Fischbach, M.

Archive of European Integration

GtlsEuropean cornmunities tl\'olEUROPEAN PARLIAMENTWbrking Documentsl98l -198229 June l9El(y,lD@UMENT 1.32I/TIReportdnwn f,o on behalf of the Lrgal Aflairs Committee,n /."nr*t for the parliamentary immunity of a Member to be waivedtRapporteur: Mr M. FISCI{BACHEnglish Edition PE 73.362/fin.\At its sitting of 3 November 1980 Parliament referred to the Legal.\ffirirs CommitLoe, pursuant to Rule 5I (2) of the Rules of ProcedurE, areguest for the immunity of Mrs Luise IIERKLOTZ to be waived.On 26 November 1980 the Legal Affairs Committee appolnted Mr FISCHBACHrapporteur.At its meetings of 27 October 1980, 22 and 23 Jcnuary 1981 and 18 llarch1981 the LegaI Affairs Cqnmittee considered in clepth certain proceduralratters connected with the waiving of the immunity of Members of the Europ€anParliament.At its meeting of L2 l{ay 1981 tha L,egal Affairs Committee heard !{rsilerklotz, pursuant to Rule 5(2) of the (new) Rulee of Procedure (see O,,!lo- C 90 of 21 April 198I, p. 48 et eeq).At its meeting of 26 and 27 !{ay 1981 the Legal AffalrE Committee con-sidered the draft report drawn up by Mr Fischbach and adopted tt by 14 riotesEo2with3abstentions.present : Mr Ferri, chairman; I'1r lJuster and t{r Tufner, vice-chairmentr,Ir' Fischbach, rapporteur, Mr Da1ziel, I,Ir De Gucht, I'1r Gondikas, lLr von HasseL(deputizing for !!r !'!odiano) , I'Irs Lentz-Cornette (deputizing for !,lr Gonella),rtrs llacciocchi, Mr Megahy, Mr Mertens (deputizing for I,!r lGlangr6), It[r PetErE(deputizing for l{rs caspard) , I'tr Plaekovitis, I'Ir Schwencke (dePutizing forrlrs Vaysgade), IvIr Konrad Schdn (deputizing for Mr ilanssen van Raay), ![rSlmpson (deputizing for llr $rrrell), E Vetter and !!r Vi6--3- PE 73.362/fi,n.CONTENTSA. PROPOSAL FOR A DECISION ..B. EXPI,AT{AT@Y SEATE!@T{TI. THE FACTSII. IEXfS GOI/ERNtrNG THE I!{MT,NIT:r OB MEMBERS OF THEEUROPEAN PARI,I.AIIENTIII. JUSTIEICATION OF TIIE PROPOSED DECISION SI'BMITPEDPaqe56667TO PARI,I,AMENT .ENNEX: Article 46 of the Basic Iaw of the Federal Republic of Gerrnany.-- I-4- PE 73 .362 lf,t-n.\AThe Legal Affairs Committee hereby submits to the European Parliamentthe following proposal for a decision, together with explanatory statement:PROPOSAI, FOR A DECISIONon a request for the parliamentary immunity of a lftrnber to be waivedThe European Parliament,- having received from the ltlinister of .fustice of the Federal Repirblicof Germany, by L-etter of 2 October 1990, a request for lmunity to bewaived,- having regard to Articl-e I0 of the Protocol on the Privileges andImmunities of the European Communities of I April 1965 and to Artlcla 4(2)of the Act concerning the election of the representatives of the Assernlclyby direct universal suffrage of 20 September L976,- having regard to the judgment of the Cor:rt of Justice of the EuropeanCommunities of 12 llay L964- ,- having regard to Article 46 of the Basic Law of the tr'ederal Republicof cerflBny,- having regard to RuIe 5 of the Rules of Procedure,- having regard to the report of its Legal Affairs Committee (Doc-1-321/8L),I . Decides not to waive !r!rs Herklotz's immunity;Z. Instructs its President immediately to forward this decision and thereport of its committee to the responsible authority of the FederalRepublic of Germany1 ", "", LZ t'r.y L964 (Wagner v. Fohrmann and Krier, Case 101/es) [se! EcR 195-5- PE 73.352/fLn.BEXPLANATORY STATE!4EMI. ltTE FACTS1. on 29 June 1979 lrirs HerkLotz was anonymousry accused of irreguraritlesin the management of a cl.vic training association, of which she rrasPresident,durlnEtheperlodNovemberL9T -octoberL976.2. The request for the walving of ltrs Herklotz's parliamentary immunity'made by the Public Prosecutorre office of Frankenthal (palatinate) rrasforwarded to the president of the European ParlLament by the Federal&linisEer of Justice.rl. tr>gS OOWnSTNG Uf nOruNtrn Or !