1.

At the opening of each new parliamentary term of the House of Commons (United Kingdom), the speaker petitions the King (or, as at present, the Queen) to grant the chamber its claim ‘to freedom of speech in debate, to freedom from arrest, and to free access to His Majesty whenever occasion shall require, and that the most favourable construction shall be put upon all their proceedings’. The king responds, confirming all the privileges granted by him or his many predecessors. ( 2 )

2.

Parliamentary immunity, termed parliamentary privilege, does indeed have its origin in the history of the United Kingdom Parliament. The most important element of that privilege, freedom of speech, became recognised as an institution by the end of the sixteenth century and was codified in the Bill of Rights in 1689. It gave rise to today’s non-liability (or substantive immunity) for statements made or acts performed in the exercise of the parliamentary mandate.

3.

In continental law, the emergence of parliamentary immunity is commonly associated with the French Revolution. The new institution born at the time of the Revolution, the National Assembly, needed protection against the hitherto absolute power of the monarchy. The first expression of that immunity appeared in the decrees of the National Assembly itself. It already encompassed both the components of parliamentary immunity as we know it today: substantive immunity (non-liability) for acts committed in the performance of parliamentary duties ( 3 ) and procedural immunity (inviolability) for all other acts, unless prosecution is authorised by the Assembly. ( 4 ) Parliamentary immunity was then given constitutional status in the 1791 Constitution.

4.

The form of that immunity established at the time of the French Revolution, comprising the two limbs, non-liability and inviolability, was widely reproduced in the parliamentary law of the States of continental Europe.

5.

Although parliamentary immunity manifests itself as the protection given personally to each member of parliament, its purpose is nevertheless different. It is not a privilege of members of parliament intended to place them beyond the reach of the ordinary law, but a mechanism to protect the parliament as a whole. ( 5 )

6.

As regards inviolability in particular, one of the aims of that protection is to ensure that the full parliament can meet, without abusive or vexatious criminal (or even civil) proceedings keeping certain of its members from the debates. ( 6 )

7.

Nowadays, the justification for that immunity is frequently questioned. It is argued that it is anachronistic, a relic from a time when parliaments were open to attack from the executive and from a judiciary still often in the service of the latter. In a modern State governed by the rule of law, in contrast, the independence of judges is the best guarantee against unjustified attacks that threaten the functioning or composition of parliament, and procedural immunity therefore loses its raison d’être. What is more, that immunity, the argument goes, leads to abuse and is an infringement of the fundamental right of access to justice for those injured by acts allegedly committed by parliamentarians other than in exercise of their office. ( 7 )

8.

There is undoubtedly much truth in those claims.

9.

Nevertheless, on the one hand, to my mind they reveal a very optimistic view of things: the rule of law has not progressed to the same stage everywhere and political change does not always move only in the direction of strengthening it. Furthermore, although in principle judges stay independent, that is not necessarily so of either the security forces or the public prosecutor’s office. ( 8 )

10.

On the other hand, measures such as the judicial review of decisions to lift immunity, limitation of its extent or scope and the parliamentary practice of lifting immunity by default unless there is fumus persecutionis, can prevent abuse and keep immunity within the confines appropriate to its role as parliament’s protective shield.

11.

Used correctly, the immunity of members of parliament is therefore one of the guarantees of their independence and, therefore, of the independence of any parliament, including the European Parliament.

12.

Nevertheless, to enjoy that immunity, a person must first become a member of parliament. In the institutional order of the European Union, the process of acquiring the status of Member of Parliament is governed partly by the national provisions of the Member States and partly by those of EU law. This case raises the question of how the respective scopes of application of those different legal orders are allocated. It therefore has constitutional significance far beyond the personal situation of the applicant in the main proceedings and the national political debate with which he is associated. I propose to address the legal questions that arise in this case from that constitutional perspective.

13.

According to Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union, ( 9 ) annexed to the TEU and the TFEU (‘the Protocol’):

‘During the sessions of the European Parliament, its Members shall enjoy:

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.’

14.

The procedure for electing members of the Parliament is governed by the Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976, ( 10 ) as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 ( 11 ) (‘the 1976 Act’). Article 5 of that act states that:

‘1.   The five-year term for which members of the European Parliament are elected shall begin at the opening of the first session following each election.

…

2.   The term of office of each member of the European Parliament shall begin and end at the same time as the period referred to in paragraph 1.’

15.

According to Article 6(2) of that act:

‘Members of the European Parliament shall enjoy the privileges and immunities applicable to them by virtue of the Protocol of 8 April 1965 on the privileges and immunities of the European Communities.’

16.

The first paragraph of Article 8 of that act provides that:

‘Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.’

17.

Under Article 12 of the 1976 Act:

‘The European Parliament shall verify the credentials of members of the European Parliament. For this purpose it shall take note of the results declared officially by the Member States and shall rule on any disputes which may arise out of the provisions of this Act other than those arising out of the national provisions to which the Act refers.’

18.

Lastly, Article 13(1) of that act states that:

‘A seat shall fall vacant when the mandate of a Member of the European Parliament ends as a result of resignation, death or withdrawal of the mandate.’

19.

Article 71 of the Spanish Constitution states that:

‘1.   Deputies and senators shall enjoy absolute privilege ( 12 ) in respect of opinions expressed in the performance of their duties.

2.   During their term of office, deputies and senators shall also have immunity and may only be arrested if they are found in the act of committing an offence. They cannot be charged or prosecuted without the prior authorisation of the relevant legislative chamber.

