07.05.2021
An article written by Thomas Giegerich*
A. Unsuccessful Enactment of Gender Parity Laws at Constituent State Level
In 1918, Germany introduced women’s suffrage, earlier than many of its European neighbours.[1] More than a hundred years later, the ratio of women parliamentarians in Germany is comparatively low, both on the federal and constituent state (Länder) levels. In order to increase the number of women parliamentarians, two Länder enacted gender parity laws in 2019, requiring political parties to include 50 per cent women in their electoral lists, interchangeably with men (zipper-mode gender parity). In both Länder, the parties’ electoral lists are rigid in the sense that voters have to accept them as they are without possibility of cumulation of votes or cross-voting (panachage). If parties do not place enough women in promising positions on their lists, women will thus necessarily be underrepresented in the elected state parliament.[2]
On the application of right-wing parties and parliamentarians, the pertinent laws of Thuringia and Brandenburg were struck down by the Thuringian and Brandenburg State Constitutional Courts.[3] These courts found violations of the respective state constitutions, in particular of the constitutional rights of political parties (freedom to decide about composition of election lists) as well as voters (freedom to vote without state interference; eligibility without gender discrimination). The two courts further determined that the gender parity laws could not be justified – neither by the constitutional principle of democracy nor by the State constitutional mandate requiring the legislature to ensure the equality of women and men in public life by effective measures. With regard to the principle of democracy, the courts explained that German constitutional law did not include the mirror-image concept to the effect that parliaments had to reflect a reduced-size image of the actual composition of civil society. Rather, each and every parliamentarian represented the people as a whole, irrespective of gender, age, party affiliation, profession, wealth, ethnic or social background etc. [4]
One way to enable the (re-)introduction of gender parity laws at Länder level would be to include provisions in state constitutions which expressly permit such laws.[5] This would bring in the federal level because, pursuant to Art. 28 (1) of the German federal constitution (Basic Law [BL]), “[t]he constitutional order in the Länder must conform to the principles of a republican, democratic and social state governed by the rule of law within the meaning of this Basic Law. In each Land, county and municipality the people shall be represented by a body chosen in general, direct, free, equal and secret elections …”[6] According to Art. 28 (3) BL, “[t]he Federation shall guarantee that the constitutional order of the Länder conforms … to the provisions of paragraphs (1) …”.We do not know for certain what the principle of democracy and/or the freedom and equality of Land parliamentary elections require in that regard because there is no definite decision by the Federal Constitutional Court (FCC) yet concerning the constitutional permissibility of gender quota or gender parity laws on either the Länder or the federal level.
B. Federal Constitutional Court Cases on Gender Quotas Concerning Political Participation
In 2015, the FCC held that the BL did not prevent political parties from voluntarily introducing gender quotas with regard to party offices and electoral lists. This was a permissible exercise of a party’s freedom to adapt its internal organisation (which under Art. 21 (1) sentence 3 BL must conform to democratic principles) to their own political agenda and objectives.[7] More recently, the FCC was confronted with what may be called a mirror-image case to the aforementioned state constitutional court cases: Voters challenged the results of the last federal parliamentary election which had reduced the ratio of women parliamentarians from 36.3 per cent to 30.7 per cent. The voters complained that the federal legislature had not enacted a law before that election requiring political parties to observe gender parity in their electoral lists.[8] The FCC dismissed the complaint as inadmissible because the complainants had not adequately demonstrated that the legislature was constitutionally required to impose gender parity on political parties. While the FCC did not take a clear position on whether the legislature would have been constitutionally permitted to do so, one senses that the court is critical in this regard. The Bavarian State Constitutional Court, having to decide a similar mirror-image case in 2018, made it abundantly clear that there could be no constitutional obligation to introduce a gender parity requirement because that would violate the state constitution.[9] The Bavarian court more or less anticipated the reasoning of its Thuringian and Brandenburg counterparts. Since currently several constitutional complaints are pending regarding all three state constitutional court decisions,[10] the FCC may soon clarify its position concerning gender parity laws at the Länder level.
