Enlarging the Immunities of European Parliament’s Members: The Junqueras Judgment

Abstract

Members of Parliament have traditionally enjoyed different kinds of immunities; nowadays, these are openly criticized on several grounds. The Court of Justice of the European Union (CJEU) has recently given a judgment on the inviolability of European Parliament’s members, which might be regarded as a milestone in its scarce case law on the matter: Oriol Junqueras Vies, Judgment of the Grand Chamber of December 19, 2019. This Article intends to summarize and comment on this decision, a preliminary reference requested by the Spanish Supreme Court in a notorious criminal procedure, connected with the suspended referendum on Catalonia’s independence. The CJEU reinforces the inviolability of Members of European Parliament (MEPs), thus strengthening the powers of this institution. However, the judgment perhaps fails to fully capture European Court of Human Rights (ECtHR) case law and was rendered at a time when the controversy on Mr. Junqueras had arguably become outdated.

A. Introduction

A major political event occurred in Spain in September and October 2017. Political leaders of the Regional Government of Catalonia decided to take the road towards independence from Spain and disregard the judicial decisions that had suspended their acts and the courts’ prohibition of a referendum on independence. This led to criminal charges against certain officials, including the Vice President of Catalonia’s Regional Government, Mr. Oriol Junqueras. Subsequently, and while in prison, Mr. Junqueras was elected as an MEP. The Spanish Supreme Court requested a preliminary ruling on his immunity.¹

Parliamentary immunity, in general terms, is a controversial institution.² Nevertheless, the CJEU has limited case law on the matter,³ although this area of Protocol No. 7 to the Treaties has been considered outdated⁴ and flawed.⁵ The ECtHR has been more prolific than the CJEU in this regard. However, in the mentioned judgment (Case C-502/19, Oriol Junqueras Vies, Judgment of the Court of Justice (Grand Chamber) of 19 December 2019), it only quotes two ECtHR decisions and perhaps fails to fully capture its case law.⁶

The Junqueras judgment deals with one type of parliamentary immunity: the inviolability of European Parliament members for extra-parliamentary conduct—in this case, prior to his election. As other officials of the Regional Government of Catalonia—also accused of the same crimes—fled from Spain and took refuge in other European Union (EU) countries, eventually to be elected members of the European Parliament, the ruling has certain effects on judicial cooperation in criminal matters. Indeed, Mr. Junqueras’s case became a feature in the Spanish press.

B. Factual and Legal Background

Following a series of controversies and misunderstandings between the Spanish national authorities and the regional authorities of Catalonia, several Catalonian political parties decided that the time had come for Catalonia to secede from Spain from Spain and create a new independent republic. In November 2015, the Catalonian Parliament passed a resolution that solemnly declared the beginning of the process for Catalonia to become a republic.⁷ It was no surprise that the resolution was declared unconstitutional and annulled by the Spanish Constitutional Court.⁸ However, in September 2017, two acts were passed by the Regional Parliament of Catalonia: Law 19/2017—passed on September 6, 2017, on the self-determination referendum⁹—and Law 20/2017—passed on September 8, 2017, on the foundation of the republic and the transition period.¹⁰ Both were challenged by the national government before the Constitutional Court. A unanimous court ruling first suspended and later declared both laws unconstitutional, and therefore null and void.¹¹ In particular, Law 19/2017, on the self-determination referendum—which, among other points, called for a referendum on independence to be held on October 1, 2017¹²—was suspended by the Constitutional Court’s decision on September 7, 2017. Personal notification was sent to all members of the Catalonian Regional Government, including Mr. Junqueras.¹³ Ignoring this suspension, the Catalonian government organized the referendum for the planned date and attempted to avoid the intervention of the national police forces through secrecy. On October 1, some voting took place,¹⁴ although national political parties and Catalonian parties against independence reminded people of the illegal nature of the referendum. National police forces attempted to enforce the court suspension, especially in Barcelona, with varying degrees of success; they were met with a number of riots. On October 10, the Regional President—in accordance with the referendum results—proclaimed the independence of Catalonia before the Catalonian Parliament but proposed suspending the proclamation until negotiations were held with the “Spanish State.” With the assent of the Senate,¹⁵ the national government resorted to Article 155 of the Spanish Constitution, removed the Catalonian self-government institutions—Parliament and Government—and called for regional elections in Catalonia.

In light of these events, the public prosecutors and one political party—Vox—filed several criminal complaints against all members of the Catalonian Regional Government.¹⁶ Five of them—including its deposed President—fled from Spain, but others were arrested: amongst them, the Vice President, Mr. Junqueras. To prevent their escape, the Court ordered the imprisonment of the arrested officials. Under the Council Framework Decision 2002/584/JHA of June 13, 2002 on the European arrest warrant and surrender procedures among Member States, the Court then issued European arrest warrants to Belgian—and later German and Scottish—courts for the five accused officials that had escaped. However, the arrest warrants were unsuccessful.

