Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 16 June 2022 ( )

Case C‑115/21 P

Oriol Junqueras i Vies

v

European Parliament

(Appeal – Institutional law – Act concerning the election of the representatives of the European Parliament – Article 13 – Withdrawal of mandate following a criminal conviction – Rules of Procedure of the European Parliament – Second subparagraph of Rule 4(4), and Rule 8 – Declaration of the President of the European Parliament taking official note that the seat is vacant – Request to take urgent action to assert the immunity of a Member of the European Parliament – Action for annulment – Acts not open to challenge – Inadmissibility)





Introduction

1. This case arises out of the events surrounding the referendum on self-determination of the autonomous community of Catalonia (Spain), which was held in October 2017. The appellant, Mr Oriol Junqueras i Vies, was the Vice President of the Gobierno autonómico de Cataluña (Autonomous Government of Catalonia) at the time of that referendum, which was subsequently declared illegal by the Tribunal Constitucional (Constitutional Court, Spain). Following those events, criminal proceedings were brought against a number of people, including the appellant, who was remanded in custody.

2. While the criminal proceedings were ongoing, the appellant stood, successfully, in the elections to the European Parliament held on 26 May 2019. However, by order of 14 June 2019, the Tribunal Supremo (Supreme Court, Spain) refused him special authorisation to leave prison in order to attend the Junta Electoral Central (Central Electoral Board, Spain) and take the oath to abide by the Spanish Constitution that is required, under Spanish electoral legislation, of persons elected to the Parliament. Following that refusal, the Central Electoral Board adopted a decision finding that the appellant had not taken the oath in question, declared the Parliament seat assigned to him to be vacant, and suspended all the privileges to which he might have been entitled by reason of his office. At the same time, the Central Electoral Board provided the Parliament with a list of the Members of the Parliament elected in Spain, which did not include the name of the appellant.

3. The appellant brought an action challenging the order of 14 June 2019 before the Tribunal Supremo (Supreme Court), in which he relied on the immunity provided for in Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union, ( ) which is annexed to the EU and FEU Treaties (‘the Protocol on Privileges and Immunities’). In the course of those proceedings, that court referred a series of questions concerning the interpretation of that protocol to the Court of Justice for a preliminary ruling. ( ) Without waiting for an answer to those questions, on 14 October 2019, which was the same day as the hearing before the Court of Justice, the Tribunal Supremo (Supreme Court) gave a judgment in which, inter alia, it sentenced the appellant to imprisonment and forfeiture of civil rights for a period of 13 years.

4. In its judgment of 19 December 2019, Junqueras Vies, ( ) the Court of Justice ruled that the acquisition of the status of Member of the European Parliament, for the purposes of Article 9 of the Protocol on the privileges and immunities, occurs because of and at the time of the official declaration of the election results carried out by the Member States, such that the elected person obtains immunity under the second paragraph of that article. Furthermore, that immunity entails that the measure of provisional detention imposed on the person concerned must be lifted, in order to enable that person to travel to the European Parliament and complete the formalities required by EU law, unless the authority in question requests the Parliament to waive the immunity of the Member concerned. ( )

5. By order of 9 January 2020, the Tribunal Supremo (Supreme Court) ruled on the effects of that judgment on the criminal proceedings. That court held, in particular, that it was not appropriate to authorise the appellant to travel to the Parliament, to authorise his release, to set aside the judgment of 14 October 2019 or to ask the Parliament to waive immunity. It held that, given the stage that had been reached in the criminal proceedings against the appellant at the time of his election to the Parliament, he was not covered by parliamentary immunity under Spanish law. ( ) The Central Electoral Board also declared the appellant to be ineligible, by reason of the custodial sentence imposed on him.

6. Following those events, the appellant lost his status as a Member of the Parliament. He brought proceedings before the General Court seeking to challenge various measures taken in relation to him by the President of the European Parliament, as well as the refusal of the President to take other measures. Those actions were dismissed by the General Court as inadmissible and gave rise to a series of appeals, including that in the present case, which relates to the order of 15 December 2020, Junqueras i Vies v Parliament (T‑24/20, EU:T:2020:601; ‘the order under appeal’). ( )

Legal background

The Electoral Act

7. Article 6(2) of the Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976, ( ) as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (‘the Electoral Act’), provides:

‘Members of the European Parliament shall enjoy the privileges and immunities applicable to them by virtue of the [Protocol on Privileges and Immunities].’

