Opinion of the Advocate General — ECLI:EU:C:2008:369
Date: 2008-06-26
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Privileges and immunities
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Procedure (Art. 234 EC; Statute of the Court of Justice, Art. 23) 2. Privileges and immunities of the European Communities – Members of the European Parliament – Immunity in respect of opinions expressed or votes cast by them in the performance of their duties (Protocol on the Privileges and Immunities of the European Communities, Art. 9) 3. Privileges and immunities of the European Communities – Members of the European Parliament – Immunity in respect of opinions expressed or votes cast by them in the performance of their duties (Art. 10 EC; Protocol on the Privileges and Immunities of the European Communities, Arts 9 and 19; Rules of Procedure of the European Parliament, Rule 6(3)) 1. The first two paragraphs of Article 23 of the Statute of the Court of Justice afford the European Parliament the right to submit its observations on references for preliminary rulings concerning acts adopted ‘jointly’ by the European Parliament and the Council of the European Union. That provision does not explicitly afford the Parliament the right to submit observations in cases such as those concerning the Protocol on the Privileges and Immunities of the European Communities and the Parliament’s Rules of Procedure. Nevertheless, since Article 23 affords the Parliament the right to submit written observations in cases concerning the validity or interpretation of an act for which it is a co-legislator, such a right must, a fortiori, be afforded to it where a reference for a preliminary ruling concerns the interpretation of an act adopted by that institution of which it is the sole author, such as the Rules of Procedure. (see paras 21-22) 2. Article 9 of the Protocol on the Privileges and Immunities of the European Communities sets out the principle of immunity of Members of the European Parliament in respect of opinions expressed or votes cast by them in the performance of their duties. As that article makes no reference to national rights, the scope of that immunity must be established on the basis of Community law alone. Such immunity must, to the extent that it seeks to protect the freedom of expression and independence of Members of the European Parliament, 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. Therefore, in an action brought against a Member of the European Parliament in respect of opinions he has expressed, the national court is obliged to dismiss the action brought against the Member concerned where it considers that that Member enjoys the immunity provided for in Article 9 of that protocol. Both that court and the European Parliament are bound to respect that provision. As that immunity cannot be waived by the European Parliament, it is for the national court to dismiss the action in question. (see paras 26-27, 44, 46, operative part) 3. The Community rules relating to the immunity of Members of the European Parliament must be interpreted as meaning that, in an action for damages brought against a Member of the European Parliament in respect of opinions he has expressed, the national court which has to rule on such an action is not obliged to request the Parliament to give a decision on whether the conditions for the immunity provided for in Article 9 of the Protocol on Privileges and Immunities of the European Communities are met where it has received no information regarding a request by that Member to the European Parliament seeking defence of that immunity. The Protocol does not confer on the Parliament the power to determine, in cases of legal proceedings against one of its Members in respect of opinions expressed or votes cast by him, whether the conditions for applying that immunity are met. Therefore, such an assessment is within the exclusive jurisdiction of the national courts which are called on to apply such a provision, and which have no choice but to give due effect to that immunity if they find that the opinions or votes at issue were expressed or cast in the exercise of parliamentary duties. In addition, even if the Parliament, pursuant to a request from the Member concerned, adopts, on the basis of its rules of procedure, a decision to defend immunity, that constitutes an opinion which does not have binding effect with regard to national judicial authorities. However, where the national court is informed of the fact that that Member has made a request to the European Parliament for defence of that immunity, within the meaning of Rule 6(3) of the Rules of Procedure of the Parliament, it must stay the judicial proceedings and request the Parliament to issue its opinion as soon as possible. The duty of sincere cooperation between the European institutions and the national authorities, enshrined in Article 10 EC and reiterated in Article 19 of the Protocol, which applies both to the national judicial authorities of Member States acting within their jurisdictions and to the Community institutions, and which is of particular importance where that cooperation involves the judicial authorities of a Member State who are responsible for ensuring respect for Community law in the national legal system, applies in the context of disputes such as those in the main proceedings. The European Parliament and the national judicial authorities must therefore cooperate in order to avoid any conflict in the interpretation and application of the provisions of the Protocol. (see paras 32-33, 39, 41-42, 46, operative part)