3.   The Criminal Division of the Tribunal Supremo [(Supreme Court, Spain)] shall have jurisdiction in cases against deputies and senators.

…’

20.

Ley Orgánica 5/1985 del Régimen Electoral General (Organic Law No 5/1985 on the General Electoral System) of 19 June 1985, ( 13 ) as amended, (‘the Electoral Code’) governs the Spanish electoral system. Title VI of that code contains the specific provisions governing elections to the European Parliament. In particular, Article 224(1) and (2) of that code provides that:

‘1.   The Junta Electoral Central [(Central Electoral Board, Spain)] shall, at the latest by the twentieth day following the elections, count the votes at national level, allocate the seat corresponding to each of the candidates, and declare the elected representatives.

2.   Within five days of their declaration, the elected candidates shall swear or pledge to abide by the Constitution before the Central Electoral Board. Once that period has elapsed, the Central Electoral Board shall declare vacant the seats corresponding to Members of the European Parliament who have not sworn or pledged to abide by the Constitution and shall withdraw all the privileges to which they may be entitled by reason of their office until such time as that oath or pledge takes place.’

21.

According to Article 384 bis of the Real Decreto por el que se aprueba la Ley de Enjuiciamiento Criminal (Royal Decree approving the Law on Criminal Procedure; ‘the Law on Criminal Procedure’) of 14 September 1882: ( 14 )

‘Where an indictment has become final and a temporary custody order has been made in respect of an offence committed by a person who is a member of or who is linked to an armed group or individuals who are terrorists or insurgents, a defendant who is in public office will automatically be suspended from holding that office for as long as he remains in custody.’

22.

Articles 750 to 755 of that law read as follows:

‘Article 750

A court which finds that there are grounds for prosecuting a senator or deputy in the Cortes [(Spanish Parliament)] for an offence shall refrain from bringing proceedings against that person if the Parliament is in session until it obtains the relevant authorisation from the legislative chamber of which the person in question is a member.

Article 751

Where a senator or deputy in the Spanish Parliament is found in the act of committing an offence, he or she may be arrested and prosecuted without the authorisation referred to in the previous article; however, the relevant legislative chamber must be notified of this within 24 hours of the arrest or prosecution.

The legislative chamber concerned must also be notified of any case pending against a person who, while being prosecuted, is elected a senator or deputy in the Spanish Parliament.

Article 752

If a senator or deputy in the Spanish Parliament is prosecuted during a period between parliamentary sessions, the court trying the case must immediately bring this to the attention of the legislative chamber concerned.

The above shall also apply where a person who has been elected a senator or deputy in the Spanish Parliament is prosecuted before Parliament meets.

Article 753

At all events, the court registrar shall stay proceedings from the date on which Parliament is informed, whether or not it is in session, and matters shall remain as they stand at that time until the relevant legislative chamber adopts the decision it considers appropriate.

Article 754

Should the Senate or the Congress refuse to grant the authorisation requested, the proceedings shall be stayed in respect of the senator or deputy but the case shall continue against the other defendants.

Article 755

The authorisation shall be sought in the form of a request which is to be accompanied by a notarised document, to be treated as confidential, setting out the charges against the senator or deputy, including the opinions of the public prosecutor and the particular complaints in which the authorisation has been sought.’

23.

The applicant in the main proceedings, Oriol Junqueras Vies, was Vice-President of the Gobierno autonómico de Cataluña (Autonomous Government of Catalonia, Spain) at the time of the adoption, by the Parlamento de Cataluña (Parliament of Catalonia, Spain), of the Ley 19/2017 del referéndum de autodeterminación (Law No 19/2017 on the referendum on self-determination) of 6 September 2017, ( 15 ) and Ley 20/2017 de transitoríedad jurídica y fundacional de la República (Law No 20/2017 on legal transition and founding of the Republic) of 8 September 2017, ( 16 ) and on that date 1 October 2017, that the self-determination referendum was held under the first of those laws, whose provisions had in the meantime been suspended by a ruling of the Tribunal Constitucional (Constitutional Court).

24.

As a result of those events, the Ministerio fiscal (Public Prosecutor’s Office, Spain), the Abogado del Estado (Counsel for the State, Spain) and the VOX political party brought criminal proceedings against a number of people, including Mr Junqueras Vies, accusing them of taking part in a secessionist process and, in that context, of committing acts constituting three criminal offences, that is to say, first, rebellion or, alternatively, sedition, secondly, civil disobedience and, thirdly, misappropriation of funds.

25.

By an order of 2 November 2017, Mr Junqueras Vies was remanded in custody during the pre-trial investigation stage of those criminal proceedings. That order has been renewed uninterruptedly since then.

26.

After the trial had commenced in the criminal proceedings against him, Mr Junqueras Vies stood as a candidate in the elections to the Congreso de los Diputados (Congress of Deputies, Spain) held on 28 April 2019. He was elected as a member of the Congress of Deputies.

27.

By order of 14 May 2019, ( 17 ) the Tribunal Supremo (Supreme Court) found that there was no reason to apply to the Congress of Deputies for the prior authorisation under Article 71(2) of the Spanish Constitution and Article 755 of the Law on Criminal Procedure, on the grounds that Mr Junqueras Vies was elected after the trial had begun in the proceedings against him. According to that court, the immunity under that constitutional provision only applies to criminal proceedings that have not yet reached the trial phase in respect of the member of Congress or senator concerned.

28.

