OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 4 September 2025 (1)
Case C‑572/23 P
Carles Puigdemont i Casamajó,
Antoni Comín i Oliveres,
Clara Ponsatí i Obiols
v
European Parliament
( Appeal – Institutional law – Members of the European Parliament – Privileges and immunities – Request for waiver of immunity submitted in the context of criminal proceedings – Investigation of the request by the Parliament – Impartiality – Criteria for waiver of immunity – Discretion of the Parliament – Decision to waive a Member’s immunity – Action for annulment – Appellant’s continuing interest in bringing proceedings following the expiry of his parliamentary mandate )
I.      Introduction
1.        By their appeal, Mr Carles Puigdemont i Casamajó, Mr Antoni Comín i Oliveres and Ms Clara Ponsatí i Obiols ask the Court of Justice to set aside the judgment of the General Court of the European Union of 5 July 2023, Puigdemont i Casamajó and Others v Parliament (T‑272/21, EU:T:2023:373) (‘the judgment under appeal’), by which the General Court dismissed their action for 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 decisions at issue’). (2)
2.        In support of the form of order they are seeking, the appellants raise ten grounds of appeal. In accordance with the Court’s wishes, I will focus, in this Opinion, on the third, fifth and sixth grounds of appeal. Furthermore, I will propose that the Court examine of its own motion the question of the appellants’ continuing interest in bringing proceedings after 15 July 2024, that is to say, after the expiry of their parliamentary mandates for the ninth parliamentary term.
II.    European Union law
3.        Protocol (No 7) on the Privileges and Immunities of the European Union, (3) annexed to the EU and FEU Treaties (‘Protocol No 7’), provides, in Article 9 thereof:
‘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.’
4.        Chapter
VII, entitled ‘General provisions’, of Protocol No 7 provides, in Article 18 thereof:
‘The institutions of the Union shall, for the purpose of applying this Protocol, cooperate with the responsible authorities of the Member States concerned.’
5.        The internal organisation of the Parliament is governed by its Rules of Procedure. Rule
5 of the Rules of Procedure applicable to the ninth parliamentary term (2019-2024) (4) (‘the Rules of Procedure’), entitled ‘Privileges and immunities’, provides:
‘1.      Members enjoy the privileges and immunities laid down in [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.
…’
6.        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 [Protocol No 7] and with the principles referred to in Rule
5(2).
…’
7.        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.
The Member concerned shall not be present during debates on the request for waiver or defence of his or her immunity, except for the hearing itself.
…
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.
…
11.      The committee shall treat these matters, and handle any documents received with the utmost confidentiality. The committee shall always consider requests relating to procedures on immunity in camera.
…
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.’
III. Background to the dispute, the judgment under appeal, the procedure before the Court of Justice and the forms of order sought
A.      Background to the dispute
8.        The background to the dispute is set out in paragraphs 2 to 19 of the judgment under appeal. It may be summarised as follows.
9.        Mr Puigdemont i Casamajó (‘the first appellant’) was President of the Generalitat de Cataluña (Generality of Catalonia, Spain) and Mr Comín i Oliveres (‘the second appellant’) and Ms Ponsatí i Obiols (‘the third appellant’) 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 (5) 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, (6) 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).
10.      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, inter alia, the appellants, on the ground that they had committed, inter alia, the offences of ‘sedition’ and ‘misuse of public funds’. By an order of 9 July 2018, the Tribunal Supremo (Supreme Court, Spain) declared that the appellants had refused to appear following their flight from Spain, and stayed the criminal proceedings until such time as they are found.
11.      The appellants subsequently applied to stand as candidates in the elections to the Parliament held in Spain on 26 May 2019, following which the first and second appellants were elected with effect from 2 July 2019.
12.      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 appellant, so that he might be tried in the criminal proceedings at issue. On 4 November 2019, identical arrest warrants were issued by the same judge against the second and third appellants.
13.      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 appellants to be waived.
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 appellant 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 appellant to be waived.
16.      The Vice-President of the Parliament announced in Parliament the requests for waiver of immunity and referred them to the Parliament’s Committee on Legal Affairs (‘the JURI committee’).
17.      The appellants submitted observations to the Parliament. They were also heard by the JURI committee on 14 January 2021.
18.      On 23 February 2021, the JURI committee adopted reports A 9-0020/2021, A 9-0021/2021 and A 9-0022/2021 concerning the requests for waiver of the appellants’ immunity.
19.      By the decisions at issue, the Parliament granted the requests referred to in points 13 and 15 of this Opinion.
B.      The judgment under appeal
20.      On 19 May 2021, the appellants brought before the General Court an action for annulment of the decisions at issue.
21.      In support of their action, the appellants raised eight pleas in law. The four relevant pleas (7) in this Opinion were based, in essence, on an alleged disregard by the Parliament for the principles of impartiality and procedural fairness (third plea); on infringement of the principles of legal certainty and sincere cooperation, the right to effective judicial protection and the rights of the defence because the decisions at issue lack clarity (fifth plea); on infringement of Article 343 TFEU, Article 9 of Protocol No 7 and Rule
5(2) of the Rules of Procedure in that the Parliament disregarded the limits on its power to waive the immunity of its Members (sixth plea); and on infringement of the principles of good administration and equal treatment in that the Parliament departed from its earlier practice without justification or committed a manifest error of assessment (seventh plea).
22.      By order of the Vice-President of the Court of Justice of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain (C‑629/21 P(R), EU:C:2022:413), operation of the decisions at issue was suspended.
23.      By the judgment under appeal, the General Court rejected the eight pleas in law raised by the appellants.
24.      With regard to the third plea for annulment, the General Court rejected, first, the first three parts relating to the appointment of a single rapporteur for the three immunity cases (paragraph 238 of the judgment under appeal), the lack of impartiality of the rapporteur appointed (paragraph 257 of that judgment) and the lack of impartiality of the Chair of the JURI committee (paragraph 262 of the judgment). Secondly, it took the view that, given the rejection of those three parts, there was no need to assess the fourth part of that plea in law relating to the confidential nature of the JURI committee’s work (paragraph 262 of that judgment).
25.      As for the fifth plea for annulment, the General Court found that the decisions at issue did not lack clarity as regards the proceedings in respect of which immunity was waived (paragraph 97 of the judgment under appeal) and that the second paragraph of Article 9 of Protocol No 7 did not confer on the appellants protection separate from that which they enjoyed under the first paragraph of Article 9 of that protocol (paragraph 107 of that judgment).
26.      As regards the sixth and seventh pleas for annulment, the General Court rejected, first, in paragraph 143 of the judgment under appeal, the sixth plea, in so far as it was based on infringement of Article 343 TFEU, Article 9 of Protocol No 7, Rule
5(2) of the Rules of Procedure and certain fundamental rights of the appellants. Secondly, it rejected, in paragraph 187 of that judgment, the sixth plea, in so far as it alleged errors of fact and of law vitiating the Parliament’s examination of fumus persecutionis, and the seventh plea.
C.      The procedure before the Court of Justice and the forms of order sought
27.      On 15 September 2023, the appellants lodged an appeal against the judgment under appeal. The Parliament and the Kingdom of Spain, which was granted leave to intervene in support of the form of order sought by the Parliament in the case before the General Court, submitted their responses. By decision of the President of the Court of Justice, the parties were granted leave to submit a reply and a rejoinder.
28.      By their appeal, the appellants claim that the Court should:
–        set aside the judgment under appeal;
–        annul the decisions at issue or, in the alternative, refer the case back to the General Court; and
–        order the Parliament and the Kingdom of Spain to pay the costs or, in the alternative, reserve the costs.
29.      The Parliament and the Kingdom of Spain contend that the Court should:
–        dismiss the appeal; and
–        order the appellants to pay the costs.
30.      The Court decided to give judgment without holding a hearing.
IV.    Analysis
A.      The appeal
31.      In support of their appeal, the appellants raise ten grounds of appeal. As I have indicated and in accordance with the Court’s wishes, I will focus my Opinion on the third, fifth and sixth grounds of appeal, alleging, respectively, the lack of impartiality and fairness in the procedure for waiver of immunity before the Parliament (third ground of appeal), the lack of clarity of the decisions at issue (fifth ground of appeal) and errors in the interpretation and the application of the rules relating to the decision to waive parliamentary immunity, in particular as regards the Parliament’s assessment of fumus persecutionis (sixth ground of appeal). I will, first of all, examine the third ground of appeal, then the sixth ground of appeal and lastly the fifth ground of appeal.
32.      Before beginning my analysis of the three grounds concerned, I consider it necessary to make a few remarks, first, on the appellants’ continuing interest in bringing proceedings after the ninth parliamentary term came to an end and, secondly, on parliamentary immunity referred to in Article 9 of Protocol No 7 and judicial review of the decision to waive that immunity.
B.      The appellants’ continuing interest in bringing proceedings
33.      It is well established that, in an appeal, the Court must examine of its own motion the admissibility of the proceedings, including the appellants’ continuing interest in bringing proceedings. (8) In the present case, it is my view that the Court should carry out such an examination of its own motion, in view of the change in the appellants’ situation further to the expiry of their parliamentary mandates following the end of ninth parliamentary term on 15 July 2024. I note that that issue could not be addressed by the parties in the written part of the procedure, since that part was closed on 2 July 2024, before the ninth parliamentary term came to an end.
34.      In that regard, I would point out that the interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings brought by a natural or legal person. (9) That interest must exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate. (10) Such an interest requires that the annulment of the contested act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. (11)
35.      In that context, I note, first, that, since their parliamentary mandates have ended, the first and third appellants ceased to enjoy, with effect from 16 July 2024, the immunities laid down in Article 9 of Protocol No 7. Accordingly, any annulment of the decisions at issue concerning them would not procure them an advantage. Secondly, I observe that, in the context of the proceedings before the General Court, the Vice-President of the Court of Justice, by order of 24 May 2022, (12) ordered the suspension of the operation of the decisions at issue, that that order was not cancelled before the pronouncement of the judgment under appeal and that, after the pronouncement of the judgment under appeal, despite the fact that no interim measures were applied in the proceedings before the Court of Justice, the decisions at issue were not, in any event, implemented before the parliamentary mandates expired.
36.      In those circumstances, I am of the view that the first and third appellants no longer have an interest in the annulment of the decisions at issue which concern them (decisions P9_TA(2021)0059 and P9_TA(2021)0061) because their parliamentary terms have expired and their appeal has therefore become devoid of purpose. Thus, since this appeal is incapable, by its outcome, of procuring an advantage for those appellants, the view should be taken that there is no need to adjudicate in their regard in the appeal. In those circumstances, I propose that the Court declare, pursuant to Article 149 of the Rules of Procedure of the Court of Justice, that there is no longer any need to adjudicate as far as concerns the appeal lodged by the first and third appellants.
37.      The situation is different in the case of the second appellant. It is apparent from the General Court’s file in the case of Comín i Oliveres v Parliament (T‑477/24) that, on 9 June 2024, he was re-elected as a Member of the Parliament for the tenth parliamentary term. However, his name does not appear on the list of the candidates elected in Spain that was notified to the Parliament by the Spanish Central Electoral Commission. That commission informed the Parliament that the second appellant had not taken the oath or promised to respect the Spanish Constitution, with the result that it declared the seat allocated to him in the Parliament to be vacant and that all the prerogatives relating to his duties were temporarily suspended until such time as he has taken that oath or made that promise. (13) This means, in the light of the judgment in Junqueras Vies, (14) that the second appellant must be regarded as still enjoying immunity under Article 9 of Protocol No 7 and that he retains his interest in the annulment of the decision at issue which concerns him (P9_TA(2021)0060).
38.      In view of the second appellant’s continuing interest in bringing proceedings, and in the event that the Court were not to share my view that the first and third appellants have no interest in bringing proceedings, I will examine the third, fifth and sixth grounds of appeal.
