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29 de juny 2019

Thread by Carlos Vecino on Spain's efforts prevent 3 Catalan MEPs from taking office (June 28 2019)

A thread of tweets by Carlos Vecino clarifies the incongruence - to put it mildly - of the Spanish authorities and the still-President of the European Parlimanet, in their desperate efforts to prevent three elected MEPs from taking up their seats in the European Parliament. MS has translated ...
Click here if need be, for the whole post)
... it into English (we thank Sr. Vecino for his permission)

1. It appears that the Presidents of both the European Parliament and the Spanish Central Electoral Board are playing around with the legal norms on the issue of Puigdemont and Comín’s accreditations as MEPs. Oriol Junqueras is another related issue.

This is yesterday's letter from President Tajani in response to Puigdemont and Comin.


2. In his letter Tajani mentions that the Spanish Central Electoral Board informed him on June 18 and 20 of the 'official results' of the European elections in Spain.

3. Tajani also states in his letter that in the list of "4) elected deputies" communicated to the European Parliament by the "Spanish authorities" the names of Puigdemont and Comín are not included.

4. The only official list of "elected deputies" in the European elections in Spain known until now is the one recorded in the minutes of the Central Electoral Board on the decision proclaming the deputies elected to the European Parliament on June 13.


5. That official list of deputies elected to the European Parliament was published "officially" in the Spanish Official Gazette (BOE) on June 14, as can be seen in this link:


6. The texts, dispositions and acts of the administration published in the BOE are official and are considered 'authentic', as provided in art. 3.1 of Royal Decree 181/2008, of the BOE.


7. The 'official' list of candidates elected to the European Parliament communicated by the Central Electoral Board to the Spanish Central Electoral Board(JEC), of which Tajani speaks, and in which the names of Puigdemont and Comín do not appear, has not been published in the Official State Gazette nor does it appear on the JEC website, where all the decisions of the Board are published.

8. The only document published on the JEC website is decision 561/73 of June 20, which informs the European Parliament of the 'candidates' who have not acquired the status of deputies to the European Parliament on account of not having sworn allegiance to the Spanish Constitution: Junqueras, Puigdemont and Comín.


9/10/11. The previous decision has not been published in the BOE. It is curious to observe how the June13 JECdecision that proclaims the list of "elected deputies" to the EP, which includes Puigdemont and Comín, considers them 'electeddeputies', and in the decision of June 20 it considers them as "candidates who have not acquired the status of deputies elected to the EP". This is, at the very least, INCONGRUENT. Taking into account that the list of elected candidates proclaimed by the JEC on June 13 and published in the BOE on June 14 has an official and authentic character, does not thatlist - which includes Puigdemont and Comín - prevail over the June 20 JEC decision - that excludes them and that has not even been published in the BOE?

12. Finally, where has the list of 'elected deputies' mentioned by Tajani in his letter of reply to Puigdemont and Comín, and which has been 'officially' communicated to the EP by the "Spanish authorities" and which excludes pro-independence MEPs, been 'officially' published ?

My opinion: The list of elected deputies is the one published by the BOE on June 14, as a result of the official recount of the results. The alleged list sent by the JEC to the EP has not been officially published and is a list 'manipulated' by the JEC based on the criterion of swearing allegiance to the Spanish Constitution. That the TS has validated the exclusion of pro-independence MEPs does not invalidate the list of officially elected deputies published in the BOE: they are still elected deputies. 

See also:

Joseo Costa: Hey, Gonzalo Boye, @boye_g, can we already confess that the business about swearing allegiance to the Constitution goes against European laws was not our invention? It was the chairman of the Legal Affairs Committee of the Parliament who left it in writing in 2014 and wanted to report Spain for that...
However, the above provision must be read in conjunction with the more general principle that Members may not receive a binding mandate. This principle is enshrined in Article 6(1) of the Act and in Articles 2(1) and 3(1) of the Statute for Members of the European Parliament. It is, therefore, questionable whether the requirement of an oath of fidelity to the national Constitution, failing which the vacancy of the seat may be established, is compatible with a parliamentary mandate, such as the mandate of Members of the European Parliament, which is to be exercised freely and independently. The Rapporteur recommends calling on the Commission to check whether any domestic legislation providing for such an oath – or other similar obligations – is entirely compatible with the Act of 1976 and the Statute for Members. 
(See "DRAT REPORT below)

