Proposal for Legal Incentives for Transnationalisation of Political Parties

Pierre Jouvenat
Former UN/WTO senior official and active member of UEF-France

The sole purpose of this paper is to formulate a specific proposal on the voting system for European elections that is compatible with the long-term vision of emergence of transnational parties. It will only deal with legal incentives that are considered appropriate, taking into account the particular context of the EU, as recalled above.

The legal framework, electoral law in particular, largely determines the form that a partisan system takes. The strategy chosen is the development of synergies between national parties and Europarties.

A. Electoral Act of the EU

A recent attempt to "europeanise" European elections through a reform of the electoral law failed. One of the EP's key proposals was to make it compulsory that "The ballot papers ... shall give equal visibility to the names and logos of national parties and to those of the European political parties" to which they are affiliated. The Council of the EU, for its part, maintained the status quo: " Member States may allow for the display, on ballot papers, of ...", thus showing its opposition to any change. National parties will remain the sole masters of the game.[i]

However, even the EP's proposal would have been insufficient for a real impact on citizens' perception of this election. And the main concern to develop synergies between national and Europarties was lacking. We must therefore be more ambitious.[ii]

One of the proposals of the experts auditioned by AFCO is perfectly in line with the perspective of transnational parties. This is the so-called "double proportionality" method[iii], which consists in allocating seats among political families directly at European level (Europarties, i.e no longer national parties) and among States according to preordained quotas. The many advantages of this method will be discussed below, but it must be noted at the outset that it differs from the proposal for transnational lists in that it makes the elections europeanised for all seats. There is no need for a new single constituency. The quality of public debate is not a matter of constituency; it rather depends on which message is conveyed and by whom.

In practice, ahead of the elections each political family (the Europarty and its national counterparts) defines a programme (the European manifesto adopted in Congress). The selection of candidates and the conduct of electoral campaigns are then carried out by the national parties within national or regional constituencies. This is already the case today, but we have seen that national parties have ignored the European manifesto and instrumentalised elections for national purposes. What's new then? Over and above the obligation to display the names and logos of both the Europarty and the national party on ballot papers, more importantly votes are cast for the Europarty, no longer the national party. Thus, in Germany, for example, within the national constituency a voter casts his/her vote for EPP, not for CDU/CSU. Strong psychological shock guaranteed. Seats are then allocated, on the one hand, to the various Europarties according to electoral results achieved at EUROPEAN level, in conformity with the principle "one citizen, one vote", and on the other hand, within each Member State according to the results of competing political forces in that State, within its preordained seat contingent. The double entry table (Europarties and Member States) is thus constituted. This mathematical formula is well established (for instance in Swiss cantons).

There are many advantages (see box below). Two of them must be highlighted as there is a direct

relationship with the emergence of transnational parties:

• Drawing programmes and conducting electoral campaigns requires a genuine partnership between parties in the same political family. This is fully in line with the logic of synergies between national parties and Europarties.

• Since votes are cast for Europarties, integrating into a transnational structure becomes a serious matter as it becomes visible to the electorate. As a result, true political affinities structure the European public debate. Unlike post-election alliances within parliamentary groups, affiliations inevitably take place ahead of the elections, thus enhancing transparency of the electoral competition. Finally, in the long run, political parties will have precedence over parliamentary groups, as in all national democracies.[iv]

Induced benefits

1. Clarity of the European political landscape

The increased role and visibility given to a limited number of Europarties is likely to promote, in the long term, greater homogeneity of the ideological offer at European scale, or at least limit its fragmentation. This will facilitate pan-European public debate and encourage the emergence of a transnational party system (see box on page 2). These are important factors in European integration.

2. Legitimacy of the EP

The Bundesverfassungsgericht contested the democratic legitimacy of the EP, admittedly mainly because of the violation of the principle of electoral equality, which is jeopardized by the attribution of EP seats according to national quotas, with a very strong discrepancy between the electoral weight of citizens from different Member States. However, while the issue of "degressive proportionality" is not resolved here, the negative perception of national quotas decreases once MEPs are identified with Europarties and no longer with a multitude of national parties - in the spirit of their status as representatives of all EU citizens - and once the allocation of seats among political families is based on the principle "one citizen, one vote" applied at European level. The Court would undoubtedly see this as an increased legitimacy of the EP.

3. Transnational lists

Transnational lists, which are controversial, lose their main raison d'être. The objective of europeanising the debate will have been achieved. All the better, because notwithstanding commonly made criticisms (disconnected MEPs, two-tier parliament[vi], problematic selection of candidates, mechanism favouring countries having electoral weight, lists necessarily limited to a small number of seats...), this proposal is in no way compatible with a long-term vision (see box below).

