FIFTH SECTION

DECISION

Applications nos . 28811/12 and 50303/12 Guido STRACK against Germany and Peter RICHTER against Germany

The European Court of Human Rights ( Fifth Section ), sitting on 5 July 2016 as a Chamber composed of:

Khanlar Hajiyev , President, Angelika Nußberger , Erik Møse , André Potocki , Yonko Grozev , Síofra O ’ Leary , Carlo Ranzoni , judges, and Milan Blaško , Deputy S ection Registrar ,

Having regard to the above applications lodged on 9 May 2012 and 9 July 2012 respectively ,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are German nationals. The applicant in the first case, Mr Guido Strack , was born in 1964 and lives in Cologne. He is represented before the Court by Mr U. Fuchs , a lawyer practi s ing in Miesbach . The applicant in the second case, Mr Peter Richter, was born in 1985 and lives in Saarbrücken .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Background to the case

3. On 7 June 2009, elections f o r the members of the European Parliament were held. In a ccord ance with European Union l aw, this was done in all Member S tates by proportional representation , allowing a threshold of up to 5 % of votes cast (see the relevant provisions of European Union law, paragraph 15 below) . Germ any made use of this provision and set a 5 % threshold (see section 2 § 7 of the European Elections Act, Gesetz über die Wahl der Abgeordneten des Europäischen Parlaments aus der Bundesrepublik Deutschland , paragraph 9 below), as it had done ever since the first direct elections to the European Parliament in 1979 , meaning that a party which did not reach 5 % of the votes cast at national level would not be awarded any of the 99 German seats in the European Parliament . In 2009, other larger EU Member States like France, Poland, Romania and Italy had applied similar thresholds . In Germany, the threshold resulted in seven parties not being taken into account for seats , even though they would have won one or two seats had the thr eshold not existed. According to the applicant 10.8 % of the votes were thus “ wasted ”.

4. Both applicants were eligible to vote in the elections in question. After the Federal Parliament ( Bundestag ) dismissed their respective objection s to the result of the elections, they both filed electoral complaint s ( Wahlprüfungsbeschwerde n ) to the Federal Constitutional Court, asking for the election of the German MEPs in question to be invalidated and new elections to be held or, alternatively, f o r re-allocation of the seats foreseen for German MEPs according to the polling results, thereby not app lying any electoral threshold.

2. The Federal Constitutional Court ’ s ruling with regard to the first applicant ’ s complaint

5. On 9 November 2011 , the Federal Constitutional Court ruled in the first applicant ’ s and two other voters ’ cases that the threshold was unconstitutional and thus void (case file no. 2 BvC 4/10). Considering the narrow margin of appreciation, t he limitation on equality of votes ( Erfolgswertgleichheit ) and equal opportunities for political parties could not be justified by a legitimate a im under the German Basic Law. The functioning of the European Parliament was generally guaranteed by the transnational political groups and would not be endangered if the number of over 160 national parties represented were to rise .

6. However, the Federal Constitutional Court dismissed the first applicant ’ s request to repeat the polling . It held that the electoral error did not justify invalidating the election results. T he interest in maintaining the status quo of the representation of the people , the result of voting by the electorate which had confidence in the constitutionality of the European Elections Act , had to take priority over rectifying the electoral error. New elections in Germany would have had a disruptive impact with unforeseeable consequences on the ongoing work of the European Parliament, in partic ular on the cooperation of the m embers of that Parliament in political groups and committees. In contrast, the electoral error could not be deemed “ intolerable ” ( unerträglich ). It only concerned a minority of the German m embers of the European Parliament and did not cal l into question their legitimacy.

7. The Federal Constitutional Court decided not to order a re-allocation of seats either. It found that the threshold might have caused electors to vote strategically by either not givi ng their votes to small parties to avoid “wasting” them, or , vice versa , because the vote for a small party would be of no consequence . As a result, it was impossible to speculate on how the threshold had affected the elections as a whole.

3. The Federal Constitutional Court ’ s ruling as regard s the second applicant ’ s complaint

8. On 19 June 2012 the Federal Constitutional Court dismissed the second applicant ’ s electoral complaint as regards his request for new elections or, alternatively, for re ‑ allocation of seats disregarding the provisions on the 5% threshold. In its reasoning, it referred mainly to its decision in the first applicant ’ s case.

