# 62020TO0024(01)

ORDER OF THE GENERAL COURT (Sixth Chamber)

15 December 2020 (
  *1
  )

*1

(Action for annulment – Institutional law – Member of the European Parliament – Privileges and immunities – Announcement by the President of the European Parliament declaring a parliamentary seat vacant – Request to take an initiative as a matter of urgency to assert the immunity of a Member of the European Parliament – Acts not open to challenge – Inadmissibility)

In Case T‐24/20,

Oriol Junqueras i Vies, residing in Sant Joan de Vilatorrada (Spain), represented by A. Van den Eynde Adroer, lawyer,

Oriol Junqueras i Vies

applicant,

v

European Parliament, represented by F. Drexler, N. Görlitz and C. Burgos, acting as Agents,

European Parliament

defendant,

ACTION under Article 263 TFEU for annulment, first, of the declaration of the vacancy of the applicant’s seat with effect from 3 January 2020, announced by the President of the European Parliament at the plenary session of 13 January 2020, and, secondly, of the latter’s alleged refusal of the request to take an initiative as a matter of urgency to assert the immunity of the applicant, submitted on his behalf on 20 December 2019 by Ms Riba i Giner, Member of the European Parliament, on the basis of Rule 8 of the Rules of Procedure of the Parliament,

THE GENERAL COURT (Sixth Chamber),

composed of A. Marcoulli, President, S. Frimodt Nielsen and C. Iliopoulos (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

Order

Legal context

Legal context

Protocol No 7 on the privileges and immunities of the European Union

Protocol No 7 on the privileges and immunities of the European Union

| 1 | Article 9 of Protocol No 7 on the privileges and immunities of the European Union annexed to the TEU and TFEU (‘Protocol No 7’) is worded as follows:
  ‘During the sessions of the European Parliament, its Members shall enjoy:





  (a) | in the territory of their own State, the immunities accorded to members of their parliament; |
| --- | --- | --- |

1

Article 9 of Protocol No 7 on the privileges and immunities of the European Union annexed to the TEU and TFEU (‘Protocol No 7’) is worded as follows:

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

(a)

in the territory of their own State, the immunities accorded to members of their parliament;

| (b) | in the territory of any other Member State, immunity from any measure of detention and from legal proceedings. |
| --- | --- |

(b)

in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.

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

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

Electoral Act

Electoral Act

| 2 | Article 7 of the Act concerning the election of Members of the Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (OJ 1976 L 278, p. 1), as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p. 1; ‘the Electoral Act’), provides:
  ‘1.   The office of member of ... Parliament shall be incompatible with that of:





  – | member of the Government of a Member State, |
| --- | --- | --- |

2

Article 7 of the Act concerning the election of Members of the Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (OJ 1976 L 278, p. 1), as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p. 1; ‘the Electoral Act’), provides:

‘1.   The office of member of ... Parliament shall be incompatible with that of:

–

member of the Government of a Member State,

| – | member of the [European] Commission ..., |
| --- | --- |

–

member of the [European] Commission ...,

| – | Judge, Advocate-General or Registrar of the Court of Justice of the European [Union] or the [General] Court ..., |
| --- | --- |

–

Judge, Advocate-General or Registrar of the Court of Justice of the European [Union] or the [General] Court ...,

| – | member of the Board of Directors of the European Central Bank, |
| --- | --- |

–

member of the Board of Directors of the European Central Bank,

| – | member of the [European] Court of Auditors ..., |
| --- | --- |

–

member of the [European] Court of Auditors ...,

| – | [European] Ombudsman ..., |
| --- | --- |

–

[European] Ombudsman ...,

| – | member of the [European] Economic and Social Committee ..., |
| --- | --- |

–

member of the [European] Economic and Social Committee ...,

| – | member of the Committee of the Regions, |
| --- | --- |

–

member of the Committee of the Regions,

| – | member of committees or other bodies set up pursuant to the Treaties establishing the European Economic Community and the European Atomic Energy Community for the purpose of managing the Communities’ funds or carrying out a permanent direct administrative task, |
| --- | --- |

–

member of committees or other bodies set up pursuant to the Treaties establishing the European Economic Community and the European Atomic Energy Community for the purpose of managing the Communities’ funds or carrying out a permanent direct administrative task,

| – | member of the Board of Directors, Management Committee or staff of the European Investment Bank, |
| --- | --- |

–

member of the Board of Directors, Management Committee or staff of the European Investment Bank,

| – | active official or servant of the institutions of the European [Union] or of the specialised bodies attached to them or of the European Central Bank. |
| --- | --- |

–

active official or servant of the institutions of the European [Union] or of the specialised bodies attached to them or of the European Central Bank.

2.   From the ... Parliament elections in 2004, the office of member of ... Parliament shall be incompatible with that of member of a national parliament.

...

3.   In addition, each Member State may, in the circumstances provided for in Article [8], extend rules at national level relating to incompatibility.

...’

| 3 | Article 8 of the Electoral Act states:
  ‘Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.
  These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system.’ |
| --- | --- |

3

Article 8 of the Electoral Act states:

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

These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system.’

| 4 | Article 12 of the Electoral Act is worded as follows:
  ‘The ... Parliament shall verify the credentials of members of ... 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.’ |
| --- | --- |

4

Article 12 of the Electoral Act is worded as follows:

‘The ... Parliament shall verify the credentials of members of ... 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.’

| 5 | Article 13 of the Electoral Act states:
  ‘1.   A seat shall fall vacant when the mandate of a member of ... Parliament ends as a result of resignation, death or withdrawal of the mandate.
  2.   Subject to the other provisions of this Act, each Member State shall lay down appropriate procedures for filling any seat which falls vacant during the five-year term of office referred to in Article 3 for the remainder of that period.
  3.   Where the law of a Member State makes explicit provision for the withdrawal of the mandate of a member of ... Parliament, that mandate shall end pursuant to those legal provisions. The competent national authorities shall inform the ... Parliament thereof.
  4.   Where a seat falls vacant as a result of resignation or death, the President of the ... Parliament shall immediately inform the competent authorities of the Member State concerned thereof.’ |
| --- | --- |

5

Article 13 of the Electoral Act states:

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

2.   Subject to the other provisions of this Act, each Member State shall lay down appropriate procedures for filling any seat which falls vacant during the five-year term of office referred to in Article 3 for the remainder of that period.

3.   Where the law of a Member State makes explicit provision for the withdrawal of the mandate of a member of ... Parliament, that mandate shall end pursuant to those legal provisions. The competent national authorities shall inform the ... Parliament thereof.

4.   Where a seat falls vacant as a result of resignation or death, the President of the ... Parliament shall immediately inform the competent authorities of the Member State concerned thereof.’

Rules of Procedure of the Parliament (2019 to 2024)

Rules of Procedure of the Parliament (2019 to 2024)

| 6 | Rule 3 of the Rules of Procedure of the Parliament (‘the Rules of Procedure’), entitled ‘Verification of credentials’, provides:
  ‘1. Following general elections to the ... Parliament, the President shall invite the competent authorities of the Member States to notify Parliament without delay of the names of the elected Members so that all Members may take their seats in Parliament with effect from the opening of the first sitting following the elections.
  ...
  3. On the basis of a report by the committee responsible, Parliament shall verify credentials without delay and rule on the validity of the mandate of each of its newly elected Members and also on any disputes referred to it pursuant to the provisions of the [Electoral] Act ..., other than those which, under that Act, fall exclusively under the national provisions to which that Act refers.
  ...
  6. The committee responsible shall ensure that any information which may affect the eligibility of the Member or the eligibility or the ranking of the substitutes is forwarded to Parliament without delay by the authorities of the Member States or of the Union, with, in the case of an appointment, an indication of the date on which it will take effect.
  Should the competent authorities of the Member States initiate a procedure which might lead to the disqualification of a Member from holding office, the President [of the Parliament] shall ask them to keep him or her regularly informed of the stage reached in the procedure and shall refer the matter to the committee responsible. On a proposal from that committee, Parliament may adopt a position on the matter.’ |
| --- | --- |

6

Rule 3 of the Rules of Procedure of the Parliament (‘the Rules of Procedure’), entitled ‘Verification of credentials’, provides:

‘1. Following general elections to the ... Parliament, the President shall invite the competent authorities of the Member States to notify Parliament without delay of the names of the elected Members so that all Members may take their seats in Parliament with effect from the opening of the first sitting following the elections.

...

3. On the basis of a report by the committee responsible, Parliament shall verify credentials without delay and rule on the validity of the mandate of each of its newly elected Members and also on any disputes referred to it pursuant to the provisions of the [Electoral] Act ..., other than those which, under that Act, fall exclusively under the national provisions to which that Act refers.

...

6. The committee responsible shall ensure that any information which may affect the eligibility of the Member or the eligibility or the ranking of the substitutes is forwarded to Parliament without delay by the authorities of the Member States or of the Union, with, in the case of an appointment, an indication of the date on which it will take effect.

Should the competent authorities of the Member States initiate a procedure which might lead to the disqualification of a Member from holding office, the President [of the Parliament] shall ask them to keep him or her regularly informed of the stage reached in the procedure and shall refer the matter to the committee responsible. On a proposal from that committee, Parliament may adopt a position on the matter.’

| 7 | Rule 4 of the Rules of Procedure, entitled ‘Term of office of Members’, states:
  ‘1.   A Member’s term of office begins and ends as laid down in Articles 5 and 13 of the [Electoral] Act ...
  2.   Members who resign shall notify the President [of the Parliament] of their resignation ...
  If the committee responsible considers that the resignation is in compliance with the [Electoral] Act ..., a vacancy shall be declared with effect from the date indicated by the resigning Member in the official record, and the President shall inform Parliament thereof.
  If the committee responsible considers that the resignation is not in compliance with the [Electoral] Act ..., it shall propose to Parliament that it not declare a vacancy.
  ...
  4.   Where either the competent authorities of the Member States or of the Union or the Member concerned notifies the President [of the Parliament] of an appointment or election to an office that is incompatible with the office of Member of ... Parliament within the meaning of Article 7(1) or (2) of the [Electoral] Act ..., the President [of the Parliament] shall inform Parliament thereof, and Parliament shall declare that a vacancy exists from the date of the incompatibility.
  Where the competent authorities of the Member States notify the President [of the Parliament] of the end of the term of office of a Member of ... Parliament as a result either of an additional incompatibility established by the law of that Member State in accordance with Article 7(3) of the [Electoral] Act ... or of the withdrawal of the Member’s mandate pursuant to Article 13(3) of that Act, the President [of the Parliament] shall inform Parliament that the term of office of that Member ended on the date communicated by competent authorities of the Member State. Where no such date is communicated, the date of the end of the term of office shall be the date of the notification by that Member State.
  ...
  7.   Where acceptance or termination of office appears to be based on material inaccuracy or vitiated consent, Parliament may declare the appointment under consideration to be invalid or may refuse to establish the vacancy.’ |
| --- | --- |

7

Rule 4 of the Rules of Procedure, entitled ‘Term of office of Members’, states:

‘1.   A Member’s term of office begins and ends as laid down in Articles 5 and 13 of the [Electoral] Act ...

2.   Members who resign shall notify the President [of the Parliament] of their resignation ...

If the committee responsible considers that the resignation is in compliance with the [Electoral] Act ..., a vacancy shall be declared with effect from the date indicated by the resigning Member in the official record, and the President shall inform Parliament thereof.

If the committee responsible considers that the resignation is not in compliance with the [Electoral] Act ..., it shall propose to Parliament that it not declare a vacancy.

...

4.   Where either the competent authorities of the Member States or of the Union or the Member concerned notifies the President [of the Parliament] of an appointment or election to an office that is incompatible with the office of Member of ... Parliament within the meaning of Article 7(1) or (2) of the [Electoral] Act ..., the President [of the Parliament] shall inform Parliament thereof, and Parliament shall declare that a vacancy exists from the date of the incompatibility.

Where the competent authorities of the Member States notify the President [of the Parliament] of the end of the term of office of a Member of ... Parliament as a result either of an additional incompatibility established by the law of that Member State in accordance with Article 7(3) of the [Electoral] Act ... or of the withdrawal of the Member’s mandate pursuant to Article 13(3) of that Act, the President [of the Parliament] shall inform Parliament that the term of office of that Member ended on the date communicated by competent authorities of the Member State. Where no such date is communicated, the date of the end of the term of office shall be the date of the notification by that Member State.

...

7.   Where acceptance or termination of office appears to be based on material inaccuracy or vitiated consent, Parliament may declare the appointment under consideration to be invalid or may refuse to establish the vacancy.’

| 8 | Under Rule 5 of the Rules of Procedure, entitled ‘Privileges and immunities’:
  ‘1.   Members enjoy the privileges and immunities laid down in the Protocol No 7 on the Privileges and Immunities of the European Union.
  2.   In exercising its powers on privileges and immunities, Parliament shall act to uphold its integrity as a democratic legislative assembly and to ensure the independence of its Members in the performance of their duties. Parliamentary immunity is not a Member’s personal privilege but a guarantee of the independence of Parliament as a whole, and of its Members.
  ...’ |
| --- | --- |

8

Under Rule 5 of the Rules of Procedure, entitled ‘Privileges and immunities’:

‘1.   Members enjoy the privileges and immunities laid down in the Protocol No 7 on the Privileges and Immunities of the European Union.

2.   In exercising its powers on privileges and immunities, Parliament shall act to uphold its integrity as a democratic legislative assembly and to ensure the independence of its Members in the performance of their duties. Parliamentary immunity is not a Member’s personal privilege but a guarantee of the independence of Parliament as a whole, and of its Members.

...’

| 9 | Rule 7 of the Rules of Procedure, entitled ‘Defence of privileges and immunities’, is worded as follows:
  ‘1.   In cases where it is alleged that an infringement of the privileges and immunities of a Member or former Member by the authorities of a Member State has occurred or is about to occur, a request for a Parliament decision as to whether those privileges and immunities have been or are likely to be breached may be made in accordance with Rule 9(1).
  2.   In particular, such a request for the defence of privileges and immunities may be made if it is considered that the circumstances would constitute an administrative or other restriction on the free movement of Members travelling to or from the place of meeting of Parliament or an administrative or other restriction on an opinion expressed or a vote cast in the performance of their duties, or that the circumstances would fall within the scope of Article 9 of the Protocol No 7 on the Privileges and Immunities of the European Union.
  ...
  5.   In cases where a decision has been taken not to defend the privileges and immunities of a Member, the Member may exceptionally make a request for reconsideration of the decision, by submitting new evidence in accordance with Rule 9(1). The request for reconsideration shall be inadmissible if proceedings have been instituted against the decision under Article 263 [TFEU], or if the President [of the Parliament] considers that the new evidence submitted is insufficiently substantiated to warrant reconsideration.’ |
| --- | --- |

9

Rule 7 of the Rules of Procedure, entitled ‘Defence of privileges and immunities’, is worded as follows:

‘1.   In cases where it is alleged that an infringement of the privileges and immunities of a Member or former Member by the authorities of a Member State has occurred or is about to occur, a request for a Parliament decision as to whether those privileges and immunities have been or are likely to be breached may be made in accordance with Rule 9(1).

2.   In particular, such a request for the defence of privileges and immunities may be made if it is considered that the circumstances would constitute an administrative or other restriction on the free movement of Members travelling to or from the place of meeting of Parliament or an administrative or other restriction on an opinion expressed or a vote cast in the performance of their duties, or that the circumstances would fall within the scope of Article 9 of the Protocol No 7 on the Privileges and Immunities of the European Union.

...

5.   In cases where a decision has been taken not to defend the privileges and immunities of a Member, the Member may exceptionally make a request for reconsideration of the decision, by submitting new evidence in accordance with Rule 9(1). The request for reconsideration shall be inadmissible if proceedings have been instituted against the decision under Article 263 [TFEU], or if the President [of the Parliament] considers that the new evidence submitted is insufficiently substantiated to warrant reconsideration.’

| 10 | Rule 8 of the Rules of Procedure, entitled ‘Urgent action by the President [of the Parliament] to assert immunity’, provides:
  ‘1.   As a matter of urgency, in circumstances where a Member is arrested or has his or her freedom of movement curtailed in apparent breach of his or her privileges and immunities, the President [of the Parliament] may, after consulting the Chair and rapporteur of the committee responsible, take an initiative to assert the privileges and immunities of the Member concerned. The President [of the Parliament] shall notify the committee of that initiative and inform Parliament.
  2.   When the President [of the Parliament] makes use of the powers conferred on him or her by paragraph 1, the committee shall take cognisance of the President’s initiative at its next meeting. Where the committee deems it necessary, it may prepare a report for submission to Parliament.’ |
| --- | --- |

10

Rule 8 of the Rules of Procedure, entitled ‘Urgent action by the President [of the Parliament] to assert immunity’, provides:

‘1.   As a matter of urgency, in circumstances where a Member is arrested or has his or her freedom of movement curtailed in apparent breach of his or her privileges and immunities, the President [of the Parliament] may, after consulting the Chair and rapporteur of the committee responsible, take an initiative to assert the privileges and immunities of the Member concerned. The President [of the Parliament] shall notify the committee of that initiative and inform Parliament.

