Who is behind the European Parliament’s legal service siding with Spain against Puigdemont?

The presidency of the European Parliament may have changed course with David Sassoli’s appointment, but the institution’s legal service has not. This is demonstrated by its decision to oppose the request by MEPs Carles Puigdemont, Toni Comín and Clara Ponsatí for interim measures to protect their parliamentary immunity pending a ruling by the European justice system on their appeal. The deadline to grant the request came to an end last week, and according to the Catalan News Agency, the legal service will oppose it.

The European Parliament’s lawyers are totally opposed to such a move, in spite of Puigdemont’s arrest in Sardinia and the realisation that his rights may be jeopardised. Nevertheless, they have been forced into issuing a ruling, which is what the defence team led by Gonzalo Boye intended when they filed for interim measures. And now we will have to wait several months to see whether the Parliament’s legal team is, once again, overruled by the highest judicial authority in the European Union, the European Court of Justice. Ultimately it comes down to their insistence on taking Spain’s side on the issue of the exiled Catalan leaders.

When he was elected President of the European Parliament, Sassoli moved on from his predecessor Antonio Tajani’s blanket veto on all issues related to Catalan independence. His recognition of Carles Puigdemont and Toni Comín’s accreditation as MEPs in January 2020 had such an impact that it caused a rift with his Spanish socialist counterparts. However, this change of tone has not extended to the European Parliament’s legal service, which essentially remains unchanged from the Tajani era. It is still headed by Freddy Drexler, someone who has close ties to Spain’s Partido Popular and shares Spain’s position on Catalan independence.

Drexler, the discredited jurisconsult

Drexler continues in the post of jurisconsult of the European Parliament. In other words, he is the head of its legal service, as he was when Tajani was in office. When Tajani was about to step down Drexler did his dirty bidding for him by drawing up and leaking to the Spanish press a report, made at Tajani‘s behest a month before the election, which claimed that Puigdemont was ineligible to become an MEP with parliamentary immunity until he swore allegiance to the Spanish constitution in Madrid. The report did not bear the European Parliament’s official seal, nor was it signed by the legal service. Nevertheless, it was clearly a politically motivated attempt to influence the vote in the upcoming elections and to strengthen the position of the Spanish Electoral Board.

The European Parliament held this position after the elections and on the day of its first plenary on 2 July 2019, in Strasbourg. Puigdemont and Comín did not attend the session. Instead, they remained on the other side of the border, in Germany. The threat of arrest hung over them since their immunity was not recognised at the time, and the interim measures requested by the Court of Justice of the European Union (CJEU) had failed to materialise. Tajani, who a year earlier had been awarded the Carlos V European Award by King Felipe VI for “furthering European values”, had carried out his final favour for Spain. With the help of Freddie Drexler.

This was confirmed by Spain’s ElDiario.es in a devastating exposé (text in Spanish). Drexler, linked to the European PP through the veteran Alsatian leader Joseph Daul, spent two years as chief of staff to the Secretary General of the European Parliament Klaus Welle, between 2009 and 2011. In his final year, a message from an employee at the institution, sent to all European Parliament staff, accused both Daul and Welle of granting promotions in exchange for sexual favours. As a result of the scandal, Drexler was reassigned as head of legal services, where he remains to this day. His resume and background are rather poor compared to those of his predecessors, Christian Pennera and Gregorio Garzón Clariana, two widely respected experts with great authority.

In contrast, Drexler is known for doing his master’s bidding. Tajani‘s favour against Puigdemont is evidence of this, as is his decision as head of the legal service to water down the inquiry into LuxLeaks, the corruption scandal which plagued the former Chairman of the Commission, Jean-Claude Juncker, who also belongs to the European PP. Drexler also signed the European Parliament’s legal arguments in the proceedings before the CJEU of Puigdemont and Comín’s appeal against the European General Court’s (EGC) decision to deny them interim measures to enter the European Parliament on 2 July 2019. On December 20 of the same year, just one day after the CJEU’s ruling recognising the status of MEP Oriol Junqueras, the same court ruled that both Puigdemont and Comín ought to have had this condition recognised since they were both proclaimed elected MEPs, without needing to swear allegiance to or obey anything in Madrid. The European Parliament was involved in the case, with Drexler representing Spain’s position of refusing to recognise the two MEPs in exile. They were to face a double setback: because of their position in the case and because of the report which was commissioned by Tajani.

