1 By her appeal, the appellant asks the Court to set aside the judgment of the General Court of the European Union of 8 November 2018, Troszczynski v Parliament (T‑550/17, not published, EU:T:2018:754, ‘the judgment under appeal’), by which that court dismissed her action seeking annulment of the decision of the European Parliament of 14 June 2017 waiving her parliamentary immunity (‘the decision at issue’).
2 Article 8 of Protocol (No 7) on the privileges and immunities of the European Union, annexed to the EU and FEU Treaties (OJ 2016 C 202, p. 266) (‘the Protocol’) provides: ‘Members of the European Parliament shall 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.’
3 Article 9 of the Protocol states: ‘During the sessions of the European Parliament, its Members shall enjoy: (a) in the territory of their own State, the immunities accorded to members of their parliament; (b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings. Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament. Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.’
4 Rule 5 of the Rules of Procedure of the European Parliament (8th parliamentary term - January 2017), entitled ‘Privileges and immunities’, provides in the second sentence of its second paragraph: ‘Parliamentary immunity is not a Member’s personal privilege but a guarantee of the independence of Parliament as a whole and of its Members.’
5 The background to the dispute is set out in paragraphs 1 to 10 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as follows.
6 The appellant was elected a Member of the European Parliament at the elections of the 8th parliamentary term, which were held from 22 to 25 May 2014.
7 On 23 September 2015, a photograph featuring a group of women wearing clothing which concealed all of their face, except for their eyes, and appearing to be waiting in front of a caisse d’allocations familiales (family allowances office, ‘CAF’), was published on the appellant’s social network Twitter account. The following comment appeared alongside the photograph: ‘CAF in Rosny-sous-Bois, 9.12.14. The wearing of full face veils is supposed to be prohibited by law …’ (‘the tweet at issue’).
8 Following a complaint lodged on 27 November 2015 by the director-general of the CAF of Seine-Saint-Denis (France) for public defamation of a public administration, the procureur de la République de Bobigny (Public Prosecutor’s Office, Bobigny, France), opened a judicial investigation on 19 January 2016 for incitement ‘of hatred or violence with regard to a person or a group of persons on account of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion’, and public defamation.
9 The appellant was summoned by an investigating magistrate to appear for the first time on 20 September 2016. She objected to that summons on the ground of her parliamentary immunity.
10 By application of 23 September 2016, the investigating magistrate of the tribunal de grande instance de Bobigny (Regional Court, Bobigny, France) filed a request for the Parliament to waive that immunity.
11 On 1 December 2016, the French Minister for Justice sent that request to the President of the Parliament.
12 The Committee on Legal Affairs of the Parliament heard the appellant on 11 April 2017.
13 On 14 June 2017, the Parliament adopted the decision at issue.
14 By order of 26 April 2018, the Vice-President investigating magistrate of the tribunal de grande instance de Bobigny (Regional Court, Bobigny) committed the case against the appellant for trial before the tribunal correctionnel (Criminal Court, France).
15 By application lodged at the Registry of the General Court on 12 August 2017, the appellant brought an action for annulment of the decision at issue and compensation for the non-material harm allegedly caused by that decision.
16 In support of the forms of order sought, the appellant raised four pleas in law: the first, alleging infringement of Article 8 of the Protocol; the second, alleging infringement of Article 9 of the Protocol; the third, alleging breach of the obligation to state reasons and of the principle of equal treatment and the principle of sound administration, and the fourth, alleging breach of the rights of the defence and raising a plea of illegality in respect of Article 9(9) and Article 150(2) of the Rules of Procedure of the Parliament.
17 The General Court examined the first and second pleas together, stating, as a preliminary point, in paragraph 34 of the judgment under appeal, that, if the Parliament, having received a request for waiver of parliamentary immunity, reaches the conclusion that the facts giving rise to that request are not covered by Article 8 of the Protocol, it must ascertain whether the Member concerned benefits from the immunity provided for in Article 9 of the Protocol in respect of those facts and, if so, it must decide whether or not to waive that immunity.