2.   When the President [of the Parliament] makes use of the powers conferred on him or her by paragraph 1, the committee shall take cognisance of the President’s initiative at its next meeting. Where the committee deems it necessary, it may prepare a report for submission to Parliament.’

| 11 | Under Rule 9 of the Rules of Procedure, entitled ‘Procedures on immunity’:
  ‘1.   Any request addressed to the President [of the Parliament] by a competent authority of a Member State for the immunity of a Member to be waived, or by a Member or a former Member for privileges and immunities to be defended, shall be announced in Parliament and referred to the committee responsible.
  2.   With the agreement of the Member or the former Member concerned, the request may be made by another Member, who shall be permitted to represent the Member or former Member concerned at all stages of the procedure.
  ...
  3.   The committee shall consider, without delay but having regard to their relative complexity, requests for the waiver of immunity or requests for the defence of privileges and immunities.
  4.   The committee shall make a proposal for a reasoned decision which recommends the adoption or rejection of the request for the waiver of immunity or for the defence of privileges and immunities. Amendments shall not be admissible. If a proposal is rejected, the contrary decision shall be deemed to have been adopted.
  5.   The committee may ask the authority concerned to provide any information or explanation which the committee deems necessary in order for it to form an opinion on whether immunity should be waived or defended.
  6.   The Member concerned shall be given an opportunity to be heard and may present any documents or other written evidence deemed by that Member to be relevant.
  ...
  The Chair of the committee shall invite the Member to be heard, indicating a date and time. The Member concerned may renounce the right to be heard.
  ...
  7.   Where the request seeks the waiver or the defence of immunity on several counts, each of these may be the subject of a separate decision. The committee’s report may, exceptionally, propose that the waiver or the defence of immunity should apply solely to prosecution proceedings and that, until a final sentence is passed, the Member should be immune from any form of detention or remand or any other measure which prevents that Member from performing the duties proper to the mandate.
  8.   The committee may offer a reasoned opinion as to the competence of the authority in question and the admissibility of the request, but shall not, under any circumstances, pronounce on the guilt, or otherwise, of the Member, nor shall it pronounce on whether or not the opinions or acts attributed to the Member justify prosecution, even if the committee, in considering the request, acquires detailed knowledge of the facts of the case.
  9.   The committee’s proposal for a decision shall be placed on the agenda of the first sitting following the day on which it was tabled. No amendments may be tabled to such a proposal.
  ...
  Without prejudice to Rule 173 [of these Rules], the Member whose privileges or immunities are under consideration shall not speak in the debate.
  The proposal or proposals for a decision contained in the report shall be put to the vote at the first voting time following the debate.
  After Parliament has considered the matter, a separate vote shall be taken on each of the proposals contained in the report. If a proposal is rejected, the contrary decision shall be deemed to have been adopted.
  10.   The President [of the Parliament] shall immediately communicate Parliament’s decision to the Member concerned and to the competent authority of the Member State concerned, with a request that the President be informed of any developments and judicial rulings in the relevant proceedings. When the President [of the Parliament] receives this information, he or she shall transmit it to Parliament in the way he or she considers most appropriate, if necessary after consulting the committee responsible.
  11.   The committee shall treat these matters, and handle any documents received with the utmost confidentiality. The committee shall always consider requests relating to procedures on immunity in camera.
  12.   Parliament shall only examine requests for the waiver of a Member’s immunity that have been transmitted to it by the judicial authorities or by the Permanent Representations of the Member States.
  ...
  14.   Any inquiry as to the scope of Members’ privileges or immunities made by a competent authority shall be dealt with in accordance with the above rules.’ |
| --- | --- |

11

Under Rule 9 of the Rules of Procedure, entitled ‘Procedures on immunity’:

‘1.   Any request addressed to the President [of the Parliament] by a competent authority of a Member State for the immunity of a Member to be waived, or by a Member or a former Member for privileges and immunities to be defended, shall be announced in Parliament and referred to the committee responsible.

2.   With the agreement of the Member or the former Member concerned, the request may be made by another Member, who shall be permitted to represent the Member or former Member concerned at all stages of the procedure.

...

3.   The committee shall consider, without delay but having regard to their relative complexity, requests for the waiver of immunity or requests for the defence of privileges and immunities.

4.   The committee shall make a proposal for a reasoned decision which recommends the adoption or rejection of the request for the waiver of immunity or for the defence of privileges and immunities. Amendments shall not be admissible. If a proposal is rejected, the contrary decision shall be deemed to have been adopted.

5.   The committee may ask the authority concerned to provide any information or explanation which the committee deems necessary in order for it to form an opinion on whether immunity should be waived or defended.

6.   The Member concerned shall be given an opportunity to be heard and may present any documents or other written evidence deemed by that Member to be relevant.

...

The Chair of the committee shall invite the Member to be heard, indicating a date and time. The Member concerned may renounce the right to be heard.

...

7.   Where the request seeks the waiver or the defence of immunity on several counts, each of these may be the subject of a separate decision. The committee’s report may, exceptionally, propose that the waiver or the defence of immunity should apply solely to prosecution proceedings and that, until a final sentence is passed, the Member should be immune from any form of detention or remand or any other measure which prevents that Member from performing the duties proper to the mandate.

8.   The committee may offer a reasoned opinion as to the competence of the authority in question and the admissibility of the request, but shall not, under any circumstances, pronounce on the guilt, or otherwise, of the Member, nor shall it pronounce on whether or not the opinions or acts attributed to the Member justify prosecution, even if the committee, in considering the request, acquires detailed knowledge of the facts of the case.

9.   The committee’s proposal for a decision shall be placed on the agenda of the first sitting following the day on which it was tabled. No amendments may be tabled to such a proposal.

...

Without prejudice to Rule 173 [of these Rules], the Member whose privileges or immunities are under consideration shall not speak in the debate.

The proposal or proposals for a decision contained in the report shall be put to the vote at the first voting time following the debate.

After Parliament has considered the matter, a separate vote shall be taken on each of the proposals contained in the report. If a proposal is rejected, the contrary decision shall be deemed to have been adopted.

10.   The President [of the Parliament] shall immediately communicate Parliament’s decision to the Member concerned and to the competent authority of the Member State concerned, with a request that the President be informed of any developments and judicial rulings in the relevant proceedings. When the President [of the Parliament] receives this information, he or she shall transmit it to Parliament in the way he or she considers most appropriate, if necessary after consulting the committee responsible.

11.   The committee shall treat these matters, and handle any documents received with the utmost confidentiality. The committee shall always consider requests relating to procedures on immunity in camera.

12.   Parliament shall only examine requests for the waiver of a Member’s immunity that have been transmitted to it by the judicial authorities or by the Permanent Representations of the Member States.

...

14.   Any inquiry as to the scope of Members’ privileges or immunities made by a competent authority shall be dealt with in accordance with the above rules.’

| 12 | Rule 22 of the Rules of Procedure, entitled ‘Duties of the President [of the Parliament]’, provides:
  ‘1.   The President [of the Parliament] shall direct all the activities of Parliament and its bodies in accordance with these Rules and shall enjoy all powers that are necessary to preside over the proceedings of Parliament and to ensure that they are properly conducted.
  2.   The duties of the President [of the Parliament] shall be to open, suspend and close sittings; to rule on the admissibility of amendments and other texts put to the vote, as well as on the admissibility of parliamentary questions; to ensure observance of these Rules; to maintain order; to call upon speakers; to close debates; to put matters to the vote and to announce the results of votes; as well as to refer to committees any communications that concern them.
  3.   The President [of the Parliament] may speak in a debate only to sum up or to call speakers to order. Should the President wish to take part in a debate, he or she shall vacate the chair and shall not reoccupy it until the debate is over.
  ...’ |
| --- | --- |

12

Rule 22 of the Rules of Procedure, entitled ‘Duties of the President [of the Parliament]’, provides:

‘1.   The President [of the Parliament] shall direct all the activities of Parliament and its bodies in accordance with these Rules and shall enjoy all powers that are necessary to preside over the proceedings of Parliament and to ensure that they are properly conducted.

2.   The duties of the President [of the Parliament] shall be to open, suspend and close sittings; to rule on the admissibility of amendments and other texts put to the vote, as well as on the admissibility of parliamentary questions; to ensure observance of these Rules; to maintain order; to call upon speakers; to close debates; to put matters to the vote and to announce the results of votes; as well as to refer to committees any communications that concern them.

3.   The President [of the Parliament] may speak in a debate only to sum up or to call speakers to order. Should the President wish to take part in a debate, he or she shall vacate the chair and shall not reoccupy it until the debate is over.

...’

| 13 | Under Rule 149 of the Rules of Procedure, entitled ‘Proceedings before the Court of Justice of the European Union’:
  ‘...
  3.   The President [of the Parliament] shall bring an action on behalf of Parliament in accordance with the recommendation of the committee responsible for legal affairs.
  ...
  4.   The President [of the Parliament] shall, after consulting the committee responsible for legal affairs, submit observations or intervene in court proceedings on behalf of Parliament.
  ...’ |
| --- | --- |

13

Under Rule 149 of the Rules of Procedure, entitled ‘Proceedings before the Court of Justice of the European Union’:

‘...

3.   The President [of the Parliament] shall bring an action on behalf of Parliament in accordance with the recommendation of the committee responsible for legal affairs.

...

4.   The President [of the Parliament] shall, after consulting the committee responsible for legal affairs, submit observations or intervene in court proceedings on behalf of Parliament.

...’

| 14 | Lastly, Rule 236 of the Rules of Procedure, entitled ‘Application of the Rules of Procedure’, states:
  ‘1.   If doubt arises over the application or interpretation of these Rules of Procedure, the President [of the Parliament] may refer the matter to the committee responsible for examination.
  ...’ |
| --- | --- |

14

Lastly, Rule 236 of the Rules of Procedure, entitled ‘Application of the Rules of Procedure’, states:

‘1.   If doubt arises over the application or interpretation of these Rules of Procedure, the President [of the Parliament] may refer the matter to the committee responsible for examination.

...’

Background to the dispute

Background to the dispute

| 15 | The applicant, Mr Oriol Junqueras i Vies, was Vice-President of the Gobierno autonómico de Cataluña (Autonomous Government of Catalonia, Spain) at the time of the adoption of Ley 19/2017 del Parlamento de Cataluña, reguladora del referéndum de autodeterminación (Law 19/2017 of the Catalan Parliament regulating the referendum on self-determination) of6 September 2017 (DOGC No 7449A of 6 September 2017, p. 1) and of Ley 20/2017 del Parlamento de Cataluña, de transitoriedad jurídica y fundacional de la República (Law 20/2017 of the Catalan Parliament on legal transition and founding the Republic) of 8 September 2017 (DOGC No 7451A of 8 September 2017, p. 1), and the holding, on 1 October 2017, of the referendum on self-determination provided for by the first of those two laws, the provisions of which had, in the interim, been suspended by a decision of the Tribunal Constitucional (Constitutional Court, Spain). |
| --- | --- |

15

The applicant, Mr Oriol Junqueras i Vies, was Vice-President of the Gobierno autonómico de Cataluña (Autonomous Government of Catalonia, Spain) at the time of the adoption of Ley 19/2017 del Parlamento de Cataluña, reguladora del referéndum de autodeterminación (Law 19/2017 of the Catalan Parliament regulating the referendum on self-determination) of6 September 2017 (DOGC No 7449A of 6 September 2017, p. 1) and of Ley 20/2017 del Parlamento de Cataluña, de transitoriedad jurídica y fundacional de la República (Law 20/2017 of the Catalan Parliament on legal transition and founding the Republic) of 8 September 2017 (DOGC No 7451A of 8 September 2017, p. 1), and the holding, on 1 October 2017, of the referendum on self-determination provided for by the first of those two laws, the provisions of which had, in the interim, been suspended by a decision of the Tribunal Constitucional (Constitutional Court, Spain).

| 16 | Following the adoption of the laws mentioned in paragraph 15 above and the holding of the referendum on self-determination, the Ministerio fiscal (Public Prosecutor’s Office, Spain), the Abogado del Estado (Counsel for the State, Spain) and the Partido político VOX (VOX political party) brought criminal proceedings against several persons, including the applicant, alleging that they had taken part in a secessionist process and committed, in that context, acts classified as three criminal offences, namely, first, ‘rebellion’ or ‘sedition’, secondly, ‘civil disobedience’, and, thirdly, ‘misappropriation of funds’. |
| --- | --- |

16

Following the adoption of the laws mentioned in paragraph 15 above and the holding of the referendum on self-determination, the Ministerio fiscal (Public Prosecutor’s Office, Spain), the Abogado del Estado (Counsel for the State, Spain) and the Partido político VOX (VOX political party) brought criminal proceedings against several persons, including the applicant, alleging that they had taken part in a secessionist process and committed, in that context, acts classified as three criminal offences, namely, first, ‘rebellion’ or ‘sedition’, secondly, ‘civil disobedience’, and, thirdly, ‘misappropriation of funds’.

| 17 | The applicant was placed in provisional detention during the investigation stage of those criminal proceedings, pursuant to a decision adopted on 2 November 2017 on the basis of Article 503 of the Ley de Enjuiciamiento Criminal (Law on Criminal Procedure, Spain). |
| --- | --- |

17

The applicant was placed in provisional detention during the investigation stage of those criminal proceedings, pursuant to a decision adopted on 2 November 2017 on the basis of Article 503 of the Ley de Enjuiciamiento Criminal (Law on Criminal Procedure, Spain).

| 18 | During the trial stage of those proceedings, the applicant stood as a candidate in the elections to the European Parliament held on 26 May 2019. He was elected to the Parliament in those elections, as noted in the official declaration of the election results made by the Junta Electoral Central (Central Electoral Board, Spain) in a decision of 13 June 2019, entitled ‘Declaration of Members elected to the ... Parliament in the elections held on 26 May 2019’ (BOE No 142 of 14 June 2019, p. 62477), in accordance with Article 224(1) of Ley orgánica 5/1985, de Régimen Electoral General (Organic Law 5/1985 on the General Election System) of 19 June 1985 (BOE No 147 of 20 June 1985, p. 19110; ‘the Spanish Electoral Law’). In that decision, the Central Electoral Board also, in accordance with that provision, attributed to the elected persons, including the applicant, the seats in the Parliament apportioned to the Kingdom of Spain. |
| --- | --- |

18

During the trial stage of those proceedings, the applicant stood as a candidate in the elections to the European Parliament held on 26 May 2019. He was elected to the Parliament in those elections, as noted in the official declaration of the election results made by the Junta Electoral Central (Central Electoral Board, Spain) in a decision of 13 June 2019, entitled ‘Declaration of Members elected to the ... Parliament in the elections held on 26 May 2019’ (BOE No 142 of 14 June 2019, p. 62477), in accordance with Article 224(1) of Ley orgánica 5/1985, de Régimen Electoral General (Organic Law 5/1985 on the General Election System) of 19 June 1985 (BOE No 147 of 20 June 1985, p. 19110; ‘the Spanish Electoral Law’). In that decision, the Central Electoral Board also, in accordance with that provision, attributed to the elected persons, including the applicant, the seats in the Parliament apportioned to the Kingdom of Spain.

| 19 | By order of 14 June 2019, the Tribunal Supremo (Supreme Court, Spain) refused a request made by the applicant for special authorisation to leave prison, under police surveillance, in order to appear before the Central Electoral Board and swear or pledge to abide by the Spanish Constitution, as required by Article 224(2) of the Spanish Electoral Law. |
| --- | --- |

19

By order of 14 June 2019, the Tribunal Supremo (Supreme Court, Spain) refused a request made by the applicant for special authorisation to leave prison, under police surveillance, in order to appear before the Central Electoral Board and swear or pledge to abide by the Spanish Constitution, as required by Article 224(2) of the Spanish Electoral Law.

| 20 | On 20 June 2019, the Central Electoral Board adopted a decision in which it found that the applicant had not taken the oath or pledge in question and, in accordance with Article 224(2) of the Spanish Electoral Law, declared vacant the parliamentary seat attributed to the applicant and suspended all of the prerogatives that he might enjoy by virtue of his office. |
| --- | --- |

20

On 20 June 2019, the Central Electoral Board adopted a decision in which it found that the applicant had not taken the oath or pledge in question and, in accordance with Article 224(2) of the Spanish Electoral Law, declared vacant the parliamentary seat attributed to the applicant and suspended all of the prerogatives that he might enjoy by virtue of his office.

| 21 | The applicant brought an action before the Tribunal Supremo (Supreme Court) challenging the order referred to in paragraph 19 above, in which he invoked the immunities provided for in Article 9 of Protocol No 7. |
| --- | --- |

21

The applicant brought an action before the Tribunal Supremo (Supreme Court) challenging the order referred to in paragraph 19 above, in which he invoked the immunities provided for in Article 9 of Protocol No 7.

| 22 | On 1 July 2019, the Tribunal Supremo (Supreme Court) decided to stay the action mentioned in paragraph 21 above and to refer questions to the Court of Justice for a preliminary ruling (Case C‐502/19, Junqueras Vies). |
| --- | --- |

22

On 1 July 2019, the Tribunal Supremo (Supreme Court) decided to stay the action mentioned in paragraph 21 above and to refer questions to the Court of Justice for a preliminary ruling (Case C‐502/19, Junqueras Vies).

