Report for the Hearing delivered in Case C-201/89

I — Facts and procedure

1. Legislative background

Article 1 of the Protocol on the Privileges and Immunities of the European Communities (hereinafter referred to as the Protocol), as provided for in Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities, provides that:

With respect to the immunity of the Members of the European Parliament, Articles 9 and 10 of the Protocol provide that:

Article 9:

Article 10:

2. Facts

On 24 October 1984 the European Parliament set up a Committee of Inquiry with the task of inquiring into and reporting on the rise of racism and fascism in Europe. The Committee filed its report on 23 January 1986 and on the basis thereof the European Parliament adopted a declaration condemning racism and xenophobia on 11 June 1986.

Following that declaration, the Socialist Group of the European Parliament arranged for a German journalist, Detlef Puhl, to prepare a brochure entitled Against Racism and Fascism in Europe. The brochure, published in German, French and English, was distributed in the premises of the European Parliament in Strasbourg.

At the end of the French version it is stated that the publisher is the Socialist Group. That statement also appears on the German version, which was printed by Thoma Druck GmbH, Dreieich-Götzenhain. The English version, drawn up by Andrew Bell, was printed in Brussels by Printéclair.

3. The dispute in the main proceedings

Jean-Marie Le Pen, a member of the European Parliament, and the Front national political party took the view that the three brochures contained defamatory allegations against them. Accordingly, they brought an action before the tribunal de grande instance (Regional Court), Strasbourg, against Detlef Puhl and Andrew Bell, as authors of the brochures, Rudi Arndt, as Chairman of the Socialist Group of the European Parliament, Thoma Druck and Printéclair, as printers of the brochures, and the various European socialist parties represented within the Socialist Group. They sought damages of FF 500000 and publication of the judgment. According to Mr Le Pen and the Front national, several passages in the text in question constitute an extremely serious defamation, in respect of which penalties are laid down by Article 29 of the French Law of 29 July 1881.

That article provides that: Any allegation or imputation of an act which calls in question the honour or esteem of the person or body to whom the act is imputed shall constitute a defamation. Publication of any such allegation or imputation, whether direct or by way of reproduction, shall be punishable, even if in dubitative form or referring to a person or body which is not expressly named but which can be identified by the terms of the speeches, proclamations, threats, documents or printed matter, posters or notices. Any insulting expression, expression of contempt or invective which does not involve any imputation of fact shall constitute insulting language.

Article 42 of the same law also provides that penalties for the repression of crimes and offences committed by the press shall be imposed, in the following order, upon, as principals, the directors or publishers of publications, failing whom the authors, failing whom the printers, failing whom those responsible for selling, distributing and posting.

In response to the action brought by Mr Le Pen and the Front national the defendants in the main proceedings contended inter alia that French law is not applicable to acts committed in the premises of Community institutions and that Article 178 and the second paragraph of Article 215 of the EEC Treaty confer exclusive jurisdiction on the Court of Justice to determine any liability on the part of those institutions.

By judgment of 28 November 1988, the tribunal de grande instance, Strasbourg, initially declared that it lacked jurisdiction to adjudicate upon the claim made by Mr Le Pen and the Front national against Rudi Arndt. It considered that Mr Arndt had acted within his functions as a member of the European Parliament and therefore enjoyed immunity under the Protocol. The court also considered that, by virtue of Article 178 of the EEC Treaty, only the Court of Justice had jurisdiction to hear proceedings concerning compensation for damage of the kind referred to in the second paragraph of Article 215 of the EEC Treaty and that the proceedings brought fell within that category.

The court then dismissed the actions against the other defendants. It found that the identity of the publisher of the contested documents, namely the Socialist Group of the European Parliament, was perfectly well known and that therefore that group was to be regarded as the author bearing responsibility for the purposes of Article 42 of the Law of 29 July 1881. However, that responsibility could have no legal consequences since the Socialist Group did not have any legal personality of its own. However, that fact could not give rise to subsidiary liability on the part of the authors and the printers since the Socialist Group existed, was perfectly well known and had undertaken publication of the document. As far as the claims against the political parties in the Socialist Group were concerned, the court considered that the documents before it did not show that they had taken any part whatsoever in the publication of the contested documents.

Mr Le Pen and the Front national appealed against the judgment of 28 November 1988 to the cour d'appel, Colmar. They contest the judgment on the grounds that it stated that the tribunal de grande instance, Strasbourg, lacked jurisdiction to adjudicate on the claims made against Rudi Arndt and that their other claims were dismissed.

For their part, the respondents contend that only the Court of Justice has jurisdiction to hear proceedings to establish liability in respect of acts done on the premises of the European Parliament and that, unless Rudi Arndt's parliamentary immunity is waived, Article 10 of the Protocol deprives the French courts of jurisdiction to hear an action brought against him. They also contend that the proceedings brought by Mr Le Pen and the Front national are unfounded, since the contested passages are not defamatory.

4. The question on which a ruling is sought

The cour d'appel, Colmar, considered that in order to decide the action a preliminary ruling was required on the interpretation of the provisions of Community law relied upon by the respondents, who argued that the case came within the jurisdiction of the Court of Justice. Consequently, the cour d'appel referred the following question to the Court of Justice by judgment of 2 June 1989:

5. Procedure

The order for reference from the cour d'appel, Colmar, was received at the Court Registry on 27 June 1989.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted by Mr Le Pen and the Front national, the appellants in the main proceedings, represented by Jean-Pierre Claudon and Mr Wallerand de Saint-Just; by Detlef Puhl and the other respondents in the main proceedings, represented by Yves Baudelot, of the Paris Bar; and by the Commission, represented by its legal adviser, Hendrik van Lier, acting as Agent.

