inl (2015) 2035 - Bilag 1: Begrundede udtalelser fra House of Commons og Riksdagen om forslaget til ny europæisk valglov

Europaudvalget 2015-16
INL (2015) 2035 Bilag 1
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European Scrutiny Committee, Nineteenth Report, Session 2015–16

Reasoned Opinion of the House of Commons

Submitted to the Presidents of the European Parliament, the Council and the Commission,

pursuant to Article 6 of Protocol (No. 2) on the Application of the Principles of

Subsidiarity and Proportionality.

concerning

a Proposed Council Decision adopting the provisions amending the Act

concerning the election of the members of the European Parliament by

direct universal suffrage (“the proposal”)

1. The UK House of Commons firstly notes that Protocol No 2 on the application of the

principles of subsidiarity and proportionality (the Protocol) applies to the proposal since it

is an “initiative from the European Parliament”

and a “draft legislative act”.

The

European Parliament is therefore subject to the obligations set out in Articles 1, 4, 5 and 7

of the Protocol.

2. The House of Commons considers that the proposal fails to meet the requirements of

Article 5(3) TEU

and the Protocol for the following reasons:

a) It fails to comply with essential procedural requirements set out in Article 5 of the

Protocol. This states that:

“any draft legislative act should contain a detailed statement making it possible to

appraise compliance with the principles of subsidiarity and proportionality. This

statement should contain some assessment of the proposal’s financial impact, and in

the case of a directive, of its implications for the rules to be put in place by Member

States, including, where necessary, the regional legislation. The reasons for concluding

that a Union objective can be better achieved at Union level shall be substantiated by

qualitative, and whenever possible, quantitative indicators. Draft legislative acts shall

take account of the need for any burden, whether financial or administrative, falling

upon the Union, national governments, regional or local authorities, economic

operators and citizens, to be minimised and commensurate with the objective to be

achieved.”

The European Parliament fails to provide this detailed statement within the draft

legislative act itself as this does not contain any substantive recitals.

Council document: Unnumbered; European Parliament document: 2015/0907/APP.

Article 3.

This proposal is based on Article 223 (1) TFEU, which specifies a “special legislative procedure” and does not fall

within the exclusive competence of the Union.

Article 5(3) TEU provides that “Under the principle of subsidiarity, in areas which do not fall within its exclusive

competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently

achieved by the Member States, either at central level or at regional or local level, but can rather, by reason of the

scale or effects of the proposed action, be better achieved at Union level”.

inl (2015) 2035 - Bilag 1: Begrundede udtalelser fra House of Commons og Riksdagen om forslaget til ny europæisk valglov

European Scrutiny Committee, Nineteenth Report, Session 2015–16

b) As the Resolution

of the European Parliament and the “European Added Value

Assessment on the Reform of the Electoral Law of the European Union”

are not

included in the draft legislative act, the House of Commons does not consider that they

meet the requirements of Article 5 of the Protocol. In any event, the substantiation they

provide is insufficient to enable national Parliaments to assess compliance of the

proposal with subsidiarity principle. This is because:

The Resolution is mostly of a general and theoretical nature and not all of the

individual proposals made in the draft legislative act have been specifically justified,

either on a quantitative or qualitative basis (for example, ineligibility of members of

regional parliaments and assemblies with legislative powers to become MEPs,

replacing unanimity by QMV for implementing measures and posting of election

materials to voters); and

ii) The “European Added Value Assessment does not provide sufficient

substantiation. For example, apart from some very broad consideration of cost

implications for Member States to implement electronic voting, the document does

not contain other “assessment

of the proposal’s financial impact”.

Page 13 of the

Assessment makes clear that such assessment of “feasibility” that is provided, is

focussed on assessing how proposals will meet the unanimity and ratification

requirement of Member States and the diversity of national electoral law on EP

elections, despite the recognition that the measures could have “to varying degrees,

have impacts on Member States, national political parties as well as citizens”. So

there is little assessment of the burdens that will be placed on national electoral

bodies as a result of measures proposed.

Furthermore, the document does not

address all the measures in the proposal (in particular, those on a common

deadline for the electoral roll– Article 1(4) of the Proposal and ineligibility of

members of regional parliaments and assemblies to be MEPs – Article 1(8) of the

Proposal.). Yet it does address measures that are not included in the proposal

(common voting day and minimum voting age of 16). In any case, it is not

linguistically accessible to all national parliaments

nor it is integrated into the

more linguistically accessible Resolution. The House sets out further examples of

deficiencies in the European Added Value Assessment in the substantive

subsidiarity objections which follow.

3. The House of Commons recognises as the objective of both Article 223(1) TFEU and

this proposal of creating a uniform procedure for direct universal suffrage to the European

Parliament in order to enhance its democratic legitimacy through electoral equality.

However, it does not consider that the objective requires harmonisation at a level of detail

that in fact detracts from that legitimacy by divorcing the European Parliament’s electoral

procedure from that which is well-established and recognised in Member States.

This accompanies, but is not part of the proposal i.e. the draft legislative act.