Junqueras Vies

| 23 | On 2 July 2019, the President of the Parliament opened the first session of the parliamentary term following the parliamentary elections held on 26 May 2019. The applicant did not attend that session. |
| --- | --- |

23

On 2 July 2019, the President of the Parliament opened the first session of the parliamentary term following the parliamentary elections held on 26 May 2019. The applicant did not attend that session.

| 24 | On 4 July 2019, Ms Riba i Giner, a Member of the European Parliament, made a request to the President of the Parliament on behalf of the applicant asking him to take measures as a matter of urgency, on the basis of Rule 8 of the Rules of Procedure, in order to assert the applicant’s immunity. The President of the Parliament refused that request on 22 August 2019. |
| --- | --- |

24

On 4 July 2019, Ms Riba i Giner, a Member of the European Parliament, made a request to the President of the Parliament on behalf of the applicant asking him to take measures as a matter of urgency, on the basis of Rule 8 of the Rules of Procedure, in order to assert the applicant’s immunity. The President of the Parliament refused that request on 22 August 2019.

| 25 | By judgment of 14 October 2019 in the criminal proceedings brought against the applicant, among others, the Tribunal Supremo (Supreme Court) sentenced the applicant to a 13-year term of imprisonment and to a 13-year disqualification from holding any public office, entailing the loss of all his current public offices and functions, including elective offices, and a ban on obtaining or exercising any new ones (‘the judgment of 14 October 2019 of the Tribunal Supremo (Supreme Court)’). |
| --- | --- |

25

By judgment of 14 October 2019 in the criminal proceedings brought against the applicant, among others, the Tribunal Supremo (Supreme Court) sentenced the applicant to a 13-year term of imprisonment and to a 13-year disqualification from holding any public office, entailing the loss of all his current public offices and functions, including elective offices, and a ban on obtaining or exercising any new ones (‘the judgment of 14 October 2019 of the Tribunal Supremo (Supreme Court)’).

| 26 | By judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), the Court held that a person who was officially declared elected to the Parliament while subject to a measure of provisional detention in the context of proceedings in respect of serious criminal offences, but who was not authorised to comply with certain requirements under national law following such a declaration and to travel to the Parliament in order to take part in its first session, must be regarded as enjoying an immunity under the second paragraph of Article 9 of Protocol No 7. The Court made clear that that immunity entails that the measure of provisional detention imposed on the person concerned must be lifted, in order to enable him to travel to the Parliament and complete the necessary formalities there. Furthermore, the Court found that if the competent national court considers that that measure should be maintained after the person concerned acquires the status of Member of Parliament, it must as soon as possible request the Parliament to waive that immunity, on the basis of the third paragraph of Article 9 of that protocol. Lastly, the Court considered that it is for the referring court to assess the effects that should be attached to the immunities enjoyed by the person concerned in any other proceedings, in compliance with EU law and, inter alia, the principle of sincere cooperation referred to in the first subparagraph of Article 4(3) TEU (see, to that effect, judgment of 19 December 2019, Junqueras Vies, C‐502/19, EU:C:2019:1115, paragraphs 87 and 90 to 93). |
| --- | --- |

26

By judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), the Court held that a person who was officially declared elected to the Parliament while subject to a measure of provisional detention in the context of proceedings in respect of serious criminal offences, but who was not authorised to comply with certain requirements under national law following such a declaration and to travel to the Parliament in order to take part in its first session, must be regarded as enjoying an immunity under the second paragraph of Article 9 of Protocol No 7. The Court made clear that that immunity entails that the measure of provisional detention imposed on the person concerned must be lifted, in order to enable him to travel to the Parliament and complete the necessary formalities there. Furthermore, the Court found that if the competent national court considers that that measure should be maintained after the person concerned acquires the status of Member of Parliament, it must as soon as possible request the Parliament to waive that immunity, on the basis of the third paragraph of Article 9 of that protocol. Lastly, the Court considered that it is for the referring court to assess the effects that should be attached to the immunities enjoyed by the person concerned in any other proceedings, in compliance with EU law and, inter alia, the principle of sincere cooperation referred to in the first subparagraph of Article 4(3) TEU (see, to that effect, judgment of 19 December 2019, Junqueras Vies, C‐502/19, EU:C:2019:1115, paragraphs 87 and 90 to 93).

| 27 | On 20 December 2019, Ms Riba i Giner, a Member of the European Parliament, made a further request to the President of the Parliament on behalf of the applicant asking him to take measures as a matter of urgency, on the basis of Rule 8 of the Rules of Procedure, in order to assert the applicant’s immunity (‘Ms Riba i Giner’s request of 20 December 2019’). |
| --- | --- |

27

On 20 December 2019, Ms Riba i Giner, a Member of the European Parliament, made a further request to the President of the Parliament on behalf of the applicant asking him to take measures as a matter of urgency, on the basis of Rule 8 of the Rules of Procedure, in order to assert the applicant’s immunity (‘Ms Riba i Giner’s request of 20 December 2019’).

| 28 | By decision of 3 January 2020, the Central Electoral Board declared the applicant to be ineligible on account of the sentence of imprisonment imposed on him by the judgment of 14 October 2019 of the Tribunal Supremo (Supreme Court) (‘the Central Electoral Board’s decision of 3 January 2020’). The applicant brought an action against that decision before the Tribunal Supremo (Supreme Court) seeking the suspension of its operation. |
| --- | --- |

28

By decision of 3 January 2020, the Central Electoral Board declared the applicant to be ineligible on account of the sentence of imprisonment imposed on him by the judgment of 14 October 2019 of the Tribunal Supremo (Supreme Court) (‘the Central Electoral Board’s decision of 3 January 2020’). The applicant brought an action against that decision before the Tribunal Supremo (Supreme Court) seeking the suspension of its operation.

| 29 | By order of 9 January 2020, the Tribunal Supremo (Supreme Court) ruled on the effects of the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), on the criminal proceedings concerning the applicant (‘the order of 9 January 2020 of the Tribunal Supremo (Supreme Court)’). It considered, in essence, that following that judgment, there was no need to request the Parliament to waive the immunity enjoyed by the applicant in his capacity as Member of the European Parliament because, inter alia, when he had been declared elected, the criminal proceedings concerning him had ended and the deliberations had begun. Thus, since the applicant had obtained the status of Member of the European Parliament when the criminal proceedings had already reached the trial stage, he could not claim immunity in order to prevent that trial from continuing. In the operative part of that order, the Tribunal Supremo (Supreme Court) held, in particular, that there were no grounds for authorising the applicant’s travel to the seat of the Parliament or his release, for quashing the judgment of 14 October 2019 of the Tribunal Supremo (Supreme Court), or for requesting the Parliament to waive immunity. In addition, it decided to notify that order to the Central Electoral Board and to the Parliament. On the same day, that court also decided to examine the application for suspension of operation of the Central Electoral Board’s decision of 3 January 2020 under the ordinary procedure and refused the requests for measures of extreme urgency submitted in that connection by the applicant. |
| --- | --- |

29

By order of 9 January 2020, the Tribunal Supremo (Supreme Court) ruled on the effects of the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), on the criminal proceedings concerning the applicant (‘the order of 9 January 2020 of the Tribunal Supremo (Supreme Court)’). It considered, in essence, that following that judgment, there was no need to request the Parliament to waive the immunity enjoyed by the applicant in his capacity as Member of the European Parliament because, inter alia, when he had been declared elected, the criminal proceedings concerning him had ended and the deliberations had begun. Thus, since the applicant had obtained the status of Member of the European Parliament when the criminal proceedings had already reached the trial stage, he could not claim immunity in order to prevent that trial from continuing. In the operative part of that order, the Tribunal Supremo (Supreme Court) held, in particular, that there were no grounds for authorising the applicant’s travel to the seat of the Parliament or his release, for quashing the judgment of 14 October 2019 of the Tribunal Supremo (Supreme Court), or for requesting the Parliament to waive immunity. In addition, it decided to notify that order to the Central Electoral Board and to the Parliament. On the same day, that court also decided to examine the application for suspension of operation of the Central Electoral Board’s decision of 3 January 2020 under the ordinary procedure and refused the requests for measures of extreme urgency submitted in that connection by the applicant.

| 30 | On 10 and 13 January 2020, Ms Riba i Giner supplemented the request made on behalf of the applicant of 20 December 2019 (see paragraph 27 above) by asking the President of the Parliament, inter alia, to refuse to declare the applicant’s seat vacant and by producing additional documents. |
| --- | --- |

30

On 10 and 13 January 2020, Ms Riba i Giner supplemented the request made on behalf of the applicant of 20 December 2019 (see paragraph 27 above) by asking the President of the Parliament, inter alia, to refuse to declare the applicant’s seat vacant and by producing additional documents.

| 31 | At the plenary session of 13 January 2020, the President of the Parliament announced that the Parliament took note, following the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), of the applicant’s election to the Parliament with effect from 2 July 2019. He also announced that, following the Central Electoral Board’s decision of 3 January 2020 and the order of 9 January 2020 of the Tribunal Supremo (Supreme Court), the Parliament declared the applicant’s seat vacant with effect from 3 January 2020 (‘the declaration of 13 January 2020’). |
| --- | --- |

31

At the plenary session of 13 January 2020, the President of the Parliament announced that the Parliament took note, following the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), of the applicant’s election to the Parliament with effect from 2 July 2019. He also announced that, following the Central Electoral Board’s decision of 3 January 2020 and the order of 9 January 2020 of the Tribunal Supremo (Supreme Court), the Parliament declared the applicant’s seat vacant with effect from 3 January 2020 (‘the declaration of 13 January 2020’).

Procedure and forms of order sought by the parties

Procedure and forms of order sought by the parties

| 32 | By application lodged at the Court Registry on 17 January 2020, the applicant brought the present action. |
| --- | --- |

32

By application lodged at the Court Registry on 17 January 2020, the applicant brought the present action.

| 33 | By two separate documents lodged at the Court Registry that same day, the applicant submitted, first, an application for interim measures, registered as Case T‐24/20 R, and, secondly, a request for the case to be dealt with under the expedited procedure pursuant to Articles 151 to 155 of the Rules of Procedure of the General Court. |
| --- | --- |

33

By two separate documents lodged at the Court Registry that same day, the applicant submitted, first, an application for interim measures, registered as Case T‐24/20 R, and, secondly, a request for the case to be dealt with under the expedited procedure pursuant to Articles 151 to 155 of the Rules of Procedure of the General Court.

| 34 | By order of 3 March 2020, Junqueras i Vies v Parliament (T‐24/20 R, not published, EU:T:2020:78), the Vice-President of the General Court dismissed the application for interim measures and reserved the costs. That order was the subject of an appeal before the Court of Justice brought on 13 May 2020 and registered as Case C‐201/20 P(R). |
| --- | --- |

34

By order of 3 March 2020, Junqueras i Vies v Parliament (T‐24/20 R, not published, EU:T:2020:78), the Vice-President of the General Court dismissed the application for interim measures and reserved the costs. That order was the subject of an appeal before the Court of Justice brought on 13 May 2020 and registered as Case C‐201/20 P(R).

| 35 | On 4 February 2020, the Parliament stated that it had no observations on the request for the case to be dealt with under the expedited procedure. |
| --- | --- |

35

On 4 February 2020, the Parliament stated that it had no observations on the request for the case to be dealt with under the expedited procedure.

| 36 | On 13 February 2020, the Sixth Chamber of the General Court decided to grant the request for the case to be dealt with under the expedited procedure. That decision was notified to the parties on the same day. |
| --- | --- |

36

On 13 February 2020, the Sixth Chamber of the General Court decided to grant the request for the case to be dealt with under the expedited procedure. That decision was notified to the parties on the same day.

| 37 | By separate document lodged at the Court Registry on 2 March 2020, the Parliament raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court. |
| --- | --- |

37

By separate document lodged at the Court Registry on 2 March 2020, the Parliament raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.

| 38 | By document lodged at the Court Registry on 18 March 2020, the applicant submitted observations on the plea of inadmissibility. |
| --- | --- |

38

By document lodged at the Court Registry on 18 March 2020, the applicant submitted observations on the plea of inadmissibility.

| 39 | The applicant claims that the Court should:





  – | reject the plea of inadmissibility; |
| --- | --- | --- |

39

The applicant claims that the Court should:

–

reject the plea of inadmissibility;

| – | annul, in essence, the declaration of 13 January 2020 and the refusal of Ms Riba i Giner’s request of 20 December 2019; |
| --- | --- |

–

annul, in essence, the declaration of 13 January 2020 and the refusal of Ms Riba i Giner’s request of 20 December 2019;

| – | order the Parliament to pay the costs. |
| --- | --- |

–

order the Parliament to pay the costs.

| 40 | The applicant also asks the Court to adopt measures of organisation of procedure, in essence, to have the Parliament and the President of the Parliament produce, first, the original or a certified copy of the files relating to the declaration of 13 January 2020 and to Ms Riba i Giner’s request of 20 December 2019 (including any legal reports and documents of whatever kind), or confirmation that such files do not exist, and, secondly, the notifications of the Central Electoral Board’s decision of 3 January 2020 and the order of 9 January 2020 of the Tribunal Supremo (Supreme Court). |
| --- | --- |

40

The applicant also asks the Court to adopt measures of organisation of procedure, in essence, to have the Parliament and the President of the Parliament produce, first, the original or a certified copy of the files relating to the declaration of 13 January 2020 and to Ms Riba i Giner’s request of 20 December 2019 (including any legal reports and documents of whatever kind), or confirmation that such files do not exist, and, secondly, the notifications of the Central Electoral Board’s decision of 3 January 2020 and the order of 9 January 2020 of the Tribunal Supremo (Supreme Court).

| 41 | The Parliament contends that the Court should:





  – | dismiss the action as inadmissible; |
| --- | --- | --- |

41

The Parliament contends that the Court should:

–

dismiss the action as inadmissible;

| – | order the applicant to pay the costs. |
| --- | --- |

–

order the applicant to pay the costs.

| 42 | By document lodged at the Court Registry on 25 March 2020, the Kingdom of Spain sought leave to intervene in the present case in support of the form of order sought by the Parliament. |
| --- | --- |

42

By document lodged at the Court Registry on 25 March 2020, the Kingdom of Spain sought leave to intervene in the present case in support of the form of order sought by the Parliament.

| 43 | By letter of 21 July 2020, the Court, in accordance with Article 89(3)(a) of its Rules of Procedure, sent questions to the parties by way of measures of organisation of procedure, with which the parties complied on 31 August 2020, that is, within the prescribed periods. |
| --- | --- |

43

By letter of 21 July 2020, the Court, in accordance with Article 89(3)(a) of its Rules of Procedure, sent questions to the parties by way of measures of organisation of procedure, with which the parties complied on 31 August 2020, that is, within the prescribed periods.

| 44 | In his reply of 31 August 2020 to the Court’s written questions, the applicant claims, in the alternative, that the Court should reserve its decision on the plea of inadmissibility until it rules on the substance of the case. |
| --- | --- |

44

In his reply of 31 August 2020 to the Court’s written questions, the applicant claims, in the alternative, that the Court should reserve its decision on the plea of inadmissibility until it rules on the substance of the case.

| 45 | By order of 8 October 2020, Junqueras i Vies v Parliament (C‐201/20 P(R), not published, EU:C:2020:818), the Vice-President of the Court of Justice dismissed the appeal against the order of 3 March 2020, Junqueras i Vies v Parliament (T‐24/20 R, not published, EU:T:2020:78), and, in essence, ordered the applicant to pay the costs relating to the appeal proceedings. |
| --- | --- |

45

By order of 8 October 2020, Junqueras i Vies v Parliament (C‐201/20 P(R), not published, EU:C:2020:818), the Vice-President of the Court of Justice dismissed the appeal against the order of 3 March 2020, Junqueras i Vies v Parliament (T‐24/20 R, not published, EU:T:2020:78), and, in essence, ordered the applicant to pay the costs relating to the appeal proceedings.

