62021TJ0272
JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)
5 July 2023 (
*1
)
(Institutional law – Member of the Parliament – Privileges and immunities – Decision to waive parliamentary immunity – Article 9 of Protocol No°7 on the Privileges and Immunities of the European Union – Competence of the authority that issued the request for waiver of immunity – Legal certainty – Manifest error of assessment – Scope of the Parliament’s review – Procedure for examining the request for the waiver of immunity – Rights of the defence – Impartiality)
In Case T‑272/21,
Carles Puigdemont i Casamajó, residing in Waterloo (Belgium),
Antoni Comín i Oliveres, residing in Waterloo,
Clara Ponsatí i Obiols, residing in Waterloo,
represented by P. Bekaert, J. Costa i Rosselló, G. Boye and S. Bekaert, lawyers,
applicants,
v
European Parliament, represented by N. Lorenz, N. Görlitz and J.-C. Puffer, acting as Agents,
defendant,
supported by
Kingdom of Spain, represented by A. Gavela Llopis and J. Ruiz Sánchez, acting as Agents,
intervener,
THE GENERAL COURT (Sixth Chamber, Extended Composition),
composed, at the time of the deliberations, of A. Marcoulli (Rapporteur), President, S. Frimodt Nielsen, H. Kanninen, J. Schwarcz and R. Norkus, Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure,
having regard to the order of 30 July 2021, Puigdemont i Casamajó and Others v Parliament (T‑272/21 R, not published, EU:T:2021:497),
having regard to the order of 26 November 2021, Puigdemont i Casamajó and Others v Parliament (T‑272/21 R II, not published, EU:T:2021:834),
having regard to the order of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain (C‑629/21 P(R), EU:C:2022:413),
further to the hearing on 25 November 2022,
gives the following
Judgment
1
By their action based on Article 263 TFEU, the applicants, Mr Carles Puigdemont i Casamajó, Mr Antoni Comín i Oliveres and Ms Clara Ponsatí i Obiols, seek annulment of decisions P9_TA(2021)0059, P9_TA(2021)0060 and P9_TA(2021)0061 of the European Parliament of 9 March 2021 on the request for waiver of their immunity (‘the contested decisions’).
Background to the dispute
2
The first applicant was President of the Generalitat de Cataluña (Generality of Catalonia, Spain) and the second and third applicants were Members 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 Parliament of Catalonia regulating the referendum on self-determination) of 6 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 Parliament of Catalonia on legal and functional transition of the Republic) of 8 September 2017 (DOGC No 7451A of 8 September 2017, p. 1), and at the time of the holding of the referendum on self-determination, on 1 October 2017, provided for in 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).
3
Following the adoption of those laws and the holding of that referendum, the Ministerio fiscal (Public Prosecutor’s Office, Spain), the Abogado del Estado (State Counsel, Spain) and the political party VOX initiated criminal proceedings against a number of individuals, including the applicants, on the ground that they had committed acts, depending on the persons concerned, constituting inter alia the offences of insurgency, sedition and misuse of public funds (‘the criminal proceedings at issue’).
4
On 21 March 2018, the Tribunal Supremo (Supreme Court, Spain) issued an order charging the applicants with alleged offences of insurgency and misappropriation of public funds. By order of 9 July 2018, the Tribunal Supremo (Supreme Court) declared that the applicants had refused to appear following their flight from the Kingdom of Spain, and it stayed the criminal proceedings instituted against them until such time as they are found.
5
The applicants subsequently applied to stand as candidates in the elections of Members of the Parliament held in Spain on 26 May 2019.
6
On 13 June 2019, the Junta Electoral Central (Central Electoral Commission, Spain) adopted the decision declaring the candidates elected to the Parliament at the elections of 26 May 2019; those elected candidates included the first and second applicants.
7
On 17 June 2019, the Central Electoral Commission notified the Parliament of the list of candidates elected in Spain, which did not include the names of the first and second applicants.
8
On 20 June 2019, the Central Electoral Commission notified the Parliament of a decision in which it found that the first and second applicants had not taken the oath or promised to respect the Spanish Constitution, as required under Article 224(2) of Ley orgánica 5/1985, de régimen electoral general (Organic Law 5/1985 on the General Electoral System) of 19 June 1985 (BOE No 147 of 20 June 1985, p. 19110), and, in accordance with that article, declared that the seats allocated to the applicants in the Parliament were vacant and that all the prerogatives to which they might be entitled by virtue of their duties were suspended until such time as they took that oath or made that promise.
9
On 27 June 2019, the then President of the Parliament informed the first and second applicants that he was not in a position to treat them as future Members of the Parliament.
10
On 14 October 2019, the investigating judge of the Criminal Chamber of the Tribunal Supremo (Supreme Court) issued a national arrest warrant, a European arrest warrant and an international arrest warrant against the first applicant, so that he might be tried in the criminal proceedings at issue. On 4 November 2019, similar arrest warrants were issued by the same judge against the second and third applicants.
11
On 13 January 2020, the President of the Tribunal Supremo (Supreme Court) sent to the Parliament the request dated 10 January 2020, communicated via the President of the Criminal Chamber of that court following an order of that same day made by the investigating judge of that chamber, for the parliamentary immunity of the first and second applicants to be waived.
12
At the plenary session of 13 January 2020, the Parliament took note, following the judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115), of the election to the Parliament of the first and second applicants with effect from 2 July 2019.
13
On 16 January 2020, the Vice-President of the Parliament announced in Parliament the requests for waiver of the immunity of the first and second applicants, and referred them to the relevant committee, namely the Parliament’s Committee on Legal Affairs.
14
On 10 February 2020, following the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union on 31 January 2020, the Parliament took note of the election of the third applicant as a Member with effect from 1 February 2020.
15
On the same day, the President of the Tribunal Supremo (Supreme Court) sent to the Parliament the request dated 4 February 2020, communicated via the President of the Criminal Chamber of that court following an order of that same day made by the investigating judge of that chamber, for the immunity of the third applicant to be waived.
16
On 13 February 2020, the Vice-President of the Parliament announced in Parliament the request for waiver of the immunity of the third applicant and referred it to the Committee on Legal Affairs.
17
The applicants submitted observations to the Parliament. They were also heard by the Committee on Legal Affairs on 14 January 2021.
18
On 23 February 2021, the Committee on Legal Affairs adopted reports A 9-0020/2021, A 9-0021/2021 and A 9-0022/2021 concerning the requests for waiver of the applicants’ immunity.
19
By the contested decisions, the Parliament granted the requests referred to in paragraphs 11 and 15 above.
Forms of order sought
20
The applicants claim that the Court should:
–
annul the contested decisions;
–
order the Parliament to pay the costs.
21
The Parliament, supported by the Kingdom of Spain, contends that the Court should:
–
dismiss the action;
–
order the applicants to pay the costs.
Law
22
The applicants put forward eight pleas in law in support of their action.
23
The first plea alleges, in essence, that the reasons stated for the contested decisions are insufficient.
24
The second plea is based on the alleged lack of competence of the national authority that issued and transmitted to the Parliament the requests for the applicants’ immunity to be waived.
25
The third plea is based, in essence, on an alleged disregard for the principle of impartiality.
26
The fourth plea alleges, in essence, infringement of the right to be heard.
27
The fifth plea alleges infringement of the principles of legal certainty and sincere cooperation, the right to effective judicial protection and the rights of the defence because the contested decisions lack clarity.
28
The sixth plea in law is based on an infringement of Article 343 TFEU, Article 9 of Protocol (No 7) on the Privileges and Immunities of the European Union, annexed to the EU and FEU Treaties (‘Protocol No 7’), and Rule 5(2) of the Rules of Procedure of the Parliament applicable to the ninth parliamentary term (2019‑2024), in the version prior to its amendment by the decision of the Parliament of 17 January 2023 (‘the Rules of Procedure’), in that the Parliament disregarded the limits on its power to waive the immunity of its Members.
29
The seventh plea alleges infringement of the principles of good administration and equal treatment in that the Parliament departed from its earlier practice without justification, or the existence of errors in the assessment of fumus persecutionis.
30
The eighth plea alleges infringement of the principles of good administration and equal treatment in that, for the first time, by the contested decisions, the Parliament authorised the pre-trial detention of its Members.
31
In so far as the sixth plea contains, in essence, complaints relating to alleged errors of law and of fact vitiating the Parliament’s examination of fumus persecutionis, those complaints will be dealt with together with the seventh plea. Furthermore, the Court considers it appropriate to examine the fourth plea, then the third plea, last, after the eighth plea.
Admissibility of the references to the annexes
32
The Parliament disputed, inter alia, the admissibility of some of the applicants’ arguments in so far as they appeared only in the annexes to their pleadings.
33
Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure of the General Court, the application must contain, inter alia, the forms of order sought and a brief statement of the pleas in law. It is settled case-law that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to adjudicate on the action, if necessary without any other supporting information. Whilst the body of the application may be supported and supplemented on specific points by references to certain extracts from documents annexed to it, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential submissions in law, which must appear in the application (see judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 40 and the case-law cited).
34
Furthermore, it is not for the Court to seek out and identify, in the annexes, the pleas and arguments which it might consider as constituting the basis of the action, the annexes having a purely evidential and instrumental function (see judgment of 20 October 2021, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, T‑191/16, not published, EU:T:2021:707, paragraph 21 and the case-law cited). That purely probative and instrumental purpose of the annexes means that, in so far as they contain elements of law on which certain pleas expressed in the application are based, those elements must be set out in the actual body of the application or, at the very least, be sufficiently identified in that application (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v CommissionC‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 99). The annexes cannot therefore be used to develop a plea set out summarily in the application by putting forward complaints or arguments not set out in the application (see judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 60 and the case-law cited).
35
That interpretation of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure of the General Court also applies to the conditions for admissibility of a reply, which according to Article 83 of those rules of procedure is intended to supplement the application (see judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 61 and the case-law cited).
36
In the present case, the applicants have made numerous references in their written pleadings to what are sometimes voluminous documents annexed to those pleadings. However, the documents to which certain references are made are not intended solely to support and supplement, on specific points, certain arguments in the body of the pleading to which they are annexed, but contain the actual explanation of those arguments, so that, unless the documents are analysed, the arguments cannot be comprehended.
37
It follows that, in accordance with the case-law referred to in paragraphs 33 to 35 above, the annexes produced by the applicants will be taken into consideration only in so far as they support or supplement pleas or arguments expressly set out in the body of their pleadings and in so far as it is possible to determine precisely the matters that they contain and which support or supplement those pleas or arguments.
Substance
Legal context
– European Union law
38
Article 343 TFEU provides that ‘the Union shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in [Protocol No 7]’.
39
Chapter III of Protocol No 7, relating to ‘Members of the European Parliament’, includes, inter alia, Article 8, which states:
‘Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.’
40
Within the same chapter, Article 9 of Protocol No 7 provides:
‘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.
Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.’
41
Chapter VII of Protocol No 7, entitled ‘General provisions’, includes, inter alia, Article 18, which provides:
‘The institutions of the Union shall, for the purpose of applying this Protocol, cooperate with the responsible authorities of the Member States concerned.’
42
Rule 5 of the Rules of Procedure, entitled ‘Privileges and immunities’, provides:
‘1.   Members shall enjoy privileges and immunities in accordance with [Protocol No 7].
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.
…’
43
Rule 6 of the Rules of Procedure, entitled ‘Waiver of immunity’, provides:
‘1.   Any request for waiver of immunity shall be evaluated in accordance with Articles 7, 8 and 9 of the Protocol No 7 … and with the principles referred to in Rule 5(2).
…’
44
Rule 9 of the Rules of Procedure, entitled ‘Procedures on immunity’, provides:
‘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.
…
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.
…
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.
…
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.
13.   The committee shall lay down principles for the application of this Rule.
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.’
– Spanish law
45
Article 71 of the Spanish Constitution provides:
‘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 Chamber of the Tribunal Supremo [(Supreme Court)] shall have jurisdiction in criminal cases against deputies and senators.
…’
46
Articles 750 to 753 of the Ley de Enjuiciamiento Criminal (Code of Criminal Procedure) are worded as follows:
‘Article 750
A court which finds that there are grounds for prosecuting a senator or deputy of the Cortes [Senate and Congress of Deputies (Spain)] for a criminal offence shall refrain from doing so if the [Senate and the Congress of Deputies] are in session until it obtains the relevant authorisation from the legislative chamber of which the person in question is a member.
Article 751
Where a senator or deputy 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 criminal case pending against a person who, while being prosecuted, is elected a senator or deputy.
Article 752
If a senator or deputy is prosecuted during a period between parliamentary sessions, the court seised of 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 is prosecuted before [the Senate or the Congress of Deputies] meets.
Article 753
At all events, the judicial officer shall stay the criminal proceedings from the date on which the [Senate and the Congress of Deputies] are informed, whether or not they are in session, and matters shall remain as they stand at that time until the relevant legislative chamber adopts the decision it considers appropriate.’
47
Article 22(1) of the Reglamento del Senado (Senate Regulation) of 3 May 1994 (BOE No 114 of 13 May 1994, p. 14687) provides:
‘During their term of office, senators shall have immunity and may be detained or arrested only if they are found in the act of committing an offence. The detention or arrest shall be communicated to the Senate Presidency immediately.
Senators may not be charged or prosecuted without the prior authorisation of the Senate, which must be sought by means of the relevant request for waiver of immunity. Such authorisation shall also be necessary in proceedings brought against persons who take up the post of senator after having been prosecuted or charged.’
The first plea, alleging an inadequate statement of reasons for the contested decisions
48
The applicants claim that the contested decisions do not contain an adequate statement of reasons. First, the Parliament has not given any response to their observations concerning both the procedural irregularities identified and the substance of the requests for waiver of immunity, or taken a view vis-à-vis the application of the provisions of Rule 9(7) of the Rules of Procedure. Second, the contested decisions make no reference whatsoever to the Charter of Fundamental Rights of the European Union (‘the Charter’), including to Article 52 thereof, despite the observations which they had made concerning the infringement of the Charter. Third, they contain no statement of reasons as regards the impact of the waiver of their immunity on the proper functioning of the Parliament. Fourth, the Parliament did not give reasons for its conclusion regarding the non-existence of fumus persecutionis.
