Procedure : 2017/2221(IMM)
Document stages in plenary
Document selected : A8-0011/2018

Texts tabled :

A8-0011/2018

Debates :

Votes :

PV 06/02/2018 - 5.1
CRE 06/02/2018 - 5.1

Texts adopted :

P8_TA(2018)0020

REPORT     
PDF 372kWORD 57k
30.1.2018
PE 615.494v02-00 A8-0011/2018

on the request for waiver of the immunity of Steeve Briois

(2017/2221(IMM))

Committee on Legal Affairs

Rapporteur: Evelyn Regner

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
 EXPLANATORY STATEMENT
 INFORMATION ON ADOPTION IN COMMITTEE RESPONSIBLE

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for waiver of the immunity of Steeve Briois

(2017/2221(IMM))

The European Parliament,

–  having regard to the request for waiver of the immunity of Steeve Briois, forwarded by the French Minister of Justice on 25 September 2017 at the request of the Prosecutor General of the Court of Appeal of Douai in relation to a complaint filed against Mr Briois by a civil party for the offence of public insult directed at an individual (‘injures publiques envers un particulier’), and announced in plenary on 2 October 2017,

–  having regard to the additional information on the case provided by the Public Prosecutor of Douai Regional Court in a letter dated 12 December 2017,

–  having heard Steeve Briois in accordance with Rule 9(6) of its Rules of Procedure,

–  having regard to Articles 8 and 9 of Protocol No 7 on the Privileges and Immunities of the European Union, and Article 6(2) of the Act of 20 September 1976 concerning the election of the members of the European Parliament by direct universal suffrage,

–  having regard to the judgments of the Court of Justice of the European Union of 12 May 1964, 10 July 1986, 15 and 21 October 2008, 19 March 2010, 6 September 2011 and 17 January 2013(1),

–  having regard to Article 26 of the Constitution of the French Republic, as amended by Constitutional Law No 95-880 of 4 August 1995,

–  having regard to Rule 5(2), Rule 6(1) and Rule 9 of its Rules of Procedure,

–  having regard to the report of the Committee on Legal Affairs (A8-0011/2018),

A.  whereas the Prosecutor General of the Court of Appeal of Douai has requested the waiver of the parliamentary immunity of a Member of the European Parliament, Steeve Briois, in connection with legal proceedings pending before the Douai Regional Court; whereas this request was forwarded to Parliament by the French Minister of Justice;

B.  whereas the request for the waiver of Mr Briois’s immunity is related to legal proceedings instituted in relation to the offence of public insult directed at an individual (Articles 29(2), 33(2) and 23 of the Act of 29 July 1881) in connection with allegedly defamatory comments that a number of internet users posted in response to a text that Mr Briois had published on 23 December 2015 on his Facebook page and that were not promptly removed by Mr Briois; whereas, at the request of the Committee on Legal Affairs, the Public Prosecutor of Douai Regional Court stated that the aforementioned comments were certainly still online on 21 November 2017;

C.  whereas pursuant to Article 8 of Protocol No 7, 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;

D.  whereas pursuant to Article 9 of Protocol No 7, during the sessions of the European Parliament, its Members shall enjoy, in the territory of their own State, the immunities accorded to members of their parliament;

E.  whereas, among other things, Article 26 of the Constitution of the French Republic provides that no member of parliament may be arrested for a crime or be the subject of any other custodial or semi-custodial measure without the authorisation of the parliament;

F.  whereas Articles 8 and 9 of Protocol No 7 on the Privileges and Immunities of the European Union are mutually exclusive(2);

G.  whereas the allegations against Steeve Briois, and the subsequent request for waiver of his immunity, are not related to an opinion expressed or vote cast by him in the performance of his duties as a Member of the European Parliament, but to the fact that he allegedly failed to remove from his official Facebook page a number of comments posted by third parties and perceived by the person targeted as insulting;

H.  whereas, as a consequence, the immunity accorded by Article 8 of Protocol No 7 is not applicable and the case in point falls entirely within Article 9 of the same Protocol;

I.  whereas Parliament has broad discretion as to the direction it wishes to give to a decision following a request for defence of immunity relating to Article 9 of the Protocol(3);

J.  whereas there is no apparent evidence of fumus persecutionis, that is, a sufficiently serious and precise suspicion that the case has been brought with the intention of causing political damage to the Member concerned;

1.  Decides to waive the immunity of Steeve Briois;

2.  Instructs its President to forward this decision and the report of its committee responsible immediately to the Minister of Justice of the French Republic and to Steeve Briois.

