Opinion of the Advocate General — ECLI:EU:C:2019:958
Date: 2019-11-12
Language of the case: Spanish
Subject matter: Privileges and immunities
Procedure: Reference for a preliminary ruling
Origin: Spain

summary, which does not amount to a declaration by this 
Chamber that the indictments have been proved, those indictments state that Oriol 
Junqueras, in his capacity as Vice-President of the Autonomous Government of 
Catalonia, took part in the execution of a secessionist process in which, leaving 
aside other events, the crucial moment was the adoption of Law of the Catalan 
Parliament 20/2017 of 8 September on legal transition and founding the Republic. 
That legislation, consisting of 89 articles and three final provisions, contained 
unilateral declarations marking a break with the existing constitutional system. It 
was framed as the supreme law of the Catalan legal system, until such time as the 
constitution of the new Republic was approved. It declared that Catalonia is 
established as a democratic, social Republic governed by the rule of law, in which 
sovereignty lies with the people of Catalonia and with Aran and the people of 
Aran, from whom all the powers of State emanate. For the purposes of exercising 
its full sovereignty, the territory of Catalonia was stated to consist of the land, 
including the subsoil, corresponding to its pre-existing geographical and 
administrative limits, the territorial sea, including its seabed and subsoil, and the 
airspace above the land and the territorial sea of Catalonia. It declared that the 
constitutional monarchy was abolished, making the president of the republic the 
Catalan head of State who would be responsible for representation of the republic 
at the highest level. The Tribunal Superior de Justicia de Cataluña (High Court of 
Justice of Catalonia) was to become the Tribunal Supremo de Cataluña (Supreme 
Court of Catalonia), the highest court in all areas of law which would be at the top 
of the [OR 4] Catalan court system. It established a self-governance model for the 
judiciary based on coordinated action with the executive and allowed judges who 
had been in office during the three years preceding the entry into force of the law 
to retain their positions. However, judges who had been in office in Catalonia for 
less than three years were stripped of their constitutional guarantee of security of 
tenure by a reference in the Law to a right of integration which sitting judges 
would have to apply for under a procedure to be laid down in the future. 
The Parliament, on a proposal from the Government of Catalonia, having heard 
the view of the Governing Council of the Supreme Court, was to be responsible 
for the appointment of the Attorney General of Catalonia. 
The Law amended the body of rules governing the nationality of persons resident 
in Catalonia, redefined the territorial boundaries of the new State, and governed 
the succession of the Catalan State to proprietorship of all the assets and rights of 
the Spanish State in Catalonia. It also laid down rules for the integration of staff of 
the public administrative authorities who had until then been employed by the 
central and autonomous authorities, subject in all cases to the adjustments deemed 
essential to the existence of the new State. The Government of Catalonia was to 
become the tax authority, required to set, collect and administer all taxes and 
revenue governed by public law and the Law made that government body the 
customs authority for the territory of Catalonia. 
MINISTERIO FISCAL AND OTHERS. 
 
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In pursuit of the same objective, Law 19/2017 of 6 September, governing the so-
called referendum on self-determination, was published in the Diario Oficial de la 
Generalitat, No7449A, of 6 September 2017. 
Pursuant to those and other legislative provisions — the application of all of 
which was suspended by a number of decisions of the Tribunal Constitucional 
(Constitutional Court) — Catalan citizens were called on to vote in a referendum 
which was held on 1 October 2017. The question on the [OR 5] ballot papers for 
the referendum was the following: ‘Do you want Catalonia to be an independent 
State in the form of a republic?’. In accordance with the law governing the 
referendum, its result would be binding and, if the count of validly cast votes 
resulted in more positive than negative votes then, by operation of law, this would 
lead to the independence of Catalonia, which was required to be followed by a 
formal declaration of the Parlament (Catalan Parliament), setting out its effects 
and commencing the constituent process. 
According to data published by the Autonomous Catalan Government, the result 
of the referendum was that, of a total of 5 500 000 persons eligible to vote, the 
total number of voters came to 2 286 217 persons. The count recorded 2 044 058 
votes for YES, a figure which represented 37% of the electorate and just over one 
quarter (27%) of the total population of Catalonia at that time. 
The referendum was dominated by a mass mobilisation of citizens. Incidents 
occurred which resulted in injuries to individuals and law enforcement officers 
who were attempting to enforce the express legal prohibition on the holding of the 
referendum. 
Prior to that, on 20 September 2017, there were demonstrations by thousands of 
person wishing to block the searches and arrests which had been ordered by the 
judicial authorities. 
The indictments also allege that Mr Junqueras committed an offence of 
misappropriation through the allocation of public funds to the holding of that 
illegal ballot. 
SECOND.- During the pre-trial investigation stage, it was decided, by order of 
2 November 2017, that Oriol Junqueras Vies should be remanded in custody 
pending trial, where he remains. That situation has been reviewed in [seven] 
decisions […] [OR 6] […]. 
THIRD.- Since being remanded in custody, Oriol Junqueras Vies was elected to 
the Catalan Parliament in elections held on 21 December 2017. After he took his 
seat, the investigating judge ruled that he was disqualified from discharging the 
duty to take part in debates and votes in plenary sessions of the Catalan Parliament 
and gave the committee of the parliament responsibility for determining — as it 
considered appropriate and provided that there was no administrative reason 
preventing this — the procedure for delegating his votes to another member of 
parliament for as long as he was provisionally detained. 
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3.1- While the trial was underway, Oriol Junqueras Vies stood as a candidate in 
the general elections to the Congress of Deputies, which were called by Royal 
Decree 129/2019 of 4 March and held on 28 April 2019. He was elected as a 
member of the Congress of Deputies. 
3.2.- By order of 14 May 2019, this court held that there was no reason to seek 
authorisation by way of a request to the Congress of Deputies because the hearing 
was already underway. At the same time, this court ordered the release from 
prison of Oriol Junqueras Vies so that he could attend the constitutive sitting of 
the Congress of Deputies and discharge in person […] [other formalities] essential 
to the taking of his seat. 
3.3.- After Mr Junqueras acquired the status of member of the Congress of 
Deputies, following compliance with the relevant legal formalities, he was 
suspended from office by decision of the Committee of the Congress of Deputies 
of 24 May 2019, in accordance with Article 384a of the Law on Criminal 
Procedure (Ley de Enjuiciamiento Criminal). That provision stipulates: 
[OR 7] 
‘Where an indictment has become final and a temporary custody order has been 
made in respect of an offence committed by a person who is a member of or who 
is linked to an armed group or individuals who are terrorists or insurgents, a 
defendant who is in public office will automatically be suspended from holding 
that office for as long as he remains in custody.’ 
3.4.- Also while the trial was underway, Oriol Junqueras Vies stood as a candidate 
in the elections to the European Parliament, which were called by Royal Decree 
206/2019 of 1 April. 
The elections were held on 26 May 2019 and he was elected, as declared by 
decision of the Central Electoral Board of 13 June 2019. 
