on the request for defence of the immunity and privileges of Luigi de Magistris

(2011/2076(IMM))

The European Parliament,

–   having regard to the request by Luigi de Magistris of 31 March 2011, announced in plenary on 6 April 2011, for the defence of his immunity in connection with proceedings pending before the Court of Naples, Italy,

–   having regard to the written submissions made by Luigi de Magistris in accordance with Rule 7(3) of its Rules of Procedure,

–   having regard to Article 8 of the Protocol (No 7) on the Privileges and Immunities of the European Union, annexed to the Treaty on the Functioning of the European Union, and to 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 and 6 September 2011(1),

–   having regard to Rules 6(3) and 7 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs (A7-0412/2011),

A. whereas a Member of the European Parliament, Luigi de Magistris, has requested the defence of his parliamentary immunity in connection with proceedings before an Italian court,

B.  whereas the request by Luigi De Magistris relates to a writ of summons filed against him before the Court of Naples on behalf of Bagnolifutura SpA, a company domiciled in Naples engaged in design and in soil remediation, in connection with press releases issued by him and published on his website,

C. whereas, according to the writ of summons, statements made in those press releases constitute libel, resulting in a claim for damages,

D. whereas the press releases were published on the website at a time when Luigi de Magistris was a Member of the European Parliament, following his election at the 2009 European Parliament elections,

E.  whereas in those press releases Luigi de Magistris published information relating to a follow-up written question to the European Commission, in which he asked for additional details concerning public procurement irregularities noted in May 2009 by the Commission, and whereas he also asked for more details about an alleged waste of public funds in the area of Naples where Bagnolifutura conducts its business,

F.  whereas, according to Article 8 of the Protocol on the Privileges and Immunities of the European Union, 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,

G. whereas, in accordance with Parliament’s established practice, the fact that the legal proceedings fall under civil or administrative law, or contain certain aspects falling under civil or administrative law, does not per se prevent the immunity afforded by that article from applying,

H. whereas the facts of the case, as presented in the writ of summons and in Luigi de Magistris’s written submissions to the Committee on Legal Affairs, indicate that the statements made do have a direct and obvious connection with Luigi de Magistris’s performance of his duties as a Member of the European Parliament,

I.   whereas Luigi de Magistris, in publishing the press releases in question, was therefore acting in the performance of his duties as a Member of the European Parliament,

1.  Decides to defend the immunity and privileges of Luigi de Magistris;

2.  Instructs its President to forward this decision and the report of its competent committee immediately to the competent authority of the Italian Republic and to Luigi de Magistris.

(1) Case 101/63 Wagner v Fohrmann and Krier [1964] ECR 195, Case 149/85 Wybot v Faure and Others [1986] ECR 2391, Case T-345/05 Mote v Parliament [2008] ECR II-2849, Joined Cases C-200/07 and C-201/07 Marra v De Gregorio and Clemente [2008] ECR I-7929, Case T-42/06 Gollnisch v Parliament (not yet published in the ECR) and Case C-163/10 Patriciello (not yet published in the ECR).

1.        Background

At the sitting of 6 April 2011 the President announced, under Rule 6(3) of the Rules of Procedure, that on 31 March 2011 he had received a request from Mr Luigi de Magistris concerning the defence of his parliamentary immunity with reference to Articles 8 and 9 of the Protocol on privileges and immunities of the European Union and to Article 68 of the Constitution of the Italian Republic as amended by Constitutional Law No 3 of 29 October 1993. The President referred the request to the Committee on Legal Affairs under Rule 6(3). Mr De Magistris waived his right to be heard by the Committee.

The background to the request for defence is as follows: Mr De Magistris was summoned before the Court of Naples by Bagnoliafutura SpA, a mixed company domiciled in Naples engaged in design and in soil remediation, in connection with press releases issued by him and published on his website.

In these press releases Luigi de Magistris published information relating to a follow-up written question to the European Commission, in which he asked for additional details concerning public procurement irregularities noted in May 2009 by the Commission. He also asked for more details about alleged waste of public funds in the area of Naples where Bagnoliafutura conducts its business.