(1)

Judgment of the Court of Justice of 12 May 1964, Wagner v Fohrmann and Krier, 101/63, ECLI:EU:C:1964:28; judgment of the Court of Justice of 10 July 1986, Wybot v Faure and others, 149/85, ECLI:EU:C:1986:310; judgment of the General Court of 15 October 2008, Mote v Parliament, T-345/05, ECLI:EU:T:2008:440; judgment of the Court of Justice of 21 October 2008, Marra v De Gregorio and Clemente, C‑200/07 and C-201/07, ECLI:EU:C:2008:579; judgment of the General Court of 19 March 2010, Gollnisch v Parliament, T-42/06, ECLI:EU:T:2010:102; judgment of the Court of Justice of 6 September 2011, Patriciello, C‑163/10, ECLI: EU:C:2011:543; judgment of the General Court of 17 January 2013, Gollnisch v Parliament, T-346/11 and T-347/11, ECLI:EU:T:2013:23.

(2)

Joined Cases C-200/07 and C-201/07, Marra, cited above, paragraph 45.

(3)

Joined Cases T-346/11 and T-347/11, Gollnisch, cited above, paragraph 101.


EXPLANATORY STATEMENT

I. Background

At the sitting of 2 October 2017, the President announced that on 25 September 2017 he had received a letter from the French Minister of Justice requesting the waiver of immunity of Steeve Briois.

The President referred the request to the Committee on Legal Affairs under Rule 9(1).

On 18 March 2016, an opposition member of the Municipal Council of Hénin-Beaumont, lodged a complaint with the Senior Examining Magistrate of Douai, seeking to join a civil action to proceedings against Steeve Briois, mayor of that Municipality, for the offence of public insult directed at an individual, as punishable under Articles 29(2), 33(2) and 23 of the Act of 29 July 1881.

In support of his complaint, the municipal councillor explained that on 2 December 2015 he had applied to Lille Administrative Court to have set aside, as being ultra vires, a decision by the Municipality of Hénin-Beaumont to set up a Christmas crib scene in the foyer of the town hall. At the same time, he had applied, on the same grounds, for an interim order with suspensory effect. His application was rejected.

On 23 December 2015, Mr Briois posted on his personal, publicly accessible Facebook account a text stating, among other things, that the opposition bid to ban the Christmas crib had been dismissed by the Court.

In response to this text, a number of comments, which the municipal councillor targeted deemed insulting to him, were posted on Steeve Briois’ Facebook page. As a consequence, the municipal councillor lodged a complaint with the Senior Examining Magistrate of Douai concerning, in particular, Mr Briois’ alleged failure to remove those comments from his Facebook page.

The requesting authorities consider that the waiver of Mr Briois’ immunity is necessary so that he can be required, under coercion if need be, to appear before the examining magistrate for initial interrogation, following which the examining magistrate may either grant him the status of assisted witness or proceed to his indictment. In the latter event, Mr Briois’ case would then be referred to the criminal court.

In response to a request for further information on the case made by the Committee on Legal Affairs in accordance with Rule 9(5) of the Rules of Procedure, by letter of 12 December 2017 the Public Prosecutor at Douai Regional Court informed that the allegedly offensive comments were certainly still online when the competent authorities last checked them on 21 November 2017.

Mr Briois was heard by the Committee on Legal Affairs on 7 December 2017 in accordance with Rule 9(6).

II.  Law and procedure on the immunity of Members of the European Parliament

Articles 8 and 9 of Protocol No 7 on the Privileges and Immunities of the European Union read as follows:

Article 8

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.

