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Reform of the electoral law of the EU

In “Constitutional Affairs - AFCO”

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For a brief overview of the key points of the adopted text and its significance for the citizen, please see the corresponding summary note.

Despite the possibility of developing a uniform electoral process enshrined in the Treaties since 1957, European elections are still governed for the most part by national laws. The legal basis for reforming the electoral procedure is enshrined in Article 223 of the Treaty on the Functioning of the European Union (TFEU). Parliament drafts a proposal and submits it to the Council. The Council adopts its decision by unanimity, after obtaining Parliament's consent. To give its consent, Parliament needs the majority of its component Members (absolute majority). In a second phase, Member States need to approve the electoral provisions in accordance with their respective constitutional requirements

On 5 February 2015, the European Parliament's Conference of Presidents authorised the drawing up of a legislative initiative report on the reform of the electoral law of the European Union, based on Article 223(1) TFEU.

On 11 November 2015, the European Parliament adopted a resolution based on the legislative initiative report prepared by the Constitutional Affairs committee (rapporteurs: Danuta Maria Hübner, EPP, Poland and Jo Leinen, S&D, Germany) on the amendment of the Act of 20 September 1976 concerning the election of the Members of the European Parliament by direct universal suffrage.

The legislative initiative proposes amendments to the EU electoral law with a view to increasing the democratic dimension of the European elections and the legitimacy of the Union decision-making process. The aim is to improve the citizens' participation in the election process and to bring the Members of the European Parliament closer to their voters, in particular the youngest ones.

The European Parliament proposed the following changes to the 1976 Electoral Act:

  1. Visibility of European political parties: Ballot papers used in the European elections should give equal visibility to the names and logos of national parties and the European political parties to which they are affiliated.
  2. Introduction of a deadline of 12 weeks before the elections for the nomination of candidates/establishment of lists at national level.
  3. Introduction of a mandatory threshold for bigger EU-countries, ranging between 3 % and 5 % for the allocation of seats in single constituency Member States and constituencies comprising more than 26 seats. The 2002 Council Decision, amending the 1976 Act, authorises Member States to establish thresholds of up to 5 %. Fourteen Member States have set such thresholds by law. Yet, in two decisions (2011 and 2014), the German Constitutional Court declared the country’s existing thresholds for EU elections (5 %, then 3 %) to be unconstitutional.
  4. Introduction of a right to vote in European elections for all EU citizens living outside the EU. To avoid double-voting (by people with more than one citizenship or by EU citizens living abroad), Parliament wants EU countries to exchange data on voters.
  5. Introduction of electronic and internet voting possibilities, as well as postal voting.
  6. Introduction of a common deadline of 12 weeks for the nomination of lead candidates by the European political parties: European elections should be fought with formally endorsed, EU-wide lead candidates ('Spitzenkandidaten') for the Commission presidency.
  7. Creation of a cross-border joint European constituency, in which lists are headed by each political family's nominee for the post of president of the Commission.

The proposal also provides for the European Parliament to be given the right to establish the electoral period for elections to the EP, after consulting the Council.

Certain national parliaments have expressed criticism of the EP proposals. Between 19 January and 18 February 2016, six chambers of four Members States submitted formal reasoned opinions amounting to eight votes. Five further chambers of four Member States submitted political contributions, which expressed criticism of alleged non-compliance with the principle of subsidiarity, or of over-stretching the legal basis on which the act is to be adopted. However, the threshold of 19 votes, representing one third of the votes allocated to national parliaments – as provided under Article 7(2) of Protocol no 2 TFEU, was not met. In a letter of 8 April 2016 to the national parliaments, the President of the European Parliament replied that the EP still preferred common principles for the election procedure rather than proposing a uniform procedure, and that the procedures require  approval by Member States in accordance with their respective constitutional requirements. 

On the side of the Council, the General Affairs Working Party discussed the European Parliament's legislative initiative during five successive Presidencies. Although delegations were able to reach agreement on a common approach to a number of provisions, several issues in the EP's proposal appeared to be unacceptable to delegations as a matter of principle and/or on legal grounds. These include the provisions on a joint constituency and 'Spitzenkandidaten'.

On its meeting on 14 December 2017, Committee on Constitutional Affairs adopted an oral question to the Council asking for explanation of the reasons for a blockade to the reform of European electoral law. Moreover, in its resolution of 7 February 2018 on the composition of the European Parliament, EP called on the Council to rapidly finalise the revision of the electoral law. 

On 7 June 2018, the Council has approved a draft decision amending the 1976 Electoral Act. It includes provisions on possibility of different voting methods and protection of personal data; penalisation of 'double voting' by national legislation; voting in third countries; possibility of the visibility of European political parties on ballot papers and 3 weeks deadline for submission of lists before election day. One of the key provisions of EP proposal on threshold was modified so that it would apply only to constituencies (including single-constituencies Member States) which comprise more than 35 seats, with a threshold of between 2 and 5%. That provision should be implemented by 2024 EU elections at the latest. Moreover, the Council couldn’t agree on establishment of joint constituency and lead candidates proposed by the Parliament. On 4 July 2018, the European Parliament gave its consent and consequently the Act was adopted by the Council on 13 July 2018.
The Electoral Act will enter into force after all Member States approve it in accordance with their respective constitutional requirements. According to the letter from COREPER II to Parliament and Commission, Member States were not able to ratify the text in time, the 2019 elections have been conducted according to rules currently in force.

References:

Further reading:

 Author: Kristina Grošek, Members' Research Service, legislative-train@europarl.europa.eu

As of 20/11/2019.