Görlitz, the surprised Eurolawyer

Another of the lawyers who represented the European Parliament in its defeat against Puigdemont and Comín —which led to them both immediately receiving their accreditation as MEPs— also faced a setback: Niklas Görlitz, a lawyer with the unit that deals with MEP rights. He signed the European Parliament’s current charges in the TGUE against Puigdemont, Comín and Ponsatí’s interim measures. Görlitz now opposes protecting the immunity of all three MEPs; in 2019, he opposed recognizing their status as MEPs and guaranteeing their prerogatives. The Junqueras ruling and the ruling which endorsed Puigdemont and Comín’s parliamentary immunity made such an impact on him that he even voiced his surprise at a conference (text in Spanish) in the Basque Country, a few weeks later.

It was at a seminar on parliamentary immunity organized by the Basque parliament. The Junqueras ruling had been handed down only a short time before. Görlitz referred to it, saying it had been a surprising, even revolutionary decision by the CJEU. He saw it as “difficult to manage”, since it recognised the immunity of MEPs (which is enshrined in Protocol 7 on the Privileges and Immunities of the EU) in a broader fashion than had been considered up until then or —at least— how he and his team had understood it to date. The key element is that it confirmed that MEPs enjoy immunity from the moment they are elected; that is, before the start of parliamentary activity. This means that the Spanish Supreme Court had violated Junqueras’ right to immunity when he was sent to prison after he had been elected as an MEP, without having appealed to the CJEU. Furthermore, it also means that the European Parliament, in collusion with the Spanish authorities, had violated Puigdemont and Comín’s immunity for almost six months, which is the time it took for them to be recognised as MEPs. However, Görlitz did not mention this in his address in the Basque Country.

What is worse, in spite of his surprise at the CJEU ruling, Görlitz —along with Drexler— did nothing to protect Junqueras‘ seat. The Spanish Supreme Court made a highly irregular interpretation of the CJEU’s ruling of 19 December 2019 and refused to release the ERC president so that he could take up his seat as MEP, subsequently going on to appeal to have his immunity withdrawn. President David Sassoli commissioned the legal service to issue a report on how to proceed with regard to Junqueras, following communications received from both the Spanish Supreme Court and the Electoral Board. Drexler and his team decided not to protect Junqueras’ seat, arguing that they could not overturn a decision by a court of a member state interpreting the Luxembourg ruling, which, in any case, if Junqueras refused to accept it, would end up being heard by a European court. Junqueras’ seat was left vacant and so far the Catalan leader has been unable to get the CJEU to attend to his demands.

The latest rulings by the European Parliament against the granting of interim measures to Puigdemont, Comín and Ponsatí have been signed by two lawyers who have worked for the legal service for almost as long as Drexler. Other individuals were appointed as trusted personnel linked to the European PP, while others —such as Germany’s Norbert Lorenz— ended up doing so at the behest of socialist Martin Schulz. It is clear that Sassoli has a different temperament from Tajani, but both the socialists and the conservatives have been playing the game for a while now, and both have been able to place key individuals in important positions. And the legal service is a critical one. Europe’s Popular and Socialist parties make up an uncompromising bloc that remains loyal to Spain. This bloc made it possible to approve the petition against Puigdemont and it knows that it does not need to worry about who is in the legal service and what they are up to, however much this may lead to clashes with the CJEU’s more scrupulous, open views on issues such as the recognition of parliamentarians’ rights. This has already happened and it is likely to occur again in the coming months.