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Hurdle cleared

November 9, 2011

In Germany, parties contesting for seats in European parliament have had to win five percent of the vote to send representatives to Strasbourg. Now, the constitutional court has declared this rule unconstitutional.

Judges in the Second Senate of the constitutional court in Karsruhe file towards their seats
The majority was narrow, and two judges lodged dissentImage: AP

In German elections, a party must get at least five percent of the vote to qualify for seats in the lower house of parliament. That rule has also applied in European parliament elections here, until now. The Constitutional Court has ruled that, in the case of the parliament in Strasbourg, the "five percent hurdle" is unconstitutional.

The court ruled on Wednesday that the restriction went against the German constitutional requirement for "equal opportunities for [political] parties," and also disenfranchised voters who chose smaller parties. From now on, the law is therefore void.

The court also said, however, that the result of the 2009 European elections in Germany would remain valid despite the ruling, and that the ballot did not need to be repeated. Five of the panel of eight judges at the Second Senate of the Karlsruhe court supported the ruling; two of those who opposed it also chose to officially submit dissenting opinions.

The plenary room of the European Parliament in Strasbourg
Seven German parties might have had seats in this plenary roomImage: AP

Seven German parties, including the Animal Protection Party, the Family Party, the Pirates and the Pensioners' Party all missed the five-percent cut in 2009, despite securing sufficient votes to win at least one seat. The judgment is the result of a complaint filed by three individuals who pointed out that the rule led to roughly 2.8 million German ballots being ignored. Larger German parties received more seats in Strasbourg - proportionally to their share of the popular vote - to compensate.

Strasbourg different to Bundestag

The 'five percent hurdle' was incorporated in European Parliament votes in Germany to mirror the domestic electoral system. The Karlsruhe court, however, said that its ruling did not impact on votes for the German lower house of parliament, the Bundestag. It cited the structural differences between the two parliaments as justification for this.

Unlike the Bundestag, the court said, the European Parliament did not require a stable majority coalition in order to function and to legislate.

A leading parliamentarian for the Social Democrats, Thomas Oppermann, said that he believed this ruling would have "no effects on Bundestag elections." He said that in the Germany the five percent hurdle had "prevented the splintering of the party landscape on the one hand, while also making it possible to bring new parties into the Bundestag."

Constitutional lawyer Hans Herbert von Arnim, who put the case to the court with the help of two voters, described the ruling as "a good day for democracy." He also lauded the court for sending a message to Berlin that "we still have judges in Karlsruhe who will assert themselves against the interest of the political classes."

The decision is likely to reduce slightly the representation of the major German parties in Strasbourg after the next European Parliament elections in 2014.

Author: Mark Hallam (AFP, dapd, dpa, Reuters)
Editor: Michael Lawton