Catalan leader Oriol Junqueras, who has been in provisional detention for more than two years, had the right to immunity the moment he was elected as a member of the European Parliament, the European Court of Justice (ECJ) ruled on Thursday (19 December).
“A person who is elected to the European Parliament acquires the status of a member of the Parliament as a result of and from the time of the declaration of the election results, with the result that he enjoys the immunities guaranteed,” the Court ruled.
The decision confirms the opinion the court’s Advocate General Maciej Szpunar issued in November and is contrary to the judgements of Parliament and Commission’s legal services.
Junqueras was elected as MEP in the 26 May elections. The results, including his election, were proclaimed on 13 June. However, to be officially nominated, Spanish law required him to swear on the Constitution in person.
But back then, the Spanish Supreme Court did not grant him permission to appear before the Electoral Authority, making it impossible for him to fulfil the requirement. The Luxembourg-based ECJ considers that the Supreme Court should have indeed granted him the authorisation.
According to the ECJ judgement, while in principle the electoral procedure and the declaration of the results are governed by national laws, the status of a member of the European Parliament, Luxembourg understands, “arises from the election of the person concerned and is acquired by virtue of the official declaration of those results by a member state.”
The Court understood that the election of the members of the Parliament by direct suffrage “constitutes an expression of the constitutional principle of representative democracy, the scope of which is defined by EU law itself.”
Advocate General Szpunar argued in November that all the rights and obligations of an MEP are acquired solely from the vote of the electorate and “cannot be conditional on the completion of any subsequent formality.”
This ruling will most likely have implications for Spain but also for any other member state that may require future MEPs to meet any domestic formality after the European elections.
Access to immunity
Junqueras was charged with sedition and misuse of public funds for his involvement in the organisation of a 2017 referendum, illegal under Spanish Constitutional law, that eventually led to the failed unilateral declaration of independence in Catalonia.
When he was elected MEP in May this year, Junqueras was already in provisional detention. However, the ECJ considers that the moment a person is elected to the Parliament, they can enjoy the immunity attached to the seat as regards travel.
“The purpose of that immunity is to allow such persons to, inter alia, travel to and take part in the inaugural session of the newly elected European Parliament,” the ECJ explained.
The Court clarified that this only applies to the actual trip from a given member state to Strasbourg. The full immunity attached to the position can only be acquired once the MEP-elect has taken part in the inaugural session.
“The immunity as regards travel granted to every member of the European Parliament entails lifting any measure of provisional detention imposed prior to the declaration of that Member’s election,” the Court warned.
The ECJ argued that if the Spanish Supreme Court considered that the provisional detention should be maintained, it must “as soon as possible” request the Parliament to waive that immunity.
In its ruling, the ECJ responded to the questions issued by the Spanish Supreme Court regarding the scope of the immunities enjoyed by members of the European Parliament.
When Junqueras was elected MEP, the trial against him and other Catalan pro-independence leaders was still ongoing, and a sentence was handed down later.
Junqueras has been convicted to 13 years in prison for sedition and misuse of public funds and to another 13 years of being disqualified from holding any public office or exercising a public function.
The ECJ did not clarify how this ruling affects the Catalan MEP’s current situation. However, it could benefit others, including former Catalan President Carles Puigdemont and councillors Toni Comin and Clara Pontsanti, who were also elected as MEPs in the EU election.
They were charged for their role in organising the referendum but fled Spanish Justice in October 2017 and have been in Belgium and Scotland, respectively, ever since.
They did not appear before the Spanish Electoral Authority either amid concerns they would be detained.
Encara queden jutges a Europa. Llibertat immediata per a @junqueras! El TJUE defensa els mateixos criteris que hem defensat contra el Parlament europeu i les autoritats espanyoles, que han intentat alterar el funcionament de la democràcia europea. @EuParlament @ourvoteseu
— Carles Puigdemont (@KRLS) December 19, 2019
Puigdemont and Comin presented their own plea before the ECJ, asking the Court to allow them to sit in the European Parliament. This ruling confirms that they had the right to immunity when they were elected to their seats in May.
However, their situation was different as they were charged but not tried and convicted. Spain recently issued European arrest warrants against Puigdemont and Ponsanti that are being at the moment examined by the Belgian and British authorities, respectively.
If the two were to be declared as having the right to immunity, the European arrest warrants would most likely be dismissed. It would then be up to the European Parliament to decide whether to waive the Catalan MEPs’ immunity.
Following the decision of the EU court, European Parliament president David Sassoli addressed the chamber during the plenary session in Strasbourg. “It is a very important ruling which has a direct impact on the composition of this institution,” Sassoli told MEPs.
After readings the conclusions of the ECJ on Junquera’s case, which part of the members present applauded, Sassoli urged “the competent Spanish authorities to align with the ruling.” The president of the Parliament announced he has tasked the legal services of the institutions to analyse the potential implications of the decision.
“I will not accept any challenges to the rules on this issue,” Sassoli warned.
The European Commission has reacted to the ruling as well. A spokesperson said the EU executive “takes note of the ruling,” but added that “it is now up to the Spanish Supreme Court and the European Parliament to asses the follow up to this preliminary ruling.”
The Commission avoided to comment on the possible implications of the case for Carles Puigdemont.
Questioned about the implications of the ruling for the respect of the rule of law in Spain, the Commission recalled that it was the Supreme Court itself who seek for clarification from the ECJ and that the answer is a clarification of the rule. “This shows that the procedures are working,” chief spokesperson for the EU executive Eric Mamer added, “our position has not changed.”
[Edited by Zoran Radosavljevic]