C.      Inviolability and judicial review of the decision to waive it
39.      Following the continental tradition rooted in the French Revolution, (15) Protocol No 7 provides for two forms of parliamentary immunity: non-liability (for opinions expressed or votes cast in the performance of parliamentary duties) (Article 8 of that protocol) and inviolability (protection against any measure of detention and any legal proceedings for all other acts) (Article 9 of that protocol). It is that second form which is at issue in the present case.
40.      Although Protocol No 7 expressly provides that, unlike non-liability, inviolability may be waived, it does not however specify which substantive criteria have to be met for such a decision to be adopted. Furthermore, nor are those criteria expressly provided for in primary law or in legally binding acts of secondary law. The only certainty is that the waiver of parliamentary immunity falls within the scope of the Parliament’s powers.
41.      In those circumstances, the question arises as to the scope of the Parliament’s power when a request for waiver of the immunity of one of its Members is made to it and the scope of the judicial review of its decision. In the absence of guidance in that regard in legislative texts, an answer must be sought in the purpose of parliamentary immunity, as interpreted in the case-law.
42.      In that regard, the Court of Justice has previously held, relying on the case-law of the European Court of Human Rights (‘the ECtHR’), (16) that the immunities granted to Members of the European Parliament are intended to ensure the independence of that institution in the performance of its tasks. (17) As I have previously stated in my Opinion in Junqueras Vies, while parliamentary immunity manifests itself as the protection given personally to each Member of the Parliament, it is not a privilege of Members of Parliament intended to place them beyond the reach of the ordinary law, but a mechanism to protect the Parliament as a whole. (18) In that context, it is likewise apparent from the case-law of the ECtHR that jurisdictional immunity constitutes an exception to the normal rules governing the admissibility of proceedings for alleged offences and their prosecution, which is why States must ensure that it has a well-defined restrictive scope so that it cannot be used by political representatives as a means of evading justice. (19)
43.      Given the purpose of inviolability as a mechanism intended to protect the Parliament itself, the lack of guidance in primary law as to the substantive criteria to be met for parliamentary immunity to be waived and the fact that the decision to waive immunity comes under the Parliament’s powers, that institution should be regarded, in my view, as enjoying broad discretion as regards the handling of requests for waiver of immunity. This covers both the power to determine the applicable procedural rules and substantive criteria for waiving immunity and the power to rule freely on the request submitted.
44.      It is true that the broad discretion enjoyed by the Parliament cannot preclude judicial review of its decisions to waive immunity. After all, such a decision affects, on the one hand, the legal situation of the Member concerned, who should be able to exercise his or her rights. On the other hand, it also affects the right to effective judicial protection of the individuals harmed by the acts committed by that Member.
45.      However, in view of the Parliament’s broad discretion, I endorse the case-law of the General Court (20) to the effect that, in the context of the judicial review of a decision to waive immunity, the EU Courts must in principle simply verify whether the procedural rules have been complied with, whether the facts admitted by the institution have been accurately stated and whether there has been a manifest error of assessment of those facts or a misuse of powers. (21) The Parliament alone is competent to assess whether or not, in the light of all the relevant facts, waiving immunity undermines its independence in the performance of its tasks.
46.      The three grounds of appeal should, in my view, be examined having regard to those principles.
D.      The third ground of appeal
47.      By the third ground of appeal, the appellants allege that the General Court erred in law by concluding that their right to have their affairs handled impartially and fairly by the Parliament had not been breached. That ground is divided into four parts, based, first, on the decision to appoint a single rapporteur for the three immunity cases; second, on the impartiality of that rapporteur; third, on the impartiality of the Chair of the JURI committee; and, fourth, on the confidentiality of the procedure before the JURI committee.
48.      As a preliminary point, I note that the procedure governing the Parliament’s handling of requests for waiver of immunity is governed by its Rules of Procedure, in particular Rule
9 thereof, entitled ‘Procedures on immunity’. Under Rule
9(13) of those Rules, the JURI committee is to lay down principles for the application of that rule. During the ninth parliamentary term, those principles were set out in the Notice to the Members (11/2009) of 19 November 2019 on the principles applicable to requests for waiver of immunity (‘Notice No 11/2019’).
49.      I note in that regard that the Court has previously held that one of the notices replaced by Notice No 11/2019, namely Notice No 11/2003 of 6 June 2003, adopted by the Parliament’s Committee on Legal Affairs and the Internal Market, was not legally binding. (22) I am of the view that the same applies to Notice No 11/2019. It is an internal measure for organisation of the work of the JURI committee, which is not binding on the Parliament. This does not, however, preclude that measure being taken into account
in the assessment of the lawfulness of the procedure leading to the adoption of the decision to waive immunity. Notice No 11/2003 sets out the practice followed by the JURI committee, which is tasked with investigating the request for waiver of immunity and preparing the draft decision of the Parliament. Furthermore, that notice is addressed to Members and is, therefore, not only a source of information as to how the JURI committee handles immunity cases, but also a document capable of giving rise to legitimate expectations on their part vis-à-vis their procedural rights.
50.      The rules laid down in the Rules of Procedure and in Notice No 11/2019, as well as the manner in which they are applied by the Parliament, must be consistent with primary law. In that regard, I should point out that the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), provides that every person has the right, inter alia, to have his or her affairs handled impartially and fairly by the institutions of the European Union. The application of that provision to the procedures for waiver of immunity cannot, in my view, be excluded. (23)
51.      That 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 there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned. (24)
52.      Nevertheless, I take the view that, as far as immunity cases are concerned, when determining the exact content of the right to have cases handled impartially, it is necessary to take into account the purpose of the procedure and the relationship existing, by definition, between the persons responsible for handling the cases and the person concerned. In that regard, it should be noted, first of all, that there is by definition, in every procedure for waiver of immunity, a specific relationship between the person concerned and the persons acting on behalf of the institution competent to deliver the decision. In such cases, the Parliament, which is called upon to come to a decision on a right of one of its Members, is not an institution of a judicial nature but of a political nature. It is inherent in the Parliament that its Members, who belong to different political groups, are ideologically opposed to one another and, in that respect, are in permanent conflict in political matters. In addition, decisions to waive parliamentary immunity are a matter solely for the Parliament. They must therefore be adopted according to the rules governing the adoption of decisions by that institution, that is to say, by a vote involving all Members of the Parliament. It follows that even Members who are in disagreement on matters other than politics have the opportunity to participate in the adoption of the final decision on the waiver of the immunity of a Member of the Parliament.
53.      Accordingly, it is impossible to apply to the Members involved in the handling of immunity cases the same criterion of impartiality as that applied to the courts or to the administrative authorities responsible for dealing with the affairs of individuals. Imposing on the Members responsible for preparing a decision to waive immunity requirements comparable to those imposed on judges or persons acting on behalf of administrative authorities as regards objective impartiality would disregard the special nature of the Parliament and that of the procedure for waiver of immunity.
54.      In that situation, I take the view that conflicts of a purely political nature between the persons responsible for the procedure for waiver of immunity and the persons concerned by those procedures must be regarded as irrelevant in the assessment of the objective impartiality of the former. This is likewise the case for the persons responsible for investigating a request for waiver of immunity or for organising the work of the JURI committee. Such persons are not called upon to rule on such a request, but are rather responsible for preparing, together with other members of the JURI committee, a proposal for a decision, which is subsequently submitted for debate and a vote by the Parliament. If no provision is made for politically opposed Members to be disqualified from the vote by the Parliament on a request to waive a Member’s immunity, a conflict of that kind cannot, a fortiori, justify the disqualification of the Members responsible for investigating such a request or for organising the work of the JURI committee.
1.      The first part of the third ground of appeal
(a)    Arguments of the parties
55.      The appellants allege that the General Court erred in law by taking the view, in paragraphs 229 to 238 of the judgment under appeal, that the impartiality and the fairness of the procedure had not been breached, despite the fact that a single rapporteur was appointed for the three immunity cases. In their view, the Parliament thus disregarded points 6 and 8 of Notice No 11/2019 and infringed Article 41(1) and Article 39(2) of the Charter, given inter alia the lack of impartiality of the person appointed as rapporteur. They claim that the only document attached to Notice No 1/2020 was the judgment of the Tribunal Supremo (Supreme Court) of 14 October 2019 and that the General Court distorted evidence by referring to that judgment as a ‘cover note’. Furthermore, the appellants criticise the General Court’s findings, in paragraph 237 of the judgment under appeal, to the effect that points 6 and 8 of Notice No 11/2019 do not enshrine a right in favour of the Members of the Parliament. In that regard, they argue that if a different rapporteur had been appointed for each immunity case, at least one of them could have been impartial. In the appellants’ view, in accordance with Article 52(1) of the Charter, only an explicit provision adopted pursuant to Rule
9(13) of the Rules of Procedure would have permitted the Parliament to appoint a single rapporteur.
56.      The Parliament, supported on this point by the Kingdom of Spain, contends that the first part of the third ground of appeal should be rejected, and submits that that part is inadmissible on account of an inadequate statement of reasons, since the appellants have not indicated what error was made in the General Court’s reasoning and simply put forward their own interpretation. In the Parliament’s view, that part, if it were admissible, would be unfounded because the General Court did not err in law. In addition, the Parliament is of the view that the General Court’s findings in paragraph 237 of the judgment under appeal are of a subsidiary nature and that, therefore, the argument relating to that paragraph is ineffective.
(b)    Assessment
57.      First of all, the General Court set out, in paragraph 232 of the judgment under appeal, the content of points 6 to 8 of Notice No 11/2019. It is apparent from that paragraph that point 6 of that notice provides that the committee responsible is to appoint a rapporteur for ‘each immunity case’. According to point 7 of the 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 states, in the first sentence, that, for each immunity case, the position of rapporteur will be rotated on an equal basis between the political groups. (25)
58.      Next, the General Court found, first, in paragraph 236 of the judgment under appeal, that the principle of equal rotation of the position of rapporteur set out in point 8 of Notice No 11/2019 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. Secondly, for the sake of completeness, it observed, in paragraph 237 of that judgment, that point 8 of Notice No 11/2019 does not enshrine a right in favour of Members.
59.      Contrary to what the Parliament contends, I am of the view that the first part of the third ground of appeal is admissible, in that it concerns the General Court’s error in law in the interpretation of points 6 and 8 of Notice No 11/2019. The points of law examined at first instance may be discussed again in the course of an appeal where the appellant challenges the interpretation or application of EU law by the General Court. (26) However, that part is unfounded since the General Court’s interpretation of those points is correct.
60.      I note that, in the first part, the appellants claim, inter alia, that the assignment of their cases to a single rapporteur led to the impartiality of the procedure being breached. However, in their appeal, they fail to establish a connection between the appointment of a single rapporteur and the impartiality of the procedure, and merely rely on arguments relating to the lack of impartiality of the person appointed, which is not the subject of the first part of the third ground of appeal. Those arguments are ineffective in that part. By contrast, nothing precludes an assessment of the decision to assign the three cases to a single rapporteur in the light of the fairness of the procedure.
61.      In that regard, I consider that the General Court did not err in law in paragraph 236 of the judgment under appeal. I agree with its assessment that points 6 and 8 of Notice No 11/2019 do not preclude a single rapporteur from being appointed for a number of cases relating to a request for waiver of immunity. In so far as those points provide that a rapporteur is to be appointed for each immunity case and that cases are assigned to rapporteurs according to the principle of equal rotation, they do not establish a strict system of case assignment, but rather a general rule for the organisation of work within the JURI committee. It does not follow from those points in particular that there is a ban on assigning to the same rapporteur immunity cases which are closely connected on account of the links between them, and I would observe that entrusting the handling of such cases to a single rapporteur makes it possible to ensure, in the context of the procedure, the equal treatment of persons who are in a comparable, if not identical, situation.
