1 By his appeal, Mr Oriol Junqueras i Vies seeks to have set aside the order of the General Court of the European Union of 15 December 2020, Junqueras i Vies v Parliament (T‑24/20, EU:T:2020:601; ‘the order under appeal’), by which the General Court dismissed as inadmissible his action for annulment, first, of the declaration taking note that his seat in the European Parliament was vacant, made by the President of the European Parliament at the plenary session of 13 January 2020 (‘the declaration of 13 January 2020’), and, second, of the latter’s alleged refusal of the request to take ‘an initiative as a matter of urgency’ to assert his immunity, submitted on 20 December 2019 by Ms Riba i Giner, Member of the European Parliament, on the basis of Rule 8 of the Rules of Procedure of the Parliament (‘the refusal of the request of 20 December 2019’).
2 Chapter III of Protocol (No 7) on the Privileges and Immunities of the European Union, which is annexed to the TEU and the TFEU (‘the Protocol on Privileges and Immunities’), concerning ‘Members of the European Parliament’, contains inter alia Article 9 of that protocol, which provides: ‘During the sessions of the … 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 … Parliament. Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the … Parliament from exercising its right to waive the immunity of one of its Members.’
3 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 (OJ 1976 L 278, p. 1), as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p. 1) (‘the Electoral Act’), provides: ‘Members of … Parliament shall enjoy the privileges and immunities applicable to them by virtue of the [Protocol on Privileges and Immunities].’
4 Article 7 of the Electoral Act states: ‘1. The office of member of … Parliament shall be incompatible with that of: - member of the Government of a Member State, - member of the [European] Commission …, - Judge, Advocate-General or Registrar of the Court of Justice … or of the [General] Court …, - member of the Board of Directors of the European Central Bank, - member of the [European] Court of Auditors …, - [European] Ombudsman …, - member of the [European] Economic and Social Committee …, - member of the Committee of the Regions, - member of committees or other bodies set up pursuant to the Treaties establishing the European Economic Community and the European Atomic Energy Community for the purpose of managing the Communities’ funds or carrying out a permanent direct administrative task, - member of the Board of Directors, Management Committee or staff of the European Investment Bank, - active official or servant of the institutions of the European [Union] or of the specialised bodies attached to them or of the European Central Bank. 2. From the … Parliament elections in 2004, the office of member of … Parliament shall be incompatible with that of member of a national parliament. … 3. In addition, each Member State may, in the circumstances provided for in Article 8, extend rules at national level relating to incompatibility. …’
5 According to Article 8 of that act: ‘Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions. These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system.’
6 Article 12 of that act is worded as follows: ‘The … Parliament shall verify the credentials of members of … Parliament. For this purpose it shall take note of the results declared officially by the Member States and shall rule on any disputes which may arise out of the provisions of this Act other than those arising out of the national provisions to which the Act refers.’
7 Article 13 of the act states: ‘1. A seat shall fall vacant when the mandate of a member of … Parliament ends as a result of resignation, death or withdrawal of the mandate. 2. Subject to the other provisions of this act, each Member State shall lay down appropriate procedures for filling any seat which falls vacant during the five-year term of office referred to in Article 5 for the remainder of that period. 3. Where the law of a Member State makes explicit provision for the withdrawal of the mandate of a member of … Parliament, that mandate shall end pursuant to those legal provisions. The competent national authorities shall inform the … Parliament thereof. 4. Where a seat falls vacant as a result of resignation or death, the President of the … Parliament shall immediately inform the competent authorities of the Member State concerned thereof.’
