Introduction
The attention of the public, the media and scholars â and this applies to most contributions in the present volume, too â most of the time falls on the political dynamics in the European Parliament (EP or Parliament) and its election processes, rather than on the legal underpinnings thereof. The legal framework for European elections is rather complex, as it constitutes a combination of principles and norms laid down at the level of the European Union (EU or Union) with national laws of the EU Member States, which differ significantly from each other (Bardi and Cicchi, 2015). This diversity of electoral rules and systems â sometimes referred to as a âpolymorphic electoral systemâ1 â is problematic, as it generates inequalities between the Unionâs citizens2 (Tailor and VĂŠron, 2014) and complicates the democratic representativeness of the Parliament (Costa, 2016: 53).
While the number of provisions of EU law touching upon EP elections has gradually increased over time, they constitute a patchwork that calls for careful reconstruction. That is what the present chapter aims to do: it discusses the legal framework for EP elections at the level of EU primary law, detailing how it has evolved since the 1970s, and how it is currently structured under the EU Treaties, as modified by the 2007 Treaty of Lisbon, which entered into force on 1 December 2009.3 In short, the objective is to obtain a better understanding of the long and winding road towards a common electoral law for the EU. This process is far from complete, as most aspects of EP elections are currently still regulated by the divergent national laws of the EU Member States.
For reasons of space and in order to focus on the most essential aspects of the EUâs emerging electoral law, the present chapter focuses on the âprimary lawâ of the Union regarding EP elections. By this are meant the principles and norms laid down in the EUâs founding Treaties and in those acts that enjoy constitutional status in the EU legal order, most notably the 1976 âAct concerning the elections of the members of the European Parliament by direct universal suffrageâ (the Electoral Act).4 These principles and norms take precedence over the âsecondary lawâ of the Union, i.e., acts emanating from its institutions. This being said, it is important to point to the incremental emergence of a body of rules of secondary law in this area as well, such as directives operationalizing the right of citizens to vote or to stand as candidates for European elections,5 regulations on the statute and funding of European political parties,6 and European Council decisions on the composition of the EP.7 Apart from this, a number of âsoft lawâ documents can also be identified, for instance, resolutions of the Parliament with regard to the Spitzenkandidaten process.8
The EU Treaties
The main Treaty provision on the Parliament is Article 14 of the Treaty on European Union (TEU), as inserted by the Treaty of Lisbon. While it provides an overview of the EPâs functions,9 the article states precious little about the Parliamentâs election process: only that its members âshall be elected for a term of five years by direct universal suffrage in a free and secret ballotâ (para. 3). In terms of composition of the Parliament, Article 14 just sets the ceiling (not more than 750 members, plus the President)10 and the minimum (6) and maximum (96) threshold of members per Member State (para. 2). Interestingly, since the Treaty of Lisbon, the Parliamentâs Members are called ârepresentatives of the Unionâs citizensâ, whereas in the past they were referred to as representing âthe peoples of the States brought together in the Communityâ.11 This new language is consistent with the Lisbon Treatyâs âprovisions on democratic principlesâ, which are laid down in Articles 9â12 of the TEU. These provisions make clear that [t]he functioning of the Union shall be founded on representative democracyâ (Article 10(1)), that â[c]itizens are directly represented at Union level in the European Parliamentâ (Article 10(2)), and that â[p]olitical parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Unionâ (Article 10(4)). The latter provision was inserted by the 1997 Treaty of Amsterdam, as the first Treaty recognition of such political parties.12
However brief and incomplete, it is essential that Article 14 TEU mentions that the EP is based on âdirect universal suffrage in a free and secret ballotâ (in French: âau suffrage universel direct, libre et secretâ; in German: âin allgemeiner, unmittelbarer, freier und geheimer Wahlâ). This rule is considered so important for the rights of citizens that it has also been confirmed in Article 39(2) of the EUâs Charter of Fundamental Rights (the Charter). As to the general or universal nature of the suffrage, reference can also be made to Article 22(2) TFEU, according to which every citizen of the Union has âthe right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that Stateâ. This right, which was operationalized by a Council Directive in 1993,13 is also confirmed in Article 39(1) of the Charter.
