Hummer, Waldemar

Once you’ve lost your reputation, you have nothing left to lose

Silvio Berlusconi and the EU as a "community of values"

The European Legal Forum (E) 5/6-2003, 241 - 249

© 2003 IPR Verlag GmbH München

The European Legal Forum - Internet Portal Literature Doc. 433 www.european-legal-forum.com

LAW OF THE EUROPEAN ORGANISATIONS ______

Once you’ve lost your reputation, you have nothing left to lose and the EU as a “community of values”

* Prof. Dr. Dr. Dr. Waldemar Hummer

1. Introduction chel retracted this statement in the wake of vehement protests from Italian Prime Minister Silvio Berlusconi and Foreign As one of the few Austrian academics specialising in inter- Minister and announced that he would not national and European law to speak out strongly against the take any action since the situation in Berlusconi’s government 1 5 sanctions imposed on Austria by the fourteen other EU was not analogous with the Austrian coalition. Member States on 4 February 2000 and having done so repeat- 2 3 edly – including in the pages of this very journal, I feel Yet in the first months of the new administration, Berlus- obliged to take note of similar recent incidents to see how coni and a number of his cabinet members seemingly exalted they stack up against the “Austrian example”. themselves above hallowed European values – including the rule of law, division of powers, parliamentary freedom, judi- What stirred up concerns over the preservation of “com- cial independence, democratic rights of the opposition, and mon European values was the proposed inclusion of ’s freedom of speech and the press. They did so without justifi- National Alliance (Alleanza Nazionale) and Northern League cation and were wholly unapologetic when their actions pro- () in Silvio Berlusconi’s second cabinet. After the voked a wave of popular disapproval, occasioning the largest Italian elections of 13 May 2001, Belgian Foreign Minister silent protest in modern Italian history. Berlusconi’s objec- Louis Michel announced that he was as opposed to the par- tionable statements assume particular significance and gravitas ticipation of the “neofascists” of these two parties in coalition in that they not only came from a prime minister as top dip- talks for the new government as he had been to the Austrian lomat of an EU Member State, but also from a prime minister 4 Freedom Party (Freiheitlichen Partei Österreichs, FPÖ). Mi- in his capacity as representative of the EU Council Presi- 6 dency, which Italy held for the second half of 2003. * Chair, Institute of Public International Law, European Law and Inter- national Relations, University of Innsbruck (A). The title translates a In Austria’s case, there had been no possibility of legal re- German maxim attributed to Wilhelm Busch: “Ist der Ruf erst ruiniert, course under the founding treaties. Article 7(1) of the EU lebt es sich ganz ungeniert.“ Treaty as modified by the Treaty of Amsterdam (1997) still 1 For a broad perspective on the problems of EU sanctions, see Hum- required the existence of a “serious and persistent breach” of mer/Pelinka, Österreich unter “EU-Quarantäne“. Die „Maßnahmen der 14“ gegen die österreichische Bundesregierung aus politikwissen- the common values laid out in Article 6(1) for the opening of a 7 schaftlicher und juristischer Sicht, Vienna (A), 2002; see also Bu- formal procedure to impose sanctions. Precisely because of sek/Schauer (eds), Eine europäische Erregung. Die “Sanktionen“ der Vierzehn gegen Österreich im Jahr 2000. Analysen und Kommentare, the Austrian issue, the Treaty of Nice (2001) introduced an Vienna (A), 2003. early warning system into Article 7(1), pursuant to which the 2 See, e.g., Hummer, Die Maßnahmen der Vierzehn gegen die österrei- EU Council has become competent to determine the existence chische Bundesregierung – Verhängung, Rechtsnatur, Rechtsschutz, Aufhebung, [2000] ÖJIP 34 et seq.; Hummer, Vom “Musterschüler” zum Buhmann. Die EU als “self contained regime“” [2000] 2 Europäi- 21/2001, at 162. sche Rundschau 13 et seq.; Hummer/Obwexer, Die Wahrung der 5 “Verfassungsgrundsätze” der EU – Rechtsfragen der “EU-Sanktionen” Berlusconi’s Pakt mit der extremen Rechten lässt Brüssel relativ kalt, gegen Österreich, [2000] 16 EuZW 485 et seq.; Hummer/Obwexer, Die in: Die Presse of 12 April 2001, at 4; see also Belgisch-Italienische Be- Verhängung der “EU – Sanktionen” und der mögliche Ausstieg aus ih- ziehungen auf dem Tiefpunkt, in: NZZ of 19 October 2001, at 5. nen, [2000] 3 ZÖR 269 et seq. 6 3 See generally Hummer/Obwexer, Die “EU-Präsidentschaft”. Entwick- Hummer, The End of EU Sanctions against Austria – A Precedent for lung, Rechtsgrundlagen, Funktionen und Aufgaben sowie künftige New Sanctions Procedures?, [2000/01] EuLF (E) 77 et seq. Ausgestaltung der “Präsidentschaft” des Rates der Europäischen Uni- 4 on, [1999/4] EuR 409 et seq. See Written question E-2961/01 by Antonio Tajani (PPE-DE) to the 7 Council on of 5 November 2001 and the Council’s reply of See infra at 242. 14 February 2001 (OJ 2002 C 134, at 160); see also Der Spiegel, Issue