Law

Law

| 46 | Under Article 130(1) and (7) of the Rules of Procedure of the General Court, on the application of the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, as the Parliament has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings. |
| --- | --- |

46

Under Article 130(1) and (7) of the Rules of Procedure of the General Court, on the application of the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, as the Parliament has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

| 47 | The Parliament contends that the action is inadmissible because the declaration of 13 January 2020 and the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 are not acts adversely affecting the applicant in respect of which an action for annulment may be brought under Article 263 TFEU. |
| --- | --- |

47

The Parliament contends that the action is inadmissible because the declaration of 13 January 2020 and the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 are not acts adversely affecting the applicant in respect of which an action for annulment may be brought under Article 263 TFEU.

| 48 | It should be borne in mind that according to settled case-law, any measures taken by the institutions, whatever their nature or form, which are intended to produce binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position, are regarded as challengeable acts for the purposes of Article 263 TFEU (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‐362/08 P, EU:C:2010:40, paragraph 51; see also judgment of 25 October 2017, Romania v Commission, C‐599/15 P, EU:C:2017:801, paragraph 47 and the case-law cited). |
| --- | --- |

48

It should be borne in mind that according to settled case-law, any measures taken by the institutions, whatever their nature or form, which are intended to produce binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position, are regarded as challengeable acts for the purposes of Article 263 TFEU (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‐362/08 P, EU:C:2010:40, paragraph 51; see also judgment of 25 October 2017, Romania v Commission, C‐599/15 P, EU:C:2017:801, paragraph 47 and the case-law cited).

| 49 | In order to determine whether the contested act produces such effects, it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the EU institution which adopted the act (see judgment of 20 February 2018, Belgium v Commission, C‐16/16 P, EU:C:2018:79, paragraph 32 and the case-law cited). |
| --- | --- |

49

In order to determine whether the contested act produces such effects, it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the EU institution which adopted the act (see judgment of 20 February 2018, Belgium v Commission, C‐16/16 P, EU:C:2018:79, paragraph 32 and the case-law cited).

| 50 | According to the case-law, it is not only preparatory acts which fall outside the scope of the judicial review provided for in Article 263 TFEU but any act not producing binding legal effects, such as confirmatory measures and implementing measures, mere recommendations and opinions and, in principle, internal instructions (see order of 14 May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‐477/11 P, EU:C:2012:292, paragraph 52 and the case-law cited). Moreover, measures of a purely informative character can neither affect the interests of the addressee nor change his legal position compared with the situation prior to receipt of those measures (see judgment of 11 December 2012, Sina Bank v Council, T‐15/11, EU:T:2012:661, paragraph 30 and the case-law cited). |
| --- | --- |

50

According to the case-law, it is not only preparatory acts which fall outside the scope of the judicial review provided for in Article 263 TFEU but any act not producing binding legal effects, such as confirmatory measures and implementing measures, mere recommendations and opinions and, in principle, internal instructions (see order of 14 May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‐477/11 P, EU:C:2012:292, paragraph 52 and the case-law cited). Moreover, measures of a purely informative character can neither affect the interests of the addressee nor change his legal position compared with the situation prior to receipt of those measures (see judgment of 11 December 2012, Sina Bank v Council, T‐15/11, EU:T:2012:661, paragraph 30 and the case-law cited).

| 51 | It also follows from the case-law 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 (orders of 27 January 1993, Miethke v Parliament, C‐25/92, EU:C:1993:32, paragraph 10; of 11 December 1998, Scottish Soft Fruit Growers v Commission, T‐22/98, EU:T:1998:286, paragraph 34; and of 5 September 2012, Farage v Parliament and Buzek, T‐564/11, not published, EU:T:2012:403, paragraph 27). |
| --- | --- |

51

It also follows from the case-law 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 (orders of 27 January 1993, Miethke v Parliament, C‐25/92, EU:C:1993:32, paragraph 10; of 11 December 1998, Scottish Soft Fruit Growers v Commission, T‐22/98, EU:T:1998:286, paragraph 34; and of 5 September 2012, Farage v Parliament and Buzek, T‐564/11, not published, EU:T:2012:403, paragraph 27).

| 52 | Lastly, it is apparent from the case-law that when a decision of an EU institution amounts to a rejection, it must be appraised in the light of the nature of the request to which it constitutes a reply (judgments of 8 March 1972, Nordgetreide v Commission, 42/71, EU:C:1972:16, paragraph 5; of 24 November 1992, Buckl and Others v Commission, C‐15/91 and C‐108/91, EU:C:1992:454, paragraph 22; and of 9 October 2018, Multiconnect v Commission, T‐884/16, not published, EU:T:2018:665, paragraph 45). In particular, a refusal constitutes an act in respect of which an action for annulment may be brought under Article 263 TFEU provided that the act which the EU institution refuses to adopt could itself have been contested under that provision (see judgment of 22 October 1996, Salt Union v Commission, T‐330/94, EU:T:1996:154, paragraph 32 and the case-law cited). |
| --- | --- |

52

Lastly, it is apparent from the case-law that when a decision of an EU institution amounts to a rejection, it must be appraised in the light of the nature of the request to which it constitutes a reply (judgments of 8 March 1972, Nordgetreide v Commission, 42/71, EU:C:1972:16, paragraph 5; of 24 November 1992, Buckl and Others v Commission, C‐15/91 and C‐108/91, EU:C:1992:454, paragraph 22; and of 9 October 2018, Multiconnect v Commission, T‐884/16, not published, EU:T:2018:665, paragraph 45). In particular, a refusal constitutes an act in respect of which an action for annulment may be brought under Article 263 TFEU provided that the act which the EU institution refuses to adopt could itself have been contested under that provision (see judgment of 22 October 1996, Salt Union v Commission, T‐330/94, EU:T:1996:154, paragraph 32 and the case-law cited).

| 53 | It is in the light of those considerations that it is necessary to examine whether, first, the declaration of 13 January 2020 and, secondly, the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 are challengeable acts. |
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53

It is in the light of those considerations that it is necessary to examine whether, first, the declaration of 13 January 2020 and, secondly, the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 are challengeable acts.

Admissibility of the claims for annulment of the declaration of 13 January 2020

Admissibility of the claims for annulment of the declaration of 13 January 2020

| 54 | The Parliament submits that the declaration of 13 January 2020 is not an act producing binding legal effects in respect of which an action for annulment may be brought under Article 263 TFEU because, in essence, the vacation of the applicant’s seat is exclusively the result of a decision of the Spanish authorities adopted pursuant to Article 6(2) of the Spanish Electoral Law, which the Parliament was required to take note of in accordance with Article 13(3) of the Electoral Act and the second subparagraph of Rule 4(4) of the Rules of Procedure. |
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54

The Parliament submits that the declaration of 13 January 2020 is not an act producing binding legal effects in respect of which an action for annulment may be brought under Article 263 TFEU because, in essence, the vacation of the applicant’s seat is exclusively the result of a decision of the Spanish authorities adopted pursuant to Article 6(2) of the Spanish Electoral Law, which the Parliament was required to take note of in accordance with Article 13(3) of the Electoral Act and the second subparagraph of Rule 4(4) of the Rules of Procedure.

| 55 | The applicant submits that the plea of inadmissibility should be rejected in so far as it concerns the action against the declaration of 13 January 2020. He argues that the declaration of 13 January 2020 produced ‘distinct’ legal effects. In particular, it prevented him being recognised as a Member of the European Parliament and thus deprived him of the possibility of the Parliament refusing to waive his immunity. Furthermore, the applicant claims, in essence, that under Article 13(3) of the Electoral Act and Rule 4(7) of the Rules of Procedure, the Parliament should have refused to establish the vacancy. In that regard, the applicant submits that the Parliament was entitled to find that the Tribunal Supremo (Supreme Court) had, on the one hand, failed to comply with national procedures and with the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), and, on the other, infringed EU law, in particular, the second paragraph of Article 9 of Protocol No 7 and the principle of sincere cooperation enshrined in Article 4(3) TEU. |
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55

The applicant submits that the plea of inadmissibility should be rejected in so far as it concerns the action against the declaration of 13 January 2020. He argues that the declaration of 13 January 2020 produced ‘distinct’ legal effects. In particular, it prevented him being recognised as a Member of the European Parliament and thus deprived him of the possibility of the Parliament refusing to waive his immunity. Furthermore, the applicant claims, in essence, that under Article 13(3) of the Electoral Act and Rule 4(7) of the Rules of Procedure, the Parliament should have refused to establish the vacancy. In that regard, the applicant submits that the Parliament was entitled to find that the Tribunal Supremo (Supreme Court) had, on the one hand, failed to comply with national procedures and with the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), and, on the other, infringed EU law, in particular, the second paragraph of Article 9 of Protocol No 7 and the principle of sincere cooperation enshrined in Article 4(3) TEU.

| 56 | First, under Articles 5(1) and 13(2) TEU, the Parliament is to act within the limits of the powers conferred on it by the Treaties. |
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56

First, under Articles 5(1) and 13(2) TEU, the Parliament is to act within the limits of the powers conferred on it by the Treaties.

| 57 | Article 13(1) of the Electoral Act states that a seat falls vacant when the mandate of a Member of the European Parliament ends as a result of resignation, death or withdrawal of the mandate. In the last situation, Article 13(3) of that act provides that where the law of a Member State makes explicit provision for the withdrawal of the mandate of a Member of the European Parliament, that mandate is to end pursuant to those legal provisions and the competent national authorities are to inform the Parliament thereof. |
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57

Article 13(1) of the Electoral Act states that a seat falls vacant when the mandate of a Member of the European Parliament ends as a result of resignation, death or withdrawal of the mandate. In the last situation, Article 13(3) of that act provides that where the law of a Member State makes explicit provision for the withdrawal of the mandate of a Member of the European Parliament, that mandate is to end pursuant to those legal provisions and the competent national authorities are to inform the Parliament thereof.

| 58 | It is also apparent from the second subparagraph of Rule 4(4) of the Rules of Procedure that, where the competent authorities of the Member States notify the President of the Parliament of the end of the term of office of a Member of the European Parliament as a result either of an additional incompatibility established by the law of a Member State in accordance with Article 7(3) of the Electoral Act, or of the withdrawal of the mandate of the Member concerned pursuant to Article 13(3) of that act, the President of the Parliament is to inform Parliament that the term of office of that Member ended on the date communicated by the competent authorities of the Member State. |
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58

It is also apparent from the second subparagraph of Rule 4(4) of the Rules of Procedure that, where the competent authorities of the Member States notify the President of the Parliament of the end of the term of office of a Member of the European Parliament as a result either of an additional incompatibility established by the law of a Member State in accordance with Article 7(3) of the Electoral Act, or of the withdrawal of the mandate of the Member concerned pursuant to Article 13(3) of that act, the President of the Parliament is to inform Parliament that the term of office of that Member ended on the date communicated by the competent authorities of the Member State.

| 59 | It follows from the scheme of the provisions referred to in paragraphs 56 to 58 above that the Parliament has no competence to review the decision of the authorities of a Member State declaring, pursuant to national law, the withdrawal of the mandate of a Member of the European Parliament or the existence of an additional incompatibility as provided for in Article 7(3) of the Electoral Act, or to review the resulting decision on the vacancy; the Parliament is merely informed of that vacancy by the national authorities. That, moreover, accords with the Court’s findings, at first sight, in paragraphs 62 and 73 of the order of 8 October 2020, Junqueras i Vies v Parliament (C‐201/20 P(R), not published, EU:C:2020:818). |
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59

It follows from the scheme of the provisions referred to in paragraphs 56 to 58 above that the Parliament has no competence to review the decision of the authorities of a Member State declaring, pursuant to national law, the withdrawal of the mandate of a Member of the European Parliament or the existence of an additional incompatibility as provided for in Article 7(3) of the Electoral Act, or to review the resulting decision on the vacancy; the Parliament is merely informed of that vacancy by the national authorities. That, moreover, accords with the Court’s findings, at first sight, in paragraphs 62 and 73 of the order of 8 October 2020, Junqueras i Vies v Parliament (C‐201/20 P(R), not published, EU:C:2020:818).

| 60 | That interpretation is supported by the wording of Articles 8 and 12 of the Electoral Act and Rule 3(3) of the Rules of Procedure (see paragraphs 3, 4 and 6 above). It follows from a joint reading of those provisions that since the Member States remain competent, in principle, to regulate the electoral procedure, the Parliament has no competence to call into question the validity of a Member State’s declaration of the election results or to review whether that declaration complies with EU law (judgment of 19 December 2019, Junqueras Vies, C‐502/19, EU:C:2019:1115, paragraph 69), or to rule on disputes concerning the validity of the mandate of newly elected Members of the European Parliament where those disputes are based on national provisions to which the Electoral Act refers (see Article 12 of the Electoral Act and Rule 3(3) of the Rules of Procedure). Therefore, in view of the reference made in Article 13(3) of the Electoral Act to provisions of national law, it must be held that the Parliament also does not have competence to rule on disputes concerning the vacation of the seat of a Member of the European Parliament where that dispute is the result of the withdrawal of that Member’s electoral mandate pursuant to an explicit national provision (see, by analogy, judgment of 7 July 2005, Le Pen v Parliament, C‐208/03 P, EU:C:2005:429, paragraph 51). |
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60

That interpretation is supported by the wording of Articles 8 and 12 of the Electoral Act and Rule 3(3) of the Rules of Procedure (see paragraphs 3, 4 and 6 above). It follows from a joint reading of those provisions that since the Member States remain competent, in principle, to regulate the electoral procedure, the Parliament has no competence to call into question the validity of a Member State’s declaration of the election results or to review whether that declaration complies with EU law (judgment of 19 December 2019, Junqueras Vies, C‐502/19, EU:C:2019:1115, paragraph 69), or to rule on disputes concerning the validity of the mandate of newly elected Members of the European Parliament where those disputes are based on national provisions to which the Electoral Act refers (see Article 12 of the Electoral Act and Rule 3(3) of the Rules of Procedure). Therefore, in view of the reference made in Article 13(3) of the Electoral Act to provisions of national law, it must be held that the Parliament also does not have competence to rule on disputes concerning the vacation of the seat of a Member of the European Parliament where that dispute is the result of the withdrawal of that Member’s electoral mandate pursuant to an explicit national provision (see, by analogy, judgment of 7 July 2005, Le Pen v Parliament, C‐208/03 P, EU:C:2005:429, paragraph 51).

| 61 | Secondly, in the judgment of 7 July 2005, Le Pen v Parliament (C‐208/03 P, EU:C:2005:429), the Court held that the first subparagraph of Article 12(2) of the initial version of the Electoral Act, now Article 13(3) of that act, clearly highlighted the complete lack of discretion on the part of the Parliament since, in the particular situation covered by that provision, its role was not to declare the seat of a Member of the European Parliament vacant, but merely to take note of that vacancy as already established by the national authorities. The Court also explained that in the other cases concerning, inter alia, the resignation or death of one of its Members, the Parliament has a more active role to play since it itself establishes that there is a vacancy and informs the Member State in question thereof (judgment of 7 July 2005, Le Pen v Parliament, C‐208/03 P, EU:C:2005:429, paragraph 50). |
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61

