CELEX: 32003D0236(01)
Language: en
Date: 2003-06-03 00:00:00
Title: European Parliament decision on the adoption of a Statute for Members of the European Parliament

Important legal notice

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32003D0236(01)

European Parliament decision on the adoption of a Statute for Members of the European Parliament  

Official Journal 068 E , 18/03/2004 P. 0115 - 0126

		P5_TA(2003)0236Statute for Members of the European ParliamentEuropean Parliament decision on the adoption of a Statute for Members of the European ParliamentTuesday 3 June 2003The European Parliament,— having regard to the Treaties establishing the European Communities, in particular Article 190(5) of the Treaty establishing the European Community [1]) and Article 108(4) of the Treaty establishing the European Atomic Energy Community [2],— having sought the opinion of the Commission,whereas:A. General considerations(1) The Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 enabled the first direct election of representatives of the European Parliament to take place in 1979.(2) This Act contains no provisions either for a uniform electoral procedure or for a Statute for Members.(3) Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 [3]), based on Article 190(4) of the EC Treaty, which has been inserted by the Treaty of Amsterdam, amended the 1976 Act to establish a uniform electoral procedure.(4) At present, more than 20 years after the first direct elections to the European Parliament, there is still no uniform statute for Members.(5) The solution provisionally adopted consists in the application to Members of the European Parliament of the same provisions, in general, as those applying to Members of the national parliaments in respect of Members' allowances, old-age pensions, survivors' pensions and other conditions governing the exercise of a Member's mandate (in the Netherlands, the allowance paid to Members of the European Parliament has been lower than that paid to Members of the national parliament since 1976).(6) These provisions vary greatly from one Member State to another.(7) Further provisions are contained in Articles 8, 9, and 10 of the Protocol on the privileges and immunities of the European Communities of 8 April 1965 (hereinafter: the Protocol) and Article4(1) and (2) of the 1976 Act (as amended by the decision amending the 1976 Act).(8) These provisions are supplemented by the European Parliament's rules on the reimbursement of costs (travel, subsistence, general expenditure), assistants (secretarial allowance) and social benefits (Article 199(1) of the EC Treaty).(9) This system was developed for the delegates appointed to the earlier parliamentary Assembly and is today regarded as unsatisfactory, because it results in unequal treatment for Members.(10) It is an outmoded system that must be replaced by rules tailored to the directly elected European Parliament and reflecting its increasing importance.(11) The European Parliament has sought to establish a uniform statute since the first direct elections. These attempts failed for lack of a legal basis.(12) The Treaty of Amsterdam, as amended by the Treaty of Nice, provides a legal basis for a Statute in Article 190(5) of the EC Treaty. This Statute is based on that Article.(13) The Statute falls within the scope of application of the EC Treaty, therefore, and consequently is subject to the prohibition of discrimination enshrined in Article 12 of the EC Treaty.(14) Article 190(5) of the EC Treaty is couched in general terms ('regulations and general conditions governing the performance of the duties of its Members'). This provision does not place any limitation on the European Parliament's regulatory powers that would restrict it to issuing rules in respect of financial conditions only, or only in respect of residual matters not covered by primary law.(15) The European Parliament's regulatory powers consequently also extend to the privileges and immunities regulated by Articles 8, 9, and 10 of the Protocol or to matters which have not yet been regulated, such as the right to refuse to testify, and to Article 4 of the 1976 Act (as amended by the decision amending the 1976 Act).(16) Provisions of the Statute that conflict with provisions of primary law may not enter into force unless and until an intergovernmental conference has decided to repeal the corresponding provisions of primary law and that decision has been ratified by the Member States (hierarchy of norms).(17) For the sake of legal certainty, the same procedure should be adopted in the case of new provisions which either incorporate the wording of the provisions of primary law or essentially mean the same.(18) Rules adopted by the European Parliament, being secondary law, do not need to be ratified.(19) The criterion of performance of Members' duties also serves to distinguish Article 190(5) from Article 190(4) of the EC Treaty. Provisions applicable in the pre-election phase (eligibility, electoral procedure, etc.), as well as those concerning the beginning and end of a Member's term of office, the verification of credentials, removal from office, replacement, and incompatibilities, should be regulated in the 1976 Act because they do not relate to the performance of the Members' duties.