European elections: a touch of Weimar?

Elections for the 10th European Parliament (EP) were held in 27 EU Member States from June 6 to 9, 2024.

In Germany, voters were called to distribute the share of 96 out of 720 seats. They had a choice amongst 35 political parties present on the ballot lists.

Results of the 2024 European elections in Germany

15 parties succeeded in winning at least one mandate. Eight of those 15 parties scored three or less seats. Four parties gained one single seat. The lowest score, 0.6 percent of the electorate which was still rewarded with one MEP each (ÖDP, Familienpartei and Partei des Fortschritts). Tierschutzpartei scored more than double, 1.4 percent, but also cashed in only 1 MEP.

This result means a further fragmentation of the available 96 seats for Germany, even more salient than in 2019: compared to the 2019 elections, when 14 parties were presented in the House, with a total of nine seats for the seven smallest parties (still out of 96).

Large representation of parties

In 2024 the remaining 81 seats spread over seven ‘bigger’ parties (from 5 to 29 seats). The reasons for so many (15) parties being represented in the EP is clear.

Article 1 of the 1976 Act concerning the election of the representatives of the Assembly by direct universal suffrage (Direct Election Act) provides that members of the European Parliament shall be elected on the basis of proportional representation, using the list system or the single transferable vote. This is the reason why Great Britain had to be divided into twelve party list constituencies until its last European Elections 2019.Northern Ireland had always been a single constituency using single transferable vote from 1979 on.

Article 8 of the Direct Election Act provides that the electoral procedure shall be governed in each Member State by its national provisions, although this may not affect the essentially proportional nature of the voting system.

Absence of any minimum share of votes that a political party requires before it becomes entitled to representation(electoral threshold) in the European Parliament for Germany, although Article 3of the Direct Election Act, provides that Member States may set a minimum threshold for the allocation of seats at national level. This threshold may not exceed 5 per cent of valid votes cast.

An electoral threshold for the allocation of seats is the minimum percentage of votes that a political party or a coalition is required to collect to gain a seat in the legislative assembly.

In all direct European elections between 1979 and 2009 in Germany, an electoral threshold of 5 percent was in force. This had changed for the European elections of 2014, because on 9 November 2011 the German Federal Constitutional Court (FCC) had ruled that the 5 percent threshold enshrined in § 2, par. 7 of the Federal European Election Act (EuWG) was unconstitutional. As all parliaments in Germany (federal and 16 state parliaments) since 1949 were elected with such a requirement, the federal Parliament attempted to introduce at least a 3 percent threshold into the EuWG for the upcoming European elections of 2014. The modification was rejected by the FCC on the same constitutional grounds. The European elections of 2014, 2019 and 2024 therefore saw no specified minimum percentage of votes to obtain seats in the EP at all, either nationally or in a particular electoral district.

Fragmentation is further encouraged by the use of the Hare/Niemeyer quota method i.e. the algorithms used in European Elections for distributing the available seats among a number of parties. This can lead to the paradox that even with less than 1 percent of the votes, a party can be entitled to one seat out of 96, as it happened in the 2024 elections (ÖDP, Familienpartei and Partei des Fortschritts).

After the attempts to curb parliamentary fragmentation via the national election law had failed, the federal government managed to forge a reform on European level provided for in Article 223, par. 1 TFEU. The Direct Election Act was modified in that sense. On July 13, 2018, the Council adopted Decision of the Council (EU, Euratom) 2018/994. Article 3, par 2 of the Decision obliges large member states to introduce a minimum threshold of 2 percent (maximum 5 percent). Member States in which the list system is used shall set a minimum threshold for the allocation of seats for constituencies which comprise more than 35 seats. This threshold shall not be lower than 2 per cent, and not exceed 5 per cent, of the valid votes cast in the constituency concerned, including a single-constituency Member State. The provision applies to Germany, as, according to § 3 EuWG, the constituency comprises the territory of the Federal Republic of Germany. A threshold has to be set with a minimum of 2 percent. A to the time table, Article 3, par. 3 of the Decision provides that Member States shall take the measures necessary to comply with the obligation set out in paragraph 2 no later than in time for the elections to the European Parliament which follow the first ones taking place after the entry into force of the Decision.

Consent was given by the European Parliament (resolution of 4July 2018 - Special legislative procedure). Although a Decision of the Council is directly applicable, the case of changes to the Direct Election Act shall be subject to approval by the Member States in accordance with their respective constitutional requirements. Therefore, Council Decision 2018/994 has not entered into force because it will only after all Member States have approved it in accordance with their respective constitutional requirements (Article 223 TFEU). The national consent act in accordance with Article 23 (1) sentence 3 of the Grundgesetz has been adopted in March 2024, but to the present day, one Member State, Spain, has not yet ratified.

Reform of the European electoral system in Germany on hold

The obligation of European Law to introduce a threshold is not yet transposed into German national law. The process had also being delayed because in 2023 several small parties fearing to be concerned by a threshold had once again logged a complaint for annulment of the German approval law for an amendment to the Direct Elections Act to the German FCC. By ruling dated 6 February 2024, the Second Senate of the Federal Constitutional Court rejected the constitutional complaints as inadmissible.

Although, by federal law of 13 March 2024, Germany has finally adopted the consent law to the Council Decision, the necessary federal implementation law (EuWG) was not initiated. As a consequence, the European elections of June, 9 were organised again without any threshold. An unprecedented fragmentation of the German vote for the EP was put up with. The next opportunity to address the problem will be only in 2029.

In the meanwhile, the European Parliament has taken the initiative and made several proposals for a true and citizen-friendly reform of the EU electoral procedure. Harmonisation of several areas, such as the age for voting or standing as a candidate, the electoral calendar for European elections, the principles applicable to the selection of candidates and the electoral threshold. In addition, the proposal would establish a common electoral system for the election of 28 MEPs in a Union-wide constituency comprising the entire territory of the European Union. The ambition is to further raise participation, acceptance and awareness of the elections to the European Parliament. Concerning the electoral threshold, the EP proposal goes further that Council Decision 2018/994: a threshold of at least 3.5 percent for constituencies of more than 60 seats (Article 13 of the proposed law) is put forward. Council has not expressed itself on this EP initiative yet.