The trial of Mr. Junqueras and other former members of the Catalonian Regional Government began in the Spanish Supreme Court on February 12, 2019 and lasted until June 12, 2019. At that time, Mr. Junqueras became a candidate for the European Parliament and was announced as such by the Spanish Electoral Board on April 29, 2019.¹⁷ The same situation occurred with three other accused fugitives, as their political parties placed them at the head of their lists. On May 26, 2019, the voting took place, and Mr. Junqueras and the other three fugitives were elected as MEPs. They were subsequently all proclaimed as elected MEPs by the Spanish Electoral Board.¹⁸

According to Article 224 of the Spanish Electoral Act, once proclaimed by the Spanish Electoral Board, elected MEPs must swear or promise allegiance to the Spanish Constitution within five days. If they fail to do so, their seats will be declared vacant and all their privileges suspended until they comply.¹⁹

Mr. Junqueras—who was still in prison—requested permission from the Court to appear before the Spanish Electoral Board to swear allegiance to the Spanish Constitution, but it was denied. The Electoral Board subsequently declared his seat vacant and suspended all of his privileges. Mr. Junqueras challenged the refusal and invoked Article 9 of Protocol No. 7 to the Treaties²⁰ on the Privileges and Immunities of the European Union (the Protocol):

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

1. (a) in the territory of their own State, the immunities accorded to members of their parliament;

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

3. (c) Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

4. (d) 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.

In this context, the panel of Supreme Court magistrates who had to judge the case asked the CJEU for a preliminary ruling on:

1. (1) Whether Article 9 of the Protocol was applicable before “the sessions” were opened, to a person in prison charged with acts committed prior to the electoral period, who had been refused permission to leave prison in order to comply with national legislation requirements;

2. (2) in the case of affirmative reply, whether it was applicable even if the national electoral board had informed the European Parliament that the accused had not completed all the national requirements to become an MEP; and

3. (3) if affirmative, whether a person accused of serious crimes should be allowed to leave prison to travel to the European Parliament.

On October 14, 2019, the judgment in the criminal proceedings against Mr. Junqueras and the other eleven political leaders was published by the Supreme Court.²¹ Mr. Junqueras was found guilty of the crime of sedition in conjunction with a related crime of misappropriation and sentenced to a term of imprisonment of thirteen years. This sentence included an absolute disqualification from holding public office for thirteen years along with a subsequent definitive forfeiture of all the privileges, positions, and public offices he may hold—even if elected—in the future for thirteen years.

The Supreme Court sent a certified copy of the judgment to the CJEU, in view of the pending preliminary ruling. The Supreme Court stated that it was interested in the outcome, even though it may not affect Mr. Junqueras, due to the conviction of disqualification and forfeiture of all public positions and offices for thirteen years.

C. Opinion of the Advocate General

The Advocate General, Mr. Maciej Szpunar, submitted his opinion on November 12, 2019. After certain general reflections on parliamentary immunities, which he acknowledged were often subject to criticism,²² Advocate General Szpunar stated that the goal of parliamentary inviolability—one of the forms of immunity—was to ensure that parliamentary sessions could be held without undue restrictions on the attendance of its members through abusive legal proceedings.²³

Szpunar observed that Article 9 of the Protocol had not been altered since the times of Protocol No. 7 to the European Coal and Steel Community Treaty.²⁴ However, the European Parliament was no longer an advisory assembly; it had become the main legislative and political institution of the EU, whose members are now elected by the citizens through universal suffrage. Furthermore, Article 39 of the Charter of Fundamental Rights of the European Union (CFREU) now protects the right to both active and passive suffrage.²⁵ In fact, the right to vote would be worthless without the right of those elected to exercise their mandate.²⁶ The literal interpretation of Article 9 of the Protocol therefore leads to an unsatisfactory result.²⁷

Advocate General Szpunar pointed out that in order to enjoy immunity, it is necessary to become an MEP, which is regulated by both Member State and EU law. The Advocate General then proceeded to determine whether Mr. Junqueras was a member of the European Parliament, which was refused by all parties at the preliminary ruling—including both the European Parliament and the Commission—except, of course, by Mr. Junqueras himself.²⁸

