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Session document

FINAL A6-0198/2007

22.5.2007

* REPORT

on the verification of the credentials of Mr Beniamino Donnici (2007/2121(REG))

Committee on Legal Affairs

Rapporteur: Giuseppe Gargani

RR\668700EN.doc PE 388.584v02-00 EN EN PR_REG_credentials

CONTENTS

Page

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION...... 3

EXPLANATORY STATEMENT ...... 5

PROCEDURE...... 10

PE 388.584v02-00 2/10 RR\668700EN.doc EN PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION on the verification of the credentials of Mr Beniamino Donnici (2007/2121(REG))

The European Parliament,

– having regard to the Act of 20 September 1976 concerning the election of the representatives of the European Parliament by direct universal suffrage1,

– having regard to Rules 3, 4 and 9 of its Rules of Procedure and Annex I thereto,

– having regard to the official communication from the Italian authorities concerning the election to the European Parliament of Mr Beniamino Donnici,

– having regard to the contestation of the validity of the election to the European Parliament of Mr Beniamino Donnici received from Mr Achille Occhetto on 25 March 2007,

– having regard to the report of the Committee on Legal Affairs (A6-0198/2007),

A. whereas paragraphs 1 and 2 of Article 7 of the Act of 20 September 1976 enumerate the positions which are incompatible with membership of the European Parliament,

B. whereas under Rule 9 of the Rules of Procedure and Annex I thereto, MEPs are obliged to make a declaration clearly specifying their professional activities and any other paid position or activity,

C. whereas Rule 3(5) of the Rules of Procedure states: 'Where the appointment of a Member is due to the withdrawal of candidates from the same list, the committee responsible for the verification of credentials shall ensure that such withdrawals have taken place in accordance with the spirit and the letter of the Act of 20 September 1976 and Rule 4(3)',

D. whereas the compatibility of Mr Achille Occhetto's withdrawal with the letter and spirit of the Act of 1976 must be evaluated in the light of that Act's Article 6, which states that Members of the European Parliament 'shall not be bound by orders or instructions', thus defining the freedom and independence of Members as an authentic key principle,

E. whereas the Statute for Members of the European Parliament (which will be in force from 2009) states in its Article 2(1) that 'Members shall be free and independent', while the second paragraph of the same article, clearly deriving from the first paragraph, adds: 'Agreements concerning the resignation from office of a Member before or at the end of a parliamentary term shall be null and void',

F. whereas these provisions of the Statute merely spell out the principle of freedom and

1 OJ L 278, 8.10.1976, p. 5: act most recently amended by Decision 2002/772/EC, Euratom (OJ L 283, 21.10.2002, p. 1).

RR\668700EN.doc 3/10 PE 388.584v02-00 EN independence already contained in the Act of 1976, which are explicitly endorsed by the Statute for the protection of Parliament and its Members,

G. whereas Article 6 of the Act of 1976 should be extended to candidates who, though not yet formally Members, are on a post-electoral list, this being in Parliament's interest since such candidates are potential Members of the European Parliament,

H. whereas Mr Achille Occhetto's withdrawal arises from an agreement, made prior to the proclamation of those elected in the elections to the European Parliament of 12 and 13 June 2004, with the other member of the list 'Società civile Di Pietro-Occhetto', and should therefore be considered incompatible with the letter and spirit of the Act of 1976 and, consequently, as null and void,

I. whereas if Mr Achille Occhetto's withdrawal is to be considered null and void, then the mandate of his successor Beniamino Donnici cannot be justified in law or in fact,

J. whereas, in a decision of 21 July 2006, the Lazio Regional Administrative Tribunal (the court of first instance in the matter) ruled that Mr Achille Occhetto's withdrawal, made before the proclamation of the names of those elected, cannot be considered a withdrawal from his position on the post-electoral list, on the grounds that respect for the will of the people requires that the election results cannot be altered, and is without effect as regards the adoption of any possible acts of substitution in case of incompatibility, loss of civil rights, ineligibility or resignation from an appointment or position on the part of those originally entitled thereto. It follows that a candidate who does not wish to take up the position to which he has been elected has the right, where the conditions for substitution apply, to cancel his own withdrawal with a view to occupying the place to be covered by means of substitution,

K. whereas the Italian Council of State, in a final judicial ruling, annulled the proclamation of Mr Achille Occhetto's election to the European Parliament,