Assuming that the FCC will in the future be petitioned to assess the constitutionality of a gender parity requirement concerning parties’ electoral lists which could be introduced by way of constitutional amendment in a Land or by the federal legislature concerning federal elections, it would also have to consider the effect of Art. 3 (2) sentence 2 BL. According to that provision, “[t]he state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.” The state constitutional courts have refused to accept similar provisions in the state constitutions as sufficient justification for gender parity laws, not least because these provisions were quite general and not specifically geared toward ensuring equal representation in parliament.
Assuming further that the FCC would come to the conclusion that gender parity laws are incompatible with the BL, the next question would be if such laws could be made possible by a constitutional amendment specifically permitting them, provided the necessary two-thirds majorities in the two chambers of the federal parliament could be mustered.[11] That would bring in Art. 79 (3) BL according to which “[a]mendments to this Basic Law affecting … the principles laid down in [Article] … 20 shall be inadmissible.” The pertinent principle possibly affected would be the principle of democracy, laid down in Art. 20 (2) BL, that also played a role in the aforementioned state constitutional court decisions. Instead of speculating how the FCC would answer the question, I venture a look at other European countries, the European regional level and the global level of government. For German constitutional law and practice do not develop in isolation, but in constant exchange with comparable constitutional systems and international human rights law.
C. Gender Quotas in other European Countries and on the European Regional Level of Government
I. France, Sweden, Italy and Spain
In other parts of this paper, Philippe Cossalter delineates the situation in France and Maria Jansson the situation in Sweden in terms of gender quotas regarding political representation. In both countries, such quotas are by now well established, have improved the ratio of women in parliaments significantly and are considered as constitutionally permissible.
Additionally, one can mention Italy and Spain.[12] In Italy there are quota rules concerning electoral lists on all levels of government (except with regard to the Senate) which are generally accepted as constitutional. In Spain, the Constitutional Court considered a 40 per cent quota in favour of both genders with regard to electoral lists on all governmental levels, including elections for the European Parliament, as constitutional already in 2008. It did not find any interference with the basic principles of electoral law, but only with the rights of the political parties which were, however, justified with a view to the general constitutional provision obliging public power to ensure real and effective implementation of freedom and equality for all.[13]
In sum, of the 27 EU Member States, eleven have gender parity laws.[14]
II. No Gender Parity Rule in EU Law
There is no gender-quota or parity requirement in current EU law concerning elections to the European Parliament, i.e., the Electoral Act.[15] The EU has no power to impose gender quotas on Member States concerning their national parliamentary elections. The general power of the EU to combat discrimination based on sex in Art. 19 (1) TFEU does not seem to cover the introduction of mandatory quotas in favour of women regarding those elections, all the more since they are part of the Member States national constitutional identity in the sense of Art. 4 (2) TEU. The EU does, however, have power to regulate municipal elections pursuant to Art. 22 (1) TFEU, but that power extends only to regulating the details of national treatment in favour of citizens of other Member States. It would probably not support the imposition of gender quotas.
With regard to elections to the European Parliament, the regulatory power of the EU goes further because, in addition to Art. 22 (2) TFEU on national treatment, Art. 223 (1) TFEU sets forth that the EU “shall lay down the necessary provisions”. This would in general include power to introduce gender parity requirements which Member States would have to implement when they conduct the European election within their territory. But since such gender parity provisions would have to be enacted by the Council acting unanimously after obtaining the consent of the European Parliament and enter into force only after ratification by all Member States in accordance with their respective constitutional requirements, this is unlikely to happen any time soon. The most recent amendments to the Electoral Act by Council Decision (EU, Euratom) 2018/994 of 13 July 2018,[16] which has not yet entered into force, does not include any quota rule.
