What changed between the draft committee report and the plenary report

1. Introduction

On 15 January 2025, the rapporteur was entrusted with the task of preparing a report on the implementation of the Reform of the European Electoral law.

Since his appointment, the rapporteur has collected information on the topic by various means, including:

 study on ‘Europeanising the elections of the European Parliament’, by the Policy Department for Citizens’ Rights and Constitutional Affairs, June 2021.

 A European Parliament Research Service document on the ‘Ratification status of the Council Decision (EU) 2018/994 modifying the 1976 European Electoral Act’, February 2025.

 On 19 and 20 May 2025, he took part in an official Committee on Constitutional Affairs (AFCO) mission to Madrid, Spain. The AFCO delegation held several exchanges of views with civil servants at the Ministry of Interior, the Chair and Spokespersons of the Constitutional Committee of the Congress of Deputies (lower house) and the Chair and Spokespersons of the Joint Committee on the European Union – composed of Members of the Congress of Deputies and the Spanish Senate (upper house) – as well as with the major Legal Counsels of both Chambers and some prominent Spanish academics and experts on Constitutional and Electoral Law.

 On 2 June 2025, he took part in an official mission to Berlin, Germany, in order to exchange views with Members of the Committee on Foreign Affairs and European Union affairs in the Bundestag and with civil servants and academics.

The research conducted has led to the following considerations, which constitute the basis for the conclusions and recommendations made in the draft implementation report presented by the rapporteur.

2. Historical overview of European Parliament elections

Since the 1960s, the European Parliament has repeatedly voiced its opinion on issues of electoral law and has put forward proposals in accordance with Article 138 of the EC Treaty (now Article 223 TFEU).

The founding Treaties stated that Members of the European Parliament (MEPs) would initially be appointed by the national parliaments, but made provision for election by direct universal suffrage. This provision was implemented by the Council before the first direct elections of 1979 through the Act of 20 September 1976 concerning the election of the representatives of the European Parliament by direct universal suffrage (1976 Electoral Act).

The first direct European Parliament elections held in 1979 were a watershed moment, and they profoundly changed Parliament’s institutional position, establishing a more democratic European Union.

In 1992, the Maastricht Treaty provided for the elections to be held in accordance with a uniform procedure and for the European Parliament to draw up a proposal to this effect, for unanimous adoption by the Council. However, since the Council was unable to agree on any of the proposals, the Treaty of Amsterdam introduced the possibility of adopting ‘common principles’. Council Decision 2002/772/EC, Euratom of 25 June and 23 September 2002 modified the 1976 Electoral Act accordingly, introducing the principle of proportional representation and a number of incompatibilities between national and European mandates.

Over the years, the European Parliament has grown in size and influence, with each enlargement of the EU bringing more members and greater diversity. Parliament’s powers have also increased, particularly with the adoption of the Treaty of Lisbon in 2009, which expanded its legislative and budgetary roles.

However, notwithstanding the progress made to gradually expand Parliament’s powers, harmonising national traditions remains a complex matter and Member States have been reluctant to adopt uniform procedures for the elections to the European Parliament.

On 11 November 2015, Parliament adopted a resolution on the reform of the electoral law of the European Union. The legislative initiative from the Committee on Constitutional Affairs (AFCO) proposed amendments to the 1976 Electoral Act with a view to making the European elections uniform and democratic and to increasing public participation in the election process. Parliament’s proposed amendments were partly accepted and incorporated into Council Decision (EU, Euratom) 2018/994 of 13 July 2018, which is the last time the Electoral Act was amended.

3. Council Decision 2018/994

Council Decision 2018/994 is composed of two Articles. The first article replaces several Articles of the 1976 Electoral Act (Articles 1, 3 and 9) and introduces several new ones (3a, 3b, 4a, 9a and 9b). The second article establishes that the decision will be subject to approval by the Member States, in accordance with their respective constitutional requirements and that the decision will enter into force on the first day after the last notification has been received.

It is important to note that Council Decision 2018/994 establishes several mandatory provisions while others are optional. In the first case, Member States are required to adopt such measures; in the latter, they are encouraged to do so.

(a) Mandatory measures

The mandatory measures for which Council Decision 2018/994 expresses an obligation (will implement), according to the order in which they appear in the Decision, are as follows:

i. Members of the European Parliament elected based on proportional representation, using the list system or the single transferable vote (STV), through free and secret elections based on direct universal suffrage.

