Procedure : 2012/2325(IMM)
Document stages in plenary
Document selected : A7-0236/2013

Texts tabled :

A7-0236/2013

Debates :

Votes :

PV 02/07/2013 - 9.5
CRE 02/07/2013 - 9.5

Texts adopted :

P7_TA(2013)0292

REPORT     
PDF 160kDOC 74k
25 June 2013
PE 513.122v02-00 A7-0236/2013

on the request for waiver of the immunity of Marine Le Pen

(2012/2325(IMM))

Committee on Legal Affairs

Rapporteur: Cecilia Wikström

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
 EXPLANATORY STATEMENT
 RESULT OF FINAL VOTE IN COMMITTEE

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for waiver of the immunity of Marine Le Pen

(2012/2325(IMM))

The European Parliament,

–   having regard to the request for waiver of the immunity of Marine Le Pen, forwarded on 26 November 2012 by the Minister of Justice of the Republic of France in connection with a request dated 7 November 2012 from the Chief Prosecutor at the Lyon Court of Appeal, and announced in plenary on 10 December 2012,

–   having heard Bruno Gollnisch MEP on behalf of Marine Le Pen in accordance with Rule 7(3) 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,

–   having regard to Rules 6(2) and 7 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs (A7-0236/2013),

A. whereas the Chief Prosecutor at the Lyon Court of Appeal has requested the waiver of the parliamentary immunity of a Member of the European Parliament, Marine Le Pen, in connection with a legal action concerning an alleged offence;

B.  whereas Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union states that Members shall enjoy, in the territory of their own State, the immunities accorded to members of the Parliament of that State;

C. whereas Article 26 of the Constitution of the French Republic provides that Members of the French Parliament shall not be subject to legal proceedings for opinions expressed or votes cast by them while carrying out their duties;

D. whereas Marine Le Pen is accused of incitement to hatred, discrimination or violence against a group of persons on grounds of their religious affiliation, an offence provided for in French law, namely in Article 24(8), Article 23(1), and Article 42 of the Act of 29 July 1881 and Article 93(3) of Act 82-652 of 29 July 1982, the penalties for which are laid down in Article 24, paragraphs 8, 10, 11 and 12, of the Act of 29 July 1881 and Article 131-26(2) and (3) of the Criminal Code;

E.  whereas the alleged action does not have a direct or obvious connection with Marine Le Pen’s performance of her duties as a Member of the European Parliament or constitute opinions expressed or votes cast in the performance of her duties as a Member of the European Parliament for the purposes of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union;

F.  whereas the accusation bears no relation to Marine Le Pen’s position as a Member of the European Parliament;

G. whereas there is no reason to suspect the existence of a fumus persecutionis;

1.  Decides to waive the immunity of Marine Le Pen;

2.  Instructs its President to forward this decision and the report of its competent committee immediately to the Minister of Justice of the French Republic and to Marine Le Pen.

(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), Case C-163/10 Patriciello (not yet published in the ECR) and Joined Cases T-346/11 and T-347/11 Gollnisch v Parliament [2010] ECR II-1135.


EXPLANATORY STATEMENT

1.  Background

At the sitting of 10 December 2012, the President announced, under Rule 6(2) of the Rules of Procedure, that he had received a request from the Office of the Chief Prosecutor at the Lyon Court of Appeal to waive the parliamentary immunity of Marine Le Pen. The President referred the request to the Committee on Legal Affairs under Rule 6(2).

Ms Le Pen is accused of incitement to hatred, discrimination or violence against a group of persons on grounds of their religious affiliation, i.e. an offence provided for in Article 24, paragraph 8, Article 23, paragraph 1 and Article 42 of the Act of 29 July 1881 and Article 93-3 of Act 82-652 of 29 July 1982, the penalties for which are laid down in Article 24, paragraphs 8, 10, 11 and 12 of the Act of 29 July 1881 and Article 131-26(2) and (3) of the Criminal Code.

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

Articles 8 and 9 of Protocol No 7 on the immunities and privileges 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.

Article 26(1) of the French Constitution provides as follows:

No Member of Parliament shall be subject to legal proceedings, investigations, arrest, detention or judgment for opinions expressed or votes cast by him while carrying out his duties.

No Member of Parliament may be arrested or subject to any other measure depriving the Member of freedom or restricting that freedom for criminal or minor offences without the authorisation of the Assembly to which he belongs, except in the case of a crime or flagrante delicto or of final sentence.

Detention, measures depriving the Member of his freedom or restricting that freedom or the prosecution of the Member of Parliament shall be suspended during the session if the Assembly of which he is a Member so demands.

The Assembly concerned shall meet automatically for additional sittings to enable, where appropriate, the provisions of the preceding paragraph to be applied.

Rules 6 and 7 of the Rules of Procedure of the European Parliament 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 the performance of their duties.

2.  Any request addressed to the President by a competent authority of a Member State that the immunity of a Member be waived shall be announced in Parliament and referred to the committee responsible.

[...]

Rule 7 – Procedures 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 reasoned decision which 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 in order 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, may present any documents or other written evidence deemed by that Member to be relevant and may be represented by another Member.

