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The scope of MEPs’ immunities

Araceli Turmo , 9 septembre 2011

In one of the first judgments given after the end of its summer vacation, in Case Aldo Patriciello (C-163/10), the Court of Justice was called upon to determine the extent of the material immunity applicable to statements made by members of the European Parliament under Article 8 of the Protocol on Privileges and Immunities of the European Union. In the main proceedings, Mr Patriciello, an MEP, is being prosecuted in Italy, his Member State of origin, for the offence of making false accusations against a police officer. The European Parliament, according to whose report Mr Patriciello had merely commented on facts in the public domain, acting for the general interest of his electorate, decided, on 5 May 2009, to defend his immunities and privileges. Although this opinion has no binding effect on national courts, the Tribunale di Isernia, deeming itself bound by the duty to cooperate in good faith with the European institutions, decided to refer a question to the Court because according to previous case-law, the scope of the immunity provided for by Article 8 must be decided on the basis of EU law alone.

The Court refused to answer the question in its initial wording, which would have meant applying Article 8 to the case at issue in the main proceedings, but it did give the referring court some guidance as to the meaning of the words “opinion expressed (...) in the performance of [one’s] duties” for the purpose of this provision. First, it ruled that Article 8 also covers statements made outside the precincts of the European Parliament. After reaffirming the importance of freedom of expression, a fundamental right guaranteed by Article 11 of the Charter of Fundamental Rights, it then proceeded to establish criteria relating to the content of the statements concerned: the provision “must be understood in a wide sense”, to include opinions amounting to subjective appraisal, but which must have a “direct and obvious” link with their author’s parliamentary duties.

The main reason put forward by the Court of Justice for such an interpretation of Article 8 seems to be the extent of the consequences of parliamentary immunity, which may definitely prevent national judicial authorities from exercising their jurisdictions, and thus deny the persons damaged by the statements any judicial remedy. In this respect, it is interesting to note that the fundamental right of access to justice, and indeed the right to an effective remedy, have been a growing concern in the Court’s case-law, and European Union law in general in recent years (see Article 47 of the Charter of Fundamental Rights).

The ruling confirms that the Parliament’s decision to defend an MEP’s immunity has no binding effect on national courts: the referring court has no particular obligation as regards the reasons given for its decision if it chooses not to follow that opinion. According to the Court, Mr Patriciello’s statements, which appear far removed from his parliamentary duties, seem to fall outside the scope of the immunity, thus allowing the action to continue. The ruling leaves it for the national court to determine whether the said criteria are met by the circumstances at issue, although it seems to leave little room for a different outcome.

Reproduction autorisée avec l’indication: Turmo Araceli, "The scope of MEPs' immunities", www.ceje.ch, actualité du 9 septembre 2011.