The Court of Justice held in Joined Cases C-200/07 and C-201/07 Marra v. De Gregorio and Clemente that in principle Members of the European Parliament enjoy absolute immunity barring any judicial proceedings in the courts of member States. But there is quite a bit more in the judgment as we'll see.
What happened was that Alfonso Marra, when he was a Member of the European Parliament, distributed leaflets to which two men, De Gregorio and Clemente, objected because they considered they contained derogatory remarks about them. De Gregorio and Clemente sued Marra in damages before an Italian court and won. The case went on appeal to the Naples Appeal court which upheld the award of damages made at first instance. Those courts did not agree with Marra that the distribution of the leaflets took place in the performance of his parliamentary duties. Marra then appealed to the Italian Supreme Court, the Corte di cassazione, claiming that prior authorization to bring the suit was needed from the European Parliement according to Rule 6 of its Rules of Procedure and without such authorization, claiming immunity from suit on the basis of Article 9 of the Protocol on the Privileges and Immunities of the European Communities. That provides:
"Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties."
The problem was that Mr Marra had asked the European Parliament to rule on his immunity which it did so in a resolution that was never communicated to the Italian courts seised. Those courts thus were not aware that he had asserted his immunity.
The Court of Justice made clear that it was not asked by the Italian Supreme Court whether the leaflet distributed by Mr Marra constitutes an opinion expressed in the exercise of parliamentary duties within the meaning of Article 9 of the Protocol. It stated that it was asked to give guidance on where a Member of the European Parliament does not make a request to the Parliament for defence of his immunity, or where a decision from the Parliament on that immunity is not communicated to the national judicial authorities before which actions such as those in the main proceedings are brought, those authorities are required to request the Parliament to waive the immunity of the member in question, and to await the decision of that institution before ruling on whether such immunity exists.
The Court of Justice held first of all that the national courts have exclusive jurisdiction to determine whether the conditions for applying the immunity granted by Article 9 of the Protocol on Privileges and Immunity are met. If a national court has a doubt concerning the interpretation of that provision they may refer a question to the Court of Justice pursuant to Article 234 EC. National courts are not obliged to refer to the Parliament the decision on whether the conditions for recognising that immunity are met, before ruling on the opinions and votes of Members of the Parliament. It held that the Rules of Procedure are rules of internal organization and cannot grant powers to the Parliament which are not expressly acknowledged by a legislative measure, in this case by the Protocol. Consequently, even if the Parliament, pursuant to a request from the Member concerned, adopts, on the basis of those rules, a decision to defend immunity, that constitutes an opinion which does not have binding effect with regard to national judicial authorities.
But, the Court of Justice continued, there was a duty on the national courts and the European Parliament to coöperate pursuant to Article 10 EC. As a result, where an action has been brought against a Member of the European Parliament before a national court and that court is informed that a procedure for defence of the privileges and immunities of that Member, as provided for in Article 6(3) of the Rules of Procedure, has been initiated, that court must stay the judicial proceedings and request the Parliament to issue its opinion as soon as possible. Once the national court has established that the conditions for the absolute immunity, provided for in Article 9 of the Protocol are met, the court is bound to respect that immunity, as is the Parliament. It follows that such immunity cannot be waived by the Parliament and that, as a result, that court is bound to dismiss the action brought against the Member concerned.
There is an interesting little procedural twist in the case. The European Parliament wished to lodge written observations with the Court of Justice. Article 23 of the Statute of the Court of Justice affords the European Parliament the right to submit its observations on references for preliminary rulings concerning acts adopted ‘jointly’ by the European Parliament and the Council of the European Union. But, that provision does not explicitly afford the Parliament the right to submit observations in cases, such as those in the main proceedings, which concern the Protocol and its Rules of Procedure.
The Court of Justice overcomes that difficulty by interpreting Article 23 of the Statute broadly. It held that since Article 23 affords the Parliament the right to submit written observations in cases concerning the validity or interpretation of an act for which it is a co-legislator, such a right must, a fortiori, be afforded to it where a reference for a preliminary ruling concerns the interpretation of an act adopted by that institution of which it is the sole author, such as the Rules of Procedure.
How you think when the economic crisis will end? I wish to make statistics of independent opinions!
Posted by: ooopinionsss | December 02, 2008 at 09:07 PM