In The Matter Of The Application For Revocation Of The Act No. 62/2003 Coll.

Original Language Title: ve věci návrhu na zrušení části zákona č. 62/2003 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=84360&nr=176~2F2015~20Sb.&ft=txt

176/2015 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided under the SP. zn. PL. ÚS 14/14 of 19 June. may 2015 in

the plenary consisting of the President of the Court, Pavel Rychetský and judges Jaroslav

Fenyka, Vlasta Formánkové, Vladimir Crust, Thomas Too, Jana

Musil, Vladimir Sládečka, Radovan Suchánka, Catherine Šimáčkové,

Vojtěch Šimíčka, Milady Tomková, and Jiří Zemánka (Judge-Rapporteur)

design of the Supreme Administrative Court to repeal section 47 of Act No. 62/2003

Coll., on elections to the European Parliament and amending certain laws, and section

paragraph 48. 1 in the words ", which promoted to skrutinia," the same law

with the participation of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as

the parties to proceedings



as follows:



The proposal is rejected.



Justification



(I).



The proposal on initiating the procedure



I.)



Course of the proceedings before the Supreme Administrative Court



1. The Supreme Administrative Court (hereinafter "the appellant") discussed the thing

they and Mgr. Alexandra) Charcoal, b) and (c)) Pavlíny Pacákové Parties

Green, all represented by lawyer Paul, about the proposal on the

annulling the election candidates by Mgr. Tomas Zdechovského and Ing.

Mgr. Miroslav Poche in elections to the European Parliament, held in

23. and 24. 5. in 2014.



2. In its resolution of 24 September 2003. 6.2014 no j. Vol 16/2014-69 the Supreme Administrative

the court interrupted the proceedings and according to the article. paragraph 95. 2 of the Constitution of the Czech Republic

(hereinafter referred to as "the Constitution"), the same day the Constitutional Court submitted a proposal to

repeal of the provisions of section 47 and section 48 paragraph. 1 in the words "that qualified

in the skrutinia, "the Act No. 62/2003 Coll., on elections to the European

Parliament and amendment to certain laws. Proceedings on time before

The Constitutional Court on the application for revocation of the contested provisions.



And (b))



The essential content of the proposal



3. The Supreme Administrative Court based on that article. 223 of the Treaty of

the functioning of the European Union (hereinafter referred to as the "TFEU") assumes the uniform electoral

procedure for elections to the European Parliament, but not to him has not been

adopted by the implementing regulation. Therefore represents the decision of the representatives of the

the Member States in the Council 76/787/ECSC, EEC, Euratom of 20 September. 9. on the

the election of the members of the European Parliament by direct universal suffrage

(referred to hereinafter as "the Act"), as supplemented by Council decision 2002/772/EC, Euratom,

only a common framework in which they are currently moving around the Member States

When adopting national adjustments. The provisions of the article. 1 of the Act (in the

consolidated text) stipulates that the members of the European Parliament have

in each Member State be elected by "proportional representation".

The provisions of the article. 2 retains the right of Member States to establish the electoral

circuits or otherwise break down their electoral area, if not

the overall affect the proportional nature of the voting system. And finally, the article. 3

The Act allows Member States to "establish a minimum threshold for the allocation of

mandates. This threshold may not be on the national level,

exceed 5% of the votes cast. " The provisions of the article. 8 of the Act then

modifies the relationship to national legislation as follows: "subject to the

the provisions of this Act, the electoral procedure in each Member State a controls

national provisions. These national provisions, which may

or, if appropriate, take into account the particularities in the Member

States, shall be without prejudice to the overall proportional nature of the voting system. "



4. On 22. 11. the European Parliament adopted a resolution to the 2012 election

The European Parliament in 2014 [2012/2829 (RSP)], in which it called upon the

the Member States, "to its electoral law in accordance with article 3 of the [Act]

establish appropriate and balanced minimum limits for the allocation of seats to

so take due account of the choice of the citizens, which they expressed in the elections, and

at the same time to ensure the functionality of the Parliament ". This call has made the European

Parliament, in particular with regard to the new layout of the elections of the European Commission,

introduced by (1 December 2009) the Lisbon Treaty amending

The Treaty on European Union and to the Treaty establishing the European Community

(hereinafter referred to as "the Lisbon Agreement"), and with regard to changes in the relationship between

The European Parliament and the European Commission, which will occur starting from the

elections in 2014. The European Parliament expressed a presumption that

reliable a majority of MEPs will be essential for the stability of the

the legislative procedures of the European Union (EU) and the good

the functioning of its Executive.



5. the applicant stems from the fact that in the Czech Republic is established by law

5 clause for elections to the European Parliament.

European law allows such editing, provided that it will not be generally

without prejudice to the proportional nature of the voting system. However, the Member does not

States to introduce a clause to the closing, so these options are

governed by the national law as a whole.



6. In the elections to the European Parliament, held in may 2014, were on the

the basis of the provisions of the Act No. 62/2003 Coll., on elections to the

The European Parliament and on the amendment to certain acts, as amended

Regulations (hereinafter "the European elections Act" or the "law on elections

to the European Parliament ") the mandates of parliamentarians in the Czech Republic

divided as follows:

---------------------------------------------------------------------------------------------------------------------------------------

Page Valid votes Electoral divisor Mandates

---------------------------------------------------------------------------------------------------------------------------------------

no name total% 12 3 4 5

---------------------------------------------------------------------------------------------------------------------------------------

5 Christian and democratic Union-150 792 9.95 150,792 75396 50264 37698 30158.4 3

Czechoslovak people's Party

---------------------------------------------------------------------------------------------------------------------------------------

7 the coalition of TOP 09 and STAN 241 747 15.95 120,873.5 80582.34 60436.75 48349.4 241,747 4

---------------------------------------------------------------------------------------------------------------------------------------

10 of the Communist Party of Bohemia 166 478 10.98 166,478 83239 55492.67 41619.5 33295.6 3

and Moravia

---------------------------------------------------------------------------------------------------------------------------------------

14 Czech party 214 800 14.17 214,800 107,400 71600 53700 42960 4

the Democratic

---------------------------------------------------------------------------------------------------------------------------------------

16 YES 2011 244 501 244,501 122,250.5 81500.34 61125.25 16.13 48900.2 4

---------------------------------------------------------------------------------------------------------------------------------------

20 Civic Democratic Party 116 389 7.67 116,389 58194.5 38796.34 29097.25 23277.8 2

---------------------------------------------------------------------------------------------------------------------------------------

24 of the party of free citizens 79 540 5.24 79540 39770 19885 15908 1 26513.34



7. If, however, the five percent clause was not

applied, the mandates of the divided the following way:



---------------------------------------------------------------------------------------------------------------------------------------

Page Valid votes Electoral divisor Mandates

---------------------------------------------------------------------------------------------------------------------------------------

no name total% 12 3 4 5

---------------------------------------------------------------------------------------------------------------------------------------

5 Christian and democratic Union-150 792 9.95 150,792 75396 50264 37698 30158.4 2

Czechoslovak people's Party

---------------------------------------------------------------------------------------------------------------------------------------

7 the coalition of TOP 09 and STAN 241 747 15.95 120,873.5 80582.34 60436.75 48349.4 241,747 4



---------------------------------------------------------------------------------------------------------------------------------------

10 of the Communist Party of Bohemia 166 478 10.98 166,478 83239 55492.67 41619.5 33295.6 3

and Moravia

---------------------------------------------------------------------------------------------------------------------------------------

14 Czech party 214 800 14.17 214,800 107,400 71600 53700 42960 3

the Democratic

---------------------------------------------------------------------------------------------------------------------------------------

16 YES 2011 244 501 244,501 122,250.5 81500.34 61125.25 16.13 48900.2 4



---------------------------------------------------------------------------------------------------------------------------------------

20 Civic Democratic Party 116 389 7.67 116,389 58194.5 38796.34 29097.25 23277.8 2



---------------------------------------------------------------------------------------------------------------------------------------
23 Green Party 57 240 3.77 57240 28620 19080 14310 11448 1

---------------------------------------------------------------------------------------------------------------------------------------

24 of the party of free citizens 79 540 5.24 79540 39770 19885 15908 1 26513.34

---------------------------------------------------------------------------------------------------------------------------------------

32 Czech Pirate Party 72 514 4.78 72514 36257 24171.34 18128.5 14502.8 1

---------------------------------------------------------------------------------------------------------------------------------------



8. From these figures, it is in the opinion of the Supreme Administrative Court of the obvious

the truth of the assertion that they, as a result of the application of the legal

5 clause were also among other elected candidates

Thomas East (KDU-ČSL) and Miroslav Poche (CSSD), while otherwise

These two mandates have acquired Ivan Bartos [Czech Pirate Party (

"the Pirates")] and Ondřej Liška (the Green Party).



9. The Supreme Administrative Court submits that from the perspective of voters, the parties, which was

due to the closing of the disposed skrutinia clause, "confiscation" occurs

his voice. Political view of such voters as a result, it is no

in a way represented in the City Council and is not present in its

decision making. Due to the limited number of mandates and to the fact that the mandate of the

is not divisible, it will naturally always be a group of such

nereprezentovaných voters of small parties. However, as a result of the application

clause increased in elections to the European Parliament in

2014 the number of valid votes, but considered on 301 245, 19.88

% of the total number of valid votes. The percentage of unrepresented

voters thus exceeded even the most successful party in the electoral profit

election (YES 2011, who won 244 501, i.e. 16.13% of the valid votes).

Furthermore, from the perspective of candidates can be pointed out also that, as a result of

the application clause is a party, at which they stood,

However, the achieved percentage of the result, automatically sorted

from skrutinia. This formal mandates become in terms of

of the votes cast "cheaper" for the party, which in turn shut-off

clause outperform. This can be demonstrated in the elections in 2014, when

the lowest number of votes sufficient to mandate the number of 50 264

(i.e., the number of votes cast for the KDU-CSL divided by three), while the pirates

was not sufficient to obtain at least one mandate nor a significantly higher number of

of the votes cast, namely 72 514. From the perspective of access to elected functions

You cannot disregard the fact that the disposal of skrutinia lapse also

all cast preferential votes. In these elections, for example,

the first release candidate of the pirates won 12 644 Ivan Bartos preferential votes and

became member of the European Parliament, while the more successful of the two

contested candidates Thomas East was unable to get even half the number of

preferential votes (total 5 063).



10. In the opinion of the appellant as the contested statutory provisions restrict the

free, respectively. the free competition of political forces in the Democratic

[article 5, of the Constitution, or article 22 of the Charter of fundamental rights and

freedoms (the "Charter")], the equality of rights of all voters to vote

(article 21, paragraph 3, of the Charter) and the right of access of citizens to the elected functions for

equal conditions (article 21, paragraph 4, of the Charter). Such political constraints

the rights would be permitted, provided that the objective is legitimate and the monitor

It would be eligible to achieve this objective, it would be necessary, and at the same time

the solution chosen by the legislature limits the rights guaranteed in the constitutional order

only to the extent necessary for achieving the objective pursued. These reasons, however, in

the present case, the appellant did not.