(20) Article 10 of the Protocol establishes the immunity of Members of Parliament. Although parliamentary immunity is a privilege of the European Parliament, it affords Members freedom from prosecution or any other curtailment of personal freedom by the State for the duration of their term of office. If immunity is waived, the exercise of the Member's mandate is possible only to a limited extent, if at all. Members' immunity is, therefore, a condition affecting the exercise of their mandate and, consequently, should be covered by the Statute.(21) Subjects, such as the privilege to decline to give evidence, which have not previously been dealt with in primary law, can be dealt with in the Statute.(22) The Statute does not contain any detailed provisions relating to the reimbursement of costs (travel, subsistence, general expenditure), assistants (secretarial allowance) and social benefits (Article 199(1) of the EC Treaty). The European Parliament may, on the basis of Article 199(1) of the EC Treaty, decide on such matters autonomously [4].(23) There is no reason to call this autonomy into question. Article 190(5) of the EC Treaty is intended to extend the European Parliament's powers to regulate its own affairs, not to curtail them.(24) According to Article 189(1) of the EC Treaty, the European Parliament shall consist of 'representatives of the peoples of the States brought together in the Community’. These representatives are referred to in Article 190(1) of the EC Treaty as the 'representatives in the European Parliament of the peoples of the States brought together in the Community’. The same term is used in Article 190(2) of the EC Treaty ('the number of representatives elected in each Member State’) and in Article 190(3) of the EC Treaty ('representatives shall be elected for a term of five years').(25) These provisions, whereby Members are the constitutional representatives of the peoples, are of a constitutional nature.(26) The term used in the Statute should be 'Member'.(27) The right of the European Parliament to regulate its own business, in accordance with Article 199(1) of the EC Treaty, is not affected by this Statute.B. With reference to individual provisions(28) Article 1 takes the concept of 'Member' and makes it clear that the Statute does not deal with Members' rights and obligations, but comprehensively covers the rules and general conditions applicable to the exercise of their mandate.(29) The freedom and independence of Members upheld in Article 2 require statutory protection and are not mentioned in any provision of primary law. Undertakings made by Members to relinquish their office at a given time, or declarations of their intent to relinquish office at an unspecified date which political parties can make use of at their discretion, are incompatible with Members' freedom and independence and so cannot be binding in law.(30) Protecting the freedom to vote and freedom of speech is a matter of fundamental public interest. Article 4(1), therefore, precludes a Member from being prosecuted or otherwise held to account for a statement made in the exercise of his or her mandate. Under Article 4(2), the European Parliament may decide whether a statement was made in the exercise of a Member's mandate. In such a case it is, as when verifying credentials in accordance with the provisions of the 1976 Act, functioning in a judicial capacity. In its decisions on immunity, which are certainly comparable, the European Parliament has consistently shown a sense of proportion and realism.(31) The immunity provided for in Article 5 protects Members from tendentious prosecution (fumus persecutionis) and restrictions imposed by the executive branch. As various cases decided on by the European Parliament show, there can be no question of these aspects no longer playing a role today. Immunity at all events touches on questions of equality, the division of powers and the rule of law. A further aim of immunity is to ensure the European Parliament's ability to function. These considerations suggest the following solution: criminal investigations and proceedings can be initiated against a Member at any time. There is no requirement for immunity to be waived. Current law is not helpful either to the European Parliament or to individual Members, as even straightforward offences such as road traffic offences have to be discussed in public. Any restriction on the personal freedom of a Member must, however, be conditional on the agreement of the European Parliament (to ensure the European Parliament's ability to function). It must be possible to suspend investigations and criminal proceedings at the insistence of the European Parliament if 'fumus persecutionis' is involved. Paragraph 2 provides these guarantees.(32) The entitlement to refuse to give evidence, for which Article 6 provides and which has not so far been regulated in primary law, protects a Member's freedom with regard to information and the relationship of trust between him/her and any person who has entrusted facts to him/her. It is a right vested in the individual, which applies in all procedures where a duty to give evidence exists, and the European Parliament cannot override it. The prohibition on seizure, searches and exploitation protects this entitlement. It would be absolutely unacceptable for journalists to have an entitlement to refuse to give evidence while Members did not.