Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)

5 July 2023 (*)

(Action for annulment – Institutional law – Member of the Parliament – Refusal of the President of the Parliament to accede to a request for privileges and immunities to be defended – Act not open to challenge – Inadmissibility)

In Case T‑115/20,

Carles Puigdemont i Casamajó, residing in Waterloo (Belgium),

Antoni Comín i Oliveres, residing in Waterloo,

represented by P. Bekaert, G. Boye, S. Bekaert, lawyers, and by B. Emmerson KC,

applicants,

v

European Parliament, represented by N. Görlitz and J.‑C. Puffer, acting as Agents,

defendant,

supported by

Kingdom of Spain, represented by A. Gavela Llopis and J. Ruiz Sánchez, acting as Agents,

intervener,

THE GENERAL COURT (Sixth Chamber, Extended Composition),

composed, at the time of the deliberations, of A. Marcoulli (Rapporteur), President, S. Frimodt Nielsen, H. Kanninen, J. Schwarcz and R. Norkus, Judges,

Registrar: M. Zwozdziak-Carbonne, Administrator,

having regard to the written part of the procedure, in particular the order of 17 June 2021 by which the objection of inadmissibility raised by the Parliament was joined to the substantive action,

further to the hearing on 24 November 2022,

gives the following

Judgment

1        By their action based on Article 263 TFEU, the applicants, Mr Carles Puigdemont i Casamajó and Mr Antoni Comín i Oliveres, seek annulment of the decision of the President of the European Parliament allegedly contained in his letter of 10 December 2019, sent in response to the request that the Parliament, on the basis of Rule 9 of its Rules of Procedure, defend their parliamentary immunity.

 Background to the dispute and facts subsequent to the bringing of the action

2        The first applicant was President of the Generalitat de Cataluña (Generality of Catalonia, Spain) and the second was a Member of the Gobierno autonómico de Cataluña (Autonomous Government of Catalonia, Spain) at the time of the adoption of Ley 19/2017 del Parlamento de Cataluña, reguladora del referéndum de autodeterminación (Law 19/2017 of the Parliament of Catalonia regulating the referendum on self-determination) of 6 September 2017 (DOGC No 7449A of 6 September 2017, p. 1) and of Ley 20/2017 del Parlamento de Cataluña, de transitoriedad jurídica y fundacional de la República (Law 20/2017 of the Parliament of Catalonia on legal and functional transition of the Republic) of 8 September 2017 (DOGC No 7451A of 8 September 2017, p. 1), and at the time of the holding, on 1 October 2017, of the referendum on self-determination provided for in the first of those two laws, the provisions of which had, in the interim, been suspended by a decision of the Tribunal Constitucional (Constitutional Court, Spain).

3        Following the adoption of those laws and the holding of that referendum, the Ministerio fiscal (Public Prosecutor’s Office, Spain), the Abogado del Estado (State Counsel, Spain) and the political party VOX initiated criminal proceedings against a number of individuals, including the applicants, on the ground that they had committed acts constituting, inter alia, the offences of insurgency, sedition and misuse of public funds.

4        By order of 9 July 2018, the Tribunal Supremo (Supreme Court, Spain) declared that the applicants had refused to appear following their flight from Spain, and it stayed the criminal proceedings instituted against them until such time as they are found.

5        The applicants subsequently applied to stand as candidates in the elections of the Members of the Parliament held in Spain on 26 May 2019 (‘the elections of 26 May 2019’). Following those elections, they were elected to the Parliament, as is clear from the official declaration of the electoral results made by the Junta Electoral Central (Central Electoral Commission, Spain) in a decision of 13 June 2019: ‘Declaration of the Members elected to the European Parliament in the elections held on 26 May 2019’ (BOE No 142 of 14 June 2019, p. 62477).

6        By letter of 14 June 2019, the applicants inter alia requested the then President of the Parliament to take note of the results of the elections of 26 May 2019 set out in the declaration of 13 June 2019.

7        On 15 June 2019, the investigating judge of the Tribunal Supremo (Supreme Court) rejected a request by the applicants for the withdrawal of the national arrest warrants issued against them by the Spanish criminal courts for them to be tried in the criminal proceedings referred to in paragraph 3 above.

8        On 17 June 2019, the Central Electoral Commission notified the Parliament of the list of candidates elected in Spain, which did not include the applicants’ names.

9        On 20 June 2019, the Central Electoral Commission notified the Parliament of a decision in which it found that the applicants had not taken the oath or promised to respect the Spanish Constitution, as required under Article 224(2) of Ley orgánica 5/1985 de régimen electoral general (Organic Law 5/1985 on the General Electoral System) of 19 June 1985 (BOE No 147 of 20 June 1985, p. 19110), and, in accordance with that article, declared that the seats allocated to the applicants in the Parliament were vacant and that all the prerogatives to which they might be entitled by virtue of their duties were suspended until such time as they took that oath or made that promise.

10      By letter of the same day, the applicants inter alia requested the then President of the Parliament to adopt, as a matter of urgency, on the basis of Rule 8 of the Rules of Procedure of the Parliament as they then applied, any measure necessary for the purpose of asserting their privileges and immunities. Their request was reiterated on 24 June 2019.

11      By letter of 27 June 2019, the then President of the Parliament replied to the applicants’ letters of 14, 20 and 24 June 2019, informing them, in essence, that he was not in a position to treat them as future Members of the Parliament because their names were not on the list of elected candidates officially communicated by the Spanish authorities.

