Opinion of Advocate General Szpunar delivered on 11 April 2024

Data

Court: Court of Justice

Case date: 11 april 2024

Opinion of Advocate General

SZPUNAR

delivered on 11 April 2024⁽¹⁾

Case C‑600/22 P

Carles Puigdemont i Casamajó,

Antoni Comín i Oliveres

v

European Parliament

"(Appeal - Law governing the institutions - Members of the European Parliament - Decision refusing to allow the appellants, elected as Members of the European Parliament, to take their seats as Members and depriving them of all associated rights - Action for annulment and for compensation)"

Introduction

1. The facts giving rise to the present dispute date back to the referendum on ‘self-determination’, held in Catalonia (Spain) on 1 October 2017, and to the legal and political repercussions of that event. The Court has already had occasion to consider the consequences of those facts from the perspective of EU law, in so far as some of the persons involved in the events in question have participated successfully in elections to the European Parliament.

2. In particular, the Court has ruled, in its judgment in Junqueras Vies,⁽²⁾ on the point at which an elected candidate acquires the status of Member of the Parliament. The present appeal is largely concerned with the interpretation of that judgment and the lessons learned from it.

3. In accordance with the Court’s wishes, in this Opinion I shall focus on the first ground of appeal, which is the most important in the present case and which raises questions of a constitutional nature for EU law – those of the status of Members of the Parliament and the division of powers between the European Union and the Member States as regards the election of those Members. This is also the ground of appeal to which the parties have devoted the lion’s share of their written submissions.

Legal framework

4. Article 9 of Protocol (No 7) on the privileges and immunities of the European Union,⁽³⁾ annexed to the EU and FEU Treaties (‘the Protocol’), provides:

‘During the sessions of the European Parliament, its Members shall enjoy:

in the territory of their own State, the immunities accorded to members of their parliament;

in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.
Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.’

5. The Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976,⁽⁴⁾ as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002⁽⁵⁾ (‘the Electoral Act’), governs, at the level of EU law, elections to the Parliament. The first paragraph of Article 8 of that act provides:

‘Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.’

6. Under Article 12 of that act:

‘The European Parliament shall verify the credentials of members of the European Parliament. For this purpose it shall take note of the results declared officially by the Member States and shall rule on any disputes which may arise out of the provisions of this Act other than those arising out of the national provisions to which the Act refers.’

7. Article 13(1) of that act provides:

‘A seat shall fall vacant when the mandate of a Member of the European Parliament ends as a result of resignation, death or withdrawal of the mandate.’

8. The internal organisation of the Parliament is governed by its Rules of Procedure. Rule 3 of the rules applicable to the 9th parliamentary term (2019-2024) (‘the Rules of Procedure’) provides:

‘1.
Following general elections to the … Parliament, the President [of the Parliament] shall invite the competent authorities of the Member States to notify Parliament without delay of the names of the elected Members so that all Members may take their seats in Parliament with effect from the opening of the first sitting following the elections.
At the same time, the President [of the Parliament] shall draw the attention of those authorities to the relevant provisions of the [Electoral] Act … and invite them to take the necessary measures to avoid any incompatibility with the office of Member of the … Parliament.
2.
Members whose election has been notified to Parliament shall declare in writing, before taking their seat in Parliament, that they do not hold any office incompatible with that of Member of the … Parliament within the meaning of Article 7(1) or (2) of the [Electoral] Act … Following general elections, the declaration shall be made, where possible, no later than six days prior to Parliament’s first sitting following the elections. Until such time as Members’ credentials have been verified or a ruling has been given on any dispute, and provided that they have previously signed the abovementioned written declaration, they shall take their seat in Parliament and on its bodies and shall enjoy all the rights attaching thereto.
Where it is established from facts verifiable from sources available to the public that a Member holds an office incompatible with that of Member of the … Parliament, within the meaning of Article 7(1) or (2) of the [Electoral] Act …, Parliament, on the basis of the information provided by its President, shall establish that there is a vacancy.
3.
On the basis of a report by the committee responsible, Parliament shall verify credentials without delay and rule on the validity of the mandate of each of its newly elected Members and also on any disputes referred to it pursuant to the provisions of the [Electoral] Act …, other than those which, under that Act, fall exclusively under the national provisions to which that Act refers.
The committee’s report shall be based on the official notification by each Member State of the full results of the election, specifying the names of the candidates elected and those of any substitutes, together with their ranking in accordance with the results of the vote.
The validity of the mandate of a Member may not be confirmed unless the written declarations required under this Rule and Annex I to these Rules of Procedure have been made.
…’

The background to the dispute, the judgment under appeal, the procedure before the Court of Justice and the forms of order sought

9. By their appeal, Mr Carles Puigdemont i Casamajó and Mr Antoni Comín i Oliveres ask the Court of Justice to set aside the judgment of the General Court of the European Union of 6 July 2022, Puigdemont i Casamajó and Comín i Oliveres v Parliament (T‑388/19, ‘the judgment under appeal’ , EU:T:2022:421 ), by which the General Court dismissed as inadmissible their action for annulment of the Instruction of 29 May 2019 of the President of the Parliament⁽⁶⁾ refusing them access to the special welcome and assistance service offered to incoming Members of the European Parliament (‘the Instruction of 29 May 2019’) and of that President’s refusal to recognise their status as Members of the Parliament and to take an initiative, as a matter of urgency, to assert their immunities on the basis of Rule 8 of the Rules of Procedure, contained in a letter sent to the appellants on 27 June 2019 (‘the act of 27 June 2019’).

Background to the dispute

10. The background to the dispute is set out in paragraphs 13 to 36 of the judgment under appeal. It may be summarised as follows.