(33) The freedom of movement for Members provided for by Article 7, which is essentially a matter of course, has fresh significance because this freedom has recently been restricted by measures adopted by the authorities in connection with demonstrations.(34) Article 9 ensures that Members' records, documents, drafts, letters and other correspondence are excluded from any requirement of disclosure.(35) The right of initiative provided for in Article 10 is the key right of a Parliament and of every Member thereof. The Article makes it clear that the Rules of Procedure of the European Parliament cannot restrict the enjoyment of this right by every Member.(36) The right to inspect files, provided for by Article 11, which has already existed hitherto on the basis of the Rules of Procedure of the European Parliament, is an essential aspect of the exercise of a Member's mandate and should therefore be provided for by the Statute.(37) Article 12 is intended to ensure that, despite statements to the contrary, linguistic diversity will not in reality be further eroded. Any discrimination against any of the official languages must be excluded. This principle must continue to apply after any enlargement of the European Union.(38) Pursuant to Articles 15 and 16, Members are to receive an allowance in return for denying themselves a private career and — for a limited period — serving the European Union, their country and democracy in Europe. Regarding the amount of the allowance, a group of experts convened by the European Parliament submitted a study in May 2000. An allowance of 50 % of the basic salary of a judge at the Court of Justice of the European Communities falls well within the range which the experts deemed appropriate.(39) Article 15(3) is necessary because parties often expect the benefits referred to in paragraphs 1 and 2 to be used in part for their purposes. This form of party funding is illegal.(40) The transitional allowance provided for in Articles 15(2) and 19 is intended to bridge the period between the end of a Member's term of office and his/her taking up a new post. When the former Member takes up another mandate or assumes a public office, this purpose ceases to be relevant.(41) In the case of the old-age pension referred to in Article 20, the age when entitlement to it is to begin has been a matter of dispute. The group of experts proposed the age of 65 or — with an actuarial deduction — the age of 60. In accordance with Article 20(1), the old-age pension would become payable on the Member's 60th birthday. A Member who, after his/her education and some years of professional experience, is elected for the first time at age 35 or 40 and serves as a Member for twenty years, leaves Parliament aged 55 or 60. While he/she may reasonably be expected to take up an occupation outside Parliament at the age of 55, this is hardly the case at the age of 60. Calculations by Parliament's administration indicate that an actuarial deduction would be so large that this solution cannot be considered.(42) The arrangements for provision for survivors are essentially in line with current law in the European Community. The entitlement of a surviving spouse who has remarried is based on the modern idea that it relates to a personal benefit and is not intended merely as 'provision'. Such an entitlement is not ruled out even when a surviving spouse is 'provided for' by virtue of his or her own income or personal wealth.(43) The purpose of Article 24(1) and (2) is to alleviate on a long-term basis the burden on the budget of the European Union. The option of setting up a fund has proved its value in practice. The group of experts proposed that the European Parliament should contribute two-thirds and Members one-third.(44) Article 25 is necessary because when the Statute enters into force, Member States will cease to reimburse the costs that Members incur as a result of sickness or to pay part of medical insurance contributions. These benefits are often retained after a Member's term of office is over.(45) The provisions concerning the reimbursement of costs must respect the principles set out by the Court of Justice of the European Communities in the 'Lord Bruce' judgment [5].(46) According to that judgment 'it is a matter for the Parliament to decide which activities and travel of Members of the Parliament are necessary or useful for the performance of their duties and which expenses are necessary or useful in connection therewith. The autonomy granted to the Parliament in this matter in the interests of its proper functioning also implies the authority to refund travel and subsistence expenses of its Members not upon production of vouchers for each individual item of expenditure but on the basis of a system of fixed lump-sum reimbursements. The choice of this system (...) arises from a concern to reduce the administrative costs and burdens inherent in a system involving the verification of each individual item of expense and therefore represents sound administration' [6].(47) However, 'the allowances fixed in that manner must not exceed reasonable limits consistent with the refund of travel and subsistence expenses'. The lump sum fixed for the allowances must not be too high or constitute disguised remuneration [7].