• Diego Sánchez Borjas

The Catalan "procés" and the EU

On November 26th, the Vice-President of the General Court of the EU decided to dismiss the new request for interim relief submitted on behalf of MEP Carles Puigdemont. But, why is this relevant to the opinion of the Union?

Between the months of September and October of 2017, the then president of the Catalan Government, Mr. Puigdemont, was the main political leader of the plan to organise a self-determination referendum aimed at declaring the independence of Catalonia from Spain.1 After events of 1-O (October 1st, 2017), and the suspended unilateral declaration of independence (October 3rd, 2017), the Spanish justice system issued arrest warrants against the members of the then Catalan Executive Council and of the Catalan regional parliament, including social leaders (the "Jordis", Jordi Sànchez and Jordi Cuixart), who were, afterwards, prosecuted and found guilty of sedition, misappropriation of public funds and disobedience by the Criminal Bench of the Spanish Supreme Court.2 Nonetheless, some members of the Executive, Mr. Puigdemont, and the former consellers or regional ministers, Clara Ponsatí and Antoni Comín, left Spain and established their residence in Scotland and in Belgium, respectively.3

Later, the three of them were elected as MEPs despite the active European arrest and extradition orders issued by the Spanish Supreme Court against them.4 However, as Oriol Junqueras, former Vice-President of the Catalan Government, was elected while being in pre-trial detention, and the other chosen members were not physically present in Spain to be sworn in as MEPs, a legal controversy arose on whether they enjoyed their parliamentary immunity, a reason why the Supreme Court issued a referral for a preliminary ruling from the Court of Justice of the EU (CJEU).5 In its ruling, the CJEU declared that elected MEPs enjoy parliamentary immunity without the need to recur to formalities under domestic law, namely, to be physically present at the Spanish Parliament to be sworn in.6 Thus, for the purposes of the European arrest and extradition order, the European Parliament was the only body responsible for waiving such immunity from criminal prosecution.7 In this first moment, after different decisions of the Spanish Supreme Court and Electoral Commission, the judgment unfolded a serious backlash given that, under EU law, the right to be chosen and to represent cannot be subject to administrative prerequisites which, on Spanish law, are necessary before the immunity deploys its full effects.8

After being notified about the ruling, the Spanish Supreme Court formally requested the waiver to the European Parliament, which was ultimately approved by the Plenary against Mr. Puigdemont, Mrs. Ponsatì, and Mr. Comín.9 Although, according to EU law, they no longer enjoyed the immunity to be prosecuted under the criminal law of a Member State, they filed a request for interim relief before the General Court of the EU seeking to quash the European order issued by the Spanish Supreme Court.10 Even though the Vice-President of the Court granted the relief initially, after a new review of the facts, including inter alia that the Spanish Supreme Court made a request for a preliminary ruling on the situation of another former conseller, Lluís Puig i Gordi, due to the refusal by the Court of Appeals of Brussels, the Vice-President decided to dismiss the relief.11 The reasoning pointed out that, under EU law, the request of a preliminary ruling produces suspensive effects in the domestic proceedings, therefore, as Mr. Puig i Gordi was likewise indicted in the same criminal cause pursued against Mr. Puigdemont and the remaining MEPs, the suspension extended its effects to their European arrest and extradition orders.12 Bearing in mind that the Belgian court interpreted that the Spanish Supreme Court was not competent to institute criminal proceedings against Mr. Puig i Gordi, a new legal controversy began as to the extent that it questioned the attribution of competence under Spanish domestic law, an issue never raised when complying with a European order.13

After summarising the main relevant facts of the case, we may now enter to discuss the recent events leading to the November 26th judicial order. During a trip to Alghero, on the island of Sardinia, in Italy, Mr. Puigdemont was detained by Italian authorities under the European order issued by the Spanish Supreme Court.14 This decision raised serious concerns due to the contradiction between the statement by the Spanish agent before the General Court of the EU, and the response of the Spanish Supreme Court to the Court of Appeals of Alghero on the legal effects of the order issued against Mr. Puigdemont.15 Whilst the Spanish agent claimed the order was suspended until a preliminary ruling was handed over by the CJEU, the Court, conversely, argued the order was never suspended and remained in effect.16 Having heard both positions, including the declaration of Mr. Puigdemont before the Italian court, the panel of judges decided to suspend the execution of the European order awaiting the judgment of the CJEU as it understood the criminal proceedings against Mr. Puigdemont were suspended.17 Despite that, Mr. Puigdemont's legal defence made a new request for interim relief before the General Court of the EU on the grounds of being likely to be detained again when travelling across Member States.18 It is worth noting that the waiver of immunity approved by the EU Parliament allows the detention or arrest of the MEP whenever he is not transiting the territory of a Member State to attend the seat of the European Parliament, a situation not applicable to this case. Contrary to what was expected by his legal counsel, the Vice-President of the General Court refused to grant a new interim relief.

