09 Juli 2019

Empty Seats in the European Parliament: What About EU Citizenship?

The European Parliament started its new term with three empty seats. The Catalan politicians Carles Puigdemont, Antoni Comín and Oriol Junqueras got elected in the European Parliamentary elections of 26 May 2019 but the Spanish Central Electoral Commission did not include their names in the list which was notified to the European Parliament on 17 June 2019. The reason is that that they did not appear in person to swear or affirm allegiance to the Spanish Constitution, which is a formal requirement under the Spanish election legislation. The President of the EU General Court dismissed an application of Carles Puigdemont and Antoni Comín for interim measures by referring to the Spanish electoral law. Thereby, however, he completely ignored the EU citizenship dimension of the case.

Section 224, § 2 f the ‘Representation of the People Institutional Act’ provides that:

“Within five days from [the official proclamation of the election results], the elected candidates must swear or affirm allegiance to the Constitution before the Central Electoral Commission. On expiry of said term the Central Electoral Commission is to declare the vacancy of seats assigned to members of the European Parliament having failed to swear or affirm their allegiance to the Constitution, as well as the suspension of any prerogatives to which they may be entitled on account of their mandate, as long as they do not make the aforesaid oath or affirmation.”

One of the elected Catalan politicians, Oriol Junqueras, is currently in custody awaiting a verdict in the trial related to his role in the organisation of the independence referendum in October 2017 and the subsequent unilateral declaration of independence of Catalonia. The Spanish Supreme Court decided that Mr. Junqueras could not be given permission to complete the accreditation process in Madrid. The key argument used by the Supreme Court is that it may lose ‘jurisdictional control’ if he could be sworn in as a member of the European Parliament. The Court thus essentially wants to prevent that the granting of European parliamentary immunity would interfere with the pending trial at the national level. In this respect, a legal question is whether this immunity only applies after the end of the entire accreditation procedure or whether European parliamentary immunity already applies from the moment someone is elected to the European Parliament. The Spanish Supreme Court may bring this issue to the EU Court of Justice in the form of a preliminary reference.

The situation of the two other politicians, former Catalan President Carles Puigdemont and former Minister Antoni Comín, is significantly different. They are both living in self-imposed exile in Belgium and can be arrested when returning to Spain. The Spanish Central Electoral Commission nevertheless insisted that they appeared in person and rejected the option of a written statement done in front of a public notary as a valid alternative of pledging allegiance to the Spanish Constitution. Accordingly, their names were not transferred to the European Parliament, which informed the Catalan politicians that they cannot take their seats as long as their accreditation process in Spain is not completed.

A matter to be settled by the national authorities?

Carles Puigdemont and Antoni Comín brought an application for interim measures before the General Court of the EU, requesting the suspension of the European Parliament’s decisions concerning the results of the European Parliamentary elections as declared by Spain in order to enable them to take their seats in the parliament as from the start of the new session on 2 July 2019 onwards. In an order delivered on 1 July 2019, the President of the General Court dismissed the application. Based upon a literal interpretation of the secondary EU legislation concerning the election of representatives of the European Parliament, the President observed that the Parliament can only ‘take note’ of the notification made by the national authorities without any discretion for the Parliament itself to call in question the validity of the declaration made by the national authorities. Moreover, on the requirement to appear in person in order to swear allegiance to the Spanish constitution, the order simply concludes that “it is for the national courts […] to rule on the lawfulness of the national electoral provisions and procedures”. In other words, the President of the General Court echoed the reasoning of (former) European Parliament President Antonio Trajani, who said that ‘it’s Spain’s problem’ that some of the seats in the Parliament remain vacant.

What about the effective application of EU citizenship rights?

Arguably, the reluctance of the President of the General Court to engage with the substance of the matter is largely related to the specific nature of the interim procedure. Nevertheless, it is remarkable that the link between the Spanish practice and the effective application of EU citizenship rights remained completely absent in this discussion. After all, the right to stand as a candidate in elections to the European Parliament is one of the core rights connected to the status of Union citizenship, as defined in Article 20 (2) b TFEU and Article 39 of the Charter of Fundamental Rights.

It is true that in the absence of a uniform procedure in all Member States, European parliamentary elections are still essentially governed by national laws. However, as is the case for other areas falling within the competence of the Member States, there is an obligation not to exercise these competences in a way contrary to EU law. An interesting parallel can be drawn with the Delvigne case where the Court had to rule on the compatibility between (French) national legislation providing for the deprivation of the right to vote in the case of a criminal conviction. In this case, the Court clarified that Member States are bound, when exercising their national competences in the area of election procedures, by the obligation to ensure that the election of Members of the European Parliament is by direct universal suffrage and free and fair.

