Law and politics: the Puigdemont case and the dialogue between courts

Teresa Freixes (President of Citizens pro Europe and Jean Monnet Professor ad personam) 

In recent weeks, the Court of Justice of the European Union (CJEU) has handed down judgments that shatter the assertion, so dear to some, that law cannot constrain policy. I am referring, essentially, to those that have considered the EU’s agricultural and fisheries agreement with Morocco to be contrary to EU law because it does not respect the will of the Sahrawi people, guaranteed by international law (Judgment in Joined Cases C-778/21 P and C-798/21 P and in Joined Cases C-779/21 P and C-799/21 P); also, the EU must grant political asylum to Afghan women who request it because they objectively meet all the legally established requirements for it to be granted, given the systematic violation of rights to which they are subjected in their country (Judgment in Joined Cases C‑608/22 and C‑609/22); and, of course, that which rejects the appeal of Mr. Puigdemont and Mr. Comín, confirming that they cannot be considered MEPs because they have not fulfilled the requirements established in national law to do so (Judgment C-600/22 P).

No matter how much political agreement there has been between the political bodies of the EU and Morocco, ignoring the fact that legally speaking Western Sahara is still a territory to be decolonised, regardless of the political decision that has been taken to abandon Afghan women asylum seekers to their fate, or the political will that some have had in pretending that one can be an MEP without complying with the electoral law of the Member State, the CJEU has guaranteed the rule of law and the application of the competent rules in the disputes that are the subject of its rulings. This is an example to be followed by the high courts, both supreme and constitutional, in all EU Member States and, particularly, as far as Spain is concerned.

I will focus on what I will refer to, for brevity, as the Puigdemont case, although it also affects Mr. Comín, since both of them lodged an appeal against the decision of the President of the European Parliament (EP), then Mr. Tajani, not to recognise them as MEPs for not having complied with the requirements established under Spanish law. Consequently, they were not included in the list that Spain, like the other EU Member States, sent to the relevant services of the EP with the names of all the elected Members who had withdrawn their national mandate in accordance with the requirements of Spanish electoral law.

As the same judgment of the CJEU states, as long as there is no European electoral law, the law applicable to elections to the EP is the so-called “Electoral Act” of 1976, as amended in 2002. Article 8 of the Act states that, unless the Act provides otherwise, the electoral procedure in each Member State shall be governed by national provisions. Thus, in Spain, the procedure for acquiring the status of MEP will be established by the Organic Law on the general electoral system (LO 5/1985), in the relevant provisions applicable to the European elections.

It is worth mentioning here in this regard that for years we have been pondering this pending European electoral law, which must harmonise the conditions for the election of MEPs, since, when national law is applied – which is very heterogeneous and subject to few common principles apart from that of proportionality in the election –, the electoral weight of each seat is very different depending on the legislation of the country that has been applied. At the Conference on the Future of Europe during the last parliamentary term, the need for such European legislation was discussed at length, which would make it a reality that universal suffrage is not only about each person having one vote but also about each person’s vote having equal weight.

However, despite the fact that the clamour was practically unanimous in civil society and in the subsequent reports of the Commission and the Council, it was considered appropriate, and the green light was given for this European law, but there has been no way of approving it. The EP, which is competent to do so by express provision of the Treaties, has not been able to proceed due to pressure from nationalist/sovereigntist groups, opposed to the application of electoral barriers that could affect their own interests. The majority of the EP proposed a minimum threshold between 2 and 5%. And, even though the opponents are very much minority groups in the EP itself, the socialist group has stopped the drafting of the electoral law by succumbing to such pressure. The internal debate in Spain on the power of minorities has been largely transferred to the EP itself, to the detriment of the general interest of the Union.

How did the Puigdemont and Comín case begin? Mr. Puigdemont was president of the government of the Generalitat and Mr. Comín one of its advisors when the so-called “referendum on self-determination” took place on 1 October 2017, a referendum that had been suspended by the Constitutional Court, which, moreover, declared the law that was intended to support it to be contrary to the Constitution. Both fled abroad and were found in absentia by the Supreme Court, suspending the criminal case until they were arrested and brought before the judicial authority.

In the meantime, both had stood in the elections to the EP, which took place in Spain on 26 May 2019. Both refused to travel to Madrid to take the required oath of allegiance to the Spanish Constitution before the Spanish Electoral Board since doing would lead to the risk, or the certainty, of being arrested due to the warrants issued against them. Although they did not meet the legal requirements set by the Organic Law on the General Electoral System, they argued that their election as MEPs alone should warrant immediate full recognition as MEPs. However, the President of the Parliament, through a decision dated 29 May 2019, instructed the Secretary General of the institution to withhold such recognition until the Spanish authorities officially confirmed their election.

