Case T‑115/20
Carles Puigdemont i Casamajó
and
Antoni Comín i Oliveres
v
European Parliament
Judgment of the General Court (Sixth Chamber, Extended Composition), 5 July 2023
(Action for annulment – Institutional law – Member of the European Parliament – Refusal of the President of the Parliament to accede to a request for privileges and immunities to be defended – Act not open to challenge – Inadmissibility)
Action for annulment – Actionable measures – Meaning – Measures producing binding legal effects – Assessment in the light of the content of the measure, the context in which it was adopted and the powers of its author – Refusal of the President of the Parliament to accede to a request for privileges and immunities of Members of the Parliament to be defended – Act not intended to produce binding legal effects – Inadmissibility
(Art. 263 TFEU; Protocol on the Privileges and Immunities of the European Union, Art. 9; Rules of Procedure of the European Parliament, Rule 9)
(see paragraphs 36-38, 54-56, 74-77, 82, 83, 87, 89)
Résumé
The applicants applied to stand as candidates in the elections to the European Parliament held in Spain on 26 May 2019, following which they were declared elected. (1) On 15 June 2019, the investigating judge of the Tribunal Supremo (Supreme Court, Spain) refused to withdraw the national arrest warrants issued against them by the Spanish criminal courts in the criminal proceedings to which they were subject for offences relating, inter alia, to insurgency, sedition and misuse of public funds.
On 17 June 2019, the Junta Electoral Central (Central Electoral Commission, Spain) notified the Parliament of the list of candidates elected in Spain, which did not include the applicants’ names. On 20 June 2019, it notified the Parliament of a decision in which it found that the applicants had not taken the oath or promised to respect the Spanish Constitution, as required by the Spanish Electoral Law, (2) and consequently declared that their seats in the Parliament were vacant and that all the prerogatives to which they might be entitled by virtue of their duties were suspended until such time as they took that oath or made that promise. The first session of the newly elected Parliament following the elections of 26 May 2019 was opened on 2 July 2019, without the applicants being present.
By email of 10 October 2019, a Member of the European Parliament, acting on behalf of the applicants, sent to the newly elected President of the Parliament a request from 38 Members of the European Parliament, including herself, seeking the Parliament’s defence of the parliamentary immunity of the applicants, referred to in Protocol No 7 on the Privileges and Immunities of the European Union. (3) On 10 December 2019, the President of the Parliament rejected that request stating inter alia that the Parliament could not regard the applicants as Members of the Parliament in the absence of official notification by the Spanish authorities of their election, within the meaning of the Electoral Act. (4)
The applicants brought an action before the General Court for annulment of that decision.
The Parliament, supported by the Kingdom of Spain, raised a plea of inadmissibility on the basis that there is no act open to challenge for the purposes of Article 263 TFEU.
Ruling in extended composition, the Court upholds that plea and, accordingly, dismisses the action as inadmissible in so far as it is not directed against an act which may be challenged by means of an action for annulment under Article 263 TFEU.
Findings of the Court
As a preliminary point, the Court recalls the settled case-law under which any acts adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of an applicant, by bringing about a distinct change in his or her legal position, are regarded as actionable measures for the purposes of Article 263 TFEU.
The Court also states that the reply of an EU institution to a request submitted to it does not necessarily constitute a decision for the purposes of the fourth paragraph of Article 263 TFEU and thereby enable the addressee of that reply to bring an action for annulment. Moreover, when a decision of an EU institution amounts to a rejection, that decision has to be appraised in the light of the nature of the request to which it constitutes a reply. Thus, the rejection by an institution of a request addressed to it does not constitute an act against which an action for annulment may be brought where that request does not seek the adoption, by that institution, of a measure having binding legal effects.
In the present case, in order to determine whether the refusal by the President of the Parliament, following the request for defence of the applicants’ immunity, is an act open to challenge for the purposes of Article 263 TFEU, the Court examines whether the defence decision requested was capable of producing legal effects.
In that regard, in the first place, the Court rejects the applicants’ argument that the exclusive competence of the Parliament to waive the immunity of one of its Members (5) confers on it exclusive competence to decide with binding effect whether or not that Member enjoys immunity in a given case.
In the second place, the Court stated that, under Protocol No 7, (6) in the territory of their own State, Members of the Parliament enjoy the immunities accorded, under national law, to members of parliament in their country. Thus, the extent and scope of the immunity enjoyed by Members of the European Parliament in their national territory, or, in other words, the substantive content of that immunity, are to be determined by the various national laws. The Court infers from this that, where the law of a Member State provides for a procedure for the defence of the immunity of members of the national parliament, enabling that parliament to intervene with the judicial or police authorities, in particular by requiring the suspension of the prosecution of one of its members, the same powers are conferred on the Parliament in relation to Members of the European Parliament elected for that State.
In the third place, the Court finds that the provisions of national law, (7) as interpreted by the national courts, (8) do not confer on the Spanish Parliament the power to defend the immunity of one of its members where the national court does not recognise that immunity, in particular by requiring the suspension of legal proceedings brought against that Member. Thus, the Parliament does not have, on the basis of the national law to which Protocol No 7 refers, any such power in relation to Members elected for the Kingdom of Spain.
It follows that the Parliament does not have competence arising from a legislative act to adopt a decision to defend the applicants’ immunity that would produce binding legal effects vis-à-vis the Spanish judicial authorities. Accordingly, the Parliament could not adopt, in response to the request for defence of the applicants’ parliamentary immunity, a decision producing binding legal effects.
Consequently, the refusal of the President of the Parliament to accede to that request is not an act open to challenge under Article 263 TFEU.