingly embraced EU demoi-cracy’, 9 ICON (2011) p. 786Google Scholar at p. 790.

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 Raunio, T., ‘The European Parliament’, in E. Jones et al. (eds.), The Oxford Handbook of the European Union (Oxford University Press 2012) p. 365Google Scholar at p. 368-369.

50 Hix, S. et al., Democratic Politics in the European Parliament (Cambridge University Press 2007) p. 3-10Google Scholar, 93-102 and 136-160.

51 Raunio, supra n. 49, p. 371.

52 BVerfG 26 February 2014, 2 BvE 2/13 and others, paras. 50 and 60.

53 See, in this issue, Michel, B., ‘Thresholds for the European Parliament Elections in Germany Declared Unconstitutional Twice’, 12 EuConst (2016) p. 133Google Scholar.