8. Article 7 of the Electoral Act lists a series of offices which are incompatible with that of Member of the Parliament. Article 7(3) provides:

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

9. The first paragraph of Article 8 of that act provides:

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

10. Article 13(1) and (3) of that act provides:

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

…

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

…’

The Rules of Procedure

11. Rule 4(1), the second subparagraph of Rule 4(4) and Rule 4(7) of the Rules of Procedure of the European Parliament (9th Parliamentary Term – September 2021) (‘the Rules of Procedure’) provide:

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

…

4. …

Where the competent authorities of the Member States notify the President of the end of the term of office of a Member of the European Parliament as a result either of an additional incompatibility established by the law of that Member State in accordance with Article 7(3) of the Act of 20 September 1976 or of the withdrawal of the Member’s mandate pursuant to Article 13(3) of that act, the President shall inform Parliament that the term of office of that Member ended on the date communicated by competent authorities of the Member State. Where no such date is communicated, the date of the end of the term of office shall be the date of the notification by that Member State.

…

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

12. Under Rule 7(1) and (2) of the Rules of Procedure:

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

2. In particular, such a request for the defence of privileges and immunities may be made if it is considered that the circumstances would constitute an administrative or other restriction on the free movement of Members travelling to or from the place of meeting of Parliament or an administrative or other restriction on an opinion expressed or a vote cast in the performance of their duties, or that the circumstances would fall within the scope of Article 9 of the [Protocol on Privileges and Immunities].

…’

13. Rule 8(1) of the Rules of Procedure provides:

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

14. Rule 9 of the Rules of Procedure sets out the procedure to be followed in the case of a request for waiver or defence of the immunity of a Member of the Parliament.

The background to the dispute, the order under appeal, the proceedings before the Court and the forms of order sought

Background to the dispute

15. The background to the dispute was set out in paragraphs 15 to 31 of the order under appeal and is not contested. It can be summarised as follows. ( )

16. The appellant, who was elected to the Parliament while on remand, had imposed on him, by judgment of 14 October 2019, a custodial sentence which carried with it, under Spanish law, inter alia, the loss of his eligibility.

17. On 20 December 2019, following the judgment in Junqueras Vies, ( ) in which the Court confirmed the appellant’s status as a Member of the Parliament, Ms Diana Riba i Giner, also a Member of the Parliament, made a request on behalf of the appellant for the President of that institution to take urgent measures, under Rule 8 of the Rules of Procedure, to assert the appellant’s immunity (‘the request of 20 December 2019’). On 10 and 13 January 2020, Ms Riba i Giner supplemented that request, in particular by asking the President of the Parliament to refuse to declare the appellant’s seat vacant and by providing additional documents.

18. By decision of 3 January 2020, the Central Electoral Board declared the appellant to be ineligible, by reason of the custodial sentence imposed on him. The appellant brought an appeal against that decision before the Tribunal Supremo (Supreme Court), seeking a suspension of its operation. On 9 January 2020, the Tribunal Supremo (Supreme Court) dismissed the application for a stay.

19. At the plenary sitting of 13 January 2020, the President of the Parliament invited that institution to take note that the appellant had been elected to the Parliament with effect from 2 July 2019 ( ) and that his seat had become vacant with effect from 3 January 2020.

The order under appeal

20. On 17 January 2020, the appellant brought an action before the General Court seeking annulment of the declaration that his seat was vacant, made by the President of the Parliament during the sitting of 13 January 2020 (‘the declaration of 13 January 2020), and of the President’s alleged refusal of the request of 20 December 2019.

