DRAFT FOR A PROTOCOL REVISING THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES OF 8 APRIL 1965 IN RESPECT OF MEMBERS OF THE EUROPEAN PARLIAMENT

ARCHIVES HISTORIQUES
DE LA COMMISSION



COLLECTION RELIEE DES
DOCUMENTS "COM"




COM (84) 666



Vol. 1984/0245

Disclaimer
Conformément au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983
concernant l'ouverture au public des archives historiques de la Communauté économique
européenne et de la Communauté européenne de l'énergie atomique (JO L 43 du 15.2.1983,
p. 1), tel que modifié par le règlement (CE, Euratom) n° 1700/2003 du 22 septembre 2003
(JO L 243 du 27.9.2003, p. 1), ce dossier est ouvert au public. Le cas échéant, les documents
classifiés présents dans ce dossier ont été déclassifiés conformément à l'article 5 dudit
règlement.
In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983
concerning the opening to the public of the historical archives of the European Economic
Community and the European Atomic Energy Community (OJ L 43, 15.2.1983, p. 1), as
amended by Regulation (EC, Euratom) No 1700/2003 of 22 September 2003 (OJ L 243,
27.9.2003, p. 1), this file is open to the public. Where necessary, classified documents in this
file have been declassified in conformity with Article 5 of the aforementioned regulation.
In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1.
Februar 1983 über die Freigabe der historischen Archive der Europäischen
Wirtschaftsgemeinschaft und der Europäischen Atomgemeinschaft (ABI. L 43 vom 15.2.1983,
S. 1), geändert durch die Verordnung (EG, Euratom) Nr. 1700/2003 vom 22. September 2003
(ABI. L 243 vom 27.9.2003, S. 1), ist diese Datei der Öffentlichkeit zugänglich. Soweit
erforderlich, wurden die Verschlusssachen in dieser Datei in Übereinstimmung mit Artikel 5
der genannten Verordnung freigegeben.
COMMISSION OF THE EUROPEAN COMMUNITIES
COM (84) 666 final
Brussels, 30 November 1984
Draft for a Protocol
revising the Protocol on the Privileges and Immunities
of the European Communities
of 8 April 1965
in respect of Members of the European Parliament
COM (84) 666 final
Draft
revision of the Protocol on Privileges and Immunities of
8 April 1965 to be submitted by the Commission to the
Council in accordance with Artie Los 236 EEC, 204 Euratom
and 96 ECSC
(action in ’"esponse to a request from Parliament dated 14 November 1983)
E x p l a n a t o r y Memorandum
BACKGROUND
1. By letter from its President dated 11 October 1983, Parliament forwarded
to the Council its Resolution of 15 September 1983 on the Statute of its
members, together with the proposal drawn up by its enlarged Bureau in
accordance with paragraph 3 of the Resolution.
The proposal is in two parts :
- Part A : Remuneration and social security benefits;
- Part B : Adaptations to the Protocol on Privileges and Immunities of
8 April 1965.
The Resolution and accompanying proposal are attached at Annex I.
2. Part A contains provisions“ concerning the social security benefits and
emoluments of members of Parliament, on whose behalf Parliament has a
right of initiative under Article 13 of the Act of 20 September 1976
concerning the election of the representatives of the Assembly by direct
universal suffrage.
Since Article 13 of the Act provides that the Commission shall be
consulted by the Council, the latter sought the Commission's opinion by
letter dated 9 December 1983.
- 2 -
The Commission i s c u r r e n t l y s t u d y i n g t h e abovem ent i oned p r o v i s i o n s
and w i l l subm i t an o p i n i o n t o t h e C o u n c i l i n due c o u r s e .
3'. This draft on the other hand, is concerned with part B, which deals
with adaptations to the. Protocol on Privileges and Immunities of
8 April 1965.
This subject is not covered by Article 13 of the Act of 20 September 1976,
so Parliament has no right of initiative. This being so, oy letter from
its President dated 14 November 1983, Parliament sent part B to the
Commission, requesting it to submit the instrument to the Council in
accordance with the appropriate procedures.