At its meeting on 20 June 2019, in relation to case-file number 561/73, the Central 
Electoral Board adopted decision No 518/2019. In that decision, it notified the 
European Parliament that Oriol Junqueras had not acquired the status of Member 
of the European Parliament because he had not sworn or pledged to abide by the 
Constitution and that, therefore, nor had he acquired the privileges to which he 
might be entitled; this situation would continue until such time as he took that oath 
or pledge. 
That decision is open to appeal in contentious electoral proceedings. […][Subject-
matter of possible appeal]. The ECtHR has held that those electoral proceedings 
comply with the right to an effective remedy laid down in Article 13 of the ECHR 
(see Etxebarría and Others v. Spain, 30 June 2009, §§ 78 to 82, and Herritarren 
Zerenda v. Spain, 30 June 2009, § 52). 
MINISTERIO FISCAL AND OTHERS. 
 
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FOURTH.- By order of 14 June 2019, this court refused to grant a special licence 
for release from prison to attend the Central Electoral Board to swear or pledge to 
abide by the Constitution, as provided for in Articles 108(8) and 224(2) of the 
Organic Law on [OR 8] the General Electoral System (Ley Orgánica del Régimen 
Electoral General). An appeal against that refusal was lodged by Mr Junqueras’ 
legal representative. 
It is for the purposes of the proper adjudication of that appeal that the assistance of 
the Court of Justice is sought in relation to interpretation, as requested by the 
appellant. 
The legal representative of Oriol Junqueras relies on the rights and privileges laid 
down in Article 9 of the Protocol (No 7) on the privileges and immunities of the 
European Union. The appeal against the order of 14 May 2019, refusing to grant 
Mr Junqueras a special licence to leave prison to swear or pledge to abide by the 
Spanish Constitution and thereby consolidate his position as an elected MEP, is 
based on that provision 
FIFTH.- The Chamber decided to seek the views of the parties who brought the 
public (the Ministerio Fiscal (Public Prosecutor’s Office)), private (the Abogado 
del Estado (Counsel for the State), made possible by the ownership of the public 
funds alleged to have been misappropriated) and people’s (the political party Vox, 
authorised by Article 125 of the Spanish Constitution) prosecutions. 
Mr Junqueras’ defence counsel was also asked for submissions on whether it was 
appropriate to make a reference for a preliminary ruling seeking the interpretation 
of the subject-matter and scope of that EU provision. 
In response to that request, Mr Junqueras’ representative reiterated the arguments 
already put forward in the appeal, requesting the grant of a licence for release 
from prison. 
The Ministerio Fiscal, in written submissions dated 27 June 2019, argued that 
neither the interpretation of the EU provision in question nor the judgments and 
legal opinions to which it referred in its written submissions raised any 
uncertainties making it advisable to make a reference for a preliminary ruling, in 
accordance with the doctrine of acte clair. The Ministerio Fiscal submitted that 
the outcome is the same whatever criteria for interpretation are applicable to the 
case: the defendant, Mr [OR 9] Junqueras, is not protected by parliamentary 
immunity against the legal proceedings against him. In addition to certain 
legislation and case-law of the Court of Justice, the Ministerio Fiscal cites in 
support of its argument report SJ-0214/19 by the European Parliament’s legal 
expert, Mr Drexler, of 15 April 2019. 
The Abogado del Estado and the party bringing the people’s prosecution also 
objected to the reference for a preliminary ruling on the grounds that the refusal of 
a special licence for release from prison was compatible with the legislation and 
that there was no need for an interpretation in preliminary-ruling proceedings. 
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LAW 
FIRST.- Clarification of the issue in relation to which the reference has 
arisen. 
The matter to be resolved in the proceedings in which the reference for a 
preliminary ruling has arisen concerns the grant or refusal of a special prison 
licence to a person who is accused of serious offences and who is in preventive 
detention owing to the risk that he might abscond. The detained person was 
elected to the European Parliament in elections which took place several months 
after he was remanded in custody. The purpose of the special licence would be to 
enable him to swear or pledge to abide by the Spanish Constitution, a statutory 
requirement laid down so that the central electoral body — the Central Electoral 
Board — can include the person elected on the list it sends to the European 
Parliament and which makes it possible for the person to take their seat. 
The primary objective of the criminal proceedings, which were commenced in late 
2017, is to adjudicate on acts classified as offences of rebellion (alternatively, 
sedition), misappropriation and civil disobedience. All the sittings in the trial have 
now ended, all the evidence has been submitted, all the parties’ oral arguments 
have been heard and all the defendants have exercised the right to have the last 
word. The trial lasted four months and 52 [OR 10] sittings were held. 
Accordingly, only judgment is pending in the case, which, on account of its 
complexity, will require a number of months to draft. 
The subject-matter of the reference for a preliminary ruling has arisen in the part 
of the case relating to deprivation of liberty. It has been dealt with separately in 
the proceedings but has at all times been dependent on the main action. 
The decision to be adopted, with the assistance of the reference made, concerns a 
separate issue in the part of the case relating to personal circumstances. It relates 
to the grant of a specific special licence for release from prison. Therefore, it does 
not affect the subject-matter of this court’s ruling in relation to the indictments 
filed. This will follow its course separately from any reflex or indirect effects 
which acts resulting from the grant or refusal of the licence may create. Nor does 
it have a bearing on the conditions under which Mr Junqueras was remanded in 
custody pending trial, which this court is certain is appropriate. Therefore, the 
decision says nothing about the guilt of the prisoner as a criterion for its adoption. 
Furthermore, no specific EU provision exists, since not even Directive (EU) 
2016/343 of the European Parliament and of the Council of 9 March 2016 on the 
strengthening of certain aspects of the presumption of innocence and of the right 
to be present at the trial in criminal proceedings lays down the conditions under 
which decisions ordering preventive detention may be adopted (see judgment of 
19 September 2018, Milev, C-310/18 PPU, EU:C:2018:732). 
SECOND.- Procedural context. 
MINISTERIO FISCAL AND OTHERS. 
 
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2.1.- To flesh out the information provided, it is helpful to add a number of 
considerations regarding the context of the proceedings in which this reference for 
a preliminary ruling is made, which has an indirect effect on a potential balancing 
exercise [OR 11] relating to the compatibility of the aims of the administration of 
justice with the protection of the functioning of Parliament. 
The offences in the indictment, which has now been definitively drawn up, are 
particularly serious. Those offences criminalise actions which seek, either directly 
and primarily, or in a more indirect way, owing to their connection to the 
infringement of public order, to alter or abolish the constitutional system. Under 
the Spanish criminal system, these are offences of rebellion and sedition. The 
indictments also include the offence of misappropriation of public funds, resulting 
from the improper management of monies allocated to the holding of the illegal 
ballot. 
In that connection, it should also be noted that when examining the 
constitutionally legitimate aims justifying the provisional measure of pre-trial 
detention, the Chamber considered the risk of absconding and the resulting risk of 
avoiding any summons to appear in court. That balancing exercise also took into 
account the severity of the penalties and the materialisation of the risk derived 
from the fact that a number of co-defendants have avoided making themselves 
available to this court, with the assistance and political support of the power 
structures of the autonomous government. In addition to that, the accused has 
repeatedly and publicly stressed his distrust in this court’s ability to guarantee a 
fair trial. That assertion makes perfectly clear that Mr Junqueras has absolutely no 
wish to remain at the disposal of this Chamber. 
