EU high-flyers face fresh doubts over immunity from prosecution

By Jeremy Woolfe

Date: 05/02/04

THE prospect of litigation against senior figures in the European Union institutions following recent high-profile cases of alleged mismanagement - the fallout from last year's Eurostat affair continues to be felt - has taken a few new turns.

One is the emergence of hitherto relatively untested existing legislation that appears to cover personal liability.

European Voice has already examined some of the issues involved (see previous article, "Commission in danger of compensation litigation in wake of scandals", 11-17 December 2003), which focused on the 1965 protocol on the privileges and immunities of the European communities.

Article 12 of the protocol gives "officials and servants" of the EU institutions the right to be "immune from legal proceedings in respect of acts performed by them in their official capacity, including their words spoken or written".

The idea is to protect officials from political interference. Legal experts believe the word "servants" can be taken to include commissioners. However, there are some doubts about this - not least from commissioners themselves. Indeed, one commissioner was concerned enough after reading the previous article that she had her staff check the legal situation.

One of her aides, who divulged this during a chance encounter with your correspondent close to the sausage shop in Brussels' Rue de Tongres, said that her boss was satisfied that, while officials in general might face personal liability in serious cases of white-collar crime, commissioners were safe.

But Article 18 in the same protocol on privileges and immunities suggests the commissioner might have been too hasty in breathing a sigh of relief. For this states that EU institutions "shall be required to waive the immunity accorded to an official or other servant wherever that institution considers that the waiver is such that immunity is not contrary to the interest of the Communities".

Moreover, Article 20 of the protocol categorically states that Articles 12-15 and Article 18 should apply to "members of the Commission".

Legal precedents in the area are not particularly helpful.

Judges in one case, heard at the Belgian Cour de Cassation in 1968, ruled that Article 12 did not protect from personal liability an EU official who caused a car accident while driving on duty. This finding would appear to support the general principle of universality of the law.

The whole story of immunity is a complex one. In February 1999, a paper published by the European Parliament laid out the origins of immunity for national MPs. Apparently, these date back to 1397, when the English House of Commons passed a bill denouncing the financial behaviour of King Richard II.

Thomas Haxey, the MP who introduced the law, was sentenced to death for treason. The royal authorities were later forced to pardon Haxey because he should have been immune from such a charge.

In France, MPs have been guaranteed certain immunities since the Revolution.

However, this has not shielded political figures from charges of serious wrongdoing, as Alain Juppé, the one-time prime minister and heir apparent of President Jacques Chirac, found out last Friday (30 January) when he was barred from office for ten years for political corruption. (Juppé has appealed against the 18-month suspended prison sentence imposed by the Nanterre court for abusing public funds during his time as treasurer at Paris city hall in 1988-95, when Chirac was mayor.)

Chirac is protected from being charged - a constitutional court has ruled that he is immune so long as he remains head of state. A court in Italy, however, recently barred a similar law that protected premier Silvio Berlusconi from corruption charges.

In the commercial world, despite the high-profile scandals involving Enron, Ahold and Parmalat, civil cases to recover money from miscreants are rare.

A factor is the limited liability law, which can protect company directors.

However, that has not prevented French shareholders of entertainment giant Vivendi Universal seeking compensation from current and former bosses for alleged mismanagement.

As to a tightening up of regulations concerning the European Commission, there is a staff regulation in the pipeline that might increase personal liability for officials to include personal damages. This measure would apply only in extreme cases of wrongdoing.

Eric Mamer, spokesman for Neil Kinnock, the commissioner in charge of administrative reform, said that a revision of Article 22 in the EU staff regulations was expected to be adopted by May "at the very latest". In the past, Article 22 has not applied to commissioners.

Article considers the issue of immunity in relation to senior figures in the European Union.