The European Justice has rejected the appeal of Carles Puigdemont and Toni Comín against the refusal of the former president of the European Parliament to recognize them as MEPs. Thus, the General Court of the EU dismisses the appeal as inadmissible “because it is not directed against actionable acts under the Treaty on the Functioning of the EU”. In this way, the court based in Luxembourg has spent three years to conclude that the act was not appealable.
The European Justice cautiously returns immunity to Puigdemont, Comín and Ponsatí
This is established by the ruling of the General Court of the EU (TGUE) in response to the appeal filed on June 28, 2019 by Puigdemont and Comín, in which they asked the European Justice to annul several decisions that prevented them from taking possession of their seats and occupy them as elected members: the instruction of May 29, 2019 of the former President of the European Parliament, Antonio Tajani (Forza Italia/EPP), denying them the reception and assistance service offered to the Members of Parliament who would take possession of their seat and a temporary accreditation and, on the other hand, the refusal of said president to recognize them as members of Parliament, contained in a letter dated June 27, 2019.
Puigdemont and Comín also requested compensation for the damage caused, such as the loss of their monthly salaries as members of the European Parliament plus a symbolic euro for non-pecuniary damage.
The two pro-independence leaders also filed a request for provisional measures for the TGUE to suspend the execution of those decisions and for it to order the European Parliament to take all necessary measures, including the recognition of their privileges and immunities, so that they could take possession of seat in Parliament from July 2, 2019.
The request for provisional measures was rejected by order of the Vice President of the General Court of the EU on July 1, 2019.
As a result of the sentence passed on Oriol Junqueras on December 19, 2019, by which the European Parliament, through a decision by its then president, David Sassoli (PD/S&D), finally recognized Puigdemont’s status as MEP, Comín and, later, to Clara Ponsatí, the order of the vice president of the TGUE was annulled by an order of the vice president of the Court of Justice of the EU on December 20, 2019.
The matter was remanded to the General Court. On March 19, 2020, an order dismissing the application for provisional measures was issued, as the application had been left without purpose as both had already taken possession of their minutes.
In the first place, in its examination of whether the refusal of the former President of Parliament to recognize the applicants as European deputy, contained in the letter of June 27, 2019, is an actionable act, the General Court “considers that constitutes an act that produces binding legal effects that may affect the interests of the applicants, in the sense of the settled case law of the Court of Justice. Consequently, the appeal for annulment against said refusal is inadmissible.”
In this way, the General Court concludes that “the impossibility of the applicants to assume their functions, to exercise their mandates and to occupy their seats in Parliament does not derive from the refusal of the former President of the European Parliament to recognize them as MEPs, contained in the letter of June 27, 2019, but of the application of Spanish law, as reflected in the notifications of the Central Electoral Board of June 17 and 20, 2019, regarding which the former president of the European Parliament and, more generally, the European Parliament did not have any margin of appreciation”.
Second, in its examination of whether the instruction of May 29, 2019 is an actionable act, the General Court of the EU considers that, “given its content, its provisional nature and the context in which it was adopted , did not produce binding legal effects that could affect the interests of the applicants in the sense of the settled case law of the Court of Justice. Consequently, the appeal for annulment against that instruction is inadmissible. Indeed, according to the General Court, this instruction did not have the effect of preventing the applicants from carrying out the administrative procedures necessary to take office and exercise their mandates; therefore, the impossibility of the applicants to exercise the rights associated with their status as European deputy from the opening of the first session after the elections, that is, from July 2, 2019, does not give rise to said instruction.
Pending the supplication and the preliminary rulings of Llarena
At the end of May, the European Justice decided to return “precautionary” parliamentary immunity to Carles Puigdemont, Toni Comín and Clara Ponsatí. The cassation decision of the vice-president of the Court of Justice of the EU thus annulled the order of the vice-president of the General Court and suspended, in cassation, the execution of the decisions of the European Parliament related to lifting the immunity of the pro-independence leaders.
In the opinion of the Vice-President of the Court of Justice, it is obvious that the detention of a Member of Parliament, in his case for several weeks, pending the adoption of a decision on his surrender, may cause him serious and irreparable harm.