By the same order, that court, on application by Mr Junqueras Vies, granted him a special licence for release from prison so that he could, under police surveillance and in circumstances guaranteeing his security, participate in the first plenary sitting of the Congress of Deputies in order to comply, on that occasion, with the requirements for taking his seat as laid down in Article 20 of the Reglamento del Congreso de los Diputados (Rules of Procedure of the Congress of Deputies), including the swearing of an oath.

29.

After complying with those requirements and taking his seat, and then being returned to prison, Mr Junqueras Vies was suspended from office as a member of the Congress of Deputies by decision of the Committee of the Congress of Deputies adopted on 24 May 2019, in accordance with Article 384 bis of the Law on Criminal Procedure.

30.

Mr Junqueras Vies also stood as a candidate in the elections to the Parliament held on 26 May 2019. He was elected to the Parliament, and that result was declared by the Central Electoral Board in a decision of 13 June 2019, ‘Declaration of persons elected as Members of the European Parliament in the elections held on 26 May 2019’, ( 18 ) in accordance with Article 224(1) of the Electoral Code.

31.

By order of 14 June 2019 (‘the order of 14 June 2019’), the Tribunal Supremo (Supreme Court) ruled on an application by Mr Junqueras Vies for a special licence for release from prison in order to appear before the Central Electoral Board to swear the oath to abide by the Spanish Constitution that Article 224(2) of the Electoral Code requires of persons elected as Members of the European Parliament. That court refused to grant the licence sought.

32.

On 20 June 2019, the Central Electoral Board adopted a decision finding that Mr Junqueras Vies had not taken the oath in question and, in accordance with Article 224(2) of the Electoral Code, declared the seat corresponding to him in the Parliament vacant and suspended all the privileges to which he might have been entitled by reason of his office. At the same time, the Central Electoral Board provided the Parliament with a list of the Members of Parliament elected in Spain, which did not include the name of Mr Junqueras Vies.

33.

The Parliament held its first meeting of the ninth parliamentary term on 2 July 2019.

34.

In the meantime, Mr Junqueras Vies lodged an appeal to the Tribunal Supremo (Supreme Court) against the order of 14 June 2019, in which he relied on the immunity under Article 9 of the Protocol.

35.

In those circumstances the Tribunal Supremo (Supreme Court) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

36.

In the decision to refer, the Tribunal Supremo (Supreme Court) emphasised that it was seeking a ruling from the Court of Justice on questions of the interpretation of EU law put before it not in the context of preparing the judgment on the merits then being deliberated on in the criminal proceedings against Mr Junqueras Vies, but in the context of a procedural matter arising in his appeal against the order of 14 June 2019. It also stated that it was obliged to put those questions to the Court of Justice as the court ruling at last resort, under Article 71(3) of the Spanish Constitution.

37.

The Court of Justice received the request for a preliminary ruling on 1 July 2019. Mr Junqueras Vies, the Public Prosecutor’s Office, the VOX political party, the Spanish Government, the Parliament and the European Commission filed written observations. Those parties were represented at the hearing held on 14 October 2019.

38.

On the same date, the referring court delivered judgment 459/2019 (‘the 14 October 2019 judgment’), in which it sentenced Mr Junqueras Vies, and others, to 13 years’ imprisonment and forfeiture of civil rights (inhabilitación absoluta) for the same period. In a letter sent to the Court of Justice the same day, the Tribunal Supremo (Supreme Court) stated that it was maintaining the reference for a preliminary ruling.

39.

The referring court has requested a preliminary ruling from the Court of Justice on three questions concerning, in essence, the scope ratione personae and ratione temporis of the immunity of Members of the European Parliament under Article 9 of the Protocol. It is however apparent from the observations submitted by several parties in this case that a much more fundamental preliminary issue arises in the case of the applicant in the main proceedings: does Mr Junqueras Vies enjoy the status of Member ( 19 ) of the European Parliament? I will therefore begin my analysis by examining that issue.

40.

The parliamentary immunity under Article 9 of the Protocol applies to Members of the Parliament. However, the parties in the main proceedings that have submitted observations, with the exception, of course, of the applicant in the main proceedings, believe that he has not acquired that status, or at least, not fully. They argue that, by virtue of the 1976 Act, the electoral procedure for elections to the Parliament is governed by the national law of the Member States. According to those parties, the obligation to swear to abide by the Spanish Constitution, established for persons elected to the Parliament in Article 224 of the Electoral Code, is a stage in the electoral process in Spain, with the effect that a person who has been declared elected only acquires the mandate of a Member of the European Parliament, with all the ensuing prerogatives, including immunity, once that obligation is discharged. That was the reasoning followed by the Central Electoral Board when it provided the Parliament with the list of the persons elected, which did not include the name of the applicant in the main proceedings.

41.

That line of argument is shared by the Parliament and, in essence, by the Commission in their observations in this case. It also appears to be the position of the referring court, set out in the request for a preliminary ruling.

42.

For my part, I do not concur with that line of argument, for the following reasons.

43.

Under Article 14(2) TEU, the Parliament is composed of representatives of the Union’s citizens. Those representatives are elected, in accordance with Article 14(3) TEU, by direct universal suffrage. That election is governed by the provisions of the 1976 Act. That act provides that, without prejudice to the matters harmonised in it, the electoral procedure is governed by the national law of the Member States (Article 8 of that act). Besides the electoral procedure in the strict sense, that reference to national law concerns matters such as the right to vote and eligibility, monitoring the validity of elections and, in part, incompatibility.

44.

Conversely, the status of Members of the European Parliament, as representatives of the Union’s citizens elected by direct suffrage and members of an EU institution, can only be governed by EU law. To allow the national law of the Member States to govern the status of Members of the European Parliament would harm not only the independence of the Parliament in dealings with the Member States, but also the autonomy of the EU legal order as a whole.

