– having regard to the request for waiver of the immunity of Hans-Peter Martin, forwarded by the Vienna Public Prosecutor’s Office on 29 April 2011 and announced in plenary sitting on 12 May 2011,
– having heard Hans-Peter Martin on 21 May 2011, in accordance with Rule 7(3) of its Rules of Procedure,
– having regard to Article 9 of the Protocol of 8 April 1965 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 and 19 March 2010(1),
– having regard to the provisions of Article 57 of the Austrian Constitution,
– having regard to Rules 6(2) and 7 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A7-0267/2011),
A. whereas the Vienna Public Prosecutor’s Office has requested the waiver of immunity of Hans-Peter Martin, Member of the European Parliament, in order to enable the Austrian authorities to conduct the necessary investigations and to take legal action against Hans-Peter Martin, to call for a search of his house or offices, to seize documents and to carry out computer checks or any other electronic searches which may be necessary and to initiate criminal proceedings against Mr Martin on the grounds of misappropriation of party funding or any other legal description that might be given to the alleged offence(s) before the criminal courts having jurisdiction,
B. whereas the waiver of immunity of Hans-Peter Martin concerns alleged offences related to misappropriation of party funding, covered by Section 2b of the Law on Political Parties,
C. whereas it is therefore advisable to recommend that parliamentary immunity be waived in the case in question,
1. Decides to waive the immunity of Hans-Peter Martin;
2. Instructs its President to forward this decision and the report of its competent committee immediately to the appropriate authorities of Austria and to Hans-Peter Martin.
Case 101/63 Wagner v. Fohrmann and Krier  ECR 195; Case 149/85 Wybot v. Faure and Others  ECR 2391; Case T- 345/05, Mote v. Parliament  ECR II-2849; Joined Cases C-200/07 and C-201/07 Marra v. De Gregorio and Clemente  ECR I-7929, Case T-42/06. Gollnisch/Parliament.
At the plenary sitting of 12 May 2011, the President announced, in accordance with Rule 6(2) of the Rules of Procedure that he had received a letter from the Vienna Public Prosecutor’s Office, forwarded by the Permanent Representation of Austria to the European Union on 29 April 2011, requesting the waiver of the parliamentary immunity of Mr Hans-Peter Martin.
The President referred the request to the committee responsible, pursuant to Rule 6(2).
The Vienna Public Prosecutor’s Office intends to institute proceedings against Mr Hans-Peter Martin, Member of the European Parliament, on the basis of allegations that Mr Hans-Peter Martin has breached the provisions of Section 2b of the Austrian Law on Political Parties by using State funding inappropriately to meet private expenditure and to settle inflated invoices submitted to him by friends or business associates. The allegations relate to the period of the European election campaign, between 2008 and 2009.
In addition, Mr Martin is accused of having misled the auditors responsible for scrutinising the use of funds by submitting ‘fictitious documents’ to justify the lawfulness of the accounting and/or the legal basis for the use of funds.
In the course of the preliminary investigation, the Vienna Prosecutor’s Office intends to order searches, in particular on the premises used by the staff of the ‘Liste Martin’ and to obtain the release of information concerning bank accounts and bank transactions in both Austria and Germany.
In the course of his hearing by the Committee on Legal Affairs, Mr Martin maintained that the prosecution was brought as a result of the efforts of another Member and his assistant to take his place as Member of the European Parliament. This had involved obtaining documents illegally from the premises of the European Parliament and the interception of Mr Martin’s emails, about which Mr Martin had complained to President Buzek.
Protocol No 7 on privileges and Immunities of the European Union annexed to the Treaties provides as follows:
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.
Section 2 b of the Austrian Law on Political Parties reads as follows:
(1) For purposes of public relations activities, each political party shall, upon request, be granted public funds to the extent provided as follows.
(2) The volume of such grants shall be ascertained as follows:
a) each party represented in the National Council with at least five Members (minimum requirement for constituting a club) shall receive an annual basic amount of Euro 218 019;
b) after deduction of the amounts due pursuant to subparagraph a, the remaining funds pursuant to paragraph 1 shall be distributed among the political parties represented in the National Council pro rata to the votes cast for them in the last National Council elections held;
c) political parties not represented in the National Council but having received in an election to the National Council more than 1 per cent of the valid votes cast, shall for the election year be entitled to funds granted for the purpose of public relations activities (paragraph 1) in the same way as political parties pursuant to sub-paragraph b; such funds shall be paid during the first quarter of the year following the election.
(3) The funds granted pursuant to paragraph 2 shall amount to Euro 14 383 200. Starting in 2005, this amount shall be reduced or increased pro rata to the fluctuations of the previous year’s consumer price index 1996 as published by the Federal Institution ‘Statistik Österreich’ [Statistics Austria].
Mr Martin is charged with offences under the Austrian Criminal Code (§ 146 (fraud), § 147 (aggravated fraud), § 153 (embezzlement), § 153b (misuse of funding) and § 223 (forgery)).
Lastly, given that Article 9(a) of the Protocol refers to national law on immunities, it is necessary to refer to the Austrian Constitution, Article 57 of which provides as follows:
(1) The members of the National Council may never be made responsible for votes cast in the exercise of their function and only by the National Council on the grounds of oral or written utterances made in the course of their function.
(2) The members of the National Council may on the ground of a criminal offence – the case of apprehension in the act of committing a crime excepted – be arrested only with the consent of the National Council. Domiciliary visitations of National Council members likewise require the National Council’s consent.
(3) Legal action on the ground of a criminal offence may otherwise without the national Council’s consent be taken against members of the National Council only if it is manifestly not connected with the political activity of the member in question. The authority concerned must however seek a decision by the National Council on the existence of such a connection if the member in question or a third of the members belonging to the Standing Committee entrusted with these matters so demands. Every act of legal process shall in the case of such a demand immediately cease or be discontinued.
(4) In all these cases the consent of the National Council counts as granted if within eight weeks it has not given a ruling on an appropriate request by the authority competent for the institution of legal action; the President, with a view to the National Council’s adoption of a resolution in good time, shall at the latest put such a request to the vote on the day but one before expiry of the deadline. The latter does not include the period when the National Council is not in session.
(5) In case of a member’s apprehension in the act of committing a crime, the authority concerned must immediately notify the President of the National Council of the occurrence of the arrest. If the National Council or when it is not in session the Standing Committee entrusted with these matters so demands, the arrest must be suspended or the legal process as a whole be dropped.
(6) The immunity of members ends with the day of the meeting of the newly elected National Council, that of functionaries of the National Council whose tenure of office extends beyond this date on the expiry of this term of office.
(7) The detailed provisions are settled by the federal law on the House of Representatives’ Standing Orders.
On the basis of the above considerations and pursuant to Rule 6(2) of the Rules of Procedure, the Committee on Legal Affairs, having examined the reasons for and against waiving the Member’s immunity, recommends that the European Parliament should waive the parliamentary immunity of Hans-Peter Martin.
RESULT OF FINAL VOTE IN COMMITTEE
Result of final vote
Members present for the final vote
Raffaele Baldassarre, Luigi Berlinguer, Sebastian Valentin Bodu, Christian Engström, Marielle Gallo, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Bernhard Rapkay, Evelyn Regner, Francesco Enrico Speroni, Dimitar Stoyanov, Alexandra Thein, Rainer Wieland, Cecilia Wikström, Tadeusz Zwiefka
Substitute(s) present for the final vote
Kurt Lechner, Eva Lichtenberger, Toine Manders, Paulo Rangel, Dagmar Roth-Behrendt
Substitute(s) under Rule 187(2) present for the final vote