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Original texts:














Vegeu també / See also:


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DRAFT REPORT on the verification of credentials
19-11-2014
JURI_PR(2014)541585 PE541.585v02-00
JURI
Pavel SVOBODA


...
5.      Calls on the Commission to check whether any domestic legislation providing for an oath of fidelity to the national constitution or other similar requirements – as is the case, for example, under Article 224(2) of the Spanish Law on the General Electoral Regime (‘Ley Orgánica del Régimen Electoral General’) – is entirely compatible with the Act of 20 September 1976 and the Statute for Members;*
...
I. whereas in certain Member States, the newly elected Members of the European Parliament are required to swear an oath of fidelity to the national constitution before their election is officially notified to Parliament, failing which the national authorities deem the seat of the Members concerned vacant and their parliamentary prerogatives suspended; whereas such a requirement may not be compatible with the Act of 20 September 1976, in particular Article 6(1) thereof, and with the Statute for Members of the European Parliament, in particular Articles 2(1) and 3(1) thereof;**

 ...

d) Oath of fidelity to the national Constitution

It appears that in some Member States, the newly elected Members of the European Parliament are required to swear an oath of fidelity to the national Constitution before their election is officially notified to Parliament.

This is, for example, the case of Spain, where the Law on the General Electoral Regime of 19 June 1985 ('Ley Orgánica 5/1985, de 19 de junio, del Régimen Electoral General') construes such requirement as a condition for the commencement of the Members' mandate. Article 224(2) of that Law reads as follows (unofficial translation):
Within five days after their proclamation, the candidates elected shall swear or promise abidance with the Constitution before the Central Electoral Committee. After this period, the Central Electoral Committee shall declare that the seats of those Members of the European Parliament who have not abided with the Constitution are vacant and that all the prerogatives which they enjoy by reason of their office are suspended until such time as abidance has occurred.”
Arguably, under such a provision, an elected candidate who fails to swear that oath will be replaced by the person following him or her in the ranking established in accordance with the results of the vote.

It is true that, in the light of the Act of 1976, Member States may have some room for manoeuvre in respect of the conditions for the exercise or the withdrawal of the mandate of a Member. In particular, Article 13(3) of the Act of 1976 reads as follows:
3. Where the law of a Member State makes explicit provision for the withdrawal of the mandate of a member of the European Parliament, that mandate shall end pursuant to those legal provisions. The competent national authorities shall inform the European Parliament thereof.”
However, the above provision must be read in conjunction with the more general principle that Members may not receive a binding mandate. This principle is enshrined in Article 6(1) of the Act and in Articles 2(1) and 3(1) of the Statute for Members of the European Parliament. It is, therefore, questionable whether the requirement of an oath of fidelity to the national Constitution, failing which the vacancy of the seat may be established, is compatible with a parliamentary mandate, such as the mandate of Members of the European Parliament, which is to be exercised freely and independently. The Rapporteur recommends calling on the Commission to check whether any domestic legislation providing for such an oath – or other similar obligations – is entirely compatible with the Act of 1976 and the Statute for Members.

* [Deleted by amendment 2 (Luis de Grandes Pascual, Rosa Estaràs Ferragut - PP): 
http://www.europarl.europa.eu/doceo/document/JURI-AM-544196_EN.pdf
Justification 
The Statute for Members makes no reference to the requirements that must be met for the verification of Members’ credentials. Furthermore, it would be hard to argue that Article 6(1) of the Act of 20 September 1976is incompatible with domestic legislation. In fact, Article 8 of the Act of 20 September 1976 stipulates that ‘subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions’.

** [Deleted by amendment 7 (Luis de Grandes Pascual, Rosa Estaràs Ferragut - PP):
http://www.europarl.europa.eu/doceo/document/JURI-AM-544196_EN.pdf
Justification 
The Statute for Members makes no reference to the requirements that must be met for the verification of Members’ credentials. Furthermore, it would be hard to argue that Article 6(1) of the Act of 20 September 1976 is incompatible with domestic legislation. In fact, Article 8 of the Act of 20 September 1976 stipulates that ‘subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions’. 

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