Article 9

During the sessions of the European Parliament, its Members shall enjoy:

(a) in the territory of their own State, the immunities accorded to members of their parliament;

(b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.

Rules 5, 6 and 9 of the Rules of Procedure of the European Parliament read as follows:

Rule 5: Privileges and immunities

1. Members enjoy the privileges and immunities laid down in the Protocol No 7 on the Privileges and Immunities of the European Union.

2. In exercising its powers on privileges and immunities, Parliament shall act to uphold its integrity as a democratic legislative assembly and to ensure the independence of its Members in the performance of their duties. Parliamentary immunity is not a Member’s personal privilege but a guarantee of the independence of Parliament as a whole, and of its Members. (...)

Rule 6: Waiver of immunity

1. Any request for waiver of immunity shall be evaluated in accordance with Articles 7, 8 and 9 of the Protocol No 7 on the Privileges and Immunities of the European Union and with the principles referred to in Rule 5(2).

2. Where Members are required to appear as witnesses or expert witnesses, there is no need to request a waiver of immunity, provided:

- that they will not be obliged to appear on a date or at a time which prevents them from performing their parliamentary duties, or makes it difficult for them to perform those duties, or that they will be able to provide a statement in writing or in any other form which does not make it difficult for them to perform their parliamentary duties; and

- that they are not obliged to testify concerning information obtained confidentially in the performance of their parliamentary duties which they do not see fit to disclose.

Rule 9: Procedures on immunity

1. Any request addressed to the President by a competent authority of a Member State for the immunity of a Member to be waived, or by a Member or a former Member for privileges and immunities to be defended, shall be announced in Parliament and referred to the committee responsible.

2. With the agreement of the Member or the former Member concerned, the request may be made by another Member, who shall be permitted to represent the Member or former Member concerned at all stages of the procedure.

The Member representing the Member or the former Member concerned shall not be involved in the decisions taken by the committee.

3. The committee shall consider, without delay but having regard to their relative complexity, requests for the waiver of immunity or requests for the defence of privileges and immunities.

4. The committee shall make a proposal for a reasoned decision which recommends the adoption or rejection of the request for the waiver of immunity or for the defence of privileges and immunities. Amendments shall not be admissible. If a proposal is rejected, the contrary decision shall be deemed to have been adopted.

5. The committee may ask the authority concerned to provide any information or explanation which the committee deems necessary in order for it to form an opinion on whether immunity should be waived or defended.

6. The Member concerned shall be given an opportunity to be heard and may present any documents or other written evidence deemed by that Member to be relevant.

The Member concerned shall not be present during debates on the request for waiver or defence of his or her immunity, except for the hearing itself.

The Chair of the committee shall invite the Member to be heard, indicating a date and time. The Member concerned may renounce the right to be heard.

If the Member concerned fails to attend the hearing pursuant to that invitation, he or she shall be deemed to have renounced the right to be heard, unless he or she has asked to be excused from being heard on the date and at the time proposed, and has given his or her reasons. The Chair of the committee shall rule on whether such a request to be excused is to be accepted in view of the reasons given. The Member concerned shall not be permitted to appeal that ruling.

If the Chair of the committee grants the request to be excused, he or she shall invite the Member concerned to be heard at a new date and time. If the Member concerned fails to comply with the second invitation to be heard, the procedure shall continue without the Member being heard. No further requests to be excused, or to be heard, may then be accepted.

7. Where the request seeks the waiver or the defence of immunity on several counts, each of these may be the subject of a separate decision. The committee’s report may, exceptionally, propose that the waiver or the defence of immunity should apply solely to prosecution proceedings and that, until a final sentence is passed, the Member should be immune from any form of detention or remand or any other measure which prevents that Member from performing the duties proper to the mandate. (...)

In addition, Article 26 of the French Constitution, as made applicable by Article 9 of the Protocol, reads as a follows:

Article 26

No Member of Parliament shall be arrested for a serious crime or other major offence, nor shall he be subjected to any other custodial or semi-custodial measure, without the authorisation of the Bureau of the House of which he is a member. Such authorisation shall not be required in the case of a serious crime or other major offence committed flagrante delicto or when a conviction has become final.

