Challenges to Germany’s approval of the Direct Elections Act 2018 (introduction of a two percent threshold for European elections) are inadmissible

Press Release No. 23/2024 of 29 February 2024

Order of 6 February 2024 - 2 BvE 6/23, 2 BvR 994/23

In an order published today, the Second Senate of the Federal Constitutional Court dismissed an application filed by the political party Die PARTEI and a constitutional complaint lodged by the leader of that party. Both actions had challenged Germany’s act of approval for an amendment to the European Union’s Direct Elections Act – an amendment which obliges the EU member states to introduce legislation imposing a threshold for European Parliament elections of between two and five percent of the valid votes cast. In Germany, the act of approval has yet to enter into force and no statutory minimum threshold is currently in place for European elections.

The applicant (Die PARTEI) and the complainant (the party’s leader) allege that the introduction of a minimum threshold for elections to the European Parliament violates the right to equal opportunities for political parties and the right to equal suffrage. They regard the amendment of the Direct Elections Act as exceeding the EU’s competences and as contravening the principle of democracy guaranteed under Art. 79(3) of the Basic Law (Grundgesetz – GG), thereby interfering with the constitutional identity of the Federal Republic of Germany.

The applicant and the complainant failed to show how their constitutional rights are violated by the obligation to introduce an electoral threshold of at least two percent of the valid votes cast – an obligation that stems from Germany’s approval of the Direct Elections Act 2018. Their claim that the German act of approval enables an ultra vires act to take effect and violates German constitutional identity, which is beyond the reach of European integration, is not sufficiently substantiated.

The decision was taken unanimously pursuant to § 24 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).

Facts of the case:

Both sets of proceedings concern Germany’s act of approval for the Direct Elections Act 2018 (official title: Council Decision (EU, Euratom) 2018/994 of 13 July 2018 amending the Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976). Art. 3(2) of the Direct Elections Act 2018 provides for the introduction of a mandatory threshold of at least two percent of the valid votes cast, applicable to member states with constituencies comprising more than 35 seats and therefore including the Federal Republic of Germany.

To date, the Direct Elections Act 2018 has been approved by 25 of the 27 EU member states, with Germany and Spain yet to provide their approval. Germany’s act of approval has been adopted by the Bundestag and the Bundesrat, but – in line with established German state practice – the Federal President has temporarily suspended the certification and promulgation of the act on the request of the Federal Constitutional Court.

The applicant and the complainant contend that approving the Direct Elections Act 2018 violates both the applicant’s right to equal opportunities for political parties, enshrined in the principle of democracy, and the complainant’s right to equal suffrage. These challenges essentially rest on the following two arguments: firstly, Art. 3(2) of the Direct Elections Act 2018 violates the subsidiarity principle under Art. 5(3) of the Treaty on the European Union (TEU) and thus exceeds the EU’s competences; secondly, Art. 3(2) of the Direct Elections Act 2018 violates the principle of democracy guaranteed under Art. 79(3) of the Basic Law and the constitutional identity of the Federal Republic of Germany.

Key considerations of the Senate:

Both the application in Organstreit proceedings and the constitutional complaint are inadmissible.

I. It is true that the applicant and the complainant do have standing to seek preliminary legal protection in the present case because they are directly affected in their rights. On entering into force, the Direct Elections Act 2018 will oblige the Federal Republic of Germany to amend its domestic law so as to introduce a threshold for European Parliament elections of at least two percent of the valid votes cast. Due to the act of approval, the Federal Republic of Germany will then be bound by EU law to fulfil this obligation and will not be able to simply evade its responsibility. The fact that this obligation will only arise once the Direct Elections Act 2018 has entered into force changes nothing in this respect.

But the same does not apply insofar as Art. 3(2) of the Direct Elections Act 2018 grants leeway to the member states in allowing them to introduce thresholds of up to five percent of the valid votes cast, thus going beyond the minimum threshold. In this respect, approving the Direct Elections Act 2018 does not subject Germany to binding EU legislation.

II. The applicant and the complainant have nevertheless failed to sufficiently substantiate their claim as to a possible violation of their asserted constitutional rights.

1. If, as in the present case, challenges based on the ultra vires doctrine or on the concept of constitutional identity are lodged within the framework of Organstreit or constitutional complaint proceedings, it falls to the applicant or complainant to substantiate – in line with the applicable standards of constitutional review – how the challenged legal act contravenes the European integration agenda under Art. 23(1) of the Basic Law by exceeding the EU’s competences or by encroaching on German constitutional identity which is beyond the reach of European integration.

