How to introduce a common European electoral law without unanimity in the Council

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By Clemens Hoffmann

Many attempts to improve the EU electoral law have failed due to national vetoes. But the “tandem system” could also be introduced without unanimity.

A reform of the European electoral law is long overdue in order to finally overcome national fragmentation and the lack of transnational electoral equality. One reform approach that addresses these problems is the “tandem system” developed by Friedrich Pukelsheim and Jo Leinen. Under this system, the European parties compete against each other in the European elections via their national member parties and a levelling mechanism ensures that each European party’s seat share corresponds to its Europe-wide vote share, despite the fact that member states’ seat quotas remain in place.

However, Pukelsheim and Leinen’s tandem system is likely to be opposed by some member states. This makes it difficult to introduce the system through a reform of the EU direct elections act, in which each member state has a right of veto under Art. 223 TFEU. Even a far less far-reaching electoral reform that was proposed by the European Parliament in 2022 failed due to a lack of unanimity in the Council. However, the tandem system could be modified in a way that would allow national vetoes to be bypassed. Let me explain how.

Enhanced cooperation on electoral law reform?

Since a unified European electoral system has never been introduced, it is up to each member state to adopt its own European elections law. Their national authority thus de facto limits the unanimity requirement for reforms at EU level to two points:

1. changes to the national seat quotas within the European Parliament, including the creation of new seats for transnational lists (regulated in a European Council decision) and
2. the common electoral principles that national European elections laws must respect, such as the use of proportional representation (regulated in the EU Direct Elections Act).

Taking this into account, a group of states could proceed on its own to implement reforms to EU electoral law. On the one hand, they could coordinate and dovetail their national European electoral laws more closely through an intergovernmental treaty. On the other hand, with a qualified majority in the Council, they could also utilise the mechanism of enhanced cooperation.

What could such a reform approach look like?

Before designing a common electoral law, it must be determined which objectives are to be achieved with the reform. The current national fragmentation of European elections leads to two problems:

• Firstly, voters participate in the election primarily on the basis of their national citizenship and not their EU citizenship. The impact of their votes ends at the border of their own member state. This reduces the integrative potential of European elections.
• Secondly, there is currently no electoral equality at European level. A vote in a small member state counts significantly more than a vote in a large member state. This is due to the “degressively proportional” apportionment of seats to the member states, which is prescribed in the EU Treaty.

The “tandem system” for the distribution of European seats

The “tandem system” by Friedrich Pukelsheim and Jo Leinen solves these problems. It emphasises the pan-European election result without having to touch the existing seat apportionment to the member states. For the tandem system, the national member parties of a European party form connected electoral lists. These list coalitions then compete against each other in the European elections. Each EU citizen marks the national party list and thus also the European party that they prefer on the ballot paper. The distribution of seats among the European parties is determined by the proportion of all votes cast across Europe. If a party receives 20% of the votes across Europe, it should also receive 20% of the seats in the European Parliament.

Once the EU-wide seat distribution has been determined, the levelling mechanism calculates the distribution of seats for each member states in three steps:

1. In a first, preliminary step, seats are allocated to national parties based on the national election results, as they are today.
2. If, due to distortions in the electoral law (e.g. due to degressive proportionality), a European list coalition has received x per cent more seats than it is entitled to under direct-proportional distribution, its number of seats is reduced by x per cent in each member state. Similarly, if a party lacks seats in comparison to its EU-wide seat entitlement, it receives an additional x per cent more seats per country.
3. If now y per cent fewer seats have been allocated in a member state than corresponds to its seat quota, the seat number of each party in that country is increased by y per cent. Vice versa, if to many seats have been allocated in a member state, the seat number of each party is reduced by y per cent.

Steps 2 and 3 are repeated until both the EU-wide seat distribution and the seat apportionment to the member states are correctly reflected.

This effectively turns the seat apportionment into a quota that the Parliament has to fulfil as a whole. The European parties, on the other hand, are still represented mostly by the national member parties that have performed particularly well in their respective countries. National election results are only approximated, as the correct representation of the will of the European electorate takes priority.

