HOW THE EUROPEAN UNION WORKS

EUROPEAN UNION INSTITUTIONS AND BODIES

The European Parliament: Electoral Procedures

LEGAL BASIS

Article 223 TFEU

COMMON RULES

A.  Principles

The founding Treaties stated that Members of the European Parliament would initially be appointed by the national parliaments but made provision for election by direct universal suffrage, based on a project drawn up by Parliament itself. It was only in 1976 that the Council decided to implement this provision by the Act of 20 September.

In 1992, the Maastricht Treaty inserted a provision into the EC Treaty (Article 190 paragraph 4, now Article 223 TFEU) stating that elections must be held in accordance with a uniform procedure in all Member States and Parliament should draw up a proposal to this effect, for unanimous adoption by the Council. However, the Council was unable to agree on a uniform procedure, in spite of the various proposals presented by Parliament.

To resolve this deadlock, the Treaty of Amsterdam introduced into the EC Treaty the possibility, failing a uniform procedure, of ‘common principles’ with a view to enhancing the democratic legitimacy of the EP and the feeling of being a citizen of the European Union. On this basis it was possible to modify the 1976 act by Council Decision 2002/772/EC, Euratom of 25 June and 23 September 2002. This decision introduced the principles of proportional representation and incompatibility between national and European mandates.

With the Treaty of Lisbon in force, the right to vote and to stand as a candidate acquires the value of a fundamental right (Article 39 Charter of Fundamental Rights of EU). Moreover, the right to vote is included in Article 20(1) and 22(1) TFEU.

B.  Application: common provisions in force

1.  Right of non-nationals to vote and to stand as a candidate

According to Article 19 of the EC Treaty, ‘every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides’. The arrangements for implementing this right were adopted on 6 December 1993 in Directive 93/109/EC.

However, Article 19 of the EC Treaty has been replaced by Article 22(2) TFEU, which also includes in its first paragraph the right to vote and to stand as a candidate at municipal elections in the Member State in which the citizen resides without being a national.

2.  Electoral system

The elections must be based on proportional representation and use either the list system or the single transferable vote (Council Decision 2002/772/EC, Euratom).

3.  Incompatibilities

The office of member of the European Parliament is incompatible with that of member of the Commission, judge, advocate-general or registrar of the Court of Justice, member of the Court of Auditors, member of the Economic and Social Committee, member of committees or other bodies set up pursuant to the Community Treaties for the purpose of managing the Communities’ funds or carrying out a permanent direct administrative task, member of the Board of Directors, Management Committee or staff of the European Investment Bank, and active official or servant of the institutions of the European Communities or of the specialised bodies attached to them.

The 2002 Council Decision added further incompatibilities: member of the Court of First Instance, member of the Board of Directors of the European Central Bank, Ombudsman of the European Communities and, of course, member of a national parliament.

ARRANGEMENTS SUBJECT TO NATIONAL PROVISIONS

In addition to these common rules, the electoral arrangements are governed by national provisions that are at times quite different.

A.  Electoral system

Pursuant to the 2002 Council Decision, all of the Member States must now use a system based on proportional representation. Lists failing to obtain, for example, 5% of the vote in Germany or France, or 4% in Austria or Sweden, are excluded from the allocation of seats. Until the 1994 elections the United Kingdom used the first-past-the-post system (except in Northern Ireland, where proportional representation was already in use). Most major new Member States apply the 5% or 4% threshold.

B.  Constituency boundaries

In European elections, most of the Member States act as a single constituency. However, there are four Member States (Belgium, France, Ireland and the United Kingdom) which have divided their national territory into a number of regional constituencies.

Constituencies of merely administrative interest or distributive relevance within the party lists exist in Belgium (4), Germany (16 only for the CDU/CSU), Italy (5), Poland (13) and in the Netherlands (19).

C.  Entitlement to vote

1.  Vote of non-nationals in the host country

Voting age is 18 in all the Member States, except in Austria (16). Citizens of the Union residing in a Member State of which they are not nationals now have the right (Article 22 TFEU) to vote in elections to Parliament in the Member State in which they reside, under the same conditions as nationals of that state. However, the concept of residence still varies from one national electoral system to another.

Some countries require voters either to have their domicile or usual residence on electoral territory (Finland, France, Romania, Poland, Estonia and Slovenia), or to be ordinarily resident there (Denmark, Greece, Ireland, Luxembourg, the United Kingdom, Cyprus, Slovakia and Sweden) or to be entered on the population register (Belgium, the Czech Republic).

2.  Vote of non-resident nationals in the countries of origin

In the United Kingdom the right to vote of citizens resident abroad is confined to government officials and members of the armed forces and to citizens who left the country less than fifteen years before, provided they submit a declaration to the appropriate authorities. Belgium, Denmark, Greece, Italy, and Portugal only grant the right to vote to their nationals living in an other EU Member State. Austria, the Netherlands, Spain, Finland, France, and Sweden grant their nationals the right to vote whatever their country of residence. Germany grants this right to citizens who have lived in another country for less than twenty-five years. In Bulgaria, Ireland and Slovakia the right to vote is confined to EU citizens domiciled on the national territory.

D.  Right to stand for election

Apart from the requirement of nationality of an EU Member State, which is common to all the Member States, conditions vary from one to another.

