Delledonne, Giacomo

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Rationalising political representationwithin the European Parliament: theItalian Constitutional Court rules on thethreshold for the European electionsGiacomo Delledonne 2019-01-11T08:12:19How should a supranational parliament be elected? What kind of parliament isthe European Parliament? Such are the questions that emerge from a number ofjudgments of national constitutional courts in the last few years: in these cases, theconstitutionality of derogations from strict voting equality like electoral thresholdshave often been at stake. In dealing with electoral issues, constitutional courts alsoinevitably address the nature of the supranational assembly in Strasbourg andBrussels and its role in the European model of “representative democracy”, as theTreaty puts it. On two occasions, the German Federal Constitutional Court has found provisionscontaining, respectively, 5% and 3% electoral thresholds to be unconstitutional(judgments of 9 November 2011 and 26 February 2014). According tothe Bundesverfassungsgericht, the very peculiar functioning of the supranationalrepresentative democracy could not justify such a limitation of voting equality. Onthe contrary, the Czech Constitutional Court has not struck down a provision ofthe Czech Act on Elections of the European Parliament regulating a 5% threshold(judgment of 19 May 2015).The Italian case and its factual backgroundIn December 2018, the Italian Constitutional Court has joined this discussion(judgment no. 239/2018). Although two previous attempts to challenge the Italian 4%threshold had been rejected on procedural grounds (judgments no. 271/2010 and110/2015), this time the Court has ruled on the merits. In so doing, the Court has hadto engage with the arguments of the Bundesverfassungsgericht, whose decisionshad been supportively cited by the referring judge. The Constitutional Court has notsubscribed to this line of reasoning: rather, it has sketched a different interpretationof the role and tasks of the European Parliament in the EU constitutional order,thereby ultimately justifying the electoral threshold. In this respect, the judgmentdoes not only enrich the complex case law of the Italian Constitutional Court onelectoral issues (in which, by the way, the German constitutional case law hasserved as an important source of comparative arguments) but it also represents asignificant contribution to the judicial conversation within the composite Europeanconstitutional order. - 1 -As regards the facts of the case, at the European election of 25 May 2014 the right-wing party Fratelli d’Italia had a vote share of 3,7% and did not get any seats inthe European Parliament. Party chair Giorgia Meloni lodged a complaint beforethe regional administrative court and later before the Consiglio di Stato, i.e. theItalian top administrative court. The Consiglio di Stato referred the constitutionalityof the 4% threshold to the Constitutional Court. Basically, it alleged that theimpugned provision violated the principles of democracy and voting equality andstruck an unreasonable between the interests and values at stake. Most of all,the unreasonableness of the electoral threshold is a consequence of the peculiarnature of the EU institutional system, in which the Commission does not properlyhave to command the confidence of the Parliament throughout the duration of itsterm. Therefore, the 4% threshold, which represents an obvious limitation of votingequality, lacks sufficient justification. As can be seen, the phrasing of the referraldecree shows the influence of the arguments of the Bundesverfassungsgericht in theEuropean legal space.The current state of affairs in EU lawUnder the current state of affairs, the constitutionality of an electoral thresholdin European elections is primarily an issue of national constitutional law. At thesupranational level, the Direct Elections Act in its version currently in force onlyimposes on the Member States the adoption of proportional representation. MemberStates, in turn, may provide for derogations from the general scheme of proportionalrepresentations. Among the conceivable derogations, electoral thresholds thatexclude smaller political parties from representation in the European Parliamentoccupy a central place in constitutional and political debates. According to the DirectElections Act, Member States “may set a minimum threshold for the allocation ofseats” that “may not exceed 5 per cent of votes cast” (Art. 3(1)). Some national constitutional orders, however, embrace a strict notion of votingequality, and derogations from proportional representation are constitutionallyadmissible insofar as they are justified by compelling reasons. In the case of nationalEU electoral laws, the constitutionality of electoral thresholds can be measured,among other factors, against the functioning of the European Parliament and, moregenerally, of the institutional system of the Union. As of today, twelve Member Stateshave introduced electoral thresholds in their own EU electoral laws. Among them,Italy introduced a 4% threshold in 2009 in order to reduce party fragmentation and tostrengthen the relative weight of the main Italian political parties within the EuropeanParliament. The arguments of the Italian Constitutional CourtAs mentioned before, in its recent rulings on electoral laws the Italian ConstitutionalCourt made reference to the case law of the Bundesverfassungsgericht, also in orderto provide additional reasons for some rather innovative interpretations of domesticconstitutional provisions. In the latest judgment, differences clearly prevail oversimilarities. This is true both in general and specific terms.