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.