62.      Lastly, with regard to the alleged distortion of evidence raised in this part, I am of the view that that argument is ineffective because it does not concern the appointment of a single rapporteur, but rather the rapporteur’s impartiality. As I have noted, (27) the argument based on the lack of impartiality of the person appointed as rapporteur is ineffective for the purposes of this part.
63.      As for the argument concerning paragraph 237 of the judgment under appeal, that argument should be rejected in so far as it includes a consideration put forward for the sake of completeness. The Court of Justice rejects outright complaints directed against grounds of a judgment of the General Court which are included purely for the sake of completeness, since they cannot lead to it being set aside. (28)
64.      In the light of the foregoing, the first part of the third ground of appeal should be rejected.
2.      The second part of the third ground of appeal
(a)    Arguments of the parties
65.      The appellants allege that the General Court erred in law by rejecting as unfounded, in paragraphs 244 to 257 of the judgment under appeal, their argument based on the rapporteur’s lack of impartiality and alleging, therefore, infringement of Article 41(1) and Article 39(2) of the Charter, as well as the principles arising from point 8 of Notice No 11/2009. They raise five complaints in this part.
66.      By the first complaint, the appellants submit that the General Court erred in law by concluding, in paragraphs 245 and 246 of the judgment under appeal, that the fact that the rapporteur belongs to the same political group as the VOX party, which initiated the criminal proceedings against them, is not sufficient objectively to raise legitimate doubts as to potential bias on the part of that rapporteur.
67.      By the second complaint, the appellants claim that the General Court was wrong to refuse to acknowledge, in paragraphs 247 to 251 of the judgment under appeal, that the fact that the rapporteur chaired a public meeting within the Parliament at which he supported the slogan “Lock Puigdemont up!” demonstrated his bias or, at the very least, raised legitimate doubts about it. That refusal was the result of a distortion of evidence.
68.      By the third complaint, the appellants allege that the General Court, in paragraphs 253 and 254 of the judgment under appeal, wrongly rejected as inadmissible one piece of evidence, namely an interview with the rapporteur in a Bulgarian newspaper, on the ground that they failed to provide justification for its late production. In that respect, the General Court also breached its obligation to state reasons by failing to explain why it found the appellants’ explanation to be insufficient, namely that they were not aware of that interview until after they lodged their action for annulment.
69.      By the fourth complaint, the appellants argue that the General Court erred in law by concluding, in paragraph 255 of the judgment under appeal, that the elements referred to in that paragraph, together with other elements previously referred to, did not contribute to establishing the rapporteur’s lack of impartiality, which also constitutes a distortion of evidence.
70.      By the fifth complaint, the appellants allege that the General Court erred in law by asserting, in paragraph 256 of the judgment under appeal, that they had not invoked a ‘personal’ interest on the part of the rapporteur.
71.      The Parliament, supported by the Kingdom of Spain, contends that this part of the third ground of appeal should be rejected. In particular, it considers, first of all, that the fact that the rapporteur belonged to a group which is politically opposed to the Member concerned by the request for waiver of immunity cannot call into question the impartiality of that rapporteur. Next, the Parliament argues that the second complaint is inadmissible because it seeks, in reality, a fresh assessment of the facts, and is in any event unfounded. In addition, the Parliament contends that the third complaint, which relates to the rejection of the evidence consisting in the interview at issue and the breach of the obligation to state reasons, should also be rejected. Lastly, the Parliament also submits that the fourth and fifth complaints are inadmissible and, in any event, unfounded.
(b)    Assessment
72.      In the first place, as regards the first complaint, the General Court found, in paragraphs 245 and 246 of the judgment under appeal, that the fact that the rapporteur belonged to the European Conservatives and Reformists political group was, in principle, irrelevant to the assessment of his impartiality, despite the fact that the members of the VOX political party, who triggered the criminal proceedings forming the basis of the requests for waiver of immunity, belong to that political group.
73.      I am of the view that the General Court did not err in law in its assessment of that complaint. First, the General Court did not disregard an internal rule concerning the handling of the requests for waiver of immunity by appointing as rapporteur a person belonging to a political group other than that to which the Members concerned by such a request belong. More fundamentally, it did not disregard, by that appointment, the second sentence of point 8 of Notice No 11/2019, under which, as is apparent from the judgment under appeal, the rapporteur in the immunity case may not be a member of the same political group, or be elected in the same Member State, as the Member concerned by the request. That rule does not mean that a person belonging to a political group opposed to that to which the Member concerned belongs is prohibited from being appointed as rapporteur. If that were the case, and in view of the political nature of the conflict existing, by definition, between Members belonging to different groups, there would then be a risk, in certain cases, of none of the standing rapporteurs being deemed suitable to perform that role.
74.      Secondly, it is true that the appellants’ arguments are based not simply on the fact that the rapporteur belonged to an opposing political group, but rather that he belonged to the same group as the VOX party, which, along with others, initiated the criminal proceedings against the appellants which led to the requests for waiver of immunity. Nevertheless, the Parliament did not, in my view, err in finding that that fact alone was not sufficient to conclude that there was a breach of the requirement for the rapporteur to be impartial. The view cannot be taken that
the links between different national parties of the same political group within the Parliament are so strong that the attitude towards the appellants of the rapporteur who belongs to the same political group as the VOX party must be regarded as being defined by the relationship between the appellants and the VOX party. Thus, I am of the view that the VOX party’s political interest in legal proceedings being brought against the appellants cannot be regarded as a factor giving rise to specific doubts as to the impartiality of the rapporteur.
75.      In the second place, turning to the second and fourth complaints, the General Court established, first, in paragraph 249 of the judgment under appeal, that the rapporteur had 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). That secretary-general closed his speech with the words ‘Viva España, viva Europa y Puigdemont a prisión’ (Long live Spain, long live Europe and lock Puigdemont up). The General Court also found, in paragraphs 250 and 251 of that judgment, that, in the course of that event, the (future) rapporteur, while present at the table of speakers, had not expressed his views orally, and that that expression of his position as regards the political situation in Catalonia could not suffice to constitute a breach of the principle of impartiality. Secondly, it took the view, in paragraph 255 of the judgment under appeal, that the various reactions of the VOX political party expressed after the adoption of the decisions at issue, or the fact that an administrative penalty was imposed on the rapporteur, were not such as to establish the rapporteur’s lack of impartiality.
76.      In the second and fourth complaints, the appellants set out, in essence, their own interpretation of certain facts. The appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice. (29) There is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect or clearly contrary to its wording. However, such distortion must be clear from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. (30)
77.      In the present case, while the appellants do allege, formally, that the General Court distorted evidence, it must be stated that, by that allegation, they are in reality seeking a re-examination of the arguments raised in that regard at first instance, without setting out how the General Court made a manifestly incorrect assessment of the facts and the evidence. Those complaints are therefore inadmissible.
78.      It is true that, according to settled case-law, where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, to review the legal characterisation of those facts and the conclusions in law drawn from them. (31) In that regard, I consider that the General Court’s characterisation of the facts is not vitiated by errors. First, the mere fact that the rapporteur belonged to the same political group as the VOX party cannot suffice to call into question his impartiality. Secondly, I note, as the Parliament observes, that the meeting in question took place during the eighth parliamentary term, more than two months before the elections at which the appellants were elected and more than six months before the arrest warrants referred to in the requests for waiver of immunity were issued. Besides the fact that the rapporteur had participated in a meeting regarding the political situation in Catalonia on account, admittedly, of the acts concerned by the criminal proceedings forming the basis for the requests for waiver of immunity, the context of that event was not linked to the appellants’ status as Members of the Parliament. Thirdly and lastly, like the General Court, I take the view that the reactions of the members of the VOX political party following the adoption of the decisions at issue or the imposition of an administrative penalty on the rapporteur are not such as to establish a lack of impartiality on the part of the rapporteur.
79.      In the third place, with regard to the fifth complaint, the General Court found, in paragraph 256 of the judgment under appeal, that the appellants did not claim that the rapporteur had a conflict of interests,
nor did they invoke a personal interest on the part of the rapporteur capable of affecting his impartiality in the performance of his duties. Similarly, the appellants did not refer to any statement by the rapporteur to show that he had approached his role with a personal bias separable from his political ideology.
80.      The appellants do not put forward any argument in support of their claims, they assert that a lack of objective impartiality is sufficient for the purposes of Article 41(1) and Article 39(2) of the Charter, and they merely refer to matters raised in the context of other complaints. This complaint is, therefore, inadmissible in so far as it lacks adequate reasoning.
81.      In the fourth and final place, in paragraphs 253 and 254 of the judgment under appeal, the General Court rejected as inadmissible one piece of evidence, namely an interview with the rapporteur in a Bulgarian newspaper, stating that that evidence was produced in the reply and that the appellants had failed to justify its late production, even though it was dated the day following the adoption of the decisions at issue, and thus prior to the lodging of the application.
82.      In that regard, I observe that, contrary to the appellants’ claims, it is apparent from Article 85(1) and (2) of the Rules of Procedure of the General Court that, if evidence is submitted late by a party, that party must state the reasons for the delay. (32) The Courts of the European Union have jurisdiction to review the merits of the reasons for the delay in submitting evidence and, if its belated production is not justified to the requisite legal standard or substantiated, jurisdiction to reject it. (33) The reasons provided by the party concerned enable those Courts to carry out that review. In the present case, in their reply, the appellants merely stated, when submitting the content of the evidence produced, that they became aware of the interview in question after the annulment action
was brought. If that statement were to be regarded as justification of the belated production of the evidence in question, it must be pointed out that it does not contain any elements that make it possible to review the merits of the reasons for the delay. This, however, concerns evidence that existed as of the day following the adoption of the decisions at issue and which was available to the general public.
83.      Accordingly, I am of the view that the General Court did not err in finding the evidence produced to be inadmissible. As is apparent from paragraph 254 of the judgment under appeal, nor did the General Court fail to comply with its obligation to state reasons, since it stated that the belated production of that evidence had not been justified and that the interview date was before the date the application was lodged.
84.      In the light of the foregoing, the second part of the third ground of appeal should be rejected.
3.      The third part of the third ground of appeal
(a)    Arguments of the parties
85.      The appellants allege that the General Court erred in law by rejecting, in paragraphs 259 to 261 of the judgment under appeal, their argument based on a lack of impartiality of the Chair of the JURI committee. They argue that they sufficiently identified all the relevant elements in paragraphs 144 and 145 of their application for annulment. In their view, by disregarding the information set out in the annexes to the application for annulment and failing to explain specifically which of their arguments were inadmissible, the General Court distorted evidence, breached the right to effective judicial protection and the rights of the defence, and failed to fulfil its obligation to state reasons.
86.      The Parliament, supported on this point by the Kingdom of Spain, contends that this part of the third ground of appeal should be rejected and submits that the arguments are either inadmissible or unfounded. In the alternative, it asks the Court to reject the appellants’ arguments relating to the considerations of the General Court contained in paragraph 261 of the judgment under appeal on the basis of a substitution of grounds and argues that, contrary to the view taken by the General Court in paragraph 260 of that judgment, the arguments based on a strategy allegedly carried out by the Chair of the JURI committee in order to prevent the appellants from taking their seats in the Parliament were not sufficiently developed in the application.
(b)    Assessment
87.      In the first place, the General Court rejected as inadmissible, in paragraph 259 of the judgment under appeal, the appellants’ arguments relating to the lack of impartiality of the Chair of the JURI committee. Although those arguments are set out in the annexes to the application, they are not expressly presented in the application itself. This is the case, in particular, with the argument relating to the Spanish nationality of that chair and some of the arguments relating to his conduct.
88.      It is my view that, in so doing, the General Court did not err in law.
89.      I note that, in paragraph 144 of the application for annulment, the appellants simply state that the Chair of the JURI committee did not offer a guarantee of impartiality for reasons detailed in the written observations contained in Annexes
A.31, A.32 and A.33 to the application and in paragraphs 267 to 281 of Annex
A.44 thereto.
