European Parliament 2014-2019 Plenary sitting A8-0223/2017 13.6.2017 REPORT on the request for waiver of the immunity of Marine Le Pen (2017/2021(IMM)) Committee on Legal Affairs Rapporteur: Sajjad Karim RR\1128185.docx PE606.036v02-00 United in diversity
PR_IMM_Waiver CONTTS Page PROPOSAL FOR A EUROPEAN PARLIAMT DECISION... 3 EXPLANATORY STATEMT... 6 INFORMATION ON ADOPTION IN COMMITTEE RESPONSIBLE... 12 PE606.036v02-00 2/12 RR\1128185.docx
PROPOSAL FOR A EUROPEAN PARLIAMT DECISION on the request for waiver of the immunity of Marine Le Pen (2017/2021(IMM)) The European Parliament, having regard to the request for waiver of the immunity of Marine Le Pen, forwarded on 9 December 2016 by Pascal Guinot, the Prosecutor-General at the Court of Appeal of Aix-en-Provence, and announced in plenary on 19 January 2017, having invited Ms Le Pen to be heard on 29 May and 12 June 2017, in accordance with Rule 9(6) of its Rules of Procedure, having regard to Articles 8 and 9 of Protocol No 7 on the Privileges and Immunities of the European Union, and Article 6(2) of the Act of 20 September 1976 concerning the election of the representatives of the European Parliament by direct universal suffrage, having regard to the judgments of the Court of Justice of the European Union of 12 May 1964, 10 July 1986, 15 and 21 October 2008, 19 March 2010, 6 September 2011 and 17 January 2013 1, having regard to Articles 23(1), 29(1), 30 and 31(1) of the Act of 29 July 1981 and Articles 93-2 and 93-3 of the Act of 29 July 1982, having regard to Rule 5(2), Rule 6(1) and Rule 9 of its Rules of Procedure, having regard to the report of the Committee on Legal Affairs (A8-0223/2017), A. whereas the Prosecutor-General at the Court of Appeal has requested the waiver of immunity of a Member of the European Parliament, Marine Le Pen, in connection with a legal action concerning an alleged offence; B. whereas, pursuant to Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union, 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. C. whereas, pursuant to Article 9 of Protocol No 7, during the sessions of the European Parliament, its Members shall enjoy, in the territory of their own state, the immunities accorded to members of their parliament; D. whereas Article 26(2) of the French Constitution provides that no Member of 1 Judgment of the Court of Justice of 12 May 1964, Wagner v Fohrmann and Krier, 101/63, ECLI:EU:C:1964:28; judgment of the Court of Justice of 10 July 1986, Wybot v Faure and others, 149/85, ECLI:EU:C:1986:310; judgment of the General Court of 15 October 2008, Mote v Parliament, T-345/05, ECLI:EU:T:2008:440; judgment of the Court of Justice of 21 October 2008, Marra v De Gregorio and Clemente, C-200/07 and C-201/07, ECLI:EU:C:2008:579; judgment of the General Court of 19 March 2010, Gollnisch v Parliament, T-42/06, ECLI:EU:T:2010:102; judgment of the Court of Justice of 6 September 2011, Patriciello, C-163/10, ECLI: EU:C:2011:543; judgment of the General Court of 17 January 2013, Gollnisch v Parliament, T-346/11 and T-347/11, ECLI:EU:T:2013:23. RR\1128185.docx 3/12 PE606.036v02-00
Parliament shall be arrested for a serious crime or other major offence, nor shall he be subjected to any other custodial or semi-custodial measure, without the authorisation of the Bureau of the House of which he is a member, and that such authorisation shall not be required in the case of a serious crime or other major offence committed flagrante delicto or when a conviction has become final; E. whereas Marine Le Pen is accused of public defamation of a publicly elected official, an offence provided for in French law, namely in Articles 23(1), 29(1), 30 and 31(1) of the Act of 29 July 1981 and Articles 93-2 and 93-3 of the Act of 29 July 1982; F. whereas on 28 July 2015 Christian Estrosi filed with the senior examining magistrate in Nice an application to join a civil action to legal proceedings against Marine Le Pen on the grounds of public defamation of a publicly elected official with a temporary mandate; whereas he asserts that on 3 May 2015, during the programme Le Grand Rendez-vous, which was broadcast simultaneously on itélé and Europe 1, Marine Le Pen made the following remarks constituting allegations or imputations against him which were a slur on his honour or slight to his reputation: Listen, what I know is this: Mr Estrosi has financed the UOIF (Union of Islamic Organisations in France); he has been found guilty by the administrative justice system of having accorded such a low rent for a UOIF mosque that even the administrative court rapped him over the