21. By separate document of the same date, the appellant made an application for interim relief, seeking a suspension of execution in respect of the contested acts, together with an order requiring the President of the Parliament to take all necessary steps to protect his privileges and immunities and render them effective, and to protect his fundamental right to the full enjoyment of his status as a Member of the Parliament, and requiring the Kingdom of Spain to release him so as to enable him to perform his functions as a Member of the Parliament. That application was dismissed, as was the appeal which the appellant brought against its dismissal. ( )

22. On 2 March 2020, the Parliament raised an objection of inadmissibility in respect of the action brought by the appellant, on the ground that the contested acts were not challengeable acts for the purposes of Article 263 TFEU.

23. In the order under appeal, the General Court decided to rule on inadmissibility without going into the substance of the case.

24. As regards the declaration of 13 January 2020, the General Court held, in the light of Article 13(3) of the Electoral Act and of Article 4(4) of the Rules of Procedure, that that declaration was of a purely informative character and could not be the subject of an action under Article 263 TFEU, as all the effects on the appellant’s legal situation resulted from national measures beyond the Parliament’s control. ( )

25. Addressing the arguments put forward by the appellant, the General Court also held that Rule 4(7) of the Rules of Procedure did not empower the President of the Parliament to refuse to declare the appellant’s seat vacant. ( ) It also rejected the arguments advanced by the appellant on the basis of Articles 39 and 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), ( ) on the ground that those provisions could not change the system of judicial review laid down by the Treaties, and that any infringement of those provisions by the Parliament was not relevant to admissibility but was a matter to be considered as part of the review of substantive legality. ( )

26. As regards the alleged implied refusal by the President of the Parliament of the request of 20 December 2019, the General Court held, primarily, that the claims for annulment of the alleged refusal were directed against a non-existent act. ( )

27. The General Court also held, for the sake of completeness, that even if the alleged refusal of the request of 20 December could be regarded as an existent implied act, it would not be challengeable under Article 263 TFEU because it would not have brought about a distinct change in the legal position of the appellant. The General Court observed, first, that a Member of the Parliament does not have the right to compel the President of that institution to take action pursuant to Rule 8 of the Rules of Procedure, which was the provision on which the request at issue had been based, and second, that any initiative that the President might have taken on the basis of that provision would not have been binding on the authorities of the Member States. ( )

28. The General Court therefore upheld the Parliament’s objection of inadmissibility and dismissed the action as inadmissible in its entirety.

The appeal proceedings and the forms of order sought

29. On 25 February 2021, the appellant lodged the appeal in the present case.

30. By decision of the President of the Court of 9 June 2021, the Kingdom of Spain was given leave to intervene in support of the form of order sought by the Parliament. By order of 28 September 2021, the President of the Court dismissed the application of Carles Puigdemont i Casamajó and Antoni Comín i Oliveres for leave to intervene in support of the form of order sought by Mr Junqueras i Vies.

31. The parties were given leave to file replies and rejoinders. The Court decided to give judgment without holding a hearing.

32. By his appeal, the appellant claims that the Court of Justice should:

– set aside the order under appeal;

– declare the action brought before the General Court to be admissible;

– refer the case back to the General Court for it to rule on those pleas in law on which it has not yet given judgment;

– order the Parliament to pay the costs of the proceedings concerning the objection of inadmissibility in Case T‑24/20 and of the appeal proceedings.

33. The Parliament contends that the Court should:

– dismiss the appeal in its entirety;

– order the appellant to pay the costs of the appeal proceedings.

The appeal

34. In the appeal, the appellant raises four grounds of appeal. ( ) Three of those concern the admissibility of his claims for annulment of the declaration of 13 January 2020, while the fourth concerns his objections to the refusal of the request of 20 December 2019.

Admissibility of the various grounds of appeal

35. In its response to the appeal, the Parliament disputes the admissibility of the first, third and fourth grounds, submitting that they do not meet the requirements of the second subparagraph of Article 256(1) TFEU, the first subparagraph of Article 58 of the Statute of the Court of Justice of the European Union, and Article 168(1)(d) and Article 169(2) of the Rules of Procedure, in that they do not precisely identify the points in the grounds of the order under appeal which are contested, or the supporting legal arguments. The appellant disputes that claim in the reply.