12      On 2 July 2019, the first session took place for the newly elected Parliament following the elections of 26 May 2019.

13      By email of 10 October 2019, Ms A, the Member of the European Parliament acting on behalf of three candidates declared to have been elected in the elections of 26 May 2019, including the applicants, sent to the President of the Parliament elected on 3 July 2019 (‘the President of the Parliament’) and to the Chair and Vice-Chair of the Parliament’s Committee on Legal Affairs a request from 38 Members of the European Parliament from several nationalities and political parties, including herself, seeking inter alia the Parliament’s defence, on the basis of Rule 9 of the Rules of Procedure of the Parliament applicable to the ninth parliamentary term (2019-2024), in the version prior to its amendment by the decision of the Parliament of 17 January 2023 (‘the Rules of Procedure’), of the parliamentary immunity of the persons concerned, as referred to in the first and second paragraphs of Article 9 of Protocol (No 7) on the Privileges and Immunities of the European Union (OJ 2010 C 83, p. 266; ‘Protocol No 7’). The documents cited in support of that request were communicated to the Parliament by email of 26 November 2019.

14      On 14 October 2019, the investigating judge of the Criminal Chamber of the Tribunal Supremo (Supreme Court) issued a national arrest warrant, a European arrest warrant and an international arrest warrant against the first applicant, so that he might be tried in the criminal proceedings referred to in paragraph 3 above. On 4 November 2019, similar arrest warrants were issued by the same judge against the second applicant. The first applicant and the second applicant were subsequently placed in detention in Belgium on 17 October and 7 November 2019 respectively, and released on the same day, subject to conditions.

15      By two similarly worded letters of 10 December 2019, one addressed to Ms A and the other to all 38 Members of Parliament, the President of the Parliament replied to the request referred to in paragraph 13 above. In the letter addressed to Ms A (‘the contested act’), the President of the Parliament drew the addressee’s attention to the order of 1 July 2019, Puigdemont i Casamajó and Comín i Oliveres v Parliament (T‑388/19 R, not published, EU:T:2019:467), and to the fact, in essence, that the Parliament could not regard the three candidates declared to have been elected in the elections of 26 May 2019 as Members of the Parliament in the absence of official notification by the Spanish authorities of their election, within the meaning 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 President of the Parliament referred to the earlier letters to that effect, namely, first, the letter from his predecessor dated 27 June 2019 addressed to the applicants (see paragraph 11 above) and, second, the letter dated 22 August 2019, which he had addressed to Ms A regarding the Parliament’s inability to take any action whatsoever vis-à-vis the alleged immunity of the other elected candidate. The President of the Parliament also referred to the judgment of the Tribunal Supremo (Supreme Court) of 14 October 2019 concerning that other elected candidate. He then stated that he had taken note of the Opinion of Advocate General Szpunar in Junqueras Vies (C‑502/19, EU:C:2019:958) and was awaiting the final decision of the Court of Justice. Finally, he observed that Rule 9(2) of the Rules of Procedure permitted a Member or former Member of the Parliament to be represented by just one other Member and not by 38 Members. The President of the Parliament therefore invited Ms A to draw her own conclusions from those explanations.

16      By judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115), the Court inter alia held that a person who had been officially declared elected to the Parliament but had not been 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 had to be regarded as enjoying immunity under the second paragraph of Article 9 of Protocol No 7.

17      At the plenary session of 13 January 2020, the Parliament took note, following the judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115), of the applicants’ election to the Parliament with effect from 2 July 2019.

18      On the same day, the President of the Tribunal Supremo (Supreme Court) notified the Parliament of the request dated 10 January 2020, communicated through the offices of the President of the Criminal Chamber of that court as a result of an order of that same day made by the investigating judge of that chamber, for the waiver of the applicants’ immunity on the basis of the third paragraph of Article 9 of Protocol No 7.

19      By decisions of 9 March 2021, the Parliament granted the request referred to in paragraph 18 above.

 Forms of order sought

20      The applicants claim that the Court should:

–        annul the contested act;

–        order the Parliament to pay the costs.

21      The Parliament contends that the Court should:

–        declare that there is no longer any need to adjudicate on the action to the extent that the immunity under point (b) of the first paragraph of Article 9 of Protocol No 7 is concerned and dismiss the action as to the remainder as being inadmissible or, in the alternative, unfounded;

–        in the alternative, dismiss the action as inadmissible or, in the final alternative, unfounded;

–        order the applicants to pay the costs.

22      The Kingdom of Spain contends that the Court should:

–        dismiss the application as inadmissible or, in the alternative, unfounded;

–        order the applicants to pay the costs.

 Law

 Legal context

 European Union law

23      Chapter III of Protocol No 7, relating to ‘Members of the European Parliament’, includes, inter alia, Article 8, which states:

‘Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.’

24      Article 9 of Protocol No 7 provides:

‘During the sessions of the European Parliament, its Members shall enjoy:

(a)      in the territory of their own State, the immunities accorded to members of their parliament;

(b)      in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.’

25      Chapter VII of Protocol No 7, entitled ‘General provisions’, includes, inter alia, Article 18, which provides:

‘The institutions of the Union shall, for the purpose of applying this Protocol, cooperate with the responsible authorities of the Member States concerned.’