2.2.- As regards that defendant, Opinion 6/2019 of the United Nations Working 
Group on Arbitrary Detentions (WGAD) concluded that the detention of 
Mr Junqueras is arbitrary. That opinion proceeds on the basis (paragraph 110) that 
it is lawful to hold a referendum in Spain ‘... on a wide range of subjects, 
including that related to the present case’, adding that the holding of a referendum 
is a legitimate expression ‘… of the exercise of freedom of opinion and 
expression’. [OR 12] 
However, that line of reasoning disregards the incontrovertible fact that the 
referendum held on 1 October 2017 was expressly prohibited by the Tribunal 
Constitucional (Constitutional Court) and by decision of the Tribunal Superior de 
Justicia de Cataluña (High Court of Justice of Catalonia). Therefore, it was not a 
legal referendum. It had been expressly prohibited by the courts and could never 
be viewed as a genuine expression of the freedoms of opinion and expression. 
In relation to that referendum, the recent judgment of the ECtHR of 7 May 2019 
(application No 75147/27), Case of María Carme Forcadell and Others v. Spain, 
in which Mr Junqueras Vies was one of the applicants, found that the suspension 
ordered by the Tribunal Constitucional (Constitutional Court) of a plenary session 
of the autonomous parliament to evaluate the results of that referendum was not 
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contrary to Articles 10 and 11 of the Convention or to Article 3 of Protocol No 1. 
The judgment of the ECtHR cites, inter alia, Opinion CDL-AD (2017) 003 of the 
Venice Commission. That Opinion states: ‘The Venice Commission recalls that 
judgments of Constitutional Courts have a final and binding character. As a 
corollary of the supremacy of the Constitution, judgments of Constitutional Courts 
have to be respected by all public bodies and individuals. Disregarding a 
judgment of a Constitutional Court is equivalent to disregarding the Constitution 
and the Constituent Power, which attributed the competence to ensure this 
supremacy to the Constitutional Court. When a public official refuses to execute a 
judgment of the Constitutional Court, he or she violates the principles the rule of 
law, the separation of powers and loyal cooperation of state organs. Measures to 
enforce these judgments are therefore legitimate. In the light of the absence of 
common European standards, this opinion examines to which extent the 
Amendment introduced to Organic Law no. 2/1979 on the Constitutional Court of 
Spain is an appropriate means to achieve this legitimate objective.’ 
2.3.- In addition, the fact that, under the EU arrest and surrender procedure, such 
offences are not exempt from the condition relating to [OR 13] double criminality 
has a bearing on the assessment of the risk of absconding. Although all criminal 
codes include offences which criminalise actions aimed at altering or abolishing 
the constitutional system or a significant part of that system, there are 
considerable differences between the legal provisions which punish such conduct. 
These are typically framed in a way which reflects the historical reasons of each 
State and their effect on the codification of criminal law. Foreign wars and 
domestic unrest marked over the years a historical process of development which 
led in each State to a specific focus on some of the concepts of treason, disloyalty, 
conspiracy and, in legal terms, rebellion or sedition, and the associated disregard 
of others. None of this simplifies the analysis of the offences. Wide-ranging 
idiosyncrasies and the fact that the defendants exercise political responsibilities 
add further difficulties. The immediate effect is the erosive impact on the pillars 
on which the principle of mutual trust rests. That is the only way in which it is 
possible to understand the outcome of the European arrest warrant and surrender 
procedures which were dealt with during the investigation stage. The refusal to 
execute those warrants was based on arguments that are difficult to understand. 
2.3.1. - In one instance, refusal to execute the warrant was based on the Bob-Dogi 
case-law (judgment of 1 June 2016, C-245/15, C:2016:385). However, the judicial 
authorities of the requested State did not complain that there was no prior decision 
ordering detention but rather held that one of the contents of the indictment did 
not have that nature, thereby altering the legislative definition which defines 
national arrest warrant as something other than the ‘enforceable judgment’ which 
orders it. 
2.3.2. - The second European arrest warrant was refused on the grounds of the 
absence of double criminality. In deciding on that refusal, the judicial authorities 
of the requested Member State adopted a decision in which the arguments 
exhaustively compared the components of the criminal offence and their effects 
MINISTERIO FISCAL AND OTHERS. 
 
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on the assessment of the legal classification. The decision also included 
assessments of evidence in relation to acts which were being investigated in 
proceedings characterised by their complexity and scope. The fact that the 
proceedings include documents [OR 14] the totality of which can be measured in 
cubic metres is a testament to their extraordinary and unusual scale. The digital 
version of the case-file occupies a repository of more than one terabyte. None of 
that prevented the requested authorities from reaching a view on whether there 
was intent on the part of the perpetrator and whether the perpetrator had a 
dominant position in the carrying out of the offence. 
That constituted a lamentable disregard for the nature of the European arrest 
warrant as an instrument of judicial cooperation within the Union. It amounted to 
a failure to take into account the final part of Article 4(2) of Council Framework 
Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the 
surrender procedures between Member States and the case-law laid down in the 
judgment of 11 January 2017, Grundza, C-289/15, EU:C:2017:4 and in the order 
(under Article 99 of the Rules of Procedure) of 25 September 2015 in A, C-463-
15, EU:C:2015:634. 
2.3.3. - In the present case, this court took a number of factors into account when 
ruling on the convergence of the deprivation of Mr Junqueras’ liberty and his right 
to political participation. 
At the outset, no obstacle arose when it came to resolving that difficulty in 
relation to Mr Junqueras’ position as a member of the national parliament. The 
accused consolidated his status as an elected member of the Spanish legislative 
body as a result of the court’s authorisation in the form of a special licence to 
leave prison to attend the Congress of Deputies. Where the grant of a special 
licence could entail the presence of Mr Junqueras at the constitutive sitting of the 
European Parliament, the resolution of that difficult convergence is another 
matter. 
In this case, this court decided that the trial had ended after four months of 
intensive submission of evidence. The prosecution and the defence presented oral 
argument in support of their respective positions. The case is now ‘reserved for 
judgment’. In fact, the deliberations are in their initial stage. This point of the 
proceedings places this court [OR 15] in a privileged, unprecedented position to 
assess the increased prima facie case which has been the basis for the preventive 
measures ordered by the investigating judge and upheld by the Appeal Chamber. 
The criminal proceedings are, therefore, in their final stage, at the point of 
deliberation regarding the factual and legal material which will determine their 
outcome. 
The aims of the proceedings would be irreversibly jeopardised if Mr Junqueras 
were to travel outside the borders of Spain. It would mean, at the outset, a loss of 
jurisdictional control over the preventive measure applicable to him from the very 
moment he left Spanish territory. 