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of a “clear risk of a serious breach” of the principles men- activate the early warning mechanism against Italy – may be 8 tioned in Article 6(1). The EU now has monitoring systems politically realistic, but it ignores alternative (indirect) means and preliminary measures at its disposal so as not to force of launching such a procedure, i.e. by a decision of a tenth of Member States to resort to international law or courtoisie and the Members of the European Parliament. This procedure has apply preventive measures outside EU law, as had been neces- been implemented once before – against Italy, of all coun- 13 sary in the case of Austria. tries. There is also the possibility of the European Parliament directly opening the procedure to impose sanctions, a power Although Italy presently holds the Council Presidency, one 14 granted to in under the Treaty of Nice. Since the European would still expect condemnation of Berlusconi’s persistent po- Parliament – unlike the Council, for instance – cannot be ac- litical slip-ups from officials of the EU and certain Member cused of being under Italy’s thumb, the prospects for trigger- States. But while the Presidency is perhaps nothing more than ing the early warning mechanism via these indirect or direct a political mouthpiece, the country holding it would not act 15 means do not seem to be entirely ruled out. All expectations against it’s own interests. Issues are further complicated by to the contrary, the impossible suddenly became plausible, the fact that Commission President Romano Prodi is a direct even in the case of Austria. rival of Berlusconi, so that any statements he makes would be 9 instantly written off as personal and partisan attacks. Be that This article will begin with a discussion of how the EU as it may, the special problem here lies not just in the fact that wound up with a set of common values (complete with proce- the other fourteen EU Member States keep hush-hush about dures for imposing sanctions) in the first place. The next sec- the actions of Berlusconi and some of his cabinet members, tion will address the statements Berlusconi made that could but also in that there is no consensus among these countries to impinge upon these alues. The article with examine whether exhort Italy to respect common values (as had been done in these statements represent a sufficient basis to trigger the early the case of the Austrian sanctions), either through diplomatic warning mechanism, arriving at the conclusion that this is channels or – in the event that Berlusconi proves entirely in- what should have happened and indeed what was required. tractable – by implementing the early warning mechanism Given that both Berlusconi administrations had clear warn- now available in Article 7(1) of the EU Treaty. In fact, if there ings as to a possible breach of core European values – a fact 16 are no repercussions for the conduct of this “Berlusconi completely ignored in the literature – Italy’s prime minister anomaly” – as it has been described both by Johannes Vog- cannot claim ignorance of where his verbal slips were leading genhuber, a member of the European Parliament, and Ezio him. In this regard he is clearly subject to a higher duty of 10 Mauro, editor-in-chief of the daily newspaper La Repubblica care, which he ultimately proves unable to meet. After a dis- – it would not just tarnish the reputation of the EU presi- cussion of the EU’s core values and the sanctions procedure, 11 dency and Europe’s common values. Indeed, Austria would there will also be a brief mention of each of these “warning find itself the victim of a double standard at the hands of the shots” aimed over Italy’s bow. 12 EU.

The fact that there was no official protest from the EU with 2. The introduction of a common set of values in the regard to Berlusconi’s statements immediately raises the spec- EU tre of whether this can just be traced back to “political re- serve”, since no one wants to take on the political leader of a While the three European Communities (ECSC, EEC, and large and influential country. The silence may in fact owe to Euratom) lacked relevant provisions in their founding treaties, the improbability that a sanctions procedure would be as each comprised nothing more than a functional association 17 launched against Italy in the first place. One must also con- geared towards promoting economic integration, Arti- sider whether this perhaps violates a legal duty aiming at a re- cle F(1) of the EU Treaty as modified by the Treaty of Maas- view and subsequent termination of such objectionable con- tricht (1992) anchored for the first time the mandate that duct. “principles of democracy” form the basis of the systems of government of the future European Union – a (political) en- The conventional wisdom often brought up in this context – tity with a heightened need for democracy and legitimacy. that group dynamics would never permit the four-fifths Council majority (Article 7(1) of the EU Treaty) required to 13 See infra at 244 8 14 See infra at 243, 247. See infra at 247 9 15 See infra at 247. See infra at 244, 249. 10 16 Interview with Ezio Mauro titled “Permanenter Kriegszustand”, Profil None of the relevant monographs contains relevant references. See No. 41 of 6 October 2003, at 122 et seq. Schorkopf, Die Maßnahmen der XIV EU-Mitgliedstaaten gegen Öster- 11 reich, Baden-Baden (D), 2000; Schorkopf, Homogenität in der Europäi- Interestingly, this situation receives no mention whatsoever in the few schen Union – Ausgestaltung und Gewährleistung durch Art. 6 Abs. 1 relevant articles. See Masala, Probleme, Positionen und Perspektiven und Art. 7 EUV, Berlin (D), 2000; and Hau, Sanktionen und Vorfeld- der italienischen EU-Präsidentschaft, Politische Studien No. 389, maßnahmen zur Absicherung der europäischen Grundwerte. Rechts- May/June 2003, at 83 et seq. fragen zu Art. 7 EUV, Baden-Baden (D), 2002. 12 17 I have already made similar statements on multiple occasions. See, e.g., Hummer, Vom Postulat “struktureller Kongruenz und Homogenität” Hummer, Die “Maßnahmen“ der 14 Mitgliedstaaten der Europäischen zum (vertikalen) “Homogenitätsgebot” des Art. 6 Abs. 1 EUV. Struk- Union gegen die österreichische Bundesregierung – Die “EU- turdivergenzen zwischen Staats- und Verbandsgewalt, dargestellt am Sanktionen” aus juristischer Sicht, in: Hummer/Pelinka (supra note 1), Beispiel des Demokratiepostulats, in: Reinalter, (Hrsg.), Die Zukunft at 52 et seq. der Demokratie, Innsbruck (A), 2001, at 151 et seq.

