Written by Etienne Bassot,
The next European elections – for the ninth elected term – will be held in May/June 2019. But the European Parliament elections struggle to be truly ‘European’ rather than ‘national’ in both form and substance. Elections to the EP are often said to be ‘second order’ elections, since the campaigns are frequently dominated by purely national topics and are mostly led by national political actors. The ‘national’ label is even more firmly attached to European elections, because they are largely governed by national rules. The 1976 Direct Election Act (as amended) only establishes some basic common principles, such as proportional representation, a common ‘electoral period’ and a voluntary threshold of not more than 5 %. Conversely, all other aspects, such as the precise election day, the right to vote and to stand as a candidate, the deadline for nominating candidates, voting from abroad, and the use of closed lists or preferential voting, as well as the use of a minimum threshold, are governed by national rules, and therefore differ significantly among Member States.
Fulfilling the mandate of Article 223(1) of the Treaty on the Functioning of the European Union (TFEU) to propose either a uniform electoral procedure for European elections or electoral rules based on principles common to all Member States, in November 2015 the Parliament adopted a proposal to reform the current electoral law. The proposal sought to make elections to the EP more European, in both form and substance, as well as more democratic, through promoting electoral equality among EU citizens and by improving the functioning of Parliament. It contains, inter alia, provisions on a common deadline (12 weeks before the vote) for the establishment of electoral lists and for the nomination of lead candidates (Spitzenkandidaten). Other provisions concern gender balance on electoral lists; visibility of any national party affiliation to European political parties on the ballot papers; the right of EU citizens residing in a third country to vote in elections to the EP; simultaneous communication in all Member States of the first projections of results; and a minimum electoral threshold of 3-5 % in single-constituency Member States with more than 26 seats, and per constituency in Member States with multiple constituencies.
The proposal has faced severe opposition in the Council, with some Member States opposing it per se, deeming it ‘unnecessary’ for the conduct of European elections, and others arguing that most of the proposed legal provisions be converted into non-binding recommendations or discretionary provisions. The time for agreement on the many outstanding issues is short, due to some Member States’ legal requirements that any adjustments to electoral rules should enter into force at least a year before an election.
In particular, the reference in the proposal to the Spitzenkandidaten process is meeting resistance in the Council. This process, which first took place in the 2014 European elections, was made possible due to a change in Article 17(7) of the Treaty on European Union (TEU) introduced by the Lisbon Treaty, establishing that the European Council must ‘take into account the elections to the European Parliament’ when proposing to the Parliament a candidate for president of the European Commission, and that the Parliament now ‘elects’ the Commission President rather than only ‘approve’ his/her election. The Spitzenkandidaten process is of considerable constitutional significance for the institutional balance in the EU, as it establishes a direct political link between the European elections and the Commission President. Such a link between the EP and the EU executive has already translated into further parliamentarisation of EU decision-making, not only within the legislative process itself, but also in the rest of the EU policy cycle, including agenda-setting and evaluation. The Parliament’s voice in the EU’s political and legislative planning has seen an important boost, expected to strengthen further, through this new political link, rendering political and legislative agenda-setting more democratic and, indeed, more political.
However, despite its constitutional potential, the Spitzenkandidaten process has shown some limitations. Greater media interest during the lead candidates’ electoral campaigns in 2014 did not translate into higher turnout, although it may have prevented a further decrease. In general, media impact varied in relation to the candidates’ countries of origin. However, the process was found to have contributed to the ‘Europeanisation’ of the elections, by putting truly European topics at the centre of the electoral debate, and by increasing the Parliament’s visibility through the personalisation of the campaign. These developments, although at an early stage, show the potential of the Spitzenkandidaten process to help create a common European political space, in which voters make an informed choice about the different political options at hand during the election to the Parliament.
Furthermore, the Parliament’s proposal for electoral reform contains a legal basis for the introduction of transnational lists for the election of Members of the European Parliament (MEPs). Accordingly, in a constituency covering the whole EU, each political family would have a list headed by its lead candidate for the post of Commission President. Whilst transnational lists are meant to strengthen the European character of European elections, to ensure a more active role for European political parties and to foster direct political competition, they have been a controversial issue within the Parliament for many years, and only succeeded in making it into an electoral reform proposal in 2015. The idea seems also to be gaining support in the Council, even though to a rather limited extent, with the French government issuing a non-paper on a European constituency, with detailed proposals on the possible design of the election of MEPs on such transnational lists.
Discussions on possible transnational lists in a joint EU constituency have gained momentum with the prospect of 73 vacant EP seats after the UK withdraws from the EU. To redistribute some of these seats, but also to find a stable method for adapting the composition of the Parliament at each election, the Parliament’s Committee on Constitutional Affairs (AFCO) is preparing a report due to be voted in plenary in early 2018. The Lisbon Treaty mandated the Parliament to propose to the European Council a decision on the composition of the Parliament, while respecting three principles: a maximum number of MEPs set at 751, a minimum of six and a maximum of 96 seats per Member State, and ‘digressive proportionality’. The current composition was established by a 2013 European Council Decision, which also defined ‘digressive proportionality’ as proposed by Parliament: ‘before rounding up to whole numbers, each MEP from a more populous Member State represents more citizens than each MEP from a less populous Member State and, conversely, no less populous Member State has more seats than a more populous Member State’. The current distribution of seats does not comply with the first requirement in all cases. However, a new (permanent) distribution model is proving difficult to establish, first, because of the uncertainty surrounding the UK’s withdrawal date, and second, because most mathematical formulae lead to a loss of seats by mid-sized Member States, which has prompted some to demand a corresponding readjustment of the Council voting rules. So far, the draft report envisages that only some of the vacant seats after Brexit would be distributed among some Member States to achieve better digressive proportionality, with the remaining seats kept available for a possible future transnational constituency.
Read the complete in-depth analysis on ‘Ten issues to watch in 2018‘ on the Think Tank pages of the European Parliament.