The Junqueras Saga Continues
A New Challenge for the EU legal order
Just before the Christmas break, the Grand Chamber of the European Court of Justice (ECJ) ruled that elected MEPs enjoy the concomitant immunities offered under EU law from the moment the election results are officially declared. This implies that Spain unlawfully prevented Mr. Oriol Junqueras from travelling to Strasbourg in order to take part in the inaugural session of the European Parliament. As argued in a previous blogpost, this ruling is of fundamental significance for the understanding of representative democracy in the EU legal order. Whereas the European Parliamentary elections are organised at the national level, Member States cannot prevent that elected candidates take up their seats. The immunity granted to Members of European Parliament (MEPs) applies from the time of the declaration of the election results and can only be lifted after a decision of the European Parliament.
Notwithstanding this clear message from the ECJ, the Spanish Supreme Court decided that Junqueras will not be released from prison. The main argument is that the preliminary ruling only concerned the situation when Mr. Junqueras was held in provisional detention but that, in the meantime, the situation significantly changed since he has been effectively convicted in October 2019 to a 13-year term of imprisonment and a disqualification from holding any public office or exercising any public function for the same period. In view of the Spanish Supreme Court, respect for this sentence necessarily implies that Junqueras cannot serve as an MEP.
Arguably, this interpretation ignores the text and spirit of the ECJ ruling of December 2019. It is true that the ECJ did not explicitly rule on the implications of Junqueras’ final conviction, since this went beyond the scope of the preliminary questions in that particular case. Nevertheless, at the end of its preliminary judgment, in paragraph 93, the ECJ observed that:
It is for the referring court to assess the effects to be attached to the immunities enjoyed by Mr Junqueras Vies in possible other proceedings […] in respect for Union law and, in particular, the principle of loyal cooperation referred to in the first subparagraph of Article 4 (3) TEU. In this context, it is to take into account, in particular, the elements recalled in points 64, 65, 76 and 82 to 86 of this judgment.
The latter paragraphs stress the direct nature of European Parliamentary elections and the objectives of European Parliamentary immunity. It seems that the Spanish Supreme Court did not really take this into account in its decision of 9 January 2020. Moreover, the final result is very paradoxical in the sense that the violation of Mr. Junqueras’ rights under EU law at the time when he was in temporary custody prevents him from relying on EU law at a later stage. If he would have been granted permission to travel to Strasbourg in July 2019, a right which he had under EU law as observed by the ECJ in its December 2019 decision, he would currently not be in prison. This is very obvious if his situation is compared to that of Carles Puigdemont and Toni Comin, the Catalan politicians residing in Belgium. For them, the ECJ judgment of December 2019 implies that they can effectively take their seats in the European Parliament from 13 January 2020 onwards. Of course, their immunity can still be waived but this is subject to a decision of the European Parliament. In this respect, it is noteworthy that the Spanish Supreme Court already issued such a formal request.
What next?
The contradiction between the logic of the ECJ’s judgment of December 2019 and the decision of the Spanish Supreme Court of 8 January 2020 forms a new challenge for the EU legal order, in the sense that it puts the relationship between EU law and Spanish national law under strain. In principle, this is not entirely new. Also in the past, highest courts of other Member States not always unequivocally followed the case law of the ECJ. However, the political sensitivity of the Catalan question and the broader contestation of the primacy of EU law in Member States such as Poland and Hungary raise the stakes of this controversy. Respecting the binding nature of preliminary rulings of the ECJ in a spirit of loyal cooperation is of crucial importance for the effective functioning of the EU legal order.
The question is, of course, how the EU institutions will respond to the decision of the Spanish Supreme Court. So far, the European Commission only announced that it will ‘study the legal situation’. One option could be to contemplate an infringement procedure, based upon the argument that the Spanish Supreme Court violated its duties under Art. 267, para. 3 TFEU along the lines of its reasoning in Case C-416/17. In that case, the Commission successfully argued that the French Conseil d’état should have made a preliminary reference to the ECJ in order to clarify the consequences of its previous case law. Arguably, the Spanish Supreme Court should also have consulted the ECJ in order to clarify the implications of the December 2019 decision for the new situation of Mr. Junqueras. Whether or not the Commission will take this road remains to be seen. For the time being, it only stressed that Member States have to respect the binding nature of preliminary rulings without providing any additional information.