L. whereas a judgment of a court in a Member State is not binding on the European Parliament where it is incompatible with the principles of the Act of 1976, concerning which Parliament, and only Parliament, may be said to have a reserved jurisdiction (see first part of Article 12 of the Act: 'The European Parliament shall scrutinise the mandates of its members'),

M. whereas Parliament may legitimately both refuse to validate the mandate of Mr Beniamino Donnici and ignore the decision of the Italian Council of State on the grounds that it contradicts the letter and spirit of the Act of 1976, thus upholding the mandate of Mr Achille Occhetto,

1. Declares the mandate as Member of the European Parliament of Mr Beniamino Donnici, whose election was communicated by the national authorities, to be invalid;

2. Confirms the validity of the mandate of Mr Achille Occhetto;

3. Instructs its President to forward this decision to the Italian national authorities, to Mr Beniamino Donnici and to Mr Achille Occhetto.

PE 388.584v02-00 4/10 RR\668700EN.doc EN EXPLANATORY STATEMENT

At its meeting of 2-3 May 2007 the Committee on Legal Affairs considered – pursuant to Rule 3 (4) and (5) of the Rules of Procedure – the validity of the mandate held by Mr Beniamino Donnici (a new Member nominated by the competent authority in his country pursuant to an internal ruling which legally challenged the mandate held by Mr Achille Occhetto).

I. Reconstruction of the facts

1. At the June 2004 elections to the European Parliament, Mr Beniamino Donnici was a candidate on the Società civile DI PIETRO-OCCHETTO list, which had won two seats in two constituencies. Mr was elected in both and he opted for the South constituency.

2. Mr Achille Occhetto (who was first on the list of the candidates who had not been elected in either constituency) declared that he would withdraw as a candidate for election to the European Parliament.

3. Hence those elected in the first constituency were Mr (who came immediately after Mr Achille Occhetto on the list) and Mr Beniamino Donnici (who was third on the list in the other constituency and was promoted to the top of the list of those who had not been elected).

4. Following the parliamentary elections held in Italy, Mr Antonio Di Pietro stood down as an MEP, since he had been elected as a Member of the Italian Parliament.

5. Mr Achille Occhetto asked to be allowed to replace Mr Antonio Di Pietro as the first of those who had not been elected in the Italy South constituency and he revoked his earlier decision to withdraw.

6. Thus the National Electoral Office for the European Parliament at the Court of Appeal declared Mr Achille Occhetto elected as a Member of the European Parliament (in the Italy South constituency and for the Società civile DI PIETRO-OCCHETTO list) in his capacity as the first of those who had not secured election in that constituency. The grounds for this decision (which took no account of Mr Achille Occhetto's statement of withdrawal) were that, 'unlike what occurred in the case of the first constituency (Italy North-West), Mr Achille Occhetto's 7 July 2004 decision to withdraw as a candidate for election to the European Parliament has had no effect and must therefore be regarded as revocable, since it was taken before the start of the procedure to replace Mr Antonio Di Pietro with the candidate who comes immediately after him on the same list and in the fourth constituency (Italy South).'

7. By means of an appeal submitted on 30 May 2006 to the Lazio Regional Administrative Tribunal (RG No 5258/2006), Mr Beniamino Donnici challenged the action taken by the National Electoral Office on the grounds that it was illegitimate, since it infringed Articles 20, 21, 22 and 41 of Law No 18 of 24 January 1979 and also the general principles relating to elections, and since Mr Achille Occhetto had been declared elected, even

RR\668700EN.doc 5/10 PE 388.584v02-00 EN though he had withdrawn on 7 July 2004, which meant that he did not appear on the list of the elected candidates and the possible substitutes which had been forwarded to the European Parliament on 12 November 2004.

8. Having allowed appropriate time for an administrative decision to be taken, the European Parliament - acting on the basis of the declaration made by the National Electoral Office and of the examination of the matter carried out by the Committee on Legal Affairs at its meeting of 21 June 2006 - duly validated Mr Achille Occhetto's parliamentary mandate (plenary sitting of 3 July 2006).

9. In particular, the Committee on Legal Affairs - having been informed of Mr Beniamino Donnici's proposed appeal - established that the dispute related to possible infringements of Italy's procedure for the nomination of elected representatives and that it was not therefore admissible since - pursuant to Article 12 of the 20 September 1976 Act concerning the election of the representatives of the European Parliament by direct universal suffrage - the European Parliament 'shall rule on any disputes which may arise out of the provisions of this Act other than those arising out of the national provisions to which the Act refers'.