90.      In the light of the content of that paragraph of the application for annulment, I must point out that it follows from the case-law of the Court of Justice that the ‘brief statement of the pleas in law’ which must be stated in any application, within the meaning 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 of that statute, and Article 76(d) of the Rules of Procedure of the General Court, means that the application must specify the nature of the grounds on which the application is based. Thus, it is necessary, in particular, for an action before the General Court to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. The purely probative and instrumental purposes of the annexes mean that, in so far as these contain elements of law or of fact on which certain grounds expressed in the application are based, those elements must be set out in the actual body of that application or, at the very least, be sufficiently identified in the application. (34)
91.      In that context, since the appellants did not state in their application the reasons why the Chair of the JURI committee did not offer, in their view, a guarantee of impartiality, the General Court was right to reject those arguments as inadmissible. Their arguments alleging the distortion of evidence, the breach of their right to effective judicial protection and of the rights of the defence, and the General Court’s failure to fulfil its obligation to state reasons, arguments which are based on the failure to examine the elements contained in the annexes in question, must also be rejected.
92.      In the second place, in paragraph 261 of the judgment under appeal, the General Court rejected as unfounded the argument based on the alleged hostility of the Chair of the JURI committee and relating to the strategy carried out in order to prevent the appellants from taking their seats in the Parliament. In the view of the General Court, those alleged initiatives were made not by the Chair but by his party.
93.      That paragraph of the judgment under appeal relates to paragraph 145 of the application for annulment, in which the appellants simply stated that the Chair of the JURI committee and his party had displayed fierce hostility towards them, whilst claiming that the Chair had carried out a strategy in order to prevent them from taking their seats as MEPs.
94.      I agree with the Parliament that the appellants’ claims in paragraph 145 of the application for annulment are very brief and insufficiently developed to be admissible. The question thus arises as to whether the Parliament’s request for substitution of grounds should be upheld.
95.      In accordance with the settled case-law of the Court of Justice, if a request for substitution of grounds is to be admissible, the party concerned must have an interest in bringing proceedings, in the sense that the request must be capable, if successful, of procuring an advantage to the party making it. That may be the case where the request for substitution of grounds amounts to a defence to one of the appellant’s pleas. (35)
96.      Since such an interest exists on the part of the Parliament, I propose that the Court substitute the grounds of the judgment under appeal and find that the appellants’ arguments, contained in paragraph 145 of the application for annulment, are also inadmissible because they were not sufficiently developed in the application. The complaint alleging breach of the obligation to state reasons on account of a failure to point specifically to the inadmissible elements should be dismissed as ineffective, since all those elements must be rejected as inadmissible.
97.      I wish to add, in the event that the Court were not to agree with my proposal on this matter, that any steps taken by the Chair of the JURI committee and his party to prevent the appellants from taking their seats in the Parliament stem, in my view, from a conflict of a purely political nature, the existence of which is not sufficient to find there to be a breach of the principle of impartiality. (36)
98.      In the light of the foregoing, the third part of the third ground of appeal should be rejected.
4.      The fourth part of the third ground of appeal
(a)    Arguments of the parties
99.      The appellants allege that the General Court committed an error
of law that also involved an error of reasoning and an infringement of the right to effective judicial protection and the rights of the defence, by misconstruing the fourth part of the third plea in law of the application and rejecting it. In their view, that part is independent of the two preceding parts. The appellants submit that they stated in the application for annulment, first, that Rule
9(11) of the Rules of Procedure was illegitimate, disproportionate and infringes the principles of publicity and transparency provided for in Article 15 TFEU and, secondly, that the decision to hold the meetings of the JURI committee in camera prevented them from gathering evidence of a misuse of powers.
100. The Parliament, supported by the Kingdom of Spain, contends that this part should be rejected. It repeats, in particular, the argument put forward in its defence before the General Court and argues that the rules on the confidential nature of those procedures cannot be waived by the Member whose immunity is at issue, since the rule in question is intended to protect not only the interests of that Member, but also those of third parties, as well as of the public prosecutor and the judicial authorities.
(b)    Assessment
101. The General Court took the view, in paragraph 262 of the judgment under appeal, that, since the claims of bias made against the rapporteur and the Chair of the JURI committee were rejected, it was not necessary to assess the fourth part concerning the obstacle created by the confidential nature of that committee’s work to establishing proof of the impact of their alleged bias on the decisions at issue.
102. I note that the fourth part of the third ground of appeal was presented in paragraphs 147 to 162 of the application for annulment, in section
IV.3.4 entitled ‘Effects of the confidential nature of the procedure. Infringement of Article 15 TFEU, in conjunction with Articles 47 and 48 of the Charter. Illegality of Rule
9(11) of the Rules of Procedure’. It is true that the appellants do refer, in paragraphs 147 to 151 of the application, to the confidentiality of the procedure, not in abstracto and in general, but in the context of the difficulties encountered in determining the influence of the Chair of the JURI committee and the rapporteur on the outcome of that procedure.
103. However, in the subsequent paragraphs of the application, the appellants submitted general comments on the validity of Rule
9(11) of the Rules of Procedure and stated, in the second sentence of paragraph 162, that the confidential nature of the procedure constituted a breach of Article 15 TFEU and Article 47 of the Charter, in conjunction with the rights of the defence.
104. The General Court did not respond expressly to the argument based on the invalidity of Rule
9(11) of the Rules of Procedure. However, in any event, since this is a plea that is purely a matter of law, the Court of Justice may remedy the omission of the General Court. (37)
105. In that regard, I note in the first place that Rule
9(11) of the Rules of Procedure provides that the JURI committee must always consider requests relating to procedures on immunity in camera. It is true that it follows from Article 15(1) TFEU, which enshrines the principle of transparency, that the Union’s institutions are to conduct their work as openly as possible. However, provision is not made in that article for the absolute transparency of all the work of the institutions. It is apparent, not least from Article 15(2) TFEU, that the Parliament is to meet in public, but that does not mean that the work of all its committees is made public. Article 232 TFEU recognises the autonomy of the Parliament as regards its internal organisation, which entails the right of that institution to define the limits on the publicity of the work of the committees.
106. As is apparent from the Parliament’s defence, Rule
9(11) of the Rules of Procedure is the result of a balance struck by the Parliament between the principle of transparency and other legitimate interests that must be protected, such as the protection of the confidentiality of criminal proceedings during the investigation stage. In particular, the Parliament states that the purpose of that provision is to protect not only the interests of the Member concerned, but also those of third parties, as well as those of the public prosecutor and the judicial authorities. In that context, I note that the solution adopted by the Parliament is consistent with the recommendations of the Venice Commission, which advocates requests for waiver of immunity being handled behind closed doors, without the member concerned being present. (38) In those circumstances, I see nothing capable of affecting the validity of Rule
9(11) of the Rules of Procedure in the light of Article 15 TFEU.
107. In the second place, the appellants state in their application for annulment that Rule
9(11) of the Rules of Procedure constitutes an unlawful interference with their rights enshrined in Articles 47 and 48 of the Charter. They do not, however, put forward any reasons in that regard. Those arguments should therefore be rejected.
108. For the sake of completeness, I observe that, if the appellants were to be understood to be of the view that their rights of defence were breached by Rule
9(11) of the Rules of Procedure, that argument should be rejected as ineffective. That provision and Article 15 TFEU do not restrict the rights of the parties to the procedure for waiver of immunity, but rather the right of the general public to access the relevant information. The rights of defence of a party to the procedure cannot therefore be restricted by the provisions allowing for a case to be
dealt with
in camera, but potentially they could be by the provisions governing the conduct of the procedure and the participation of the parties, such as, in the present case, the second subparagraph of Rule
9(6) of the Rules of Procedure, which provides that the Member concerned is not to be present during debates of the JURI committee, except for the hearing itself. The appellants refer to that provision for the first time in the appeal, without providing any explanation. There is therefore no need to examine it.
109. In the light of the foregoing, the fourth part of the third ground of appeal should be rejected.
5.      Conclusion on the third ground of appeal
110. In the light of the foregoing, I take the view that the third ground of appeal should be rejected.
E.      The sixth ground of appeal
111. By their sixth ground of appeal, the appellants allege that the General Court erred in law by rejecting the sixth (39) and the seventh plea for annulment, (40) either by departing from its own practice or by making an error of assessment.
112. That ground of appeal is divided into two parts. The appellants allege, in essence, that the General Court, first, erred in law in determining and applying the criteria for waiver of immunity and, second, erred in law by finding there to be no error in the Parliament’s assessment of fumus persecutionis. In the first part, the appellants raise nine specific complaints. (41)
1.      The first and second complaints in the first part
(a)    Arguments of the parties
113. The first complaint in the first part of the sixth ground of appeal alleges infringement of Article 343 TFEU in that the General Court concluded, in paragraph 122 of the judgment under appeal, that that provision does not impose on the Parliament any limit, of any kind whatsoever, as far as concerns its right to waive the immunity of its Members. The appellants state that while the continuation of proceedings, including criminal proceedings, against a Member of the Parliament does not generally prevent that Member from exercising his or her mandate, the situation is different in cases concerning the pre-trial detention of the Members concerned, as is at issue here. The appellants argue that it is in that context that they raised, on several occasions, in their application the principle of proportionality, a principle which they claim the General Court did not take into consideration.
114. The second complaint in that part alleges infringement of Rule
5(2) of the Rules of Procedure in that the General Court concluded, in particular in paragraphs 117 to 122 and 126 of the judgment under appeal, that the existence or absence of fumus persecutionis was the only criterion that the Parliament had to consider. In that regard, the appellants consider that it is apparent from that provision that the Parliament must uphold its integrity as a democratic legislative assembly and ensure the independence of its Members in the performance of their duties.
115. The Parliament, supported by the Kingdom of Spain, contends that those complaints should be rejected,
some of which it submits are based on a misreading of the judgment under appeal, some
are inadmissible and others are unfounded.
(b)    Assessment
116. Relying on paragraph 76 of the judgment in Junqueras Vies, the General Court held, in paragraph 122 of the judgment under appeal, that Article 343 TFEU 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. In the General Court’s view, such an interpretation would deprive the third paragraph of Article 9 of Protocol No 7 of all practical effect.
117. With regard to Rule
5(2) of the Rules of Procedure, the General Court found, in paragraphs 119 and 120 of the judgment under appeal, that, since the Parliament adopted the fumus persecutionis criterion 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, it therefore necessarily considered, by ruling out the existence of fumus persecutionis, that a waiver of the appellants’ immunity would not adversely affect its interests, in particular its proper functioning and its independence.
118. I am of the view that the General Court did not make any error in the cited paragraphs of the judgment under appeal.
119. First, as regards the complaint concerning paragraph 122 of the judgment under appeal, I note, as is clear from my summary of that paragraph, (42) that contrary to what the appellants claim, the General Court did not state that Article 343 TFEU does not impose any limit on the Parliament’s right to waive the immunity of its Members or that the principle of proportionality does not apply to decisions to waive immunity. However, it did state that the risk of an obstacle to the exercise of a mandate, in particular the loss of that mandate, at the end of the proceedings in respect of which the waiver of immunity was sought does not preclude that waiver of immunity. That complaint therefore stems from a misreading of paragraph 122 of that judgment and must, as a result, be rejected as unfounded. Furthermore, the finding made by the General Court in that paragraph is accurate.