knuckles, which is a reflection, in fact, of the way in which these mayors are illegally funding mosques, in violation of the 1905 law; when you are caught with your fingers in the clientelist, religious-community honeypot, of course you have to give out and say shocking things, but I attach little importance to words and more to actions... ; in response to a question from the interviewer, So, Estrosi an accomplice of jihadis?, Ms Le Pen allegedly stated: Help, providing resources, assistance; when you help Islamic fundamentalism to establish itself, to spread, to recruit, well, somewhere in all that, morally, yes, you are a little bit complicit ; G. whereas Marine Le Pen has been invited twice for a hearing, in accordance with Rule 9(6) of the Rules of Procedure; whereas, however, she has not taken the opportunity to submit her observations to the committee responsible; H. whereas the alleged action does not have a direct or obvious connection with Marine Le Pen s performance of her duties as a Member of the European Parliament, nor do the words uttered by her constitute opinions expressed or votes cast in the performance of her duties as a Member of the European Parliament for the purposes of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union; I. whereas, having regard to Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union, the accusations are manifestly unrelated to the position of Marine Le Pen as a Member of the European Parliament and relate instead to activities of a solely national or regional nature, and whereas Article 8 is therefore not applicable; J. whereas only the immunity covered by Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union is capable of being waived; K. whereas, having regard to Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union, there is no reason to suspect that the request for waiver was PE606.036v02-00 4/12 RR\1128185.docx
made in order to attempt to obstruct the parliamentary work of Marine Le Pen or with the intention of causing her political damage (fumus persecutionis); 1. Decides to waive the immunity of Marine Le Pen; 2. Instructs its President to forward this decision and the report of its committee responsible immediately to the competent authority in France and to Marine Le Pen. RR\1128185.docx 5/12 PE606.036v02-00
EXPLANATORY STATEMT 1. Background At the sitting of 19 January 2017, the President announced, under Rule 9(1) of the Rules of Procedure, that he had received a letter sent to him on 9 December 2016 by the Prosecutor General at the Court of Appeal of Aix-en-Provence, Dr Pascal Guinot, requesting the waiver of the immunity of Marine Le Pen. The Prosecutor General at the Court of Appeal of Aix-en-Provence made the request after receiving a request for the waiver of immunity from Ms Tallone, Vice-President and examining magistrate at Nice Regional Court. The President referred the request to the Committee on Legal Affairs under Rule 9(1). The request for the waiver of the immunity of Marine Le Pen is made on the basis that Ms Le Pen may be reasonably suspected of having committed the offence of public defamation against a publicly-elected official according to Articles 23(1), 29(I), 30 and 31(1) of the Act of 29 July 1881, and Articles 93-2 and 93-3 of the Act of 29 July 1982. According to Article 23(1) of the Act of 29 July 1881, any person shall be punished as an accomplice to an action classified as a crime who, (a) by means of speech, shouting or threats in public places or at public meetings, or (b) by means of writings, printed matter, drawings, engravings, paintings, emblems, images or any other medium for the conveyance of writing, speech or images sold or distributed, offered for sale or displayed in public places or at public meetings, or (c) by means of placards or posters displayed to the public, or (d) by any electronic means of communication to the public, has directly incited the perpetrator or perpetrators to commit such action, if the incitement has had the intended effect. According to Article 29(I) of the above-mentioned Act, any allegation or imputation of a fact which damages the honour or reputation of the person or body to whom the fact is imputed shall constitute defamation. Direct publication or publication by way of reproduction of such an allegation or imputation shall be a criminal offence, even if it is performed in a manner expressing doubt or if it refers to a person or body not explicitly named but whose identification is rendered possible by the terms of the speech, shouts, threats, writings or printed matter, placards or posters