26      Rule 5 of the Rules of Procedure, entitled ‘Privileges and immunities’, provides:

‘1. Members shall enjoy privileges and immunities in accordance with the Protocol No 7 …

2. In exercising its powers on privileges and immunities, Parliament shall act to uphold its integrity as a democratic legislative assembly and to ensure the independence of its Members in the performance of their duties. Parliamentary immunity is not a Member’s personal privilege but a guarantee of the independence of Parliament as a whole, and of its Members.

…’

27      Rule 7 of the Rules of Procedure, entitled ‘Defence of privileges and immunities’, provides:

‘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 No 7 …

…

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.’

28      Rule 9 of the Rules of Procedure, entitled ‘Procedures on immunity’, provides:

‘1. Any request addressed to the President [of the Parliament] by a competent authority of a Member State for the immunity of a Member to be waived, or by a Member or a former Member for privileges and immunities to be defended, shall be announced in Parliament and referred to the committee responsible.

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.

…

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.

…’

 Spanish law

29      Article 71 of the Spanish Constitution provides:

‘1. Deputies and senators shall enjoy absolute privilege in respect of opinions expressed in the performance of their duties.

2. During their term of office, deputies and senators shall also have immunity and may only be arrested if they are found in the act of committing an offence. They cannot be charged or prosecuted without the prior authorisation of the relevant legislative chamber.

3. The Criminal Division of the Tribunal Supremo [(Supreme Court)] shall have jurisdiction in criminal cases against deputies and senators.

…’

30      Articles 750 to 754 of the Ley de Enjuiciamiento Criminal (Code of Criminal Procedure) are worded as follows:

‘Article 750.

A court which finds that there are grounds for prosecuting a senator or deputy of the Cortes [Senate and Congress of Deputies, Spain] for a criminal offence shall refrain from doing so if the [Senate and the Congress of Deputies] are in session until it obtains the relevant authorisation from the legislative chamber of which the person in question is a member.

Article 751.

Where a senator or deputy is found in the act of committing an offence, he or she may be arrested and prosecuted without the authorisation referred to in the previous article; however, the relevant legislative chamber must be notified of this within 24 hours of the arrest or prosecution.

The legislative chamber concerned must also be notified of any criminal case pending against a person who, while being prosecuted, is elected a senator or deputy.

Article 752.

If a senator or deputy is prosecuted during a period between parliamentary sessions, the court seised of the case must immediately bring this to the attention of the legislative chamber concerned.

The above shall also apply where a person who has been elected a senator or deputy is prosecuted before [the Senate or the Congress of Deputies] meets.

Article 753.

At all events, the judicial officer shall stay the criminal proceedings from the date on which the [Senate and the Congress of Deputies] is informed, whether or not they are in session, and matters shall remain as they stand at that time until the relevant legislative chamber adopts the decision it considers appropriate.

Article 754.

Should [the Senate or the Congress of Deputies] refuse to grant the authorisation requested, the proceedings shall be discontinued in respect of the senator or deputy but the case shall continue against the other defendants.’

31      The Reglamento del Congreso de los Diputados (Rules of Procedure of the Congress of Deputies) of 10 February 1982 (BOE No 55 of 5 March 1982, p. 5765), provides, in Article 11:

‘During their term of office, deputies shall also have immunity and may only be arrested if they are found in the act of committing an offence. They may not be charged or prosecuted without the prior authorisation of the Chamber.’

32      Article 12 of the Rules of Procedure of the Congress of Deputies provides:

‘Once the arrest of a deputy, or any other judicial or government action which could hamper the exercise of the deputy’s mandate, has become known, the President of the Congress shall immediately adopt all measures necessary to safeguard the rights and prerogatives of the chamber and its members.’

33      Article 22(1) of the Reglamento del Senado (Senate Regulation) of 3 May 1994 (BOE No 114 of 13 May 1994, p. 14687) provides:

‘During their term of office, senators shall have immunity and may be detained or arrested only if they are found in the act of committing an offence. The detention or arrest shall be communicated to the Senate Presidency immediately.

Senators may not be charged or prosecuted without the prior authorisation of the Senate, which must be sought by means of the relevant request for waiver of immunity. Such authorisation shall also be necessary in proceedings brought against persons who take up the post of senator after having been prosecuted or charged.’

 Admissibility of the action

34      The Parliament raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court. It relies on a bar to proceeding with the case, on the basis that there is no act open to challenge for the purposes of Article 263 TFEU, which is based, primarily, on the informative or intermediate nature of the contested act and, in the alternative, on the fact that a decision to defend the applicants’ immunity provided for in Article 9 of Protocol No 7, pursuant to Rules 7 and 9 of the Rules of Procedure, does not constitute an act adversely affecting the applicants.

35      The applicants dispute the Parliament’s arguments.

36      According to settled case-law, any acts adopted by the institutions of the European Union, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of an applicant, by bringing about a distinct change in his or her legal position, are regarded as actionable measures for the purposes of Article 263 TFEU (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51).

37      Conversely, any EU act not producing binding legal effects falls outside the scope of the judicial review provided for in Article 263 TFEU (see judgment of 15 July 2021, FBF, C‑911/19, EU:C:2021:599, paragraph 37 and the case-law cited).

38      In order to determine whether an act produces binding legal effects, it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (see judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 32 and the case-law cited; judgment of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 47).