120. Secondly, as regards the second complaint, I note that Rule
5(2) of the Rules of Procedure is a general provision establishing the objectives pursued by the Parliament in the exercise of its powers regarding privileges and immunities. That provision does not refer to any criterion that must be taken into consideration when adopting a decision on the request to waive immunity. Such a criterion does, however, appear in point 43 of Notice No 11/2019, which provides that immunity is to be waived unless it appears that the intention underlying the legal proceedings may be to damage a Member’s political activity and thus Parliament’s independence (fumus persecutionis). The use of that criterion by the Parliament comes under the broad discretion which it enjoys in relation to waiving immunity (43) and is, moreover, recommended by the Venice Commission. (44) The adoption of that principle by the JURI committee should be understood, in my view, as following from the finding that the application of the fumus persecutionis criterion allows the objectives set out in Rule
5(2) of the Rules of Procedure to be achieved. In the light of the foregoing, the second complaint should therefore also be rejected.
2.      The third complaint in the third part
(a)    Arguments of the parties
121. The appellants allege that by maintaining, in paragraphs 128 to 131 of the judgment under appeal, that they had not established their entitlement to the immunity afforded in point
(a) of the first paragraph of Article 9 of Protocol No 7, the General Court distorted evidence, erred in law and breached the right to effective judicial protection. Furthermore, the General Court was also wrong to conclude, in paragraphs 132 and 133 of that judgment, that the appellants were not justified in claiming that the decisions at issue had been adopted in breach of the second paragraph of Article 9 of that protocol.
122. The Parliament, supported by the Kingdom of Spain, contends that that complaint should be rejected. In its view, the appellants have no legal interest in challenging the findings made by the General Court in paragraphs 128 and 131 of the judgment under appeal. A potential error affecting those findings cannot lead to the annulment of the decisions at issue, which concern merely the waiver of the appellants’ immunity under point
(b) of the first paragraph of Article 9 of Protocol No 7. In the alternative, the Parliament considers that the appellants’ arguments should be rejected as unfounded.
(b)    Assessment
123. With regard to the extent and scope of the immunity enjoyed by Members in their national territory, the General Court held, in paragraph 130 of the judgment under appeal, that the appellants were not justified in claiming that the Parliament had erred in law by referring to national law as interpreted by the national courts. Based on that interpretation, parliamentary authorisation is not required to continue criminal proceedings against a person who was charged before he or she acquired the status of a Spanish Member of Parliament. In addition, with regard to the appellants’ argument that the immunity provided for in point
(b) of the first paragraph of Article 9 of the Protocol cannot be waived without the immunity provided for in the second paragraph of that article also being waived, the General Court found, in paragraph 133 of that judgment, that, in the circumstances of the present case, the appellants were not justified in claiming that the decisions at issue had been adopted in breach of the second paragraph of Article 9 of that protocol, in particular since the Kingdom of Spain had recognised their status as Members of the Parliament.
124. In the first place, like the Parliament, I am of the view that the complaint relating to the Parliament’s interpretation of point
(a) of the first paragraph of Article 9 of Protocol No 7 is ineffective because it concerns grounds of the judgment under appeal that do not affect the operative part of that judgment. (45) The decisions at issue do not concern the waiver of the immunity referred to in point
(a) of the first paragraph of Article 9 of that protocol.
125. For the sake of completeness, I note that Article 18 of Chapter
VII of Protocol No 7 provides that, for the purposes of applying that protocol, the institutions of the Union are to cooperate with the responsible authorities of the Member States concerned. The Parliament was therefore right to rely on the interpretation of the Spanish courts in order to establish that the appellants did not enjoy the immunity provided for in point
(a) of the first paragraph of Article 9 of that protocol, since they had been charged before being elected to the Parliament.
126. In the second place, as regards the argument relating to the second paragraph of Article 9 of Protocol No 7, it is apparent from the judgment in Junqueras Vies that, while the first paragraph of Article 9 of that protocol provides for immunities which are enjoyed by Members of the European Parliament equally during the entire duration of the sessions of a given term of the Parliament, (46) the second paragraph of Article 9 of the Protocol provides, by contrast, that they also enjoy that immunity before their term of office has begun. (47) The first and second paragraphs of Article 9 of Protocol No 7 thus have different temporal scopes, (48) since, according to settled case-law of the Court, the Parliament must be considered to be in session, even if it is not actually sitting. (49) Accordingly, a Member who, after the opening of the first session of a parliamentary term, has already assumed office enjoys only the protection afforded by the first paragraph of Article 9 of Protocol No 7. It follows that the General Court did not err in law by holding that the appellants were not justified in claiming that the decisions at issue had been adopted in breach of the second paragraph of Article 9 of that protocol.
127. In the light of the foregoing, the third complaint should be rejected.
3.      The fourth complaint in the first part
(a)    Arguments of the parties
128. In the introductory complaint, (50) the appellants allege that the General Court erred in law by concluding, in paragraph 112 of the judgment under appeal, that the Parliament has broad discretion when deciding whether to grant or to refuse a request for waiver of immunity. However, the adoption of the decisions at issue could affect several fundamental rights.
129. In the fourth complaint in the first part of the sixth ground of appeal, the appellants submit, first, that, contrary to what is stated in paragraphs 135 to 143 of the judgment under appeal, the decisions at issue constitute interference with their fundamental rights enshrined in Article 6, Article 39(2) and Article 45 of the Charter. Secondly, they criticise the General Court for having taken the view, in paragraphs 126 and 127 of that judgment, that the legality of the European arrest warrants issued against them had no bearing on the examination of a request for waiver of immunity intended to allow those warrants to be executed. In that regard, the appellants claim that the Parliament was obliged to assess the risks of infringement of their fundamental rights, just like the executing judicial authority in the context of surrender procedures under Framework Decision 2002/584/JHA. (51)
130. The Parliament, supported by the Kingdom of Spain, contends that that complaint should be rejected. It argues that some arguments are inadmissible while others are ineffective, and, in any event, none of them is well founded. As regards the argument concerning paragraphs 126 and 127 of the judgment under appeal, the Parliament contends that it should be rejected in so far as it is based on a misreading of those paragraphs.
(b)    Assessment
131. In paragraph 112 of the judgment under appeal, the General Court observed that, in so far as the third paragraph of Article 9 of Protocol No 7 does not specify the conditions under which the Parliament must assess whether or not to waive immunity, that institution has very 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. The General Court went on to state, in paragraphs 113 and 114 of that judgment, that the substantive criteria for examining requests for waiver of immunity stem not from the Rules of Procedure, in particular Rule
5(2) thereof, but rather from points 41 to 44 of Notice No 11/2009, under which the immunity provided for in Article 9 of Protocol No 7 is to be waived unless the Parliament finds there to be fumus persecutionis. Furthermore, the General Court recalled, in paragraph 115 of that judgment, that the immunities are accorded solely in the interests of the European Union.
132. As is clear from that summary of paragraphs 112 to 115 of the judgment under appeal, the introductory complaint is based on a misreading of paragraph 112 of that judgment. Contrary to what the appellants claim, it is by no means apparent from paragraph 112 nor from the subsequent paragraphs of that judgment that, according to the General Court, the very broad discretion enjoyed by the Parliament means that a decision of the Parliament is incapable of affecting their fundamental rights. The argument based on the fact that an institution’s broad discretion means that it is not required to respect fundamental rights is therefore manifestly erroneous. That complaint should therefore, in my view, be rejected because it is based on a misreading of paragraph 112 of the judgment under appeal.
133. In paragraph 138 of the judgment under appeal, the General Court held that immunity cannot constitute a fundamental right granted to Members of the Parliament since it is granted exclusively in the interests of the Parliament. The fact that a decision to waive immunity alters the legal position of a Member is irrelevant in that regard. The General Court went on to find, in paragraphs 140 and 141 of that judgment, that the waiver of parliamentary immunity does not in itself have any effect on the exercise of the mandate nor on the appellants’ freedom, in particular their freedom of movement, and does not infringe their right to respect for the presumption of innocence. Lastly, the General Court concluded in paragraph 142 of the judgment under appeal that, as a consequence, the argument seeking to establish that such interference does not comply with the requirements laid down in Article 52(1) of the Charter are ineffective and must be rejected on that ground.
134. It should be stated that the General Court did not err in law in those paragraphs of the judgment under appeal. The appellants do not rely on any legal argument that would call into question the General Court’s findings, but simply contest them. I am in complete agreement with the General Court’s view that the waiver of parliamentary immunity, as such, does not have the effect of a Member losing his or her mandate and does not affect his or her freedom of movement, since the immunity in itself is not a fundamental right of a Member.
135. In paragraphs 126 and 127 of the judgment under appeal, the General Court stated that it is not for the Parliament to assess the legality, first, of the acts adopted by the judicial authorities in the course of the proceedings which triggered the request for waiver of immunity, since that issue falls exclusively within the competence of the national authorities, and, secondly, of the national and European arrest warrants adopted as part of the criminal proceedings at issue.
136. As I have observed, (52) Article 18 of Chapter
VII of Protocol No 7 provides that, for the purpose of applying that protocol, the institutions of the Union are to cooperate with the responsible authorities of the Member States concerned. It follows from that fact that, when a request for waiver of immunity is made to it, the Parliament is in principle required, in order to establish the relevant facts, to take as a basis the information provided by the competent national authority regarding the subject matter and the status of the judicial proceedings in respect of which immunity should be waived. Moreover, where certain information is missing or unclear, the JURI committee may ask the authority concerned to provide it with information and explanations, in accordance with Rule
9(5) of the Rules of Procedure. However, the Parliament is not competent to examine the legality of the decisions adopted in the context of a national procedure.
137. Similarly, nor is the Parliament competent to rule on the risk of infringement of fundamental rights arising from the execution of European arrest warrants in the way that judicial authorities would do when called upon to rule on their execution. Not only has such competence not been entrusted to it, but its decision does not have the effect of depriving other authorities of the power to carry out the necessary review of such warrants. The decision to waive parliamentary immunity does not replace the decision of the judicial authorities to execute a European arrest warrant, in the context of which those authorities are required to examine that warrant and, in particular, assess whether any conditions laid down in Framework Decision 2002/584 apply with a view to granting or refusing its execution. The Parliament’s decision does not require the executing authorities to implement a European arrest warrant. It follows that it is not for the Parliament to question such a warrant issued by national authorities or to examine any effect of its execution on the appellants’ fundamental rights.
138. In that context, I note that the Venice Commission makes it clear in its report that the parliamentary body handling a request for waiver of immunity should not make a legal examination of the case as such and, in particular, should not under any circumstances rule on whether there is justification for criminal prosecution. (53)
139. In the light of the foregoing, the fourth complaint should be rejected.
4.      The fifth complaint in the first part
(a)    Arguments of the parties
140. In the fifth complaint, the appellants allege that the General Court erred in law by rejecting their arguments based on the principle of proportionality and thus breached not only that principle but also its obligation to state reasons.
141. The Parliament contends that that claim is inadmissible as it is not sufficiently precise. For its part, the Kingdom of Spain states that that complaint is not linked to any paragraph of the judgment under appeal and is therefore irrelevant.
(b)    Assessment
142. The fifth complaint is, in my view, inadmissible in that it concerns the General Court’s alleged disregard for the principle of proportionality. That complaint, read to that effect, is unreasoned and is confined to a reference to the application for annulment.
143. As regards the appellants’ claim that the General Court did not respond to their arguments concerning compliance with the principle of proportionality, I should point out that it is settled case-law that a plea alleging that the General Court failed to respond to arguments relied on at first instance amounts essentially to pleading a breach of the obligation to state reasons which derives from Article 36 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 of that Statute, and from Article 117 of the Rules of Procedure of the General Court. (54)
144. However, the Court has also consistently held that the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, and that the General Court’s reasoning may therefore be implicit, on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. (55)
145. In that context, there can be no doubt, in my view, that the General Court rejected, even if only implicitly, the complaint alleging disregard for the principle of proportionality, since the appellants submitted, in the sixth plea for annulment, that the authorisation of their arrest was disproportionate given, in the first place, the consequential infringement of their fundamental rights and, in the second place, the stage of the criminal proceedings. (56) With regard to that first argument, as is apparent from my analysis of the fourth complaint, the General Court was right to reject it. As regards the second argument, the General Court held, in paragraph 126 of the judgment under appeal, that it was not for the Parliament to assess the legality of the acts adopted by the judicial authorities in the course of the proceedings, since that issue falls exclusively within the competence of the national authorities. It should therefore be stated that, in the context of the sixth ground of appeal, that judgment is not vitiated by a failure to provide a ruling nor, more generally, by a failure to state reasons in that regard. The statement of reasons for the judgment under appeal enables the persons concerned to know why their arguments were not upheld.
