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

24.3.2015 - (2014/2096(IMM))

Committee on Legal Affairs
Rapporteur: Andrzej Duda

Procedure : 2014/2096(IMM)
Document stages in plenary
Document selected :  
A8-0058/2015
Texts tabled :
A8-0058/2015
Debates :
Texts adopted :

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

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

(2014/2096(IMM))

The European Parliament,

–       having regard to the request by Gabriele Albertini of 28 July 2014, announced in plenary on 16 September 2014, for defence of his immunity in connection with criminal proceedings pending before the Court of Brescia (Italy) (ref. 7061/13 R.G.),

–       having regard to the request by Gabriele Albertini of 30 July 2014, announced in plenary on 16 September 2014, for reconsideration of the request for defence of his immunity in connection with civil proceedings pending before the Court of Brescia (Italy) (ref. 17851/12 R.G.),

–       having regard to the request by Gabriele Albertini received on 17 July 2013, announced in plenary on 9 September 2013, for reconsideration of the request for defence of his immunity in connection with the abovementioned civil proceedings,

–       having heard Gabriele Albertini in accordance with Rule 9(5) of its Rules of Procedure,

–       having regard to Articles 8 and 9 of Protocol No 7 on the Privileges and Immunities of the European Union, and to 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, 19 March 2010, 6 September 2011 and 17 January 2013[1],

–       having regard to its decision of 21 May 2013 on the request for defence of the immunity and privileges of Gabriele Albertini[2],

–       having regard to its decision of 24 February 2014 on the request for reconsideration of the request for defence of the immunity of Gabriele Albertini[3],

–       having regard to Rule 5(2) and Rules 7 and 9 of its Rules of Procedure,

–       having regard to the report of the Committee on Legal Affairs (A8-0058/2015),

A.     whereas a former Member of the European Parliament, Gabriele Albertini, has requested the defence of his parliamentary immunity in connection with criminal proceedings pending before an Italian court; whereas he has also requested the reconsideration of the request for defence of his immunity in connection with civil proceedings pending before the same court;

B.     whereas the request for defence relates to the allegedly defamatory opinions expressed by Mr Albertini in a written question that he put to the Italian Minister of Justice on 22 October 2012 with a view to establishing whether the conduct of Alfredo Robledo, a prosecutor who had initiated an investigation into facts involving the municipality of Milan and relating to Mr Albertini’s functions as mayor of that city back in 2005, constituted a breach of professional ethics and was hence subject to disciplinary proceedings;

C.     whereas the request for reconsideration relates to a writ of summons filed against Mr Albertini before the Court of Brescia by Mr Robledo, in connection with allegedly defamatory statements made by Mr Albertini in a first interview published by the Italian newspaper Il Sole 24 Ore on 26 October 2011 and in a second interview published by the Italian newspaper Corriere della Sera on 19 February 2012;

D.     whereas Mr Albertini used very similar, if not altogether identical, expressions in both the written question and the interviews, and whereas the substance of the two sets of proceedings, as also confirmed by Mr Albertini in writing and at his hearing, is the same; whereas the same decision as to whether or not to defend Mr Albertini’s immunity must consequently be taken in respect of both sets of proceedings;

E.     whereas both the written question and the interviews took place at a time when Mr Albertini was a Member of the European Parliament;

F.     whereas, according to Article 8 of the Protocol on the Privileges and Immunities of the European Union, 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;

G.     whereas, in accordance with Parliament’s established practice, the fact that legal proceedings are of a civil- or administrative-law nature, or contain certain aspects falling under civil or administrative law, does not per se prevent the immunity afforded by that article from applying;

H.     whereas, in its decision of 21 May 2013, Parliament considered that the facts of the case, as manifested in the writ of summons and in Mr Albertini’s oral explanation to the Committee on Legal Affairs, indicated that the statements made did not have a direct and obvious connection with Mr Albertini’s performance of his duties as a Member of the European Parliament; whereas Parliament decided, therefore, not to defend Mr Albertini’s immunity;

