Concept and Legal Foundations of the European Election
The European election refers to the election to the European Parliament (EP), the directly elected body of the European Union (EU). It takes place in the member states of the EU in accordance with the provisions of European and national law, and is a central element of democratic legitimacy within the Union. The European election enables eligible citizens of the member states to send representatives to the European Parliament. This article examines the legal framework, regulations, and specific features associated with the term ‘European election.’
Historical Development and Legal Basis
Development of Direct Elections
The first direct election to the European Parliament took place in 1979, after the member states of the then European Economic Community (EEC) adopted the ‘Act Concerning the Election of the Representatives of the Assembly by Direct Universal Suffrage’ in 1976. Previously, the members were delegated by the national parliaments. Since then, the elections have been held every five years.
Contractual Basis
The legal basis is found in Article 14 of the Treaty on European Union (TEU) and Article 223 of the Treaty on the Functioning of the European Union (TFEU). These stipulate that MEPs are elected by universal, direct, free, and secret ballot for five years.
Electoral Provisions
Electoral Modalities at the European Level
The relevant European regulations contain requirements for universal, equal, direct, and secret elections. However, there is no uniform electoral law across Europe. Each member state can independently determine its electoral modalities while adhering to common principles (Art. 223 TFEU).
Seat Allocation and Electoral Threshold
The number of seats in the European Parliament is distributed among the member states in Annex I of the TFEU according to the principle of degressive proportionality. Each state receives a certain minimum number of seats; the maximum number is limited to 96 (e.g., Germany has 96, Malta has 6 seats). National legislation may stipulate an electoral threshold (for example, a 5% threshold), but this may not exceed five percent.
National Structure of the European Election
Electoral Systems of the Member States
While some basic principles are mandatory, the specific design, such as the electoral system (list voting, proportional representation, open/closed list), is up to the member states. The majority use a system of proportional representation.
Eligibility to Vote and Active/Passive Voting Rights
All nationals of a member state who reside in a member state are eligible to vote, provided they have reached the minimum voting age (generally 18 years, in some cases 16, as in Austria and Malta). Union citizens residing in another EU country may also vote and stand for election there.
Candidacy, Electoral Lists and Voting Procedure
Approval of Electoral Proposals
The approval of electoral lists and the nomination of candidates are governed by national law. Electoral proposals may be submitted by parties, political associations, and voters’ groups. Requirements and deadlines are stipulated by the electoral laws of the member states.
Conduct and Supervision
The conduct of the European election is the responsibility of the electoral authorities of each member state. Supervision is carried out by the national election administration, if necessary supplemented by national and international election observers.
Legal Protection and Challenges
Appeals Procedures
Decisions of the electoral bodies can be challenged in court by those affected. The respective national regulations on election review determine the manner of appeal, for example, through election review complaints before the competent courts.
Protection under Union Law
In cases involving questions of Union law, it is possible to refer the matter to the European Court of Justice (ECJ), for instance in disputes over the interpretation of EU electoral law provisions.
Special Legal Issues Regarding the European Election
Compatibility with International Law
The requirements of the European Convention on Human Rights, in particular the right to free and secret elections, must also be observed. European Union law and the international obligations of member states must be reconciled with regard to the conduct of the European election.
Data Protection and Electoral Secrecy
In connection with the exercise of voting rights, the protection of personal data and the secrecy of the ballot play a central role. The provisions of the General Data Protection Regulation (GDPR) and national data protection laws must be observed in addition to electoral law.
Principle of Equal Treatment
The prohibition of discrimination under Article 18 TFEU and the principle of equality in elections must be strictly observed with regard to the provisions on the right to vote and the conduct of the election.
Other Legal Consequences and Subsequent Processes
Commencement of Mandate and Immunity
Upon expiry of previous membership in the national or European Parliament, the mandate begins after notification by the national election authorities to the European Parliament. The members enjoy immunity under Articles 8 and 9 of the Protocol on the Privileges and Immunities of the European Union.
By-elections and Substitution
In the event of loss of mandate, for example through resignation or death, the next person on the electoral list moves up in most member states, unless a by-election is required.
Conclusion
From a legal perspective, the European election is a highly complex electoral process, embedded in an interplay of binding Europe-wide regulations and national legislation. The election to the European Parliament guarantees the democratic legitimacy of the Union and is a core component of the European integration process. Compliance with the fundamental principles of electoral law, the correct conduct of the election, and effective legal protection form the foundation for the implementation of the European principle of democracy.