49
The Parliament, supported by the Kingdom of Spain, disputes those arguments.
50
In accordance with settled case-law, the statement of reasons required under Article 296 TFEU for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 16 and the case-law cited).
51
It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 29 and the case-law cited). In particular, the institution concerned is not obliged to adopt a position on all the arguments put forward before it by the parties concerned, provided that it sets out the facts and legal considerations which are of essential importance to the scheme of its decision (see judgment of 30 June 2022, Fakro v Commission, C‑149/21 P, not published, EU:C:2022:517, paragraph 190; see also judgment of 30 April 2014, Hagenmeyer and Hahn v Commission, T‑17/12, EU:T:2014:234, paragraph 173 and the case-law cited; judgment of 28 November 2019, Mélin v Parliament, T‑726/18, not published, EU:T:2019:816, paragraph 25).
52
The obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which is a matter of the substantive legality of the contested act (see judgment of 5 May 2022, Commission v Missir Mamachi di Lusignano, C‑54/20 P, EU:C:2022:349, paragraph 69 and the case-law cited).
53
It is in the light of those considerations that the Court will determine whether the contested decisions contain an adequate statement of reasons.
54
In the present case, the contested decisions are broadly similar, with the exception of the names of the Members concerned, the date on which certain judicial acts were adopted and, as regards the third applicant, the circumstances of her election to the Parliament and the fact that she is being prosecuted in the criminal proceedings at issue solely for the alleged offence of sedition.
55
In those decisions, the Parliament in essence stated, in point A, that it had received requests, submitted by the President of the Criminal Chamber of the Tribunal Supremo (Supreme Court), for waiver of the applicants’ immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7, made in the context of the criminal proceedings at issue. It stated, in points F and G, that it was not competent to rule on the relevance of the criminal proceedings or to call into question the merits of the national legal systems. Similarly, in point H, it stated that it was not competent to assess or call into question the competence of the national judicial authorities responsible for the criminal proceedings at issue. In point I, it noted that the Criminal Chamber of the Tribunal Supremo (Supreme Court) was, under Spanish law as interpreted by the national courts and communicated to the Parliament by the Kingdom of Spain, the competent authority to request the waiver of the immunity of a Member of the Parliament.
56
In addition, in point J, the Parliament took the view that Article 8 of Protocol No 7 was not applicable, since the facts at issue did not relate to opinions expressed or votes cast by Members in the performance of their duties.
57
The Parliament then examined the immunity provided for in the first paragraph of Article 9 of that protocol. In points K to N, it noted that, according to the requests for waiver of immunity, Article 71 of the Spanish Constitution did not require parliamentary authorisation to continue criminal proceedings against a person who had acquired the status of Member of the Parliament after he or she had been charged and that therefore it was not necessary to request the waiver of immunity under point (a) of the first paragraph of Article 9 of Protocol No 7. It then stated that it was not for it to interpret the national rules on the immunities of Members (point N).
58
Finally, in points O to W, the Parliament assessed whether the immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7 should be waived. In that regard, in essence, it considered that the applicants had been the subject, inter alia, of European arrest warrants, the legality of which had been confirmed by the national courts, and whose requests for waiver of immunity were intended to enable the execution of those warrants (point P). It took the view that the accusation against the applicants was clearly not linked to their duties as Members of the Parliament, but related to their previous duties in Catalonia (point T), that that accusation also concerned other persons who did not have the status of Members of the European Parliament (point U) and that it could not be asserted that the criminal proceedings at issue had been initiated in order to damage the applicants’ political activity as Members of the European Parliament (fumus persecutionis), since both the facts complained of and those proceedings dated from a period when the applicants’ acquisition of the status of Members of the Parliament was still hypothetical (points V and W). Consequently, the Parliament waived the applicants’ immunity under point (b) of the first paragraph of Article 9 of Protocol No 7.
59
At the outset, it should be noted that, according to the case-law set out in paragraph 51 above, the fact that the contested decisions are silent on the applicants’ written observations does not, in itself, establish that the Parliament failed to comply with the requirement to state reasons. In that respect, it is important to stress that neither the number nor the importance of the arguments and documents produced by the applicants are such as to alter the extent of the Parliament’s obligation to state reasons (see, to that effect, judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 96).
60
Next, in the first place, the applicants claim that the contested decisions do not respond to their written observations concerning the merits of the requests for waiver of immunity, even though those observations are in direct contradiction with the grounds for those decisions.
61
In that regard, it is apparent from the contested decisions, the substance of which has been recalled in paragraphs 55 to 58 above, that point I of those decisions contains the reasons why the Parliament implicitly rejected the applicants’ argument that the requests for waiver of immunity were inadmissible on account of the lack of jurisdiction of the Tribunal Supremo (Supreme Court) to issue them. In points M and N, the Parliament also implicitly responded to the argument that criminal proceedings in Spain had not been authorised by the Parliament. Similarly, points F and G constitute an implicit response to the applicants’ arguments seeking to challenge the appropriateness of the prosecution in view of the facts complained of. As to the remainder, it follows from the analysis in points O to W of the contested decisions that the objections relating to political persecution, the exceptional nature of the cases in question, the chronology of events, the proper functioning of the Parliament, in particular its integrity and independence, the disproportionate nature of a waiver of immunity in the circumstances of the present case and the various precedents relied on by the applicants were rejected on the ground that fumus persecutionis, that is to say, the existence of factual evidence indicating that the legal proceedings at issue were brought with the intention of undermining the Members’ activities and, therefore, the Parliament’s, could be ruled out. In that regard, contrary to what the applicants claim, the reasons justifying the exclusion of such a prima facie case are sufficiently clear from points T to V of the contested decisions.
62
Moreover, it is true that the contested decisions do not explicitly address the application of Rule 9(7) of the Rules of Procedure (see paragraph 44 above) relied on by the applicants, according to which the Committee on Legal Affairs may exceptionally propose that the waiver of the immunity should apply solely to the 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. However, since the statement of reasons for an act must be assessed having regard to its context (see paragraph 51 above), the fact that the waiver of the applicants’ immunity was intended to pursue the execution of European arrest warrants issued for the purpose of resuming the criminal proceedings brought against them, as set out in particular in points B and P of those decisions, makes it possible to understand the reasons why the Parliament did not apply that article, the wording of which provides, moreover, that its implementation is exceptional.
63
In the second place, the applicants submit that the contested decisions did not respond to their written observations, dated in particular 16, 23 and 24 November 2020, concerning alleged procedural irregularities, in particular the appointment of a single rapporteur to the Committee on Legal Affairs to deal with the three requests for waiver of immunity, and the lack of impartiality of the rapporteur and the Chair of that committee.
64
At the outset, it should be noted that the Rules of Procedure of the Parliament and of the Committee on Legal Affairs relating to the examination of requests for waiver of immunity do not provide for any procedure to challenge the appointment by that committee of the rapporteur responsible for an immunity case or the chairmanship of the meeting at which that case is examined by the current Chair.
65
In the present case, the contested decisions do not contain any explicit response or any reference to the applicants’ allegations concerning the alleged procedural irregularities referred to in paragraph 63 above. However, by maintaining the sole rapporteur for the examination of the three requests for waiver of immunity and the Spanish Chair of the Committee on Legal Affairs, the Committee necessarily considered that the procedural irregularities alleged by the applicants were unfounded. The fact that the Parliament did not state the reasons for such a conclusion does not, however, affect the clarity of the reasoning which led the Parliament to waive the applicants’ immunity, nor does it hinder the Court’s review of the legality of those alleged irregularities, which will be examined in the context of the third plea.
66
Furthermore, while the applicants seek to maintain that the Parliament’s failure to reply to their requests for a translation of the documents that they had produced for the purposes of communicating them to the members of the Committee on Legal Affairs affects the reasoning of the contested decisions, such an argument must be rejected. The Rules of Procedure of the Parliament and of the Committee on Legal Affairs make no provision for the Member concerned or his or her representative to request a translation of a document produced in the context of the examination of the request for waiver of immunity. Moreover, the existence of a request for a translation is not one of the facts and legal considerations having decisive importance in the context of the decision on which the Parliament is required to adopt an express position in that decision.
67
In the third place, the fact that the contested decisions contain no reference to the Charter and, in particular, to Article 52 thereof, despite the arguments put forward in that regard by the applicants, is not such as to establish an inadequate statement of reasons. First, the Parliament was not required to respond to all the applicants’ arguments (see paragraph 51 above). Second, the question whether the contested decisions comply with the provisions of the Charter comes under the assessment of their merits and will be examined in the context of the substantive pleas presented by the applicants.
68
Accordingly, it must be held that the contested decisions enabled the applicants to know the reasons why their immunity was waived and provides the court having jurisdiction with sufficient material for it to exercise its power of review.
69
The first plea must therefore be rejected as unfounded.
Second plea, alleging a lack of competence of the national authority which issued and forwarded to the Parliament the requests for waiver of the applicants’ immunity
70
The applicants maintain that the Parliament failed to fulfil its obligation to ascertain whether the national authority which sent the requests for waiver of immunity was competent.
71
In that regard, the applicants argue that the Tribunal Supremo (Supreme Court) was not the competent authority to issue the requests to waive their immunity. They explain that that court considered that, although no provision expressly conferred such jurisdiction on it in respect of a Member of the European Parliament elected for the Kingdom of Spain, that jurisdiction was based on the application by analogy, pursuant to point (a) of the first paragraph of Article 9 of Protocol No 7, of national law, that is to say, Article 71(3) of the Spanish Constitution, which conferred on that court the power to investigate, adjudicate and make a request for waiver of immunity in respect of Spanish parliamentarians. That court also considered that such an application by analogy was precluded in respect of Members of the European Parliament elected for another Member State and that, for those Members, it was the Spanish court with territorial jurisdiction which had to request the waiver of immunity. According to the applicants, that interpretation by the Tribunal Supremo (Supreme Court) is erroneous and breaches Articles 20, 21 and 47 of the Charter. The Tribunal Supremo (Supreme Court) has already been found to lack competence by the cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium) and by the Working Group on Arbitrary Detention set up by the General Assembly of the United Nations. In their reply, the applicants add that the interpretation of the Tribunal Supremo (Supreme Court) is even more astonishing since it takes as the basis for that position point (a) of the first paragraph of Article 9 of Protocol No 7, but refuses to grant them the benefit of that provision. They state that the Tribunal Supremo (Supreme Court) has systematically refused to refer a question to the Court of Justice for a preliminary ruling in that regard.
72
The applicants submit that the Parliament was not bound by that interpretation of the Tribunal Supremo (Supreme Court), the basis of which the Parliament was required to examine. In their submission, assuming it were to be established, the fact that the Parliament examined the competence of the national authorities in the light of the notifications from the Kingdom of Spain of 11 June 2014 and 30 September 2020, which are not even mentioned in the contested decisions, cannot be equated with a review given the speculative and purely indicative nature of those notifications.
73
By failing to conduct such a review, the Parliament, according to the applicants, infringed Rule 9(1) of the Rules of Procedure, read in the light of point (a) of the first paragraph of Article 9 of Protocol No 7, and Articles 20, 21 and 47 of the Charter, read in the light of the principles of equal treatment and of the effectiveness of EU law.
74
In addition, the applicants observe that Article 756 of the Code of Criminal Procedure provides that a request to waive immunity is to be sent via the Ministry of Justice, which was not the case here.
75
The Parliament and the Kingdom of Spain dispute those arguments.
76
In the first place, as regards the competent authority to communicate a request for waiver of immunity to the Parliament, the applicants claim, as confirmed at the hearing, that the requests for waiver of immunity were transmitted by an authority that lacked competence. They state that, under Article 756 of the Code of Criminal Procedure, such requests should have been made through the Ministry of Justice.
77
In that regard, it should be noted that, in the context of its power to organise its own activities under Article 232 TFEU, the Parliament decided, as is set out in Rule 9(12) of the Rules of Procedure, that requests for waiver of a Member’s immunity must be communicated to it by the judicial authorities or by the Permanent Representation of a Member State, without reference to national law. That provision, the legality of which is not disputed by the applicants, was complied with in the present case, since the requests for waiver of immunity were transmitted to the Parliament by the President of the Tribunal Supremo (Supreme Court), as is stated in the first indent of the citations of the contested decisions.
78
Accordingly, the complaint referred to in paragraph 76 above must be rejected.
79
In the second place, as regards the competent authority to issue a request for waiver of immunity, it should be noted that, according to Rule 9(1) of the Rules of Procedure, the President is required to announce in Parliament and to refer to the committee responsible any request for the immunity of a Member to be waived, which has been addressed to him or her by a competent authority of a Member State. Under Rule 9(8) of the Rules of Procedure, when the competent committee of the Parliament examines that request, it may issue a reasoned opinion on the competence of the authority in question and on the admissibility of the request. Under those provisions, it is for the Parliament to satisfy itself that the authority which issued the requests for waiver of immunity is competent.
80
In the absence of any provision of EU law determining the competent authority to request the waiver of the immunity of a Member of the Parliament, it is for each Member State, within the scope of its procedural autonomy, to designate that authority. That designation is therefore exclusively a matter of national law.
81
In that regard, the Parliament asked each Member State to identify the competent authority to request the waiver of the immunity of a Member of the Parliament. By a notification dated 11 June 2014, sent to the President of the Parliament by the Permanent Representative of the Kingdom of Spain to the European Union, the Spanish Government stated that, in the absence of a provision in Spanish law identifying that authority, the view could be taken, purely for guidance, that it was the same authority as the one which was competent as regards a request for the waiver of the immunity of Spanish deputies and senators, namely the President of the Tribunal Supremo (Supreme Court).