I.      whereas, by letter received on 17 July 2013, Mr Albertini requested reconsideration of the decision of 21 May 2013 not to defend his immunity; whereas by decision of 24 February 2014, Parliament expressed its agreement with the recommendation of the Committee on Legal Affairs not to act on this request in the light of Parliament’s earlier decision of 21 May 2013 not to defend Mr Albertini’s immunity;

J.      whereas, by letter of 30 July 2014, Mr Albertini requested reconsideration of the decision of 21 May 2013 for the second time; whereas, in accordance with Rule 9(5) of the Rules of Procedure, Mr Albertini has provided supplementary documents relating to his case on several occasions between September 2014 and March 2015;

K.     whereas the Court of Justice has held that a statement made by a Member beyond the precincts of the European Parliament may constitute an opinion expressed in the performance of his or her duties as referred to in Article 8 of the Protocol, taking the view that it is not the place where a statement is made that matters, but the nature and content of the statement[4]; whereas, however, the connection between the opinion expressed and the Member’s parliamentary duties must be direct and obvious[5];

L.     whereas the new supporting documents submitted by Mr Albertini fail to shed light on the link between the statements he made and his duties as a Member of the European Parliament; whereas, rather, they provide elements which essentially relate to the most recent stages of the legal proceedings in question, to facts which occurred after the interviews and the written question and to their coverage in the press; whereas these elements are supposed to prove that the expressions used are not defamatory in nature and that both civil and criminal proceedings have been initiated out of personal and political hostility towards Mr Albertini;

M.    whereas, however, pursuant to Rule 9(7) of the Rules of Procedure, decisions on immunity may 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, the committee responsible acquires detailed knowledge of the facts of the case; whereas, in accordance with Parliament’s established practice, this provision also applies to civil proceedings;

N.     whereas the doctrine of fumus persecutionis – that is, a sufficiently serious and precise suspicion that the case has been brought with the intention of causing political damage to the Member concerned – only applies to immunity cases falling within Article 9 of the Protocol, namely to legal proceedings relating to offences other than those perpetrated by means of opinions expressed or votes cast, which, in turn, are solely covered by Article 8 of the Protocol[6]; whereas since Mr Albertini is a former Member of the European Parliament, Article 9 is no longer applicable to his case;

O.     whereas, in any event, the present case arises from opinions expressed by a Member, and whereas, in this context, the determining criterion for the enjoyment of immunity under Article 8 of the Protocol is evidence of a direct and obvious link between the opinions in question and the performance of parliamentary duties;

P.     whereas no evidence of such a link has been provided in the case in point; whereas, therefore, the earlier conclusion – endorsed twice by Parliament – that Mr Albertini, in making the statements in question, was not acting in the performance of his duties as a Member of the European Parliament continues to hold;

1.      Upholds its decisions of 21 May 2013 and of 24 February 2014, respectively, not to defend the immunity and privileges of Gabriele Albertini and not to act on his request for reconsideration as regards the civil proceedings instituted against him;

2.      Decides, on the same grounds, not to defend the immunity and privileges of Gabriele Albertini as regards the criminal proceedings instituted against him;

3.      Instructs its President to forward this decision and the report of its committee responsible immediately to the competent authority of the Italian Republic and to Gabriele Albertini.

  • [1]  Judgment in Case 101/63 Wagner v Fohrmann and Krier, EU:C:1964:28; judgment in Case 149/85 Wybot v Faure and others, EU:C:1986:310; judgment in Case T-345/05 Mote v Parliament, EU:T:2008:440; judgment in Joined Cases C-200/07 and C-201/07 Marr v De Gregorio and Clemente, EU:C:2008:579; judgment in Case T‑42/06 Gollnisch v Parliament, EU:T:2010:102; judgment in Case C-163/10 Patriciello, EU:C:2011:543; judgment in Joined Cases T-346/11 and T-347/11 Gollnisch v Parliament, EU:T:2013:23.
  • [2]  Texts adopted, P7_TA(2013)0195.
  • [3]  Minutes of 24 February 2014, item 7.
  • [4]  Judgment in Patriciello, cited above, paragraph 30.
  • [5]  Judgment in Patriciello, cited above, paragraph 35.
  • [6]  Judgment in Marra, cited above, paragraph 45.