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This decision of the Chamber is simply the result of a balancing exercise in search 
of a solution which will resolve in a harmonious fashion the convergence of the 
rights and limitations imposed by Mr Junqueras’ procedural position. From that 
perspective, the approach now taken does not entail the irreversible loss of the 
applicant’s right of participation. It merely involves a temporary suspension of 
that right until such time as, depending on the possible outcome of the 
proceedings, the obstacles preventing him from acquiring the status of a member 
of parliament cease to exist. The Chamber finds that neither Organic Law 5/1985 
on the General Electoral System nor the Rules of Procedure of the European 
Parliament associate with the inability to collect credentials and to attend the 
constitutive sitting the effect of extinguishing entitlement to the right. 
Article 224(2) of Organic Law 5/1985 provides that ‘within five days of their 
declaration, elected candidates must swear or pledge to abide by the Constitution 
before the Central Electoral Board. Once that period has elapsed, the Central 
Electoral Board shall declare vacant the seats corresponding to Members of 
Parliament who have not sworn or pledged to abide by the Constitution and shall 
withdraw all the privileges to which they may be entitled by reason of their office 
until such time as that oath or pledge takes place.’ Accordingly, the Electoral 
Board cannot associate with the inability to swear or pledge to abide by the 
Constitution the irreversible effect of losing the right inherent in election. It must 
confine itself to a [OR 16] declaration that the seat remains vacant until such time 
as the conditions which trigger the acquisition of the right and the immunity 
enjoyed by members of the European Parliament have been fulfilled. 
The clarity of that view is strengthened by a reading of Rule 3(1) of the Rules of 
Procedure of the European Parliament, which states: ‘Following elections to the 
European 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.’ As can be seen, seats do 
not absolutely have to be taken in the first sitting but with effect from the first 
sitting. Therefore, a hiatus is created which does not impair the acquisition of the 
right but rather postpones the genuine and effective recognition of that right. 
This court’s interpretation is the result of its wish not to sacrifice any of the 
interests and rights which come together in the issue raised, in such a way that the 
temporal limitation of Mr Junqueras’ right of participation, which, clearly, is 
subject to the prompt resolution of the special petition […], is regarded as a 
necessary limitation for the purposes of preserving another constitutionally 
legitimate aim of a democratic society. The need to guarantee the aims of the 
criminal proceedings, the existence of which would be irreversibly damaged if the 
Chamber were to give Mr Junqueras permission to travel outside the borders of 
Spain, made it necessary to refuse the request made. The lack of understanding of 
the European arrest warrants issued as an instrument of judicial cooperation in the 
fight against particularly serious offences and the broad support of social 
organisations and the autonomous government of which Mr Junqueras was a 
member also contributed to that refusal. 
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To put it another way, this court has not found a viable alternative to provisional 
detention as a means of guaranteeing the aims of the proceedings. The risk of 
absconding — a legitimate basis for the restriction of liberty, pursuant to the 
Organic [OR 17] Law which amended Article 503 of the Law on Criminal 
Procedure (Ley de Enjuiciamiento Criminal; ‘LECrim’) ― has led this court to 
conclude that the accused’s circumstances are incompatible with the grant of a 
licence to leave prison which derogates from the restriction of freedom of 
movement ordered. Furthermore, this court finds that that sacrifice is to be 
regarded as proportionate because the restriction affecting the exercise of the right 
of participation in a public office is temporary. Ultimately, this is a restriction of 
the freedom of movement which is inherent in the situation of detention and, 
indeed, precludes the accused from exercising other fundamental rights such as, 
for example, attending any demonstrations or meetings. 
Article 503 LECrim provides: 
‘1. A temporary custody order may be made only when the following conditions 
are satisfied: 
1. There is evidence in the case of the existence of one or more acts with the 
features of an offence punishable by a maximum sentence of equal to or more than 
two years’ imprisonment or a custodial sentence of a lesser term where the person 
under investigation or defendant has a criminal record, as a result of a conviction 
for an intentional criminal offence, which has not been cancelled or cannot be 
cancelled. 
If a number of offences are alleged, the special rules for the application of 
penalties shall apply, in accordance with Book I, Title III, Chapter II, Section 2 of 
the Criminal Code (Código Penal). 
2. There are sufficient grounds in the case for believing that the person against 
whom the custody order is to be made is criminally responsible for the offence. 
3. Temporary custody is ordered in pursuit of one of the following aims: 
(a) Ensuring that the person under investigation or defendant will attend the 
proceedings where it is rational to infer that there is a risk of absconding. 
For the purposes of assessing whether that risk exists, regard shall be had jointly 
to the nature of the offence, the severity of the sentence which may be imposed on 
the person under investigation or defendant, the latter’s family, employment and 
financial circumstances, and the imminence of the trial, in particular in cases 
where it is appropriate to instigate the fast-track prosecution procedure laid down 
in Book IV, Title III of this law. [OR 18] An order to remand the person under 
investigation in custody may be made on that ground where, in the light of the 
facts resulting from the investigations, at least two summonses and search 
warrants have been issued in respect of that person by any court over the previous 
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two years. In such instances, the sentencing limit laid down in point 1 of this 
paragraph shall not be applicable. 
(b) Preventing the concealment, alteration or destruction of sources of evidence 
relevant to the prosecution in cases where there is a well-founded and 
specific risk. 
A temporary custody order shall not be made on this ground where there is an 
attempt to infer that risk solely from the exercise of the right of defence or the 
failure of the person under investigation or defendant to cooperate during the 
investigation. 
To assess whether such a risk exists, regard shall be had to the ability of the 
person under investigation or defendant to gain access himself or through third 
parties to the sources of evidence or to influence other persons under 
investigation, defendants, witnesses, experts or anyone who might be such a 
person. 
(c) Preventing the person under investigation or defendant from acting against 
the victim’s legal interests, particularly where the victim is one of the 
persons referred to in Article 173(2) of the Criminal Code. In such 
instances, the sentencing limit laid down in point 1 of this paragraph shall 
not be applicable. 
2. A temporary custody order may also be made, where the conditions laid 
down in points 1 and 2 of the previous paragraph are satisfied, in order to avoid 
the risk that the person under investigation or defendant may commit further 
criminal acts. 
To assess whether such a risk exists, regard shall be had to the factual 
circumstances and to the gravity of the offences which may be committed. 
A temporary custody order may be made on this ground only where the alleged 
criminal offence is intentional. However, the limit laid down in point 1 of the 
previous paragraph shall not apply where it can rationally be inferred from the 
background of the person under investigation or defendant and other information 
or facts which are furnished by the Policía Judicial (Criminal Investigation 
Police) or which result from the proceedings that the person under investigation 
or defendant has been acting jointly with one or more other persons in an 
organised manner to commit offences or is a habitual offender.’ 
THIRD.- EU and national legislation 
[OR 19] 
3.1.- Article 9 (ex Article 10) of the Protocol (No 7) on the privileges and 
immunities of the European Union provides: 
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‘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. 
Immunity shall likewise apply to Members while they are travelling to and from 
the place of meeting of the European Parliament.’ 