Assuming for the sake of argument that an amendment to the Electoral Act introducing gender parity rules would enter into force, the question arises whether it would be compatible with primary Union law, and in particular Art. 14 (3) TEU as well as Arts. 12, 21, 23 and 39 of the Charter of Fundamental Rights. It should be remembered in this context that the Court of Justice of the EU struck down absolute and automatic preferences for women in recruitment and promotion as incompatible with the Equal Treatment Directive.[17] It is therefore unclear whether it would accept gender quotas in European election law. In EU law, Art. 23 (2) CFR specifically sets forth that “[t]he principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.” Also, according to Art. 3 (3) subpara. 2 TEU and Art. 8 TFEU, the EU shall promote equality between women and men in all its activities. Perhaps the Court would consider these provisions as sufficient to justify gender parity rules in European election law.
That said, there is no provision in either primary or secondary Union law that would require Member States to introduce a gender quota or gender parity rule in their national election laws. If Member States do that on their own initiative, they cannot rely on any Union law provision to justify their initiative and overcome national constitutional impediments by invoking the primacy of EU law.[18] Art. 23 (2) CFR is addressed to Member States only when they are implementing Union law.[19] But when Member States regulate their national parliamentary elections, they certainly do not implement Union law. The other aforementioned provisions are addressed only to the EU.
No specific steps toward introducing gender quotas or gender parity requirements are planned by the EU. In the Gender Equality Strategy 2020-2025, the European Commission states that in the 2019 European elections, 39% of elected MEPs were women, compared to 37% of MEPs in 2014. It then explains: “Equal opportunity in participation is essential for representative democracy at all levels – European, national, regional and local. The Commission will promote the participation of women as voters and candidates in the 2024 European Parliament elections, in collaboration with the European Parliament, national parliaments, Member States and civil society, including through funding and promoting best practices. European political parties asking for EU funding are encouraged to be transparent about the gender balance of their political party members.”[20] The Commission’s instruments of choice are promotion and encouragement, not legal obligations. The same applies even more to the elections at national level. In that regard, the Commission only quite generally “calls … on the Member States to … develop and implement strategies to increase the number of women in decision-making positions in politics and policy-making.”[21]
III. European Court of Human Rights and Council of Europe
1. European Court of Human Rights Accepts Gender Quotas
Art. 3 of the Additional Protocol to the European Convention on Human Rights[22] enshrines the right to free elections but leaves States parties a wide margin with regard to election regulation, in view of the many differences in this regard between the Convention States.[23] The ECtHR has several times accepted gender quotas pertaining to electoral lists as permissible in the ECHR system.
In the most recent case of Zevnik v. Slovenia[24] concerning a 35 per cent gender representation requirement in favour of males and females, a three-member committee of the ECtHR held as follows: “The Court reiterates that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe (see Staatkundig Gereformeerde Partij v. the Netherlands (dec.), no. 58369/10, § 72, 10 July 2012) and that its institutions consider the lack of gender balance in politics to be a threat to the legitimacy of democracy and a violation of the right of gender equality … Consequently, the Court considers that the interference in question pursued the legitimate aim of strengthening the legitimacy of democracy by ensuring a more balanced participation of women and men in political decision-making.”
The section of the ECtHR even considered that the rejection of entire lists of candidates for non-compliance with the gender quota requirement was proportionate to the legitimate aim pursued. It explained in this context that “[h]elpful guidance [could] be obtained from the relevant instruments adopted by the Council of Europe institutions, in which they not only allow but also encourage member States to adopt gender quotas into their electoral systems coupled with strict sanctions for non-compliance … The Court also attaches weight to the view of the [Slovenian] Constitutional Court that prior awareness of the fact that political parties would not be able to participate in elections unless they ensured gender-balanced representation on their lists of candidates provided the strongest impetus to satisfying gender quotas …”
In the Zevnik case, the applicants did not claim violations of the freedom of expression (Art. 10 ECHR), the freedom of association (Art. 11 ECHR) or the prohibition of discrimination (Art. 14 ECHR) so that the Court did not have to take any position in that regard. In an earlier Spanish case, however, it did not find any interference in the freedoms of expression or association of potential candidates who were not included in electoral lists because of their gender: “La Cour ne décèle rien dans le dossier lui permettant de constater que les requérantes ont été empêchées de poursuivre leurs activités en tant que membres ou sympathisantes du parti politique en question.”[25] Since none of the applicants was a political party, the Court did not consider the potential interference in the freedom of political parties to compile electoral lists in accordance with their own political agenda. But there is little doubt that such interference would have been justified pursuant to Art. 11 (2) ECHR as necessary in a democratic society for the protection of the rights and freedoms of others, namely the underrepresented women.
