Ins and outs of European parliamentary immunity

The same day that former Catalan president Carles Puigdemont and his former minister Toni Comín took up their seats in the European Parliament, Spain's Supreme Court made a formal request that the EU chamber waive their immunity as MEPs.

The two exiles, who are facing extradition to Spain to answer charges related to their involvement in the 2017 independence bid, were confirmed as MEPs after a top European court ruled that another leader, Oriol Junqueras, had immunity as an MEP-elect.

Unlike Puigdemont and Comín, Junqueras was convicted for his part in the independence bid in October, which led the Supreme Court to deny him parliamentary immunity, which in turn led the European Parliament to terminate his mandate as an MEP.

The situation of these Catalan MEPs has put the issue of parliamentary immunity in the spotlight, as well as throwing up a number of questions about who it applies to and to what extent it protects an elected member of the European Parliament.

While the EU chamber's Committee on Legal Affairs now considers the request by Spain's Supreme Court to lift the immunity of Puigdemont and Comín, what follows is a short guide to some of the main points of parliamentary immunity as it applies to MEPs.

Why do MEPs get immunity?

It is a mechanism aimed at guaranteeing that an MEP can freely exercise his or her mandate without being subject to arbitrary, political persecution. It should not be seen as a personal privilege of the politician in question but aims to protect their role as an elected member.

How does immunity protect MEPs?

European Parliament members cannot be subject to any form of inquiry, detention or legal proceedings because of any opinions they express or votes they cast in their capacity as an MEP. Yet, members cannot claim immunity if they are found in the act of committing a criminal offense.

Where does an MEP have immunity?

MEP's enjoy immunity in the territory of his or her own member state, in the same way that members of that state's parliament do. They also have immunity in the territory of any other EU member state.

How can immunity be waived?

A competent state authority (such as Spain's Supreme Court) can ask the European Parliament to waive the immunity of an MEP. Once the parliament speaker has informed the chamber of the request, it goes before the Committee on Legal Affairs for consideration.

Who sits on the committee?

The committee is made up of 25 MEPs from a range of different member states and parties. The committee for the current political term (which goes to 2024), is chaired by British politician, Lucy Nethsingha, from the Liberal Democrat party. There are two Spanish representatives on the committee: Socialist party MEP Iban García del Blanco, and conservative PP member Esteban González Pons.

How does the committee go about dealing with the request?

The committee may ask for any information or explanation that it deems necessary in order to come to a decision. The MEP concerned is given an opportunity to have his or her say, and may present any documents or other written evidence to support their case.

How long will it take the committee to consider the request?

It will not be quick. There will be no immediate decision and the whole process could take several months. Before the committee can begin its work, the speaker must first notify the chamber of the request, and the EU parliament has already said that will not happen in the current plenary session.

What happens once the committee has reached a decision?

The committee makes a recommendation to the chamber to either approve or reject the request. At the next plenary session, the parliament votes on the committee's recommendation and either lifts or defends the MEP's immunity. After the vote, the speaker immediately communicates the chamber's decision to the MEP in question and to the competent authority of the member state concerned (in this case Spain's Supreme Court).

Does the MEP keep their seat even if their immunity is waived?

Yes. The mandate of an MEP is a national mandate and cannot be taken away by any other authority. Lifting an MEP's immunity merely enables the state judicial authorities to go ahead with investigating or trying the member concerned. MEPs are elected under national electoral law, and so if an MEP is found guilty of a criminal offense, it is up to the member state's authorities to decide whether they should lose their mandate.