Frequently Asked Questions
Who is eligible to vote in the European election under German law?
According to § 6 of the European Election Act (EuWG), all Germans within the meaning of Article 116(1) of the Basic Law who have reached the age of eighteen on election day are eligible to vote in the European election. Additionally, they must have had a residence in the Federal Republic of Germany or in one of the other member states of the European Union for at least three months or otherwise habitually reside there. Union citizens from other EU states who reside in Germany, have also reached the age of eighteen, and have met the above-mentioned period of residency are also eligible to vote. According to § 6(2) EuWG, certain persons are excluded from the election, for example, if they do not have the right to vote in Germany due to a court decision.
How is registration in the electoral register carried out and what deadlines apply?
Registration in the electoral register is generally carried out ex officio by the registration authority under the Federal Registration Act. Anyone registered with a registration authority 42 days before the election who meets the legal requirements is automatically entered in the electoral register (§ 17 EuWO). Union citizens from other EU member states must submit a formal application for registration in the electoral register according to § 17a EuWO; this application must be received by the relevant municipal authority no later than the 21st day before the election. Those who wish to participate in the European election from abroad (Germans abroad) and do not have a residence in Germany must register themselves in the electoral register within the same period by submitting an application to the electoral office of their last German municipality of residence.
What legal provisions apply to the nomination of party lists?
The nomination of lists for the European election is regulated by the European Election Act (§§ 8ff. EuWG) and the Political Parties Act. Parties and other political associations must submit their electoral proposals in the form of lists. According to § 8(1) EuWG, both federal lists and, for parties organized only in specific federal states, state lists may be put forward. The candidates on a list must be elected by secret ballot at a members’ meeting or by a delegates’ assembly (§ 21 of the Political Parties Act in conjunction with § 9 EuWG). The relevant documents and declarations of support must be submitted to the Federal Electoral Officer no later than 83 days before the election. The electoral proposals are then reviewed by the Federal Election Committee for legality.
What regulations govern voting and the procedure for postal voting?
Voting is primarily governed by the European Election Act (§§ 12-16 EuWG) and the European Election Ordinance (EuWO). Votes can be cast either in person at the polling station or by postal vote. Postal voting may be applied for in writing, electronically, or in person at the relevant municipal authority up to the second day before the election (§ 24 EuWO). Restrictions may apply regarding the timing, the return of documents, or, in the case of proven sudden illness, even on election day itself. Confidentiality and the personal casting of the vote must be strictly observed; the secrecy of the ballot must be maintained. A voting certificate is required for postal voting, which is issued upon request (§ 13 EuWG). If there are doubts about the validity of the voting documents, they may be declared invalid.
What legal remedies are available against decisions of the Election Committee or irregularities in the European election?
Decisions of the Federal Election Committee and established irregularities in the electoral process are subject to election review proceedings under § 26 EuWG. Every eligible voter, every party, and every candidate has the right to lodge an objection with the German Bundestag within two months after the official announcement of the election result. The objection must set out in detail the facts complained of and the infringement of electoral provisions. The Bundestag’s Election Review Committee examines the objections, can conduct hearings, and submits a proposal to the Bundestag for a decision. The Bundestag has the final say on the validity of the European election; an appeal against this decision may be lodged with the Federal Constitutional Court (§ 48 BVerfGG).
What legal regulations apply to election advertising and the financing of election campaigns?
The legal foundations for election advertising and the financing of election campaigns derive from the Political Parties Act (PartG), the European Election Act, and other relevant regulations, such as data protection and broadcasting law. According to § 20 PartG, donations to parties as well as their disclosure and audit are regulated. Public spaces for election posters are allocated according to municipal statutes, while the principle of equal opportunities (Art. 21(1) Basic Law) must be observed. In broadcasting and television, parties are entitled to appropriate coverage within the framework of statutory provisions (State Treaty on Broadcasting). Manipulative or misleading election advertising, such as through disinformation or foreign interference, may also be criminally relevant (§§ 108a-108c StGB).
What regulations apply to the publication and announcement of the election result?
The official result of the European election is determined by the Federal Returning Officer for the entire federal territory in accordance with § 20 EuWG and published in the Federal Gazette as well as through a public announcement. The determination takes place after evaluation of the records of the district and state returning officers. Transmission to the European Parliament is carried out in accordance with binding EU directives. Publication must take place within a few days and includes, in addition to the overall result, the allocation of seats to the individual parties and lists. Erroneous announcements or objections to the determination are subject to the aforementioned election review procedure.
