A NEW UNIFORM VOTING SYSTEM FOR ELECTIONS TO THE EUROPEAN PARLIAMENT? KRISTOF SJARD KARK Submitted in accordance with the requirements for the degree of PhD. Cardiff University Cardiff Law School January 2013 ACKNOWLEDGEMENTS The origins of this project go back quite a while, to my time as an exchange student at Aberystwyth University. In his lectures and tutorials, equally informative as well as compelling and entertaining, Professor Chris Harding raised my scientific interes t in the European Parliament. During the LL.M. course at the University of Aberdeen, my tutor Carole Lyons‟ class on the Draft Treaty establishing a Constitution for Europe introduced me to the matter of democratic legitimacy and drew my attention to European Parliament elections. For their involvement in this project in their function as supervisors, I extend my gratitude for demanding as well as encouraging support to David Broughton, Professor Dan Wincott and Jo Hunt. Furthermore, this research would not have become reality without the granting of a Cardiff Law School scholarship. Generous support of various offices in the European Parliament, in particular of Andrew Duff, MEP, and hid advisor Sietse Wijnsma, significantly advanced progress of this project. Entering Parliament through the Altiero Spinelli entrance always lifted the spirits. To my grandparents, Kurt und Gertrud Kark, who taught me about the importance of elections and the need to stand up for democracy, no matter the circumstances; And to my parents, who supported me in all respects. To Conny, for always being there for me. I ABSTRACT This thesis looks at the critical issue of electoral system reform relating to elections to the European Parliament. Directly elected since 1979, elections to the European Parliament operate on the basis of highly diverging national systems in the 27 member states, despite a mandate for electoral reform which should lead to a uniform system since the 1950s. The analysis of this thesis centres around the matters of legitimacy and the perceived democratic deficit, as surprisingly, there has been little or no discussion to date on the way the electoral system of elections to the European Parliament promotes or hinders the democratic legitimacy of the European Union. Th e European Union is conceptualised by the means of three different models, the EU as an international organisation, a supranational technocratic regime, and as a federal order. This thesis address es the democratic deficit point by constructing an ideal typ e electoral system where it is currently lacking - in relation to a federal order. This research makes an interdisciplinary contribution by combining a value free positive political science on the one side and a normative legal approach on the other . Whe reas a good deal of legal analysis is either explicitly based on a federal model of the European Union or implicitly premised on such an approach, detailed analysis of the implications of federalism for EU level democracy is much less common. Next to his toric developments in the field of electoral reform in the European Parliament , the recent Duff Reports as well as the debates around them are analysed. The thesis concludes that an electoral system needs to generate competition between European parties on European matters and presents core elements of a draft European Elections Act, a new uniform voting system for elections to the European Parliament. II DECLARATION This work has not been submitted in substance for any other degree or award at this or any other university or place of learning, nor is being submitted concurrently in candidature for any degree or other award. Signed ………………………………………… (candidate) Date ………………… STATEMENT 1 This thesis is being submitted in partial fulfillment of the requirements for the degree of PhD. Signed ………………………………………… (candidate) Date ………………… STATEMENT 2 This thesis is the result of my own independent work/investigation, except where otherwise stated. Other sources are acknowledged by explicit references. The views expressed are my own. Signed ………………………………………… (candidate) Date ………………… STATEMENT 3 I hereby give consent for my thesis, if accepted, to be available for photocopying and for inter-library loan, and for the title and summary to be made available to outside organisations. Signed ………………………………………… (candidate) Date ………………… STATEMENT 4: PREVIOUSLY APPROVED BAR ON ACCESS I hereby give consent for my thesis, if accepted, to be available for photocopying and for inter-library loans after expiry of a bar on access previously approved by the Academic Standards & Quality Committee. Signed ………………………………………… (candidate) Date ………………… III CONTENTS ACKNOWLEDGEMENTS I ABSTRACT II SIGNED STATEMENTS III CONTENTS IV LIST OF ABBREVIATIONS IX INTRODUCTION 1 CHAPTER ONE: 12 The European Parliament in the Context of Democratic Legitimacy of the Union Introduction 13 1. What is the European Parliament? 