Appeal brought on 25 February 2021 by Oriol Junqueras i Vies against the order of the General Court (Sixth Chamber) delivered on 15 December 2020 in Case T-24/20, Junqueras i Vies v Parliament

(Case C-115/21 P)

(2021/C 163/23)

Language of the case: Spanish

Parties

Appellant: Oriol Junqueras i Vies (represented by: A. Van den Eynde Adroer, abogado)

Other party to the proceedings: European Parliament

Form of order sought

The appellant claims that the Court should:

— set aside the order of 15 December 2020 of the Sixth Chamber of the General Court of the European Union in Case T-24/20;

— declare the present appeal to be fully admissible;

— reinstate the proceedings so that, once the appeal has been declared admissible, the Sixth Chamber of the General Court of the European Union may continue its assessment thereof;

— order the European Parliament to pay the costs for the proceedings relating to the plea of inadmissibility and the present appeal proceedings.

Pleas in law and main arguments

First: Error of law in the interpretation and application to the present case of Articles 13(3) and 7(3) of the Act concerning the election of the members of the European Parliament by direct universal suffrage (‘the European Electoral Act’) (1976) (1). There has been no withdrawal of the mandate but rather application of a ground for incompatibility not provided for in Article 7(3) of the European Electoral Act (1976). The European Parliament could not take note of any withdrawal of the mandate of Mr Junqueras nor of any ground for incompatibility established in accordance with Article 7(3) of the European Electoral Act (1976) since neither existed. By ‘taking note’, the European Parliament gave legal effects to a decision which could have no such effects and which then became an act against which an action for annulment could be brought under Article 263 TFEU, infringing Mr Junqueras’ rights (in particular [those under] Article 39 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 9 of Protocol No 7 on the privileges and immunities of the European Union).

Second: Error of law in the interpretation and application of Rule 4(7) of the Rules of Procedure of the European Parliament (‘the Rules of Procedure’). The contested order is wrong in law in so far as it finds that the European Parliament does not have the power to refuse to recognise the grounds for incompatibility in accordance with that rule. On account of the failure to apply Rule 4(7) of the Rules of Procedure, the decision of the European Parliament is a decision that alters the legal position of Mr Junqueras by affecting his rights (in particular [those under] Article 39 of the Charter and Article 9 of Protocol No 7 on the privileges and immunities of the European Union). Consequently, the contested order is wrong in law in so far as it finds that an action for annulment may not be brought under Article 263 TFEU.

Third: Misinterpretation of Articles 8 and 12 of the European Electoral Act (1976) and Rule 3(3) of the Rules of Procedure in so far as the ground for incompatibility applied to Mr Junqueras is not applicable to the electoral procedure. It cannot be concluded that the State may establish that ground for incompatibility in accordance with the electoral procedure legislation laid down in the European Electoral Act (1976). The order is wrong in not finding that Article 13(3) of the European Electoral Act and Rule 4(7) of the Rules of Procedure are incompatible with Article 39(1) and (2), Article 41(1) and (2) and Article 21(2) of the Charter in so far as they lay down limitations to the rights in breach of Article 52(1) and (3) of the Charter. The order is wrong in not taking into account the fact that, in the hierarchy of norms, the Charter has been elevated to the rank of primary law of the European Union. By applying rules contrary to the Charter, the contested act is clearly a decision that alters the legal position of Mr Junqueras and against which an action for annulment may be brought in accordance with Article 263 TFEU. The contested order is therefore wrong in law. In the alternative, the order should have applied an interpretation of Article 13(3) of the European Electoral Act (1976) and of Rule 4(7) of the Rules of Procedure that is consistent with the rights protected by the Charter and the case-law of the Court of Justice of the European Union, and should also have taken into account the exceptional circumstances of the present case and the information already available to the European Parliament. The contested order is wrong in law in so far as it did not find that in this specific case it could be concluded that there was material inaccuracy pursuant to Rule 4(7) of the Rules of Procedure, enabling the European Parliament to refuse to declare the seat vacant or to recognise the ground for incompatibility applied. Accordingly, the contested order is wrong in law since the contested act is a decision which produces legal effects in relation to Mr Junqueras and against which an action for annulment may be brought under Article 263 TFEU.

Fourth: The order under appeal is wrong in law in so far as it finds that an initiative of the President of the European Parliament in accordance with Rule 8 of the Rules of Procedure is not binding under EU law. The legal order must be interpreted as a whole and Article 39 of the Charter (the application of which is mandatory for the Member States under Article 51(1) of the Charter), the duty of sincere cooperation, Article 9 of Protocol No 7 on the privileges and immunities of the European Union, and Article 6 of the Rules of Procedure make it obligatory that Mr Junqueras’ rights be respected where the Member State is notified of the situation by the President of the European Parliament in accordance with Rule 8 of the Rules of Procedure. The order under appeal erred in finding that there are no special circumstances in the present case on account of which the inaction of the European Parliament amounts to an act against which an action for annulment may be brought (a number of previous requests for protection of Mr Junqueras’ immunity which have not been addressed and, above all, a judgment of the Court of Justice of the European Union recognising Mr Junqueras as an elected [Member of the European Parliament], which establish that his rights have been infringed by the failure to request the waiver of his immunity). The order under appeal erred in finding that, in the particular circumstances of the present case, the refusal to consider a request for urgent protection on the basis of Rule 8 of the Rules of Procedure constitutes a decision which has legal effects on the protection of Mr Junqueras’ immunity and, accordingly, against which an action for annulment may be brought under Article 263 TFEU.

(1) OJ 1976 L 278, p. 5.