What does the CJEU Advocate General's decision imply?

BarcelonaThe Court of Justice of the European Union (CJEU) Advocate General issued an opinion yesterday on the preliminary questions the Spanish Supreme Court had submitted and aligned itself with judge Pablo Llarena's theses. Here are the questions and answers about the implications of the latest European ruling on exiles.

Is the decision final?

No. The Advocate General's opinion is prior to the judgment, but it is not binding. Thus, the final decision could go in the opposite direction and be favourable to exiles. However, it is also true that its opinion usually sets the trend of the judges' decision.

Who is affected?

The Advocate General's opinion (and the subsequent judgment) is a response to the preliminary questions submitted by the Spanish Supreme Court judge Pablo Llarena when Belgium denied the extradition of former Catalan minister Lluís Puig over a possible violation of his presumption of innocence if he was tried in Spain and the Spanish Supreme Court's lack of jurisdiction to issue the European arrest warrant. Even so, despite the fact that the questions were about Puig's case, the jurisprudence set by the CJEU when it issues the sentence will determine the possibility of extradition of other exiles who are inside the EU, that is, of former president Carles Puigdemont and former Catalan ministers Toni Comín and Clara Ponsatí. The resolution would not affect the secretary general of Esquerra, Marta Rovira, nor former CUP deputy Anna Gabriel because they are in Switzerland, which does not belong to the European Union. In addition, the Supreme Court has not sent any formal extradition requests to this country.

Does it have any effect on the immunity of the MEPs?

The exiles' lawyer, Gonzalo Boye, still has several open cases in the EU's courts of justice, but two were key for the future of exiles: one on the preliminary rulings and the other on their immunity as MEPs. The CJEU's Advocate General starts the countdown for a resolution to the first case, but the second remains wide open and no clear timetable has been set for its conclusion (although the defence claims it will be this year).

Together for Catalonia (JxCat) MEPs Puigdemont, Comín and Ponsatí appealed against the European Parliament's decision to withdraw their immunity to the General Court of the European Union, which will have to decide whether it was done correctly (as the European Parliament defends) or if there are reasons of political persecution to maintain it (as exiles defend). Right now, in fact, the three JxCat MEPs still have immunity, since after the arrest of former president Carles Puigdemont in Sardinia (Italy), the Court of Justice of the EU decided to reinstate their immunity on a precautionary basis while the merits of the case were resolved. As long as the three exiles have immunity they cannot be arrested or extradited to Spain, which gives them additional protection compared to Lluís Puig, who is not an elected member of the European Parliament.

Can Euro-orders be reissued?

So far, exiles have won the battle against the Supreme Court wherever European arrest warrants have been issued: in Belgium, Germany, the United Kingdom and Italy. However, if the judgment were to follow the criteria of the CJEU's Advocate General, the Supreme Court would certainly reactivate the extradition orders against the exiles. Puig's could be renewed – according to the Advocate General it is possible to issue European arrest warrants that have already been rejected against the same individual in the same state – and those pending against Comín, Puigdemont and Ponsatí could be set in motion provided that their immunity is withdrawn.

In the case of former president Puigdemont, it is not clear which state would have to decide right now on an eventual extradition. Despite the fact that he lives in Belgium, the court in Sassari (Sardinia, Italy) decided to suspend the decision on the European arrest warrant issued by Llarena when the former president of the Generalitat visited the island waiting for the CJEU to rule on the preliminary questions. If the CJEU's judgment agrees with the Advocate General and the MEPs are stripped of their immunity, it is uncertain whether it would be Italian or Belgian courts who would decide on the future of Puigdemont.