A “partial tandem system” with an opt-out option

In their publications on the tandem system, Pukelsheim and Leinen always assume that all member states will participate. However, this is not strictly necessary. In fact, the levelling mechanism could be modified in such a way that some member states are granted an opt-out. The result would then be a “partial tandem system”, in which a group of member states alone would ensure that the seat share of each European party in the European Parliament corresponds to its EU-wide vote share.

In the opt-out states, the European elections would then take place as today, and their distribution of seats among its national parties would be based solely on the respective national election results. Nevertheless, EU citizens from the opt-out states would also participate indirectly in the partial tandem system, as the national parties there would be part of the list coalitions of their European party families. The votes cast in their favour would count for the European result and the seats allocated to them would be accounted for in the levelling mechanism. If the levelling mechanism were to ignore the opt-out states, all votes would not be counted equally across Europe.

Prerequisites

The (partial) tandem system can only work if the European parties play along, as the levelling mechanism depends on a clear allocation of national parties to list coalitions. Under certain circumstances, it is possible that a national party could gain more seats if it is not part of the list coalition. Similarly, a European party might also gain an unfair advantage if its list coalition only includes member parties from the opt-in states. However, rules can be adopted to address these problems:

• All member parties of a registered European party mandatorily belong to one list coalition. However, it should also be possible for European parties to invite non-members to join their list coalition, for two or more European parties to stand as a joint list coalition, or for a party family that is not registered as a European party to form a list coalition.
• The formation of list coalitions brings together national parties with similar values and objectives, thus anticipating what has so far only happened when the political groups were formed. As an additional incentive, access to group status in the European Parliament should therefore be linked to running a joint candidacy as a list coalition. Public election campaign refunding and party financing should also be based on the European result.
• All national parties without a European party affiliation form a joint “technical list coalition”. This should be an incentive for these individual national parties to join a European party family or to found a new European party, which can then register its own list coalition.
• A list coalition must not receive the majority of votes (e.g. 70%) from only one member state, otherwise it will automatically be included in the technical list coalition.

The levelling mechanism eliminates the over- and underhang seats that exist in the current electoral system. However, if a list coalition runs (almost) exclusively in opt-out states, the levelling may not be complete. As few states as possible should therefore be given an opt-out.

What if a partial tandem system had been in place in 2019?

The following example shows what the distribution of seats would have been in the 2019 European elections with the partial tandem system. It is assumed that only the six EC founding countries as well as Poland, Spain and Portugal would participate in the partial tandem system. The calculation also requires some additional assumptions, which are listed below the table.

The partial tandem system does not differentiate between seats won via the national result and those that are only levelling mandates. Nevertheless, an approximate differentiation can be determined retrospectively by considering by how many seats the national seat quota of opt-in countries must be reduced until a purely nationally determined seat distribution results as part of the tandem seat distribution. The other part of the seats of the countries concerned are correspondingly “levelling seats”. Only the parties outside the technical list coalition are taken into account for this differentiation. Such a differentiated view also simplifies the comparison with a system in which proportional representation at the EU level is implemented by means of transnational lists.

		EPP	PES	RE	ID	EGP	ECR	Left	EFA	APEU	technical list
AT	national seats	7	5	1	3	3
BE*	national seats	2	3	3	2	3		1	3
	levelling seats				1	1		1	1
BG	national seats	7	4	3	1		1				1
HR	national seats	4	3	1							4
CY	national seats	2	1					2			1
CZ	national seats	5		6	2		4	1			3
DK	national seats	1	3	6	1	2		1
EE	national seats	1	2	3	1
FI	national seats	4	2	3	2	2		1
FR*	national seats	6	4	19	18	10		7
	levelling seats		1		7	4		7		2
DE*	national seats	24	13	6	9	17		5		1
	levelling seats		4	1	6	8		1		1
EL	national seats	9	2				1	7			2
HU	national seats	13	5	2							1
IE	national seats	5		2		2					4
IT*	national seats	6	15		22		4				7
	levelling seats		3	2	12	2		2		1
LV	national seats	2	2				2				2
LT	national seats	2	2	2							5
LU*	national seats	1	1	1		1
	levelling seats					1	1
MT	national seats	2	4
NL*	national seats	4	6	7	1	3				1	3
	levelling seats		1		1	2
PL*	national seats	18	4				26				2
	levelling seats	1	1
PT*	national seats	6	8	1				4		1
	levelling seats							1
RO	national seats	14	10	9
SK	national seats	4	3	3			2				2
SI	national seats	4	2	2
ES*	national seats	10	17	8			3	5	3
	levelling seats		5	1				2	4	1
SE	national seats	6	5	3		3	3	1
Total	national seats	169	126	91	62	46	46	29	6	3	37
	levelling seats	1	15	4	27	18	1	14	5	5
	total seats	170	141	95	89	64	47	43	11	8	37
Old total		184	131	95	73	47	51	33	12	3	73
		EPP	PES	RE	ID	EGP	ECR	Left	EFA	APEU	technical list

