REPORT on the request for defence of the immunity and privileges of Jean-Charles Marchiani

22.6.2005 - (2005/2105(IMM))

Committee on Legal Affairs
Rapporteur: Francesco Enrico Speroni

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for defence of the immunity and privileges of Jean-Charles Marchiani

(2005/2105(IMM))

The European Parliament,

–   having regard to the request by Jean-Charles Marchiani for defence of his immunity of 19 May 2005, announced in plenary sitting on 26 May 2005,

–   having regard to Articles 9 and 10 of the Protocol of 8 April 1965 on the Privileges and Immunities of the European Communities 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 12 May 1964 and 10 July 1986[1] of the Court of Justice of the European Communities,

–   having regard to Rules 6(3) and 7 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs (A6‑0208/2005),

A. whereas Jean-Charles Marchiani was elected to the European Parliament at the fifth direct elections on 13 June 1999, his credentials were verified by Parliament on 15 December 1999[2] and his term of office ended on 19 July 2004,

B.  whereas, during the period in which he was a member of the European Parliament, the French judicial authorities intercepted various telephone conversations between Jean-Charles Marchiani and others;

C. whereas, during European Parliament sessions, members of the European Parliament enjoy, on their national territory, the immunities accorded to members of their national parliament[3];

D. whereas, pursuant to Article 100-7 of the Code of criminal procedure of the French Republic, the telephone lines of members of Parliament and of the Senate may not be subject to interception unless the President of the Assembly to which they belong has been informed thereof in advance by the investigating judge,

E.  whereas the French Court of Cassation, disregarding the principle of iura novit curia, failed to apply Article 10 of the Protocol on the privileges and immunities of the European Communities of 8 April 1965 in its judgment No 1784 of 16 March 2005, thus denying Jean-Charles Marchiani the immunity accorded to members of the national parliament under Article 100-7 of the Code of criminal procedure,

1.  Decides to defend the immunity and privileges of Jean-Charles Marchiani, former Member of the European Parliament;

2.  Asks for judgment No 1784 of 16 March 2005 of the French Court of Cassation to be annulled or overturned, and at all events for it to cease to have any practical or legal effects;

3.  Instructs its President to forward this decision and the report of the committee responsible to the Court of Cassation, the government, the National Assembly and the Senate of the French Republic.

• [1]  Case 101/63,
• [2]  Decision of the European Parliament of 15 December 1999 on the verification of the credentials of Members following the fifth direct elections to the European Parliament on 10 to 13 June 1999 (OJ C 296, 18.10.2000, p. 93).
• [3]  cf Article 10(1)(a) of the Protocol on the privileges and immunities of the European Communities.

EXPLANATORY STATEMENT

I.   Admissibility

In a letter of 19 May 2005 sent to the President of the European Parliament, Mr Jean-Charles Marchiani, former Member of the European Parliament, asked for his immunity and privileges to be defended pursuant to Rule 5(3) of the Rules of Procedure in connection with judgment No 1784 of the French Cour de Cassation (Court of Cassation) of 16 March 2005.

The request was announced to Parliament in plenary session on 25 May 2005 and referred to the Committee on Legal Affairs as the committee responsible.

Mr Jean-Charles Marchiani had been a Member of the European Parliament during the fifth legislative term, from 20 July 1999 to 19 July 2004.

The facts to which the judgment in question relate occurred, in part, during the period in which Mr Jean-Charles Marchiani held office as a Member of the European Parliament, and accordingly the request is admissible.

II.       Facts of the case

By the abovementioned decision, the French Court of Cassation annulled without remand judgment No 2 of the Chambre de l’instruction (investigation procedure section) of the Paris Court of Appeal of 8 December 2004, which had declared null and void the tapping of a telephone line registered in the name of Mr Jean-Charles Marchiani in the period from 14 June to 19 July 2004.

The interception of telephone calls had been ordered by the investigating judge at the Paris Tribunal de Grande Instance (Court of First Instance) in connection with a criminal investigation into suspected receiving of stolen property and misappropriation of corporate assets by Mr Jean-Charles Marchiani and others, including the supposed payment, between August 1991 and January 1994, of sums amounting to FF 9,703,826 into Mr Marchiani’s Swiss bank accounts. This sum allegedly represented an illegal commission paid by a company to obtain a contract with the Paris - Charles De Gaulle airport for a baggage transport, storage and retrieval system.

