Imprisoned Catalan leader Oriol Junqueras has the right to take his seat as a Member of the European Parliament and the Spanish government cannot impede his mandate, asserts Advocate General of the CJEU. The European Court of Justice will make its final decision in the coming months. While the Opinion of the Advocate General is not binding, it is considered highly persuasive for advocates of the European Court who often follow the legal reasoning of the top lawyers.

The case

The case concerns the refusal of the Spanish Supreme Court to allow Oriol Junqueras to leave provisional detention in order to take the oath of allegiance to the Spanish Constitution which is conditional under Spanish law for taking seat as a Member of the European Parliament. As a result, he was excluded from the official list of Spanish MEPs.

Junqueras, who was elected by over a million European citizens to serve as a member of the European Parliament, has been in detention since November 2017 serving a 13-year sentence for alleged sedition and misuse of public funds for organizing a self-determination referendum for the Catalan people.

Subsequently, he brought a case before the Spanish Supreme Court regarding the denial of his rights as a European lawmaker. The case was then referred by the Spanish Supreme Court to the Court of Justice of the European Union which shall make a decision in the coming months.

The question before the court

The integral question before the European Court of Justice is that of parliamentary immunity enjoyed by elected Members of the European Parliament in accordance with Article 9 of the Protocol (No. 7) on the privileges and immunity of the European Union.

The protocol stipulates that elected Members of the European Parliament enjoy a two fold immunity from any measure of detention and legal proceedings in both the territory of their own member state and the territory of any other member state.

Therefore, with regards to Junqueras, the key question before the European Court of Justice is whether he enjoys parliamentary immunity despite having failed to complete the accreditation process conditional under Spanish law to take seat as a Member of the European Parliament.

The Opinion of the Advocate General

In an Opinion released on the 12th of November 2019, the Advocate General of the CJEU in Luxembourg has stated that ‘parliamentary mandate is acquired solely from the electorate and is not conditional on the completion of any subsequent formality’, meaning that Junqueras would be considered MEP right after the elections in May and the additional oath-taking formality was not conditional for him to take his seat.

Thus, in accordance with Protocol No. 7, Junqueras, as a European lawmaker, should have the right to parliamentary immunity from any measure of detention and legal proceedings enjoyed by the members of the European Parliament in both the territory of their member states and outside.

Szpunar added that only the European Parliament can waive the immunity enjoyed by a European lawmaker and unless it does that, Spanish authorities cannot take any measure that ‘might obstruct the necessary steps’ of the lawmaker from taking his rightful seat at the Parliament.

What this means for Catalan leader

The Opinion of the Advocate General means that Oriol Junqueras was an MEP right after the election, thereby enjoying parliamentary immunity which can only be waived by the European Parliament and not domestic authorities. The Court will release its own judgment in the coming months.

Although, the Opinion of the Advocate General is not binding on the CJEU, its importance cannot be overlooked. It is generally considered that the Advocate General is highly influencial in the decisions of the Court and his opinions are followed in about a majority of the cases. Therefore, this Opinion is an important step forward for Catalan leaders seeking to claim their seats at the EU Parliament.

If the Court decides to back the position of the advocate general, it remains unclear what this would mean for Junqueras who remains in the custody of the Spanish government. However, it will also carry important implications for two other Catalan leaders, former president Carles Puigdemont and former minister Toni Comín.

Both Puigdemont and Comín were also elected to the European Parliament and currently remain in exile in Belgium. It is likely that in case the Court’s decision supports the Advocate General’s Opinion, they will seek to take their seats at the European Parliament and claim parliamentary immunity on the basis of the decision.

The notion of parliamentary immunity in itself is not merely a privilege afforded to individual lawmakers but is a principle ensuring that the Members of the European Parliament can freely exercise their mandate without any form of political intimidation. Thus, the notion of parliamentary immunity is in itself a guarantee of the independence of the European Parliament as an institution.

In this context, blocking Catalan leaders from taking their seats is a threat to the independence and functioning of the European Parliament and therefore the CJEU must stand by the opinion of the Advocate General defending the right of Catalan MEPs to freely exercise their mandate.

This article was written by Fizza Khawar