36. It is true that the appeal identifies the paragraphs of the order under appeal which relate to the various grounds of appeal as ranges, referring to the entirety of the General Court’s reasoning on a given issue. Nevertheless, it is relatively easy to identify the complaint, based on an error of law, raised by each ground, the provisions which are said to have been misinterpreted, and the parts of the order under appeal to which the ground relates.

37. It therefore seems to me that the Court is entirely able to assess the merits of the grounds of appeal and give judgment. Accordingly, I do not see any reason for an overly restrictive application of the case-law on admissibility of appeals, ( ) which might undermine the appellant’s right to an effective remedy as enshrined in Article 47 of the Charter.

The first ground of appeal

38. By his first ground of appeal, the appellant claims that the General Court erred in law in its interpretation of Article 13(3) of the Electoral Act, in holding that that provision and, consequently, Article 4(4) of the Rules of Procedure, were applicable to his situation.

Arguments of the parties

39. The appellant submits, in essence, that under Spanish law, the loss of eligibility resulting from a custodial sentence is properly characterised, in relation to a person who holds an electoral mandate, not as a withdrawal of the mandate, but as a ground of incompatibility, and that that incompatibility arises after acquisition of the mandate. Accordingly, Article 13(3) of the Electoral Act, which relates to withdrawal of the mandate, does not apply.

40. The appellant then submits that while Article 7(3) of the Electoral Act empowers the Member States to extend the grounds of incompatibility applicable at national level, this relates only to grounds of incompatibility which are of the same kind as those set out in Article 7(1) and (2) of that act, or in other words which arise from the holding of certain employment positions or offices. He submits that, by contrast, that provision does not cover grounds of incompatibility which, like that at issue in the present case, arise from a criminal conviction.

41. On that basis, he argues that Article 4(4) of the Rules of Procedure, which sets out the procedure to be followed in cases falling under Article 7(3) or Article 13(3) of the Electoral Act, is not applicable. Consequently, the declaration that his seat was vacant must be regarded as an autonomous decision of the President of the Parliament producing legal effects of its own, and therefore as an act which can be challenged under Article 263 TFEU. Accordingly, he submits, the action for annulment is admissible.

42. Besides raising an objection of inadmissibility in relation to that ground, the Parliament argues, in essence, that the assessment of the nature of the decision of the Central Electoral Board of 3 January 2020 is either a factual assessment or a matter of interpretation of national law, and in either case is outside the scope of the judicial review carried out by the Court in appeal proceedings.

My assessment

43. Contrary to the Parliament’s submissions, I consider that the first ground of appeal is admissible and that it does indeed concern the interpretation of Article 13(3) of the Electoral Act. However, for the reasons that follow, I consider that ground to be unfounded.

44. The logic of the appellant’s argument rests on a deliberate jumbling of the terminology of the Electoral Act with that of national law, which results in his situation not being covered by any provision of that act. In the first step of the argument, the appellant relies on the national meaning of the term ‘incompatibility’, and asserts on that basis that his case does not involve the withdrawal of a mandate, but precisely this type of incompatibility. In the second step, he demands that that same term, when it appears in Article 7(3) of the Electoral Act, be interpreted autonomously, so as to exclude cases of incompatibility (in the national sense) which do not relate to the holding of an employment position or office.

45. It is true that the wording of Article 13(3) of the Electoral Act might cause confusion in that it refers to situations in which ‘the law of a Member State makes explicit provision for the withdrawal of the mandate of a member of the European Parliament’. However, that provision must be interpreted as meaning that, while it is left to national law to establish the grounds and procedures for withdrawal of a mandate, the term ‘withdrawal of mandate’ is to be given an autonomous interpretation. The Electoral Act cannot be required to reflect all the expressions used in the national law of the Member States to refer to the withdrawal of the mandate of a Member of the Parliament.

