Rt Hon Neil Kinnock
Vice-President of the European Commission

Brussels, 17 june 2004

Dear Madam / Sir,

Subject: Protocol on the Privileges and Immunities

I refer to your further e-mail of 13 may.

The Commission does not want “to preserve judicial immunity for its bureaucrats’ and no such inference can be drawn on the basis of fact.

It clearly follows from the Protocol of 1965 that the immunity exists for the exclusive benefit of the European Institutions (Parliament, Council, Commission, Court of Justice and Court of Auditors, as well as the European Investment Bank and the European Central Bank), not for the individual official. The immunity of the Institutions is essential because individual officials could otherwise be sued before national courts for decisions taken by the Institution (e.g. a judge of the European Court of Justice for a ruling in which he participated, the Chairman of the Central Bank for a decision regarding the level fo the interest rate, or a Commission official who drafted a proposal regardinf quotas on bananas). Clearly if that immunity was not provided for, the European Institutions would bot be able to function properly.

I note your reference to reported reactions from Members of the European Parliament and national Parliaments on this issue. I would like to draw your attention – and theirs – to the fact that the Protocol is an inter-Governmental act agreed by Member States that can only be amended or repealed by them. The Commission consequently has no lefal competence in this area, not even a right of initiative. The same applies to the European Parliament. As a matter of fact, this issue has been raised during the Convention on the Future of the Union by some Members of the European Parliament, but the purpose of their amendments was confined so seeking to enshrine their Parliamentary immunities in the draft Constitution. To the best of my knowkledgen this issue is not part of any duscussion among Member States in the context of the ongoing Intergovernmental Conference.

In short, the Commission has no power to change existing provisinos, so MEP’s seeking to “suppress” what you call “E-mmunity” are not well advised if they think that the road to change runs through the Commission or – because of the inter-Governmental character of the immunity – through the European Parliament as a legislature.

The replies to your questions concerning the Commuission are as follows (please note that any questions related to the other Institutions should be directly addressed to them):

a) During the last 5 years requests for the lifting of immunity were not granted in three cases (out of a total of 41) simply because the cases concerned facts which were not linked to the exercice of duties by the officials and, consequently the issue of immunty was not relevant. The judge was accordingly informed that he could proceed forthwith without any reference to immunity. It is therefore completely incorrect to state that “it is obvious htat there have been cases when the immunity was not lifted” for cases relating to the exercice of duties

b) Decisions on these matters are taken by the Commission. The proposal is made to the Commission by the Commissioner with the Personnel portfolio and is prepared by the services of DG Personnel and Administration in cooperation with the Secretariat General, the Legal Service and the Anti-Fraud Office (OLAF).

c) The answer is in the Protocol itself. Article 18 makes the provision that the Institution (the Commission in the case of Commission officials) is obliged to lift the immunity, unless doing so would be contrary to the interests of the Communities. This necessarily implies a case-by-case approach. However, it would be rather difficult to demonstrate and motivate that the lifting of immunity would be contrary to the interests of the Communities as such (and not only the interests of the Institution concerned). As is the case with any Commission decision, decisions in this area are subject to review by the Court of Justice.

d) If corruption is whown to be linked to the professional duties of an official, the filter mechanism of the Protocol does apply, i.e. the immunity could be lifted. That mechanism and the provision for immunity does not apply if the corruption is exclusively linked to the private life of the official. Most of the recent cases of lifting the immunity found their origin in OLAF investigations.

As you can see from the full and factual answers to your questions, the system of immunities is entirely compatible with efficient and democratic functioning of the EU Institutions.

Neil Kinnock

Cc: Mr David O’Sullivan – Secretary General, European Commission
Me Horst Reichenbach – Director General, Personnel & Administration