 The allegedly informative or intermediate nature of the contested act

39      The Parliament contends, primarily, that the contested act is purely informative and that it is an intermediate act. Its contains no indication of a decision rejecting the request for defence of the applicants’ immunity or finding it inadmissible, nor does it change the applicants’ legal position. In the Parliament’s submission, the contested act simply provides its addressee with information about the scope of Rules 7 and 9 of the Rules of Procedure and about certain procedural requirements, a summary description of the relevant case-law of the General Court and some background information. The Parliament also argues that, given the imminent delivery of the judgment of the Court of Justice in Junqueras Vies (judgment of 19 December 2019, C‑502/19, Junqueras Vies EU:C:2019:1115), the President of the Parliament did not intend to adopt a final position. The conclusion of the contested act clarifies the fact that its sole purpose was to provide Ms A with the relevant information from a factual, legal and procedural point of view, in particular in the light of the doubts as to the conformity of the request for defence with the first subparagraph of Rule 9(2) of the Rules of Procedure, in order to allow her to adapt the request or to put an end to it.

40      Furthermore, it is settled case-law that an act of a purely informative character can neither affect the interests of the addressee nor change his or her legal position compared with the situation prior to receipt of that act (see judgment of 11 December 2012, Sina Bank v Council, T‑15/11, EU:T:2012:661, paragraph 30 and the case-law cited). The same applies to an intermediate act expressing a provisional opinion of the institution concerned, with the exception of any intermediate act producing independent legal effects if the illegality attaching to that act cannot be remedied in an action brought against the final decision for which it represents a preparatory step (see judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraphs 44 and 46 and the case-law cited).

41      In the present case, by the contested act, the President of the Parliament states that, according to the Rules of Procedure, a request for the defence of privileges and immunities based on Rules 7 and 9 of the Rules of Procedure may seek only the defence of those privileges and immunities of a Member of the Parliament or of a former Member of the Parliament. He then explains, in essence, referring both to the order of 1 July 2019, Puigdemont i Casamajó and Comín i Oliveres v Parliament (T‑388/19 R, not published, EU:T:2019:467), and to letters issued by his predecessor and by himself, that, in the absence of official notification of the applicants’ election by the Spanish authorities, the latter cannot be regarded as having acquired the status of Members of the Parliament. Finally, he observes that Rule 9(2) of the Rules of Procedure permits a Member or former Member of the Parliament to be represented by just one other Member and not by 38 Members. Consequently, the President of the Parliament invited Ms A to draw her own conclusions from those explanations (see paragraph 15 above).

42      Such conclusive wording, which confers on the addressee of the act responsibility for determining its scope, cannot, contrary to what the Parliament contends, be regarded as ‘clarif[ying] in an unambiguous manner’ the fact that the contested act was intended solely to provide Ms A. with factual, legal and procedural information.

43      Pursuant to Rule 9(1) of the Rules of Procedure, where a request is submitted to the President of the Parliament by a Member or a former Member for privileges and immunities to be defended, the President is to announce that request in Parliament and refer it to the committee responsible. It is common ground that the contested act is the only follow-up to the request for defence of the applicants’ immunity, which was neither announced in Parliament nor referred to the committee responsible.

44      Moreover, the conclusive wording referred to above was made after the communication of 10 bullet points which seek, in essence, to explain that the applicants cannot be regarded as having acquired the status of Members and, therefore, as benefiting from the immunities attached to that status. One of the bullet-points also expresses doubts as to whether the request for defence complies with the provisions of Rule 9(2) of the Rules of Procedure.

45      In that context, the reference in the penultimate paragraph of the contested act to the judgment to be delivered by the Court in Junqueras Vies (judgment of 19 December 2019, Junqueras Vies, C‑502/19, EU:C:2019:1115), is not sufficient to confer on the contested act the nature of an intermediate act alleged by the Parliament, when, in particular, such a reference may be read as a response to the reliance, by the authors of the request, on the Opinion of Advocate General Szpunar in that case.

46      Accordingly, it must be held that, by the contested act, considered as a whole, the President of the Parliament, in essence, implicitly refused to announce in Parliament the request for defence of the applicants’ immunity and to refer that request to the committee responsible for examination.

47      It follows that the plea of inadmissibility raised by the Parliament must be rejected in so far as it is based on the informative or intermediate nature of the contested act.

 The lack of legal effects of any decision by the Parliament to defend the applicants’ immunity

48      The Parliament contends that the contested act does not produce legal effects since a decision to defend the applicants’ immunity provided for in Article 9 of Protocol No 7 does not itself produce binding effects vis-à-vis the national authorities. Although, in the Parliament’s submission, it cannot be ruled out from the outset that a decision to defend the immunity of a Member of Parliament provided for in Article 9 of Protocol No 7 produces legal effects, their existence depends on the powers conferred on parliamentary assemblies by the national law to which point (a) of the first paragraph of Article 9 of Protocol No 7 refers. However, no provision of Spanish law confers on Spanish parliamentary assemblies the right to request the stay of legal proceedings against one of their members.

49      The Parliament adds that the national acts which, according to the applicants, stem from the contested act were adopted autonomously by the Spanish authorities under national law alone. It also maintains that it cannot be inferred from Article 9 of Protocol No 7 that a decision to defend a Member’s immunity has legal effects. Lastly, the Parliament observes that its Rules of Procedure cannot form the basis of legal obligations for Member States.

50      In the first place, the applicants argue that a decision of the Parliament to defend the immunity of a Member of Parliament, as provided for in Article 9 of Protocol No 7, produces legal effects.

