31.1.2018   

EN

Official Journal of the European Union

C 35/150

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having regard to the request for waiver of the immunity of Florian Philippot, forwarded on 2 September 2015 by the Ministry of Justice of the French Republic in connection with a defamation case pending before the Nanterre High Court (Ref. No JIJI215000010) and announced in plenary on 16 September 2015,

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having heard Florian Philippot in accordance with Rule 9(5) of its Rules of Procedure,

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having regard to Articles 8 and 9 of Protocol No 7 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,

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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),

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having regard to Article 26 of the Constitution of the French Republic,

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having regard to Rule 5(2), Rule 6(1) and Rule 9 of its Rules of Procedure,

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having regard to the report of the Committee on Legal Affairs (A8-0014/2016),

A.

whereas a French court has asked for the immunity of Florian Philippot to be waived for the purposes of criminal proceedings instituted by a country outside the European Union;

B.

whereas Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union stipulates that 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;

C.

whereas, furthermore, Article 9 of that Protocol provides for Members of the European Parliament to enjoy, in the territory of their own state, the immunities accorded to members of the parliament of that state;

D.

whereas Article 26 of the French Constitution states that ‘No Member of Parliament shall be prosecuted, investigated, arrested, detained or tried in respect of opinions expressed or votes cast in the performance of his official duties’ and that ‘No member of Parliament shall be arrested for a serious crime or [any] other major offence, nor shall he be subjected to any other custodial or semi-custodial measure’ without the authorisation of the House concerned;

E.

whereas Florian Philippot is accused by the government of a non-Member State, namely Qatar, of having defamed that country by suggesting, in a radio programme broadcast on 9 January 2015 and in a television programme broadcast on 19 January 2015, that Qatar finances terrorism;

F.

whereas both under Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union and under Article 26 of the French Constitution it is prohibited to bring any form of civil or criminal proceedings against members of parliament in respect of opinions expressed in the performance of their duties;

G.

whereas ‘the provisions in the French system which protect the representatives of the people in the performance of their duties date back to 1789, deriving from respect for the expression of the will of the people and the necessity in a democratic State for elected representatives to exercise their mandate freely without fear of legal action or interference from either the executive or the judiciary’ (2);

H.

whereas, for Members of the European Parliament, this absolute immunity implies that opinions cannot be challenged, whether they are expressed during official meetings of Parliament or elsewhere, for example in the media, when there is ‘a link between the opinion expressed and […] parliamentary duties’ (3);

I.

whereas when they publicly express opinions on the foreign policy of the European Union or of non-Member States, Members of the European Parliament are acting within the scope of their official duties;

J.

whereas, that being the case, the conditions for the waiver of Florian Philippot’s immunity are not met;

K.

whereas if Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union were deemed not to be applicable to this case — although that would not in fact be true — the request from the French authorities would have to be treated as a request under Article 9 of that Protocol, in conjunction with the second paragraph of Article 26 of the French Constitution, that is to say, as a request for authorisation to arrest Florian Philippot ‘for a serious crime or [some] other major offence’ or to subject him ‘to any other custodial or semi-custodial measure’;

L.

whereas in general terms the purpose of parliamentary immunity is to allow the legislature to carry out its constitutional tasks without improper interference from outside, especially from the executive (4); whereas that principle plainly holds equally good when criminal proceedings for defamation are instituted against a Member by a country outside the European Union;

M.

whereas there is therefore no need to consider the matter of fumus persecutionis, that is to say, whether the intention underlying the criminal proceedings is to harm the Member’s political activity;

1.

Decides not to waive the immunity of Florian Philippot;

2.

Instructs its President to forward this decision and the report of its committee responsible immediately to the competent authority of the French Republic and to Florian Philippot.