45.

The matter of how the status of Member of the European Parliament is acquired should be assessed from that perspective of institutional independence and legal autonomy.

46.

First, the reasoning according to which the status of Member of the European Parliament is only acquired subject to discharging the formalities required by national law, such as swearing an oath, is to my mind contrary to the very concept of direct universal suffrage and representative office. Indeed, such an office can only be acquired as a result of voting by electors alone and cannot be conditional on the subsequent performance of any formality, which, as the present case shows, does not always depend solely on the elected person. Indeed, electors elect members of parliament, not ‘aspirant members of parliament’. Their decision expressed at the time of voting is not subject to any ‘validation’ or ‘confirmation’.

47.

Parliamentary office and how it is conferred are of course subject to a number of requirements and formal limitations: eligibility, incompatibility and the validity of the election. Nevertheless, those are objective circumstances relating to the nature of the person elected or of the electoral process. Failure to comply with those requirements makes it legally impossible to obtain or retain the mandate and can cause it to end before expiry of the term.

48.

It is also true that various parliamentary systems impose formal obligations that parliamentarians must satisfy before they effectively take office, whether an obligation to swear an oath or to declare financial or other interests. However, those obligations apply to parliamentarians, that is to say, to persons who have already acquired the mandate. In contrast, they are not conditions for acquiring the mandate, which cannot be the result of anything other than the will of the people expressed in an election. ( 20 )

49.

The declaration of results is therefore the act that ends the electoral process and by which the people elected acquire their mandate. ( 21 ) All formalities subsequent to that act, with the exception of any invalidation of elections, are merely declaratory and cannot determine acquisition of the mandate.

50.

I can therefore accept that, in Spanish law, swearing an oath to abide by the Spanish Constitution, which is an obligation on Members of the European Parliament elected in Spain under Article 224 of the Electoral Code, can be a condition of those Members effectively taking office. ( 22 ) In contrast, it cannot be a condition of them acquiring the status of Members of the European Parliament and the ensuing prerogatives, including immunity. The line of argument to the effect that the status of member of parliament, and therefore the ensuing immunity, belongs only to a person who has, without any interference, effectively taken office, would lead to a vicious cycle: the elected person would not be able to rely on his or her immunity, because he or she would not be a member of parliament, but without that immunity would be prevented from discharging the obligation that would allow him or her to acquire that status and the resulting immunity. Preventing a person duly elected to a public office from swearing the oath required to take that office is therefore a perfect way of depriving that person of the office in question against the wishes of those who are legally competent to invest him or her with it.

51.

Admittedly, under Rule 3 of the Rules of Procedure of the Parliament, the procedure for verifying the credentials of Members of Parliament is conducted on the basis of the competent authorities of the Member States notifying the names of the persons elected. It makes complete sense that the Parliament must be informed officially of the results of elections, since it cannot be obliged to go through the official journal of each Member State to find that information. Nevertheless, that notification is only a technical act that, contrary to what the Commission, amongst others, claims, cannot be constitutive of acquisition of the mandate. It is moreover assumed that the notification in question is a true reflection of the result of the elections given that, according to the second paragraph of Rule 3(3) of the Rules of Procedure of the Parliament, the verification of credentials is based ‘on the official notification by each Member State of the full results of the election, specifying the names of the candidates elected’. What is more, under Article 12 of the 1976 Act, in order to verify the credentials of its Members, the Parliament takes note of ‘the results declared officially by the Member States’. ( 23 ) The 1976 Act, as a legislative measure, prevails over the Rules of Procedure of the Parliament. ( 24 )

52.

Secondly, the consequence, according to Spanish law, of failing to swear to abide by the Spanish Constitution, namely a declaration that the seat remains (temporarily) vacant and suspension of the ensuing prerogatives until such time as the obligation to swear the oath is discharged, is to my mind incompatible with the relevant provisions of the 1976 Act.

53.

Indeed, although that Act gives the Member States the task of electing Members to the Parliament, it does not place the mandate of those Members freely at their disposal. The Member States are, admittedly, competent, first of all, to verify the validity of elections. That seems to make sense, because it is the Member States that take responsibility for conduct of the vote. If irregularities are found, the elections, and therefore their results, can be annulled, which in principle leads to a new vote. Also, the Member States can declare that the mandate of a Member of the European Parliament is withdrawn. That withdrawal may result from, inter alia, the Member ceasing to be eligible or incompatibility arising with the mandate of Member of the European Parliament.

54.

None of those circumstances in fact occurred in the present case, at least not by the time the 14 October 2019 judgment was delivered. Indeed, the fact that the applicant in the main proceedings has not sworn the required oath has not caused his mandate to be withdrawn, but merely, as the referring court itself put it, the ‘temporary suspension [of effective acquisition of that mandate] until such time as, depending on the possible outcome of the proceedings, the obstacles preventing him from acquiring the status of a member of parliament cease to exist’. However, neither the 1976 Act nor any other provision of EU law gives the Member States competence to (temporarily) suspend the mandate of a Member of the European Parliament for an indefinite period that could potentially extend to the entire parliamentary term.

55.

Thirdly, the statement that the obligation to swear to abide by the Spanish Constitution, established in Article 224 of the Electoral Code, is an element of the electoral process, is not to my mind a logical corollary of Spanish law itself.

56.