The detention, subjection to custodial or semi-custodial measures or prosecution of a Member of Parliament shall be suspended for the duration of the session if the House of which he is a member so requires.

III.  Justification for the proposed decision

On the basis of the aforementioned facts, this case qualifies for the application of Article 9 of the Protocol No 7 on the Privileges and Immunities of the European Union.

Indeed, the allegations against Steeve Briois, and the subsequent request for waiver of his immunity, are not related to an opinion expressed or vote cast by him in the performance of his duties as Member of the European Parliament, but to the fact that he allegedly failed to remove from his official Facebook page a number of comments posted by third parties and perceived by the person targeted as insulting.

Article 8 of the Protocol is crystal-clear in establishing only Members’, and not third parties’, freedom of speech (‘Members [...] shall not be subject to any form of [...] legal proceedings in respect of opinions expressed [...] by them’), nor can it otherwise be inferred from that provision that Members’ duties include vouching for statements made by third parties(1).

If absolute immunity under article Article 8 of the Protocol is not applicable, it follows that the case in point falls entirely within Article 9 of the same Protocol. The two articles are in fact mutually exclusive(2).

Pursuant to Article 9 of the Protocol, Members enjoy, in the territory of their own State, the immunities accorded to members of the Parliament of that Member State. This provision is to be read in conjunction with Article 26 of the French Constitution. As a result, French Members of the European Parliament may not be arrested for a serious crime or other major offence, nor may they be subjected to any other custodial or semi-custodial measure, without the authorisation of the European Parliament.

As the Court has held, the objective of Article 9 of the Protocol is to ‘safeguard the independence of Members by ensuring that pressure, in the form of threats of arrest or legal proceedings, is not brought to bear on them during the sessions of the Parliament’(3). The Court has also made it clear that Parliament has broad discretion as to the direction it wishes to give to a decision following a request for defence of immunity relating to Article 9 of the Protocol(4).

In order to decide whether or not to waive a Member’s parliamentary immunity, the European Parliament applies its own consistent principles. One of these principles is that immunity is usually waived when the offence falls within Article 9 of the Protocol No 7, provided that there is no fumus persecutionis, i.e. a sufficiently serious and precise suspicion that the matter is being raised with the intention of causing political damage to the Member concerned.

The Committee on Legal Affairs did not find any apparent evidence of fumus persecutionis in the case in point.

IV.  Conclusions

On the above basis and in accordance with Rule 9 of the Rules of Procedure, after having considered the arguments for and against, the Committee on Legal Affairs recommends that Parliament should waive the immunity of Steeve Briois.

(1)

See the explanatory statement in doc. A6-0421/2008 on the request for waiver of the immunity of Frank Vanhecke, where the Committee on Legal Affairs had to deal with a similar case: ‘It is considered in the first place that this case is not covered by Article 9 [now 8] of the Protocol in that an MEP’s duties do not include acting as responsible editor for a national party newspaper. Consequently, the case falls to be considered under Article 10 [now 9]’.

(2)

Joined Cases C-200/07 and C-201/07 Marra, cited above, paragraph 45.

(3)

Judgment in Mote, cited above, paragraph 50, citing the order of the Court in Rothley and Others v Parliament, T-17/00 R, ECLI:EU:T:2000:119, paragraph 90.

(4)

Judgment in Gollnisch, cited above, paragraph 101.


INFORMATION ON ADOPTION IN COMMITTEE RESPONSIBLE

Date adopted

24.1.2018

 

 

 

Result of final vote

+:

–:

0:

12

2

0

Members present for the final vote

Marie-Christine Boutonnet, Jean-Marie Cavada, Kostas Chrysogonos, Lidia Joanna Geringer de Oedenberg, Mary Honeyball, Sylvia-Yvonne Kaufmann, Gilles Lebreton, Emil Radev, Julia Reda, Pavel Svoboda, Tadeusz Zwiefka

Substitutes present for the final vote

Luis de Grandes Pascual, Jens Rohde, Tiemo Wölken

Last updated: 31 January 2018Legal notice