82
In a second notification dated 30 September 2020, the Spanish Government explained that Article 71 of the Spanish Constitution (see paragraph 45 above) and Article 57 of Ley Orgánica 6/1985 del Poder Judicial (Organic Law 6/1985 on the judiciary) entrusted criminal proceedings relating to Spanish deputies and senators to the Tribunal Supremo (Supreme Court) and that, in that context and in the light of recent precedents, the President of the Criminal Chamber of the Tribunal Supremo (Supreme Court), acting through the President of that court, had been identified as the competent authority as regards a request for the waiver of the immunity of a Member of the European Parliament.
83
In the present case, in point I of the contested decisions, the Parliament stated that the Criminal Chamber of the Tribunal Supremo (Supreme Court) was, under Spanish law as interpreted by the national courts and communicated to the Parliament by the Kingdom of Spain, the competent authority to request the waiver of the immunity of a Member of the European Parliament.
84
The applicants do not call into question the fact that the notification of 30 September 2020 reflects the state of national case-law concerning the competent authority to request the waiver of the immunity of a Member of the Parliament elected for the Kingdom of Spain. The judgments relied on by the applicants in which the Tribunal Supremo (Supreme Court) finds that it does not have competence to request the waiver of the immunity of a Member of the European Parliament concern the case of Members of the European Parliament who are not elected for the Kingdom of Spain. By contrast, the applicants submit that the Parliament did not exhaust the review which it was required to carry out in that respect by arguing that, in the light of the evidence which they had produced before the Committee on Legal Affairs, it should have examined whether that national case-law was consistent with EU law, in particular with the Charter, especially since it is based on an interpretation of point (a) of the first paragraph of Article 9 of Protocol No 7.
85
In that regard, it should be noted that, in accordance with Article 5(1) and Article 13(2) TEU, the Parliament acts within the limits of the powers conferred on it by the Treaties. No provision of EU law, in particular Protocol No 7, confers on the Parliament competence to assess the conformity with EU law of the choices made by the Member States as to the determination of the competent authority to issue a request for waiver of immunity, which is a matter for national law (see paragraph 80). It is for the national courts to rule on that compatibility, if necessary after a reference to the Court of Justice for a preliminary ruling.
86
Next, the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), relied on by the applicants, is irrelevant in the present case. It relates to the judicial review of decisions to initiate procedures, preparatory acts or non-binding proposals adopted by the national authorities in the context of administrative procedures leading to the adoption of an EU act. The Court of Justice has held that the EU Courts alone have jurisdiction to review the legality of the final decision, which included the examination of potential defects vitiating the legality of those intermediate acts which would be capable of affecting the validity of that final decision (judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraphs 43 and 44). However, the requests for waiver of immunity at issue form part of criminal proceedings conducted at national level, in which the final decision-making power lies with the competent national court. They do not therefore constitute a preparatory act, a decision to initiate a procedure, or a non-binding proposal adopted by the national authorities in the context of administrative procedures leading to the adoption of an EU act for the purposes of that judgment, the legality of which it is for the Parliament and, if appropriate, the Court to review. The applicants have, moreover, challenged the lawfulness of the requests for waiver of their immunity before the Spanish courts.
87
Similarly, the judgments of 17 May 1972, Meinhardt v Commission (24/71, EU:C:1972:37), and of 5 May 2021, Falqui v Parliament (T‑695/19, not published, under appeal, EU:T:2021:242), relied on by the applicants, are not relevant in the present case. Those cases concern situations in which an EU institution implements national legislation to which EU law refers. That is not so in the case of the Parliament when, in deciding on a request for waiver of immunity, it ascertains whether the matter has been referred to it by a competent national authority.
88
It follows that the applicants are not justified in claiming that the Parliament was required to assess the conformity with EU law of the Spanish case-law relating to the competent authority to request the waiver of the immunity of a Member of the European Parliament elected for the Kingdom of Spain.
89
Accordingly, the second plea must be rejected as unfounded.
The fifth plea, alleging infringement of the principles of legal certainty and sincere cooperation, the right to effective judicial protection and the rights of defence because the contested decisions lack clarity
90
The applicants submit that the principle of legal certainty was breached because the scope of the contested decisions is not clear, and that, as a result, there is a breach of their right to effective judicial protection and of their rights of defence, and a breach of the principle of sincere cooperation by the Parliament vis-à-vis the Member States.
91
In essence, the fifth plea, in so far as it concerns infringement of the principle of legal certainty, is based on two complaints. The first complaint alleges that the contested decisions do not specify whether or not their scope must be limited to proceedings for the execution of outstanding European arrest warrants when the requests for waiver of immunity were made, namely, the proceedings conducted in Belgium and in the United Kingdom. The second complaint alleges that the Parliament, for the first time, waived only the immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7, without specifying how that waiver of immunity was linked to upholding the immunity provided for in the second paragraph of Article 9 of that protocol.
92
The Parliament and the Kingdom of Spain dispute those arguments.
93
As a preliminary point, it should be recalled that the principle of legal certainty, which is a fundamental principle of EU law, aims to ensure that situations and legal relationships governed by EU law remain foreseeable. In particular, it requires that any measure adopted by the institutions of the European Union should be clear and precise, so as to enable the persons concerned to ascertain precisely what their rights and obligations are under the measure and take steps accordingly (see judgments of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 128 and the case-law cited, and of 7 March 2018, Gollnisch v Parliament, T‑624/16, not published, EU:T:2018:121, paragraph 129 and the case-law cited).
– The first complaint, alleging a lack of clarity in the contested decisions as regards the procedures covered by the waiver of immunity
94
The applicants claim that the contested decisions lack clarity in that they do not specify the proceedings covered by the waiver of immunity. According to the applicants, since the waiver of their immunity was sought in order to continue the execution of the European arrest warrants outstanding at that time, the contested decisions may authorise only the continuation of that execution in Belgium as regards the first and second applicants and in the United Kingdom as regards the third applicant, and not the execution of those warrants in any other Member State. They conclude that, since the United Kingdom authorities have abandoned the execution of the European arrest warrant issued in respect of the third applicant, there is no longer any need to adjudicate on the action, inasmuch as it was brought by the third applicant.
95
At the outset, it should be noted that, according to point 1 of their operative part, the contested decisions waive the applicants’ immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7, that is to say, the immunity conferred on the territory of any Member State other than the Kingdom of Spain, without making any selection of those States.
96
Next, it must be recalled that the contested decisions follow up on requests for waiver of the applicants’ immunity which were made by means of two orders dated 10 January 2020 (first and second applicants) and 4 February 2020 (third applicant) from the investigating judge of the Criminal Chamber of the Tribunal Supremo (Supreme Court). In the summary of the facts of those orders, an extract is reproduced from the orders of 10 January 2020 (first two applicants) and 4 February 2020 (third applicant) by which the investigating judge of the Criminal Chamber of the Tribunal Supremo (Supreme Court) dismissed the appeals brought against the orders of 14 October and 4 November 2019 which issued the arrest warrants against the applicants. In that extract, it is stated, inter alia, that requests for waiver of immunity aim to ensure that the execution of European arrest warrants may ‘proceed’. That statement is repeated in point P of the contested decisions. In the grounds of those orders of 10 January and 4 February 2020, it is stated, in particular, that the waiver of the applicants’ immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7 is requested because that immunity prevents the European arrest warrants issued against the applicants from being executed. It is also mentioned that the waiver of immunity will facilitate the pursuit of the criminal proceedings. In that context, the applicants are not justified in claiming that the requests for waiver of immunity were intended solely to enable the execution of European arrest warrants in Belgium and the United Kingdom.
97
Accordingly, the applicants are not justified in claiming that the contested decisions, read independently or in conjunction with the requests for waiver of immunity, are unclear as regards the proceedings in respect of which immunity has been waived. The first complaint must therefore be rejected.
– The second complaint, alleging that the contested decisions lack clarity as to the nature of the measures that may be adopted in the context of the execution of the European arrest warrants
98
The applicants claim that the contested decisions are not clear as to the exact measures that could be adopted in the context of the procedures for the execution of European arrest warrants. They maintain that those decisions should not allow the adoption of any restriction on their liberty, since they continue to benefit from the immunity provided for in the second paragraph of Article 9 of Protocol No 7, contrary to what the Kingdom of Spain claims. The different interpretations of the Parliament, the Kingdom of Spain and the executing judicial authorities in Italy on this point confirm that lack of clarity. The applicants also emphasise the unprecedented nature of the contested decisions in which the Parliament waives the immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7 without making a decision on the fate of the immunity provided for in the second paragraph of Article 9 of that protocol, thus creating complete legal uncertainty.
99
At the outset, it should be pointed out that the privileges and immunities which Protocol No 7 grants to the European Union have a functional character, inasmuch as they are intended to avoid any interference with the functioning and independence of the European Union, which means, in particular, that those privileges and immunities are accorded solely in the interests of the European Union (see, to that effect, order of 29 March 2012, Gollnisch v Parliament, C‑569/11 P(R), not published, EU:C:2012:199, paragraph 29, and judgment of 30 November 2021, LR Ģenerālprokuratūra, C‑3/20, EU:C:2021:969, paragraph 57 and the case-law cited). In particular, immunities are intended to provide the Parliament with complete and effective protection against hindrances or risks to its proper functioning and independence (see judgment of 19 December 2019, Junqueras Vies, C‑502/19, EU:C:2019:1115, paragraph 82 and the case-law cited). It is therefore for the Parliament, in the exercise of its powers, to ensure the effectiveness of those immunities (judgment of 19 March 2010, Gollnisch v Parliament, T‑42/06, EU:T:2010:102, paragraph 107). To that end, in accordance with the combined provisions of Rule 5(2) and Rule 6 of the Rules of Procedure (see paragraphs 42 and 43 above), when it examines a request for waiver of immunity, the Parliament must act to uphold its integrity as a democratic legislative assembly and to ensure the independence of its Members in the performance of their duties.
100
Next, when the Parliament receives a request for waiver of the immunity of one of its Members, it must, after having been informed, as the case may be, both by the Member State and by the Member concerned pursuant to Rule 9(5) and (6) of the Rules of Procedure, assess the situation of that Member in the light of the facts giving rise to that request. In that regard, the Parliament must first ascertain whether those facts can be covered by Article 8 of Protocol No 7 as a special provision. If it does, the Parliament must find that immunity cannot be waived. It is only if the Parliament concludes in the negative that it must verify, second, whether the Member concerned benefits from the immunity provided for in Article 9 of the Protocol in respect of the facts at issue and, if that is so, to decide whether or not to waive that immunity on the basis of the third paragraph of Article 9 of Protocol No 7 (order of 12 November 2020, Jalkh v Parliament, C‑792/18 P and C‑793/18 P, not published, EU:C:2020:911, paragraph 33, and judgment of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraphs 46 and 47).
101
In the present case, the Parliament stated, in point A of the contested decisions, that the requests for waiver of immunity were based on point (b) of the first paragraph of Article 9 of Protocol No 7.
102
In accordance with the procedure described in paragraph 100 above, the Parliament examined whether the facts alleged against the applicants in the criminal proceedings at issue fell within the scope of Article 8 of Protocol No 7 and concluded that that was not the case in point J of the contested decisions.
103
Next, as regards Article 9 of Protocol No 7, in particular in so far as the request for waiver of immunity was intended to remove an obstacle to the arrest of the applicants by a Member State other than the Kingdom of Spain, with a view to their surrender to Spain for the purposes of continuing the criminal proceedings at issue, the Parliament envisaged the immunity provided for in point (a) of the first paragraph of Article 9 of that protocol. It noted in point M of the contested decisions that, according to the requests for waiver of immunity, Article 71 of the Spanish Constitution did not require parliamentary authorisation to be obtained in order to continue criminal proceedings against a person who had acquired the status of Member of the Parliament after he or she had been charged and that, therefore, it was not necessary to request the waiver of immunity under that provision. It stated in point N that it was not for the Parliament to interpret the national rules on the immunities of Members. In so doing, as was confirmed at the hearing by the Parliament, the latter took note of the fact that Spanish law, as interpreted by the Spanish courts, applicable by reason of the reference made in point (a) of the first paragraph of Article 9 of Protocol No 7, did not confer immunity on the applicants in respect of the facts at issue.
104
Finally, in point O of the contested decisions, the Parliament examined, as it was asked to do, whether the applicants’ immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7 should be waived. It concluded that it should in the first paragraph of the operative part.
105
In so far as, in the context of its powers relating to immunities, the Parliament must ensure the effectiveness of those powers, it follows implicitly but necessarily from the contested decisions that it considered that only the immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7 constituted an obstacle to the applicants’ arrest and surrender to the Spanish authorities pursuant to the European arrest warrants at issue and that that immunity should be waived.
106
Contrary to what the applicants claim, the fact that the contested decisions are silent as to the immunity provided for in the second paragraph of Article 9 of Protocol No 7 is not such as to render them ambiguous. First, as its practice currently stands, the Parliament is in continuous session from the opening of the first session until its closure, which occurs at the same time as the opening of the first session held after the following election. The immunity under the first paragraph of Article 9 of Protocol No 7, which applies during the sessions of the Parliament, therefore covers its Members throughout their term of office (see, to that effect, Opinion of Advocate General Szpunar in Junqueras Vies, C‑502/19, EU:C:2019:958, point 83). On the other hand, in so far as it ensures that every Member of Parliament has the opportunity to travel unhindered to the first sitting of the new legislature and to take the necessary steps to take up their mandate (see, to that effect, judgment of 19 December 2019, Junqueras Vies, C‑502/19, EU:C:2019:1115, paragraphs 85 and 86), the immunity provided for in the second paragraph of Article 9 of Protocol No 7 was not at issue in the present case, since the competent Spanish authorities, by requesting the waiver of the applicants’ immunity, had recognised their status as Members of the Parliament, and the latter exercised their mandate.
107
In the light of the factors mentioned in paragraph 106 above, in the circumstances of the present case, and irrespective of the arguments put forward by the Parliament during the present proceedings and the proceedings for interim measures, the second paragraph of Article 9 of Protocol No 7 did not confer on the applicants protection separate from that which they enjoyed under the first paragraph of Article 9 of that protocol.