51      In that regard, they submit that there is no analogy between the Parliament’s powers in respect of the immunity provided for in Article 8 of Protocol No 7 and those which it holds with regard to the immunity provided for in Article 9 of that protocol. Thus, as regards the latter, the Parliament’s power to adopt a defence decision producing legal effects is based on its competence to waive immunity, pursuant to the third paragraph of Article 9 of that protocol, from which it follows that it has exclusive competence to decide whether or not that immunity protects one of its Members in a given case.

52      The applicants also submit that, even assuming that the Parliament’s power to defend the immunity of a Member must be sought in national law, Spanish law confers on parliamentary assemblies the power to adopt measures that are binding on the national judicial authorities.

53      In the second place, the applicants claim that, if the President of the Parliament had initiated a procedure for the defence of their immunity, the national judicial authorities would have been obliged, under the principle of sincere cooperation, to stay the proceedings brought against them at least until the outcome of the proceedings before the Parliament, which would have prevented the issuing of the arrest warrants of 14 October and 4 November 2019. In addition, the contested act also had the effect of depriving the applicants of certain rights guaranteed by the Charter of Fundamental Rights of the European Union, including the right to exercise office.

–       Preliminary observations

54      According to the case-law, the reply of an EU institution to a request submitted to it does not necessarily constitute a decision for the purposes of the fourth paragraph of Article 263 TFEU and thereby enable the addressee of that reply to bring an action for annulment (order of 27 January 1993, Miethke v Parliament, C‑25/92, EU:C:1993:32, paragraph 10; judgment of 15 September 2022, PNB Banka v ECB, C‑326/21 P, not published, EU:T:2022:693, paragraph 92, and order of 5 September 2012, Farage v Parliament and Buzek, T‑564/11, not published, EU:T:2012:403, paragraph 27).

55      Furthermore, when a decision of an EU institution amounts to a rejection, it must be appraised in the light of the nature of the request to which it constitutes a reply (judgments of 8 March 1972, Nordgetreide v Commission, 42/71, EU:C:1972:16, paragraph 5; of 24 November 1992, Buckl and Others v Commission, C‑15/91 and C‑108/91, EU:C:1992:454, paragraph 22; and of 9 October 2018, Multiconnect v Commission, T‑884/16, not published, EU:T:2018:665, paragraph 45). In particular, a refusal constitutes an act in respect of which an action for annulment may be brought under Article 263 TFEU provided that the act which the EU institution refuses to adopt could itself have been contested under that provision (see judgment of 22 October 1996, Salt Union v Commission, T‑330/94, EU:T:1996:154, paragraph 32 and the case-law cited). It follows that the rejection by an institution of a request addressed to it does not constitute an act against which an action for annulment may be brought where that application does not seek the adoption, by that institution, of a measure having binding legal effects (orders of 5 September 2012, Farage v Parliament and Buzek, T‑564/11, not published, EU:T:2012:403, paragraph 27, and of 1 February 2018, Collins v Parliament, T‑919/16, not published, EU:T:2018:58, paragraph 19).

56      Therefore, in the present case, in order to determine whether the refusal by the President of the Parliament following the request for defence of the applicants’ immunity is an act open to challenge for the purposes of Article 263 TFEU, it is necessary to examine whether the defence decision requested was capable of producing legal effects, bearing in mind that that request was intended to defend the applicants’ parliamentary immunity provided for in the first and second paragraphs of Article 9 of Protocol No 7.

57      At the outset, it should be noted that, in accordance with Article 5(1) TEU and Article 13(2) TEU, the Parliament acts within the limits of the powers conferred on it by the Treaties. Although waiver of the immunity of a Member of the European Parliament is expressly provided for in the third paragraph of Article 9 of Protocol No 7, the defence of his or her immunity is provided for only by Rules 7 and 9 of the Rules of Procedure.

58      Next, it has already been held that the decision of the Parliament to defend immunity provided for in Article 8 of Protocol No 7 constituted an opinion without binding effect on national courts (see, to that effect, judgments of 21 October 2008, Marra C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 39, and of 6 September 2011, Patriciello C‑163/10, EU:C:2011:543, paragraph 39). In order to reach that conclusion, the Court relied on the following: first, Protocol No 7 does not confer on the Parliament the power to determine, in cases of legal proceedings against one of its Members in respect of opinions expressed or votes cast by him or her, whether the conditions for applying Article 8 of Protocol No 7 are met. Second, such a power cannot stem from the provisions of the Rules of Procedure, which are rules of internal organisation and cannot grant powers to the Parliament which are not expressly acknowledged by a legislative act, in this case by Protocol No 7. Third, the fact that the law of a Member State provides for a procedure in defence of the immunity of members of the national parliament – enabling that parliament to intervene where the national court does not recognise that immunity – does not imply that the same powers are conferred on the Parliament in relation to Members of the European Parliament coming from that Member State, since Article 8 of Protocol No 7 does not expressly grant such power, nor does it refer to the rules of national law (judgment of 21 October 2008, Marra, C‑200/07 and C‑201/07, EU:C:2008:579, paragraphs 32, 38 and 40). Conversely, it has been held that a decision of the Parliament not to defend the immunity provided for in Article 8 of Protocol No 7 does not constitute an act producing binding legal effects either (see, to that effect, orders of 5 September 2012, Farage v Parliament and Buzek, T‑564/11, not published, EU:T:2012:403, paragraph 28, and of 1 February 2018, Collins v Parliament, T‑919/16, not published, EU:T:2018:58, paragraph 21).

