It is a remarkable judgment on democracy and parliamentary rights that the Grand Chamber of the European Court of Justice delivered on 19 December 2019, in the case of criminal proceedings against Oriol Junqueras (C-502/19; ECLI:EU:C:2019:1115). This case concerns the former vice president of the Catalan government, arrested for charges of sedition and rebellion in the wake of the failed Catalan self-determination referendum, and recently convicted by the Tribunal Supremo (the Spanish Supreme Court).

Months after Mr Junqueras had been arrested, he was elected to the European Parliament. However, the Tribunal Supremo refused his request for an extraordinary temporary release, to swear on the Constitution and attend the opening session of the European Parliament. This refusal prevented him from acquiring the status of Member of the European Parliament (MEP), as Spanish law requires any person elected to the European Parliament to swear on the Spanish Constitution. Since he could not fulfil such a formality, the Spanish electoral commission found his seat to be vacant and, hence, he was denied any right to parliamentary immunity. This situation led the Tribunal Supremo to refer preliminary questions to the European Court of Justice about the entitlement of Mr Junqueras to parliamentary immunity. Yet, the referring court sentenced Mr Junqueras to thirteen years in jail and the deprivation of his civil rights during that period, while the preliminary reference was pending before the European Court of Justice. The question before the ECJ was, in substance, to what extent does parliamentary immunity, pursuant to Article 9 of the Protocol No. 7 to the Treaties, apply, notably where the person elected did not become an MEP (a notion not defined by EU law), pursuant to national law.

In its ruling, the European Court of Justice decided that the persons elected to the European Parliament acquire the status of MEPs from the moment that official results are declared by national authorities. The Court distinguishes the status of MEPs from their term, which only begins with the opening session of the European Parliament and lasts for five years until the opening session of the next legislature. In this respect, MEPs are covered by the immunities guaranteed in Article 343 TFEU and Protocol No. 7 as a result of their acquisition of the status pursuant to Article 9 of the Protocol (see also the pedagogic Opinion of AG Szpunar in this case). The temporal scope of the immunities differs, however, from the material scope: it covers the duration of the sessions of the European Parliament, as well as the travel of the Members to and from the European Parliament. This travel immunity applies also with respect to the opening session, as a result of which the ECJ says that immunity begins from the moment that results are proclaimed and that the status of MEP is acquired.

In this regard, the Court stresses, by reference to a constitutional reading of the Treaties and based on a teleological interpretation, that immunities offer a complete and effective protection of Union institutions to guarantee their proper functioning and independence. Thus, the Court refers to the principle of representative democracy, enshrined in Articles 10 and 14 TEU, a constitutional value of the Union pursuant to Article 2 TEU, to affirm that the composition of the European Parliament should reflect faithfully and completely the choices made freely by Union citizens. Immunities also enable the constitution of the legislature. Finally, immunities contribute to the effectiveness of both the right to stand in the European elections and the principle of direct and universal suffrage, protected by Article 39 of the Charter of Fundamental Rights of the European Union.

For the European Court of Justice, Mr Junqueras became an MEP and enjoyed parliamentary immunity from the moment that official results were proclaimed by Spanish authorities. Such an immunity precludes a pretrial custody that would prevent an MEP from taking part in the opening session of the European Parliament. If the Tribunal Supremo considered it necessary to maintain the pretrial custody, it is its responsibility to request that the European Parliament waives the parliamentary immunity.

Presented in the media as an upset for the Spanish authorities and the Tribunal Supremo, this conclusion is however not corroborated by the reading of the judgment of the European Court of Justice. Although it asserts undeniably a constitutional, democratic reading of the Treaties that prevents national law from restricting the recognition of the status of Member of the European Parliament and the corresponding immunities, the European Court of Justice remains mindful of judicial dialogue… and silent in critical respects. First, it does not say clearly what should have happened to Mr Junqueras, had the national court requested the European Parliament to waive his immunity. Second, and unlike the Advocate General, it refrains from criticizing the national court for not having stayed the criminal proceedings, while the preliminary reference was pending before the Court, and for having convicted Mr Junqueras before the ECJ’s ruling. In fine, one cannot escape noting that the Tribunal Supremo, despite having infringed such fundamental rights as the right to vote and to be elected, and the right to parliamentary immunities – the basis of our European modern democracies – got its way and, to add insult to injury, deprived Mr Junqueras of his civil rights for 13 years.

Whereas what will be made by the Tribunal Supremo of this preliminary ruling is uncertain, the judgment of the European Court of Justice will have direct consequences in the other, separate case of Carlos Puigdemont, the former President of the Catalan government, and his former Health Minister Toni Comín. Both fled to Belgium, where the national courts rebuffed a European Arrest Warrant of the Tribunal Supremo, and were later elected to the European Parliament. As they did not swear on the Spanish constitution, their seats were considered to be vacant by Spanish authorities, a decision endorsed by the European Parliament. They should now be recognized as MEPs, as a result of this judgment. In this last regard, however, it is rather surprising and unusual that the European Parliament (and the Commission) sided with the Spanish authorities against the recognition of the prerogatives of its own members. Another manifestation of the EU’s shyness when it comes to protecting the Rule of Law?