46. Accordingly, the term ‘withdrawal of mandate’ must, in my opinion, be understood as encompassing all situations in which a Member of the Parliament is deprived of his or her mandate unwillingly and before its expiry, irrespective of whether such withdrawal of the mandate is characterised in national law as a ‘withdrawal’, as a ‘compulsory resignation’, as ‘extinguishment’ of the mandate, or in some other way. Those situations include, in particular, that in which a Member of the Parliament loses his or her passive electoral rights (or, in other words, eligibility) during the currency of the mandate, and this results in its automatic termination.

47. Furthermore, I do not see why the fact that a ground of incompatibility with the mandate of a Member of the Parliament has arisen cannot constitute a ground for withdrawal of that mandate, if national law so provides.

48. The same applies as regards the loss of the appellant’s mandate of a Member of the Parliament. A judgment of the Tribunal Constitucional (Constitutional Court), ( ) which is cited in the appeal, states that in Spanish law, a ground of ineligibility arising ex post does ‘not invalidate the election, but prevents the office to which it relates from being taken up, or terminates [that office], if the person has already taken up his or her seat’. ( ) In my view, that definition corresponds very well to that of ‘withdrawal of mandate’ for the purposes of Article 13(3) of the Electoral Act. It is not important whether national law treats such a ground of ineligibility as a ground of incompatibility, as it is only its legal effects that matter.

49. It is possible that the confusion arises from the fact that the Spanish language version of Article 13(3) of the Electoral Act uses the term ‘anulación del mandato’, which suggests a declaration annulling the mandate ex tunc. However, the terms used in other language versions ( ) preclude such an interpretation, as they clearly refer to the loss of a mandate in the course of its exercise.

50. The General Court was thus right to hold that Article 13(3) of the Electoral Act was applicable to the appellant’s situation and that the President of the Parliament could merely inform that institution, pursuant to Rule 4(4) of the Rules of Procedure, of the cessation of his mandate following national decisions, without that act of the President producing legal effects of its own that would render it challengeable under Article 263 TFEU.

51. The first ground of appeal must therefore be dismissed.

The second ground of appeal

52. By his second ground of appeal, the appellant contends that the General Court erred in law in holding that the Parliament did not have power, under Rule 4(7) of the Rules of Procedure, to review the ground of incompatibility which had resulted in the loss of his mandate.

Arguments of the parties

53. The appellant submits that under Rule 4(7) of the Rules of Procedure, in the event that the termination of the office of a Member of the Parliament appears to be based on material inaccuracy, the Parliament can ‘take under consideration’ the appointment constituting the ground of incompatibility which has resulted in such termination. Given that, according to the appellant, his situation was not one of withdrawal of the mandate, but of incompatibility, the same rule should apply. Accordingly, he argues, the Parliament has power to review the material inaccuracy on which the loss of his mandate was based, and his claims for annulment of the declaration that the mandate had been lost are thus directed against an act which produced legal effects, and are admissible.

54. The Parliament, while disputing the appellant’s submissions in an alternative line of argument, maintains as its primary line of argument that the fact that the General Court held Rule 4(7) of the Rules of Procedure to be inapplicable was only a secondary ground for the order under appeal, and therefore that even if the second ground of appeal were well founded, it would not provide any basis for setting aside that order. According to the Parliament, the second ground of appeal is therefore ineffective.

My assessment

55. The second ground of appeal is based on the premiss that Rule 4(7) of the Rules of Procedure empowers the Parliament to ‘take under consideration’ (which, according to the appellant, is equivalent to reviewing) an appointment which constitutes a ground of incompatibility in relation to the mandate of a Member of the Parliament.

56. However, that premiss is erroneous. Rule 4(7) of the Rules of Procedure does not contain any provision which could be interpreted in that way. It merely provides, first, that where acceptance of office appears to be based on material inaccuracy or vitiated consent, the Parliament may declare the appointment under consideration to be invalid and, second, that where termination of office appears to be based on an irregularity of the same kind, the Parliament may refuse to establish the vacancy. That provision does not make any reference whatsoever to appointments which are incompatible with the office of Member of the Parliament.

57. For the sake of completeness, I would note that the same conclusion follows, indisputably, from a comparison between the original wording of the appeal and the wording of the Spanish language version of the provision in question. ( )

58. The second ground of appeal is thus entirely unfounded, being based on a non-existent legal rule, and must accordingly be dismissed.

