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Maintaining a 4% Electoral Threshold for European Elections, in order to clarify access to constitutional justice in electoral matters

Italian Constitutional Court Judgment of 14 May 2015 No. 110

Published online by Cambridge University Press:  11 April 2016

Giovanni Piccirilli
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Keywords

European UnionEuropean ParliamentelectionsCorte Costituzionale
Type
Case Notes
Information
European Constitutional Law Review , Volume 12 , Issue 1 , May 2016 , pp. 164 - 176
Copyright
Copyright © The Authors 2016 

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Footnotes

*

Assistant professor in Constitutional Law, Department of Law, LUISS Guido Carli University of Rome.

References

1 With two subsequent decisions the Bundesverfassungsgericht firstly declared as unconstitutional a 5% threshold (BVerfGE 129, 300, on 9 November 2011) and then also a 3% threshold (BVerfGE 135, 259, on 26 February 2014). On both decisions see, in this issue, Michel, B., ‘Thresholds for the European Parliament Elections in Germany Declared Unconstitutional Twice’, 12 EuConst (2016) p. 133Google Scholar.

2 Judgment Pl. ÚS 14/14, released on 19 May 2015. See, in this issue, Smekal, H. and Vyhnánek, L., ‘Equal voting power under scrutiny. Czech Constitutional Court on the 5% Threshold in the 2014 European Parliament Election’, 12 EuConst (2016) p. 148Google Scholar.

3 Such a comparison is still at the basis of measuring the democratic nature of the EU, as shown recently by J. H. H. Weiler in the Foreword to Viola, D. M. (ed.), Routledge Handbook of European Elections (Routledge 2016) p. xxviii-xxxiiGoogle Scholar. The same comparison is not a novelty in the German experience, in which the role of the Bundestag vis-à-vis that of the European Parliament has always been a fundamental point in all decisions related to the EU. Hence, the influence of precedent domestic cases on electoral thresholds on that related to European Parliament elections is a shared commonality between the Italian and the Czech cases.

4 Act concerning the election of the representatives of the Assembly by direct universal suffrage annexed to the Council decision of 20 September 1976, as amended and renumbered by Council decision No. 76/787/ECSC/EEC/Euratom of 20 September 1976 and the Council decision No. 2002/772/EC/Euratom.

5 In particular, the plaintiffs grounded the request for a preliminary reference on the basis of the alleged violations of: Arts. 2, 6, 10 and 14 TEU; Arts. 20, 22, 223 and 224 TFEU, the second heading of the Preamble and Arts. 10, 12, 20, 21, 39, 51, 52 and 53 of the Charter of fundamental rights of the EU.

6 The plaintiffs declared themselves not to have a private interest in the controversy: see the order of the Tribunal of Venice in which the question of constitutionality has arisen, ordinanza No. 136 of 9 May 2014, published in the official journal, Gazzetta Ufficiale, 1a Serie Speciale - Corte Costituzionale, No. 37 (3 September 2014).

7 More recently, the general field of application of this kind action, where more specific tools are unsatisfactory, has been affirmed by the Joint Sections (Sezioni Unite) of the Court of Cassation, in decision No. 4683, issued on 9 March 2015.

8 With regard to the prospects on the day after the issue of the question of constitutionality by the Tribunal of Venice, see Lieto, S., ‘Sulla questione di legittimità costituzionale della “soglia di sbarramento” della legge elettorale per il Parlamento europeo’ [On the question of constitutionality of the ‘electoral threshold’ to EP elections], (2014)Google Scholar at <www.forumcostituzionale.it>, visited 17 February 2016.

9 Claudio Tani, Aldo Bozzi and Felice Carlo Besostri promoted the action against the national electoral law. Besostri supported the one related to the European Parliament elections.

10 Though only marginally relevant in the present judgment, it is worth recalling that in 2010 the Italian Constitutional Court had already been called upon to decide on the 4% threshold in the European elections in decision No. 271/2010, on a narrower question related to the system of seat allocation among electoral districts. Also on that occasion the Court dismissed the question with a decision of inadmissibility.

11 In the public debate the law received an iconic nickname: ‘porcellum’, referring to the declaration of one of its authors qualifying it as something like a ‘dirty trick’.

12 See M. Croce, ‘Incostituzionalità ipotetiche, “probabilità concrete” e “aspetti problematici”: quando la Corte vede ma non provvede’ [Hypothetical unconstitutionality, ‘concrete possibilities’, and ‘problematic aspects’: when the Court sees but does not provide], (2008) at <www.forumcostituzionale.it>, visited 19 February 2016.

13 Actually, the proposed modification in the referendum in 2009 was mostly instrumental: the aim of the promoters was to change the law in a way that all the political parties would have been against, so as to push them in approving a further electoral law.

14 See decision No. 13/2012. Diffusely on this decision, see the essays collected in the volume edited by Bin, R. et al., Nel “limbo” delle leggi. Abrogazione referendaria della legge Calderoli e reviviscenza delle leggi Mattarella? [In the Limbo of Laws. Referendary repeal of the Calderoli Law and reviviscence of the Mattarella Laws?] (Giappichelli 2012)Google Scholar.