That obligation is indeed laid down in Article 108(8) of the Electoral Code, for any elected person. Nevertheless, according to that article, the oath must be sworn ‘at the time of taking possession in order to acquire the full status of their office’. In contrast therefore to what the Spanish Government stated at the hearing, it does not follow from that article that the obligation in question is a condition of acquiring the mandate.

57.

That finding is confirmed in particular in relation to people elected to the Cortes Generales (Spanish Parliament). The obligation at issue is governed by the rules of procedure of each chamber of the Spanish Parliament. The oath is sworn before the relevant chamber for each member of that Parliament, in principle at its first plenary sitting. Nevertheless, the members have three plenary sittings in which to discharge that obligation before the penalty of the seat being declared vacant is imposed.

58.

Accordingly, this is in my view clearly a formality incumbent on members of the Spanish Parliament, who are the only people to whom the provisions of the internal rules of procedure relate and who can participate in plenary sittings of the chambers. Although that formality can be a condition for effectively exercising the mandate, it does not in any way determine its acquisition, which arises exclusively from the result of the elections.

59.

That has been expressly confirmed by the Tribunal Constitucional (Constitutional Court), which has stated, in relation to the obligation to swear to abide by the Spanish Constitution, that ‘any failure to discharge that obligation does not deprive a person of the status of deputy or senator, because that status is based solely on election by the people, but merely of the exercise of the office inherent in that status’. ( 25 ) It is indeed therefore a question of the exercise of parliamentary office rather than of acquisition of the mandate.

60.

If that is so for members of the Spanish Parliament, I do not see how it could be any different for Members of the European Parliament. Indeed, a formal obligation on a deputy (or a senator) that is a condition for effectively taking office, that is to say, that of swearing to abide by the Spanish Constitution, cannot suddenly alter in character and become a necessary component of the electoral process and a constitutive factor in acquiring the mandate of Member of the European Parliament.

61.

Fourthly and lastly, moving to issues related directly to the interpretation of Article 9 of the Protocol, the thesis according to which discharging the obligation to swear to abide by the Spanish Constitution is a condition of Members of the European Parliament elected in Spain acquiring their mandate would place those Members, and the Parliament itself, at a clear disadvantage compared with the Spanish Parliament and its members as regards the benefit of parliamentary immunity and competence to waive or defend that immunity.

62.

The members of the Spanish Parliament take that oath before their respective chambers, in principle at the time of the first plenary sitting that they attend. The taking of that oath is governed by the procedural rules of each chamber. It is therefore a procedure internal to the chamber concerned and does not involve any third-party institution. Furthermore, as I have already noted, that obligation is not a condition of acquiring the status of parliamentarian, but only of fully exercising that status. What is more, in any event as regards the Congress of Deputies, the penalty consisting of suspending the member’s prerogatives arises only after three plenary meetings have been held without the member discharging the obligation in question. ( 26 ) In addition, it is not certain that the suspension also concerns parliamentary immunity. ( 27 )

63.

In respect of Members of the European Parliament, in contrast, the oath is taken before the Central Electoral Board, a body unconnected with the Parliament, and the Parliament has no say in the matter. If a Member of the European Parliament (or ‘the elected candidate’ in the words of Article 224 of the Electoral Code) fails to discharge that obligation, including for reasons beyond his or her control, his or her seat is immediately and automatically declared vacant, with the effect that his or her name is not even notified to the Parliament as one of the persons elected and, as has been claimed, that he or she is not covered by parliamentary immunity.

64.

However, according to subparagraph (a) of the first paragraph of Article 9 of the Protocol, Members of the European Parliament, in the territory of their own State, enjoy ‘the immunities accorded to members of their parliament’, and competence to waive that immunity lies, by virtue of the third paragraph of Article 9 of the Protocol, with the Parliament. Nevertheless, I fail to see how that immunity can be regarded as the same as that granted to national parliamentarians if the requirements for accessing the status of parliamentarian, before immunity is granted, are not equivalent.

65.

It follows from the foregoing that, contrary to the parties’ claims referred to in points 40 and 41 of this Opinion, taking the oath to abide by the Spanish Constitution is not a stage in the process of election to the European Parliament in Spain, which must be regarded as being concluded by the official declaration of the results. The status of Member of the European Parliament must therefore be deemed to be acquired merely as a result of and from the time of that declaration.

66.

Furthermore, according to the information in the request for a preliminary ruling and in the observations of the Spanish Government, the applicant in the main proceedings was suspended from his national elected offices (that of a member of the Catalan regional parliament and of the lower chamber of the Spanish Parliament) under Article 384 bis of the Law on Criminal Procedure.

67.

Contrary, once again, to the claims of the Spanish Government, it seems plain to me that a suspension of that nature cannot affect the applicant in the main proceedings as a Member of the European Parliament. Admittedly, Members of the European Parliament are elected in the Member States, in accordance with the arrangements established by their national law, harmonised in certain respects by the 1976 Act. It is for the purposes of that election that the Treaty allocates seats in the Parliament among the Member States on a ‘degressively proportional’ basis (Article 14(2), third paragraph, TEU). That is also why, in addition to purely procedural provisions, the Member States apply their own rules as regards, in particular, eligibility. They are also authorised to apply their own rules on incompatibility to Members of the European Parliament elected in their respective territories, in addition to the list of incompatible offices in Article 7 of the 1976 Act. It also makes sense that the national law of the Member States governs monitoring of the validity of elections.

68.

