Dear Mr Kinnock,

Thank you very much for your second letter dated June 17th, concerning the ‘e-mmunities’ question raised by a growing number of voices, even within the European Union political system. We decided to wait until September to answer your detailed reply in order to include the ‘e-mmunities’ audience.

You wrote: “In short, the Commission has no power to change existing provisions, 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”.
-> This fully illustrates a growing concern among a vast majority of European citizens: “How can EU rules be changed once they are embedded in a treaty (even in a simple ‘appendix’ as is the case of e-mmunities)?”. This question will indeed become central with the upcoming debate on the future EU Constitution. The fact that in order to suppress those e-mmunities, it is now necessary to get the unanimous support of the 25 member-states, however useless they may be as suggested in your own answer, illustrates how crucial this question is: “How does one change the rules?”.

You clearly indicate the total irrelevance of these e-mmunities when you wrote: “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 exercise of duties by the officials and, consequently the issue of immunity was not relevant. The judge was accordingly informed that he could proceed forthwith without any reference to immunity.”
-> How do you justify the existence of immunities that are, as one can extrapolate from your statement, never used? The “totally theoretical scenario” in which a top official of the EU administration would be summoned before national courts is indeed much too improbable to justify the preservation of immunities. On the other hand, these immunities promote a potential abuse by making legal action against any EU civil servant extremely complicated, especially when compared to a national civil servant. As far as we know, the “totally theoretical scenario” could very well happen in federal states such as Swiss or Belgium or the USA. Nevertheless in none of these democracies are federal civil servants beneficiaries of judicial immunities and they do not seem to suffer from being “normal citizens” in front of the law. Meanwhile if such a fear was the true motivation of the ‘e-mmunities’, why not simply ask the European Court of Justice to be the relevant Court for cases involving EU civil servants, with no specific immunity attached?

Therefore once again: “We would like to know what the Commission is planning to do in order to suppress this irrelevant and dangerous privilege granted to the EU civil servants”. As we are not European-treaty specialists ourselves, we feel quite puzzled upon discovering that the Commission – which we thought had the monopoly of initiative - is not able to propose any alternative concerning this precise case. One thing clearly stands out though from what you describe and in contrast to your conclusion: The Commission would be perfectly able to continue operating without these ‘e-mmunities’ as they are never used.

We were surprised to read that you suggested that European Members of Parliament who are interested in this question may be acting purely in the name of personal interests, trying to secure their own immunities. If this were true, it would prove how flawed it is to maintain EU civil servants’ immunities as others will seek similar protections. Despite the fact that normal democratic institutions do give immunities to elected officials and not to bureaucrats, your remark proves that you think it should be the contrary.
-> “Is this vision of a new kind of ‘democracy’ your own or is it shared by the Commission as a whole?”

Last but not least, we thank you for providing us (and all those who follow this debate) with some indications as to the formal process within the Commission regarding a possible revocation of the immunity: ‘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)’.
-> For anybody who has some knowledge of the institution, it indeed confirms our fear that the process (especially the instruction part before anything goes to the Commissioners themselves) is particularly opaque and monopolized by a very small number of decision makers (3-4 top civil servants only).

Thank you again for your answers which contribute to furthering a growing debate. We will carry on, keeping this question on the agenda, and hope that some institution within the EU system will be able to suppress this anti-democratic feature of the EU system. With all the forthcoming referenda on the future of the EU coming up throughout the continent, the new Commission – in charge of “selling” this “future”- would be well advised to upgrade the priority of the “e-mmunities’ issue.

Yours sincerely,