EXPLANATORY STATEMENT

1. Background

At the sitting of 10 September 2012 the President announced that on 19 July 2012 he had received a request from Mr Gabriele Albertini concerning the defence of his parliamentary immunity in connection with the civil proceedings described hereinafter. The President referred the request to the Committee on Legal Affairs and Mr Gabriele Albertini was heard by the Committee on 17 December 2012.

By writ of summons of 12 October 2012 Mr Albertini was summoned before the Court of Brescia by Mr Alfredo Robledo in connection with the statements made by Mr Albertini in a first interview published by the Italian newspaper Il Sole 24 Ore on 26 October 2011 and in a second interview published by the Italian newspaper Corriere della Sera on 19 February 2012.

At the time of facts, the claimant was a prosecutor at the Court of Milan who sought to claim compensation for the damage caused to his personal and professional reputation, honour and status by a series of statements, reported in the two interviews, concerning criminal investigations for which he was responsible (the “derivatives trial”).

In the two interviews in question, Mr Gabriele Albertini states that the investigations are arbitrary. They simply prefer to focus on this matter rather than looking into other issues. And this is not the first time this has happened. The public prosecutor, – Alfredo Robledo –who was so keen to bring this matter to court (this is the public prosecutor who brought the regrettable and irregular proceedings in the blank amendments case, which lasted seven years and ended with a total acquittal), refused for six years to look into the purchase of Serravalle by Filippo Penati...This trial will lead nowhere. It may, perhaps, serve to further the career of a certain public prosecutor, or, as we have seen in the past, help him to enter politics...The investigation was initiated by a public prosecutor who questioned councillors and senior municipal officials about blank amendments at night, using Gestapo-style methods, only for it then to be found that it was not an offence.

In its report of 29 April 2013, the Committee on Legal Affairs considered that the statements made by Mr Albertini did not have a direct and obvious connection with the performance of his duties as a Member of the European Parliament. In the Committee’s view, those statements concern the behaviour of a particular prosecutor in the context of investigations led by him into the “derivatives trial”. Those statements constitute subjective appraisals and thus opinions in the sense of Article 8 of the Protocol. However, the “derivatives trial” concerns facts dating back to 2005 and relating to the functions of Mr Albertini as mayor of the city of Milan. The European Parliament is not dealing with these facts in any respect, nor with the methods of investigation applied by the investigator concerned.

Therefore, the Committee concluded that the opinion expressed by Mr Albertini appeared to be rather far removed from his duties of a Member of the European Parliament and hardly capable of representing a direct link with a general interest of concern to citizens. Moreover, Mr Albertini made the two statements not on an occasion on which he was invited in his capacity as Member of the European Parliament but when he was interviewed as former mayor of the city of Milan. Even if such a link could be demonstrated, it would at least not be “obvious” in the sense of the relevant case-law[1].

In conclusion, the Committee recommended that Mr Albertini’s immunity should not be defended. By decision of 21 May 2013, Parliament endorsed that recommendation and rejected Mr Albertini’s request that his immunity be defended[2].

By letter received on 17 July 2013 Mr Albertini provided further documents and asked for reconsideration of decision of 21 May 2013. On 10 February 2014, the Committee on Legal Affairs concluded that there were no reasons to reopen the case, for no new evidence had actually been submitted. At the plenary sitting of 24 February 2014, Parliament expressed its agreement with the recommendation, made by the Committee on Legal Affairs, not to act on this request.