3.2.- The immunities granted to members of the Spanish Parliament all relate 
exclusively to stages of the proceedings prior to the commencement of the trial. At 
the end of the intermediate stage of the proceeding and once the trial has 
commenced, no immunity applies to national members of parliament. 
That is stipulated by Article 71 of the Spanish Constitution: 
‘1. Deputies and senators shall enjoy absolute privilege in respect of opinions 
expressed in the performance of their duties. 
2. During their term of office, deputies and senators shall also have immunity 
and may only be arrested if they are found in the act of committing an offence. 
They cannot be charged or prosecuted without the prior authorisation of the 
relevant legislative chamber. 
3. The Criminal Division of the Tribunal Supremo (Supreme Court) shall have 
jurisdiction in cases against deputies and senators. 
4. Deputies and senators shall receive an allowance to be set by the respective 
legislative chambers.’ 
In addition, there is lower-ranking legislation: 
[OR 20] 
(i) Articles 750 to 756 of the Law on Criminal Procedure (Book IV, Title I). 
‘Article 750 LECrim 
A court which finds that there grounds for prosecuting a senator or deputy in the 
Spanish Parliament for an offence shall refrain from bringing proceedings 
against that person if the Parliament is in session until it obtains the relevant 
authorisation from the legislative chamber of which the person in question is a 
member. 
Article 751 LECrim 
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Where a senator or deputy in the Spanish Parliament is found in the act of 
committing an offence, he or she may be arrested and prosecuted without the 
authorisation referred to in the previous article; however, the relevant legislative 
chamber must be notified of this within 24 hours of the arrest or prosecution. 
The legislative chamber concerned must also be notified of any case pending 
against a person who, while being prosecuted, is elected a senator or deputy in 
the Spanish Parliament. 
Article 752 LECrim 
If a senator or deputy in the Spanish Parliament is prosecuted during a period 
between parliamentary sessions, the court trying the case must immediately bring 
this to the attention of the legislative chamber concerned. 
The above shall also apply where a person who has been elected a senator or 
deputy in the Spanish Parliament is prosecuted before Parliament meets. 
Article 753 LECrim 
At all events, the judicial officer shall stay proceedings from the date on which 
Parliament is informed, whether or not it is in session, and matters shall remain 
as they stand at that time until the relevant legislative chamber adopts the 
decision it considers appropriate. 
Article 754 LECrim 
[OR 21] 
Should the Senate or the Congress refuse to grant the authorisation requested, the 
proceedings shall be stayed in respect of the senator or deputy but the case shall 
continue against the other defendants. 
Article 755 LECrim 
The authorisation shall be sought in the form of a request which is to be 
accompanied by a notarised document, to be treated as confidential, setting out 
the charges against the senator or deputy, including the opinions of the public 
prosecutor and the particular complaints in which the authorisation has been 
sought . 
Article 756 LECrim 
The request shall be sent through the Minister for Justice. 
(ii) Articles 5 to 9 of the Law of 9 February 1912 declaring the courts which are 
to try cases against senators and deputies. 
Article 5. 
MINISTERIO FISCAL AND OTHERS. 
 
15 
Only the Tribunal Supremo (Supreme Court), or, where appropriate, the Supreme 
War and Naval Council, are entitled to request from the Senate or the Council 
authorisation to prosecute a senator or deputy. 
For that purpose, a request shall be sent to the relevant legislative chamber, 
accompanied by a notarised document setting out the proceedings considered to 
be necessary and the opinion of the prosecutor, if there is one. 
The Tribunal Supremo (Supreme Court) or the Supreme War and Naval Council, 
as the case may be, shall decide, in accordance with the law, on the appropriate 
steps in relation to the detention of senators and deputies who have been found in 
the act of committing an offence and against whom proceedings have been 
commenced. 
Article 6. 
Until such time as the Senate or Congress adopts a decision on the authorisation 
requested, proceedings in the case shall be stayed, with the exception of 
proceedings for the amendment of any rulings and procedural decisions which 
previously ordered detention, custody or prosecution. [OR 22] 
The stay of proceedings shall apply only to those proceedings against the senator 
or deputy to whom the authorisation requested relates. 
Article 7. 
If the Senate or the Congress refuses to authorise prosecution, the decision shall 
be notified to the requesting court which shall dismiss the case against the senator 
or deputy. If authorisation is granted, the proceedings shall continue until final 
judgment, even in the event of dissolution, before judgment is given, of the 
parliament of which the senator or deputy to whom the request relates is a 
member. 
Article 8. 
Where the Senate or the Congress has refused the admission as a senator or 
deputy of the person to whom the request relates, the president of the legislative 
chamber shall notify this to the Supreme Court or the Supreme War and Naval 
Council so that the latter may remit the case to the court with jurisdiction, in 
accordance with the law, and the proceedings shall continue to be dealt with as 
appropriate. 
Article 9. 
Any procedural decisions or rulings on detention, arrest, custody or prosecution 
given against a senator or deputy by the Tribunal Supremo (Supreme Court) or 
Supreme War and Naval Council, exercising the jurisdiction conferred on them 
hereunder and subject to the rules laid down herein, and any which may amend or 
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revoke such procedural decisions and rulings, shall be notified to the legislative 
chamber of which the person concerned is a member.’ 
(iii) Article 11 of the Rules of Procedure of the Congress of Deputies 
(Reglamento del Congreso de los Diputados). 
‘During their term of office, deputies shall also have immunity and may be 
detained only if found in the act of committing an offence. They may not be 
charged or prosecuted without the prior authorisation of the Congress.’ 
(iv) Article 22(1), second subparagraph, of the Rules of Procedure of the Senate 
(Reglamento del Senado). 
‘Senators may not be charged or prosecuted without the prior authorisation of the 
Senate, which must be sought by means of the applicable request. Such 
authorisation shall [OR 23] also be necessary in proceedings brought against 
persons who take up the post of senator after having been prosecuted or charged.’ 
That was the ruling of this court in the order of 14 May 2019, 
ECLI:ES:TS:2019:5051A, continuing a settled line of case-law which states that 
there is no immunity and it is therefore not necessary to seek the lifting of 
immunity after the prosecution stage has passed, as occurs where an appeal on a 
point of law is pending in the proceedings (judgment of the Second Chamber of 
the Tribunal Supremo (Supreme Court) 1952/2000 of 19 December 
ECLI:ES:TS:2000:9367, law reports 2103/2000) or at the execution stage 
(judgment of the Second Chamber of the Tribunal Supremo (Supreme Court) 
54/2008 of 8 April, ECLI:ES:TS:2008:687, law reports 408/2007)). 
3.3.- The Court of Justice, in its judgment of 6 December 2011, Patriciello, 
C-163/10, EU:C:2011:543, paragraph 25, held that the parliamentary immunity 
provided by subparagraph (a) of the first paragraph of Article 9 of the Protocol 
depends on national law. 
FOURTH.- Justification for the reference for a preliminary ruling. 
