Towards a truly European parliamentary mandate

This contribution raises two central claims: first, it will argue that, despite direct and free elections of the European Parliament, there are still no fully integrated European parliamentary elections and no common parliamentary mandate. However, it will also show that the Court of Justice of the European Union (CJEU), in its rulings in in the cases of Junqueras and Puigdemont, has – in passing and largely unnoticed – taken an important step towards harmonization of electoral rules, effectively outlawing a number of national practices.

The European Parliament has only been directly elected since 1979. The parliament of the European Union – today the democratic centrepiece of the bloc – evolved out of an institution very similar in role and composition to the Parliamentary Assembly of the Council of Europe: its members were at primary instance delegates from the national parliaments of member states, elected there under national procedure and equipped with a mandate created and governed by national law, coated over with but a thin veneer of common European Rules.

While the European Parliament today is supposed to be the democratic centrepiece of the European Union and thus finds itself in a very different constitutional position, the transition from delegated membership to direct elections almost half a century ago has not resulted in a fully independent European parliamentary mandate. Instead, the electoral law for the European Parliament as well as the law regulating the European parliamentary mandate (prominently including rules of parliamentary immunity) became a strange hybrid between European and national legislation. Next to the requirement that elections ‘shall be by direct universal suffrage and shall be free and secret’ and a provision saying that elections must take place within the same four-day period across all member states, European electoral law merely specifies that the electoral system must be one of proportional representation and that the establishment of an electoral threshold of up to 5% is permitted but not required, in line with the electoral traditions of some member states. Beyond this framework, European elections remain, in the words of Article 8 of the European Electoral Act 1976, to be ‘governed in each Member State by its national provisions’, which may ‘if appropriate take account of the specific situation in the Member States, [but] shall not affect the essentially proportional nature of the voting system’.

As a result of this thin framework of European electoral rules and the reference to national law for details, the minutiae of the election process can differ considerably between member states. Such differences may e.g. relate to the minimum age to vote and stand for election, conditions for the nomination of candidates, the allocation of seats vacated during the electoral term, and the imposition of additional requirements some member states may impose, such as swearing an oath on the national constitution. Other aspects, such as the precise moment at which the mandate begins (e.g. for immunity purposes) remain unclear.

In recent rulings (Junqueras, Puigdemont) the CJEU has provided an interpretation of European electoral rules that renders some of the national practices of EU member states effectively unlawful.