According to Article 14 of the Treaty on European Union (TEU), “The European Parliament shall be composed of representatives of the Union’s citizens …” and its members “ … shall be elected … by direct universal suffrage ….” Although the Act Concerning the Election to the European Parliament by Direct Universal Suffrage—annexed to Council Decision 76/787/ESC, EEC, Euratom (the 1976 Act)—refers to national provisions to govern the electoral procedure in each Member State,²⁹ the Advocate General found that the status of MEPs—members of an EU institution and elected by its citizens—can only be regulated by EU law. To allow national law to rule this matter would be tantamount to accept national interference in the independence of the European Parliament and in the autonomy of EU law as a whole.³⁰

Accordingly, the Advocate General considered the Spanish electoral law—which imposes an oath of allegiance to the Spanish Constitution, as a requirement to become an MEP—to be contrary to direct universal suffrage and to the representative nature of MEPs. Voters elect the members of Parliament, not individuals who may eventually become MEPs. Their decision by vote is not subject to any confirmation or ratification.³¹ Therefore, this requirement—or others that exist in different Member States—may affect the effective exercise of an MEP’s functions but not the office of a member of Parliament, nor their privileges or immunities.

The Advocate General also considered that the 1976 Act does not authorize Member States to suspend an MEP for an unlimited time, which could extend to the whole term.³² He found it unclear that Spanish law regards the oath as part of the electoral procedure required to become an MEP, when the requirement does not apply to members of the Spanish National Parliament, who are only suspended if they do not swear or promise allegiance to the Constitution in Parliament after three plenary sessions. Moreover, Article 9 of the Protocol grants MEPs “the immunities accorded to members of their parliament.” In this case, MEP status seems to be less favorable than that of members of the Spanish National Parliament—with respect to the investiture as a member of the assembly—which is a requirement to enjoy the immunities.³³

Advocate General Szpunar partially concluded that any individual officially elected to the European Parliament immediately becomes an MEP, irrespective of any ulterior formality that is required either by European or the national law of the Member State.³⁴

As mentioned above, Article 9 of the Protocol dates back to a time when members of the Assembly were also members of their national parliaments, and it was therefore pointless to grant them additional immunity. According to the Advocate General, this regime became outdated when direct universal suffrage was established for the European Parliament and even more so when simultaneous membership to the European and national parliaments was repealed. It has been claimed as a source of inequality among members of the European Parliament and should be interpreted in a way that preserves the coherence and unity of the status of MEP, in the opinion of the Advocate General.³⁵

Regarding the first question of the preliminary ruling on the meaning of “during the sessions,” Advocate General Szpunar quoted Article 229 of the Treaty on the Functioning of the European Union (TFEU)—“The European Parliament shall hold an annual session. It shall meet without requiring to be convened, on the second Tuesday in March”—and concluded that the European Parliament is permanently in session.³⁶ Privileges and immunities apply irrespective of whether a particular session has been held, as the CJEU had already stated in Wybot.³⁷ Therefore, the “sessions” of a newly elected European Parliament begin on the date mentioned in Article 11 (3) of the 1976 Act³⁸—namely, “the first Tuesday after the expiry of an interval of one month as from the end of the electoral period.”³⁹

In relation to the second question, the Advocate General mentioned Article 5 of the 1976 Act, according to which “the five-year term for which members of the European Parliament are elected shall begin at the opening of the first session following each election” and “the term of office of each member of the European Parliament shall begin and end at the same time as the period referred to in paragraph 1.”⁴⁰ Consequently, as this is neither conditioned on the attendance to the first session nor on any other circumstance, national formalities cannot prevent the beginning of an MEP’s term of office on said date. The Advocate General concluded that, as of that moment, all parliamentary immunities apply.⁴¹

As to the third question, Advocate General Szpunar stated that because the CJEU had declared in Wybot that immunities apply without regard to the actual sessions, there was no reason why immunities should not be applied before the inaugural sitting of the European Parliament, especially because Article 9 of the Protocol refers to “travelling to … the place of meeting of the European Parliament.”⁴² The Advocate General found that it was not unusual in Member State law to apply immunities from the very moment the candidate is proclaimed as elected, which is in line with one of the privilege’s goals: To ensure that Parliament begins its work with all members present.⁴³ In his opinion, this cannot be limited to the first journey to the place of meeting but should be extended to all previous formalities necessary to perform functions. Therefore, national authorities must refrain from establishing any measures that could obstruct the members and suspend any that have already been adopted, unless inviolability has been lifted by the European Parliament.⁴⁴

