Czech court wants EP threshold lowered, extremists would have it easier if so

The Supreme Administrative Court of the Czech Republic (Nejvyšší správní soud – NSS) is proposing that the Constitutional Court abolish the 5 % threshold for becoming a Member of the European Parliament. The elections appeal panel has sided with a motion filed by the Czech Green Party and the Czech Pirate Party.

The NSS has interrupted the proceedings and is now waiting for the Constitutional Court’s verdict in the matter. Both parties came in just under the 5 % threshold in the EP elections this year, the Pirates at 4.78 % and the Greens at 3.77 %. 

The NSS has not agreed with any other EP election-related complaints. The Greens and the Pirates have welcomed its decision.

The Christian Democrats are warning that extremists will have an easier time getting into the European Parliament should the threshold be lowered. According to Judge-Rapporteur Tomáš Langášek, the NSS found that the disputed section of the law on the EP elections restricts the free political competition, equal access to the right to vote, and the right to be elected under equal conditions.  

The European Parliament, moreover, is playing a less significant role for the time being in the operation of the EU than do the national parliaments in the Member States. The restrictive clause, therefore, does not seem to be as necessary as it is in elections to the domestic legislature, for which the Constitutional Court has previously upheld it.

According to NSS Judge Jan Passer, who chaired the panel reviewing the election complaint, the Constitutional Court now has a wide range of options for how to decide the complaint. "That court has more room for maneuver in terms of the temporal effects of its decision," he said. 

The Constitutional Court can abolish the 5 % threshold, but only for the future, not for this year’s elections. The NSS could also have taken the groundbreaking step of interfering with the results of previous elections and could have decided that Green Party chair Ondřej Liška and Pirate Party chair Ivan Bartoš should be seated at the EP.

That would have cost Miroslav Pochý (Czech Social Democrats – ČSSD) and Tomáš Zdechovský (Christian Democrats) their EP seats. The elections appeal panel, however, did not agree with a motion for a preliminary measure to prevent Pochý and Zdechovský from beginning to serve their terms.   

The Greens and the Pirates have welcomed the NSS decision. "We appreciate that the Supreme Administrative Court has identified with our arguments. The results of the elections to the European Parliament clearly showed that the votes of some carried more weight than others. While it only took 50 000 Christian Democratic votes to win an EP seat, the Greens needed more than 57 000 votes and the Pirates needed more than 72 000," said Jana Drápalová, the first vice-chair of the Greens. 

Jakub Michálek of the Czech Pirate Party believes the proposal to the Constitutional Court has a chance of success. However, Czech Prime Minister Bohuslav Sobotka (ČSSD) does not support abolishing the 5 % threshold.  

"The 5 % threshold helps create and integrate the main political streams of opinion. It prevents fragmentation and the inability to reach consensus," the PM said. Representatives of the the opposition parties Civic Democrats (ODS) and TOP 09 take a similar view. 

"I am not actually a fan of that idea, but I will respect the opinion of the Constitutional Court," said Miroslav Kalousek, vice-chair of TOP 09. "A decision like this should not be taken by the judiciary, but by the legislature," says ODS boss Petr Fiala.

The 5 % threshold also makes sense to the head of the governing Christian Democrats, Pavel Bělobrádek. "We already have factions with only one MP in them," he said, adding that politicians in Germany, where the court has completely abolished any threshold for winning an EP seat, do not recommend making such a change. 

"Extremists have an easier time getting into the parliament as a result," Bělobrádek said. On the other hand, Czech Deputy Prime Minister Andrej Babiš (ANO) sees no problem with abolishing the threshold for the EP elections, but said he believes the threshold needed for a seat in the lower house of the Czech legislature should be doubled.  

The 5 % limit in the EP elections in the Czech Republic corresponds to the fact that the same kind of limit exists for other types of proportional elections to the lower house, to the Regional Authorities, and to municipal councils. In the case of those elections, the limit is supposed to make it easier to form a majority. 

If the 5 % clause were to no longer exist, the limit for winning an EP seat would be determined by what is called a "natural threshold". That is calculated on the basis of the type of electoral system, the number of parties running, and voter turnout.  

In the recent EP elections, the "natural threshold" was calculated at around 3.5 %. Use of the "natural threshold" would have meant EP seats for the Greens and Pirates and would have cost Miroslav Pochý (ČSSD) and Tomáš Zdechovský (Christian Democrats) their seats.

The seven-member election panel of the NSS did not reach an unanimous decision on the issue. Judges Zdeněk Kühn, Miloslav Výborný and Radan Malík dissented.

The proposal will now be reviewed by all 15 of the Constitutional Court justices in plenary. In order to overturn any legal norm, nine of their votes is needed.  

"The average length of a plenary proceedings last year was nine months," Constitutional Court spokesperson Miroslava Sedláčková said. The NSS has not requested that this matter be given priority. 

"The Constitutional Court is doubtless aware of the significance of this case," Judge Passer said. The NSS received a total of 16 complaints about the recent EP elections.

With the exception of two complaints that have now been interrupted, the NSS either refused, suspended or dismissed all of the other complaints without a hearing, despite the fact that it found electoral commission errors in at least two of the cases. The errors concerned, however, would have had no impact on the election of specific candidates. 

The Prague 9 electoral commission mistakenly failed to include two preferential votes for ČSSD candidate Jan Straka in its final numbers. In the town of Lysovice na Vyškovsku, the electoral commission attributed six votes intended for the Party of Free Citizens (Strana svobodných občanů) to the Communist Party of Czechoslovakia by mistake.