108
Accordingly, the second complaint must be rejected.
109
Consequently, the fifth plea must be rejected in so far as it is based on infringement of the principle of legal certainty, and in so far as the complaints alleging infringement of the principle of sincere cooperation, the right to effective judicial protection and the rights of the defence are based exclusively on an infringement of the principle of legal certainty, the fifth plea must be rejected in its entirety.
The sixth plea, in so far as it alleges infringement of Article 343 TFEU, Article 9 of Protocol No 7 and Rule 5(2) of the Rules of Procedure, in addition to certain fundamental rights of the applicants
110
By the sixth plea, the applicants claim, inter alia, that the contested decisions were adopted in breach of the provisions governing the Parliament’s right to waive immunity, namely, first, Article 343 TFEU, Article 9 of Protocol No 7 and Rule 5(2) of the Rules of Procedure and, second, certain provisions of the Charter.
111
The Parliament and the Kingdom of Spain dispute the applicants’ arguments.
112
As a preliminary point, it should be recalled that the third paragraph of Article 9 of Protocol No 7 provides that ‘immunity … shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members’, without specifying the conditions under which the Parliament must assess whether or not to waive immunity. Parliament thus has a broad discretion when deciding whether to grant or to refuse a request for waiver of immunity, owing to the political nature of such a decision (see, to that effect, judgments of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 59, and of 12 February 2020, Bilde v Parliament, T‑248/19, not published, EU:T:2020:46, paragraph 19).
113
In that respect, Rule 6(1) of the Rules of Procedure provides that ‘any request for waiver of immunity shall be evaluated in accordance with Articles 7, 8 and 9 of the Protocol No 7 on the Privileges and Immunities of the European Union and with the principles referred to in Rule 5(2)’. Under the latter provision, ‘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’.
114
No other provision governs the substantive criteria for examining requests for waiver of immunity. In that context, the committee responsible for examining requests for the waiver of immunity and for submitting a proposal for a reasoned decision to Parliament under Rule 9(4) of the Rules of Procedure (see paragraph 44 above) drew up various communications to its members identifying the principles that it intended to follow in relation to immunity cases. The last is the Notice to the Members of the Committee on Legal Affairs concerning the principles applicable to requests for waiver of immunity, dated 19 November 2019 (‘Notice No 11/2019’). Thus, in points 41 to 44, that notice provides, in essence, that, where the Parliament receives a request for waiver of immunity in respect of facts that are not covered by the immunity under Article 8 of Protocol No 7, but by the immunity under Article 9 of that protocol, it must waive immunity unless it finds that there is fumus persecutionis, that is to say, if it transpires that the purpose of the national prosecution is to damage a Member’s political activity and thus Parliament’s independence. In its written pleadings, the Parliament confirmed that that notice reflected the practice actually followed in examining a request for waiver of immunity.
115
It should also be recalled that the privileges and immunities which Protocol No 7 grants to the European Union have a functional character, inasmuch as they are intended to avoid any interference with the functioning and independence of the European Union, which means, in particular, that those privileges and immunities are accorded solely in the interests of the European Union (see paragraph 99 above).
116
As regards the Court’s review of decisions adopted by the Parliament following a request for waiver of immunity, it follows from the case-law that the EU judicature must verify compliance with the rules of procedure, the material accuracy of the facts adopted by the institution, the absence of a manifest error in the assessment of those facts or the absence of misuse of powers (see judgment of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 60 and the case-law cited; judgment of 1 December 2021, Jalkh v Parliament, T‑230/21, not published, EU:T:2021:848, paragraph 24).
– The alleged infringement of the provisions of Article 343 TFEU, Article 9 of Protocol No 7 and Rule 5(2) of the Rules of Procedure
117
The applicants submit that the Parliament disregarded the limits on its right to waive the immunity conferred by the provisions of Article 343 TFEU, Article 9 of Protocol No 7 and Rule 5(2) of the Rules of Procedure.
118
In the first place, the applicants claim that, in breach of the provisions referred to in paragraph 117 above, and in particular of Rule 5(2) of the Rules of Procedure, the Parliament did not examine whether the waiver of their immunity could undermine the interests of the European Union and in particular the integrity or independence of the Parliament. Thus, it did not consider the potential consequences of a waiver of immunity for the exercise of their parliamentary mandate, even though it could lead to their arrest and pre-trial detention.
119
In that regard, it should be noted that the Parliament, through the Committee on Legal Affairs, defined the principles which it intended to follow in order to determine whether a waiver of immunity would undermine its independence or integrity. It thus applied the fumus persecutionis criterion, since the immunity provided for in Article 9 of Protocol No 7 is to be waived if the Parliament considers that there is no evidence that the legal proceedings against the Member in question were brought with a view to damaging his or her political activity and, therefore, that of the Parliament. The Parliament stated during the procedure that that criterion had been determined taking into account both the objective of safeguarding its independence and its proper functioning, and the need to comply with the principle of sincere cooperation enshrined in Article 4(3) TEU, under which the European Union and the Member States are, in full mutual respect, to assist each other in carrying out tasks which flow from the Treaties.
120
It follows that, by ruling out the existence of fumus persecutionis, the Parliament necessarily considered that a waiver of the applicants’ immunity would not adversely affect its interests, in particular its proper functioning and its independence.
121
According to the applicants, such a conclusion is incorrect since the contested decisions deprive them of the immunity necessary for the performance of their tasks, in breach of Article 343 TFEU, because of the risk that they would be deprived of their liberty following their surrender to the Spanish authorities and would therefore be unable to exercise their mandate.
122
Such an argument is, however, based on confusion between the immunities that Members of the Parliament must have, which must ensure that the Parliament is in a position to carry out its tasks, and the Parliament’s right under the third paragraph of Article 9 of Protocol No 7 to waive parliamentary immunity. Although, as the Court of Justice held in the judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115, paragraph 76), the European Union and, in particular, the members of its institutions must, pursuant to Article 343 TFEU, enjoy the immunities necessary for the performance of their tasks, that provision cannot be interpreted as meaning that the immunity of a Member of the Parliament can never be waived if the continuation of the proceedings in respect of which the waiver of immunity was sought may hinder the exercise of his or her mandate, or even, at the end of those proceedings, lead to the loss of that mandate. Such an interpretation would deprive the third paragraph of Article 9 of Protocol No 7 of all practical effect.
123
In the second place, the applicants maintain that the contested decisions were adopted in breach of the immunities provided for in the first and second paragraphs of Article 9 of Protocol No 7.
124
First, the applicants claim that the contested decisions infringe points (a) and (b) of the first paragraph of Article 9 of Protocol No 7, in so far as they seek to allow the execution of national and European arrest warrants issued in flagrant breach of those provisions.
125
At the outset, it should be noted that, in its examination of the request for waiver of immunity, as stated in paragraph 100 above, it is for the Parliament to ascertain whether the Member concerned enjoys the immunity provided for in Article 9 of the Protocol and, if that is the case, to decide whether or not to waive that immunity on the basis of the third paragraph of Article 9 of Protocol No 7. To that end, it applies the fumus persecutionis criterion.
126
On the other hand, it is not for the Parliament to assess the legality of the acts adopted by the judicial authorities in the course of the proceedings at issue, since that issue falls exclusively within the competence of the national authorities.
127
It follows that it was not for the Parliament, in its examination of the request for waiver of immunity, to make a decision on the legality of the national and European arrest warrants adopted as part of the criminal proceedings at issue. It should also be noted that, contrary to what the applicants claim, the contested decisions do not have the effect of validating or legalising those warrants.
128
Second, the applicants maintain that the contested decisions are wrongly based on the finding that they do not enjoy any immunity under point (a) of the first paragraph of Article 9 of Protocol No 7. In their submission, in essence, under Spanish law to which that article refers, a person who has been charged before acquiring the status of a Spanish Member of Parliament enjoys immunity. In support of their claim, they rely on Article 71(2) of the Spanish Constitution, the second paragraph of Article 751 and Article 753 of the Code of Criminal Procedure, and Article 22(1) of the Senate Regulation.
129
In that regard, it has already been held, in paragraph 103 above, that, in the contested decisions, the Parliament noted that Spanish law, as interpreted by the Spanish courts, applicable by reason of the reference made in point (a) of the first paragraph of Article 9 of Protocol No 7, and which it refused to interpret, did not confer immunity on the applicants in respect of the facts at issue. At the hearing, the Parliament stated that, during the investigation phase of the requests for waiver of immunity, it had not been provided with any evidence capable of calling into question the fact that, as the national case-law now stands, the applicants did not enjoy the immunity provided for in point (a) of the first paragraph of Article 9 of Protocol No 7 and that, otherwise, it would have sought clarification from the Spanish authorities.
130
In so far as, under point (a) of the first paragraph of Article 9 of Protocol No 7, the extent and scope of the immunity enjoyed by Members in their national territory are determined by the various national laws to which it refers (see, to that effect, judgment of 19 March 2010, Gollnisch v Parliament, T‑42/06, EU:T:2010:102, paragraph 106), the applicants are not justified in claiming that the Parliament erred in law by referring to national law as interpreted by the national courts.
131
Furthermore, although the applicants rely on a number of provisions of national law, they have not established that the Parliament erred in stating that national law, resulting in particular from those provisions, was interpreted by the national courts as not requiring parliamentary authorisation to be obtained in order to continue the criminal proceedings against a person who, like the applicants, was elected after being charged.
132
Third, the applicants claim that the immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7 could not be waived without also waiving the immunity provided for in the second paragraph of Article 9 of that protocol, otherwise that second provision would be infringed.
133
It is sufficient to recall that, in the circumstances of the present case, in particular in so far as the Kingdom of Spain had recognised the applicants’ status as Members of the Parliament, the second paragraph of Article 9 of Protocol No 7 did not confer on them any protection separate from that which they enjoyed under the first paragraph of Article 9 of that protocol (see paragraph 107 above). Accordingly, the applicants are not justified in claiming that the contested decisions were adopted in breach of the second paragraph of Article 9 of Protocol No 7.
134
Consequently, the complaint alleging infringement of the provisions of Article 343 TFEU, Article 9 of Protocol No 7 and Rule 5(2) of the Rules of Procedure must be dismissed as unfounded.
– Unlawful interference with the applicants’ fundamental rights
135
The applicants submit, in essence, that, since parliamentary immunity is a crucial guarantee of respect for their right to exercise their mandate guaranteed by Article 3 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and the right to stand for election enshrined in Article 39(2) of the Charter, read in the light of Articles 6, 45 and 48 thereof and Article 21 TFEU, its waiver constitutes an interference with those rights which is subject to compliance with the conditions laid down in Article 52 of the Charter.
136
As a preliminary point, it should be recalled that Article 39(2) of the Charter, under which ‘Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot’, guarantees the right to stand as a candidate in elections to the Parliament. That right to stand includes the individual’s right to stand for election and, once elected, to sit as a Member of the Parliament (see, concerning Article 3 of Protocol No 1 to the ECHR, ECtHR, 11 June 2002, Sadak and Others v. Türkiye (no. 2), CE:ECHR:2002:0611JUD002514494, § 33).
137
According to Article 52(1) of the Charter:
‘1.   Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’
138
Immunity cannot constitute a fundamental right granted to Members of the European Parliament since it is granted exclusively in the interests of the Parliament (see paragraph 99 above). The fact that a decision to waive immunity alters the legal position of the member in question, simply because it removes the protection conferred on that member by Protocol No 7, re-establishing his or her status as a person who is subject to the general law of the Member States and laying him or her open, without the necessity for any intermediary measure, to measures, inter alia those ordering detention and the bringing of legal proceedings, imposed by the general law (see, by analogy, judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 45), is irrelevant in that regard. That fact means only that the applicants are entitled to challenge the contested decisions before the Courts of the European Union.
139
In particular, while the immunity granted to Members of the European Parliament serves to ensure the effectiveness of the fundamental right to stand as a candidate at elections, in particular by allowing persons who have been elected Members of the Parliament to complete the steps necessary to take their seats (see, to that effect, judgment of 19 December 2019, Junqueras Vies, C‑502/19, EU:C:2019:1115, paragraph 86), it cannot be confused with that right.
140
Moreover, the waiver of parliamentary immunity does not in itself have any effect on the exercise of the mandate. It is intended only to allow the national authorities to pursue national proceedings. Thus, only decisions which, as the case may be, will be adopted by the national authorities at the end of those proceedings could lead to a limitation of the exercise of the mandate, or even to its loss, and, as such, constitute an interference with the exercise of the right to stand for election.
141
For the same reasons, a decision to waive immunity has no effect on the applicants’ freedom, in particular their freedom of movement, nor does it infringe their right to respect for the presumption of innocence. It is recalled in that regard that the question whether the conditions for waiver of immunity, pursuant to Article 9 of Protocol No 7, are met at the time when that waiver is requested is distinct from the question whether the facts alleged against the Members in question are established, the latter question falling within the competence of the authorities of the Member State (judgment of 17 September 2020, Troszczynski v Parliament, C‑12/19 P, EU:C:2020:725, paragraph 57).
142
Consequently, the applicants’ arguments that the contested decisions constitute interferences with some of the fundamental rights recognised by the ECHR and by the Charter must be rejected as unfounded. Accordingly, their arguments seeking to establish that those interferences do not comply with the requirements laid down in Article 52(1) of the Charter are ineffective and must be rejected on that ground.
143
It follows from all of the foregoing that the sixth plea, in so far as it is based on the Parliament’s breach of the limits on its right to waive immunity, must be rejected.
The sixth plea, in so far as it alleges errors of fact and of law vitiating the Parliament’s examination of fumus persecutionis and the seventh plea, alleging infringement of the principles of good administration and equal treatment, and manifest errors committed by the Parliament in its assessment of fumus persecutionis
144
The sixth plea alleges, inter alia, in essence, errors of law and of fact committed by the Parliament in its examination of fumus persecutionis. The seventh plea alleges, first, infringement of the principles of good administration and equal treatment in so far as the Parliament departed, without stating reasons, from its previous practice when examining requests for waiver of immunity and, second, manifest errors committed by the Parliament in its assessment of fumus persecutionis.