4.1.- In order to decide whether to grant or refuse a prison licence for the 
defendant — a newly elected MEP — who is in preventive detention, it is 
essential to ascertain the scope of the effectiveness of the privileges referred to in 
Article 9 of Protocol No 7, and, more specifically, the privilege provided for in the 
second paragraph of Article 9: ‘Immunity shall likewise apply to Members while 
they are travelling to and from the place of meeting of the European Parliament.’ 
The matter to be determined is when parliamentary status is consolidated, a 
decision which will affect the operative part of the ruling to be given by this court 
on the special prison licence. 
The temporal scope of that provision, in addition to its subjective and objective 
content, still remains to be clarified, even though the provision has been examined 
by the Court of Justice on a number of occasions. [OR 24] 
MINISTERIO FISCAL AND OTHERS. 
 
17 
4.2.- The Court of Justice previously stated that it has jurisdiction to rule in 
preliminary-ruling proceedings on the scope of Article 9 of the Protocol on 
Privileges and Immunities, at that time of each of the three existing Communities. 
The Court declared as much in its judgment of 12 May 1964 in Case 101/63, 
Wagner (EU:C:1964:28). It also held that any request for withdrawal of 
parliamentary immunity made to the European Assembly did not deprive the 
Court of jurisdiction to decide on the question put to it. 
That jurisdiction was reiterated in the judgment of the Court of Justice of 10 July 
1986 in Case 149/85, Wybot (EU:C:1986:310). On that occasion, the Court held 
that the phrase ‘during the sessions of the Assembly’ in Article 9 (ex Article 10), 
relating to the temporal scope of immunity, referred expressly to the concept of a 
session of the European Parliament. The Court also pointed out that ‘[i]t follows 
that to refer to national law in order to interpret that concept would be 
incompatible not only with the wording of the Protocol but also with the very 
objective of that provision, which is intended to ensure immunity for the same 
period for all members of the European Parliament, whatever their nationality.’ 
The Court concluded that the duration of sessions of the European Parliament can 
be determined only in the light of Community law. 
That judgment also explained that the stipulation in the provision that Members of 
the European Parliament are also entitled to immunity 'while they are travelling to 
and from the place of meeting of the Assembly’ cannot be relied on in order to 
challenge an interpretation of the word ‘session’. Having regard to the practice of 
the European Parliament, that word ensures that all the objectives of that 
paragraph are achieved, albeit by means of another provision. And it stated as an 
example that ‘that paragraph is not without utility, for instance in the event that 
the European Parliament were to close its annual session early.’ [OR 25] 
Therefore, following those judgments, any reference to national legislation for the 
purpose of interpreting the concept of ‘session’ is incompatible with the wording 
and the purpose of the Protocol. 
However, it does not resolve situations prior to the commencement of a session or 
whether it is applicable (which in any event is not provided for) to newly elected 
MEPs. 
4.3.- Legal opinion is divided. However, where the broad application of 
parliamentary immunity to newly elected MEPs is invoked, it is usual merely to 
cite the Donnez report (more properly, opinion), drawn up on behalf of the 
Committee on Legal Affairs and Citizens’ Rights, on the draft protocol revising 
the Protocol on the Privileges and Immunities of the European Communities of 
8 April 1965 in respect of Members of the European Parliament (doe. C 2-
31/85 — COM(84) 666 final) (doc. A 2-121/86) of 31 January 1986. That report 
simply states that the concept of the duration of sessions should be interpreted as 
meaning that immunity takes effect from the declaration of election and ceases at 
the end of the member’s term of office. 
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However, that interpretation was not drawn from the wording of the legislative 
proposal. On the contrary, the literal interpretation of the existing legislation 
authorises a limited temporal criterion. Article 3 of the Rules of Procedure of the 
Parliament provides for seats to be taken ‘with effect from the opening of the first 
sitting following the elections.’ Article 4 stipulates that the term of office begins in 
accordance with Article 5 of the Act concerning the election of the members of 
the European Parliament by direct universal suffrage, while the five-year term for 
which members of the European Parliament are elected begins at the opening of 
the first session following each election (Article 146(2)). That provision states that 
Parliament is to meet, without requiring to be convened, on the first Tuesday after 
expiry of an interval of one month from the end of the period referred to in 
Article 10(1) of the Act of 20 September [OR 26] 1976 (Sunday on which the 
election period fixed for the European Parliament ends). 
In addition to the literal criterion, that conclusion can also be drawn from a 
purposive interpretation. The provisions of the Protocol are intended to ensure the 
protection of the European Parliament as an EU institution in which the protection 
of its members considered individually is functional and the activity of the 
Parliament does not begin until the time of its constitutive session. 
Those criteria are also reiterated in the report drawn up on 20 June 2003 by the 
rapporteur of the Committee on Legal Affairs and the Internal Market of the 
European Parliament (Mr Zimeray), on the request for defence of the immunity 
and privileges of Francesco Musotto (A5-0248/2003). The author of that report 
suggested that there was a deficit in the protection of members of parliament, to 
the extent that he proposed an amendment to the Act concerning the election of 
the members of the European Parliament. However, the legal vacuum which, in 
his view, justified the amendment did not exist. From the perspective of the 
protection under Article 9 ― although the matter referred to a case under Article 8 
of the Protocol, on opinions expressed ― no amendment was required. The acts 
attributed to Mr Musotto had not been carried out when the MEP was elected but 
rather when his mandate had been verified by the European Parliament on 
13 December 1999 (cf. European Parliament Decision on the verification of 
credentials following the fifth direct elections to the European Parliament, 
Minutes of the Sitting of 13 December 1999). At that time it was common ground 
that the Protocol grant privileges to MEPs who have taken their seats and confers 
immunity on them, including in respect of proceedings which might be pending. 
At all events, the situation described in that request for the defence of immunity 
put forward by Mr Musotto was completely different from the situation which 
justifies the present reference for a preliminary ruling. [OR 27] It concerned an 
offence relating to the holding of an opinion — an offence which goes to the very 
heart of parliamentary immunity — which the Italian judicial authorities alleged 
had been committed by an MEP who was already regarded as such by the 
European Parliament. The case now before this court concerns an accusation 
relating to a particularly serious offence made against an MEP whom the Central 
Electoral Board has not included in the list of elected MEPs who were able to 
MINISTERIO FISCAL AND OTHERS. 
 
19 
complete the formality of swearing or pledging to abide by the Spanish 
Constitution. 
4.4.- Also lending support to that limitation is the allocation of the different roles 
in the electoral process to the national electoral bodies and the European 
Parliament, in which, although there is clear continuity, there is a functional split 
between the different institutions involved in the electoral process. 
Under the national electoral legislation, Organic Law 5/1985 of 19 June on the 
General Electoral System provides that the Central Electoral Board is responsible 
for counting the votes at national level, allocating the seat corresponding to each 
of the candidates and declaring the elected representatives. Likewise, it provides 
that the seats corresponding to any Members of the European Parliament who 
have not sworn or pledged to abide by the Constitution are to be declared vacant, 
with the withdrawal of all the privileges to which they may be entitled by reason 
of their office until such time as that oath or pledge takes place. 
