61963J0101

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1 . COMMON INSTITUTIONS - PROVISIONS AFFECTING THEM - INTERPRETATION

2 . EUROPEAN ASSEMBLY - SESSION - CONCEPT

( ECSC TREATY, ARTICLE 22; EEC TREATY, ARTICLE 139; EAEC TREATY, ARTICLE 109 )

1 . THE PROVISIONS OF THE TREATIES AND THE PROTOCOLS WHICH APPLY TO A COMMON INSTITUTION MUST BE INTERPRETED TOGETHER AND, IF NECESSARY, RECONCILED .

2 . SUBJECT TO THE DATES OF OPENING AND CLOSURE OF THE ANNUAL SESSION DETERMINED BY ARTICLE 22 OF THE ECSC TREATY, THE EUROPEAN ASSEMBLY MUST BE CONSIDERED IN SESSION, EVEN IF IT IS NOT ACTUALLY SITTING, UP TO THE TIME OF THE CLOSURE OF THE ANNUAL OR EXTRAORDINARY SESSIONS .

IN CASE 101/63

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY AND ARTICLE 150 OF THE TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY BY THE TRIBUNAL D'ARRONDISSEMENT, LUXEMBOURG, ( CHAMBRE CORRECTIONNELLE ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ALBERT WAGNER, A TRADESMAN, RESIDING AT ESCH-SUR-ALZETTE AND ASSISTED BY ANDRE ELVINGER, ADVOCATE OF THE LUXEMBOURG BAR, PLAINTIFF,

AND

JEAN FOHRMANN, A DIRECTOR, RESIDING AT DUDELANGE, AND ANTOINE KRIER, PRESIDENT AND SECRETARY-GENERAL OF THE LETZEBURGER ARBECHTERVERBAND, RESIDING AT ESCH-SUR-ALZETTE, BOTH ASSISTED BY JEAN GREMLING, ADVOCATE OF THE LUXEMBOURG BAR, DEFENDANTS,

ON THE INTERPRETATION OF THE TREATIES AND PROVISIONS LAYING DOWN THE DURATION OF THE SESSIONS OF THE EUROPEAN PARLIAMENTARY ASSEMBLY TO RESOLVE THE QUESTION OF THE PARLIAMENTARY IMMUNITY OF MESSRS FOHRMANN AND KRIER ON 6 NOVEMBER 1962;

I - PROCEDURE

THE PLAINTIFF IN THE MAIN ACTION SUBMITS THAT THE TRIBUNAL D'ARRONDISSEMENT OF LUXEMBOURG REFERRED THE PARTIES TO THE COURT OF JUSTICE, WHEREAS ACCORDING TO ARTICLE 177 OF THE EEC TREATY AND ARTICLE 150 OF THE EAEC TREATY IT SHOULD ITSELF HAVE REFERRED THE MATTER TO THIS COURT .

HOWEVER, THE AFOREMENTIONED ARTICLES WERE IN THIS INSTANCE SATISFIED BY THE DIRECT TRANSMISSION OF THE REQUEST AND THE FILE OF THE CASE BY THE CHIEF REGISTRAR OF THE TRIBUNAL D'ARRONDISSEMENT TO THE REGISTRAR OF THIS COURT .

THEREFORE THE REFERENCE MUST BE CONSIDERED AS PROPER .

II - THE QUESTION PUT

A - THE COURT'S JURISDICTION

THE TREATY ESTABLISHING THE ECSC DID NOT LAY DOWN THE PROCEDURE FOR REFERENCE TO THIS COURT AS WAS LATER DONE BY THE TREATIES ESTABLISHING THE EEC AND THE EAEC .

THERE APPEARS TO BE NO POINT IN RAISING THE MATTER OF THE POSSIBLE LACK OF JURISDICTION OF THE COURT, WHICH IN ANY EVENT HAS NOT BEEN QUESTIONED IN THIS CASE, TO GIVE A PRELIMINARY RULING ON THE QUESTION PUT IN SO FAR AS IT CONCERNS THE INTERPRETATION OF THE TREATY ESTABLISHING THE ECSC . ARTICLE 9 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC IS IDENTICAL TO ARTICLES 9 OF THE PROTOCOLS ON THE PRIVILEGES AND IMMUNITIES OF THE EEC AND THE EAEC AND, AS IT APPLIES TO AN INSTITUTION COMMON TO THE THREE COMMUNITIES, IT MUST BE INTERPRETED JOINTLY WITH ARTICLES 22 OF THE ECSC TREATY, 139 OF THE EEC TREATY AND 109 OF THE EAEC TREATY .

