The ECJ has revoked its interim order rejecting the suspension of the immunity of three Catalan MEPs on 30 July 2021. The procedure is not over. The court currently sees no grounds for maintaining its interim order, as the three Catalan MEPs would not face arrest and extradition to Spain even without their parliamentary immunity. At Spain's request, the European Court of Justice will first make a decision in the preliminary ruling case Puig i Gordí and others and will in all likelihood confirm the last-instance decision of the Belgian judiciary not to extradite the Catalan minister to Spain. Until a decision is made in these proceedings, the European arrest warrants will also remain suspended against the Catalan president in exile, Carles Puigdemont, and his ministers living in exile in Belgium. They can thus continue to carry out their activities as Members of the European Parliament undisturbed and move freely in the countries of the European Union — with the exception of Spain.

The corresponding press release of the ECJ can be read below in English translation. The reference to the original French publication can be found at the end of this article.

«Court of Justice of the European Union
PRESS RELEASE No. 141/21
Luxembourg, 30 July 2021

Order of the Vice-President of the Court of First Instance in Case T-272/21 R
Puigdemont i Casamajó and Others v Parliament

The Vice-President of the Court of First Instance of the European Union rejects the application for suspension of the waiver of the parliamentary immunity of Mr Carles Puigdemont i Casamajó and Mr Antoni Comín i Oliveres and of Ms Clara Ponsatí i Obiols.

On 13 January and 10 February 2020, the European Parliament received requests for waiver of the immunity of Mr Carles Puigdemont i Casamajó, Mr Antoni Comín i Oliveres and Ms Clara Ponsatí i Obiols, elected Members of Parliament. These applications, filed by the President of the Second Chamber of the Tribunal Supremo (Supreme Court, Spain) in the context of criminal proceedings involving, among other things, alleged sedition offences, requested that the execution of the European arrest warrants issued against the MPs be continued.

By decisions of 9 March 2021, Parliament lifted the immunity of the three MPs. On 19 May 2021, the MEPs brought an action before the General Court of the European Union for the annulment of these decisions. They consider that Parliament failed to ensure that they, as MEPs, could exercise their fundamental rights as representatives of the citizens of the Union and that it violated their rights protected by several articles of the Charter of Fundamental Rights of the European Union [JO. 2012 C 326, p. 391].

On 26 May 2021, the MPs filed an application for interim measures requesting the Vice-President of the General Court to suspend the execution of these decisions. They consider that the decisions of Parliament allow any Member State and the United Kingdom to arrest them or restrict their freedom of movement and hand them over to the Spanish authorities. They consider that the decisions do not preclude their detention after their eventual surrender to the said authorities. They consider that this would cause them serious and irreparable damage and would prejudice their right to exercise their mandate as MEPs. They added that any annulment of Parliament's decisions could not be enforced if they had already been the subject of such surrender and transfer at the time of annulment.

By order of 2 June 2021, made on the basis of Article 157(2) of the Rules of Procedure of the Court of First Instance, the Vice-President of the Court of First Instance ordered the suspension of the enforcement of Parliament's decisions until the present order was made, which terminated the interim measures procedure [see CP No 91/21].

By order of 30 July 2021, the Vice-President of the Tribunal set aside his order of 2 June 2021 and dismissed the Members' application for an interim order.

The Vice-President of the Tribunal recalled that a stay of execution may be granted if the party seeking it establishes that its grant is prima facie justified in fact and in law (fumus boni iuris) and that it is urgent in the sense that, in order to avoid serious and irreparable damage, it must be issued and take effect before the judgment on the merits. These conditions are cumulative, so that applications for interim measures must be refused if one of these conditions is not met. The judge for interim relief will also carry out a balancing of interests, if necessary.

The Vice-President of the Court of First Instance first examines whether the condition of urgency is met.

He shall first point out that, in considering the urgency condition, the Members have maintained the interpretation of the decisions of Parliament which most affect their rights. The Vice-President of the Court of First Instance rejects the argument based on this interpretation, since only the objective effects of the decisions, determined on the basis of their content, are to be taken into account for the assessment of this condition.

Secondly, the Vice-President of the Court of First Instance states that Parliament's decisions only waived the immunity from arrest and prosecution enjoyed by Members in the territory of a Member State other than their own. On the other hand, as Parliament accepted, the immunity enjoyed by Members when travelling to and from the place of meeting of Parliament remains legally intact. They can therefore travel to Parliament's sittings and cannot invoke the alleged risk of arrest, particularly in France, when travelling to and from a Parliament session in Strasbourg to establish the existence of serious and irreparable damage.

Thirdly, the Vice-President of the Court considers that the MEPs have not shown that they are under imminent threat of arrest. First, the occurrence of this harm depends on the occurrence of several factors. Secondly, the Vice-President of the Court considers that the Members have not shown that their arrest or the restriction of their freedom of movement, or a fortiori their handover to the Spanish authorities and subsequent placement in pre-trial detention, could have been foreseen with a sufficient degree of probability, in particular as regards the State in which they reside, namely Belgium.

Furthermore, on 7 January 2021, the Belgian judicial authorities refused to execute a European arrest warrant against Mr Lluís Puig i Gordi, who is also the subject of the criminal proceedings in question and of a European arrest warrant, but who, unlike Members of Parliament, does not enjoy parliamentary immunity, on the ground that the execution of that warrant would jeopardise the fundamental rights of the person concerned. This led the Tribunal Supremo, in the context of the criminal proceedings in question, to submit a reference for a preliminary ruling to the Court of Justice on 9 March 2021, in order to, inter alia to ascertain whether the executing judicial authority has the power to refuse to surrender the person sought by a European arrest warrant on the basis of grounds for refusal provided for in its national law [Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1)] (Puig Gordi and Others Case, C-158/21). As the criminal proceedings in question were suspended by this request, the execution of the European arrest warrants was also suspended, according to Spain, which intervened in support of the Parliament.

The Members of Parliament have not produced any evidence to rebut this, so that the Vice-President of the Court of First Instance considers that, pending the Court's ruling in the preliminary ruling Puig i Gordi and Others, there is no reason to believe that the Belgian judicial authorities or the authorities of another Member State could execute the European arrest warrants issued against the Members of Parliament and hand them over to the Spanish authorities.

The Vice-President adds that an arrest and surrender of Ms Ponsatí i Obiols by the authorities of the United Kingdom (where she had been staying for a certain period of time, namely until January 2020) seems hypothetical at this stage.

The Vice-President concludes that the Honourable Members have failed to establish that the requirement of urgency is satisfied, since the serious and irreparable harm they claim cannot be said to be certain or established with a sufficient degree of probability.

Despite the rejection of this application for interim measures, the Members still have the possibility of making a new application if the damage alleged appears sufficiently probable under the present order, in particular if they are arrested by an enforcement authority of a Member State or if measures are taken to hand them over to the Spanish authorities.

REMINDER: The Court of First Instance will give its final judgment on the merits at a later date. The order for interim measures does not prejudge the outcome of the main proceedings.

NOTE: An appeal, limited to points of law, may be brought before the Vice-President of the Court of Justice against the decision of the Vice-President of the Court of First Instance within two months and ten days of its notification.

Unofficial document for use by the media, not binding on the Court.

The full text of the order is published on the CURIA website.
Press contact: Amanda Nouvel (+352) 4303 2524.»

https://curia.europa.eu/jcms/jcms/p1_3576402/de/