EXAMINATION OF PARLIAMENT'S REQUEST
1. Content
The revision of the Protocol on Privileges and Immunities '-ailed for by
Parliament is intended to achieve as for as possible equal treatment of
all members of Parliament, by defining their status at Community level
rather than by reference to national law. Whereas the wording of the current
Protocol is based on freedom of movement for members of the Europecn Parliament
from their countries of origin to the places of work in order to take part
in Parliament's activities, the proposed Statute takes account of the fact
that, like the members and staff of the other Institutions, members of
-'Parliament and their families settle neai one of the places of work.
The common Statute should ensure:
- freedom of movement within the Community;
- the right to withhold evidence;
- parliamentary immunity;
- assistance with removals Parliament's places of work.
- 3 -
The text of the provisions which Parliament requests the Commission to
insert in a draft revision of the Protocol on Privileges and Immunities
which it would submit to the Council is as follows (*) :
Article 8
(single paragraph replacing the former first paragraph, the second paragraph
being deleted)
No adminis urative or other restriction shall be imposed an the free
movement of Members of the Assembly travelling within th a Community.
Article 9
(paragraph 1 stands, paragraph 2 new)
1. ( . . . )
2. Members of the Assembly may withhold evidence insofar as such evidence
has a bearing on their activities as Members of the European Parliament.
To that extent the impounding of documents shall also be forbidden.
Article 10 (new)
Members of the Assembly shall enjoy in the territory of he Member States
immunity from any measure of detention and from legal pr
Immunity cannot be claimed when a Member is found in the act of committing
an offence and shall not prevent the Assembly from exerc;sing its right
to waive the immunity of one of its Members. Further pro\isions shall be
laid down in the Rules of Procedure of the Assembly.
Article 19a (new)
Article 12, (b) to (e), and .Articles 14 and 18 shall also apply to
Members of the Assembly.
(*) The current text of the articles in question is set out in full in
Annex II.
42. Assessment
Parliament's request seems on the whole justified, provided certain limits
to the privileges and immunities are specified and certain improvements
are made to the form.
Regarding freedom of movement
The Protocol can ensure the free movement of members of the European
Parliament only in so far as such movement takes place in connection with
the performance of their duties.
This restriction can be inserted by amending the current /article 8 of the
Protocol as follows:
"No administrative or other restriction shall be imposed on the free movement
of members of the Assembly travelling within the Community in connection
with the performance of their duties."
Regarding the transfer of residence
For purposes of clarification and in keeping with Parliament's objective,
which seems to be to grant the right of transfer of reside nee only as tar
as its own places of work are concerned (cf. page 1, point 6 c of its
proposal : "the possibility of [x?rnanent1y residing at tin place (or places)
at which the institution concerned undertakes its activiti ?s"t, the follo­
wing wording might be considered:
"Article 12 (b) to (e) and Article 14 shall apply to members of the
Assembly who take up residence at one of the places of wore of the
Assembly."
Moreover, this provision belongs more in the chapter entlited "Members
of the Assembly" than in the general provisions.
It is therefore proposed that the above text be inserted in Article 8 in
lieu of the second paragraph, instead of turning it into an ArticJe 19 a
as requested by Parliament.
- 5 -
The reference in Parliament's text to Article 18 would te replaced
by an amendment of that article, with the addition of "and to
members of the Assembly" after "other servants of the Communities".
Summary
The amedments would thus affect Articles 8, 9 , 10 ;md 18, without the
addition of a new Article I'M.
A draft revision is attache«i (Annex III).
IMPROVEMENT OF THE TORDING OF THE PROTOCOL WHICH MK iHT BE ACHIEVED AT
THIS JUNCTURE
Article 15 of the Protocol is now superseded by Article 24 of the
Treaty establishing a Single Council and a Single Commission of the
European Communities. It is considered advisable to take the
opportunity afforded by the draft amendment to adapt Article 15.
A N N E X E S
ANNEX I Request from the· European Parliament
ANNEX II Relevant articles of the Protocol on Privileges
and Immunities
ANNEX III Draft revision of the Protocol on Privileges
and Immunities
an n e x I
REQUEST FROM THE EUROPEAN PARLIAMENT
iannex L ) , Z ?