By decision of 15 November 1989, the Court assigned the case to the Sixth Chamber.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. However, pursuant to the second paragraph of Article 21 of the Protocol on the Statute of the Court of Justice of the European Communities, it asked the European Parliament to provide it with the following information:

II — Summary of the written observations submitted to the Court

1. The scope of the preliminary question

The observations submitted are concerned mainly with whether the Court of Justice has jurisdiction over the contested acts, to the exclusion of the national courts. It should be noted, however, that the preliminary question could also concern the parliamentary immunity of Rudi Arndt. The Commission observes in this connection that it was proper that Rudi Arndt should have been able to rely upon the parliamentary immunity provided for in Article 10 of the Protocol.

2. The jurisdiction of the Court of Justice

The respondents in the main proceedings observe that the European Community has legal personality under Article 210 of the EEC Treaty and thereby assumes liability for damage caused by its institutions or servants to third parties. That liability, recognized by the second paragraph of Article 215 of the EEC Treaty, can only be established on an exceptional basis and in circumstances outside the purview of the courts of the Member States. Thus, such liability cannot be established before the national courts in cases in which the Community enjoys the immunities and privileges necessary for the performance of its tasks by virtue of Article 218 of the EEC Treaty. That immunity, as defined in Article 1 of the Protocol, implies that the Member States have no authority over the premises of the Community.

Article 178 of the Treaty confers exclusive jurisdiction on the Court of Justice for disputes involving the liability provided for in the second paragraph of Article 215 of the EEC Treaty. The present case involves just such a dispute. The booklets at issue were ordered and published by an institution of the Communities, namely the Socialist Political Group of the European Parliament. That group, which is provided for and regulated by the Rules of Procedure of the European Parliament, acted in the exercise of its functions. The respondents in the main proceedings state that the brochures concerned were intended to allow dissemination of the report of a Committee set up by the European Parliament and that they were distributed only on the premises of that institution.

Finally, they observe that the liability of the Socialist Group as an institution of the European Communities necessarily absorbs that of the other respondents, the latter having merely acted on its instructions with a view to the preparation, publication and distribution of the brochures. Moreover, Rudi Arndt and the various political parties were proceeded against only because they make up the Socialist Group.

The appellants in the main proceedings claim that the preliminary question, as submitted, is alien to the purpose of Article 177. The issue is not the jurisdiction of the Court of Justice to hear the dispute which is to be the subject of the main proceedings — rather it is whether the French courts have jurisdiction in those proceedings.

In their opinion the French courts have jurisdiction to deal with their claims. Mr Le Pen and the Front national state in the first place that they never indicated that the brochures at issue had been distributed only on the premises of the European Parliament. Consequently, they may well have been distributed elsewhere. Secondly they observe that the respondents' contention that the Court of Justice has exclusive jurisdiction regarding the non-contractual liability of the European Communities is not relevant to this case. The claims made before the French court do not relate in any way to the European Communities or their liability. Thirdly, the appellants are of the opinion that the inviolability or otherwise of the premises and buildings of the Communities has no bearing on the jurisdiction of the French courts. French law remains applicable to acts constituting criminal or other unlawful offences committed on the premises of the European Parliament, subject only to the special circumstance that the premises in question may be inviolable.

According to the Commission, Articles 178 and 215 of the Treaty do not confer jurisdiction on the Court of Justice to adjudicate on the matters at issue. In that connection, it is sufficient, in the Commission's view, to point out that the action by Mr Le Pen and the Front national is not directed against any of the institutions and that the Community's non-contractual liability is not in issue. Nor can the Court's jurisdiction be founded on Article 1 of the Protocol. That article does not give rise to any immunity from jurisdiction regarding acts done on the premises of Community institutions and does not deprive the national courts of jurisdiction in that regard. The inviolability of such premises merely prevents the adoption of legal or administrative measures of constraint. The Commission also observes that the Protocol does not provide for any absolute immunity from jurisdiction and that Article 183 of the EEC Treaty expressly maintains the jurisdiction of the national courts. The parliamentary immunity provided for in Article 10 of the Protocol thus places only a temporary obstacle in the way of any court proceedings and it does not confer any jurisdiction on the Court of Justice. Consequently, the Commission considers that the preliminary question should be answered as follows:

III — The European Parliament's answers to the questions put to it by the Court

The European Parliament states in reply to the first question that its Rules of Procedure grant to the political groups the powers necessary to prepare the decisions and positions to be adopted. Such powers correspond in general to those enjoyed by a minimum number of members or by a parliamentary committee. The constitution of a parliamentary group in no way affects the independence and individual responsibility of the members comprised in it.

The European Parliament replies in the affirmative to the second question. The representative function of its members clearly implies that communication with the electorate is an integral part of its political mission. In that regard it is of little importance whether communication is on an individual basis or on the initiative of a political group.

The Parliament was unable to provide an answer to the third question within the period specified.

1 Language of the case: French.