This is only referenced by the Resolution: “The Reform of the Electoral Law of the European Union: a European

Added Value Assessment” produced by the EU Added Value Unit of the European Parliamentary Research Service,

September 2015.

There is some recognition in relation to the common minimum deadline for establishing candidate lists at national

level that having a different deadline to the domestic electoral deadlines could “put pressure on domestic electoral

bureaucracies and parties, especially the smaller ones” (P.16).

It has not been translated into all the official languages of the EU and it only available in English, French, German

and Polish).

inl (2015) 2035 - Bilag 1: Begrundede udtalelser fra House of Commons og Riksdagen om forslaget til ny europæisk valglov

European Scrutiny Committee, Nineteenth Report, Session 2015–16

4. With this in mind, the House raises the following specific objections to EU level action

on the grounds that the measures in question do not comply with the principle of

subsidiarity

a) Given the wide diversity of types of elected bodies that exist at sub-national level across

Member States and their range of powers, we consider it more appropriate to leave to

Member States the question of whether to make members of regional parliaments and

assemblies “vested with legislative powers” ineligible to become MEPs (Article 1(8) of

the proposal). There is also no assessment of the impacts of such a prohibition and no

identification of any expected benefits in either the Resolution or the European Added

Value Assessment;

b) As the “European Added Value Assessment” itself recognises, the question of gender

equality of candidates (Article 1(4) of the proposal) is a matter which is politically

sensitive for Member States and that a “softer, non-binding approach” would be

“wiser”

27.

A simple requirement to ensure the gender equality of candidates implies the

need for legal quotas which would, in our view, require further consideration and

assessment.

c) There is potential for a decreased voter turnout in the UK for EP elections if certain

administrative inconsistencies created between EU and national arrangements by the

proposal meant that the UK could no longer combine them with local elections. Such

inconsistences might arise in relation to common deadlines for both lists of candidates

and electoral rolls (Article 1(4) of the Proposal). This would undermine the EP’s

objective of increasing voter participation in the elections (Preamble B and E of the

Resolution). The House notes that it is only in relation to common deadlines for

candidate lists that the potential burden of different electoral practices required by the

proposal on national electoral bureaucracies is recognised by the European Added

Value Assessment (Page 16). Even then, it is dismissed on the grounds that this would

only be a five-yearly burden and that differences would mark out the EP elections as

being distinct from other elections, without any attempt to quantify the burdens to be

imposed or demonstrates why this distinction promotes the objective;

d) The European Parliament would like Member States to use electronic voting at EP

elections (Article 1(5) of the proposal). The fact that this is on a non-mandatory basis

does not exempt the European Parliament from the obligation to provide sufficient

subsidiarity justification of the measure for those Member States who may adopt the

measure as a result of the proposal. The House considers that the consideration of costs

implications in the European Added Value Assessment on this measure is limited and

unclear: the Assessment acknowledges the lack of empirical evidence linking voter

turnout and electronic voting and, in default, the sole example of one Member State,

Estonia, having used the system in the EP elections of 2009 and 2014 is used to justify

the recommendation for all. This is despite the fact that although in 2009 turnout in

that country increased by 16% compared with 2004, there was then a 7% decrease in

Article 5(3) TEU.

See footnote 6, p.29.

Though the consequential requirement to ensure the reliability of the result, secrecy of the vote and data protection

is itself mandatory.

inl (2015) 2035 - Bilag 1: Begrundede udtalelser fra House of Commons og Riksdagen om forslaget til ny europæisk valglov

European Scrutiny Committee, Nineteenth Report, Session 2015–16

2014. The recommendation is also made despite the adverse experience of the

Netherlands in piloting a system which was insecure, the German Constitutional Court

having declared it unconstitutional and a generalised conclusion based on a study by

one Member State

that electronic voting if used as a substitute for paper voting, could

be more cost-effective (Pages 26, 27 and 28 of the Assessment). However, the House

notes that the UK Government considers that the costs of implementing electronic

voting in the UK could be “substantial”

and is also concerned that the uncertain

integrity of electronic voting systems and the attendant risk of electoral fraud could

undermine the EP’s objective of increasing its own democratic legitimacy (Preamble B

of the Resolution); and

e) The European Value Assessment provides unclear substantiation of the need for a

mandatory 3-5% mandatory threshold for gaining a seat in the European Parliament

(Article 1(3) of the Proposal). It describes the legal practice of mandatory electoral

thresholds as “widespread” in Member States but the evidence it provides indicates that

only 15 Member States have already introduced the required threshold (Page 17 of the

Assessment). But the remaining 13 Member States not adopting that practice represent

a sizeable number of non-practising Member States. The evident varied practice of

Member States and their differing political and electoral circumstances suggests that

this is a matter best decided at national level. The House also considers that such a

requirement could undermine the European Parliament’s objective of enhancing its

democratic legitimacy (Preamble B and E of the Resolution) and broadening its

composition if, as a consequence, it excludes minority and independent candidates.

A study by published by the French Senate but which is not accessible from the link provided.

See para 41 of the Explanatory Memorandum of the Minister for Europe of the UK Government (Mr David

Lidington) of

4 January 2016.