Could The EU Overturn The German Election Results If The AfD Does Well?

A great deal of controversy erupted in response to former European Commissioner for Internal Market Thierry Breton’s remarks last month regarding the European Union’s alleged power to overturn election results in its member states. Breton made the statement on the French television channel RMC Story. Speaking about the upcoming national elections in Germany and the expectation that the right-wing populist Alternative for Germany (AfD) party will perform well, Breton commented that “we did it in Romania and we will obviously do it in Germany if necessary.”

Breton was referring to November’s presidential election in Romania, where the results were annulled after a right-wing populist, Călin Georgescu, unexpectedly won the most votes. The Romanian Constitutional Court claimed that this move had been mandated due to an online Russian interference campaign that had been carried out in the run-up to the election.

Breton didn’t specify who the “we” was in his statement, but given that he is a Brussels politician, most assumed that he was referring to the European Union.

The cancellation of the election has become a global news story, and just this week, U.S. Vice President J.D. Vance specifically pointed out the incident to showcase a lack of democracy in Europe while lambasting European elites at the Munich Security Conference,

András László, a Hungarian MEP from Viktor Orbán’s Fidesz party, likewise attracted attention when he responded to Breton’s statement on X last month by saying that the European Union “refuses to respect democratic norms.” He went on to accuse the EU of being willing to “cancel democracy” when it doesn’t like the outcome of national elections in its member states. Entrepreneur and leader of the recently created U.S. Department of Government Efficiency (DOGE) Elon Musk, who has been highly critical of the EU himself, retweeted László’s remark with the simple comment, “Exactly.”

The Hungarian fact-checking site Faktum decided to investigate how correct MEP László’s remarks are. This issue takes on even greater relevancy in relation to the EU’s Digital Services Act (DSA), which was adopted in 2022 and entered into force in 2024. Among its provisions, the DSA requires online platforms operating within the EU to censor content at the Brussels bureaucrats’ behest when it allegedly violates EU law. The DSA likewise seeks greater transparency in terms of the sources of political advertising.

Several online companies, such as the search engine giant Google, have since indicated that they will refuse to comply with the DSA. Elon Musk’s X has likewise been accused by the EU of being in violation of the DSA by disseminating problematic political content, although Musk has denied the accusations, claiming that the EU is merely trying to censor speech that it doesn’t like.

While it hasn’t happened yet, the possibility of the government of an EU member state using the DSA or other EU legislation to annul the results of a national election when it doesn’t like the result certainly exists. After all, under the provisions of the EU’s governing treaties, national courts are responsible for enforcing EU law as well as domestic law.

Although the EU was not directly involved in the annulment of Romania’s recent election — at least not openly — it has been keeping a close eye on events there given that it can be seen as a test case for how the DSA could be applied in a similar situation in the future. This was underscored by the fact that the European Commission has launched its own investigation into whether “Russian interference” on social media played a role in the Romanian election.

There is also very much a double standard in how “foreign interference” is understood in Brussels. András László pointed out in his tweet that the EU remained silent when Viktor Orbán’s united opposition received $10 million from anonymous sources in the United States and Switzerland in the run-up to Hungary’s 2022 national elections, and it was widely known that the U.S. embassy had supported the opposition’s media operations during the same period as well. (The European Commission naturally denies that there is any such double standard, and insists that it only has the power to intervene in a limited way in cases of election interference, which fall under the purview of the member states themselves.)

In response, in 2023, the Hungarian Parliament enacted legislation which led to the creation of the Office for the Defense of Sovereignty. This office is tasked with preventing foreign interference, such as by investigating NGOs and other institutions in Hungary that are funded from abroad. The European Union responded by referring Hungary to the European Court of Justice, claiming that this office violates the EU Charter of Fundamental Rights.

In the case of Germany, the Federal Elections Act is the legislation that governs the way in which the integrity of the country’s elections is guaranteed. It is also the legal mechanism under which an election result can be challenged. The Federal Constitutional Court is the body that would be called upon to review election results in a case where foul play was suspected. This has never happened before in modern German history, however, and Faktum considers it very unlikely that the German court would regard a violation of the EU’s new directives on social media alone as a sufficient cause for overturning an election result.

Additionally, if the German government were to find evidence that there had been foreign interference in an election, it would first launch an investigation before taking the extremely drastic step of annulling the results altogether. And in order for the latter to occur, very clear and extensive evidence of foreign interference would have to be presented and proven. This is very unlike what happened in Romania in December, a country that has a very different body of legislation governing its elections than Germany does. The chances that the upcoming German national elections might be overturned by the courts are therefore very low.

How the EU’s DSA will ultimately affect national politics in Europe remains to be seen. While everyone agrees on the need to secure elections against foreign influence in the age of social media, different factions disagree on how this should be implemented. Whereas liberals tend to see the DSA as a way of combating such interference, those on the right fear that it could limit freedom of expression. Only time will tell how the DSA will ultimately be enforced in practice.

In Germany’s case, however, we can at least say that Thierry Breton’s claim that the EU would overturn the results of the upcoming election if the AfD does well is greatly exaggerated.

Read more here...