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18 The Treaty of Amsterdam broadened this mandate, which procedure on 13 June and 10 July 2003 and transmitted from was concretised in Article 6(1) of the EUV Treaty. Article 6(1) the chairman of the “European Convention”, Valéry Giscard states that “the Union is founded on the principles of liberty, d´Estaing, to the Italian chair of the Council of Ministers, Ber- democracy, respect for human rights and fundamental free- lusconi, on 18 July 2003. doms, and the rule of law, principles which are common to the Member States.” This created in primary law a binding obliga- tion for contracting parties to respect the values of liberty, 3. The sanction procedure for breaches of the core val- democracy, respect for human rights and fundamental free- ues of Article 7 (as modified by the Amsterdam Treaty) – doms, and the rule of law alluded to in the preamble to the an Austrian-Italian “co-production” EU Treaty. Pursuant to these provisions, the Union and its It is indeed ironic that the idea of a sanctions provision for Member States must respect the common “constitutional violations of the common set of values in Article 6(1) – i.e. Ar- principles” mentioned in Article 6(1) of the EU Treaty, result- ticle 7, which had been put into the EU Treaty by the Treaty ing in a sort of “community of values” to which both the Un- 19 of Amsterdam – traces back to an Austrian-Italian (!) initia- ion and its Member States are committed. tive. On 3 October 1996, the Austrian and Italian delegations The Union’s “constitutional principles” are guaranteed in to the intergovernmental conference submitted a joint pro- 24 two ways. On the one hand, only European states that respect posal, which they subsequently refined and which became 25 the principles laid out in Article 6(1) may join the European the eventual Article 7. So it was the very Member States that Union under Article 49(1) of the EU Treaty. On the other subsequently found themselves subject to sanctions (Austria) hand, under Article 7, almost all rights accorded to Member or at least threatened with sanctions (Italy) that were the au- States may be suspended should those principles be violated. thors of a sanctions article that they never would have antici- Both of the guarantee mechanisms are supplemented (within pated, could at some point be used against them. the EU) by the (externally oriented) obligation of Arti- Article 7(1), which was introduced by the Amsterdam cle 177(2) of the EC Treaty, which provides that Community Treaty, allowed the sanctions procedure to be commenced at policy in the area of development cooperation shall contribute the request of a third of Member States or the Commission to the general objective of developing and consolidating de- with the approval of the European Parliament, according to mocracy and the rule of law, and to that of respecting human 20 which the Council of heads of state and government can rights and fundamental freedoms. With the new Arti- unanimously determine the presence of a “serious and persis- cle 181(a) of the EC Treaty, which was inserted by the Nice 21 tent breach” by a Member State of the values mentioned in Treaty, this principle was extended to all Community meas- Article 6(1). Since this sanctions procedure took effect only ures in the areas of economic, financial and technical coopera- “ex post” and therefore could not be applied in the Austrian tion with third countries. case, there was an attempt to find an “ex ante” solution in These values also find mention in the first paragraph of the terms of an early warning system. preamble to the “Charter of Fundamental Rights of the Euro- Interestingly, following a proposal by Belgium on pean Union”, ceremoniously proclaimed on 7 December 2000 2 May 2000 that went too far, it was again Austria that on in Nice. This paragraph states that the peoples of Europe, “in 7 June 2000 presented to the governmental conference the first creating an ever closer union among them, are resolved to 26 22 draft capable of achieving consensus on this issue, which share a peaceful future based on common values”. Relevant with minor amendments was incorporated into the subse- provisions also appear in other recitals. Article 2 of the “Draft 23 quent Article 7(1) of the EU Treaty as modified by the Nice Treaty Establishing a Consitution for Europe” reiterates the 27 Treaty. The draft provided for a preventative early warning values anchored in Article 6(1) of the EU Treaty while also system that would rule out once and for all a repeat of the noting that these values “are common to the Member States in 28 Austrian case. a society of pluralism, tolerance, justice, solidarity and non- discrimination”. The draft treaty was approved in a consensus 4. The first admonition of a Member State government 18 OJ 1997 C 340, at 1 et seq.; see Hummer/Obwexer, EU-Recht, Vienna for endangering common values – against the first Ber- (A), 1998, at 513 et seq. lusconi administration 19 See Hummer/Obwexer, Österreich unter “EU-Quarantäne”. Rechts- folgen der Einflussnahme auf die Regierungsbildung eines Mitglied- It was the first Berlusconi administration that the European staates, ecolex 3/2000, at 250 et seq. (254); Hummer/Obwexer, Die Wahrung der “Verfassungsgrundsätze“ der EU, [2000/16] EuZW 485 Union – for the first time in its history – accused of deviating et seq. (486 et seq.). 20 See generally Hoffmeister, Menschenrechts- und Demokratieklauseln 24 in den vertraglichen Außenbeziehungen der Europäischen Gemein- CONF/3940/96. schaften, Berlin (D), 1998; Hummer, Demokratiesicherungsklauseln in 25 regionalen Präferenzzonen. Europäische versus lateinamerikanische See Hummer (supra note 12), at 63. Praxis, [2001/3] JRP 185 et seq. 26 21 For the German-language text this proposal, see Hummer/Pelinka (su- See Hummer/ Obwexer, Der Vertrag von Nizza, Vienna (A), 2001, pra note 1), at 423 et seq. at 51. 27 22 See Hummer (supra note 12), at 105 et seq.; see also Hau (supra OJ 2000 C 364, at 1. The quotation is drawn from the first recital. note 16), at 137 et seq. 23 28 CONV 850/03; OJ 2003 C 169, at 1 et seq. See 247.