8 Under the heading ‘Verification of credentials’, Rule 3 of the Rules of Procedure of the European Parliament (‘the Rules of Procedure’) provides: 1. Following general elections to the … Parliament, the President shall invite the competent authorities of the Member States to notify Parliament without delay of the names of the elected Members so that all Members may take their seats in Parliament with effect from the opening of the first sitting following the elections. … 3. On the basis of a report by the committee responsible, Parliament shall verify credentials without delay and rule on the validity of the mandate of each of its newly elected Members and also on any disputes referred to it pursuant to the provisions of the [Electoral] Act …, other than those which, under that Act, fall exclusively under the national provisions to which that Act refers. … 6. The committee responsible shall ensure that any information which may affect the eligibility of the Member or the eligibility or the ranking of the substitutes is forwarded to Parliament without delay by the authorities of the Member States or of the Union, with, in the case of an appointment, an indication of the date on which it will take effect. Should the competent authorities of the Member States initiate a procedure which might lead to the disqualification of a Member from holding office, the President [of the Parliament] shall ask them to keep him or her regularly informed of the stage reached in the procedure and shall refer the matter to the committee responsible. On a proposal from that committee, Parliament may adopt a position on the matter.’
9 Under paragraphs 2, 4 and 7 of Rule 4 of the Rules of Procedure, entitled ‘Term of office of Members’: ‘2. … If the committee responsible considers that the resignation is in compliance with the [Electoral] Act …, a vacancy shall be declared with effect from the date indicated by the resigning Member in the official record, and the President shall inform Parliament thereof. If the committee responsible considers that the resignation is not in compliance with the [Electoral] Act …, it shall propose to Parliament that it not declare a vacancy. … 4. Where either the competent authorities of the Member States or of the Union or the Member concerned notifies the President of an appointment or election to an office that is incompatible with the office of Member of … Parliament within the meaning of Article 7(1) or (2) of the [Electoral] Act …, the President shall inform Parliament thereof, and Parliament shall declare that a vacancy exists from the date of the incompatibility. Where the competent authorities of the Member States notify the President of the end of the term of office of a Member of … 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 [Electoral] Act 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.’
10 Under Rule 5 of the Rules of Procedure, entitled ‘Privileges and immunities’: ‘1. Members enjoy the privileges and immunities laid down in the Protocol [on Privileges and Immunities]. 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. …’
11 Rule 7 of the Rules of Procedure, entitled ‘Defence of privileges and immunities’, is worded as follows: ‘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]. … 5. In cases where a decision has been taken not to defend the privileges and immunities of a Member, the Member may exceptionally make a request for reconsideration of the decision, by submitting new evidence in accordance with Rule 9(1). The request for reconsideration shall be inadmissible if proceedings have been instituted against the decision under Article 263 [TFEU], or if the President [of the Parliament] considers that the new evidence submitted is insufficiently substantiated to warrant reconsideration.’
12 Rule 8 of the Rules of Procedure, entitled ‘Urgent action by the President to assert immunity’, is worded as follows: ‘1. 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 [of the Parliament] 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 [of the Parliament] shall notify the committee of that initiative and inform Parliament. …’
13 Under Rule 9 of the Rules of Procedure, entitled ‘Procedures on immunity’: ‘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 [a plenary session of] Parliament and referred to the committee responsible. 2. With the agreement of the Member or the former Member concerned, the request may be made by another Member, who shall be permitted to represent the Member or former Member concerned at all stages of the procedure. … 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 Chair of the committee shall invite the Member to be heard, indicating a date and time. The Member concerned may renounce the right to be heard. … 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. 9. The committee’s proposal for a decision shall be placed on the agenda of the first sitting following the day on which it was tabled. No amendments may be tabled to such a proposal. … Without prejudice to Rule 173 [of the Rules of Procedure], the Member whose privileges or immunities are under consideration shall not speak in the debate. The proposal or proposals for a decision contained in the report shall be put to the vote at the first voting time following the debate. After Parliament has considered the matter, a separate vote shall be taken on each of the proposals contained in the report. If a proposal is rejected, the contrary decision shall be deemed to have been adopted. 10. The President [of the Parliament] shall immediately communicate Parliament’s decision to the Member concerned and to the competent authority of the Member State concerned, with a request that the President be informed of any developments and judicial rulings in the relevant proceedings. When the President [of the Parliament] receives this information, he or she shall transmit it to Parliament in the way he or she considers most appropriate, if necessary after consulting the committee responsible. 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. 12. Parliament shall only examine requests for the waiver of a Member’s immunity that have been transmitted to it by the judicial authorities or by the Permanent Representations of the Member States. … 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.’
14 The background to the dispute, which is set out in paragraphs 15 to 31 of the order under appeal, may be summarised as follows.
