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MEPs not immune unless comments directly relevant to duties, says ECJ

Members of the European Parliament (MEPs) may not be granted legal immunity on opinions they express unless there is an obvious, direct link between the comments and the performance of their parliamentary duties, the European Court of Justice (ECJ) has ruled.08 Sep 2011

Under the Protocol on the Privileges and Immunities of the European Union (EU Protocol) MEPs cannot 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".

Under European Parliament rules an MEP can ask a Parliament committee to determine whether opinions made qualify for immunity, although the committee may also waive these rights. However, in doing so it must not "pronounce on the guilt or otherwise of the Member nor on whether or not the opinions or acts attributed to him or her justify prosecution, even if, in considering the request, it acquires detailed knowledge of the facts of the case," the rules state, according to the ECJ ruling.

An Italian court asked the ECJ to rule whether Aldo Patriciello MEP should be granted immunity over comments he allegedly made and is being sued for under Italian law. Patriciello is charged with wrongfully accusing a police officer of illegal conduct. Allegedly Patriciello claimed the officer had falsified time details on parking tickets given to drivers parked near a "neurological institute" and later repeated the claims to police offices investigating the matter, the ECJ ruling said.

The European Parliament had said Patriciello was entitled to immunity, but the ECJ said the Parliament's opinion was not binding on the Italian court. Under the EU Protocol and the Treaty on European Union member states of the EU have a duty to act in good faith with EU institutions.

The ECJ said that it was up to the Italian court to rule on the specific case, but to help it do so said that MEP's comments can only be granted immunity from legal proceedings if there is an obvious, direct link to their duties as parliamentarians.

"[The EU Protocol] must be interpreted to the effect that a statement made by a Member of the European Parliament beyond the precincts of that institution and giving rise to prosecution in his Member State of origin for the offence of making false accusations does not constitute an opinion expressed in the performance of his parliamentary duties covered by the immunity afforded by that provision unless that statement amounts to a subjective appraisal having a direct, obvious connection with the performance of those duties," the ECJ said in its ruling.

"It is for the court making the reference to determine whether those conditions have been satisfied in the case in the main proceedings," it said.

In determining its conclusion the ECJ had said that the EU Protocol's reference to 'opinion' should be interpreted broadly to "include remarks and statements that, by their content, correspond to assertions amounting to subjective appraisal".

The ECJ said that because the EU Protocol expressly stated that an opinion can only be granted immunity if it is made expressly 'in the performance of their duties' it meant that authorities evaluating whether to grant immunity on the remarks must be able to make a "link between the opinion expressed and the parliamentary duties" in order to consider granting the immunity.

The immunity rights set out in the EU Protocol is "capable of definitively preventing national courts and judicial authorities" from ruling on prosecutions and criminal penalties in their own country, and can prevent individuals from being subject to "any judicial remedy whatsoever," the ECJ said. Because of that the ECJ said that "the connection between the opinion expressed and parliamentary duties must be direct and obvious".

The ECJ said that the Italian court must evaluate Patriciello's comments in the context of the conditions it has laid out on when immunity can be granted under the EU Protocol, and said neither it nor the European Parliament could waive the MEP's rights if the comments fulfilled the criteria for protection. However, it said Patriciello's remarks may not fulfil the immunity requirements.

"Having regard to the descriptions of the circumstances and the content of the allegations made ... they appear to be rather far removed from the duties of a Member of the European Parliament and hardly capable, therefore, of presenting a direct link with a general interest of concern to citizens," the ECJ said.

"Thus, even if such a link could be demonstrated, it would not be obvious," it said.