Key facts of the case:
In May 2014, elections to the European Parliament were held in the Czech Republic. In § 47 (2) of the Act No. 62/2003 Coll. on Elections to the European Parliament (Zákon o volbách do Evropského parlamentu) a 5% electoral threshold is set. The plaintiffs (among them a political party that did not succeed due to the electoral threshold) contested the legality of the elections before the Supreme Administrative Court. During the decision-making process, the Supreme Administrative Court found that the legality of the electoral threshold is a question that has to be decided by the Constitutional Court; therefore, they had the case transferred to the Constitutional Court.
The plaintiffs argued that the existence of the electoral threshold makes the right to vote unequal because the votes of minority parties’ voters are not taken into consideration in the conversion process. The diversity of European Parliament members is desirable and does not threaten the functioning of the EU Parliament because elected members of the EU Parliament associate in larger political groups.
The Constitutional Court argued that although there are binding documents of EU law regulating elections to the EU Parliament, every Member State regulates the details of the election process itself. The electoral threshold is established in 14 out of 28 Member States. The electoral threshold guarantees the compatibility of elected members of the EU Parliament with some of the political groups represented in the European Parliament.
Outcome of the case:
The Constitutional Court decided that the 5% electoral threshold is in conformity with national and EU law. The European Parliament is an EU institution with strong powers and it is desirable to guarantee the compatibility of elected members of the EU Parliament with some of the political groups represented by the electoral threshold. Using the electoral threshold in order to ensure the smooth functioning of the European Parliament is a breach of neither national nor EU law, since a proportional representation system is in place.
47. Since adopting national law to implement the Act, including filling in the space given to national lawmaking, means ‘implementing’ EU law in the terms of Article 51 (1) of the Charter, the court may consider the Charter while judging the constitutionality of these legal provisions – according to their character – by indirect or direct application in case the Charter provides a higher level of protection. This concerns the right of EU citizens to vote and to stand as a candidate in elections to the European Parliament (Article 39 of the Charter). On the other hand, principles, sometimes phrased as ‘rights’, are intended to apply to legislative and executive EU institutions and Member States and can only be judicially recognisable in the interpretation of and legality rulings on acts that have been adopted by those institutions (Article 52 (5) of the Charter). This applies to the rule that political parties on the EU level contribute to the expression of EU citizens’ political will (Article 12 (2) of the Charter, Article 10 (4) of the Treaty on European Union) and to the right of citizens to participate in the democratic life of the EU (Article 10 (3) of the Treaty on European Union). The provision ensuring equality before the law (Article 20 of the Charter) guarantees equal treatment access to the rights that are provided by EU law and observed by Member States and belongs to the general principles of law: ‘They do not however give rise to direct claims for positive action by EU institutions or Member States’ authorities. This is consistent both with case law of the Court of Justice ... and with the approach of the Member States' constitutional systems to “principles”. [quoted from the Explanations Relating to the Charter of Fundamental Rights (2007/C 303/02), Article 52, Paragraph 5] Limitation of fundamental rights guaranteed by the Charter is acceptable only under more detailed conditions than those that are requested by Article 4 of the Charter of Fundamental Rights and Basic Freedoms: the limitation must be provided for by law and respect the essence of those rights and freedoms and ‘subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others’ (Article 52 (1) of the Charter).
50. In comparison we can state that of the 28 EU Member States an electoral threshold exists in 14 countries (Czech Republic, France, Croatia, Italy, Cyprus, Lithuania, Latvia, Hungary, Poland, Austria, Romania, Greece, Slovakia and Sweden). In some of those states the electoral threshold is set below 5%: in Italy, Austria and Sweden it is 4%, in Greece 3%, and in Cyprus 1.8%. (http://www.europarl.europa.eu/resources/library/media/20140331RES41123/20140331RES41123.pdf).
The Federal Constitutional Court in Germany, which has the highest number of seats (96), had cancelled the 5%, and later 3%, electoral threshold (BVerfG 2 BvC 4/10; BvE 2/13). We agree with the plaintiff that in the case of smaller Member States, where the electoral threshold is more or less identical to the informal electoral threshold, it has only a psychological impact on the voter. On the other hand, in some other states a large number of smaller constituencies were introduced, which in fact led to a rise in the informal electoral threshold. This proves that, despite the use of a low electoral threshold, domestic incentives on integration are very important for those states. A larger number of constituencies are found in Belgium (3), France (8), Ireland (4), Italy (5), Poland (13) and Great Britain (12). Member States that apply an electoral threshold and therefore emphasise integrating role of this artificial intervention in the equality of votes have 380 (out of 751) seats in the EU Parliament. A reduction of this share would have a disintegrating effect on the formation of political will in this representative body.
57. The Charter guarantees every EU citizen the right to vote for Members of the European Parliament in elections by direct universal suffrage in a free and secret ballot, under the same conditions as nationals of the given State (Article 39 of the Charter), but the Charter does not guarantee an equal share of representation in the election results based on the national election legislation that implements the Act in Member States. Non-discriminatory access to elections to the European Parliament is an exercise of the right of EU citizens to reside freely within the territory of the Member States (Article 45 (1) of the Charter). National legislation on elections to the European Parliament must be in accordance with the Constitution and with requirement of proportional representative system set by the Act.