By letter of 30 July 2014, Mr Albertini requested reconsideration of the decision of 21 May 2013 for the second time.

By letter of 28 July 2014 he had also requested the defence of his immunity in relation to criminal proceedings instituted against him before the Court of Brescia (Italy) in connection with the allegedly defamatory opinions expressed by him in a written question that he had put to the Italian Minister of Justice, who is responsible for disciplinary sanctions on judges and prosecutors, on 22 October 2012. In his written question, Mr Albertini requested the Minister to establish whether Mr Robledo’s conduct in the above-mentioned investigations constituted a breach of professional ethics and was hence subject to disciplinary proceedings.

Mr Albertini is accused of aggravated defamation since – in the words of the Public Prosecutor’s Office of Brescia (statement on the conclusion of the investigations of 26 June 2014) – he made claims in respect of Mr Alfredo Robledo – the deputy prosecutor at the Milan Public Prosecutors Office – concerning a series of events, inferring that he had repeatedly committed offences in the course of the investigations that had been entrusted to him including, inter alia, abuse of office, failure to act, use of violence and perverting the course of justice.

At the plenary sitting of 16 September 2014 the President announced, under Rule 9(1) of the Rules of Procedure, that he had received Mr Albertini’s request for the defence of his parliamentary immunity. The President referred this request, along with the new request for reconsideration, to the Committee on Legal Affairs under Rule 9(1). Mr Albertini was heard by the Committee on 24 February 2015 in accordance with Rule 9(5) and provided supplementary documents on his case on several occasion between September 2014 and March 2015.

2. Law and procedure on the immunity of Members of the European Parliament

Articles 8 and 9 of the Protocol (No 7) to the TFEU on the Privileges and Immunities of the European Union read as follows:

Article 8

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 9

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.

Articles 7 and 9 of the Rules of Procedure read as follows:

Rule 7

Defence of privileges and immunity

1. In cases where the privileges and immunities of a Member or former Member are alleged to have been breached by the authorities of a Member State, a request for a Parliament decision as to whether there has, in fact, been a breach of those privileges and immunities may be made in accordance with Rule 9(1).

2. In particular, such a request for the defence of privileges and immunities may be made if it is considered that the circumstances constitute an administrative or other restriction on the free movement of Members travelling to or from the place of meeting of Parliament or on an opinion expressed or a vote cast in the performance of their duties, or that they fall within the scope of Article 9 of the Protocol on the Privileges and Immunities of the European Union.

3. A request for the defence of the privileges and immunities of a Member shall not be admissible if a request for the waiver or defence of that Members immunity has already been received in respect of the same legal proceedings, whether or not a decision was taken at that time.

4. No further consideration shall be given to a request for the defence of the privileges and immunities of a Member if a request for the waiver of that Members immunity is received in respect of the same legal proceedings.

5. In cases where a decision has been taken not to defend the privileges and immunities of a Member, the Member may make a request for reconsideration of the decision, submitting new evidence. The request for reconsideration shall be inadmissible if proceedings have been instituted against the decision under Article 263 of the Treaty on the Functioning of the European Union, or if the President considers that the new evidence submitted is not sufficiently substantiated to warrant reconsideration.

Rule 9

Procedures on immunity

1. Any request addressed to the President by a competent authority of a Member State that the immunity of a Member be waived, or by a Member or a former Member that privileges and immunities be defended, shall be announced in Parliament and referred to the committee responsible.

The Member or former Member may be represented by another Member. The request may not be made by another Member without the agreement of the Member concerned.

2. The committee shall consider without delay, but having regard to their relative complexity, requests for the waiver of immunity or requests for the defence of privileges and immunities.

3. The committee shall make a proposal for a reasoned decision which recommends the adoption or rejection of the request for the waiver of immunity or for the defence of privileges and immunities.

4. The committee may ask the authority concerned to provide any information or explanation which the committee deems necessary in order for it to form an opinion on whether immunity should be waived or defended.