Secondly, in the judgment of 7 July 2005, Le Pen v Parliament (C‐208/03 P, EU:C:2005:429), the Court held that the first subparagraph of Article 12(2) of the initial version of the Electoral Act, now Article 13(3) of that act, clearly highlighted the complete lack of discretion on the part of the Parliament since, in the particular situation covered by that provision, its role was not to declare the seat of a Member of the European Parliament vacant, but merely to take note of that vacancy as already established by the national authorities. The Court also explained that in the other cases concerning, inter alia, the resignation or death of one of its Members, the Parliament has a more active role to play since it itself establishes that there is a vacancy and informs the Member State in question thereof (judgment of 7 July 2005, Le Pen v Parliament, C‐208/03 P, EU:C:2005:429, paragraph 50).

| 62 | In its judgment of 7 July 2005, Le Pen v Parliament (C‐208/03 P, EU:C:2005:429), the Court of Justice thus upheld the judgment of 10 April 2003, Le Pen v Parliament (T‐353/00, EU:T:2003:112), in which, in paragraphs 90 to 97, the General Court had held, in essence, that the taking note by the Parliament of the vacation of the seat of a Member of the European Parliament pursuant to national provisions, on the basis of the first subparagraph of Article 12(2) of the initial version of the Electoral Act, was not a challengeable act because it was not intended to produce legal effects of its own. |
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62

In its judgment of 7 July 2005, Le Pen v Parliament (C‐208/03 P, EU:C:2005:429), the Court of Justice thus upheld the judgment of 10 April 2003, Le Pen v Parliament (T‐353/00, EU:T:2003:112), in which, in paragraphs 90 to 97, the General Court had held, in essence, that the taking note by the Parliament of the vacation of the seat of a Member of the European Parliament pursuant to national provisions, on the basis of the first subparagraph of Article 12(2) of the initial version of the Electoral Act, was not a challengeable act because it was not intended to produce legal effects of its own.

| 63 | Thirdly, it should be recalled that Article 13(3) of the Electoral Act replaced the first subparagraph of Article 12(2) of the initial version of that act, which provided that ‘where a seat falls vacant pursuant to national provisions in force in a Member State, the latter shall inform [the Parliament], which shall take note of that fact’. |
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63

Thirdly, it should be recalled that Article 13(3) of the Electoral Act replaced the first subparagraph of Article 12(2) of the initial version of that act, which provided that ‘where a seat falls vacant pursuant to national provisions in force in a Member State, the latter shall inform [the Parliament], which shall take note of that fact’.

| 64 | Article 13(3) of the Electoral Act merely clarified that provision without altering its substance. Thus, Article 13(3) of the Electoral Act states that the mandate of a Member of the European Parliament is to end pursuant to national legislation explicitly providing for the withdrawal of that mandate and removed the reference requiring the Parliament to ‘take note’ of a vacancy notified by the national authorities where that vacancy has arisen in the situation referred to in that article. |
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64

Article 13(3) of the Electoral Act merely clarified that provision without altering its substance. Thus, Article 13(3) of the Electoral Act states that the mandate of a Member of the European Parliament is to end pursuant to national legislation explicitly providing for the withdrawal of that mandate and removed the reference requiring the Parliament to ‘take note’ of a vacancy notified by the national authorities where that vacancy has arisen in the situation referred to in that article.

| 65 | The amendments referred to in paragraph 64 above confirm that, where the seat of a Member of the European Parliament falls vacant as a result of the withdrawal of his mandate pursuant to national legislation, the Parliament continues to have no competence to review the decision of the national authorities declaring that vacancy or to refuse to take that decision into account (see the case-law cited in paragraph 61 above). |
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65

The amendments referred to in paragraph 64 above confirm that, where the seat of a Member of the European Parliament falls vacant as a result of the withdrawal of his mandate pursuant to national legislation, the Parliament continues to have no competence to review the decision of the national authorities declaring that vacancy or to refuse to take that decision into account (see the case-law cited in paragraph 61 above).

| 66 | Therefore, the interpretation of the first subparagraph of Article 12(2) of the initial version of the Electoral Act, upheld by the Court in the judgment of 7 July 2005, Le Pen v Parliament (C‐208/03 P, EU:C:2005:429, paragraph 50), and confirmed, in essence, by the judgment of 30 April 2009, Italy and Donnici v Parliament (C‐393/07 and C‐9/08, EU:C:2009:275, paragraph 55), remains relevant vis-à-vis Article 13(3) of the Electoral Act. |
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66

Therefore, the interpretation of the first subparagraph of Article 12(2) of the initial version of the Electoral Act, upheld by the Court in the judgment of 7 July 2005, Le Pen v Parliament (C‐208/03 P, EU:C:2005:429, paragraph 50), and confirmed, in essence, by the judgment of 30 April 2009, Italy and Donnici v Parliament (C‐393/07 and C‐9/08, EU:C:2009:275, paragraph 55), remains relevant vis-à-vis Article 13(3) of the Electoral Act.

| 67 | It follows from the foregoing considerations that the applicant is wrong to claim that, in the light of the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), and the failure of the Tribunal Supremo (Supreme Court) to comply with that judgment, the Parliament was entitled to declare that his seat was not vacant. |
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67

It follows from the foregoing considerations that the applicant is wrong to claim that, in the light of the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), and the failure of the Tribunal Supremo (Supreme Court) to comply with that judgment, the Parliament was entitled to declare that his seat was not vacant.

| 68 | Moreover, in the present case, it is not apparent from the documents before the Court that the Parliament conducted any kind of review of the Central Electoral Board’s decision of 3 January 2020 and the order of 9 January 2020 of the Tribunal Supremo (Supreme Court) which resulted in the vacation of the applicant’s seat. Thus, although, at the plenary session of 13 January 2020, the President of the Parliament announced that the Parliament ‘declare[d]’ the applicant’s seat vacant, it must be held that, in essence, he simply informed the institution of that vacancy, as provided for in the second subparagraph of Rule 4(4) of the Rules of Procedure. |
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68

Moreover, in the present case, it is not apparent from the documents before the Court that the Parliament conducted any kind of review of the Central Electoral Board’s decision of 3 January 2020 and the order of 9 January 2020 of the Tribunal Supremo (Supreme Court) which resulted in the vacation of the applicant’s seat. Thus, although, at the plenary session of 13 January 2020, the President of the Parliament announced that the Parliament ‘declare[d]’ the applicant’s seat vacant, it must be held that, in essence, he simply informed the institution of that vacancy, as provided for in the second subparagraph of Rule 4(4) of the Rules of Procedure.

| 69 | It follows that, in the present case, the measures which produced binding legal effects capable of affecting the applicant’s legal situation are the Central Electoral Board’s decision of 3 January 2020 and the order of 9 January 2020 of the Tribunal Supremo (Supreme Court), which, themselves, draw the appropriate conclusions from the judgment of 14 October 2019 of the Tribunal Supremo (Supreme Court) sentencing the applicant to a 13-year term of imprisonment and to a 13-year disqualification from holding any public office, entailing the loss of all his public offices. |
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69

It follows that, in the present case, the measures which produced binding legal effects capable of affecting the applicant’s legal situation are the Central Electoral Board’s decision of 3 January 2020 and the order of 9 January 2020 of the Tribunal Supremo (Supreme Court), which, themselves, draw the appropriate conclusions from the judgment of 14 October 2019 of the Tribunal Supremo (Supreme Court) sentencing the applicant to a 13-year term of imprisonment and to a 13-year disqualification from holding any public office, entailing the loss of all his public offices.

| 70 | It is apparent from the Central Electoral Board’s decision of 3 January 2020 that the legal consequence of the applicant being sentenced to a term of imprisonment by means of a final judicial decision was the loss of his parliamentary mandate, since he was caught by the ground of ineligibility laid down in Article 6(2)(a) of the Spanish Electoral Law, read in conjunction with Article 6(4) of that law, in accordance with the constitutional case-law referred to in that decision. |
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70

It is apparent from the Central Electoral Board’s decision of 3 January 2020 that the legal consequence of the applicant being sentenced to a term of imprisonment by means of a final judicial decision was the loss of his parliamentary mandate, since he was caught by the ground of ineligibility laid down in Article 6(2)(a) of the Spanish Electoral Law, read in conjunction with Article 6(4) of that law, in accordance with the constitutional case-law referred to in that decision.

| 71 | Thus, at the plenary session of 13 January 2020, the President of the Parliament merely informed the institution of a pre-existing legal situation resulting exclusively from the decisions of the Spanish authorities mentioned in paragraph 69 above (see, to that effect, judgment of 7 July 2005, Le Pen v Parliament, C‐208/03 P, EU:C:2005:429, paragraph 49). |
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71

Thus, at the plenary session of 13 January 2020, the President of the Parliament merely informed the institution of a pre-existing legal situation resulting exclusively from the decisions of the Spanish authorities mentioned in paragraph 69 above (see, to that effect, judgment of 7 July 2005, Le Pen v Parliament, C‐208/03 P, EU:C:2005:429, paragraph 49).

| 72 | The Court has consistently held that a measure of an informative character cannot affect the interests of the addressee or change his legal position compared with the situation prior to receipt of that measure (see orders of 4 October 2007, Finland v Commission, C‐457/06 P, not published, EU:C:2007:582, paragraph 36 and the case-law cited; and of 12 June 2019, Durand and Others v Parliament, T‐702/18, not published, EU:T:2019:408, paragraph 34 and the case-law cited; as well as judgment of 8 July 2020, Neda Industrial Group v Council, T‐490/18, not published, EU:T:2020:318, paragraph 46 and the case-law cited). |
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72

The Court has consistently held that a measure of an informative character cannot affect the interests of the addressee or change his legal position compared with the situation prior to receipt of that measure (see orders of 4 October 2007, Finland v Commission, C‐457/06 P, not published, EU:C:2007:582, paragraph 36 and the case-law cited; and of 12 June 2019, Durand and Others v Parliament, T‐702/18, not published, EU:T:2019:408, paragraph 34 and the case-law cited; as well as judgment of 8 July 2020, Neda Industrial Group v Council, T‐490/18, not published, EU:T:2020:318, paragraph 46 and the case-law cited).

| 73 | In the light of all the foregoing considerations, it must be held that the declaration of 13 January 2020 is a purely informative measure the legal effects of which are no different from those resulting from the decisions referred to in paragraph 69 above, so that it cannot be the subject of an action under Article 263 TFEU. |
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73

In the light of all the foregoing considerations, it must be held that the declaration of 13 January 2020 is a purely informative measure the legal effects of which are no different from those resulting from the decisions referred to in paragraph 69 above, so that it cannot be the subject of an action under Article 263 TFEU.

| 74 | That finding is not invalidated by the arguments put forward by the applicant. |
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74

That finding is not invalidated by the arguments put forward by the applicant.

Argument relating to the applicability of Rule 4(7) of the Rules of Procedure in the event of withdrawal of the mandate of a Member of the European Parliament

Argument relating to the applicability of Rule 4(7) of the Rules of Procedure in the event of withdrawal of the mandate of a Member of the European Parliament

| 75 | The applicant claims, in essence, that the power conferred on the Parliament by Rule 4(7) of the Rules of Procedure to refuse to establish the vacancy of a parliamentary seat where a material inaccuracy exists also applies to the cases of withdrawal and incompatibility referred to in Rule 4(4). Thus, under Rule 4(7), the Parliament should have refused to establish the vacancy of his parliamentary seat since it could have found directly that the Tribunal Supremo (Supreme Court) had infringed EU law and had failed to suspend national procedures. |
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75

The applicant claims, in essence, that the power conferred on the Parliament by Rule 4(7) of the Rules of Procedure to refuse to establish the vacancy of a parliamentary seat where a material inaccuracy exists also applies to the cases of withdrawal and incompatibility referred to in Rule 4(4). Thus, under Rule 4(7), the Parliament should have refused to establish the vacancy of his parliamentary seat since it could have found directly that the Tribunal Supremo (Supreme Court) had infringed EU law and had failed to suspend national procedures.

| 76 | Rule 4(7) of the Rules of Procedure allows the Parliament, inter alia, to refuse to establish the vacancy of a parliamentary seat where the ‘termination of office [of Member of the European Parliament] appears to be based on material inaccuracy or vitiated consent’. |
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76

Rule 4(7) of the Rules of Procedure allows the Parliament, inter alia, to refuse to establish the vacancy of a parliamentary seat where the ‘termination of office [of Member of the European Parliament] appears to be based on material inaccuracy or vitiated consent’.

| 77 | It is apparent from the case-law that pursuant to the principle of the hierarchy of norms, a provision of the Rules of Procedure cannot allow derogation from the provisions of the Electoral Act and confer on the Parliament or its President powers more extensive than those which they hold under that act (judgment of 30 April 2009, Italy and Donnici v Parliament, C‐393/07, not published, EU:C:2009:275, paragraph 48; also see order of 13 January 2009, Occhetto and Parliament v Donnici, C‐512/07 P(R) and C‐15/08 P(R), EU:C:2009:3, paragraph 45 and the case-law cited). |
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77

It is apparent from the case-law that pursuant to the principle of the hierarchy of norms, a provision of the Rules of Procedure cannot allow derogation from the provisions of the Electoral Act and confer on the Parliament or its President powers more extensive than those which they hold under that act (judgment of 30 April 2009, Italy and Donnici v Parliament, C‐393/07, not published, EU:C:2009:275, paragraph 48; also see order of 13 January 2009, Occhetto and Parliament v Donnici, C‐512/07 P(R) and C‐15/08 P(R), EU:C:2009:3, paragraph 45 and the case-law cited).

| 78 | In the present case, the Electoral Act did not confer on the Parliament or its President competence to review the withdrawal of the mandate of a Member of the European Parliament pursuant to national legislation or to prevent that withdrawal from taking effect in accordance with that legislation (see paragraphs 56 to 66 above). |
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78

In the present case, the Electoral Act did not confer on the Parliament or its President competence to review the withdrawal of the mandate of a Member of the European Parliament pursuant to national legislation or to prevent that withdrawal from taking effect in accordance with that legislation (see paragraphs 56 to 66 above).

| 79 | Thus, any interpretation of Rule 4(7) of the Rules of Procedure whereby the Parliament is recognised as having such competence would be contrary to the Electoral Act and would infringe the principle of the hierarchy of norms referred to in paragraph 77 above. |
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79

Thus, any interpretation of Rule 4(7) of the Rules of Procedure whereby the Parliament is recognised as having such competence would be contrary to the Electoral Act and would infringe the principle of the hierarchy of norms referred to in paragraph 77 above.

| 80 | In any event, it must be stated that the wording of Rule 4(7) of the Rules of Procedure does not expressly cover the situation where the seat has fallen vacant as a result of the withdrawal of the mandate of a Member of the European Parliament under national law. |
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80

In any event, it must be stated that the wording of Rule 4(7) of the Rules of Procedure does not expressly cover the situation where the seat has fallen vacant as a result of the withdrawal of the mandate of a Member of the European Parliament under national law.

| 81 | Furthermore, it follows from Rule 4 of the Rules of Procedure that the powers of the Parliament or of its President differ depending on how the parliamentary seat fell vacant. In particular, the wording of that provision clearly shows that a vacancy ‘shall be declared’ by the Parliament in the event of resignation of a Member (second subparagraph of Rule 4(2) of the Rules of Procedure) and that the Parliament ‘shall declare’ that a vacancy exists if a Member is appointed or elected to one of the offices that is incompatible with the office of Member of the European Parliament as listed in Article 7(1) and (2) of the Electoral Act (first subparagraph of Rule 4(4) of the Rules of Procedure). On the other hand, the Parliament has no active role to play where the seat falls vacant as a result of the application of national law, that is, in the event of ‘withdrawal’ or ‘additional incompatibility’ for the purposes of Article 7(3) of the Electoral Act (second subparagraph of Rule 4(4) of the Rules of Procedure). In the latter case, the Parliament is merely informed by its President that the term of office of the Member has ended (see paragraph 58 above). |
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81

Furthermore, it follows from Rule 4 of the Rules of Procedure that the powers of the Parliament or of its President differ depending on how the parliamentary seat fell vacant. In particular, the wording of that provision clearly shows that a vacancy ‘shall be declared’ by the Parliament in the event of resignation of a Member (second subparagraph of Rule 4(2) of the Rules of Procedure) and that the Parliament ‘shall declare’ that a vacancy exists if a Member is appointed or elected to one of the offices that is incompatible with the office of Member of the European Parliament as listed in Article 7(1) and (2) of the Electoral Act (first subparagraph of Rule 4(4) of the Rules of Procedure). On the other hand, the Parliament has no active role to play where the seat falls vacant as a result of the application of national law, that is, in the event of ‘withdrawal’ or ‘additional incompatibility’ for the purposes of Article 7(3) of the Electoral Act (second subparagraph of Rule 4(4) of the Rules of Procedure). In the latter case, the Parliament is merely informed by its President that the term of office of the Member has ended (see paragraph 58 above).

