EU 3.5% threshold rule unimplemented in Spain

The 3.5% threshold Spain hasn't implemented that would exclude Podemos, Junts and PNV

A European Union Council regulation approved on May 3, 2022, sets a minimum threshold of 3.5% for constituencies electing more than 60 seats. Spain falls into this group. And Spain has not transposed it. The paradox is textbook: the rule that, according to calculations circulating in the debate, would leave Podemos, Junts and PNV out of the European Parliament exists, is published and, as of this discussion, there is no record of its incorporation into national law. The result is that Irene Montero has already collected her MEP mandate while the blogosphere debates whether this is an error, fraud or simply a dead letter.

What Article 13 of the European regulation exactly says

The text is clearer than some would like. Section 13.1 allows Member States to set a threshold not exceeding 5%. Section 13.2 requires setting a threshold of at least 3.5% in constituencies with more than 60 seats. Spain distributes 61. The arithmetic conclusion supported by several participants is that Podemos, with less than that percentage, is left out. Junts and PNV too.

The problem is that the regulation does not apply alone. It needs transposition into national law, and that is where the matter gets tangled. Some argue that the text entered into force on the first day of the month trinc its approval by Member States in accordance with their constitutional rules, and that this procedure remains pending in Spain. Others point to an exemption in section 13.3 for linguistic minorities that could serve as a loophole for Junts or PNV, but not for Podemos.

The discussion soon drifted toward more uncomfortable ground: if the regulation was in force, how did nobody in politics, with thousands of advisors and officials, notice a detail that eliminated seats from three parties? The most repeated answer is the least epic: because it had not been transposed.

Regulation, directive or wishful thinking: the legal mess

Confusion between regulation and directive permeated the entire conversation. A European regulation is directly applicable; a directive requires transposition. The European Parliament resolution of May 3, 2022, is a Council regulation, which theoretically strengthens the argument. In practice, effective application remained uncertain.

Some compared it to the amnesty law: ultimately, what counts is not what the text says, but the interpretation by those responsible and the agreements reached. One line of analysis argues that the threshold will eventually be approved when there is sufficient majority for it, and that then it will affect all small parties equally. Another recalls that the rule has been published for two years and nobody has lifted a finger.

The detail that settled part of the debate was the mandate. Irene Montero is an MEP. The regulation, in practice, did not prevent it.

The political calculation: who benefits and who sinks

The 3.5% threshold is not neutral. With that barrier, the distribution of Spanish seats in Strasbourg would concentrate on major parties. Podemos would disappear from the European map. Junts and PNV would lose direct representation. And the obvious beneficiary would be PSOE, seeing reduced competition on its left flank.

This explains why the Government is not in a hurry. It also explains why the rule generates so much noise in certain sectors. The lingering question is whether the threshold will ever be applied in Spain or if it will remain like those regulations approved in Brussels and forgotten in Madrid.

Behind the scenes: provisional seats, mandates and marketplaces

The provisional allocation of seats was the trigger. Podemos, Junts and PNV appeared in the initial distribution. The thesis that they should be removed for failing to reach 3.5% circulated strongly. But the mandates were collected and the seats occupied.

On more earthly ground, the conversation shifted to the future of those affected. The possibility that Irene Montero returned to her former job became a recurring meme. The legal debate mixed with political score-settling and the suspicion, never confirmed, that someone had made a mistake and now had to invent a way out.

---

The uncomfortable question remains: if the regulation exists, is published and Spain has not transposed it, who answers for the seats that should never have been allocated? Nobody, for now. The mandates are signed and the threshold waits in a drawer in Brussels.