3 European Elections 2014
| (a)
(34797)
7648/13
COM(2013)126
(b)
(34798)
7650/13
COM(2013)1303
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Commission Communication on preparing for the 2014 European elections and enhancing their democratic and efficient conduct
Commission Recommendation on enhancing the democratic and efficient conduct of the elections to the European Parliament
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| Legal base | (a) —
(b) Article 292 TFEU
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| Documents originated | 12 March 2013
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| Deposited in Parliament | 26 March 2013
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 17 April 2013
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| Previous Committee Report | None; but see (34226) 13777/12 and (34259) 13842/12: HC 86-xix (2012-13), Chapter 2 (7 November 2012) and (34523) 17469/12: HC 86-xxvii Chapter 1(16 January 2013) and (34688) HC 86-xxxv Chapter 10 (13 March 2013), HC 86-xxxviii Chapter 2 (17 April 2013)
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| Discussion in Council | Not applicable
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| Committee's assessment | Legally and politically important
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| Committee's decision | For debate on the Floor of the House; further information requested
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Background and scrutiny
3.1 These two Commission initiatives, a Communication and
a Recommendation, are new documents which we have not previously
scrutinised. However, they are related, in some respects, to the
proposed Regulation on the statute and funding of European political
parties and foundations on which we have already reported.[10]
On our recommendation, a debate on that proposal took place in
European Committee on 6 February 2013.[11]
Similarly, in our Report of 17 April 2013,[12]
we also recommended for debate a Court of Auditor's Opinion on
the proposed Regulation.[13]
3.2 The 2014 European elections will be the
first since the Treaty of Lisbon (ToL) entered into force. The
current documents propose non-legally binding measures on the
conduct of those elections by Member States, which the Commission
believes will increase the democratic legitimacy of the EU. The
Communication states that the Commission is committed "to
fully exploiting the existing Lisbon provisions to further enhance
transparency and the European dimension of the European Elections."
The Commission continues:
"This is particularly relevant in view of the
actions required at EU level to address the financial and sovereign
debt crisis. This can also act as a stepping stone towards further
Treaty reforms to enhance the European Union's basis as a democratic
organisation".
The legal context
3.3 Whilst document (a), the Communication, outlines
the background of the measures proposed, document (b), the Recommendation,
sets out the formal proposals in detail.
3.4 Article 288 TFEU states that "Recommendations
and opinions shall have no binding force". As such the Recommendation
is not a legislative act, but a legal act pursuant to Article
289 TFEU. The Commission cites the legal base for the Recommendation
as Article 292 TFEU, a purely procedural provision, which gives
the Commission a broad power to adopt recommendations. The process
of adoption does not involve the formal participation of the other
EU institutions.
3.5 The wider legal context is relevant to the
conclusions we draw at the end of the chapter, specifically as
it relates to the:
- division of competences between
the EU and Member States over the running of the European Parliament
elections;
- extent of the EU's competence over political
parties participating "at European level" (as opposed
to domestic political parties) in this election process;
- division of institutional competences between
the European Council and the European Parliament over the nomination
and election of a Commission President; and
- prevention of multiple-voting by EU citizens
in both Member States of origin and residence, by the exchange
of data between Member States.
THE RUNNING OF EUROPEAN PARLIAMENT ELECTIONS
3.6 The role of the European Parliament in representing
the EU citizen and the right of the citizen to participate in
the EU democratic process are asserted in Articles 10(2) and 10(3)
TEU. Article 14(2) TEU states that "The European Parliament
shall be composed of representatives of the Union's citizens."
It makes provision for the maximum number of MEPs and provides
for the allocation of MEPs to Member States which is "degressively
proportional". Article 14(3) TEU states that "The members
of the European Parliament shall be elected for a term of five
years by direct universal suffrage in a free and secret ballot".
3.7 Article 223 TFEU provides that:
"The European Parliament shall draw up a proposal
to lay down the provisions necessary for the election of its Members
by direct universal suffrage in accordance with a uniform procedure
in all Member States or in accordance with principles common to
all Member States.
The Council, acting unanimously in accordance with
a special legislative procedure and after obtaining the consent
of the European Parliament, which shall act by a majority of its
component Members, shall lay down the necessary provisions. These
provisions shall enter into force following their approval by
the Member States in accordance with their respective constitutional
requirements."
POLITICAL PARTIES "AT EUROPEAN LEVEL"
3.8 Article 10(4) TEU states that "Political
parties at European level contribute to forming European political
awareness and to expressing the will of citizens".
3.9 Article 224 TFEU[14]
states that:
"The European Parliament and the Council, acting
in accordance with the ordinary legislative procedure, by means
of regulations, shall lay down the regulations governing political
parties at European level referred to in Article 10(4) of the
Treaty on European Union and in particular the rules regarding
their funding."
