Essential legal bases of European elections

Treaty of Lisbon

The Treaty of Lisbon was signed by the heads of state and government of the 27 EU Member States on 13 December 2007 in the Portuguese capital. It entered into force on 1 December 2009.

The Treaty of Lisbon amends the current EU and EC treaties, without replacing them.

Treaty of Lisbon

The main innovations:

• A strengthened role for the European Parliament, directly elected by EU citizens, is provided with important new powers regarding EU legislation, the EU budget and international agreements. In addition, the distribution of seats was changed.
• A qualified majority voting in the Council is extended to new policy areas to make decision-making faster and more efficient. From 2014 on, the calculation of qualified majority will be based on the double majority of Member States and people, thus representing the dual legitimacy of the Union. A double majority will be achieved when a decision is taken by 55 % of the Member States representing at least 65 % of the Union's population.
• Reforming the system of the European Council presidencies from its current six-month rotation to appointing a full-time European Council President for a period of two-and-a-half years.
• A new High Representative for the Union in Foreign Affairs and Security Policy, also Vice-President of the Commission, will increase the impact, the coherence and the visibility of the EU’s external action.

The Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) provide the Union with the legal framework and tools.

Treaty on the European Union (TEU), consolidated version

Treaty on the Functioning of the European Union (TFEU), consolidated version
 

Nice Treaty

Until the Treaty of Lisbon entered into force, the European Union was based on three so-called foundation treaties:

• the Treaty on European Union (EU Treaty, TEU)
• the Treaty establishing the European Community (EC Treaty)
• the Treaty establishing the European Atomic Energy Community (Euratom Treaty)

The EC Treaty evolved from the Treaty establishing the European Economic Community (EEC Treaty) which was signed together with the Euratom Treaty in Rome on 25 March 1957 by the six founder member states Belgium, France, Germany, Italy, Luxemburg and the Netherlands. The EEC Treaty and the Euratom Treaty are therefore known as the “Treaties of Rome”. The most important provisions on the European Parliament were contained in the EU and the EC Treaties. Lately, the Euratom Treaty played a minor role and shall continue to have full effect as a protocol to the Treaty of Lisbon.

The European Union was established on 7 February 1992 when the Treaty of Maastricht was signed. This treaty also changed the name of the EEC Treaty into EC Treaty and renumbered its provisions. Both the EU and the EC Treaties were amended by the Treaty of Amsterdam of 2 October 1997. At the 2009 European election, they were effective as amended by the Nice Treaty. This treaty had been signed on 26 February 2001 and entered into force on 1 February 2003. The EU and EC Treaties contained the basic provisions concerning the European Parliament as well as the Citizenship of the European Union which provides the right to vote and to stand in European elections in any Member State.

Extract from Nice Treaty, consolidated version

Act concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage (Direct Elections Act)

The Direct Elections Act of 20 September 1976 contains binding regulations for all member states concerning the preparation and conduct of the Election to the European Parliament, inter alia provisions concerning the electoral term, the legal status of the members of the European Parliament and the election date.

The Federal Republic of Germany has consented to the Direct Elections Act by adopting the “Gesetz zu dem Beschluss und Akt des Rates der Europäischen Gemeinschaften vom 20. September 1976 zur Einführung allgemeiner unmittelbarer Wahlen der Abgeordneten der Versammlung” (Law on the Decision and Act of the Council of the European Communities of 20 September 1976 concerning the election of the representatives of the European Parliament by direct universal suffrage) on 4 August 1977.

Direct Elections Act

In Council Directive 93/109/EC of 6 December 1993, detailed arrangements are laid down for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals. It was amended by Council Directive 2013/1/EU, which entered into force on 27 January 2013.

For the Federal Republic of Germany, the provisions were implemented into national law by adopting the European Elections Act and the European Electoral Regulations.

For the first time, union citizens were eligible to vote in their country of residence when the 4^th European Parliament was elected in 1994.

Council Directive 93/109/EC, consolidated version

The European Elections Act contains detailed provisions on the proceedings for the elections to the European Parliament, in particular concerning the electoral system, electoral bodies, franchise and eligibility to stand for election, the poll and the determination of the election results.

European Elections Act (EuWG)

According to Section 4 of the European Elections Act, certain provisions of the Federal Elections Act, as amended from time to time, apply mutatis mutandis for the election of members of the European Parliament.

Federal Elections Act (BWG)

For the implementation of the European Elections Act, the Federal Ministry of the Interior, Building and Community acting on the authority assigned under Section 25 Paragraph 2 of the European Elections Act, has issued the European Electoral Regulations (EuWO), which put the specifications of the European Elections Act into concrete terms. The European Electoral Regulations above all contain regulations concerning the appointment and activity of the electoral bodies, the individual prerequisites for entry in the voters’ register, the admission of nominations and the postal ballot.

European Electoral Regulations (EuWO)

This act regulates the legal status of the German Members of the European Parliament and contains special rules on the application for parliamentary seats, the exercise of a mandate, the incompatibility of a parliamentary seat with other public offices or mandates as well asbenefits for current and former members of the European Parliament.

Members of the European Parliament Act (EuAbgG)

Act on Political Parties (PartG)

The Act on Political Parties contains specific provisions by federal Law concerning party legislation, especially with regard to the constitutional status and functions of political parties as well as the concept of a “political party”. Furthermore, it regulates several sectors of the party system, for instance designation and internal organization, equal treatment, principles and the extent of state funding, rendering of account and the implementation of the ban on unconstitutional parties.

German Civil Code (BGB)

The organization of parties as an association ist regulated by the rules on associations contained in Sections 21 to 79 of the Civil Code. German political parties are generally organized as unregistered associations, i. e. associations without legal personality. However, according to Section 3 of the Party Law and court rulings, political parties organized as unregistered associations have restricted legal capacity. Some German political parties are also organized as registered associations (eingetragener Verein, e. V.)

Extract from the Civil Code (BGB)

This law governs the procedure by means of which the validity of elections to the German Bundestag is decided upon. According to Section 26 Paragraph 2 of the European Elections Act, the provisions of the Law on the Scrutiny of Elections apply mutatis mutandis for European Elections except for certain special provisions.

Law on the Scrutiny of Elections (WahlPrG)

The Act on Electoral Statistics serves as a legal basis for compiling general and representative statistics of the elections to the German Bundestag and the elections of members of the European Parliament from the Federal Republic of Germany. The Act regulates measures to ensure the secrecy of the ballot and statistical confidentiality.

Act on Electoral Statistics (WStatG)

This Ordinance governs the use of voting machines during elections to the German Bundestag and elections of the members of the European Parliament from the Federal Republic of Germany.

Federal Voting Machine Ordinance (BWahlGV) – only available in German

Criminal Law

The Penal Code contains provisions regulating the loss of the right to hold public office, the eligibility to stand for election and the right to vote in consequence of criminal acts as well as criminal acts during elections and ballots.

Extract from the Penal Code (StGB)