15 Mr Junqueras i Vies was Vice-President 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 Catalan Parliament regulating the referendum on self-determination) of 6 September 2017 (DOGC No 7449A of 6 September 2017, p. 1) and of Ley 20/2017 del Parlamento de Cataluña, de transitoriedad jurídica y fundacional de la República (Law 20/2017 of the Catalan Parliament on legal transition and founding the Republic) of 8 September 2017 (DOGC No 7451A of 8 September 2017, p. 1), and the holding, on 1 October 2017, of the referendum on self-determination provided for by 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).
16 Following the adoption of those laws and the holding of that referendum, the Ministerio fiscal (Public Prosecutor’s Office, Spain), the Abogado del Estado (Counsel for the State, Spain) and the Partido político VOX (VOX political party) brought criminal proceedings against several persons, including Mr Junqueras i Vies, alleging that they had taken part in a secessionist process and were responsible for the criminal offences of ‘rebellion’ or ‘sedition’, ‘civil disobedience’ and ‘misappropriation of public funds’.
17 Mr Junqueras i Vies was placed in provisional detention during the investigation stage of those proceedings, pursuant to a decision adopted on 2 November 2017 on the basis of Article 503 of the Ley de Enjuiciamiento Criminal (Law on Criminal Procedure).
18 During the trial stage of those proceedings, the appellant stood as a candidate in the elections to the European Parliament held on 26 May 2019 and was elected as a Member of the European Parliament, as is apparent from the decision of 13 June 2019 of the Junta Electoral Central (Central Electoral Board), entitled ‘Declaration of Members elected to the European Parliament in the elections held on 26 May 2019’ (BOE No 142 of 14 June 2019, p. 62477), adopted in accordance with Article 224(1) of the Ley Orgánica 5/1985 del Régimen Electoral General (Organic Law No 5/1985 on the General Electoral System) of 19 June 1985 (BOE No 147 of 20 June 1985, p. 19110; ‘the Spanish Electoral Law’). By that decision, the Central Electoral Board also attributed to the elected persons, including the appellant, the seats in the Parliament apportioned to the Kingdom of Spain.
19 By order of 14 June 2019, the Tribunal Supremo (Supreme Court, Spain) refused a request made by the appellant for special authorisation to leave prison, under police surveillance, in order to appear before the Central Electoral Board and swear or pledge to abide by the Spanish Constitution, as required by Article 224(2) of the Spanish Electoral Law.
20 On 20 June 2019, the Central Electoral Board found that the appellant had not taken that oath or that pledge and, in accordance with Article 224(2) of the Spanish Electoral Law, declared that the seat attributed to him in the European Parliament was vacant and suspended all of the prerogatives that he might enjoy by virtue of his office.
21 The appellant brought an action before the Tribunal Supremo (Supreme Court) challenging the order referred to in paragraph 19 above, in which he invoked the immunities provided for in Article 9 of the Protocol on Privileges and Immunities.
22 On 1 July 2019, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer questions to the Court of Justice for a preliminary ruling in the case which gave rise to the judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115).
23 On 2 July 2019, in the absence of Mr Junqueras i Vies, the President of the Parliament opened the first session of the parliamentary term following the parliamentary elections held on 26 May 2019.
24 On 4 July 2019, Ms Riba i Giner, Member of the European Parliament, made a request, on behalf of Mr Junqueras i Vies, to the President of the Parliament, asking him to take measures as a matter of urgency, on the basis of Rule 8 of the Rules of Procedure, in order to assert Mr Junqueras i Vies’ parliamentary immunity.
25 The President of the Parliament refused that request on 22 August 2019.
26 By judgment of 14 October 2019, the Tribunal Supremo (Supreme Court) sentenced Mr Junqueras i Vies to a 13-year term of imprisonment and to a 13-year disqualification from holding any public office, entailing the loss of all his current public offices and functions, including elective offices, and a prohibition on obtaining or exercising any new ones.
