In a five to three decision, the court said the five-percent hurdle gave people's votes different values because those given to small parties which failed to clear the bar were not represented. Germany's constitution stipulates that parties should have equal chances, said Andreas Voßkuhle, president of the court. Now, members of parliament will be appointed based on the percentage of the vote each party receives, even if it garners less than five percent.
Germany has about 100 seats in the 736-representative parliament, which includes members from all 27 European Union states.
The last European parliamentary election from 2009 will not have to be repeated. Based on results from two years ago, seven additional German political parties would have sent representatives to Strasbourg. There are currently representatives from 162 different national parties in the European Parliament.
Crucially, the principle will not be carried over to the German national parliament, the Bundestag.
There the five-percent hurdle is not considered anti-constitutional because the Bundestag elects a government which requires the constant support of a parliamentary majority, the court said.
But this is not the case in the European Parliament, where the ability to function would not be impaired by the presence of more small parties, it said.
The “general and abstract suggestion” that the formation of parliamentary opinion could be made more difficult by the presence of smaller parties did not justify the interference in the principles of voting equality, the court ruled.