Procedure : 2013/2278(IMM)
Document stages in plenary
Document selected : A7-0099/2014

Texts tabled :

A7-0099/2014

Debates :

Votes :

PV 25/02/2014 - 5.1

Texts adopted :

P7_TA(2014)0110

REPORT     
PDF 170kWORD 75k
12 February 2014
PE 528.097v02-00 A7-0099/2014

on the request for waiver of the immunity of Tadeusz Cymański

(2013/2278(IMM))

Committee on Legal Affairs

Rapporteur: Dimitar Stoyanov

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 Tadeusz Cymański

(2013/2278(IMM))

The European Parliament,

–       having regard to the request for waiver of the immunity of Tadeusz Cymański, put forward by the Public Prosecutor of the Republic of Poland on 23 October 2013, and announced in plenary on 18 November 2013,

–       having heard Tadeusz Cymański in accordance with Rule 7(5) 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 and 6 September 2011(1),

–       having regard to Article 105 of the Constitution of the Republic of Poland,

–       having regard to Rules 6(1) and 7 of its Rules of Procedure,

–       having regard to the report of the Committee on Legal Affairs (A7-0099/2014),

A.     whereas the Public Prosecutor of the Republic of Poland has requested the waiver of the parliamentary immunity of Tadeusz Cymański in connection with a request for authorisation to bring criminal proceedings against a Member of the European Parliament made by the General Inspectorate of Road Traffic with regard to the offence set out in Article 96(3) of the Polish Code of Minor Offences;

B.     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;

C.     whereas, according to Article 9 of the Protocol on the Privileges and Immunities of the European Union, Members of the European Parliament shall enjoy, in the territory of their own State, the immunities accorded to members of their Parliaments;

D.     whereas, under Article 105 of the Constitution of the Republic of Poland, ‘a Deputy shall not be held accountable for his activity performed within the scope of a Deputy’s mandate during the term thereof nor after its completion. Regarding such activities, a Deputy can only be held accountable before the Sejm and, in a case where he has infringed the rights of third parties, he may only be proceeded against before a court with the consent of the Sejm’;

E.     whereas whether immunity is or is not to be waived in a given case is for Parliament alone to decide; whereas Parliament may reasonably take account of the Member’s position in reaching its decision on whether or not to waive his/her immunity(2);

F.     whereas the alleged offence does not have a direct or obvious connection with Tadeusz Cymański’s performance of his duties as a Member of the European Parliament, nor does it constitute an opinion expressed or a vote cast in the performance of his 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;

G.     whereas the criminal proceedings to be brought against Tadeusz Cymański are, therefore, not connected in any way with his position as a Member of the European Parliament;

H.     whereas in this case Parliament has found no evidence of fumus persecutionis, that is to say, a sufficiently serious and precise suspicion that the case has been brought with the intention of causing political damage to the Member concerned;

I.      whereas the request is brought as a result of a written declaration made by Tadeusz Cymański whereby he refused to comply with the obligation to identify the person to whom he had entrusted the vehicle referred to in the report by the General Inspectorate of Road Traffic and agreed to pay a fine of PLN 500 for the offence set out in Article 96(3) in the Polish Code of Minor Offences;

1.      Decides to waive the immunity of Tadeusz Cymański;

2.      Instructs its President to forward this decision and the report of its competent committee immediately to the competent authority of the Republic of Poland and to Tadeusz Cymański.

(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 [2010] ECR II-01135 and Case C-163/10 Patriciello [2011] ECR I-07565.

(2)

Case T-345/05 Mote v Parliament, cited above, at paragraph 28.


EXPLANATORY STATEMENT

1. Background

At 13:08 on 7 June 2013 in the village of Szyldak (Poland), a car owned by Tadeusz Cymański was recorded by a traffic enforcement camera travelling at 86 km/h in a zone with a 50 km/h speed limit. A summons dated 3 July 2013 was sent in respect of this offence to the owner of the car. In response to this summons, Mr Cymański sent a declaration in a pre-printed form to the General Inspectorate of Road Traffic in which he agreed to accept a fine for failing to reveal – contrary to the obligation incumbent upon him – the identity of the person to whom he had entrusted the aforementioned vehicle.

Mr Cymański’s declaration was signed by him and dated 7 August 2013. It read as follows:

I declare that the vehicle involved in the violation described in the report was not being used at the moment of the violation against my will and without my knowledge by an unknown person whom I could not prevent (...). I also declare that I refuse to identify to whom I entrusted the vehicle for driving or for use at the time indicated in the report, in spite of the fact that I am obliged to do so as the owner/person in possession of the vehicle.

