REPORT on the request for defence of the immunity and privileges of Gabriele Albertini

26.10.2006 - (2006/2099(IMM))

Committee on Legal Affairs
Rapporteur: Diana Wallis

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for defence of the immunity and privileges of Gabriele Albertini

(2006/2099(IMM))

The European Parliament,

–   having regard to the request by Gabriele Albertini for defence of his immunity in connection with the criminal proceedings brought against him before the District Court in Milan, made on 25 April 2006, announced in plenary sitting on 27 April 2006,

–   having heard Gabriele Albertini in accordance with Rule 7(3) of its Rules of Procedure,

–   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 (A6‑0378/2006),

1.  Decides to defend the immunity and privileges of Gabriele Albertini;

2.  Instructs its President to forward this decision, and the report of the committee responsible, immediately to the appropriate authorities of the Italian Republic.

• [1]  Case 101/63 Wagner v Fohrmann and Krier [1964] ECR 195 and Case 149/85 Wybot v Faure and others [1986] ECR 2391.

EXPLANATORY STATEMENT

I.         FACTS

At the sitting of 27 April 2006, the President of Parliament announced that he had received a request for the defence of the parliamentary immunity of Gabriele Albertini MEP by letter of 25 April 2006, which was duly forwarded to the Committee on Legal Affairs.

The request relates to an investigation made by the Public Prosecutor’s Office at the Court of Milan (procedure no 47625/05) in connection with the offence covered by Article 595 of the Italian Criminal Code (libel via the press), presumably because, in the course of an interview published in the Corriere della Sera of 23 October 2005 entitled ‘Links between the Province of Milan, Gavio and Unipol’ (‘Intreccio Provincia, Gavio e Unipol’), Mr Albertini allegedly insulted Filippo Penati, the President of the Province of Milan.

According to Mr Albertini's request, the words which could be taken as offensive are probably those quoted below when, in answer to a question by the journalist concerning the future President of the Serravalle motorway, Mr Albertini replied: ‘I have no comment to make about the President: however, I am waiting for the decision of three courts (...). What is the significance of awarding a private individual € 170 million in capital gains ahead of the elections? To quote Bruno Tabacci [a member of the Italian Parliament]: A significant proportion of the capital gains obtained by Gavio was used to help Unipol take over BNL. In other words, a private individual benefits from public funds and then, in turn, helps a political faction which has bought shares from the private sector to obtain control of a bank. Perhaps the criminal courts might also have a word to say about that’.

In October 2005, the main press outlets reported daily on developments in the well-known matter of the acquisition by the Province of Milan of shares in Serravalle owned by Gavio, thus giving rise to a purely political controversy in the Milan press.

Indeed, the affair involving the City of Milan, the Province of Milan and Serravalle had been at the centre of a traditional political dispute for over two years, and the press had quite clearly been a medium for political expression by all sides, as happened when Ombretta Colli was President of the Province of Milan, at which time the two authorities were involved in an animated political dispute and the opinions of the protagonists involved were reported by the press.

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:

Article 9:

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 10:

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 press, Mr Albertini 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.

In so doing, he was carrying out his duty as a Member of Parliament in expressing his opinion on a matter of public interest to his constituents. Moreover, the fact that the subject of his statements was the behaviour of a politician and the holder of a public office brings them within the realm of legitimate political debate.

What is more, by saying that "Perhaps the criminal courts might also have a word to say about that", Mr Albertini clearly illustrates the absence of any intention to libel, or cause offence to, any person and indicates, furthermore, the appropriate institutional framework for the establishment of any possible criminal responsibility.

In short, Mr Albertini 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.

IV.     CONCLUSIONS

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 Gabriele Albertini be defended.

PROCEDURE

Title	Request for defence of the immunity and privileges of Gabriele Albertini
Procedure number	2006/2099(IMM)
Request for defence of immunity   from*   Date of request   Date announced in plenary *In one language only	District Court in Milan 25.4.2006 27.4.2006
Committee responsible   Date announced in plenary	JURI 27.4.2006
Rapporteur(s)   Date appointed	Diana Wallis 30.5.2006
Previous rapporteur(s)
Discussed in committee	11.7.2006		11.9.2006	2.10.2006	24.10.2006
Date adopted	24.10.2006
Result of final vote	+ - 0	17 0 0
Members present for the final vote	Maria Berger, Carlo Casini, Giuseppe Gargani, Klaus-Heiner Lehne, Alain Lipietz, Hans-Peter Mayer, Aloyzas Sakalas, Gabriele Stauner, Diana Wallis, Tadeusz Zwiefka
Substitute(s) present for the final vote	Jean-Paul Gauzès, Kurt Lechner, Eva Lichtenberger, Manuel Medina Ortega, Marie Panayotopoulos-Cassiotou
Substitute(s) under Rule 178(2) present for the final vote	Guido Podestà, Riccardo Ventre, Stefano Zappalà
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