Spexit, or Spanish nationalists finally coming out of the Eurosceptic Closet

Written by Julia Fernández Arribas (Ambassador of Spain)

On December 19th, 2019, the European Court of Justice (ECJ) ruled that Oriol Junqueras, a Catalan leader who has spent the last two years in provisional detention, had the right to immunity the moment he was elected as a member of the European Parliament (MEP). According to Spanish law, in order to become an MEP, one has to swear to uphold the Spanish Constitution in person. However, when the time came for Junqueras to do so, he was already in provisional detention for sedition and misuse of public funds, and the Spanish Supreme Court did not allow him to take said oath. With its ruling, the ECJ has stated that Junqueras gained immunity the moment he was elected, which would be the moment the election results were declared. This, in turn, would mean that according to the ECJ, he should have been allowed to travel to Strasbourg to take part in the inaugural session of the newly elected European Parliament (EP). This ruling would apply to other elected members of the EP as well, such as Carles Puidgemont, the former President of the Government of Catalonia, and Antoni Comín, the former Counselor of Health of Catalonia.

Consequently, the ruling sparked a eurosceptic response on social media under the hashtag #Spexit. Leaders of Spain’s far-right party, Vox, shared their anger online. Santiago Abascal, the leader of the party, stated that “Spain’s sovereignty is under attack” and that the ECJ “is feeding Catalonia’s coup”. Vox MEP Hermann Tertsch echoed Abascal by affirming that the European Union (EU) was “despising Spanish institutions and laws, as well as its national interests and dignity”.

Vox was not the only party that commented on the ruling. Dolors Monserrat, the Spokesperson of EPP’s Spanish delegation to the EP, said that “the ruling does not change the reality of the conviction for attacking democracy. Junqueras is still a convicted criminal. Parliamentary immunity is not the same as impunity.” The leader of PP (Spain’s Conservative party), Pablo Casado, stressed Monserrat’s statement: “The PP is committed to doing everything we can to ensure that Junqueras serves his sentence and Puidgemont is judged for his crimes. With full respect to judicial independence and separation of powers, we believe that Junqueras must remain in jail and Puidgemont must end there too.” On her side, Inés Arrimadas, the leader of Ciudadanos (Spain’s Liberal party) stated that “Junqueras is convicted for sedition and misuse of public funds” and that the ECJ’s ruling “does not question that conviction.” PSOE and Unidas Podemos, the social democrat and left-wing parties respectively, avoided to comment on the ruling, to prevent jeopardizing the negotiations about the presidential investiture.

While conservatives and liberals demanded improving judicial cooperation in the EU, cautiously respecting the ECJ’s ruling, Vox declared that the ruling threatens and misprises Spain’s sovereignty. And their followers followed.

During the 2019 European elections campaign, Vox made it very clear that they were not eurosceptic. It was not a surprise since according to the last Eurobarometer, 86% of Spaniards feel European; the move would have been unwise. But, at the same time, they aligned their European stance with that of the Visegrád, which is now known to be formed by the most eurosceptic States. Moreover, they joined the European Conservatives and Reformists (ECR) group in the EP, which define themselves as “eurocriticals” rather than eurosceptics. Vox’s stance in regards to the EU used to be very subtle, but it is not anymore.

The ECJ ruling has taken Vox out of the eurosceptic closet, with all of its consequences. The question of Spain leaving the EU, although supported only by a few, has been put on the table. What is truly interesting, other than why leaving the European Union would be a total disaster, is why they are suddenly supporting this idea. I mentioned before that Vox and its supporters felt that the EU was threatening Spain’s sovereignty. Let’s revisit that assumption.

Vox understands Spain’s sovereignty, in this case, as its power to decide over Junquera’s conviction with full independence from any other judicial authority. They see the ECJ’s ruling as an intrusion in this process, and as an illicit questioning of the Spanish Constitution. By recognizing that Junqueras enjoyed parliamentary immunity when he was elected, Vox believes that the EU humiliated Spanish justice.

First of all, in no case has the ECJ ruled that Junqueras hasn’t committed a crime. That was not the question the Court was solving. The point of the ECJ’s decision was drastically different: instead of evaluating the criminal responsibility of Junqueras, the matter in question pertained to the MEP’s immunities. This means that the ECJ did not interfere nor questioned the Spanish justice; on the contrary, it simply clarified the scope of these immunities to the Spanish Supreme Court.

Secondly, the ECJ’s ruling is based on EU law. The treaties that serve as the base of these laws, as well as the secondary legislation that has been developed over the years, are dependent on its Member States acceptance and consent. Every Member State that joins the EU has to sign and ratify its foundational treaties, which set out the competencies that Member States yield to the EU. When Spain became part of the EU, the ECJ became a part of the Spanish judicial system. It gained the competence of applying EU law as a national judge, in the same way, Spanish judges gained the competence to apply said laws when pertinent. Why did the Court take part in this issue, then? Because it was asked to by the Spanish Supreme Court. When Junqueras was denied permission to attend EP’s inaugural session, he appealed to the Supreme Court. As questions regarding EU law were implied in the matter, the Supreme Court asked the ECJ for a preliminary ruling about MEP’s immunities and whether Junqueras was protected by them. The ECJ simply answered these questions following the EU law. It was the Spanish Supreme Court who involved the ECJ in the procedure in the first place, so there has not been any violation of Spain’s sovereignty along the process.

Thirdly, answering to some users on Twitter alleging that “ECJ’s ruling would have been different if it had been Germany”, I argue that this would not have been the case. As I previously stated, the ruling is a decision based on EU law. It is applicable to all EU countries. MEPs’ immunity is not something that the ECJ has made up for this particular case. The MEPs’ immunity is foreseen in the Protocol 7 (on the privileges and immunities of the European Union) of the TFEU (one of the foundational treaties of the European Union), in its Article 7. Once again, ECJ’s ruling has not been arbitrary but rather based on legal precepts that Spain has agreed to.

This is just to show that the complaints made about the EU over this issue are unfounded. Of course, the intention showcased by Vox to leave the EU goes far beyond the legal perspective; it enters the political arena. The jealousy over national sovereignty, the economic protectionism or xenophobia, that clashes directly with one of the EU’s greatest achievements, the Schengen Agreement, are some of the real reasons why Vox is a eurosceptic party. ECJ’s ruling must have seemed to offer the perfect pretext for Vox to ignite the eurosceptic movement in Spain. But, certainly, what the ECJ did, interpreting the law, is not wrong or threatening to Spain’s national sovereignty. If anything, it strengthens it. As does being a Member State of the European Union.