11. Mr Puigdemont i Casamajó and Mr Comín i Oliveres were President of the Generalitat de Cataluña (Generality of Catalonia, Spain) and Member of the Gobierno autonómico de Cataluña (Autonomous Government of Catalonia, Spain), respectively, at the time of the adoption of Ley 19/2017 del Parlamento de Cataluña, reguladora del referéndum de autodeterminación (Law 19/2017 of the Parliament of Catalonia regulating the referendum on self-determination) of 6 September 2017⁽⁷⁾ and of Ley 20/2017 del Parlamento de Cataluña, de transitoriedad jurídica y fundacional de la República (Law 20/2017 of the Parliament of Catalonia on legal and functional transition of the Republic) of 8 September 2017,⁽⁸⁾ and at the time of the holding, on 1 October 2017, of the referendum on self-determination provided for in the first of those two laws, the provisions of which had in the meantime been suspended by a decision of the Tribunal Constitucional (Constitutional Court, Spain).

12. Following the adoption of those laws, and following the holding of that referendum, the Ministerio fiscal (Public Prosecutor’s Office, Spain), the Abogado del Estado (State Counsel, Spain) and the Partido político VOX (Political Party VOX, Spain) initiated criminal proceedings against, inter alia, the appellants, who were accused of having committed, inter alia, the offences of ‘sedition’ and ‘misuse of public funds’. By order of 9 July 2018, the Tribunal Supremo (Supreme Court, Spain) declared that the appellants had absconded, following their departure from Spain, and stayed the criminal proceedings until such time as they were found.

13. The appellants subsequently stood as candidates and were elected in the elections to the Parliament which were held in Spain on 26 May 2019.

14. By the Instruction of 29 May 2019, the President of the Parliament instructed the Secretary-General of that institution, first, to refuse all the candidates elected in Spain access to the ‘Welcome Village’ and to the assistance provided to candidates newly elected to the Parliament (‘the special welcome service’) and, second, to suspend their accreditation until the Parliament had officially received confirmation of their election, in accordance with Article 12 of the Electoral Act.

15. On 13 June 2019, the Junta Electoral Central (Central Electoral Commission, Spain) adopted a decision in the form of a ‘declaration of the Members elected to the European Parliament in the elections held on 26 May 2019’⁽⁹⁾ (‘the declaration of 13 June 2019’). That declaration stated that the Central Electoral Commission had prepared a new statement of the votes at national level, allocated the corresponding seats to each of the candidates and issued the declaration of elected candidates, including the appellants. It also stated that the elected candidates would take an oath to respect the Spanish Constitution, as required by Article 224(2) of the Ley orgánica 5/1985 del Régimen Electoral General (Basic Law 5/1985 on the general electoral regime) of 19 June 1985,⁽¹⁰⁾ as amended (‘the Electoral Law’), on 17 June 2019.

16. By letter of 14 June 2019, the appellants requested the President of the Parliament to take note of the results of the elections of 26 May 2019 as set out in the declaration of 13 June 2019, to withdraw the Instruction of 29 May 2019 so that they might have access to the premises of the Parliament and benefit from the special welcome service and, lastly, to allow them to take their seats and to enjoy the rights associated with their status as Members of the Parliament with effect from 2 July 2019, the date of the first plenary session following the elections.

17. On 15 June 2019, the investigating judge of the Tribunal Supremo (Supreme Court) rejected the appellants’ request for the withdrawal of the national arrest warrants issued against them by the Spanish criminal courts with the aim of having them tried in the context of the criminal proceedings referred to in point 12 of this Opinion. On 20 June 2019, the Central Electoral Commission refused to allow the appellants to take the oath, as required by Article 224(2) of the Electoral Law, by means of a written declaration made before a notary in Belgium or through attorneys designated by a notarised deed drawn up in Belgium, as, in its view, that oath had to be made in person.

18. On 17 June 2019, the Central Electoral Commission notified the Parliament of the list of candidates elected in Spain (‘the communication of 17 June 2019’), which did not include the appellants’ names. On 20 June 2019, the Central Electoral Commission informed the Parliament that the appellants had not taken the oath or promised to respect the Spanish Constitution and, in accordance with Article 224(2) of the Electoral Law, it therefore declared that the seats allocated to the appellants in the Parliament were vacant and that all the prerogatives attaching to their duties were temporarily suspended until such time as they took that oath or made that promise (‘the communication of 20 June 2019’).

19. By letter of 27 June 2019 (‘the letter of 27 June 2019’), the President of the Parliament replied, inter alia, to the letter of 14 June 2019, informing the appellants, in essence, that he was not in a position to treat them as future Members of the Parliament on the ground that their names were not on the list of elected candidates officially communicated by the Spanish authorities.

20. On 28 June 2019, by an action registered as Case T‑388/19, the appellants requested that the General Court annul (i) the Instruction of 29 May 2019 and (ii) the various acts contained, in their view, in the letter of 27 June 2019, namely, first, the refusal of the President of the Parliament to take note of the results of the elections of 26 May 2019; second, the declaration of the President of the Parliament that the seats allocated to the appellants were vacant; third, the refusal of the President of the Parliament to allow them to take office, to exercise the mandate of Member of the European Parliament and to sit in Parliament from the beginning of the first session following the elections of 26 May 2019; and, fourth, the refusal of the President of the Parliament to take an initiative, as a matter of urgency, on the basis of Rule 8 of the Rules of Procedure, in order to assert their privileges and immunities.

21. On the same day, the appellants attached to their action an application for interim measures, seeking a suspension of the implementation of various decisions of the Parliament amounting to not recognising their status as Members of the Parliament. They also requested that the Parliament be directed to take all necessary measures, including the confirmation of their privileges and immunities under Article 9 of the Protocol, to enable them to sit in Parliament from the opening of the first session following the elections. By order of 1 July 2019, Puigdemont i Casamajó and Comín i Oliveres v Parliament,⁽¹¹⁾ the President of the General Court dismissed the application for interim measures.

22. By the judgment in Junqueras Vies, the Court of Justice held, in particular, that a person who had been officially declared elected to the Parliament but who had not been authorised to comply with certain requirements under national law following such a declaration and to travel to the Parliament in order to take part in its first session had to be regarded as enjoying an immunity under the second paragraph of Article 9 of the Protocol.