classified as criminal ; and, according to Articles 30 and 31(1), defamation committed by one of the means referred to in Article 23 against courts, the army, the navy, the air force, established institutions and public authorities shall render the perpetrator liable to a fine of EUR 45 000 ; the same punishment shall be imposed for defamation committed by the same means, by reason of their office or capacity, against the President of the Republic, one or more holders of ministerial office, one or more members of either chamber of the legislature, a public official, a trustee or agent of a public authority, a minister of one of the religions remunerated by the State, a citizen to whom a public service or a temporary or permanent public office is entrusted, a juror or a witness, on account of his or her testimony. Any offensive expression, term of contempt or invective which does not include the imputation of any fact shall constitute an insult. Articles 93-2 and 93-3 of the Act of 29 July 1982 read as follows : Any service for communication to the public by electronic means shall have an editor. Where the editor enjoys parliamentary immunity under the terms laid down by Article 26 of the Constitution PE606.036v02-00 6/12 RR\1128185.docx
and Articles 9 and 10 of the Protocol of 8 April 1965 on the privileges and immunities of the European Communities, he shall appoint a co-editor selected from among persons who do not enjoy parliamentary immunity and, where the communication service is provided by a legal person, among members of the association, the board of directors, the governing board or the managers, as determined by the form of the legal person concerned. The co-editor must be appointed within one month of the date from which the editor enjoys the immunity referred to in the previous paragraph. The editor and, where applicable, the co-editor of the publication must have reached the age of majority, must have the enjoyment of their civil rights and must not have been deprived of their rights as citizens by any sentence of a court. By way of exception, a minor aged at least sixteen years may be appointed editor or co-editor of a publication which is produced on a voluntary basis. The parents of a minor aged at least sixteen years who has been appointed editor or co-editor of a publication may be held liable under Article 1242 of the Civil Code only if the minor has committed an act such as to render him or her liable in the civil law under the terms referred to in the Law of 29 July 1881 on freedom of the press. All the legal obligations incumbent on the editor of the publication shall apply to the co-editor of the publication. Where the service is provided by a legal person, the editor of the publication shall be the chair of the management board or board of directors, the manager or the legal representative, as determined by the form of the legal person. Where the service is provided by a natural person, the editor of the publication shall be that natural person. If any of the offences referred to in Chapter IV of the Law of 29 July 1881 on freedom of the press is committed through an electronic medium of communication to the public, the director of the publication or, in the circumstances referred to in the second paragraph of Article 93-2 of this law, the co-editor of the publication, shall be prosecuted as the principal perpetrator where the message giving rise to prosecution has been formulated before its communication to the public. Where that is not the case, the author, and failing the author, the producer, shall be prosecuted as the principal perpetrator. Where the editor or co-editor of the publication is held to be at fault, the author shall be prosecuted as an accomplice. Any person to whom Article 121-7 of the Criminal Code applies may also be prosecuted as an accomplice. Where the offence arises from the content of a message addressed by an internet user to a service for on-line communication to the public and made available to the public by that service in a forum for personal contributions identified as such, the editor or co-editor of the publication may not be held liable as the principal author if it is established that he or she was not genuinely aware of the message before it was placed on line or, if at the time when he or she became aware of it, he or she acted promptly to remove the message. According to the information provided by the Prosecutor General, on 28 July 2015, Christian Estrosi filed with the senior examining magistrate in Nice an application to join a civil action to legal proceedings