59      The applicants maintain that that case-law cannot be transposed to decisions to defend immunity under Article 9 of Protocol No 7. In their view, the Parliament’s competence to adopt decisions to defend that immunity producing binding effects on national judicial authorities is based on its exclusive competence to waive that immunity under the third paragraph of Article 9 of Protocol No 7 or, where appropriate, in the national law to which point (a) of the first paragraph of Article 9 of that protocol refers.

60      It is therefore necessary to examine in turn the two bases thus relied on by the applicants.

–       Parliament’s competence on the basis of its right to waive immunity

61      The applicants claim that the right to waive the immunity provided for in the third paragraph of Article 9 of Protocol No 7 includes the right not to waive that immunity, that is to say, in their view, the right to defend it. They submit that the decision not to waive immunity following a request from the national authorities and the decision to defend immunity following a Member’s request should have the same binding effects. According to the applicants, the Parliament alone is competent to decide in a binding manner whether or not the immunity provided for in Article 9 of Protocol No 7 protects a Member in a given case. Thus, Protocol No 7, in conjunction with Article 343 TFEU, Article 4(3) TEU and Article 18 of Protocol No 7, would allow the Parliament to refuse to waive the immunity of a Member of Parliament and therefore, according to the applicants, to defend it, at the request of that Member and not of a Member State. This would be the only interpretation capable of ensuring the effet utile of the immunities and of guaranteeing observance of the principle of effectiveness.

62      In that regard, first, it must be recalled that the third paragraph of Article 9 of Protocol No 7 confers on the Parliament the exclusive right to waive the immunity provided for in Article 9 of that protocol, that is to say, the right to deprive a Member of the protection he or she enjoys under that provision. Such a decision constitutes an act open to challenge for the purposes of Article 263 TFEU (judgment of 15 October 2008, Mote v Parliament, T‑345/05, EU:T:2008:440, paragraph 31). The exercise of that right means that a request for waiver of immunity has been made to the Parliament by a competent authority. That authority has thus already found that the Member enjoyed the immunity provided for in Article 9 of Protocol No 7 in a given procedure and requested the Parliament to waive that immunity in order to continue those proceedings. The Parliament must then decide whether or not to waive that immunity, without Protocol No 7 specifying the criteria on which it must rely. It therefore enjoys a very broad discretion in that regard in view of the political nature of such a decision (see, to that effect, judgments of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 59, and of 12 February 2020, Bilde v Parliament, T‑248/19, not published, EU:T:2020:46, paragraph 19).

63      On the other hand, the Parliament may be called upon to defend the immunity of a Member provided for in Article 9 of Protocol No 7, on the basis of Rules 7 and 9 of the Rules of Procedure, only in the absence of a request for waiver of immunity. According to the case-law, the defence of this immunity is only conceivable in the event that, in the absence of a request for the waiver of immunity, it is compromised by the action of the competent authorities (see, to that effect, judgment of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 52). In order to make a decision on such a request for defence, the Parliament must examine, pursuant to Rule 7(1) of the Rules of Procedure, whether there has been or may be an infringement of the immunity provided for in Article 9 of Protocol No 7.

64      It follows that the examination of a request for waiver of immunity and the examination of a request for the defence of immunity provided for in Article 9 of Protocol No 7 entail two distinct exercises.

65      Second, contrary to what the applicants claim, the exclusive right to waive the immunity provided for in Article 9 of Protocol No 7, conferred by the third paragraph of that article, cannot be interpreted as conferring on the Parliament exclusive competence to decide, with binding effect, whether or not a Member enjoys the immunity provided for in Article 9 of Protocol No 7 in respect of the facts alleged against him or her.

66      That competence lies primarily with the authorities, in particular the national judicial authorities, which conduct judicial proceedings and are required, in that context, to apply the provisions laid down in Protocol No 7. Thus, if those authorities find that the facts alleged against the Member are covered by the immunity provided for in Article 9 of Protocol No 7, read in conjunction with, where appropriate, national law, they are required, if they wish to continue those proceedings, to request the waiver of that immunity from the Parliament. First, it should be recalled that that competence is exercised without prejudice to the right, or the obligation, of national courts called upon to apply those provisions, to refer to the Court of Justice, pursuant to Article 267 TFEU, a question on the interpretation of that protocol. Second, that competence of the national authorities does not preclude the competence which the Parliament exercises when, having received a request for waiver of immunity, it examines whether the Member actually enjoys the immunity provided for in Article 9 of Protocol No 7 before deciding whether or not to waive it (see, to that effect, judgment of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 47). Such an examination thus falls within the competence conferred on the Parliament by the third paragraph of Article 9 of that protocol when it is carried out in the context of a request to waive immunity.

67      The applicants claim that such an interpretation concerning the division of powers between the Parliament and the Member States as regards Article 9 of Protocol No 7 undermines the effectiveness of the immunities granted to Members of the Parliament and, therefore, the objective which they pursue of protecting the functioning and independence of the Parliament.