| 82 | Thus, contrary to what the applicant claims, it follows from a literal, teleological and systemic interpretation of Rule 4 of the Rules of Procedure that the Parliament may review or refuse to take note of the vacancy of the seat of a Member of the European Parliament pursuant to paragraph 7 of that provision only if it has, at an earlier stage, the power to intervene in the procedure relating to that vacancy, that is to say, only where it is called upon to ‘declare’ the resignation of a Member on the basis of the second subparagraph of Rule 4(2) of the Rules of Procedure or ‘declare’ the existence of the vacant parliamentary seat on the basis of the first subparagraph of Rule 4(4) thereof (see paragraph 81 above). |
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82

Thus, contrary to what the applicant claims, it follows from a literal, teleological and systemic interpretation of Rule 4 of the Rules of Procedure that the Parliament may review or refuse to take note of the vacancy of the seat of a Member of the European Parliament pursuant to paragraph 7 of that provision only if it has, at an earlier stage, the power to intervene in the procedure relating to that vacancy, that is to say, only where it is called upon to ‘declare’ the resignation of a Member on the basis of the second subparagraph of Rule 4(2) of the Rules of Procedure or ‘declare’ the existence of the vacant parliamentary seat on the basis of the first subparagraph of Rule 4(4) thereof (see paragraph 81 above).

| 83 | In addition, it must be stated that the applicant sought to have the Parliament find that the Tribunal Supremo (Supreme Court) had infringed EU law and had failed to comply with national procedures (see paragraphs 55 and 75 above), which would go beyond a review of the material accuracy of the vacancy or of whether consent was vitiated (see, to that effect, order of 8 October 2020, Junqueras i Vies v Parliament, C‐201/20 P(R), not published, EU:C:2020:818, paragraphs 72 and 73). |
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83

In addition, it must be stated that the applicant sought to have the Parliament find that the Tribunal Supremo (Supreme Court) had infringed EU law and had failed to comply with national procedures (see paragraphs 55 and 75 above), which would go beyond a review of the material accuracy of the vacancy or of whether consent was vitiated (see, to that effect, order of 8 October 2020, Junqueras i Vies v Parliament, C‐201/20 P(R), not published, EU:C:2020:818, paragraphs 72 and 73).

| 84 | Moreover, verification of whether the national authorities have complied with the procedures laid down by national and EU law does not fall within the competence of the Parliament; it falls within the jurisdiction of the Spanish courts and, as the case may be, the Court of Justice when an action for failure to fulfil obligations under Article 258 TFEU is brought before it (see, to that effect and by analogy, judgment of 10 April 2003, Le Pen v Parliament, T‐353/00, EU:T:2003:112, paragraph 91). |
| --- | --- |

84

Moreover, verification of whether the national authorities have complied with the procedures laid down by national and EU law does not fall within the competence of the Parliament; it falls within the jurisdiction of the Spanish courts and, as the case may be, the Court of Justice when an action for failure to fulfil obligations under Article 258 TFEU is brought before it (see, to that effect and by analogy, judgment of 10 April 2003, Le Pen v Parliament, T‐353/00, EU:T:2003:112, paragraph 91).

| 85 | In the light of the foregoing, the applicant is not justified in claiming that the President of the Parliament could and should have refused to ‘establish’ the vacancy of his seat under Rule 4(7) of the Rules of Procedure. |
| --- | --- |

85

In the light of the foregoing, the applicant is not justified in claiming that the President of the Parliament could and should have refused to ‘establish’ the vacancy of his seat under Rule 4(7) of the Rules of Procedure.

| 86 | The applicant’s argument must therefore be rejected. |
| --- | --- |

86

The applicant’s argument must therefore be rejected.

Argument that the admissibility of the action should be assessed in the light of the Charter of Fundamental Rights of the European Union

Argument that the admissibility of the action should be assessed in the light of the Charter of Fundamental Rights of the European Union

| 87 | The applicant claims, in essence, that the admissibility of the present action must be assessed in the light of the fundamental rights enshrined in Article 39(1) and (2) and Article 41(1) and (2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). |
| --- | --- |

87

The applicant claims, in essence, that the admissibility of the present action must be assessed in the light of the fundamental rights enshrined in Article 39(1) and (2) and Article 41(1) and (2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

| 88 | Under the second subparagraph of Article 6(1) TEU, the provisions of the Charter are not to extend in any way the competences of the Union as defined in the Treaties. Likewise, the Charter, pursuant to Article 51(2) thereof, does not extend the field of application of EU law beyond the powers of the European Union or establish any new power or task for the European Union, or modify powers and tasks as defined in the Treaties (see order of 8 October 2020, Junqueras i Vies v Parliament, C‐201/20 P(R), not published, EU:C:2020:818, paragraph 82 and the case-law cited). |
| --- | --- |

88

Under the second subparagraph of Article 6(1) TEU, the provisions of the Charter are not to extend in any way the competences of the Union as defined in the Treaties. Likewise, the Charter, pursuant to Article 51(2) thereof, does not extend the field of application of EU law beyond the powers of the European Union or establish any new power or task for the European Union, or modify powers and tasks as defined in the Treaties (see order of 8 October 2020, Junqueras i Vies v Parliament, C‐201/20 P(R), not published, EU:C:2020:818, paragraph 82 and the case-law cited).

| 89 | Furthermore, judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, by the Court of Justice of the European Union and the courts and tribunals of the Member States. To that end, the TFEU has established, by Articles 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the European Union judicature (judgment of 19 December 2013, Telefónica v Commission, C‐274/12 P, EU:C:2013:852, paragraph 57). |
| --- | --- |

89

Furthermore, judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, by the Court of Justice of the European Union and the courts and tribunals of the Member States. To that end, the TFEU has established, by Articles 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the European Union judicature (judgment of 19 December 2013, Telefónica v Commission, C‐274/12 P, EU:C:2013:852, paragraph 57).

| 90 | Furthermore, in accordance with the settled case-law referred to in paragraph 48 above, an action for annulment under Article 263 TFEU may be brought against any measures taken by the institutions, whatever their nature or form, which are intended to produce binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. |
| --- | --- |

90

Furthermore, in accordance with the settled case-law referred to in paragraph 48 above, an action for annulment under Article 263 TFEU may be brought against any measures taken by the institutions, whatever their nature or form, which are intended to produce binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position.

| 91 | It follows that the provisions of the Charter are not intended – and the applicant has moreover not claimed that it is their intention – to change the system of judicial review laid down by the Treaties, particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union (see, by analogy, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‐583/11 P, EU:C:2013:625, paragraph 97). |
| --- | --- |

91

It follows that the provisions of the Charter are not intended – and the applicant has moreover not claimed that it is their intention – to change the system of judicial review laid down by the Treaties, particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union (see, by analogy, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‐583/11 P, EU:C:2013:625, paragraph 97).

| 92 | Accordingly, the applicant’s argument must be rejected, as must, in consequence, his claim – which is ineffective – that the approach taken in the judgments of 7 July 2005, Le Pen v Parliament (C‐208/03 P, EU:C:2005:429), and of 30 April 2009, Italy and Donnici v Parliament (C‐393/07 and C‐9/08, EU:C:2009:275), cannot be applied to the present case because those judgments predate the entry into force of the Treaty of Lisbon and the Charter. |
| --- | --- |

92

Accordingly, the applicant’s argument must be rejected, as must, in consequence, his claim – which is ineffective – that the approach taken in the judgments of 7 July 2005, Le Pen v Parliament (C‐208/03 P, EU:C:2005:429), and of 30 April 2009, Italy and Donnici v Parliament (C‐393/07 and C‐9/08, EU:C:2009:275), cannot be applied to the present case because those judgments predate the entry into force of the Treaty of Lisbon and the Charter.

| 93 | Lastly, should the applicant seek to argue that the alleged infringement by the Parliament of the right to vote and to stand as a candidate at elections and of the right to good administration, enshrined in Articles 39 and 41 of the Charter, respectively, renders the action against the declaration of 13 January 2020 admissible, it must be stated that the question whether such an infringement exists forms part of the review of the substantive legality of that declaration and, therefore, is irrelevant for the purposes of assessing the admissibility of the present action. Accordingly, that argument must, on any view, be rejected as ineffective. |
| --- | --- |

93

Lastly, should the applicant seek to argue that the alleged infringement by the Parliament of the right to vote and to stand as a candidate at elections and of the right to good administration, enshrined in Articles 39 and 41 of the Charter, respectively, renders the action against the declaration of 13 January 2020 admissible, it must be stated that the question whether such an infringement exists forms part of the review of the substantive legality of that declaration and, therefore, is irrelevant for the purposes of assessing the admissibility of the present action. Accordingly, that argument must, on any view, be rejected as ineffective.

Argument that the admissibility of the claims for annulment of the declaration of 13 January 2020 is linked to the refusal of Ms Riba i Giner’s request of 20 December 2019

Argument that the admissibility of the claims for annulment of the declaration of 13 January 2020 is linked to the refusal of Ms Riba i Giner’s request of 20 December 2019

| 94 | The applicant submits that the action against the declaration of 13 January 2020 is admissible since it is linked to the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 and therefore produces different effects from those arising from the mere implementation of a legal situation provided for by national law. |
| --- | --- |

94

The applicant submits that the action against the declaration of 13 January 2020 is admissible since it is linked to the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 and therefore produces different effects from those arising from the mere implementation of a legal situation provided for by national law.

| 95 | First of all, as the Parliament rightly points out, the procedures which led to the declaration of 13 January 2020 and the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 are distinct and self-standing. Moreover, those procedures are governed by different provisions: the first by Article 13(3) of the Electoral Act and the second subparagraph of Rule 4(4) of the Rules of Procedure and the second by Rule 8 of those rules. |
| --- | --- |

95

First of all, as the Parliament rightly points out, the procedures which led to the declaration of 13 January 2020 and the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 are distinct and self-standing. Moreover, those procedures are governed by different provisions: the first by Article 13(3) of the Electoral Act and the second subparagraph of Rule 4(4) of the Rules of Procedure and the second by Rule 8 of those rules.

| 96 | Next, it is apparent from paragraphs 56 to 70 above that the vacancy of the applicant’s parliamentary seat, which was notified to the President of the Parliament by the Spanish authorities in accordance with Article 13(3) of the Electoral Act, is the result of the application of Spanish law. |
| --- | --- |

96

Next, it is apparent from paragraphs 56 to 70 above that the vacancy of the applicant’s parliamentary seat, which was notified to the President of the Parliament by the Spanish authorities in accordance with Article 13(3) of the Electoral Act, is the result of the application of Spanish law.

| 97 | Furthermore, it must be borne in mind that a provision of the Rules of Procedure cannot allow derogation from the provisions of the Electoral Act (see paragraph 77 above). Thus, in the present case, the fact that Ms Riba i Giner’s request of 20 December 2019 was submitted to the President of the Parliament under Rule 8 of the Rules of Procedure could not confer on the Parliament or its President competence to prevent the vacancy of the applicant’s parliamentary seat, resulting from the application of Spanish law, from taking effect. |
| --- | --- |

97

Furthermore, it must be borne in mind that a provision of the Rules of Procedure cannot allow derogation from the provisions of the Electoral Act (see paragraph 77 above). Thus, in the present case, the fact that Ms Riba i Giner’s request of 20 December 2019 was submitted to the President of the Parliament under Rule 8 of the Rules of Procedure could not confer on the Parliament or its President competence to prevent the vacancy of the applicant’s parliamentary seat, resulting from the application of Spanish law, from taking effect.

| 98 | Lastly, and in any event, the Parliament is right to maintain that the admissibility of the application for annulment of the declaration of 13 January 2020 cannot depend on the legality of another decision also being challenged in the same action. |
| --- | --- |

98

Lastly, and in any event, the Parliament is right to maintain that the admissibility of the application for annulment of the declaration of 13 January 2020 cannot depend on the legality of another decision also being challenged in the same action.

| 99 | The applicant’s argument must therefore be rejected. |
| --- | --- |

99

The applicant’s argument must therefore be rejected.

| 100 | In the light of all the foregoing considerations, the claims directed against the declaration of 13 January 2020 must be dismissed as inadmissible. |
| --- | --- |

100

In the light of all the foregoing considerations, the claims directed against the declaration of 13 January 2020 must be dismissed as inadmissible.

Admissibility of the claims for annulment of the alleged refusal of Ms Riba i Giner’s request of 20 December 2019

Admissibility of the claims for annulment of the alleged refusal of Ms Riba i Giner’s request of 20 December 2019

| 101 | The Parliament contends that the claims for annulment concerning the refusal of Ms Riba i Giner’s request of 20 December 2019 are inadmissible. In that regard, in essence, it submits that those claims are directed against a non-existent act and, in any event, that the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 did not produce binding legal effects and is therefore not a challengeable act for the purposes of Article 263 TFEU. |
| --- | --- |

101

The Parliament contends that the claims for annulment concerning the refusal of Ms Riba i Giner’s request of 20 December 2019 are inadmissible. In that regard, in essence, it submits that those claims are directed against a non-existent act and, in any event, that the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 did not produce binding legal effects and is therefore not a challengeable act for the purposes of Article 263 TFEU.

| 102 | The applicant argues that the plea of inadmissibility should be rejected in so far as it concerns the claims made against the alleged refusal of Ms Riba i Giner’s request of 20 December 2019. In essence, the applicant claims that that act exists and that it is a challengeable act for the purposes of Article 263 TFEU, since it produced distinct adverse effects on his legal situation. In particular, the applicant states that by refusing Ms Riba i Giner’s request of 20 December 2019, the President of the Parliament refused to recognise his status as Member of the European Parliament and, therefore, prevented him from performing his parliamentary duties and from asserting that status before the Spanish courts. |
| --- | --- |

102

The applicant argues that the plea of inadmissibility should be rejected in so far as it concerns the claims made against the alleged refusal of Ms Riba i Giner’s request of 20 December 2019. In essence, the applicant claims that that act exists and that it is a challengeable act for the purposes of Article 263 TFEU, since it produced distinct adverse effects on his legal situation. In particular, the applicant states that by refusing Ms Riba i Giner’s request of 20 December 2019, the President of the Parliament refused to recognise his status as Member of the European Parliament and, therefore, prevented him from performing his parliamentary duties and from asserting that status before the Spanish courts.

| 103 | In the present case, it is not apparent from the documents before the Court that Ms Riba i Giner’s request of 20 December 2019 was expressly refused by the President of the Parliament. Moreover, the applicant acknowledges that the only reaction of the President of the Parliament to that request was ‘to let time pass and refuse [that] request by means of [the declaration of 13 January 2020]’. |
| --- | --- |

103

In the present case, it is not apparent from the documents before the Court that Ms Riba i Giner’s request of 20 December 2019 was expressly refused by the President of the Parliament. Moreover, the applicant acknowledges that the only reaction of the President of the Parliament to that request was ‘to let time pass and refuse [that] request by means of [the declaration of 13 January 2020]’.

| 104 | Furthermore, it should be noted that as a rule, mere silence on the part of an institution cannot be placed on the same footing as an implied refusal, except where that result is expressly provided for by a provision of EU law. While not excluding that in certain particular circumstances that principle may not be applicable, so that an institution’s silence or inaction may exceptionally be considered to constitute an implied refusal, it must be held that the absence of an explicit reply to Ms Riba i Giner’s request of 20 December 2019 does not constitute an implied decision refusing that request (see, to that effect, judgment of 9 December 2004, Commission v Greencore, C‐123/03 P, EU:C:2004:783, paragraph 45). In the present case, there is no period at the end of which an implied decision would be deemed to have been taken on the basis of Rule 8 of the Rules of Procedure and there are no exceptional circumstances which would support the conclusion that such a decision exists. |
| --- | --- |

104

Furthermore, it should be noted that as a rule, mere silence on the part of an institution cannot be placed on the same footing as an implied refusal, except where that result is expressly provided for by a provision of EU law. While not excluding that in certain particular circumstances that principle may not be applicable, so that an institution’s silence or inaction may exceptionally be considered to constitute an implied refusal, it must be held that the absence of an explicit reply to Ms Riba i Giner’s request of 20 December 2019 does not constitute an implied decision refusing that request (see, to that effect, judgment of 9 December 2004, Commission v Greencore, C‐123/03 P, EU:C:2004:783, paragraph 45). In the present case, there is no period at the end of which an implied decision would be deemed to have been taken on the basis of Rule 8 of the Rules of Procedure and there are no exceptional circumstances which would support the conclusion that such a decision exists.

