Joined Cases T‑346/11 and T‑347/11

Bruno Gollnisch

v

European Parliament

(Privileges and immunities — Member of the European Parliament — Decision to waive immunity — Activity unconnected with the functions of a Member of the Parliament — Procedure for waiver of immunity — Decision not to defend privileges and immunities — No further interest in bringing an action — No need to adjudicate)

Summary — Judgment of the General Court (First Chamber), 17 January 2013

1.      Privileges and immunities of the European Union — Members of the European Parliament — Immunity in respect of opinions expressed and votes cast in the performance of their duties — Meaning of opinion expressed in the performance of their duties — Need for a direct and obvious link between the opinion expressed and the parliamentary duties — Opinions expressed in the capacity of a national politician — No link — Inapplicability of the immunity

(Protocol on the Privileges and Immunities of the European Union, Arts 8 and 9)

2.      Privileges and Immunities of the European Union — Members of the European Parliament — Immunity in respect of opinions expressed and votes cast in the performance of their duties — Scope — Impossibility of waiving that immunity — Verification by the Parliament of the conditions for recognition thereof

(Protocol on the Privileges and Immunities of the European Union, Arts 8 and 9)

3.      Privileges and Immunities of the European Union — Members of the European Parliament — Immunity — Request for defence of immunity — Scope of the Parliament’s decision — Request submitted in parallel with the request for waiver of immunity

(Protocol on the Privileges and Immunities of the European Union, Arts 8 and 9)

4.      Privileges and Immunities of the European Union — Members of the European Parliament — Immunity — Request for waiver of immunity — Discretion of the Parliament — Judicial review — Scope

(Protocol on the Privileges and Immunities of the European Union, Art. 9)

5.      Privileges and Immunities of the European Union — Members of the European Parliament — Immunity — Request for waiver of immunity — Act carried out by the Member in national territory — Recognition of the immunity on the basis of the rules of the Member State

(Protocol on the Privileges and Immunities of the European Union, Arts 8 and 9)

6.      Union law — Principles — Protection of legitimate expectations — Notice of a committee of the European Parliament concerning practice in the matter of the privileges and immunities of Members — Notice not in the nature of an act of the Parliament — Act not containing precise, unconditional and consistent information capable of constituting precise assurances to give grounds for legitimate expectations — Decision departing from that notice — No breach of the principle of legal certainty

7.      Privileges and Immunities of the European Union — Members of the European Parliament — Immunity in respect of opinions expressed and votes cast in the performance of their duties — Opinions constituting incitement to racial hatred — Decision of the Parliament to waive immunity — Obligation to state reasons — Respect for principles of equal treatment and sound administration

(Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 11; Protocol on the Privileges and Immunities of the European Union, Art. 9, third para.)

8.      Privileges and Immunities of the European Union — Members of the European Parliament — Disqualification from holding office — National legal proceedings capable of leading to such disqualification — No obligation on Member States to inform the European Parliament

(Rules of Procedure of the European Parliament, Rule 3(6))

9.      Privileges and Immunities of the European Union — Members of the European Parliament — Immunity — Decision to waive immunity — Decision adopted without debate in plenary session — Submission of observations by the Member concerned before the parliamentary committee — Infringement of the right to be heard — None

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); (Rules of Procedure of the European Parliament, Rules 7(3) and 138(2))

10.    Non-contractual liability — Conditions — Cumulative nature — Unlawfulness — None — Causal link — None — Dismissal of the action

(Art. 340, second para., TFEU)

1.      It is clear from the wording of Article 8 of the Protocol on the Privileges and Immunities of the European Union that, in order to enjoy immunity, an opinion must have been expressed by a Member of the European Parliament ‘in the performance of [his] duties’, thus entailing the requirement of a link between the opinion expressed and the parliamentary duties. That is not the case with opinions expressed by a Member of the European Parliament, outside the premises of the Parliament, in the context of his functions as a member of a regional body of a Member State and as chairman of a political group within that body.

(see paras 40, 77, 78)

2.      A Member’s immunity under Article 9 of the Protocol may be waived by the Parliament, in accordance with the third paragraph of that article, whereas the immunity provided for in Article 8 cannot be waived. Thus, where a request for waiver of immunity is submitted to it by a national authority, the Parliament must first of all ascertain whether the facts giving rise to the request for waiver can be covered by Article 8 of the Protocol, in which case immunity cannot be waived. Should the Parliament reach the conclusion that Article 8 of the Protocol does not apply, it must then ascertain whether the Member concerned benefits from the immunity provided for in Article 9 of the Protocol in respect of the facts complained of and, if that is so, it must decide whether or not to waive that immunity.