Regarding the prohibition of discrimination on the ground of sex in Art. 14 ECHR and Art. 1 of Protocol No. 12,[26] the Court held that the Spanish gender quota of 40% applied equally to both men and women, prohibiting electoral lists with more than 60% candidates of either the male or the female sex. This is why there was no discrimination based on sex.[27] The same can of course be said of a zipper-mode gender parity rule. However, the state constitutional courts of Thuringia and Brandenburg rejected that group-related approach to gender discrimination considering the entire electoral list and instead opted for an individualised approach with regard to each position on such list: If that is not open for a man or a woman because it is reserved for a woman or a man, there will be gender discrimination even if the overall chances of men and women to get on the list are equal.
The ECtHR has not yet been called upon to decide whether the ECHR and Protocols might impose an obligation on Member States to introduce gender quotas for electoral lists. While the Court has derived different kinds of positive obligations from various Convention rights such as duties to protect, to investigate and to prosecute,[28] it has not yet recognised any concrete positive action obligations in favour of women.
2. Soft Law by Political Bodies of the Council of Europe
The Committee of Ministers (CM) on 12 March 2003 adopted Recommendation Rec (2003) 3 on “balanced participation of women and men in political and public decision-making”.[29] In that document the governments of Member States are recommended to ensure balanced participation of women and men, i.e., representation of both women and men amounting to at least 40%. The governments are specifically invited to “consider adopting legislative reforms to introduce parity thresholds for candidates in elections at local, regional, national and supra-national levels. Where proportional lists exist, consider the introduction of zipper systems”.[30] In the Recommendation CM/Rec (2007) 17 on gender equality standards and mechanisms,[31] the CM on 21 November 2007 further explained under B.4.31. that “[p]articipation in political and public life is a basic right of citizenship and must be enjoyed by women and men on a parity basis. The balanced participation of both sexes at all levels of political and public life, including at decision-making level, is therefore a requirement of human rights that can ensure the better functioning of a democratic society.”[32]
The Parliamentary Assembly (PACE) on 27 January 2010 adopted Resolution 1706 (2010) on “increasing women’s representation in politics through the electoral system”.[33] In it, PACE specifically recommended the introduction of a legal quota in favour of women and a zipper system for electoral lists:
“6. The Assembly considers that the lack of equal representation of women and men in political and public decision making is a threat to the legitimacy of democracies and a violation of the basic human right of gender equality, and thus recommends that member states rectify this situation as a priority by:
6.1. associating the gender equality and anti-discrimination provisions in their constitutions and their electoral laws with the necessary exception allowing positive discrimination measures for the underrepresented sex, if they have not done so already …; …
6.3. reforming their electoral system to one more favourable to women’s representation in parliament:
6.3.1. in countries with a proportional representation list system, consider introducing a legal quota which provides not only for a high proportion of female candidates (ideally at least 40%), but also for a strict rank-order rule (for example, a “zipper” system of alternating male and female candidates), and effective sanctions (preferably not financial, but rather the non-acceptance of candidacies/candidate lists) for non-compliance, ideally in combination with closed lists in a large constituency and/or a nation-wide district; …
6.5. encouraging political parties to voluntarily adopt gender quotas and to take other positive action measures, also within their own decision-making structures, and especially in the party structure responsible for nomination of candidates for elections …”
PACE referred to the European Commission for Democracy through Law (Venice Commission) that had approved both legally mandated and voluntarily adopted electoral gender quotas in 2009:
“115. Electoral gender quotas are highly controversial in some countries. Given the profound under-representation of women, however, quotas should be viewed as compensation for existing obstacles to women’s access to parliament. They can help to overcome structural, cultural and political constraints on women’s representation.