27 By judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115), the Court answered the questions referred for a preliminary ruling set out in paragraph 22 above. It held that a person who was officially declared elected to the Parliament while subject to a measure of provisional detention in the context of proceedings in respect of serious criminal offences, but who was not authorised to comply with certain requirements under national law following such a declaration and to travel to the Parliament in order to take part in its first session, must be regarded as enjoying an immunity under the second paragraph of Article 9 of the Protocol on Privileges and Immunities. The Court made clear that that immunity entails that the measure of provisional detention must be lifted, in order to enable the person concerned to travel to the European Parliament and complete the formalities required by EU law. Lastly, the Court found that if the competent national court considers that that measure should be maintained after the person concerned acquires the status of Member of Parliament, it must as soon as possible request the Parliament to waive immunity, on the basis of the third paragraph of Article 9 of that protocol.
28 On 20 December 2019, Ms Riba i Giner, Member of the European Parliament, made a further request, on behalf of the appellant, to the President of the Parliament, asking him to take measures as a matter of urgency, on the basis of Rule 8 of the Rules of Procedure, in order to assert the appellant’s immunity (‘the request of 20 December 2019’).
29 By decision of 3 January 2020, the Central Electoral Board declared the appellant to be ineligible on account of the sentence of imprisonment imposed on him by the judgment of 14 October 2019 referred to in paragraph 26 above. The appellant brought an appeal against that decision before the Tribunal Supremo (Supreme Court) and requested the suspension of its operation.
30 By order of 9 January 2020, the Tribunal Supremo (Supreme Court) ruled on the consequences to be drawn from the judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115), with regard to the criminal proceedings concerning the appellant. It considered that there was no need to request the Parliament to waive the parliamentary immunity enjoyed by the appellant on the ground, inter alia, that, when he had been declared elected, the criminal proceedings concerning him had ended and the deliberations had begun. According to the Tribunal Supremo (Supreme Court), since the appellant had obtained the status of Member of the European Parliament when the criminal proceedings brought against him had reached the trial stage, he could not claim immunity in order to prevent those proceedings from continuing. In the operative part of its order, the Tribunal Supremo (Supreme Court) held, in particular, that there were no grounds for authorising the appellant to travel to the seat of the Parliament, for authorising his release, for setting aside the judgment of 14 October 2019 or for requesting the Parliament to waive immunity. In addition, it decided to notify its order to the Central Electoral Board and to the Parliament. On the same day, that court decided to examine the request for suspension of operation of the Central Electoral Board’s decision of 3 January 2020 under the ordinary procedure and refused the requests for measures of extreme urgency submitted by the appellant.
31 On 10 and 13 January 2020, Ms Riba i Giner, Member of the European Parliament, supplemented the request of 20 December 2019, made on behalf of Mr Junqueras i Vies, by asking the President of the Parliament, inter alia, to refuse to declare the appellant’s seat vacant and by producing additional documents.
32 By the declaration of 13 January 2020, the President of the Parliament announced, in plenary session, that the Parliament took note, following the judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115), of the appellant’s election to the Parliament with effect from 2 July 2019 and declared, following the Central Electoral Board’s decision of 3 January 2020 and the order of the Tribunal Supremo (Supreme Court) of 9 January 2020, the appellant’s seat vacant with effect from 3 January 2020.
33 By application lodged at the Registry of the General Court on 17 January 2020, Mr Junqueras i Vies sought the annulment, first, of the declaration of 13 January 2020 and, second, of the refusal of the request of 20 December 2019.
34 By separate document of the same date, the appellant supplemented that application with an application for interim measures based on Articles 278 and 279 TFEU, seeking (i) suspension of the operation of the declaration of 13 January 2020 and of the refusal of the request of 20 December 2019; (ii) an order requiring the President of the Parliament to take all necessary steps to protect the appellant’s privileges and immunities and render them effective, as well as to protect his fundamental right to be able to perform all of his duties as a Member of Parliament; and, lastly, (iii) an order requiring the Kingdom of Spain to release the appellant immediately so as to enable him to perform his duties as a Member of Parliament.
35 By order of 3 March 2020, Junqueras i Vies v Parliament (T‑24/20 R, not published, EU:T:2020:78), the Vice-President of the General Court dismissed that application for interim measures on the ground that the condition relating to a prima facie case was not satisfied.
