Members of the European Parliament: Privileges and immunities

My third Valentine’s Day post goes out with my best wishes to all readers and commentators as well as my fellow Eurobloggers and the aggregators of the Euroblogosphere at Bloggingportal.eu.

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After this outburst of sentimentalism, a quick return to the bricks and mortar of European integration.

Starting from the normal presentation of the current treaties and the Lisbon Treaty, this short detour began from the provisions on the European Parliament. The European elections are coming up in June 2009, so I wanted to look at the available official information about the basics concerning these largest supra-national elections in the world, with almost 400 million potential voters.

After the background and the general provisions concerning the European Parliament, we now look at what Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318, has to say about the Members of the European Parliament (MEPs):

CHAPTER III
MEMBERS OF THE EUROPEAN PARLIAMENT


Article 8

No administrative or other restriction shall be imposed on the free movement of Members of the European Parliament travelling to or from the place of meeting of the European Parliament.

Members of the European Parliament shall, in respect of customs and exchange control, be accorded:

(a) by their own government, the same facilities as those accorded to senior officials travelling abroad on temporary official missions;

(b) by the government of other Member States, the same facilities as those accorded to representatives of foreign governments on temporary official missions.


Article 9

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 10

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.

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Comment

These EU-wide parliamentary rights and immunities resemble those applicable nationally to parliamentarians in the member states, and they seem necessary for the functioning of the European Parliament.

Still, I am doubtful if provisions tying the members to the legal rules concerning the immunities accorded at national level are the right solution. If we think that the citizens of the European Union should be represented equally, the rules pertaining to their representatives (MEPs) should be the same, to the extent possible, shouldn’t they?


Ralf Grahn

European Parliament: Privileges and immunities

The previous blog post painted the background of the privileges and immunities of the European Communities. Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318, contains provisions relevant to the institutions, including the European Parliament.

Article 1 could be called the key-note provision:

Article 1

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

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Article 2 extends the inviolability to the archives of the Communities.

Articles 3 and 4 exempts the Communities from all direct taxes as well as indirect taxes and customs duties for all articles intended for official use.

Communications and travel documents enjoy the same privileges as diplomatic communications and passports (Articles 6 and 7).

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Government representatives

The European Union is the world’s largest international convention centre, so Article 11 concerns huge numbers of government representatives each year:

Article 11

Representatives of Member States taking part in the work of the institutions of the Communities, their advisers and technical experts shall, in the performance of their duties and during their travel to and from the place of meeting, enjoy the customary privileges, immunities and facilities.

This Article shall also apply to members of the advisory bodies of the Communities.

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EU officials

Officials and other servants of the Communities are immune from national legal proceedings concerning their official acts, exempt with their families from immigration restrictions and formalities, enjoy the currency exchange rules applicable to their counterparts in international organisations, have a right to import their furniture and personal car duty-free and are exempted from national taxes, subject to more exact rules (Articles 12 to 16).

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In short, the European Communities, including the institutions such as the European Parliament, are treated like international organisations and diplomatic missions.


Ralf Grahn

European Parliament: Privileges and immunities (background)

In some nightmares and some dreams the European Union may be a super-power or even a super-state, but its feet are firmly stuck in public international law. States are members, treaties form the foundations, the European Communities are international organisations and diplomatic relations are maintained inside and out.

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Diplomatic relations

Do you want to experience the public international law roots of the European Communities and the European Union?

For comparison and before you advance, read the ‘global’ codification of diplomatic law, the Vienna Convention on Diplomatic Relations, available for instance here:

http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf


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Current treaty

The general reference to the privileges and immunities of the European Community is Article 291 of the Treaty establishing the European Community (TEC), in the latest consolidated version of the treaties OJEU 29.12.2006 C 321 E/172:

Article 291 TEC

The Community shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol of 8 April 1965 on the privileges and immunities of the European Communities. The same shall apply to the European Central Bank, the European Monetary Institute, and the European Investment
Bank.


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Protocol currently

Annexed to the EC and Euratom treaties we find Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318.


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Lisbon Treaty

Despite the existing add-ons of supranational decision-making and representative democracy somewhat enhanced, the Treaty of Lisbon still stands firmly on the foundations of treaty law and diplomatic relations, far from a federal basic law.

The Treaty of Lisbon would replace the European Community by the European Union and it would drop the historic European Monetary Institute from the text, but the substance of the treaty provision on privileges and immunities is found alive and well in Article 343 of the Treaty on the Functioning of the European Union (TFEU), OJEU 9.5.2008 C 115/194.