116. Since legal quotas are mandatory by nature they seem to be preferable to party quotas. However, voluntary quotas can, additionally or alternatively, contribute to an increase of women’s representation, too.
117. In order to be effective, gender quotas should provide for at least 30% of women on party lists, while 40% or 50% is preferable.
118. Electoral quotas are more effective if they provide for strict ranking rules or placement mandates. “Zipper systems” can be considered the most effective method to ensure gender parity.
119. For being respected, moreover, gender quotas require effective monitoring and enforcement mechanisms.”[34]
Germany has long delayed the implementation of these recommendations which are not legally binding as such. When the protagonist Thuringian and Brandenburg state legislatures closely followed them in introducing the zipper-mode gender parity requirements for electoral lists in 2019, the requirements were struck down by the state constitutional courts in 2020, as has already been explained.
The strategic objective 4 of the current Council of Europe Gender Equality Strategy 2018 – 2023[35] is to “[a]chieve balanced participation of women and men in political and public decision-making”.[36] After acknowledging that “[p]olitical activities and public decision-making remain male-dominated areas. Men set political priorities, and political culture continues to be structured around male behaviour and life experience”, the Strategy states that the Council of Europe will seek to “identify and support measures and good practices that promote gender equality in relation to: electoral systems, training of decision makers in both public institutions and political parties, gender-sensitive functioning of decision-making bodies, setting parity thresholds, adoption of effective quota laws and voluntary party quotas, and the regulation of political parties including public funding, in co-operation with relevant bodies of the Council of Europe and with a view to achieving gender balance in decision making, combating gender stereotypes and to improve the gender-sensitiveness of decision-making environments”.[37]
It remains to be seen how Germany will effectively achieve gender balance in political decision-making in a timely manner without mandatory gender quotas regarding electoral lists.
D. Global Level: The Convention on the Elimination of All Forms of Discrimination against Women
The first step on the global level toward gender equality in political participation was taken by the Convention on the Political Rights of Women.[38] Pursuant to Art. II, “[w]omen shall be eligible for election to all publicly elected bodies, established by national law, on equal terms with men, without any discrimination.” That provision simply prohibits gender-based restrictions on eligibility which constituted important progress at that time.
Art. 7 CEDAW[39] goes further in setting forth that the States Parties “shall take all appropriate measures to eliminate discrimination against women in the political … life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) … to be eligible for election to all publicly elected bodies …” According to Art. 4 (1) CEDAW, “[a]doption by States Parties of temporary special measures aimed at acceleration de facto equality between men and women shall not be considered discrimination as defined in the present Convention …”
Gender quotas or gender parity requirements for electoral lists certainly qualify as temporary measures aimed at acceleration of adequate female representation in parliaments and are therefore permitted by Art. 4 CEDAW. The treaty body of independent experts charged with monitoring CEDAW implementation, the Committee on the Elimination of Discrimination against Women, even stated that Art. 4 CEDAW (not only permitted but) “encourage[d] the use of temporary special measures in order to give full effect to articles 7 and 8.”[40]
Is the imposition of mandatory gender quotas or gender parity requirements even made obligatory by Art. 7 CEDAW, because they are the most appropriate measure to eliminate the underrepresentation of women – a trace of their past discrimination – and ensure their substantive equality in political life? The CEDAW Committee has not spelt that out clearly. Rather, in 1997 it confined itself to observing that some political parties have adopted measures to ensure that there was a balance between the number of male and female candidates nominated for election and then demanding that “States parties should ensure that such temporary special measures are specifically permitted under anti-discrimination legislation or other constitutional guarantees of equality.”[41] Seven years later, the Committee stated that the “[p]ursuit of the goal of substantive equality also calls for an effective strategy aimed at overcoming underrepresentation of women and a redistribution of resources and power between men and women.”[42] While quota systems are mentioned as one possible kind of special measures,[43] the Committee does not explicitly demand their use but rather leaves States parties a choice regarding the most appropriate means to promote gender equality.[44]
Much more progressively, the CM of the Council of Europe has interpreted Art. 7 CEDAW in the sense that it imposes an obligation on European States “to ensure equal participation of women and men in political and public decision-making. Given that the traditional liberal notion of equality of opportunity has evolved to a demand for equality of results, states now have an obligation to ensure equality of outcomes, not only equal opportunities between women and men. This means that European states are obliged to ensure an equal representation of women and men in decision-making.”[45] Although quotas are not explicitly mentioned, there is practically no other way of quickly achieving equality of results with regard to representation of women in parliaments.