The third ground of appeal

59. By the third ground of appeal, the appellant contends, first, that the General Court erred in law in holding that the ground of ineligibility invoked against him was a matter of electoral procedure and thus fell within the exclusive competence of the Member States (first part of the third ground). Second, the appellant contends that the General Court erred in law in not holding that his action was admissible pursuant to Articles 39 and 41 of the Charter, or, alternatively, that Article 13(3) of the Electoral Act, together with Rule 4(7) of the Rules of Procedure, were contrary to those provisions of the Charter (second part of the third ground).

Arguments of the parties

60. In support of the first part of the third ground, the appellant submits that while Articles 8 and 12 of the Electoral Act leave the electoral procedure and the validity of mandates to national law, this does not extend to a ground of incompatibility such as the one invoked in respect of him, and that ground of incompatibility can therefore be reviewed by the Parliament. Accordingly, the action, in so far as it is based on the Parliament not having carried out any such review, is admissible.

61. Under the second part of the third ground, the appellant submits that his action is admissible pursuant to the provisions of the Electoral Act and the Rules of Procedure, interpreted in a manner consistent with Articles 39 and 41 of the Charter.

62. In the alternative, he submits that if an interpretation consistent with those provisions of the Charter was not to be adopted, the General Court should have declared Article 13(3) of the Electoral Act and Rule 4(7) of the Rules of Procedure to be inapplicable pursuant to those provisions of the Charter.

63. The Parliament submits that the first part of the third ground should be dismissed as ineffective, on the basis that the paragraphs of the order under appeal which are cited in that part of that ground do not contain the conclusions to which the appellant refers. Furthermore, it submits that the first part of the ground is unfounded, for the same reasons given in connection with the first ground.

64. In addition, the Parliament states that the second part of the third ground relates either to arguments which have already been raised before the General Court, or to a new plea, raised for the first time in the appeal, and that it should therefore be dismissed as inadmissible.

My assessment

65. As regards the first part of the third ground, I do not share the Parliament’s view that the order under appeal does not contain the conclusions to which the appellant refers. What the appellant is seeking to challenge is the basis for the General Court’s conclusion that the Parliament had no power to review the decision taken by the Central Electoral Board in relation to him, because that decision fell within the scope of the exclusive competence of the Member States to regulate the electoral procedure and the validity of mandates.

66. On the other hand, I consider that the first part of the third ground is unfounded.

67. I would point out that the Central Electoral Board’s decision does not relate to the validity of the appellant’s mandate, but to the withdrawal of that mandate from the appellant on the ground of ineligibility. In line with my analysis of the first ground of appeal, it makes no difference in that regard that Spanish law treats such ineligibility as a ground of incompatibility.

68. The term ‘electoral procedure’, within the meaning of Article 8(1) of the Electoral Act, must not be interpreted in an overly narrow manner, so as to refer exclusively to the voting procedure and the allocation of mandates. As regards elections to the Parliament, there are swathes of electoral law which are not covered by EU law, including the fundamental issue – logically prior to any voting procedure – of active and passive electoral rights, or in other words the right to vote and to be elected. The only provision of EU law to address that area concerns the eligibility to stand for election to the Parliament of EU citizens who are resident in Member States of which they are not nationals (Article 39(1) of the Charter).

69. Thus, the issue of eligibility must necessarily be governed by the law of the Member States, otherwise there would be a legal vacuum in this respect.

70. The fact that the appellant became ineligible after he had been elected to the Parliament does not affect that conclusion. A person exercising an electoral mandate may lose his or her eligibility, which ordinarily results in withdrawal of the mandate. However, in the absence of any contrary provision of EU law, eligibility remains governed by the law of the Member States, both before the election and during the currency of the mandate.

71. The General Court was thus right to begin from the premiss that eligibility is a matter of ‘electoral procedure’, within the meaning of Article 8(1) of the Electoral Act, and is governed by the law of the Member States, with the consequence that the Parliament has no power to review national decisions which establish a loss of eligibility and thus lead to withdrawal of the mandate.