18 Next, the General Court divided the arguments set out by the appellant in support of those two pleas into five parts: the first, alleging that Article 26 of the French Constitution applied to the tweet at issue; the second, alleging that that tweet constituted an opinion expressed in the performance of the appellant’s parliamentary duties, within the meaning of Article 8 of the Protocol; the third, alleging that the Parliament breached the fundamental right to freedom of expression by wrongly waiving the appellant’s parliamentary immunity; the fourth, alleging that the appellant was not the author of the tweet at issue, and the fifth, alleging that the independence of the appellant and the Parliament had been detrimentally affected.
19 The General Court rejected the first part as ineffective. It noted, in paragraph 41 of the judgment under appeal, that the reason why the Parliament considered that the appellant could not rely on Article 26 of the French Constitution did not relate to the fact that the statement at issue had been made on Twitter, but to the fact that the tweet at issue could not be classified as an opinion expressed or a vote cast in the performance of the appellant’s parliamentary duties within the meaning of Article 8 of the Protocol.
20 The second part was rejected as unfounded. The General Court found, in essence, in paragraph 53 of the judgment under appeal, that the purpose of the tweet at issue was to deplore the failure to respect a French law prohibiting the covering up of the face in public places regarding a specific occurrence which was supposed to be taking place in front of a body entrusted with a public service in French territory, and could not be equated to the adoption of a more general position on topical issues or issues dealt with by the Parliament. The General Court concluded, in paragraph 54 of the judgment under appeal, that there was no obvious, direct connection between the tweet at issue and the appellant’s parliamentary duties and, consequently, the Parliament had not committed a manifest error by considering that the charges against the appellant did not concern opinions expressed or votes cast in the performance of her parliamentary duties within the meaning of Article 8 of the Protocol.
21 The third part of the plea was also rejected as unfounded. Although the General Court noted, in paragraph 58 of the judgment under appeal, that Article 8 of the Protocol is closely linked to the protection of freedom of expression, it nevertheless held, in paragraph 59 of that judgment, that the facts alleged against the appellant did not fall within the scope of that article and, consequently, the Parliament had not infringed that freedom.
22 The General Court rejected the fourth part as ineffective. It held, in paragraphs 61 and 62 of the judgment under appeal, first, that the question whether the conditions for waiver of immunity are met at the time when that waiver is requested is distinct from the question whether the facts alleged against the Member in question are established and, second, that it is not for the Parliament to express an opinion on the imputability of those facts.
23 Finally, the fifth part was rejected as unfounded. In paragraphs 66 and 67 of the judgment under appeal, the General Court stated that, since Article 9 of the Protocol allows the Parliament to waive the immunity enjoyed by Members, that institution cannot be criticised for having considered it appropriate, in the light of the circumstances of the case and following the request sent by the French Minister for Justice, to waive the appellant’s immunity in order to enable the French judicial authorities to pursue the investigation which they had opened.
24 As for the third plea in law, the first part of which alleged infringement of the obligation to state reasons and of the principle of equal treatment and the second, breach of the principle of sound administration, the General Court rejected it in its entirety in paragraph 102 of the judgment under appeal.
25 As regards the first part of that plea, by which the appellant claimed that the Parliament had treated her differently from Members who were in comparable situations without adequate justification, the General Court stated as a preliminary point, in paragraph 76 of the judgment under appeal, that the document of the Parliament’s Committee on Legal Affairs and the Internal Market of 6 June 2003, entitled ‘Notice to Members No 11/2003’, concerning: ‘Waiver of immunity in accordance with Article [9] of the Protocol on privileges and immunities. Principles established on the basis of cases relating to the expression of opinions’ (‘Notice No 11/2003’), relied on by appellant in support of that first part, is not an act of the Parliament within the meaning of Article 288 TFEU and does not have binding effect. Next, the General Court noted, in paragraphs 80 and 81 of the judgment under appeal, first that, since the appellant had failed to specify either the acts or remarks which were the subject of the complaints against the Members identified by her as having benefited from the application of that notice, or the circumstances in which the events in question had taken place, she had not established that the situation of those Members was comparable to her own. Second, since, in the present case, there was no direct connection between the tweet at issue and the appellant’s parliamentary duties, she had not demonstrated that the Parliament had derogated from the principle laid down in that notice according to which, if the acts of which the Member stands accused form part of his or her political activity or are directly connected to such activity, immunity will not be waived.