15 2. Models of the EU and their P lace for the European Parliament 26 2.1 The EU as an International Organisation 28 2.2 The EU as a Supranational, Technocratic Model 32 - Functionalism and Neofunctionalism 32 - Governance approaches: multilevel governance, 35 suprana tional governance and policy -network analysis 2.3 The EU as a Federal Model 39 2.4 Is There a Democratic Deficit According to the Three 43 Models? - International Organisation 43 - Supranational, Technocratic Model 45 - Federal Model 46 3. What Kind of Democracy in Europe? 47 3.1 Can there be a European Democracy? 48 IV 3.2 Democracy and the EU‟s Constitutional Order 51 - Treaties etc. 52 - Case Law 56 3.3 The EU as an Extreme Case of Consensus Democracy 60 Conclusion 68 CHAPTER TWO: 70 The Implications of the Political Science of Electoral Systems for the European Parliament - Positive Analysis and Normative Proposals Introduction 71 1. Electoral Systems and their Consequen ces 74 1.1 Electoral Systems 76 - Plurality/Majority S ystems 78 - List Proportional Representation 83 - Mixed Member Systems/Two -Tier Districting Systems 85 1.2 Electoral Systems and Voting Behaviour 86 1.3 Electoral Systems and Repre sentation 88 1.4 Electoral Systems: Consequences for Providing 95 Legitimacy 2. Is There Any Such Thing As an Ideal Electoral System? 97 3. Implications for the Conception of an Ideal Type Electoral System 103 Conclusion 105 CHAPTER THREE: 107 The Current System of Electoral Laws for Elections to the European Parliament and its Implications Introduction 108 1. The European Parliament‟s Attempts to Agree on a 109 Uniform Electoral Procedure So Far 1.1 Phase One: Before the first direct elections to 110 V the European Parliament by universal suffrage 1.2 Phase Two: From the First Elections to the 129 Modification of the Electoral Act 2. The Law as It Stands: European Parliament Elections and the 142 Current Universe of Electoral Systems 3. How “European” are European Parliament E lections? Electoral 148 Systems and Electoral Behaviour in the EU 3.1 Second-Order National Elections Model (SONE) 153 3.2 Electoral Cycle Model 156 3.3 Europe Matters Model 158 Conclusion 167 CHAPTER FOUR: 169 Current Developments in the Field of Electoral Reform in the European Parliament - An Analysis of Duff‟s Proposals Introduction 170 1. Reform Proposals and Underlying Model of the EU 171 1.1 UEF and Spinelli Group 172 1.2 Rapporteur Andrew Duff 175 1.3 The Reports 177 2. Democratic Model and Electoral System 182 3. Differences Compared to Current System of Electoral L aws 210 Conclusion 225 CHAPTER FIVE: 227 The Duff Reports under Scrutiny: Analysis of Responses to Duff‟s Proposals and Assessment of Models Reflected in those Responses Introduction 228 1. Model of the EU according to Supporters and Counterproposals 231 VI 2. Democratic Models and Corresponding Electoral Systems of 239 Supporters and Counterproposals Conclusion 250 CHAPTER SIX: 251 Which Electoral System Can Best Accommodate a Legitimate Political Order in the European Union? Introduction 252 1. Proposal for an Ideal Type Electoral System for Election 252 to the European Parliament 2. A Translation of the Ideal Type into a Draft Electoral Act 262 Conclusion 269 CONCLUSION 271 BIBLIOGRAPHY: 280 Books and Monographs 280 Articles 289 Official Documents 300 Miscellaneous 307 List of Interviews 309 Committee/Parliamentary Sessions 310 Cases 311 APPENDICES: 313 Appendix I: 313 Andrew Duff, Draft Report I, first draft versi on of 17.09.2008, 2007/2207(INI), pp 6, 7, and Draft Report I, 15.10.2008, 2007/2207. VII APPENDIX II: 324 Andrew Duff, Draft Report II, 12.04.2010, 2010/xxxx(INI) . APPENDIX III : 325 Andrew Duff, Draft Report III, 05.11.2010, 2009/2134 (INI) . APPENDIX IV: 328 Andrew Duff, REPORT IV/I (First official Report), 28.04.2011, A7 -0176/2011. APPENDIX V: 330 Article 14 of the Treaty on European Union and Article 223 of the Treaty on the Functioning of the European Union . APPENDIX VI: 332 Consolidated version of the Act concerning the election of the representatives of the Assembly by direct universal suffrage annexed to the Council decision of 20 September 1976, and of the subsequent amendments thereto . VIII ABBREVIATIONS AFCO Constitutional Affairs Committee ALDE Alliance of Liberals and Democrats for Europe AM Assembly Member AV Alternative Vote BC Borda Count BV Block Vote COSAC Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union EC European Communities ECJ European Court of Justice ECR European Conservatives and Reformists Group ECSC European Coal and Steal Community EEC European Economic Community