11. the applicant pointed to the case-law of the Constitutional Court concerning the

the issue of closing clause in the case of elections to the Chamber of Deputies

The Parliament of the Czech Republic [cf. find SP. zn. PL. ÚS 25/96 of 2 December 1996.

4.1997 (N 37/7 SbNU 251; 88/1997 Coll.); all decisions of the constitutional

Court are also available on http://nalus.usoud.cz] and in case

elections to the municipal councils [cf. resolution SP. zn. IV.-54/03

of 25 June 2002. 8.2004 (published in SbNU)]. In that finding, SP. zn.

PL. ÚS 25/96, the Constitutional Court a certain disproportion in terms of equality

the electoral law, which accepted the explanation that may enter the game

(I) "



other serious reasons resulting from the purpose and function of the options in the

democratic society

... [as]



the aim of the election ... is not only an expression of the political will of each of the voters

and the acquisition of just the mirror image of the nuanced opinions and

political attitudes of voters.

"According to the Constitutional Court is therefore"



the permissible electoral mechanism built into the very specific integration

incentives

", for example. in the form of artificial 5% clause whose integrative role

helps the formation of most (or most) able to come to a decision and

allows you to build a functional Government. Without its application could arise "



political representation divided into a larger number of small groups with

a variety of interests, which would considerably complicate the formation of a majority or totally

make it impossible.

"The Constitutional Court, however, did point out that"



the existence of a restrictive clause is necessary in any case subject only

serious reasons

"and that"



for the restriction clause applies ... the principle of minimizing State intervention

in relation to the established objectives. It is therefore to be interpreted and the need for

the electoral restrictions restrictively.

"(emphasis added). In the spirit of this argument was also 5%

clause applied in municipal elections, although in this

the case is the argument in favor of the constitutionality of 5% clause

weakens.



12. the applicant considers that the elections to the European Parliament and of the

representative Council from the previously examined cases vary so much that

the reasons cited by the decision of the Constitutional Court no longer to be addressed

thing without further transfer. Indeed, the European Parliament plays in the functioning of the

The European Union is qualitatively different than the role of national parliaments in the

the functioning of the Member States. As a whole, nor does not have direct legislative

initiative (must turn to the European Commission) and to the approval of the

legal regulation is necessary in order to come to an agreement with the Council of the EU

the competent Ministers of the Member States. Also, the effect of this representative

the form of the front of the Executive Body, the European Commission, is still

limited-the European Parliament shall elect its President and expresses confidence

The European Commission as a whole, however, it is made up of candidates

each of the Member States, and may not reflect the political composition of the

Of the European Parliament. Member States continue to maintain the critical

influence on the running of the European Union and the European Parliament is only in the last

years of gradually approaching a position of equivalent "player". A wide range of

political representation in the European Parliament, therefore, can contribute to

increase the legitimacy of the decisions taken and the apprehension of the reduction

the capacity of the European legislation and the Executive, which would of diversity

the represented political views do not have a credible basis resulted.

The contested provisions of the Act, therefore, does not track, with regard to the current

the position of the European Parliament in the system of institutions of the European Union,

otherwise, the legitimate objective of the integration of the political will of the electorate.

According to the appellant, this conclusion cannot reverse the fact that the

European Parliament resolution of 22 October. 11.2012 challenge has been made

the Member States "to its electoral law in accordance with article 3 of

[Act], establish appropriate and balanced minimum limits for the allocation of seats,

in order to properly take into account the choice of the citizens, which they expressed in the elections,

and at the same time to ensure the functionality of the Parliament ". However, the mere political

Proclamation of the moment most of the European Parliament cannot be

the relevant reference criterion for the assessment of compliance 5% closing

the clause with the constitutional order of the Czech Republic, unable to see that, even according to the

of the parliamentary resolution to be the minimum limits for

distribution of seats is "appropriate" and "balanced". If the motive of the legislator to

the enactment of the artificial closing clause in a maximum of 5% by

(optional) the provisions of article. 3 of the Act, only the fact that it is the-words

explanatory memorandum-in the Czech Republic the usual, it is difficult to talk about the suitability and

the balance of such artificial intervention in the equality of voting rights and

competition of political parties in the European elections.



13. If, however, a need for "incentives for integration" in the future, stronger together

with the gradually expanding the powers of the European Parliament, it is not

in the opinion of the appellant's closing clause eligible this target

to populate. Think about the integration or differentiated effects can be

only through the lens of the collective body of his unit, rather than from the perspective of

each slice of the European Parliament elected in each

the Member States. The lists of candidates do not draw up a pan-European political

the parties, and to the integration of political forces in the European Parliament therefore

occurs across the national contingents. And the only member of the elected

a party in a State can become a part of the large
a coalition of politically oriented parties as well, and vice versa a large group

members of the powerful national party may not find common language with any of

existing political blocks, and can thus represent a disintegrating

element. The idea that the clause on the national level could

any way to contribute to the integrity of the political spectrum in the European

the Parliament is rather illusory. In the Czech Republic will elect only a small

slice of all deputies (21 out of a total of 751 representatives), therefore

the integration effect of clause used in the Czech Republic on

the total capacity for action the European Parliament is bound to always remain

very limited.



14. Finally, the applicant considers that, even if the clause to the

the achievement of the goals (to be political integration

representation at the European level) can help, then there is no solution in the

a democratic society, since her role-at least in the

The Czech Republic with regard to the low number of allocated mandates-

sufficiently effectively plays called. a natural threshold the selected method

the allocation of mandates. In the last elections to the European Parliament

held in the Czech Republic, for example, (not counting the closing

clause) is driven to obtain one of the mandate of the European members

the Green Party electoral profit of 3.77% of the valid votes. Natural

the threshold then represents the electoral profit side of the dawn of direct democracy in the amount of

3.12% of the valid votes, which even in the absence of artificial closing

the clause was not sufficient to obtain a mandate. You can, of course, a natural threshold

It is difficult to predict ahead of time and its resulting value freely after

the election always depends, inter alia, on the number of candidate pages (or also

on the size of the constituency, which, however, in the case of elections to the European

Parliament does not play a role, since the whole of the Czech Republic is



de lege lata

one electoral circuit). You can, however, on a practical example

the last elections for the European Parliament to demonstrate that natural

the threshold restricts access of small political parties in the European Parliament

and carry out an integration function itself. This, together with the previously mentioned

the arguments of the necessity of further undermines the idea of the artificial limitations

equal competition of political parties in the form of a clause.



15. the applicant also points out to the fact that artificial closing

a clause in this year's elections to the European Parliament applied

about half of the Member States. The maximum amount of the closing

clause (5%) introduced in addition to the Czech Republic States such as France (the

even on each of the constituencies separately), Croatia, Lithuania,

Latvia, Hungary, Poland, Romania and Slovakia, less applicable

for example. in Italy, Austria, Greece and Sweden (3%). Should be noted that in the

the case of States with very small number of seats in the European Parliament does not have the

clause no practical significance, as for getting at least

one is the need to mandate far more votes than what corresponds to the

maximum permissible shut-off clause (e.g. Slovenian Parliamentary elections

to the European Parliament in 2009 acquired% to 7.2 votes, while

exceeded the then 4% closing clause, but it was not enough for her

on getting any of the then distributed the seven seats). Among the States,

that closing clause for elections to the European Parliament shall not apply,

However, States are represented in the European Parliament, a large number of

the seats, for example. United Kingdom (73), Spain (54 seats)

or the State with the highest number of seats (96 out of a total of 751)

Therefore, Germany, where the previously introduced by clause no longer applies,

on the basis of the decision of the Federal Constitutional Court.



16. the applicant also points out that the German Federal Constitutional Court

found as unconstitutional a clause not only closing in the amount of 5% (cf..

judgment of 9 June. 11.2011 in joined cases 2 BvC 4/10 and others)

But even then uzákoněnou clause in the amount of 3% (cf. judgment of the

of 26 March. 2.2014 in joined cases 2 BvE 2/13, and more), and it

Yet, in the German context are reflections on the deformation of the equality

voting rights as a result of the artificial closing clause, compared with context

severely weakened, as the Czech natural threshold in the Federal Republic of

Germany in the last European elections moved around a mere half a

the percentage.



I (c))



Different opinion on some of the judges



17. The above resolution No. citovanému. Vol 16/2014-69 joined different

the opinion of the judges, Zdeněk Kühn, Radan and Miloslav Výborný M. In it

in particular they expressed their doubts about the projednatelnosti

the proposal in question, and that, therefore, that the outcome of the proceedings before the Constitutional Court

cannot have both contested the validity of the election candidates to no effect.

The election has already taken place, and fully in accordance with applicable and effective law. Is

the fact that the voters an irresistible match your choice of not only their

political preferences, but also the existing election rules, thus also

5 closing clause. Partial "deletion" election results and

the allocation of the mandate of the two other candidates in the event that (hopefully)

The Constitutional Court ruled the unconstitutionality of clause, led to the

a total blackout of the electoral result. This would lead to the denial of the will

voters who vote according to the rules and



ex post

they would learn that actually voted in accordance with the rules of the other. If it is not

the decision of the Constitutional Court have no meaning for the thing itself, the Court at all

Unable to submit an appropriate proposal.



18. Disentující judges have also considered that most of the members of the electoral

the Senate simply understands the principle of equal suffrage. As The Constitutional

the Court repeatedly cited: "the principle of equality is not absolute (abstract)

character, it is only a relative equality. Therefore, it cannot be

translate mechanically, even can be considered, that this is a special case

equality. In certain cases, it is even permitted certain restrictions

equality of suffrage (find SP. zn. PL. ÚS 25/96, see above). This

specific equality is manifested specifically in particular in such matters,

such as. clause, the conditions for the submission of the lists

deeds, campaign, election and electoral arithmetic geometry "[paragraph 60

the award of 29 June. 3.2011 SP. zn. PL. ÚS 52/10 (N 56/60 SbNU 693)].

The Constitutional Court stressed that "the principle of equal suffrage, it is necessary to

understand that each voter has the same number of votes as any other,

not, however, that each individual has a voice-in relation to the final

the vote count (number of seats)-the same weight "(point 61

ibid., here, the Constitutional Court CITES and summarizes the its previous case law).



19. In addition, the constitutional order of the proportional system in relation to the elections to the

The European Parliament does not know. The proportional system arises from law.