5. The Member concerned shall be given an opportunity to be heard, may present any

documents or other written evidence deemed by that Member to be relevant and may be represented by another Member.

The Member shall not be present during debates on the request for waiver or defence of his or her immunity, except for the hearing itself.

The chair of the committee shall invite the Member to be heard, indicating a date and time. The Member may renounce the right to be heard.

If the Member fails to attend the hearing pursuant to that invitation, he or she shall be deemed to have renounced the right to be heard, unless he or she has asked to be excused from being heard on the date and at the time proposed, giving reasons. The chair of the committee shall rule on whether such a request to be excused is to be accepted in view of the reasons given, and no appeals shall be permitted on this point.

If the chair of the committee grants the request to be excused, he or she shall invite the Member to be heard at a new date and time. If the Member fails to comply with the second invitation to be heard, the procedure shall continue without the Member having been heard. No further requests to be excused, or to be heard, may then be accepted.

(...)

7. The committee may offer a reasoned opinion as to the competence of the authority in question and 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.

(...)

3. Justification for the proposed decision

a) Generalities

The facts in question qualify for the application of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union, under which 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. Article 8 of the Protocol also applies to former Members, as is the case of Mr Albertini, for statements made at a time when they were Members of the European Parliament.

In order to enjoy immunity under Article 8 of the Protocol, an opinion must have been expressed by a Member of the European Parliament in the performance of [his or her] duties, thus entailing the requirement of a link between the opinion expressed and the parliamentary duties[3].

As the Court of Justice has held, the scope of the absolute immunity referred to in Article 8 must be determined solely pursuant to EU law[4]. The Court has also been adamant that immunity under Article 8 must be considered as an absolute immunity barring any judicial proceedings in respect of an opinion expressed or a vote cast in the exercise of parliamentary duties[5].

In the Court’s view, Article 8 of the Protocol must be interpreted to the effect that, although parliamentary immunity essentially covers statements made within the precincts of the European Parliament, it is not impossible that a statement made beyond those precincts may also amount to an opinion expressed in the performance of parliamentary duties. Whether or not it is such an opinion must therefore be determined having regard to its character and content, not to the place where it was made[6]. The Court, however, has made it clear that the connection between the opinion expressed and parliamentary duties must be direct and obvious[7].

Last but not least, the Court makes a clear distinction between the waiver of immunity, a possibility which is provided for in the Protocol, and the defence of immunity, which, by contrast, is only foreseen in Parliament’s Rules of Procedure. In particular, the Court considers that the Rules of Procedure are rules of internal organisation and cannot grant powers to the Parliament which are not expressly acknowledged by a legislative measure, in this case by the Protocol. It follows that, even if the Parliament, pursuant to a request from the Member concerned, adopts, on the basis of those rules, a decision to defend immunity, that constitutes an opinion which does not have binding effect with regard to national judicial authorities[8].

b) Mr Albertinis new request for reconsideration

Pursuant to Rule 7(5) of Parliament’s Rules of Procedure, in cases where a decision has been taken not to defend the privileges and immunities of a Member, the Member concerned may make a request for reconsideration of the decision, submitting new evidence.

As already mentioned, on 30 July 2014 Mr Albertini submitted a new request for reconsideration of Parliament’s decision of 21 May 2013. The Committee, therefore, considered whether the case should be reopened in the light of the further elements provided by Mr Albertini and, if so, whether he was acting in the performance of his duties as a Member of the European Parliament.

In his request, when referring to the written question that he had put to the Minister of the Justice on 22 October 2012, Mr Albertini declared the following: (...) I had already contacted the Ministry of Justice in my capacity as Member of the European Parliament in a bid to establish whether the conduct of the judge, whom I identified for the first time by name and surname, was legal or ethical. The two interviews [for which he is being sued] were therefore preliminary in nature and directly related to the legitimate inquiries I was conducting as an MEP prior to the civil lawsuit brought against me by Judge Robledo.