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from the set of common values as defined in Article 6(1) of the Under Rule 108(1) of the 14th edition of its Rules of Proce- EU Treaty. Indeed, the European Parliament’s resolution of dure, the European Parliament could debate and vote on a to the Corfu Council of 4 May 1994 called on EU Member motion for a resolution calling on the Commission to initiate States to make it clear to Italy that the Italian government was the action mentioned in Article 7(1) of the EU Treaty at the obligated to remain loyal to the core values that enabled the request of one tenth of its component Members (62 MEPs). 29 founding of the European Union. The Conference of Presidents may first ask the opinion of the committee responsible. This resolution of the European Parliament made (indirect) reference to the requirement that “systems of government [of In the 15th edition of the European Parliament’s Rules of 35 Member States be] founded on the principles of democracy”, Procedure, issued in February 2003, not only had Rule 108 which was then embodied in Article F(1) of the EU Treaty as been changed in terms of content, but also the present Chap- 30 modified by the Maastricht Treaty. As early as mid-1994, the ter XIII (former Chapter XI(a)) had been recaptioned “Breach European Parliament already had reason to doubt whether by a Member State of fundamental principles”. On the basis of Berlusconi’s first cabinet in fact felt required to adhere to de- a specific report of the responsible committee, the European mocratic principles in all its activities. Parliament – under Rule 108(3), such action requires a two- thirds majority of the votes cast and the majority of MEPs – now may: (a) vote on a reasoned proposal calling on the 5. The first attempt to launch the sanctions procedure Council to act pursuant to Article 7(1) of the EU Treaty; (b) for a breach of common values – against the second Ber- vote on a proposal calling on the Commission or the Member luconi administration States to submit a proposal pursuant to Article 7(2) of the EU Treaty; (c) vote on a proposal calling on the Council to act It was once again the Italian government – this time the sec- pursuant to Article 7(3) or, at a later time, Article 7(4) of the ond Berlusconi administration – against which European Par- EU Treaty. liament made the first attempt to launch (indirectly) an official sanctions procedure in accordance with Article 7(1) of the EU There was an attempt to use this (indirect) possibility of Treaty on the basis of Article 94(a) and respectively of Article triggering a sanctions procedure – under the regime of the 108 of its Rules of Procedure. former Article 94(a) or the (old) Rule 108 in the 14th edition of the Rules of Procedure of 1999 – against Italy, in fact. This A few points should be made here given the relative obscu- 31 initiative came as a reaction to the Italian government’s failure rity of the indirect triggering of a sanctions procedure under to nominate candidates to the Constitutional Court and the parliamentary rules of procedure according to Article 94(a) Chamber of Deputies, as required by law. and respectively Rule 108 of the European Parliament’s Rules of Procedure. The Amsterdam Treaty entered into force only On 22 April 2000, 64 MEPs signed a proposal sponsored by on 1 May 1999; prior to this point, the European Parliament the radical Italian MEP Maurizio Turco (NI) under which the could not actively rely upon the Article 7(1) which that treaty Commission would be asked to request the Council to deter- introduced to initiate the sanctions procedure for violations of mine that Italy had violated and continued to violate the Un- 32 common values as laid out in Article 6(1). Nevertheless, the ion’s principles of liberty, democracy, respect for human 36 European Parliament decided to create for itself an “indirect” rights and fundamental freedoms, and the rule of law. Since power for this purpose when revising its rules of procedure on Italy promised to remedy these constitutional deficits as 33 11 March 1999. Article 94(a) (former Rule 108 of the 14th edi- quickly as possible, the resolution motion received no follow 34 tion) of the European Parliament’s Rules of Procedure – in up in the European Parliament. Chapter XIII, entitled “Determination of a serious and persis- Parallel to his resolution motion, Turco directed a written tent breach by a Member State of principles common to question to the European Commission on 10 July 2002 re- Member States (liberty, democracy, respect for human rights questing the Commission to take the necessary measures un- and fundamental freedoms, and the rule of law)” – contained der Article 7 of the EU Treaty or to create the necessary legal another independent procedure to request a determination of instruments for monitoring compliance with the principles a breach of common values. 37 contained in Article 6 of the EU Treaty. Commission Presi- dent Prodi stated in his reply of 8 August 2002 that the prob- 29 B3-049, 0500 und 0510/94; OJ 1994 C 205, at 155; see Hummer (supra lems complained of had meanwhile been resolved, as the Con- note 12), at 61. stitutional Court once again had the required number of 30 OJ 1992 C 191, at 1 et seq. 31 35 The monographs listed in note 16, supra, do not mention the possibil- OJ 2003 L 61, at 1 et seq. ity of launching the sanctions procedure via Article 108 of the Rules of 36 Entschließungsantrag, eingereicht gem. Art. 108 der GO des EP mit Procedure of the European Parliament. der Aufforderung an die Europäische Kommission, die Maßnahmen 32 This just happened under the Nice Treaty; see infra at 247. gem. Art. 7 Abs. 1 des EU-Vertrags gegen die italienische Regierung 33 wegen des Fehlens der verfassungsmäßig vorgesehenen Anzahl der OJ 1999 C 175, at 195 et seq.; see Bericht über die an der GO vorzu- Mitglieder des Verfassungsgerichts und der Abgeordnetenkammer ein- nehmenden Änderungen an den Ausschuß für GO, Wahlprüfung und zuleiten; EP B5-0114/2002; PE 316.614; RE/467425DE.doc of Fragen der Immunität (Berichterstatter: Richard Corbett, Antoni Guti- 22 April 2002. érrez Díaz, Ana Palacio Vallelersundi), of 19 February 1999; PE 37 229.204/end.; A4-0070/99. Written question P-2104/02 by Maurizio Turco (NI) to the Commis- 34 sion of 10 July 2002; OJ 2003 C 28E, at 186 et seq; OJ 2003 C 129E, at OJ 1999 L 202, at 1 et seq. 63.