145
The Parliament and the Kingdom of Spain dispute those arguments.
– The alleged errors of law and fact vitiating the Parliament’s examination of fumus persecutionis
146
In the present case, in the contested decisions, the Parliament considered the immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7 starting from point O and the question whether or not that immunity should be waived starting from point Q. In particular, it stated, in point T, that the accusation against the applicants was clearly not linked to their duties as Members, but related to their previous duties in Catalonia. In point U, it noted that other persons who did not have the status of Members of the European Parliament had also been placed under investigation in respect of the same acts. In point V, it stated that those acts had been committed in 2017 and that the criminal proceedings at issue against the applicants had been brought when their acquisition of the status of Members of the Parliament was still hypothetical. Consequently, the Parliament took the view, in point W, that it had not been able to establish that the legal proceedings at issue had been brought with a view to damaging the applicants’ political activity and, therefore, its own.
147
First, the applicants claim that the contested decisions are based on an error of law as to the purpose of parliamentary immunity. In their submission, the Parliament was wrong to take the view that it protected a Member of Parliament only against legal proceedings in relation to activities carried out in the performance of his or her parliamentary duties or which cannot be separated from those duties. Thus it erroneously concluded that the fact that the criminal proceedings at issue were not connected with the performance of their parliamentary duties justified waiving their immunity.
148
In that regard, it should be noted that point S of the contested decisions reproduces the principle set out in point 3 of Notice No 11/2019, according to which ‘the purpose of parliamentary immunity is to protect Parliament and its Members from legal proceedings in relation to activities carried out in the performance of parliamentary duties and which cannot be separated from those duties’.
149
At the outset, it must be borne in mind that the immunity provided for in Article 8 of Protocol No 7 covers only opinions expressed or votes cast by Members of the Parliament in the performance of their parliamentary duties. By contrast, the immunity provided for in Article 9 of that protocol covers those Members during the sessions of the Parliament, including on the basis of facts unrelated to the performance of parliamentary duties. The scope of that immunity has not been called into question in the present case. It is common ground that the applicants were covered by the immunity provided for in point (b) of the first paragraph of Article 9 of Protocol No 7, even though the criminal proceedings at issue related to activities unrelated to the exercise of parliamentary duties.
150
Next, as regards the assessment of the existence of fumus persecutionis, it must be stated that the Parliament, irrespective of the not unambiguous wording of point S, did not merely state that the facts alleged against the applicants in the criminal proceedings at issue pre-dated their election to the Parliament and, therefore, had no connection with the activities carried out in the course of their parliamentary duties. The Parliament also acknowledged at the hearing that such a fact cannot be decisive for the purpose of assessing the existence of fumus persecutionis.
151
In order to conclude that there was no fumus persecutionis, the Parliament relied on a number of factors which, taken together, were, in its view, such as to rule out the existence of a case of fumus persecutionis. These concern the fact that the alleged offences were committed in 2017, whereas the applicants acquired the status of Members of the Parliament on 13 June 2019, and also the fact that, first, they were charged on 21 March 2018, that is to say, at a time when the status of Members of the European Parliament was hypothetical and, second, that indictment also concerned other persons, who were not Members of the Parliament.
152
Accordingly, it must be held that the general statement in point S of the contested decisions has not been implemented in that the request for waiver of the immunity of a Member of the Parliament must be granted if its aim is to continue legal proceedings concerning facts unrelated to the performance of parliamentary duties.
153
The argument alleging an error of law must therefore be rejected.
154
Second, the applicants submit that the Parliament based its assessment of fumus persecutionis on a factual error as regards the state of progress of the criminal proceedings at issue. They submit that, in point B of the contested decisions, the Parliament wrongly considered that the investigation phase of the criminal proceedings at issue had been closed with respect to them, relying on two orders of the Tribunal Supremo (Supreme Court), including the order of 25 October 2018, which did not concern them.
155
It should be borne in mind that, in point B, the contested decisions state the following:
‘whereas the acts subject to prosecution were allegedly committed in 2017; whereas the order of prosecution in this case was issued on 21 March 2018 and confirmed by subsequent orders dismissing appeals; whereas the investigation was closed by order of 9 July 2018 and confirmed as final on 25 October 2018; whereas by order of 9 July 2018 [the first/the second/the third applicant], among others, was declared to be in contempt of court and a decision was taken to stay proceedings in relation to him[or her] and other persons until they had been found’.
156
At the hearing, it was stated, first, that the third sentence of point B, according to which ‘the investigation was closed by order of 9 July 2018 and confirmed as final on 25 October 2018’, did not concern the applicants, but the other persons who are the subject of the criminal proceedings at issue and who had not refused to appear and, second, that the state of the criminal proceedings at issue against the applicants was reflected in the last sentence of point B, which referred to the suspension of the proceedings. It was also stated that the investigation stage of the criminal proceedings had not been closed in respect of the applicants, since that closure could not be ordered under national law, without the accused being heard.
157
The applicants are therefore justified in claiming that point B of the contested decisions was vitiated by an error of fact or, at the very least, a lack of clarity as to whether the investigation phase of the criminal proceedings at issue had been closed in respect of them.
158
According to the applicants, that error had an impact on the assessment of the existence of fumus persecutionis since, if the Parliament had been aware that the investigation concerning them was still ongoing, it could have taken the view that the issue of European arrest warrants against them was disproportionate.
159
However, it is clear from point B of the contested decisions that the criminal proceedings against the applicants, whatever their stage, were suspended because of the applicants’ refusal to appear before the competent authorities and that it was because of that refusal and of the fact that they left the Kingdom of Spain that the waiver of their immunity was requested so that the execution of the European arrest warrants issued against them could be contemplated. As regards the co-accused who did in fact appear, the investigation was closed and a sentence handed down.
160
In that context, it does not appear that the error or, at the very least, the lack of clarity of the contested decisions as to the exact stage of the criminal proceedings at issue had an impact on the examination of the request for waiver of immunity.
161
It follows from the foregoing that the complaint alleging errors of fact and of law allegedly committed by the Parliament in its assessment of fumus persecutionis must be rejected as unfounded.
– The alleged breach of the principles of good administration and equal treatment
162
The applicants claim that, having failed to have regard to consistent practice, the Parliament concluded that there was no fumus persecutionis even though, first, the charges were manifestly unfounded; second, the existence of a clear intention to penalise Members of Parliament for their political activities had been established; third, the arrest warrants in question had been issued for the third time based on political calculations of the Spanish authorities; fourth, the reason for the requests to waive immunity was the intention to prevent them from performing their parliamentary work; fifth, the prosecutions were initiated by a political adversary; sixth, the prosecutions were initiated only against Members of the Parliament; seventh, there were serious doubts about the respect for their fundamental rights during the criminal proceedings at issue; eighth, there had been several calls for exemplary sanctions to be imposed on them, and, ninth, the public prosecutor had made certain public statements to the media.
163
The applicants also maintain that the Parliament failed to have regard to its practice that immunity should not be waived where Member States other than the one in which the Member was elected penalise the alleged offences less severely, as has been recognised in the present case. The Parliament also disregarded its practice, first, of not waiving immunity where the criminal proceedings relate to accusations in connection with peaceful public demonstrations and meetings and, second, of not taking into account either the date of the alleged acts or the date on which the criminal proceedings were initiated.
164
As a preliminary point, it should be borne in mind that the institutions are under a duty to exercise their powers in accordance with the general principles of EU law, such as the principle of equal treatment and the principle of sound administration. Regard being had to those principles, they must take into account the decisions already taken in respect of similar applications and consider with especial care whether or not they should decide in the same way. That said, the way in which the principles of equal treatment and sound administration are applied must be consistent with respect for legality (see judgment of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 109 and the case-law cited).
165
In that regard, the principle of equal treatment precludes, in particular, comparable situations being treated differently, unless such treatment is objectively justified (see judgment of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 110 and the case-law cited).
166
In the present case, first, in order to establish the existence of a practice of the Parliament refusing to waive the immunity of a Member where that Member is being prosecuted for his or her political activities, where those proceedings have been brought by a political opponent or where the national authorities in question have requested exemplary penalties against that Member, the applicants rely on Notice No 11/2003 of 6 June 2003, drawn up by the Parliament’s Committee on Legal Affairs and the Internal Market, then responsible for issues relating to immunities, which is a summary of the Parliament’s previous decision-making practice. That notice states that immunity will not be waived in cases where the acts in respect of which a Member of Parliament is being prosecuted fall within the scope of his or her political activity or are directly linked to it. That notice also states that immunity will not be waived in the case of fumus persecutionis, which is defined as ‘the presumption that a criminal action has been brought to damage the Member’s political interests’. It refers, by way of examples, to a number of indications from which it may be presumed that such evidence exists. It should be noted that that communication was replaced by Notice No 11/2019 on 19 November 2019, the date of its publication. According to point 53 thereof, Notice No 11/2019 ‘replaces all previous notices and any other documents of the [Parliament’s] Committee on Legal Affairs regarding its practices and modalities of work in the field of immunities’, including, in particular, Notice No 11/2003.
167
Second, the Parliament claims that the practice, as summarised in Notice No 11/2003, was abandoned in the sense of limiting cases in which the Parliament refuses to waive immunity. It should be noted that Notice No 11/2019, like the previous Notice No 11/2016, adopted on 9 May 2016, defines fumus persecutionis as the only case in which immunity must not be waived, without specifying the criteria to be taken into account for the purposes of establishing its existence or identifying categories of cases in which fumus persecutionis should be presumed.
168
Third, in so far as the applicants rely on the consistent practice of the Parliament refusing to waive immunity if the purpose of the legal proceedings at issue is to hinder the exercise of a Member’s parliamentary duties, it should be noted that the existence of that practice is not disputed and that it is that approach which was followed by the Parliament in the present case.
169
Fourth, in order to establish the existence of a consistent practice on the part of the Parliament as regards the factors to be taken into account for the purposes of identifying fumus persecutionis and, more generally, as regards cases in which the Parliament refuses to waive the immunity of one of its Members, the applicants merely rely on certain decisions adopted by the Parliament, without, however, showing how those decisions are capable of establishing the existence of such a practice.
170
It should also be noted that most of the decisions relied on by the applicants were adopted between 1982 and 2003. They therefore form part of the practice summarised in Notice No 11/2003, which was expressly withdrawn by the Parliament, and which, according to the Parliament, is obsolete. The applicants rely on only a dozen decisions adopted from 2004 onwards. The most recent, made during the 2014–2019 parliamentary term, are seven in number. Four of them are decisions by which the Parliament waived the immunity of the Members concerned after concluding that there was no fumus persecutionis and are relied on by the applicants in order to establish the undisputed practice referred to in paragraph 168 above.
171
Fifth, as the Parliament submits, each decision adopted in response to a request for waiver of immunity is intrinsically linked to the particular circumstances of the case. The Parliament asserts, without being contradicted, that, to its knowledge, it never had to deal with a request for waiver of a Member’s immunity with the aim of enabling the execution of an arrest warrant issued in order to continue criminal proceedings brought before the Member’s election.
172
In the light of all those factors, the view must be taken that, subject to the undisputed practice referred to in paragraph 168 above and followed in the present case, the applicants have not established the existence, at the date of the contested decisions, of a consistent practice on the part of the Parliament of refusing to waive immunity in the cases referred to in paragraphs 162 and 163 above. The complaint alleging breach of the principles of good administration and equal treatment must therefore be rejected.
– The alleged manifest errors in the assessment of fumus persecutionis
173
The applicants submit that the Parliament could waive immunity only after it had ruled out the existence of fumus persecutionis. They maintain that the Parliament committed manifest errors in its assessment of the existence of that fumus persecutionis by failing to take into account the evidence which they had submitted to it. Thus, the Parliament wrongly formed the basis of its assessment by taking into account the ‘original’ criminal proceedings and the first European arrest warrants, which were however lifted, when it should have taken into account the ‘re-issuing’ of the criminal proceedings, that is to say, the European arrest warrants of 14 October and 4 November 2019. In so doing, the Parliament ignored a series of relevant considerations, in particular the fact that no European arrest warrant had been in force with respect to them since 18 July 2018 and that the last European arrest warrants had been issued only after their election to the Parliament, following the failure of the Spanish authorities’ manoeuvres intended to prevent them from standing in the elections and then from swearing an oath. The sole purpose of those warrants is to prevent them from sitting in the Parliament, when they are the only representatives of the Catalan minority.
174
In the first place, in so far as the applicants claim that the Parliament erred in assessing the existence of fumus persecutionis in the light of the criminal proceedings at issue and not only of the European arrest warrants issued in October and November 2019, it must be borne in mind that fumus persecutionis is established where there is evidence that the judicial proceedings were instituted with the intention of damaging the Member’s political activity. Those European arrest warrants fall precisely within the criminal proceedings at issue brought against the applicants, which had been suspended because of their refusal to appear before the competent national authorities. Those warrants seek to have the applicants arrested in Member States other than the Kingdom of Spain with a view to their surrender to the authorities of that Member State so that the criminal proceedings at issue can be resumed. Accordingly, the applicants are not justified in claiming that the Parliament committed an error in the relevant judicial proceedings for the purpose of assessing the existence of fumus persecutionis.
175
The applicants also complain that the Parliament failed to take into account the fact that they had each been the subject of two previous European arrest warrants, one in November 2017, which had been lifted the following month, the other in March 2018, which had been lifted in July 2018, and that therefore they had not been the subject of a European arrest warrant since that date. According to the applicants, that fact is capable of establishing that the European arrest warrants of 14 October and 4 November 2019, issued after their election to the Parliament, were intended to interfere with the performance of their duties at the Parliament.
