## Facts

- Germany amended its European Elections Act to introduce a 3% electoral threshold for allocating Germany’s seats in the European Parliament.
- Multiple small political parties and individual voters challenged the threshold through inter-organ disputes and constitutional complaints.
- The challengers argued the threshold reduced the success value of votes cast for smaller parties and impaired equal party competition.
- The legislature defended the threshold as necessary to prevent fragmentation and preserve the European Parliament’s capacity to function.
- The court had previously invalidated an earlier 5% threshold for European Parliament elections.

## Issues

1. Whether a 3% electoral threshold for European Parliament elections violates the constitutional principle of equal suffrage by diminishing the success value of certain votes.
2. Whether the threshold violates political parties’ equal opportunity in electoral competition by disadvantaging smaller parties.
3. Whether such interferences are justified by a sufficiently demonstrated need to protect the European Parliament’s ability to perform its functions.

## Decision

- The court held, by a 5–3 vote, that the 3% threshold was unconstitutional and void.
- The challenges were sustained to the extent admissible, and the statutory provision was invalidated with generally binding effect.
- The court concluded that, under current legal and factual conditions, the legislature had not shown a sufficiently probable functional risk to the European Parliament that would justify the threshold.
- The court stated that a different result could be possible if materially changed conditions could be reliably shown through sound factual evidence.

## Legal Principles

- Equal suffrage requires, in general, equal success value of each vote; electoral thresholds reduce the success value of votes cast for parties below the cutoff.
- Equal opportunity of political parties forbids unjustified disadvantages in electoral competition, including structural exclusion from seat allocation absent adequate justification.
- Because thresholds seriously interfere with equal suffrage and party equality in proportional representation, they require compelling justification tied to the functioning of the representative body.
- For European Parliament elections, justification requires a concrete, sufficiently probable risk of functional incapacity, supported by reliable factual evidence rather than speculation.
- EU rules that permit member-state thresholds do not supply constitutional justification; national measures must still satisfy domestic constitutional standards.

## Conclusion

The court invalidated Germany’s 3% European Parliament electoral threshold because the legislature did not substantiate, with reliable evidence, a sufficiently probable threat to parliamentary functioning that could justify the significant impairment of equal suffrage and equal party opportunity.


Three-Percent Threshold Case (Ger.), 2 BvE 2/13 (BVerfG 2014)