Information Note on the Court’s case-law 199

August-September 2016

Strack and Richter v. Germany (dec.) - 28811/12 and 50303/12

Decision 5.7.2016 [Section V]

Article 3 of Protocol No. 1

Free expression of the opinion of the people

Refusal to terminate mandate of European Parliament members elected as a result of eligibility threshold declared unconstitutional: inadmissible

Facts – The applicants, who were eligi ble to vote in the 2009 elections to the European Parliament,* filed electoral complaints concerning a statutory rule requiring political parties to reach a minimum of 5% of the votes cast at national level before they could be allocated any of the 99 Germ an seats in the European Parliament. As a consequence of that mechanism, several parties were not taken into account in the allocation of seats, even though they would have won one or two seats had the threshold not existed. The Federal Constitutional Cour t 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.             

Law – Article 3 of Protocol No. 1: Given that the impugned decision of the Federal Constitutional Court might have caused the applicants’ votes to be “wasted”, the Court was willing to assume an interference with their individual right to vote. Regarding the lawfulness of this interference, while declaring unconstitutional the statutory provision concerning the 5% thr eshold, the Federal Constitutional Court had approved its application until the next elections.

The European Court had previously accepted that a national constitutional court might set a time-limit for the legislature to enact new legislation, allowing an unconstitutional provision to remain applicable for a transitional period. Moreover, in the German legal system, a challenged measure generally remained lawful when the Federal Constitutional Court decided that nullifying a provision would only take effec t at a later stage, sometimes defining transitional regulations. This applied to cases of electoral complaints, in which the Federal Constitutional Court was given the power to decide what consequences an electoral error might entail. The decision at issue was therefore in accordance with domestic law.

The Federal Constitutional Court had also pursued a legitimate aim, namely that of preserving parliamentary stability.

Regarding the proportionality of the interference, the Federal Constitutional Court had g iven relevant and sufficient reasons as to why neither the polling nor the allocation of seats had to be repeated. Indeed, it was not unreasonable to assume that replacing the German MEPs, even only in part, would likely have had a negative effect on the w ork of the European Parliament, especially in political 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.

Electoral thresholds were int ended in the main to promote the emergence of sufficiently representative currents of thought within a country. In particular, the Court had previously found no issue with the 5% thresholds applied at the 1979 elections to the European Parliament in France , at the elections to the Latvian Parliament and to the parliament of a German Land , as well as with the 6% threshold concerning parties nominated for the legislature of the Canary Islands. The Court had also found acceptable the 10% threshold in the parti cular circumstances of the 2002 parliamentary election in Turkey.**

In the present case, European Union law explicitly allowed Member States to set electoral thresholds of up to 5% of votes cast and a considerable number of Member States relied on this fac ulty. Moreover, the number of “wasted” votes in the instant case had amounted only to some 10%, a rather low quantity compared to the high count of “wasted” votes in majority voting systems, equally accepted by the Convention,*** or, for example, in the Tu rkish 2002 parliamentary elections (45.3%).****

Given the compatibility, in principle, of electoral thresholds with the relevant provision of the Convention, the impugned decision of the Federal Constitutional Court had not, a fortiori , curtailed the rights in question to such an extent as to impair their very essence and therefore could not be considered disproportionate. The wide margin of appreciation which the Convention afforded the Contracting States in these matters had not been overstepped.

Conclusion : inadmissible (manifestly ill-founded).

Article 13 of the Convention: The applicants had had recourse to electoral complaints before the Federal Parliament and the Federal Constitutional Court. Both institutions had the power to rec tify certain electoral errors. The manner in which those proceedings had been conducted guaranteed the applicants an effective remedy in respect of their complaint under Article 3 of Protocol No. 1.

Conclusion : inadmissible (manifestly ill-founded).

* In accordance with European Union law, elections to the European Parliament are held in all Member States by proportional representation.

** Yumak and Sadak v. Turkey [GC], 10226/03, 8 July 2008, Inf ormation Note 110 .

*** Mathieu-Mohin and Clerfayt v. Belgium , 9267/81 , 2 March 1987.

**** Yumak and Sadak , cited above.

© Council of Europe/European Court of Human Rights This summary by the Regist ry does not bind the Court.

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