36 By order of 8 October 2020, Junqueras i Vies v Parliament (C‑201/20 P(R), not published, EU:C:2020:818), the Vice-President of the Court of Justice dismissed the appeal brought by the appellant against that order of 3 March 2020.
37 On 15 December 2020, the General Court adopted the order under appeal, by which it upheld the objections of inadmissibility raised by the Parliament in its defence and rejected the claims made by Mr Junqueras i Vies for annulment of the declaration of 13 January 2020 and of the refusal of the request of 20 December 2019 as being directed against acts in respect of which an action for annulment could not be brought on the basis of Article 263 TFEU.
38 More specifically, with regard to the claim for annulment of the declaration of 13 January 2020, the General Court held that it was directed against a purely informative measure that did not affect the legal position of Mr Junqueras i Vies, since that declaration merely took note, in accordance with Article 13(3) of the Electoral Act, of the withdrawal of the mandate of the person concerned solely on the basis of national law, following his criminal conviction.
39 With regard to the claim for annulment of the refusal of the request of 20 December 2019, the General Court held that, in the absence of an explicit refusal decision, it was directed against a non-existent act. In the alternative and in any event, the General Court held that, since the possibility of taking an initiative as a matter of urgency to assert the immunity of a Member of the European Parliament, afforded by Rule 8 of the Rules of Procedure, fell within the discretion of the President of the Parliament, which excluded the right to require him to take such an initiative, the refusal of such a request could not be regarded as an act open to challenge for the purposes of Article 263 TFEU.
40 By decision of the President of the Court of Justice of 9 June 2021, the Kingdom of Spain was given leave to intervene in support of the form of order sought by the Parliament.
41 By order of 28 September 2021, the President of the Court of Justice dismissed the application made by Mr Carles Puigdemont i Casamajó and Mr Antoni Comín i Oliveres for leave to intervene in support of the form of order sought by Mr Junqueras i Vies.
42 By his appeal, Mr Junqueras i Vies claims that the Court 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; and - order the Parliament to pay the costs of the proceedings concerning the objection of inadmissibility raised in Case T‑24/20 and of the appeal proceedings.
43 The Parliament contends that the Court should: - dismiss the appeal in its entirety as unfounded; and - order the appellant to pay the costs of the appeal proceedings.
44 Mr Junqueras i Vies puts forward four grounds in support of his appeal. By his first to third grounds of appeal, he challenges the grounds on which the General Court held that his claim for annulment of the declaration of 13 January 2020 was inadmissible. By his fourth ground of appeal, he challenges the grounds on which the General Court held that his claim for annulment of the refusal of the request of 20 December 2019 was inadmissible.
45 The Parliament submits, primarily, that the first, third and fourth grounds of appeal are inadmissible on the ground that they do not meet the requirements laid down in the first subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, or Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice, in that they do not identify with sufficient precision the contested points in the grounds of the order under appeal or the legal arguments underpinning the appeal. The Parliament contends that the first ground of appeal is also inadmissible in that it does not seek to challenge the General Court’s interpretation of Article 13(3) of the Electoral Act but rather to call into question the General Court’s reading of the Central Electoral Board’s decision of 3 January 2020, which is a matter of assessment of the facts or interpretation of national law and is not subject to review by the Court of Justice on appeal.
46 The appellant disputes that line of argument.
47 Although the written submissions made by Mr Junqueras i Vies in support of the first, third and fourth grounds of appeal appear at times to be unclear, the appeal nevertheless refers to the contested points in the grounds of the order under appeal and sets out, with sufficient precision to enable the Court of Justice to give judgment, the legal arguments by which the appellant intends to call those points into question.
48 Moreover, with regard to the first ground of appeal, the appellant does not seek by his arguments to call into question the assessment of the facts or the interpretation of national law, but rather the General Court’s interpretation of the Electoral Act.
49 It follows that, contrary to the Parliament’s submission, the first, third and fourth grounds of appeal are admissible.