In the consolidated Lisbon Treaty the protocol has drawn a new number, and it appears slightly updated as Protocol (No 7) on the privileges and immunities of the European Union (page 266 ff).

If anybody still needs convincing, the newest version of the Protocol still starts with the words ‘The High Contracting Parties’, hardly part of a federal vocabulary.


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Overview: Privileges and immunities

The Lisbon Treaty may enter into force during the legislative term from 2009 to 2014, but the European Parliament elections between 4 and 7 June 2009 are going to take place under the current Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC).

We continue our presentation of EU electoral law and the status of the European Parliament and its members (MEPs) with themes that seem a bit neglected by the member states and even by the EU institutions.

Ahead of the European elections it feels natural to proceed on the basis of the Protocol in force (although normally this blog dedicates more space to the Lisbon Treaty provisions than to the existing ones).

We start with a brief overview of Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318.

The ‘raison d’être’ of the privileges and immunities is functional:
… these Communities and the European Investment Bank shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of their tasks …


Here are the Chapter headings for a cursory glance at the contents:

Chapter I Property, funds, assets and operations of the European Community
Chapter II Communications and laissez-passer
Chapter III Members of the European Parliament
Chapter IV Representatives of the Member States taking part in the work of the institutions of the European Communities
Chapter V Officials and other servants of the European Communities
Chapter VI Privileges and immunities of missions of third countries accredited to the European Communities
Chapter VII General provisions


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With the European elections in June 2009 in mind, we advance towards the status of the European Parliament and the MEPs in the following posts.


Ralf Grahn

European Central Bank Id: Legal personality

With legal personality the European Central Bank the capacity to act, subject to the EC Treaty and the ESCB Statute. We look at both authority and limits, within the member states and internationally.

We take a peek at the ECB’s privileges and immunities.

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Legal personality

We remember that the European Central Bank is not mentioned among the European Community institutions in Article 7 of the Treaty establishing the European Community (TEC), but according to Article 8 TEC a European System of Central Banks (ESCB) and a European Central Bank (ECB) are established. They shall act within the limits of the powers conferred upon them by the TEC and by the treaty level Statute of the ESCB and the ECB.


Legal personality is one crucial aspect of these powers. Pursuant to Article 107(2) TEC, in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/88:

2. The ECB shall have legal personality.

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Internally

We notice that legal personality is accorded to the European Central Bank, not the European System of Central Banks.
Protocol (No 18) on the Statute of the European System of Central Banks and of the European Central Bank (1992) repeats, but also elaborates on the treaty provisions. Article 9.1 of the Statute adds the following, OJ 29.12.2006 C 321 E/259:

Article 9 ESCB Statute
The European Central Bank

9.1. The ECB which, in accordance with Article 107(2) of this Treaty, shall have legal personality, shall enjoy in each of the Member States the most extensive legal capacity accorded to legal persons under its law; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings.

9.2. The ECB shall ensure that the tasks conferred upon the ESCB under Article 105(2), (3) and (5) of this Treaty are implemented either by its own activities pursuant to this Statute or through the national central banks pursuant to Articles 12.1 and 14.

9.3. In accordance with Article 107(3) of this Treaty, the decision making bodies of the ECB shall be the Governing Council and the Executive Board.

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Within the European Community (EC), or more exactly “in each of the Member States” the ECB shall have “the most extensive legal capacity accorded to legal persons under its law”. In other words, the exact scope is determined by and it varies according to the law of the member state.

The Satute mentions two examples, which means that the powers of the ECB to act are not necessarily restricted to them. Internally, the ECB’s legal capacity (to act) includes the following in every member state:

The ECB has the right to acquire and to dispose of property, both movable and immovable.

The other important example is that the ECB may be a party to legal proceedings.

Naturally, the European Central Bank exercises its powers within the limits conferred by the TEC and by the Statute of the ESCB and the ECB (objectives, tasks, substantial and procedural limitations).

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Internationally

The International Court of Justice has given the following definition of the legal personality of an international organisation “That it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims” (as quoted in Ian Brownlie: Public International Law; Oxford University Press, 6th Edition, 2003; page 649).

Undoubtedly, the European Central Bank has capacity to act internationally, but subject to limitations. Naturally, the scope of the ECB’s activities is defined by its tasks (functionally). In addition, the ECB’s powers are limited by the competences accorded to the European Community, and in particular the EU Council.

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International agreements

According to Article 111(1) TEC, formal agreements on an exchange-rate system for the euro in relation to non-Community currencies are concluded by the Council. The Council adopts, adjusts or abandons the central rates of the euro within the exchange-rate system.