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42 judges since 24 April 2002 and, in the case of the Chamber of ternative draft on 27 November 2001, conceding defeat just Deputies, an agreement had been reached on 16 July 2002 days before the European Council in Laeken on 43 with respect to its composition. 12 December 2001 after it became obvious to him that he was completely alone in this position. Berlusconi used the oc- Even though on the surface each of these cases concerns a casion to declare: „Non succederà nulla, poiché non sono previ- constitutional violation of a formal or technical nature, more 44 45 ste sanzioni“ (sic). than a tenth of the MEPs – 64, to be exact – considered them to be breaches of fundamental democratic principles and thus At the beginning of his administration, Berlusconi also pro- appropriate instances to request the Commission to launch a posed a law that would criminalise falsification of balance procedure to impose sanctions on Italy based on infringement sheets only in certain egregious cases. Berlusconi’s company of the common values listed in Article 6(1) of the EU Treaty. Fininvest had been accused of such an act in Sme-Ariosto case To put the matter in no uncertain terms, however, obtaining and in the Imi-Sir und Lodo Mondadori cases, which were the requisite majority in the European Parliament to trigger joined into one proceeding. Berlusconi also attempted to the sanction procedure by means of Rule 108 does not seem amend the code of criminal procedure so that criminal trials 38 impossible. would be able to be (easily) transferred from one place to an- other at the request of the defendant. The mere suspicion that a particular venue would prevent a fair trial or that a judge was 6. Extracts from the list of Berlusconi’s political sins (merely) partial (not biased, however) would suffice. Since the proceedings would start over in the new forum, there would This section will briefly catalogue Berlusconi’s most salient be the danger that the statute of limitations could lapse – verbal attacks as well as their partial effects. The same stan- which seemed, however, to be the raison d’être for the legisla- dards should be applied as were applied in the case of the Aus- 46 tive proposal of Berlusconi’s government. trian sanctions, which had been imposed on mere suspicion. In that case, the only concrete criteria was the oft cited justifi- Attempts by Berlusconi and his attorney and close associate cation that “words are also actions” with respect to the con- Cesare Previti were rebuffed to have the Court of Cassation in troversial statements made by FPÖ leader Jörg Haider. It is remove the criminal proceeding from Milan to . however important to distinguish between words that are al- Berlusconi thereafter launched a major attack against the judi- ready “actions” in the sense that they are themselves contrary ciary in January 2003, speaking of “Jacobinical” judges who to the law and therefore punishable and those words which were secretly in cahoots with the political left. Elected officials only manifest a certain attitude, so that only their concrete ef- would need immunity so as to protect themselves from such 47 fects can be sanctioned. politically motivated prosecution by the judiciary. Once Previti was sentenced by the Milan court on 29 April 2003 to Despite a major campaign acknowledging Europe’s core eleven years’ imprisonment for judicial corruption and brib- values in the run-up to its Council Presidency – as early as ery, Berlusconi was put on notice that his associate had bribed February 2003, the Italian government circulated the (rele- judges in order to curry favour for Fininvest, a company Ber- vant) draft of a “Statement of the Founding Members of the lusconi owned. According to the Milan court, the takeover of European Community”, which was to be promulgated on the publisher Mondadori by Berlusconi’s company – which 25 March 2003 to mark the anniversary of the signing of the 39 had been accomplished with the help of the courts against De Treaties of Rome – the general European public reacted Benedetti – represented the biggest case of corruption in Ital- skeptically to this “lip service”. One newspaper noted the 48 ian history, in which Previti had played a key role. fluid commingling between the public welfare and personal interests in Berlusconi’s case: “To put it bluntly, one must say Since there were other criminal proceedings for judicial that the actions of government and legislature since Berlusconi bribery pending against Berlusconi – primarily in the Sme- entered into office have revolved to a large part around the in- Ariosto case – Justice Minister also became terests of the cavaliere, attempting to shield the political leader involved in trying to transfer the judges handling the criminal 40 and some of his closest associates from judicial scrutiny.” trial without giving them the chance to address their pending matters. After this attempt failed, Berlusconi sought the pas- As soon as he assumed power in May 2001, Berlusconi ex- pressed his opposition to plans for the creation of a uniform 42 41 European arrest warrant. He presented a watered down al- Council Document 14559/01; COPEN 78; CATS 43. 43 See BullEU 12-2001, at 18. 38 44 See infra at 247. In English: “Nothing will happen, since there are no sanctions envis- 39 aged.” See references in Corriere della Sera of 15 February 2003 and in 45 La Repubblica of 16 February 2002, cited in Masala (supra note 11), Grevi, Il Mulino 1/2002, at 128, cited in Heintschel-Heinegg/ Rohlff, at 85. Der Europäische Haftbefehl, Goldtammers Archiv für Strafrecht 2003, 40 at 45, n. 8. Berlusconis Ängste vor dem EU-Haftbefehl, NZZ of 46 12 December 2001, at 1 (translated from the German). Neues Manöver Berlusconis gegen die Justiz, in: NZZ of 41 14/15 September 2002, at 5. Council Framework Decision 2002/584/JI of 13 June 2002 on the 47 European arrest warrant and the surrender procedures between Mem- Breitseite Berlusconis gegen Italiens Richter, in: NZZ of ber States, 2002/584/JHA (OJ 2002 L 190, at 1) et seq.; see Fuchs, Eu- 30 January 2003, at 5. ropäischer Haftbefehl und Staatensouveränität, [2003] JBl. 405 et seq.; 48 Zeder, Der europäische Haftbefehl: das Ende der Auslieferung in der See “Der größte Korruptionsfall” Italiens. Begründung des Urteils ge- EU?, [2003] Österreichisches Anwaltsblatt 376 et seq. gen den Abgeordneten Previti, in: NZZ of 8 August 2003, at 4.

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52 sage of an immunity law that would protect him from crimi- the camel’s back. To wit he launched a full frontal attack on nal prosecution. On 5 June 2003, the Italian Senate approved a the Italian judiciary in early September 2003 in an interview law which not only guaranteed full immunity from criminal with Boris Johnson, the editor-in-chief of the conservative prosecution during an official’s term in office for him, but also British weekly The Spectator, and Nicholas Farrell, editorial for the other four holders of the highest state offices – the na- writer for the daily La Voce di Rimini. Berlusconi described tional president, the presidents of both houses of the Italian Italian judges as being doubly insane – first because they are 49 parliament, and the president of the Constitutional Court. politically influenced, second because they are in any event This prompted La Repubblica editor-in-chief Mauro to decry mentally disturbed. “One would have to be deranged to work the attempt by a prime minister accused of bribing judges to in this profession,” Berlusconi observed. “If judges have this create a law granting him immunity in the midst of an ongoing job, it is because they are anthropologically different from the 53 legal proceeding. “Our Italian law no longer applies equally to rest of the human race.“ In addition, he also disavowed jour- 50 all,” Mauro wrote. nalists and expounded in this regard, “I think that 80 percent of the journalists are leftists. They pay no attention to what I Constitutionally dubious as well was the approach of Ber- 54 say or do. They write what they already have in mind.” lusconi’s government to achieving a balanced budget and ad- hering to the EU’s growth and stability pact. It consisted not Berlusconi did not apologise, although national president only of liquidating state-owned property, but also on granting Carlo Azeglio Ciampi took immediate pains to state that the generous amnesties. As one newspaper noted: “Aside from justice system commanded the respect of all citizens and that traditional means of making up for budget shortfalls, Italy’s judges and public prosecutors perform their work in an government also grants amnesty after amnesty, each of which autonomous and independent fashion, in part under consider- generates temporary income in the billions. There were and able difficulties. Bondi, the spokesman for Berlusconi’s party, are such arrangements for tax evaders, fraudulent recipients of , hastened to note “how wonderful it is finally to social security contributions and even corrupt builders. That work with a political leader who does not bother with politi- an extreme amnesty policy of this sort threatens to destroy the cal correctness, but who instead has the courage to put bluntly 55 legal system clearly does not appear to faze this administration in words what the majority of Italians are thinking”. A gov- 51 in the slightest”. ernment spokesperson even went so far as to write off Berlus- coni’s comments as a mere jest. On the occasion of the presentation of the programme of the Italian Presidency of the European Council before the To protest accusations against the judiciary, the front page European Parliament on 2 July 2003, Belusconi responded of the leftist daily newspaper Unita on 5 September 2003 fea- with the following comment to criticism from Martin Schulz, tured a list of the names of judges who had been murdered in the German vice-chair of the Socialists: “Mr. Schulz, I know recent years in the performance of their duties. The Corriere there is a producer in Italy who is making a film on the Nazi della Sera also denounced Berlusconi’s demeanor, calling him concentration camps. I will suggest you for the role of kapo [a a political parvenu who was not in a position to forsee – even camp guard]. You'd be perfect.” Schulz had made a statement remotely – the harms he had caused for the basic values of the during earlier remarks by of the Northern Italian constitution with his unnecessary and inacceptable 56 League concerning the group’s extreme right politics on refu- comments both in Italy and abroad. gee issues, comparing this situation with the participation of In the second part of his interview for The Spectator and the the FPÖ in Austria’s federal government in February 2000. Voce di Rimini, published on 11 September 2003, Berlusconi Berlusconi did not apologise to Schulz although urged to do went so far as to say that a comparison between Saddam Hus- so by Pat Cox, president of the European Parliament – mak- sein and Benito Mussolini was unfair, given that the fascist ing Berlusconi the first EU Council President in history to re- dictator Mussolini had been “benign”: “Mussolini never killed ceive such a reprimand. Instead, Berlsuconi apologised to 57 anyone. Mussolini sent people on holiday in internal exile. German Chancellor Gerhard Schröder the following day. However, Berlusconi denied having made any apology a day 52 later, regretting only that his ironically intended comment had “[These statements] are incompatible with the office of head of gov- been misunderstood. Compounding this slip-up is the fact ernment of a Western European democracy”, cited in Eine weitere ver- bale Entgleisung Berlusconis. Neue Attacke auf Richter und Staats- that Berlusconi pressured Italy’s state broadcasting corpora- anwälte, in: NZZ of 6/7 September 2003, at 3 (translated from the tion, RAI, not to report on his faux pas in Strasbourg, which German). 53 makes this episode even more alarming by revealing the extent Cited in: Berlusconi beschimpft Richter, Dolomiten of to which Berlusconi dominates the Italian media world. 5 September 2003, at 1; Richter, Journalisten und Linke toben nach Berlusconis Angriffen, in: Kurier of 6 September 2003, at 4. 54 After Berlusconi had frequently accused Italian judges of Cited in Sturm der Entrüstung, in: Die Presse of 6 September 2003, being politically biased and conspiring with his left-wing foes, at 9. 55 his most recent statements were almost the straw that broke See NZZ of 6/7 September 2003 (supra note 52). 56 See Haas, Vom guten Onkel Mussolini, in: NZZ of 19 September 2003, 49 at 35. See Berlusconi lässt sich schützen, in: Die Presse of 6 June 2003, at 6. 57 50 See Mussolini schickte Gegner auf Urlaub, in: Die Presse of “Permanenter Kriegszustand”, Profil No. 41 of 6 October 2003, at 123. 12 September 2003, at 6; Gutmütiger Diktator Benito Mussolini, in: 51 Herausgegriffen. Italien wurstelt sich durch, in: NZZ of Der Standard of 13./14. 09. 2003, at 4; Wirbel um eine Äußerung Ber- 2 October 2003, at 14. lusconis über Mussolini, in: NZZ of 12 September 2003, at 2; Berlusco- ni und die Opfer des Faschismus, in: NZZ of 13/14 September 2003,