{ElOgnS Oi IIU eUROE'EilN pARIIA!@UT3. Article 4(2) of the Act concerning the election of the repreEentativesof the Assembly by direct universal euffrage of 20 september 1976 stateE:,Representatives shall enjoy the privileges and immunlties applLcable tomembers of the Assembly by virtue of the Protocol on tshe PrivilegeE andIrununities of the European Communities annexed to the Treaty establishinga Single Council and a Single Comroission of the EuroPean Commgnitiee' '4. Article 10 of this ProtocoL, which is a repetition of Article 9 ofeach of the protocols annexed to the Treaties establishing the ECSC,Ehe EEc and the EAEC, states:' o-gttgg - ELe- - ge- gglggs- -gE -9be- -&gge-@-I-I, i L s me mber s sha I L e n J oy :(a)int,heterr{toryoftheirownStatetheimrnunitiesaccordedbo mesrbers of their Parliament;(b) in the territory of any other }lenber State, immunity from any'measure of detention and from'Iegal proceedingsImmunity shall likewise aPPly to members while they are travellingto and from the place of ,meeting of the Assernbly'Immunlty cannot be claimed when a menber is found in the act ofcommittinganoffenceandshallnotpreventtheAsserrib}yfromexercisinq its riqht to lEive the immunity of one of itg Eemb€r8'r5,TheCourtofJusticehaglnthepastbeenrequiredtointerPretthe worcls ,during the eessions of the Assembly' (judgrnenE of' L2 !'!ay 1964(wagner v. Fohrmann and Krier, case 101,/63) fiee! EcR 195'-6- PE 73.352/ftn.6. Ttris judgment rules that the European Parliament holds an annuaLs e s s i on d ur i n s wh i ch, BBq _qlgg _ggr_r_Eg -ELe -pe.glggg, -9f- -19 i ggEggee! -ef- -!Eesession, its llembers enjoy the immunity provided for in the aboveprotocol-.7. Since the case involves events which occurred on the territory ofthe I'ederal Republic of cermany and since she ls a Member of the Burdestag,lrlrs llerklotz enjoys the immuniUies accorded to lGmlcers of the Bundestagas laid down in Article 46 of the Basic Law of the Federal Republic of2Germany .III. WSTIEICATION OF TIfi PROPOSED DECISION SUB!4ITIED EO PARLIAMENT8. The Lega1 Affairs comnittee ascertained that the facts underlyingthe anonymous accusations against Mrs llerklotz are related to her politicalactivity, since supporting activities to promote civic training are Linkedwith politlcal activitiee.1,he Legal Affairs Committee ,noted that the anonlfouqnature of the accusations, the fact that they were made such a long tineafter the activit,ies referred to,and the f,act that the accusatlong werereceived by the Public Prosecutor's Office in the weeks following Eheproclamation of the results of the European Parlianent elections - "by whlchtime the comp€tent authorities had already clarlfled and settled the matterin question - suggeet that this ie a teadentlgus actlon deslgned to hamperthe exercise of the parllamentary mandate.g. Having discussed the reasons for and against the viaiver of irnmunity,pursuant to Rule 5(2) and Rule 5(4), second subparagraph, of the Rules ofprocedure, the Legal Affairs Commlttee has declded to