European Parliament
The President
Strasbourg, 14 November 1983
Mr Gaston THORN
President of the Commission
Commission of the
European Communities
200, rue de la Loi
B - 1040 Brussels
Sir,
Following a resolution adopted by Parliament on 15 September, the enlarged
Bureau, at its meeting on 29 September, approved a draft Statute amending
the Protocol on Privileges and Immunities of 8 April 1965. This draft was
sent to the Council on 11 October.
I have the honour to forward to you this proposal and request the
Commission to submit to the Council, in accordance with the appropriate
procedures, the text concerning the amendments to the Protocol on Privi­
leges and Immunities.
(Complimentary close)
P. DANKHRT
Annexes
^Annex I) . 5>
E U R O P E A N P A R L I A M E N T
e n l a r g e d BUREAU
PROPOSAL
for a
common Statute
of
Members of the European Parliament
Part B : Adaptations to the Protocol on Privileges and Immunities
of 8 April 1965
29 September 1983 PE 67.748
(Annex I ) . t/
1. At the cotranencament of its activities, the Working Party already found
that the provisions^" relating to Members of the European Parliament in the
Protocol on Privileges and Immunities of 8 April 1965 required certain
changes and additions. On 19 September 1980 the Working Party decided to
define the necessary changes in detail to enable the European Parliament to
submit appropriate proposals if necessary to the Member States.
2. From the procedural angle it will be noted that the Protocol on the
Privileges and Immunities of the European Communities is directly linked
with the Merger Treaty and thus constitutes a treaty between the Member States
which can only be amended by a further treaty between the Member States.
In formal terms the Commission (pursuant to Article 236 EEC) is empowered
to propose amendments to treaties and also to a protocol. Parliament need
only be consulted on proposed amendments of this kind. However it is certain-
ly possible for Parliament to draft proposed texts and submit them to the
Commission to enable the latter to initiate the procedure under Article 236
EEC which requires the assent of -the parliaments of all the Member States.
3. Chapter III of the Protocol headed 'Members of the Assembly' deals only
with certain areas of the Statute of Members:
- Protection against legal proceedings in respect of the performance of
parliamentary duties (Article 9)
- Immunity against legal proceedings (Article 10)
- Facilities during travel (Article 8).
4. A comparison with the status defined in the Protocol for permanent
members of other institutions (i.e. members of the Commission, Court of
Auditors and Court of Justice) shows immediately that provisions applicable
in the past to Members of the European Parliament were based on a fundamentally
different approach!
When the Protocol was drafted all Members of the European Parliament
were necessarily members of a national parliament. Their status in the
European Parliament was derived from their national status. It was therefore
justifiable to view the Community provisions on their status as a mere
addition by reason of the fact that activi les in the European Parliament
were only secondary.
1 The text is reproduced in an annex.
Articles 8-12 apply to Members of the European Parliament.
- 2 - PE 6 7 . 7 4 8
(Annex I). 5
5. Thia situation has undergone a fundamental change since direct
•lections but the Protocol has not been adapted accordingly:
The overwhelming majority of Members no longer belong to a national
parliament and fojf' a great many Members of the European Parliament their
activities in that parliament are their principal occupation. It should also
be noted that the mandate of these Members is no longer derived from a
decision of the national parliaments but from direct election by all the
citizens of the Community Member States.
6. It follows from this change in circumstances due to the direct
elections that the Members of the European Parliament are now appointed to
their office in a similar manner to the members of the other institutions
who hold and exercise their mandates for a definite period of time. On tne
basis of the legal status accorded by the Protocol on Privileges and
*
Immunities to Members of the Commission, Court of Justice and Court of
Auditors, the following conclusions can be drawn:
(a) The status of fully employed member of a Community institution neces­
sitates as far as possible equal treatment of all members of the
institution and a definition of their status at Community level.
(b) The status of full-time member of a Community institution requires the
maximum freedom of movement within the Community to enable the persons
concerned to effectively perform the duties attributed to their
institution.
(c) Finally the status of full-time member of a Community institution
necessitates the possibility of permanently residing at the place (or
places) at which the institution concerned undertakes its activities
without hindranco from taxation, currency, labour law and other
administrative provisions.
7. In the case of Members of the European Parliament, there are at present
many shortcomings in this stacus:
, . . 2
The principle cf equal treatment does not apply to parliamentary immunity .
