The acquisition of the Parliamentary mandate of Members of the European Parliament is the result of the voters' vote alone and cannot be made conditional on the completion of any subsequent formality, Advocate General Maciej Szpunar said in his Opinion on Tuesday 12 November (C-502/19).
Oriol Junqueras Vies, former Vice-President of the Autonomous Government of Catalonia, imprisoned since November 2017 and sentenced in mid-October to 13 years in prison and as many years loss of civic rights (see EUROPE 12348/23), was elected as a Member of the European Parliament in May, a result declared on 13 June by the Spanish Central Electoral Commission. On 14 June, the Spanish Supreme Court refused to allow him to leave prison in order to take the oath to respect the Spanish Constitution, as those elected to the European Parliament are required to do under Spanish law. By his absence, the Central Electoral Commission declared the seat of Mr Junqueras Vies vacant and suspended all prerogatives deriving from his functions.
Mr Junqueras Vies contests this decision on the ground that he would benefit from the immunity provided for in Protocol No. 7 on the privileges and immunities of the European Union.
In his Opinion, the Advocate General considers that MEPs’ Parliamentary mandate is acquired solely from the electorate and must be deemed to have been acquired when the results are officially announced by the Spanish Central Electoral Commission. He therefore considers that taking the oath to respect the Spanish Constitution is not a step in the process for election to the European Parliament in Spain. And, taking into account the 1976 Act concerning the election of the Members of the European Parliament by universal suffrage, which does not allow a Member State to suspend the mandate of a Member of Parliament or the prerogatives arising from that mandate for any reason whatsoever.
In plain language: Mr Junqueras should to be considered as an MEP eligible for immunity under Protocol No. 7.
This protocol provides that an MEP benefits from the immunity granted to national MEPs on national territory. As regards the duration of this immunity, Mr Szpunar is of the opinion that it is effective for the entire duration of the mandate, which starts, in principle, at the opening of the first session of the European Parliament, in this case in early July.
But there is no provision making the start of the mandate conditional on the MEP's actual assistance to the inaugural session of Parliament, he added. And there would be, in his view, no reason why immunity could not apply before the opening of the first session of Parliament.
Therefore, Mr Szpunar said, before the opening of Parliament's inaugural session, Member States should refrain from any measure that would hinder the steps necessary for an MEP to take up his or her duties effectively, unless he or she has obtained the waiver of immunity by Parliament.
However, Mr Szpunar considers that, since Mr Junqueras Vies was deprived of his mandate in mid-October, the Court does not have jurisdiction to answer the questions referred for a preliminary ruling submitted by the Spanish Supreme Court, because its reply would be hypothetical in nature.
The problem does not lie in the basis of Mr Junqueras Vies' detention, but in the loss of his civil rights, which leads to the permanent loss of all public office, including elective office. Thus, Mr Junqueras Vies, although elected as a Member of the European Parliament and having acquired this status without having been able to begin the effective exercise of his mandate, was tried and convicted without Parliament having had the opportunity to rule on his Parliamentary immunity.
Finally, Mr Szpunar proposes an interpretation which strengthens the powers of the Parliament, which is responsible for judging whether to waive or defend the immunity of its Members.
If the Court were to adopt the Advocate General's conclusions, the reasoning could likely be used by Carles Puigdemont and Toni Comín, two Catalan independentists residing in Belgium after the Catalan referendum, but unable to sit in Parliament.
See the conclusions: https://bit.ly/2q5N8iZ (Original version in French by Mathieu Bion)