recommend Parllamentnot to waive Mrs Herklotz's immunity.I *hi" judgment is not affected by Article IO (3) of the Act of 20 SepternJcerL9'76, which, without prejudice to Article 22 of the ECSC Treaty,Article 139 of the EEC Treaty and Article 109 of the EAEC Treaty, fixesthe date when the Assembly meets, without reguiring to be convened,following a general election2 Arti.l. 46 of the Basic Law of the Federal Republic of Germany isannexed-7 - PE 73.362/fln.ANNEXArticlc 46 (Indemnity and immunity of deputies) of the Basic Iaw of theFederal nePubiic of GermanYl. A deputy may riot at any time be prosecuted in the courts Or sirtjecteduo'aisciplinary action or otherwise called to account outside the nundestagfor a vote cast or a statement made by him in the Bundestag or any ofits committees. Ttris shall not apply to defamatory insults.2.Adeputymaynotbecall.edtoaccountorarrestedforapunishabJ.eoffence except by permission of the Bundesla9, unLess he is apprehendedin the corunission of th6 offence or in the couree of the foUowing day'3.ThepermissionoftheBundestagshallaleobeneceE'garyforanyoEher restriction of the pgrsonal l-iberty of a deputy or for the initiaEl-onof proceedings again'st a deputy under Article 18'x4. Any criminal proceedingg or any proceedings under Article 19 agalnsta &eputy, any detenEion or any other restriction of his personal libertyshAll be suspended upon the reguest of the Bundestag'I*'Arti"I" 18 of the tiagic Iaw concerns the forfeitqre of basic rights-8- PE 73 .362/ ft'n./fihn.

Report 

drawn up on behalf of the Legal Affairs Committee on a request for the parliamentary immunity of a Member to be waived. EP Working Documents, document 1-321/81, 29 June 1981.

Gtls
European cornmunities tl\'ol
EUROPEAN PARLIAMENT
Wbrking Documents
l98l -1982
29 June l9El
(y,l
D@UMENT 1.32I/TI
Report
dnwn 
f,o 
on behalf of the Lrgal Aflairs Committee
,n /."nr*t for the parliamentary immunity of a Member to be waived
t
Rapporteur: Mr M. FISCI{BACH
English Edition PE 73.362/fin.

\At its sitting of 3 November 1980 Parliament referred to the Legal.
\ffirirs CommitLoe, pursuant to Rule 5I (2) of the Rules of ProcedurE, a
reguest for the immunity of Mrs Luise IIERKLOTZ to be waived.
On 26 November 1980 the Legal Affairs Committee appolnted Mr FISCHBACH
rapporteur.
At its meetings of 27 October 1980, 22 and 23 Jcnuary 1981 and 18 llarch
1981 the LegaI Affairs Cqnmittee considered in clepth certain procedural
ratters connected with the waiving of the immunity of Members of the Europ€an
Parliament.
At its meeting of L2 l{ay 1981 tha L,egal Affairs Committee heard !{rs
ilerklotz, pursuant to Rule 5(2) of the (new) Rulee of Procedure (see O,,
!lo- C 90 of 21 April 198I, p. 48 et eeq).
At its meeting of 26 and 27 !{ay 1981 the Legal AffalrE Committee con-
sidered the draft report drawn up by Mr Fischbach and adopted tt by 14 riotes
Eo2with3abstentions.
present : Mr Ferri, chairman; I'1r lJuster and t{r Tufner, vice-chairment
r,Ir' Fischbach, rapporteur, Mr Da1ziel, I,Ir De Gucht, I'1r Gondikas, lLr von HasseL
(deputizing for !!r !'!odiano) , I'Irs Lentz-Cornette (deputizing for !,lr Gonella),
rtrs llacciocchi, Mr Megahy, Mr Mertens (deputizing for I,!r lGlangr6), It[r PetErE
(deputizing for l{rs caspard) , I'tr Plaekovitis, I'Ir Schwencke (dePutizing for
rlrs Vaysgade), IvIr Konrad Schdn (deputizing for Mr ilanssen van Raay), ![r
Slmpson (deputizing for llr $rrrell), E Vetter and !!r Vi6-
-3- PE 73.362/fi,n.