 
4. Spitzenkandidaten

The Spitzenkandidaten process becomes fully effective with all votes being cast for Europarties. Separate transnational lists are no longer needed. Obviously, fully recognised Europarties will be led by personalities embodying their political family in its European dimension. It follows that these real party presidents will be the natural candidates for the presidency of the Commission, just as in Germany the leaders of the trans-Länders (!) parties are running for the chancellery, with full awareness of voters. In accordance with the Treaties, the European Council will task the leader of the party which came first to form a majority in the EP. If he/she fails, the leader of another party will be designated to do so.

B. Legislation on political parties

Since the need has emerged to define what a Europarty is and to regulate its existence, AFCO's work from the Tsatsos report in 1996 to the Giannakou report in 2011 has not really succeeded in clarifying conceptual issues such as the nature, role and positioning of Europarties within the European political space. As a result, the current regulation[vii] remains largely focused on conditions to access European funds.
However, a few provisions are in line with the transnationalisation of parties as envisaged in this paper. Two examples: (1) Now that Europarties have been endowed with European legal personality, they "... shall enjoy legal recognition and capacity in all Member States". A provision which has not yet achieved full understanding in Member States! (2) As from the most recent amendment, only political parties, and no longer individuals, may sponsor the registration of a Europarty.
However, we are still far from a legislation that would promote synergies between all parties in the same political family. While a single European law[viii] or a uniformisation of national laws on such sensitive issues are not conceivable, European legislation must nevertheless evolve in favour of a "mutualisation" of the missions of European and national parties. A difficult task while so far, Member States have even opposed the participation of Europarties in referendum campaigns on European issues and in the selection of candidates for the European elections[ix].The European legislation will also have to introduce a distinction between the conditions to access European funds and the minimum conditions required to participate in European elections, so as to allow new parties demonstrating a European dimension (PACE, Volt, European Spring ...) to join the European political scene. A homogeneous political space should not mean a closed space.

Conclusion

It is brief: Creating a European political space requires a transnationalisation of political families. This must start with the strengthening of synergies between national parties and Europarties. Any initiative, particularly regarding the election of MEPs, must contribute to this concern. 

[i] In accordance with its mandate under the Treaties (Art. 223 TFEU), the EP has initiated a reform of its electoral procedure aimed at "drawing up a procedure that is based on principles common to all the Member States". Its resolution of 11 November 2015 was considerably narrowed by the Council decision of 13 July 2018. Only one important provision remains: the establishment of a minimum threshold of 2 to 5% in the event a list system is used in constituencies with more than 35 seats. At the time of writing (June 2019), the reform had not yet been ratified by all Member States.

[ii] The author of this paper is aware that the following proposal has no chance of being accepted by Member States in the context of a new electoral reform undertaken in isolation (which is not on the agenda). The immediate intention is to put it on the agenda for discussions on possible institutional changes and, at the same time, to open a debate that goes beyond the single and recurrent proposal for transnational lists, which now appears to be deadlocked.

[iii] Kai-Friedericke Oelbermann and Friedrich Pukelsheim, Future European Parliament Elections: Ten Steps Towards Uniform Procedures, and Reinforcing uniformity in the European election act: gentle interim arrangements in 2019; Towards systematic double-proportionality in 2024, pp.18-25 of the document accessible via this hyperlink. These documents were presented at the AFCO hearings on 4 December 2014. The proposal was not adopted by the rapporteurs, who had considered that it should rather be examined in the context of a future treaty revision.

[iv] Voting for a Europarty has occasionally been criticised on the ground that this could prevent emerging national parties from participating in the elections. However, we believe that the opportunism of small parties or groups without a European project but seeking visibility must be ended. Small parties that wish to go beyond the national sphere and stand for European elections must necessarily integrate into a credible transnational structure. This is possible, as demonstrated by the pirate parties that founded the European Pirate Party in 2014.

[v] This does not prevent national parties from highlighting specific elements of the European manifesto, according to national prorities and local sensitivities, or even from outbidding with more precise or ambitious proposals that their MEPs will defend within their political family in the EP. What remains essential is the absence of contradiction with the common manifesto.

[vi] The comparison with the election method to the Bundestag is misleading. While the voter has two votes to combine

1. a uninominal majority poll in single-member constituencies (the Direktkandidaten) and
2. a proportional list vote,

which takes place at Länder level (Landesliste). There are no trans-Länder lists in Germany! Nor is there a significant example of a single constituency in the world.

[vii] Regulation of 22 octobre 2014 on the statute and funding of European political parties and European political foundations, et its amendment of 3 mai 2018.

[viii] In Switzerland, for example, all levels of political parties, including the cantonal and communal sections, are governed by the federal law, the Swiss Civil Code.

[ix] Even more symptomatic of this resistance to party transnationalisation is the recent failure of the European Commission to introduce into the Regulation a provision requiring a Europarty seeking funding to provide evidences that its national member parties publish the political programme and logo of the Europarty on their websites. The final text is not very binding in this respect. Yet, it should have gone even further: encouraging various forms of interaction between national and Europarties, and between sister national parties (such as thematic working groups to promote common policies; mutual support in national elections; joint campaigns on pan-European issues, etc.), to develop synergies both horizontally and vertically.