Oriol Junqueras’ election to the European Parliament means the hot potato has been passed back to Justice Manuel Marchena, the president of the Supreme Court, which is hearing the case against the referendum on the independence of Catalonia. This comes 72 hours after the decision by the Spanish parliament’s Bureau to suspend Junqueras —who is currently on remand— from his position as MP in Madrid.
Judge Marchena had refused to rule on the application of article 384 bis of the Criminal Prosecution Law concerning the suspension of Oriol Junqueras, Jordi Turull, Jordi Sànchez and Josep Rull to the Congress of Deputies. Instead, he suggested they be suspended in accordance with article 21 of the Congress. The Bureau in turn considered said option to be inapplicable, leading it to "act like the Supreme" and suspending them in accordance with article 384 bis.
However, now that Junqueras has been elected to the European Parliament, who will apply 384 bis? Aside from the Supreme Court, Marchena has no one who can suspend him. The situation is the following.
Freddy Drexler, a French national and head of the European Parliament’s legal service, has already issued a statement in response to a request from its president, Antonio Tajani, of 25 March, concerning “Spanish elections to the Euro Parliament and the immunity of the newly-elected parliamentarians”.
After analysing Spanish legislation, Drexler concludes: "In the case in question, a candidate with an outstanding arrest warrant in Spain may stand in an election to the European Parliament". Nevertheless, he goes on to warn that "it requires their presence in Madrid to swear an oath to the Constitution and thus be eligible to be included in the list sent by the Spanish authorities to the European Parliament". Drexler adds: "If he is arrested when doing so [appearing in Madrid], it would be up to the Spanish authorities to decide whether to grant him permission to be sworn in as an MEP".
In the case of Carles Puigdemont and Toni Comín, the statement confirms that the two newly-elected MEPs [currently residing in Belgium] would have to appear in Madrid to be sworn in, if they are to be included on the list which Spain must send to the European Parliament.
Furthermore, according to the opinion issued by Drexler, the MEPs who were elected last Sunday take their seats and begin their five-year term following the opening session of parliament, scheduled for 2 July.
However, Junqueras’ situation is different from that of Puigdemont and Comín. In fact, Junqueras has already stated that if he were to be elected as an MEP, he would give up his seat in the Spanish parliament, where he has already been suspended. Although he remains on remand, the Supreme Court will still have to allow him to leave prison to take an oath of allegiance to the Constitution in Madrid city. This is a necessary step before his name can be included on the list of elected lawmakers which the Spanish authorities have to send to the European Parliament.
What will happen next? Will Junqueras be allowed to travel to Strasbourg to attend the opening session of the European Parliament on 2 July? Who will ultimately be the person responsible for suspending him by applying article 384 bis which, according to Drexler, is the responsibility of the Spanish judicial authorities? Incidentally, the court does not have a means to apply article 384 bis via the Bureau of the European Parliament.
The court will, therefore, have to do what it refused to do: take responsibility for the suspension of Oriol Junqueras once he has already been made an MEP and has sworn an oath to the Constitution, without having to wait for the opening session on 2 July.