26 As regards the second part of that plea, the General Court noted, in paragraphs 88 and 99 of the judgment under appeal, that the appellant had not provided any concrete evidence, other than a difference in political ideology, capable of establishing that the French Government, and in particular the French Minister for Justice, was persecuting the National Front, of which she is one of the representatives, or that it is solely, or even partly, her membership of that party that prompted the opening of a judicial investigation. The General Court also found, in paragraph 94 of the judgment under appeal, that there was no evidence to support a finding that the request for waiver of the appellant’s parliamentary immunity was made in connection with legal proceedings which had been conducted in an irregular manner, in particular with regard to time limits. Finally, it held, in paragraph 96 of the judgment under appeal, that none of the evidence relied on by the appellant in that context - namely, that the tweet at issue had been written by her assistant, that she had deleted it as soon as she became aware of it and that, in the event of her being convicted, she ran the risk of being subject to the ancillary penalties of ineligibility and of loss of her mandate as a Member of the European Parliament and of all her elective mandates - was among the circumstances which the Parliament was required to take into account in order to determine whether the conditions for waiver of parliamentary immunity under Article 9 of the Protocol were met in the present case.
27 For the sake of completeness, the General Court found, in paragraph 101 of the judgment under appeal, that the committal for trial before the tribunal correctionnel (Criminal Court), referred to in paragraph 14 above, postdated the decision at issue and tended to contradict the appellant’s argument relating to the existence of fumus persecutionis on the part of the French judicial authorities. The General Court emphasised in that regard that, according to that order, the fact, inter alia, that the appellant is not the author of the tweet at issue does not mean that she cannot be the subject of proceedings pursuant to the loi du 29 juillet 1881 sur la liberté de la presse (Law of 29 July 1881 on the freedom of the press) (JORF of 30 July 1881, p. 4201), in the applicable version (‘the Law of 29 July 1881’).
28 The appellant claims that the Court should: - set aside the judgment under appeal; - annul the decision at issue; - make an appropriate order as to the sum to be awarded to her in respect of procedural fees; - order the Parliament to pay the costs.
29 The Parliament contends that the Court should dismiss the appeal and asks the Court to order the appellant to pay the costs.
30 In support of her appeal, the appellant raises two grounds of appeal, grouped together in a single section entitled ‘Infringement of EU law by the General Court - error in law and error in the classification of the legal nature of the facts - manifest error of assessment’. More specifically, the appellant complains that the General Court made ‘two manifest errors of assessment’ in its analysis both of the second and third pleas at first instance, errors which had ‘implications for the General Court’s legal classification of the remarks in respect of which proceedings were brought and of the context of those remarks’ and which resulted - wrongly - in the non-application of the provisions of Articles 8 and 9 of the Protocol in favour of the appellant.
31 By her first ground of appeal, the appellant, referring to paragraphs 47 and 52 to 54 of the judgment under appeal, complains that the General Court did not consider the tweet at issue to be an opinion expressed in the performance of her parliamentary duties. In support of that ground of appeal, the appellant puts forward three arguments.
32 In the first place, the General Court erred in finding that the occurrence commented on in the tweet at issue, owing to its geographical location in France, is not among the issues of interest to a Member of the European Parliament, although each Member of the European Parliament is an elected representative of his or her country, represents his or her electorate and, during his or her mandate, must maintain a necessary connection with that electorate, in particular by discussing events which interest or concern them.
33 In the second place, the General Court erred in holding that an opinion necessarily constitutes the adoption of a general position, excluding any reference to a specific occurrence. According to the appellant, that finding is contrary both to Notice No 11/2003, inter alia Principle No 2 thereof, and the Law of 29 July 1881, pursuant to which the tweet at issue is considered an opinion. Finally, the appellant relies on the judgment of 8 October 2009, Brunet-Lecomte and Tanant v. France (CE:ECHR:2009:1008JUD001266206), in which the European Court of Human Rights stated that an insulting or defamatory remark may become a subject for political debate and be protected on the basis of the fundamental right of freedom of expression, if there is a general interest in discussing it.
