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Ralf Grahn

European election law

How much of a joke is a uniform electoral code for the European elections?

It took from 1952 to 1979 to get the first directly elected Assembly for the European Communities.


Article 190(4) of the Treaty establishing the European Community sets out a uniform election code as the first option:

4. The European Parliament shall draw up a proposal for elections by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.

The Council shall, acting unanimously after obtaining the assent of the European Parliament, which shall act by a majority of its component members, lay down the appropriate provisions, which it shall recommend to Member States for adoption in accordance with their respective constitutional requirements.


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The substance remains the same in the Lisbon Treaty, in Article 223(1) of the Treaty on the Functioning of the European Union (TFEU).


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Repeated failure

The European Parliament’s efforts have been in vain, because both currently and under the Treaty of Lisbon the decision has to be made by a unanimous Council and approved (ratified) by every member state.


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Common principles


On Eur-Lex we find the rudiments of the historically important ‘sui generis’ decision 76/787/ECSC, EEC, Euratom: Decision of the representatives of the Member States meeting in the council relating to the Act concerning the election of the representatives of the Assembly by direct universal suffrage (published OJ 8.10.1976 L 278/1) here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:41976D0787:EN:HTML


Here is the available text:
DECISION (76/787/ECSC, EEC, Euratom)
THE COUNCIL
composed of the representatives of the Member States and acting unanimously,
Having regard to Article 21 (3) of the Treaty establishing the European Coal and Steel Community,
Having regard to Article 138 (3) of the Treaty establishing the European Economic Community,
Having regard to Article 108 (3) of the Treaty establishing the European Atomic Energy Community,
Having regard to the proposal from the Assembly,
Intending to give effect to the conclusions of the European Council in Rome on 1 and 2 December 1975, that the election of the Assembly should be held on a single date within the period May/June 1978,
Has laid down the provisions annexed to this Decision which it recommends to the Member States for adoption in accordance with their respective constitutional requirements.
This Decision and the provisions annexed hereto shall be published in the Official Journal of the European Communities.
The Member States shall notify the Secretary-General of the Council of the European Communities without delay of the completion of the procedures necessary in accordance with their respective constitutional requirements for the adoption of the provisions annexed to this Decision.
This Decision shall enter into force on the day of its publication in the Official Journal of the European Communities.
Udfærdiget i Bruxelles, den tyvende september nitten hundrede og seksoghalvfjerds.
Geschehen zu Brüssel am zwanzigsten September neunzehnhundertsechsundsiebzig.
Done at Brussels on the twentieth day of September in the year one thousand nine hundred and seventy-six.
Fait à Bruxelles, le vingt septembre mil neuf cent soixante-seize.
Arna dhéanamh sa Bhruiséil, an fichiú lá de mhí Mhéan Fómhair, míle naoi gcéad seachtó a sé.
Fatto a Bruxelles, addì venti settembre millenovecentosettantasei.
Gedaan te Brussel, de twintigste september negentienhonderd zesenzeventig.
For Rådet for De europæiske Fællesskaber
Für den Rat der Europäischen Gemeinschaften
For the Council of the European Communities
Pour le Conseil des Communautés européennes
Thar ceann Chomhairle na gComhphobal Eorpach
Per il Consiglio delle Comunità europee
Voor de Raad van de Europese Gemeenschappen
Formand
Der Präsident
The President
Le président
An t-Uachtaran
Il Presidente
De Voorzitter >PIC FILE= "T0010317">
>PIC FILE= "T0010318">
>PIC FILE= "T0010319">
***

The text of the corrigendum (published OJ 25.11.1976 L 326/32) is unavailable.

We see that provisions have been annexed to the decision, but the annexes are unavailable.

No searches yield documents based on this document.


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The end of the beginning

With the help of literature we find out that there is an amending decision, which we find.

Council Decision 2002/772/EC, Euratom of 25 June and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to the decision 76/787/ECSC, EEC, Euratom (published OJ 21.10.2002 L 283/1).

The amending Council decision is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:283:0001:0004:EN:PDF


We have a text amending not readily available annexes and without a consolidated text. Still, some common principles emerge from the amendments where whole Articles appear:

Here are some common principles in shortened form:

· Proportional representation based on the list system or the single transferable vote
· A preferential list system as an option for member states
· Direct universal suffrage with free and secret vote
· Member states decide constituencies or electoral areas without generally affecting the proportional nature of the voting system
· Maximum national threshold of votes cast is 5 per cent
· National ceiling for candidates’ campaign expenses is possible
· MEPs enjoy the privileges and immunities applicable to them according to the Protocol of 8 April 1965 on the privileges and immunities of the European Communities
· From the 2004 European elections an MEP’s office is incompatible with that of a member of a national parliament
· National provisions rule the electoral procedure in each member state, subject to the provisions of the Act

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Prayer

How much of a joke is a uniform electoral code for the European elections? It comes closer to being a disgrace. The same goes for the presentation.


Electoral laws come fairly close to constitutions in most jurisdictions. The acts concerning citizens’ right to vote are important historically and for their democratic value.

Not only has the European Union failed to enact a uniform electoral code. The little there is can be described as incomplete, partly unreadable and far from accessible.

The European Parliament, at least, should start taking citizens’ political rights seriously. The next step could be to publish the existing electoral principles in full for all interested citizens to read.

European elections ─ It’s your choice!


Ralf Grahn

To Peter Davidson on the European Union

Peter Davidson wrote a thoughtful comment on the post ‘Government and consent’. It would have stayed ‘hidden’ there if I had responded in the comments section, but after a while I thought that I could draw attention to it by making my answer a separate post and request the readers to reflect on Davidson’s thoughts.