It seems that the Spanish requirement to swear allegiance to the national constitution affects the direct nature of the European Parliamentary elections and the effet utile of the right of every Union citizen to stand as a candidate for these elections as guaranteed under Article 39 of the Charter. What is the meaning of the right to stand as a candidate for European Parliamentary elections when national requirements prevent that elected candidates can take up their seats? In this respect, it must be borne in mind that Article 52 (2) of the Charter accepts that limitations may be imposed on the exercise of the Charter rights as long as they are provided by law and respect their essence. Moreover, ‘subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

Applied to the Spanish election legislation, it appears impossible to see how the requirement to swear allegiance to the national constitution in order to take a seat in the European Parliament satisfies the conditions of Article 52 (2) of the Charter. Members of the European Parliament are supposed to be directly elected and represent the Union citizens, not the states of their nationality. Hence, it may well be argued that this requirement undermines the essence of a fundamental right in the EU legal order. In addition, the necessity to appear in person in front of the electoral commission and the rejection of an alternative method of pledging allegiance while based in another Member State contradicts the principle of proportionality. The real objective of this strict application of the Spanish election legislation appears to prevent the elected Catalan politicians to take their seats in the European Parliament.

To be continued

In any event, the order of the President of the General Court does not make an end to the discussions. The General Court still has to rule on the substance of the case in the main proceedings. Moreover, there is a possibility of appeal against the order of the General Court before the Court of Justice. Last but not least, a legal action against the requirement to swear allegiance to the Spanish constitution is pending at the national level. Taking into account the EU law dimension of the issue, a request for a preliminary ruling from the Court of Justice to rule on the lawfulness of the national electoral provisions and procedures is to be expected. Hence, despite the politically sensitive nature of the Catalan question, which is essentially an internal matter for Spain which has to be dealt with in line with the Spanish constitution, fundamental questions of EU law – such as the effective application of EU citizenship rights – cannot be simply ignored.

SUGGESTED CITATION  van Elsuwege, Peter: Empty Seats in the European Parliament: What About EU Citizenship?, VerfBlog, 2019/7/09, https://verfassungsblog.de/empty-seats-in-the-european-parliament-what-about-eu-citizenship/, DOI: 10.17176/20190710-014321-0.


  1. Sebastián Mi 10 Jul 2019 at 12:45 - Reply

    My friend, I have lived Franco’s dictatorship and now I’m living this kind of pseudodemocracy that we currently have in Spain, and I can guarantee that Europe made a huge mistake overlooking the fascist background that has always been latent in Spain. In Italy and Germany fascism was eradicated from power, but in Spain it has continued after Franco imposed the former king Juan Carlos. Spanish institutions suffer an endemic lack of transparency and political and judicial powers have been proved to not independent. Europe should really do something about the current situation in Spain. Otherwise it’s going to become worse in the long term.

  2. unconstitutional court Mi 10 Jul 2019 at 18:31 - Reply

    Some comments found on the internet:

    1. The judgement makes sense. It’s the LAW that does NOT. MEPs should not need approval states, and they certainly should not have to give an oath to a state constitution. They are there representing EU citizens, not national interests. European democracy needs to be emancipated.

    2. Seems Spain has found a loophole to completely annihilate the concept of immunity for MEPs. As a MS, you just have to put some absurd rules into your national rules and the EuCJ will deny interim measures.

    it is clear the now very old electoral act of 1976 is problematic as it ties the hands of EP, with little power to correct abuses from potential rogue member states.

    It is a potential big problem that could destroy the european parliament in case a lot of illiberal governments surge in Europe.

  3. C.M. Mi 10 Jul 2019 at 21:19 - Reply

    Thanks for your excellent article.
    As Catalan I feel that Spain is a fascist state, that uses its tyranny against our will to be free.
    We want to live in freedom, in a republic, with democracy.
    EU is failing to its values allowing Spain to violate all the Human Rights.

  4. Michael Grange Do 11 Jul 2019 at 08:26 - Reply

    An infringement action against Spain can be brought by the Commission or one of the Member States.

  5. Xavi Do 11 Jul 2019 at 08:58 - Reply

    Yesterday I watched the „Er ist wieder da“ movie, and i asked myself what would happen in Spain if the same movie with Franco is filmed. I realiced that in Spain this movie is the real live, Franco is alive in a lot of organizations. Included ‚Franco fundation‘, that vainglory and has received fund from all diferent goverments since 1975.
    The Catalan conflict origin was (and still remain) the independence but nowadays it’s changing to show the repression of the state and the lack of democracy

  6. Peter Mo 15 Jul 2019 at 08:33 - Reply

    Interesting article; thanks.

    Swering allegiance to a national constitution of a MS by an elected MP under the electoral rules of that MS, cannot be consider a disposition against EU Law, since even if MPs do not represent their MSs of origin, they serve a Union that proclaims full respect for national constitutional identities. The mere swear of allegiance to a national constitution is in this respect a confirmation of (part of) the foundations and tenets of the Union itself.

    The proportionality principle would certainly be breached if an unreasonable requisite would be demanded from the elected MP. Vgr: the elected MP cannot appear before the Spanish Electoral Commission due to phisical or economic impossibility, and so she resorts to pledge before a notary or equivalent official. But that is far from the case at stake: Mr. Puigdemont and Mr. Comín did not appear before the Spanish Electoral Commission due to physical, economic or other legitimate impossibilities, but due to their only interest in avoiding the legitimate criminal proceedings brought against them by the judicial authorities of a EU MS. I cannot see any breach of the proportionality principle there, but a clear and manifest attempt of abuse of Law.

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