Advocate General of the EU: former Catalan VP Oriol Junqueras should have been allowed to take MEP seat

The Advocate General argues that immunity stems from popular vote, not from constitutional oath

The immunity granted to a member of the European parliament is contingent on the people’s ballot, not on taking an oath of allegiance to the Spanish Constitution. Therefore, former Catalan vice president Oriol Junqueras should have been acknowledged as an MEP when he was elected in the European elections held in May. On Tuesday the Advocate General of the Court of Justice of the European Union (CJEU), Poland’s Maciej Szpunar, published his conclusions on the span (start and length) of the ERC leader’s parliamentary immunity, following a consultation from Spain’s Supreme Court to the Luxembourg Court on behalf of Junqueras’ own legal team. As Junqueras was convicted before the CJEU issued its ruling, the Advocate General believes the Catalan leader’s immunity no longer applies, now that he has been sentenced, and indicates that the European parliament is responsible for making a decision in such cases.

It should be pointed out that the Advocate General’s conclusions are part of the CJEU’s resolution process, but they are in no way final. They provide guidance for the judges who will ultimately pronounce judgement, although the final ruling follows the Advocate’s lead in 80 per cent of the cases.

Szpunar’s advice is clear: “an MEP’s mandate is acquired solely from the electorate and this cannot be conditional on the completion of any subsequent formality”. One of the main reasons given by the European parliament and the Spanish authorities in Junqueras’ case was that MEPs-elect had to comply with Spain’s electoral law, which states that an oath of allegiance to the Spanish Constitution is a pre-requisite to take office, a condition which Junqueras was unable to meet because Spain’s Supreme Court did not allow him to take the oath [he was already held in prison]. In contrast, the ERC leader’s defence argued that parliamentary immunity is acquired as soon as the election results are declared. Szpunar concurs, and he states that, while the breadth of an MEP’s immunity is dependant on the national law [of the member state], “the duration of the protection is governed by EU law”.

The Advocate General’s advice also denies that an MEP’s immunity starts only if they attend the chamber’s inaugural session, which Junqueras had to miss. Szpunar believes that “no provision makes the start of the mandate subject to the Member actually attending the new parliament’s inaugural session”. And he goes on to state that “the mandate of a European Member who has not actually taken up his/her duties for failure to complete all formalities required under national law also starts on the opening of the first session of the newly elected Parliament. From that very moment, the Member is therefore covered by Parliamentary immunity”.

Maciej Szpunar maintains that MEP status is acquired when the election results are declared and “from the very moment that such a declaration is made”. He even remarks that “a Member State [may not] suspend the mandate of a Member of the Parliament or the prerogatives arising from that mandate for any reason whatsoever”. The Advocate suggests the CJEU to rule that “a person whose election to the European Parliament has been officially declared […] acquires, solely as a result of that fact, and from that moment, the status of a Member of the Parliament, notwithstanding any subsequent formality which that person is required to complete, whether under EU law or the national law of the Member State in question”.

On the prohibition to leave prison in order to collect the MEP credentials, Szpunar advises that after the elections and before the chamber’s inaugural session, the member state’s authorities “are required to refrain from any measure which might obstruct the necessary steps of that Member to take up his/her duties and to suspend the measures which are already in force, unless immunity has been waived by the European Parliament”. In other words, Spain’s Supreme Court should have allowed Junqueras to take the oath and collect his credentials and, furthermore, his pre-trial detention should have been “lifted”.

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