Towards a Ius Commune on Elections in Europe? The Role of the Code of Good Practice in Electoral Matters in “Harmonizing” Electoral Rights

Abstract

The Venice Commission, set up in 1990 within the Council of Europe, sees the monitoring of elections and referendums in the member states as one of its main tasks. In this particular field, the Venice Commission has established a Code of Good Practice in Electoral Matters and delivers opinions on electoral legislation on a regular basis. Although formally speaking the Code and the opinions of this Commission are not legally binding upon member states, they enjoy great political authority and can certainly exert significant pressure on the national legal systems, should a deviation from the Code be detected. Moreover, starting from 2007 the European Court of Human Rights has recognized the principles enshrined in the Code of Good Practice in Electoral Matters as standards for its judgments. The article analyzes whether this development is actually leading towards a convergence of the standards observed for electoral legislation in Europe. It is argued that, while elements like the identification of the basic requirements for a free electoral competition may lead to such a conclusion, this is not case for others, like in matters of electoral justice, where deep differences among states appear to remain. Moreover, the inconsistency amongst the linguistic versions of the Code, as revealed in the Italian case, proves it difficult for the Code to actually establish a ius commune on elections in Europe.