Introduction
With Decision No. 110/2015, the Italian Constitutional Court (hereafter, ‘the Constitutional Court’ or simply ‘the Court’) declared inadmissible a question of constitutionality related to the 4% threshold set down by Law No. 18/1979 (as amended by Law No. 10/2009) for the election of the 73 Members of the European Parliament attributed to Italy.
Together with the GermanFootnote 1 and CzechFootnote 2 constitutional judges, the Italian Constitutional Court is the third in an EU member state to be called to decide on the same issue. As opposed to the double declaration of unconstitutionality by the German Court, and the outright rejection by the Czech one, the Italian Court issued a decision of inadmissibility (sentenza di inammissibilità), without assessing the constitutionality of the 4% electoral threshold on its merits. Nevertheless, the case deserves attention from both European and domestic constitutional law perspectives, especially when read in conjunction with the other two decisions (and with those that will probably follow suit in the future).
This variety of approaches and answers to essentially similar questions serves to point out the plurality (and the richness) of the European composite legal order. National procedural laws, including rules granting access to the various national constitutional judges, play a role in creating differing levels of protection for the same rights and legal situations. With specific regard to the field of electoral rights (and to the constitutional review of electoral laws), a unique challenge arises in tackling the discipline of European elections: while they are inevitably affected by the steadily developing relationship between constitutional courts and the demands of European integration, elections are one of the most traditional expressions of popular sovereignty. Thus, courts are led to see parallels, to discover similarities, between elections for national legislatures and for the European Parliament.Footnote 3
This note will proceed as follows. First, I will present the original application as issued by the plaintiffs, with facts and background. Second, I will recap the Court’s reasoning in admitting a similar question related to the electoral law of the National Parliament. Third, I will illustrate how and attempt to explain why the Court underestimated the European relevance of the topics tackled in the case. In conclusion, I will show why the Court opted for the inadmissibility of the question, seen in light of the precedents.
The application issued by the plaintiffs
A group of Italian voters brought an application before the Tribunal of Venice for declaratory relief (azione di accertamento) of the violation of their right to vote, related to the 4% electoral threshold in European elections.
In particular, they claimed a twofold violation.
First, they challenged the national legislative provision introducing the 4% electoral threshold. Openly referring to the German cases, they held that provision as causing an unreasonable limitation of the equality of the right to vote under Article 48 of the Italian Constitution, together with a violation of the principles of equality, freedom and effectiveness of political participation, as set out in Articles 1 and 3.
Second, they contested the compatibility of Article 3 of the Direct Elections Act with EU primary law,Footnote 4 which introduces the possibility of electoral thresholds of up to 5%. According to their claim, the European Parliament is not properly designed to lend support to a government – as elected assemblies usually do under parliamentary forms of government present in some of the member states (and as is the case in Italy). Based on these grounds, the plaintiffs argued that the distortion in the transformation of votes into seats, entailed in the electoral threshold, is contrary to several provisions of the Treaties and the Charter of Fundamental Rights.Footnote 5
In the light of these two claims, they asked the Tribunal to either to submit a question on the constitutionality of the domestic provision to the Constitutional Court, or make a preliminary reference to the European Court of Justice on the interpretation of the relevant Treaty provisions and the validity of the Direct Elections Act.
The Tribunal of Venice accepted only the former solution, assuming that the case put before it was directly related only to the national provision introducing the 4% threshold, whereas the Direct Elections Act had the sole function of setting a limit to the discretion available to national legislators. The Tribunal did not answer the second request, leaving the decision as to whether or not to further develop this point to the Constitutional Court.
It must be emphasised from the outset that the plaintiffs were ‘simple’ voters, bringing before an ordinary Tribunal their general interest in the correctness of the electoral process and in the integrity of their (active) right to vote.Footnote 6 They intended to restore the latter by submitting an application for declaratory relief on the basis of a general interest to act qualified by Article 100 of the Code of civil procedure, that has residual character in cases of rights violation.Footnote 7 The action was clearly intended to affect only future votes, with a view to removing an ‘intolerable and irrational’ distortion in the national electoral discipline.
