On 1 August 2019, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d’État (decision nos. 431482, 431501, and 431564 of 31 July 2019). This application, firstly, was made on behalf of Fairouz H., Yves G., Laurence G., Quentin M., Sheila Z., Douglas Edward W. and Michael Charles S. by Julien Fouchet, Attorney at the Bordeaux Bar, and secondly, on behalf of Hélène T. and the Parti Animaliste by Caroline Lanty, Attorney at the Paris Bar, and, lastly, by Jérémy A. It was registered by the general secretariat of the Constitutional Council under no. 2019-811 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in Article 3 of Act No. 77-729 of 7 July 1977 relating to the election of representatives to the European Parliament, in its formulation resulting from Act No. 2018-509 of 25 June 2018 relating to the election of representatives to the European Parliament.
Having regard to the following texts:
- the Constitution;
- Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
- the Treaty on European Union;
- the Treaty on the Functioning of the European Union;
- Council Decision 2002/772/EC Euratom of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom;
- Council Decision 2018/994/EU (EU, Euratom) of 13 July 2018 amending the Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976;
- Act No. 2018-509 of 25 June 2018 relating to election of representatives to the European Parliament;
- the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
Having regard to the following documents:
- the observations of intervenors on behalf of François A. and the Union Populaire Républicaine party by SCP Lyon-Caen et Thiriez, Attorney for the Conseil d’État and for the Cour de Cassation, registered on 21 August 2019;
- the observations on behalf of Hélène T. and the Parti Animaliste by Caroline Lanty, registered on 22 August 2019;
- the observations on behalf of Fairouz H. and others by Julien Fouchet, registered on 23 August 2019;
- the observations of the Prime Minister, registered on the same date;
- the second observations on behalf of Hélène T. and the Parti Animaliste by Caroline Lanty, registered on 8 September 2019;
- the second observations on behalf of Fairouz H. and others by Julien Fouchet, registered on 9 September 2019;
- the second observations of intervenors on behalf of François A. and the Union Populaire Républicaine party by SCP Lyon-Caen et Thiriez, registered on the same date;
- the additional documents produced and appended to the case files;
After having heard Julien Fouchet on behalf of Fairouz H. and others, Caroline Lanty on behalf of Hélène T. and the Parti Animaliste, Jérémy Afane-Jacquart, Attorney at the Paris Bar, on his own behalf, Antoine Lyon-Caen, Attorney for the Conseil d’État and for the Cour de Cassation, for the intervenors, and Philippe Blanc, appointed by the Prime Minister, at the public hearing of 15 October 2019;
And after having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED THAT:
1. Article 3 of the aforementioned Act of 7 July 1977, in its formulation resulting from the aforementioned Act of 25 June 2018, stipulates:
“The election shall be conducted on the basis of proportional representation, without vote-splitting or preferential voting.
“Seats shall be allotted to candidates having secured at least 5% of the votes cast as per proportional allocation of votes, applying the rule of the highest average. If several lists have the same average for allotment of the last seat, the list with the greatest number of votes is chosen. If several lists have the same number of votes, the seat is attributed to the list that has the lowest average age.
“The seats are allotted to candidates according to the order in which they are presented on each list.”
2. The applicants, joined by the intervenors, oppose the 5% threshold for votes cast being the condition to access the distribution of seats during the election, in France, of representatives to the European Parliament. Firstly, due to the unique nature of European elections, this threshold, according to them, is not at all justified. Specifically, the objective of reaching a stable and consistent majority is not relevant, since the number of European representatives elected in France would not, in itself, make it possible to form a majority within the European Parliament. Moreover, with these same representatives being representatives of the citizens of the European Union residing in France, and not representatives of the French nation, the objective of combating the scattering of national representation would lack relevance. Secondly, this threshold would have disproportionate consequences, in that it would be a barrier to large political movements being able to access the European Parliament, and would deny a great number of voters any representation at the European level. It would result in a violation of the principles of equality before suffrage and pluralism of ideas and opinions.
3. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the words “that have secured at least 5% of the votes cast”that is in the first sentence of the second section of Article 3 of the Act of 7 July 1977.
