Thursday

11th Aug 2022

Opinion

Time to change EU civil servants legal immunity

Civil servants working for the European Union (Commission, Parliament, Court of Justice, Court of Auditors, Europol etc) are not like any other civil servant in the European Union, or like any citizen of the European Union. Why? Because they are not subject to the same judicial constraints as any of us or any of our national civil servants are.

'EU civil servants are immune from legal proceedings in respect of acts performed by them in their official capacity, including their words spoken or written. They shall continue to enjoy this immunity after they have ceased to hold office' (reference: Protocol on the privileges and immunities of the European Communities of 8 April 1965).

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What does that mean? It means that even after they retire, they cannot be confronted by justice for anything they did while in office. Even politicians do not enjoy such an immunity. Our presidents, our ministers, our MPs, our EuroMPs, the European Commissioners … all are only protected by legal immunity for the duration of their mandate.

But EU civil servants in Brussels or Luxembourg for instance are protected for life!

Class privileges

No single democratic country has such legal protection for their civil servants. On the contrary, democracies were built on eradicating such immunities or ‘class privileges’ which result in two-speed societies.

Nobody can explain why this immunity has been granted. Especially because it was granted years after the European Community was created and was sneaked into a treaty reform as an appendix to an article which had nothing to do with it. Who created it and why? Until now, after questioning officials from several Member-States we have not been able to get any other answer than "We do not know".

The ‘official answer’ from the Commission is: this immunity is designed to prevent Member States from threatening or legally sanctioning EU civil servants of their own nationality when they act against their own member state's interests.

Bizarre explanation

Not only is this explanation completely bizarre in today’s Europe, but it would be interesting to know which cases the Commission can show to illustrate this ‘Member-State’ mafia behaviour. If no cases can be shown, then what is the interest of such an immunity?

On the other hand, nobody seems to know who decides to lift this immunity when a legal case occurs? Who decides when the civil servant has acted in order to serve EU interests? Or when he/she just acted for his/her own interest?

Concretely: who are the Eurocrats deciding upon this question? Where are these criteria listed? Who drafted them? When was it invoked to prevent justice and police to act within the institutions? In which cases? What can judges and police officers say about this immunity? Did it seriously affect their ability to make inquiries into cases within EU institutions in past years?

For 10 years now, the EU institutions have been the target of growing suspicions of fraud and corruption, involving in particular, part of their top management. It is extremely disturbing to think that such an immunity clause could be used to protect fraud and corruption.

Meanwhile, when mentioning this immunity clause to audiences of citizens from all 25 countries during the Newropeans Democracy Marathon, the overwhelming reaction was: "This immunity clause is scandalous and must be suppressed".

An appendix to the EU treaties

European citizens do not want to transfer powers and live in a European Union where a small elite of civil servants will benefit from lifelong legal immunity, making democratic control of power almost impossible.

Newropeans Magazine has therefore decided to launch a campaign for the suppression of the legal immunity of EU civil servants. It will be a difficult task as, due to the fact that the immunity is inside an appendix to the EU treaties, it requires a reform of the Treaty to change it … and that means a ratification by all EU member-states.

We think therefore that it is an emergency case as the future Constitution will transfer huge powers to the European Union level. This modification – suppression of EU civil servants immunities - must be implemented simultaneously to the Constitution ratification. Suppressing the immunity-clause requires that a new appendix is added in appendix to the Constitution treaty simply stating:

"EU Civil servants are legally responsible to the justice system of the country where their institution is located. They enjoy a similar legal status as national civil servants of this very country".

We have only a few months to convince decision-makers. But we know the citizens here will be converging. We also have been able to assess that most EU political leaders were not even aware that such immunity was granted to EU civil servants. Political leaders and citizens must therefore act together and prevent a bureaucratic nightmare to become Europe’s future.

A list of practical tools to make the change is available in English and French on the Newropeans Magazine website

Franck Biancheri - is the founder of the Newropeans Network. In 2002-2003 he conducted the Newropeans Democracy Marathon, a tour around Europe to debate with public audiences in 100 towns in 25 pays.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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