Countries that participate in the partial tandem system in the calculation example are marked with an asterisk (*). The “Old total” row shows the actual distribution of seats in 2019 (for each of the hypothetical list coalitions) and thus illustrates how the balance of power would have shifted as a result of the tandem system. Data base: Wikipedia pages on the 2019 European elections. Assumptions for the calculation: 1. The European distribution of seats is determined according to the d’Hondt method, which is currently used by most member states. 2. In principle, each European party family runs with its own list coalition. Exceptions: ALDE, EDP and the French party LREM form a joint list coalition (Renew Europe, RE); EL and the party alliance “Now the People” form a joint list coalition (Left). 3. A European threshold of 1% applies to list coalitions (around 1.8 million votes across Europe in 2019). However, as the EU Direct Elections Act stipulates a maximum national threshold of 5%, national parties that received more than 5% of the vote in their country are also taken into account when allocating seats, even if their list coalition failed to meet the threshold. – Access to an online calculator that allows to experiment with other assumptions is available on request from the author.

In the actual seat distribution of 2019, the PES, EGP, Left and ID were under-represented compared to their EU-wide vote totals. These four parties would therefore have won additional seats with a tandem system. How these levelling seats are distributed among the member states depends on various factors. Levelling between two European parties can only occur in countries where both parties are represented. The ID party is strongly focussed on Germany, France, and Italy, which is why the levelling would have happened there and not in Poland, where it is not represented. The PES, EGP and Left have member parties in more countries, so the levelling could have been spread more widely.

In countries where many European parties are active, more seats tend to be redistributed, as there are more contested seats. In Luxembourg, for example, the Greens were only 2.2 percentage points short of the second seat; the levelling mechanism of the tandem system awards them this seat because that only minimally distorts the distribution of seats. In Italy, the range of parties represented in Parliament would have increased because with the tandem system fewer parties would have failed to meet the national threshold, meaning that more Italian voters would have been represented in Parliament.

Compared to the actual 2019 seat distribution, the EPP would have been the only major party to receive fewer seats with the tandem system. This was because it performed better in smaller than in larger member states. By today, however, the EPP member parties in Poland and Spain have recovered in the national polls, meaning that the EPP overall would lose less, or even gain, seats with the tandem system.

The debate will continue

Transnational lists are currently dominating the debate on European electoral law reform. The European Parliament has spoken out in favour of them in 2022. However, resistance in the Council once again seems insurmountable, and it makes sense to think out loud about alternatives.

The Young European Federalists (JEF) Germany have therefore passed a resolution on the partial tandem system in 2023. It acts as a plan B should the Council of Ministers permanently reject transnational lists. The tandem system and transnational lists are also not mutually exclusive. The partial tandem system gives reform supporters a new option and shows that the opponents of reform are not the only ones who determine the rules of the game.

Clemens Hoffmann is a doctoral student at the Chair of Agricultural Policy at the Georg-August University of Göttingen and a member of JEF Göttingen.

Pictures: EP plenary: European External Action Service [CC BY-NC-ND 2.0], via Flickr; portrait Clemens Hoffmann: private [all rights reserved].