Article 224 of Organic Law 5/1985 of 19 June on the General Electoral System 
provides: 
‘1. The Central Electoral Board shall, at the latest by the twentieth day following 
the elections, count the votes at national level, allocate the seat corresponding to 
each of the candidates, and declare the elected representatives. 
2. Within five days of their declaration, the elected candidates shall swear or 
pledge to abide by the Constitution before the Central Electoral Board. Once that 
period has elapsed, the Central Electoral Board shall declare vacant the seats 
corresponding to Members of the European Parliament who have not sworn or 
pledged to abide by the Constitution and shall withdraw [OR 28] all the 
privileges to which they may be entitled by reason of their office until such time as 
that oath or pledge takes place. 
3. Likewise, the Central Electoral Board shall have responsibility for performing 
any other general scrutiny procedures not provided for in the previous article.’ 
The case-law of the Court of Justice supports the strict, temporal interpretation of 
Articles 8 and 9 of the Protocol, based on the interpretation of Article 6 of the Act 
which provides that MEPs are to vote on an individual and personal basis and 
enjoy the privileges and immunities laid down in what is now Protocol No 7. The 
judgment of 30 April 2009, Italy and Donnici v European Parliament, C-393/07 
and C-9/08, EU:C:2009:275, paragraph 44, reasons as follows: ‘the Parliament 
cannot be recognised as having a general power to assess the lawfulness of the 
Member States’ electoral procedures in the light of all the principles allegedly 
underlying Article 6 of the 1976 Act, such as inferred by the Parliament in 
particular from Article 3 of the First Additional Protocol to the European 
Convention for the Protection of Human Rights and Fundamental Freedoms, by 
means of a broad interpretation of Article 6 in the light of those principles’. 
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Moreover, that view was set out in the Order of the President of the Court of 
Justice of 13 January 2009 in C-512/07 P(R) and C-15/08 P(R), EU:C:2009:3, at 
paragraph 43: ‘Article 6 cannot on its own constitute a general power of the 
Parliament to assess the legality of the electoral procedures of the Member States 
in the light of all of those principles and of the ECHR.’ Paragraph 41 of that order 
states more explicitly that Article 6 mentions MEPs’ right to vote ‘which cannot, 
by nature, be associated with the candidate status officially declared in the post-
electoral list.’ 
Article 8 of the Act states that, subject to the provisions of the Act, ‘the electoral 
procedure shall be governed in each Member State by its [OR 29] national 
provisions’, and then goes on to lay down a single limitation on those national 
provisions, to the effect that they must not affect the essentially proportional 
nature of the voting system. By the same token, the current version of Rule 3(3) of 
the existing Rules of Procedure of the Parliament provides that the Parliament is 
to 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 Act of 20 September 1976, other than those which, under that 
Act, fall exclusively under the national provisions to which that Act refers. 
Therefore, the judgment of 7 July 2005, Le Pen v European Parliament, 
C-208/03 P, EU:C:2005:429, paragraph 51, held that the Parliament completely 
lacks competence where a seat falls vacant pursuant to national provisions. 
Therefore, until the time when the lists of newly elected members who have 
complied with Spanish legislation are sent, the national rules of procedure apply, 
unless there is an express provision in the Act, and it is the national bodies which 
apply those rules. That also excludes the application of Article 9 of the Protocol to 
newly elected members. That approach is consistent with the time when that 
article is applicable by the Parliament, which is when members have already taken 
their seats or have at least been included on the list sent by the national electoral 
bodies as candidates who have completed the formalities required to acquire the 
status of Members of the European Parliament. 
4.5. — That approach, the exceptional nature of which cannot be discounted, 
means that detentions ex novo and criminal proceedings relating to a candidate 
who has already been declared an elected representative would not be covered by 
immunity. That possibility is all the more unsettling if fumus persecutionis can be 
identified in one form or another. However, the converse solution is not without 
difficulties that are contrary to the very meaning of parliamentary immunity, 
which must in all cases be regarded as a functional privilege. The fact is that the 
view [OR 30] that immunity is triggered from the time of declaration as an elected 
representative in the Boletín Oficial del Estado would enable the inclusion in the 
electoral lists — which are closed lists — of a person who has been remanded in 
custody solely in order to avoid the responsibility required by the administration 
of justice, particularly where the fact that the person is in pre-trial custody would 
necessitate the immediate and automatic lifting of a preventive measure and the 
MINISTERIO FISCAL AND OTHERS. 
 
21 
resulting high risk of thwarting a constitutionally legitimate aim, associated with 
the outcome of the proceedings. 
The case-law of the European Court of Human Rights interpreting Article 3 of 
Protocol No 1 to the European Convention on Human Rights ― headed ‘Right to 
free elections, which has a logical connection with Article 39 of the Charter of 
Fundamental Rights of the European Union ― recalls that the rights guaranteed 
under Article 3 of Protocol No 1 are crucial to establishing and maintaining the 
foundations of an effective and meaningful democracy governed by the rule of 
law. However, it also makes clear that these rights are not absolute, that there is 
room for ‘implied limitations’, and that Contracting States must be given a margin 
of appreciation in this sphere. The ECtHR categorises that margin of appreciation 
as wide (see Ždanoka v. Latvia (GC), 16 March 2006, § 103; Mathieu-Mohin and 
Clerfayt v. Belgium, 2 March 1987, § 52; Matthews v. United Kingdom [GC] § 63; 
Labita v. Italy [GC], § 201; and Podkolzina v. Latvia § 33), provided that it does 
not curtail the rights concerned to such an extent as to impair their very essence 
and deprive them of effectiveness, that it pursues a legitimate aim, and that the 
means employed are not disproportionate. As regards the passive aspect of that 
right — the right to be elected — the ECtHR essentially confines itself to a check 
on the absence of arbitrariness in the domestic procedures leading to 
disqualification of an individual from standing as a candidate (see Melnitchenko v. 
Ukraine, 19 October 2004, § 57; Ždanoka, § 115; and Etxeberria and others v. 
Spain, 30 June 2009, § 50). 
In the latter judgment, the ECtHR stated that the political situation in Spain, where 
it is well known that independence-supporting political parties are members of the 
governments of certain autonomous [OR 31] communities, in particular in the 
Basque Country, demonstrated that the disputed measure did not reflect an 
intention to prohibit any expression of separatist views (see § 55). 
The fact that the autonomous Catalan government continues to defend, with 
complete freedom, ideological positions involving a breach of the constitutional 
order, is a very clear indication that the Spanish system neither criminalises nor 
prosecutes secessionist views. Furthermore, members of the autonomous 
government, headed by its president and the president of the Catalan parliament, 
were present throughout the trial and were granted special status according to 
protocol in the courtroom. 
The need to guarantee the aims of criminal proceedings in relation to particularly 
serious offences, owing to the severity of the punishments provided for and the 
constitutional rights whose infringement is alleged by the prosecuting parties, is 
what has led this court to weigh up the interests at issue: the deprivation of free 
movement by means of a preventive measure — based on the risk of absconding, 
a statutory ground — as against the suspension of the rights of electoral 
representation of the person in custody, suspension of the right enshrined in 
Article 39 of the Charter of Fundamental Rights of the European Union which is 
envisaged to last for only a moderate period of time and which, notwithstanding 
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22  
its connection to the privileges and immunities laid down for Members of the 
European Parliament in Protocol No 7, is not a decision-making norm either. 