against Ms Marine Le Pen on the grounds of public defamation of a publicly-elected official with a temporary mandate. Mr Estrosi asserts that on 3 May 2015, during the programme Le Grand Rendez-vous, which was broadcast simultaneously on itele and Europe 1, Ms Le Pen made the following remarks constituting allegations or imputations against him which were a slur on his honour or slight to his reputation: Listen, what I know is this: Mr Estrosi has financed the UOIF (Union of Islamic Organisations in France); he has been found guilty by the administrative justice system of having accorded such a low rent for a UOIF mosque that even the administrative court rapped him over the knuckles; which is a reflection, in fact, of the way in which these mayors are illegally funding mosques, in violation of the 1905 law ; help, providing resources, assistance; when you help Islamic RR\1128185.docx 7/12 PE606.036v02-00
fundamentalism to establish itself, to spread, to recruit, well, somewhere in all that, morally, you are a little bit complicit. Additionally, Ms Le Pen has twice been called for examination, but has informed the Court, via her lawyer, that she enjoyed immunity in her capacity as a Member of the European Parliament. It is further noted that, in accordance with the case law of the Court of Cassation (Cass. Crim.26 May 1992), the sole role of the court would be to conduct an initial examination of the author of those remarks as the role of examining magistrate is not, in press matters, to seek or receive evidence on the truth of the defamation. Therefore, it would be necessary that Ms Le Pen s parliamentary immunity be waived with the mere aim for the Court of Appeal of Aix-en-Provence of being able to conduct its initial examination on this count. The President referred this request to the Committee on Legal Affairs under Rule 9(1). Ms Le Pen was invited to be heard by the Committee on 29 May and 12 June 2017 in accordance with Rule 9(5). 2. Law and procedure on the immunity of Members of the European Parliament Articles 8 and 9 of the Protocol (No 7) on the Privileges and Immunities of the European Union read as follows: Article 8 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. Article 9 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 other Member States, immunity from any measures or 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. Rules 6(1) and 9 of the Rules of Procedure of the European Parliament read as follows: PE606.036v02-00 8/12 RR\1128185.docx
Rule 6 Waiver of immunity 1. Any request for waiver of immunity shall be evaluated in accordance with Articles 7, 8 and 9 of the Protocol on the Privileges and Immunities of the European Union and with the principles referred to in Rule 5(2). Rule 9 Procedures on immunity 1. Any request addressed to the President by a competent authority of a Member State that the immunity of a Member be waived, or by a Member or a former Member that privileges and immunities be defended, shall be announced in Parliament and referred to the committee responsible. 2. With the agreement of the Member or the former Member concerned, the request may be made by another Member, who shall be permitted to represent the Member or former Member concerned at all stages of the procedure. The Member who represents the Member or the former Member concerned shall not be involved in the decisions taken by the committee. 3. The committee shall consider without delay, but having regard to their relative complexity, requests for the waiver of immunity or requests for the defence of privileges and immunities. 4. The committee shall make a proposal for a reasoned decision which recommends the adoption or rejection of the request for the waiver of immunity or for the defence of privileges and immunities. Amendments shall be inadmissible. If a proposal is rejected, the contrary decision shall be deemed to have been adopted. 5. The committee may ask the authority concerned to provide any information or explanation which the committee deems necessary in order for it to form an opinion on whether immunity should be waived or defended. 6. The Member concerned shall be given an opportunity to be heard and may present any documents or other written evidence deemed by that Member to be relevant. The Member shall not be present during debates on the request for waiver or defence of his or her immunity, except for the hearing itself. The chair of the committee shall invite the Member to be heard, indicating a date and time. The Member may renounce the right to be heard. If the Member fails to attend the hearing pursuant to that invitation, he or she shall be deemed to have renounced the right to be heard, unless he or she has asked to be excused from being heard on the date and at the time proposed, giving reasons. The RR\1128185.docx 9/12 PE606.036v02-00