The specific kind of application submitted by the plaintiffs mirrored an identical action brought against the electoral law for the National Parliament that some months beforehand had led to a further question of constitutionality and, eventually, to the annulment of several of its provisions. The aim of the applicants was expressly directed at achieving an identical result with regard to the electoral threshold for European elections.Footnote 8 This is all the more evident since, on both occasions, the court cases were promoted by the same team of lawyers:Footnote 9 after having won the battle against electoral law for the National Parliament, they aimed to remove further bases of (alleged) distortion in the formation of representation, this time at the European level.
However, the will to replicate the procedural path followed on the previous occasion led to the overlooking of some important aspects. In particular, the case was not brought by someone with a particular and individual interest in challenging the results of a specific election, as – for instance – candidates who could not have been elected because of the exclusion of their list under the electoral threshold (as in the case before the Czech Constitutional Court). Furthermore, the action was not brought before the administrative judge, who is competent to adjudicate electoral complaints in European elections, according to Article 42 of the Law for the elections of Italian MEPs.Footnote 10
Elements of context: Decision no. 1/2014 as recent and close precedent
The similarities with the actions brought against the electoral law for the National Parliament require a certain illustration of that precedent, also because this might help to better understand the position taken by the Court in the present case.
Passed in 2005, after a parliamentary blitzkrieg by the majority supporting Berlusconi’s Government, the electoral law for the two Chambers of the National Parliament (Law No. 270/2005) immediately gave rise to huge criticism.Footnote 11 To cut a long story short, some points of that electoral discipline had been contested by the vast majority of the political parties which were, however, repeatedly unable to reach an agreement on change. In particular, the main controversial points were related to: (i) the automatic majority bonus (55% of the seats) allocated to the most voted-for coalition in the Chamber of Deputies, without any minimum threshold; (ii) a completely irrational system of multiple majority bonuses, conferred region by region, in the Senate; (iii) the impossibility of using any form of preferential vote to influence the order of election of the candidates, which was all the more problematic because the districts were very large (and so, the lists very long); (iv) the possibility of multiple candidatures, without any limit whatsoever, so that the most influential political leaders could stand as candidates in all the districts – and subsequently opt for one of them (so further influencing the replacement by the following candidates in the list).
Apart from the political objections that arose against the electoral law at that time in force, the vast majority of commentators also cast doubts on the compatibility with the Constitution regarding some of its aspects. Even the Constitutional Court, in decision Nos. 15 and 16/2008 (related to the admissibility of abrogative referendums on it), warned against ‘problematic aspects’ and ‘concrete possibilities’ of its unconstitutionality.Footnote 12
Reacting to the inertia of Parliament, ‘civil society’ used all the tools provided it by the Constitution. A first attempt for a partial modification via popular referendum failed in 2009, because the necessary turnout quorum of 50% was not reached.Footnote 13 A further attempt for a popular referendum aiming at a complete repeal of the same law was stopped by the Constitutional Court itself, on the grounds that repeal via popular referendum cannot automatically cause the re-expansion of the previous discipline (so called reviviscence),Footnote 14 so demonstrating a certain reluctance on the part of the Court – at least, at that time – to intervene in electoral matters.
As for the attempts to reach a declaration of unconstitutionality, the way of bringing the case before the Constitutional Court was actually far from being easy: following Article 66 of the Italian ConstitutionFootnote 15 only the Chambers of Parliament were entitled to assess the electoral results, excluding any judge (whether ordinary or administrative) from intervening in the application of the relevant rules.Footnote 16 This also entails their being precluded from accessing constitutional justice via the incidenter proceeding, in a field where they could represent the only possible channel to question the compatibility of the electoral law with the Constitution. In fact, the principaliter proceeding could not be pursued (because Regions can only claim violations of their competences and no other substantial infringements of the Constitution) and no other ways were conceivable, also because Italy lacks any form of direct access to the Constitutional court for individuals.Footnote 17
Thus, in this extremely complicated scenario, almost nine years after the entry into force of the electoral law (and three general elections having been subject to itFootnote 18), there was eventually a breakthrough: a decisive initiative was taken, bringing an action before the Court of Cassation, claiming for the issuing of a question of constitutionality on many points of the electoral law.