This provision is completely unproblematic and uncontroversial, as all Member States use proportional representation, be it closed-list proportional representation or STV.

ii. Minimum 2 % threshold for constituencies comprising more than 35 seats (including nationwide, single constituencies) applies only to five Member States: Germany (96), France (81), Italy (76), Spain (61) and Poland (53).

Although Italy and Poland each have more than 35 total seats, they are not affected by this rule due to the structure of their electoral systems. Both countries use sub-national constituencies, meaning their seats are split across different regions. In Poland, there are 13 constituencies and each elects fewer than 35 seats. Similarly, Italy divides its seats among five constituencies, each with fewer than 35 seats. In addition to this, both countries have an explicit threshold (4 % and 5 %, respectively).

France has a nationwide, single constituency but its electoral system already provided for a threshold of 5 % before Council Decision 2018/994.

Spain and Germany, however, were not in line with this mandatory provision, as both countries elect more than 35 MEPs, have a single, nationwide constituency and have no threshold. Hence, both Spain and Germany need to amend their electoral law to comply with Council Decision 2018/994, which has not yet happened in either Member State.

iii. Deadline for submission of candidacies at least three weeks before the date for holding European elections.

All Member States were already compliant with this article. There is, however, a wide range of variation, from Slovakia’s three months and Germany’s 11 weeks to Cyprus, France and Greece, which are close to the established limit of three weeks.

iv. Implementation of necessary measures to prevent double voting.

Twenty four countries had such measures in place. Hungary, Latvia and Spain do not have specific measures on double voting but only some form of sanction for fraudulent behaviour in voting.

v. Designating a contact authority responsible for exchanging data on mobile voters or candidates with its counterparts in other Member States.

All Member States have a designated authority. In most cases, it is the interior ministry or another ministry; in some cases, it is a dedicated authority for electoral matters.

(b) Optional measures

The optional measures suggested by Council Decision 2018/994, are as follows:

i. Preferential list system.

This provision is unchanged from the 2002 Council Decision and therefore poses no questions. In any case, the article is uncontroversial not only because it is not compulsory, but also because most Member States already use preferential voting.

ii. A minimum threshold not exceeding 5 % of votes for the allocation of seats.

The 5 % figure poses no problems either because no Member State has an electoral threshold above 5 %.

iii. Ballot papers displaying the name or logo of the European Political Party (EuPP) with which the list or candidate is affiliated.

This provision has not been transposed in any national legislation and consequently the degree of Europeanisation of electoral ballots is still remarkably low. The mention of the EuPP remains discretionary and sometimes it depends more on the ballot design than on a concrete political choice.

iv. The possibility of advance, postal and electronic voting and measures to allow citizens residing countries outside the EU to vote in European elections.

The situation is far from homogenous: 23 countries provide for one or more possibilities for absentee voting, with Embassy voting being the most widespread option. Some countries allow citizens to choose from other different methods to cast a ballot, such as postal, proxy or even internet voting.

Only four countries (Czechia, Ireland, Malta, and Slovakia) do not allow absentee voting. In addition to these, some countries do allow embassy voting, but only for citizens residing within the EU and not in non-EU countries.

4. Ratification process

Council Decision 2018/994 will enter into force only after all the Member States have approved it in accordance with their respective constitutional requirements (Article 223 TFEU). At present, all Member States except Spain have approved it and, therefore, the ratification process is still ongoing and Council Decision 2018/994 has not yet entered into force.

Most of the Member States ratified the Decision by the end of 2019 and did not require parliamentary review or approval as no changes were necessary for national law to be made consistent with the Council Decision. Some Member States adopted consent for ratification bills in their national parliaments without controversy. There were a few exceptions, such as the act voted in Hungary, under which legislation was amended to introduce postal voting, making it possible for non-resident Hungarians to cast their votes in European elections.

For some countries, such as Cyprus and Germany, the ratification process was challenging and was only completed recently.

In Cyprus, the first attempt to approve Council Decision 2018/994 failed, as the President of the Republic referred the Electoral law back to the Cypriot parliament for reconsideration.