The Constitutional Court traditionally distinguishes the situation, when the Constitution of the proportional

the system prescribes, and the situation where the Constitution is silent about the electoral system. For

the key-and with the current proposal totally incompatible-it is therefore

necessary to mark the point of the 68 award SP. zn. PL. ÚS 52/10 (see above), from which

implies that the increase in border restriction clause just must not jeopardise-

in general terms-the democratic substance of elections. In relation to the

a natural threshold laid down for the elections to the Chamber of Deputies, where it is

proportional electoral system prescribed by the Constitution (!)-the Constitutional Court expressed the

in two key findings, SP. zn. PL. ÚS 25/96 (see above) and

SP. zn. PL. ÚS 42/2000 of 24 January 2000. 1.2001 (N 16/21 SbNU 113; 64/2001

SB.). In both stated that it was only exceeded ten percent clause

You can no longer be considered such action to the proportional system, which

threatens its democratic substance. It is therefore not clear, what is the reason

to set more stringent standards for elections to the European Parliament; In addition, for the

the situation, when the Constitution, as the regional or municipal elections,

the proportional system does not impose, and vice versa, the European right to the closing

clause expressly admits.



20. Most of the electoral Chamber said it also simply understands the role

Of the European Parliament. It is common ground that the powers of the European Parliament

in recent decades gradually strengthen. Most recently and visibly so

happened in the Lisbon Treaty. The European Parliament, while still

It does not have legislative initiative, however, the European Commission may ask for

the submission of a proposal for a legal act of the European Union-that may or may not

to listen to, but must communicate to the European Parliament (article 225 the reasons.

TFEU). The European Parliament is not the sole legislator, as is the case

at the national level, involved in the ordinary legislative procedure

equally with the Council of the EU (article 294 TFEU). Furthermore, Chairperson of the European

Commission (article 14, article 17, paragraph 7 of the Treaty on European Union, referred to hereinafter as

"TEU"), approved the other its members as the chorus (article 7 TEU),

can the European censure (article 17, paragraph 8 of the TEU, article 234

TFEU), elects the European Ombudsman (article 228 TFEU), etc. The role of the

The European Parliament in the ordinary legislative procedure is

complicated, but it is in an obvious contradiction with the idea of the fragmented

body burdened with a lot of unqualified solitaires. The European Parliament is
involved in the adoption of legislation with the Council of the EU equally. In the event that the

a match is found, there is a Conciliation Committee, composed of the same

the number of members of both institutions. In the absence of agreement, a proposal will be rejected,

which, of course, has happened in practice (it is said to be exceptionally may change,

If the views will prevail the current majority, electoral Chamber presented).

Just listed fully corresponds to how the European Parliament sees itself

themselves. 22 December. November 2012 (legally non-binding) adopted a resolution

concerning the elections to the European Parliament in 2014, in which

called on Member States "to its electoral law ... and establish appropriate

a balanced minimum limits for the distribution of seats, in order to properly

into account the choice of the citizens, which they expressed in the elections, and at the same time

to ensure the functionality of the Parliament ". The cited decision of the European

Parliament was addressed to the Member States, in particular with regard to the new

organize the elections of the European Commission, introduced by the Treaty of Lisbon, and with

regard to the changing relationship between the European Parliament and the European

the Commission, which will result from it, starting with the election in 2014. Expressed so

your presumption that reliable majority in the European Parliament will have a

of crucial importance for the stability of the legislative procedures of the European Union and

the good functioning of its Executive. Appropriately set clause in the

national electoral systems, in which European law expressly permits

This objective can help.



21. The strength of any institution in the framework of the political system, indeed, is not

given just the written rules, but also the development of the very political

system and gradually informing constitutional conventions and the current

developments in connection with the selection of the President of the European Commission by

an example of. This is a significant simplification of the FRO disentující judges

most of the design. The artificial closing clause for elections to the European

the Parliament uses half of the Member States of the European Union, which sends

380 members in the European Parliament. Of the 380 members is collected

with an emphasis on the integration of the elements. Emphasis on integration in several countries may

on the whole, significantly contribute to the greater functionality of the European

Parliament.



22. If a natural threshold for the election of a member of the European

Parliament was 1/21, approx. 4.76%, an artificial threshold in the Czech system

indeed lacked sense. A natural threshold for obtaining a mandate, however, is

Mobile and is considerably lower than 4%. In the current situation is

evident, that the abolition of artificial clause would lead to the fact that the Czech

the Republic instead of the representatives of the seven parties aired in the European

Parliament representative of the parties to the nine, almost one-third more. In addition to the

the effect of the "overgrowth" of political parties would be such a situation also led to a

the weakening of the position of Czech political parties in clubs constituted in

The European Parliament. The fragmentation of the Czech political representation in the

The European Parliament would lead to a reduction in the importance of Czech representatives in it

at all.



23. The current European Parliament election are already third that

held in the Czech Republic. Experience shows that the clause

in no way does not limit the diversity and representativeness of the political partisan basis

of the parties. In the 2004 elections to the European Parliament have

six political parties and movements (next to where the strengths of the parties, the COMMUNIST PARTY,

KDU-ČSL and the SOCIAL DEMOCRATS gained two seats and independents three seats and SNK-

European Democrats), in a rather exceptional in the 2009 elections, only four

Party (ODS, CSSD, COMMUNISTS and Christian Democrats), in the elections in 2014, then diversity

Czech culminated in the electoral system, a total of seven successful sides and

movements. The success of the Party of free citizens shows that the

5 clause does not constitute a nepřekročitelný threshold,

giving the exclusivity only to the parties to a large, rich or traditional. Indeed,

These results and the variety of party representation more or less correlated with the

effect of clause in the elections to the Chamber of Deputies.



II.



Course of the proceedings before the Constitutional Court



24. The Constitutional Court pursuant to the provisions of section 69 of Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, (hereinafter referred to as "the law of

The Constitutional Court ") posted by proposal from the Chamber of Deputies and the Senate of the Parliament

The Czech Republic, as parties to the proceedings and the Government and the public defenders

rights, who are authorized to enter into the proceedings as interveners

the proceedings.



(II).)



Representation of the Chamber of Deputies and the Senate



25. the President of the Chamber of Deputies, in its observations of 11 February 1999. 7.2014

summed up the course of the legislative process and said that the draft law on elections

to the European Parliament and on the amendment of some laws has been submitted

the Government of the House of Commons June 19. 9.2002; approved was in 3. reading

day 3. 12.2002, while 170 deputies present voted in favor for the

his acceptance of the 124 members and 3 deputies voted against. In the debates of the

in the Chamber of Deputies was not discussed in detail about the meaning of,

respectively. on the constitutionality of the proposed 5% clause for elections to the

Of the European Parliament. The Bill was referred to the Senate the day 9. 12.

2002. The Chamber of Deputies returned it with amendments.

Returned by the Chamber of Deputies discussed the Bill on 18 July 2005. 2.2003, and

adopted it in the version approved by the Senate, and from the present 180

MPs spoke for his acceptance of the 170 members and no votes

against. After the adoption of the law and after its signature of the respective constitutional

agents was promulgated on 4 July 2003. 3. in 2003, in the collection of laws under no.

62/2003 Coll. Contested statutory provisions was not for its validity

amended.



26. the President of the Senate in the comments of 21 October 2003. 7.2014 stated that the proposal

the law on elections to the European Parliament, was sent to the Senate the day 6.

12.2002 and discussed the day 9. 1.2003. The subject of discussion in the General

part of the debate happened also to the provisions of section 47 of the draft law, introducing a 5%

closing clause. The senators were aware of the features of this instrument,

the application has a restrictive impact on the equality of voting rights in the system

proportional representation. In that context, it was considered his percentage

of the above, and as a result of differences in the detailed debate was filed

amendment to its reduction to 3%, which, however, was not accepted

because of the 75 Senators present for this draft boat only 19

the senators. In the course of the debate, however, has not been called into question the constitutionality of the introduction

This clause. Resolution No. 38 of 9 February. 1. the 2003 Senate

the Bill the House of representatives with two adopted by the EP amendments,

the proposals, which did not cover the issue, however, with the introduction of the closing

clause. In the vote for the adoption of the resolution voted in favor of all 75

Senators present. The Chamber of Deputies discussed the draft returned

The Senate on its 10. meeting on 18 July 2005. 2.2003, and resolution No. 244 with the proposal

law agreed in the version approved by the Senate.



27. For completeness, Chairman of the Senate States that 29 April. 5.2014 submitted

a group of Senators the Bill (Senate printing No. 294, 9. term)

part of which is the proposal to abolish the clause for elections to the

Of the European Parliament.



II. b)



Representation of the Government and the Ombudsman



28. the President of the Constitutional Court told the Government that the Government of the Czech Republic

does not exercise his rights under section 69, paragraph. 2 of the law on the Constitutional Court and the

enter into this control.



29. Likewise, the Ombudsman said that within the meaning of the provisions of section

paragraph 69. 3 the law on the Constitutional Court does not enter into the proceedings as a side

participant.



II. (c))



Oral proceedings



30. Within the meaning of section 44 of the Act on the Constitutional Court ruled Constitutional

the Court in the matter without holding an oral hearing, as it was not from him can be

expect further clarification of the matter.



III.



Locus standi of the petitioner



31. The Constitutional Court notes that the applicant is the Supreme Administrative Court,

that followed the article. paragraph 95. 2 of the Constitution ("If the Court concluded

the law, which is to be used in solving the case, is in contradiction with the constitutional

policy, shall refer the matter to the Constitutional Court. "), closer to the

the provisions of section 48, paragraph. 1 (a). and Act No. 150)/2002 Coll., the rules of court

the Board, in the wording of Act No. 303/2011 Sb. This issue is the Constitutional Court

It deals in particular with regard to the content of the different opinions of some judges

The Supreme Administrative Court, the evidence of the claimant who is active

questioned.



32. The Constitutional Court States that in the present case, it is called.

specific (more precisely: incidenční; see for example in more detail. Hess, The.

Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland. 20.

issue. Heidelberg: c. f. Müller Verlag, 1999, pp. 282 et seq.), and

not the abstract control standards. Even in the Czech konstitucionalistické

doctrine cannot be recorded more significant opinions, that this

the basis for remedy. Therefore, it is sufficient to quote P. Holländera, which

specific normative control defines as "control of compliance of the statutory

or sub-statutory norms with the Constitution in the case, if it initiates

the General Court as a result of specific things or natural solutions, respectively.

legal person in connection with the fact that their application was without prejudice to the

their fundamental rights or freedoms. In other words, a specific
check standards represents the constitutional review of laws, or other

the legislation only in connection with the resolution and decision-making

specific things "(basics of general political science. 3. release. Plzeň:

The publishers Inc., 2012, p. 275).



33. The constitutional reason to discuss the proposal is, therefore, generally given in the case,

When should the finding of invalidity made by the election of a candidate as a result of

annulment of the contested provisions of the law should lead to the demise of the already acquired

the mandate. The proposal is directed to the Supreme Administrative Court provided for in article. 95

paragraph. 2 of the Constitution.



