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In Case 101/63Reference to the Court under Article 177 of the Treaty establishing the European Economic Community and Article 150 of the Treaty establishing the European Atomic Energy Community by the Tribunal d'Arrondissement, Luxembourg, (Chambre Correctionnelle) for a preliminary ruling in the action pending before that court betweenALBERT WAGNER, a tradesman, residing at Esch-sur-Alzette and assisted by Andre Elvinger, Advocate of the Luxembourg Bar,andJEAN FOHRMANN, a director, residing at Dudelange, and Antoine Krier, President and Secretary-General of the Letzeburger Arbechterverband, residing at Esch-sur-Alzette, both assisted by Jean Gremling, Advocate of the Luxembourg Bar,THE COURTcomposed of: A. M. Donner, President, Ch. L. Hammes and A. Trabucchi, Presidents of Chambers, L. Delvaux (Rapporteur), R. Rossi, R. Lecourt and W. Strauß, Judges,Advocate-General: M. LagrangeRegistrar: A. Van Houttegives the following
Judgment
Issues of fact and of law
I —Facts and procedure
The facts and procedure may be summarized as follows:On 23 February 1962 and 13 March 1962, on the application of Albert Wagner, a businessman in Esch-sur-Alzette, Jean Herber, huissier, residing at Esch-sur-Alzette issued a summons against Jean Fohrmann and Antoine Krier, residing respectively at Dudelange and Esch-sur-Alzette, to appear before the tribunal correctionnel of the arrondissement, Luxembourg. The reason for this summons was that the periodical ‘C.G.T.’, in its issue no 13 of 23 December 1961, had published an unsigned article entitled ‘Kooperativen sind doch billiger’, which, in the view of Albert Wagner, amounted to a libel upon him. This article in fact accused him among other things of having falsified prices and weights and of having paid wages in his business which were below the legal minimum. Mr Fohrmann was summoned in his capacity as director of the Imprimerie coopérative luxembourgeoise and Mr Krier as the editor responsible. Mr Wagner claimed 100000 francs damages and publication of the judgment in the press. A judgment of 2 June 1962 declared the action inadmissible because of the immunity enjoyed by Mr Krier during the parliamentary session and so a new summons was issued on 6 November 1962. Messrs Fohrmann and Krier asserted before the tribunal that they were both members of the Chambre des Deputes of the Grand Duchy of Luxembourg and of the Parliamentary Assembly of the European Communities.The Tribunal d'Arrondissement of Luxembourg, Chambre Correctionnelle, in its judgement of 29 May 1963, found:1. That, by Article 9 of the Protocols on the Privileges and Immunities of the ECSC, EEC and EAEC, the members of the Assembly during its sessions enjoy, in the territory of their own State, the immunities accorded to members of their Parliament;2. That Articles 22 of the ECSC Treaty, 139 of the EEC Treaty and 109 of the EAEC Treaty set out the dates of the sessions of the European Parliamentary Assembly;3. That these provisions, however, do not allow a court or tribunal faced with the question of immunity to decide, as a matter of law, what is the duration of the sessions of the European Parliamentary Assembly nor whether the Assembly was in ordinary or extraordinary session at the date of the summons (6 November 1962);4. That Articles 177 of the EEC Treaty and 150 of the EAEC Treaty allow the national court to request the Court of Justice for a preliminary ruling on the interpretation of the Treaties and on the validity and interpretation of acts of the institutions of the Communities.Consequently, the judgment refers the parties to the Court of Justice for an interpretation of the Treaties and the provisions determining the duration of the sessions of the European Parliamentary Assembly so as to resolve the question of the parliamentary immunity of Messrs Fohrmann and Krier on 6 November 1962.The judgment of the tribunal correctionnel of Luxembourg dated 29 May 1963 was lodged at the Court Registry on 15 November 1963. The file relating to the case was lodged on 22 November 1963. The judgment of 29 May 1963 was notified on 25 November 1963 to the parties to the main action, to the Commissions of the EEC and of the EAEC and to the Ministers of Foreign Affairs of the six Member States. A period of two months from the date of notification was fixed for the lodging of written observations.To complete the notification of 25 November 1963 the Court Registry sent to the parties concerned on 9 December 1963 the judgment of 17 December 1962 of the tribunal of Luxembourg, containing; the previous history of the case.By registered letter of December 1963 the Secretary-General of the European Assembly informed the Court that the Minister of Foreign Affairs of the Grand Duchy of Luxembourg had, on 16 September 1963, requested the European Assembly to suspend the parliamentary immunity of Messrs Fohrmann and Krier and that in its session of 14 October 1963 the European Assembly had referred this request to its legal committee for examination.By powers of attorney lodged on 17 January 1964 the Commissions of the EEC and