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However, these comments did not prevent the American Council in the second half of 2003, Italy’s prime minister had Anti-Defamation League (ADL) from presenting the Italian to meet with the Commission 15 times to ensure effective im- prime minister with its “Distinguished Statesman Award”, plementation of the programme of the Presidency, one can which is bestowed upon individuals who have actively stood imagine what a burden this animosity presents for the proper up against anti-Semitism. The ADL’s move met harsh criti- functioning of the EU. cism from Nobel laureates Paul Samuelson, Franco Modi- 58 The extent to which Berlusconi flouts agreements is appar- gliani and Robert Solow. Italian intellectuals seised the ent in the case of the nomination of the Italian representative chance to repudiate this revisionist look at Mussolini. At the to the European Convention. He denied a pact he had made Campiello awards ceremony honouring Marco Santagata, the with Belgian Prime Minister Guy Verhofstadt at the Laeken Italian poet Eduardo Sanguineti noted that Italy is going Council on 14 and 15 December 2001 that the convention’s through a critical phase in its history and that Mussolini, who two vice-chairs Giuliano Amato and Jean-Luc Dehaene – who had had Giacomo Matteoti killed and Antonio Gramsci, the had been nominated by the political leaders – would also be greatest intellectual of the 20th century, imprisoned, would 59 considered the government representatives for Italy and Bel- soon be rehabilitated. Mauro, editor-in-chief of La Repub- 64 gium in the convention. Berlusconi instead simply nomi- blica, struck the same vein in an interview, observing that both nated Gianfranco Fini as his representative, stating that Amato the constitution and antifascism had been put into question as did not have his trust. Italy thus had two representatives in the the foundations of the Italian republic. Taking notice of the convention, contrary to the agreement. This more than “cun- fact that Berlusconi had not taken part in festivities to com- 65 ning” conduct of Berlusconi was aided by an unfortunate memorate the end of fascism on 25 April, Mauro concluded 60 language version of the conclusions of the chairman of the that “fascism is in the process of being banalised in Italy”. 66 Laeken Council and noted by the other Member States al- If one weighs the previously mentioned statements of Ber- most without comment. lusconi against the most inflammatory statement of Jörg Berlusconi’s aloof behaviour has also encouraged some Haider – the remark concerning the “orderly employment 61 lower ranking officials to make off-key statements concerning policy of the Third Reich” – it is clear that they are wholly 62 not only one of Italy’s allies, but also the source of its biggest analogous in terms of their political dimensions. foreign income stream. Stefano Stefani, an industry minister Another provocative point deserves mention here. Berlus- from the Northern League responsible for tourism, said that coni invited the 25 heads of state and government of the German tourists were “hyper-nationalistic blondes” who in- Member States and accession countries to Rome on vade Italy’s beaches during the summer holidays and hold 4 October 2003 in his capacity as “Council President” for the “belching contests” after “devouring french fries” and opening of the 2003 governmental conference. His choice of “drowning themselves in beer”. He too categorically ruled out venue was the Palazzo della Civiltà Italiana on the site in- an apology in the Italian media for this inacceptable blanket tended for the 1942 World Exposition, the Esposizione Uni- insult against German vacationers. versale di Roma, which according to Mussolini was meant to 63 symbolise the “Third Rome”. The irony of this choice of the expo site as a venue for the 2003 governmental conference 7. The “early warning systems” of Article 7(1) of the concerning the future European constitution was not taken EU Treaty as modified by the Nice Treaty into consideration (in Italy), however. Thanks to the experiences of the “XIV” in the Austrian Aside from these (verbal) lapses, it is worth pointing out in case, the present “ex post” sanctions procedure of Article 7 this context other inacceptable conduct on the part of Berlus- was supplemented by an “ex ante” approach in the Nice coni – namely his portrayal of Commission President Prodi as Treaty via an early warning system. Moreover, the European a “criminal” (in part for purposes of his election campaign). Parliament was for the first time empowered to open the sanc- Keeping in mind that during the Italian Presidency of the EU tions procedure, having heretofore lacked this power and therefore needing to resort to the (indirect) method of 67 at 4. Rule 108 mentioned earlier. 58 See Aufregung um Berlusconi, in: Die Presse of 24 September 2003, Accordingly, a third of the Member States, the European at 7; Auszeichnung für Berlusconi, in: NZZ of 25 September 2003, at 2. 59 Parliament (pursuant to Article 7(6) of the EU Treaty, a two- Mumelter, Ein Alarmruf gegen das Schweigen. Italien: Ein Eklat bei thirds majority of the votes cast, representing a majority of its Verleihung des Campiello-Preises sorgt für Diskussionen, in: Der Standard of 25 September 2003, at 29. Members, is required) or the Commission may submit a rea- 60 “Permanenter Kriegszustand” (supra note 50), at 123. 61 64 On Haider’s right-wing rhetoric, see, e.g., Scharsach (ed.), Haider. Ös- See Bulletin Quotidien Europe No. 8127 of 12 January 2002, at 3. terreich und die rechte Versuchung, Vienna (A), 2000; Czernin (ed.), 65 Wofür ich mich meinetwegen entschuldige. Haider, beim Wort ge- Norman, Internal Bickering Tarnishes Start of EU Convention on nommen, Vienna (A), 2000. Constitution, in: Financial Times of 28 January 2002, at 2 (calling this 62 approach “one of the trickiest”). See Pelinka, Österreich und Europa. Wie “westlich“ ist die österreichi- 66 sche Demokratie? Die “EU-Sanktionen” aus politikwissenschaftlicher See Hummer, Vom Grundrechte-Konvent zum Zukunfts-Konvent. Se- Sicht, in: Hummer/Pelinka (supra note 1), at 46. mantische und andere Ungereimtheiten bei der Beschickung des “Kon- 63 vents zur Zukunft Europas”, [2002/2] ZParl 326, 334 et seq. See Götz, Zukunftsdebatte am Ort mit Vergangenheit, in: Die Presse of 67 4 October 2003, at 8. See supra at 244.

