This coming Wednesday, the Luxembourg-based European General Court (EGC) is to make public the two rulings that are intended to decide whether the three exiled Catalan MEPs Carles Puigdemont, Toni Comín and Clara Ponsatí can maintain their parliamentary immunity or if the process of their handover to the Spanish state will be allowed to move forward. The resolutions, however, will come after important changes to the Spanish Penal Code that may mean that both texts will become obsolete. The repeal of the crime of sedition by the Spanish government, last December, has forced the Supreme Court to update the charges for which Puigdemont, Comín and Ponsatí are being prosecuted and, in March this year, it eliminated the offence of sedition in parallel with misuse of public funds and incorporated the new "aggravated" variant of misuse of public funds along with the lesser offence of disobedience.
This means, according to the defence lawyer for the three Junts politicians, Gonzalo Boye, that if the EGC does not accept the demand and withdraws their immunity, the Supreme Court judge, Pablo Llarena, will need to once again ask the European chamber to lift the trio's parliamentary immunity for the new alleged crimes, which in Ponsatí's case means only an offence of disobedience. If Llarena does not take this preliminary step and reactivates the European Arrest Warrants (EAW), the Catalan politicians will once again request interim measures from the court to maintain their immunity, while in addition, appealing against the ruling to the higher European Court of Justice (ECJ). So, there is still a long way to go, and no date has been set for president Puigdemont's return to Catalonia.
The two rulings
On Wednesday, the court will resolve case T-115/20, under which MEPs Puigdemont and Comín requested the annulment of the decision of December 10th, 2019, by the then-president of the European Parliament, David Sassoli, not to notify the plenary and refer the demand to the competent committee, after this demand had been presented on the MEPs' behalf by ERC MEP Diana Riba. Thus, the president of the EU Parliament did not act, despite the third EAW which had been issued by judge Llarena.
In the second case, T-272/21, the court must decide whether the European Parliament's legal affairs committee (JURI) acted correctly or not when it processed the request by Pablo Llarena to lift the immunity of Puigdemont, Comín and Ponsatí. The exiled politicians' lawyer maintains that the president of the JURI committee, Adrián Vázquez, MEP for the anti-independence Ciudadanos, acted with a lack of impartiality, and that the rapporteur for the case, the far-right MEP Angel Dzhambazki, wrongly dealt with the three requests at the same time, thus not following the chamber's regulations because such cases must be processed individually. For this reason, the exiles request the annulment of the decision taken to waive immunity.
Continuing limbo
There are two different rulings that are possible: that the General Court accepts the demand of the Catalan MEPs or that it rejects it. However, the EGC could also decide not to rule on the demands considering that the demands have been superceded by the law change in the Spanish state and by the new charges leveled against the MEPs, a situation that the defence hopes will not happen because it could mean that the three pro-independence politicians will continue in legal limbo. Boye even asserts that he would prefer a rejection from the EGC, in which between the lines it accepts some of his arguments, as the Court of Justice already did with the rulings on the preliminary questions affecting fellow Catalan exile Lluís Puig, in which it opened the door to the possibility of claiming that the Spanish Supreme Court is not the court correctly determined by law to try him.
New request to lift immunity
Puigdemont's defence lawyer admits that a ruling against the three this Wednesday in Luxembourg could lead to the Spanish judge issuing a new warrant immediately. However, he argues that the Spanish crime of sedition was the alleged offence for which the European chamber gave authorization to try the MEPs, and that offence no longer exists in the law; and secondly, the crime of aggravated misuse of funds has been added, and that this offence was not contemplated in the request that was considered in the EU Parliament.
In the event that, following a ruling in favour of the Spanish state, Llarena decided to issue a new EAW, Puigdemont's defence would thus respond by claiming the need for a new request to the European chamber to lift the parliamentary immunity, in this case, of Puigdemont and Comín for disobedience and aggravated misuse of funds, the crimes they are now charged with. In any case, Puigdemont's lawyers will again ask for interim measures to ensure they are not arrested.
A new immunity request, moreover, would also find a different situation in the European Parliament, given that during these last months, and following the ruling on Belgium's refusal to extradite Lluís Puig, the Court of Justice has accepted the possibility of refusing an arrest warrant when there is a risk of violation of fundamental rights, and even detailed that a legal deficiency "that affects the judicial protection of an objectively identifiable group of people" could be contemplated, which in this case could equate to the pro-independence Catalan politicians persecuted by the Spanish justice system.
Puigdemont, no victory in the General Court
Puigdemont's defence team admits that he has never won any of the cases he has presented before the General Court, that his victories have always come through the higher court, the Court of Justice. In any case, there will be no doubt about the court's decision, which will be for or against upholding the complaint, but the lawyer Boye also points out that the arguments on which the decision is based, whichever way it falls, could provide clues to foresee in what direction the case will then proceed.
On Wednesday, the MEPs and their lawyers will appear at a press conference, at the European Parliament, where they will be accompanied by representatives of the three main Catalan pro-independence parties, Junts, ERC and the CUP, as well as the Council of the Republic, Òmnium Cultural, the ANC, the AMI, the Barcelona Chamber of Commerce and the Intersindical trade union.