72. The first part of the third ground must therefore be dismissed.

73. As regards the second part of the third ground, it suffices to observe that – as the Parliament has pointed out – in claiming that an interpretation of the Electoral Act and the Rules of Procedure informed by Articles 39 and 41 of the Charter ought to have resulted in his action being held to be admissible, the appellant is merely reiterating the arguments he advanced at first instance, which were rejected by the General Court in paragraphs 87 to 92 of the order under appeal.

74. The same applies to the appellant’s arguments that the action is admissible by virtue of an infringement by the Parliament of his rights under Articles 39 and 41 of the Charter, those arguments having been rejected in paragraph 93 of the order under appeal on the ground that they did not relate to the admissibility of his action but to its merits – a ground which the appellant has not disputed in his appeal.

75. I therefore conclude that, by the second part of the third ground, the appellant is seeking to have arguments already advanced before the General Court, concerning the admissibility of his action, re-examined by the Court of Justice. Such a request must be rejected as inadmissible under the settled case-law of the Court. ( )

76. Lastly, to the extent that the appellant claims that Article 13(3) of the Electoral Act and Article 4(7) of the Rules of Procedure, if they are to be interpreted as meaning that they do not entitle him to challenge the declaration of 13 January 2020, are unlawful pursuant to Articles 39, 41 and 21 of the Charter, that objection is both ineffective and inadmissible.

77. Under the EU legal system, such a claim could only be made, in circumstances such as those of the present case, ( ) on the basis of Article 277 TFEU.

78. However, in the first place, a plea based on Article 277 TFEU can only be raised in support of an admissible action, and cannot form the subject matter of the action and thus the basis for its admissibility. ( ) In the second place, under the case-law of the Court, such a plea cannot be raised for the first time in an appeal. ( )

79. The second part of the third plea must therefore be dismissed as inadmissible, and it follows that the third plea must be dismissed in its entirety.

The fourth ground of appeal

80. The fourth ground of appeal is directed against the General Court’s dismissal, on the ground of inadmissibility, of the action which the appellant brought at first instance against the President of the Parliament’s alleged decision to refuse the request of 20 December 2019. Under that ground, the appellant submits that the General Court erred in law in not holding that the initiative taken by the President of the Parliament, pursuant to Rule 8 of the Rules of Procedure, was binding on the authorities of the Member States.

Arguments of the parties

81. The appellant submits that, because it limited its analysis to Rule 8 of the Rules of Procedure, the General Court wrongly concluded that an initiative of the President of the Parliament, taken on the basis of that provision with a view to asserting the immunity of a Member of the Parliament, is not binding on the competent authorities of the Member States. If that were the case, it would follow that the refusal of a request to take such an initiative would not be challengeable in legal proceedings, as it would not affect the legal situation of the Member of the Parliament concerned.

82. However, according to the appellant, Rule 8 of the Rules of Procedure, read in the light of Article 39 of the Charter and the duty of sincere cooperation, should have led the General Court to the opposite conclusion. Thus, he argues, the General Court ought to have found that in a situation such as that at issue, the President of the Parliament was obliged to take an initiative on the basis of Rule 8 of the Rules of Procedure and that, accordingly, the refusal of a request to take such an initiative had produced legal effects as regards the appellant. Accordingly, an action brought against the refusal is admissible.

83. The Parliament maintains that, under the fourth ground of appeal, the appellant does not seriously dispute the main reason for the General Court’s dismissal of his action, ( ) which was that that action had been brought against a non-existent act. The Parliament submits that the arguments by which the appellant seeks to refute the alternative ground for the dismissal of his action, which related to the non-binding nature of an initiative taken by the President of the Parliament on the basis of Article 8 of the Rules of Procedure, and to the lack of any legal effect of the refusal of a request to take such an initiative, are therefore ineffective.