50 The first to third grounds of appeal, which it is appropriate to examine together, are, as stated in paragraph 44 above, directed against the grounds of the order under appeal by which the General Court held that the claim made by Mr Junqueras i Vies for annulment of the declaration of 13 January 2020 was inadmissible.
51 More specifically, by his first ground of appeal, the appellant claims that the General Court erred in holding that his situation had to be regarded as one of incompatibility or of withdrawal of the mandate within the meaning of Article 7(3) and Article 13(3) of the Electoral Act, whereas it should have been regarded as a situation of incompatibility arising ex post facto, not falling within the scope of any of those provisions. By his second ground of appeal, the appellant claims that the General Court erred in law in the light of Rule 4(7) of the Rules of Procedure, which sets out the cases in which the Parliament may refuse to declare the seat of one of its Members vacant. Lastly, by his third ground of appeal, Mr Junqueras i Vies submits that, contrary to what was held by the General Court, it does not follow from Articles 8 and 12 of the Electoral Act or from Rule 3(3) of the Rules of Procedure that the Parliament cannot call into question the decision of a Member State such as that at issue in the present case.
52 The Parliament and the Kingdom of Spain contend that those grounds of appeal must be rejected.
53 Under Article 7(1) and (2) of the Electoral Act, the office of Member of Parliament is incompatible with the exercise of the offices set out in that provision. Article 7(3) of that act allows Member States to provide for additional incompatibilities by extending the rules applicable at national level relating to incompatibility.
54 Article 13 of the Electoral Act governs cases in which the seat of a Member of Parliament falls vacant as a result of the resignation, death or withdrawal of the mandate of that Member. Under paragraph 3 of that article, where the law of a Member State makes explicit provision for the withdrawal of the mandate, that mandate is to end pursuant to those legal provisions and the national authorities are to inform the Parliament thereof.
55 The second subparagraph of Rule 4(4) of the Rules of Procedure states that, where the competent authorities of the Member States notify the Parliament of the end of the term of office of a Member of the European Parliament as a result either of an additional incompatibility under Article 7(3) of the Electoral Act or of the withdrawal of the Member’s mandate, on the basis of Article 13(3) of the Electoral Act, the President of the Parliament is to inform the Parliament that the term of office of the person concerned ended on the date communicated by the national authorities.
56 With regard, first of all, to the legal basis of the declaration of 13 January 2020, it is apparent from paragraphs 57 to 67 of the order under appeal that the General Court considered that Mr Junqueras i Vies’ term of office as a Member of the European Parliament had ended on account of the withdrawal of his mandate pursuant to national law, in accordance with the situation provided for in Article 13(3) of the Electoral Act. Although, in paragraphs 57 and 58 of that order, the General Court also referred to Article 7(3) of the Electoral Act, that is solely because the second subparagraph of Rule 4(4) of the Rules of Procedure attaches the same consequences to the fact that an additional incompatibility covered by that provision has arisen and to the withdrawal of the mandate under Article 13(3) of that act.
57 In so doing, contrary to what is claimed by the appellant, the General Court did not err as to the legal basis of the declaration of 13 January 2020. Irrespective of the terminology used in national law, the end of the term of office as a Member of the European Parliament on the basis of national law, as a result of a criminal conviction, constitutes a case of withdrawal of the mandate within the meaning of Article 13(3) of the Electoral Act (see, to that effect, with regard to the initial version of the Electoral Act, judgment of 7 July 2005, Le Pen v Parliament, C‑208/03 P, EU:C:2005:429, paragraph 49) and not of incompatibility within the meaning of Article 7 of that act, since it does not result from failure to comply with the prohibition on holding certain offices concurrently.
58 In those circumstances, the Court cannot accept the claim that the General Court infringed the appellant’s right to effective judicial protection or his right to an effective remedy, or that it arbitrarily deprived the appellant of his mandate by holding that the declaration of 13 January 2020 was based on Article 13(3) of the Electoral Act.
59 Turning to the discretion enjoyed by the Parliament with regard to the consequences to be drawn from a withdrawal of mandate arising from national law, the Court observes, first, that, in accordance with Article 5(1) and (2) and Article 13(2) TEU, the Parliament is to act within the limits of the powers conferred on it by the Treaties.