The Council may formulate general orientations for exchange-rate policy in relation to non-Community currencies; Article 111(2) TEC.

Pursuant to Article 111(3) TEC, agreements concerning monetary or foreign exchange regime matters are negotiated and concluded by the Council on behalf of the Community. These agreements are binding on the EC, the ECB and the member states. (Both the first and the third paragraph are exceptions to Article 300 on the normal procedures for international agreements.)

The Council decides the international position of the European Community on issues of particular relevance to economic and monetary union (EMU), as well as on EC representation. (Article 111(4) TEC, with references to Articles 99 and 105).

But, in matters directly pertaining to its powers, the European Central Bank has concluded agreements with international organisations. The anti-counterfeiting agreements with Europol and Interpol can be mentioned as examples.

Another example is the Headquarters Agreement between the Government of the Federal Republic of Germany and the ECB concerning the seat of the ECB (29.12.1998):

http://www.ecb.europa.eu/ecb/legal/pdf/en_headquarters_agreement_final.pdf

The Headquarters Agreement in German (original):

http://www.ecb.europa.eu/ecb/legal/pdf/de_headquarters_agreement_f_published.pdf

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Article 6.2 of the ESCB Statute foresees an international role for the ECB, in the form of participation in international monetary institutions, but subject to the EC positions defined by the Council, as indicated by Article 6.3 (OJ 29.12.2006 C 321 E/258):


Article 6 ESCB Statute
International cooperation

6.1. In the field of international cooperation involving the tasks entrusted to the ESCB, the ECB shall decide how the ESCB shall be represented.

6.2. The ECB and, subject to its approval, the national central banks may participate in international monetary institutions.

6.3. Articles 6.1 and 6.2 shall be without prejudice to Article 111(4) of this Treaty.

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Clearing and payment systems

ESCB Statute Article 22 confers powers with an international dimension on the European Central Bank:

Article 22 ESCB Statute
Clearing and payment systems

The ECB and national central banks may provide facilities, and the ECB may make regulations, to ensure efficient and sound clearing and payment systems within the Community and with other countries.

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International relations and transactions

Article 23 of the ESCB Statute authorises the ECB to establish relations with central banks and international (monetary) organisations (first indent) and conduct all types of banking transactions with third countries and international organisations (fourth indent).

Article 23 ESCB Statute
External operations

The ECB and national central banks may:

— establish relations with central banks and financial institutions in other countries and, where
appropriate, with international organisations;

— acquire and sell spot and forward all types of foreign exchange assets and precious metals; the
term ‘foreign exchange asset’ shall include securities and all other assets in the currency of any
country or units of account and in whatever form held;

— hold and manage the assets referred to in this Article;

— conduct all types of banking transactions in relations with third countries and international
organisations, including borrowing and lending operations.


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Privileges and immunities

Article 40 of the ESCB Statute refers to the Privileges and immunities of the ECB, a reminder of the intergovernmental (international law) roots of the European Central Bank (as part of the framework of the European Union and the European Communities).

Article 40 ESCB Statute
Privileges and immunities

The ECB shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol on the privileges and immunities of the European Communities.


Annexed to the Treaties establishing the European Community and the European Atomic Energy Community, Protocol (No 36) on the privileges and immunities of the European Communities (1965), accords to the Communities and to the European Investment Bank in the territories of the Member States such privileges and immunities as are necessary for the performance of their tasks;
OJ 29.12.2006 C 321 E/318


Article 23 of Protocol No 36 extends the application to the European Central Bank:

Article 23 Protocol on privileges and immunities

This Protocol shall also apply to the European Central Bank, to the members of its organs and to its staff, without prejudice to the provisions of the Protocol on the Statute of the European System of Central Banks and the European Central Bank.

The European Central Bank shall, in addition, be exempt from any form of taxation or imposition of a like nature on the occasion of any increase in its capital and from the various formalities which may be connected therewith in the State where the bank has its seat. The activities of the Bank and of its organs carried on in accordance with the Statute of the European System of Central Banks and of the European Central Bank shall not be subject to any turnover tax.

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The privileges and immunities granted to the European Communities and the European Central Bank are largely comparable with privileges and immunities customary in diplomatic relations, as codified under the aegis of the United Nations in the Vienna Convention on Diplomatic Relations (1961; in force since 1964).

The Vienna Convention can be accessed at:

http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf

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Liability

The principles regarding the European Community’s non-contractual liability apply to damage caused by the European Central Bank or its servants in the performance of their duties; Article 288 TEC. Pursuant to Article 235 TEC, the Court of Justice has jurisdiction.



Ralf Grahn