REPORT on the request for defence of the immunity and privileges of Valdemar Tomaševski

29.6.2010 - (2010/2047(IMM))

Committee on Legal Affairs
Rapporteur: Bernhard Rapkay

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for defence of the immunity and privileges of Valdemar Tomaševski

(2010/2047(IMM))

The European Parliament,

–   having regard to the request by Valdemar Tomaševski for defence of his immunity, forwarded to the President of the European Parliament on 2 February 2010 and announced in plenary sitting on 24 March 2010,

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

–   having regard to Articles 8 and 9 of the Protocol (No 7) 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 Statute for Members of the European Parliament adopted on 28 September 2005,

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

–   having regard to the report of the Committee on Legal Affairs (A7‑0214/2010),

A. whereas Valdemar Tomaševski is a Member of the European Parliament,

B.  whereas Valdemar Tomaševski is not facing legal proceedings within the meaning of Article 8 of the Protocol, so that this case does not concern parliamentary immunity,

C. whereas the Code of Conduct for State Politicians (hereinafter 'the Code of Conduct'), introduced by Law No X-816 of 19 September 2006, which is enforced by the Chief Official Ethics Commission of the Republic of Lithuania, a political body established by Law No X-1777 of 1 July 2008, states explicitly that it is also applicable to Members of the European Parliament elected in Lithuania,

D. whereas, on 22 January 2010, the Lithuanian Chief Official Ethics Commission adopted a decision publicly admonishing Valdemar Tomaševski on the basis of the Code of Conduct in relation to political activities conducted as a Member of the European Parliament,

E.  whereas, in accordance with Article 2 of the Statute for Members of the European Parliament[1], ‘Members shall be free and independent’,

F.  having regard to the principle of the precedence of Union law,

G. whereas the decision in question and the legislation of the Republic of Lithuania on which it is based breach European Union law by not observing the principles of the freedom and independence of Members of the European Parliament established by Article 2 of the Statute for Members of the European Parliament,

H. whereas the Commission, as guardian of the Treaties, should now initiate infringement proceedings against the Republic of Lithuania under Article 258 of the Treaty on the Functioning of the European Union,

1.  Calls on the Commission to intervene with the Lithuanian authorities in order to enforce European Union law and, if necessary, to initiate a Union law infringement procedure under Article 258 of the Treaty on the Functioning of the European Union;

2.  Instructs its President to forward this decision and the report of its committee responsible immediately to the Commission and to the relevant authorities of the Republic of Lithuania.

• [1]  OJ L 262, 7.10.2005, p. 1.

JUSTIFICATION

I.    BACKGROUND

On 2 February 2010, Member of the European Parliament Valdemar Tomaševski sent a letter to the President of the European Parliament requesting that the independence of his office of Member of the European Parliament be defended, as it was jeopardised by the admonishment issued on 22 January 2010 by the Lithuanian Chief Official Ethics Commission, a body of the Lithuanian Parliament.

On 24 March 2010, the President of Parliament acknowledged receipt of Mr Tomaševski’s request, which was then forwarded to the committee responsible – the Committee on Legal Affairs – in accordance with Rule 6(3) of the Rules of Procedure.

On 22 January 2010, the Lithuanian Chief Official Ethics Commission decided:

‘to note, notwithstanding Valdemar Tomaševski’s rights, as a Member of the European Parliament, to express his views freely and to defend the rights of minorities, that the public behaviour of and course of action chosen by Valdemar Tomaševski – a citizen of the Republic of Lithuania, political leader and chair of a Lithuanian political party represented in parliament – are disrespectful of the State and its citizens, are unfair and do not promote trust in the State and its institutions’.

           The Lithuanian Chief Official Ethics Commission issued this decision following a complaint lodged with it on 5 November 2009 by the association Lietuvos Sajūdis regarding public statements made by Valdemar Tomaševski, Member of the European Parliament (ECR Group) and chair of the Lietuvos Lenkų Rinkimų Akcija, a political party represented in the Lithuanian Parliament, on the discrimination which he claims Poles in Lithuania face. According to Lietuvos Sajūdis, at an ECR Group meeting in the European Parliament on 7 September 2009, Valdemar Tomaševski complained about the situation of Poles in Lithuania to José Manuel Barroso, President of the Commission. Together with other Polish Members of the European Parliament, he also allegedly spoke to Jerzy Buzek, President of the European Parliament, prior to the latter’s official visit to Lithuania, raising the issue of the protection of the rights of the Polish minority, which he claims are being infringed.

           This decision, published on the internet site of the Lithuanian Chief Official Ethics Commission, www.vtek.lt, is final and not subject to appeal.

The legal bases for the decision are:

· Article 17(4) of Law No X-1777 establishing the Chief Official Ethics Commission;

· Articles 6(2), 9(1)(2) and 9(3) of Law No X-816 laying down the Code of Conduct for State Politicians.

II.       JUSTIFICATION FOR THE PROPOSED DECISION

The decision of the Lithuanian Chief Official Ethics Commission publicly admonished Valdemar Tomaševski on the basis of the Code of Conduct established by Lithuanian Law No X-816 of 19 September 2006, for opinions expressed by the Member of the European Parliament in the course of his parliamentary activities.

Given that the Chief Official Ethics Commission is not a court of law, and that Mr Tomaševski is therefore not facing legal proceedings within the meaning of Article 8 of the Protocol on the Privileges and Immunities of the European Union, this case does not concern parliamentary immunity.

However, Article 2 of the Statute for Members provides that ‘Members shall be free and independent’. Furthermore, Article 3 states that ‘1. Members shall vote on an individual and personal basis. They shall not be bound by any instructions and shall not receive a binding mandate. 2. Agreements concerning the way in which the mandate is to be exercised shall be null and void.’

It is thus clear that the decision of the Chief Official Ethics Commission violates the principles of the freedom and independence of Members established by the Statute for Members of the European Parliament, which is part of European Union law. The fact that Lithuanian law extends the remit of the Chief Official Ethics Commission to overseeing the activities of Members of the European Parliament elected in Lithuania therefore represents a breach of European Union law.

The Commission, as guardian of the Treaties and sole body competent to initiate infringement proceedings, should therefore initiate such proceedings against the Republic of Lithuania under Article 258 of the Treaty on the Functioning of the European Union.

The Committee on Legal Affairs therefore recommends that the Commission should intervene with the Lithuanian authorities in order to enforce European Union law and, if necessary, initiate Union law infringement proceedings under Article 258 of the Treaty on the Functioning of the European.

III.      CONCLUSION

In view of the above, the Committee on Legal Affairs recommends calling on the Commission to intervene with Lithuanian authorities in order to enforce European Union law and, if necessary, initiate Union law infringement proceedings under Article 258 of the Treaty on the Functioning of the European Union.

RESULT OF FINAL VOTE IN COMMITTEE

Date adopted	23.6.2010
Result of final vote	+: –: 0:	9 0 0
Members present for the final vote	Luigi Berlinguer, Sebastian Valentin Bodu, Gerald Häfner, Klaus-Heiner Lehne, Bernhard Rapkay, Evelyn Regner, Francesco Enrico Speroni, Zbigniew Ziobro, Tadeusz Zwiefka
Substitute(s) present for the final vote	Vytautas Landsbergis