The Advocate General of the European Court of Justice believes that the European Parliament could have admitted the Catalan politician Oriol Junqueras as a new Member of the European Parliament following the results of the European elections in May. The court's main legal advisor points out that it is solely the voters who determine whether someone is elected or not. And that the European Parliament governs its own procedures.
Junqueras is one of the leaders of the Catalan separatist movement, which had previously organized a referendum on independence in Catalonia and had separated the province from Spain. Madrid rejects that claim and says that the Catalan nationalists are acting against the constitution.
Junqueras, who was elected, was not allowed by Spain to leave prison to take a national oath in Madrid. Therefore, Madrid did not place him on the list of elected Spanish European politicians, and as a result, he could not take his seat in Strasbourg. But it is solely the voter who decides whether someone becomes a Member of the European Parliament, not the member state, says the Advocate General of the European Court now.
Also, the previously Belgium-fled ex-premier Carles Puigdemont and Catalan minister Toni Comin, both elected, did not take the oath requested by Madrid. If they had flown to Madrid, they would have been arrested immediately upon arrival. As a result, they also do not (yet?) have a seat in the parliament.
The Advocate General of the European Court of Justice now sides with Junqueras. Holding a seat in parliament cannot be made dependent on fulfilling any formality afterwards, such as taking an oath. According to the court’s senior advisor, the parliament itself must decide on the privileges and immunities of one of its members.
The Court usually follows the legal advice of the Advocate General, but not always. The court does acknowledge that Junqueras has since (after the elections!) been convicted and besides serving a 13-year prison sentence, his civil rights have been revoked for that period. Therefore, his immunity does not currently apply.
The Advocate General only expressed an opinion on the Junqueras case and not on the case brought by Puigdemont and Comin. The General Court previously ruled that member states are responsible for organizing European elections in their country but not for the overall result.
According to the advice, Spain was allowed to require a national oath from the politicians, but it also states that the parliament could not be forced to admit Puigdemont and Comin. That decision rests with the parliament itself. They have appealed that rejection, and a ruling is still pending.
The Advocate General's advice is interpreted by many supporters of Catalan autonomy as a first legal victory in their fight for the still unoccupied Catalan seats in the European Parliament. Others point out that the Court can also deviate from the advice.