146. In the light of the foregoing, the fifth complaint should be rejected.
5.      The sixth complaint in the first part
(a)    Arguments of the parties
147. In the sixth complaint, the appellants allege that the General Court erred in law by finding in paragraphs 141 to 143 of the judgment under appeal, in principle, that a decision to waive the immunity of a Member of the European Parliament and the procedure that led to its adoption do not – and cannot – infringe the right to respect for the presumption of innocence. In that connection, point
B of the decisions at issue refers to the order of the Tribunal Supremo (Supreme Court) of 25 October 2018, even though that order concerns not the appellants but their co-accused. In addition, since the only document submitted to the members of the JURI committee was the judgment of the Tribunal Supremo (Supreme Court) of 14 October 2019, which convicts other individuals, the adoption of the decisions at issue was based on the assumption that the appellants were guilty, thereby violating their right to be presumed innocent. The same conclusion must be drawn in the light of the fact that, in their view, the General Court failed to examine their arguments alleging a misuse of powers and the existence of an ulterior purpose, arguments relied on in the sixth plea for annulment, and, in so doing, it failed to comply with its obligation to state reasons.
148. The Parliament, supported by the Kingdom of Spain, contends that that complaint should be rejected. It submits, inter alia, that that complaint is based on a misreading of paragraph 141 of the judgment under appeal, in which the General Court simply found that, in itself, the waiver of a Member of Parliament’s immunity did not infringe his or her right to respect for the presumption of innocence. Moreover, with regard to the argument alleging infringement of the obligation to state reasons, the Parliament considers that it must be rejected as inadmissible and, in any event, as unfounded.
(b)    Assessment
149. The General Court held, in paragraph 141 of the judgment under appeal, that a decision to waive immunity does not infringe the right to respect for the presumption of innocence. In its view, the question whether the conditions for waiver of parliamentary immunity, pursuant to Article 9 of Protocol No 7, are met at the time when the request for waiver is submitted is separate from the question whether the facts alleged against the Members in question are established, with the latter question falling within the competence of the Member State’s authorities.
150. As the Parliament observes, the sixth complaint is based on a misreading of the judgment under appeal and, for that reason, should be rejected as unfounded.
151. It appears to me that, by the complaint, the appellants are in reality criticising the General Court for having failed to respond to their arguments, raised in the application for annulment, concerning the account taken by the Parliament of judicial decisions that may be understood to demonstrate their guilt, even though those decisions did not concern them. The fact that, in their view, the Parliament relied on those decisions is relevant having regard to their arguments relating to the misuse of powers and the existence of an ulterior purpose.
152. As I have just observed, (57) first, the plea alleging that the General Court failed to respond to arguments relied on at first instance amounts essentially to pleading a breach of the obligation to state reasons and, secondly, the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case.
153. In that context, it should be found that the General Court did indeed examine, first, point
B of the decisions at issue (58) and, secondly, the potential impact of the inaccurate statements contained therein about the Parliament’s decision to waive immunity. That argument is therefore unfounded.
154. With regard to the arguments relating to a misuse of powers and the existence of an ulterior purpose, they must be rejected as inadmissible since the appellants do not provide, in the appeal, any reasons to support them and refer to the application for annulment in general terms.
6.      The seventh and eighth complaints in the first part
(a)    Arguments of the parties
155. In the seventh and eighth complaints in the first part of the sixth ground of appeal, the appellants allege that the General Court erred in law by assessing, in paragraph 147 to 161 of the judgment under appeal, the Parliament’s incorrect statements contained in points
S and B of the decisions at issue concerning, respectively, the purpose of the parliamentary immunity provided for in Article 9 of Protocol No 7 and the status of the criminal proceedings concerning them. Those incorrect statements had an impact on the Parliament’s decision to waive immunity, since they misled its Members.
156. According to the appellants, first, it is fairly reasonable to assume that the votes of the Members of the European Parliament in favour of the decisions at issue would have been different if they had known that, as regards the immunities provided for in Article 9 of Protocol No 7, point
S of those decisions was manifestly inaccurate. Secondly, if the Parliament had been aware of the fact that, contrary to what is stated in point
B of those decisions, the investigation phase in respect of the appellants was not closed, it could have taken the view that issuing a European arrest warrant against them, before the closure of the investigation phase, was disproportionate. In addition, paragraph 159 of the judgment under appeal is vitiated by an error of law relating to a distortion of the provisions of the Spanish Code of Criminal Procedure.
157. The Parliament, supported by the Kingdom of Spain, contends that both those complaints should be rejected. According to the Parliament, the argument alleging that its decision to waive the appellants’ immunity was based solely on the ground stated in point
S of the decisions at issue is contradicted by its observations contained in points
T to W of those decisions and must be rejected as unfounded. Furthermore, the argument based on the distortion of the provisions of the Spanish Code of Criminal Procedure should be rejected as inadmissible since it is relied on by the appellants for the first time in the appeal. In any event, that argument should be rejected as unfounded. The Kingdom of Spain argues that the eighth complaint is ineffective since it is immaterial, for the purpose of granting the request for waiver of immunity, whether or not the investigation phase was closed.
(b)    Assessment
158. The General Court recalled, in paragraph 148 of the judgment under appeal, that point
S of the decisions at issue restates 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’. In that regard, the General Court held, in paragraph 149 of that judgment, that it was common ground that the appellants 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 concerned activities unrelated to the exercise of parliamentary duties. Nevertheless, it found in paragraph 152 of that judgment, that the general statement contained in point
S of the decisions at issue had not been given effect in the sense that the request for waiver of the immunity of a Member of the Parliament must be granted if it concerns legal proceedings pertaining to facts unrelated to the performance of parliamentary duties.
159. The General Court went on to recall, in paragraph 155 of the judgment under appeal, the wording of point
B of the decisions at issue and found, in paragraph 157 of that judgment, that the appellants were justified in claiming that that point 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 in question had been closed in respect of them. It concluded, however, in paragraph 160 of the judgment under appeal, that it did not appear that that error or, at the very least, that lack of clarity had an impact on the examination of the request for waiver of immunity.
160. Therefore, the General Court did indeed find that certain statements made in points
B and S of the decisions at issue were incorrect. However, it went on to conclude that, contrary to what the appellants submitted, those inaccuracies were incapable of affecting the Parliament’s decision to waive immunity.
161. I am of the view that the General Court’s conclusion is correct. The reasons stated for the decisions at issue are not limited to points
B and S of those decisions. In order to assess the impact of those incorrect statements, account must be taken of the context and of the reasons stated for those decisions in their entirety. In the sixth ground of appeal, the appellants have not put forward any argument capable of demonstrating that the inaccuracies in the statements made in points
B and S were such that the Parliament’s decision to waive immunity would have been different if those statements had been correct. I agree, in particular, with the position of the Kingdom of Spain, namely that, in the case of a decision to waive immunity, it is irrelevant whether or not the investigation phase of the criminal case is closed.
162. In the alternative, with regard to the appellants’ argument that the Parliament could have taken the view that issuing European arrest warrants against them, before the closure of the investigation phase, was disproportionate, I would reiterate (59) that under no circumstances does it fall within the scope of the Parliament’s powers to assess the proportionality of the appellants’ arrest in the light of the stage of the criminal proceedings concerning them.
163. With that in mind, it is my view that the arguments based on provisions of the Spanish Code of Criminal Procedure are ineffective.
164. In the light of the foregoing, the seventh and eighth complaints should be rejected.
7.      The ninth complaint in the first part
(a)    Arguments of the parties
165. In the ninth complaint in the first part of the sixth ground of appeal, the appellants allege that the General Court, in the first place, erred in law in concluding, in paragraphs 162 to 172 of the judgment under appeal, that the Parliament had not disregarded the principles of equal treatment and good administration. In addition, the Parliament did not follow its consistent practice of refusing to waive a Member’s immunity in the cases referred to in paragraphs 162 and 163 of that judgment. In the second place, the General Court also erred in law in concluding, in paragraph 166 of the judgment under appeal, that the elements mentioned in their sixth and seventh pleas for annulment relating to the Parliament’s practices and modalities of work in the field of immunities were no longer relevant, in accordance with point 53 of Notice No 11/2019, which provides that that notice replaces previous notices. In the third place, the General Court distorted the evidence by finding that the appellants had not shown ‘how’ the decisions relied upon were capable of establishing the existence of a particular practice. In the fourth place, in paragraphs 166 to 172 of that judgment, the General Court distorted evidence and erred in law by disregarding all the precedents relied upon by the appellants, as well as the related arguments, in order to establish fumus persecutionis.
166. The Parliament, supported by the Kingdom of Spain, contends that that complaint should be rejected as unfounded. The Parliament argues that neither the principle of good administration nor the principle of equal treatment prohibit it from altering and amending its previous practice. In addition, the arguments alleging that the General Court distorted evidence are inadmissible, since the appellants do not state precisely which errors were made or which evidence was distorted. In any event, those arguments are wholly unfounded.
(b)    Assessment
167. In paragraphs 162 and 163 of the judgment under appeal, the General Court summarised the appellants’ claims relating to the elements of the Parliament’s alleged practice which that institution disregarded.
168. In paragraph 166 of the judgment under appeal, the General Court observed that, in order to establish the existence of a practice of the Parliament consisting in the refusal 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 appellants relied on Notice No 11/2003 of 6 June 2003. That notice was drawn up by the Parliament’s Committee on Legal Affairs and the Internal Market, which was responsible at the time for issues relating to immunities, and is a summary of the Parliament’s previous decision-making practice. The General Court provided a summary of the relevant passages of that notice and then observed that it had been replaced on 19 November 2019 by Notice No 11/2019.
169. The General Court set out, in paragraph 167 of the judgment under appeal, the Parliament’s argument that it had abandoned its practice, as summarised in Notice No 11/2003, in the sense of limiting cases in which the Parliament refused to waive immunity.
170. In paragraph 168 of the judgment under appeal, the General Court noted that the Parliament’s practice of refusing to waive immunity if the purpose of the legal proceedings in question is to hinder the exercise of a Member’s parliamentary duties is not disputed. It went on to find that, as regards cases in which the Parliament refuses to waive the immunity of one of its Members, the appellants simply relied on certain decisions of the Parliament, without showing how those decisions are capable of establishing the existence of such a practice. Moreover, the General Court pointed out that most of the decisions relied on by the appellants had been adopted between 1982 and 2003.
171. I am of the view that the General Court did not commit any error in the paragraphs at issue of the judgment under appeal.
172. As is apparent from point 53 of Notice No 11/2019, that notice replaced all previous notices and any other documents of the JURI committee regarding the Parliament’s practices and modalities of work in the field of immunities. This shows the Parliament’s clear intention to change its previous practice. In view of the discretion enjoyed by the Parliament as regards the waiver of parliamentary immunity, I am of the view that it was entitled to act in that way, especially since the alteration of its practice was justified by the analysis of case-law.
173. That conclusion is borne out by the Court of Justice, which has already had occasion to find that Notice No 11/2003 ceased to apply following the publication of Notice No 11/2019 and that the General Court was therefore not required to take it into
account. (60) Since the appellants base their line of argument on the Parliament’s former practice, as summarised in Notice No 11/2003, the finding by the Court of Justice applies, a fortiori, to any practice of the Parliament prior to Notice No 11/2019.