B. Relevant dome stic law and practice

9. At the time of the 2009 elections to the European Parliament section 2 § 7 of the European Elections Act provided as follows:

“Upon allocating the seats, only those electoral lists shall be considered which receive at least five per cent of the votes polled in the electoral territory.”

10. Section 3 § 1 of the European Elections Act reads:

“Electoral territory is the Federal Republic of Germany.”

11. Article 41 of the Basic law, as far as relevant, provides:

“ (1) Scrutiny of elections shall be the responsibility of the Bundestag. ...

(2) Complaints against such decisions of the Bundestag may be lodged with the Federal Constitutional Court.

...”

C. Relevant European Union law

12. Article 10 of the consolidated version of the Treaty on European Union, as fa r as relevant, in force since 1 December 2009, provides as follows:

“ 2. Citizens are directly represented at Union level in the European Parliament.

...

4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union. ”

13. Article 14 of the same treaty reads, as far as relevant:

“ 1. The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.

...”

14. Article 39 of the Charter of Fundamental Rights of the European Union, as far as relevant, provides as follows:

“ 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. ”

15. Council Decision of 25 June and 23 September 2002 ( 2002/772/EC, Euratom ) amended the “ Act concerning the election of the representatives of the European Parliament by direct universal suffrage ” (Direct Voting Act). Article 1 § 1 provides that, in each Member State, members of the European Parliament shall be elected on the basis of proportional representation, using the list system of single transferable vote.

Article 2A reads as follows :

“ Member States may set a minimum threshold for the allocation of seats. At national level this threshold may not exceed 5 per cent of votes cast. ”

COMPLAINTS

16. The applicants complained under Article 3 of Protocol No. 1 and Article 13 of the Convention that the Federal Constitutional Court neither invalidated the result of the 2009 elections of German MEPs to the European Parliament nor ordered the polling to be repeated, nor ordered a rectification of the seats allocated, thus rendering the applicants ’ electoral complaint ineffective.

THE LAW

A. Joinder of the applications

17. The Court considers that , in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

B. Alleged violation of Article 3 of Protocol No . 1 to the Convention

18. The applicants alleged that the imposition of an electoral threshold of 5% of votes cast in the election of German MEPs to the European Parliament interfered with “the free expression of the opinion of the people”. They claimed that the electoral regulation providing for the threshold, declared unconstitutional by the Federal Constitutional Court, could not justify the interference. The elections in question therefore should have been invalidated and new elections called or, at least, the results of the elections rectified.

19. The applicants relied on Article 3 of Protocol No. 1, which provides:

“ The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. ”

20. The Court, at the outset, reaffirms that Article 3 of Protocol No. 1 guarantees the individual right to vote ( Scoppola v. Italy (no. 3) [GC], no. 126/05 , §§ 81, 82, 22 May 2012 ).

21 . In Mathieu- Mohin and Clerfayt v. Belgium, (no. 9267/81, § 54, 2 March 1987) the Court held:

“Article 3 provides only for ‘ free ’ elections ‘ at reasonable intervals ’ , ‘ by secret ballot ’ and ‘ under conditions which will ensure the free expression of the opinion of the people ’ . ... it does not create any obligation to introduce a specific system such as proportional representation or majority voting with one or two ballots. Here too the Court recognizes that the Contracting States have a wide margin of appreciation, given that their legislation on the matter varies from place to place and from time to time ... It does not follow, however, that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. Thus no electoral system can eliminate "wasted votes".”

22. In Matthews v. the United Kingdom ([GC], no. 24833/94, §§ 40 ‑ 44 , ECHR 1999 ‑ I ) the Court held that Article 3 of Protocol No. 1 applies to the election of Members of the European Parliament in the Contracting States and that the European Parliament must be considered a legislature with in the meaning of Article 3 of Protocol No. 1 ( ibid. , §§ 52 and 54) . Given the manner in which the European Parliament is constituted – direct elections by universal suffrage – and the powers exercised by that parliament following successive amendments of the Treaty on European Union and the Treaty on the Functioning of the European Union, there is clearly no reason to alter this conclusion.

23. The Court has frequently held that the rights in Article 3 of Protocol No. 1 are not absolute. There is room for “implied limitations” and Contracting States must be given a wide margin of appreciation in this sphere (see among other authorities, Matthews , cited above, § 63). However, unlike Articles 8 to 11 of the Convention, Article 3 of Protocol No. 1 does not list specific “legitimate aims”. The Contracting States are therefore free to rely on an aim, provided that the compatibility of that aim with the principle of the rule of law and the general objectives of the Convention is proved in the particular circumstances of the case (see the principles laid down in Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109, ECHR 2008 and the case ‑ law therein).

