Council on Latin American and Iberian Studies

Spanish Supreme Court challenges European Court of Justice over Junqueras immunity

Oriol Junqueras, president of the Republican Left of Catalonia, speaking in the Congress of Deputies, May 2019.
January 21, 2020

In last November’s Spanish election, the center-left Socialist Workers Party (PSOE) headed by Acting Prime Minister Pedro Sánchez won 28 percent of the vote and 120 of the 350 seats in the Congress of Deputies and the left-of-PSOE Unidas Podemos led by Pablo Iglesias won 12.8 percent of the vote and 35 seats. Two days later, the parties announced a preliminary agreement to form a coalition government, despite the fact that such a coalition would be well short of the absolute majority (176 deputies) required, under parliamentary rules, in the first investiture vote for a new government and would require the support or abstention of deputies representing a number of other parties in order to win a simple majority in a later investiture vote.

Given the anticipated opposition of the deputies representing the center-right Citizens party, the center-right People’s Party, the far-right xenophobic Vox party, and at least some of the smaller regional parties, it was clear that a PSOE-Podemos coalition could win a simple majority on a second investiture vote only if it obtained, if not the support, at least the abstention of the 13 deputies of the Republican Left of Catalonia (Esquerra Republicana de Catalunya, ERC). And that would of course mean it would have to address the concerns of the ERC in regard to the current situation and future of Catalonia—and would have to do so despite the fact that the ERC’s leader, Oriol Junqueras, who had been the vice president of the Catalan government that called the independence referendum and subsequently declared independence in 2017, had been convicted of sedition and misuse of public funds and sentenced in October to 13 years in prison for his role in the referendum and declaration.

Soon after the election, the ERC conducted a survey of its members, asking them whether they agreed to “reject Pedro Sánchez’s investiture unless there is previously an agreement to tackle the political conflict with the state at a negotiating table.” After 95 percent of the members said they agreed, the ERC began talks with PSOE, making it clear that its abstention on a second investiture vote would depend on the parties reaching an agreement to hold talks without limits that would include, among other subjects, a future vote on independence and an amnesty for its jailed leaders. The ERC made it clear, as well, that there would have to be an equal number of negotiators for each party at the table, that there would be at least one meeting in Barcelona, and that Sanchez would use the term “political crisis” in discussing the situation in Catalonia.

The talks between PSOE and the ERC went on throughout much of November and December—and were further complicated when the European Court of Justice concluded on December 19 that Junqueras, who had appealed that he had not been allowed to leave prison to be sworn in as a member of the European Parliament, had become a member of the European Parliament immediately upon his election as an MEP on May 26 and that, as such, he enjoyed parliamentary immunity from that moment on. After the Spanish Supreme Court asked the Solicitor General’s office for its view in regard to the ECJ decision, that office advised the Court to release Junqueras so he could travel, with an escort, to Brussels to be sworn in as an MEP, after which he would be returned to prison. But the office also urged that Spain request the European Parliament to suspend his immunity.

In late December, PSOE and the ERC concluded an agreement that stipulated that a forum consisting of representatives of the national government and the government of Catalonia would be constituted within two weeks of the formation of the new government, that there would be no restrictions in regard to the discussions in the forum, that both parties recognized that the situation in Catalonia is a “political conflict,” that the only restriction in terms of any agreement that might be reached in the forum is that it must comply with the “framework of the legal-political system,” and that whatever agreement is reached would be subject to a vote by the citizens of Catalonia. 

On January 2, two days before the investiture debate was scheduled to begin, the ERC announced that, after reviewing the text of the agreement, its National Council had voted by an overwhelming majority to abstain in the investiture vote. On January 5, after two days of debate in the Congress, the first investiture vote was held and, as expected, the proposed PSOE-Podemos government fell short of an absolute majority of 176; 166 deputies voted in favor and 165 voted against, with the 13 ERC deputies and the five representing the left-wing Basque Country Unite (EH Bildu) abstaining. On January 7, a second investiture vote was held, this one requiring only a simple majority, and, with the ERC and EH Bildu abstaining, the Congress approved the proposed PSOE-Podemos government by a vote of 167 to 165.

However, while that was happening, the Spanish courts moved to, in effect, reverse the decision of the European Court of Justice in regard to Junqueras. On January 3, the National Electoral Commission (JEC), which consists of eight magistrates from the Supreme Court, ruled that Junqueras could not be an MEP because “those who are convicted by a final sentence to a term of imprisonment are ineligible [to hold office] while the sentence lasts” and informed the European Parliament of that fact. The ERC immediately appealed to the Supreme Court. On January 9, the administrative bench of the Supreme Court rejected the appeal and, later that day, seven magistrates from the criminal bench of the Supreme Court upheld the ruling of the JEC, informed the European Parliament that Junqueras is barred under Spanish law from holding office, and said that, because he is not subject to provisional custody arrangements but is, instead, serving a sentence based on a definitive ruling, he would not be released to travel to Brussels. The next day, the European Parliament announced it would no longer recognize Junqueras as an MEP. European Parliament President David Sassoli announced that his mandate had expired on January 3, when the JEC ruled that he could not be an MEP. The Parliament did, however, try to soften the blow a bit by deciding that Junqueras served as an MEP from July 2, 2019, when the election results were officially declared, until January 3 and is therefore eligible for his salary as an MEP for those six months.

Quim Torra, the pro-independence president of the government of Catalonia, spoke for many in Catalonia and elsewhere when he said, “The Spanish court is not complying with the European justice system.” He’s right; indeed, it has been settled law in the European Community and Union for more than 50 years, since Costa v. ENEL (1964), that European law has primacy over national law. Lawyers for Junqueras plan to return to the ECJ and challenge the Spanish court’s decision.

In the meantime, the ERC plans, for the time being, to adhere to the deal it struck with PSOE that enabled the government to take office. Yesterday, using the agreed-upon language in his first interview since returning to office, Sánchez announced that, in accordance with the deal, he will meet with Torra in Barcelona in early February in the first meeting of a “bilateral commission” of the two governments “to resolve this political crisis.” But whether the ERC will also support the government’s economic and social program in the Congress is likely to depend on whether the government proposes a legislative remedy that would free Junqueras and the other Catalan leaders imprisoned for their role in the 2017 referendum and declaration. It’s highly unlikely the ERC would attempt to bring down the government over the Junqueras case; after all, a vote of no confidence requires, like the first investiture vote, a two-thirds majority and a Germany-styled positive vote for an alternative government, and it’s inconceivable it would support formation of a government composed of the Citizens, People’s, and Vox parties. But it could, by abstaining on or opposing legislation put forward by the government, make it difficult for the government to enact its program.

David R. Cameron is a professor of political science and director of the MacMillan Center’s Program in European Union Studies. 

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