Request to the President to take urgent action to assert immunity

— having regard to Article 2 of the Treaty of the European Union (TEU),

— having regard to Article 343 of the Treaty on the Functioning of the European Union (TFEU),

— having regard to the Protocol on the privileges and immunities of the European Union (Protocol
No 7),

— having regard to Article 39 of the Charter of Fundamental Rights of the European Union (the
Charter),

— having regard to the Act of 20 September 1976 concerning the election of the members of the
European Parliament by direct universal suffrage (the Electoral Act),

— having regard to the European Council Decision 2013/312/EU establishing the composition of
the European Parliament,

— having regard to Article 3 of Protocol No 1 of the European Convention on Human Rights

(ECHR),

— having regard to Article 23 of the Spanish Constitution,

— having regard to Article 224 of the Spanish Electoral Law,

— having regard to the Court of Justice of the European Union (CJEU) judgment of 30 April 2009
(Beniamino Donnici v European Parliament)1,

— having regard to the CJEU judgment of 13 January 2013 (Bruno Gollnisch v European
Parliament)2,

— having regard to the CJEU judgment of 6 October 2015 (Thierry Delvigne v Commune de
Lesparre Médoc and Préfet de la Gironde)3,

— having regard to the CJEU judgment of 15 October 2018 (Ashley Neil Mote v European
Parliament),4

— having regard to the Decision of the Spanish Electoral Commission published at the Spanish
Official Journal on 14 June 2019 5,

— having regard to the Order of the Spanish Supreme Court of 14 June 2019 on case 20907/2017,

— having regard to the report of the Committee on Legal Affairs and the Internal Market of 20
June 2003 on the request for upholding of the immunity and privileges of Mr Francesco
Musotto (A5-0248/2003) (Zimeray Report),

— having regard to the report of the Committee on Legal Affairs and Citizens' Rights of 29 May
1985 on the request for the waiver of Mr. Marco Pannella's parliamentary immunity6 (A2-
46/85) (Donnez Report),

1
Judgment of the Court (Fourth Chamber) of 30 April 2009, ECLI:EU:C:2009:44
2
Judgment of the Court (First Chamber) of 17 January 2013, ECLI:EU:T:2013:23
3
Judgment of the Court (Grand Chamber) of 6 October 2015, ECLI:EU:C:2015:648
4
Judgment of the Court of First Instance (Seventh Chamber) of 15 October 2008, ECLI:EU:T:2008:440
5
Decision published on June 14 2019 at the Spanish Official Journal
— having regard to Rule 8 of the Rules of Procedure of the European Parliament,

A. whereas the leader of Esquerra Republicana, former vice-president of the Catalan Government
and former Member of the European Parliament (MEP), Oriol Junqueras i Vies, who is in pre-
trial detention since 2 November 2017, has been elected Member of the European Parliament
in the elections held on 26 May 2019;

B. whereas according to Article 39 of the Charter, the Electoral Act and the Spanish Electoral Law,
Oriol Junqueras i Vies enjoys all his political rights; whereas there is no provision foreseen under
EU or national law which is applicable to Oriol Junqueras i Vies and provides a legal bases to
limit his rights and prevent him from finalising all the administrative requirements to become a
MEP;

C. whereas the coalition lead by Oriol Junqueras i Vies ’Republics Now’, won three seats,
representing the votes of 1.2 million European citizens;

D. whereas on 14 June 2019, the Spanish Electoral Commission published a decision proclaiming
the names of the elected Members of the European Parliament, 54 in total for Spain, and the
name of Oriol Junqueras i Vies was on the list;

E. whereas as provided in Article 224(2) of the Spanish Electoral Law, within five days of the
proclamation, the elected Members must take oath to the Spanish Constitution before the
Spanish Electoral Commission;

F. whereas Oriol Junqueras i Vies requested permission to the Supreme Court to leave prison to
comply with the requirements as laid down in the Spanish Electoral Law and the Court denied
him such a permission;

G. whereas the Supreme Court did allow Oriol Junqueras i Vies to leave prison to swear the
Constitution when he was elected in the Spanish elections held on 28 April 2019, in which Oriol
Junqueras i Vies was leading the list of Esquerra Republicana and was elected Member of the
Spanish Parliament;