The Spanish Central Electoral Board adopted the agreement formalising the official list of elected MEPs, notifying Parliament on 17 June, without the names of Mr. Puigdemont and Mr. Comín appearing on the list. Both claimed that the withdrawal of the minutes should not be done in person but could be done through a notary in Belgium or through a proxy appointed by a notary in that country. The Central Electoral Board indicated, as justification for the non-inclusion of both of them in the list of MEPs elected by Spain, that they had not sworn to abide by the Constitution and that, by virtue of Article 224(2) of the Electoral Law, these seats had to be declared vacant until the elected MEPs complied with the Constitution.

Thus, the EP did not recognise them as MEPs, since it could not recognise them as such until their names were included on the list by the Spanish authorities. Both brought an appeal against that decision before the General Court, arguing, inter alia, that the CJEU, in the Junqueras judgment (C-502/19), had recognised the status of MEP of another defendant in the case, Mr. Junqueras, solely based on his status as an elected MEP. This must have made an impression on the President of the EP, Mr. Sassoli (who had succeeded Mr. Tajani), who considered that Mr. Puigdemont and Mr. Comín should be recognised as MEPs.

The General Court dismissed their appeal on the grounds that it was directed against acts which were not subject to appeal. Puigdemont and Comín appealed against that judgment to the CJEU. In that appeal, the applicants essentially argued that the requirements of the Spanish Electoral Law laid down additional requirements to those provided for by EU law and that they were therefore not enforceable, it being sufficient to be elected MEPs in order to be able officially to acquire the status of MEPs with all the privileges and immunities. For them, national law had no competence whatsoever to establish the necessary requirements for acquiring such status.

What was the response of the CJEU? Taking into account the provisions of the European “Electoral Act” and the Rules of Procedure, it dismissed the appeal on the basis of the following arguments, in brief:

1 – In the absence of a European electoral law (a point already explained as to why we lack one), there is no uniform electoral procedure, so the procedure to be followed is the one established in each Member State.

2 – The competence to designate the elected Members corresponds exclusively to the national authorities in accordance with the procedure regulated in the respective national law.

3 – The EP has no competence empowering it to control the regularity or conformity of the national procedure or of the proclamation of results by the national authorities with Union law.

4 – The division of competences between the Union and the Member States determines that it is the national authorities who must notify Parliament of the names of the Members elected and that, in order to grant them credentials as MEPs, they must appear on that list.

5 – The facts and arguments that underpinned the Junqueras case do not apply to the Puigdemont and Comín case.

6 – The fact that the EP authorised the applicants to assume their seats on an interim basis without having first checked their credentials cannot alter the legal nature of the judgment of the General Court under appeal.

Consequently, the CJEU dismissed the appeal, affirming the General Court’s ruling on the competence of national law to regulate the procedure for the election of MEPs and their official formalisation as MEPs. According to that judgment, Mr. Puigdemont and Mr. Comín did not have the status of MEPs in June 2019. Furthermore, the Court ordered them to bear their own costs and to pay the costs incurred by the EP.

This is therefore a legal dispute about a political decision that is resolved by the strict application of the law governing the case: in the absence of European electoral law, it is national law that must be applied, as the political decision of the EP is subject to the effectiveness of EU law. The Parliament cannot bypass European rules, which refer to national law, to decide on the status, or otherwise, of MEPs.

The rule of law prevails in any case. In the same way that it must prevail in the domestic sphere, given that, having received the judgement of the CJEU, Mr. Puigdemont and Mr. Comín are now focusing their interest on what the Constitutional Court may decide about the non-applicability of the amnesty law, specifically the crime of embezzlement, decided by the Spanish Supreme Court on 30 September 2024, ratified in two separate orders despite the appeals lodged by the parties, the Public Prosecutor’s Office and the State Attorney’s Office. It is once again an attempt to try to keep politics under the guise of legal interpretation on the applicability of the Amnesty Law to the case out of the reach of judicial decisions. Especially because we have pending before the CJEU two preliminary questions that may affect Mr. Puigdemont and Mr. Comín. There is one presented by the Spanish Court of Auditors and others by various national courts that have open cases on the application of the Amnesty Law to politicians who were convicted of sedition and/or embezzlement by the Supreme Court, although they were partially pardoned by the Spanish Government.

In this regard, and to conclude, I would point to another recent judgment of the CJEU – Judgment C-792/22 – which reiterates a jurisprudence that it has been upholding for decades. This case law consists of the fact that, according to the CJEU, a national court is not obliged to apply a decision of its constitutional court if it infringes EU law. The so-called “dialogue between courts” is at its finest in these cases.

Picture credits: by Christian Wasserfallen on Pexels.com.