176
In that regard, it is apparent from the submissions made at the hearing that an abnormally long period between the acts alleged against a Member of the Parliament and the bringing of proceedings against him or her may, in the absence of justification, constitute a relevant factor for the assessment of fumus persecutionis. That could also be the case if such a period had elapsed between the lifting of the first arrest warrant and the issue of a new warrant.
177
However, in the present case, it should be noted that the period between the lifting of the European arrest warrants issued in March 2018 and the issue of the European arrest warrants on 14 October and 4 November 2019 is less than 16 months. Furthermore, the Kingdom of Spain stated that the latter European arrest warrants were issued after the conviction judgment of 14 October 2019 delivered in respect of other accused persons, in the light of which the charges against the applicants were partially amended.
178
In that context, the applicants are not justified in claiming that, by failing to take account of the absence of European arrest warrants during the period between July 2018 and October or November 2019, the Parliament committed a manifest error of assessment.
179
In the second place, the applicants claim that the accusations against them are manifestly unfounded. Thus, they would be prosecuted for the unlawful organisation of a referendum which no longer constitutes a criminal offence in Spain. They also rely on statements and decisions of human rights organisations, legal opinions, court decisions and political statements. In addition, the applicants claim that the legislation of the other Member States penalises the acts complained of less severely or does not classify them as a criminal offence. They add that, on the date of the contested decisions, a reform was underway in Spain, with a view to redefining, or even eliminating, the offence of sedition and that nine persons convicted by that judgment of 14 October 2019 were granted a pardon on 22 June 2021. They add that not all the persons concerned by the facts at issue were prosecuted.
180
In that regard, the question whether the conditions for waiver of parliamentary immunity, pursuant to Article 9 of Protocol No 7, have been met at the time when the request is made is separate from the question whether the facts alleged against the Members concerned have been established, that question falling within the competence of the authorities of the Member State (see paragraph 141 above). Similarly, in the context of the examination of a request for waiver of immunity, it is not for the Parliament to decide on the appropriateness of the prosecution (see, to that effect, judgments of 17 October 2018, Jalkh v Parliament, T‑26/17, not published, EU:T:2018:690, paragraph 83, and of 30 April 2019, Briois v Parliament, T‑214/18, not published, EU:T:2019:266, paragraph 47) nor, in that context, to assess the appropriateness of the provisions of national law creating the offences in respect of which the Members concerned have been prosecuted.
181
Furthermore, in the present case, it is common ground that the applicants have been charged with alleged offences under the Ley Orgánica del Código Penal (Criminal Code) in force both at the time of the facts complained of and on the date of the contested decisions.
182
It follows that, since they seek to call into question the truth of the facts alleged against the applicants, their classification under Spanish criminal law and the question whether or not those facts justified criminal proceedings against them, the arguments referred to in paragraph 179 above are ineffective and must be rejected on that ground.
183
In the third place, as has been stated in paragraph 151 above, in order to conclude that there was no fumus persecutionis, the Parliament relied on a number of factors, considered together, namely the fact that the alleged offences were committed in 2017, whereas the applicants acquired the status of Members of the Parliament on 13 June 2019 and the facts that, first, they were charged on 21 March 2018, that is to say, at a time when the acquisition of the status of Members of the European Parliament was hypothetical and, second, that that indictment also covered other persons who were not Members of the Parliament.
184
In so doing, the Parliament took the view that those facts, considered together, were such as to rule out any suspicion of fumus persecutionis, despite the evidence put forward by the applicants. It follows that their argument that the Parliament waived their immunity without having ruled out the existence of fumus persecutionis has no factual basis and must be rejected on that ground.
185
Next, in so far as the applicants complain that the Parliament did not examine the alleged irregularities in the criminal proceedings at issue, it should be borne in mind that, in its assessment of the existence of fumus persecutionis, it is not for the Parliament to assess the legality of acts adopted by the judicial authorities in the course of the proceedings at issue, since that question falls solely within the competence of the national authorities (see paragraph 126 above). Moreover, those authorities were in fact seised by the applicants. That said, it cannot be ruled out that, in the exercise of its very wide discretion, the Parliament may rely on certain facts relied on in support of those irregularities in order to conclude that there is a case of fumus persecutionis.
186
In the present case, it must be held that the applicants have not established that, by relying on the circumstances referred to in paragraph 183 above in order to rule out the existence of fumus persecutionis, the Parliament committed a manifest error of assessment. In particular, in the light of those circumstances, the facts that (i) the applicants are being prosecuted for their national political activities; (ii) they could, as part of or at the end of the criminal proceedings at issue, be temporarily prevented from exercising their mandate or even, as the case may be, lose that mandate; (iii) the Spanish party VOX brought the popular action in the criminal proceedings at issue, and (iv) they were targeted by certain negative public statements, in particular calling for exemplary penalties to be imposed on them, are not capable of calling that conclusion into question. The same applies to the applicants’ claims challenging the impartiality of the judicial authorities involved in the criminal proceedings at issue. Lastly, in order to establish the existence of a manifest error on the part of the Parliament in the assessment of fumus persecutionis, the applicants cannot reasonably rely on events subsequent to the contested decisions, such as the fact that they themselves and their advisers were spied on by the Spanish authorities and the communication from the Central Electoral Commission of 3 November 2022.
187
Accordingly, the sixth plea, in so far as it alleges errors of fact and of law vitiating the Parliament’s examination of fumus persecutionis, and the seventh plea must be rejected.
The eighth plea, alleging infringement of the principles of good administration and equal treatment in so far as the Parliament refused to apply Rule 9(7) of the Rules of Procedure
188
The applicants claim that the Parliament departed without reason from its practice by which, where there is a risk that a Member of Parliament may be arrested without being convicted, the Parliament either refuses to waive immunity or applies Rule 9(7) of the Rules of Procedure.
189
The Parliament and the Kingdom of Spain contend that the eighth plea is unfounded.
190
In order to establish the Parliament’s failure to comply with an earlier practice of not waiving immunity or of applying Rule 9(7) of the Rules of Procedure in cases where there is a risk that one of its Members will be arrested without having been convicted beforehand, the applicants rely on certain decisions adopted by the Parliament on immunity from 1984 to 2011.
191
However, first, the applicants merely rely on those decisions without actually showing how they are capable of establishing the existence, on the date of the contested decisions, of the alleged practice.
192
Second, the applicants have not established how those decisions relate to situations comparable to their own. In that regard, it should be noted that, in the present case, the requests for waiver of immunity are intended to enable the execution of European arrest warrants which were issued after the applicants refused to appear before the competent Spanish authorities. They are thus intended to enable the arrest of the applicants with a view to their surrender to the Spanish authorities so that the criminal proceedings at issue may continue. However, none of the decisions relied on relates to such a situation.
193
Accordingly, the eighth plea must be rejected.
The fourth plea alleging, in essence, infringement of the right to be heard.
194
The fourth plea consists, in essence, of two parts.
195
By the first part, the applicants submit that they were not heard in relation to a number of documents to which they did not have access. They add that it cannot be excluded that those documents had a decisive influence on the contested decisions. By the second part, the applicants claim that the Chair of the Committee on Legal Affairs hindered their right to be heard during the hearing and that the rapporteur was not present for the first applicant’s introductory statements. In the reply, the applicants submit that the Parliament’s position in its pleadings as regards the inadmissibility of Annex 44 to the application, that is to say, the observations submitted by the applicants to the Committee on Legal Affairs on 15 February 2021, appears to prove that those observations were not taken into account, even though they could have influenced the outcome of the requests for waiver of immunity.
196
The Parliament and the Kingdom of Spain dispute those arguments.
197
Under Article 41(2)(a) of the Charter, the right to good administration includes the right of every person to be heard before any individual measure is taken which would affect him or her adversely. That right, which is part of the rights of defence, is a fundamental principle of EU law (see, to that effect, judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraphs 64 and 65 and the case-law cited). It guarantees to every person the possibility, prior to the adoption of the decision concerning him or her, of expressing his or her views on the reality and relevance of the facts and circumstances on the basis of which that decision is adopted (see judgment of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 176 and the case-law cited).
198
According to the case-law, an infringement of the rights of the defence, in particular the right to be heard, results in the annulment of the decision taken at the end of the procedure at issue only if, had it not been for that irregularity, the outcome of the procedure might have been different. In that regard, an applicant who pleads infringement of his or her rights of defence cannot be required to show that the decision of the EU institution concerned would have been different in content, but simply that such a possibility cannot be totally ruled out. The assessment of that question must, moreover, be made in the light of the factual and legal circumstances of each case (see, to that effect, judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraphs 105 to 107 and the case-law cited).
199
It is in the light of those principles that the two parts of the fourth plea must be assessed.
– The first part, alleging that the applicants did not have access to three documents
200
First, the applicants claim that they were not heard on the subject of the order of 25 October 2018, on which the Parliament relied in order to consider, wrongly, that the criminal investigation had been closed, and which was not in the file.
201
In that regard, it should be recalled that that order does not concern the applicants, but the other persons concerned by the criminal proceedings at issue, who did not refuse to appear (see paragraph 156 above).
202
In addition, the view was taken that it did not appear that the error or, at the very least, the lack of clarity of the contested decisions as to the exact stage of the criminal proceedings at issue had an impact on the examination of the request for waiver of immunity (see paragraph 160 above).
203
It follows that, even if an infringement of the right to be heard could be established in so far as the applicants were not given the opportunity to submit their observations on that order, it would not be such as to justify annulment of the contested decisions.
204
Second, the applicants claim that they were not able to express their views on the arguments put forward by the Kingdom of Spain in the notifications dated 11 June 2014 and 30 September 2020 addressed to the Parliament concerning the competent authority as regards a request for the waiver of a Member’s immunity (see paragraphs 81 and 82 above), which were not communicated to them.
205
However, it has not been disputed that, as the national case-law stands, it is the Criminal Chamber of the Tribunal Supremo (Supreme Court) which is competent to request the waiver of the immunity of a Member of the Parliament elected for the Kingdom of Spain (see paragraph 84 above). It follows that the applicants have not established that the content of the contested decisions might have been different if they had been heard on those notifications from the Kingdom of Spain.
206
Third, the applicants claim that, despite their request, they did not have access to the ‘traditional communication to members [of the Committee on Legal Affairs]’, drawn up by the rapporteur, provided for in the Committee’s notice of 10 February 2015, which consists of a summary of the principal facts relating to each immunity case drawn up by the rapporteur and a complete list of the documents received.
207
The Parliament asserts, however, without being contradicted, that no ‘traditional communication’ was drawn up in the present case, since that communication was provided for in the Notice of 10 February 2015, which was replaced by Notice No 11/2019 which no longer refers to it.
208
Fourth, following the production of the defence and the annexes thereto, the applicants claim in the reply that they did not have access to Notice No 1/20, that is to say, to the cover note to the members of the Committee on Legal Affairs of the requests for waiver of immunity of the first and second applicants, attached to which was an extract from the judgment of the Tribunal Supremo (Supreme Court) of 14 October 2019 convicting the persons concerned by the criminal proceedings at issue who had not refused to appear.
209
In that regard, it should be noted that the requests for waiver of the applicants’ immunity were accompanied by several annexes, identified in the orders referred to in paragraphs 11 and 15 above, including the judgment of the Tribunal Supremo (Supreme Court) of 14 October 2019 referred to above. It is not disputed that the applicants were able to submit their observations on those documents, which were part of the immunity waiver file accessible to the applicants. Notice No 1/20, which is merely a cover note, does not add any substantial evidence to those documents in respect of which the applicants should have been given the opportunity to submit their observations. Therefore, even if Notice No 1/20 was not brought to the attention of the applicants, which is disputed by the Parliament, that fact has no bearing on the outcome of the contested decisions. The argument must therefore be rejected, without there being any need to rule on the plea of inadmissibility raised by the Parliament.
210
Accordingly, the first part of the fourth plea must be rejected.
– The second part, alleging infringement of the right to be heard at the hearing of the applicants
211
The third paragraph of Rule 9(6) of the Rules of Procedure provides that the Chair of the Committee on Legal Affairs is to invite the Member whose immunity has been asked to be waived to a hearing and that the Member may renounce his or her right to be heard. It should also be noted that, according to point 20 of Notice No 11/2019, included in the ‘Hearings’ section, the Member whose immunity is under discussion or the Member representing him or her may speak only during the optional hearing. He or she may make an introductory statement, which should not last longer than approximately 15 minutes, following which he or she should briefly answer the questions asked by members of the Committee. Furthermore, under the heading ‘Speaking time’, point 11 of that notice provides that, in view of the limited time available to the Committee on Legal Affairs to examine immunity cases, speaking time is strictly regulated by the Chair. Point 13 also specifies that, in the event of a hearing, the members of the Committee on Legal Affairs other than the rapporteur may speak briefly in order to ask questions.
212
In the present case, the applicants complain that the Chair of the Committee on Legal Affairs strictly followed the principles set out in paragraph 211 above, when the complexity of the cases in question justified the Chair’s departure from those principles, and that the rapporteur did not attend the first applicant’s preliminary observations.
213
In that regard, it is common ground that the applicants each had 15 minutes to submit their preliminary observations and that they were able to answer questions put by the members of the Committee on Legal Affairs, in accordance with the principles laid down in Notice No 11/2019.
214
It should also be borne in mind that the applicants sent, on several occasions, to the Committee on Legal Affairs their observations together with evidence which they considered relevant to the examination of the requests for waiver of immunity. They were therefore able, also by that means, to exercise their right to be heard by making their views known during the proceedings. In that regard, it has not been established and it is not apparent from the Parliament’s observations on the formal presentation of Annex A44, consisting of the observations submitted on 15 February 2021 by the applicants to the members of the Committee on Legal Affairs and their annexes, that that committee did not take that annex into account before adopting the contested decisions.
215
As regards the fact that the rapporteur was not physically present when the first applicant submitted his preliminary observations at the meeting of the Committee on Legal Affairs of 14 January 2021, it is not stated how such a fact contravenes the Rules of Procedure or undermines the right to be heard. Moreover, the Parliament states, without being challenged, that the rapporteur attended remotely at the beginning of that meeting until a technical problem led him to participate physically.