60 Furthermore, where no uniform electoral procedure has been adopted, the procedure for the election of Members of Parliament remains governed in each Member State by its national provisions, subject to the provisions of the Electoral Act, in accordance with Article 8 of that act.
61 It is clear from the very wording of Article 13(3) of the Electoral Act and the second subparagraph of Rule 4(4) of the Rules of Procedure that, where the seat of a Member of Parliament falls vacant as a result of the withdrawal of his or her mandate explicitly provided for by national law, the term of office is to end solely on the basis of national law, and the Parliament is simply informed by the national authorities of the loss by the person concerned of his or her status as a Member of the European Parliament.
62 In that case, it follows from the case-law of the Court concerning Article 12(2) of the initial version of the Electoral Act, which can however be applied to Article 13(3) of that act in the version applicable to the dispute, that the Parliament has no discretion to declare that a seat has fallen vacant as a result of national law (see, to that effect, judgment of 30 April 2009, Italy and Donnici v Parliament, C‑393/07 and C‑9/08, EU:C:2009:275, paragraph 56), since its role is merely to take note that the seat is vacant as already established by the national authorities (see, to that effect, judgment of 7 July 2005, Le Pen v Parliament, C‑208/03 P, EU:C:2005:429, paragraph 50).
63 It is for the competent national courts, where appropriate after obtaining a preliminary ruling from the Court on the basis of Article 267 TFEU, or for the Court, on an action for failure to fulfil obligations under Article 258 TFEU, to review whether the procedure laid down by national law leading to the withdrawal of the mandate of a Member of the European Parliament is consistent with EU law (see, to that effect, order of the Vice-President of the Court of 8 October 2020, Junqueras i Vies v Parliament, C‑201/20 P(R), not published, EU:C:2020:818, paragraph 66).
64 The fact that, unlike the initial version of the Electoral Act, Article 13(3) of that act in the version applicable to the dispute no longer uses the words ‘take note’ cannot call into question the foregoing analysis, since it is clear from the very wording of that provision and from the wording of the second subparagraph of Rule 4(4) of the Rules of Procedure that, in the event of a withdrawal of the mandate explicitly provided for by national law, the Parliament is simply informed by the national authorities that the mandate has ended pursuant to national law.
65 By contrast, the Parliament has a more active role where the end of the term of office results from the resignation or death of one of its Members, in which case, in accordance with Article 13(4) of the Electoral Act, the Parliament itself is to establish that the seat is vacant and to inform the national authorities of that fact (see, to that effect, judgment of 7 July 2005, Le Pen v Parliament, C‑208/03 P, EU:C:2005:429, paragraph 50).
66 In that context, the Parliament’s discretion to refuse to declare the seat of one of its Members vacant where there is a material inaccuracy or vitiated consent, as provided for in Rule 4(7) of the Rules of Procedure, cannot in any event be exercised in cases in which the Parliament does not have the power to declare the seat vacant in the first place. As stated in paragraph 62 above, the Parliament has no such power where the seat has fallen vacant as a result of a withdrawal of the mandate covered by Article 13(3) of the Electoral Act.
67 In that regard, the Rules of Procedure are rules of internal organisation and cannot, without disregarding the hierarchy of norms, grant powers to the Parliament which are not conferred on it by a legislative measure, in this case by the Electoral Act (see, to that effect, judgment of 30 April 2009, Italy and Donnici v Parliament, C‑393/07 and C‑9/08, EU:C:2009:275, paragraphs 47 and 48).
68 In the light of the foregoing, the General Court did not, in any event, err in law in holding that the Parliament could not make use of the discretion provided for in Rule 4(7) of the Rules of Procedure to refuse to declare Mr Junqueras i Vies’ seat vacant.
69 That analysis is, as the General Court held in paragraph 60 of the order under appeal, supported by the wording of Articles 8 and 12 of the Electoral Act and Rule 3(3) of the Rules of Procedure, which make it clear that the electoral procedure remains governed by national law and state that the Parliament has only the power to rule on disputes relating to the application of the Electoral Act, to the exclusion of disputes relating to the application of national provisions.