of the EAEC chose H. J. Glaesner, Legal Adviser of the European Executives, to represent them in this case.Written observations were lodged:1. on 17 January 1964 by the plaintiff in the main action;2. on 22 January 1964 by the Belgian Government;3. on 25 January 1964 by the Commission of the EEC and on the same day by the Commission of the EAEC;4. on 28 January 1964 by the defendants in the main action.Having heard the Judge-Rapporteur and the opinion of the Advocate-General, the Court decided at the hearing on 10 March 1964 to ask the European Parliamentary Assembly to reply to the following two questions before 15 April 1964:(a) What was the result of the Luxembourg Government's request to the European Assembly to withdraw the parliamentary immunity of Messrs Fohrmann and Krier?(b) Has the appropriate committee of the European Assembly given any opinion with regard to the time at which a session comes to an end?By two letters lodged at the Court Registry on 15 and 16 April 1964, the Secretary-General of the European Assembly replied that the question of withdrawal of the parliamentary immunity of Messrs Fohrmann and Krier would be included in the agenda of the European Assembly's plenary session on 11 and 12 May 1964. He also sent the Court the text of Article 1 of the Regulations of the European Assembly with the preparatory documents and the amendment adopted on 28 June 1963.The parties to the main action and the Commissions of the EEC and of the EAEC were heard at the hearing in open court on 23 April 1964.The Advocate-General delivered his reasoned oral opinion at the hearing on 30 April 1964.
II—Observations submitted under Article 20 of the Statute of the Court of Justice of the EEC
The observations submitted may be summarized as follows:A. The plaintiff in the main action first of all expresses particular doubts concerning the validity of the reference to the Court of Justice. He states that in reality the tribunal referred the parties to the Court without specifying whether the action should be brought before the Court by the parties or by the tribunal itself, whereas Article 20 of the Statute of the Court of Justice of the EEC and Article 21 of the EAEC Statute prescribe clearly that the decision of the national court or tribunal shall be notified to the Court of Justice by the court or tribunal concerned.As to the substance of the case, the plaintiff considers that the Assembly of the ECSC was not in session on 6 November 1962, whereas in respect of the Assemblies of the EEC and EAEC it is for the defendants in the main action to prove that the latter Assemblies were in session on 6 November 1962.B. The Belgian Government is of the opinion that the question of the date of closure of the annual sessions of the Assembly of the European Communities has not been legally resolved. It does however consider that the authors of the Treaties and the Protocols assumed that the sessions would be of limited duration and that consequently the Court of Justice must give a decision based on considerations of equity, which should induce the Communities to amend the existing provisions in deference to the decision of the Court in this dispute.C. The Commissions of the EEC and of the EAEC assume that the judgment of 29 May 1963 raises the following three questions:(a) What immunities did Messrs Fohrmann and Krier enjoy on 6 November 1962 as members of the European Assembly?(b) Was the Assembly in session on 6 November 1962?(c) How must the expression ‘session of Assembly’ in Article 9 of the Protocol on the Privileges and Immunities be interpreted ?As to (a) The first question is concerned with the interpretation of domestic law, since Article 9(1) (a) of the Protocol on the Privileges and Immunities refers to domestic law the question of the extent of the immunities of members of the European Assembly during the sessions.As to (b) The second question is concerned with circumstances of fact which are subject to examination by the Court. (Rec. 1962, p. 102).As to (c) The sole admissible question is that relating to the interpretation of the words ‘session of the Assembly’ in Article 9 of the Protocols on the Privileges and Immunities of the EEC and the EAEC. The opening of the annual session of the European Assembly is fixed by the Treaties (Articles 139 of the EEC and 109 of the EAEC). The Assembly itself decides on the duration, in other words the closing date of the annual session. It follows that Parliament is to be considered in session, even if it is not actually sitting, until the official closure of the annual session.D. The defendants in the main action submit that, in a letter sent on 24 July 1963 to the Minister of Foreign Affairs of the Grand Duchy of Luxembourg, the plaintiff in the main action recognized the existence of the parliamentary immunity invoked but asked for its withdrawal. In their opinion the plaintiff in the main action has thus submitted to the judgment of 29 May 1963 by recognizing the defendants' argument to be correct. According to the defendants in the main action the European Parliamentary Assembly was in session on 6 November 1962.