- 2 -On the one side, the Court embarks on a distinctive reading of the purpose ofproportional representation. The evolution of parliaments has showed that it isnecessary to overcome the idea of a “purely proportional registration of social andpolitical pluralism” and to put in place adequate mechanisms so as to ensure theefficiency of decision-making processes. In light of this, mechanisms of politicalrepresentation need to be re-considered. Indeed, political representation shouldnot be seen as a “mere mirror” of a given society. The differences between thisline of reasoning and the arguments of the German Constitutional Court is striking:the latter strongly emphasises the need to implement voting equality fully whenproportional representation is adopted. Accordingly, legislative discretion is heavilyreduced, all the more so when it comes to providing for derogations. A recurringidea in the German case law is the inherent partisanship of parliamentary majoritieswhen it comes to electoral issues (“die parlamentarische Mehrheit gewissermaßenin eigener Sache tätig wird”). The Italian Court, in turn, emphasises the widediscretionary power of the legislature that, however, should not be exercised in a“manifestly unreasonable” way.On the other side, the second part of the reasoning of the Italian Court is devotedto the meaning and purpose of the electoral threshold in the electoral law for theEuropean Parliament. As mentioned before, the referral decree of the Consiglio diStato made explicit reference to the case law of the German Federal ConstitutionalCourt. However, the Corte costituzionale clearly departs from this interpretiveapproach. In doing so, it cites the different result of the Czech judgment. TheItalian 4% threshold can be seen as compatible with the Constitution insofar asit is instrumental in providing governmental stability and ensuring the functioningof the European Parliament. On this point, the differences between the Italianjudgment and the German case law are most evident. First, the goal of a well-functioning assembly characterises the European Parliament in similar terms asit happens in national parliaments. In this respect, the Italian Court refrains fromtracing a clear distinction between national and supranational democracy as well as,correspondingly, between a national parliament and the European Parliament. In thisrespect, there is, at least to some extent, a continuity rather than a hiatus betweennational and supranational democracy.This interpretive framework enables the Italian Court to draw clearly differentconclusions from the analysis of EU primary law than the German Court did in 2011and 2014. After the entry into force of the Lisbon Treaty, “an unquestionable changeof the form of government of the European Union” is taking place. The increasingrelevance of the legislative, budgetary, control and consultative powers of theEuropean Parliament combinedly testify to this trend. Furthermore, the EuropeanParliament elects the President of the European Commission and can force theCommission to resign if a motion of censure is passed. Under such circumstances,appropriate tools to favour the formation of a majority within the Parliament areurgently needed. The 4% threshold passes the reasonableness (or proportionality)test because its task is to prevent excessive party fragmentation and, consequently,facilitate the emergence of a majority. The issue comes full circle, as the highlypolitical nature of electoral laws is matched by the wide discretion accorded to thelegislature. Unlike the Bundesverfassungsgericht, the Italian Court has not looked- 3 -into the daily routine of the European Parliament and the way its parliamentarygroups co-operate or confront each other: rather, it has pointed to an ongoingprocess of constitutional transformation that plausibly makes the case for thecompatibility of the electoral threshold with the Italian Constitution.A final point which deserves mention is whether or not a national electoral thresholdis actually able to attain its alleged purpose if only some Member States haveintroduced them into their own electoral laws for the European Parliament. Thisissue was not really addressed by the Bundesverfassungsgericht in its twojudgments, if not for the dissenting opinion submitted by Justices Di Fabio andMellinghoff (BVerfGE 129, 300, 352-53), whereas the Czech Court dealt with itextensively. Again, the Italian Constitutional Court has stressed that the rationalisingeffort of the Italian electoral law is part of an ongoing process of transnationalconstitutional change, whose ultimate result should be the adoption of a uniformelectoral procedure under Art. 223(1) TFEU and a decisive rationalisation of powerrelationships within the European Parliament.An ongoing institutional evolutionBecause of some distinctive features of the Italian model of constitutional review,the Corte costituzionale has rendered relatively few Europa-Urteile in whichspecific aspects of the supranational legal order and its institutional system werein the spotlight (this is not the case, of course, of the relation between EU lawand domestic law). In light of this, the present judgment represents an exception:the Court has addressed crucial features of the form of government of the Unionin order to assess the “reasonableness” of a legislative derogation from votingequality. The Court has presented its own arguments quite concisely and hinted atan institutional evolution that is still ongoing. Unlike the Bundesverfassungsgericht,which focused in-depth on the European state of affairs at a given stage, the Cortecostituzionale has pointed to a gradual evolutionary development towards“a rationalisation of the representation of political forces within the Europeanparliamentary assembly”. In this respect, Italy, like the other Member States carriesa peculiar responsibility: the process may well be incremental but the decisions ofnational legislatures can be seen as the necessary intermediate steps. As the Courtstated, the Italian 4% threshold represents, just like those of any other MemberStates, “a necessary (but not sufficient) condition to pursue this goal”. As I havestressed above, it is possible to detect a circular relationship between the piecemealevolution that is gradually taking shape and the wide discretionary power of thenational legislature in adopting the electoral law for the European Parliament: the linkbetween them – and the most relevant difference with the interpretive approach ofthe Bundesverfassungsgericht – is that both national parliaments and the EuropeanParliament have to face similar challenges.- 4 -

Rationalising political representation within the European Parliament: the Italian Constitutional Court rules on the threshold for the European elections

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Rationalising political representation within the European Parliament: the Italian Constitutional Court rules on the threshold for the European elections

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