My assessment

84. I share the Parliament’s view of the fourth ground of appeal.

85. It may be recalled that, in paragraphs 101 to 137 of the order under appeal, the General Court dismissed the appellant’s action as inadmissible in so far it had been brought against the President of the Parliament’s alleged refusal of the request of 20 December 2019. The General Court found, primarily, that the action was directed against a non-existent act. In that regard, the General Court stated that the President of the Parliament had not expressly refused the request, that the Rules of Procedure did not lay down any time limit for responding to such a request, and that there were no particular circumstances that would require the President of the Parliament’s silence to be regarded as an implied refusal. As an alternative ground, the General Court held that even supposing there to have been an implied refusal, that refusal would not be challengeable, because it would not have produced any legal effects. First, the power of the President of the Parliament to take an initiative under Rule 8 of the Rules of Procedure was discretionary, and Members of the Parliament had no right to require such an initiative to be taken. The President of the Parliament was not under any obligation to respond to requests such as that at issue. Second, an initiative taken by the President of the Parliament would not have any binding effect on the authorities of the Member States capable of altering the legal situation of a Member of the Parliament.

86. It must be observed, in the first place, that the appellant does not dispute the principal ground on which the General Court dismissed his action, which was the non-existence of the act he was seeking to challenge. The only section of the appeal which might be taken to relate to that ground – the section in which the appellant sets out a series of exceptional circumstances characterising his situation, most of which also form part of the background to the request of 20 December 2019 – is found in the reasoning on the allegedly binding nature of an initiative of the President of the Parliament taken pursuant to Rule 8 of the Rules of Procedure. Thus, the appellant does not explain how those circumstances should have led the General Court to regard the silence of the President of the Parliament as an implied refusal of the request at issue.

87. It must also be observed, in the second place, that the appellant also does not dispute the General Court’s conclusions as to the discretionary nature of an initiative taken by the President of the Parliament on the basis of Rule 8 of the Rules of Procedure, or as to the lack of any obligation, on the part of the President of the Parliament, to respond to requests such as that of 20 December 2019. The one allegation by which the appellant contends that the President of the Parliament was obliged to take such an initiative by virtue of the principle of sincere cooperation is manifestly unfounded, as that principle does not relate to cooperation of the president of an institution with its members, but to cooperation between the Member States and the institutions in achieving the objectives of the European Union. Furthermore, that allegation does not relate to the admissibility of the action but to its merits.

88. In the third place, and last, I am not persuaded by the arguments which the appellant puts forward in the appeal as regards the binding nature of an initiative taken by the President of the Parliament on the basis of Rule 8 of the Rules of Procedure.

89. In particular, the appellant does not explain how Article 39 of the Charter, which provides that EU citizens are eligible to stand for election in Member States of which they are not nationals, and that voting is to be direct, free and secret, could give rise to obligations on the part of the Member States towards Members of the Parliament who have already been elected.

90. As regards the duty of sincere cooperation, on the other hand, the conduct of the Tribunal Supremo (Supreme Court) in the appellant’s case may indeed appear not to comply with that duty. Nevertheless, an initiative taken by the President of the Parliament on the basis of Rule 8 of the Rules of Procedure could not be regarded as an effective remedy in respect of any such non-compliance.

91. Thus, while I can accept that an initiative taken by the President of the Parliament with a view to asserting the immunity of a Member of that institution may ‘make the Member State aware of an obligation which is incumbent on it’, as the appellant claims, such an initiative does not in itself create binding legal effects which might lead that Member State to comply with its obligations. A refusal to take such an initiative thus does not have legal effects rendering it an act which is challengeable under Article 263 TFEU.

92. Accordingly, the appellant has not been able to raise any valid objection to the reasoning of the order under appeal, as regards the admissibility of the action in so far as it was brought against the alleged refusal of the request of 20 December 2019. The fourth ground of appeal must therefore be dismissed.

Conclusion

93. In the light of all the foregoing considerations, as none of the grounds of appeal has succeeded, the appeal must be dismissed in its entirety. If the Court does as I propose, the appellant must be ordered to pay the costs, as the Parliament has applied for them in its pleadings. The Kingdom of Spain must bear its own costs of its intervention.

94. I therefore propose that the Court should:

1. dismiss the appeal;

2. order the appellant to pay the costs;

3. order the Kingdom of Spain to bear its own costs.