68      However, first, a broad interpretation of a provision of EU law in order to preserve its effectiveness cannot result in the division of powers between the European Union and its Member States under the Treaties being disregarded. That would be the case if it were to be inferred from the third paragraph of Article 9 of Protocol No 7 that the Parliament has exclusive competence to determine whether or not the judicial proceedings brought against a Member calls his or her immunity into question. Second, the protection which Article 9 of Protocol No 7 confers on Members, like the obligation of the authorities of the Member States to respect it, flows directly from Protocol No 7 and not from a provision of the Rules of Procedure of the Parliament or from a decision of the Parliament adopted on the basis of those Rules of Procedure. Accordingly, that protection is binding on authorities conducting judicial proceedings. Those national authorities are thus required to stay those proceedings where they find that the immunity provided for in Article 9 of Protocol No 7 is at issue and to submit to the Parliament a request for waiver of that immunity. Failure by the national authorities to comply with Article 9 of Protocol No 7 may give rise to the initiation of infringement proceedings by the European Commission, which, under Article 258 TFEU, is responsible for ensuring that the Member States comply with the provisions of the Treaties.

69      It follows that the decision not to grant a request for waiver of immunity made by national authorities and the decision to defend immunity at the request of a Member are not adopted within the same legal framework. Contrary to what the applicants claim, their legal effects do not therefore necessarily have to be the same.

70      Accordingly, the applicants are not justified in claiming that the Parliament may, on the basis of the third paragraph of Article 9 of Protocol No 7, adopt decisions to defend the immunity provided for in Article 9 of that protocol which produce binding legal effects vis-à-vis the national judicial authorities.

–       Parliament’s competence on the basis of national law

71      The Parliament submits that, in order to establish the legal effects of a decision to defend immunity provided for in Article 9 of Protocol No 7, it is necessary to take account of the reference to national law in that article. Thus, where the law of a Member State confers power on the national parliament to request a stay of proceedings against one of its members, the Parliament has the same power in respect of a Member of the European Parliament elected for that State. The Parliament considers that, in such a case, a decision to defend a Member’s immunity produces binding legal effects and a decision not to defend immunity could be the subject of an action for annulment.

72      The applicants submit that the connection between the legal effects and national law, to which point (a) of the first paragraph of Article 9 of Protocol No 7 refers, is not reasonable since it introduces a difference in treatment between immunities, leaving unprotected, in the absence of a waiver request, the immunities provided for in point (b) of the first paragraph and the second paragraph of Article 9 of Protocol No 7, even though they are governed exclusively by EU law. Furthermore, that connection with national law is at odds with the principle of equality between Members of the Parliament and with the free movement of persons since, if there were a breach of immunities by the same Member State, the Parliament could defend a Member elected for that State, but not a Member elected for other States.

73      In the alternative, the applicants submit that, even if the competence of the Parliament to defend a Member’s immunity has to be sought in national law, the provisions of Article 12 of the Rules of Procedure of the Chamber of Deputies and the combined provisions of Article 751(2) and Article 753 of the Code of Criminal Procedure allow the Parliament to adopt measures that bind the national judicial authorities. The applicants add that that national legislation must be interpreted so as to ensure that the Parliament is fully able to perform the tasks entrusted to it.

74      In that regard, in the first place, it should be recalled that, according to point (a) of the first paragraph of Article 9 of Protocol No 7, in the territory of their own State, Members of the European Parliament enjoy the immunities accorded, under national law, to members of parliament in their country (see paragraph 24 above). That provision means that the extent and scope of the immunity enjoyed by Members of the European Parliament in the territory of their own State, in other words the substantive content of that immunity, are to be determined by the various national laws to which that provision refers (see, to that effect, judgment of 19 March 2010, Gollnisch v Parliament, T‑42/06, EU:T:2010:102, paragraph 106).

75      It is common ground that national laws vary as regards the substantive content of parliamentary immunity. Thus, that may mean that it is impossible for the judicial or police authorities to adopt certain measures with regard to members of the national parliament, without having obtained prior authorisation, generally from the assembly to which they belong. It may also involve the power granted to the national parliament to request, of its own motion or at the request of the member concerned, the suspension of certain measures already adopted against him or her, such as measures involving deprivation of liberty or prosecutions, in particular where those authorities do not recognise the immunity of that member. That power conferred on the national parliament necessarily forms part of the substantive content of the immunity of members of that parliament.

76      It follows that the reference to national law, made in point (a) of the first paragraph of Article 9 of Protocol No 7, means that, where the law of a Member State provides for a procedure for the defence of the immunity of members of the national parliament, enabling that parliament to intervene with the judicial or police authorities, in particular by requiring the suspension of the prosecution of one of its members, the same powers are conferred on the Parliament in relation to Members of the European Parliament elected for that State (see, to that effect, judgment of 19 March 2010, Gollnisch v Parliament, T‑42/06, EU:T:2010:102, paragraphs 105 and 115).

77      In so far as the applicants claim that such an interpretation would lead to a difference in treatment between Members of the Parliament according to the State for which they were elected, it should be noted that such a difference stems from the reference to national law made in point (a) of the first paragraph of Article 9 of Protocol No 7.

78      In the second place, in this instance, it must be held that Article 71 of the Spanish Constitution (see paragraph 29 above) does not confer any competence on the national parliament to intervene when the national authorities do not recognise the immunity of a member of the national parliament, as the case may be, by requiring the stay of the proceedings brought against that member or the suspension of his or her detention.

79      The applicants submit, however, that the combined provisions of Article 751(2) and Article 753 of the Code of Criminal Procedure, on the one hand, and Article 12 of the Rules of Procedure of the Chamber of Deputies, on the other, confer on the national parliament the power to adopt acts binding on the judicial authorities in order to safeguard the immunity of its members where that immunity is compromised.