34 In the third place, the General Court wrongly considered that the highlighting by a Member of the Parliament of conduct which is contrary to French law is not a topical issue. In that regard, the appellant claims, first, that the wearing of a full-face veil in public places, as an external manifestation of adherence to Islam, is an ‘issue of general interest which concerns public life and women’s rights’. Second, the General Court should have applied the case-law laid down in the judgment of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543), according to which, in order to refuse to waive the parliamentary immunity of a Member, it should be ascertained whether that Member acted in the general interest of his or her electorate in the framework of his or her political activity.
35 The Parliament, for its part, contends that those three arguments are based on a misreading of the judgment under appeal and, therefore, the first ground of appeal must be rejected as unfounded.
36 By her first ground of appeal, the appellant complains, in essence, that the General Court infringed Article 8 of the Protocol by holding that the tweet at issue was not an opinion expressed in the performance of her parliamentary duties, within the meaning of that provision.
37 In that regard, it must be recalled that, in the first place, Article 8 of the Protocol constitutes a special provision intended to protect the freedom of expression and the independence of Members of the European Parliament, with the result that it prevents any judicial proceedings in respect of opinions expressed and votes cast by them in the performance of their parliamentary duties (see, to that effect, judgment of 6 September 2011, Patriciello, C‑163/10, EU:C:2011:543, paragraph 26 and the case-law cited).
38 In the second place, it is true that Article 8 of the Protocol, in the light of its objective and of its wording, which expressly refers to opinions expressed and votes cast by the Members of the European Parliament, is in essence intended to apply to statements made by those members within the very precincts of the Parliament. Nevertheless, it is not impossible that a statement made by a Member beyond those precincts may amount to an opinion expressed in the performance of his or her parliamentary duties because whether or not it is such an opinion depends, not on the place where the statement was made, but rather on its character and content. The concept of ‘opinion’, within the meaning of that provision, must therefore be understood in a wide sense to include remarks and statements that, by their content, correspond to assertions amounting to subjective appraisals (see, to that effect, judgment of 6 September 2011, Patriciello, C‑163/10, EU:C:2011:543, paragraphs 29, 30 and 32).
39 In the third place, since the immunity provided for in Article 8 of the Protocol is capable of definitively preventing judicial authorities and national courts from exercising their respective jurisdictions in the field of prosecutions and penalties for criminal offences and, as a corollary, denying the persons harmed by those opinions a judicial remedy, including, as the case may be, claiming compensation before the civil courts for the harm suffered, the connection between the opinion expressed by the Member and his or her parliamentary duties must be direct and obvious (see, to that effect, judgment of 6 September 2011, Patriciello, C‑163/10, EU:C:2011:543, paragraphs 33 to 35).
40 In the fourth place, unlike the parliamentary immunity provided for in subparagraph (a) of the first paragraph of Article 9 of the Protocol, which depends on national law, the extent of the immunity provided for in Article 8 of the Protocol must be established on the basis of EU law alone, for that article makes no reference to national laws (see, to that effect, judgment of 6 September 2011, Patriciello, C‑163/10, EU:C:2011:543, paragraph 25).
41 In the present case, as regards the first argument put forward in support of the first ground of appeal, it must be noted, as the Advocate General stated in points 61 to 63 of his Opinion, that, contrary to what the appellant argues, the General Court did not assert that the alleged occurrence commented on in the tweet at issue, owing to its geographical location in France, was not among the issues of interest to a Member of the European Parliament. Nor did it exclude the possibility that occurrences linked to problems related to Islamism and the infringement of women’s rights may constitute questions of general interest. The General Court held, in essence, in paragraph 53 of the judgment under appeal, that the tweet at issue, since it expressed more a desire to highlight conduct contrary to French law than a wish to defend women’s rights, could not be equated to the adoption of a more general position on topical issues or issues dealt with by the Parliament.
42 It follows that the first argument put forward in support of the first ground of appeal is based on a misreading of the judgment under appeal and must be rejected.
