The General Court of Justice of the EU has declared this Wednesday inadmissible the appeal filed three years ago by Carles Puigdemont and Toni Comín against the initial decision of the former President of Parliament not to recognize their status as European deputies and the rights associated with the seat. The result, in practice, is not relevant today, since it was only a very specific appeal against an already obsolete decision, since both already enjoy that status precisely as a result of another decision of the CJEU itself. But it serves to set precedents (and to further complicate the debate) in a case that has removed the processes by which the European Parliament has been governed for a long time.
The case dates back to the beginning of the legislature. In May 2019, when the European elections were held, Puigdemont and Comín were already in Brussels, after fleeing Spain in October 2017. They, like Oriol Junqueras, were at the top of the electoral lists, so they had obtained the right to one seat (Clara Ponsatí not yet, since she only obtained the seat later, when Brexit was consummated, when there was a reorganization in the European Parliament that gave our country five more seats). However, the European Parliament denied them the act, since the rules of the house stipulated that in order to be a MEP, the result of the polls was not enough, but it was necessary to complete the associated administrative procedures. That is, comply with national procedures, which in this case included going to public offices in person to fill out a series of forms and swear or abide by the Constitution. The Central Electoral Board did not authorize this step to be made remotely, and sent Parliament a paper in which it indicated that the pro-independence politicians had not sworn or promised to abide by the Constitution and declared vacant the seats attributed to them “and suspended the prerogatives that could correspond to them by reason of their position until said compliance was produced”. On June 27, 2019, the former President of Parliament, the conservative Antonio Tajani, sent a letter to Puigdemont and Comín indicating that he could not treat them as future members of Parliament, since their names did not appear on the list of elected candidates officially notified by the Spanish authorities.
The independence leaders filed an appeal for annulment before the General Court against the instruction that denied them the enjoyment of the reception service and the assistance offered to the incoming deputies, as well as the delivery of a temporary accreditation. And a second against the refusal of the former president of Parliament to recognize them as deputies in themselves. The Parliament, supported by the Kingdom of Spain, invoked the inadmissibility of the appeal “due to lack of clarity of the claim regarding certain acts whose annulment is requested and for not being directed against actionable acts” and today the General Court, in an enlarged chamber, The appeal has been dismissed as inadmissible because it is not directed against actionable acts under Article 263 of the Treaty on the Functioning of the EU.
Today’s is a technical decision, not about the substance of the matter. It limits itself to recalling that actionable acts are considered to be all acts adopted by the community institutions, whatever their nature or form, “intended to produce binding legal effects that may affect the interests of the plaintiff, substantially modifying their legal situation.” And in his opinion, the decision of the president of the European Parliament is not, since the Italian politician limited himself to taking note of the legal situation of the plaintiffs of which the Spanish authorities had officially informed him. In addition, “that brief expressly indicated that the position expressed by the former President of Parliament could have changed based on new information received from the Spanish authorities. Therefore, according to the General Court, said brief expressly excluded that the position expressed in it the former president of Parliament had any decisive and definitive character”, say the magistrates today.
The philosophical and legal debate is however very interesting. The General Court considers that “the impossibility of the applicants to assume their functions, to exercise their mandates and to occupy their seats “does not derive from the refusal of the former President of Parliament”, but “from the application of Spanish law (…) in respect of which the former President of the Parliament and, more generally, the Parliament did not have any margin of appreciation”. Something very singular, because a few months later, his successor, made use precisely of margin of appreciation to take in question of hours a decision to the contrary.
However, this theoretical question has little to do with reality. Right now Puigdemont and Comín are fully-fledged deputies precisely because of an interpretation of the high court. In December 2019, in a controversial decision, the CJEU ruled, against the opinion of Spain and the legal services of Parliament, that a politician was a deputy from the moment of the recount, without the need for any additional procedure. That same day, the new president president, also Italian David Maria-Sassoli, communicated the decision to the Plenary, which was meeting in Strasbourg, and reported that from then on Puigdemont and Comín would be accredited and welcome to the house, something that happened in matter of days. Not Junqueras, on the other hand, because by then his situation, when he was sentenced, was different.
The irony is that the case that was ruled on in December 2019 was precisely that of Junqueras and the high courts then considered that a person elected to the European Parliament acquires the status of member of said institution from the official proclamation of the results and enjoys from that moment of the immunities attached to such a condition” since the condition “results solely from the vote of the electors and cannot be subject to subsequent compliance with any formality”. Today, however, the message is somewhat more confused, because although the Court General recalls that decision, obviously endorses it and reiterates that the affected Catalans were deputies without a doubt since the publication of the electoral results, also stressing that the Electoral Act “establishes a distribution of powers between Parliament and the Member States” and that unless the provisions of the Electoral Act “the electoral procedure is governed, in each Member State, by national provisions”.
According to the magistrates, the regulation “expressly rules out Parliament’s competence to rule on disputes that are rooted in provisions of national law, even when the Electoral Act refers to said Law, such as the requirement established in article 224.2 of the Electoral Law. It follows that, in order to check the credentials of its members, Parliament must rely on the list of elected candidates officially notified by the national authorities, which, by definition, is drawn up on the basis of officially proclaimed results and a Once these authorities have resolved any disputes arising in relation to the application of national law, the former President of Parliament therefore lacked the power to control whether the exclusion of certain elected candidates from the list officially notified by the Spanish authorities on June 17, 2019, because this refl The official results of the elections of May 26, 2019 determined, where appropriate, after resolving any disputes arising in relation to national law.
Something that collides, at least apparently, with the philosophical principle that governed the decision of the CJEU itself in December 2019 and that resulted in the almost immediate entry of accreditations to Puigdemont, Comín and Ponsatí shortly after. No step is necessary, they reiterate, even though the rules say yes.
This affects on a practical level, because just a few weeks ago, precisely, the Parliament did not validate the credentials of the three independentistas precisely because they had not complied with the national procedures, after a report from the Legal Affairs Commission that the Spanish president Adrián Vázquez .
It is something that is normally verified quickly, but due to the pandemic it was delayed much longer than expected. And a fringe still pending in this process in which the roadmap should be redefined, to avoid the same problems, and countless resources before the Justice, of a problem of a different nature.
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