The key element of this unprecedented strategy – at least with regard to electoral law – was to issue a general application for declaratory relief of a violation of the constitutional right to vote (which, without asking for the modification of the electoral results or claiming damages, is still possible according to Article 100 of the Code of civil procedure). The claimed violation was identified as a consequence of several points of the electoral law in force at that time, leading to an exercise of the right to vote in contravention of constitutional principles, such as equality and the right to vote. The Court of Cassation, as the supreme ordinary judge, was competent to decide on that kind of application, and agreeing with the applicants, brought the case before the Constitutional Court.
The admissibility of the question before the Constitutional Court was problematic in many respects, in light of its consolidated jurisprudence: the difference has to be demonstrated between the ‘principal’ trial and the ‘constitutional’ one, in order not to deprive the latter of its necessary incidental nature; moreover, it has to be proved that the litigation at the basis of the principal judgment was not artificially created with the sole aim of raising a question of constitutionality, in order to avoid constituting an example of fictio litis.Footnote 19
Both these requirements were acknowledged by the Constitutional Court, which then accepted the examination of the question, demonstrating a dramatic change of attitude in taking on the electoral matter.Footnote 20
As for the difference of subject between the principal proceeding and the constitutional one, the Court considered the former as aiming at verifying the integrity of a constitutional right (the right to vote), which depended (without a perfect coincidence) on the latter, and focused on the interpretation of constitutional principles and the consequences for the compatibility of the electoral discipline with the Constitution. The existence of a margin for the principal judge to evaluate the consequences of the decision of the Constitutional Court and, on the basis of that, to clarify the doubt concerning the integrity of the right to vote has been considered as confirming the difference between the subject of the two trials.Footnote 21
With Decision No. 1/2014, the Court confirmed the doubt of the plaintiffs, declaring the unconstitutionality of the automatic majority bonus, the system of majority bonuses in the Senate and the restriction of the right to influence the choice among the candidates in the list. Indirectly, this decision also facilitated the adoption of a new electoral law, albeit only in reference to the Chamber of Deputies: a few weeks after the decision, Parliament finally started to discuss a draft reform, which was eventually approved as Law No. 52/2015.Footnote 22
Nevertheless, as far as concerns this note, namely the requirement for the admissibility of the question, the main line of reasoning of the Court in Decision No. 1/2014 was related to recognising the suitability of the action set down in Article 100 of the Code of civil procedure in constituting a proper instrument to constitute the basis for issuing an admissible question of constitutionality related to the interpretation of the electoral discipline, upon whose constitutionality the integrity of the right to vote depends.
In addition, the Court stressed the necessity of the integrity of the jurisdictional domain of constitutional justice, which cannot consider the existence of sectors of the legal order that might fall out of its reach (so called zone franche).Footnote 23 However, this part of the reasoning had a sort of ancillary role in the economy of the decision: the admissibility of the question had already been ascertained, and recalling the impossibility of the existence of any zona franca appeared as a way to underline the absurdity of the opposite conclusion.
The decision not to issue a preliminary reference in the present case. A missed opportunity?
Decision No. 1/2014 had an extraordinary resonance in the overall constitutional system and it also influenced the position of the Court in the present case.
Being called to decide on a further electoral law, the Court was at risk of being stuck between three uncomfortable alternatives: a new declaration of unconstitutionality (which would have further undermined the authority of the Parliament in such a crucial matter and given rise to accusations of hyper-activism of the Court); a rejection in this regard (that might have invited criticism against the Court from the opposite point of view); or a decision of inadmissibility (that might result in strengthening the idea of a separation between constitutional law and concrete functioning of the democratic processFootnote 24).
Before dealing with the question of constitutionality, the Court ruled out the possibility of issuing a preliminary reference to the European Court of Justice. In fact, as previously mentioned, a request in this sense was part of the claim introduced before the Tribunal of Venice, which did not provide for a proper answer to this claim.
