We are now in a problematic situation with regard to the so called “ghost MEPs”, the additional members provided for by the Lisbon Treaty, plus the problem of three elected “supernumeraries” from Germany.
The latest official conclusions from the EU member states have been inconclusive, but Nicolas Gros-Verheyde on the French blog Europe sociale au jour le jour has a great post on the latest developments: La designation des députés supplémentaires conforme à la Charte des Droits? (13 December 2009).
According to the post, designating additional MEPs by national parliaments, without a direct election, seems to contravene the Lisbon Treaty and the Charter of Fundamental Rights.
Two more problems
Let me just add two more problems, which severely limit the scope for “creativity” by the member state governments. In my humble opinion:
1) Article 223 of the Treaty on the Functioning of the European Union (TFEU) provides that the rules for the election of MEPs are laid down by the Council on a proposal by the European Parliament (and later after obtaining its consent). Can an intergovernmental conference dispense with this provision? Hardly.
Anyway, an IGC without a Convention would need the consent of the European Parliament under the Lisbon Treaty (Article 48(3) TEU).
2) Not only does the treaty (now Article 223(1) TFEU) require “direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States”, but the amended Act of 20 September 1976 concerning the election of the Members of the European Parliament by direct universal suffrage states that the elections have to be proportional:
1. In each Member State, members of the European Parliament shall be elected on the basis of proportional representation, using the list system or the single transferable vote.
2. Member States may authorise voting based on a preferential list system in accordance with the procedure they adopt.
3. Elections shall be by direct universal suffrage and shall be free and secret.
Source: Council Decision of 25 June and 23 September 2002 amending the Act of 20 September 1976 concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom, published OJ 21.10.2002 L 283/1.
Indirect appointments by national parliaments contravene the requirement for direct universal suffrage.
Future elections in the neglectful states would be “first past the post” elections, or close. In no way would they fulfil the criteria for proportional representation, with a maximum hurdle of 5 per cent nation-wide.
As far as I understand, the only legally tenable solution (in a bad situation) is to designate the new members of the European Parliament in the neglectful member states on the results of the June 2009 European Parliament elections, using objective criteria: the constituency next in line for an additional seat, the candidate next in line to win the seat.
P.S. Read, comment and discuss our future on the 494 euroblogs aggregated on multilingual Bloggingportal.eu, our common European “village well” for fact, opinion and gossip.