The new documents submitted by Mr Albertini are, in summary, meant to prove i) that his allegations about Mr Robledo were right, ii) that, when Mr Albertini made them, he was fully aware of Mr Robledo’s responsibility and iii) that, in any event, the expressions used were not offensive. The first two elements – i.e., the factual truth of what Mr Albertini said and his awareness of Mr Robledo’s guilt – would, under Italian law, rule out the defamatory nature of the statements in question[9]. The third element – i.e. the objective inoffensiveness of Mr Albertini’s words ­– would also prove that no harm has been caused to Mr Robledo’s reputation and that his claim for compensation is, therefore, unfounded.

Last but not least, Mr Albertini relies on a fact which should prove the existence of fumus persecutionis, that is to say, a well-founded suspicion that the legal proceedings in question have been instituted with the intention of causing political damage to him. On 5 February 2015 the Italian High Council of the Judiciary decided to apply a disciplinary sanction to Mr Robledo, namely his transfer from Milan to Turin, followed by the revocation of his prosecuting functions and the allocation of other judicial tasks. Among other things, Mr Robledo is alleged to have unduly obtained confidential documents concerning Mr Albertini’s immunity when Parliament was considering his case during the previous legislative term. Mr Albertini considers that this proves a persecutory attitude on Mr Robledo’s part, which cannot but lead to the defence of his parliamentary immunity.

c) Mr Albertinis request for the defence of his immunity in connection with criminal proceedings

By letter of 28 July 2014 Mr Albertini also requested the defence of his immunity in relation to criminal proceedings instituted against him in connection with the statements made in the written question put to the Minister of Justice.

It appears from the documents submitted to the Committee that both in the written question and in the interviews Mr Albertini used very similar, if not altogether identical, expressions and that, in any event, these expressions are related to the same facts. As also confirmed by Mr Albertini in writing and at his hearing, the substance of the two sets of proceedings is the same. It follows that the same decision has to be taken on whether or not to defend Mr Albertini’s immunity in respect of both civil and criminal proceedings.

d) The possible unfoundedness of the legal proceedings instituted against Mr Albertini

As already said, Mr Albertini provided documents with a view to proving that the legal proceedings instituted against him are unfounded, for in his view there are no elements of a criminal nature in his conduct and, therefore, no criminal offence took place under Italian law. Likewise, Mr Robledo’s claim for compensation should be regarded as unfounded, for no defamation actually occurred.

However, it is not up to the Committee on Legal Affairs to assess whether or not the conditions for a given conduct to be punishable under national criminal law are met. Indeed, pursuant to Rule 9(7) of the Rules of Procedure, the Committee may 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. In accordance with Parliament’s established practice, this provision also applies to civil proceedings.

It follows from Article 8 of the Protocol in conjunction with Rule 9(7) of the Rules of Procedure that none of the elements provided by Mr Albertini in relation to the possible unfoundedness of the legal proceedings in question can be taken into account in order to decide whether or not to defend his immunity.

e) The fumus persecutionis

In his requests, Mr Albertini considers that there is evidence of the existence of fumus persecutionis.

The Committee on Legal Affairs has developed a consistent practice in connection with fumus persecutionis. Indicia of its existence a are, for instance, the fact that a Member stands accused of criminal charges for facts that, in the case of an ordinary citizen, would only lead to administrative proceedings, while the prosecuting authority has attempted to withhold information on the nature of the charges from the Member concerned; the uncertainty as to the status and sources of the evidence adduced as a basis for the charges; the timing of the prosecution (during an electoral campaign or many years after the alleged offences were committed) and the overtly political aims of the private individual bringing the prosecution.

However, the doctrine of fumus persecutionis only applies to immunity cases falling under Article 9 of the Protocol, i.e. cases which are related to offences other than those perpetrated by means of opinions expressed or votes cast, which, in turn, are solely covered by Article 8 of the Protocol[10]. In cases falling within Article 9 immunity may be waived, provided that there is no fumus persecutionis.