34. It is therefore justified to ask the appellant to submit a proposal to

a review of the constitutionality of the contested provisions of the law on European elections for

actively legitimovaného. The appellant's evidence is given by the active

the meaning of the decision of the Constitutional Court for the resolution of specific things in the management

before the General Court, filed a complaint about the election and meets one of the

the conditions of the proceedings before the Constitutional Court pursuant to § 64 paragraph. 3 the law on the

The Constitutional Court.



IV.



Assessment of the competence and constitutional conformity of the legislative process



35. The Constitutional Court therefore considers that it is competent to hear

of the proposal, which was submitted to the authorized by the applicant, the

admissible and satisfies all the requirements laid down by law. He could therefore

access pragmatically review the contested statutory provisions, and

in accordance with the provisions of section 68, paragraph. 2 Act No. 182/1993 Coll., on the

The Constitutional Court, as amended by Act No. 48/2002 Coll., the first dealt with the

the question of whether it was adopted and issued a constitutionally Conformal manner and in

the limits of the Constitution laid down the competence. With regard to the fact that from the

the parties of the petitioner or of the other parties to the proceedings, this issue has not been

any way questioned, however, there is no need to deal with in detail

the entire legislative process that led to the approval of the contested

the statutory provisions.



36. In accordance with the provisions of section 68, paragraph. 2 Act No. 182/1993 Coll., on the constitutional

the Court, in the wording of Act No. 48/2002 Coll., consists of the assessment of the constitutionality of

of the law with the constitutional order of answering three questions: whether it was received and

issued within the limits of the Constitution laid down the competence that was adopted by the constitutionally

in the prescribed manner and that its content is in accordance with the constitutional law.

In the case of the contested provisions is beyond any doubt, that the

Parliament had in the meaning of article. 15 paragraph. 1 of the Constitution, the competence to

the adoption. As regards the way of the adoption of the law on European elections,

The Constitutional Court found the observations of the parties, as well as from other

publicly available documents relating to the legislative process,

the law was adopted by the constitutionally prescribed way. Nothing therefore Constitutional

the Court does not prevent, in order to proceed to an examination of the constitutionality of

the contested provisions.



In the.



The assessment of the constitutionality of the contested statutory provisions



37. The essence of the constitutional review of the contested provisions of the law on

European elections is to determine whether the alleged electoral equality constraint

the law (article 21, paragraph 3, of the Charter), the access of citizens to the elected functions for

equal conditions (article 21, paragraph 4, of the Charter) and free competition

political forces (article 5 of the Constitution, or article 22 of the Charter) are in

a democratic society be permitted with regard to the legitimacy of their

the objective pursued, the capacity to achieve this goal, their need for

and the level of restriction that has to save the nature and meaning of these

fundamental rights (article 4, paragraph 4, of the Charter), and must not alter the essential

particulars of a democratic State (article 9, paragraph 2, of the Constitution).

If the alleged restrictions on the basic rights of odůvodňována specific

the position of the European Parliament as a representative of the Congregation of citizens

The European Union, it is necessary first to recall the speeches of the supranational nature of the

This authority and then to submit to the examination of the adequacy of their projection in the

the law on European elections with regard to the reference to the criteria

the constitutional order.



In the.)



The European Parliament



38. the European Parliament is-next to the national parliaments, which are

democratically accountable officials of the Member States in the European Council and the

in the Council of the EU-as a representative of the spectrum of public opinion across the European

Union, expressing the interests of EU citizens, one of the pillars of representative

democracy in the European Union (article 10 of the TEU). In relation to the citizens

each of the Member States does not compete with the national parliaments,

because it operates only in areas of decision-making as defined by the scope

powers, whose separate the performance of Member States abandon and

entrust it to the primary law of the European Union (Syllová, j., Pítrová, l.,

Balaji p, H.. The Treaty of Lisbon. Comment. 1. Edition.

Prague: c. h. Beck, 2010, p. 87). Although the European Parliament has (up to

exceptions) the right to legislative initiative or exclusive position in the

the adoption of EU legislation and has not yet become the institutional

the focus of the political life of the European Union, its role as a source of direct

the democratic legitimacy of the Union's decision has irreplaceable importance.

It is also reflected in a shift in the conception of his representative functions:

While prior to the adoption of the Lisbon Treaty was composed of the representatives of the people "

the States brought together in the community "(article 189 of the Treaty establishing

The European Community), after its adoption consists of representatives of the

"the citizens of the Union" (article 14 (2) of the TEU). This was not only highlighted the political

the weight of the European Parliament after the adoption of the Lisbon Treaty, but also

strengthened human rights dimension of the European of constitutionalism — (cf.. Still,

L. Arnold, r., Squire, j., King, r., Murray D, T. European law.

5. release. Prague: c. h. Beck, 2015, pp. 124 et seq.).



39. This form of European Parliament progressive evolution, which from the

the emergence of the first European Community European coal

and steel-generally in parallel as its composition and structure, so its

the powers and the method of its establishment. The predecessor of the current

The European Parliament was the European Parliamentary Assembly, resulting in the

in 1958 as a joint institution of the European economic community,

European Atomic Energy Community and the European coal

and steel on the basis of the Treaty of joint bodies of 25 June. 3. the 1957.

The name "European Parliament" settled in 1962. Its members were not

originally, but delegated directly elected by the national parliaments. Although the role of the

This was not a decision-making body, but thoroughly just consulting,

the potential advantage of such personnel has been a close link link

between political agendas which are dealt on a supranacionální level, and

domestic parliamentary debates in the Member States,

intermediate information on the drafting of legislation of Community law and

requirements arising from it for its implementation and application in the

the Member States. The importance of such a link between the two levels is in

the initial phase of the integration process proved especially when building

the common market, since it facilitated the solution of difficult national impact

accompanying measures of the European Community.



40. At the Summit of Heads of State in Paris in 1974, there has been a significant

the decision to enforce the principle of direct election of the members of the European Parliament with the

effect from 1. 6.1978. The first direct elections then took place in the

7.-10. 6.1979. In 1973 he had 142 members, the European Parliament, in

the total number of members is currently 751 (of which 21 are elected in the Czech

the Republic). The Treaty on European Union, namely in the article. 14 paragraph. 2 provides that

the number of members of the European Parliament shall not exceed 750, not counting

the President of the.



41. Although from the first direct elections of the powers of the European Parliament and of the

his position within the institutional system of the European Union

increased, in particular as a result of emancipation of the European Parliament as

the legislative authority in relation to the Council and to strengthening the democratic legitimacy and

responsibility of the EU Executive, to bring the "big směrodatnému

themes of the "European policies occurs primarily in the European Commission,

or in the European Council. The first clashes on these topics is therefore taking place

outside the European Parliament, or on the domestic parliamentary forums,

While the European Parliament ones at a later stage in the professionally while

challenging media but less appealing form. Must therefore consistently

face the problem of how its structured debates (the high number of

MEPs, political clubs, committees, etc.) to attract the attention of a wider

the public, how to communicate meaningfully with her and causing the formation of

European public opinion, to provide EU citizens the opportunity to

to show their views on the activities of the European Union and hold a dialogue with the

civil society, in short, how to consistently fulfill its democratic

Mission in shaping the European public space. The link between the

political clubs in the European Parliament and the political parties in the

each Member State is in fact the absence of political

Parties at European level, as it has in mind the article. 10, paragraph 1. 4 of the TEU,

insufficient. By contrast, the standard political parties on national

level are-thanks to its fixed organization structures and access

the publicity of its activities-able to influence the public opinion far
more. The result of this condition is noticeably less interested in public events

in the European Parliament, the declining participation of citizens in European elections and

his questionable factual legitimacy.



In (b))



The contested provisions and their link with Community law



42. The provisions of section 47 of the law on European elections, which was the closing

clause for European Parliament election in the Czech Republic introduced,

reads as follows:



"§ 47



How to skrutinia



(1) on the basis of the results of the vote taken from electoral districts for

responsible for the municipal authorities pursuant to section 45 establishes the Czech Statistical Office

the total number of valid votes that were cast for all

political parties, political movements and the coalition.



(2) In skrutinia, each political party shall proceed, political movements and

the Coalition, which has received at least 5% of the total cast

valid votes. "



Then follows up on them following the provisions of section 48, paragraph. 1, which States:

"The number of valid votes cast for each of the political parties, political movements

and coalitions, which advanced to skrutinia, gradually divided the numbers 1, 2, 3

and always the number 1 higher. "etc.



43. The Constitutional Court had to also deal with the question of how is the closing

clause enshrined in EU law and the extent to which consequently binding

the award for the legislature.



44. The current legislation on elections to the European Parliament has developed from

the procedures governing the manning posts in the European parliamentary

the Assembly. The Treaty establishing the European Economic Community

zakotvovala designaci representatives from among the members of the national legislative

Corps and přenechávala an essential part of the mechanism of the national

legislations. From the end of the 1970s. years of efforts of the European communities,

electoral processes in individual Member States as much as possible to approximate the

by setting common principles. The result was the adoption of the Act concerning the election of the members of the

The European Parliament by direct universal suffrage in 1976,

later supplemented by Council Directive 93/109/EC, which laid down the detailed

measures for the exercise of the right of European Union citizens to vote and be elected in

elections to the European Parliament and Council decision 2002/772/EC,

Euratom. Although in terms of the forms of their acceptance of the provisions is

of secondary legislation, the principles laid down in similar cases

national, i.e.. for elections to the national parliaments, to be edited

generally on the level of constitutional standards (time range for the holding of elections,

the principles of the electoral system, the clause, the possibility of preferential

the vote, the formation of electoral districts, the incompatibility of the exercise of the mandate with the

other public functions, etc.). Not edited but such questions, as is

the size of the constituencies, the option of preferential voting or method

the allocation of seats on the basis of the number of votes. Therefore, the Council Act

rather, the nature of a binding constitutional harmonisation-unijně (in the material

the meaning of) Regulation is also building a single statute for members

The European Parliament (European Parliament decision 2005/684/EC,

Euratom). Indeed, such a nature to have provisions on the single

procedure or common principles for European elections, foreseen in the

article. paragraph 223. 1 of the TFEU, probably in the form of generally binding regulation

The EU issued on the proposal of the European Parliament, a condition whose entry in the

force is unanimity in the Council, the European Parliament assent given

a majority of the votes of all its members and approval by Member States in accordance with the

their respective constitutional requirements. These are the prerequisites for changes of the primary

rights of the European Union, carried out by way of the so-called. evolutivních (see clauses

article. paragraph 48. 6 TEU or article. 311 TFEU).