(48) The Member States should ensure that the rules placing Members of the European Parliament, when exercising their mandate in their Member State, on the same footing as members of the national parliament (as regards, e.g., reimbursement of air fares, provision of free rail passes, etc.) are retained. It is not possible for this problem to be solved at European level, as numerous very disparate arrangements exist in the Member States. Without such a provision, the exercise of the mandate of a Member of the European Parliament in the Member State where a Member was elected would be considerably hampered, if not impossible. Effective exercise of the mandate is also in the interests of the Member States.(49) Article 33(1) is required because the very disparate national provisions to which Members have so far been subject make it impossible to solve at European level all the problems associated with the transition from an old to a new European system. Giving Members a choice will make it impossible for Members' rights to be reduced or for them to suffer financial damage as a result of the transition. Paragraphs 2 and 3 are consequences of the decision in paragraph 1.(50) The considerable economic differences between existing and new Member States will be eliminated only gradually after accession. It therefore seems appropriate, for a transitional period, to enable the new Member States to apply different rules on the allowance, transitional allowance and pensions,DECIDES:A. Regulations and general conditions governing the performance of the duties of the Members of the European ParliamentArticle 1This Statute lays down the regulations and general conditions governing the performance of the duties of Members of the European Parliament.Article 2(1) Members shall be free and independent.(2) Agreements concerning the resignation from office of a Member before or at the end of a parliamentary term shall be null and void.Article 3(1) Members shall not be bound by any instructions and shall not receive a binding mandate [].(2) They shall vote on an individual and personal basis [](3) Agreements concerning the way in which the mandate is to be exercised shall be null and void.Article 4 [](1) A Member may at no time be the subject of legal proceedings or otherwise be held to account extrajudicially for any action taken, vote cast or statement made in the exercise of his/her mandate.(2) Parliament shall decide, on an application from the Member, whether a statement was made in the exercise of his/her mandate.(3) Parliament shall lay down provisions for the implementation of this Article in its Rules of Procedure.Article 5 [](1) Any restriction of a Member's personal freedom shall be permitted only with the consent of Parliament, except where he/she is caught in the act.(2) The seizure of a Member's documents or electronic records or the searching of his/her person, office or place of residence or interception of his/her mail and telephone calls may be ordered only with the consent of Parliament.(3) Investigations or criminal proceedings against a Member shall be suspended at Parliament's request.(4) Consent pursuant to paragraph 2 may be applied for only by the authorities competent under national law.(5) Consent pursuant to paragraph 2, or suspension pursuant to paragraph 3, may be granted conditionally, for a limited period or on a restricted basis.(6) Article 4(3) shall apply mutatis mutandis.Article 6(1) A Member shall be entitled at all times to refuse to give evidence about persons who have entrusted facts to him/her or to whom, in the exercise of his/her mandate, he/she has entrusted facts and such facts themselves.(2) Measures under Article 5(2), or the exploitation of documents already seized, shall be prohibited.Article 7 [](1) Members shall enjoy freedom of movement throughout the European Union.(2) This right may not be restricted by law or by order of a public authority or court.Article 8The privileges and immunities arising from the foregoing Articles may not be restricted by other provisions of the European Community's derived legislation.Article 9Documents and electronic records which a Member has received, drafted or sent, and which do not bear an official document number, shall be deemed not to be European Parliament documents.Article 10(1) Each Member shall be entitled to table proposals for Community acts in the context of the European Parliament's right of initiative.(2) Article 4(3) shall apply mutatis mutandis.Article 11(1) Members shall be entitled to inspect any files held by Parliament.(2) This shall not apply to personal files and accounts.(3) Paragraph 1 shall apply without prejudice to acts of the European Union and agreements by the Institutions concerning access to documents.(4) Parliament shall lay down provisions for the implementation of this Article.Article 12(1) The documents of the European Parliament shall be translated into all the official languages.(2) Speeches shall be interpreted simultaneously into all the other official languages.Article 13(1) Members may form themselves into political groups.(2) Article 4(3) shall apply mutatis mutandis.Article 14(1) The political groups shall be part of Parliament.