| 105 | In particular, contrary to what the applicant essentially claims, Ms Riba i Giner’s request of 20 December 2019 was not impliedly refused by the declaration of 13 January 2020, which was adopted on the basis of Article 13(3) of the Electoral Act and the second subparagraph of Rule 4(4) of the Rules of Procedure (see paragraph 95 above) and made no express or implied reference to that request. |
| --- | --- |

105

In particular, contrary to what the applicant essentially claims, Ms Riba i Giner’s request of 20 December 2019 was not impliedly refused by the declaration of 13 January 2020, which was adopted on the basis of Article 13(3) of the Electoral Act and the second subparagraph of Rule 4(4) of the Rules of Procedure (see paragraph 95 above) and made no express or implied reference to that request.

| 106 | It follows that the claims for annulment of the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 must be rejected as inadmissible in so far as they are directed against a non-existent act. |
| --- | --- |

106

It follows that the claims for annulment of the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 must be rejected as inadmissible in so far as they are directed against a non-existent act.

| 107 | For the sake of completeness, even if the declaration of 13 January 2020 could be interpreted as disclosing an implied refusal of Ms Riba i Giner’s request of 20 December 2019, the action against that implied refusal would in any event be inadmissible in so far as it is not directed against a challengeable act for the purposes of Article 263 TFEU. |
| --- | --- |

107

For the sake of completeness, even if the declaration of 13 January 2020 could be interpreted as disclosing an implied refusal of Ms Riba i Giner’s request of 20 December 2019, the action against that implied refusal would in any event be inadmissible in so far as it is not directed against a challengeable act for the purposes of Article 263 TFEU.

| 108 | As a preliminary point, it should be noted that Ms Riba i Giner’s request of 20 December 2019 is not a request for the defence of the privileges and immunities of a Member as provided for in Rules 7 and 9 of the Rules of Procedure (‘request for the defence of immunity’), but a request addressed to the President of the Parliament on the basis of Rule 8 thereof seeking to have him take an initiative as a matter of urgency to assert the immunity enjoyed by the applicant in his capacity as Member of the European Parliament. |
| --- | --- |

108

As a preliminary point, it should be noted that Ms Riba i Giner’s request of 20 December 2019 is not a request for the defence of the privileges and immunities of a Member as provided for in Rules 7 and 9 of the Rules of Procedure (‘request for the defence of immunity’), but a request addressed to the President of the Parliament on the basis of Rule 8 thereof seeking to have him take an initiative as a matter of urgency to assert the immunity enjoyed by the applicant in his capacity as Member of the European Parliament.

| 109 | It is apparent from Rule 8(1) of the Rules of Procedure that the President of the Parliament is to raise of his own motion the question of whether or not to take an initiative to assert the privileges and immunities of a Member who has been arrested or has had his freedom of movement curtailed in apparent breach of his privileges and immunities, since that provision does not allow a Member of the European Parliament to submit a request to that effect to the President of the Parliament. Moreover, under that provision, the President of the Parliament ‘may’ take an initiative as a matter of urgency to assert the immunity of a Member of the European Parliament. |
| --- | --- |

109

It is apparent from Rule 8(1) of the Rules of Procedure that the President of the Parliament is to raise of his own motion the question of whether or not to take an initiative to assert the privileges and immunities of a Member who has been arrested or has had his freedom of movement curtailed in apparent breach of his privileges and immunities, since that provision does not allow a Member of the European Parliament to submit a request to that effect to the President of the Parliament. Moreover, under that provision, the President of the Parliament ‘may’ take an initiative as a matter of urgency to assert the immunity of a Member of the European Parliament.

| 110 | Thus, it follows from the wording of Rule 8(1) of the Rules of Procedure that the President of the Parliament is in no way required to take an initiative to assert the immunity of a Member of the European Parliament and that he has discretion in that regard, even when the Member has been arrested or has had his freedom of movement curtailed in apparent breach of his privileges and immunities. |
| --- | --- |

110

Thus, it follows from the wording of Rule 8(1) of the Rules of Procedure that the President of the Parliament is in no way required to take an initiative to assert the immunity of a Member of the European Parliament and that he has discretion in that regard, even when the Member has been arrested or has had his freedom of movement curtailed in apparent breach of his privileges and immunities.

| 111 | That discretion is borne out by the fact that Members of the European Parliament have no procedural rights in the context of the procedure referred to in Rule 8 of the Rules of Procedure, whereas they expressly enjoy such rights in the context of the procedure governed by Rules 7 and 9 thereof. In that regard, it should be noted that in accordance with Rule 9(1) of the Rules of Procedure, the President of the Parliament is required to examine a request for the defence of immunity addressed to him by a Member or former Member and, therefore, to announce it in Parliament and refer it to the parliamentary committee responsible. Furthermore, under Rule 9(6), the Member of the European Parliament concerned has the right to be heard and to present any documents or other written evidence deemed by him to be relevant. In addition, Rule 9(10) requires the President of the Parliament to communicate Parliament’s decision to him immediately. Lastly, Rule 7(5) of the Rules of Procedure provides that where a decision has been taken not to defend the privileges and immunities of a Member of the European Parliament, the Member concerned may exceptionally make a request for reconsideration of the decision, by submitting new evidence in accordance with Rule 9(1). |
| --- | --- |

111

That discretion is borne out by the fact that Members of the European Parliament have no procedural rights in the context of the procedure referred to in Rule 8 of the Rules of Procedure, whereas they expressly enjoy such rights in the context of the procedure governed by Rules 7 and 9 thereof. In that regard, it should be noted that in accordance with Rule 9(1) of the Rules of Procedure, the President of the Parliament is required to examine a request for the defence of immunity addressed to him by a Member or former Member and, therefore, to announce it in Parliament and refer it to the parliamentary committee responsible. Furthermore, under Rule 9(6), the Member of the European Parliament concerned has the right to be heard and to present any documents or other written evidence deemed by him to be relevant. In addition, Rule 9(10) requires the President of the Parliament to communicate Parliament’s decision to him immediately. Lastly, Rule 7(5) of the Rules of Procedure provides that where a decision has been taken not to defend the privileges and immunities of a Member of the European Parliament, the Member concerned may exceptionally make a request for reconsideration of the decision, by submitting new evidence in accordance with Rule 9(1).

| 112 | Contrary to what the applicant essentially claims, the fact that he enjoys procedural rights under Article 41 of the Charter does not invalidate the finding in paragraph 111 above that Rule 8 of the Rules of Procedure does not confer such rights on Members of the European Parliament. |
| --- | --- |

112

Contrary to what the applicant essentially claims, the fact that he enjoys procedural rights under Article 41 of the Charter does not invalidate the finding in paragraph 111 above that Rule 8 of the Rules of Procedure does not confer such rights on Members of the European Parliament.

| 113 | In the light of the foregoing, it must be held that the discretion conferred on the President of the Parliament by Rule 8 of the Rules of Procedure excludes the right for the applicant to require the President to take an initiative as a matter of urgency to assert his immunity (see, to that effect, order of 24 November 2016, Petraitis v Commission, C‐137/16 P, not published, EU:C:2016:904, paragraph 22 and the case-law cited; judgment of 9 September 2015, SV Capital v EBA, T‐660/14, EU:T:2015:608, paragraphs 47 and 48; and order of 23 January 2019, MLPS v Commission, T‐304/18, not published, EU:T:2019:34, paragraph 16). |
| --- | --- |

113

In the light of the foregoing, it must be held that the discretion conferred on the President of the Parliament by Rule 8 of the Rules of Procedure excludes the right for the applicant to require the President to take an initiative as a matter of urgency to assert his immunity (see, to that effect, order of 24 November 2016, Petraitis v Commission, C‐137/16 P, not published, EU:C:2016:904, paragraph 22 and the case-law cited; judgment of 9 September 2015, SV Capital v EBA, T‐660/14, EU:T:2015:608, paragraphs 47 and 48; and order of 23 January 2019, MLPS v Commission, T‐304/18, not published, EU:T:2019:34, paragraph 16).

| 114 | It follows that the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 cannot be regarded as an act producing binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. In consequence, it does not constitute a challengeable act for the purposes of Article 263 TFEU. |
| --- | --- |

114

It follows that the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 cannot be regarded as an act producing binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. In consequence, it does not constitute a challengeable act for the purposes of Article 263 TFEU.

| 115 | The Court must therefore reject the applicant’s line of argument seeking to demonstrate that the President of the Parliament was under an obligation to take an initiative as a matter of urgency within the meaning of Rule 8 of the Rules of Procedure and, in that context, to take measures vis-à-vis the Spanish authorities. |
| --- | --- |

115

The Court must therefore reject the applicant’s line of argument seeking to demonstrate that the President of the Parliament was under an obligation to take an initiative as a matter of urgency within the meaning of Rule 8 of the Rules of Procedure and, in that context, to take measures vis-à-vis the Spanish authorities.

| 116 | In the first place, it is necessary to reject the applicant’s argument that, in essence, it is apparent from the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), that the President of the Parliament was required to take an initiative within the meaning of Rule 8 of the Rules of Procedure to protect the immunity he enjoys under the second paragraph of Article 9 of Protocol No 7 and that that initiative would have been binding on the national authorities. In that regard, suffice it to note that in the abovementioned judgment, the Court did not interpret or even mention Rule 8 of the Rules of Procedure; it simply drew attention to the obligations on national authorities under, inter alia, Article 9 of Protocol No 7 (see paragraph 26 above). |
| --- | --- |

116

In the first place, it is necessary to reject the applicant’s argument that, in essence, it is apparent from the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), that the President of the Parliament was required to take an initiative within the meaning of Rule 8 of the Rules of Procedure to protect the immunity he enjoys under the second paragraph of Article 9 of Protocol No 7 and that that initiative would have been binding on the national authorities. In that regard, suffice it to note that in the abovementioned judgment, the Court did not interpret or even mention Rule 8 of the Rules of Procedure; it simply drew attention to the obligations on national authorities under, inter alia, Article 9 of Protocol No 7 (see paragraph 26 above).

| 117 | In the second place, it is necessary to reject the applicant’s argument that, in essence, Members of the European Parliament who have been arrested or have had their freedom of movement curtailed in apparent breach of their privileges and immunities are entitled to require the President of the Parliament to take an initiative on the basis of Rule 8 of the Rules of Procedure, since that rule confers an individual right on them to have the Parliament act in defence of the immunities they enjoy under Articles 8 and 9 of Protocol No 7. |
| --- | --- |

117

In the second place, it is necessary to reject the applicant’s argument that, in essence, Members of the European Parliament who have been arrested or have had their freedom of movement curtailed in apparent breach of their privileges and immunities are entitled to require the President of the Parliament to take an initiative on the basis of Rule 8 of the Rules of Procedure, since that rule confers an individual right on them to have the Parliament act in defence of the immunities they enjoy under Articles 8 and 9 of Protocol No 7.

| 118 | In that regard, it is sufficient to point out that it is Articles 8 and 9 of Protocol No 7 which establish individual rights for Members of the European Parliament and not the provisions of the Rules of Procedure (see, to that effect, judgments of 15 October 2008, Mote v Parliament, T‐345/05, EU:T:2008:440, paragraph 28, and of 17 January 2013, Gollnisch v Parliament, T‐346/11 and T‐347/11, EU:T:2013:23, paragraph 58). |
| --- | --- |

118

In that regard, it is sufficient to point out that it is Articles 8 and 9 of Protocol No 7 which establish individual rights for Members of the European Parliament and not the provisions of the Rules of Procedure (see, to that effect, judgments of 15 October 2008, Mote v Parliament, T‐345/05, EU:T:2008:440, paragraph 28, and of 17 January 2013, Gollnisch v Parliament, T‐346/11 and T‐347/11, EU:T:2013:23, paragraph 58).

| 119 | The Court must also reject as ineffective the applicant’s claim that the immunities referred to in Articles 8 and 9 of Protocol No 7 form part of the right to vote and to stand as a candidate at elections enshrined in Article 39 of the Charter, infringement of which may be invoked against the President of the Parliament in accordance with Article 51 of the Charter and observance of which must be enforced by the Court in accordance with the right to effective judicial protection referred to in Article 47 thereof. That claim concerns the substantive legality of the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 and is not relevant for the purposes of determining whether the present action is admissible. |
| --- | --- |

119

The Court must also reject as ineffective the applicant’s claim that the immunities referred to in Articles 8 and 9 of Protocol No 7 form part of the right to vote and to stand as a candidate at elections enshrined in Article 39 of the Charter, infringement of which may be invoked against the President of the Parliament in accordance with Article 51 of the Charter and observance of which must be enforced by the Court in accordance with the right to effective judicial protection referred to in Article 47 thereof. That claim concerns the substantive legality of the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 and is not relevant for the purposes of determining whether the present action is admissible.

| 120 | In the third place, it is necessary to reject the applicant’s argument that an initiative of the President of the Parliament taken on the basis of Rule 8 of the Rules of Procedure has the effect of requiring the Spanish authorities to acknowledge their obligation to respect the immunities granted to Members of the European Parliament and the integrity of Parliament and to comply with EU law, specifically the principle of sincere cooperation. |
| --- | --- |

120

In the third place, it is necessary to reject the applicant’s argument that an initiative of the President of the Parliament taken on the basis of Rule 8 of the Rules of Procedure has the effect of requiring the Spanish authorities to acknowledge their obligation to respect the immunities granted to Members of the European Parliament and the integrity of Parliament and to comply with EU law, specifically the principle of sincere cooperation.

| 121 | First of all, the obligation on the Spanish authorities to respect the immunities enjoyed by Members of the European Parliament under Articles 8 and 9 of Protocol No 7 flows directly from the acquisition of the status of Member of the European Parliament (see, to that effect, judgment of 19 December 2019, Junqueras Vies, C‐502/19, EU:C:2019:1115, paragraph 81), not from an initiative which the President of the Parliament may decide to take on the basis of Rule 8 of the Rules of Procedure. |
| --- | --- |

121

First of all, the obligation on the Spanish authorities to respect the immunities enjoyed by Members of the European Parliament under Articles 8 and 9 of Protocol No 7 flows directly from the acquisition of the status of Member of the European Parliament (see, to that effect, judgment of 19 December 2019, Junqueras Vies, C‐502/19, EU:C:2019:1115, paragraph 81), not from an initiative which the President of the Parliament may decide to take on the basis of Rule 8 of the Rules of Procedure.

| 122 | Next, Rule 8 of the Rules of Procedure uses the word ‘initiative’ rather than ‘decision’, which is used in Rule 9 governing the procedure initiated following a request for the defence of immunity or a request for the waiver of immunity. Thus, the express wording of Rule 8 of the Rules of Procedure shows that any initiative taken as a matter of urgency by the President of the Parliament vis-à-vis the national authorities to whom it is addressed is not binding. |
| --- | --- |

122

Next, Rule 8 of the Rules of Procedure uses the word ‘initiative’ rather than ‘decision’, which is used in Rule 9 governing the procedure initiated following a request for the defence of immunity or a request for the waiver of immunity. Thus, the express wording of Rule 8 of the Rules of Procedure shows that any initiative taken as a matter of urgency by the President of the Parliament vis-à-vis the national authorities to whom it is addressed is not binding.

| 123 | In that regard, in response to a question put by the Court, the Parliament stated that various types of action could be taken by the President on the basis of Rule 8 of the Rules of Procedure, such as sending a letter in which the President draws the national authorities’ attention to the situation of the Member concerned or making a telephone call to that effect. |
| --- | --- |

123

In that regard, in response to a question put by the Court, the Parliament stated that various types of action could be taken by the President on the basis of Rule 8 of the Rules of Procedure, such as sending a letter in which the President draws the national authorities’ attention to the situation of the Member concerned or making a telephone call to that effect.

| 124 | Lastly, if the President of the Parliament decides to take such an initiative, there are no provisions in Protocol No 7, the Electoral Act or the Rules of Procedure requiring the national authorities to act on that initiative, bearing in mind, in that regard, that it is in any event precluded that such an obligation could be placed on the Member States solely on the basis of Rule 8 of the Rules of Procedure (see, to that effect, judgment of 17 January 2013, Gollnisch v Parliament, T‐346/11 and T‐347/11, EU:T:2013:23, paragraph 137). |
| --- | --- |

