OPINION OF MR LAGRANGE — CASE 101/63 WAGNER v FOHRMANN

Mr President,

Members of the Court,

By its judgment of 29 May 1963, the Tribunal d'Arrondissement of Luxembourg (Chambre Correctionnelle) refers to this Court for a preliminary ruling on the interpretation of the European Treaties, that is (I quote) on the points and provisions stated and all others, if need be, which determine the duration of the sessions of the Assemblies of the European Communities and thus to settle the question of the parliamentary immunity of the defendants on 6 November 1962.

You will remember in fact that two members of the Chambre des Deputes of the Grand Duchy, who are also members of the European Assembly, relied on their parliamentary immunity in this dual capacity so as to have declared inadmissible an action for defamation brought against them. Following a rather complicated procedure, a summons was issued on 6 November 1962, that is to say, during the few hours of the year when the Luxembourg Chambre des Deputes was not in session; the session had actually opened on 7 November 1961 and ended by Ministerial Decree of 29 October 1962 with effect on 5 November 1962, while the new ordinary session was to open on the first Tuesday after 3 November, that is, 6 November at 3 o'clock in the afternoon! So the immunity no longer applied as regards the Luxembourg parliament, but the question remained with regard to the status of the accused as members of the European Assembly.

With regard to this matter, the tribunal had some doubts whether the European Assembly was in ordinary or extraordinary session on 6 November 1962, doubts which arose particularly from the lack of clarity of the provisions in the Treaties relating to the duration of the sessions. This question needed to be clarified since, under Article 9 of each of the three Protocols on the Privileges and Immunities, it is only during the sessions of the Assembly that its members enjoy in their national territory, the immunities accorded to members of their national parliament. And that is why, considering that a preliminary decision was necessary before it could give judgment and using the option offered by Article 177 (2) of the EEC Treaty and Article 150 (2) of the EAEC Treaty, the Court (I quote the operative part of the judgment) refers the parties to the Court of Justice of the European Communities to have interpreted by that Court the Treaties invoked by the defendants, namely, the points and provisions stated and all others, if need be, which determine the duration of the sessions of the Assemblies of the European Communities and thus to settle the question of the parliamentary immunity of the defendants on 6 November 1962.

I

Several procedural and jurisdictional questions must first be settled.

A. The first relates to the validity of the reference to the Court. You have noticed in fact that the Court refers the parties to the Court of Justice, whereas it ought itself to have referred the matter to the Court. In this respect, however, there is no difficulty: the matter has been effectively brought before the Court by a direct communication from the Chief Registrar of the tribunal to the Registrar of this Court, and not by the parties. The reference is regular.

B. The second problem concerns the purpose of the questions put. This point is more delicate, for it bears directly upon the jurisdiction of this Court. This jurisdiction has a dual limit:

C. Third problem: Has this Court jurisdiction to give a preliminary ruling on the questions put in so far as they concern the interpretation of the ECSC Treaty?

D. Fourth problem: Has the question put by the Tribunal d'Arrondissement of Luxembourg become pointless as a result of the request made by the plaintiff to the European Assembly for the withdrawal of the immunity, which is at present being discussed before that institution?

II

Having thus cleared the ground, let us move on to the substance of the case.

The Convention on the Common Institutions achieved uniformity of the provisions relating to the Assembly on one point alone, namely the composition of the institution, which was the subject of an amendment of Article 21 of the ECSC Treaty; there was no amendment, in particular, of Article 22 which is of interest for us. Therefore, in accordance with the opinion of legal writers, which is based above all on Article 232 of the EEC Treaty and which has been followed hitherto in other fields, in budgetary matters for example, we must apply the three Treaties concurrently; and this is precisely the object of the Rules of Procedure of the European Assembly.

If we compare Article 22 of the ECSC Treaty with Article 139 of the EEC Treaty we first find some common rules:

There are however two differences:

It is in these circumstances that the European Assembly has been led to set up the following system in its Rules of Procedure (Article 1 of the Rules).

The system adopted by the European Assembly is thus based on the existence of an annual session, which is never closed (nor moreover suspended) but is adjourned on dates and for a period fixed by the Assembly itself and exceptionally under certain conditions by the enlarged Bureau.

Is this system compatible with the Treaties? At first sight one might doubt it. It appears to give to the annual session provided for in the Treaties a permanent character which is contrary to the relevant provisions: Article 22 of the ECSC Treaty expressly confines the duration of the annual session between two precise dates. As for Article 139 of the EEC Treaty, in not fixing a date for the closure of the annual session it simply intended to leave to the Assembly itself latitude to fix this date, but not to permit it to remain in permanent session. The opening of the session presupposes its closure, which Parliament never pronounces, and the permanence of the session is moreover incompatible with the institution of a system of extraordinary sessions provided for by the Treaties.