43 As regards the second argument put forward in support of the first ground of appeal, it must be noted, first, as the Advocate General noted in points 64 and 65 of his Opinion, that the General Court did not, in paragraph 46 of the judgment under appeal, limit the concept of ‘opinion’ within the meaning of Article 8 of the Protocol to the adoption of general positions, excluding any reference to a specific occurrence. On the contrary, the General Court, by invoking the case-law of the Court of Justice on the concept of ‘opinion’, recalled that that concept must be understood in a wide sense to include remarks and statements which, by their content, correspond to assertions amounting to subjective appraisals. The General Court therefore did not unduly limit that concept but merely found, at the end of its analysis, that there was no obvious, direct connection between the tweet at issue and the appellant’s parliamentary duties.
44 Second, Notice No 11/2003 relied on by the appellant, without prejudice to its legally non-binding nature, merely states, in Principle No 2, that demonstrations - even those made in the visitors’ gallery of a national parliament, at public meetings, in political publications, in the press, in a book, on television, by signing a political tract and even in a court of law - are considered expressions of opinion forming part of a Member’s political activity, so that immunity is not waived, but that notice does not however stipulate the conditions to be met for those opinions to fall under Article 8 of the Protocol specifically as opinions expressed or votes cast by the Members in the performance of their parliamentary duties. There is therefore nothing in that notice that can be relied on against the finding of the General Court that the tweet at issue did not fall within the performance of the appellant’s parliamentary duties, within the meaning of Article 8 of the Protocol, as interpreted inter alia by the judgment of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543, paragraphs 32 to 35).
45 Third, as has been observed in paragraph 40 above, since the extent of the immunity provided for in Article 8 of the Protocol must be established on the basis of EU law alone, the appellant’s argument based on the Law of 29 July 1881 is irrelevant and must be rejected as ineffective.
46 Fourth, the judgment of the European Court of Human Rights of 8 October 2009, Brunet-Lecomte and Tanant v. France (CE:ECHR:2009:1008JUD001266206), relied on by the appellant in that context, is also irrelevant. It is sufficient to note that that judgment does not concern the question whether a statement constitutes an opinion expressed by a Member of Parliament in the performance of his or her duties but concerns, as the appellant herself states, the possibility of considering that a defamatory remark is protected on the basis of the fundamental right to freedom of expression.
47 As regards the third argument raised in support of the first ground of appeal, it should be noted that, contrary to what the appellant claims, the General Court did not find that the fact that a Member highlights conduct which is contrary to national law is not a topical issue. In paragraph 53 of the judgment under appeal, the General Court merely found that the tweet at issue expressed more a desire to highlight conduct contrary to French law than a wish to defend women’s rights and, accordingly, the fact that the appellant was a substitute on the Parliament’s Committee on Women’s Rights and Gender Equality cannot allow the tweet at issue to be connected to her parliamentary duties.
48 It follows that the first ground of appeal, alleging infringement of Article 8 of the Protocol by the General Court, must be rejected as unfounded.
49 By her second ground of appeal, the appellant, by referring to paragraphs 61, 62, 96, 100 and 101 of the judgment under appeal, complains, in essence, that the General Court upheld the decision at issue by finding, erroneously, that the conditions required for the waiver of her parliamentary immunity were met. The appellant raises three arguments in support of that ground of appeal.
50 In the first place, the General Court erred in finding that it is not for the Parliament to ascertain whether the facts alleged against the Member in respect of whom a waiver of parliamentary immunity has been requested are established, even though the Parliament examined and acknowledged those facts.
51 In the second place, the General Court failed to draw the correct legal conclusions from Article 42 of the Law of 29 July 1881, which, in so far as it establishes a ‘hierarchy of liability’, allows the competent national authorities to bring proceedings against the actual author of the tweet at issue, in this case the appellant’s assistant.