If one takes seriously the promise of effective equality of women in political life made by Art. 7 CEDAW and includes the long-lasting exclusion of women from that life in the equation, the interpretation ventured by the CM of the Council of Europe is reasonable. It is supported by the practice of the Human Rights Committee (HRC), the treaty body of the International Covenant on Civil and Political Rights (ICCPR),[46] regarding the political rights enshrined in Art. 25 ICCPR. This provision guarantees to every citizen the right and the opportunity, without any distinction of sex etc., to vote and to be elected. According to the HRC, “States parties must ensure that the law guarantees to women the rights contained in article 25 on equal terms with men and take effective and positive measures to promote and ensure women’s participation in the conduct of public affairs and in public office, including appropriate positive action. Effective measures taken by States parties to ensure that all persons entitled to vote are able to exercise that right should not be discriminatory on the grounds of sex. The Committee requires States parties to provide statistical information on the percentage of women in publicly elected office, including the legislature, as well as in high-ranking civil service positions and the judiciary.”[47]
E. Conclusion: The European and International Soft Law on Political Gender Parity is Spreading and Hardening
In conclusion, there is not yet any hard and watertight international or supranational legal obligation for Germany to enact mandatory quotas or gender parity requirements in order to enhance the political representation of women. But the pertinent soft-law precepts on the European and global level are gradually spreading and hardening, not least because many close partner States have long ago introduced such quotas. It remains to be seen whether Germany will fall in line or rather fall behind because it proves unable to overcome State constitutional court resistance. That depends on how much women voters in Germany care about their right to equal representation enshrined in Art. 3 (2) BL, read together with and informed by Art. 7 CEDAW, and its effective implementation. According to a recent survey conducted in Germany, only a small minority (8%) of the respondents supported the introduction of mandatory gender quotas, with more female than male respondents answering positively.[48]
Obviously, much more public debate of women’s political representation in Germany is necessary. Voters need to become aware that the underrepresentation of women in legislatures hinders the inclusion of a gender perspective in a critical sphere of influence.[49] Otherwise, Germany is in danger of falling behind developments on the European and global level concerning women’s political representation. If that happens, Germany will probably also stay behind with regard to gender equality in general and thus fail to adequately tap the hidden resources and talents of the better part of its population. That would be a competitive disadvantage.
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*Prof. Dr. Thomas Giegerich, LL.M. is the Director of the Europa-Institut (http://europainstitut.de) and holds a Chair for European Law, Public International Law and Public Law at Saarland University.
[1] See the Verordnung über die Wahlen zur verfassunggebenden deutschen Nationalversammlung (Regulation on the Election of the Constituent German Assembly) of 30 November 1918 (Reichsgesetzblatt p. 1345) that was enacted by the revolutionary Council of People’s Deputies.
[2] See Hahn, Practicing Parity, available at: https://verfassungsblog.de/practicing-parity/.