It is worth remembering that the Italian Constitutional Court is not averse to being part of a wide judicial dialogue on European matters. In fact, after decades of factual ‘isolationism’, in the last few years it has accepted its role in the network of Article 267 TFEU and can be currently considered among those ‘consolidating’ their dialogue with the Court of Justice.Footnote 25
However, in the present case it limited its attention to the sole domestic norm and to its comparison with the Direct Elections Act.Footnote 26 In doing so, it was impossible to go further and to issue a preliminary reference: in this perspective neither Article 223 TFEU nor the Direct Elections Act leave any reasonable margin of interpretation to be clarified by the EU supreme judge. The former provision gives the Council (acting unanimously, in accordance with a special legislative procedure and after obtaining the consent of the European Parliament) two alternatives: either to adopt a uniform procedure in all member states or to introduce principles common to all member states for the election of the European Parliament. Following the second alternative, the Direct Elections Act leaves the decision to national legislators on both whether and how to set the minimum requirement to participate in the allocation of seats, providing only for a cap at 5% for the electoral thresholds, so as to avoid an excessive restriction of the access to representation.
In complying with this limit, the Italian legislator set the threshold at 4%.
Assuming this point of view, it is only and directly the provision contained in Law No. 18/1979, as amended in 2009, that can be seen as restricting the access to the European Parliament of those lists under the 4% requirements in the vote distribution. There is no doubt that the domestic norm (that is to say: the only one that the Constitutional Court is competent to scrutinise) was adopted in compliance with Article 223 TFEU and Article 3 of the Direct Elections Act. Consequently, there are no preliminary doubts on the interpretation of EU law and the case can be solved within the (domestic) boundaries of the jurisdiction of the Constitutional Court.
However, the Court did not give an answer with regard to the second request contained in the plaintiffs’ application, related to the possible contrast of the Direct Elections Act with the provisions of the Treaties and the Charter of Fundamental Rights.
The final aim of this second request was the issue of a reference for a preliminary ruling on the validity of the Direct Elections Act, asking the European Court of Justice to check the compatibility of a system of national electoral thresholds with the equality principle as enshrined in the Treaties and the Charter of Fundamental Rights.Footnote 27 Here it seems possible only to highlight the question in problematic terms. But it is probably not completely beyond reason to elaborate a little more on this claim: if the rationale of an electoral threshold is to avoid the representation of marginal parties and to contribute to the proper functioning of the Assembly,Footnote 28 it might be disputable that the specific system of 28 (possible and, if set) different thresholds based on national (or even regional) districts foreseen by Article 3 of the Direct Elections Act is fully compatible with this aim.Footnote 29
If the Constitutional Court did not want to enter this troublesome game directly, a milder solution would have been to issue an order to the applicant judge, asking him to consider the prior involvement of the Court of Justice with a preliminary reference on the validity of the Direct Elections Act. If, sooner or later, a judgeFootnote 30 ever decides to do so, it will be immediately evident how the Constitutional Court has missed the opportunity to be part of the game on account of issuing the present decision.
The declaration of inadmissibility: the necessity of distinction from Decision no. 1/2014
Immediately after having excluded the preliminary reference to the European Court of Justice, the Constitutional Court had to decide whether to treat the case similarly to or differently from the quoted precedent constituted by Decision No. 1/2014 on the electoral law for the National Parliament.
In fact there are, at least at first glance, many important commonalities between the two cases.
First, of course, as regards the electoral matter, and, specifically, the basic argument brought by the plaintiffs regarding a distortion of the right to vote perpetrated by the legislator in an unreasonable and unjustified way. Second, as regards the aim to affirm the need for full and (almost) direct access to constitutional justice in the field of the electoral matter, by means of the quoted declaratory action, and because of its peculiar relevance for the effectiveness of democratic principles.Footnote 31
Notwithstanding these multiple similarities, the Court ‘preferred’ to isolate the case of Decision No. 1/2014. Instead of replicating the same line of reasoning followed in that case, the Court developed its motivation mainly around the absence of a ‘zona franca’ with regard to European Parliamentary elections and related complaints. Without giving priority to the difference of subject between the principal trial and the constitutional one, as it did in the previous case, the Court focused mainly on the existence of a judge competent to assess the correctness of the electoral process for the European Parliament (and who, as stated, was not the one issuing the question of constitutionality).
