The parliamentary group of United We Can in the Congress of Deputies has registered this Monday a letter in the Constitutional Court (TC) to raise preliminary questions to the Court of Justice of the European Union (CJEU) of Luxembourg to establish if the president of the high court, Pedro José González-Trevijano Sánchez, and magistrate Antonio Narváez Rodríguez must automatically abstain in the appeal filed by the PP to stop the reforms of the PSOE and UP on the election of TC judges.
"It is completely unquestionable that whoever has their mandate expired is directly affected by the norm whose processing the appellants have challenged and this is so for the simple fact that if said legal reform is enacted they will cease to be members of the Constitutional Court and, therefore, will lose their current position, emoluments and prerogatives as well as the power to decide in the sense they consider or to which they have committed", argues the formation in a statement.
For this reason, the formation requested last week that both magistrates withdraw from participating in any decision related "to the maneuvers of the right to torpedo the normal parliamentary processing" of the reforms promoted by the partners of the central government in Congress and that now it must validate the Senate, after they went ahead on Thursday in the Lower House.
Among the questions for a preliminary ruling that they intend to transfer to Luxembourg with this letter is also to know if the "breach" of the aforementioned duty of abstention by the magistrates involved "places the affected procedure in a channel of nullity of proceedings", bearing in mind that the law recognized in article 47 of the Charter of Fundamental Rights of the European Union, according to consolidated jurisprudence of the CJEU itself, "it is not a limitable right except for the exceptions provided for in article 52 of the Charter itself".
It should be remembered that the questions referred for a preliminary ruling, once raised and admitted, have a suspensive effect on the resolution of the merits of the matter. United We Can already presented a letter last week accusing these two magistrates and legal sources explained to Europa Press that if discussed this Monday these challenges would also have a suspensive effect.
Unidas Podemos also seeks that the high judicial instance of the EU make it "clearly clear" how the abstention of magistrates should be applied, specifically in the Constitutional Court, "which is the last internal decision-making body of a Member State" or if that abstention "It is a duty of an absolute and automatic nature when the circumstances legally provided for in the internal law concur."
The letter was signed by the president of the parliamentary group Jaume Asens and the deputies Pablo Echenique, Txema Guijarro and Enrique Santiago. In it, the Constitutional Court is also asked to ask the European judicial instance whether "it must be understood that 'having a direct or indirect interest in the lawsuit or cause' also occurs when the result of the lawsuit entails the promulgation or not of a new regulation that affects directly to the personal, economic and professional interests of the judge or magistrate called to resolve, even when this affectation does not occur automatically but as a consequence of what is going to be resolved", in clear reference to what affects the aforementioned magistrates of the Spanish High Court.
From UP they justify the presentation of these questions of preliminary ruling to the CJEU because "all national proceedings are subject, in one way or another, to the law of the European Union". Based on the fact that this procedure is subject to Union law, the letter warns that it is "a unique case in which a State power has in its hands to deprive another State power of its powers and, all this, in a case that directly and irremediably affects, both personally and professionally, a number of members of the body called upon to decide on the matter".
Unidas Podemos directly points out that the "only thing that the PP intends" with its action before the TC is that the processing of a legal reform that "directly, personally and professionally" affects some members of the Constitutional Court who "do not seem to doubt that the obligation of impartiality that also affects them is not applicable to the present case, omitting that, in reality, it is a cause that prevents their respective participation in the resolution of this specific procedure."
However, the leaders of Unidas Podemos have also warned that if the Constitutional Court refuses to process the requested preliminary questions "it will leave the Spanish State exposed to the claim of any other Member State and, with this, it will leave the legal and judicial system at the expense what, when the time comes, is of interest to any other Member State of the European Union".
Likewise, from United We Can, they have presented a second letter in which they remind the Constitutional Court that a resolution to reconsider the Congress Table is pending, which means that the appeal for amparo presented by the Popular Party to paralyze the reform that allows the unblocking of the court itself is "clearly premature for not having exhausted the previous parliamentary route, which means that it must be inadmissible outright".
The confederal group also insists that the affectation of the right to political participation that the jurisdictional suspension of a parliamentary initiative would entail is "obvious" and recalls that the initial appeal of the PP referred to the need for the very precautionary request for voting in Congress, which has already taken place, which loses the purpose of said petition, which must be inadmissible. They also recall that in 2007 two magistrates abstained from debating and voting on an appeal on the reform of the LOTC, a situation very similar to the current one.
