- Procés.The Supreme sentenced Junqueras to 13 years for sedition with embezzlement and between nine and 12 to the rest imprisoned for the 'procés'
- Justice.The Supreme rejects the last attempt of Oriol Junqueras to curb the sentence of 'procés'
Surprise in Luxembourg . The EU attorney general maintains that "the acquisition of the parliamentary mandate of the European deputies results only from the vote of the electors and cannot be subject to the subsequent fulfillment of any formality." Therefore, and unlike Spain and the lawyers of the European Commission and Eurocamara itself, he believes that Oriol Junqueras would have the right to parliamentary immunity enjoyed by the members of the European Parliament. Although he has never collected his minutes.
In an opinion published on Tuesday, the Polish lawyer maintains that "the acquisition of the parliamentary mandate can only result from the vote of the electors and cannot be subject to the subsequent fulfillment of any formality." According to his reasoning, "the provision of the oath or promise to abide by the Spanish Constitution does not constitute a stage of the election process to the European Parliament in Spain and that this process should be considered concluded with the official proclamation of the results", an unexpected decision after the legal reports presented by the institutions or the decision of the Court itself not to apply precautionary measures last July.
Given that criterion, says Spuznar, "consequently, the status of a member of Parliament should be considered acquired only by virtue of that proclamation and from the moment the latter takes place." And therefore, the Advocate General proposes that the Court should declare that a person who has been officially proclaimed elected to the European Parliament by the competent authority of the Member State, "solely for that fact and from that moment, the status of member of Parliament , regardless of any subsequent formality that it is obliged to comply with, whether under the law of the Union or the national law of the Member State concerned. "
The opinion of the lawyer is not binding. The ruling of the CJEU will be known in the coming months, but it is usually a good indicator, since in four out of five cases the magistrates follow the legal reasoning of the high lawyers.
In any case, the lawyer warns that the publication of the Procés judgment on October 14 changes the scenario and leaves it up to Parliament to decide who has immunity and who does not. Szpunar considers that, to the extent that the ruling of October 14, 2019 entails the annulment of the Junqueras mandate, the EU Court of Justice is no longer competent to answer the questions referred by the Spanish Supreme Court, "as Your answer would be hypothetical. "
Not because he is in prison, but because of the accessory penalty of absolute disqualification to which he has been convicted. "Since Parliament's eligibility depends on national law, it is also affected by absolute disqualification," says its reasoning. "Therefore the deprivation of this eligibility must lead to the annulment of the mandate within the meaning of the 1976 Act. In this way Mr. Junqueras Vies, despite having been elected Member of the European Parliament and having acquired that condition, although without having been able to initiate the effective exercise of the mandate, has been tried and convicted criminally without the Parliament having had the opportunity to rule on the suspension of its parliamentary immunity or on the eventual maintenance of it. "
Therefore, it proposes that the Court should declare that "from the moment in which the national law of a Member State recognizes immunity to the members of the national Parliament, Article 9 of the Protocol must be interpreted as meaning that it corresponds to the Parliament European rule on the opportunity to suspend or maintain the immunity of one of its members. "
Junqueras, like Carles Puigdemont and Toni Comín won a seat after the last European elections. However, by not collecting the minutes in Madrid, he did not become a deputy. The first, because the Supreme did not allow him to go, unlike for the constitution of the Congress of Deputies. The other two, who have lived in Belgium since 2017, because they would have been arrested while crossing the border.
The Polish states in his letter that "while the electoral procedure is governed by the national law of the Member States, the statute of the Members of Parliament, as representatives of the citizens of the Union elected by direct suffrage and members of a European institution , it can only be governed by Union law, under penalty of undermining the independence of Parliament and the autonomy of the legal system of the Union as a whole. "
In a report written last April, the legal services of the European Parliament, at the request of its president Antonio Tajani, made a detailed analysis of Spanish and community legislation to try to shed light on a first-rate legal and political debate. The independentistas leaders maintain that the immunity is automatic after the closing of the polls if they have sufficient votes, without having to collect the minutes before the Central Electoral Board in Madrid. But the lawyers of the institution, supporting the thesis of the Spanish Government, completely disagree.
"In the case in question, a candidate under a national arrest warrant in Spain can present himself as a candidate for elections to the European Parliament in Spain. His presence in Madrid is required to swear the Spanish Constitution and, therefore, be included in the list communicated by the Spanish authorities to the European Parliament. If you were arrested in doing so, the Spanish judicial authorities could still give you permission to take the oath. But whether that permission is granted or not depends on the Spanish judicial authorities, "said the opinion.
However, the EU lawyer states otherwise. According to his analysis, "the mandate of a European deputy who has not effectively assumed his functions for not having fulfilled all the formalities required by national law also begins with the opening of the first session of the new elected Parliament. Consequently, from of that same moment, that deputy is protected by the parliamentary immunity established by the Protocol ".
A few months ago, the lawyers of Puigdemont and Comín filed an appeal before the EU Court of Justice requesting urgent precautionary measures to be accredited and to be able to participate in the first plenary session in Strasbourg, but the CJEU denied them. In that first position, the president of the court, in an 11-page car written in just over a weekend, argued that the recognition of the status of MEP depends on the national authorities and not the Eurocamara. And since the Central Electoral Board did not give any accreditation to either Puigdemont or Comín because neither of them went to Madrid on June 17 to the act to comply or promise the Constitution, they had no right.
Last week, Junqueras' lawyers filed an additional appeal denouncing the new president of the European Chamber, Antonio Sassoli, for not protecting his right to immunity. According to Szpunar, the mandate of a European deputy who has not effectively assumed his duties for not having fulfilled all the formalities required by national law also begins with the opening of the first session of the new elected Parliament. Consequently, as of that same moment, that deputy is protected by the parliamentary immunity established by the Protocol.
The hearing in Luxembourg took place last October, the same Monday in which the Supreme Court made public the judgment of the Procés case. There, for more than three hours, both the European Commission and the European Parliament reiterated that Oriol Junqueras has never acquired the status of MEP because there is no European electoral law, but that each country applies its own, and the Spanish is very clear. And therefore there is no immunity.
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- European Parliament
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- Oriol Junqueras
- European Comission
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- Carles Puigdemont
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