CONTENTS
A. PROPOSAL FOR A DECISION ..
B. EXPI,AT{AT@Y SEATE!@T{T
I. THE FACTS
II. IEXfS GOI/ERNtrNG THE I!{MT,NIT:r OB MEMBERS OF THE
EUROPEAN PARI,I.AIIENT
III. JUSTIEICATION OF TIIE PROPOSED DECISION SI'BMITPED
Paqe
5
6
6
6
7TO PARI,I,AMENT .
ENNEX: Article 46 of the Basic Iaw of the Federal Republic of Gerrnany.-- I
-4- PE 73 .362 lf,t-n.
\A
The Legal Affairs Committee hereby submits to the European Parliament
the following proposal for a decision, together with explanatory statement:
PROPOSAI, FOR A DECISION
on a request for the parliamentary immunity of a lftrnber to be waived
The European Parliament,
- having received from the ltlinister of .fustice of the Federal Repirblic
of Germany, by L-etter of 2 October 1990, a request for lmunity to be
waived,
- having regard to Articl-e I0 of the Protocol on the Privileges and
Immunities of the European Communities of I April 1965 and to Artlcla 4(2)
of the Act concerning the election of the representatives of the Assernlcly
by direct universal suffrage of 20 September L976,
- having regard to the judgment of the Cor:rt of Justice of the European
Communities of 12 llay L964- ,
- 
having regard to Article 46 of the Basic Law of the tr'ederal Republic
of cerflBny,
- 
having regard to RuIe 5 of the Rules of Procedure,
- having regard to the report of its Legal Affairs Committee (Doc-1-321/8L),
I . Decides not to waive !r!rs Herklotz's immunity;
Z. Instructs its President immediately to forward this decision and the
report of its committee to the responsible authority of the Federal
Republic of Germany
1 
", "", 
LZ t'r.y L964 (Wagner v. Fohrmann and Krier, Case 101/es) [se! EcR 195
-5- PE 73.352/fLn.
BEXPLANATORY STATE!4EM
I. ltTE FACTS
1. on 29 June 1979 lrirs HerkLotz was anonymousry accused of irreguraritles
in the management of a cl.vic training association, of which she rras
President,durlnEtheperlodNovemberL9T -octoberL976.
2. The request for the walving of ltrs Herklotz's parliamentary immunity'
made by the Public Prosecutorre office of Frankenthal (palatinate) rras
forwarded to the president of the European ParlLament by the Federal
&linisEer of Justice.
rl. tr>gS OOWnSTNG Uf nOruNtrn Or !{ElOgnS Oi IIU eUROE'EilN pARIIA!@UT
3. Article 4(2) of the Act concerning the election of the repreEentatives
of the Assembly by direct universal euffrage of 20 september 1976 stateE:
,Representatives shall enjoy the privileges and immunlties applLcable to
members of the Assembly by virtue of the Protocol on tshe PrivilegeE and
Irununities of the European Communities annexed to the Treaty establishing
a Single Council and a Single Comroission of the EuroPean Commgnitiee' '
4. Article 10 of this ProtocoL, which is a repetition of Article 9 of
each of the protocols annexed to the Treaties establishing the ECSC,
Ehe EEc and the EAEC, states:
' o-gttgg 
- 
ELe- 
- 
ge- gglggs- 
-gE -9be- -&gge-@-I-I, i L s me mber 
s sha I L e n J oy :
(a)int,heterr{toryoftheirownStatetheimrnunitiesaccorded
bo mesrbers of their Parliament;
(b) in the territory of any other }lenber State, immunity from any
'measure of detention and from'Iegal proceedings
Immunity shall likewise aPPly to members while they are travelling
to and from the place of ,meeting of the Assernbly'
Immunlty cannot be claimed when a menber is found in the act of
committinganoffenceandshallnotpreventtheAsserrib}yfrom
exercisinq its riqht to lEive the immunity of one of itg Eemb€r8'r
5,TheCourtofJusticehaglnthepastbeenrequiredtointerPret
the worcls ,during the eessions of the Assembly' (judgrnenE of' L2 !'!ay 1964
(wagner v. Fohrmann and Krier, case 101,/63) fiee! EcR 195'
-6- PE 73.352/ftn.