174. In view of those circumstances, the appellants’ arguments based on the Parliament’s previous practice must be considered unfounded.
175. In the alternative, as regards the arguments based on the General Court’s alleged distortion of the evidence, I am of the view that they are inadmissible since the appellants do not state precisely which evidence was distorted or point to the errors of appraisal by the General Court which, in their view, led to that distortion. (61) They simply refer in abstract and general terms to the evidence produced in support of their action for annulment. In so doing, they are in reality asking the Court of Justice to assess the evidence submitted with the application for annulment.
176. In those circumstances, the ninth complaint should be rejected.
8.      The second part of the sixth ground of appeal
(a)    Arguments of the parties
177. The second part of the sixth ground of appeal is based on the error in law allegedly committed by the General Court in concluding that the Parliament had not erred in the assessment of fumus persecutionis.
178. In the first place, the appellants allege that the General Court failed to comply with its obligation to state reasons. They again (62) contest the principle, set out in paragraph 112 of the judgment under appeal, that the Parliament has broad discretion when deciding whether to grant or to refuse a request for waiver of immunity.
179. In the second place, the appellants claim that the General Court breached its obligation to state reasons and disregarded the right to effective judicial protection ‘by failing to take a stand on the standard of review applied’ and by failing to apply the standards of review set out in the application for annulment.
180. In the third place, the General Court distorted evidence, committed errors of law, breached its obligation to state reasons and disregarded the right to effective judicial protection ‘by not addressing most of the arguments which, being relevant for the assessment of fumus persecutionis, were raised by them in their sixth, seventh and eighth pleas for annulment’. The appellants refer, in that regard, to the arguments which they put forward in the application for annulment. They also claim that the inaccurate wording of point
S of the decisions at issue affected the assessment of fumus persecutionis.
181. In the fourth place, in paragraphs 174 to 186 of the judgment under appeal, the General Court distorted evidence and committed an error of law
in its assessment of the errors committed by the Parliament, according to the appellants, in its examination of fumus persecutionis.
182. Specifically, the appellants challenge
(i) the General Court’s assessment vis-à-vis the lack of any impact on the examination of fumus persecutionis of the date on which the European arrest warrants were issued (paragraph 174 of that judgment) and of the fact that there were no European arrest warrants in force between July 2018 and October or November 2019 (paragraphs 175 to 178 of the judgment under appeal); (ii) the General Court’s finding, in paragraphs 179 to 182 of that judgment, that the arguments based on the truth of the facts alleged against them, their classification under Spanish criminal law and the question whether or not those facts justified criminal proceedings were ineffective; (iii) the General Court’s assessment, in paragraphs 183 and 184 of the judgment under appeal, of the relevance of the factors taken into account by the Parliament in the assessment of fumus persecutionis; and (iv) the General Court’s error in law in taking the view, in paragraph 185 of that judgment, that it was not for the Parliament to assess the legality of the acts adopted by the judicial authorities in the course of the criminal proceedings at issue. Each of those challenges made
by the appellants is followed either by their own assessment of the relevance of the factors mentioned for the assessment of fumus persecutionis, or a reference to other grounds of appeal or the mere statement that the General Court erred in law.
183. The Parliament, supported by the Kingdom of Spain, contends that the appellants’ arguments should be rejected as either inadmissible or unfounded.
(b)    Assessment
184. In paragraph 183 of the judgment under appeal, the General Court first of all found, in order to conclude that there was no fumus persecutionis, that the Parliament had relied on a number of factors considered together, namely the fact that the alleged offences were committed in 2017, whereas the appellants had acquired the status of Members of the Parliament on 13 June 2019, and the facts that the appellants had been charged on 21 March 2018, at a time when acquisition of the status of Members of the European Parliament was hypothetical, and that that indictment also covered other persons who were not Members of the Parliament.
185. The General Court went on to find, in paragraph 186 of the judgment under appeal, that the appellants had not established that, by relying on the circumstances concerned (as recalled in the preceding point) in order to rule out the existence of fumus persecutionis, the Parliament had committed a manifest error of assessment. In that regard, in the General Court’s view, the facts that (i) the appellants 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 appellants’ claims challenging the impartiality of the judicial authorities involved in the criminal proceedings at issue. In addition, for the purpose of establishing the existence of that manifest error of assessment by the Parliament, the appellants cannot reasonably rely on events subsequent to the decisions at issue, such as the communication from the Central Electoral Commission of 3 November 2022 and the fact that they themselves and their advisors were spied on by the Spanish authorities.
186. It is my view that the General Court did not err in its analysis of the Parliament’s assessment of fumus persecutionis. I agree, in particular, with the view that the Parliament has a broad discretion, having regard to all the relevant circumstances, to establish the existence of fumus persecutionis and that its decision could be annulled solely in the event of a manifest error in that assessment. (63) The General Court’s assessment that the Parliament did not make such a manifest error is not, in my view, erroneous.
187. For the sake of completeness, as regards, in the first place, the appellants’ arguments summarised in point 178 of this Opinion, they are, in my view, unfounded. Although the appellants formally allege a breach of the obligation to state reasons, I am nevertheless of the view that, by those arguments, they are in reality challenging the principle, set out in paragraph 112 of the judgment under appeal, upon which the General Court based its assessment. I have already examined those arguments in the first part of the sixth ground of appeal, in connection with the alleged violation of the appellants’ fundamental rights. (64) If read more generally, the finding contained in paragraph 112 of that judgment is correct, as I have already set out. (65)
188. In the second place, as regards the arguments summarised in points 179 and 180 of this Opinion, they are, in my view, inadmissible since they are imprecise and seek a re-examination of the arguments contained in the application for annulment. I should point out that, according to settled case-law, an appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court does not satisfy the requirements relating to the duty to state reasons under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice. (66) This is the case with the arguments set out in points 179 and 180 of this Opinion, since the appellants merely refer in general terms to the arguments contained in the application for annulment.
189. Lastly, as for the arguments summarised in points 181 and 182 of this Opinion, the appellants simply either put forward their view as to the impact of certain factors deemed relevant or irrelevant by the Parliament (paragraphs 174 to 182 of the judgment under appeal), refer to the pleas for annulment (paragraphs 183 to 184 of that judgment) or state that the General Court erred in law (paragraphs 185 and 186 of the judgment). Those arguments are therefore inadmissible since the appellants do not point to an error in the General Court’s reasoning.
190. Be that as it may, assuming those arguments are admissible, they would have to be rejected as unfounded, as they cannot call into question my finding set out in point
186 of this Opinion.
191. In the light of the foregoing, the second part of the sixth ground of appeal should be rejected.
9.      Conclusion on the sixth ground of appeal
192. In the light of the foregoing, I am of the view that the sixth ground of appeal should be rejected.
F.      The fifth ground of appeal
193. By their fifth ground of appeal, the appellants allege that the General Court erred in law by rejecting the fifth plea for annulment, alleging breach of the principle of legal certainty relating to the lack of clarity of the decisions at issue. They claim, in that regard, that the General Court failed to take account of the fact that the Parliament (i) had never dealt with a request for waiver of immunity concerning the continuation of a surrender procedure pursuant to Chapter
2 of Framework Decision 2002/584 and (ii) waived for the first time just one of the immunities provided for in Article 9 of Protocol No 7. This ground of appeal is divided into two parts.
1.      The first part of the fifth ground of appeal
(a)    Arguments of the parties
194. By the first part of the fifth ground of appeal, the appellants allege that the General Court erred in law by taking the view, in relation to the proceedings in respect of which immunity was waived, that the decisions at issue did not lack clarity. In that regard, they contest the interpretation of the decisions at issue set out by the General Court in paragraphs 94 to 97 of the judgment under appeal, which, in their view, is not the only possible interpretation. They argue, inter alia, that the sole purpose of the requests for waiver of immunity concerning them was the continuation of the ongoing surrender procedures, namely the procedures for execution of the European arrest warrants in Belgium and the United Kingdom.
195. The Parliament, supported by the Kingdom of Spain, contends that this part should be rejected, arguing that the arguments are inadmissible or ineffective and, in any event, unfounded.
(b)    Assessment
196. The General Court examined the decisions at issue in paragraphs 95 and 96 of the judgment under appeal. It stated, first, that, according to point 1 of their operative part, those decisions waived the appellants’ 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. Secondly, the General Court listed the passages of those decisions indicating that the waiver of immunity had been requested in order to remove the barriers to the execution of the European arrest warrants issued against the appellants. The General Court thus concluded that the decisions at issue, read independently or in conjunction with the requests for waiver of immunity, were not unclear.
197. I agree with the General Court’s conclusion. The interpretation of the requests for waiver of immunity proposed by the appellants, namely that their sole purpose was the execution of the European arrest warrants in Belgium and the United Kingdom, is not sustainable
if one takes into account, not only certain factors
drawn from the context, as the appellants do, but also the decisions at issue in their entirety.
198. It is true that Article 9(1) of Framework Decision 2002/584 does provide that the judicial authority issuing a European arrest warrant may transmit that warrant directly to the executing judicial authority when the location of the requested person is known. However, such transmission does not have the effect of limiting the scope of a European arrest warrant to the territory of the Member State of that executing authority. That European arrest warrant can still be executed in all Member States. Thus, in the absence of explicit statements made in the requests for waiver of immunity at issue indicating that immunity was to be lifted by the Parliament solely in connection with the execution of the European arrest warrants in Belgium and the United Kingdom, the appellants’ interpretation of those requests and of the decisions at issue must be rejected as erroneous. The General Court did not therefore err in law in concluding that it is apparent from the decisions at issue that the Parliament decided to waive the appellants’ immunity in the territory of all Member States, except for the Spanish territory.
199. In the light of the foregoing, the first part of the fifth ground of appeal should be rejected.
2.      The second part of the fifth ground of appeal
(a)    Arguments of the parties
200. The second part of this ground of appeal is based on the error in law allegedly committed by the General Court in taking the view, in paragraphs 98 to 109 of the judgment under appeal, that the decisions at issue did not lack clarity as regards the measures that may be adopted in the context of the execution of the European arrest warrants. Thus, the appellants claim that the General Court erred in law by misinterpreting the scope of the immunities provided for in point
(a) of the first paragraph and in the second paragraph of Article 9 of Protocol No 7, and by finding that only the immunity provided for in point
(b) of the first paragraph of Article 9 of that protocol constituted an obstacle to the appellants’ arrest and surrender to the Spanish authorities. In so doing, the General Court distorted evidence. In addition, the appellants again raise arguments that form the subject matter of the fourth part of the third ground of appeal.
201. The Parliament, supported by the Kingdom of Spain, contends that that part should be rejected and states that the complaints raised by the appellants are ineffective, since the requests for waiver of immunity concerned only immunity under point
(b) of the first paragraph of Article 9 of Protocol No 7. In the Parliament’s view, the complaints relating to paragraphs 103 and 106 to 109 of the judgment under appeal are based on a misreading of those paragraphs.
(b)    Assessment
202. In paragraphs 101 to 105 of the judgment under appeal, the General Court set out the content of the decisions at issue and the related conclusion of the Parliament, namely 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 appellants’ arrest. In addition, it held in paragraphs 106 to 108 of that judgment that the second paragraph of Article 9 of that protocol did not confer on the appellants protection separate from that which they enjoyed under the first paragraph of Article 9 of Protocol No 7.
203. As a preliminary point, it should be observed that, since the requests for waiver of immunity concerned only the immunity provided for in point
(b) of the first paragraph of Article 9 of Protocol No 7, the appellants’ complaints regarding any observations by the General Court relating to the scope of their immunity in Spanish territory are ineffective. First, those complaints are directed against grounds which have no bearing on the operative part of the judgment under appeal. (67) Second, as the Parliament has rightly observed, the General Court reproduced, in paragraphs 100 to 105 of that judgment, the content of several points of the decisions at issue as well as the conclusions made by the Parliament, and those paragraphs of the judgment under appeal by no means set out the General Court’s own interpretation of the scope of the immunity provided for in point
(a) of the first paragraph of Article 9 of that protocol.