Grounds of judgment
I —Procedure
The plaintiff in the main action submits that the Tribunal d'Arrondissement of Luxembourg referred the parties to the Court of Justice, whereas according to Article 177 of the EEC Treaty and Article 150 of the EAEC Treaty it should itself have referred the matter to this Court.However, the aforementioned Articles were in this instance satisfied by the direct transmission of the request and the file of the case by the Chief Registrar of the Tribunal d'Arrondissement to the Registrar of this Court.Therefore the reference must be considered as proper.
II —The question put
A —The court's jurisdiction
The Treaty establishing the ECSC did not lay down the procedure for reference to this Court as was later done by the Treaties establishing the EEC and the EAEC.There appears to be no point in raising the matter of the possible lack of jurisdiction of the Court, which in any event has not been questioned in this case, to give a preliminary ruling on the question put in so far as it concerns the interpretation of the Treaty establishing the ECSC. Article 9 of the Protocol on the Privileges and Immunities of the ECSC is identical to Articles 9 of the Protocols on the Privileges and Immunities of the EEC and the EAEC and, as it applies to an institution common to the three Communities, it must be interpreted jointly with Articles 22 of the ECSC Treaty, 139 of the EEC Treaty and 109 of the EAEC Treaty.In the second place, the request for withdrawal of parliamentary immunity made on 16 September 1963 to the European Assembly by the Foreign Minister of the Grand Duchy of Luxembourg has not disseised this Court of the question put by the Tribunal d'Arrondissement of Luxembourg.In the third place, it is for the Court to examine the grounds and the operative part of the judgment delivered on 29 May 1963 by the Tribunal d'Arrondissement of Luxembourg so as to establish the exact scope of the question put. This concerns the duration of the sessions of the European Assembly under Articles 9 of each of the Protocols on the Privileges and Immunities of the ECSC, the EEC and the EAEC. As these provisions are identical, they must be interpreted jointly without its being necessary to distinguish between Article 9 of the ECSC Protocol and Articles 9 of the EEC and the EAEC Protocols. This interpretation is within the jurisdiction of the Court under Article 177 of the EEC Treaty and Article 150 of the EAEC Treaty.This request for interpretation is contained by implication in the question put by the Tribunal d'Arrondissement of Luxembourg, which involves not only the interpretation of the provisions of the aforementioned Treaties but all other provisions which might bring about the solution of the question in dispute.
B —On the substance of the case
The European Assembly is an institution common to the three Communities. It is therefore necessary to reconcile, on the one hand, Article 22 of the ECSC Treaty with, on the other hand, Articles 139 of the EEC Treaty and 109 of the EAEC Treaty, the tenor of these latter two Articles being identical.In the ECSC Treaty, in fact, the meeting without the requirement of being convened is fixed at a date different from that contained in the EEC and EAEC Treaties'. Furthermore, although the ECSC Treaty provides a time limit for the annual session, the other two Treaties contain no specific provision on this subject.Under Articles 22 of the ECSC Treaty, 139 of the EEC Treaty and 109 of the EAEC Treaty, the Assembly holds an ‘annual session’ on the second Tuesday in May ending at the end of the ECSC financial year at the latest, that is, 30 June, and another annual session beginning on the third Tuesday in October.In the intervals between these ‘annual sessions’, the Assembly may also, under the same Articles, meet in ‘extraordinary session’ for one or other of the three Communities, at the request of the majority of its members, of the High Authority, of the Councils or of the Commissions.The concept of ‘annual sessions’ must thus be regarded in such a way as to reconcile it with the possibility of extraordinary sessions, which no provision prohibits from being fixed a long time in advance.The fact that Article 22 of the ECSC Treaty states that the annual session opens on the second Tuesday in May and ends at the latest at the end of the current ECSC financial year implies that the session in question ends at the latest on 30 June, which is the end of the ECSC financial year.As a result, however, of the absence of equivalent provisions in Articles 139 of the EEC Treaty and 109 of the EAEC Treaty, the annual session which opens on the third Tuesday in October, under the Articles in question, must be considered as in progress on 6 November, unless closed before that date.In the absence of any provision, an identification of the expression ‘adjournment’ with the concept of closure would be a distortion of the meaning of the former.The result of the foregoing considerations is that, subject to the dates of opening and closure of the annual session determined by Article 22 of the ECSC Treaty, the European Assembly must be considered as being in session, even if it is not in fact sitting, until the moment of closure of the annual or extraordinary sessions.
III —Costs
The costs incurred by the Belgian Government and the Commissions of the EEC and the EAEC, which submitted their observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Tribunal d'Arrondissement of Luxembourg, the decision on costs is a matter for that court.
Operative part
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.