70 In that regard, the expression ‘electoral procedure’ in Article 8(1) of the Electoral Act refers not only to the voting rules and to the rules on the allocation of mandates but also, contrary to the appellant’s submission, to the rules on the eligibility of Members of Parliament. It follows that the ineligibility that led to the withdrawal of Mr Junqueras i Vies’ mandate pursuant to the Spanish Electoral Law indeed falls, as the General Court held, within the scope of the ‘electoral procedure’ governed by national law, within the meaning of Article 8(1) of the Electoral Act. That is not a matter for the Parliament to review.
71 Lastly, the objection of illegality raised in the alternative by the appellant against Article 13(3) of the Electoral Act and Rule 4(7) of the Rules of Procedure must be rejected as inadmissible, since it was raised for the first time in the appeal (see, to that effect, judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraphs 124 to 126).
72 It follows from all the foregoing considerations that, since the declaration of 13 January 2020 is purely informative and therefore does not produce binding legal effects capable of affecting the appellant’s interests by bringing about a distinct change in his legal position, the General Court did not err in law in holding that the claim made by Mr Junqueras i Vies for annulment of that declaration was directed against an act in respect of which an action for annulment could not be brought on the basis of Article 263 TFEU.
73 It follows that the first to third grounds of appeal must be rejected.
74 By his fourth ground of appeal, Mr Junqueras i Vies challenges the grounds on which the General Court held that his claim for annulment of the refusal of the request of 20 December 2019 was inadmissible. He claims that the order under appeal is vitiated by an error of law in so far as the General Court held that an initiative of the President of the Parliament taken on the basis of Rule 8 of the Rules of Procedure was not binding on the competent authorities of the Member States and did not affect the legal position of the Member of the European Parliament concerned.
75 The Parliament and the Kingdom of Spain contend that that ground of appeal must be rejected.
76 It is apparent from paragraphs 103 to 106 of the order under appeal that the General Court primarily based its finding that the claim for annulment of the refusal of the request of 20 December 2019 was inadmissible on the fact that, in the absence of an explicit reply to that request from the President of the Parliament and failing any provisions or particular circumstances establishing the existence of an implied decision of refusal, that claim was directed against a non-existent act. It is purely for the sake of completeness that the General Court stated, in paragraphs 107 to 137 of the order under appeal, that, even if the declaration of 13 January 2020 did reveal the existence of an implied decision to refuse the request of 20 December 2019, the appellant’s claim for annulment of that decision would also have to be rejected as inadmissible, since it was directed against an act in respect of which an action for annulment could not be brought. The General Court considers that, unlike a response to a request for the defence of privileges and immunities submitted on the basis of Rule 9 of the Rules of Procedure, an initiative taken to assert the privileges and immunities of a Member of the European Parliament on the basis of Rule 8(1) of those rules falls within the discretion of the President of the Parliament and is therefore not binding on the competent authorities of the Member States and does not affect the legal position of the Member concerned.
77 With regard to the principal grounds relied on by the General Court, the appellant merely cites the timeline of events prior to the request of 20 December 2019, without explaining how that timeline should lead to the conclusion that the silence of the President of the Parliament on that request gave rise to an implied decision to refuse the request. In those circumstances, such an argument must be regarded as inadmissible. It does not call into question the General Court’s finding that the action brought by the appellant for annulment of the refusal of the request of 20 December 2019 was directed against a non-existent act.
78 In those circumstances, the line of argument put forward as to the remainder by Mr Junqueras i Vies in support of the fourth ground of appeal, which is directed against the grounds included for the sake of completeness by the General Court in paragraphs 107 to 137 of the order under appeal, must be rejected as ineffective.
79 It follows that the fourth ground of appeal must be rejected and the appeal dismissed.
80 Under Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to the costs.
81 In accordance with Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
82 Since the Parliament has applied for costs and the appellant has been unsuccessful, the appellant must be ordered to bear his own costs and to pay those incurred by the Parliament.
83 In accordance with Article 140(1) of the Rules of Procedure of the Court, which applies to appeal proceedings by virtue of Article 184(1) thereof, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Kingdom of Spain, which has intervened in this appeal, is to bear its own costs.