The direct nature of the suffrage makes clear that no third persons can become involved (unlike in the US system of electors and electoral college) and that the old system of indirect representation by members of national parliaments cannot be reintroduced (Bieber, 2015: 218, para. 62).14 The âfree and secret ballotâ points to the unhampered exercise of the voting right. This presupposes in the first place an enabling environment for holding the elections, both for candidates to run campaigns, and for citizens to receive proper information, without unlawful practices, such as abuse of personal data. The EU recently passed legislation to tackle such abuses.15 It also implies that there should be no interference in the election process from outside and that there should be a freedom of choice among multiple candidates. A system of compulsory voting (ibid.: 218, para. 62), as exists, for example, in Belgium, Cyprus, Greece and Luxembourg, is not incompatible with this provision.16
Article 14(3) TEU does not mention equality of suffrage. While this principle is firmly recognized in international human rights law,17 some authors have observed that, as an absolute principle, it would not be suitable for the European integration process (ibid.: 218, para. 64). One may wonder, though, whether, given the divergences between the electoral systems of the Member States, this should not be a particular point of attention for the future. Some inspiration can be found in this respect in the case law of the European Court of Human Rights under Article 3 of Protocol No. 1 to the European Convention on Human Rights (pursuant to which all contracting parties have to âhold 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 legislatureâ), as combined with the non-discrimination principle laid down in Article 14 of the Convention.18
An important further Treaty provision is Article 223 of the Treaty on the Functioning of the European Union (TFEU). It is the successor to the original Article 138 of the 1957 EEC Treaty19 (see above), stipulating that
[The Parliament] shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.
(para. 1)
It is interesting to compare this provision to the wording of the original article in the EEC Treaty. The latter provided that the Assembly (which was the original name of the Parliament in the Treaties)20 âshall be composed of delegates whom the Parliaments shall be called upon to appoint from among their members in accordance with the procedure laid down by each Member Stateâ, while adding that â[t]he Assembly shall draw up proposals for elections by direct universal suffrage in accordance with a uniform procedure in all Member Statesâ.21 One notes that todayâs Article 223 TFEU adds âor in accordance with principles common to all Member Statesâ. That is a change brought about by the 1997 Treaty of Amsterdam.22
The Assembly had put forward proposals in 1960 and resolutions in 1963 and 1969. However, the Council, who had to decide unanimously on them, never followed suit,23 as France continued to resist direct elections. Things started to move much more quickly, however, when the Paris Summit of Heads of State and Government in 1974 decided to institutionalize its meetings as European Council: to balance this intergovernmental reinforcement, they agreed that âthe election of the European Assembly by universal suffrage, one of the objectives laid down in the Treaty, should be achieved as soon as possibleâ.24 Based on new proposals from the Assembly,25 on 20 September 1976, the Council adopted the Electoral Act, originally entitled âAct concerning the election of the representatives of the Assembly by direct universal suffrageâ.26 The Electoral Act was amended to a very limited extent in 1993,27 rather considerably in 2002,28 and, most recently, in 2018.29 In this contribution we will refer to the 2018 version of the Electoral Act, even though the latter is not yet in force: this will only happen after the notification of all Member States that they have approved the Decision âin accordance with their respective constitutional requirementsâ.30
The Electoral Act
The Electoral Act governs the essentials of EP elections. As it had to be ratified by Member States according to their respective constitutional provisions, it has the status of primary law, at the level of the EU Treaties. However, it can hardly be described as laying down a âuniform procedureâ. Moreover, with all the amendments over time, it has become a rather messy document. A cleaned-up and consolidated version would be a great improvement.
Pursuant to Article 1 of the Electoral Act, â[i]n each Member State, members of the European Parliament shall be elected as representatives of the citizens of the Union on the basis of proportional representation, using the list system or the single transferable voteâ (para. 1). Furthermore, it is stipulated that âMember States may authorize voting based on a preferential list system in accordance with the procedure they adoptâ (para. 2), and that â[e]lections shall be by direct universal suffrage and shall be free and secretâ (para. 3).
The reference to proportional representation dates from the 2002 reform. This modification largely codified what in the meantime had become a reality, especially after the United Kingdom had adopted proportional representation for the 1999 EP elections.31 It also ensured that the ten acceding Member States would be in line with the principle (Farrell, 2005: 969â971). Proportional representation is seen as preferable to a simple majority voting system, as âthe objective was to achieve fair representation of major currents of opinion rather than to form a stable government majority as in national parliamentsâ (Corbett, Jacobs and Neville, 2016: 18). The option for voting based on preferential lists has been used by a majority of Member States, although the national systems differ greatly.
The reference in Article 1 of the Electoral Act to members of the European Parliament (MEPs) as ârepresentatives of the citizens of the Unionâ is a 2018 adaptation to reflect the aforementioned provisions of the Treaty of Lisbon, i.e., Article 10(2) TEU, which stipulates that â[c]itizens are directly represented at Union level in the European Parliamentâ, and Article 14(2) TEU, which states that the EP âshall be composed of representatives of the Unionâs citizensâ. Finally, the reference to direct universal suffrage, which was always there in the Electoral Act, has been complemented with the requirement of a free and secret ballot in 2002. This is consistent with the text of Articles 14(3) TEU and 39(2) of the Charter, as discussed above.
Article 2 of the Electoral Act provides that, âIn accordance with its specific national situ...