15 Article 66 It. Const. (translation by the Chamber of Deputies): ‘Each House shall verify the credentials of its members and the causes of ineligibility and incompatibility that may arise at a later stage’.

16 The problematic role of the Parliament as self-judge in election control is not exclusively Italian. However, with specific regard to Italy, it has been deeply criticised also by international observers. See, significantly, OSCE, Office For Democratic Institutions And Human Rights, Italy. Parliamentary elections 9-10 April 2006. Election Assessment Mission Report, Warsaw, 9 June 2006, p. 21.

17 For a general introduction to the functioning and the way of access to the Italian Constitutional Court, see the dossier made available by the same Court at <www.cortecostituzionale.it/documenti/download/pdf/Cc_Checosa_2013_UK.pdf>, visited 19 February 2016.

18 Respectively: 2006, 2008 and 2013.

19 Exactly on this point, in a moment between the issue of the question of constitutionality and before the decision of the Constitutional Court, and anticipating its admissibility, see Repetto, G., ‘Il divieto di fictio litis come connotato della natura incidentale del giudizio di costituzionalita. Spunti a partire dalla recente ordinanza della Corte di cassazione in tema di legge elettorale’ [The ban of the fictio litis as a feature of the incidental nature of the judicial review of legislation. Elaborations on the recent order of the Court of Cassation related to the electoral law] in Giurisprudenza costituzionale (2013) p. 2465Google Scholar.

20 The reasons for a similar swing in the behaviour of the Court might also be found in the transformed political situation of Italy, that in a couple of years had significantly changed, progressively leaving behind the leadership of Berlusconi and the troubled climate between politics and constitutional checks and balances linked to it.

21 See para. 2 of the decision.

22 In order to keep the government coalition united as long as (presumptively) necessary to approve also the ongoing constitutional reform, Art. 2, para. 35, of the new electoral law states that it will be applied only after 1 July 2016.

23 See para. 3.1 of the decision, in which the Court also justifies the innovativeness of the declaration of admissibility.

24 In these terms, commenting the previous decision No. 271/2010, C. Pinelli, ‘Eguaglianza del voto e ripartizione dei seggi tra circoscrizioni’ [Equality of the vote and allocation of seats among electoral districts] in Giurisprudenza costituzionale (2010) p. 3322.

25 Decision nos. 103/2008 and 207/2013. See Pollicino, O., ‘From Partial to Full Dialogue with Luxembourg: The Last Cooperative Step of the Italian Constitutional Court’, 10(4) EuConst (2014) p. 143-153Google Scholar. For a comprehensive analysis of the subject see Repetto, G., ‘Pouring New Wine into New Bottles? The Preliminary Reference to the CJEU by the Italian Constitutional Court’, 16(6) German Law Journal (2015) p. 1449Google Scholar.

26 Para. 2 of the motivation in law.

27 However, somehow surprisingly, equality of the vote with regard to European Parliament elections is affirmed neither by primary (Art. 14(3) TEU; Art. 223(1) TFEU, Art. 39 CFREU) nor secondary (Art. 1(3) Direct Elections Act) EU law, because of the necessary ‘degressive proportionality’ in the allocation of seats among member states, that leads to an evident inequality in the weight of the voters from a member state to another.

28 Especially in that peculiar assembly that is the European Parliament, whose political groups have been considered as instrumental in shaping the European identity through the consolidation of the European party system: see ECJ 2 October 2001, Case No. T-222/99, Martinez v European Parliament.

29 However, from a political point of view, the importance of the existence on adequate electoral thresholds have been restated by the European Parliament in the resolution passed on 22 November 2012 (2012/2829(RSP)).

30 A similar solution might be embraced, if at all, only by an ordinary judge in an action for ensuring the integrity of the right to vote. Administrative judges appear to be overly reluctant to proceed in this sense. The Regional administrative Tribunal of Lazio has just rejected a request for a preliminary reference in decision no. 13216/2015, released on 11 November 2015 (case Bonelli e.a.). In doing so, it gave quite a poor motivation by just quoting word for word the decision of the Constitutional Court here in comment, without any further or original consideration of the case at its attention (see para. 2.3 of the decision). It appears unlikely that the Council of State would adopt an opposite approach.

31 This ‘ambition’ has been embraced in the ongoing process of constitutional revision, in which has been affirmed the a priori judicial review of electoral laws for the Chambers of National Parliament before their entry into force, upon the request of parliamentary minorities (see, at the Chamber of Deputies, bill No. 2613-B, and specifically Arts. 13 and 39.11).

32 A further confirmation of this restrictive approach to the follow-up of the Decision No. 1/2014 has been later given by Decision No. 193/2015.

33 S. Lieto and P. Pasquino, ‘Porte che si aprono e che si chiudono. La sentenza n. 110 del 2015’ [Opening and closing doors. Decision no. 110/2015], at <www.forumcostituzionale.it>, visited 19 February 2016, considered the decision here in comment as a substantial overruling of precedent 1/2014 and a ‘bad’ signal of closure of the Constitutional Court to directly protect the fundamental right to vote, after the openness showed in it.