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soned proposal to the Council to trigger the early warning noted above. system acting by a majority of four fifths of its members after Since Berlusconi was not sufficiently pressured by the four- obtaining the assent of the European Parliament to determine teen other Member States, he sees no need to issue a political that “there is a clear risk of a serious breach by a Member declaration of his own that would (now) be accepted by the State of principles mentioned in Article 6(1)”, and address ap- Italian government without opposition and that would reflect propriate recommendations to that State. Before making such a commitment to democratic values, as the Austrian federal a determination, the Council is to hear the Member State in government had done the day preceding the imposition of question and, acting in accordance with the same procedure, sanctions against Austria. On 3 February 2000, Austria’s fed- may call on independent persons to submit within a reason- eral government issued a declaration entitled “Responsibility able time limit a report on the situation in the Member State in 71 for Austria – A Future in the Heart of Europe” as a preface question. The Council must regularly verify that the grounds to the coalition agreement for the new government. In this on which such a determination was made continue to apply. declaration, the Austrian People’s Party (Österreichische Therefore, under the Nice Treaty, it is no longer necessary – Volkspartei, ÖVP) and the FPÖ formally restated their con- as had been the case with the previous formulation of Arti- stitutional commitment to democratic values. The coalition in cle 7(1) of the EU Treaty as modified by the Amsterdam the Austrian federal government could be held to this agree- Treaty – that a serious and persistent breach of core European ment for their entire administration and were also checked in values already have taken place. Instead, the mere suspicion of this regard by the “Three Wise Men“ in their report of 72 a “clear risk” of such a breach is sufficient to actuate the sanc- 8 September 2000. Based on the negative outcome of this re- tions procedure. In this context, the Council has a discretion- port, the French Council Presidency again imposed sanctions ary power under the Treaty whether to issue a decision mak- in the name of the XIV, not without first determining that the ing such a determination; however, this discretionary power is Austrian Federal government did not breach its obligations in 73 not subject to substantive review by the ECJ, such as the case respect of the European shared values. The XIV reserved the of an action to declare void a sanction made pursuant to Arti- right for additional monitoring of the FPÖ, stating that the 68 cle 309(2) of the EC Treaty. The next section will evaluate nature of the FPÖ and its uncertain development provided whether such a suspicion of a clear risk to core European val- grounds for concern. They were of the opinion that particular ues would already be justified in the Berlusconi case. attention had to be paid to the FPÖ and its influence on the Austrian government and committed themselves to perform this monitoring together – indeed, even after the formal end- 8. Characterisation of Berlusconi’s statements ing of “EU sanctions” against the Austrian federal govern- 74 ment in September 2000. If one reviews the statements and actions of Berlusconi mentioned above to see if they fulfil the element contained in The monitoring of the FPÖ mentioned above is still ongo- 75 Article 7(1) of a “clear risk of a serious breach” of the com- ing and congruent to a preliminary measure with the early mon values listed in Article 6(1), they cannot be dismissed warning mechanism of Article 7(1) of the EU Treaty subse- 69 with a reference to mere “right-wing populism”. Indeed, quently created by the Nice Treaty. What was just and equi- they fundamentally bring the European canon of values (the table for Austria should have for all intents and purposes also rule of law, division of powers, parliamentary freedom, judi- applied to all of the other Member States (and thus Italy as cial independence, democratic rights of the opposition, and well) – unless the EU and its Member States open themselves freedom of speech and the press) into question – and not just to the charge that they are using a double standard. Such un- at a semantic level – especially since it was undertaken on the equal treatment of “smaller”, less important states vis-à-vis part of the Italian head of state in appearances before major “larger”, more important states would in the long run strip the fora, such as in the European Parliament, Council of Europe sanctions system for protecting Community values of its le- or the EU Council. In the case of Austria, comparable state- gitimacy – in which case it would have been better not to have ments were made by a leader of a coalition party who was introduced the system in the first place. Although this view himself not part of the government and moreover who re- does not seem capable of being implemented in the Council, signed from this position once the coalition had been there are encouraging signals to this effect coming from the 70 formed. It is difficult not to worry about a serious risk of a European Parliament. The next section will make a short com- sufficiently grave breach of European values when taking into ment on the most recent of these efforts. account Berlusconi’s absolute unreformability as well as the higher duty of care under the circumstances – after all, the European Parliament has issued two warnings to Italy, as 71 Text reprinted in Hummer/Pelinka (supra note 1), at 174 et seq. 68 72 See Hau (supra note 16), at 188. The German text of the so-called “Report of the Wise Men” is re- 69 printed in Hummer/Pelinka (supra note 1), at 388 et seq. See generally Leghissa, Der italienische Rechtspopulismus in seiner i- 73 deologischen Dimension, in: Eismann (ed.), Rechtspopulismus. Öster- The text of the communiqué is reprinted in Hummer/Pelinka (supra reichische Krankheit oder europäische Normalität?, Vienna (A), 2002, note 1), at 419 et seq. at 74 et seq.; see also the issue “Rechtspopulismus und Rechtsradika- 74 lismus in Europa”, in: [2002/3] Österreichischen Zeitschrift für Poli- See Hummer (supra note 12), at 108 et seq. tikwissenschaft. 75 See Hummer (supra note 12), at 59 et seq.; see also Hau (supra note 16), 70 See Hummer (supra note 12), at 69. at 137 et seq.