23. By order of 20 December 2019, Puigdemont i Casamajó and Comín i Oliveres v Parliament,⁽¹²⁾ the Vice-President of the Court of Justice set aside the order of the President of the General Court of 1 July 2019 dismissing the application for interim measures, referred the case back to it and reserved the costs.

24. At the plenary session of 13 January 2020, the Parliament decided to take note, following the judgment in Junqueras Vies, of the appellants’ election to the Parliament with effect from 2 July 2019 (‘the decision of 13 January 2020’).

25. By order of 19 March 2020, Puigdemont i Casamajó and Comín i Oliveres v Parliament,⁽¹³⁾ the President of the General Court, adjudicating on the application after the case had been referred back to the General Court, held that, in view of the decision of 13 January 2020, there was no longer any need to adjudicate on the application for interim measures, and reserved the costs.

The judgment under appeal

26. The General Court delivered the judgment under appeal on 6 July 2022.

27. The General Court held, in paragraph 70 of the judgment under appeal, that the appellants’ action concerned, first, annulment of the Instruction of 29 May 2019 and, second, annulment of the act of 27 June 2019, that is to say, the refusal of the President of the Parliament to recognise the appellants’ status as Members of that institution, contained, in essence, in the letter of 27 June 2019.

28. As regards the act of 27 June 2019, the General Court held, inter alia, that the fact that the appellants could not take office, exercise their mandate or sit in Parliament was not a result of that act, but was a result of the application of Spanish law, as reflected in the communications of 17 and 20 June 2019, in respect of which neither the President of the Parliament nor the Parliament had any discretion (paragraph 146 of the judgment under appeal). Moreover, as regards the failure to adopt measures to assert and defend the appellants’ privileges and immunities, the General Court held, in essence, that that failure could not be regarded as resulting from the act of 27 June 2019 (see, inter alia, paragraphs 157 and 166 of the judgment under appeal). The General Court therefore held that the action was inadmissible in respect of that act, on the ground that that act did not produce binding legal effects capable of affecting the appellants’ interests and was therefore not open to challenge (paragraph 167 of the judgment under appeal).

29. As regards the Instruction of 29 May 2019, the General Court held that it had not prevented the appellants from carrying out the administrative steps necessary for them to take office and was not therefore the reason why the appellants were unable to exercise their mandate from the opening of the first session of the Parliament following the elections. At the very most, it had deprived them of assistance from the Parliament in taking office (paragraphs 184 and 185 of the judgment under appeal). The General Court therefore dismissed the action in respect of the Instruction of 29 May 2019 as inadmissible, on the same grounds as those relied on in respect of the act of 27 June 2019 (paragraphs 186 and 187 of the judgment under appeal).

The procedure before the Court of Justice and forms of order sought

30. On 16 September 2022, the appellants lodged an appeal against the judgment under appeal. The Parliament and the Kingdom of Spain lodged their responses on 8 and 7 December 2022 respectively. By decision of the President of the Court, the parties were granted leave to submit a reply and a rejoinder.

31. By their appeal, the appellants claim that the Court should:

set aside the judgment under appeal;
refer the case back to the General Court or, in the alternative, annul the decisions at issue; and
order the Parliament and the Kingdom of Spain to pay the costs or, in the alternative, reserve the costs.

32. The Parliament and the Kingdom of Spain contend that the Court should:

dismiss the appeal as inadmissible or, in the alternative, as unfounded; and
order the appellants to pay the costs of the appeal proceedings.

33. The Court decided to give judgment without holding a hearing.

Analysis

34. In support of their appeal, the appellants put forward four grounds of appeal. As I have already stated and in accordance with the Court’s wishes, I shall focus my Opinion on the first ground of appeal. However, before analysing the merits of that ground of appeal, it is necessary to examine the doubts raised by the Parliament and the Kingdom of Spain as to the admissibility of the present appeal.

Admissibility of the appeal

35. The Parliament and the Kingdom of Spain dispute the admissibility of the present appeal in its entirety on the ground that, in essence, the appellants have failed to state precisely the contested points of the judgment under appeal and to substantiate their grounds of appeal to the requisite standard, that the appeal is not clear and intelligible and that the appellants are in fact seeking a re-examination of the case decided by the General Court, by reproducing only the arguments put forward before it. Moreover, the Parliament and the Kingdom of Spain dispute the admissibility of a number of specific grounds of appeal and arguments.

36. The appellants refute those complaints in their reply, submitting, in essence, that the Parliament has misread, or even distorted, their appeal.

37. It does not appear to me that the present appeal is, as a whole, bound to fail on the basis of being inadmissible. It is certainly true that it is confusing and repetitive in places. That being said, contrary to what is claimed by the Parliament and the Kingdom of Spain, the appellants identify precisely the points in the judgment under appeal which they contest, in accordance with Article 169(2) of the Rules of Procedure of the Court of Justice, the errors of law made, in their view, by the General Court and the legal arguments in support of their contentions. However, the Rules of Procedure of the Court of Justice do not require the grounds of appeal or arguments in the appeal to be presented according to a pre-established order or logic. Thus, although certain grounds of appeal or arguments in the present appeal may indeed prove to be ineffective, or even inadmissible, that is not the case, in my view, as regards the appeal as a whole.

38. I shall therefore proceed to the analysis of the merits of the first ground of appeal.

The first ground of appeal

39. The first ground of appeal concerns the refusal of the General Court to recognise as challengeable acts (i) the Instruction of 29 May 2019 and (ii) the act of 27 June 2019. It is that second part which, in my view, is of crucial importance for the outcome of the present case. I shall therefore begin my analysis with that second part.

The act of 27 June 2019

– Preliminary remarks

40. As a reminder, pursuant to paragraph 70 of the judgment under appeal, the act of 27 June 2019 consists of a refusal by the President of the Parliament to recognise the appellants’ status as Members of the Parliament, contained in the letter of 27 June 2019.