IN THE SECOND PLACE, THE REQUEST FOR WITHDRAWAL OF PARLIAMENTARY IMMUNITY MADE ON 16 SEPTEMBER 1963 TO THE EUROPEAN ASSEMBLY BY THE FOREIGN MINISTER OF THE GRAND DUCHY OF LUXEMBOURG HAS NOT DISSEISED THIS COURT OF THE QUESTION PUT BY THE TRIBUNAL D'ARRONDISSEMENT OF LUXEMBOURG .

IN THE THIRD PLACE, IT IS FOR THE COURT TO EXAMINE THE GROUNDS AND THE OPERATIVE PART OF THE JUDGMENT DELIVERED ON 29 MAY 1963 BY THE TRIBUNAL D'ARRONDISSEMENT OF LUXEMBOURG SO AS TO ESTABLISH THE EXACT SCOPE OF THE QUESTION PUT . THIS CONCERNS THE DURATION OF THE SESSIONS OF THE EUROPEAN ASSEMBLY UNDER ARTICLES 9 OF EACH OF THE PROTOCOLS ON THE PRIVILEGES AND IMMUNITIES OF THE ECSC, THE EEC AND THE EAEC . AS THESE PROVISIONS ARE IDENTICAL, THEY MUST BE INTERPRETED JOINTLY WITHOUT ITS BEING NECESSARY TO DISTINGUISH BETWEEN ARTICLE 9 OF THE ECSC PROTOCOL AND ARTICLES 9 OF THE EEC AND THE EAEC PROTOCOLS . THIS INTERPRETATION IS WITHIN THE JURISDICTION OF THE COURT UNDER ARTICLE 177 OF THE EEC TREATY AND ARTICLE 150 OF THE EAEC TREATY .

THIS REQUEST FOR INTERPRETATION IS CONTAINED BY IMPLICATION IN THE QUESTION PUT BY THE TRIBUNAL D'ARRONDISSEMENT OF LUXEMBOURG, WHICH INVOLVES NOT ONLY THE INTERPRETATION OF THE PROVISIONS OF THE AFOREMENTIONED TREATIES BUT ALL OTHER PROVISIONS WHICH MIGHT BRING ABOUT THE SOLUTION OF THE QUESTION IN DISPUTE .

B - ON THE SUBSTANCE OF THE CASE

THE EUROPEAN ASSEMBLY IS AN INSTITUTION COMMON TO THE THREE COMMUNITIES . IT IS THEREFORE NECESSARY TO RECONCILE, ON THE ONE HAND, ARTICLE 22 OF THE ECSC TREATY WITH, ON THE OTHER HAND, ARTICLES 139 OF THE EEC TREATY AND 109 OF THE EAEC TREATY, THE TENOR OF THESE LATTER TWO ARTICLES BEING IDENTICAL .

IN THE ECSC TREATY, IN FACT, THE MEETING WITHOUT THE REQUIREMENT OF BEING CONVENED IS FIXED AT A DATE DIFFERENT FROM THAT CONTAINED IN THE EEC AND EAEC TREATIES . FURTHERMORE, ALTHOUGH THE ECSC TREATY PROVIDES A TIME LIMIT FOR THE ANNUAL SESSION, THE OTHER TWO TREATIES CONTAIN NO SPECIFIC PROVISION ON THIS SUBJECT .

UNDER ARTICLES 22 OF THE ECSC TREATY, 139 OF THE EEC TREATY AND 109 OF THE EAEC TREATY, THE ASSEMBLY HOLDS AN ' ANNUAL SESSION ' ON THE SECOND TUESDAY IN MAY ENDING AT THE END OF THE ECSC FINANCIAL YEAR AT THE LATEST, THAT IS, 30 JUNE, AND ANOTHER ANNUAL SESSION BEGINNING ON THE THIRD TUESDAY IN OCTOBER .