(2) They may sue and be sued.Article 15(1) Members shall be entitled to an appropriate allowance to safeguard their independence.(2) At the end of their term of office, they shall be entitled to a transitional allowance and a pension.(3) Agreements on the use of the allowance, the transitional allowance and the pension for other than private purposes shall be null and void.(4) The surviving dependants of Members or former Members shall be entitled to a survivor's pension.Article 16The amount of the allowance shall be 50 % of the basic salary of a judge at the Court of Justice of the European Communities.Article 17The allowance received by a Member for the exercise of a mandate in another parliament shall be offset against the allowance.Article 18(1) The allowance shall be subject to Community tax on the same terms and conditions as those laid down on the basis of Article 13 of the Protocol on the Privileges and Immunities of the Communities for the officials and other servants of the European Communities.(2) The right of Member States to take the allowance into account in determining the tax to be levied on other income shall remain unchanged.Article 19(1) At the end of their term of office Members shall be entitled to a transitional allowance equivalent to the allowance pursuant to Article 16.(2) This entitlement shall continue for one month per year in which their mandate has been exercised, but not for less than six months or more than 24 months.(3) No such entitlement arises in the event of a Member assuming a mandate in another parliament or taking public office.(4) In the event of death, the transitional allowance shall be paid for the last time in the month in which the former Member died.(5) Article 18 shall apply mutatis mutandis.Article 20(1) Former Members shall be entitled to an old-age pension as from the age of 60.(2) This pension shall be, for each full year's exercise of a mandate, 3,5 % of the allowance pursuant to Article 16 and one-twelfth thereof for each further full month, but not more than 70 % in total.(3) Entitlement to the old-age pension shall exist irrespective of any other pension.(4) Articles 17 and 18 shall apply mutatis mutandis.Article 21(1) Members who become incapacitated during their term of office shall be entitled to a pension.(2) Article 20(2) shall apply mutatis mutandis. However, the amount of the pension shall be at least 35 % of the allowance pursuant to Article 16.(3) The entitlement shall take effect when the Member concerned stands down.(4) Articles 11 (4), 17 and 18 shall apply mutatis mutandis.Article 22Should a former Member be entitled simultaneously to the payment of the transitional allowance pursuant to Article 19 and the pension pursuant to Article 20 or Article 21, he or she shall decide which arrangement shall be applied.Article 23(1) In the event of the death of a Member during his/her term of office, or of a former Member who at the time of his/her death was entitled to a pension pursuant to Article 20 or Article 21, the spouse and dependent children shall be entitled to a survivor's pension.(2) The total amount of the pension shall not exceed the pension to which the Member would have been entitled at the end of the parliamentary term or to which the former Member was entitled.(3) The surviving spouse shall receive 60 % of the amount referred to in paragraph 2, but in any case at least 30% of the Member's allowance. Such entitlement shall not be affected if the surviving spouse remarries.(4) A dependent child shall receive 20 % of that amount.(5) Should it be necessary, the maximum amount of the pension to be paid shall be divided between the spouse and the children in the ratio of the percentages laid down in paragraphs 3 and 4.(6) The pension shall be paid as from the first day of the month following the date of death.(7) Should the spouse die, the entitlement shall expire at the end of the month during which the death occurred.(8) A child's entitlement shall expire at the end of the month in which he/she reaches the age of 21. However, it shall continue for the duration of education or vocational training, but only until the end of the month during which he/she reaches the age of 25. The entitlement shall continue as long as the child is unable to support himself/herself on account of sickness or infirmity.(9) Partners from relationships recognised in the Member States shall be treated as equivalent to spouses.(10) Articles 11 (4) and 18 shall apply mutatis mutandis.Article 24(1) To finance the pensions a fund shall be set up which shall constitute reserves for the pensions.(2) The reserves shall be constituted from monthly payments by Parliament (two-thirds) and Members (one-third) and also from the interest accruing therefrom.(3) The amount of the contributions required shall be determined annually by Parliament.(4) The contributions pursuant to paragraph 2 shall not be subject to any tax.(5) The accounts shall be audited by the European Court of Auditors.Article 25(1) Members and former Members drawing a pension, and persons entitled to the survivor's pension, shall be entitled to reimbursement of the costs that they incur as a result of sickness, pregnancy or the birth of a child.(2) To cover the costs a fund shall be set up, in the financing of which former Members shall likewise participate.