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9. The first attempt to trigger the early warning sys- ______tem of Article 7(1) as modified by the Nice Treaty (2001) ECJ 2 October 2003 – C-148/02 – Carlos Garcia Avello v État Belge Berlusconi owns Italy’s three largest national television Articles 17 and 18 EC – Citizenship of the European Un- 76 networks – through which he controls 90 percent of all tele- ion – Handing down of surnames – Children of nationals vision programming – in addition to several print media out- of Member States – Dual nationality lets which he exploits without consideration for his political ______77 ambitions and tries to protect from (cartel law) scrutiny. To that effect his government introduced its own broadcasting Articles 12 EC and 17 EC must be construed as preclud- law that would “overrule” a court judgment that had already ing, in circumstances such as those of the case in the main been issued ordering Berlusconi to sell one of his TV stations. proceedings, the administrative authority of a Member This government proposal was shot down twice in the Cham- State from refusing to grant an application for a change of ber of Deputies – in the first vote on 1 October 2003, there surname made on behalf of minor children resident in that were 284 against and 278 in favour, meaning that 35 deputies State and having dual nationality of that State and of an- of the ruling coalition had voted against it, leading Berlusconi other Member State, in the case where the purpose of that 78 to state: “I want a list of the traitors.” On the third try one application is to enable those children to bear the surname day later, the governmental coalition got its broadcasting law to which they are entitled according to the law and tradi- through with a large majority (318 to 261 votes); however, this tion of the second Member State. was only possible after incorporating two important modifica- tions demanded by the opposition. The proposal thus goes back to the Senate, which already had dealt with the matter in Facts: Mr Garcia Avello, a Spanish national, and Ms I. Weber, a 79 June 2003. Belgian national, are resident in Belgium, where they married in Concerned over the tremendous concentration of media 1986. The two children born from their marriage, Esmeralda and outlets in the hands of Berlusconi, the European Parliament’s Diego, who were born in 1988 and 1992 respectively, have dual Committee on Public Liberties and Citizens’ Rights wants to Belgian and Spanish nationality. prepare a report concerning respect for freedom of expression In accordance with Belgian law, the Belgian Registrar of Births, and information in Italy. With the exception of the committee Marriages and Deaths entered on the children's birth certificates members belonging to the transnational European People’s the patronymic surname of their father, that is to say, Garcia Party fraction, the committee agreed at its meeting of Avello, as their own surname. 22 September 2003 to take action against Berlusconi’s media 80 power and draw up a special report. They therefore re- By reasoned application of 7 November 1995 made to the Minis- quested permission from the Conference of Presidents to ter for Justice, Mr Garcia Avello and his spouse requested, in their work on such a report, which would subsequently submitted capacity as the legal representatives of their two children, that for adoption by the plenary of the European Parliament in their children's patronymic surname be changed to Garcia Weber, order to trigger the early warning system of Article 7(1) of the pointing out that, in accordance with well-established usage in 81 EU Treaty. Spanish law, the surname of children of a married couple consists of the first surname of the father followed by that of the mother. Freedom of opinion and freedom of the press with regard to Italian media outlets could therefore present the first occasion According to the documents on the case-file, the children in to activate the “early warning system” of Article 7(1) of the question have been registered under the family name Garcia We- EU Treaty on account of the risk of breach of core European ber with the consular section of the Spanish Embassy in Belgium. values – and once again, it would be a Berlusconi government By letter of 30 July 1997 the Belgian authorities suggested to the giving rise to such action. father that he change the patronymic surname of his children to Garcia in lieu of the change requested. By letter of 18 August 1997, the parents rejected that suggestion.

76 By letter of 1 December 1997 the Minister for Justice informed See the statements of Freimut Duve, the OSCE Representative on Freedom of the Media, in: Bischof, Die Bilanz des OSZE-Medien- Mr Garcia Avello in the following terms that his application had Wächters. “Es droht Rückfall in den Feudalismus”, in: Die Presse of been rejected: The Government takes the view that there are in- 7 October 2003, at 4. 77 sufficient grounds to propose to His Majesty the King that he grant Haas (supra note 56), noting that Berlusconi personally holds almost a 50-percent interest in the television stations, with the remaining 50 per- you the favour of changing your surname to Garcia Weber. Any cent firmly under his political control. request for the mother's surname to be added to the father's, for a 78 Mumelter, “Ich will die Liste der Verräter”, in: Der Standard of child, is habitually rejected on the ground that, in Belgium, chil- 3 October 2003, at 4. dren bear their father's surname. 79 See Italiens Abgeordnete billigen Mediengesetz, in: NZZ of 3 October 2003, at 2; Berlusconi boxt sein Mediengesetz durch, in: On 29 January 1998 Mr Garcia Avello, acting in his capacity as Salzburger Nachrichten of 3 October 2003, at 9. legal representative of his children Esmeralda and Diego, brought 80 Bulletin Quotidien Europe No. 8548 of 24 September 2003, at 16. an application for annulment of that decision before the Conseil 81 Europaparlament. Sanktionen gegen Italien?, in: Die Presse of d'État, which, having regard to the parties' arguments and after 26 September 2003, at 12. setting Article 43 EC aside as being irrelevant in so far as freedom