GER: DIE PARTEI’s Motion against Election Threshold Fails

Mar 29, 2024 Benn-Ibler Rechtsanwälte

The German Federal Constitutional Court (Bundesverfassungsgericht, hereinafter BVerfG) has been approached by Die PARTEI (Party for Labour, Rule of Law, Animal Protection, Promotion of Elites and Grassroot-Democratic Initiative[1]), which is challenging Germany’s act of approval which aims to introduce a two percent minimum threshold in European elections.

The German law amending the so-called Direct Election Act, which obliges EU member states to introduce a minimum two percent and maximum five percent threshold for elections to the European Parliament has been called into question.

The amendment to the Direct Election Act has so far been approved by 25 of the 27 Member States of the European Union. Approval is still pending in Germany and Spain. The German Bundestag and the Bundesrat have adopted the approval law. At the request of the BVerfG’s Senate, the German Federal President has temporarily suspended the implementation of the law.

Die PARTEI and its leader allege that their rights to equal opportunities and equal voting rights are violated. With the Direct Elections Act, the European Union is going beyond its competences, Die PARTEI claims, thereby undermining the principle of democracy guaranteed under the German Basic Law (Grundgesetz), which would interfere with the constitutional identity of the Federal Republic of Germany.

The BVerfG disagreed, seeing no evidence of violation of the above-mentioned principles.

An amendment to the Direct Elections Act does not constitute a transfer of sovereign rights and is therefore not contrary to the principle of subsidiarity. The Direct Elections Act is based on the EU’s competence to unify the election procedure for the European Parliament. It is not clear from the applicant’s submission to what extent consent to a threshold should be excluded in relation to German constitutional identity. Furthermore, the EU is bound by the principle of democracy and can only regulate the electoral law of the EU Parliament within this framework.

Minimum election thresholds are recognised in some Member States as a means of shaping the system of proportional representation. In order for parliaments to be able to act, it is necessary to form majorities. This is no longer possible if a parliament is fragmented by too many small parties.

The applicant has failed to provide a reasoned explanation as to why the instrument, a mandatory election threshold applicable throughout the European Union, would be inappropriate.

BVerfG, 2 BvE 6/23 (6 February 2024)

[1] Die PARTEI’s German name is Partei für Arbeit, Rechtsstaat, Tierschutz, Elitenförderung und basisdemokratische Initiative.