Article 10 of the Protocol admittedly grants a specific Community immunity
from legal proceedings to Members of the European Parliament but this immunity
is essentially based on the immunity 'of their own state'. The European
Parliament must therefore examine in each case which law of immunity is
applicable in the Member State whose nationality the Member of Patliamanc
concerned has when an application for immunity to be lifted is made. However,
2 The problem of equal financial treatment has already been discussed by the
Working Party, see report by Mr Simpson, Doc. PE 63.928/rev.
- 3 - PE 6 7 . 7 4 8
(Annex I), 6
since procedural law forms part of the national law of immunity, the
European Parliament ic obliged to examine in each case whether the national
procedures (which naturally differ) are observed. This is not only time-
consuming but alBO entails a risk of incorrect interpretation of the
relevant national law. For this reason alone the creation of a Community
Law on Immunity is imperative·3.
8. Freedom of movement of Members of the European Parliament within the
Community as a whole has also not yet been achieved in a manner appropriate
to the European mandate. Article 8(1) of the Protocol only exempts the
Member from administrative and other limitations on the journey to and from
the place of meeting of the Assembly. On all other journeys the general
provisions on entry and residence applicable to EC citizens also appLy to
Members of the European Parliament. This means for instance that a Member
whO'is not travelling to the place of meeting of Parliament can be refused
entry by invoking reasons of public security and public order.
Since the journeys effected by Members of the European Parliament in the
context of their manifold duties cannot be confined to travel to and from
the place of meeting, the Protocol should be amended by deleting the words
'to or from the place of meeting of the Assembly' in Article 8.
9. The wording of Article 3 of the Protocol is moreover clearly based on
the assumption that Members of the European Parliament only travel abroad
'temporarily'.
In practice however an increasing number of Members find it necessary
to establish a residence outside their home country at the place of work of
Parliament. In the case of Members of the Commission - who are only appointed
for a four-year terra of office- the Protocol obviously assumes that they will
have to move their residence to the place of work.
3
The special status of judges of the European Court of Justice appears from
Article 3 of the Statute of the Court which reads as follows:
‘The judges shall be immune from Legal proceedings. After they have
ceased to hold office, they shall continue to enioy\ immunity in resoect
of acts performed by them, in their official capacity, including words
spoken or written.
The Court, sitting in plenary session, may waive the immunity.
Where immunity has been waived and criminal proceedings are instituted
against a judge, he shall be tried, in any of the Member States, only
by the Court competent to judge the members of the highest national
judiciary.'
- 4 PE 6 7 . 7 4 8
(Annex I)
This transfer of residence to another country necessitated by reasons
of the mandate is accompanied by a. number of special rules laid down in
Articles 12 and 14 of the Protocol and hitherto applicable only to officials
and Members of the Commission, Court of Justice, Court of Auditors and to
Members of the Batik .
The following points are particularly relevant to Members of Parliament
who have to change their place of residence to one of the places of work of
.the Community Institutions for the duration of their mandate;
- the right to freely import furniture and personal effects including a
motor vehicle,
- the right to transfer currency without restriction,
- exemption from immigration restrictions and formalities for thu registration
of aliens,
- place of residence for taxation purposes remaining in the country of
origin (for purposes of income tax, capital tax and death duties) .
It would seem appropriate to make these provisions of the Protocol applicable
to Members of the European Parliament through an addition to the text of the
Protoc ol.
10. Provisions not so far embodied in the Protocol but applicable m the
parliamentary law of certain Member States include the right to withhold
evidence . A Member of Parliament may invoke this right if he is called co
account in the courts for matters which have become known to him in his
capacity as a Member of Parliament. It would seem desirable to incorporate
a corresponding provision in the Protocol on Privileges and Inmunities.
11. If the Working Party approves the amendments and additions outlined
above to the Protocol on Privileges and Immunities, the following legal text
might be adopted in the form of a resolution of the European Parliament and
forwarded to the Commission, Council and governments of the Member States
in order to open the procedure necessary to amend the existing Protocol:
4
5
See text of Articles 12 and 14 in the annex.
See e.g. Article 47 of the German Basic Law: Members of Parliament shall
be entitled to withhold evidence concerning persons with whom they have
had dealings in their capacity as Members of Parliament or to whom they
have divulged facts in that same capacity as well as evidence in respect
of the facts themselves. To the extent covered by this right to withhold
evidence, the impounding of documents shali ce prohibited.