52 In the third place, the General Court, in paragraph 101 of the judgment under appeal, drew from the order for committal for trial before the tribunal correctionnel (Criminal Court), referred to in paragraph 14 of this judgment, the opposite legal conclusion to that called for by that order, given that the appellant was not the author of the tweet at issue and removed it as soon as she became aware of it, which proves that she had no intention of committing an offence. In addition, the fact that the appellant was the only person to be referred to a tribunal correctionnel (Criminal Court), whereas the action against the actual author of the tweet at issue was time-barred, shows her ‘persecution by a judge’ and reveals an ‘intention to harm her politically, conduct which is characteristic of fumus persecutionis’.
53 The Parliament considers that the second ground of appeal is inadmissible since the three arguments relied on in support do not meet the requirements stemming from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, Article 168(1)(d) or Article 169 of the Rules of Procedure of the Court of Justice, or the case-law of the Court of Justice relating to the identification of the General Court’s errors capable of being relied on in support of an appeal; nor do they meet the criteria under which errors of assessment of the evidence can be reviewed by the Court of Justice in an appeal. The Parliament relies inter alia on the orders of 27 June 2013, Concal v Commission (C‑570/12 P, not published, EU:C:2013:440, paragraph 13), and of 16 September 2010, Dominio de la Vega v OHIM (C‑459/09 P, not published, EU:C:2010:533, paragraph 44).
54 By her second ground of appeal, the appellant complains, in essence, that the General Court infringed Article 9 of the Protocol by upholding the decision at issue.
55 It must be noted, as a preliminary point, that the line of argument put forward in support of the second ground of appeal identifies adequately the errors which the appellant claims the General Court made and, accordingly, contrary to what the Parliament contends, that ground must not be rejected from the outset as inadmissible.
56 As regards the examination of the substance of that ground, it must be recalled that, while subparagraph (a) of the first paragraph of Article 9 of the Protocol provides that, during the sessions of the European Parliament, Members enjoy, in the territory of their own State, the immunities accorded to members of parliament of their country, the third paragraph of that article states that the Parliament may decide to waive the immunity of one of its Members.
57 As regards the first argument put forward in support of the second ground of appeal, it must be noted that the General Court rightly found, in paragraphs 61, 62 and 96 of the judgment under appeal, that the question whether the conditions for waiver of immunity, pursuant to Article 9 of the Protocol, are met at the time when that waiver is requested is distinct from the question whether the facts alleged against the Member in question are established, the latter question falling within the competence of the authorities of the Member State.
58 While it is true that, as noted by the General Court in paragraph 100 of the judgment under appeal, the Parliament acknowledged, in the decision at issue, that the appellant was not the author of the tweet at issue and that she had deleted it as soon as she had become aware of it, that finding was merely intended to set out the facts brought to its attention in support of the request for waiver of the appellant’s parliamentary immunity and can in no way be equated to an assessment of the appellant’s responsibility for the possible use of her twitter account by her assistant, which may, depending on the circumstances, lead the Parliament to refuse to waive her parliamentary immunity, pursuant to Article 9 of the Protocol. Therefore the General Court did not err in law in holding that that fact had no effect on the lawfulness of the decision at issue.
59 As regards the second argument put forward in support of the second ground of appeal, by which the appellant complains that the General Court failed to draw the appropriate legal consequences from Article 42 of the Law of 29 July 1881, the fact remains that it was not for the Parliament, when adopting the decision at issue, or the General Court, during the examination of its lawfulness, to apply the Law of 29 July 1881. That argument is therefore also ineffective.
60 As regards the third argument, it is sufficient to note that it concerns paragraph 101 of the judgment under appeal which, as the General Court itself stated, sets out a plea included for the sake of completeness as opposed to those set out in paragraphs 99 and 100 of that judgment. First, the appellant does not challenge paragraph 99 of the judgment under appeal and, second, paragraph 100, as is apparent from paragraph 58 above, is not vitiated by any error in law. In those circumstances, that argument must be rejected as ineffective (see, to that effect, judgment of 30 May 2018, Azoulayand Others v Parliament, C‑390/17 P, EU:C:2018:347, paragraph 29).
61 As a result, the second ground of appeal must be rejected as in part unfounded and in part ineffective.
62 It follows from all of the foregoing that the present appeal must be dismissed.
63 In accordance with Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Parliament has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs of the appeal.