2. The applicant and the complainant have failed to substantiate how their constitutional rights are violated by the obligation to introduce a threshold of at least two percent of the valid votes cast – an obligation that stems from Germany’s approval of the Direct Elections Act 2018.

a) The act of approval to the Direct Elections Act 2018 is an instance of Germany’s participation in a legal act of the European Union (Art. 23(1) of the Basic Law).

Pursuant to Art. 23(1) first sentence of the Basic Law, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles as well as to the principle of subsidiarity. Limits to the openness of German statehood derive, in particular, from Germany’s constitutional identity as guaranteed by Art. 79(3) of the Basic Law. In Germany, the validity and application of EU law is only democratically legitimated if Germany’s constitutional identity – which is beyond the reach of both constitutional amendment and European integration – is guaranteed. Moreover, German state organs may not participate in the development, implementation, execution or operationalisation of EU measures that qualify as ultra vires acts on the grounds that they manifestly exceed the EU’s competences and result in major shifts in the division of competences.

b) In conducting an ultra vires review, the Federal Constitutional Court assesses whether an EU measure respects the European integration agenda set out in the act of approval to the European treaties. A measure is only deemed to be ultra vires if the European Union is found to have exceeded its competences in a sufficiently qualified manner: Only then can EU measures be described as imposing political authority on citizens which they are unable to avoid and which they are incapable of influencing either in terms of the people in power or the substantive issues.

In conducting a review on the basis of constitutional identity (identity review), the Federal Constitutional Court examines whether German constitutional identity – which pursuant to Arts. 1, 20 and 79 of the Basic Law is guaranteed and beyond the reach of European integration – is respected. This involves examining whether an EU measure affects the principles declared inviolable by Art. 79(3) of the Basic Law. Both the ultra vires review and the identity review must be conducted with restraint and in a manner open to European law.

c) The applicant and the complainant assert a violation of the right to equal opportunities for political parties and the right to equal suffrage enshrined in Art. 21(1) and Art. 3(1) of the Basic Law. As such, the applicant and the complainant correctly assume that the statutory provisions setting out minimum thresholds for European Parliament elections restrict the principle of equal opportunities for political parties and the principle of equal suffrage and that such provisions require justification, for instance, with respect to securing Parliament’s capacity to act. By contrast, the applicant and the complainant fail to specify how the Direct Elections Act 2018, as approved by the Bundestag and the Bundesrat, might violate the division of competences of the European Union in a sufficiently qualified manner or encroach on German constitutional identity which is beyond the reach of constitutional amendment and European integration. Yet this would be necessary to substantiate the claim that the introduction of the minimum threshold restricts the rights of the applicant and the complainant in a manner that cannot be justified under constitutional law.

aa) Based on the submissions made by the applicant and the complainant, there is no indication of a violation of the rules governing the division of competences between the European Union and its member states.

(1) Insofar as the applicant and the complainant contend that the Direct Elections Act 2018 transfers sovereign powers in a manner that is inherently incompatible with the principle of subsidiarity under Art. 23(1) first sentence of the Basic Law, they fail to recognise that the Direct Elections Act 2018 does not transfer any sovereign powers. Rather, the Direct Elections Act 2018 rests on the EU’s competence to harmonise the election procedure for European Parliament elections, as enshrined in Art. 223(1) of the Treaty on the Functioning of the European Union (TFEU).

(2) The applicant and the complainant likewise fail to clearly explain how the subsidiarity principle of Art. 5(1) second sentence and Art. 5(3) TEU is capable of imposing limits on the exercise of competences under Art. 223(1) TFEU. Pursuant to Art. 223(1) TFEU, the European Parliament is authorised to adopt provisions necessary for the election of its members in accordance with a uniform procedure in all member states. A legal act adopted on the basis of Art. 223(1) TFEU may only enter into force if all member states have approved it in line with their respective constitutional provisions. This means that the member states enjoy particular protection in terms of their decision-making leeway. Against this backdrop, there is no explanation of the extent to which room should remain for applying the subsidiarity principle in a way that could invalidate the binding obligation to introduce a minimum threshold, nor is this otherwise ascertainable.

bb) Likewise, the applicant and the complainant fail to sufficiently substantiate their claim that the legislator, by approving Art. 3 of the Direct Elections Act 2018, violated Germany’s constitutional identity which, as guaranteed by Art. 79(3) of the Basic Law, is beyond the reach of constitutional amendment and European integration.

