Towards more “European” parliamentary elections?

On 3 May 2022, the European Parliament (EP) adopted a legislative initiative report that seeks to reform the European Union’s Electoral Act. This Act dates back to 1976, and has since then gone through two amendments in 2002 and 2018 (despite the latter not being in force yet).

The current electoral system in the European Union

The European Electoral Act was established by the Council Decision of the 25 June and 23 September 2002, which amended the Act concerning the election of the representatives of the European Parliament by direct universal suffrage. The latter was set out by a Decision of the Council, composed by the representatives of the Member States, in 1976.

The current electoral system does not provide a uniform procedure applicable to all the Member States: indeed, EU electoral rules only set out general principles, and it is the competence of the Member States to follow these common guidelines and to subsequently establish their legislation in this regard. The system that comes out from the current law in force generates no harmonization among the Member States in areas such as the minimum age for voting or the practical methods for casting a vote. Even the optional or compulsory nature of voting remains regulated by national legislation. The lack of uniformity in the European Parliament’s electoral law is evidenced by the presence, in some national legal systems, of a practice called “disenfranchisement”. Such a term implies the deprivation of the right to vote of a citizen after a protracted period of residence outside his or her home state. Despite the efforts on the part of the European Parliament to encourage the Member States to put aside this practice, the conditions for granting or withdrawing citizenship, as well as the obligations pertaining to it, remain under the scope of national law (as stated by the European Court of Human Rights’ Schindler v. UK case).

The system in place, as envisaged by the European Electoral law of 1976, foresees the obligation of establishing a proportional voting system that allows the Member States to determine the procedure applicable in cases where preferential lists are used, as well as to set the constituencies. The electoral procedure and the electoral period are not covered by the European Electoral Act either, being instead governed by national law.

The potential new electoral law

As it is evidenced by the provisions outlined above, Member States have great power over the development of the Members of the European Parliament (MEPs) elections. Indeed, they have ample room for decision-making when it comes to setting out the characteristics and different procedures of European parliamentary elections in their jurisdictions. Some issues, such as guaranteeing gender balance among the representatives, are not envisaged at all. The new European Electoral law has the aim of overcoming the lack of homogeneity of the elections across the EU and of “europeanising” the electoral process.

In line with this, the key points of the proposed new Electoral law can be summarised as follows:

1. The creation of 28 seats of Euro-parliamentarians elected through EU-wide lists, with the aim of ensuring a balanced geographical representation. Their constituency would be the whole European Union.
2. Increasing gender equality within the European Parliament by setting up “zipped lists” that would alternate male and female candidates or quotas.
3. The establishment of the right to vote for the European Parliament for individuals of 16 years and older.
4. Providing equal access to vote to European citizens, including people with disabilities, by providing the possibility of postal voting in all Member States;
5. The possibility for European voters to choose the President of the European Commission, in a procedure where every political group would propose a lead candidate (Spitzenkandidaten).
6. A unified date for elections all over the European Union (the 9 May was proposed, since it is “Europe Day”)
7. The establishment of a unified European electoral authority with the aim of supervising the electoral process and guaranteeing the respect of the rules.

Additionally, in this new Electoral law, two votes would be granted to each citizen: one to elect MEPs in a national constituency, and another to elect a MEP in an EU-wide constituency.

The establishment of transnational lists for pan-European constituencies, as well as the Spitzenkandidaten process, are not new among the proposals that were put in place through the years in order to “europeanise” the election of MEPs. However, these proposals found little success when their adoption was attempted in the past. Nevertheless, the new European Electoral law retrieves and envisages them too, seeing them as an asset for holding “truly” European elections.

Next steps

As established in Article 223 of the Treaty on the Functioning of the European Union (TFEU), the Parliament’s legislative initiative for the new Electoral law would need to be approved unanimously by the Council. It would then come back to the Parliament so that MEPs can give their consent before being approved by all Member States in accordance with their respective constitutional requirements. When Member States adopt their position, negotiations with the Council will start.

Such a measure would be a relevant step towards the creation of a veritable “European demos”. Without these changes, it is doubtful that a pan-European democracy would be sustainable or legitimate to make decisions. Furthermore, this could also set up a new trend with regard to the “European integration paradox”, in contrast to the one that has been signaled by academics since the Maastricht Treaty was signed. Scholars point out the growing European integration “without supranalism”, which entails a loss of power on the part of supranational institutions (e.g. the European Commission) at the advantage of the Member States, and hence, of the European Council. In line with this, the appointment, on the part of European citizens, of the President of the European Commission through the establishment of this new European Electoral law would be helpful to overcome what has been described as the “European democratic deficit”, providing more accountability to the Members of the European Parliament and making EU citizens feel more European.