Finally, the Advocate General took into consideration the judgment of October 14, 2019, in which the Spanish Supreme Court sentenced Mr. Junqueras to a term of imprisonment and absolute disqualification from holding public office—even elective—which entails the withdrawal of his parliamentary mandate. As he had been tried and convicted before the European Parliament could reach a decision to lift his immunity, the lawsuit in which the preliminary questions were raised had become outdated. Any judicial decision reached now on the leave to swear allegiance to the Spanish Constitution would be meaningless.⁴⁵ Szpunar recalled that, according to Article 267 TFEU, the CJEU is competent to give its interpretation of EU law only in real cases pending before national courts and not hypothetical ones. Therefore, pursuant to Article 100 (2) of the Rules of Procedure of the Court of Justice,⁴⁶ “the Court may at any time declare that the conditions of its jurisdiction are no longer fulfilled.” Consequently, the Advocate General expressed his doubts as to the need to answer the request for a preliminary ruling.⁴⁷

D. The Court Judgment

The Court began its analysis by ascertaining whether the request for a preliminary ruling was admissible. Contrary to the views of the Advocate General, the Court highlighted the fact that the Spanish Supreme Court had confirmed the need for such a ruling—notwithstanding the conviction of Mr. Junqueras—because his appeal against the refusal of leave was still pending and had to be decided. The case was therefore real, not hypothetical, and had not become extinct after the judgment; the case was admissible.⁴⁸

However, the Court did heed the Advocate General when reasoning as to the democratic nature of the European Parliament—as expressed in Articles 10 (1) and 14 (3) TEU, and 223 (1) TFEU. Having established that—according to the 1976 Act—Member States are competent to regulate the electoral procedure⁴⁹ and that the European Parliament “takes note” of the results officially declared by them,⁵⁰ the Court of Justice of the European Union interpreted that becoming a member of the European Parliament—in the sense of Article 9 of the Protocol—results from the official proclamation of the election results by Member States.⁵¹ From that moment, immunities apply. This covers not only the first paragraph of Article 9 of the Protocol—as ruled in Wybot—but also the second.⁵²

These immunities—according to the Court—are the result of Article 343 TFEU, which provides for the enjoyment of the necessary immunities by the Union and the members of its institutions to fulfil their mission. They are aimed at ensuring that all institutions are completely and effectively protected against any impediment or threat that might affect their independence and activity.⁵³ For the European Parliament, this is a consequence of representative democracy under Article 10 (1) TEU, because membership is determined by the citizens’ vote. It also comes from universal suffrage, under Article 39 CFREU and Article 14 (3) TEU, which means the effective acquisition of their seat in the European Parliament by those elected.⁵⁴ In line with this argument, the CJEU observed that—according to the ECtHR—parliamentary immunities are aimed at ensuring the independence of Parliament, quoting two cases: Karácsony and others v. Hungary, Appl. No. 42461/13 and 44357/13, judgment of May 17, 2016, and Uspaskich v. Lithuania, Appl. No. 14737/08, judgment of December 20, 2016.⁵⁵

The Court concluded that, once officially proclaimed as elected to the European Parliament, Mr. Junqueras was entitled to the immunities of Article 9 of the Protocol, irrespective of his imprisonment after being charged with serious crimes in criminal proceedings and irrespective of the lack of authorization to complete the formalities required by Member State law to participate in the first sitting.⁵⁶

The Court observed that when Mr. Junqueras was officially proclaimed as elected to the European Parliament, on June 13, 2019, he was in prison. As this situation may obstruct the freedom of an MEP to travel to the first sitting of the European Parliament and to fulfill all the required formalities, it must be considered contrary to the immunity granted by Article 9, paragraph two, of the Protocol⁵⁷ and therefore revoked. However, if a national court finds that the imprisonment of a person that has become an MEP should continue, it must request the waiver of European Parliament immunity, as provided in Article 9, paragraph three, of the Protocol,⁵⁸ as soon as possible.

Finally, the CJEU replied to the Spanish Supreme Court that Article 9 of the Protocol must be interpreted to mean that:

A person officially proclaimed as elected to the European Parliament, if in prison and accused of serious crimes in criminal proceedings and not authorized to fulfil certain requirements imposed by the Member State’s law, nor to travel to the European Parliament to take part in its first session, is entitled to the immunities provided for in the second paragraph of the Article.

This immunity entails the cancellation of the measure of imprisonment, in order to allow the person to travel to the European Parliament and to fulfil the required formalities there. Nevertheless, if the national court deems that imprisonment should continue after the person has become a member of the European Parliament, it must request a waiver of European Parliament immunity as soon as possible, in accordance with Article 9, third paragraph, of the same Protocol.⁵⁹