41. That refusal resulted from the fact that the appellants, although declared elected to the Parliament by the declaration of 13 June 2019, had not been included in the communication of 17 June 2019, as they had not taken the oath provided for in Article 224(2) of the Electoral Law. As I have already stated in point 28 of this Opinion, the General Court considered that the fact that the appellants could not exercise their mandates resulted not from the act of 27 June 2019, but from the application of Spanish law, which the Parliament could not challenge,⁽¹⁴⁾ with the result that that act did not produce binding legal effects capable of affecting the appellants’ interests and therefore did not constitute a challengeable act.⁽¹⁵⁾

42. As the Parliament did in its response, I shall analyse the appellants’ arguments not in the order in which they were presented in the appeal, but in the order of the General Court’s reasoning in the judgment under appeal. In so far as the refusal of the President of the Parliament to take the initiative to assert the appellants’ immunity, also covered by the act of 27 June 2019, forms the subject matter of the third and fourth grounds of appeal, the reasoning below and my proposals do not concern that refusal and do not prejudge the merits of those grounds of appeal.

– The content of the letter of 27 June 2019

43. The appellants complain that the General Court⁽¹⁶⁾ distorted the facts or erred in the legal characterisation of those facts in paragraphs 81 to 84 of the judgment under appeal, in which the General Court analysed the content of the letter from the President of the Parliament to the appellants, the letter which embodies the act of 27 June 2019.

44. It does not appear to me that any distortion of the facts by the General Court can be established here, since those facts are summarised in the wording of the letter of 27 June 2019. However, contrary to the Parliament’s assertions, I also do not consider that those paragraphs of the judgment under appeal can be analysed solely as a finding of fact concerning the wording of that letter. In paragraph 76 of the judgment under appeal, the General Court stated that, in the light of the case-law, in order to determine whether an action for annulment can be brought against an act, it is necessary to examine that act on the basis of objective criteria, ‘such as the content of that act’. Read in that context, the findings of the General Court in paragraphs 81 to 84 of the judgment under appeal must therefore be understood not as being merely factual, but as making a legal classification of the act of 27 June 2019 in the light of the content of the letter in which that act is embodied.

45. The appellants are, in my view, justified in claiming that that classification is wrong. In stating that, by the letter of 27 June 2019, the President of the Parliament merely took note of the appellants’ legal situation ‘which had been officially notified to him by the Spanish authorities by way of the communications of 17 and 20 June 2019’, the General Court failed to take into account the true significance of that letter, which is crucial from the perspective of its assessment as a challengeable act, namely that, by that letter, the President of the Parliament expressed his decision to take note not of the results of the elections contained in the declaration of 13 June 2019, but only of the communications of 17 and 20 June 2019. That decision is confirmed by the wording of the letter of 27 June 2019, according to which the President of the Parliament was not in a position to treat the appellants as future Members of that institution ‘until further notice by the Spanish authorities’.

46. Thus, the General Court erred in law in classifying the letter of 27 June 2019, in the light of its content, as neither a decision nor definitive, whereas the final decision of the President of the Parliament to take into account only the communications from the Spanish authorities concerning the persons elected to the Parliament and to disregard the declaration of 13 June 2019 clearly followed from that letter. That error is, in my view, the ‘original sin’ of the judgment under appeal and affects the remainder of the General Court’s reasoning as regards the analysis of whether the act of 27 June 2019 may be challenged. The errors of law revealed below simply confirm that original error.

– The interpretation of Article 12 of the Electoral Act

47. The appellants then complain, in detail,⁽¹⁷⁾ that the General Court erred in law in its interpretation of Article 12 of the Electoral Act. In my view, that complaint is well founded.

48. First of all, in paragraphs 97 to 114 of the judgment under appeal, the General Court set out its interpretation of Article 12 of the Electoral Act, read in conjunction with Rule 3 of the Rules of Procedure and in the light of the case-law of the Court of Justice, in particular the judgment in Italy and Donnici v Parliament.⁽¹⁸⁾ On the basis of those considerations, the General Court reached the conclusion that, ‘in order to verify the credentials of its Members, the Parliament must rely on the list of elected candidates officially communicated by the national authorities, which, in theory, is established in the light of the officially declared results and after any objections based on the application of national law have been dealt with by those authorities’.⁽¹⁹⁾

49. Next, in paragraphs 116 to 119 of the judgment under appeal, the General Court applied that interpretation of the abovementioned provisions to the present case, reaching the conclusion that the communications of 17 and 20 June 2019 reflected the official results of the elections ‘as established … after any disputes raised on the basis of national law had been dealt with’,⁽²⁰⁾ with the result that the President of the Parliament did not have the power to review the validity of the exclusion of certain candidates, including the appellants, from that list and – it must be understood – could only take note of it. Thus, the General Court treated the appellants’ failure to comply with the obligation to take the oath laid down in Article 224(2) of the Electoral Law as a dispute within the meaning of Article 12 of the Electoral Act. That assimilation clearly follows from paragraphs 107 and 108 of the judgment under appeal and was expressly confirmed in paragraph 129 of that judgment.⁽²¹⁾ In my view, it constitutes an error in the interpretation of Article 12 of the Electoral Act which is capable of calling into question the General Court’s entire reasoning in respect of the act of 27 June 2019.

50. It seems to me that the defect in the General Court’s reasoning stems from its misinterpretation of the judgment in Junqueras Vies in paragraphs 85 and 86 of the judgment under appeal. According to the General Court, in that judgment the Court of Justice drew a distinction between the status of Member of the Parliament and the exercise of the mandate attaching to that status. Thus, while acknowledging in paragraph 90 of the judgment under appeal that the appellants had acquired the status of Members of the Parliament as from the declaration of 13 June 2019, the General Court was able to hold, in paragraphs 107 and 108 of that judgment, that the failure to comply with an obligation such as that laid down in Article 224(2) of the Electoral Law could prevent a person who has acquired that status from effectively taking office,⁽²²⁾ and thus reach the conclusion, in paragraph 118 of that judgment, that the exclusion of such a person from the list of elected Members could be justified as ‘disputes raised on the basis of national law [being] dealt with’.