204. In the first place, as regards the appellants’ arguments based on the immunity provided for in the second paragraph of Article 9 of Protocol No 7, which is allegedly independent from the immunity provided for in the first paragraph of that article, those arguments should, in my view, be rejected as unfounded. As I noted in my analysis of the sixth ground of appeal, (68) after the opening of the first session of a parliamentary term and the actual assumption of the duties of an MEP, a Member enjoys only the protection provided for in the first paragraph of Article 9 of that protocol. In the present case, the immunity provided for in point
(b) of the first paragraph of Article 9 of Protocol No 7 was lifted after the appellants actually took up their duties as Members. At that stage, they likewise ceased to enjoy the protection provided for in the second paragraph of Article 9 of that protocol. In order to guarantee the protection provided for in the second paragraph of Article 9 of Protocol No 7, there was thus no need to clarify, in the decisions at issue, the measures that may be adopted in the context of the execution of the European arrest warrants.
205. In the second place, as regards the arguments alleging the distortion of evidence, I am of the view that they should be rejected. The arguments concerning, first, the scope of the appellants’ immunity, as provided for in point
(a) of the first paragraph of Article 9 of Protocol No 7, are ineffective since the line of argument based on the alleged error by the General Court is, as I have just stated, (69) ineffective. Secondly, the arguments regarding the immunity provided for in point
(b) of the first paragraph of Article 9 of that protocol are unfounded, since the General Court did not err in the interpretation of the judgment in Junqueras Vies.
206. In the third place, as regards
the argument based on the confidentiality of the procedure conducted before the JURI committee, I have already examined that argument. (70)
207. In the light of the foregoing, the second part of the fifth ground of appeal should be rejected.
3.      Conclusion on the fifth ground of appeal
208. In the light of the foregoing, I take the view that the fifth ground of appeal should be rejected.
G.      Costs
209. With regard to the appeal lodged by the first appellant and the third appellant, in accordance with Article 142 of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings pursuant to Article 184 of those Rules, the costs are, in such cases, in the discretion of the Court. In the present case, since the circumstances justifying a finding that there is no need to adjudicate on the appeal are beyond the parties’ control, the parties should each be ordered to bear their own costs.
210. As regards the appeal lodged by the second appellant, since this Opinion is confined to an analysis of the third, fifth and sixth grounds of appeal, I will not make a proposal as to costs, since the solution in that regard is dependent on the outcome of the other grounds of appeal, in accordance with Article 138 of the Rules of Procedure.
V.      Conclusion
211. In the light of all the foregoing considerations, I propose that the Court should:
–        declare that there is no need to adjudicate on the appeal lodged by Mr Carles Puigdemont i Casamajó and Ms Clara Ponsatí i Obiols;
–        in relation to the appeal lodged by Mr Carles Puigdemont i Casamajó and Ms Clara Ponsatí i Obiols, order the parties
each to bear their own costs;
–        reject the third, fifth and sixth grounds of the appeal lodged by Mr Antoni Comín i Oliveres.
1      Original language: French.
2      I note, as is apparent from paragraph 54 of the judgment under appeal, that those three decisions are virtually identical, with the exception of the names of the Members concerned, the date on which certain judicial acts were adopted and, as regards
Ms Ponsatí i Obiols, 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.
3      OJ 2012 C 326, p. 266.
4      OJ 2019 L 302, p. 1, in the version prior to amendment by the decision of the Parliament of
17 January 2023.
5      DOGC No 7449A of 6 September 2017, p. 1.
6      DOGC No 7451A of 8 September 2017, p. 1.
7      Namely, the third, fifth, sixth and seventh pleas.
8      Judgment of 6 September 2018, Bank Mellat v Council (C‑430/16 P, EU:C:2018:668, paragraph 49 and the case-law cited).
9      Judgment of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 58 and the case-law cited).
10      Judgment of 13 July 2023, D & A Pharma v EMA (C‑136/22 P, EU:C:2023:572, paragraph 44 and the case-law cited).
11      Judgment of 18 October 2018, Gul Ahmed Textile Mills v Council (C‑100/17 P, EU:C:2018:842, paragraph 37 and the case-law cited).
12      See point 22 of this Opinion.
13      I note in that regard that, on 12 September 2024, the second appellant brought before the General Court an action under Article 263 TFEU, registered under number T‑477/24, seeking the annulment of the European Parliament’s decision not to recognise him as an elected Member of the Parliament for the parliamentary term 2024-2029. That case was removed from the register, following the discontinuance of the proceedings by that appellant, by order of the President of the Eighth Chamber of the General Court of 14 November 2024, Comín i Oliveres v Parliament (T‑477/24, EU:T:2024:836).
14      Judgment of 19 December 2019 (C‑502/19, EU:C:2019:1115, operative part) (‘the judgment in Junqueras Vies’).
15      See my Opinion in Junqueras Vies (C‑502/19, EU:C:2019:958, points 3 and 4).
16      See, in that regard, ECtHR, 17 May 2016, Karácsony and Others v. Hungary (CE:ECHR:2016:0517JUD004246113, §
138), and ECtHR, 20 December 2016, Uspaskich v. Lithuania (CE:ECHR:2016:1220JUD001473708, §
98), cited by the Court of Justice in the judgment in Junqueras Vies.
17      The judgment in Junqueras Vies (paragraph 84 and the case-law cited).
18      See my Opinion in Junqueras Vies (C‑502/19, EU:C:2019:958, point 5).
19      ECtHR, 20 December 2016, Uspaskich v. Lithuania, CE:ECHR:2016:1220JUD001473708, § 91.
20      See, inter alia, judgments of
17 January 2013, Gollnisch v Parliament (T‑346/11 and
T‑347/11, EU:T:2013:23, paragraph 60); of
8 November 2018, Troszczynski v Parliament (T‑550/17, EU:T:2018:754, paragraph 44); of
1 December 2021, Jalkh v Parliament (T‑230/21, EU:T:2021:848, paragraph 24); and of
26 June 2024, Fest v Parliament (T‑305/23, EU:T:2024:422, paragraph 24).
21      The General Court classifies decisions to waive immunity as ‘decisions of a political nature’.
In that regard, it is apparent from the Report on the Scope and Lifting of Parliamentary Immunities adopted by the Venice Commission at its 98th plenary session (Venice, 21-22 March 2014) (‘the Venice Commission report’) that that classification reflects that of some national legal systems (paragraph 135 of the Venice Commission report). Regardless of the term used to describe the nature of that decision, the broad discretion enjoyed by the Parliament in adopting it is the most important factor.
22      Judgment of
17 September 2020, Troszczynski v Parliament (C‑12/19 P, EU:C:2020:725, paragraph 25).
23      See, to that effect, order of the Vice-President of the Court of Justice of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain
(C‑629/21 P(R), EU:C:2022:413, paragraphs 193
and 194).
24      Judgment of 1 February 2024, Scania and Others v Commission (C‑251/22 P, EU:C:2024:103, paragraph 70
and the case-law cited).
25      The second sentence of point 8 of Notice No 11/2019 is irrelevant to the issue forming the subject of the first part of the third ground of appeal. However, it will be relevant to the analysis of the second part of that ground of appeal and will be set out in the next section.
26      Judgment of
22 December 2022, Parliament v Moi (C‑246/21 P, EU:C:2022:1026, paragraph 35
and the case-law cited).
27      See point 60 of this Opinion.
28      Judgment of
7 March 2024, Nevinnomysskiy Azot and NAK “Azot” v Commission (C‑725/22 P, EU:C:2024:217, paragraph 94
and the case-law cited).
29      Judgment of
12 December 2024, DD v FRA (C‑680/22 P, EU:C:2024:1019, paragraph 34
and the case-law cited).
30      Judgment of
12 December 2024, DD v FRA (C‑680/22 P, EU:C:2024:1019, paragraph 35
and the case-law cited).
31      Judgment of
11 December 2019, Mytilinaios Anonymos Etairia – Omilos Epicheiriseon (C‑332/18 P, EU:C:2019:1065, paragraph 149
and the case-law cited).
32      See judgment of
16 September 2020, BP v FRA (C‑669/19 P, EU:C:2020:713, paragraph 41
and the case-law cited).
33      See judgment of
16 September 2020, BP v FRA (C‑669/19 P, EU:C:2020:713, paragraph 41
and the case-law cited).
34      See, to that effect, judgment of 3 March 2022, WV v EEAS (C‑162/20 P, EU:C:2022:153, paragraphs 67 to 69 and the case-law cited).
35      Judgment of 9 November 2017, TV2/Danmark v Commission (C‑649/15 P, EU:C:2017:835, paragraph 61
and the case-law cited).
36      See point 54 of this Opinion.
37      Judgment of
9 September 2003, Kik v OHIM (C‑361/01 P, EU:C:2003:434, paragraph 101).
38      See
paragraph 194
of the Venice Commission report.
39      Alleging infringement of the immunities provided for in Article 343 TFEU
and in Article 9
of Protocol No 7, read in conjunction with Article 6, Article 39(2) and Article 45
of the Charter as well as Rule
5(2) of the Rules of Procedure.
40      Alleging breach of the principles of good administration and equal treatment.
41      The nine complaints in the first part are preceded by an introductory complaint relating to the infringement of the appellants’ fundamental rights. Since that question forms the subject of the fourth complaint, there is no need to consider it as a separate complaint and I will therefore examine it in the context of the fourth complaint.
42      See point 116 of this Opinion.
43      See point 43 of this Opinion.
44      See paragraphs 162, 188 and 190 of the Venice Commission report.
45      Judgment of
27 April 2023, Fondazione Cassa di Risparmio di Pesaro and Others v Commission (C‑549/21 P, EU:C:2023:340, paragraph 80
and the case-law cited).
46      The judgment in
Junqueras Vies, paragraph 78.
47      The judgment in
Junqueras Vies, paragraph 80.
48      The judgment in
Junqueras Vies, paragraph 79.
49      Judgment of
10 July 1986, Wybot (149/85, EU:C:1986:310, paragraph 27).
50      See footnote 41 to this Opinion.
51      Council Framework Decision
of
13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).
52      See point 125 of this Opinion.
53      See paragraph 168
of the Venice Commission report.
54      Judgment of 28 September 2023, Changmao Biochemical Engineering v Commission (C‑123/21 P, EU:C:2023:708, paragraph 185
and the case-law cited).
55      Judgment of 4 October 2024, Mylan IRE Healthcare v Commission (C‑237/22 P, EU:C:2024:850, paragraph 84
and the case-law cited).
56      Paragraphs 339
to 365 of the application for annulment.
57      See points 143 and
144 of this Opinion.
58      See the next section of this Opinion.
59      See points 138 and
145 of this Opinion.
60      Order of
22 December 2022, Jalkh v Parliament (C‑82/22 P, EU:C:2022:1039, paragraph 38).
61      See, in that regard, judgment of
12 December 2024, DD v FRA (C‑680/22 P, EU:C:2024:1019, paragraph 35
and the case-law cited).
62      See point 128 of this Opinion.
63      See, in that regard, Section IV.C of this Opinion, in particular points 43 to 45.
64      See Section
IV.E.1 of this Opinion.
65      See
Section
IV.C of this Opinion, in particular points 43 to
45.
66      Judgment of
22 December 2022, Parliament v Moi (C‑246/21 P, EU:C:2022:1026, paragraph 34
and the case-law cited).
67      See, to that effect, judgment of
27 April 2023, Fondazione Cassa di Risparmio di Pesaro and Others v Commission (C‑549/21 P, EU:C:2023:340, paragraph 80
and the case-law cited).
68      See point 126 of this Opinion.
69      See point 203 of this Opinion.
70      See Section
IV.D.4 of this Opinion.