E. Comment

Parliamentary immunities are well known conventions of a venerable origin.⁶⁰ They are traditionally divided in two large categories,⁶¹ each with its own Article in the Protocol.⁶² Article 8 states that “Members of the European Parliament shall not be subject to any form of inquiry, detention, or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.”⁶³ This article provides for non-liability, sometimes called “non accountability,” of opinions or votes and traces back to the 1689 Bill of Rights.⁶⁴ Article 9—applied in the case at hand—adds inviolability, which is also called immunity in the strict sense of the word. In a limited scope, based on British tradition, it was enshrined in Article I, Section 6 of the United States Constitution.⁶⁵ Both forms of immunity share certain common features: they are not personal privileges of the members of parliament but rather a means to protect the institution.⁶⁶ Therefore, they cannot be waived by an individual member,⁶⁷ although there are some exceptions in certain countries.⁶⁸ Both also limit the fundamental rights of non-members of parliament—namely, the victims of their acts or persons offended by their speech. Redress in court may become more difficult or even impossible. As with all politicians’ privileges, they tend to be viewed skeptically—by large parts of society—as a form of shielding corruption⁶⁹ or other heinous acts.⁷⁰ In the words of the Venice Commission, the “paradox of parliamentary immunity” is “that it can serve both to foster and to undermine democratic development.”⁷¹

In the case at hand, this Section focuses on the second kind of immunity but touches on aspects of the first, when necessary. This Section will discuss three issues: (1) how the case compares to the Court’s existing case law, (2) whether it accurately took into account ECtHR and human rights case law, and (3) whether, in the aftermath of the judgment, any weak points have been highlighted.

I. How to Strengthen the Powers of the European Parliament

It is well known that—since the times of the European Economic Community—the European Court of Justice has consistently reinforced EU law and institutions.⁷² The Court—a key element of the European Communities and now the EU—has obviously contributed to building them by interpreting the law.⁷³ It is not surprising that the case at hand strengthens the powers of the European Parliament with respect to its members, as opposed to the Member States.

In short, the case strengthens the powers of the European Parliament in a threefold way:

(1) By constraining Member States’ national provisions on the electoral procedure⁷⁴ to the period ending with the official election proclamation;⁷⁵ (2) by interpreting that “during the sessions” amounts to “during the entire parliamentary mandate” from the official proclamation, thereby securing all immunities since such date; and (3) by establishing that the imprisonment of a newly elected member of the European Parliament must be cancelled, in order to allow him to travel to the sitting, unless the Court requests the waiver of immunity from the European Parliament in the shortest possible time.

This tendency to enhance the European Parliament’s powers was already present in Wybot. Mr. Wybot filed defamation proceedings against Mr. Faure with the Tribunal Correctionnel of Paris, although the latter had been elected as a member of the European Parliament in 1979—the first election by universal suffrage. Apparently, the controversial speech was totally unrelated to his parliamentary mandate or activity. The Criminal Court observed that Article 9 of the Protocol⁷⁶ began with the expression “[d]uring the sessions of the European Parliament, its Members shall enjoy … the immunities accorded to members of their parliament,”⁷⁷ and the European Parliament was not actually sitting on the date of the summons. Moreover, it seems that immunities for the members of the French Parliament did not cover periods of time in which Parliament was not sitting, and the Protocol used national immunities as a reference. According to Article 26 of the French Constitution,⁷⁸ authorization by the Bureau of the Legislative Chamber was required to allow a criminal court to hear charges against a member of the Chamber, “during the sessions.”⁷⁹

The CJEU faced two options: it could either strictly interpret the Protocol as an exception to the general procedural rule, and thus favor the right of the plaintiff to sue, or interpret it in a broad sense, thus strengthening the immunities and powers of the European Parliament. In its judgment of July 10, 1986, the CJEU chose the latter option—in line with Advocate General Darmon.

In Wybot, the Court referred to a previous case, M. Albert Wagner v. MM Jean Fohrmann and Antoine Krier,⁸⁰ which was ambiguous. It certainly interpreted the sessions of the European Assembly as independent from the sittings, but it restricted sessions to the two annual sessions that were held—at that time⁸¹—from May to June and as from October. This was obviously prior to the election of the European Parliament by universal suffrage. Perhaps this is the reason why the CJEU, in this case, did not quote Wagner, although it had been quoted by the Spanish Court in its request for the preliminary ruling.⁸² Wagner, by disconnecting Assembly “sessions” from “sittings,” expanded immunity and thereby the powers of the European Assembly, as its authorization was required to hear the case against one of its members based on the immunities provided for in the law of Luxembourg.⁸³

This trend of strengthening the European Parliament’s authority has also been followed by the General Court in Bruno Gollnisch v. European Parliament,⁸⁴ in which a member of the European Parliament challenged two decisions of the institution: To lift his immunity and not to defend his immunity. The General Court dismissed the action, as the statements for which Mr. Gollnisch was prosecuted had no link to his duties as a member of Parliament—the alternative would have made it impossible to lift the immunity, according to Article 8 of the Protocol⁸⁵—nor did the decisions of the European Parliament infringe Article 9 of the Protocol. This judgment does not enhance the powers of the European Parliament, but it does support the way that Parliament exercises those powers.