At all events, the issue is not whether the balancing exercise in relation to the 
content of the rights laid down in the Charter must be borne in mind; instead, it 
continues to be, as a result of the specific point in time prior to the commencement 
of the parliamentary session, and in relation to an elected member of the 
Parliament, which institution is responsible for assessing the interests concerned 
and which legislation is applicable. 
4.6.- In accordance with the foregoing considerations, set out in line with the 
invitation in the recommendations of the Court of Justice in relation to [OR 32] 
preliminary rulings, the answer which may be given to the reference for a 
preliminary ruling is that the immunity provided for in Article 9 of Protocol No 7 
does not take effect until the member takes his seat, while his status as newly 
elected is not sufficient. 
Nevertheless, the need for this reference for a preliminary ruling is obvious 
because no express rulings exist regarding the temporal (application to the period 
prior to the parliamentary session), subjective (application to newly elected 
members) and objective (application of the term ‘while they are travelling’) scope 
of Article 9. It is not possible to deduce from the wording of that EU provision, 
from the provisions to which it refers, or from the existing case-law thereon a 
single interpretation which is perfectly obvious not only to the court hearing the 
case but also to the other Member States. 
That is the case a fortiori where the criminal proceedings in which the reference 
for a preliminary ruling has arisen are before this Chamber for Criminal 
Proceedings of the Tribunal Supremo (Supreme Court), whose decisions are not 
open to any appeal under national law. Accordingly, this court is obliged to seek a 
preliminary ruling from the Court of Justice in accordance with the third 
paragraph of Article 267 of the Treaty on the Functioning of the European Union. 
FIFTH.- Questions to be referred 
Consequently, the questions referred for a preliminary ruling concern, first, the 
temporal and subjective scope of the privileges laid down for Members of the 
European Parliament in Protocol No 7. It is necessary to ascertain whether the 
privileges laid down therein apply, in accordance with the wording of the 
Protocol, only to ‘Members of the European Parliament’ and ‘[d]uring the 
sessions of the European Parliament’ or whether their personal and temporal 
effect is extended in relation to those who have been declared elected 
representatives but who have not yet fulfilled the mandatory conditions laid down 
in national law and, therefore, apply before the opening of the first session, which 
[OR 33] marks the commencement of the five-year term for which Members of 
the European Parliament are elected. 
MINISTERIO FISCAL AND OTHERS. 
 
23 
If it is found that those privileges do not apply before the commencement of the 
parliamentary session, or that they do not apply to newly elected members, no 
further interpretation will be needed in order to adjudicate on the licence sought. 
However, if the answer is in the affirmative and acknowledges that such an 
extended effect exists from the time when the person concerned is declared an 
elected representative, in the light of the allocation of responsibilities in the 
electoral process laid down in the Act concerning the election of the members of 
the European Parliament by direct universal suffrage, where the national electoral 
body has informed the European Parliament that the elected representative has not 
acquired the status of Member of the European Parliament and has not therefore 
acquired any of the privileges to which he may be entitled, the question arises as 
to whether the broad interpretation of the term ‘session’ never the less continues 
to apply despite the temporary interruption of the elected representative’s 
expectation of taking his seat. 
Lastly, if the broad interpretation also overcomes the impediments ordered by the 
courts, it must be established whether the effectiveness of Article 9 of Protocol 
No 7 is absolute and to a certain extent automatic or whether, in each specific 
case, the rights and interests associated with the aims of the proceedings must be 
balanced against the rights and interests associated with the concept of immunity. 
SIXTH.- Expedited procedure 
The issue to be resolved, with the assistance of the Court of Justice in relation to 
interpretation, concerns the grant or refusal of a special prison licence, for which 
purpose it is necessary to ascertain the temporal, subjective and objective scope of 
Article 9 of Protocol No 7 on the Privileges and Immunities of Members of the 
[OR 34] European Parliament. 
Therefore, the issue does not directly concern a subject specifically provided for 
in Part Three, Title V of the TFEU, relating to the area of freedom, security and 
justice, which prevents a request that it be dealt with under the expedited 
procedure. 
Nor does it determine the substantive issues on which the preventive detention is 
based, although, indirectly, it could lead to the suspension of that deprivation of 
liberty. It also relates to the temporal scope of the right to be an MEP and the 
composition of the Parliament.. 
For those reasons, in accordance with the fourth paragraph of Article 267 TFEU, 
although this reference for a preliminary ruling does not concern a matter which 
requires to be resolved within a specific time-limit, this court requests that it be 
dealt with under the expedited procedure laid down in Article 105 of the Rules of 
Procedure of the Court of Justice. 
On those grounds 
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24  
OPERATIVE PART 
THE CHAMBER DECIDES: First. To stay the proceedings in the appeal 
pending the outcome of the reference for a preliminary ruling. 
Second. To refer the following subordinately related questions to the Court of 
Justice of the European Union for a preliminary ruling: 
1.- Does Article 9 of Protocol No 7 on the Privileges and Immunities of the 
European Union apply before the commencement of ‘sessions’ to a person 
accused of serious offences, who has been remanded in custody pursuant to a 
court order made in respect of acts preceding the commencement of an electoral 
process in which that person was declared an elected representative of the 
European Parliament but who, by court order, has been refused a special prison 
licence [OR 35] which would enable him to comply with the conditions laid down 
by the national electoral legislation referred to in Article 8 of the Act concerning 
the election of the members of the European Parliament by direct universal 
suffrage? 
2.- If the answer is in the affirmative, where, because the newly elected member 
has not complied with the conditions laid down in the electoral legislation (a 
failure resulting from the limitation of his freedom of movement owing to the fact 
that he has been remanded in custody in proceedings for serious offences), the 
body designated in the national electoral legislation has notified the European 
Parliament that that person has not acquired the status of Member of the 
Parliament and will not do so until such time as he complies with those 
conditions, does the broad interpretation of the term ‘sessions’ continue to apply 
notwithstanding the temporary interruption of his expectation of taking his seat? 
3.- If the answer is that the broad interpretation should continue to apply, where 
the newly elected member was in temporary custody in proceedings for serious 
offences sufficiently in advance of the commencement of the electoral process, is 
the judicial authority which ordered that that person be remanded in custody 
obliged, in the light of the phrase ‘while they are travelling to and from the place 
of meeting of the European Parliament’ in Article 9 of Protocol No 7, to lift the 
custody measure absolutely, almost automatically, to enable compliance with the 
formalities and the requirement of travel to the European Parliament, or should 
account be taken of a balancing exercise in the specific case between, on the one 
hand, the rights and interests arising from the interests of justice and due process 
and, on the other, those relating to the concept of immunity, as regards the need to 
ensure the functioning and independence of the Parliament and the elected 
representative’s right to hold public office? 
[…] [formal matter] 
[…] [procedural matter] [OR 36] 
[…] [formal matter]