Bagnoliafutura claims that in the press releases Luigi de Magistris accuses the company of delay and waste of public money, of passiveness and inefficiency, and argues that the company is involved in conduct best described as a mixture of politics and criminality. Luigi de Magistris abused freedom of speech, and failed to comply with the important requirement to tell the truth. The claimant argues that the allegations bring the company into serious difficulties in the market and in its business relationships with banks, government agencies and suppliers.

For his part, Luigi de Magistris submits that in the press releases he expressed his political opinion as a Member of the European Parliament and according to him it is absolutely normal and necessary to inform the public of the results of his work. The statements made therefore constitute an expression of the political activity of an MEP which should be protected by the Protocol on Privileges and Immunities.

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

Articles 8 and 9 of the Protocol (No 7) to the TFEU on the Privileges and Immunities of the European Union read as follows (emphasis added):

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 other Member States, immunity from any measure or 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.

The procedure in the European Parliament is governed by Articles 6 and 7 of the Rules of Procedure. The relevant provisions read as follows:

Rule 6 - Waiver of immunity

1.  In the exercise of its powers in respect of privileges and immunities, Parliament shall seek primarily to uphold its integrity as a democratic legislative assembly and to secure the independence of its Members in performance of their duties. (...)

3.  Any request addressed to the President by a Member or a former Member to defend privileges and immunities shall be announced in Parliament and referred to the committee responsible.

4.  As a matter of urgency, in circumstances where Members are arrested or have their freedom of movement curtailed in apparent breach of their privileges and immunities, the President, after having consulted the chair and rapporteur of the committee responsible, may take an initiative to assert the privileges and immunities of the Member concerned. The President shall notify the committee of that initiative and inform Parliament.

Rule 7 - Procedure on immunity

1.  The committee responsible shall consider without delay and in the order in which they have been submitted requests for the waiver of immunity or requests for the defence of immunity and privileges.

2.  The committee shall make a proposal for a decision which simply recommends the adoption or rejection of the request for the waiver of immunity or for the defence of immunity and privileges.

3.  The committee may ask the authority concerned to provide any information or explanation which the committee deems necessary for it to form an opinion on whether immunity should be waived or defended. The Member concerned shall be given an opportunity to be heard; he may bring any documents or other written evidence he deems relevant. He may be represented by another Member. (...)

6.  In cases concerning the defence of immunity or privileges, the committee shall state whether the circumstances constitute an administrative or other restriction imposed on the free movement of Members travelling to or from the place of meeting of Parliament or an opinion expressed or a vote cast in the performance of the mandate or fall within aspects of Article [9] of the Protocol on Privileges and Immunities which are not a matter of national law, and shall make a proposal to invite the authority concerned to draw the necessary conclusions.

7.  The committee may offer a reasoned opinion about the competence of the authority in question and about the admissibility of the request, but shall not, under any circumstances, 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. (...)

3.        Justification for the proposed decision

Article 8 of the Protocol on the Privileges and Immunities of the European Union was expressly invoked by Luigi De Magistris in his request.

The press releases were published at a time when Luigi de Magistris was a Member of the European Parliament, following his election during the 2009 European Parliament elections.

In accordance with Parliament’s established practice, the fact that the legal proceedings are of a civil or administrative law nature, or contain certain aspects falling under civil or administrative law, does not per se prevent the immunity afforded by that article from applying.

As the Court of Justice has held, the scope of the absolute immunity provided for in Article 8 ‘must be established on the basis of Community law alone’(1). However, the Court has also recently held 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’(2) (emphasis added).

Against this background, the Committee considers that the facts of the case, as manifested in the writ of summons and in Luigi de Magistris’s written submissions to the Committee, indicate that the statements made do have a direct, obvious connection with Luigi de Magistris’s performance of his duties as a Member of the European Parliament, in particular since the published information relates to a follow-up written question to the European Commission.

The Committee therefore considers that, in publishing the press releases in question, Luigi de Magistris was acting in the performance of his duties as Member of the European Parliament.

4.        Conclusion

On the basis of the above considerations and pursuant to Article 6(3) of the Rules of Procedure, after considering the reasons for and against defending the Member’s immunity, the Committee on Legal Affairs recommends that the European Parliament should defend the parliamentary immunity of Luigi De Magistris.

(1) Marra, cited above, at paragraph 26. (2) Patriciello, cited above, operative part.