The trend of increasing the powers of the European Parliament has also been asserted by the CJEU in relation to non-liability—Article 8 of the Protocol—in two judgments on preliminary rulings requested by Italian courts: Alfonso Luigi Marra v. Eduardo De Gregorio and Antonio Clemente,⁸⁶ and Criminal Proceedings against Aldo Patriciello.⁸⁷ Italian law does not require authorization from the Italian Parliament to take action against any of its members,⁸⁸ but in both cases, the MEP concerned brought his case before the European Parliament—pursuant to Article 6 (3) of its Rules of Procedure⁸⁹—and the European Parliament decided to defend the MEP’s immunity. Although, only in Patriciello was the decision notified to the criminal court; in the other case, it did not reach the criminal court.⁹⁰ In Patriciello, the CJEU stated that the “immunity provided by Article 8 of the Protocol must be established on the basis of EU law alone,” in its own interpretation of the expression “performance of their duties”—as it is used in said Article 8.⁹¹ The CJEU even hinted at some of the conclusions of the actual case.⁹² In neither case did the CJEU deprive the Italian courts of their power to interpret the Protocol—without being bound by any decision that may have been reached by the European Parliament—but invoked cooperation between the institution and national courts, in order to avoid any conflict between the interpretation and application of the provisions of the Protocol.⁹³ In Marra, the CJEU even stated that the court must stay the proceedings if informed that the MEP has requested the defense of his immunity from the institution.⁹⁴

The case at hand does not quote Patriciello but rather Marra, at the end of the judgment, recalling the principle of loyal cooperation.⁹⁵ However, neither case departs from the strengthening of European Parliamentary powers. Of course, the responsibility for interpreting non-liability resides in the court trying the case and not the European Parliament; Article 8 of the Protocol leaves no room for doubt. Still, the CJEU gives the European Parliament a voice—based solely in its Rules of Procedure—by imposing cooperation between both institutions and even providing for a stay of the judicial proceedings. This raises many doubts,⁹⁶ but undeniably asserts the role of the European Parliament when dealing with its members’ immunities. Again, the CJEU strengthens EU institutions and restricts Member States’ powers.

II. A Partial Approach to Human Rights

The case at hand refers to the right to vote under Article 39 (2) of the CFREU.⁹⁷ This is the only fundamental right invoked throughout the grounds of the judgment. The Court rightly stresses the relationship between universal suffrage—also established in Article 14 (3) TEU—and the respect for elected candidates. If such candidates are not allowed to become MEPs, it affects the democratic decision-making power of the voters.

The ECtHR has developed considerable case law on parliamentary immunity. However, the judgment only quotes two cases: Karácsony and others v. Hungary,⁹⁸ and Uspaskich v. Lithuania.⁹⁹ This selection does not appear to be particularly brilliant. The former case dealt with non-liability, not inviolability, and was an Article 10 case—dealing with the freedom of expression of the members of the Hungarian Parliament¹⁰⁰—in which no criminal proceedings were held; the claimants had been sanctioned by the Hungarian Parliament.¹⁰¹

The second quoted ECtHR case was one of inviolability; however, immunity had been lifted once by the Lithuanian Parliament and twice by the European Parliament.¹⁰² It involved the right to free elections, pursuant to Article 3 of Protocol No. 1 to the Convention, which—according to a unanimous ECtHR—had not been violated. Moreover, that case included certain statements that do not entirely favor Mr. Junqueras’ case:

In the present case, however, it transpires that the applicant’s political party, which itself avoided prosecution by formally changing its status … indeed shielded him [Mr. Uspaskich] from prosecution by systematically presenting him as a candidate in municipal, parliamentary and European Parliament elections, all of which meant that at least for a certain time the applicant could enjoy immunity from prosecution ….¹⁰³

On November 2, 2017, Mr. Junqueras was summoned before a criminal court, which decided to imprison him. His political party immediately presented him as the first candidate, for the province of Barcelona, in the regional elections to be held in Catalonia that year on December 21.¹⁰⁴ He was elected as a member of the Regional Parliament of Catalonia. He was again presented by the same party as its first candidate, for the province of Barcelona, in the national elections to take place in Spain on April 28, 2019¹⁰⁵ and was elected to the Spanish Congreso de los Diputados. He requested the Spanish Supreme Court to ask the Congreso de los Diputados for authorization in order to keep him in prison and try him—thus interpreting Spanish parliamentary immunity—but it was denied by the Court, on the grounds that the trial was already in course and the crime—which dated back to 2017—had no relationship to his activity as a member of Parliament.¹⁰⁶ Mr. Junqueras was again presented as a candidate for the European Parliament elections, which took place in Spain on May 26, 2019.¹⁰⁷ His election triggered the case at hand. It was obvious that it would be impossible for the candidate, if convicted, to hold his seat in any of the three Regional, National, or European Parliaments. Obviously, some kind of protection from imprisonment, trial, and conviction was sought.