(see paras 45-47)

3.      Since the immunity provided for in Article 9 of the Protocol is a matter of law and since the Member of the Parliament can be deprived of his immunity only if the Parliament has waived it, the defence of immunity, in the context of Article 9 of the Protocol, is conceivable only where, in the absence of a request for waiver of a Member’s immunity, immunity, as resulting from the provisions of the national law of that Member’s Member State of origin, is endangered, in particular, by the action of the police or judicial authorities of that Member’s Member State of origin. In such circumstances, the Member may request that the Parliament defend his immunity, as provided for by Article 6(3) of the Rules of Procedure of the Parliament. Defence of immunity is thus a means whereby the Parliament, at the request of a Member of the Parliament, may intervene where the national authorities violate or are about to violate the immunity of one of its Members.

Conversely, where a request for waiver of immunity is made by the national authorities, the Parliament must take a decision to waive or not to waive immunity. In such a case, defence of immunity no longer has any raison d’être, since either the Parliament waives immunity and the defence of immunity is no longer conceivable, or it refuses to waive immunity and defence of immunity is unnecessary, since the national authorities are advised that their request for waiver of immunity has been rejected by the Parliament and since immunity therefore precludes the measures which those authorities could or would take.

(see paras 52-56)

4.      While the privileges and immunities conferred on the European Union by the Protocol have a functional character, in that they are intended to avoid any interference with the functioning and independence of the European Union, the fact remains that they have been expressly accorded to Members of the Parliament and to officials and other staff of the EU institutions. The fact that the privileges and immunities have been provided in the public interest of the European Union justifies the power given to the institutions to waive the immunity where appropriate but does not mean that these privileges and immunities are granted to the European Union exclusively and not also to its officials, to other staff and to Members of the Parliament. Therefore the Protocol confers an individual right on the persons concerned, compliance with which is ensured by the system of remedies established by the Treaty.

The Parliament has a broad discretion when deciding whether to grant or to refuse a request for waiver of immunity or defence of immunity, owing to the political nature of such a decision. The exercise of that discretion is not, however, excluded from review by the Court. In the context of such a review the EU Courts must verify whether the relevant procedural rules have been complied with, whether the facts admitted by the institution have been accurately stated and whether there has been a manifest error of assessment or a misuse of powers.

(see paras 58-60)

5.      See the text of the decision.

(see paras 82-90)

6.      A notice drawn up by the General Secretariat of the Parliament, summarising a document of the Committee on Legal Affairs and the Internal Market’s previous practice in taking decisions, with the aim of making Members of the Parliament aware of that practice, is not an act of the Parliament and cannot therefore bind the latter. It follows that such a document cannot contain precise, unconditional and consistent information coming from the Parliament capable of constituting precise assurances on its part on the basis of which Members of the Parliament could entertain legitimate expectations.

Moreover, in departing from that notice, the Parliament cannot infringe the principle of legal certainty, since that notice is not an act of that institution and cannot therefore be regarded as a clear and precise rule enabling individuals to ascertain unequivocally what their rights and obligations are and take steps accordingly.

(see paras 107, 115, 124)

7.      See the text of the decision.

(see paras 109-114)

8.      Rule 3(6) of the Rules of Procedure of the European Parliament imposes no obligation on Member States to inform the Parliament of the existence of a procedure that might lead to the disqualification of one of its Members from holding office. That rule merely provides that where the competent authorities of the Member States initiate a procedure which might lead to the disqualification of a Member from holding office, the president of the Parliament is to ask them to keep him regularly informed of the stage reached in the procedure and is to refer the matter to the committee responsible for the verification of powers, on whose proposal the Parliament may adopt a position on the matter. The provisions of that rule thus establish the procedure to be followed by the President of the Parliament and not by the Member States. Moreover, no obligation on Member States may be established on the basis of the Rules of Procedure of the Parliament.

(see paras 132-137, 141)

9.      In accordance with the fundamental principle of respect for rights of the defence, laid down by Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, the person concerned must have had the opportunity, before the decision relating to him was adopted, to put forward his point of view on the correctness and relevance of the facts and circumstances on the basis of which the decision was adopted. It follows that, in accordance with that principle, a decision cannot be adopted on the basis of facts and circumstances on which the person concerned was not enabled to put forward his point of view before the adoption of that decision.

The right to be heard does not necessarily mean, however, that a public debate must be held in any proceedings initiated against a person which may lead to a measure adversely affecting him. Respect for the rights of the defence and the inter partes principle therefore does not mean that the adoption by the Parliament of a decision relating to the waiver of the immunity of a Member of the Parliament must necessarily be preceded by a debate in plenary session, but it may be adopted in accordance with the procedure without debate and without amendment, in accordance with Rule 138(2) of the Rules of Procedure. Moreover, under Rule 7(3) of the Rules of Procedure, a Member concerned by a request for waiver of his immunity is to be given an opportunity to be heard before the competent parliamentary committee and may present any documents or other written evidence which he deems relevant.

(see paras 167, 175-179)

10.    See the text of the decision.

(see paras 210-212, 222)