24. An interference with a right under Article 3 of Protocol No. 1 will therefore constitute a violation unless it meets the requirements of lawfulness, it pursues a legitimate aim and it is proportionate ( Tănase v. Moldova [GC], no. 7/08, § 161, ECHR 2010 ).

25. Turning to the circumstances of the instant case, the Court observes that the Federal Constitutional Court found the 5% threshold to be contrary to the German Basic Law as it violated the principles of equality of votes and equal opportunities for political parties , and declared it null and void. However, in the interest of parliamentary stability , it did not invalidate the election results, and called neither for new elections of the German MEPs nor for the rectification of the election results (see paragraphs 5 ‑ 7 above).

26. The scope of the present applications is thus limited to the applicants ’ complaint that under Convention law the Federal Constitutional Court should either have ordered new elections for the remainder of the electoral period or, at least, have rectified the election results by replacing eight of the elected MEPs with the eight candidates of smaller parties which had failed to pass the 5% threshold. Nevertheless, the background to the Federal Constitutional Court ’ s decision – namely the application of thresholds of votes cast – may be to an extent relevant when subsequently examining the legitimacy, from the perspective of the Convention, of that Court ’ s decision not to invalidate the results of the 2009 election.

27. T he Court notes, at the outset, that both applicants were eligible to vote in the elections at issue. Given that the decision not to replace German MEPs elected in the context of an election vitiated by an electoral error may have caused their votes to be “wasted”, the Court is willing to assume an interference with their individual right to vote.

28. Regarding the lawfulness of this interference, the Court observes that, at the time of the 2009 elections, a statutory provision had been in force which stipulated application of the 5% threshold (see paragraphs 9 and 10 above). At the time this provision was found to be unconstitutional, the Federal Constitutional Court approved the continuation of the effect of the provision ’ s application until the next elections.

29. The Court has accepted that a national cons titutional court may set a time ‑ limit for the legislature to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period (see , mutatis mutandis , P.B. and J.S. v. Austria , no. 18984/02, § 49, 22 July 2010; see also R. v. Germany , Commission decision, no. 17750/91 , 30 June 1992 and Walden v. Liechtenstein ( dec. ), no. 33916/96, 16 March 2000). Moreover, in the German legal system, a measure generally remains lawful when the Federal Constitutional Court decides that nullifying a provision will only take effect at a later stage, sometimes defining transitional regulations (see as the latest example that court ’ s decision on the Federal Criminal Police Office Act, 20 April 2016, file nos. 1 BvR 966/09, 1 BvR 1140/09 , E.I.1. ) . This applies respectively to cases of electoral complaints in which the Federal Constitutional Court is given the power to decide what consequences an electoral error may entail (see Article 41 of the Basic Law, paragraph 11 above). The Court is therefore satisfied that the decision not to invalidate the 2009 elections of the German members of the European Parliament for the duration of the whole legislative period was in accordance with domestic law.

30. The Court observes that the applicants did not dispute that this decision of the Federal Constitutional Court pursued the legitimate aim of preserving parliamentary stability.

31. It notes, however, the applicants ’ argument that this aim did not justify the interference wi th their rights under Article 3 of Protocol No. 1. In essence, they claim that the decision not to invalidate the 2009 elections of German MEPs was disproportionate, as a large number of parties were already represented in the European Parliament, so parliamentary stability was not at stake and the replacement of some German MEPs would not have troubled significantly the work of that institution.

32 . The Court finds in this respect that the Federal Constitutional Court has given relevant and sufficient reasons as to why neither the polling nor the allo cation of seats had to be repeated . It is not unreasonable to assume that replacing the German MEPs , even only in part , would likely have had a negative effect on the work of the European P arliament, especially in politica l groups and in the committees. Moreover, with 99 of the 736 seats in the European Parliament in 2009, Germany was the Member State with by far the largest number of seats.

