Written by Maria Diaz Crego,
The creation of a pan-European constituency, comprising the whole territory of the European Union (EU), in which a number of Members of the European Parliament would be elected from transnational electoral lists is frequently depicted by its proponents as a way to enhance the European dimension of European elections. The availability of transnational lists could help to focus the electoral campaign on European affairs and strengthen European political parties, which would acquire a central role in European elections by proposing truly European candidates. In addition, transnational list advocates argue that they would improve the quality of democratic representation in the EU and help to create a European ‘demos’. Conversely, detractors of transnational electoral lists criticise their potential for creating different levels of legitimation among Members of the European Parliament, with those elected in the European constituency/ies claiming ‘European’ endorsement and those elected in the national constituencies claiming a national one. In addition, transnational lists are criticised for potentially increasing the distance between voters and their representatives, as Members elected through transnational lists would not have a bond with a constituency, and for favouring candidates from large Member States and for the difficulties surrounding organisation of a European electoral campaign in different languages and a large territory.
Praised by some and criticised by others, concrete proposals to operationalise transnational electoral lists have been discussed in the European Parliament, other institutional settings and academia since the 1990s. Proposals to create transnational electoral lists discussed in the European Parliament have always shared common features: a single pan-European constituency, comprising the territory of all Member States, would be created to elect a relatively small number of Members of the European Parliament (25‑46) compared to the total number of Members (currently 705). In addition, a proportional electoral formula would be applied (usually the D’Hondt formula), together with closed electoral lists. In some cases, proposals have suggested using a system that aims at ensuring gender and geographically balanced representation by imposing certain requirements on lists of candidates presented in the European constituency. In the most recently discussed proposal (Hübner‑Leinen Report), the European Parliament also linked the Spitzenkandidaten process to the possible creation of transnational electoral lists, by suggesting that those lists should be headed by the lead candidates of each European political family.
However, other proposals to create transnational electoral lists have been put forward in other institutional settings, academia and think tanks. Aiming to offer voters a wider range of electoral choices than those offered by a closed list system, some actors have proposed to use a system of open lists, or the single transferable vote system, in some cases coupled with the creation of several joint constituencies, comprising the territory of different Member States. Aiming to favour geographically balanced representation, some authors have proposed each list should contain candidates from at least one third or one quarter of the Member States. Others have proposed to reserve seats for candidates from each Member State, or to group Member States according to certain features (e.g. their population), and require each candidate list to include a specific number of candidates coming from each of those groups. Similarly, gender-balanced representation could be achieved through various systems.
Apart from questions relating to the design of the electoral system applicable to the elections in the European constituency/ies, this paper analyses the legal reforms that would be needed at European and national levels in order to create transnational electoral lists. Although the creation of transnational electoral lists does not seem to require modification of the EU Treaties, except if it were decided to extend the maximum number of European Parliament seats currently provided for under Article 14(2) TEU (750 plus the President), it would require the modification of several EU secondary acts. In this vein, the 1976 European Electoral Act (Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976), which currently provides for a common set of rules to be applied by all Member States in European elections, would need to be amended to create a European constituency/ies and provide for a uniform electoral system and procedure to be applied in the elections in that constituency/ies. The amendment of the 1976 European Electoral Act requires a unanimous decision of the Council, based on a proposal by the European Parliament and with its consent (by a majority of its component Members), as well as the later approval of all Member States in accordance with their respective constitutional requirements (Article 223 (1) TFEU). As the procedure to modify the 1976 European Electoral Act is quite demanding, the possibility to leave determination of the secondary aspects of the electoral procedure to be applied in the elections in the European constituency/ies through the procedure provided for under Article 14 of the European Electoral Act could be explored.
Similarly, Decision (EU) 2018/937 of 28 June 2018, establishing the current composition of the European Parliament, would also require modification, to provide for the allocation of a certain number of European Parliament seats to a European constituency/ies. In this case, the amendment would need to be adopted by a unanimous decision of the European Council, on the initiative of the European Parliament and with its consent (Article 14 (2) TEU). Apart from that, some other EU secondary acts may also need amendment, depending on the electoral system and procedure to be applied in the elections in the European constituency/ies.
In addition to the modifications that would be required at the European level, the procedures to be followed in the Member States to approve the amendments to the 1976 European Electoral Act should also be taken into account. In this vein, such approval would require a constitutional amendment in Austria, and depending on the exact scope of the modifications introduced in the European Electoral Act, in some other Member States (e.g. Spain, Portugal or Italy). In 15 Member States, the procedure for the ratification of international treaties would need to be applied to approve the changes introduced in the 1976 European Electoral Act (Belgium, Croatia, Finland, France, Germany, Greece, Hungary, Italy, the Netherlands, Poland, Portugal, Romania, Slovakia, Spain and Sweden). In 11 Member States, approval would only require the adoption of a law or amendments to the existing laws regulating European elections (Bulgaria, Cyprus, Czechia, Denmark, Estonia, Ireland, Latvia, Lithuania, Luxembourg, Malta and Slovenia). Amendments to the laws applicable to European elections would generally be needed in the Member States, with some national legal orders requiring special qualified majorities or procedures for their adoption (e.g. Austria, Belgium, Czechia, Spain, Estonia, Slovenia or Portugal).
The adoption of these legal modifications would be likely to take some time. Given that the Venice Commission recommends that – and some Member States (e.g. Belgium and France) require – amendments to electoral laws are made at least one year in advance of elections, to ensure the credibility of the electoral process, European institutions would need to start the procedure to modify EU legislation sufficiently early, if they wished to introduce transnational electoral lists before the 2024 European elections.
Read the complete study on ‘Transnational electoral lists: Ways to Europeanise elections to the European Parliament‘ in the Think Tank pages of the European Parliament.
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