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Peter Davidson,

You offer such a rich source of reflections that it is hard to know where to begin. But I will try to comment on at least a few of them:

1) Actually, just a little while before reading your comment, I was contemplating on the vogue among European politicians to decry a European super-state, when our common interests seem to call for at least a European super-power. And a super-power without effective institutions does not work. In other words, they would have to be state-like (effective and democratic).

In my view, the brevity of the US Constitution is an ideal; actually it would be even shorter without some redundant stuff on slave trade and slave population.

But I imagine that the Federal Republic of Europe would be a parliamentary democracy, more in line with European traditions, not a presidential one. (Poland and the Czech Republic as well as ‘cohabitation’ offer some examples of why hydras with one head might be preferred.)

In today’s terms the Lisbon Treaty version of the Treaty on European Union, less the provisions on the common foreign and security policy (including the common security and defence policy), might be a suitable temporary basic law for the citizens of the European Union, provided that the member states pledged to institute a real parliamentary democracy and to eliminate the paralysing unanimity principle.

2) I agree that the EU seems to develop mainly through humiliating experiences. In essence, I support the modest Lisbon Treaty amendments as a step in the right direction, but I see the paternalistic European project heading for failure without the support of the citizens.

No amount of citizens’ forums and public relations exercises is going to bridge the gap between the EU leaders and the union’s citizens. Only real political rights will do.

Enhanced intergovernmental cooperation based on the Treaty of Nice offers fairly slim opportunities substantively, and it would only increase the legitimacy gap.

3) I am not on a sure footing with regard to the regions you mention. With common European rules covering cross-border trade and human contacts and a united Europe facing the world, I imagine that secession by regions would not be a catastrophe.

There is, however, one important aspect that would have to be rectified. Nowadays, the smallest EU member states are overrepresented. It would not be fair to aggravate this lack of balance further.

In my view, the future EU should be closer to the principle of one man, one vote (with the second chamber of the European Parliament the notable exception).

4) Instead of the Lisbon Treaty withering away, I would say that its modest reforms are welcome, but that I hope for the reform to succeed only with the add-ons of democratic reform and a scrapping of the liberum veto.

5) Without the CFSP and the CSDP the Lisbon Treaty is not structurally that far from the ‘brief statement’ you call for.

6) I think that there are some genuinely European politicians among the European level parties, and I imagine that at least you and I are among the citizens who try to discuss in the terms of common interests.

Appeal is another matter, but we shall see. Although many Europeans seem to long for national level politics to save them from both globalisation and the EU, I think that great enough numbers would be mature enough to embrace European level democracy if offered and explained to them.


Ralf Grahn

European demos

For the anti-EU crowd it is standard fare to deny the existence of a European demos or people, and even the prospect of one. Some even deny the existence of EU citizenship. Hasn’t the allegation that the Constitutional Treaty and the Lisbon Treaty would ‘enforce’ an EU citizenship been one of the popular myths surrounding treaty reform?

Their concept is more akin to ‘Blut und Boden’ myths than to reasoning based on citizenship and political rights.

Since the Maastricht Treaty entered into force, 1 November 1993, every citizen of an EU member state is a citizen of the European Union.

But the political rights are underdeveloped.

Granting the citizens of the union the main political rights – to vote the officeholders into and out of office and to set the course for the EU – would create the European demos.

It is as simple as that, but until now the governments of the member states have preferred to cashier the meaningful ballot.

Crudely put, the current European demos consists of 27 persons at a time.


Ralf Grahn

Fifth freedom? What about the basic ones?

The European Council was up to some grandstanding again at its spring gathering. The presidency conclusions brought us the following visions (Presidency conclusions, document 7652/08):


“In order to become a truly modern and competitive economy, and building on the work carried out on the future of science and technology and on the modernisation of universities, Member States and the EU must remove barriers to the free movement of knowledge by creating a "fifth freedom" based on:
• enhancing the cross-border mobility of researchers, as well as students, scientists, and university teaching staff,
• making the labour market for European researchers more open and competitive,
providing better career structures, transparency and family-friendliness,
• further implementing higher education reforms,
• facilitating and promoting the optimal use of intellectual property created in public research organisations so as to increase knowledge transfer to industry, in particular through an "IP Charter" to be adopted before the end of the year,
• encouraging open access to knowledge and open innovation,
• fostering scientific excellence,
• launching a new generation of world-class research facilities,
• promoting the mutual recognition of qualifications.”

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Sounds fine, until you start thinking that Europeans are more than worker ants, toiling away to amass resources to be redistributed by politicians.

Four market freedoms of free movement are all right, but we Europeans are citizens, too. And when we pause to think about the European leadership in action, we come to the sad conclusion that they have cared little for our political and citizenship rights of late.

Are they the leaders who have shown no signs to open up the running for the presidency of the European Council or the High Representative for public scrutiny or democratic accountability?

Are they the leaders who profess the value of democracy both internally and externally, but show little signs of relinquishing the ‘managed democracy’ they have instituted at EU level?

Are these the same leaders who for months on end have stonewalled publishing the coming and now signed Lisbon Treaty in readable, consolidated versions, even if the amending treaty is the most important document to be produced within the European Union since 2004?

Are they the Commission and the European Parliament who have been content to let the Council keep the citizens in the dark?

Are they the European Parliament, which as an institution has sided with its ‘culturally diverse’ membership against calls for publishing and rooting out the squandering and misappropriation of public funds?

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The common denominator for the questions above seems to be that less than free movement of knowledge has been the express desire of the honourable men (and women), who have taken upon themselves the burden to uphold their prerogatives.

By all means, remove barriers to the free movement of knowledge by creating a "fifth freedom", but start by giving EU citizens grown ups’ rights.


Ralf Grahn