33. In this connection, the Court recalls that Convention institutions have generally accepted that electoral thresholds are intended in the main to promote the emergence of sufficiently representative currents of thought within a country (see Yumak and Sadak , cited above, § 125). T he Commission decided in Tête v. France (Commission decision, no. 11123/84, 9 December 1987) that a 5% threshold, applied at the 1979 election of French MEPs , fell within the margin of appreciation of the State. The Court has also found no issue with the establishment of 5% thresholds for elections to the Latvian parliament (see Partija “ Jaunie Demokrāti ” and Partija “ MÅ«su Zeme ” v. Latvia ( dec. ), nos. 105 47/07 and 34049/07, 29 November 2007) and the parliament of a German Land (see Partei Die Friesen v. Germany , no. 65480/10, § 36, 28 January 2016) or with the 6% threshold concerning parti es nominated for the legislature of the Canary Islands (see Federación nacionalista Canaria v. Spain ( dec. ), no. 56618/00, ECHR 2001 ‑ VI). I n Yumak and Sadak ( cited above, § § 125 , 147 ) it accepted that, in the circumstances of that case, the legitimate aim o f avoid ing excessive and debilitating parliamentary fragmentation justified a 10% threshold in the 2002 national parliamentary elections in Turkey , although it indicated that, in general, such an electoral threshold would appear excessive .

34. It is noteworthy that European Union law explicitly allowed Member States to set electoral thresholds of up t o 5% of votes cast (see Article 2A of t he Direct Voting Act, paragraph 15 above) and that a considerable number of Member States rely on this faculty.

35. Moreover, the number of “wasted” votes in the instant case amounted only to some 10%, which the Court considers a rather low quantity as compared to the high count of “wasted” votes in majority voting systems, equally accepted by the Convention (see Mathieu- Mohin and Clerfayt , cited abo ve, § 54 ) or, for example, in the Turkish 2002 parliamentary elections (45.3%, see Yumak and Sadak , cited above , § 140) .

36. While the impugned decision of the Federal Constitutional Court relates to the refusal to invalidate the 2009 election results or reallocate seats won, the Court considers it necessary to reiterate the essential legitimacy of certain types of electoral thresholds pursuant to the Convention and its case ‑ law, the margin of appreciation enjoyed by the Contracting States in this sphere and the lawfulness, pursuant to German law, of the Federal Constitutional Court ’ s refusal.

37. Given the compatibility, in principle, of electoral thresholds with the relevant provision of the Convention, t he Court therefore takes the view that, a fortiori , the Federal Constitutional Court ’ s decision not to invalidate or to rectify the results of the 2009 polling through a reallocation of seats or to order the polling to be repeated does not curtail the rights in question to such an extent as to impair their very essence and cannot therefore be considered disproportionate.

38. The foregoing considerations are sufficient to enable the Court to conclude that in the case at hand Germany has not overstepped the wide margin of appreciation which the Convention affords the Contracting States in these matters. Accordingly, the impugned decisions cannot be regarded as incompatible with Article 3 of Protocol No. 1 .

39. It follows that this complaint is manifestly ill-founded and must be reje cted in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Alleged violation of Article 1 3 of the Convention

40. The applicants contended that in respect of their claims u nder Article 3 of Protocol No. 1 there was no domestic remedy as required by Article 13 , which provides:

“ Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. ”

41. The Court reiterates that the standards of Article 13 require a party to the Convention to guarantee a domestic remedy allowing the competent domestic authority to address the substance of the relevant Convention complaint and to award appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see Lukenda v. Slovenia , no. 23032/02 , §§ 86 ‑ 88, ECHR 2005 ‑ X).

42. The Court notes that the applicants had recourse to electoral complaints before the Federal Parliament and the Federal Constitutional Court. Both institutions had the power to rectify certain electoral errors. The Federal Constitutional Court had the power to declare electoral provisions unconstitutional and void, to invalidate election results and to order new elections, a fact undisputed by the applicants. The proceedings afforded the applicant s ample opportunity to contest the validity of the elections in question. The Court considers that the manner in which these proceedings w ere conducted guaranteed the applicant an effective remedy in respect of his complaint under Article 3 of Protocol No. 1.

43. Regarding the applicants ’ complaint that their respective electoral complaints were not successful in so far as the elections were not invalidated, the Court, referring to its finding on the compatibility with Article 3 of Protocol No. 1 (paragraphs 18 ‑ 39 above), observes that this concerns merely the outcome but not the effectiveness of the remedy.

44. It follows th at the complaint under Article 13 is likewise manifestly ill-founded , within the meaning of Article 35 § 3 (a), and must be rejected as inadmissible in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 1 September 2016 .

Milan Blaško Khanlar Hajiyev Deputy Registrar President