45. in the case of the Act, therefore, it is not about the EU



soft law

recommending the nature without direct binding and enforcement for the Member

States, or simply the international commitment, the interpretation and the implementation of the

would be elusive exclusive supervisory powers of the European Commission and of the Court of

the Court of Auditors. Breach of this undertaking, the Member State is issuing penalties on

the basis of the article. 258-260 of TFEU, if its failure was a serious

violation of the values of democracy, the rule of law, human rights, etc.,

which the European Union is founded (article 2 of the TEU), could occur-even from

initiative of the European Parliament itself – to use the mechanism of the axle

According to the article. 7 TEU, head to any compensatory measures

(suspension of certain membership rights). For the obligations arising from the Act

also apply the General resignation of the Member States on other ways of solution

disputes concerning the interpretation or application of Community law than those laid down by themselves

The Treaty (article 344 of the TFEU), as well as the dynamically evolving judikatorní

the concept of the responsibility of Member States for damage caused by the violation of the

EU law based on article. 340 TFEU. Not even the residual

application of the General rules of public international law. When

national implementation of the Act, the Member States shall be subject to the principle of

loyal cooperation, which are generally referred to in article. 4 (4). 3 of the TEU,

specifically, according to article. 291 paragraph. 1 of the TFEU to such fulfillment-kept

space for the legislative discretion granted by the Act to ensure

the full effect of the EU's rules for the holding of the European elections.



46. According to the article. 1 of the Act "1. In each Member State, members of the

The European Parliament shall be elected on proportional representation

the basis of the list system or the single transferable vote. 2.

Member States may authorise voting based on the list with the

a preferential procedure, which shall lay down. 3. Elections

General and direct vote and must be free and secret. " According to the article.

3 then, that "Member States may stipulate a minimum threshold for the

the allocation of mandates. This threshold may not be on the national level

determined to exceed 5% of the votes cast. " The decision of the

2002/772/EC, Euratom, then leaves the Member States free to

the possible application of the preferential votes and determination of constituencies, in

which must be always available to voters so many mandates, in order to

principle of proportionality in their distribution.



47. Since the adoption of national implementing provisions to the Act,

including fill it provided space for the legislative discretion

the national legislature is the "application" of Community law within the meaning of article.

paragraph 51. 1 of the Charter of fundamental rights of the European Union (hereinafter as

"LZPEU"), on the review of the constitutionality of the legislation in the Member

States, together with the reference criteria of the constitutional order in principle

participate-by their nature-also the provisions of the LZPEU, whether

"prostupováním" in the constitutional order or direct application in the case of

the higher level of the protection afforded by them (article 53 LZPEU). It concerns the rights of

the Union's citizens to vote and to stand as a candidate in elections to the European Parliament

(article 39 LZPEU). By contrast, the policy formulated, however, sometimes as

the "right" of the individual, which are primarily intended for legislative and

an executive authorities of the European Union and the Member States, can be relied on

before the EU or national courts only for the purposes of the interpretation and

control of the legality of acts adopted by the institutions (article 52, paragraph 5, LZPEU).

This is true about the requirement, under which political parties at the level of

The European Union contribute to the expression of the will of Union citizens (article 12 of the

paragraph. 2, article LZPEU. 10, paragraph 1. 4 of the TEU), as well as about the right of every citizen

to participate in the democratic life of the European Union (article 10 (3) of the TEU).

The provisions on equality before the law (article 20 LZPEU) supports equal

treatment in access to rights, which lays down the right of the European Union, respectively.

to their implementation, Member States, and belongs to the General legal

principles: "on the basis of direct action, however, cannot be submitted requesting

the activities of the Union institutions or bodies of the Member States, which corresponds to how

the case-law of the Court..., so approach the constitutional systems of the Member

States, the principles '... " [see explanation to the Charter of fundamental rights

The European Union (2007/C 303/02) to the article. 52 paragraph. 5]. Performance

the fundamental rights guaranteed by the LZPEU it is permissible for the conditions in more detail

defined than it is in the article. 4 of the Charter: it must be provided for by law,

respect the essence of those rights and "[P] at compliance with the principles of

the proportionality of such restrictions may be introduced only if they are

necessary and genuinely meet objectives of general interest recognised by the

The Union or the need to protect the rights and freedoms of the other "(article 52 (1)

LZPEU).



48. the right of the European Union Member States are closing clause

not required, but if a Member State for its implementation at national

level, respectively. in the framework of the electoral districts (if created), proceeding,

must not exceed 5% of the votes cast. More intensive intervention in the

the electoral law should, in the context of the other parameters of the electoral system

He didn't have to be in accordance with the principle of proportional representation, free competition

political parties and the equal access of citizens to the elected functions.

The national adjustment clause for the European elections is not fully

the autonomous legislative measures of a Member State, as its Prime

the legal basis and at the same time limit the right of the European Union, which

provides not only normative framework for the specific rules of the European elections
at the national level, but also authorizes Member States to their

the adoption (article 8 of the Act). The Constitutional Court is of the opinion that the meaning and purpose of the

EU adjustment lies in the empowerment of the national legislature to set

such conditions for the elections to the European Parliament, which will be

taking into account the local conditions to reflect the requirement of proportional representation,

the EU drafted by adjusting independently of the conditions laid down for

elections to national representative councils. The Constitutional Court sees this

limit the autonomy of the national legislature, as a necessary step on the path to

a single procedure or the adoption of common principles for European elections

foreseen in article. 223 of the TFEU, which should lead to the strengthening of democratic

the legitimacy of the regulatory process in the European Union.



49. The Constitutional Court also dealt with the question of whether the repeal of the closing

a clause in the law on European elections in its conservation for elections to the

national representative councils does not breach the principles of

equivalence as a principle applicable across the Board to all

the institutional framework for national implementation of the EU

rights (closer to see e.g.. Bobek, M., Birch, P., Komárek, J.

The national application of European Union law. Prague: c. h. Beck, 2011,

in particular, p. 229 and seq.). According to this principle, the law of the Member State

must not provide for the application of Community law discriminatory standards

deadlines, processes or conditions compared to the deadlines, processes and conditions

for the implementation of national standards. The Constitutional Court notes that the

clause is the Institute, which plays at each election

a different meaning. However, this intervention to the equality of voting rights must

be sufficiently defended the specific public interest or value, that are

to be eligible, the resulting distortion convincingly justified. The Constitutional Court but

lacks comparability both situations, since-unlike the options

to the European Parliament-EU law at all does not guarantee the citizens of the other

Member States who are resident in the Czech Republic, access to

elections to the Parliament of the Czech Republic, although the application of the

(legislative implementation), the Community law involved to a significant degree.

Any cancellation clause in the law on European elections should

because of the nature of things from that point of view did not mean violation of the principles of

of equal treatment.



50. From a comparative point of view it can be concluded that, from today's 28 States

The European Union, there is a clause in 14 countries (the Czech

Republic, France, Croatia, Italy, Cyprus, Lithuania, Latvia,

Hungary, Poland, Austria, Romania, Greece, Slovakia and Sweden). In

some of them, this clause is set below 5%: in Italy,

Austria and Sweden at a level of 4%, 3% in Greece, in Cyprus, 1.8%

(http://www.europarl.europa.eu/resources/library/media/20140331RES41123

/20140331RES41123.pdf). The Federal Constitutional Court in Germany, on which

I find the highest number of seats (96), closing clause, initially 5%,

later 3%, entirely set aside (BVerfG 2 BvC 4/10 and more; BVE 2/13 and

For more). Can agree with the applicant that, for the smaller Member

States, where the legal clause limited more or less close to the so-called.

a natural threshold, its practical importance to the psychological

the effect for the voters. On the other hand, in other countries there has been the introduction of the

more of the smaller constituencies, to increase the natural threshold, which can be

regarded as evidence that, despite the low level of clause considered

These States national integration incentives continue to be essential. More

constituencies has Belgium (3), France (8), Ireland (4), Italy (5),

Poland (13) and United Kingdom (12), (e.g. closer. Onion, l. and team.

Optimálny volebného system in model Európskeho Parliament. Bratislava:

Comenius University, 2010; Šaradín, p. and team. Elections to the

The European Parliament in the Czech Republic. Periplum, 2004). On the Member

States in which the clause is applied, and that therefore

attach importance to the integration function of the artificial intervention in the equality

the electoral law, 380 (from a total of 751) of seats in the

The European Parliament. Reducing this proportion should be clear

a disintegrating effects on the formation of this representative body will.



51. The constitutional review of the contested clause in the law of the European

the election is therefore a need to focus on the question of whether the legislature has used

the space, which he gave to the introduction of the Act, constitutionally Conformal

in a way, the principle of proportional representation, and with regard to the

the fundamental rights guaranteed by the Charter in question respectively. LZPEU.



In c)



Equality of suffrage, free competition of political parties and equal

access to the elected functions



52. The key objection, which is against the contested legal provisions

by the applicant relates to the allowable levelled equality constraint of the electoral

the rights guaranteed in article. 21. 3 of the Charter, freedom of political competition

the parties referred to in article. 5 of the Constitution and article. 22 of the Charter, and equal access to elected

the functions referred to in article. 21. 4 of the Charter.



53. The Constitutional Court first observes that the constitutional order of the Czech

Republic explicitly provides the form of the electoral system for elections to the

Of the European Parliament. Compared to the elections to the Chamber of Deputies and the Senate,

where the Constitution sets out (article 18), together with the basic principles of the electoral

rights and according to what the voting system to elect, on the issue of elections to

Ústavodárce, the European Parliament respects the determination of their

parameters is primarily of things, in Community law the implementation then

"normal" of the legislature. This finding does not mean that any of the

the constitutional rules for elections to national representative councils

could not be-in addition to the Charter of fundamental rights-as applicable

the reference criterion for the constitutional review of the law on European elections,

the implementing rules of the Act.



54. This is true about the rules for elections to the Parliament of the Czech Republic,

so for elections to councils of territorial self-governing units according to the article.

paragraph 102. 1 of the Constitution. In the case of elections to the Chamber of Deputies with links

System ("the principles") of proportional representation, which in pure form

means the distribution of seats among political parties in proportion to the acquired

votes, leading to modification of the principle of equality (in the sense of the same weight

individual votes in the outcome of the vote) as a result of proofreading full

proportionality, the lack of integration of functions would otherwise

It meant the political fragmentation of the Chamber and creating a little difficult

stable governments. As the Constitutional Court has repeatedly judikoval, "the principle of

equality is not absolute (abstract) character, it is only

the relative equality. Therefore, it cannot be understood or mechanically, you can even

consider that this is a special case of equality. In certain cases,

It is even permissible and certain restrictions on voting rights (equality award

SP. zn. PL. ÚS 25/96 see above). This specific equality is manifested

specifically, especially in issues such as for example. the closing

clause, the conditions for the submission of lists of documents, the electoral campaign,

election and electoral arithmetic geometry "[paragraph 60 of the award of 29 June. 3.

2011 SP. zn. PL. ÚS 52/10 (N 56/60 SbNU 693)]. As the Constitutional Court further

recalled, "the principle of equal suffrage, it should be understood that

each voter has the same number of votes as any other, but not that

each voice has resigned-in relation to the final electoral outcome

(number of seats)-the same weight. " (point 61).