[3] Thuringian Constitutional Court, VerfGH 2/20, judgment of 15 July 2020, available at http://www.thverfgh.thueringen.de/webthfj/webthfj.nsf/8104B54FE2DCDADDC12585A600366BF3/$File/20-00002-U-A.pdf?OpenElement (in German); Brandenburg Constitutional Court, VfGBbg 9/19 and VfGBbg 55/19, judgments of 23 October 2020, available at https://verfassungsgericht.brandenburg.de/verfgbbg/de/entscheidungen/entscheidungssuche/detail-entscheidung/~23-10-2020-vfgbbg-919_4041 and https://verfassungsgericht.brandenburg.de/verfgbbg/de/entscheidungen/entscheidungssuche/detail-entscheidung/~23-10-2020-vfgbbg-5519_4042 (in German).
[4] These court decisions evoked numerous positive and negative comments in the legal literature, e.g. by Gersdorf, Das Paritätsurteil des Thüringer Verfassungsgerichtshofes springt doppelt zu kurz, DÖV 2020, p. 779 ff.; Klafki, Parität – Der deutsche Diskurs im globalen Kontext, DÖV 2020, p. 856 ff.; Hecker, Auf der schiefen Bahn: Die Paritätsgesetzgebung nach der Entscheidung des Verfassungsgerichts Brandenburg, available at: https://verfassungsblog.de/auf-der-schiefen-bahn/; Friehe, Wir sind ein Volk – Die landesverfassungsrechtliche Rechtsprechung zur Parité, NVwZ 2021, p. 39 ff. See also the critical contributions to a symposium of the Verfassungsblog, starting with Hailbronner/Rubio Marín, Gender Parity in Parliaments – An Introduction, available at: https://verfassungsblog.de/gender-parity-in-parliaments-an-introduction/.
[5] I leave aside the question whether these constitutional amendments might violate state constitutional provisions prohibiting certain amendments. But see below under II. on the comparable problem on the federal constitutional level.
[6] Translation available at: https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0148.
[7] FCC (Chamber), 2 BvR 3058/14, Order of 1 April 2015, margin note 25.
[8] FCC, 2 BvC 46/19, Order of 15 December 2020.
[9] Bavarian Constitutional Court, Vf. 15-VII-16, decision of 26 March 2018, available at: https://www.gesetze-bayern.de/Content/Document/Y-300-Z-BECKRS-B-2018-N-5484 (in German).
[10] See Hecker, Anmerkung zu BVerfG, NVwZ 2021, p. 479, 480.
[11] See Art. 79 (2) BL.
[12] See Klafki (note 4), p. 864 f.; Möschel, „Gender Quotas“ in French and Italian Public Law: A Tale of Two Overlapping and Then Diverging Trajectories, German Law Journal 19/6 (2018), p. 1489 ff., available at: https://www.cambridge.org/core/journals/german-law-journal/article/gender-quotas-in-french-and-italian-public-law-a-tale-of-two-overlapping-and-then-diverging-trajectories/33243C66A1E063AB012DAED3E8CFC212.
[13] Klafki (note 4), p. 864 f.
[14] Klafki (note 4), p. 863.
[15] See the Act concerning election of the members of the European Parliament by direct universal suffrage, as amended, consolidated version available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:01976X1008(01)-20020923&qid=1618756563275&from=EN.
[16] Council Decision (EU, Euratom) 2018/994 of 13 July 2018 amending the Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976, OJ L 178, 16.07.2018, p. 1.
[17] ECJ, C-450/93, Kalanke v. Freie Hansestadt Bremen, judgment of 17 October 1995; C-409/95, Marschall v. Land Nordrhein-Westfalen, judgment of 11 November 1997; C-93/19 P, EEAS v. Hebberecht, judgment of 19 November 2020.
[18] See the Declaration (No. 17) concerning primacy in the annex to Final Act of the Intergovernmental Conference of Lisbon, OJ 2016 C 202, 13 December 2007, p. 344.
