Opinion of Mr Advocate General Jacobs delivered on 8 February 1990. - Jean-Marie Le Pen and the Front national v Detlef Puhl and others. - Reference for a preliminary ruling: Cour d'appel de Colmar - France. - Protocol on the Privileges and Immunities of the European Communities - Immunity of members of the European Parliament - Jurisdiction of the Court. - Case C-201/89.



European Court reports 1990 Page I-01183



Opinion of the Advocate-General

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My Lords,

1 . The issue in this case is whether this Court or a French court has jurisdiction over allegedly tortious acts committed on the premises of the European Parliament in Strasbourg .

2 . The history of the case goes back to 1984 when, at the instigation of its Socialist Group, the European Parliament set up a committee of inquiry into the rise of fascism and racism in Europe . An application by the Group of the European Right, represented by its President, Jean-Marie Le Pen, for the annulment of the decision instituting the committee was declared inadmissible by Order of the Court of 4 June 1986 in Case 78/85 Group of the European Right v Parliament (( 1986 )) ECR 1753 . In the light of the report of the committee, the European Parliament, together with the Council, the Representatives of the Member States meeting within the Council, and the Commission, on 11 June 1986 adopted a declaration against racism and xenophobia ( Official Journal 1986, C 158, p . 1 ).

3 . With a view to publicizing that declaration and the work of the parliamentary committee which preceded it, the Socialist Group commissioned a German journalist, Mr Detlef Puhl, to write a pamphlet which was entitled "Gegen Faschismus und Rassismus in Europa ". A translation was made into French and entitled "Non au racisme et au fascisme en Europe ". The German version contained an introduction by Mr Rudi Arndt, who at that time was a Member of the European Parliament (" MEP ") and the President of the Socialist Group . The French version contained a joint introduction by Mr Arndt and by Mr Ernest Glinne, the Group' s Vice-President . The cover and inside front page of each pamphlet featured, apart from the title and Mr Puhl' s name, the name and motif of the Socialist Group . The inside back page of the German version gave the Socialist Group as the "publisher" and Mr Arndt as the "person responsible" (" verantwortlich "). In the French version, the Socialist Group was stated to be the "responsible publisher" ( l' "éditeur responsable "). The German version was printed by a German printer, Thoma Druck GmbH, and the French version by a Belgian company, Printéclair SPRL of Brussels .

4 . An English-language pamphlet was also commissioned from a British journalist, Andrew Bell . This pamphlet, entitled "Against racism and fascism in Europe", contained a joint foreword by Mr Arndt and Mr Alf Lomas, a British MEP . The cover and inside front page again featured the name and motif of the Socialist Group . On the inside back page, it was stated that further copies of the pamphlet could be obtained from the Labour Group of MEPs or from the Socialist Group at its headquarters in Brussels . The pamphlet was printed by Printéclair SPRL .

5 . It appears that all three language versions of the pamphlet were distributed on the premises of the European Parliament in Strasbourg in September and October 1986 .

6 . Mr Le Pen and the French political party, "Front national", of which he is president, considered that the pamphlets were defamatory of them and brought proceedings before the tribunal de grande instance of Strasbourg claiming FF 500 000 in damages for defamation under Article 1382 of the French Civil Code and under Article 29 of the French Law of 29 July 1881 on the freedom of the press . The action was directed against the two journalists, Mr Puhl and Mr Bell, against Mr Arndt, against the two printers, and against 13 individual socialist and social-democratic parties from the different EEC Member States .

7 . The first-instance court dismissed the action in so far as it was directed against Mr Arndt, ruling that he enjoyed immunity from legal proceedings in national courts by virtue of Articles 8 to 10 of the Protocol on Privileges and Immunities of the European Communities (" the Protocol ") and that under Articles 178 and 215(2 ) of the EEC Treaty, only the Court of Justice was competent to rule on actions for damages proceeding from acts of the Community institutions or their servants . The court ruled that it was competent to deal with the action in relation to the other defendants and that the fact that the pamphlets were distributed on the premises of the Parliament did not constitute a bar to its jurisdiction . However, it went on to dismiss the action because under Article 42 of the French Law of 29 July 1881, the responsibility of the other defendants was subsidiary to that of the acknowledged publisher of the pamphlets - the Socialist Group - which could not itself be sued because it lacked legal personality .

8 . On appeal, the cour d' appel of Colmar ( second Civil Chamber ), found that it was necessary to seek a preliminary ruling "on the interpretation of the relevant provisions of Community law ". It therefore referred the following question to this Court :

"Does the Court of Justice of the European Communities have jurisdiction over the acts described above in so far as they were committed on the premises of the European Parliament in Strasbourg?"

9 . It is necessary at the outset to determine the scope of the question, which is not framed as a question of interpretation and which does not refer to any provisions of Community law . As phrased, the question appears to be limited to asking whether the jurisdiction of this Court arises merely because the acts complained of took place on the premises of the European Parliament . That is a straightforward question and the answer I think is clear .

