Administrative Court sides with Greens on question of five-percent threshold

Two Czech parties, the Greens and the Pirates, contesting an artificial five-percent threshold which recently prevented them from winning mandates to the European Parliament, have new wind in their sails. On Tuesday, the country’s Supreme Administrative Court agreed the barrier was unconstitutional and asked the Constitutional Court to rule on the matter. At stake are two possible mandates or at least a change in the rules the next time around.

Marek Antoš, photo: Jan Rosenauer

Earlier I spoke to constitutional lawyer Marek Antoš, asking him how he saw Tuesday’s decision.

“I would say it was expected although obviously experts are split on the matter, even within the Supreme Administrative Court. After all, even the court decided by the smallest of possible margins, four to three, and decided to suspend proceedings and to ask the Constitutional Court for a preliminary ruling.”

That means that Administrative Court recognizes the five-percent threshold is discriminatory?

“The Constitution allows the court to turn to the Constitutional Court only in cases where the court itself is persuaded the act in question is unconstitutional. So, in this case the Administrative Court is convinced the threshold is unconstitutional but it has to ask the Constitutional Court for a final ruling on the matter.”

If the barrier is lifted by the Constitutional Court, there will still be a ‘natural limit’ in place next time Czechs vote in European elections, is that right?

“The main limit is the overall number of mandates to be distributed among Czech parties, which is 21. It follows that the natural barrier for parties is around 3.5 to 4 percent.”

That gets to the heart of the matter: both the Greens and the Pirates would both have won a single mandate each if the five-percent threshold had not been in place. If the Constitutional Court strikes down the threshold, will we see something like a new tabulation of the results?

Photo: Facebook of the Green Party

“This is not entirely clear. The Administrative Court itself says as a general rule that if the Constitutional Court uncovers something unconstitutional, then in the particular case it should be applied in a new manner. That means that both parties would get the mandate. On the other hand, the court can always postpone the effect of its ruling and in such a case it would only apply in the next election in five years.

“How the matter is resolved is also a matter of time, as the European Parliament is to start its session in about one week. If the Constitutional Court takes a lot of time to decide the matter, it is hard to imagine that the EP would face a situation, for example, a year later that it would be decided someone there was elected invalidly and would now be replaced. If the court, however, decides the matter quickly, it is possible that both the Greens and the Pirate Party would get their mandates.”