51. Nonetheless, although, in the judgment in Junqueras Vies, the Court of Justice drew a distinction between the status of Member of the European Parliament and the mandate attaching to that status, it was only temporally and solely in order to distinguish the respective periods of application of parliamentary immunities under the first and second paragraphs of Article 9 of the Protocol, as is clear from paragraphs 77 to 81 of that judgment. However, there is nothing in that judgment to justify the conclusion that the Court accepted that a person who has acquired the status of Member of the Parliament could be deprived of the possibility of exercising his or her mandate without first losing that status. On the contrary, in paragraph 65 of the judgment in Junqueras Vies, the Court was careful to state that ‘the term of office of the Members of [the Parliament] constitutes the main attribute of that status’.

52. Admittedly, the judgment in Junqueras Vies focuses on parliamentary immunities, since they were the subject of the questions referred for a preliminary ruling in the case which gave rise to that judgment. However, all of the reasoning that led the Court to the solution adopted in that judgment focuses on the concept of ‘Member of the … Parliament’.⁽²³⁾ It was precisely that status which the Spanish authorities sought to deny the applicant in the main proceedings in the case which gave rise to that judgment and which the Court held that he had acquired at the time of and solely as a result of the official declaration of the election results.⁽²⁴⁾ Moreover, in paragraph 70 of the judgment in Junqueras Vies, the Court expressly held that, ‘by “tak[ing] note” of the election results declared officially by the Member States, the … Parliament necessarily recognises that the persons who have been officially declared elected have, as a result of this, become Members of that institution, which is why it must exercise its competence as regards those Members by verifying their credentials’.

53. Thus, to hold, as the General Court did in the judgment under appeal, not only in the paragraphs mentioned above but also in paragraph 144 of that judgment, that the status of Member of the Parliament may be distinguished from the exercise of the mandate attaching to that status, with the result that a person may be prevented from exercising that mandate while retaining that status, is manifestly at odds with both the logic and the wording of the judgment in Junqueras Vies. To accept such a solution would deprive that judgment of any practical effect, since it would leave the Member States free to decide who, among the persons elected, may actually exercise the mandate, which is what that judgment was specifically intended to prevent.

54. The misinterpretation of the judgment in Junqueras Vies led the General Court, in paragraph 118 of the judgment under appeal, to make an error of law in the interpretation of the Electoral Act, in particular Article 12 thereof.

55. It follows from that article, as interpreted by the Court of Justice, in particular in the judgment in Donnici, that the Parliament must take note of the declaration, by the Member State concerned, of the result of the elections, as all legal issues pertaining to that declaration, including any disputes other than those arising out of the Electoral Act itself, are settled at national level.⁽²⁵⁾

56. As is clear from the judgment in Junqueras Vies, the official declaration of results by the Member States, in accordance with Article 12 of the Electoral Act and the judgment in Donnici, and the status of Members of the Parliament are closely linked, in that the persons who are declared elected acquire that status at the time of and solely as a result of that declaration.⁽²⁶⁾ It follows that the ‘legal issues pertaining to that declaration’, mentioned in paragraph 55 of the judgment in Donnici, and ‘any disputes which may arise’, within the meaning of Article 12 of the Electoral Act, are the same as those connected with the status of the person concerned as a Member of the Parliament.

57. Those legal issues and disputes may relate, inter alia, first, to the electoral procedure, governed under Article 8 of the Electoral Act by the national provisions of the Member States,⁽²⁷⁾ second, to situations in which the mandate ends, listed in Article 13(1) of that act and, third and last, to incompatibilities established by national law on the basis of Article 7(3) of that act. Those are precisely the three places where the Electoral Act refers to the national provisions mentioned in Article 12 in fine of that act. The resolution of legal issues or disputes may result in the person concerned not acquiring or losing the status of Member of the Parliament and, where applicable, the seat being vacant.

58. By contrast, the situation in which a Member State does not notify the Parliament of the name of a person who has nevertheless been declared elected, without withdrawing that person’s mandate or otherwise calling into question the declaration of his or her election, cannot be treated in the same way as such a legal issue relating to the declaration of election results or to a dispute within the meaning of Article 12 of the Electoral Act. That provision, as interpreted by the Court, therefore does not require the Parliament to take note of such a notification, without any assessment of its merits, in particular where that notification does not faithfully reflect the official declaration of the election results.

59. As the General Court found in paragraph 90 of the judgment under appeal, the parties agree that the appellants acquired the status of Members of the Parliament as from the declaration of 13 June 2019 and, in accordance with what the General Court held in paragraphs 108 and 152 of that judgment, the Spanish authorities did not declare that their mandates had been withdrawn, but merely temporarily suspended their prerogatives.

60. The General Court’s task was therefore not to resolve a problem of the division of powers between the European Union and the Member States, since that division clearly follows from the Electoral Act, as interpreted by the Court of Justice, but rather to draw conclusions from that division. The appellants are right to complain that the General Court erred in law in its interpretation of Article 12 of the Electoral Act by holding, in paragraph 118 of the judgment under appeal, that the communications of 17 and 20 June 2019 reflected the official results of the elections as established after the disputes raised on the basis of national law had been dealt with, with the result that the President of the Parliament did not have the power to review their validity. I am not convinced by the Parliament’s response to that complaint, which merely supports the erroneous interpretation adopted by the General Court.⁽²⁸⁾

61. The General Court’s finding, in paragraph 118 of the judgment under appeal, that the communications of 17 and 20 June 2019 reflected the results of the elections in accordance with Article 12 of the Electoral Act, with the result that the Parliament could only take note of them, forms the centrepiece of the General Court’s reasoning. The error in the interpretation of that article is therefore a decisive factor in the solution adopted in the judgment under appeal in respect of the act of 27 June 2019. In particular, it leads directly to the conclusions contained in paragraphs 146 and 153 of that judgment, according to which the various consequences for the appellants of the refusal to recognise their status as Members of the Parliament did not stem from the act of 27 June 2019, but from the application of Spanish law, reflected in the communications of 17 and 20 June 2019. That error of law would therefore in itself be sufficient to set aside that part of the judgment.