10. By means of Ruling No 6232 of 21 July 2006 the Regional Administrative Tribunal rejected Mr Beniamino Donnici's appeal on the grounds that a withdrawal expressed with a view to the proclamation of elected representatives did not constitute a withdrawal from a position on a list, since respect for the will of the people requires that electoral results be regarded as unalterable and has no effect when any acts of substitution are being adopted in the event of incompatibility, loss of civil rights, ineligibility or resignation from an appointment or position on the part of those officially entitled to them. Hence a candidate who has withdrawn from an election is entitled - when the prerequisites for substitution are being verified - to withdraw his act of withdrawal in order to take over a seat to be recovered by means of substitution.

11. By means of Decision No 7185 of 6 December 2006 the Council of State accepted the appeal lodged by Mr Beniamino Donnici against the ruling issued by the Lazio Regional Administrative Tribunal and it amended that ruling on the basis of the following arguments:

 the distinction between withdrawing from an election and withdrawing from a position on a list is illogical, since election is an effect of a position on a list, hence withdrawal from an election entails removal of the individual concerned from the list and whatever effects may follow;

 it is contradictory to assert that withdrawal from an election has no bearing on substitution and that the withdrawing candidate is entitled to withdraw the withdrawal in cases where substitution is called for;

 withdrawal from an election constitutes an irrevocable declaration (once the competent body or office to which the announcement of withdrawal is sent has taken note thereof) which has the effect of amending the list made available to the electoral office.

PE 388.584v02-00 6/10 RR\668700EN.doc EN 12. The Council of State has thus annulled the proclamation of Mr Achille Occhetto as a Member of the European Parliament.

II. Problematic legal aspects

(a) The rules applicable

1. The starting point for an analysis of the most problematic legal aspects is the identification of the applicable Community rules and it is here that the two cases involving withdrawal from a position in a list and withdrawal from a parliamentary mandate tend to converge.

2. Pursuant to Rule 3(5) of the European Parliament's Rules of Procedure, 'Where the appointment of a Member is due to the withdrawal of candidates from the same list, the committee responsible for the verification of credentials shall ensure that such withdrawals have taken place in accordance with the spirit and the letter of the Act of 20 September 1976 and Rule 4(3)'.

3. It may legitimately be held that the case of Mr Achille Occhetto can be dealt with by analogy on the basis of the same rules as those governing resignations.

4. Having regard to the literal meaning of the rule that 'the withdrawal of candidates from the same list' includes both resignations from a current mandate and withdrawal from a future mandate, the view must be taken that the latter (which includes the case of Mr Achille Occhetto), may be dealt with by analogy on the basis of the same rules as those governing resignations from the parliamentary office which the elected individual already holds.

5. This means first of all that the European Parliament is required to check whether or not Mr Achille Occhetto's withdrawal is in accordance with the spirit and the letter of the 1976 Act and, secondly, whether or not the formal requirements laid down in Rule 4(3) of the Rules of Procedure have been observed.

(b) Incompatibility of the withdrawal with the 1976 Act

1. The question as to whether Mr Achille Occhetto's withdrawal is in accordance with the spirit and the letter of the 1976 Act must be assessed in the light of Article 6, pursuant to which 'representatives ... shall not be bound by any instructions and shall not receive a binding mandate'. The concept of Members' freedom and independence is most definitely a key principle.

2. It must be borne in mind that the above article is applicable in addition to candidates who, although they may not be Members, appear on a post-electoral list. This is in Parliament's interests, since such candidates are potentially Members of the Parliament itself, hence their freedom and independence must be protected from the outset.

3. It must therefore be established that the Member's will has not been subject to pressures or influences of any kind, beginning with the existence of pacts or agreements relating to the expression of his will.

RR\668700EN.doc 7/10 PE 388.584v02-00 EN 4. This is precisely the case with Mr Achille Occhetto. His withdrawal statement is the outcome of a will influenced by an earlier agreement with the other component of the Società civile DI PIETRO-OCCHETTO list and must therefore be deemed incompatible with the spirit and the letter of the 1976 Act and hence null and void.

5. Furthermore, Article 2(1) of the Members' Statute (due to come into force in 2009) states that 'Members shall be free and independent'. Paragraph 2 (which is clearly based on paragraph 1) states that 'agreements concerning the resignation from office of a Member before or at the end of a parliamentary term shall be null and void'.