Therefore, it considers that it has the necessary elements to be able to pronounce directly on the request for provisional measures from the deputies. On the one hand, he considers that the requirement that the granting of such measures is justified at first sight in fact and in law is met. (fumus boni iuris). According to the vice-president of the Court of Justice, the behavior of the rapporteur, the Bulgarian Angel Dzhambazki – sanctioned for making a fascist salute in the plenary session in Strasbourg – and of the president of the parliament’s legal affairs commission (JURI Commission), Adrián Vázquez (Citizens ) seem to demonstrate at first sight a position taken or a personal prejudice contrary to the deputies. It cannot be ruled out that the rapporteur’s membership of a political group that includes MEPs from the VOX political party could raise legitimate doubts about a potential bias against the MEPs.
“In the present case, the conduct of the rapporteur and the president of the JURI Commission to which the appellants refer is, prima facie, such that it shows partiality or personal prejudice towards them,” says the order.
The president of JURI, Adrián Vázquez, communicated a few weeks ago at a press conference that the European Parliament could not verify the credentials of Puigdemont, Comín, Ponsatí and Josep Solé for not having sworn to the Constitution, something that is evident after the sentence of this Wednesday.
The vice president of the Court of Justice also pointed out a month and a half ago that the fact that the deputies have not been arrested until now does not mean that they cannot be.
On the other hand, the vice-president of the Court of Justice rejected Spain’s allegation according to which the damage alleged by the deputies could not materialize because the execution of the European arrest warrants issued against them has been suspended as a result of the preliminary ruling made by Judge Llarena of the Supreme Court on the power of the Belgian Justice to reject the surrender of former Minister Lluís Puig with some arguments – that of the Supreme Court’s competence to judge the case above the autonomous courts – that can be adopted in the future for the now MEPs.
On July 14, the general counsel of the CJEU will rule on these preliminary rulings.
Indeed, although the preliminary ruling suspends the main proceedings, the Supreme Court’s order of reference shows that what is trying to be elucidated is whether the arrest warrants issued by said Court against various persons claimed, including the deputies, should stay or withdraw and, in the specific case of Members, what additional information should be transmitted to the national executing authorities to facilitate their surrender.
“But without a formal decision from the Supreme Court, it cannot be considered that the Supreme Court had the intention to question the arrest warrants issued or to suspend their execution,” the order says.
Appeal for violation of rights
On January 13 and February 10, 2020, the European Parliament received requests to waive the immunity of Carles Puigdemont, Toni Comín and Clara Ponsatí, elected MEPs.
The purpose of these pleas, presented by the president of the Second Chamber of the Supreme Court in the framework of a criminal proceeding for, among others, alleged crimes of sedition, was to proceed with the execution of the European arrest warrants issued against the MEPs .
By decisions taken on March 9, 2021, Parliament lifted the immunity of the three MEPs.
On May 19, 2021, the three filed an appeal for annulment of the aforementioned decisions before the General Court, in which they argued that the European Parliament had not guaranteed them the possibility of exercising, as deputies, their fundamental rights as representatives of the citizens of the Union, and that it had violated the rights conferred on them by various articles of the Charter of Fundamental Rights of the European Union.
This main proceeding is still pending.
On May 26, 2021, the deputies filed a request for provisional measures in which they asked the Vice President of the General Court to suspend the execution of the aforementioned decisions, the lifting of immunity. They considered that the decisions of the European Parliament allowed any Member State and the United Kingdom to detain them or restrict their movements and hand them over to the Spanish authorities.
According to MEPs, the lifting of immunity does not prevent them from being provisionally detained, after their possible delivery to the aforementioned authorities. They consider that this could cause them serious and irreparable damage and would violate their right to carry out their duties as MEPs.
In addition, they added that the eventual annulment of the decisions of the European Parliament could not be executed if, at the time of taking place, they had already been subject to said surrender and detention.
By order of June 2, 2021, the Vice President of the General Court ordered that the execution of Parliament’s decisions be suspended until the order ending the interim measures procedure was adopted.
Subsequently, by order of July 30, 2021, the Vice President of the General Court revoked his order of June 2, 2021 and dismissed the request for provisional measures from the deputies, since he considered that they had not been able to demonstrate that the requirement of the urgency, necessary for the granting of provisional measures.
In the opinion of the Vice President of the General Court, now amended by the Vice President of the Court of Justice, the serious and irreparable damage invoked could not be qualified as certain or proven with a sufficient degree of probability.
The deputies appealed in cassation before the Court of Justice against the order of the General Court of July 30, 2021. In his order notified in May 2022, the vice-president of the Court of Justice annuls the order of the General Court and suspends the execution of the decisions of the European Parliament regarding the lifting of his immunity.