On Tuesday, the EU Parliament voted on a new EU-wide electoral law. Unlike the previous three attempts (1998, 2011 and 2018), this time it was possible to reach agreement on the introduction of transnational lists and a more harmonized European electoral law. The EU Parliament has launched a reform to finally hold a single EU election out of 27 separate elections with different rules.
Stefan Brocza is an expert in European law and international relations. – © private
After a debate on Monday – in which, incidentally, only Roman Haider of the FPÖ spoke out among the 19 Austrian MEPs – a legislative initiative report was approved on Tuesday. Its aim is to review the regulations for EU elections, which take place every five years. The proposal passed by 323 votes to 262, with 48 abstentions, and the accompanying resolution by 331 votes to 257, with 52 abstentions – narrower than expected.
The EU Parliament proposes a two-vote system: as before, one vote for the election of MEPs and – again – a second for a newly created EU-wide constituency in which 28 seats in the EU Parliament must be allocated. Incidentally, for these 28 almost additional seats, neither a Member State has to do without MEPs, nor does it increase the total number of seats to 751 – these are seats that were left vacant as a result of Brexit.
It is recalled that the departure of the United Kingdom left 73 deputies free. 27 of them were distributed among the former EU countries in order to strengthen the relationship between small, medium and large EU members. This is how Austria got another seat in the EU Parliament. As is known, this was taken over by Green Thomas Waitz. Of the remaining 46 free seats, 28 will now be allocated through this new unified EU constituency. 18 seats would remain vacant. They serve as a kind of “silent reserve” for possible EU enlargement. Because the new member states would also need seats in the EU Parliament, and the big redistribution of seats would start again.
Transnational electoral lists
In order to create a form of geographical balance in the transnational electoral lists for these 28 terms, EU member states must be divided into three groups according to their population. Austria would fall into the middle group of those countries with a population of between 6.9 and 19.3 million. Candidates from these three groups of states must then be proportionally represented on these lists. It should be possible for European electoral units, such as national party alliances or national associations of European voters or parties, to present such EU-wide candidate lists.
But the geographical balance of these transnational electoral lists at EU level is not only ensured. In this way, the EU Parliament would also like to take action against the gender gap that still exists in its ranks. Because despite the general improvement in gender parity in the last elections of 2019, not a single woman was elected to the European Parliament in some EU countries. Thus, Parliament proposes binding lists based on the zip system (ie alternately female and male candidates) or quotas. At the same time, the rights of non-binary people must not be violated. How this will actually be implemented remains a bit unclear after the current proposal. But the planned zipper system alone will certainly provide enough material for political discussion.
more unification
In order to make voting more consistent across the EU, it is also proposed that:
– Europe Day (9 May) should function as an EU-wide election day in the future. This would end the previous practice, whereby elections to the EU Parliament take place on different days – according to national customs. In the future, the aim is to go to the polls evenly across the EU in one day. For Austria, that would mean saying goodbye to the traditional Sunday election.
– A binding passive right to vote for all Europeans aged 18 and over. Here, too, there would be a harmonization of previously different national rules.
– A mandatory threshold of 3.5 percent for constituencies with at least 60 seats. Only Germany, France and Italy have at least 60 seats. However, as France and Italy already face these obstacles or grant their mandates in more than one constituency, this proposal only affects Germany in reality. There, as is well known, the existing national electoral clause was lifted by the Federal Constitutional Court in the run-up to the last European elections. As a result, several small and fun parties managed to get into the European Parliament. However, the Karlsruhe court decision explicitly allows for the possibility of a blocking clause through EU regulation. This should remove a central argument from the political discussion in Germany about the compatibility of current proposals with the German Basic Law.
– The proposal establishes equal access to elections for all, including people with disabilities, and the introduction of postal voting across the EU. In fact, until now, this instrument has not been provided for in 13 EU Member States.
– Finally, the proposal reiterates the right of citizens to elect the President of the EU Commission according to the Lead Candidate system through EU-wide lists. A demand that was already foreseen in a similar way – but without the instrument of transnational lists – in the proposed electoral change in 2018.
bureaucratic precautions
To comply with the procedure, a new European Electoral Authority must be created and a uniform and common EU-wide voter register created. The latter is intended, in particular, to prevent the possibility of voting twice in different Member States. In the post-report of the last election, it was learned that this possibility exists repeatedly and is also used. For example, the editor of a well-known German weekly newspaper, who boasted that he had voted in Germany and Italy, attracted special media attention.
What sounds technical and bureaucratic here goes to the heart of the political question. After all, this is one of the most difficult issues of all, because the proposed electoral law massively interferes with national regulations. EU law itself regulates only a few framework conditions that apply to all states. Since 1979, members of the European Parliament have been directly elected by general, direct, free and secret ballot.
Since 2004, all EU Member States have also had to apply the principle of proportional representation. They can also set a minimum threshold of up to five percent of votes cast. If they do that, how high is the threshold – this is regulated in national election laws. Likewise, if there are one or more constituencies and if voting takes place on a Sunday or the Thursday before.
The requirement to determine the Chairperson of the EU Commission through a system of leading candidates on transnational electoral lists for the European Parliament also massively encroaches on the political rights of EU member states. After all, they are still of the opinion that they still decide in the European Council who will be proposed for this post to the EU Parliament for election. A look back at the latest decision to appoint Ursula von der Leyen as President of the Commission shows that this corresponds to political reality. As is known, this was not found in any of the electoral lists. The top candidate system so vehemently demanded by the EU Parliament was also ignored in 2019.
Next steps
According to Article 233 of the Treaty on the Functioning of the European Union, Parliament’s legislative initiative would have to be unanimously approved by the Council (even if a salmon-coloured Austrian quality newspaper announced the opposite and proudly announced: ” 20 out of 27 Member States must agree to the reform”). It would then be returned to Parliament for approval, after which it would have to be approved by all Member States in accordance with their respective constitutional laws. Negotiations with the Council will start once the EU Member States have agreed their position. The extent to which this is realistically compatible with the EU Parliament’s announcement that all proposed changes must be implemented in time for the 2024 European elections seems more than questionable. Because even the changes and adjustments started in 2018 have not yet been fully implemented and take effect.