– The impact of the decision of 13 January 2020

62. The appellants also challenge paragraphs 120 to 123 of the judgment under appeal, by which the General Court rejected their line of argument claiming that, by the decision of 13 January 2020, the Parliament authorised the appellants to sit in Parliament, despite the absence of any official notification by the Spanish authorities of their election, proving that the act of 27 June 2019 had the nature of a decision.⁽²⁹⁾

63. It is true, as the Parliament maintains in its response, that the act of 27 June 2019 must be assessed as a decision and according to objective criteria.

64. That said, it seems contradictory to state, on the one hand, that the Parliament was bound, without any discretion, by the communications of 17 and 20 June 2019 and, on the other, that it ‘decided to authorise’⁽³⁰⁾ the appellants to take office by the decision of 13 January 2020. Logically, if the decision of 13 January 2020 had the nature of a decision, the act of 27 June 2019 did so too, unless it is found that the first of those acts was unlawful, which the General Court did not even suggest. Thus, contrary to what the General Court stated in paragraph 121 of the judgment under appeal, the Parliament’s adoption of the decision of 13 January 2020 calls into question some of the findings of the General Court, namely those set out in paragraphs 82 to 84, 108 and, in particular, 118 of that judgment. By failing to take into account the consequences which flow logically from the decision of 13 January 2020 for the purposes of assessing the legal nature of the act of 27 June 2019, the General Court at least vitiated the reasoning of the judgment under appeal.

65. Moreover, it is common ground – and the General Court implicitly stated so in paragraph 121 of the judgment under appeal – that the decision of 13 January 2020 was taken as a result of the judgment in Junqueras Vies. In so far as that judgment provides an interpretation of EU law ex tunc, its effects should also have been taken into account for the purposes of assessing the legal nature of the act of 27 June 2019, as the appellants rightly submit. Their legal situation had not changed between the adoption of that act and the adoption of the decision of 13 January 2020.

– The implications of Article 224(2) of the Electoral Law

66. The General Court is also alleged to have made an error of reasoning⁽³¹⁾ in relation to paragraphs 128 to 131 of the judgment under appeal, by which it responded to the appellants’ arguments that the Kingdom of Spain did not have the power to adopt rules such as Article 224(2) of the Electoral Law, or in other words that that national provision was unlawful in the light of EU law. The General Court took the view that, in the present proceedings, neither did the Parliament have the power, nor did the General Court itself have the jurisdiction, to call into question or review that national provision.

67. In the light, however, of the arguments put forward by the appellants, the issue was not so much the legality of the national provision at issue per se, but the consequences which the Kingdom of Spain and the Parliament attach to the failure to comply with the obligation laid down by that provision. As regards those consequences, the General Court took into account, in paragraph 152 of the judgment under appeal, the Kingdom of Spain’s explanation that the appellants’ mandates were only ‘suspended’ until they took the oath or made the promise laid down in Article 224(2) of the Electoral Law, in accordance with the communication of 20 June 2019.

68. However, although Article 13 of the Electoral Act lists several events which result in the mandate of a Member of the Parliament ending, some of which may arise from the application of the national law of the Member States, no provision of that act allows a Member State to suspend the exercise of such a mandate temporarily, since any attempt to do so would be manifestly contrary to EU law. Thus, since the Kingdom of Spain did not have the power to suspend, by the communication of 20 June 2019, the appellants’ exercise of their mandates, they are therefore justified in claiming that it was indeed the President of the Parliament who gave legal effect to that communication by the act of 27 June 2019.

– Conclusion regarding the act of 27 June 2019

69. In paragraphs 167 and 168 of the judgment under appeal, the General Court reached the conclusion that the act of 27 June 2019 does not produce binding legal effects capable of affecting the appellants’ interests and that, consequently, the action directed against that act must be dismissed as inadmissible.

70. In my view, the appellants are right to submit that the General Court reached that conclusion following reasoning which, as I have pointed out, was vitiated by a number of errors, namely the incorrect classification of the content of the letter of 27 June 2019 in paragraphs 81 to 84 of the judgment under appeal, the misapplication of the judgment in Junqueras Vies in paragraphs 85, 86 and 144 of that judgment, the error of law in the interpretation of Article 12 of the Electoral Act in paragraph 118 of that judgment, the inconsistency of the reasoning concerning the impact of the decision of 13 January 2020 in paragraphs 116 to 123 of that judgment and, last, the failure to take into account the unlawfulness of the suspension of the appellants’ mandates in paragraphs 128 to 131 of the judgment under appeal.

71. In fact, by the act of 27 June 2019, the President of the Parliament, faced, on the one hand, with the declaration of 13 June 2019, of which he could not have been unaware, since that declaration was public, and, on the other hand, with the communications of 17 and 20 June 2019, decided to act on those two communications by disregarding that declaration and by refusing to recognise the appellants’ status as Members of that institution, a decision which was subsequently amended by the decision of 13 January 2020.

72. By refusing to recognise that the act of 27 June 2019 was open to challenge, the General Court therefore infringed Article 263 TFEU. Consequently, the first ground of appeal must be upheld and the judgment under appeal set aside in so far as it concerns that act.

The Instruction of 29 May 2019

73. As a reminder, by the Instruction of 29 May 2019, the President of the Parliament instructed the Parliament’s administrative services to refuse the Members of the Parliament elected in Spain access to the special welcome service intended to simplify the administrative steps necessary for them to take office, until the official notification of their election by the Spanish authorities.

74. In paragraphs 169 to 187 of the judgment under appeal, the General Court analysed the pleas raised by the appellants in support of their action for annulment of the Instruction of 29 May 2019. At the end of that analysis, it reached the conclusion that that instruction had not produced binding legal effects capable of affecting the appellants’ interests, with the result that the action against it was inadmissible.