(1) To begin with, the applicant and the complainant do not even recognise that the applicable standard of review for examining the act of approval to the Direct Elections Act 2018 is Art. 23(1) in conjunction with Art. 79(3) of the Basic Law.

Pursuant to Art. 23(1) in conjunction with Art. 79(3) of the Basic Law, the principles enshrined in Arts. 1 and 20 of the Basic Law are beyond the reach of the legislator deciding on matters of European integration. Art. 79(3) of the Basic Law covers human dignity and the binding effect thereof on state authority; it guarantees the principles of federalism, democracy and the rule of law; and it covers the basic rights cited in Art. 1(3) of the Basic Law to the extent that they are indispensable for maintaining a state order in accordance with Art. 1(1) and (2) of the Basic Law. Ultimately, then, strict requirements must be satisfied in order to establish a violation of Art. 79(3) of the Basic Law. This provision ensures that the state recognises the fundamental values of the state order under the Basic Law and that it neither relinquishes them nor decides in favour of any principles to the contrary. Participation in European integration may not lead to the impairment or elimination of the principles that fall under the scope of Art. 79(3) of the Basic Law.

The applicant and the complainant fail to adequately consider this standard of review. They only briefly refer to Art. 79(3) of the Basic Law and, for the rest, base their argumentation on the principles developed in the Federal Constitutional Court’s case-law on the permissibility of a minimum threshold for European Parliament elections under the European Election Act ‒ an ordinary federal law that did not rest on EU law requirements. They overlook the fact that the approval of the Direct Elections Act 2018 constitutes an act of approval to an integration measure in accordance with § 3(1) and (2) of the Act on Responsibility with Regard to European Integration (Integrationsverantwortungsgesetz – IntVG) and thus, pursuant to Art. 23(1) in conjunction with Art. 79(3) of the Basic Law, is only subject to limited constitutional review.

(2) Given that the standard of review is Art. 23(1) in conjunction with Art. 79(3) of the Basic Law, it remains unclear from the submissions made by the applicant and the complainant to what extent the German legislator is supposedly prevented by German constitutional identity – and by the principle of democracy contained therein – from approving an EU law that introduces a threshold of at least two percent for European Parliament elections.

The continued existence of democratic legitimation at EU level is a prerequisite for Germany’s participation in European integration. It is decisive here that the European Union itself is committed to the principle of democracy, which is enshrined and given full shape in EU primary law – including with respect to basic electoral principles and the right to equal opportunities of political parties – and is also guaranteed under the European Convention on Human Rights. Under Art. 223(1) TFEU, the EU has the competence to regulate electoral law for European Parliament elections in conformity with the principles recognised in all member states. Generally, minimum thresholds are recognised as a complementary option when designing systems of proportional representation. When balancing the requirements of democratic equality with the need to secure the European Parliament’s capacity to work, the European legislator made use of a margin of appreciation and leeway to design. Based on the submissions made by the applicant and the complainant, there is no indication as to the legislator having exercised this discretion in a way that encroaches on Germany’s constitutional identity.

The European Parliament is vested with significant powers regarding the composition of the European Commission. As a co-legislator alongside the Council of the European Union, the European Parliament has equal rights of participation in lawmaking and in exercising budgetary competences. In order for these tasks to be exercised effectively, majorities with the capacity to act must be able to form. If splinter parties with one or two seats enter the European Parliament, this adds to parliamentary fragmentation and makes it more difficult to build majorities. Furthermore, the European Parliament is a highly heterogeneous entity, as are the parliamentary groups. This increases the need for coordination and compromise within the parliamentary groups themselves.

Even in view of the restrictions on the principle of equal opportunities of political parties and the principle of equal suffrage resulting from the introduction of a binding two percent threshold in all EU member states, the applicant and the complainant fail to explain why the European legislator should not be permitted to regard such a threshold as an adequate instrument for countering the risks to the European Parliament’s capacity to work. Bearing in mind that the aim of the minimum threshold is to harmonise democratic representation in the entire European Union, the applicant and the complainant have also failed to substantiate that the minimum threshold encroaches on German constitutional identity.