55. Such a correction, especially with the election of differentiation of the legal

clause, however, must not be empty the essence and meaning of equality

electoral rights or limit the democratic nature of the elections [findings SP. zn.

PL. ÚS 25/96 of 2 December 1996. 4.1997 (N 37/7 SbNU 251; 88/1997 Coll.) and SP. zn.

PL. ÚS 42/2000 of 24 January 2000. 1.2001 (N 16/21 SbNU 113; 64/2001);

Syllová, J. In Sládeček, V., Mikule, V., Syllová, J., The Constitution Of The Czech

of the Republic. Comment. 1. Edition. Prague: c. h. Beck, 2007, p. 158].

The legal adjustment of the electoral law must allow and protect free

a contest of political forces in a democratic society (article 22 of the Charter),

which leads to the requirement of equal access to the assessment of the claim

candidate parties on the electoral success of the corresponding resigned votes.

But the legislature has in carrying out this task, the room for manoeuvre to

the weakening of the principle of formal equality of the election in favor of the legitimate

the reasons, as is the creation of akceschopného and functional representative

authority and the mechanisms of integration, the creation of political will, which accepts and

The Supreme Administrative Court or the German Federal Constitutional Court (Prince, in. In

Wagner, e., Prince, v., Langášek, t., Pospíšil, i. and team.

The Charter of fundamental rights and freedoms. Comment. Prague: Wolters Kluwer,

2012, p. 505). Similar conclusions can be made in relation to the passive

suffrage in his custody the right to equal access to elected

features.



56. The Constitutional Court is convinced that "the democratic and human rights

the barrier "limits the legislature similarly when setting parameters

the franchise for elections to the European Parliament, as well as here

It is a performance of a subjective constitutional law, although the extent of its limitations

may not be in either of two cases-with regard to the differences
representative councils at national and supranational-necessarily

the same. European Union law the principle of equality for the elections to the European

Parliament does not regulate, as representation of citizens-seen across the entire

The European Union-is to ensure proportional descending way, establishing the

for individual Member States on the basis of the European Council decision referred to in

article. 14 paragraph. 2 of the TEU, the numbers of seats in proportion to the number of their inhabitants.

This so-called. degressive proportionality of the representation may not necessarily, but

However, indirectly reflected in the national adaptation of the European elections

the fact that in the most populous Member States, such as Germany, where is

the nominal number of votes per voter in the European

comparison of the lowest, is understandable efforts on the line without distorting their

the weight of the introduction. by keeping the artificial restrictions on the type of shut-off

clause. This problem does not concern the Czech Republic but as State

of medium size, the voice of the voters in the elections to the European

Parliament have substantially distorted compared to the States.



57. the Charter of fundamental rights of the European Union ensures each unijnímu

the citizen the right to elect members of the European Parliament "in direct and

universal suffrage in a free and secret vote "under the same conditions

as the nationals of the Member State in which he resides (article 39

LZPEU), but does not guarantee equal share of the electoral result under

the electoral law adopted for the implementation of the Act in the individual

the Member States. Non-discriminatory access to the European elections therefore only

zreálňuje the fundamental right of EU citizens to reside freely on the territory of another

Member State other than his State of origin (article 45, paragraph 1, LZPEU).

The reference to the criterion of the constitutional review, the national laws of the

European elections in terms of equality of voting share of the result are

only the scale of the constitutional order and the requirement of proportionality of the electoral system

provided for by the Act.



58. In terms of the constitutional order and European constitutionality after this

about the dvojjediný process of the exercise of public authority, whose source is in both

cases, the people and the authorities be able to mediate legislative (article 2 (1)

The Constitution of the Parliament of the Czech Republic), respectively, the European Parliament, authorised

on the basis of the transfer of certain powers of the international agreement referred to in article.

10A of the Constitution. From the point of view of the protection of constitutionality under article. 83 of the Constitution applies in

both cases equivalent to the reference criteria, although they tolerated

the rate of allowable restrictions of constitutional rights may be, with regard to the

the specific ratios of representative body, as mentioned

from the top, each case is different. From the point of 68 top-cited finding sp.

Zn. PL. ÚS 52/10 serves to increase the border restriction clause only

must not jeopardise the democratic substance of the election. Natural threshold in the

elections to the Chamber of Deputies, where it is a proportional electoral system the Constitution

prescribed, the Constitutional Court expressed in the findings, sp.. PL. ÚS 25/96 and

SP. Zn. PL. TC 42/2000. In both stated that the only crossing

the 10% clause can be already considered such action to

a proportional system that threatens its democratic substance.

You can therefore agree with the judges that the petitioner, disentujícími is not

Obviously, what would be the reason for setting a more stringent criteria for

elections to the European Parliament, moreover, in a situation where the Constitution,

as for the regional or municipal elections, proportional system does not impose, and

on the contrary, European law closing clause expressly admits.



59. In the case of the principle of equality is to be noted that immediately follows

on the principle of universality, for if the universality of the electoral law

defines who is participating in the elections, decides on the extent of equality and the importance of this

participation. Specifically, this principle means that the 1. each voter has the same

number of votes (



one man-one vote; equal voting rights

) and 2. the voice of the voters should have the same weight (



one man-one value; equal voting power

), independently e.g.. on his education, wealth, nationality, status,

sex, etc. Similarly, the Constitutional Court has in the past stated (see find SP. zn.

PL. ÚS 25/96): "the principle of equality of voting rights can be assessed from two

basic aspects. The first aspect consists in the comparison of numerical weights

the individual votes. Assessing the scale of the individual votes, and the Census

in the result of the vote. Equality of electoral law requires that when

the counting of all votes to be valid as well, IE. have the same numerical weight

(quantitative equality) and the same severity, and to enable the Census

the exact numerical differentiation, i.e. the voting ward. the exact numerical

the identification of voters ' support, the individual kandidátním record. The second

the aspect of equality of suffrage captures the equality of votes in terms of

the democratic principle, i.e.. from the point of view of the right votes cast for

the various instruments on such a list, the degree of electoral success, that is

adequate measurement values which these instruments in the elections. As

Therefore, the claim for such an assessment of the result of the vote, which is based

on equal access to the assessment of candidate parties claim of success, and

the right to proportional, i.e. the proportion of the votes cast

corresponding to the number of seats. "



60. The Constitutional Court recalled that the cited requirements on equality of electoral

rights in the structured form derives also from the code of good practice

in electoral matters [Code of Good Practice in Electoral Matters,

European Commission for Democracy through Law (Venice Commission),

CDL-AD (2002) 23, hereinafter referred to as "the code"]. In its paragraph 2 is enshrined as

mentioned



equal voting rights

, so also



equal voting power

. The second requirement is required for uniform distribution of mandates between the

the electoral districts, with the criterion of this distribution may be the number of

of the population, citizens, registered voters or of the votes cast. Certain

the degree of inequality is accepted, for example. for reasons of historical,

geographical or administrative. Permissible deviation from the average would be

not, however, exceed 10% and shall not be higher than 15% (with the exception of

special circumstances-for example. protection of minorities concentrated in a specific

territories or sparsely populated administrative unit). Cited The Code Of

establishes yet another aspect of equality, and equality of opportunities (



equality of opportunity

). This is the guarantee of the candidate parties and candidates within the meaning of

neutrality of State power, especially in the election campaign, in the access to

the media and the public funding of parties and campaigns.



61. Leaving aside the aforementioned EU electoral distortion

the rights of EU citizens, there is no dispute about the fact that the first of the two mentioned

aspects of equality-nominally the same voice-not infected

the provisions challenged, as well as for elections to the European Parliament

true, that each voter has only one vote (see section 37 (1)

the law on European elections). For the second request-the same real weights

all of the votes cast, however, the situation is more complex.



62. However, the Constitutional Court considers as important to indicate that a strict

the duration for maintaining exactly the same weight always all of the votes

It is not possible. If the election of the legislature wanted to have this ambition, then the

It was for example. virtually impossible to vote according to the majority system, policy

Since this is a conceptually (and in its purest form) based on the

the idea of "winner takes all", IE. the votes for other candidates

necessarily lapse, and so do not have the same weight as the real votes cast

for the winner. Also, because for example. German literature and case law

distinguishes between equal numerical value of each of the voice (



Zählwert

), on which it is necessary to take in any electoral system, and between the straight

chances of success (each voice



Erfolgswert

), which is typical only for a system of proportional representation (Schreiber, W.

Handbuch des Wahlrechts zum Deutschen Bundestag-Kommentar zum

Bundeswahlgesetz. 7. release. Carl Heymanns Verlag, 2002, p. 106).



63. The Constitutional Court considered the undisputed claims of the petitioner,

points to the inequalities arising from the allocation of mandates. From the official

the Czech Statistical Office Web site

(http://www.volby.cz/pls/ep2014/ep141?xjazyk=CZ) suggests the following

list of parties and movements, which advanced to the skrutinia:

--------------------------------------------------------------------------------------------------

StranaPlatné votes

--------------------------------------------------------------------------------------------------

number name of abs. in%

--------------------------------------------------------------------------------------------------

16 YES 2011 244 501 16.13

7 TOP 09 and the mayors of 241 747 15.95

14 Czech Social Democratic Party 214 800 14.17

10, the Communist Party of Bohemia and Moravia 166 478 10.98

5 Christian and democratic Union-Czechoslovak people's Party 150 792 9.95

20 Civic Democratic Party 116 389 7.67

24 of the party of free citizens 79 540 5.24

--------------------------------------------------------------------------------------------------



64. In terms of the order of the shares of votes on the basis of the mandates have been
allocated to individual parties and movements according to the method used in § 48

paragraph. 1 of the Act No. 62/2003 Coll., on elections to the European Parliament and of the

amendment to certain acts, as amended by Act No. 58/2014 Sb, should

the absence of a clause number of votes according to the communication, the State

the Electoral Commission no 92/2014 Coll., on the publication and disclosure of the total

the results of the elections to the European Parliament held on the territory of the Czech

Republic on 23. and 24. in may 2014, received Czech pirate

Party (72 514), driven to the profits in the order of 15. the mandate of the party

Green (57 240) would reach 19. the mandate. So these parties in the elections

they have received about 914 (Pirate Party), respectively. about 1 748 (Green Party)

votes more than the number of votes the parties on these successful passenger

mandates (CSSD-71 600; KDU-CSL-55 492). From this point of view, occurred in

as a result of the action of the clause to a certain disproportion in the vase

the obtained votes, which in one case exceeded the 15% tolerance

indicated as even acceptable code.



65. The equality of suffrage, the principle of free competition of political parties

and the right to access to the elected functions under equal conditions have their

the immanent limit where it would frustrate the effective application of their unlimited

the participation of citizens in the democratic life of the society (the State of the European Union)

and greatly restricted the possibility, or even difficult to associate

different vested interests in the practical policy of the feasible solutions

problems that are the holders of these interests in common. The objection

the petitioner against the clause in the Act merits tests are applied on the European

elections are therefore concentrated in the question of whether such restrictions without compensation

wound up real opportunities for citizens to participate in through

The European Parliament on the common exercise of public authority entrusted to the

supranacionální the level that has a neutral effect, or even real

the use of these opportunities.



