Alfonso Luigi Marra v Eduardo De Gregorio (C-200/07) and Antonio Clemente (C-201/07).
Date: 2008-10-21
24. It should be noted, at the outset, that the parliamentary immunity of Members of the European Parliament, as provided for in Articles 9 and 10 of the Protocol, comprises the two forms of protection normally afforded to members of national parliaments in the Member States, that is to say, immunity in respect of opinions expressed and votes cast in the exercise of their parliamentary duties, and parliamentary privilege, including, in principle, protection from judicial proceedings.
26. Article 9 of the Protocol 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 (see, by analogy, Case 149/85 Wybot [1986] ECR 2391, paragraph 12).
27. Such immunity, which is that relied upon by Mr Marra in the disputes in the main proceedings, 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.
33. 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.
35. Furthermore, it cannot be inferred, even implicitly, from Rules 6 and 7 of the Rules of Procedure – which contain the internal rules concerning the procedure for waiving parliamentary immunity – that the national courts are obliged to refer to the Parliament the decision on whether the conditions for recognising that immunity are met, before ruling on the opinions and votes of Members of the Parliament.
36. Rule 6(2) of the Rules of Procedure is limited to establishing the procedure for the waiver of parliamentary immunity provided for in Article 10 of the Protocol.
37. Rule 6(3) of the Rules of Procedure sets down a procedure for defence of immunity and privileges which can be triggered by the Member of the European Parliament. That procedure also concerns immunity for opinions expressed and votes cast in the exercise of parliamentary duties. Rule 7(6) of those rules provides that the Parliament is to ‘state’ whether legal proceedings brought against a Member of the European Parliament constitute a restriction on the expression of an opinion or the casting of a vote, and to ‘make a proposal to invite the authority concerned to draw the necessary conclusions’.
38. As has been emphasised out by the Parliament and the Commission of the European Communities, the Rules of Procedure are rules of internal organisation and cannot grant powers to the Parliament which are not expressly acknowledged by a legislative measure, in this case by the Protocol.
39. It follows that, even if the Parliament, pursuant to a request from the Member concerned, adopts, on the basis of those rules, a decision to defend immunity, that constitutes an opinion which does not have binding effect with regard to national judicial authorities.
40. In addition, the fact that the law of a Member State provides for a procedure in defence of members of the national parliament – enabling that parliament to intervene where the national court does not recognise that immunity –  does not imply that the same powers are conferred on the European Parliament in relation to its Members coming from that Member State, since, as has been held in paragraph 32 above, Article 9 of the Protocol does not expressly grant the Parliament such power and does not refer to the rules of national law.
41. However, according to settled case-law, 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, is of particular importance where that cooperation involves the judicial authorities of a Member State who are responsible for ensuring that Community law is applied and respected in the national legal system (see, in particular, order in Case C-2/88 IMM Zwartveld and Others v Commission [1990] ECR I-3365, paragraph 17, and Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 93).
42. It must be held that that duty of cooperation 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.
44. Once the national court has established that the conditions for the absolute immunity, provided for in Article 9 of the Protocol are met, the court is bound to respect that immunity, as is the Parliament. It follows that such immunity cannot be waived by the Parliament and that, as a result, that court is bound to dismiss the action brought against the Member concerned.
45. First, Article 9 of the Protocol does not grant such a power to the Parliament. Second, as that article constitutes a special provision applicable to all legal proceedings for which the Member benefits from immunity in respect of opinions expressed and votes cast in the exercise of parliamentary duties, that immunity cannot be waived by the application of the third paragraph of Article 10 of the Protocol, which concerns immunity in legal proceedings relating to acts other than those referred to in Article 9. It follows that only the immunity covered by Article 10 may be waived for the purposes of continuing legal proceedings against a Member of the European Parliament.