Once elected, Members of the European Parliament nevertheless hold a mandate governed by EU law that the Member States can neither revoke nor limit without an express authorisation under that law. The only circumstance in which the mandate of a Member of the European Parliament ends before its normal date of expiry, besides resignation and death, is where the mandate is withdrawn (Article 13(1) of the 1976 Act). That withdrawal can arise under the national legislation of the Member State in which the Member in question was elected. That makes sense, since the European parliamentary mandate is normally withdrawn either because the person concerned has ceased to be eligible, or because an incompatibility has arisen, and both those factors are governed, albeit in part in relation to the latter, by the national law of the Member States.

69.

The 1976 Act, in contrast, does not allow a Member State to suspend the mandate of a Member of the European Parliament or the ensuing prerogatives, for any reason whatsoever, whether that Member is elected in that Member State or in a different one. ( 28 ) Subject to the situations in which the mandate ends, set out in Article 13(1) of the 1976 Act, a Member of the European Parliament keeps that status throughout his or her normal term of office.

70.

To conclude this part, I believe that a person whose election to the Parliament has been officially declared by the competent authority in the Member State in which that election took place acquires the status of Member of the European Parliament merely as a result of and from the time of that declaration, notwithstanding any subsequent formality that the person in question is purportedly required to perform, whether under EU law or under the national law of the Member State in question. Such a person keeps that status until expiry of his or her mandate, subject to the situations in which the mandate ends, referred to in Article 13(1) of the 1976 Act.

71.

The referring court puts three questions to the Court of Justice relating to the interpretation of Article 9 of the Protocol. Specifically, the first and second questions relate to the applicability ratione personae and ratione temporis of subparagraph (a) of the first paragraph of Article 9 of that protocol. The third question relates to the scope of the second paragraph of Article 9 of that protocol.

72.

The parliamentary immunity of Members of the European Parliament is established in Articles 8 and 9 of the Protocol.

73.

Article 8 of the Protocol establishes that those members will not be liable in respect of opinions expressed or votes cast by them in the performance of their duties (substantive immunity). That article quite clearly does not apply in the present case.

74.

Article 9 of the Protocol, for its part, establishes the inviolability of Members of the European Parliament (procedural immunity). Under subparagraph (a) of the first paragraph of Article 9 of the Protocol, in the territory of their own State, these Members enjoy the immunities accorded to members of their country’s parliament. ( 29 ) That is the provision to which the first two questions referred relate. In the territory of the other Member States, under subparagraph (b) of the first paragraph of Article 9 of that protocol, those Members have ‘immunity from any measure of detention and from legal proceedings.’ According to the second paragraph of Article 9 of that protocol, the immunity shall likewise apply to Members of the European Parliament while they are travelling to and from the place of meeting of the Parliament. That provision is the subject matter of the third question referred. Under the third paragraph of Article 9 of the Protocol, the immunity established in that article, both in subparagraphs (a) and (b) of the first paragraph and in the second paragraph, can be waived by the Parliament. That competence is exclusive, and precludes the competence of any other institution, whether national or EU.

75.

The current wording of the first paragraph of Article 9 of the Protocol has been practically unchanged since the 1951 Protocol on the privileges and immunities of the European Coal and Steel Community. I share the view held by academic commentators that the reference to national law in relation to the immunity of Members of the European Parliament in their own Member States is a relic from the time when members of the Assembly were also members of national parliaments. At that time, they already enjoyed the immunity under national law and it was therefore unnecessary to add a second immunity. That situation became anachronistic once Members of the European Parliament became elected by direct suffrage, and has been even more so since the prohibition on holding both mandates. It has also been strongly criticised as anachronistic and as a source of unequal treatment. ( 30 )

76.

It is worth noting that the proposals to unify parliamentary immunity put forward by the Parliament have not come to fruition. ( 31 )

77.

Subparagraph (a) of the first paragraph of Article 9 of the Protocol must nevertheless be interpreted in such a way that it preserves the consistency and unity of the status of Members of the European Parliament.

78.

According to the first paragraph of Article 9 of the Protocol, the immunity it establishes applies ‘during the sessions of the European Parliament’. That provision relates to both the immunity under national law (referred to in subparagraph (a) of the first paragraph of Article 9 of that protocol) and the ‘European’ immunity (referred to in subparagraph (b) of the first paragraph of Article 9 of that protocol). In fact, although the substance of the immunity under national law is determined by that law, the duration of protection is nevertheless governed by EU law in the same way for all Members of the European Parliament. In view of the disparity in the legislation of the various Member States as regards the period during which parliamentary immunity applies, any other interpretation would have the result of increasing the inequality in the treatment of Members of the European Parliament depending on the Member State in which they are elected. The concept of ‘sessions’ of the Parliament must therefore be interpreted as an autonomous concept of EU law. ( 32 )

79.

Under Article 229 TFEU, the Parliament holds an annual session. The first session of the Parliament following its re-election begins on the first Tuesday after expiry of an interval of one month from the end of the electoral period (Article 11(3) of the 1976 Act). ( 33 ) Setting the end of the annual sessions has been left to the Parliament as a measure of internal organisation. According to the current practice, a session corresponds to the period of one year, meaning that the Parliament is constantly in session. ( 34 ) The Court has already had occasion to hold that the concept of ‘sessions’ within the meaning of the first paragraph of Article 9 of the Protocol covers the whole of that period, irrespective of whether the Parliament is actually sitting. ( 35 )

80.

The answer to the first question referred, as put by the referring court, should therefore be that the duration of sessions of the Parliament, within the meaning of the first paragraph of Article 9 of the Protocol, begins at the opening of the first session of Parliament following its re-election, that is to say, on the date referred to in Article 11(3) of the 1976 Act. That provision of the Protocol begins to apply on the same date.

81.