10 . However, examination of the arguments of the parties, and of the views of the tribunal de grande instance, which are summarized in the order for reference, indicates that the cour d' appel also seeks guidance on the question whether the jurisdiction of national courts is excluded for a different reason, namely, the fact that a political group of the European Parliament ( which is not a party to the national proceedings ) accepts primary responsibility for the publication . The reasoning of the national court appears to be that the involvement of the Socialist Group might render the European Parliament or the Community liable, in which case this Court would have jurisdiction . If that were so, then the consequence might be that neither individual MEPs, nor the political parties composing the Group, nor any others involved in the publication could be sued in the French courts, since the exercise of jurisdiction by the French courts over those defendants might be incompatible with the exclusive jurisdiction of this Court in cases of non-contractual liability .

11 . It should be noted that there is arguably a further strand to the issue of jurisdiction, namely, the scope of the immunity from national legal proceedings enjoyed by Members of the European Parliament by virtue of the Protocol . Since the cour d' appel does not appear to seek a ruling on this question, and since neither the parties to the national proceeding nor the Commission has submitted argument on this question, I am of the view that it falls outside the scope of the reference .

12 . The first question is whether the jurisdiction of this Court arises merely because the acts complained of took place on the premises of the European Parliament . Under Article 28 of the Merger Treaty, the European Communities "shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of their tasks, under the conditions laid down in the Protocol annexed to this Treaty ". According to Article 1 of the Protocol :

"The premises and buildings of the Communities shall be inviolable . They shall be exempt from search, requisition, confiscation or expropriation . The property and assets of the Communities shall not be the subject of any administrative or legal measure of constraint without the authorization of the Court of Justice ."

13 . The respondents in the national proceedings argue that the effect of those provisions is that Member State authorities, including national courts, have no authority over the premises of Community institutions, with the result that this Court has exclusive jurisdiction in respect of acts committed on those premises .

14 . That proposition cannot be accepted . There is nothing in the provisions set out above which confers jurisdiction on the Court of Justice purely by reason of the fact that acts are committed on Community premises . Nor is the place where an act is committed a relevant consideration under any other relevant provisions of Community law conferring jurisdiction on the Court .

15 . Accordingly, no relevant provision of Community law excludes or restricts the jurisdiction of a national court in respect of unlawful acts committed on the premises of a Community institution . The effect of Article 1 of the Protocol is that a national court is required to seek the prior authorization of this Court before granting an order permitting national authorities to enter or search Community premises, or to seize Community assets . However, there is no question of such a measure of constraint in this case .

16 . The second question is whether the liability of the Community under Article 215(2 ) of the Treaty may be in issue in this case . Under Article 178 of the EEC Treaty, the Court of Justice has jurisdiction in disputes relating to compensation for damage provided for in Article 215(2 ); and by virtue of Article 183 of the Treaty that jurisdiction is exclusive . Article 215(2 ) provides :

"In the case of non-contractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties ."

17 . The essential question is whether the acts of a political group can be attributed to a Community institution - in concrete terms, the European Parliament - by reason of the fact that political groups are in a sense component parts of the Parliament .

18 . In my view this question must be answered in the negative . The European Parliament has certain permanent representative organs, notably the Bureau and the Presidency, whose acts, provided they are performed within the scope of the organ' s authority, will constitute acts of the Parliament as such ( see Case 294/83 Les Verts v European Parliament (( 1986 )) ECR 1339, paragraph 20; Case 34/86 Council v Parliament (( 1986 )) ECR 2155, paragraph 8 ). Article 26 of the Rules of Procedure of the European Parliament ( Official Journal 1981, C 90, p . 49 ), drawn up pursuant to Article 142 of the EEC Treaty, provides for the constitution of political groups, and the combined effect of a number of different provisions of those Rules is to grant to political groups an important role in the functioning of the Parliament . However, there is nothing in the Rules which empowers a political group to act on behalf of the Parliament, or which suggests that the acts of a political group are imputable to the Parliament as such .

19 . In my view, the acts of a political group are only capable of being regarded as acts of the Parliament itself if they are expressly authorized or approved by that institution ( e.g . by a resolution of the Parliament ) or by a decision of one of its representative organs, acting within its authority . There is, however, no suggestion in this case that any such authorization or approval was given . On the contrary, it appears plain from the facts as stated by the national court that the publication of the pamphlets was primarily an act of the Socialist Group, acting on its own initiative . That fact is indeed acknowledged in the foreword to the German version where it is stated that the Socialist Group "independently and on its own responsibility" (" unabhaengig und in eigener Verantwortung ") commissioned Mr Puhl to write the pamphlet .

20 . Accordingly, I would give the following answer to the question referred :

"( 1 ) The Protocol on Privileges and Immunities of the European Communities does not confer jurisdiction on the Court of Justice of the European Communities in respect of certain acts solely on the ground that those acts were committed on the premises of a Community institution; nor does it on that ground exclude or restrict the jurisdiction of national courts in respect of such acts .

( 2 ) Article 215(2 ) of the EEC Treaty must be interpreted as meaning that the publication on its own initiative of a political pamphlet by a political group of the European Parliament cannot be regarded as an act of the European Parliament capable of giving rise to the non-contractual liability of the Community ."

(*) Original language : English .