216
It follows that the second part of the plea must be rejected as unfounded.
217
Accordingly, the applicants are not justified in claiming that their right to be heard was infringed. It is also necessary to reject, in any event and as a consequence, the complaint alleging infringement of the right of access to documents and of the right to effective judicial protection which, in the absence of any argument by the applicants in that regard, is based exclusively on the alleged infringement of the right to be heard.
218
The fourth plea must therefore be rejected.
The third plea, alleging infringement of the principle of impartiality
219
The third plea is based on an alleged infringement of the principle of impartiality laid down in Article 41(1) of the Charter, which also results in an infringement of Article 15 TFEU, and of Article 39(2) and Articles 47 and 48 of the Charter. The third plea consists of four parts, alleging, first, that the appointment of a single rapporteur for three immunity cases was irregular, second, that the rapporteur lacked impartiality and, third, that the Chair of the Committee on Legal Affairs lacked impartiality. By the fourth part, the applicants claim that the fact that the proceedings of that committee were held in camera hinders their ability to demonstrate the impact of bias on the part of the rapporteur and the Chair of that committee on the contested decisions.
220
The Parliament, supported by the Kingdom of Spain, disputes those arguments.
221
As a preliminary point, in the first place, it should be recalled that the institutions, bodies, offices and agencies of the European Union are required to respect the fundamental rights guaranteed by EU law, which include the right to good administration, enshrined in Article 41 of the Charter.
222
Article 41 of the Charter states, inter alia, in paragraph 1 that every person has the right to have his or her affairs handled impartially and fairly by the institutions, bodies, offices and agencies of the Union. That right reflects a general principle of EU law (see, to that effect, judgment of 20 December 2017, Spain v Council, C‑521/15, EU:C:2017:982, paragraphs 88 and 89). The need for impartiality, thus required of institutions and bodies in carrying out their missions, is intended to guarantee equality of treatment, which is at the heart of the European Union (see judgment of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 26 and the case-law cited).
223
That requirement is intended, inter alia, to avoid a situation where there could be a conflict of interest on the part of officials or agents acting on behalf of those institutions and bodies. Having regard to the fundamental importance of ensuring the independence and probity of EU institutions and bodies as regards both their internal functioning and external reputation, the requirement of impartiality covers all circumstances in which an official or agent who is called upon to decide on an issue must reasonably consider that issue as being of such a nature as to be viewed by third parties as a possible source of impairment of his or her independence in that matter (see judgment of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 26 and the case-law cited).
224
Such a requirement of impartiality also applies to Members of the Parliament involved in the adoption of decisions falling within the administrative functions of the Parliament (see, to that effect, judgments of 7 November 2019, ADDE v Parliament, T‑48/17, EU:T:2019:780, paragraph 61, and of 12 October 2022, Vasallo Andrés v Parliament, T‑496/21, not published, EU:T:2022:628, paragraphs 20 to 24).
225
As to the decisions, of a political nature, by which the Parliament makes a decision on a request for waiver of immunity (see paragraph 112 above), it must be borne in mind that they are capable of bringing about a distinct change in the individual legal situation of the Member in question by removing the protection which that immunity confers on him or her and that, to that extent, they may be the subject of an action for annulment. In that context, and as the Vice-President of the Court of Justice observed in the order of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain (C‑629/21 P(R), EU:C:2022:413, paragraph 192), the procedure which may lead to the adoption of such a decision must necessarily be accompanied by sufficient individual guarantees.
226
The Parliament thus established an investigation phase of the request for waiver of immunity entrusted to the committee responsible, in the present case the Committee on Legal Affairs, which is responsible for drawing up the draft decision put to a vote in plenary session. In the context of that investigation phase of the request for waiver of immunity, it must be noted that, according to the Rules of Procedure, the Member concerned enjoys the rights provided for in Article 41(2) of the Charter, namely the right to be heard, the right to have access to his or her file and the obligation for the Parliament to give reasons for its decision. During that phase, the Member concerned must also enjoy the right, provided for in Article 41(1) of the Charter, to have his or her affairs handled impartially and fairly, as was acknowledged by the Parliament in its written pleadings and at the hearing. However, that requirement of impartiality must necessarily take account of the fact that the Members of the Parliament, who are members on that committee, are not, by definition, politically neutral, which distinguishes them from officials and other servants acting on behalf of the EU institutions, bodies, offices and agencies.
227
In the second place, the requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as the institution concerned must offer sufficient guarantees to exclude any legitimate doubt in that regard (see, to that effect, judgment of 25 February 2021, Dalli v Commission, C‑615/19 P, EU:C:2021:133, paragraph 112 and the case-law cited).
228
It is in the light of those considerations that the Court will examine the third plea.
– The first part of the third plea, alleging the appointment of a single rapporteur for the three cases
229
By the first part, the applicants claim that the Parliament appointed, secretly and without stating reasons, a single rapporteur to examine the three requests for waiver of immunity in breach of points 6 and 8 of Notice No 11/2019. In their view, failure to comply with that essential procedural requirement constitutes an infringement of their right, guaranteed by Article 41(1) of the Charter, to have their affairs handled impartially and fairly.
230
In that regard, it should be borne in mind that Rule 9 of the Rules of Procedure, entitled ‘Procedures on immunity’, provides that requests for waiver of immunity, if they are announced in Parliament, are to be referred to the committee responsible, which is to submit a proposal for a reasoned decision, after giving the Member concerned the opportunity to be heard and, where appropriate, requesting information or explanations from the authority concerned. Rule 9 also provides in paragraph 11 that the committee is to treat matters relating to immunities with the utmost confidentiality. As to the remainder, it is the committee responsible which determines the arrangements for the application of Rule 9, pursuant to paragraph 13 of that rule, and therefore the procedure to be followed in order to draw up the proposal for a decision to be submitted to the Parliament meeting in plenary session.
231
In that context, the Committee on Legal Affairs adopted Notice No 11/2019, which sets out rules of conduct indicating the practice that it intends to follow when handling requests for waiver of immunity (judgment of 1 December 2021, Jalkh v Parliament, T‑230/21, not published, EU:T:2021:848, paragraph 44; see also, by analogy, judgment of 12 February 2020, Bilde v Parliament, T‑248/19, not published, EU:T:2020:46, paragraph 24).
232
Notice No 11/2019 provides, in point 6, that the committee responsible is to appoint a rapporteur for ‘each immunity case’. According to point 7 of that notice, it is for each political group to indicate a Member who acts as a standing rapporteur for immunity cases and performs the duties of coordinator ‘in order to ensure that immunity cases are dealt with by experienced Members’. Point 8 of that notice provides that, for each immunity case, the position of rapporteur will be rotated on an equal basis between the political groups, but the rapporteur may not be a member of the same political group, or be elected in the same Member State, as the Member whose immunity is under discussion.
233
It follows that, as was confirmed at the hearing, each political group of the Parliament appoints, from among its members sitting on the Committee on Legal Affairs, a permanent rapporteur for immunity cases. Since the Parliament has seven political groups for the 2019–2024 legislative period, seven Members were thus appointed to carry out the duties of rapporteur in immunity cases. The Committee on Legal Affairs entrusts each request for waiver of immunity to one of those rapporteurs, in accordance with a system of rotation of roles established on an equal basis between the political groups, which in principle is derogated from only if the rapporteur of the group in question withdraws, in which case the matter is to be entrusted to the rapporteur appointed by the next political group.
234
In the present case, it should be noted at the outset that the applicants claim that the appointment of a single rapporteur to examine the three requests for waiver of immunity, allegedly in breach of points 6 and 8 of Notice No 11/2019, infringes their right, guaranteed by Article 41(1) of the Charter, to have their affairs handled impartially and fairly. Subject to the question of the impartiality of the designated rapporteur, which will be examined in the second part of the plea, they do not produce any evidence to establish how the alleged breach of those points of Notice No 11/2019 amounts to an infringement of that right.
235
Next, as regards the alleged infringement of point 6 of Notice No 11/2019, it should be noted that a rapporteur, admittedly identical, was appointed for each request for waiver of immunity. The principle set out in that point was thus observed.
236
As regards the principle of equal rotation of the position of rapporteur set out in point 8 of Notice No 11/2019, it cannot be interpreted as precluding the appointment of a single rapporteur to examine a number of connected immunity cases where, as in the present case, the requests for waiver of immunity concern Members who are the subject of the same criminal proceedings.
237
Moreover, even if it is accepted that point 8 of Notice No 11/2019 has been disregarded, it must be borne in mind that, among the provisions governing the internal procedures of an institution, a distinction must be made between, on the one hand, those in respect of which natural and legal persons cannot plead infringement, because they concern only the rules governing the internal functioning of the institution and can have no effect on the legal situation of those persons, and, on the other, those provisions which, if infringed, may, on the contrary, be relied on as they create rights and are a factor contributing to legal certainty for those persons (see judgment of 28 November 2019, Portigon v SRB, T‑365/16, EU:T:2019:824, paragraph 135 and the case-law cited; see also, to that effect, judgments of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraphs 49 and 50, and of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 132). Point 8 does not enshrine a right in favour of those Members, nor does it appear to be a factor contributing to legal certainty for them. It seeks to organise the internal functioning of the Parliament, by ensuring equal treatment for political groups within it. It is thus a purely internal measure of organisation, infringement of which is not such as to affect the legality of the contested decisions.
238
The first part of the third plea must therefore be rejected.
– The second part of the third plea, alleging a lack of impartiality on the part of the rapporteur
239
By the second part, the applicants submit that the Parliament infringed an essential procedural requirement by appointing an absolutely partial rapporteur. The rapporteur belongs to the same political group in the Parliament as that of the Members elected for the Kingdom of Spain who belong to the Spanish political party VOX, that is to say, the European Conservatives and Reformists Group (ECR). The VOX party, along with the Spanish Public Prosecutor’s Office and the Spanish State Counsel, initiated the criminal proceedings against the applicants in which the waiver of their immunity was sought. That party shows a particular animosity towards the applicants. The applicants add that the rapporteur showed his bias before and after the adoption of the contested decisions. Thus, in the Parliament, the rapporteur organised and chaired a meeting with that Spanish party at which clearly hostile language was used with regard to the applicants. That lack of impartiality is confirmed by statements made by the rapporteur following the adoption of the contested decisions and by the reactions of the Spanish VOX party. The applicants also rely on the ties of friendship between the rapporteur and the members of the VOX party.
240
The applicants stated at the hearing that they mainly called into question the subjective impartiality of the rapporteur, while pointing out that the evidence adduced established, at the very least, a breach of the obligation of objective impartiality.
241
As a preliminary point, it is not disputed that the rapporteur for the request for waiver of the first applicant’s immunity was appointed in accordance with the rotation of roles established between the political groups. The applicants claim, however, that that rapporteur, who was also responsible for examining the requests for waiver of the immunity of the second and third applicants, should have withdrawn or been recused in view of his lack of impartiality.
242
In that regard, first, it is appropriate to recall the political nature of the decisions by which the Parliament decides on a request for waiver of immunity (see paragraph 225 above).
243
It should also be noted that the investigation stage of the request for waiver of immunity is conducted by a parliamentary committee, that is to say, a political body whose composition seeks, according to Rule 209 of the Rules of Procedure, to reflect the plurality which exists within the Parliament, the allocation of seats being, as far as possible, proportionate to the representation of political groups within the Parliament. As stated in paragraph 231 above, that committee appoints, from among its members, the rapporteur in accordance with a system of equal rotation between the political groups. It follows that, if the rapporteur’s task is entrusted to a Member of a given political group, that Member acts in the context of a committee whose composition reflects the balance of political groups within the Parliament.
244
In that context, the impartiality of a Member of Parliament during that investigation phase, such as the rapporteur, cannot, in principle, be assessed in the light of his or her political ideology or in the light of a comparison between his or her political ideology and that of the Member concerned by the request for waiver of immunity. In particular, the fact that the rapporteur belongs to a national political party or to a political group constituted within the Parliament, whatever their values and ideas, and even if those values and ideas could reveal sensitivities that are a priori unfavourable to the situation of the Member concerned by the request for waiver of immunity, has, in principle, no bearing on the assessment of the rapporteur’s impartiality. In that regard, it has already been held that the difference in political ideology between the rapporteur and the Member concerned by the request for waiver of immunity was not, in itself, capable of affecting the procedure for the adoption of the contested decision (judgment of 1 December 2021, Jalkh v Parliament, T‑230/21, not published, EU:T:2021:848, paragraph 46).
245
It follows that, in the present case, the fact that the rapporteur belongs to the European Conservatives and Reformists political group, is, in principle, irrelevant to the assessment of the rapporteur’s impartiality.
246
It is true that that political group also includes the members of the VOX political party which, as the Vice-President of the Court of Justice noted in the order of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain (C‑629/21 P(R), EU:C:2022:413, paragraph 202), has been placed in a very special situation with regard to the applicants, since it is behind the criminal proceedings at issue. However, that special situation concerns Members of the VOX political party and cannot extend, as a matter of principle, to all the members of the European Conservatives and Reformists political group on the sole ground that, since they belong to the same group, they share political affinities.
247
Second, the applicants submit that the rapporteur chaired a meeting of the VOX political party within the Parliament, during which he supported the slogan ‘Lock Puigdemont up’.
248
At the outset, it must be noted that the summary of that complaint is set out in the application and that it is supported by evidence contained in identified annexes, namely a link to a video. Therefore, in accordance with the case-law cited in paragraph 34 above, the plea of inadmissibility raised by the Parliament in that regard must be rejected.
249
Next, it is common ground that, in the course of his duties as a Member of the Parliament, the rapporteur organised and participated in an event held on 6 March 2019, on the premises of the Parliament, involving an intervention by the Secretary-General of the VOX political party on the theme ‘Cataluña es España’ (Catalonia is Spain). He closed his speech with these words ‘Viva España, viva Europa y Puigdemont a prisión’ (Long live Spain, long live Europe and lock Puigdemont up).