However, as Mr Albertini is a former Member of the European Parliament, Article 9 is no longer applicable to his case. Moreover, since the present case arises from opinions expressed by a Member and in this context immunity may never be waived or renounced, what is determining in order to enjoy immunity under Article 8 of the Protocol is evidence of a direct and obvious link between the opinions in question and the performance of parliamentary duties, as the Court made it clear in the above-mentioned case-law.

It follows that, in the framework of absolute immunity under Article 8 of the Protocol, the existence of fumus persecutionis – even if there were abundant evidence of it – is not relevant in order to defend the immunity of a Member who made a statement in the performance of his or her duties, because it is only by virtue of his or her duties that his or her words are covered by immunity.

d) The absence of a direct and obvious link with parliamentary duties

In its decision of 21 May 2013, Parliament considered that the facts of the case indicated that the statements made did not have a direct and obvious connection with Mr Albertini’s performance of his duties as a Member of the European Parliament. In its decision of 24 February 2014, Parliament upheld this conclusion.

The supporting documents newly submitted by Mr Albertini fail to shed light on the link between the statements he made and his duties as a Member of the European Parliament. In particular, the argument that the legitimacy of his statements to the press is rooted in his later inquiry activity, namely in a question which he put to the Minister of Justice almost one year after his first interview, is not convincing and would not suffice, therefore, to overturn Parliament’s earlier decisions. On the other hand, as Mr Albertini himself has repeatedly admitted, the expressions used in his written question to the Minister coincide with those used in his earlier interviews. In any event, there is no doubt that on both occasions he was assessing the same facts dating back to 2005 and relating to his functions as mayor of the city of Milan. It follows that, similar to those made in the interviews, the statements made in the written question appear to be rather far removed from Mr Albertini’s duties of a Member of the European Parliament.

As already mentioned, the bulk of the documents submitted is supposed to prove that the expressions used have no defamatory nature and that both civil and criminal proceedings have been initiated out of personal and political hostility towards Mr Albertini. However, for the reasons set out above, this cannot be taken into account.

Since no evidence of a direct and obvious link with his parliamentary duties has been provided, the earlier conclusion – endorsed twice by Parliament – remains that Mr Albertini, in making the statements in question, was not acting in the performance of his duties as a Member of the European Parliament.

4. Conclusion

In light of the foregoing and pursuant to Article 9(3) of the Rules of Procedure, after considering the reasons for and against defending the Member’s immunity, the Committee on Legal Affairs recommends that the European Parliament should uphold its decisions of 21 May 2013 and of 24 February 2014, respectively not to defend the immunity and privileges of Gabriele Albertini and not to act on his request for reconsideration as regards the civil proceedings instituted against him.

On the same grounds, the Committee on Legal Affairs recommends that the European Parliament should not to defend the immunity and privileges of Gabriele Albertini as regards the criminal proceedings instituted against him.

RESULT OF FINAL VOTE IN COMMITTEE

Date adopted

24.3.2015

 

 

 

Result of final vote

+:

–:

0:

19

4

0

Members present for the final vote

Joëlle Bergeron, Marie-Christine Boutonnet, Jean-Marie Cavada, Kostas Chrysogonos, Therese Comodini Cachia, Mady Delvaux, Andrzej Duda, Laura Ferrara, Enrico Gasbarra, Mary Honeyball, Dietmar Köster, Gilles Lebreton, António Marinho e Pinto, Jiří Maštálka, Emil Radev, Evelyn Regner, Pavel Svoboda, Axel Voss, Tadeusz Zwiefka

Substitutes present for the final vote

Mario Borghezio, Daniel Buda, Pascal Durand, Jytte Guteland, Heidi Hautala, Victor Negrescu, Virginie Rozière, Giovanni Toti