75. The appellants dispute that conclusion,⁽³²⁾ arguing principally that the Instruction of 29 May 2019 and the act of 27 June 2019 are indissociable, in particular in the light of their argument that the letter of 27 June 2019 merely reflected a decision that had been taken much earlier.

76. I am not persuaded by those arguments. It is true that the General Court, faithful to its analysis of the act of 27 June 2019, attributed the adverse consequences for the appellants of the refusal contained in the Instruction of 29 May 2019 not to that instruction, but to the application of Spanish law. Thus, in paragraph 185 of the judgment under appeal, it reached the conclusion that, even if that instruction had produced legal effects vis-à-vis the appellants, that was no longer the case as from the communication of 17 June 2019. That conclusion is just as erroneous as the part of the judgment under appeal devoted to the analysis of the act of 27 June 2019.

77. The fact remains that, first, the appellants’ arguments are not such as to call into question the General Court’s finding that the special welcome service concerned by the Instruction of 29 May 2019 was not indispensable in order to complete the formalities necessary for Members of the Parliament to take office, but was merely a means of providing them with technical assistance. The denial of such assistance cannot have a lasting effect on the legal position of the persons concerned.

78. Second, it seems to me that the fact that the appellants were unable to complete the necessary steps to take office stems not from the Instruction of 29 May 2019 but from the act of 27 June 2019. Moreover, the appellants themselves implicitly confirm this when they claim⁽³³⁾ that they were unable to complete those steps until the decision of 13 January 2020, which annulled, at least in part, the legal effects of that act.

79. I am therefore of the view that the first ground of appeal, in so far as it relates to the General Court’s findings in relation to the Instruction of 29 May 2019, must be rejected as unfounded.

Conclusion on the first ground of appeal

80. In the light of the arguments I have set out above, I propose that the first ground of appeal be upheld, the judgment under appeal set aside in so far as it relates to the act of 27 June 2019 and the remainder of that ground of appeal be rejected as unfounded.

The decision after annulment

81. Under Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court may itself give final judgment in the matter, where the state of the proceedings so permits. That is what the appellants claim in the alternative.

82. Thus, if the Court were to follow my proposal to uphold the first ground of appeal and to set aside the judgment under appeal in so far as it concerns the act of 27 June 2019, I consider that the state of the proceedings permits final judgment to be given in respect of that act. The arguments concerning whether that act may be challenged and those concerning its legality overlap, as evidenced by the Kingdom of Spain’s response, which is in fact largely devoted to defending the merits of that act. Moreover, no findings of fact, other than those already made in the judgment under appeal, appear to me to be essential to the resolution of the dispute. I therefore propose that the Court should itself rule on the application for annulment of the act of 27 June 2019 submitted by the appellants at first instance.

The appellants’ interest in bringing proceedings

83. Before analysing that application, it must be determined whether the appellants maintain an interest in bringing proceedings in that regard, in view of the fact that, by the decision of 13 January 2020, the Parliament in fact revoked the refusal to recognise their status as Members of that institution, thereby eliminating many of the legal effects of the act of 27 June 2019. According to the Court’s settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Any fact which relates to the admissibility of the action for annulment brought before the General Court is likely to constitute a question of public policy which the Court of Justice, hearing an appeal, is required to raise of its own motion.⁽³⁴⁾ The Court of Justice must therefore examine of its own motion whether the appellants have an interest in having the act of 27 June 2019 annulled, despite the adoption of the decision of 13 January 2020.

84. I consider that to be the case. As the General Court stated in paragraph 122 of the judgment under appeal, the Parliament explained before the General Court that the decision of 13 January 2020 had been taken ‘in view of the legal uncertainty regarding the applicants’ status following the judgment [in Junqueras Vies] and the order [in Puigdemont i Casamajó and Comín i Oliveres v Parliament⁽³⁵⁾]’. That decision consists of provisionally authorising the appellants to exercise their mandates, on the basis of the first subparagraph in fine of Rule 3(2) of the Rules of Procedure, without, however, verifying their credentials, pending the official notification of their election by the national authorities in accordance with the first sentence of Rule 3(2) of the Rules of Procedure.

85. Admittedly, the Parliament’s decision not to verify the appellants’ credentials and the validity of Rule 3(2) of the Rules of Procedure, as interpreted by the Parliament, in the light of the Electoral Act, are not the subject of the present dispute. However, the fact remains that the annulment of the act of 27 June 2019 would make it possible to clarify the appellants’ legal position and would pave the way for the Parliament to adopt a final, rather than a provisional, decision in their regard, based on a correct interpretation of the relevant rules of law. Thus, in my view, the appellants retain an interest in the annulment of that act.

The validity of the act of 27 June 2019

86. By the act of 27 June 2019, the President of the Parliament refused to recognise the appellants’ status as Members of that institution, thereby acting on the communications of 17 and 20 June 2019. In paragraph 96 of the judgment under appeal, the General Court defined the legal question before it as being whether the President of the Parliament had the power to call into question the communication of 17 June 2019, which did not mention the appellants’ names, even though their names featured in the declaration of 13 June 2019. The appellants note, in contrast,⁽³⁶⁾ and rightly in my view, that the question should have been formulated the other way round and should have asked whether the President of the Parliament had the power to call into question that declaration, on the basis of the communications in question.

87. In the first place, according to Article 12 of the Electoral Act, for the purposes of verifying the credentials of its members, the Parliament ‘shall take note of the [election] results declared officially by the Member States’. That provision goes on to state that the Parliament is to rule on disputes which arise out of the Electoral Act, other than those arising out of national provisions. In the light of the Court of Justice’s interpretation of that provision in the judgment in Donnici, that wording indicates that the Parliament has a complete lack of discretion, and therefore the declaration of results by a Member State constitutes a pre-existing legal situation for it.⁽³⁷⁾

88. In accordance with my analysis in points 55 to 61 of this Opinion, the failure to comply with the obligation laid down in Article 224(2) of the Electoral Law cannot be treated in the same way as a dispute arising out of national provisions, within the meaning of Article 12 of the Electoral Act, or as a legal issue pertaining to the declaration of their election, within the meaning of paragraph 55 of the judgment in Donnici, since it does not result in the loss of their status as Members of the Parliament.

