Opinion of Advocate General Szpunar delivered on 11 April 2024

– 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.