H. whereas in 17 June 2019, the Spanish Electoral Commission sent a second list to the European
Parliament with the names of the elected Members but, this time, without the names of Oriol
Junqueras, Carles Puigdemont and Toni Comín, arguing that they do not meet the requirements
to become Members of the European Parliament since they failed to take oath to the Spanish
Constitution;

I. whereas on 2 July 2019, all the elected Members of the European Parliament are requested to
be present to the Constitutive Session of the European Parliament which takes place in
Strasbourg;

J. whereas given that Oriol Junqueras i Vies, Carles Puigdemont i Casamajó and Antoni Comín i
Oliveres were removed from the final list that the Spanish Authorities sent to the European
Parliament, the European Parliament will be constituted with only 748 members, instead of 751
as laid down in the European Council Decision 2013/312/EU establishing the composition of the
European Parliament;

K. whereas Article 343 TFEU establishes the privileges and immunities of the Union under the
conditions laid down in Protocol No 7; whereas Article 9 of Protocol No 7 regulates a double

6
Donnez Report
 regime of immunity conditioned to the territory where the Member is, meaning that if
Members are in the territory of their own State, they enjoy the immunities accorded to the
members of their parliament and, if Members are in the territory of any other Member State,
they enjoy immunity from any measure of detention and from legal proceedings; whereas in
the case of Oriol Junqueras i Vies, it corresponds to the first situation (in his own Member
State);

1. The provisions of Article 9 of Protocol No 7 refer to the ‘immunities accorded to members of

their parliament’, which must be interpreted as a reference to the substantive dimension of
immunity and not to its procedural aspects. That is, taking into account the scope of immunity
at the national level (for instance, criminal responsibility or other liabilities such as civil or
administrative ones, or whether it exists areas excluded from immunity by reason of criminal
offences), as well as the type of guarantee in which immunity is based; specifically, whether the
country’s immunity requires a parliamentary authorization through a request for waiver of
immunity. In the case of Spain, the reference in Protocol No 7 to the immunities recognized to
the Members of the Spanish Parliament should be understood in the same way, that is, that
such immunity exists only in the field of criminal law, without any exception of criminal
offences, and it can only be suspended through parliamentary authorization.

2. In the same direction, the Donnez Report argues that European immunity is valid from the
proclamation of the elected candidate, in such a way that the reference to national law in
Protocol No 7 would be circumscribed to the ‘substance’ of immunity (in our case the
protection against a criminal proceeding) and not to peculiarities about procedural nature that
would interfere with the European immunity, such as the requirement from the Spanish
Electoral Law to take oath to the Spanish Constitution.

3. Additionally, Recital F of the Zimeray Report establishes that ‘Articles 9 and 10 of Protocol on
the privileges and immunities of the European Communities of 8 April 1965 must be interpreted
in such a way that these provisions are effective from the time of publication of the results of
the elections to the European Parliament’.

4. Immunity is a prerogative of consolidated tradition, which evolved from an approach based on

privileges to a guarantee to protect the separation of powers and, in particular, the statute of
political representatives; the separation of powers cannot be conceived as a threat to the
judiciary but as a system of checks and balances that is an essential dimension of the
democratic principles in which the Spanish constitutional system is based on, as well as the
European Union as enshrined in Article 2 TEU; additionally, according to the CJEU judgment on
the Gollnish case, immunity protects institutions and, by extension, their representatives;
therefore, to protect the immunity of the legislative power is to protect the democratic
principles.

5. EU jurisprudence stresses the functional dimension of immunity which is aimed at protecting

the functioning and independence of EU institutions. In fact, the CJEU judgment on the Mote
case stresses that ‘As regards the Protocol, in particular, the privileges and immunities which it
grants to the European Communities have a purely functional character, inasmuch as they are
intended to avoid any interference with the functioning and independence of the Communities
(orders in Case 1/88 SA Générale de Banque v Commission [1989] ECR 857, paragraph 9, and in
Case C-2/88 IMM Zwartfeld and Others [1990] ECR I‑3365, paragraph 19)’. EU case law
emphasises this aspect, in addition to the fact that immunities can also be considered a
subjective right of the Members.
6. Consequently, the provisions laid down in Article 7 of Protocol No 7, which protects free
movement of Members travelling to or from the place of meeting of the European Parliament,
have to be interpreted in a way which includes free movement of elected Members travelling to
the place of meeting of the European Parliament for its constitutive session; if elected Members
do not have this right guaranteed, the functional dimension of immunity would be pre-empted
as it would not protect the institution from external interferences where unnecessary or non-
proportionate requirements are imposed to elected Members in order to prevent them to
acquire the condition of Member of the European Parliament; therefore it can be established
that immunity applies from the moment when the candidate is proclaimed an elected Member.