[...]

7.  The committee may offer a reasoned opinion as to the competence of the authority in question and 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.

[...]

11. The committee shall treat these matters and handle any documents received with the utmost confidentiality.

3.  Justification for the proposed decision

The Office of the Chief Prosecutor at the Lyon Court of Appeal has requested the waiver of the parliamentary immunity of a Member of the European Parliament, Marine Le Pen, with regard to possible legal action concerning an alleged offence of incitement to hatred, discrimination or violence against a group of persons on grounds of their religious affiliation. The case is based on the following facts. During a public meeting of supporters of Front National held on 10 December 2010 in Lyon, Marine Le Pen made a speech that was broadcast on the radio and reported in the press. The meeting was held and the speech was made in the course of an electoral campaign for the office of President of Front National, a post to which Ms Le Pen was elected and which she took up on 16 January 2011. The speech included the following statements, which constitute the ground of the accusation of incitement to hatred, discrimination or violence against a group of persons on grounds of their religious affiliation: “Fifteen years ago, we started seeing veils on our streets; more and more veils. Then we started seeing burqas: more and more burqas. After that came prayers in the streets (...) and now there are 10 to 15 locations in which people gather, taking over our public space (...). Im sorry, but some people are very fond of talking about the Second World War and about the occupation, so lets talk about occupation, because that is what is happening here (...). There are no tanks, no soldiers, but it is still an occupation, and it weighs on people.

The current judicial investigation was opened by the Public Prosecutor in Lyon on 13 January 2012 in response to a complaint with suit for damages in criminal proceedings dated 1 December 2011 brought by the Association de défense des droits de lhomme. The complaint was filed in response to the Lyon Public Prosecutor’s decision to discontinue the preliminary investigation he had carried out in response to ordinary complaints submitted to him in connection with the same matter.

The investigating judge summoned Marine Le Pen to appear on 12 October 2012. Ms Le Pen’s lawyer stated that she would not appear before the judge, invoking her parliamentary immunity. The same day, the investigating judge forwarded the case file to the prosecution service asking for a request to be made for Ms Le Pen’s immunity to be waived, so that she might be interviewed, with a warrant being issued for this purpose if necessary.

According to Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union, Members shall enjoy, in the territory of their own State, the immunities accorded to members of the Parliament of that State. Article 26 of the French Constitution provides that a member of parliament cannot be subject to legal proceedings for opinions expressed or votes cast by him while carrying out his duties. A decision of this Parliament is therefore required if the prosecution of Ms Le Pen is to go ahead.

The scope of immunity accorded to members of the French Parliament corresponds in fact to the scope of immunity accorded to Members under Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union and covers opinions expressed by him while carrying out his duties. As the Court of Justice has held: “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). The Court has also recently recalled its case-law in the Gollnisch case(3) according to which the opinion (in the broadest sense) of an MEP is covered by immunity – established on the basis of EU law – only where it was expressed ‘in the performance of [his duties]’, thus implying the requirement of a link between the opinion expressed and the performance of the parliamentary duties. That link must be direct and obvious.

On the basis of the facts of the present case there are no grounds for establishing the required direct and obvious link. The case does not fall within the scope of Marine Le Pen’s political activities as Member of the European Parliament as it concerns instead activities of a purely national or regional nature given that the speech was made to electors in Lyon as part of her campaign to be elected president of Front National and was thus distinct from her activity of Member of the European Parliament. The alleged action does not therefore have a direct, obvious connection with Marine Le Pen’s performance of her duties as a Member of the European Parliament nor does it constitute an opinion expressed in the performance of her duties as a Member of the European Parliament for the purposes of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union. The accusation has no connection with Ms Le Pen’s office of Member of the European Parliament.

Marine Le Pen has been given an opportunity to be heard in accordance with Rule 7(3) of the Parliament’s Rules of Procedure and, in accordance with the same rule, a representative of Ms Le Pen, Bruno Gollnisch, spoke on her behalf, and based on the explanations given there is no reason to suspect the existence of a fumus persecutionis.

4.  Conclusion

On the basis of the above considerations, after considering the reasons for and against waiving the Member’s immunity, it is recommended that the European Parliament should waive the parliamentary immunity of Marine Le Pen.

(1)

Article amended by Constitutional Law No 95-880 of 4 August 1995.    

(2)

Patriciello, cited above, in the operative part and at paragraph 41.

(3)

Joined Cases T-346/11 and T-347/11 Bruno Gollnisch v Parliament, cited above.


RESULT OF FINAL VOTE IN COMMITTEE

Date adopted

19.6.2013

 

 

 

Result of final vote

+:

–:

0:

11

1

4

Members present for the final vote

Raffaele Baldassarre, Luigi Berlinguer, Françoise Castex, Marielle Gallo, Giuseppe Gargani, Sajjad Karim, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Jiří Maštálka, Bernhard Rapkay, Francesco Enrico Speroni, Dimitar Stoyanov, Rebecca Taylor, Cecilia Wikström, Tadeusz Zwiefka

Substitute(s) present for the final vote

Eva Lichtenberger

Last updated: 26 June 2013Legal notice