NOMINATING AND ELECTING THE PRESIDENT OF THE COMMISSION
3.10 Article 17(7)TEU provides that:
"Taking into account the elections to the European
Parliament and after having held the appropriate consultations,
the European Council, acting by a qualified majority, shall propose
to the European Parliament a candidate for President of the Commission.
This candidate shall be elected by the European Parliament by
a majority of its component members. If he does not obtain the
required majority, the European Council, acting by a qualified
majority, shall within one month propose a new candidate who shall
be elected by the European Parliament following the same procedure."
3.11 The nature of the role of the European Parliament
in this process is reiterated in Article 14(1) TEU which states
that "The European Parliament shall elect the President of
the Commission". Declaration 11 on Articles 17(6) and (7)
TEU also states, that "the European Parliament and the European
Council are jointly responsible for the smooth running of the
process leading to the election of the President of the European
Commission". Additionally, Declaration 6 states that in
choosing the President of the Commission: "due account is
to be taken of the need to respect the geographical and demographic
diversity of the Union and its Member States".
PREVENTION OF MULTIPLE-VOTING BY EU CITIZENS
3.12 Article 22(2) TFEU provides that:
"Without prejudice to Article 223(1) and to
the provisions adopted for its implementation, every citizen of
the Union residing in a Member State of which he is not a national
shall have the right to vote and to stand as a candidate in elections
to the European Parliament in the Member State in which he resides,
under the same conditions as nationals of that State."
3.13 To safeguard the legitimacy of the European
elections, Directive 93/109/EC[15]
provides for procedures ensuring that EU citizens can neither
vote nor stand as candidates in both their Member State of origin
and of residence in the same elections. The mechanism, set out
in Article 13 to the Directive, consists in transmission of data
"sufficiently in advance of polling day" by the Member
State of residence to that of origin. The latter must then remove
from its electoral rolls the citizens concerned (or prevent them
by other means from casting their vote or standing as candidates).
The documents
3.14 To justify the measures proposed, the Communication
points to the enhanced powers given to the European Parliament
by the Treaty of Lisbon which consolidate the Parliament's role
as co-legislator with the Council. The Commission refers to the
recognition, at Treaty level, of the European Parliament's role
in directly representing the EU citizen and the citizen's right
to participate in the EU democratic process.
3.15 The Commission also cites its 2010 report
evaluating the low turnout of voters in the 2009 elections,[16]
in line with a decreasing trend, and says that its 2010 EU Citizenship
report provides further evidence of the need to increase citizens'
engagement with European Parliament elections. This, it argues,
can be improved by establishing connections between national and
European political parties, a theme highlighted by President Barroso
in his "State of the Union 2012" address.[17]
The elections' importance is heightened, the Commission says,
by the recent emphasis on democratic legitimacy in the development
of an enhanced EMU, as outlined in the Commission's 2012 "Blueprint
for a deep and genuine economic and monetary union"[18]
and the Van Rompuy Report "Towards a Genuine Economic
Union".[19]
3.16 The measures in the Recommendation fall
into two categories. The first relates to the democratic conduct
of the elections, the second to their efficient conduct. The measures
are addressed variously to the Member States, European political
parties and national political parties. The Commission hopes that
the Recommendation will be acted upon by Member States in time
for the 2014 Elections. The measures it contains are set out in
further detail below.
DEMOCRATIC CONDUCT OF THE ELECTIONS
Affiliations between national and European political parties
3.17 The Commission wants to make the connection
between European and national political parties more visible,
recommending that:
- national political parties
should publicise their affiliation with European political parties
in advance of campaigning in European elections (using campaign
materials, communications and political broadcasts); and
- Member States should, within their electoral
systems, "encourage and facilitate" the provision of
information to voters about those affiliations (by allowing and
encouraging the indication of affiliation on the ballots used
in those elections).
3.18 The recommendation aimed at national political
parties mirrors the requirement on European political parties
in Article 17(3) of the proposed Regulation on the statute and
funding of European political parties and foundations.[20]
This requires European political parties "to take all appropriate
measures, in the run-up to European Elections, to inform voters
of the affiliations between national political parties and candidates
and the European political parties".
3.19 The Commission justifies these recommendations
in the Communication by stating that:
"Increasing the visibility of European political
parties during the whole electoral process, from the campaign
to the casting of ballots, would increase the accountability of
the political parties taking part in the European electoral process
and improve the trust of voters in this process. It would make
citizens more aware of the European repercussion of a vote cast
for a national party".