89. Thus, it cannot be considered that the communications of 17 and 20 June 2019 were drawn up ‘in the light of the officially declared results’, as the General Court stated in paragraph 114 of the judgment under appeal, since they did not reflect faithfully and completely those results. The official declaration of the results was the declaration of 13 June 2019, as the Court of Justice expressly confirmed in the judgment in Junqueras Vies,⁽³⁸⁾ and it was by that declaration that the Parliament was bound, without being able to call it into question, just as it was bound by the declaration of the Italian authorities of 29 March 2007 in the case giving rise to the judgment in Donnici.⁽³⁹⁾

90. That conclusion is not called into question, contrary to the Kingdom of Spain’s assertion, by Article 8 of the Electoral Act, which provides that the electoral procedure is to be governed in each Member State by its national provisions.

91. Members of the Parliament are not representatives of the Member States, or even of the peoples of those Member States, but, pursuant to Article 14(2) TEU, representatives of the EU citizens elected by universal suffrage. In the absence of a uniform electoral procedure, which is provided for in Article 223 TFEU however, the electoral procedure is governed, in the alternative and subject to the harmonisation brought about by the Electoral Act, by the national law of the Member States which organise elections to the Parliament on their own territories. That delegation gives the Member States wide-ranging powers which go beyond the electoral procedure itself, in particular as regards the right to vote and to stand as a candidate or even grounds of incompatibility.

92. The electoral procedure, governed by national provisions, logically leads to the official declaration of the results. That is what the Court held in the judgment in Junqueras Vies,⁽⁴⁰⁾ stating that, ‘as EU law currently stands, the Member States remain competent, in principle, to regulate the electoral procedure and, following that procedure, to declare officially the election results’. The results thus declared may be amended ex post only following either the invalidation of the election of one or more persons, or one of the events resulting in the loss of the status of Member of the Parliament listed in Article 13(1) of the Electoral Act.

93. By contrast, a Member State cannot undermine the effectiveness of acquiring the status of Member of the Parliament solely on account of the declaration of the election results, as follows from the judgment in Junqueras Vies,⁽⁴¹⁾ by extending the concept of ‘electoral procedure’ to any rule of its national law, by which it seeks to prevent a person who has been declared elected from exercising his or her mandate; that term of office being, according to that judgment,⁽⁴²⁾ the main attribute of that status. Such a possibility would run counter not only to Articles 8, 12 and 13 of the Electoral Act, as interpreted in the judgments in Donnici and Junqueras Vies, but also to the principle of universal suffrage enshrined in Article 14 TEU, under which the composition of the Parliament must reflect faithfully and completely the free expression of choices made by the EU citizens as regards the persons by whom they wish to be represented.⁽⁴³⁾

94. Moreover, as I have already had occasion to point out, the obligation laid down in Article 224(2) of the Electoral Law is not an element of the electoral procedure under Spanish law itself.⁽⁴⁴⁾ The opposite cannot therefore be maintained as regards the interpretation of Article 8 of the Electoral Act.

95. Nor is the conclusion set out in point 89 of this Opinion called into question by the wording of Rule 3(1) and (3) of the Rules of Procedure, which provides that, following elections, the President of the Parliament is to invite the competent authorities of the Member States to notify the names of the elected Members and that the Parliament is to verify the credentials and rule on the validity of the mandates of its Members on the basis of the communication by the Member States of the election results.

96. The Rules of Procedure, as rules of internal organisation, are hierarchically subject to legislative measures such as the Electoral Act and cannot derogate from them.⁽⁴⁵⁾ Thus, Rule 3(1) and (3) of the Rules of Procedure cannot be interpreted as precluding the Parliament from taking note of the official declaration of the election results, in accordance with Article 12 of the Electoral Act, on the pretext that the competent authorities of a Member State have not notified those results. Such an interpretation would call into question the validity of the abovementioned provisions of the Rules of Procedure in the light of that act.

97. In the second place, by following up on the communication of 20 June 2019 by the act of 27 June 2019, the President of the Parliament gave effect to the suspension of the appellants’ prerogatives deriving from their status as Members of the Parliament, ordered by the Central Electoral Commission following their failure to comply with the obligation laid down in Article 224(2) of the Electoral Law.

98. However, neither Article 13 of the Electoral Act nor any other provision of EU law authorises a Member State to suspend the prerogatives of Members of the Parliament. That suspension was therefore unlawful and vitiated the act of 27 June 2019 by an additional element of unlawfulness.

99. By adopting the act of 27 June 2019, the President of the Parliament therefore called into question the officially declared election results and gave effect to the suspension of the appellants’ prerogatives, in breach of Articles 12 and 13 of the Electoral Act. In my opinion, that act must therefore be declared unlawful and be annulled.

Costs

100. Since this Opinion is limited to an analysis of the first ground of appeal, I shall not make any proposal as to costs, since the response in that regard depends on the outcome of the other grounds of appeal, in accordance with Article 138 of the Rules of Procedure of the Court of Justice.

Conclusion

101. In the light of all the foregoing considerations, I propose that the Court should:

set aside the judgment of the General Court of the European Union of 6 July 2022, Puigdemont i Casamajó and Comín i Oliveres v Parliament (T‑388/19, EU:T:2022:421 ), in so far as it concerns the refusal by the President of the European Parliament to recognise the status of Mr Carles Puigdemont i Casamajó and Mr Antoni Comín i Oliveres as Members of the Parliament, contained in the letter sent to them on 27 June 2019;
annul the refusal in question; and
reject the first ground of appeal as to the remainder.