(for the articles which are to be amended, see Annex II, comumn. 2)
PE 6 7 . 7 4 8- 5 -
ANNEX II
Protocol on the
Privileges and Immunities of the
European Communities
CURRENT TEXT
CHAPTER 111
MEMBERS OF THE ASSEMBLY
Article 3
No adni.nijlralive or other restriction shall be imposed on the
free movement of members of the Assomb'y traveling to or iron'
the place of meeting of the Assembly.
Members of the Assembly shall, in respect of customs and
exchange control, be accordej.
(aj by their own Government, ihe same facilities ar those ac­
corded to senior officials travelling abroad on temporary offici.i’
missions'.
(b) bj the Governments of other Member States, the same facih
ties as those accorded to icpresentatives of foreign Government
on temporary off eial missions.
PARLIAMENT'S REQUEST
Article 8 (paragraph 1 new, remainder deleted)
No administrative or other restriction shall be imposed on the free
movement of Members of the Assembly travelling within the Community.
COMMISSION PROPOSAL
Article 1
Article 8 is replaced by the following :
"No administrative or other restriction shall be imposed on the free
movement of members of the Assembly travelling within the Community in
connection with the performance of their duties."
Article 12 (b) to (e) and Article 14 shall apply to members of the
Assembly who take up residence at one of the places of work of the
Community institutions."
IT- 5
(Annex II) ,
Protocol on the
Privileges and Immunities of the
European Communities
CURRENT TEXT
Art ic le 9
Members of (he Assembly shall not be subject to any form of
inquiry, detention or legal proceedings in respect of opinions cv
pressed or votes cast by them in the performance of their duties.
PARLIAMENT 'S REQUEST
Article 9 (paragraph 1 stands, paragrapfh 2 new)
1 .......
2. Members of the Assembly may withhold evidence insofar as such evidence
has a bearing on their activities as Members of the European Parliament,
To that extent the impounding of documents shall also be forbidden.
COMMISSION PROPOSAL
Article 2-
The following paragraph is added to Article 9 :
(cf. Parliament's request)
TTSnnuX 11)
Protocol on the
Privileges and Immunities of the
European Communities
CURRENT TEXT
A r t i c l e 10
During 'he »euion* of the Assembly, in member* shall enjoy:
in the territory of (heir own Siaie, the immunities accorded
i.i member* of iheir parliament;
(ft) in (he territory of any other Member State, nnmumty from
m*:' sure of detention and from legal proceedings.
Immunity shall likewise apply to members while they are
ti.oelling to and from the place of meeting of the Assembly.
Immunity cannot be claimed when a member is found in the act
..f committing an offence and shall not prevent the Assemb'y from
.-serening its right to waive the immunity of one of its members.
PARLIAMENT'S REQUEST
Article 10 (new)
Membera of the Assenbly shall en^oy in the territory of the Member
Statee immunity from any measure of detention and from legal proceedings.
immunity cannot be claimed when a Member is found in the act of
committing an offence and shall not prevent the Assembly from exercising
its right to waive the immunity of one of its Members. Further provisions
shall be laid down in the Rules of Procedure of the Assembly.
COMMISSION PROPOSAL
Article 3
Article 10 is replaced by the following
(cf. Parliament's request)
Protocol on the
(Annex II), (y
Privileges and Immunities of the
European Communities
CURRENT TEXT
CHAPTER VII
GENERAL PROVISIONS
Article 18
Privileges, immunities and facilities shall be accorded to officials
and other servants of the Communities solely in the interests of
ihe Communities.
Each institution of the Communities shall be required to waist
the immunity accorded to an official or other servant whertvtr
that institution considers that the waiver of such immunity is not
contrary to the interests of the Communities.
PARLIAMENT'S REQUEST
COMMISSION PROPOSAL
Article 5
.tee
h r
In Article 18, after the words "other servants of the Communities", are
added the vrords "and to members of the Assembly".
l Annex ll),^ >
Protocol on the
Privileges and Immunities of the
European Communities
CURRENT TEXT
PARLIAMENT 1S REQUEST
Article 19a (new)
Article 12, (b) to (e), and Articles 14 and
Members of the Assembly.'