IN THE INTERVALS BETWEEN THESE ' ANNUAL SESSIONS ', THE ASSEMBLY MAY ALSO, UNDER THE SAME ARTICLES, MEET IN ' EXTRAORDINARY SESSION ' FOR ONE OR OTHER OF THE THREE COMMUNITIES, AT THE REQUEST OF THE MAJORITY OF ITS MEMBERS, OF THE HIGH AUTHORITY, OF THE COUNCILS OR OF THE COMMISSIONS .

THE CONCEPT OF ' ANNUAL SESSIONS ' MUST THUS BE REGARDED IN SUCH A WAY AS TO RECONCILE IT WITH THE POSSIBILITY OF EXTRAORDINARY SESSIONS, WHICH NO PROVISION PROHIBITS FROM BEING FIXED A LONG TIME IN ADVANCE .

THE FACT THAT ARTICLE 22 OF THE ECSC TREATY STATES THAT THE ANNUAL SESSION OPENS ON THE SECOND TUESDAY IN MAY AND ENDS AT THE LATEST AT THE END OF THE CURRENT ECSC FINANCIAL YEAR IMPLIES THAT THE SESSION IN QUESTION ENDS AT THE LATEST ON 30 JUNE, WHICH IS THE END OF THE ECSC FINANCIAL YEAR .

AS A RESULT, HOWEVER, OF THE ABSENCE OF EQUIVALENT PROVISIONS IN ARTICLES 139 OF THE EEC TREATY AND 109 OF THE EAEC TREATY, THE ANNUAL SESSION WHICH OPENS ON THE THIRD TUESDAY IN OCTOBER, UNDER THE ARTICLES IN QUESTION, MUST BE CONSIDERED AS IN PROGRESS ON 6 NOVEMBER, UNLESS CLOSED BEFORE THAT DATE .

IN THE ABSENCE OF ANY PROVISION, AN IDENTIFICATION OF THE EXPRESSION ' ADJOURNMENT ' WITH THE CONCEPT OF CLOSURE WOULD BE A DISTORTION OF THE MEANING OF THE FORMER .

THE RESULT OF THE FOREGOING CONSIDERATIONS IS THAT, SUBJECT TO THE DATES OF OPENING AND CLOSURE OF THE ANNUAL SESSION DETERMINED BY ARTICLE 22 OF THE ECSC TREATY, THE EUROPEAN ASSEMBLY MUST BE CONSIDERED AS BEING IN SESSION, EVEN IF IT IS NOT IN FACT SITTING, UNTIL THE MOMENT OF CLOSURE OF THE ANNUAL OR EXTRAORDINARY SESSIONS .

THE COSTS INCURRED BY THE BELGIAN GOVERNMENT AND THE COMMISSIONS OF THE EEC AND THE EAEC, WHICH SUBMITTED THEIR OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE TRIBUNAL D'ARRONDISSEMENT OF LUXEMBOURG, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT FOR A PRELIMINARY RULING BY THE TRIBUNAL D'ARRONDISSEMENT OF LUXEMBOURG, CHAMBRE CORRECTIONNELLE, BY ORDER OF THAT COURT DATED 29 MAY 1963, HEREBY RULES :

1 . THE WORDS ' DURING THE SESSIONS OF THE ASSEMBLY ' IN ARTICLE 9 OF EACH OF THE THREE PROTOCOLS ON THE PRIVILEGES AND IMMUNITIES MUST BE INTERPRETED AS FOLLOWS : SUBJECT TO THE DATES OF OPENING AND CLOSURE OF THE ANNUAL SESSION DETERMINED BY ARTICLE 22 OF THE ECSC TREATY, THE EUROPEAN ASSEMBLY MUST BE CONSIDERED IN SESSION, EVEN IF IT IS NOT ACTUALLY SITTING, UP TO THE TIME OF THE CLOSURE OF THE ANNUAL OR EXTRAORDINARY SESSIONS .

2 . IT IS FOR THE TRIBUNAL D'ARRONDISSEMENT OF LUXEMBOURG ( CHAMBRE CORRECTIONNELLE ) TO DECIDE ON THE COSTS IN THIS ACTION .