The law adopted by the Cypriot parliament on 1 February 2019 contained provisions that would automatically include more than 102 000 citizens on the electoral registry, many of whom would not normally vote as they might be living abroad, have incorrect addresses or even have died, creating significant obstacles to the smooth conduct of the elections and distorting the abstention levels.

The government initially presented the draft of this law, but during parliamentary discussions, an amendment was introduced extending automatic registration to all citizens with an identity card and a recorded address in the state archives. Before this amendment, the automatic right to vote was limited to residents in the areas controlled by the republic.

Finally, Cyprus ratified Council Decision 2018/994 on 20 October 2023 with Law 97I(I) 2023 resolving the issues that had emerged in the previous law of 2019.

In Germany, the requirement to introduce an electoral threshold has been a key procedural obstacle. In fact, the German Constitutional Court has repeatedly ruled the electoral threshold in elections to the European Parliament to be unconstitutional, in 2011 rejecting a 5 % threshold and in 2014 a 3 % threshold. In these two instances, the Court justified the rejection based on the principle of equal opportunities before the law and equal opportunity for all political parties. Any limitation of these rights requires a profound justification and the Court did not acknowledge that the lack of a threshold hinders the proper functioning or leads to an excessive fragmentation of the European Parliament.

The situation radically changed with Council Decision 2018/994 establishing a mandatory threshold of 2 %. The 2 % threshold being obligatory under EU law, it is no longer subject to an assessment based on the principle of equal opportunities before the law and equal opportunities for all political parties under German law. Consequently, on 15 June and 7 July 2023, the German legislator approved Council Decision 2018/994, introducing an electoral threshold for the European elections, by a two-thirds majority in both the Bundestag and the Bundesrat, thus reaching the parliamentary majorities required to amend the Constitution.

Die PARTEI, a German political party that had entered the European Parliament benefiting from the lack of a threshold, and Member Martin Sonneborn brought a constitutional complaint against the introduction of the minimum 2 % threshold. On 6 February 2024, the German Constitutional Court dismissed the procedures challenging the approval of the Council Decision with the motivation that Council Decision 2018/994 is not an ultra vires act overstepping the EU’s competences and it does not affect the fundamental principles of the German constitution. Moreover, the Court also acknowledged that the threshold is essential for maintaining the stability and proper functioning of the European Parliament.

While Germany has ratified Council Decision 2018/994, the German electoral law for the European Parliament election has not been amended because the Council Decision is not in force yet. As long as the 2 % threshold is not mandatory under European law, it cannot be introduced in German law.

In Spain, the crucial pending modification to the current Electoral Law also concerns the establishment of a minimum threshold for the allocation of seats. Since Spain has a single constituency, this requires Article 3 of Council Decision 2018/994 to be implemented to enforce a minimum threshold ranging from 2 to 5 % of the votes, thus, implying the modification of the Ley Orgánica del Régimen Electoral General (LOREG).

From a legal point of view, no major obstacles are foreseen concerning the ratification of Council Decision 2018/994 in Spain. However, the process is more delicate from a political perspective. Establishing an electoral threshold implies the possibility that a few smaller political parties (especially regional political parties) may be prevented from having MEPs elected. Therefore, adopting a formal electoral threshold may be particularly problematic for a political system as fragmented as Spain’s. Although the electoral threshold will benefit the major political parties, which could facilitate its parliamentary approval, it can be argued that the absence of a clear majority in the Spanish Cortes Generales, the potential impacts of the threshold for the junior coalition partners, as well as the relative political instability could present obstacles to an expeditious process.

The situation is complicated by the fact that the PSOE and EAJ-PNV, the largest Basque nationalist party, signed an agreement to form a government on 10 November 2023, explicitly mentioning that one of the conditions for EAJ-PNV to vote in favour of the investiture of Pedro Sánchez as president of the government is that the PSOE does not promote any modification to the Electoral Law (LOREG), and if necessary in extraordinary circumstances, it will only do so with prior agreement with the EAJ-PNV. In view of the European elections of June 2024, it is clear the extent to which democratic representation is distorted: the CEUS coalition, of which the EAJ-PNV was a member, won one seat with only 1.63 % of the votes cast in Spain. This result, which represents less than 0.078 % of the European electoral roll, would not have met the minimum threshold required by the 2018 reform. Therefore, it would not be entitled to that seat.