According to the Order, the Vice-President drew its conclusion from the fact that no serious or irreparable harm derives from the MEPs in question being detained for two main reasons: (a) under EU law, the request for a preliminary ruling suspended the effects of the European order, regardless of the decision or opinion of the domestic court that issued the order;19 and (b) that it was hypothetical to believe that national authorities, under the principle of sincere cooperation, would not be able to infer the suspensive effect once the MEPs were heard by the corresponding judge.20 The rationale behind the Order unfolds that, following EU law, Mr. Puigdemont, Mrs. Ponsatí, and Mr. Comín only possess their immunity from detention or prosecution when they transit across the Member States to attend the seat of the European Parliament.21 Although there is the plausible belief they might be subject to detention when travelling across the EU, they cannot be surrendered to Spanish authorities until a ruling by the CJEU is made.22 For those reasons, the Spanish Supreme Court will not be able to put Mr. Puigdemont on trial unless he either returns willingly to Spain, or the CJEU hands over its judgment on Mr. Puig i Gordi case.

1.https://www.theguardian.com/world/2017/oct/02/after-the-catalan-referendum-what-happens-next; https://elpais.com/ccaa/2017/10/10/catalunya/1507624143_410500.html#?rel=listaapoyo

2. Tribunal Supremo de España, Sala Segunda, Sentencia 459/2019 de 14 de octubre, pp. 488-491. Disobedience: Carles Mundó, Meritxell Borràs, Santiago Vila; Sedition: Carme Forcadell, Joaquim Forn, Josep Rull, Jordi Sànchez, Jordi Cuixart; Sedition and Misappropriation: Oriol Junqueras, Raul Romeva, Jordi Turull, Dolors Bassa.

3. https://www.eldiario.es/politica/puigdemont-belgica-justicia-euroorden-detencion_1_3098592.html; https://www.elconfidencial.com/espana/cataluna/2018-03-10/clara-ponsati-deja-belgica-y-se-va-a-escocia_1533656/

4. https://www.lavanguardia.com/politica/20190526/462438289266/elecciones-europeas-cataluna-resultados-26-mayo-2019-escrutinio-jornada-electoral-hoy-ultima-hora-en-directo.html

5. https://www.eldiario.es/catalunya/politica/supremo-tribunal-luxemburgo-junqueras-inmunidad_1_1455509.html

6. Judgment of the Court (Grand Chamber) of 19 December 2019, Case C-502/19 (Oriol Junqueras i Vies), para 90

7. Oriol Junqueras i Vies Judgement, para 92

8. Oriol Junqueras i Vies Judgement, para 94

9. P9_TA(2021)0059, Request for waiver of the immunity of Carles Puigdemont i Casamajó; P9_TA(2021)0060, Request for waiver of the immunity of Antoni Comín i Oliveres; P9_TA(2021)0061, Request for waiver of the immunity of Clara Ponsatí Obiols

10. Order of the Vice-President of the General Court, 30 July 2021, ECLI:EU:T:2021:497, para 61

11. Order of 30 July 2021, para 35

12. Order of 30 July 2021, para 38

13. https://www.brusselstimes.com/news/belgium-all-news/148639/brussels-court-rejects-extradition-of-catalan-politician-to-spain

14. https://www.wsj.com/articles/fugitive-catalan-separatist-leader-arrested-in-italy-faces-possible-extradition-11632486804

15. Tribunal Supremo de España, Sala de lo Penal, Sección 2a, Oficio de 24 de septiembre de 2021

16. Order of 30 July 2021, para 54

17. https://www.dw.com/en/italy-court-suspends-catalan-separatist-leader-carles-puigdemonts-extradition-hearing/a-59398516

18. https://www.europapress.es/nacional/noticia-puigdemont-pide-nuevo-cautelares-tribunal-ue-frenar-proceso-extradicion-italia-20211001182201.html19. Order of the Vice-President of the General Court, 26 November 2021, ECLI:EU:T:2021:834, para 31

20. Ibid., para 33

21. Ibid., para 32

22. Ibid., para 30

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