7. Similarly, Article 224 of the Spanish Electoral Law establishes that when an elected Member
does not comply with the requirement to swear an oath to the Spanish Constitution, ‘all
prerogatives will be suspended’, which indicates that they were in force before the suspension,
including the prerogative of immunity.

8. The European parliamentary immunity is established by EU law, with its own prerogatives other
than those established by national law, and which national law needs to comply with due to the
primacy of EU law; conditioning immunity to certain administrative procedures established by
national law would produce an unjustified distortion of the system of guarantees established by
EU law.

9. According to the joint analysis of Articles 6 and 8 of the Electoral Act and Protocol No 7,
Member States are not allowed to regulate any additional requirements after the proclamation
of elected members that would prevent immunity to take effect as, on the one hand, Article 8
of the Electoral Act establishes that Member States can only regulate issues linked to the
electoral procedure in compliance with the Electoral Act and, on the other, Article 6 of the
Electoral Act establishes that immunity is governed by Protocol No 7 which, as argued above,
applies from the moment where the candidate has been proclaimed elected.

10. The CJEU judgment on the Donnici case states that Member States ‘have the task of organising
the elections, in accordance with the procedure laid down by their national provisions, and also,
in that connection, of counting the votes and making the official declaration of the electoral
results (order in Case T-215/07 Donnici v Parliament, paragraph 74)’. The same approach can be
found in several occasions in EU case law; therefore, the Court establishes the scope of the
Member States’ prerogative to regulate the electoral procedure, which includes only the three
aspects enumerated. Once the electoral results have been proclaimed, Member States cannot
establish further requirements that alter the list of the elected members after the official
declaration of the electoral results has been made.

11. In addition, Article 12 of the Electoral Act establishes the obligation of the European Parliament
to take note of the results declared officially by the Member States for the purpose of verifying
the credentials of the members of the European Parliament and rule on any disputes which may
arise out of the provisions of the Electoral Act other than those arising out of the national
provisions to which the Electoral Act refers; in this regard, it is important to note that the
publication of the decision on the proclamation of the names of elected Members of the
European Parliament, as required by Article 224(1) of the Spanish Electoral Law took place on
14 June 2019; therefore, Spain should notify the names included in this decision and the
European Parliament should take note of it as established in Article 12 of the Electoral Act in
order for Oriol Junqueras i Vies to finalise the administrative requirements to take his seat in
the European Parliament with effect from the opening of the first sitting following the elections.
12. In its Order of 14 June 2019, the Spanish Supreme Court argued that Oriol Junqueras i Vies’
political rights should be temporarily suspended until the judgment is issued. However, the
need for immunity, as a guarantee of the democratic State, to deploy its effects could only be
‘temporarily suspended’ if the principles and rules of EU law are ignored. This situation pre-
empts the right to political participation and representation which is a fundamental right
enshrined in Article 23 of the Spanish Constitution, Article 39 of the Charter and Article 3 of
Protocol No 1 of the ECHR, and is an interpretation of national law incompatible with EU law,
including Protocol No 7.

13. As argued above, the reference to national law should be understood to include only the
material aspects and the guarantees of immunity and therefore only a parliamentary
authorization can trigger the waiver of immunity; additional restrictions introduced by national
authorities are in breach of EU law and Protocol No 7.

14. In addition, regarding the impact on the right to stand as a candidate, the CJEU judgment on the
Delvigne case stresses that any limitation on the exercise of the rights laid down in Article 39(2)
of the Charter must be provided for by law, respect the essence of those rights and freedoms,
be subject to the principle of proportionality and 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; however, there is no provision under Spanish law that allows
for the restriction imposed by the Spanish Supreme Court.

On those grounds, Dina Riba i Giner hereby:

1. Requests the President of the European Parliament to activate the procedure laid down in Rule
8 of the Rules of Procedure and take urgent action to assert the immunity of Oriol Junqueras i
Vies.