1.  Minimum age

18 in Austria, Denmark, Spain, Finland, Sweden, Hungary, Germany, the Netherlands, Luxembourg, Portugal, Malta and Slovenia, 21 in Belgium, Estonia, Greece, the Czech Republic, Ireland, Latvia, Lithuania, Poland, Slovakia and the United Kingdom, 23 in France and Romania and 25 in Italy and Cyprus.

2.  Residence

In Luxembourg, at least two years’ residence is required (previously five years) to enable a Community national to stand for election to the European Parliament. Moreover, a list may not comprise a majority of candidates who do not have Luxembourgish nationality. In most Member States, eligibility to stand for elections is needed to satisfy the residence requirements.

E.  Nominations

In some Member States (Denmark, Germany, Greece, Estonia, the Netherlands, Sweden and the Czech Republic) only political parties and political organisations may submit nominations. In the other countries nominations may be submitted if they are endorsed by the required number of signatures or electors, and in some cases (Greece, the Netherlands, Latvia, Slovakia and the United Kingdom) a deposit is also required. In Ireland and Italy candidates may nominate themselves if they are endorsed by the required number of signatures.

F.  Election dates

In accordance with national traditions, the European elections in 2009 took place on:

Thursday 4 June in the Netherlands and the United Kingdom,

Friday 5 June in the Czech Republic and in Ireland

Saturday 6 June in the Czech Republic (two days), Italy, Cyprus, Latvia, Slovakia and Malta

Sunday 7 June in all other countries.

The 2004 elections were held on 10 and 13 June. The next will take place in June 2014.

G.  Voters’ option to alter the order of candidates on lists

In some states (Germany, Spain, France, Greece and Portugal) voters cannot alter the order in which candidates appear on a list. In others (Austria, Belgium, Denmark, Finland, Italy, Luxembourg, the Netherlands and Sweden) the order on the list may be changed using transferable votes. In Luxembourg voters may vote for candidates from different lists. In Sweden, voters may also add names to the lists or remove them. The list system is not used in Ireland, Malta and Northern Ireland.

H.  Allocating seats

Most Member States have adopted the d’Hondt rule for allocating seats. Germany uses the divisor method with standard truncation Sainte-Laguë/Schepers and Luxembourg a variant of d’Hondt method, the Hagenbach-Bischoff method. In Italy seats are allocated by the whole electoral quota and largest remainder method, in Ireland and in Malta by the single transferable vote (STV-Droop). In Greece by the weighted method of proportional representation known as ‘Eniskhimeni Analogiki’, and in Sweden, as in Latvia, by the Sainte-Laguë method (division by successive odd numbers but modified to make the largest common divisor 1.4). In Slovakia and in Cyprus a system based on the Droop method and the highest remainder, and in Lithuania the Hare system combined with the highest remainder calculation are used.

I.  Verification of the result and rules on election campaigns

In Denmark, Germany and Luxembourg, their national Parliament verify the election results and in Slovenia the National Assembly confirms the election of MEP's. For the courts to do so in Austria, Belgium, Finland, Italy, Ireland, Slovenia, Czech Republic, Estonia and the United Kingdom, while both are provided for in Germany. In Spain the result is verified by the ‘Junta Electoral Central’; in Portugal and Sweden a verification committee does so. In France, the Council of State is competent for disputes concerning the elections, but the Minister of the Interior also has the same right if (s)he feels that the legally stipulated forms and conditions have not been respected.

Contrary to the practice in national elections, no special rules on election campaigns have been laid down. For a long time, political parties at the European level received no direct allowances for election campaigns. Recently, however, a system for the funding of European political parties was established (Regulation EC 2004/2003), which also allowed the establishment of political foundations at the European level.

J.  Filling of seats vacated during the electoral term

In some Member States (Austria, Denmark, Finland, France, Italy, Luxembourg, the Netherlands and Portugal) seats falling vacant following ‘open’ resignation are allocated to the first unelected candidates on the lists (possibly after permutation to reflect the votes obtained by the various candidates). In Belgium, Ireland, Germany and Sweden vacant seats are allocated to substitutes. In Spain and Germany, if there are no substitutes account is taken of the order of candidates on the lists. In the United Kingdom by-elections are held. In Greece vacant seats are allocated to substitutes on the same list; if there are not enough substitutes, by-elections are held. In some Member States MEP's have the right to return to the Parliament once the reason for their departure has expired.

ROLE OF THE EUROPEAN PARLIAMENT

Since the 1960s Parliament has repeatedly voiced its opinion on issues of electoral law in reports, resolutions and in written and oral questions and has put forward proposals in accordance with Article 138 of the EEC Treaty. Parliament adopted three resolutions, in 1991, 1992 and 1993, on establishing a uniform electoral procedure, but the Council did not consider them as proposals within the meaning of Article 138 and in any case adopted only the proposal concerning the allocation of seats among the Member States.

Article 223 TFUE, provides for Parliament to draw up a proposal for elections in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States. In 1997, Parliament’s Committee on Institutional Affairs decided to draw up a report which resulted in a resolution on a proposal for a uniform electoral procedure. The Council’s decision of 25 June and 23 September 2002 incorporates the substance of the EP’s proposal but does not take over the proposal for the establishment of a single European constituency for the election of 10% of the seats.

The continuing lack of a genuine uniform procedure for election to the European Parliament shows how difficult it is to harmonise different national traditions. The Amsterdam Treaty’s option of adopting common principles has to some extent made it possible to overcome these difficulties. The Treaty of Lisbon provides a legal base for the adoption of a uniform procedure, requiring the consent of the European Parliament.