The ECtHR deals with parliamentary immunity essentially in relation to the right of access to justice—provided in Article 6 of the European Convention on Human Rights (ECHR)—and, to a lesser extent, the freedom of expression—pursuant to Article 10 of the ECHR.¹⁰⁸ At times, both rights are involved, as in A. v. United Kingdom.¹⁰⁹ In that case, A. claimed that she had no remedy against the offensive statements made by a member of the British House of Commons, who gave her name and address in a debate in the House on the subject of municipal housing policy. The Court upheld the prerogative of the member of the Parliament, which protected her freedom of speech and found no violation of Article 6 of the ECHR.¹¹⁰ In other cases, the outcome was a judgment of Article 6 infringement, as immunity was held to be disproportionate as a means of protection of parliamentary activity by the ECtHR and, therefore, did not shield the alleged freedom of expression.¹¹¹

The right of access to justice is the most relevant of the immunity cases, as the person offended by the conduct of a member of Parliament may see his or her action prevented and thus be deprived of the right to take action in court.¹¹² In the field of inviolability, a relevant case is Tsalkitzis v. Greece,¹¹³ in which the claimant sued the mayor of Kifissia, C.T.—for blackmail and criminal misconduct in public office, in connection with a building permit—claiming damages. The accused was not a member of the Greek Parliament when the events occurred but was elected before the petitions were submitted to the court. The Greek Parliament refused to lift immunity twice,¹¹⁴ and Mr. Tsalkitzis brought his case before the ECtHR. The Court unanimously ruled that Greece had breached Article 6 of the Convention, which dealt with the right of access to justice. It held that for a State to block civil actions unconditionally or make certain types of people exempt from liability is contrary to the Convention.¹¹⁵ The ECtHR took into account that the conduct had taken place three years before the accused was elected and observed that it had no relationship to his parliamentary duties. Restrictions of the right of access to justice had to be proportionate and this denial of justice was not, even if the lawsuit was surrounded hypothetically by a political context.¹¹⁶

This same conclusion—the breach of Article 6 of the ECHR by a refusal to lift immunity—was reached in the ECtHR case Syngelidis v. Greece,¹¹⁷ concerning a lawsuit between a divorced couple over the enforcement of a judicial decision on the custody of a child. Criminal charges were filed against a member of the Greek Parliament by her former husband, who requested the amount of ten euros by way of nominal compensation for non-monetary damages; however, the Greek Parliament refused to lift immunity. Even in light of such a weak civil claim, the ECtHR declared: “[W]here parliamentary immunity hinders the exercise of the right of access to justice, in determining whether or not a particular measure was proportionate the Court examines whether the impugned acts were connected with the exercise of parliamentary functions in their strict sense.”¹¹⁸ In that case, the Court ruled that it was not a proportional measure.

Obviously, the facts in the ECtHR cases, Tsalkitzis v. Greece and Syngelidis v. Greece, were different from the CJEU Junqueras case: Only a criminal case, without any private party claiming damages, and where the lifting of immunity had not been refused by the European Parliament. However, these cases clearly indicate that parliamentary inviolability raises human rights issues in relation to access to justice, and that restrictions on court activity must be proportionate to the protection of parliamentary duties, which means examining whether the conduct at stake was related to the parliamentary mandate.

Even if Junqueras deals with issues prior to the lifting of immunity—by strengthening inviolability—it inevitably hinders judicial proceedings in course, which may affect private parties seeking redress. Moreover, if these judicial proceedings had begun many months before the elections—and therefore clearly had no connection to parliamentary duties—the extended inviolability could be abused to shield politicians from their liabilities. As the Venice Commission notes, “rules on parliamentary inviolability … can be misused in ways that may undermine democracy, infringe the rule of law and obstruct the course of justice,” and “should therefore be regulated in a restrictive manner.”¹¹⁹ The case at hand does the opposite; it extends inviolability without any consideration for the right of access to justice or the connection between the facts and the parliamentary mandate, thus setting certain rules that may be difficult to apply to subsequent cases.

III. Aftermath of the Judgment

Notwithstanding its extension of parliamentary inviolability, this case does not consider the continuation of imprisonment of a newly elected member of European Parliament as incompatible with Article 9 of the Protocol—provided the criminal court requests lifting the immunity in the shortest possible time. This part of the judgment is sensible,¹²⁰ as imprisonment before conviction is typically limited to serious crimes and intended to secure the trial, which normally requires the presence of the accused person. If imprisonment were cancelled without exception, some defendants might never return to the Member State to be tried.