80      In that regard, it follows from their wording that Article 751(2) and Article 753 of the Code of Criminal Procedure do not confer any competence of its own on the Spanish Parliament, in particular requiring the suspension of criminal proceedings. The suspension of the procedure provided for in Article 753 of the Code of Criminal Procedure is an automatic effect connected with information regarding the situation of the member in question, given by the competent authorities to the national parliament. This effect is temporary, since the suspension runs until the national parliament gives its decision.

81      Furthermore, it must be held that the applicants’ interpretation of the provisions referred to in paragraph 79 above was rejected by the Tribunal Supremo (Supreme Court) and by the Tribunal Constitucional (Constitutional Court). In particular, by judgment 70/2021 of 18 March 2021, which was followed in subsequent judgments, the Tribunal Constitucional (Constitutional Court) held, in essence, that the national parliament had only the competence to authorise or not to authorise the prosecution of one of its members, but not any other power, such as that of suspending detention or prosecution, contrary to what was provided for in the constitution of other States. The Tribunal Constitucional (Constitutional Court) also recalled that the provisions of the Code of Criminal Procedure and the Rules of Procedure of the Senate and the Chamber of Deputies must be interpreted in accordance with the provisions of Article 71 of the Spanish Constitution.

82      It must therefore be held that the provisions of national law referred to in paragraphs 29 to 33 above, as interpreted by the national courts, do not confer on the Spanish Parliament the power to defend the immunity of one of its members where the national court does not recognise that immunity, in particular by requiring the suspension of judicial proceedings brought against that member. Accordingly, the Parliament does not have, on the basis of the national law to which point (a) of the first paragraph of Article 9 of Protocol No 7 refers, such a power in respect of Members elected for the Kingdom of Spain.

83      It follows from all of the foregoing that the Parliament does not have competence arising from a legislative act to adopt a decision to defend the applicants’ immunity that would produce binding legal effects vis-à-vis the Spanish judicial authorities. Accordingly, the Parliament could not adopt, in response to the request for defence of the applicants’ immunity, a decision producing binding legal effects.

84      That finding is not called into question by the applicants’ other arguments.

85      First, in so far as the applicants rely on the effects which would flow from the application of the principle of sincere cooperation, it follows from that principle, enshrined in Article 4(3) TEU, that the Member States are required to take all measures necessary to guarantee the application and effectiveness of EU law. Under Article 18 of Protocol No 7, which sets out in this connection the principle laid down in Article 4(3) TEU, the institutions of the European Union and the authorities of the Member States are required to cooperate in order to avoid any conflict in the interpretation and application of the provisions of that protocol (see judgment of 17 December 2020, Commission v Slovenia (ECB Archives), C‑316/19, EU:C:2020:1030, paragraph 119 and the case-law cited). Thus, where an action has been brought against a Member of the European Parliament before a national court and that court is informed that proceedings for the defence of the privileges and immunities of that Member have been initiated, that court must stay the judicial proceedings (judgment of 21 October 2008, Marra, C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 43).

86      According to the applicants, the contested act necessarily produced legal effects, since, if the President of the Parliament had initiated the procedure for the defence of their immunity by announcing it in Parliament and referring it to the committee responsible, the Spanish judicial authorities would have had to suspend the criminal proceedings against them.

87      In that regard, it is appropriate to recall the case-law according to which the effects of an act rejecting a request seeking the adoption of a decision must be assessed in the light of the effects of the decision thus sought (see paragraph 55 above). It follows that the effects of the contested act must be examined in the light of the effects of the defence decision which was requested. The effects of such a decision do not exist in the present case (see paragraph 83 above). It should also be noted that the suspensory effect on the national court proceedings, on which the applicants rely, arises not from the initiation of a procedure to defend the immunity of a Member of the European Parliament, but from the consequences which the national court must draw from the information brought to its knowledge regarding the initiation of such a procedure, in accordance with the principle of sincere cooperation (see, to that effect, judgment of 21 October 2008, Marra, C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 43), the review of which is a matter for the EU Courts.

88      Second, the applicants claim that, by the contested act, the President of the Parliament allowed the Spanish judicial authorities to continue to infringe their immunity and some of their fundamental rights, in particular by issuing the arrest warrants referred to in paragraph 14 above. It must be stated that the alleged infringements stem from acts adopted at national level and that the Parliament had no power to object, through a legally binding decision, to their enactment.

89      It follows from all of the foregoing that the contested act cannot be challenged by means of an action for annulment under Article 263 TFEU. The plea of inadmissibility raised by the Parliament must therefore be upheld and, accordingly, the action must be dismissed as inadmissible, without it being necessary to examine the Parliament’s application for a declaration that there is no need to adjudicate on part of the action, or the plea of inadmissibility raised by the Kingdom of Spain alleging that the applicants have no interest in bringing proceedings or, finally, the plea of inadmissibility raised by the Parliament and the Kingdom of Spain in respect of the new evidence produced by the applicants on the day of the hearing.

 Costs

90      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

91      Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Parliament, in accordance with the form of order sought by the Parliament.

92      Pursuant to Article 138(1) of the Rules of Procedure, the Kingdom of Spain must bear its own costs.

On those grounds,

THE GENERAL COURT (Sixth Chamber, Extended Composition)

hereby:

1.      Dismisses the action;

2.      Orders Mr Carles Puigdemont i Casamajó and Mr Antoni Comín i Oliveres to bear their own costs and to pay those incurred by the European Parliament;

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

Delivered in open court in Luxembourg on 5 July 2023.

*      Language of the case: English.

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