(D) in.)



Reasons justifying the intervention of the legislator to the equality of suffrage,

the free competition of political parties and equal access to elected functions



66. The Constitutional Court also dealt with the question of whether there are legitimate

reasons to opodstatňovaly intervention into the franchise for elections to the

The European Parliament through the artificial closing clause.

The relevant case law of the Constitutional Court and the doctrine accept reasonable

a derogation from the principle of absolute equality of voting rights, provided they are

for it is made sufficiently compelling reasons of public interest. In this respect,

The Constitutional Court points out, in particular, to find SP. zn. PL. ÚS 25/96, driven by

the principle of minimizing the interference of the judiciary into the realm of the legislative power.



67. In such a serious enough reason is needed to create a functional

The European Parliament, able to generate a clear majority will

as an expression of the democratic principle. In the settlement of the conflict between the constitutional

understanding (here: the protection of fundamental rights in principle of democracy) should be

based on the rules of the so-called. the practical concordance, which results from the

the requirement of unity, the Constitution and eliminate the unilateral preference one

of the principles at the expense of the other (i.e. the result "



zero-sum

"), however, retains the maximum on each of the parties to this conflict with the result"



a win-win

"[Dörr, O., Grote, R., Marauhn, T. (Hrsg.). EMRK/GG.

Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz.

2. Edition. Mohr Siebeck, 2014, 1710].



68. Therefore, the Constitutional Court accepted (SP. zn. PL. ÚS 42/2000) a certain

restrictions on the distribution of mandates differentiation according to Act No. 247/1995

Coll., on elections to the Parliament of the Czech Republic and amending and supplementing

certain other laws, as amended, (hereinafter referred to as

"the law on the elections to the Parliament of the Czech Republic"), as "the goal of the elections

It is not only the expression of the political will of individual voters and the acquisition just

the nuanced mirror image of opinions and political

the attitudes of voters. Because it is people, also the executor of State power ...

because the exercise of State power assumes an ability to take decisions,

must have elections and the electoral system in mind and ability of such

the decision on the basis of the will of the majority. Konsekventním

proportional image results of the vote in the Chamber of Deputies could mix

the political representation of the divided to give rise to a large number of small

groups with diverse interests, which would considerably complicate or creating the most

completely prevented. At this stage of the electoral process, in which experiencing

the distribution of mandates, thus facing the principle of the differentiation principle

integration, since the election has come such a House, which in its composition

enables the political majority capable of both Government and the

to exercise legislative activity, which according to the Constitution. Therefore, it is of

the perspective of the principle of representative democracy permissible incorporated into

the electoral mechanism very specific integration incentives where for it

There are compelling reasons, in particular, provided that an unlimited

the proportional system fragmentation occurs between a large number of votes

the political parties, to the bezbřehému, an overgrowth of ' political parties, and to

the threat to the functionality and responsiveness, as well as the continuity of the parliamentary

the system. This fact is the admissibility of the existence of restrictive clauses,

podmiňované, however, in any case, only serious reasons and in the stage

the rising border justifiable only especially intense gravity.

Raising the limit restriction clause cannot be unlimited, so eg.

the 10% clause can be already considered such action to the proportional

the system, which threatens its democratic substance. "



69. Similarly, in the case of a clause in the elections to the Councils

municipalities, the Constitutional Court stated [resolution SP. zn. IV.-54/03 (see above)], that

"even in relation to the election of the Council of the municipality shall apply the proposition, according to which,

as regards equality in the right to be reasonable (proportional)

the way taken into account in the allocation of mandates, it is certain constraint

differentiation in the distribution of mandates of the inevitable, and therefore permissible.

The purpose of the poll is undoubtedly the differentiation of electoral ward. The aim of the

the election, however, is not only the expression of the political will of individual voters and

the acquisition of just the mirror image of the nuanced opinions and

political attitudes of voters. Even in the case of the Councils of municipalities,

konsekventním proportional image results of voting in the song

Council could give rise to the political representation of the fragmented into

a larger number of small groups with diverse interests, which would create a majority

significantly impeded or prevented altogether. On the other hand, should always

of course, even here to measure whether the electoral law in the equality constraint

the form of restrictive clauses and its modification is the minimum measures

the extent necessary to ensure the integration of political representation,

that is necessary to ensure that the composition of the representative Council allowed the formation

the majority or majorities required for the adoption of the decision. On this question,

in this case, you can give a positive response. "



70. In the background this case law, the Constitutional Court notes that the procedure

time, in particular after the adoption of the Lisbon Treaty, there has been a strengthening of the

The European Parliament, particularly in the performance of assigned legislative

the powers. In the framework of the so-called. ordinary legislative procedure provided for in article. 294

TFEU, which became the norm in most areas of standardisation

the Union's policies, a crucial factor



ex aequo

with the Council on the adoption of European Union legislation. Even stronger

the position is in the adoption of the annual budget of the European Union pursuant to article. 314

paragraph. 4 TFEU. Weakened, however, may be his position in the event of the insolvency of

to deliver an opinion within the time limit. Assent of the European Parliament

It is also required when concluding international agreements in the areas of Union

policies, where it is used for the adoption of the decision of the ordinary legislative

procedure (article 218, paragraph 6, TFEU). Has the powers of a "constitutional"

nature: may submit proposals for the amendment of the treaties and to participate in the Convention

(if convened) to discuss such proposals (article 48, paragraph 2 and 3 of the TEU).

The European Parliament's consent is needed to use the so-called. transition

clauses, on the basis of a decision of the European Council, in the framework of the simplified

the procedure for the adoption of amendments of the treaties (article 48, paragraph 7 of the TEU), etc. The absence of a

exclusive competence for legislative initiatives is a specific

the manifestation of the so-called. the Community method of making Community law, where the main

responsibility for the implementation of the legislative agenda of the European Commission. To her

but with their legislative initiatives, the European Parliament,

While the European Commission must respond to his complaint (article 225 TFEU),

because otherwise they would be committed by skilled idle, punishable

an action to the Court of Justice of the European Union pursuant to article. 265 TFEU. Mechanical

Comparing the features of the European Parliament with the status of national

parliaments, representation of the interests of the nedoceňující specificities of Member States

(The Council), the Union's citizens (European Parliament) and the European Union as a whole

(European Commission), it is not appropriate. On the contrary, must request

the ability to achieve the European Parliament request for consensual solutions

satisfying the expectations and Czech voters, who have entrusted the performance of their
sovereign power (article 2, paragraph 1, of the Constitution) this authority.



71. Similar, even if it is a function of the kreační. On a proposal from the European

adopted by the Council, taking into account the outcome of the elections to the European Parliament, the

This body shall elect the President of the European Commission and then approved its

composition. The European Commission is responsible to the European Parliament as the choir,

who can utter disbelief, and thus to get her to resign (article 17 of the

paragraph. 7 of the TEU). In the election campaign to the European Parliament in

In addition, for the first time were slated for 2014 interested political groupings,

utvořenými informally across Member States, candidates for the Office

President of the European Commission. The election of a candidate winning group

President of the European Commission was then real political choice for soil

The European Parliament, the European Commission added that strong democratic

the mandate. Its continuous confirmation then requires the continued support of the stable

most of the members of the European Parliament, because to censure

The European Commission on the basis of a proposal adopted by a two-thirds majority of the

of the votes cast will most of all of its members. If we take into account,

that the existing European Commission elected 56.3% of the votes coming from

the three largest political factions, which is almost 9% of the votes, less than

the European Commission received the past, it is apparent that the fragmentation of the political

the spectrum represented in the European Parliament as a result of the arrival of the new,

programmatically often niche constructed marginal, and its influence

because of the weak political entities can become a serious threat to the

the stability of the EU Executive. Members of these groups may in a summary

featuring strength sufficient to destabilize the Union Executive, however,

not strong enough to create your own "European Government". This

the destructive potential of the European Parliament may then lead to patovým

situations, well known from the parliamentary practice of several Member States, for

The European Union-due to her incomparably greater political

responsibility conferred on the agenda-but the incentives considerably risk.

The strengthening of the kreační function of the European Parliament in relation to the EU

the Executive therefore requires more than previously, his ability to create

a reliable majority, which guarantee the fulfillment of the aspirations of the voters expressed

choice as an act of their self-determination as holders of sovereign power by

article. 2 (2). 1 of the Constitution.



72. The experience of the last European elections so confirmed the increase of the

the importance of stable relationships and strengthen political voting polarization

the European Parliament, which justifies the existing restrictions

proportional representation in the European elections. Neoslabení of these

integration of stimulus rejection of the proposal on the cancellation clause,

that will lead to a reduction in the spectrum of interest representation of Czech voters, is

Therefore, permissible and proportional intervention in constitutionally guaranteed equality

the electoral law and the principle of free competition of political parties.



73. The Constitutional Court further took note that the discipline in voting

MEPs decreases with the size of the political groups of the European

Parliament. While the factions of the European people's Party (221) and

A group of Progressive Alliance of Socialists and Democrats (191 Members)

the single vote of 90 to 92%, with factions of the European United Left (52

the members of the Europe of freedom and) and direct democracy (48 members) achieves only 79

%, 49%, respectively, for the non-attached Members (52) then on the consistency of the vote

You cannot speak (Kreilinger, Zusammensetzung und Prognosen zur Arbeit

des Europäischen Parlaments nach der Wahl in 2014. Integration 2014, page.

9). Neomezení weight of the electoral voice in the wake of the cancellation of the closing

the clause would lead to a dispersion of small parties gained seats

primarily to the factions of the European Parliament, whose voice is the real weight of the

because of the low voting discipline on their members. It would be

weakened the effectiveness of the electoral act as an expression of the will of the people, respectively.

as a originárního agent of a public authority within the meaning of article. 2 (2). 1 of the Constitution.



74. If the Constitutional Court finding SP. zn. PL. ÚS 29/09 (Lisbon

contract II, point 139) of 3 July 2003. 11.2009 (N 233/55 SbNU 197; 387/2009

SB.) He said that the democratic processes at the EU and national

level complement each other and makes and that the principle of representative

democracy is one of the basic principles of organization of larger entities, as

a transnational non-governmental organizations, type, then it does not mean that the

the strength of the EU pillar of the representative democracy, formed by the European

Parliament, so it doesn't matter if the finance in a complementary replenished

the national parliaments. Model of the "decisive responsibility"

the national Parliament (for European integration



"Integrationsverantwortung"

), resigning to a considerable extent on democratic legitimacy, role-

The European Parliament, the German Federal Constitutional Court

in its "Lisbon" award, with the following judgment of the Constitutional Court barely

compatible. Modification of the principle of proportional representation as a result of

the continued application of the clause in the law of the European

the election reinforces this line of argument to the Constitutional Court.