124

Lastly, if the President of the Parliament decides to take such an initiative, there are no provisions in Protocol No 7, the Electoral Act or the Rules of Procedure requiring the national authorities to act on that initiative, bearing in mind, in that regard, that it is in any event precluded that such an obligation could be placed on the Member States solely on the basis of Rule 8 of the Rules of Procedure (see, to that effect, judgment of 17 January 2013, Gollnisch v Parliament, T‐346/11 and T‐347/11, EU:T:2013:23, paragraph 137).

| 125 | It follows that the initiatives which the President of the Parliament may take on the basis of Rule 8 of the Rules of Procedure are merely opinions which are not binding on the national authorities to which they are addressed (see the case-law cited in paragraph 50 above). |
| --- | --- |

125

It follows that the initiatives which the President of the Parliament may take on the basis of Rule 8 of the Rules of Procedure are merely opinions which are not binding on the national authorities to which they are addressed (see the case-law cited in paragraph 50 above).

| 126 | In the light of the foregoing, it is also necessary to reject the applicant’s argument that, in essence, it follows from the judgment of 17 January 2013, Gollnisch v Parliament (T‐346/11 and T‐347/11, EU:T:2013:23), that in the absence of a request for waiver of the immunity of a Member of the European Parliament, the national authorities are bound by an initiative of the President of the Parliament taken on the basis of Rule 8 of the Rules of Procedure, since that initiative seeks to protect the immunity referred to in Article 9 of Protocol No 7. |
| --- | --- |

126

In the light of the foregoing, it is also necessary to reject the applicant’s argument that, in essence, it follows from the judgment of 17 January 2013, Gollnisch v Parliament (T‐346/11 and T‐347/11, EU:T:2013:23), that in the absence of a request for waiver of the immunity of a Member of the European Parliament, the national authorities are bound by an initiative of the President of the Parliament taken on the basis of Rule 8 of the Rules of Procedure, since that initiative seeks to protect the immunity referred to in Article 9 of Protocol No 7.

| 127 | In any event, the judgment of 17 January 2013, Gollnisch v Parliament (T‐346/11 and T‐347/11, EU:T:2013:23), is not relevant here. The case which gave rise to that judgment concerned a request for the defence of immunity addressed to the Parliament on the basis of Rule 9 of the Rules of Procedure, not a request to have the President of the Parliament take an initiative as a matter of urgency under Rule 8. Furthermore, in the abovementioned judgment, the Court held only that a request for the defence of immunity is devoid of purpose where a request for the waiver of immunity has been submitted (judgment of 17 January 2013, Gollnisch v Parliament, T‐346/11 and T‐347/11, EU:T:2013:23, paragraph 57). |
| --- | --- |

127

In any event, the judgment of 17 January 2013, Gollnisch v Parliament (T‐346/11 and T‐347/11, EU:T:2013:23), is not relevant here. The case which gave rise to that judgment concerned a request for the defence of immunity addressed to the Parliament on the basis of Rule 9 of the Rules of Procedure, not a request to have the President of the Parliament take an initiative as a matter of urgency under Rule 8. Furthermore, in the abovementioned judgment, the Court held only that a request for the defence of immunity is devoid of purpose where a request for the waiver of immunity has been submitted (judgment of 17 January 2013, Gollnisch v Parliament, T‐346/11 and T‐347/11, EU:T:2013:23, paragraph 57).

| 128 | In the fourth place, in the light of the reasons set out in paragraphs 109 to 125 above, it is necessary to reject the applicant’s argument that, in essence, Rule 3(6), Rule 22, Rule 149 and Rule 236(1) of the Rules of Procedure and Article 51 of the Charter impose on the President of the Parliament the obligation to recognise and protect all the rights deriving from his status as Member of the European Parliament vis-à-vis the Parliament, so that an initiative within the meaning of Rule 8 of the Rules of Procedure would produce binding legal effects. |
| --- | --- |

128

In the fourth place, in the light of the reasons set out in paragraphs 109 to 125 above, it is necessary to reject the applicant’s argument that, in essence, Rule 3(6), Rule 22, Rule 149 and Rule 236(1) of the Rules of Procedure and Article 51 of the Charter impose on the President of the Parliament the obligation to recognise and protect all the rights deriving from his status as Member of the European Parliament vis-à-vis the Parliament, so that an initiative within the meaning of Rule 8 of the Rules of Procedure would produce binding legal effects.

| 129 | Moreover, it should be noted that Rule 3(6), Rule 22, Rule 149 and Rule 236(1) of the Rules of Procedure do not contain provisions intended to safeguard the privileges and immunities enjoyed by Members of the European Parliament under Articles 8 and 9 of Protocol No 7. |
| --- | --- |

129

Moreover, it should be noted that Rule 3(6), Rule 22, Rule 149 and Rule 236(1) of the Rules of Procedure do not contain provisions intended to safeguard the privileges and immunities enjoyed by Members of the European Parliament under Articles 8 and 9 of Protocol No 7.

| 130 | In addition, Article 51 of the Charter, which requires the institutions, bodies, offices and agencies of the Union to respect the rights guaranteed by the Charter, in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties, cannot confer binding legal effect on initiatives taken by the President of the Parliament on the basis of Rule 8 of the Rules of Procedure, when those initiatives have neither the object nor the effect of creating obligations for the Member States (see paragraphs 121 to 125 above). |
| --- | --- |

130

In addition, Article 51 of the Charter, which requires the institutions, bodies, offices and agencies of the Union to respect the rights guaranteed by the Charter, in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties, cannot confer binding legal effect on initiatives taken by the President of the Parliament on the basis of Rule 8 of the Rules of Procedure, when those initiatives have neither the object nor the effect of creating obligations for the Member States (see paragraphs 121 to 125 above).

| 131 | In the fifth place, the applicant submits that since the Court held in its judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), that the content of the immunity provided for in the second paragraph of Article 9 of Protocol No 7 was determined solely in the light of EU law, the action against the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 is admissible, in essence, in accordance with the judgment of 15 October 2008, Mote v Parliament (T‐345/05, EU:T:2008:440). |
| --- | --- |

131

In the fifth place, the applicant submits that since the Court held in its judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), that the content of the immunity provided for in the second paragraph of Article 9 of Protocol No 7 was determined solely in the light of EU law, the action against the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 is admissible, in essence, in accordance with the judgment of 15 October 2008, Mote v Parliament (T‐345/05, EU:T:2008:440).

| 132 | The case which gave rise to the judgment of 15 October 2008, Mote v Parliament (T‐345/05, EU:T:2008:440), concerned a decision of the Parliament to waive the immunity of a Member of the European Parliament, which produces binding legal effects inasmuch as it automatically deprives the Member concerned of his immunity and, therefore, permits the national authorities to bring or continue judicial proceedings against him (judgment of 15 October 2008, Mote vParliament, T‐345/05, EU:T:2008:440, paragraphs 29 and 30). That decision therefore differs from an initiative within the meaning of Rule 8 of the Rules of Procedure, which has no direct effect on national legal proceedings against a Member of the European Parliament. |
| --- | --- |

132

The case which gave rise to the judgment of 15 October 2008, Mote v Parliament (T‐345/05, EU:T:2008:440), concerned a decision of the Parliament to waive the immunity of a Member of the European Parliament, which produces binding legal effects inasmuch as it automatically deprives the Member concerned of his immunity and, therefore, permits the national authorities to bring or continue judicial proceedings against him (judgment of 15 October 2008, Mote vParliament, T‐345/05, EU:T:2008:440, paragraphs 29 and 30). That decision therefore differs from an initiative within the meaning of Rule 8 of the Rules of Procedure, which has no direct effect on national legal proceedings against a Member of the European Parliament.

| 133 | It should also be recalled that in paragraph 91 of the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), the Court ruled that in accordance with the third paragraph of Article 9 of Protocol No 7, if the competent national court takes the view that a measure of provisional detention should be maintained against a person who has acquired the status of Member of the European Parliament, it should as soon as possible request the Parliament to waive the immunity granted by the second paragraph of that article (see paragraph 26 above). |
| --- | --- |

133

It should also be recalled that in paragraph 91 of the judgment of 19 December 2019, Junqueras Vies (C‐502/19, EU:C:2019:1115), the Court ruled that in accordance with the third paragraph of Article 9 of Protocol No 7, if the competent national court takes the view that a measure of provisional detention should be maintained against a person who has acquired the status of Member of the European Parliament, it should as soon as possible request the Parliament to waive the immunity granted by the second paragraph of that article (see paragraph 26 above).

| 134 | Thus, if the President of the Parliament were to take an initiative to assert the immunity of a Member of the European Parliament, that initiative would not relieve the national authorities of their obligation to request the Parliament to waive the immunity of the Member concerned, which flows directly from the third paragraph of Article 9 of Protocol No 7 (see paragraph 26 above). |
| --- | --- |

134

Thus, if the President of the Parliament were to take an initiative to assert the immunity of a Member of the European Parliament, that initiative would not relieve the national authorities of their obligation to request the Parliament to waive the immunity of the Member concerned, which flows directly from the third paragraph of Article 9 of Protocol No 7 (see paragraph 26 above).

| 135 | The applicant’s argument must therefore be rejected. |
| --- | --- |

135

The applicant’s argument must therefore be rejected.

| 136 | In the sixth place, it is necessary to reject as ineffective the applicant’s argument that, in the present case, the President of the Parliament did not decide whether or not to take an initiative within the meaning of Rule 8 of the Rules of Procedure, but merely declared that he was not competent in that regard because the applicant did not have the status of Member of the European Parliament, thereby refusing to recognise him as such. That argument seeks to challenge the grounds on which the President of the Parliament allegedly refused Ms Riba i Giner’s request of 20 December 2019 and, therefore, has no effect on the admissibility of the action brought against that alleged refusal. |
| --- | --- |

136

In the sixth place, it is necessary to reject as ineffective the applicant’s argument that, in the present case, the President of the Parliament did not decide whether or not to take an initiative within the meaning of Rule 8 of the Rules of Procedure, but merely declared that he was not competent in that regard because the applicant did not have the status of Member of the European Parliament, thereby refusing to recognise him as such. That argument seeks to challenge the grounds on which the President of the Parliament allegedly refused Ms Riba i Giner’s request of 20 December 2019 and, therefore, has no effect on the admissibility of the action brought against that alleged refusal.

| 137 | In the light of all the foregoing, it must be held that had the President of the Parliament refused the request of 20 December 2019, that act would not have produced binding legal effects capable of affecting the applicant’s interests by bringing about a distinct change in his legal position. Consequently, it would not constitute an act in respect of which an action for annulment may be brought under Article 263 TFEU. |
| --- | --- |

137

In the light of all the foregoing, it must be held that had the President of the Parliament refused the request of 20 December 2019, that act would not have produced binding legal effects capable of affecting the applicant’s interests by bringing about a distinct change in his legal position. Consequently, it would not constitute an act in respect of which an action for annulment may be brought under Article 263 TFEU.

| 138 | It follows that the plea of inadmissibility raised by the Parliament must be upheld and, therefore, the action must be dismissed as inadmissible, without going to the substance of the case and without there being any need to rule on the application for the adoption of measures of organisation of procedure submitted by the applicant (see paragraph 40 above). |
| --- | --- |

138

It follows that the plea of inadmissibility raised by the Parliament must be upheld and, therefore, the action must be dismissed as inadmissible, without going to the substance of the case and without there being any need to rule on the application for the adoption of measures of organisation of procedure submitted by the applicant (see paragraph 40 above).

The Kingdom of Spain’s application to intervene

The Kingdom of Spain’s application to intervene

| 139 | Under Article 142(2) of the Rules of Procedure of the General Court, the intervention becomes devoid of purpose if the action is declared inadmissible. Pursuant to Article 144(3) of those rules, where the defendant lodges a plea of inadmissibility or of lack of competence, as provided in Article 130(1) thereof, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved. |
| --- | --- |

139

Under Article 142(2) of the Rules of Procedure of the General Court, the intervention becomes devoid of purpose if the action is declared inadmissible. Pursuant to Article 144(3) of those rules, where the defendant lodges a plea of inadmissibility or of lack of competence, as provided in Article 130(1) thereof, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved.

| 140 | In the present case, since the action has been dismissed as inadmissible in its entirety, there is no need to rule on the Kingdom of Spain’s application to intervene. |
| --- | --- |

140

In the present case, since the action has been dismissed as inadmissible in its entirety, there is no need to rule on the Kingdom of Spain’s application to intervene.

Costs

Costs

| 141 | Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. |
| --- | --- |

141

Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

| 142 | Since the applicant has been unsuccessful, he must be ordered, in accordance with the form of order sought by the Parliament, to bear his own costs and to pay those incurred by the Parliament before the General Court in the present case and in Case T‐24/20 R. |
| --- | --- |

142

Since the applicant has been unsuccessful, he must be ordered, in accordance with the form of order sought by the Parliament, to bear his own costs and to pay those incurred by the Parliament before the General Court in the present case and in Case T‐24/20 R.

| 143 | Lastly, pursuant to Article 144(10) of the Rules of Procedure of the General Court, the Kingdom of Spain must bear its own costs relating to its application to intervene. |
| --- | --- |

143

Lastly, pursuant to Article 144(10) of the Rules of Procedure of the General Court, the Kingdom of Spain must bear its own costs relating to its application to intervene.

| | On those grounds,
  THE GENERAL COURT (Sixth Chamber)
  hereby orders: |
| --- | --- |

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby orders:

| | 1. | The action is dismissed as inadmissible. |
| --- | --- | --- |

1.

1.

The action is dismissed as inadmissible.

The action is dismissed as inadmissible.

| | 2. | There is no longer any need to adjudicate on the Kingdom of Spain’s application to intervene. |
| --- | --- | --- |

2.

2.

There is no longer any need to adjudicate on the Kingdom of Spain’s application to intervene.

There is no longer any need to adjudicate on the Kingdom of Spain’s application to intervene.

| | 3. | Mr Oriol Junqueras i Vies is ordered to pay the costs, including those incurred in Case T‐24/20 R. |
| --- | --- | --- |

3.

3.

Mr Oriol Junqueras i Vies is ordered to pay the costs, including those incurred in Case T‐24/20 R.

Mr Oriol Junqueras i Vies is ordered to pay the costs, including those incurred in Case T‐24/20 R.

| | 4. | The Kingdom of Spain is to bear the costs relating to its application to intervene. |
| --- | --- | --- |

4.

4.

The Kingdom of Spain is to bear the costs relating to its application to intervene.

The Kingdom of Spain is to bear the costs relating to its application to intervene.

| | Luxembourg, 15 December 2020.


  E. Coulon
  Registrar


  A. Marcoulli
  President |
| --- | --- |

Luxembourg, 15 December 2020.

E. Coulon

Registrar

A. Marcoulli

President

Table of contents

| | Legal context |
| --- | --- |
| | Protocol No 7 on the privileges and immunities of the European Union |
| | Electoral Act |
| | Rules of Procedure of the Parliament (2019 to 2024) |
| | Background to the dispute |
| | Procedure and forms of order sought by the parties |
| | Law |
| | Admissibility of the claims for annulment of the declaration of 13 January 2020 |
| | Argument relating to the applicability of Rule 4(7) of the Rules of Procedure in the event of withdrawal of the mandate of a Member of the European Parliament |
| | Argument that the admissibility of the action should be assessed in the light of the Charter of Fundamental Rights of the European Union |
| | Argument that the admissibility of the claims for annulment of the declaration of 13 January 2020 is linked to the refusal of Ms Riba i Giner’s request of 20 December 2019 |
| | Admissibility of the claims for annulment of the alleged refusal of Ms Riba i Giner’s request of 20 December 2019 |
| | The Kingdom of Spain’s application to intervene |
| | Costs |

Legal context

Protocol No 7 on the privileges and immunities of the European Union

Electoral Act

Rules of Procedure of the Parliament (2019 to 2024)

Background to the dispute

Procedure and forms of order sought by the parties

Law

Admissibility of the claims for annulment of the declaration of 13 January 2020

Argument relating to the applicability of Rule 4(7) of the Rules of Procedure in the event of withdrawal of the mandate of a Member of the European Parliament

Argument that the admissibility of the action should be assessed in the light of the Charter of Fundamental Rights of the European Union

Argument that the admissibility of the claims for annulment of the declaration of 13 January 2020 is linked to the refusal of Ms Riba i Giner’s request of 20 December 2019

Admissibility of the claims for annulment of the alleged refusal of Ms Riba i Giner’s request of 20 December 2019

The Kingdom of Spain’s application to intervene

Costs

---

(
  *1
  )	Language of the case: Spanish.

*1