The second question referred concerns whether the immunity under the first paragraph of Article 9 of the Protocol also applies to a person who has been elected as a Member of the European Parliament but who was unable to take office because he or she had not discharged the obligation to swear an oath established in Spanish law.

82.

As I have indicated in the first part of this Opinion, a person in the situation of the applicant in the main proceedings must be regarded as having acquired a parliamentary mandate and, therefore, the status of Member of the European Parliament. That person can therefore enjoy the immunity under the first paragraph of Article 9 of the Protocol. However, it is still necessary to determine the time at which a Member of the European Parliament begins to enjoy that immunity.

83.

The immunity under the first paragraph of Article 9 of the Protocol applies to Members of the European Parliament, in principle, from the opening of the first session of the Parliament following its re-election. The term of office of those Members starts to run at the same time (Article 5(2) of the 1976 Act). Given that the Parliament is constantly in session, the period for which the Member of the European Parliament is covered by the immunity in question is the same as the term of office.

84.

In accordance with Article 5(2) of the 1976 Act, read in conjunction with Article 5(1) of that act, the mandate of ‘each’ Member of the European Parliament begins at the opening of the first session after the elections. ( 36 ) Neither that provision nor any other makes the beginning of the mandate conditional on the Member of the European Parliament actually attending the first meeting of the Parliament following its re-election, effectively taking office in general or on any other circumstance. There is therefore reason to find that the term of office of a Member of the European Parliament who has not effectively taken office, because he or she has not complied with all the formalities required by national law, likewise begins at the opening of the first session of the Parliament following its re-election. From the same time, that Member of the European Parliament is therefore covered by the parliamentary immunity under the first paragraph of Article 9 of the Protocol.

85.

The third question referred concerns the interpretation of the second paragraph of Article 9 of the Protocol.

86.

Under that provision, parliamentary immunity likewise applies to Members of the European Parliament while they are travelling to and from the place of meeting of the Parliament. It is important, first of all, to clarify the exact nature of that immunity.

87.

The provision at issue is not explicit on that point. It refers simply to ‘immunity’. My view is that this term must be understood as referring to the immunity under subparagraphs (a) and (b) of the first paragraph of Article 9 of the Protocol. A Member of the European Parliament who is travelling to or from the place of meeting of the Parliament is therefore covered, in the territory of that person’s Member State, by the immunity granted to members of the parliament of that Member State.

88.

That interpretation is borne out by the fact that the third paragraph of Article 9 of the Protocol, which relates, inter alia, to waiver of the immunity of Members of the European Parliament, also uses the term ‘immunity’ with no further clarification. It is undisputed that what is referred to here is the immunity under the first paragraph of Article 9 of the Protocol.

89.

As regards the scope ratione temporis of the immunity under the second paragraph of Article 9 of the Protocol, the Court has already had an opportunity to note that it can apply outside the period during which the Parliament is in session, that is to say, after a session has been closed. ( 37 )

90.

I see no reason why that immunity cannot also apply before that period, including before the opening of the first session after the elections. That is perfectly reasonable, it seems to me, given that the Members of the European Parliament are supposed to travel to meetings of the Parliament before those meetings start.

91.

I do not concur with the line of argument put forward by the Commission in its written observations, and repeated at the hearing, that the second paragraph of Article 9 of the Protocol was only relevant in the past, when the Parliament was not constantly in session, and has since been obsolete. The wording is what it is and should be interpreted not by reference to hypothetical functions it may have had in an earlier legislative context, but in the light of current circumstances. Following the Commission’s logic, the reference to national law in subparagraph (a) of the first paragraph of Article 9 of the Protocol could equally well be said to be obsolete.

92.

That does indeed mean that the immunity would apply even before the mandate of Members of the European Parliament commenced. However, I find nothing shocking in that. Under the national law of the Member States, it is not exceptional for immunity to apply as soon as the election results are declared, even though the mandate, or exercise of the mandate, formally begins at a later date. ( 38 ) That situation is perfectly in line with the objective of parliamentary inviolability, namely to ensure that the full Parliament can begin its proceedings. As the referring court itself acknowledges, that objective could be jeopardised if, once the names of the elected Members were known, those Members were not covered by immunity.

93.

The expression ‘while they are travelling to and from the place of meeting of the European Parliament’ remains to be interpreted. On a strict literal interpretation, this would relate only to the time when the Member of the European Parliament is travelling to the place of meeting of the Parliament. Nevertheless, such a reductive interpretation would, to my mind, render that provision completely meaningless.

94.

What is most important is in fact not so much that the Member of the European Parliament should not be arrested when travelling to the place of meeting of the Parliament, but that he or she can undertake that journey to good effect, that is to say, that he or she can, in complete freedom, take all the steps necessary in order effectively to take office and to travel to that place of meeting. That is the only way to ensure that the immunity under Article 9 of the Protocol fully covers the Members of the European Parliament and has its full useful effect. The function of immunity, which is to protect the functioning and independence of the Parliament, does not in fact require its Members to be protected, before its sessions begin, against any measure that could lead to criminal prosecution. In contrast, that function does require that they are not prevented from taking office at the time those sessions start.

95.

The national authorities in the Member State in which the Member in question was elected therefore have an obligation to refrain from taking any measure that could hinder those steps and to suspend measures already taken, unless they have obtained a waiver of the immunity from the Parliament. Of course, since subparagraph (a) of the first paragraph of Article 9 of the Protocol refers, in relation to the substantive content of immunity, to national law, that obligation only concerns measures to which the parliamentary immunity under that national law relates.