However, on reflexion I do not think that the Rules of Procedure of the European Assembly are, on the point with which we are concerned, contrary to the Treaties.

first, the Rules take care to lay down that the Assembly shall meet without requiring to be convened on the second Tuesday in May and the third Tuesday in October, in conformity with the provisions of the Treaties. It is true that it does not lay down any rule as to the closure of the session. But it should be remarked that the Treaties themselves do not speak of closure (any more in fact than of opening) and it was not for the Assembly to legislate on this point which is of a constitutional nature. The opening of Parliament which, in some constitutions, is performed by a solemn act of the Head of State, especially in countries ruled by a monarchy, in general conflicts with the rule of a meeting without requiring to be convened which constitutes a prerogative of sovereignty recognized in Parliament. As for the closure, that is also a constitutional prerogative, often recognized in the executive power. Such was the case with the French constitution of 1875; such is still the case with the Luxembourg constitution, to cite only those two examples.

The European Treaties which, in spite of many analogies, do not nevertheless have the character of a constitution in the full sense of the word, did not have to take account of such considerations. It was enough for them to determine under what conditions the Parliamentary Assembly should meet and disperse. In this respect, as we have seen, there is no doubt that they intended to exclude a system of permanent sessions, that is to say, a system in which the Assembly meets permanently. In organizing a system providing for adjournments of the session, the European Assembly has conformed to that rule.

One cannot compare these periods during which the session is adjourned with certain national practices which allow a parliamentary assembly to suspend its session, by means of a vacation or more simply by charging its President to convene it at a later date. In this case, the suspension of the work of the Assembly is hardly distinguishable from the fixing of the date of the next sitting during a session, the date merely being postponed.

Here the case is quite different. It is the session itself which is adjourned. So, throughout the adjournments, the Assembly not only does not sit, but is not in session. On the other hand — and here we meet the essential difference from the examples of domestic law to which we have alluded — such a practice does not break any constitutional principle. While in domestic constitutional law a procedure allowing the Assembly itself to fix the duration of its sessions, under the pretext of adjourning them (and so resuming them) at its sovereign will, could constitute a means of infringing the constitutional rules relating to the duration of the sessions and, for example, the prerogatives which the executive enjoys in this respect, this cannot apply in the European Treaties. As I have said, we have here neither opening nor closure of sessions involving the intervention of another power. The European Assembly meets automatically on certain dates; it ends the session itself and may meet for an extraordinary session at the request of a majority of its members. It thus appears that the provision of the Rules by virtue of which the Assembly shall itself determine the duration of adjournments of the session, this being the annual session, is quite simply a practical procedure by which the Assembly profits from the fact that it meets to decide the resumption of its work at a later date without its being necessary to obtain during the adjournment the required number of signatures to obtain a meeting for an extraordinary session. Such a meeting is decided there and then and its date fixed. I should merely note that, to be fully in conformity with the provisions of the Treaties, the decision should be taken by a majority of the members of the Assembly.

Furthermore, I find both in practice followed by the European Assembly and in the wording itself of the Rules a very strong confirmation of the distinction between the adjournments of the session and the mere adjournments of the sittings. As regards the wording of the Rules, the distinction appears clearly in Article 20. As regards the practice, if I take at random one of the issues of the reports of the debates, for example Facsimile No 61 (sitting of 4 to 8 February 1963) we read on page 5 the following:

On page 24 the President fixes the next sitting for the following day together with its agenda and closes the meeting. The following day at 3.30 p.m. he merely opens the sitting and the same applies for the following days to the end of the cycle of sittings (to use a neutral word). Then we read (page 230):

Thus everything happens as if the Assembly held several sessions each year. We even find in certain minutes a final declaration of the President declaring in so many words:The next session is to take place on such and such a date (for example, Reports of debates No 63, p. 44; No 66, p. 172).

I would out, finally, that in conformity with its Rules, the European Assembly approves the minutes of the last sitting before the session is declared adjourned. Sometimes even, the minutes approved are those of the present session (Report No 61, which I read a moment ago, and No 66, p. 172, already cited). Such a practice conforms with those systems involving several sessions (La-ferrière, Droit constitutionnel, 2nd ed., p. 744). When there is merely an adjournment of the sitting, the minutes are normally approved at the beginning of the following sitting.

The truth is that the very expression adjournment of the session has a different meaning according to whether we are in a system of permanent session or, as in the Communities, in a system of sessions, ordinary and extraordinary, of limited duration. In the former case the adjournment is a mere fact, for example, an adjournment of sittings of a certain length. In the second case, on the other hand, the expression bears a legal significance: it is the interval between the sessions. (Laferrière, ibid., p. 992, note 1.)

The argument put forward during the oral procedure that the parliamentary committees cannot meet between sessions is irrelevant. All depends in this respect on the constitutions. Under the Luxembourg constitution such meetings of committees during the interval between sessions would in fact be prohibited. Under the system of the French constitution of 1875, on the other hand, the committees could meet between sessions. The Rules of Procedure of the European Assembly regulate the question in Article 39, according to which A committee shall meet when convened by its chairman or at the request of the President, whether the Assembly is in session or not.

In these circumstances, and without bringing into question the legality of the Rules of Procedure of the European Assembly, which do not appear to me to be contrary to the Treaties, I think that, during the adjournment of a session, the Assembly is not in session, within the meaning of Article 9 of each of the three Protocols on the Privileges and Immunities.

I am of the opinion:

1 Translated from the French.

2 For convenience, I shall henceforth ignore the Euratom Treaty, the provisions of which are, as you know, identical with those of the EEC Treaty.