REPORT on the request for defence of parliamentary immunity and privileges submitted by Jannis Sakellariou
(2003/2023 (IMM))
12 September 2003
Committee on Legal Affairs and the Internal Market
Rapporteur: Klaus-Heiner Lehne
PROCEDURAL PAGE
At the sitting of 29 January 2003 the President of Parliament announced that he had received from Mr Sakellariou a request for defence of his parliamentary immunity in connection with legal proceedings pending before a Greek Court. Pursuant to Rule 6(1) of the Rules of Procedure, the request was referred to the committee responsible, the Committee on Legal Affairs and the Internal Market.
At its meeting of 20 February 2003 the committee appointed Klaus-Heiner Lehne rapporteur.
At its meeting of 25 March 2003 it held an exchange of views on the grounds for and against the defence of immunity and at its meeting of 8 July 2003 it heard Jannis Sakellariou, pursuant to Rule 6a(3) of the Rules of Procedure.
It considered the draft report at its meeting of 10 September 2003 and adopted the proposal for a decision by 9 votes to 0, with 1 abstention.
The following were present for the vote: Giuseppe Gargani (chairman), Ioannis Koukiadis (second vice-chairman), Klaus-Heiner Lehne (rapporteur), Brian Crowley, Michel J.M. Dary, Marie-Françoise Garaud, Lord Inglewood, Kurt Lechner, Sir Neil MacCormick, Manuel Medina Ortega, Alexandre Varaut and Rainer Wieland.
The report was tabled on 12 September 2003.
PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
on the request for defence of parliamentary immunity and privileges submitted by Jannis Sakellariou (2003/2023 (IMM))
The European Parliament,
- having regard to a request for defence of his immunity in connection with legal proceedings pending before a Greek court submitted by Jannis Sakellariou on 20 January 2003 and announced in plenary sitting on 29 January 2003,
- having regard to Articles 9 and 10 of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965, and to Article 4(2) of the Act of 20 September 1976 concerning the Election of Representatives to the European Parliament by direct universal suffrage,
- having regard to the judgments of the Court of Justice of the European Communities of 12 May 1964 and 10 July 1986[1],
- having regard to Rules 6 and 6a of its Rules of Procedure,
- having regard to the report of the Committee on Legal Affairs and the Internal Market (A5-0309/2003),
A. whereas Jannis Sakellariou was elected to the European Parliament in the fifth elections held from 10 to 13 June 1999, and whereas his credentials were verified by Parliament on 13 December 1999[2],
B. whereas Members of the European Parliament may 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[3],
C. whereas during the sessions of the European Parliament its Members enjoy, in the territory of any Member State other than their own, immunity from any measure of detention and from legal proceedings[4],
D. whereas Jannis Sakellariou was elected to the European Parliament in the Federal Republic of Germany and may not therefore be subject to legal proceedings in the territory of the Hellenic Republic,
E. whereas the immunity from legal proceedings enjoyed by Members of the European Parliament also covers immunity from civil proceedings,
1. Decides to defend the immunity and privileges of Jannis Sakellariou;
2. Instructs its President immediately to forward this decision and the report of its committee to the division for civil matters of the Athens Court of First Instance.
- [1] See ECR 2403, p.419, Case 101/63, Wagner v Fohrmann and Krier and ECR 1986, p. 2391, Case 149/85,
Wybot v Faure. - [2] European Parliament Decision on the verification of credentials of Members following the fifth direct elections to the European Parliament on 10 to 13 June 1999, Minutes of the sitting of 13 December 1999.
- [3] Article 9 of the Protocol on the Privileges and Immunities of the European Communities.
- [4] Article 10(b) of the Protocol on the Privileges and Immunities of the European Communities.
EXPLANATORY STATEMENT
I. Facts of the case
According to the information supplied by Mr Sakellariou in his letter of 20 January 2003 to the President of Parliament, the circumstances which may warrant measures to defend Mr Sakellariou’s parliamentary immunity can be summarised as follows:
On 3 September 2001 the lawyer Dimitris K. Vervesos brought an action before the civil division of the Athens Court of First Instance, in accordance with the procedure laid down in Article 681 of the Greek Code of Civil Procedure, on behalf of Mr Stylianos Papathemelis, Member of Parliament for Thessaloniki, resident in Thessaloniki, Aristotelous 26, against the following persons:
1. the publishing house H.K. Tegopoulos Ltd, whose registered office is situated in Athens, in its capacity as owner of the magazine Epsilon tis Eleftherotypias,
2. Athanasios Tegopoulos, publisher of the magazine Epsilon tis Eletherotypias,
3. Serafeim Findanidis, Managing Director of the magazine Epsilon tis Eletherotypias,
4. Christos Bletas, Editor-in-Chief of the magazine Epsilon tis Eletherotypias,
5. Eleni Kochaimidou, journalist,
6. Jannis Sakellariou, Member of the European Parliament
The magazine is a supplement of the high-circulation newspaper Kyriakatiki Eleftherotypia, which is owned and published by the first-named defendant, the publishing house.