In view of the above, and aware of my right to refuse a criminal fine, I agree to accept a fine of PLN 500 for the offence set out in Article 96(3) in the Code of Minor Offences (...). At the same time, I agree to pay the fine within the indicated deadline.

On the basis of the above, on 3 October 2013 the General Inspectorate of Road Traffic, through the intermediation of the Public Prosecutor of the Polish Republic, requested that authorisation to bring criminal proceedings against Mr Tadeusz Cymański be granted with regard to the offence set out in Article 96(3) of the Polish Code of Minor Offences.

At the sitting of 18 November 2013, the President announced under Rule 7(1) of the Rules of Procedures that he had received a request dated 23 October 2013 from the office of the Public Prosecutor of the Polish Republic concerning the waiver of the parliamentary immunity of Tadeusz Cymański in connection with the above offence.

The President referred this request to the Committee on Legal Affairs under Rule 7(1). Mr Cymański was heard by the Committee on 20 January 2014 in accordance with Rule 7(5).

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

Articles 8 and 9 of the 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 other Member States, immunity from any measures 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.

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 power in respect of privileges and immunities, Parliament acts to uphold its integrity as a democratic legislative assembly and to secure the independence of its Members in performance of their duties. Any request for waiver of immunity shall be evaluated in accordance with Articles 7, 8 and 9 of the Protocol on the Privileges and Immunities of the European Union and with the principles referred to in this Rule. (...)

Rule 7 - Procedures on immunity

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

2. 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.

3. 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.

4. 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.

5. 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.

The Member 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 may renounce the right to be heard.

If the Member 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, giving 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, and no appeals shall be permitted on this point.

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

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. (...)

Article 105(1) of the Constitution of the Republic of Poland reads as follows:

A Deputy shall not be held accountable for his activity performed within the scope of a Deputys mandate during the term thereof nor after its completion. Regarding such activities, a Deputy can only be held accountable before the Sejm and, in a case where he has infringed the rights of third parties, he may only be proceeded against before a court with the consent of the Sejm. (...)

Article 96 (3) of the Polish Code of Minor Offences reads as follows:

3. The same penalty [i.e. a fine] shall be imposed on anyone who, contrary to the obligation incumbent upon him, fails to reveal, when called upon to do so by the competent authority, the identity of the person to whom he has entrusted a vehicle for driving or for other use for a given time.

3. Justification for the proposed decision

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

Pursuant to that provision, Members enjoy, in the territory of their own State, the immunities accorded to members of the Parliament of that State. In turn, Article 105(1) of the Polish Constitution stipulates that, with regard to the activity performed within the scope of his mandate, a Member of the Polish Sejm can only be held accountable before the latter and, in a case where he has infringed the rights of third parties, he may only be proceeded against before a court with the consent of the Polish Sejm. A decision of the European Parliament is therefore required if the prosecution of Mr Cymański is to go ahead.

In order to decide whether or not to waive a Member’s parliamentary immunity, Parliament applies its own consistent principles.

First and foremost, it is worth recalling that the request for waiver of the immunity is brought as a result of a written declaration – signed by Mr Cymański – whereby he refused to comply with the obligation of identifying the person to whom he had entrusted the vehicle indicated in the report by the General Inspectorate of Road Traffic and agreed to pay a fine of PLN 500 for the offence set out in Article 96(3) in the Polish Code of Minor Offences.

Second, since the present case appears to be in connection with a minor road offence and the payment of a relatively low fine, the Committee has found no evidence of fumus persecutionis, i.e. a sufficiently serious and precise suspicion that the matter will be brought before a court with the intention of causing political damage to the Member concerned. As a consequence, the Committee is of the opinion that the criminal proceedings to be brought against Mr Cymański have no connection with his current office of Member of the European Parliament.

Finally, the decision not to waive Mr Cymański’s immunity in such a context would prevent the national competent authorities from levying a fine which the alleged offender himself accepted to pay.

4. Conclusion

On the basis of the above considerations and pursuant to Rule 7(3) of the Rules of Procedure, the Committee on Legal Affairs recommends that the European Parliament should waive the parliamentary immunity of Mr Tadeusz Cymański.


RESULT OF FINAL VOTE IN COMMITTEE

Date adopted

10.2.2014

 

 

 

Result of final vote

+:

–:

0:

8

0

0

Members present for the final vote

Françoise Castex, Giuseppe Gargani, Klaus-Heiner Lehne, Alajos Mészáros, Evelyn Regner, Dimitar Stoyanov, Cecilia Wikström

Substitute(s) present for the final vote

Eva Lichtenberger

Last updated: 14 February 2014Legal notice