3.20 On the use of political broadcasts to promote
affiliations, the Commission says this will enable EU voters to
make informed choices and national political parties should employ
them "in an environment promoting media pluralism and an
open democratic debate, taking into account Article 11 of the
Charter of Fundamental Rights of the European Union."[21]
Common voting day
3.21 The Commission recommends a common voting
day for European elections across the EU, with polling stations
closing at the same time. It reports that, currently, Member States
hold European elections on different days and that this "entrenches
the perception that European elections are primarily national
elections and limits the impression that European elections are
a common endeavour."
Nominating and supporting a candidate for President
of the European Commission
3.22 The Commission recommends that European
political parties nominate a candidate for the President of the
European Commission and publicise that nomination in the run-up
to the European elections. A related recommendation requires
national political parties to publicise the Presidential candidate
they support, and that candidate's programme, during their campaigning
for European elections.
3.23 The nomination of candidates by European
political parties has, the Commission points out, previously
been endorsed by President Barroso in his 2012 State of the
Union[22] address
and by the European Parliament in a resolution passed on 22 November
2012.[23] The recommendation
would "make concrete and visible the link between the individual
vote of the EU citizen for a candidate for membership of the European
Parliament and the candidate for President of the Commission supported
by the party of the candidate MEP". Referring to US electoral
evidence, it asserts that this recommendation could increase turnout
for the elections "by strengthening the link between the
election of the representatives of the citizens with the election
and election process of the head of the European executive."
THE EFFICIENT CONDUCT OF THE ELECTIONS
3.24 The Commission, noting that information
exchange procedures required by Directive 93/109/EC have resulted
in disproportionate burdens for national administrations, but
recognising the need to prevent voting abuses (multiple voting),
recommends that Member States:
- set up one single contact authority
for a smoother exchange of data with other Member States;
- take into account the different electoral calendars
of other Member States when exchanging data; and
- provide additional personal data which may be
necessary for more efficient identification of EU voters registered
on the electoral rolls of their Member State of residence, using
a uniform, single electronic mechanism.
The Government's view
3.25 The Minister for Europe (Mr David Lidington),
in his Explanatory Memorandum of 17 April 2013, notes that neither
document is legally binding but are "merely a series of suggestions
and interpretations, and the UK's view is that they should be
treated as such. The UK will take its own view as to whether these
documents should be adopted".
DEMOCRATIC CONDUCT OF THE ELECTIONS
Affiliation between national and European political parties
3.26 Referring to the two recommendations aimed
at making links between national and European political parties
more obvious to voters, the Minister notes their relevance to
the provisions in the proposed Regulation on the statute and funding
of European political parties which are currently being negotiated
and, given this, comments on their "unfortunate timing".
He refers to the purported rationale for the proposals —
increased electoral transparency and increased voter turnout —
but insists that:
"Participation in European elections is governed
by the laws of Member States. National political parties participate
in elections in the UK, not European political parties. There
is nothing within UK domestic law which would prevent a national
political party from making known its affiliation with a European
political party, during the course of its election campaign. Conversely,
there is nothing that can force a national political party to
make known its affiliation with a European political party. It
is the Government's view that if national political parties wish
to make their connection to European political parties known,
at any time, then they are welcome to do so, but they should not
be under any obligation in this regard."
Common voting day
3.27 The Minister, similarly, states that this
recommendation is made with poor timing; too close to the elections
themselves and to the recent deliberations of the European Parliament
and Council on a prospective date for the elections. Noting that
Member States historically have held their elections on different
days (Thursday to Sunday), the Minister insists that the UK will
not be changing its "long tradition" of holding elections
on a Thursday to accommodate a suggested common voting day. Instead,
he says that "electoral diversity" across the EU should
be respected. He continues that the aim of increasing voter turnout
would not be achieved "by this insistence of electoral homogeneity,
and could instead have the opposite impact" and that the
proposal for a common voting day, with polling stations closing
at the same time "seems impractical give the time-zone differences
within the European Union".
Nominating and supporting a candidate for President
of the European Commission
3.28 The Minister acknowledges the freedom of
European political parties to nominate candidates for Commission
President and for national parties to express support for candidates,
should they so choose. But he takes issue with assertions made
by the Commission about the selection process for the next Commission
President. The Minister disputes the link the Commission makes
between this recommendation and the potential to increase voter
turnout as being thinly based on US electoral experience. He also
objects to the unwarranted weight that the Commission assigns
to the European Parliament's role in stating that the elections
would play a key role in determining which candidate becomes President.
The Commission, the Minister says, suggests that the Commission
President can only be chosen from among candidates nominated by
European political parties. The Minister disputes this saying
Article 17 TEU "places no limits on the European Council
in its choice of candidates for the Commission President",
subject to the requirement in Article 17(3).