96.

As a reminder, this request for a preliminary ruling was made in proceedings disputing the refusal, by the referring court, to grant the applicant in the main proceedings a licence to leave prison in order to take an oath to abide by the Spanish Constitution, an oath required in order effectively to begin to exercise his mandate as a Member of the European Parliament.

97.

The handing down of the judgment finally convicting the applicant in the main proceedings, on the same day as the hearing in this case, cast doubt on the very purpose of those proceedings and, consequently, on that of the request for a preliminary ruling.

98.

It is true that the referring court maintained its request for a preliminary ruling stating that ‘the Court’s answer is necessary irrespective of whether Mr Junqueras Vies is detained on remand or following a conviction’.

99.

However, the problem lies not in the basis on which the applicant in the main proceedings is detained, but in the ancillary penalty of the forfeiture of his civil rights, which was also imposed on him. According to the information available, that penalty involves, inter alia, permanent loss of any public office, including elected office, and of eligibility (the right to stand for election). ( 39 ) Since eligibility for office as a Member of the European Parliament, as a component of the rules governing elections, is determined by national law, ( 40 ) deprivation of eligibility under national law also affects eligibility in relation to the Parliament. It can therefore lead to withdrawal of the mandate within the meaning of Article 13 of the 1976 Act.

100.

Accordingly, given that the 14 October 2019 judgment gives rise to withdrawal of the mandate of the applicant in the main proceedings, ( 41 ) I see no point in examining whether or not he should be granted the authorisation in question, since any taking of an oath by him has, in any event, become redundant.

101.

I therefore entertain doubts as to whether the Court of Justice has jurisdiction to answer the questions referred for a preliminary ruling in this case. Admittedly, under the first sentence of Article 100(1) of the Rules of Procedure of the Court of Justice, that Court remains seised of a request for a preliminary ruling for as long as it is not withdrawn by the court which made that request. However, under Article 100(2) of those Rules, the Court may at any time declare that the conditions of its jurisdiction are no longer fulfilled. By virtue of Article 267 TFEU, the Court of Justice has jurisdiction to answer questions on the interpretation of EU law in actual proceedings taking place before the courts of the Member States. Accordingly, where the main proceedings cease being current, the Court of Justice no longer has jurisdiction, because its answer would be hypothetical.

102.

The 14 October 2019 judgment, combined with the effect of the order of 14 May 2019, means that the applicant in the main proceedings, even though he was elected as a Member of the European Parliament and, as I have described in this Opinion, has acquired that status, without however being able to begin effectively to exercise his mandate, has been convicted and sentenced under the criminal law, without the Parliament having an opportunity to rule on a waiver or any defence of his parliamentary immunity.

103.

According to a literal interpretation of Article 9 of the Protocol, everything is as it should be. In his or her Member State, the Member of the European Parliament enjoys immunity as established in national law, which can only be interpreted by the national courts.

104.

Nevertheless, as I have already noted, the wording of Article 9 of the Protocol has not changed since the ECSC Treaty and Protocol No 7 thereto. In fact, apart from that protocol, everything in the surrounding legislation has changed.

105.

The Parliament is no longer merely a consultative and supervisory assembly and has become the principal legislative and political organ of the Union, providing it with democratic legitimacy. It is no longer composed of the representatives of the peoples of the Member States, but those of the citizens of the Union. Those representatives are no longer delegated by the national parliaments but elected by direct universal suffrage. The ban on holding a dual mandate enhances the Parliament’s independence from the national parliaments.

106.

Moreover, electoral rights have been enshrined as fundamental rights in Article 39(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). The Court has in fact already had an opportunity to hold that Article 39(2) of the Charter, according to which ‘Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot’, constitutes ‘the expression in the Charter of the right of Union citizens to vote in elections to the European Parliament’. ( 42 ) Accordingly, if Article 39(2) of the Charter protects EU citizens’ active electoral rights (the right to vote), it must necessarily also protect their passive electoral rights, in other words the right to stand for election and to be elected. Indeed, the right to vote directly and freely would be meaningless if candidates did not have a right initially to stand freely in elections and, thereafter, once elected, to hold office, enjoying, where applicable, the protection conferred by parliamentary immunity.

107.

In the light of those changes, it can be seen that the result of a literal interpretation of Article 9 of the Protocol is unsatisfactory. There is therefore reason to question whether the interpretation of that provision has to remain set in the era of coal and steel or whether it should follow changes in the normative and institutional landscape.

108.

Without casting doubt on the reference to national law in subparagraph (a) of the first paragraph of Article 9 of the Protocol, such an interpretation could emphasise the Parliament’s jurisdiction over the immunity of its Members. In particular, that provision refers to the national rules in respect of the substantive content of the immunity, but leaves it to the Parliament to apply those rules. It therefore seems perfectly natural to me that, as soon as the national law of a Member State acknowledges that parliamentarians have immunity, it should not be the national court with jurisdiction that assesses whether it is appropriate to seek a waiver of that immunity, but the Parliament that judges whether it is appropriate to waive or defend that immunity.

109.

In the third question referred, the referring court also addresses the question of the need to find a balance between interests in the context of the decision on any prison licence for the applicant in the main proceedings. However, that question has become meaningless as a result of the judgment handed down on 14 October 2019. The only question that remains relevant is whether, at the time that judgment was handed down, immunity applied to the applicant in the main proceedings as a Member of the European Parliament.

110.

In the light of the foregoing, I propose that the Court should answer the questions referred for a preliminary ruling by the Tribunal Supremo (Supreme Court, Spain) as follows: