– având în vedere cererea lui Renato Bruneta pentru apărarea propriei imunităţi în cauza civilă deschisă împotriva sa la Tribunalul civil Milano, cerere datată 18 ianuarie 2007 şi comunicată în şedinţă plenară la 31 ianuarie 2007,
– în urma audierii lui Renato Bruneta, în conformitate cu articolul 7 alineatul (3) din Regulamentul de procedură,
– având în vedere articolele 9 şi 10 din Protocolul privind privilegiile şi imunităţile Comunităţilor Europene din 8 aprilie 1965, precum şi articolul 6 alineatul (2) din Actul din 20 septembrie 1976 privind alegerea membrilor Parlamentului European prin vot universal direct,
– având în vedere hotărârile Curţii de Justiţie a Comunităţilor Europene din 12 mai 1964 şi din 10 iulie 1986(1),
– având în vedere articolul 6 alineatul (3) şi articolul 7 din Regulamentul de procedură,
– având în vedere raportul Comisiei pentru afaceri juridice (A6-0449/2007),
1. hotărăşte să apere imunitatea şi privilegiile lui Renato Bruneta;
2. încredinţează Preşedintelui sarcina de a transmite imediat prezenta decizie, precum şi raportul comisiei competente, autorităţilor în cauză ale Republicii Italiene.
Cauza 101/63, Wagner c. Fohrmann şi Krier, Culegere 1964, p. 383, şi cauza 149/85, Wybot/Faure şi alţii, Culegere 1986, p. 2391.
EXPUNERE DE MOTIVE
At the sitting of 31 January 2007, the President of Parliament announced that he had received a request for the defence of the parliamentary immunity of Renato Brunetta by letter of 18 January 2007, which was forwarded to the Committee on Legal Affairs, pursuant to Rule 6(3) of the Rules of Procedure.
The request relates to the civil proceedings brought by Hera S.p.A. against Mr Brunetta, along with other defendants, and currently pending before the District Court of Milan.
Hera S.p.A. is an Italian holding company operating in the field of public utilities in the Emilia-Romagna region. It is a public-private company whose 59% of shares is controlled by a group of local municipalities and the remaining 41% belongs to a group of (public) bank foundations and cooperative firms.
By the writ of pleadings of 14 September 2006, Hera S.p.A summoned Renato Brunetta and other defendants to appear before the Cles section of the Trento District Court, so that the latter might declare them jointly liable for the material published in a book forming part of the "I documenti di Panorama" series, entitled 'Red Capitalism - Investigating The Cooperatives, From Shares To Speculation'.
That book - which had been published by Mondadori (one of the most important Italian publishing companies) together with FREE (Foundation for Research on European Economy) and had been issued as a supplement to the Panorama weekly magazine issue No. 7, of 10 February 2006 - was allegedly defamatory of Hera, which asked the court to order to the defendants, jointly, to compensate for all the material and moral damage caused, in addition to the further damage for which provision is made of Article 12 of Law No 47/1949, by making a payment of EUR 550 000, plus any legally defined interests and revaluation of the sum, in addition to publishing at their expense the judgment or an extract thereof in the Voce di Rimini and Corriere della Sera newspapers and Panorama magazine.
All the defendants duly filed an appearance before the court, challenging the justification for the requests made by the complainant and submitting the preliminary objection that the court seized had no local jurisdiction.
At the hearing of 20 February 2007, the complainant accepted the plea of lack of jurisdiction and, recognising the jurisdiction of the Milan District Court, on 19 March 2007 notified the defendants a statement on resumption of proceedings before that court.
In its writ of summons, Hera gave the following extracts of the abovementioned book, taken from the introduction written by Mr Brunetta, as examples of defamatory statements:
- 'On the basis of these findings, we shall address the reasons which have led to important sectors of the cooperative movement with links to the Left Democrats becoming implemental in the emergence of 'red capitalism', the degeneration of the cooperative economy into a partisan movement. In a word, a monster' (page 6);
- The recent events involving Unipol, and others described in the course of this book, show that the main victims of the cooperatives which have spun out of control are their members. When a cooperative expands beyond a certain size, its members, unlike shareholders in public limited liability companies, have few - or no - powers to effectively control management. Consequently, the management, which is not subject to control by those owning the capital, becomes self-referential, behaves exactly like a speculator without the risks incurred by speculators, and takes advantage of the absence of the usual controls and practices to conceal its own strategies and hide from its members the benefits - including personal benefits - it can obtain' (page 15);
- 'Red capitalism' is part of FREE's efforts to denounce the "red" cooperatives' "hidden member" technique and restore the original rules and raison d'être of the cooperative movement' (page 15);
- 'FREE's "Red capitalism" shows that competition rules have been altered and a political party has taken control of the cooperatives as a "hidden member"' (page 15).
II. LAW AND GENERAL CONSIDERATIONS ON THE IMMUNITY OF MEMBERS OF THE EUROPEAN PARLIAMENT
1. Articles 9 and 10 of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965, read as follows:
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.
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.
2. 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.
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 10 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.
III. JUSTIFICATION OF THE PROPOSED DECISION
Article 9 of the Protocol on privileges and immunities provides that Members of the European Parliament have absolute immunity from legal proceedings "in respect of opinions expressed ... in the performance of their duties".
As a matter of fact, in his statements reported by the writ of summons filed by Hera S.p.A., Mr Brunetta merely commented on facts in the public domain which had a European political dimension as they were directly linked to Unipol’s bid to take over the Banca Nazionale del Lavoro (BNL) and the European Commission was carrying out the checks required under Community law with regard to the legality of that takeover bid.
Furthermore, as a Member of the European Parliament and full professor of Economics, Mr Brunetta only stressed the market failure resulting from to the links existing between public-private companies, cooperatives and political parties which create a de facto monopoly and may therefore jeopardise the functioning of the internal market as far as consumers' protection and fair competition are concerned. The case of Hera S.p.A. was just a paradigmatic example of how this economic paradox exists and works.
Defining such a situation as an "economic monster" is not at all defamatory, as the word "monster" comes from the Latin expression "monstrum" which only means "extraordinary", "something against nature". The message that Mr Brunetta intended to give to his readers was nothing more than the description, from a merely economic point of view, of the existing anomalies of the Italian market, which seem to prevent Italy from fully attaining the objectives of the internal market.
In describing and criticising the deviations of the cooperatives' system, he was carrying out his duty as a Member of Parliament in expressing his opinion on a matter of public interest to his constituents.
In short, Mr Brunetta was simply doing his job as a Member of Parliament. To seek to gag Members of Parliament from expressing their opinions on matters of legitimate public interest and concern by bringing legal proceedings is unacceptable in a democratic society and manifestly in breach of Article 9 of the Protocol, which is intended to protect Members' freedom of expression in the performance of their duties in the interests of Parliament as an Institution.
On the basis of the above considerations, the Committee on Legal Affairs, having examined the reasons for and against defending immunity, recommends that the immunity of Mr Renato Brunetta be defended.