[19] Art. 51 (1) CFR.
[20] A Union of Equality: Gender Equality Strategy 2020-2025, COM (2020) 152 final, Communication of 5 March 2020, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020DC0152&from=EN, p. 14.
[21] Id., p. 15.
[22] Of 20 March 1952 (ETS No. 9).
[23] See, e.g., ECtHR (GC), No. 58278/00, Ždanoka v. Latvia, judgment of 16 March 2006, para. 103.
[24] No. 54893/18, Decision of 12 November 2019: Declaration declared inadmissible for being manifestly ill-founded (Art. 35 (3) lit. a ECHR). See Toplak, The ECHR and Gender Quotas in Elections, available at: https://www.ejiltalk.org/the-echr-and-gender-quotas-in-elections/.
[25] ECtHR, No. 35473/08, Méndez Pérez v. Spain, decision of 4 October 2011, para. 29.
[26] Protocol No. 12 to the ECHR of 4 November 2000 (ETS No. 177).
[27] ECtHR (note 25), para. 34.
[28] See Grabenwarter/Pabel, Europäische Menschenrechtskonvention, p. 164 ff.; Grabenwarter, European Convention on Human Rights – Commentary, Art. 2 margin notes 16 ff.
[29] Available at: https://rm.coe.int/1680519084 (with explanatory memorandum).
[30] Id., Appendix, A.3.
[31] Available at: https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d4aa3.
[32] The FCC in its aforementioned order of 2020 expressly left the question unanswered whether that recommendation was intended to create a legal obligation for Member States because the applicants had not made such a claim (see above note 8, margin note 119).
[33] Available at: https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17809&lang=en.
[34] Report on the Impact of Electoral Systems on Women’s Representation in Politics, Study No. 482/2008, CDL-AD(2009)029, 16 June 2009, p. 18, available at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2009)029-e.
[35] Adopted on 7 March 2018 by the Committee of Ministers, available at: https://rm.coe.int/strategy-en-2018-2023/16807b58eb.
[36] Id., p. 27 ff.
[37] Id., para. 57 and 61.
[38] UNTS vol. 193, of 31 March 1953, p. 135.
[39] UNTS vol. 1249, of 18 December 1979, p. 13.
[40] General Recommendation No. 23 (1997): Political and Public Life, para. 15, available at: https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/INT_CEDAW_GEC_4736_E.pdf. See in this sense also UN General Assembly Resolution 66/130 of 19 December 2011, para. 9.
[41] Id, para. 33.
[42] General Recommendation No. 25 (2004), para. 8, available at: https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/INT_CEDAW_GEC_3733_E.pdf.
[43] Id., para. 22.
[44] Id., paras. 27 ff.
[45] Explanatory memorandum on Recommendation Rec (2003) 3 (note 29), p.15 (at the end of para. I.A.).
[46] UNTS vol. 999, of 16 December 1966, p. 171.
[47] General Comment No. 28, 29 March 2000, para. 29, available at: https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_21_Rev-1_Add-10_6619_E.pdf.
[48] Coffé/Reiser, Unterstützen die Bürger*innen die Einführung von Quoten und andere Gleichstellungsmaßnahmen in Deutschland?, MIP 26 (2020), p. 180 ff., available at: doi:10.25838/oaj-mip-2020180-185.
[49] See in this sense the Outcome of the 23rd special session of the UN General Assembly entitled “Women 2000: gender equality, development and peace for the twenty-first century”, 5 – 9 June 2000, p. 220, para. 23, available at: https://www.unwomen.org/-/media/headquarters/attachments/sections/csw/pfa_e_final_web.pdf?la=en&vs=1203.
Suggested Citation: Giegerich, Thomas, Women’s Right to Equal Political Participation and Gender Parity in Parliaments: Is Germany Falling Behind?, jean-monnet-saar 2021, DOI: 10.17176/20220704-182916-0