The relevant documentation clearly shows that the interception of the telephone line was ordered by the French investigating judge from 14 June 2004, the day after the elections to the European Parliament, and ended on 9 August 2004. It is obvious that the judge mistakenly believed that, once the elections were in progress, Mr Marchiani’s term of parliamentary office had come to an end, whereas, under Article 5(1) and (3) of the Act of 20 September 1976 concerning the election of the members of the European Parliament by direct universal suffrage, it did not come to an end until the eve of the new parliamentary term, in other words at midnight on 19 July 2004.

It should also be pointed out that the European Parliament had rejected a request for the waiver of Mr Marchiani’s immunity in connection with the same criminal proceedings submitted on 29 April 2003 by the investigating judge at the Paris Court of First Instance (Mr Philippe Courroye) who also ordered the telephone tapping referred to above.[1] On that occasion, the European Parliament took the view, inter alia, that there existed a fumus persecutionis in relation to Mr Marchiani, given that, in the circumstances, it was impossible to rule out the possibility that the criminal proceedings were motivated by an intention to damage the Member’s political activities.

III.      Legal background

The question at issue is whether the parliamentary immunity enjoyed by Mr Marchiani should have prevented the judicial authorities of the French Republic from tapping his telephone line.

The case is covered by Article 10(a) of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965, which reads 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; (...)’.

This provision refers back, therefore, to the rules applying in France to members of the national parliament, which also apply, by virtue of the Protocol, to French Members of the European Parliament.

The case in question is covered by Article 100-7 of the French Code of Criminal Procedure, which reads as follows:

‘No interception may be made on the telephone line of a Member of Parliament or Senator unless the President of the assembly to which he belongs is informed of the interception by the investigating judge. (...)

The formalities set out by the present article are prescribed under penalty of nullity’.

It follows that, by virtue of the combined provisions of Article 10(1) of the Protocol on the Privileges and Immunities of the European Communities and Article 100-7 of the French Code of Criminal Procedure, the French judicial authority could not lawfully carry out any interception of Mr Marchiani’s telephone line without having previously informed the President of the European Parliament.

Astonishingly, however, the Court of Cassation stated that ‘it does not follow from any legal text or agreement, or from any constitutional principle, that this provision’ ( i.e. Article 100-7 of the Code of Criminal Procedure) ‘applies to Members of the European Parliament’, and concluded that the rules in question applied solely to members of the French national parliament.

It is immediately apparent that this supreme judicial authority has erred in disregarding, or refusing to apply, a provision of primary European law which the French Republic is obliged to observe scrupulously.

It is the responsibility of the French Republic, therefore, to remedy the legal effects of the judgment of the Court of Cassation, which flies in the face of Article 10(a) of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965.

IV.      Conclusion

In view of the foregoing, the Committee on Legal Affairs recommends that the European Parliament defend the immunity and privileges of Mr Jean-Charles Marchiani, former Member of the European Parliament.

• [1]  See European Parliament Decision P5_TA(2003)0529 (A5-0423/2003)

PROCEDURE

Title	Request for defence of the immunity and privileges of Jean-Charles Marchiani
Procedure number	2005/2105(IMM)
Request for defence of immunity   from   Date of request   Date announced in plenary	Jean-Charles Marchiani 19.5.2005 26.5.2005
Committee responsible   Date announced in plenary	JURI 26.5.2005
Basis in Rules of Procedure	Rules 6(3) and 7
Rapporteur   Date appointed	Francesco Enrico Speroni 23.5.2005
Previous rapporteur
Discussed in committee	23.5.2005	21.6.2005
Date adopted	21.6.2005
Result of final vote	for: 12 against: 6 abstentions: 0
Members present for the final vote	Antonio Di Pietro, Monica Frassoni, Giuseppe Gargani, Kurt Lechner, Klaus-Heiner Lehne, Katalin Lévai, Marcin Libicki, Antonio Masip Hidalgo, Viktória Mohácsi, Aloyzas Sakalas, Francesco Enrico Speroni, Daniel Stroz, Andrzej Jan Szejna, Diana Wallis, Nicola Zingaretti, Jaroslav Zvěřina
Substitutes present for the final vote	Evelin Lichtenberger, Manuel Medina Ortega, Michel Rocard
Substitutes under Rule 178(2) present for the final vote
Date tabled – A6	22.6.2005				A6-0208/2005