In an interview which the above-mentioned journalist (the fifth-named defendant) conducted with Jannis Sakellariou (the sixth-named defendant) and which appeared in the 18 March 2001 issue of the magazine, Jannis Sakellariou answered a question about the future of Greco-Turkish relations by saying that the consequences were likely to be serious if ‘a neighbourhood Mussolini such as Mr Papathemelis practises foreign policy’.
The application states that in making these remarks the defendant Jannis Sakellariou defamed the applicant in an unprovoked, unjustified manner which was ‘clearly detrimental to my dignity, honour and reputation as a man and figure in society and also as a politician and active member of the public life of my country for decades’[1].
For the reasons outlined in the application, the court should require the six defendants jointly and severally to pay the applicant the sum of GDR million (50 000 000) (roughly EUR 150 000), together with statutory interest for the period from the submission of the application, in compensation for the moral injury he suffered[2].
II. Article 10 of the Protocol on the privileges and immunities of the European Communities (PPI)[3]
That article reads as follows:
‘During the sessions of the European Parliament, its members shall enjoy:
(a) in the territory of their own Member 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’.
Mr Sakellariou was elected to the European Parliament from the Federal Republic of Germany in the fifth direct elections on 13 June 1999, and Parliament verified his credentials on 13 December 1999[4].
Proceedings have now been brought against him before the civil division of the Athens Court of First Instance, i.e. a Greek court.
The civil action against Jannis Sakellariou does indeed constitute ‘legal proceedings’ within the meaning of Article 10(b) of the PPI. No criminal proceedings are involved and, in response to the allegedly defamatory remarks, the applicant has not brought a criminal action, for example for slander. The applicant has brought proceedings against the Member solely under the civil law.
In contrast, the level of damages claimed (roughly EUR 150 000) is clearly intended to be punitive. Damages whose primary purpose is punitive are generally awarded to the victim of a wrongful act[5]. In US law, the focus is on the deterrent nature of punitive damages: the aim is to discourage the perpetrator from repeating the act which prompted the damages award and potential imitators from perpetrating such an act for the first time. Given that, in recent years, this legal instrument has increasingly become an established part of the legal systems of the EU Member States, through the recognition and enforcement of foreign court judgments, such as those handed down in the USA, there is every possibility that it will be used as a roundabout means of taking legal action against Members in a manner similar to criminal proceedings.
The reference to ‘legal proceedings’ in the 1965 text of the PPI must thus today be interpreted as covering an attempt to secure punitive damages by means of civil proceedings.
It is therefore clear that, pursuant to Article 10(b) of the PPI, the MEP Jannis Sakellariou may not be the subject of ‘legal proceedings’ in Greece.
III. Article 9 of the Protocol on the privileges and immunities of the European Communities (PPI)
Article 9 of the PPI reads 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’.
Parliament has consistently taken it as a fundamental principle that immunity may on no account be waived in cases in which the acts of which a Member stands accused were carried out in the performance of his or her political duties or were directly related to such duties[6]. Although the case in point relates to the defence of parliamentary immunity, the same principles must apply.
In accordance with those principles, your rapporteur notes that, when he made the statements incorporated in the newspaper interview, Mr Sakellariou was exercising his freedom of speech in connection with the performance of his duties as a Member of Parliament. Greco-Turkish relations have always been of fundamental relevance to the European Union’s common foreign and security policy and Mr Sakellariou is also a member of the parliamentary committee responsible for foreign affairs. The statements must be seen in the political context of the interview and relate to a matter of genuine public importance and interest. The right to make such statements is central to the role of a Member elected by the people. State prosecution might undermine the independence and freedom of speech enjoyed by the Members of the European Parliament.
It is clear that the civil action brought against Mr Sakellariou likewise constitutes ‘legal proceedings’ within the meaning of Article 9 of the PPI. As already outlined under Section II above, the level of damages claimed makes it clear that the aim is to ‘punish’ the Member. The applicant has made no attempt whatsoever to claim damages in respect of a material loss. For the reasons set out above, and in the light of the courts’ increasing willingness, as seen in recent years, to award punitive damages, the wording of Article 9 of the PPI must be interpreted in such a way as to provide Members of the European Parliament with effective protection against state prosecution in respect of views expressed in connection with the performance of their duties.
IV. Conclusion
Your rapporteur therefore recommends that Parliament should defend Mr Jannis Sakellariou’s immunity and privileges.
- [1] Application of 3 September 2001, page 1.
- [2] Application of 3 September 2001, page 2.
- [3] The protocols annexed to the original Treaties form part of primary Community law and have the same legal status as the Treaties themselves. The judgment in a case concerning the liability of Community officials for property tax made clear that a breach of the provisions of the PPI represented a breach of the obligations arising out of the Treaties (judgment of 24 February 1988, Commission v Belgium, Case 260/86, ECR. 966).
- [4] European Parliament decision on the verification of credentials of Members following the fifth direct elections to the European Parliament on 10 to 13 June 1999, Minutes of the sitting of 13 December 1999.
- [5] For a German definition of punitive damages, see http://www.jura.uni-hannover.de/wolf/seminare/rueck_b/schwach.doc.
- [6] Most recently in the case concerning the request for waiver of the immunity of Mogens N.J. Camre, decision of 1 July 2003 (2003/2249(IMM)).