In doing so, the Court reinterpreted the motivation given in Decision No. 1/2014, assuming as the principal line of reasoning something which was in fact merely an ancillary part of it. As shown before, referring to the impossibility of accepting the existence of a ‘no man’s land’ for constitutional justice, Decision No. 1/2014 employed an apagogic approach in order to strengthen the already-settled admissibility of the question. On the contrary, in the present case it was the main test leading to the dismissal of the case, not least because, unlike electoral complaints arising in national parliamentary elections, electoral complaints for European Parliamentary elections do have a competent judge for disputes involving the protection of individuals’ rights.
Perhaps the idea behind this decision was to avoid an uncontrollable expansion of the precedent constituted by Decision No. 1/2014, which was probably (and somehow necessarily) a little too ‘generous’ in assessing admissibility.Footnote 32 In the view of the Court, the decision that led to the annulment of the electoral discipline for the National Parliament after multiple applications had to be considered as being too peculiar, too unique, too ‘historical’ to constitute a precedent capable of general application. Its speciality derived indeed from the uniqueness of the popular sovereignty and from the specific way in which it is shaped by electoral law in order to define the composition of legislative assemblies representing the sovereign people.Footnote 33
Nevertheless, these more general considerations remained in the background and the Court elaborated a distinction on the basis of mere procedural arguments, re-establishing – I would say – the normality of constitutional justice, that comes into play in fields in which a judge who is competent for the matter does always exist, and who is able, if necessary, to issue a question of constitutionality on it.
Conclusions
The judgment at the heart of this paper may leave the reader somewhat dissatisfied. The Constitutional Court summarily dismissed a question of constitutionality on procedural grounds, even though its topic was of extraordinary relevance both to Italy and, more broadly, to the EU. Hence, it did not include any consideration of the compatibility of either the existing 4% electoral clause or of any other restrictions on representation in the European Parliament with the Constitution and the principles of Italian fundamental law. Finally, it dismissed the possibility of a preliminary reference (even after having mentioned this as an option) and did not even consider referring the question back to the Tribunal of Venice, or of asking for guidance from the European Court of Justice on the validity of the Direct Elections Act. In doing so, the Court failed to outline its own take on the role of the European Parliament in the EU constitutional framework, neither adhering to nor contradicting what the German Constitutional Court stated. We see this as a twofold missed opportunity: one way or the other, the Court could have shown some interest in Europe in its decision, should have shown some actual willingness to perform its role in helping shape the composite constitutional order of the EU.
With regard to the decision of inadmissibility, the Court is not entirely to blame: the lacunae in the original action brought before the Tribunal of Venice were so conspicuous that one can hardly imagine a different outcome. The applicants’ tenuous standing and the vagueness of their claims could not elicit much more of an answer than that given by the Constitutional Court.
If anything, it must be stressed that the Court re-interpreted its own precedent, giving priority to the ‘zona franca’ requirement (which was clearly missing in the present case) instead of replicating what it had said in admitting the question from which Decision No. 1/2014 originated. Nonetheless, the Court could have addressed the merits of the case, even with an obiter dictum alongside the main line of the motivation: a mere reference to EU competence to foresee such a clause (thus clarifying that there were no margins for a decision of unconstitutionality) or, if need be, a warning to the legislator. After all, it had already done so with regard to the law applying to general elections in the 2008 decision, six years before the annulment of the relevant parts of the law. In a sense, the Court could have made better use of the case presented.
In conclusion, Decision No. 110/2015 has to be seen in the light of a comprehensive understanding of the Italian constitutional framework, the ‘shock’ of seeing the electoral law for the National Parliament annulled, all while weathering the transition from the ‘Berlusconi era’. It seems that the Court ‘used’ this decision more to fine-tune the impact of the previous decision than to actually take a position on the electoral threshold for European Parliament elections. The Court here seems to have reaffirmed the influence of precedent on its reasoning, and to have attempted to define the limits of its influence on electoral legislation and, more generally, to reestablish its position within the constitutional system. With the solution of inadmissibility, the Court probably aimed to make the use of precedent seem more palatable to the emerging political actors, and may have considered it prudent to maintain its distance from the realm of politics.
