With less than three days before the European Parliament's constituent plenary session on July 2nd, experts in European law have been analyzing the possible scenarios if the legal defences of the three elected-but-blockaded Catalan MEPs Oriol Junqueras, Carles Puigdemont and Toni Comín, appeal to the EU Court of Justice in Luxembourg (CJEU), as they have already announced. Consulted by the ACN news agency, two leading lawyers in the field agree that, although there are no precedents, it is "clear" that the case has a European legal dimension.
Miguel Troncoso, lawyer for Gómez-Acebo & Pombo in Brussels, predicts that when the Luxembourg route for resolving the issue is opened, "the question will be whether the right to passive suffrage [that is, the right to stand for election] take precendence over the formal requirements that Spain can require in order to validate an elected person as a parliamentarian". Meanwhile, Henri de Waele, a law professor at the University of Nijmegen in The Netherlands, believes that the bottom line is the need to resolve the "conflict between European and national legislation."
If European judges do in the end sit down and consider the case, Waele says that it will be "a new and intriguing situation, but also a test for European law", because tensions within a state could "have consequences for European legislation" while Troncoso is convinced that the case is "unprecedented".
Henri de Waele notes that the Luxembourg judges don't live in a bubble, but rather, are aware of the Catalan affair and that such a case may have political "consequences". "The court will have to be very careful because the Catalan case is very sensitive and they will have to balance the interests that are at stake," he warns. The professor insists that the political context is "very important" because judges know that, depending on their decision, they could "give an impulse to the Catalan independence movement".
Ways of appealing to the Luxembourg court
The legal routes which give access to the EU court in Luxembourg, according to both Troncoso and Waele, are basically two: indirect and direct. The first involves demanding that the Spanish courts consult the CJEU through a preliminary question, while the second requires the parties affected to submit a complaint directly to this court against the European Parliament for not protecting their rights.
Waele sees the direct route as difficult and gives the view that the indirect path through a Spanish court is "probably the only option" that will allow Junqueras, Puigdemont and Comín to obtain a legal hearing in Luxembourg.
The Junqueras preliminary question
With the Spanish Supreme Court still to rule on the appeal by the lawyers of Oriol Junqueras against its refusal to grant the jailed Catalan vice president permission to attend the swearing-in ceremony, Miguel Troncoso says that a national court does not have the obligation to consider a preliminary question "except in the case that it is a court of last resort." "Therefore, the Supreme Court if it wishes does not have to rule on the matter, but the Constitutional Court would be obliged to consider it," he explains, if an appeal to the Constitutional Court is presented.
Waele believes that it would be a "scandal" if Spain's highest national court were to refuse to consider this issue, while Troncoso points out that although there is no case law on the subject, "the prudent response would be for the question to be raised in the CJEU." "And it is common for this to occur," he says.
On the chances that European justice will take a stand if the Supreme Court passes the issue to Luxembourg, Waele says that in "sensitive" situations where the court does not want to pronounce, sometimes "loopholes" are sought to declare them inadmissible. "It could happen in this case," he points out.
Troncoso, however, asserts that what the court will examine is "the pertinence of the question" and if the national court demonstrates to the CJEU that its response would be "useful" in deciding how to apply the law, "Luxembourg will respond." The court might even reformulate the question or complete it, "providing additional clarifications." "So, what is most likely is that the Luxembourg court will answer the preliminary question and rule on it," he concludes.
Puigdemont and a possible direct appeal
The precise strategy of the legal team defending Puigdemont and Comín is still unknown, but Troncoso explains that for now the path open is that of a direct appeal for annulment, which would have the effect of annulling a decision. In this case, he says, the two elected MEPs from the Catalan Junts list could consider that the European Parliament's refusal to admit them as members of parliament "must be anulled because it is harmful to their rights."
"If President Tajani has responded and considered [following a request by Puigdemont] how the European Parliament must act, the way is open for the annulment strategy," he says. "It will have to be seen whether this decision by Tajani is a formal decision that deprives Puigdemont of his rights and can be considered as such. If so, he could appeal," he says. In this case, however, there is a prior admissibility screening: to assess whether a European Parliament decision has been taken and if this does or doesn't affect his rights.
Another route to European justice that the Belgian lawyer does not rule out is that of omission, that is, when the appeal is based on the idea that an EU institution - the Parliament - should have done something that it has not done, which would be "to apply European law correctly". Thus, Luxembourg could force Parliament to act to alleviate its omission. "The difficulty of this path is that the omission should be derived from a legal obligation to act", which must be accredited via EU regulation or treaties.
As well, Waele points out that the institution's obligation to act must be "demonstrated" and suggests that denying the three elected Catalan politicians their MEP places already implies, in some way, taking action.
In procedural terms, says Troncoso, "the appeal on grounds of omission has to be preceded by a prior appeal from the interested parties to the institution," a step which Puigdemont and Comín have taken in the last few days, obtaining a response from Tajani on Friday.
Timing and precautionary measures
CJEU sources told the ACN agency that they saw it unlikely for any possible preliminary question or appeal to be resolved in just a few weeks, since a "classical" preliminary question takes on average 16 months whereas those regarded as "urgent" can be ruled between two and four months after being admitted.
The fastest option, by means of an "accelerated" procedure, could be shorter than this. In any case, explains the Belgian lawyer, in parallel to the presentation of an appeal, a request for precautionary measures may also be submitted, which could be a suspension of the EU Parliament's refusal to admit the Catalans as MEPs.
If it comes to a question of precautionary measures, the Luxembourg court would first consult the European Parliament's lawyers, but "technically, the precautionary measures approach is possible".
The immediate expectation is that the Spanish Supreme Court will announce at the beginning of next week whether or not it will consult the CJEU, while the Puigdemont legal team assures that "soon" it will announce the next steps to be taken.
In recent days, several international voices have complained about the blockage preventing the three elected Catalans from occupying their seats. Portuguese liberal MEP Antonio Marinho e Pinto told ACN that the issue is "a great political scandal" in the European Parliament and it is a "terrible black mark against the EU" for the three pro-independence leaders to be stopped from sitting in the European chamber. "They have been elected by their people, and it won't be a truly democratic chamber," complains Marinho e Pinto, criticizing the "repressive" situation in the Spanish state, and recalling that political prisoners are being held.
As well, left-wing Italian MEP Eleonora Forenza has declared that she will be present at the demonstration called on the issue in Strasbourg on July 2nd because it is "a duty" and a "struggle" for the "idea of a democratic Europe, without the repression that Catalonia is suffering". "It is Tajani's duty to ensure that the elected MEPs can exercise their positions." "I really believe that the battle for Catalonia is a battle for the whole of Europe," she concluded.
These views were echoed by Barbara Spinelli, also part of the GUE left-wing group, says she's "concerned" about the "conflict" between Spanish and European laws. The Italian MEP, daughter of EU founding father Altiero Spinelli, says that the case "has a European dimension", contrary to what the European Parliament is saying. "[The votes of] more than two million people mean something and they have been completely abandoned," she added, warning that this could become a "dangerous precedent."