(3) Articles 11(4) and 24 shall apply mutatis mutandis.Article 26(1) Members shall be entitled to insurance cover for the risks connected with the exercise of their mandate.(2) Article 11 (4) shall apply mutatis mutandis.Article 27(1) Members shall be entitled to reimbursement of costs incurred in the exercise of their mandate.(2) Parliament shall determine those cases in which reimbursement may be effected by means of a flat-rate sum.(3) Articles 11(4) and 15(3) shall apply mutatis mutandis.Article 28(1) Members shall be entitled to assistance from personal staff whom they may freely choose themselves.(2) Article 11 (4) shall apply mutatis mutandis.Article 29(1) Members shall be entitled to use Parliament's office facilities, telecommunications equipment and official vehicles.(2) Article 11 (4) shall apply mutatis mutandis.Article 30All payments shall be made from the budget of the European Union and from the funds to be established pursuant to Articles 24 and 25.Article 31The benefits provided by the European Parliament pursuant to Articles 24 and 25 shall not be subject to tax.Article 32Decisions concerning the implementation of this Statute shall be published in the L series of the Official Journal of the European Union.B. Transitional provisionsArticle 33(1) Members who were already sitting Members at the beginning of the parliamentary term in which this Statute enters into force and who have been re-elected, may opt for the national system applicable hitherto in respect of the allowance, transitional allowance and pensions for the entire duration of their term of office.(2) These payments shall be made from the budget of the Member State and shall be subject only to national tax.(3) Such Members shall pay no contribution to the fund established pursuant to Article 24.Article 34(1) Members who wish to continue with the national system applicable hitherto pursuant to Article 33(1) shall notify the President of Parliament of this decision in writing within 30 days of the entry into force of this Statute.(2) The decision shall be final and irrevocable.(3) Should such notification not be made within the time-limit, the provisions of this Statute shall apply.Article 35(1) The voluntary pension fund set up by the European Parliament shall be maintained after the entry into force of this Statute for Members or former Members who have already acquired rights or future entitlements in that fund or who opt for the national system applicable hitherto pursuant to Article 33(1).(2) Acquired rights and future entitlements shall be maintained in full.(3) The contributions to this fund shall not be subject to any tax.(4) Members who pay contributions to the pension fund under Article 24 may not acquire any new rights or future entitlements in the voluntary pension fund.(5) The fund shall not be open to Members who are first elected to Parliament when this Statute becomes applicable.(6) Article 15(3), Article 18 and Article 20(3) shall apply mutatis mutandis.Article 36(1) Any pension entitlement that a Member has acquired in accordance with national arrangements at the time when this Statute is applied shall be retained in full.(2) Any term of office served in the European Parliament or in a national parliament which under national arrangements does not give rise to any pension entitlement shall be taken into account in calculating the pension based on this Statute.Article 37(1) For a transitional period each new Member State may adopt, for the Members elected in it, rules different from the provisions of this Statute as regards the allowance, transitional allowance and pensions.(2) These rules shall place the Members on at least an equal footing with the members of their respective national parliament.(3) All payments shall be made from the budget of the Member State in question.(4) The transitional period shall begin on the date of entry into force of the accession treaty and shall end at the latest at the end of the second full European Parliament parliamentary term after that date.(5) The entitlements of Members pursuant to Articles 25 to 29 shall not be affected by such rules.C. Entry into forceArticle 38(1) This Statute shall enter into force after its approval by the Council and at the same time as the Treaty amendments adopted on the basis of the work of the European Convention.(2) Without prejudice to paragraph 1,— Article 3(1) and (2) shall enter into force if and when Article 4(1) of the 1976 Act is repealed;— Article 4 shall enter into force if and when Article 9 of the Protocol is repealed;— Article 5 shall enter into force if and when Article 10 of the Protocol is repealed;— Article 7 shall enter into force if and when Article 8 of the Protocol is repealed.(3) After the Council has given its approval, this Statute shall be duly signed by the President of the European Parliament and published in the L series of the Office Journal of the European Union.[1] Hereinafter referred to as: 'EC Treaty’.[2] further references to the Treaties in this Statute relate solely to the provisions of EC Treaty[3] OJ L 283, 21.10.2002, p. 1..[4] ECJ Judgment of 15.9.1981, Case 208/80 Lord Bruce, ECR 2205.[5] See footnote 1 to recital 22.[6] Paragraph 17.[7] Paragraph 21.[] See Article 37(2).--------------------------------------------------