- Concerning the conclusions for the purpose of referring questions for a preliminary ruling to the Court of Justice of the European Union:
4. Certain applicants ask that the Constitutional Council refer questions for a preliminary ruling concerning the validity of the aforementioned decision of the Council of the European Union on 25 June and 23 September 2002, or of the aforementioned decision of the Council of the European Union on 13 July 2018 to the Court of Justice of the European Union. However, the validity of these decisions has no impact on the determination of the compliance of the disputed provisions to rights and freedoms guaranteed by the Constitution. As a result, their conclusions, on this point, must be dismissed.
- Concerning the compliance of the disputed provisions to rights and freedoms guaranteed by the Constitution:
5. Article 3 of the Act of 7 July 1977 defines the conditions under which elections are carried out for representatives for the European Parliament that represent European citizens residing in France. It provides that this election take place, within a single national district, using a nationwide party-list proportional system, applying the rule of the highest average. According to the disputed provisions, only the lists that obtain at least 5% of votes cast are admitted to allocation of seats.
6. According to the third section of Article 3 of the Constitution, suffrage “shall always be universal, equal and secret”. According to Article 6 of the Declaration of Human and Civic Rights of 1789, the law “must be the same for all, whether it protects or punishes”. The principle of equality before suffrage, which applies to elections to terms of office and political functions, is applicable to the election of representatives to the European Parliament.
7. According to the third section of Article 4 of the Constitution: “Statutes shall guarantee the expression of diverse opinions and the equitable participation of political parties and groups in the democratic life of the Nation.” The principle of pluralism of ideas and opinions is a foundation of democracy.
8. If the legislator, when they determine electoral rules, should approve methods that tend to favour constituting stable and consistent majorities, from the perspective of this objective, any rule that would impact equality between voters or candidates in a disproportionate way would violate the principle of pluralism of ideas and opinions.
9. According to Article 88-1 of the Constitution: “The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and of the Treaty on the Functioning of the European Union, as they result from the treaty signed in Lisbon on 13 December, 2007.”
10. Firstly, as part of the participation of the French Republic in the European Union provided for in Article 88-1 of the Constitution, when the legislator established a single threshold for access to allocation of seats in the European Parliament, they pursued a twofold objective. On the one hand, the legislator intended to favour the main currents of ideas and opinions expressed in France being represented in the European Parliament, and as such to reinforce their influence within the European Parliament. On the other hand, the legislator intended to support the advent and consolidation of European political groups of significant size. In doing so, the legislator sought to avoid fragmentation of representation that would impede the proper functioning of the European Parliament. Thus, even if the accomplishment of such an objective cannot depend on the action of a single Member State, the legislator had a basis for determining methods of election that would favour building majorities that would allow the European Parliament to exercise its legislative, budgetary and monitoring power.
11. Secondly, Article 61-1 of the Constitution does not confer a general mandate for judgements to the Constitutional Council in a manner similar to that of Parliament. It is not for the Constitutional Council to review if the objective that the legislator sought to achieve could have been reached by other means, once the methods used are not clearly inappropriate for the pursued objective.
12. It follows from the foregoing that, by setting the threshold for access to allocation of seats in the European Parliament at 5% of votes cast, the legislator maintained methods that do not impact equality before suffrage in a disproportionate manner, and that do not excessively infringe on the pluralism of ideas and opinions.
13. Consequently, the objections made for the violation of the principles of pluralism of ideas and opinions, and equality before suffrage must be dismissed.
14. The disputed provisions, which do not violate any other right or freedom guaranteed by the Constitution, must therefore be declared as conforming to the Constitution.
THE CONSTITUTIONAL COUNCIL DECIDES:
Article 1. - The words “that have secured at least 5% of the votes cast” that are in the first sentence of the second section of Article 3 of Act No. 77-729 of 7 July 1977 relating to the election of representatives to the European Parliament, in its formulation resulting from Act No. 2018-509 of 25 June 2018 relating to the election of representatives to the European Parliament, conforms to the Constitution.
Article 2. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.
Ruled by the Constitutional Council in its 24 October 2019 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD, François PILLET and Michel PINAULT.
Published on 25 October 2019.