DNEILL KINNOCK
Vice-president of the European Commission

Franck Biancheri Président, Newropeans Networks
Luména Duluc Editor in Chief, Newropeans Magazine
Via mail : magazine@newropeans.org

Dear Madam/Sir,

Subject: protocol on the privileges and immunities

In the e-mail of 5 April addressed to me, you raised the question of whether the protocol on the privileges and immunities of the European Communities, which also covers the officials of the Institutions, should be abolished. I understand that you have raised the same query with a number of other Members of the Commission.

In response to your request, I would like to draw your attention to Article 23 of the Staff Regulations applicable to officials of the European Communities, which provide that:

“The privileges and immunities enjoyed by officials are accorded solely in the interest of the Communities. Subject to the protocol on privileges and immunities, officials shall not be exempt from fulfilling their private obligations, or from complying with the laws and the police regulations in force.”
When privileges and immunities are in dispute, the official concerned shall immediately inform the appointing authority”.

The intention of the legislator in the drafting of this statutory provision is quite clear, in that the only objective is the protection of the interests of the European Communities and their operation. In particular, the immunity conferred should forestall the kind of situation where an official, in taking an administrative decision in the performance of his/her duties and therefore acting as a representative of an administrative authority, would be faced with a challenge from a third party. If and where an official were at fault, it would be up to his/her administration to take appropriate sanctions.

The principle of immunity granted to administrative entities created by States in the field of prerogatives for which these entities were created, is quite common in member States and in international organizations.

Therefore, the aim of the grant of privileges and immunities to officials is the safeguarding of the smooth operation and the independence of the Communities. Article 18 of the protocol is the embodiment of that aim.

As a consequence, immunity cannot be invoked for acts which are unrelated to the exercise of professional duties.

Two quite separate scenarios need to be defined in the event of an action which might be brought against an official of the Communities:

1. If it involves the official’s private life, the question of immunity does not even arise, and the official is subject to national law. This is confirmed by the case law of th e European Court of Justice.
2. If it involves the exercise by the official of functions related to the European Communities, the relevant national jurisdiction(s) ask the Community Institutions ti lift the immunity. In this instance, the Institutions comply almost systematically with these requests, which is an expression of the duty of honest cooperation of the Institutions towards the national authorities, and with the aim of facilitating the course of justice.

In sum, the immunity in question is not an individual privilege, but a necessity for the proper functioning of the Institutions.

Naturally, the immunity – in so far as exists – is not “lifelong” as you assert, and neither in reality does it “ make democratic control of power almost “impossible” or, indeed, difficult.

The specific limits on immunity and the proven readiness of Institutions to lift that immunity whenever circumstances objectively require leads me to assert that the answer to your question is an emphatic “no”. I trust that you will, in reporting that, provide the full facts in order to make that clear. It is – as I am sure you agree – what citizens rightly expect and deserve.

Yours faithfully,

Neil Kinnock