( 0
18 shall also apply to
COMMISSION PROPOSAL
( 0
( 2 . )
see page II.l
see page II.4
ANNEX III
Draft for a Protocol
revising the Protocol on the Privileges and Immunities
of the European Communities
of 8 April 1965
in respect of Members of the European Parliament
His Majestv the King of the Belgians,
Her Majesty the.Queen of Denmark,
The President of the Federal Republic of Germany,
The President of the Hellenic Republic,
The President of the French Republic,
The President of Ireland,
The President of the Italian Republic,
His Royal Highness the Grand Duke of Luxembourg,
Her Majesty the Queen of-the Netherlands,
Her Majesty the Queen of the United Kingdom of Great Britain and
Northern Ireland,
Having regard to Article 96 of the Treaty establishing the European Coal
and Steel Community,
Having regard to Article 236 of the Treaty establishing the European Economic
Community,
Having regard to Article 204 of Treaty establishing the European Atomic
Energy Community,
Having regard to the Resolution of the European Parliament of 15 September 1983
•1
on the Statute of Members of the European Parliament ,
-OJ No C 277, 17.10.1983, p. 135
Whereas when the Protocol on the Privileges and Immunities of the European
Communities of 8 April 1965 was drafted all the members of the European
Parliament were appointed by a national parliament and necessarily members
thereof; whereas the direct election of members of the Parliament has altered
that situation, but the Protocol has not been adapted accordingly;
Whereas freedom of movement within the Community and the possibility
of residing, without administrative restrictions, at the places where
the institution carries on its activities, which are already guaranteed
by the said Protocol in the case of the members of the other institutions
of the Community, are also necessary for members of the Parliament in the
performance of their duties in order to ensure the effectiveness of the
institution;
Whereas it also appears necessary to confer on members of the Assembly
the right to withhold evidence from a court regarding facts of which
they have become aware in their capacity as members;
Whereas on the occasion of an amendment of the said Protocol
it is necessary to harmonize the wording of Article 15 thereof with
that of Article 24 of the Treaty establishing a Single Council and a
Single Commission of the European Communities,
HAVE DECIDED to amend Articles S, 9, 10, 15 and 18 of the Protocol on the
Privileges and Immunities of the European Communities, and to this end
HAVE DESIGNATED as their Plenipotentiaries:
His Majesty the -^ing of the Belgians
Her Majesty the Queen of Denmark
The President of the Federal Republic of Germany
The President of the Hellenic Republic
The President of the French Republic
The President of Ireland
The President of the Italian Republic
His Royal Highness the Grand Duke of Luxembourg
Her Majesty the Queen of the Netherlands
Her Majesty the Queen of the United Kingdom of Great Britain and
Northern Ireland
WHO, having exchanged their Full Powers, found in good and due form
HAVE AGREED as follows:
Sole Article
The Protocol on the Privileges and Immunities of the European Communities is
hereby amended as follows:
1. Article 8 is replaced by the following:
"Article 8
N'o administrative or other restriction shall be imposed on the free movement
of members of the Assembly travelling within the Community in connection with
the performance of their duties.
Article 12 (b) (c), (d) and (e) and Article 14 shall apply to members of the
Assembly who take up residence at one of the places of work of the Assembly."
2. The following paragraph is added to Article 9:
"Members of the Assembly may withhold evidence in so far as such evidence
has a bearing on their activities as Members of the Assembly. To that extent
the impounding of documents shall also be forbidden."
3. Article 10 is replaced by the following:
"Article 10
"Members of the Assembly shall enjoy in the territory of the Member States
immunity from any measure of detention and from legal proceedings.
Immunity cannot be claimed when a member is found in the act of committing
an offence and shall not prevent the Assembly from exercising its right
to waive the immunity of one of its members. Further provisions shall be laid
down in the Rules of Procedure of the Assembly."
4. In Article 15, the word "unanimously" is replaced by the expression
"by a qualified majority".
5. In Article 18, after the words "other servants of the Communities" are added
the words " and to members of the Assembly".
IN WITNESS THEREOF, the undersigned Plenipotentiaries have signed this Treaty.
Brussels,


Full & Egal Universal Law Academy