In the criminal proceedings that gave rise to the case at hand, this possibility of escaping to other European countries to avoid trial actually existed. Of the fourteen members of the Regional Government of Catalonia—at the time the suspended referendum on independence took place and independence was proclaimed—five fled to other European countries. The Spanish Supreme Court issued European arrest warrants (EAWs) to Belgian courts pursuant to Council Framework Decision of 13 June 2002, on the European Arrest Warrant and the Surrender Procedures between Member States.¹²¹ However, warrants for arrest were ultimately refused¹²² and those accused have therefore avoided being tried and, eventually, convicted.

Judicial cooperation in criminal matters between Member States is clearly deficient. As reported by official statistics, approximately two-thirds of EAWs are not executed.¹²³ Therefore, even though “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights,”¹²⁴ in many cases, it is possible to avoid criminal charges simply by moving to another Member State.

This obviously affects the inviolability of MEPs, as shown in the case at hand. If immunity for newly elected members, “while they are travelling to and from the place of meeting of the European Parliament,”¹²⁵ could mean the immediate release from imprisonment—even for crimes unrelated to the member’s parliamentary duties—the privilege could in some cases allow an MEP to escape trial and conviction, simply by never returning to the Member State of imprisonment.

As a matter of fact, the case judgment did not benefit Mr. Junqueras.¹²⁶ After being notified of the judgment, the Spanish Supreme Court reached two decisions on January 9, 2020. First, the Court acknowledged that Mr. Junqueras should have been considered a member of the European Parliament since June 13, 2019 (date of official proclamation). Second, however, it declared that his imprisonment had been lawful following the CJEU ruling. Therefore the Court ordered that he be kept in prison to serve the term of his conviction, and rejected the request to lift his European Parliament immunity because his mandate had been withdrawn pursuant to said conviction (forfeiture of all public offices, even if elective).¹²⁷ Subsequently, the European Parliament declared Mr. Junqueras’s seat to be vacant.¹²⁸

Advocate General Szpunar was probably right when he raised his doubts concerning the CJEU’s competence to answer the request for a preliminary ruling, after being informed of the conviction by the Spanish Supreme Court.¹²⁹ The rejection of the leave from prison to travel to the European Parliament was no longer a real issue once Mr. Junqueras had been deprived of his parliamentary mandate by the conviction. Notwithstanding the insistence of the Spanish Supreme Court on the preliminary reference after the conviction—which is not easy to understand¹³⁰—it would have been wiser for the CJEU to drop the case and wait for a better opportunity to interpret the questioned law.

However, the case did benefit three others accused, along with Mr. Junqueras, who had fled and consequently had not been tried or convicted. Having been elected MEPs,¹³¹ and being granted inviolability from the case, their membership became unquestionable. The Court of Justice of the European Union considered it a mere formality that the three had not returned to Spain to swear an oath, in accordance with the requirements of the Spanish Constitution, one that could not deprive them of their parliamentary mandate. After the judgment was rendered, their membership to the European Parliament became unquestionable. The Spanish Supreme Court requested the lifting of their inviolability, which is still pending.

In view of the circumstances of the case and its aftermath, the judgment seems prudent, by not forcing an outright release of prisoners elected as members of Parliament. Nevertheless, the CJEU was aware that the controversy that gave rise to the preliminary reference was over and probably should have observed the opinion of the Advocate General in rejecting its competence to answer the request.

F. Concluding Remarks

EU law governing the inviolability of MEPs is certainly far from perfect.¹³² This part of the Protocol dates back to the times of the European Coal and Steel Community,¹³³ and makes inviolability identical “in the territory of their own State” to that afforded to members of the National Parliament.¹³⁴ As there are enormous differences between Member States regarding inviolability,¹³⁵ the Protocol prevents a consistent status for the MEPs. This institution has attempted to renew the law on immunity in a uniform way—so far, unsuccessfully.¹³⁶

The case at hand constitutes a step forward, towards a more unitary inviolability of MEPs, by limiting certain Member State powers. This strengthens the authority of the European Parliament, in line with previous case law. However, the human rights involved in inviolability cases—particularly the right of access to justice—as well as ECtHR case law on the matter, should perhaps be considered more closely in the future. Inviolability is subject to a proportionality analysis by the ECtHR, which could arise in subsequent cases, in order to ensure that it protects Parliament from undue interference but does not shield its members from charges unrelated to their duties. Finally, Junqueras is not particularly suitable for the new rulings on inviolability, because the dispute was eliminated by Mr. Junqueras’s conviction—as proven in the aftermath.