chair of the committee shall rule on whether such a request to be excused is to be accepted in view of the reasons given, and no appeals shall be permitted on this point. If the chair of the committee grants the request to be excused, he or she shall invite the Member to be heard at a new date and time. If the Member fails to comply with the second invitation to be heard, the procedure shall continue without the Member having been heard. No further requests to be excused, or to be heard, may then be accepted. 7. Where the request seeks the waiver or the defence of immunity on several counts, each of these may be the subject of a separate decision. The committee s report may, exceptionally, propose that the waiver or the defence of immunity should apply solely to prosecution proceedings and that, until a final sentence is passed, the Member should be immune from any form of detention or remand or any other measure which prevents that Member from performing the duties proper to the mandate. 8. The committee may offer a reasoned opinion as to the competence of the authority in question and the admissibility of the request, but shall not, under any circumstances, pronounce on the guilt or otherwise of the Member nor on whether or not the opinions or acts attributed to him or her justify prosecution, even if, in considering the request, it acquires detailed knowledge of the facts of the case. (...) 3. Justification for the proposed decision On the basis of the aforementioned facts, this case qualifies for the application of Article 9 of the Protocol No 7 on the Privileges and Immunities of the European Union. Pursuant to that provision, Members enjoy, in the territory of their own State, the immunities accorded to members of the Parliament of that Member State. In turn, Article 26 of the French Constitution provides that no Member of the Parliament shall be prosecuted, investigated, arrested, detained or tried in respect of opinions expressed or votes cast in the performance of his official duties and no member of parliament may be arrested for a crime or be the subject of any other custodial or semi-custodial measure without the authorisation of the parliament. In order to decide whether or not to waive a Member s parliamentary immunity, the European Parliament applies its own consistent principles. One of these principles is that immunity is usually waived when the offence falls within Article 9 of the Protocol No 7, provided that there is no fumus persecutionis, i.e. a sufficiently serious and precise suspicion that the matter is being raised with the intention of causing political damage to the Member concerned. There are no grounds for considering that there is fumus persecutionis in this case. As for Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union, the Court of Justice has held that for a Member of the European Parliament to enjoy absolute immunity under that provision an opinion must be expressed by the Member in the PE606.036v02-00 10/12 RR\1128185.docx
performance of her duties, thus entailing the requirement of a direct and obvious link between the opinion expressed and the parliamentary duties 1. It is manifestly not the case here that the statements allegedly made by Ms Le Pen constitute opinions expressed by her as a Member of the European Parliament in the performance of her duties within the meaning of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union as interpreted by the Court of Justice. 4. Conclusion On the basis of the above considerations and pursuant to Rule 9(4) of the Rules of Procedure, the Committee on Legal Affairs recommends that the European Parliament should waive the parliamentary immunity of Ms Marine Le Pen. 1 Judgment of the Court of Justice of 6 September 2011, Patriciello, C-163/10, ECLI: EU:C:2011:543, para. 35. RR\1128185.docx 11/12 PE606.036v02-00
INFORMATION ON ADOPTION IN COMMITTEE RESPONSIBLE Date adopted 13.6.2017 Result of final vote +: : 0: 14 1 2 Members present for the final vote Substitutes present for the final vote Joëlle Bergeron, Mady Delvaux, Rosa Estaràs Ferragut, Laura Ferrara, Mary Honeyball, Sajjad Karim, Sylvia-Yvonne Kaufmann, António Marinho e Pinto, Emil Radev, Evelyn Regner, Pavel Svoboda, Axel Voss, Tadeusz Zwiefka Daniel Buda, Angel Dzhambazki, Heidi Hautala, Jens Rohde PE606.036v02-00 12/12 RR\1128185.docx