The European Parliament, for its part, seems to accept the outcome of the Spanish Supreme Court’s decision as a matter of fact. Its President, Davide Sassoli, already announced that the European Parliamentary mandate of Oriol Junqueras terminated as a result of the decision of the Spanish Supreme Court. Whereas this decision is based upon the Parliament’s obligation to respect the outcome of national judicial procedures, it remains somewhat contradictory to the logic of the EU’s principle of representative democracy as outlined in the ECJ’s preliminary ruling of December 2019. Of course, simply ignoring this observation is the easiest option in order to avoid an open conflict between the requirements of EU law and Spanish national law. However, the question is whether this may not be a dangerous precedent at a time when the EU’s values of democracy and respect for the rule of law are already under pressure.
Dear Mr. Van Elsuwege,
I’d like to point out a few things that I’m missing in your analysis of the Spanish Supreme Court’s (SSC) situation and which, in my view, help clarify why its decision from 9.1.2020 is not so contrary to the ECJ’s preliminary ruling.
First of all, I think it’s important to point out that not every case is the same when talking about immunity of EMPs. In this case, as the SSC points out, Mr Junqueras’s trial was already over when he was elected EMP (only the ruling was pending). Therefore, according to Spanish law, no immunity waiver is required from the EP to sentence Mr Junqueras, because the trial is for facts that happened before he was elected.
Only a secondary matter remained to be decided after Mr Junqueras was elected: whether a waiver from the EP was necessary to keep him in preventive imprisonment until he was convicted or acquitted. This is the setting in which the SSC submitted the preliminary reference and in which the ECJ has decided.
The ECJ’s decision is accordingly very limited, nothwithstanding in which light future decisions may be adjudicated. It is true that, after the ECJ’s decision, it was necessary to request the EP’s waiver. But that was only in the interim between Mr Junqueras’s election and his conviction. Arguably, nothing in his legal situation would have changed, had he appeared in Brussels before his conviction (except a very probable flight from Spanish justice with the indifference of Belgian judicial authorities, as you are no doubt aware. By the way, the SSC’s conduct is also something that the ECJ condones, when it states in its decision that there are exceptions to the necessity of the waiver if they are provided for under national law, as is the case).
This makes very obvious another fact that your analysis lacks: the different legal situation of Mr Junqueras, as compared to Mr Puigdemont or Mr Comín. The former was tried before being elected (all due process guarantees observed), whereas the latter fled from Spain and took refuge in Belgium, where they have avoided until now aprehension and extradition (for lack of a better word) to Spain. Therefore, they have not been tried or convicted and remain fugitives under Spanish law. In my view, this negates your argument that had Mr Junqueras been granted the possibility of travelling to Brussels after his election, he would be today in the same situation as Mr Puigdemont and Mr Comín. And, of course, this also explains why the SSC has requested an immunity waiver for Mr Puigdemont and Comín: the facts to be tried are previous to their election, but their trial will not be.
One last remark I’d like to make is regarding the EP’s acceptance of the Spanish national authorities’ decision of removing Mr Junqueras from office as EMP. It is argued in your piece that the EP’s acceptance of Mr Junqueras’s conviction and removal from office is against the principle of representative democracy that the ECJ upholds in its 9.1.2020 decision. This argument, with all respect, misses the point. One could also argue that it is against the same principle to break democratically passed laws, as Mr Junqueras did and as would be the case, were he not removed from office now. And it could be also argued that if the EP decides to go directly against the decision of a Member State’s National Court, this would be even more contrary not only to the Treaties, but also to the separation of powers. Especially when the grounds for doing that are very unclear, to say the least.
In any case, thank you for your analysis and I hope these lines help clarify this complex matter.
Dear George C., many thanks for your much appreciated comments. Yet, I still see two contradicting logics at work. For me, it seems difficult to reconcile the final decision of the SSC with para. 93 of the ECJ judgment. And, of course, the situation of Mr. Junqueras and that of Puigdemont and Comin is different but nevertheless the outcome is very paradoxical and reveals a challenge in the EU legal order. That is the main point made here.
(A quick typo correction: in the second to last paragraph I meant to write “Member State’s Supreme Court”).
Isn’t the next step also supposed to be some form of Francovich action? As far as I remember, that’s the standard recipe in the literature. If you can’t get the Member State supreme court to comply with EU law, you bring a case against that Member State in tort, and get that civil court to ask a prejudicial question. In this case, that would be an action for wrongful imprisonment.
I wonder whether it would not be appropriate to also reflect on paragraph 42 of the judgment of the Court of Justice. Unless I am mistaken, it would appear to suggest that the Tribunal Supremo had already acknowledged that the Court’s judgment would apply to the case at hand, even if Mr Junqueras Vies’s detention had in the meantime become final as a result of the judgment of 14 October 2019.