THE EFFICIENT CONDUCT OF EUROPEAN ELECTIONS
3.29 The Minster reports that, after giving consideration
to the creation of an "Information Exchange" as a single
depository for voter data, the Government has concluded that it
would be "unworkable in practice and is disproportionate
to the nature of the problem that it is designed to address (double
voting at European elections)." Nor would it address the
significant problem, which the UK has already identified, of the
provision of incomplete data by other Member States which often
cannot be processed, says the Minister. He says that "out
of 85,473 records received ahead of the 2009 European Parliamentary
elections, the UK was only able to process 28,513 due to insufficient
or no information about last registered address". He adds
that given outstanding concerns, the Government is considering
how best to administer, proportionately, the requirements of Directive
93/109/EC ahead of the 2014 elections.
Conclusion
3.30 We recognise that these two documents,
a Communication and a Recommendation, do not have any legally-binding
force pursuant to Article 288 TFEU. As such they do not entail
any immediate legal or financial obligations for the UK.
3.31 Communications and Recommendations, though,
carry political weight and can act as an intermediate step to
future, binding, requirements. The Commission hints at this when
it states in the Communication that it is committed "to fully
exploiting the existing Lisbon provisions to further enhance transparency
and the European dimension of the European Elections". It
continues: "[t]his is particularly relevant in view of the
actions required at EU level to address the financial and sovereign
debt crisis. This can also act as a stepping stone towards further
Treaty reforms to enhance the European Union's basis as a democratic
organisation".
3.32 It is the possibility of subsequent
Commission-led legally binding measures which most concerns us:
we think the measures in the Recommendation which are addressed
to national political parties and national elections, particularly
on a common voting day, represent a clear intention to interfere
with Member States' electoral arrangements and traditions and
to restrict national parties' freedom to act, without power being
conferred on the EU to do so. We also agree with the Government
that the Commission places an emphasis on the role of the European
Parliament and elections in the nomination of the next President
of the Commission which is not warranted by Article 17(7) TEU.
3.33 The prominence already given to these
measures in the national press underlines the view that they are
of considerable public interest. We agree, and consider them of
such legal and political importance that they should be debated
on the Floor of the House.
3.34 Before the debate takes place, we ask
that the Government writes to us with a more detailed analysis
of its views on the competence of the Commission to propose each
of the measures in the Recommendation, and with its views on how
the Commission is likely to follow up these two documents.
10 Proposal for a Regulation of the European Parliament
and of the Council on the statute and funding of European political
parties and European political foundations, COM(2012) 499. http://ec.europa.eu/commission_2010-2014/sefcovic/documents/com_2012_499_en.pdf. Back
11
http://www.publications.parliament.uk/pa/cm201213/cmgeneral/euro/130206/130206s01.htm. Back
12
See headnote. Back
13
(34688) 6321/13; Opinion No 1/2013 concerning draft Commission
Regulations on the statute and funding of European political parties
and foundations and to amend the Financial Regulation (EU, Euratom
No 966/2012) as regards the financing of European political parties. Back
14
This is the legal base for the proposed Regulation referred to
in footnote 10. Back
15
Directive 93/109/EC of 6 December 1993 (OJ No. L 329, 30.12.1993,
p.34)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1993:329:0034:0038:EN:PDF. Back
16
Report on the election of Members of the European Parliament (1976
Act as amended by Decision 2002/772/EC, Euratom) and on the participation
of European Union citizens in elections for the European Parliament
in the Member State of residence (Directive 93/109/EC),COM/2010/0605
final. The Report states that the general turnout reached 43%,
in comparison to 45% in 2004, which confirms the decreasing participation
trend. Back
17
12 September 2012, Plenary Session of the European Parliament,
Strasbourg, available at http://ec.europa.eu/soteu2012/. Back
18
Commission Communication of 28 November 2012, COM (12) 777
final/2. Back
19
http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ec/134069.pdf.
We scrutinised both the document at footnote 18 and this document,
and on our recommendation, they were debated on the Floor of the
House on 25 April 2013. Back
20
See footnote 10 above. Back
21
This provides the right to freedom of expression and the right
"to receive and impart information and ideas without interference
by public authority". Back
22
See footnote 19. Back
23
European Parliament resolution of 22 November 2012 on the elections
to the European Parliament in 2014 (2012/2829(RSP)). In this
Resolution, the European Parliament urged the European political
parties to nominate candidates for President of the Commission,
noting that it expected those candidates to play a leading role
in the parliamentary electoral campaign, in particular by personally
presenting their programme in all Member States of the Union. Back
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