German Court Declares 3% Election Threshold Unconstitutional

After the recent decision to refer ruling on the legality of the European Central Bank’s outright monetary transaction program (OMT) to the European level, Germany’s Constitutional Court has again made a decision with direct repercussions for one of the European Union’s central institutions, its Parliament. Liam Fitzgerald

The court has rules against 3% threshold in Germany for European elections.

The court has rules against the 3% threshold in Germany for European elections.

The question was whether or not the German election threshold of 3% for European elections is legal. The court decided on Wednesday that this was not the case. Nineteen smaller German political parties had filed a suit, stating that the threshold made it unnecessarily and illegally difficult to find candidates and gain financial support. The argument goes along the following lines: a small party always has difficulties to garner support, but the 3%-rule would have made it near impossible to enter the European Parliament.

Amongst the parties suing were the highly EU-critical Alternative für Deutschland (Alternative for Germany), the extreme right-wing NPD, and the Pirate Party. In 2011, the court had already decided that the then valid threshold of 5% was illegal, as it broached the principle that every vote has to be treated equally. Last summer, German legislators implemented the rules revoked by the Constitutional judges now. Even before then, there were doubts about the chances of the new rules. A Ministry of the Interior document revealed that the federal government, after the court’s 2011 decision, thought any threshold would be difficult to defend. After all, one of the reasons stated in the ruling against the 5%-rule was that small German parties entering the European Parliament would be no harm to how the EP works. With so many diverse national parties represented, a few more German ones could hardly make any difference. This argument basically not only invalidates a hurdle of 5%, but every hurdle. Consequently, it also played a prominent role in this most recent decision on the subject.

Nonetheless, the larger German parties, CDU/CSU, SPD, Greens, and FDP, agreed to legislate for the three percent rule now made invalid. They did not share the belief that small and very small party representation in the EP would not do any damage to that body’s work. Of course, they also feared that dropping the threshold would harm their own chances of sending a large number of MEPs to Strasbourg. Once more, the court has however proved it often holds different views to those expressed in Berlin. The established parties now once again fear that parliamentary stability is in danger. On the other hand, the winners of Wednesday’s ruling are rejoicing. Not only can they now look forward to partaking in the elections, they can also reasonably expect some of their candidates to actually win a lucrative seat with high potential of public awareness. With domestic difficulties due to remaining thresholds for national and state elections still in place, entering the European Parliament is a highly welcome chance.

As the European Parliament works now, the arguments put forward by both the court and the suing parties are valid. Nonetheless, there is danger in this decision. On the one hand, it gives often very radical parties a forum to articulate their views in public. While this is one of the most basic rights in any democracy, at least one of the parties involved, the NPD, is under serious pressure due to a program many in Germany believe to be unconstitutional. The other point is that, in the current political and economic situation, many eurosceptic parties are gaining momentum. And numerous of the small German parties are now looking forward to entering the EP in Strasbourg are just that, eurosceptic or outright opponents of the European Union. Therefore, though the small numbers do not necessarily make it any more difficult for Europe’s parliamentarians to do their job, the very fact that eurosceptic parties, now also numerous German ones, can expect to win more seats in this year’s election poses a threat to the European project in the long term.

For now, it is arguable that the decision of Germany’s Constitutional Court is right in that it strengthens the principle that every vote must be treated equally and all political parties must be given equal chances to voice their concerns. This is especially so as it does, indeed, seem unlikely that a handful of new parties represented with one or two MEPs can seriously threaten the EP’s work. When we finally reach a stage in which the European Union is truly democratized and the European Parliament in turn gains far more importance, national voting rules will need to be translated into one single European voting regulation. At this juncture it will be necessary to review thresholds. The answer now must be for the established parties to find the right arguments to counter any extremist views that might come to be represented in the Parliament elected in May. After all, this is how democracy works. Opinions have the right to be voiced, and arguments must be the basis of decisions. So, the main task will be for the new MEPs to counter destructive extremist views in parliamentary debate. If this can be done, Parliament may just find that such an approach will give it far more authority than any voting procedures and legislations can.

Image “Bundesverfassungsgericht, Karlsruhe” courtesy to Al Fed via, released under Creative Commons Attribution Non Commercial No Derivs 2.0.

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