The lawyer Gonzalo Boye has warned the five judges of the European General Court (EGC) that "the Kingdom of Spain wants to mislead them" regarding the legal situation of the Catalan MEPs in exile, former president of Catalonia Carles Puigdemont and minister Toni Comín, during the hearing that began this Thursday in the blue chamber of the EGC, in Luxembourg. "The kingdom of Spain is making a distorted interpretation", said Boye, regarding the legal situation of the Catalan politicians, as Spain was asserting that a trial had already been opened against them for the case of the referendum of 1st October 2017. Boye indicated that, in fact, "the investigation stage of the case is not over", and therefore it must be taken into account that his immunity is in force, and a request to Parliament to waive it is required.
For his part, the European Parliament's lawyer, N. Görlitz, asked the EGC not to accept the claim made by Puigdemont and Comín, because, he asserts, the decision made on December 10th, 2019, by the then-president of the European Parliament, David Sassoli, to not act on the letter sent by MEP Diana Riba (ERC) and 37 other MEPs asking him to start the process to grant immunity to Puigdemont "has no legal effects". By contrast, Boye remarked that "it did have legal effects" and that Sassoli should have sent Riba's letter, which she had communicated to him in October 2019, to the house's Committee for Legal Affairs (JURI). And therefore, Spanish judge Pablo Llarena was not able to have issued the European Arrest Warrants without first asking the Parliament to waive the two MEPs' immunity.
The lawyer for the Spanish state, Andrea Gavela, was the only one who made her address in Spanish, affirming that Puigdemont was already on trial before he became an MEP and there was no need for the request to lift his immunity in 2019. In this hearing, the Spanish state solicitors are acting as a subordinate party to the European Parliament, and Gavela defended the position of the latter, that Puigdemont and Comín's claim should not be accepted.
The General Court asks questions
The court for today's hearing, of case T-115/20, is made up of the five judges who reviewed the case initially and not those who currently make up the chamber, as had been communicated by mistake. Thus, the EGC tribunal for the first oral hearing this Thursday, on the immunity of the Catalan politicians, is made up of the judges Anna Marcoulli, from Cyprus, president of the tribunal; Sten Frimond Nielsen, Heikki Kanninen, Juraj Schwarz, and Rimvydas Norkus. The five judges will also be part of the court that this Friday will analyze the request for the annulment of the later request to lift the immunity of Puigdemont, Comín and Ponsatí granted by the European Parliament to judge Llarena, in March 2021 and then revoked in May 2021 by the European Court of Justice (ECJ).
Immunity, up for debate
Initially, the president of the court and three judges asked a series of questions to the lawyer for the European Parliament on the mechanisms used by the chamber when a national court asks it to lift the immunity from prosecution of a member of the European Parliament. The JURI "does not carry out investigations or checks on requests, the national order is respected", answered the European lawyer. "But when the legal services of the Parliament go to Spain's file, what does it say? What does it say and how long does the immunity last?" judge Sten Frimond Nielsen asked with insistence. The lawyer limited himself to answering that they ask each of the 27 countries of the Union to provide their regulations, and he reiterated that he "will not answer on national legal issues. And he avoided the issue by saying that, for example, the United Kingdom, when it was in the EU had "zero immunities".
Court presses further for details
The hearing, which was initially was expected to proceed quickly continued for more than three hours because all five judges of the TGUE asked the parties in depth about "the legal effects" of the actions of the then parliamentary president Sassoli and what the JURI committee would have done on the immunity of president Puigdemont. "JURI does not analyze the facts, but the immunity procedure", explained the Parliament's lawyer, adding that the request for immunity made by Riba for Puigdemont and Comín "lapsed", when there was no response to Sassoli's second letter, which told them that it was the persons affected who had to make the request, or a person on their behalf, but in a way permitted under the rules. In their questions, the judges mentioned that the immunity question will be discussed in the hearing this Friday.
The president of the court, Anna Marcoulli, insisted on asking Boye and the Spanish state solicitor when the lifting of the immunity of a parliamentarian must be requested. The Spanish state's lawyer indicated that Spain's Supreme Court and Constitutional Court "have clear jurisprudence" which specifies that a request to waive immunity is only requested from a Spanish court when the investigation begins, prior to their prosecution, and that is why she insisted that Puigdemont was prosecuted before becoming an MEP. However, Boye assured that the new jurisprudence indicates that it must be requested when the trial begins in the case of those with parliamentary immunity from prosecution.
The lawyer for the MEPs backed the argument of one of the judges when, in the end, he declared: "What you gentlemen want to be admitted is not that Sassoli's letter was annulled, but that this was because it was not forwarded to the legal services committee, right?" The hearing ended at half past five in the afternoon and the presiding judge announced that the parties would be notified of the date of the decision.
This Friday, at half past ten in the morning, the second legal assault by the Catalan MEPs begins, in an effort to defend their immunity before the same judges of the General Court. Only the location will change, switching to the large chamber of the EGC.
In the main photo, Gonzalo Boye, with the European Parliament's lawyers, before the start of the hearing. / Photo: M.P.