6. This provision is only a spelling out of the principles of freedom and independence which are already laid down in the 1976 Act and which the Members' Statute explicitly endorses in the interests of the European Parliament and its Members.

c) The invalidity of the withdrawal on account of a procedural flaw

1. In order to ensure that a Member's will is as transparent as possible, Rule 4(3) of Parliament's Rules of Procedure states that the notification of resignation 'shall take the form of an official record drawn up in the presence of the Secretary-General or his representative, signed by the latter and by the Member concerned and immediately submitted to the committee responsible'. No other document (even if signed by the Member) is deemed valid.

2. The reason for this provision is exactly the same as the one for Article 6 of the Act, i.e. to protect the Member's will from any form of influence: error, diversion, threat etc. Since in the case of Mr Achille Occhetto (to which - as has been seen - the rules relating to resignations apply by analogy) the formal requirements in question were not observed (no report was drawn up in the presence of the Secretary-General or his representative), it must be concluded that Mr Achille Occhetto's withdrawal is null and void from a formal viewpoint as well.

d) The Legal Service's opinion

1. The Legal Service was asked by the committee to issue an opinion on the matter, in which it stated that a ruling issued in a Member State should be taken into account.

2. This opinion must be rejected, since it would have the effect of reducing the role of the European Parliament, which by virtue of its role as a representative of Europe's citizens must uphold the sacrosanct principles of the will of the people and of its own independence. These do not allow the individual Member States to interfere with the European Parliament's composition.

3. Hence the Committee on Legal Affairs is required to examine the matter in the light of the spirit and the letter of the rules laid down in the European Act.

III. Conclusion

1. Mr Achille Occhetto's withdrawal is null and void, since it is essential to the validity of his successor's mandate, and the European Parliament will have to issue a negative opinion

PE 388.584v02-00 8/10 RR\668700EN.doc EN when verifying Mr Beniamino Donnici's credentials.

2. Since the Italian authorities have issued a ruling on the matter, the outcome will be that Mr Beniamino Donnici will be denied a valid mandate, yet at the same time it will not be possible for the validity of Mr Achille Occhetto's mandate to be confirmed.

3. However, the issue is not that the decisions taken by the Council of State no longer apply but, rather, whether or not the European Parliament is bound by a ruling issued by a Member State which goes against the principles laid down in the 1976 Act - principles in respect of which Parliament's may be said to have a reserved jurisdiction (see the first part of Article 12 of the Act: 'The European Parliament shall scrutinise the mandates of its Members).

4. Parliament may legitimately deny the validity of Mr Beniamino Donnici's mandate and, at the same time, ignore the decision taken by the Italian court, since the latter goes against the spirit and the letter of the 1976 Act. Mr Achille Occhetto's mandate is thus safeguarded.

RR\668700EN.doc 9/10 PE 388.584v02-00 EN PROCEDURE

Title Verification of the credentials of Mr Beniamino Donnici Procedure number 2007/2121(REG) JURI Committee responsible Date announced in plenary

Rapporteur(s) Giuseppe Gargani Date appointed 23.4.2007 Previous rapporteur(s) Discussed in committee 24.4.2007 2.5.2007 3.5.2007 21.5.2007 Date adopted 3.5.2007 Result of final vote + : 21 – : 5 0 : 0 Members present for the final vote Carlo Casini, Giulietto Chiesa, Marek Aleksander Czarnecki, Cristian Dumitrescu, Monica Frassoni, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Piia-Noora Kauppi, Klaus-Heiner Lehne, Katalin Lévai, Manuel Medina Ortega, Hartmut Nassauer, Aloyzas Sakalas, Francesco Enrico Speroni, Gary Titley, Diana Wallis, Rainer Wieland, Jaroslav Zvěřina, Tadeusz Zwiefka Substitute(s) present for the final vote Sharon Bowles, Mogens N.J. Camre, Jonathan Evans, Jean-Paul Gauzès, Barbara Kudrycka, Marie Panayotopoulos-Cassiotou, Jacques Toubon Substitute(s) under Rule 178(2) present Vittorio Agnoletto, Alfonso Andria, Luigi Cocilovo, Beniamino for the final vote Donnici, Giovanni Claudio Fava Date tabled 22.5.2007 Comments ... (available in one language only)

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