250
First, it is common ground that, during that event, the rapporteur did not express his views orally. It is apparent from the recording of that event that, although the rapporteur was present at the table of speakers, alongside the Secretary-General of the VOX party and two other Members of the Parliament, only the Secretary-General of that party intervened orally.
251
Second, the organisation of such an event may be regarded as an expression of the rapporteur’s support for the ideas advocated by that political party concerning, in particular, given the theme of the event, the political situation in Catalonia and his opposition to the political ideas supported by the applicants. While it is true that the facts alleged against the applicants in the criminal proceedings at issue concern the political situation in Catalonia in so far as they relate to the adoption of the laws referred to in paragraph 2 above and to the holding of the referendum on self-determination referred to in the same paragraph, the expression, by the Member, a future rapporteur in the cases to waive the applicants’ immunity, of his position on that situation cannot, for the reasons set out in paragraphs 244 and 246 above, suffice to constitute a breach of the principle of impartiality. It should be added that, as stated in paragraph 141 above, the questions whether the facts alleged against the applicants have been established, whether or not those facts justified criminal proceedings being brought against them and whether the provisions of national law establishing the offences in respect of which the applicants were prosecuted were appropriate are separate from the question whether the conditions for waiver of parliamentary immunity, pursuant to Article 9 of Protocol No 7, were met at the time when the request was made. The latter issue is the only one examined by the rapporteur.
252
Third, in the reply, the applicants refer to certain events which occurred after the contested decisions and which show that the rapporteur was not impartial.
253
First of all, it must be borne in mind that, under Article 85(1) of the Rules of Procedure of the General Court, evidence produced or offered must be submitted in the first exchange of pleadings. Article 85(2) of those rules of procedure states that in reply or rejoinder a main party may produce or offer further evidence in support of his or her arguments, provided that the delay in the submission of such evidence is justified.
254
In so far as the applicants rely on an interview with the rapporteur in a Bulgarian newspaper, dated the day following the adoption of the contested decisions, and thus prior to the lodging of the application, it should be noted that that document was produced in the reply, without the applicants justifying its late production. Accordingly, that evidence must be rejected as inadmissible, as requested by the Parliament.
255
Moreover, the various reactions of the political party VOX expressed after the adoption of the contested decisions and the lodging of the application, in particular the expressions of satisfaction with regard to the report drawn up by the rapporteur, are not such as to establish the rapporteur’s lack of impartiality. The same is true of the applicants’ claim that the rapporteur was subject to an administrative penalty for his behaviour in the Chamber for facts unrelated to the present case.
256
Fourth, the applicants do not claim that the rapporteur was in a situation of a conflict of interests, which exists, according to Rule 3(1) of Annex I to the Rules of Procedure, ‘where a Member of the European Parliament has a personal interest that could improperly influence the performance of his or her duties as a Member’. More generally, the applicants do not invoke any personal interest of the rapporteur capable of affecting his impartiality in the performance of his duties. Similarly, the applicants do not refer to any statement by the rapporteur to show that he approached his task with a personal bias that was separable from his political ideology.
257
It follows that the second part of the third plea must be rejected as unfounded.
– The third part of the third plea, alleging a lack of impartiality on the part of the Chair of the Committee on Legal Affairs
258
The applicants claim that the Chair of the Committee on Legal Affairs offered no guarantee of impartiality for the reasons set out in the observations which they communicated to that committee, annexed to the application. They state, in particular, that he and the national political party to which he belongs have displayed a fierce hostility towards them by leading a strategy to prevent them from taking their seats in the Parliament.
259
In that regard, it is apparent from the considerations set out in paragraphs 33 to 37 above that the arguments relating to the lack of impartiality of the Chair of the Committee on Legal Affairs, which are presented only in the annexes to the application, without being expressly set out in the application, must be rejected as inadmissible. That is the case for the argument relating to his Spanish nationality. That is also the case for some of the arguments relating to his alleged conduct, as the Parliament contends.
260
On the other hand, the Parliament’s plea of inadmissibility must be rejected in so far as it is directed against the argument, referred to in paragraph 145 of the application, based on the alleged hostility of the Chair of the Committee on Legal Affairs resulting from the strategy allegedly carried out in order to prevent the applicants from taking their seats in the Parliament.
261
However, that argument must be rejected. It is apparent from the documents before the Court that the alleged initiatives aimed at preventing the applicants from taking their seats in the Parliament are not made by the Chair of the Committee on Legal Affairs but by the national political party to which he belongs, which is not the one that brought the popular action in the criminal proceedings at issue. It is apparent from paragraph 244 above that the impartiality of the Chair of the Committee on Legal Affairs cannot, in principle, be assessed in the light of his political ideology, in particular his membership of a national political party.
262
Accordingly, the third part of the third plea must be rejected. Since the claims of bias made against the rapporteur and the Chair of the Committee on Legal Affairs have been rejected, it is not necessary to assess the fourth part of the plea concerning the obstacle created by the confidential nature of that committee’s work for establishing proof of the impact of their alleged bias on the contested decisions.
263
It follows from all of the foregoing that the action must be dismissed, without it being necessary to adopt the measures of organisation of procedure and the measures of inquiry requested by the applicants.
The request to have the oral procedure reopened
264
By document lodged at the Court Registry on 21 March 2023, the applicants requested that the oral part of the procedure be reopened on the basis of Article 113(2)(c) of the Rules of Procedure of the General Court.
265
Under Article 113(2)(c) of those rules of procedure, the Court may order the reopening of the oral part of the procedure where requested by a main party who is relying on facts which are of such a nature as to be a decisive factor for the decision of the Court but which that party was unable to put forward before the oral part of the procedure was closed.
266
The applicants rely on facts which occurred after the close of the oral part of the procedure which, in their view, are a decisive factor for their interest in bringing proceedings and for the merits of the contested decisions.
267
More specifically, first, the applicants refer to the entry into force, on 12 January 2023, of Ley Orgánica 14/2022 (Organic Law 14/2022) of 22 December 2022 (BOE No 307 of 23 December 2022, p. 1), which amended the Criminal Code, inter alia by abolishing the offence of sedition for which they were prosecuted and by amending the offence of misappropriation of public funds concerning the first and second applicants. Second, they rely on the order of12 January 2023 by which the investigating judge of the Criminal Chamber of the Tribunal Supremo (Supreme Court), inter alia, lifted the European arrest warrants of 14 October and 4 November 2019 issued against them. Third, the applicants rely on the order of the Corte d’appello di Cagliari, sezione distaccata di Sassari (Cagliari Court of Appeal, Separate Sassari Chamber, Italy) of 9 March 2023 by which that court declared that the European arrest warrant concerning the first applicant had been lifted and, consequently, declared the procedure for the execution of that warrant to be terminated. Fourth, the applicants rely on the judgment of 29 November 2022 by which the Tribunal Constitucional (Constitutional Court) dismissed the appeal (‘recurso de amparo’) brought by the first and second applicants against the order of the investigating judge of the Criminal Chamber of the Tribunal Supremo (Supreme Court) of 10 January 2020 requesting the waiver of their immunity before the Parliament.
268
In the first place, as regards the retention of their interest in bringing proceedings, the applicants claim that the contested decisions can no longer produce legal effects because, first, they are intended only to enable the execution of European arrest warrants which have been lifted and, second, they waive their immunity in respect of criminal proceedings relating to an alleged offence of sedition which no longer appears in the Criminal Code and an alleged offence of misappropriation of public funds which has been substantially amended in that code. The applicants submit, however, that, in view of the effects produced by the contested decisions, they retain an interest in bringing proceedings, at the very least from the perspective of claiming compensation. They maintain, in that regard, that a judgment annulling a measure could constitute a form of reparation. They also claim that there is a risk that the illegalities affecting the contested decisions will be repeated, since the investigating judge of the Criminal Chamber of the Tribunal Supremo (Supreme Court) intends to issue new European arrest warrants.
269
In that regard, the Court finds that the applicants are requesting the reopening of the oral part of the procedure in order to allow an adversarial debate on the question of the disappearance of their interest in bringing proceedings, while claiming that that interest persists despite the alleged obsolescence of the contested decisions. Moreover, neither the Parliament nor the Kingdom of Spain has submitted to the Court an application for a declaration that there is no need to adjudicate, although such an application may be lodged at any stage of the proceedings (order of 25 October 2019, Le Pen v Parliament, T‑211/19, not published, EU:T:2019:776, paragraph 14). In that context, and in the light of the circumstances of the case, the Court considers that the evidence adduced by the applicants concerning the question of their interest in bringing proceedings is not of such a nature as to be a decisive factor for the decision of the Court, within the meaning of Article 113(2)(c) of the Rules of Procedure of the General Court.
270
In the second place, it should be noted that the new facts relied on by the applicants are not of such a nature as to be a decisive factor for the substance of the action.
271
Since the legality of an act of the European Union must be assessed on the basis of the facts and the law as they stood at the time when that act was adopted (see judgments of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 31 and the case-law cited, and of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited) and although it does not fall to the Parliament, when deciding on a request for waiver of immunity, to assess the appropriateness of the provisions of national law laying down the offence complained of (see paragraph 180 above), the amendment of the Criminal Code, subsequent to the adoption of the contested decisions, has no bearing on their lawfulness. The same is true, first, of the order of the investigating judge of the Tribunal Supremo (Supreme Court) of 12 January 2023, the definitive nature of which has not, moreover, been established, since that order seeks to determine the implications of the amendment to that Criminal Code and, second, the order of the Corte d’appello di Cagliari, sezione distaccata di Sassari (Cagliari Court of Appeal, Separate Sassari Chamber) of 9 March 2023 by which that court itself, in essence, determined the implications of the lifting, by that order of 12 January 2023, of the European arrest warrant concerning the first applicant.
272
As for the judgment of 29 November 2022 of the Tribunal Constitucional (Constitutional Court), the applicants submit, in essence, that it supports the arguments which they had already put forward in support of the second plea, in connection with the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023). Therefore, that judgment of the Tribunal Constitucional (Constitutional Court) cannot be regarded as being of such a nature as to be a decisive factor for the decision of the General Court. In any event, the fact that, in that judgment, the Tribunal Constitucional (Constitutional Court) stated that it was for the General Court, in the present action, to rule on the legality of the contested decisions is not capable of invalidating the conclusion, set out in paragraph 88 above, that the Parliament was not required to assess the conformity with EU law of Spanish case-law relating to the competent authority to request the waiver of the immunity of a Member of the European Parliament elected for the Kingdom of Spain.
273
Accordingly, the applicants’ request that the oral part of the procedure be reopened must be rejected.
Costs
274
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. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Parliament in the present case and in Cases T‑272/21 R and T‑272/21 R II, in accordance with the form of order sought by the Parliament.
275
In accordance with Article 138(1) of the Rules of Procedure of the General Court, the Kingdom of Spain is to bear its own costs, including those incurred in Case T‑272/21 R II.
On those grounds,
THE GENERAL COURT (Sixth Chamber, Extended Composition),
hereby:
1.
Dismisses the action;
2.
Orders Mr Carles Puigdemont i Casamajó, Mr Antoni Comín i Oliveres and Ms Clara Ponsatí i Obiols to bear their own costs and to pay those incurred by the European Parliament, including those incurred in Cases T‑272/21 R and T‑272/21 R II;
3.
Orders the Kingdom of Spain to bear its own costs, including those incurred in Case T‑272/21 R II.
Marcoulli
Frimodt Nielsen
Kanninen
Schwarcz
Norkus
Delivered in open court in Luxembourg on 5 July 2023
V. Di Bucci
Registrar
S. Papasavvas
President
Table of contents
Background to the dispute
Forms of order sought
Law
Admissibility of the references to the annexes
Substance
Legal context
– European Union law
– Spanish law
The first plea, alleging an inadequate statement of reasons for the contested decisions
Second plea, alleging a lack of competence of the national authority which issued and forwarded to the Parliament the requests for waiver of the applicants’ immunity
The fifth plea, alleging infringement of the principles of legal certainty and sincere cooperation, the right to effective judicial protection and the rights of defence because the contested decisions lack clarity
– The first complaint, alleging a lack of clarity in the contested decisions as regards the procedures covered by the waiver of immunity
– The second complaint, alleging that the contested decisions lack clarity as to the nature of the measures that may be adopted in the context of the execution of the European arrest warrants
The sixth plea, in so far as it alleges infringement of Article 343 TFEU, Article 9 of Protocol No 7 and Rule 5(2) of the Rules of Procedure, in addition to certain fundamental rights of the applicants
– The alleged infringement of the provisions of Article 343 TFEU, Article 9 of Protocol No 7 and Rule 5(2) of the Rules of Procedure
– Unlawful interference with the applicants’ fundamental rights
The sixth plea, in so far as it alleges errors of fact and of law vitiating the Parliament’s examination of fumus persecutionis and the seventh plea, alleging infringement of the principles of good administration and equal treatment, and manifest errors committed by the Parliament in its assessment of fumus persecutionis
– The alleged errors of law and fact vitiating the Parliament’s examination of fumus persecutionis
– The alleged breach of the principles of good administration and equal treatment
– The alleged manifest errors in the assessment of fumus persecutionis
The eighth plea, alleging infringement of the principles of good administration and equal treatment in so far as the Parliament refused to apply Rule 9(7) of the Rules of Procedure
The fourth plea alleging, in essence, infringement of the right to be heard.
– The first part, alleging that the applicants did not have access to three documents
– The second part, alleging infringement of the right to be heard at the hearing of the applicants
The third plea, alleging infringement of the principle of impartiality
– The first part of the third plea, alleging the appointment of a single rapporteur for the three cases
– The second part of the third plea, alleging a lack of impartiality on the part of the rapporteur
– The third part of the third plea, alleging a lack of impartiality on the part of the Chair of the Committee on Legal Affairs
The request to have the oral procedure reopened
Costs
(
*1
)	Language of the case: English.