6. Ttris judgment rules that the European Parliament holds an annuaL
s e s s i on d ur i n s wh i ch, BBq _qlgg _ggr_r_Eg 
-ELe -pe.glggg, -9f- -19 i ggEggee! -ef- -!Ee
session, its llembers enjoy the immunity provided for in the above
protocol-.
7. Since the case involves events which occurred on the territory of
the I'ederal Republic of cermany and since she ls a Member of the Burdestag,
lrlrs llerklotz enjoys the immuniUies accorded to lGmlcers of the Bundestag
as laid down in Article 46 of the Basic Law of the Federal Republic of
2Germany .
III. WSTIEICATION OF TIfi PROPOSED DECISION SUB!4ITIED EO PARLIAMENT
8. The Lega1 Affairs comnittee ascertained that the facts underlying
the anonymous accusations against Mrs llerklotz are related to her political
activity, since supporting activities to promote civic training are Linked
with politlcal activitiee.
1,he Legal Affairs Committee ,noted that the anonlfouq
nature of the accusations, the fact that they were made such a long tine
after the activit,ies referred to,and the f,act that the accusatlong were
received by the Public Prosecutor's Office in the weeks following Ehe
proclamation of the results of the European Parlianent elections - "by whlch
time the comp€tent authorities had already clarlfled and settled the matter
in question - suggeet that this ie a teadentlgus actlon deslgned to hamper
the exercise of the parllamentary mandate.
g. Having discussed the reasons for and against the viaiver of irnmunity,
pursuant to Rule 5(2) and Rule 5(4), second subparagraph, of the Rules of
procedure, the Legal Affairs Commlttee has declded to recommend Parllament
not to waive Mrs Herklotz's immunity.
I 
*hi" judgment is not affected by Article IO (3) of the Act of 20 SepternJcer
L9'76, which, without prejudice to Article 22 of the ECSC Treaty,
Article 139 of the EEC Treaty and Article 109 of the EAEC Treaty, fixes
the date when the Assembly meets, without reguiring to be convened,
following a general election
2 Arti.l. 46 of the Basic Law of the Federal Republic of Germany is
annexed
-7 - PE 73.362/fln.
ANNEX
Articlc 46 (Indemnity and immunity of deputies) of the Basic Iaw of the
Federal nePubiic of GermanY
l. A deputy may riot at any time be prosecuted in the courts Or sirtjected
uo'aisciplinary action or otherwise called to account outside the nundestag
for a vote cast or a statement made by him in the Bundestag or any of
its committees. Ttris shall not apply to defamatory insults.
2.Adeputymaynotbecall.edtoaccountorarrestedforapunishabJ.e
offence except by permission of the Bundesla9, unLess he is apprehended
in the corunission of th6 offence or in the couree of the foUowing day'
3.ThepermissionoftheBundestagshallaleobeneceE'garyforany
oEher restriction of the pgrsonal l-iberty of a deputy or for the initiaEl-on
of proceedings again'st a deputy under Article 18'x
4. Any criminal proceedingg or any proceedings under Article 19 agalnst
a &eputy, any detenEion or any other restriction of his personal liberty
shAll be suspended upon the reguest of the Bundestag'
I
*'Arti"I" 18 of the tiagic Iaw concerns the forfeitqre of basic rights
-8- PE 73 .362/ ft'n./fihn.


