The Court of Justice of the EU (CJEU) has dealt an unexpected setback to the independence leaders in their legal battle since they left Catalonia after the process and complicated the path to the seat of Junts MEP, Toni Comín. Luxembourg judges approved the European Parliament’s decision to ban Carles Puigdemont and Comín himself in 2019 for not being on the list of the Central Electoral Commission (JEC) for non-compliance with the Spanish Constitution . This judgment represents a setback for the immediate aspirations of the former minister, whom the JEC once again excluded from the list of Spanish MEPs after the June elections and which the President of the European Chamber, Roberta Metsola, does not has not recognized its status while awaiting this decision. decision.
And what happens now? What are Comín’s options? Throughout these five years of combat, European justice has established the framework for the unprecedented situation in which pro-independence MEPs found themselves involved.
The first option left to Comín is to go to Spain to respect the Constitution. Although the approval of the amnesty did not free him from the arrest warrant that weighs on him since judge Pablo Llarena decided not to apply it to the crime of embezzlement, the CJEU determined in 2019 that elected MEPs benefit from immunity from the moment the results are announced. In this case, since the list – which included Comín’s name – was published in the Official State Gazette (BOE) after the June 9 elections.
“The status of member of the European Parliament results from the simple election of the person concerned and that he acquires this quality following the official proclamation of the results made by the Member States”, ruled the CJEU in December 2019 in the stop the affair which affected the leader of the ERC, Oriol Junqueras.
“A person who has been officially declared elected to the European Parliament while on remand in criminal proceedings for serious offenses, but who has not been authorized to fulfill certain conditions provided for by domestic law after the proclamation or to go to the European Parliament. to participate in his first session”, adds the judgment Junqueras, who had differences with Puigdemont and Comín given that he did not appear before the JEC because he did not obtain the corresponding prison permit .
This declaration of the CJEU allowed the Junts MEPs to take possession of their seats at that time, according to the most favorable interpretation of their political rights made by the President of the European Chamber at the time, the Italian socialist David Sassoli. And now this allowed Comín to think since election night that his record in this legislature was guaranteed.
However, Metsola chose to wait for the specific decision in the Puigdemont and Comín case and, following the decision of the JEC, which left the position vacant to the Junts candidate, did not allow him to access the seat.
A parliamentary or judicial change
The ruling published on Thursday limits Comín’s possibilities to the extent that it endorses the European Parliament’s decision to strictly respect the list of deputies sent to it by the Spanish authorities. “The President of the Parliament has no power to control the accuracy of the said list, under penalty of violating the distribution of powers between the Union and the Member States,” notes the CJEU.
What the Luxembourg court does not consider is the merits of the question, namely whether Spain can impose additional conditions on the simple election, such as respect for the Constitution. “With regard to the election of deputies, in the absence of adoption of a uniform electoral procedure, the procedure continues to be governed, in each Member State, by national provisions,” specifies the judgment.
Another option from Comín is therefore to eliminate this requirement established by Spanish electoral law and which does not appear in the legal systems of other EU countries. Being an organic law, its modification requires an absolute majority of Congress, or at least 176 deputies, which Sánchez obtained to carry out his inauguration.
The battle in court
Junts has already announced that he will fight through the courts, believing that he is in a “defenseless” situation. This Thursday’s ruling showed a path that Comín has already shown himself willing to explore. The Court emphasizes that the divergence over whether the promise to respect the Constitution violates Union law should be decided neither by the European Parliament nor by the EU General Court, but rather “in the national courts , where applicable, following a preliminary preliminary ruling procedure. before the Court of Justice, or directly by it in the context of an appeal for non-compliance.
This is what Junts is clinging to, which will “immediately” ask the Spanish judicial authorities to submit a preliminary question to the CJEU to determine whether the obligation to respect the Constitution is compatible with Community law. The request will be filed with the Supreme Court, before which they appealed the JEC’s decision to leave Comín’s seat vacant. The request will be accompanied by precautionary measures, like the complaint already filed against Metsola, to try to speed up the process.