75. The conclusion that the European Parliament deserves the designation of the actual

"Parliament", it follows from the case-law of the European Court of human

rights (hereinafter "ECHR"). This already in the judgment of the Grand Chamber



Matthews v United Kingdom

(from 18 May. 2.2009 no 24833/94), long before the adoption of the Lisbon

the Treaty, he said, that the European Parliament is a "legislature" in the

the meaning of article 3 of the additional protocol to the Convention on the protection of human rights

and fundamental freedoms (hereinafter referred to as "the Convention"). The ECTHR is here to

evolutivnímu interpretation of the Convention, while nepřisvědčil the opposition of the British

the Government, that the additional protocol cannot relate to the European Parliament, the

Since this authority at the time of its adoption, never existed. According to the Court-

that came out of the development achieved by the legislative powers of the

The European Parliament, in particular after the effectiveness of the single European Act and the

The Maastricht Treaty-it is definitely on the "legislative Corps" and myself

the fact that it has the nature of transnational, and not national, from

This definition cannot be ruled out. The ECHR HAS also stated that "due to the

the context in which the European Parliament is working, the Court is convinced,

the European Parliament represents a fundamental tool of democratic and

political accountability in the system of the community. The Court finds that-without

regardless of the limitations-it must be the European Parliament, which derives

its democratic legitimacy from the direct elections on the basis of the General

the right to vote, seen as the part of the structure of the European

the community that best reflects the interest in effective political

democracy "(para. 52).



76. therefore, the reply to the question whether the Czech adaptation of the European elections,

If it did not contain a closing clause in the amount of 5%, should-due to the

the number of MEPs-21 could threaten or significantly weaken the function of the

The European Parliament, which makes him a real "Parliament", and therefore

It is to be-with regard to the constitutional guarantees of the proper exercise of the powers

transferred to supranational level-this preserve untouched.



77. In this regard, the Constitutional Court States that consider the integration or

induction effects of electoral rules can only be through the lens

the collective of the body as a whole, not from the perspective of his slices,

elected in each Member State. The special nature of an undertaking

the loyalty of the Member States in relation to the capacity of the European

Parliament (incomparable with the principle



pacta sunt servanda

international law) lies in the fact that this is a commitment to

the multilateral



erga omnes

the common (solidarity) responsibility of all Member States

for its breach of any of them. So you need to look on the guarantee

the function of the article. 1 (1). 2 of the Constitution. This commitment is incompatible with the reasoning

"stowaway", that national measures to prevent the fragmentation of

The European Parliament cancels out the negligible impact of this

step for all. Follow its progress, if any other would have

negligible negative impact. The assessment of the design of the Constitutional Court

It was from this point of view guided by restraint in relation to legislators,

to be able to assess the International (European) aspects of their

legislative activity.



78. The de facto absence of European political parties, which

Constitution envisages the article. 10, paragraph 1. 4 of the TEU, with the membership base on

the level of the individual States of the European Union makes the information

the link between the agendas of the legislative Corps. National implementation

the Union's legislation, which is one of the main obligations stemming from

membership ("Member States shall take all the necessary national legal

measures for the implementation of legally binding acts of the Union. ", article. 291 paragraph. 1

TFEU), on the constitutional level, article guaranteed. 1 (1). 2 of the Constitution, therefore,

the representatives in the national parliaments significant demands on the understanding

agenda of the European Parliament. As members of the European

Parliament is facing a request to understand the functioning of the national

legislative award, and procedures. Delete a clause in the Act
about the European elections while its conservation for elections to the

The Parliament of the Czech Republic could these processes mutual knowledge

to further make it difficult, especially with the consciousness of the fact that the European Union adjustment

elections since 2004 already does not allow personal links between

the national parliaments and the European Parliament (article 7, paragraph 2, of the Act,

in a consolidated version).



79. the integration of the political forces in the European Parliament is

across the national contingents, and the only mp elected for a

hand in a particular State may be part of a large fraction of

programmatically close political parties, while on the contrary, large group

members of the powerful national party may not achieve program compliance with the

any of the political factions in the European Parliament, and will be so

featuring a disintegrating element. Limiting the effect of clause

prevents the occurrence of zařaditelných formally, in terms of real political

However, the impact of the marginal solitaires. The votes cast in the elections, they would

in the proportional representation electoral system without a clause to the extent

forfeited, the representation of the will of their voters, however, did not correspond to

the constitutional principle of effective representative democracy, (the "effective

political democracy ") defends mj. the European Court of human rights (ECTHR

No. 66289/01, Rep. 2005-I, § 41-



Py against France

).



80. It was not yet possible to verify how the incremental strengthening political pluralism

representation elections in 2014 as a result of the cancellation clause

in Germany (compared with 7 political parties in the previous parliamentary term is

now represented by 14 parties and movements, half of which has only one

an MEP), rozhojnilo also the proliferation of pluralism in the European

Parliament, which brings together more than 160 political subjects. Rather,

shows the absence of a reasonably small number of competing opinions,

able to create a functional compromise based on the will of the majority. It's just

confirms the assumption that the free competition of political forces, which is

the basis of every democratic constitutional system, is not subject to

by maximizing the number of actors who participate in it. Necessity and measure of its

the possible limit is but first and foremost on the assessment of the legislature.



81. in its deliberations, the Constitutional Court came also from the fact that in the Czech

Republic operates in addition to the fixed artificial closing clause also called.

a natural threshold to be eligible and other factors strengthen the integrative function

the electoral system (for example, setting the contribution to cover the costs of the election

the campaign). This de facto constitutional tool is an important indicator for

assessment of the proportionality of electoral systems and, in particular, representation of the

small parties, because it indicates the minimum percentage of votes a party

in the electoral district must obtain to obtain at least one mandate. The amount of the

natural threshold is not known in advance, and is dependent on multiple variables

factors, in particular on the number of allocated mandates (see Lebeda, T.

A natural threshold to the proportional systems, theory and reality. Political science

magazine No. 2/2001, s. 134 et seq.). In the elections to the European Parliament

in the year 2014 (without closing clause) is driven to obtain one

the mandate of the election the Green Party gain of 3.77% of the valid votes;

on the contrary, the dawn of direct democracy with 3.12% of the valid votes would no longer be to obtain the

the mandate was not enough. In other words, given the 21 mandates given to

by a decision of the European Council, the Czech Republic, is a sure integration element

given the existence of this right is already in a de facto threshold. So, even if artificial

clause was not, should a real chance to gain the mandate

only those parties that would have received approximately 3.5% of the votes.



82. The Constitutional Court agrees on this issue with a different opinion of the judges

The Supreme Administrative Court, as would a natural threshold for election

Member of the European Parliament was 1/21, approx. 4.76%, an artificial threshold

(clause) in the Czech system indeed lacked sense.

A natural threshold for obtaining a mandate, however, is mobile and is located below the

the level of 4%. In the current situation, it is evident that the abolition of artificial clause

would lead to the fact that the Czech Republic would rather than representatives of the seven parties

aired in the European Parliament representative of the parties to the nine, thus almost

one-third more. In addition to the effect of "overgrowth" of political parties, such

the situation also led to a weakening of their position in the political groups

Of the European Parliament. Elections to the European Parliament in 2014 were

already the third, which took place in the Czech Republic. The acquired experience while

showed that the clause did not restrict in any way the variety of political

representation of citizens. In the 2004 elections to the European

the Parliament of the qualifying six political parties and movements and in a rather

exceptional the 2009 elections were only four parties in elections in

2014 then variety of Czech electoral system was demonstrated

the success of seven parties and movements. The success of the Party of free citizens while

shows that 5% clause does not constitute a

impassable barrier, giving exclusivity only to large parties,

rich or traditional. This development is not in conflict with the principle of free

competition under article political forces. 5 of the Constitution, or article. 22 of the Charter.



83. the effect of the so-called "Integration. natural threshold is eliminated by

the amount is not known in advance and ordinary voters is not known nor his

the existence of. By contrast, the legal clause is known in advance and

its psychological effect works because on the one hand can clause

discourage the election of those parties whose preferences are a longer period under the

her levels, on the other hand, however, it also increases the pressure on the behavior of voters

According to their policy preferences. Only the selector, acting in accordance

with their internal conviction is the real basis for the Democratic

the arrangement of the company.



84. Although the integration or disintegration of political parties is dependent

in particular, the factors of political culture in Czech parliamentary democracy and

on the level of trust of the different actors of the competition of political forces,

(no) osvědčované in everyday political life of the country, the indispensable

the role of play in this development was the closing clause: only

the need to overcome the barriers they set up makes the applicant market share

the power of a valid support to the State, as well as the supranacionálně of a structured

volume. Here, the Constitutional Court also refers to its resolution, which rejected

proposal to abolish the clause in the law on elections to the Parliament

Czech Republic [resolution SP. zn. PL. ÚS 2/14 of 19 November 2002. 8.2014 (in

SbNU unpublished, available at http://nalus.usoud.cz)]: "the functioning of the

electoral systems at the national level cannot be judged just on

themselves. Gradually becomes an integral part of the action principle

representative democracy in a multilevel volume European Union and its

the Member States, whose performance as a whole is also provided

the proper course of democratic processes at the national level ". To do this,

just to add that the importance of the stability of the outcome of the election for trust

the public in the system of representative democracy is essential, both on the level of the

national and supranational level. Creating a reliable, mainstream

will the European Parliament through the appropriate set of rules

the electoral system, including the so-called. clause is an important

a prerequisite for the fluidity of legislative procedures in the European Union,

the good functioning of its Executive, and on this basis for belief

citizens about the meaning of their participation in the Electoral Act.



85. The Constitutional Court found the equality constraint suffrage, free

competition of political parties and equal access to elected functions

guaranteed by the Constitution and the Charter, as a result of the so-called. clause in the

the law on elections to the European Parliament, consistent with the principles of

a democratic constitutional State. The measure is a proportionate, neodporujícím

the principle of proportional representation, qualified to effectively contribute to achieving the

These principles the objective pursued-the effective representation of the will of the citizens in the

The European Parliament and necessary for the proper exercise of the powers conferred on him

on the basis of the article. 10A of the Constitution, while respecting the requirement to minimize

interference in fundamental rights and constitutional principles concerned.



VI.



The conclusion of the



86. Considering that the contested provisions are contrary to article. 5

The Constitution or with the article. 21. 3 and 4 and article. 22 of the Charter, are not reasons to

the repeal of these provisions. Therefore, the Constitutional Court under section 70, paragraph. 2 of the Act

No. 182/1993 Coll., on the Constitutional Court, the Supreme Administrative Court proposal

rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinion, pursuant to section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the judges took the decision of plenum

Catherine Simackova, Vojtěch Prince and Milada T.