Beniamino Donnici (debate) 
President
The next item is the report by Giuseppe Gargani, on behalf of the Committee on Legal Affairs, on the verification of the credentials of Mr Beniamino Donnici.
Giuseppe Gargani 
rapporteur. - (IT) Mr President, ladies and gentlemen, I would like to mention in this Chamber the work carried out in committee, which has thoroughly discussed the credentials of Mr Donnici, resulting in a large majority in favour of the report.
I defend the committee, of which I have the great honour to be chairman, and I would like to answer those making petty insinuations to the effect that the committee has not been calm or objective - insinuations that clearly do nothing to honour this Parliament, given that the committee contains many jurists. We have people and jurists such as Mr Lehne, Mr Medina, Mrs Wallis and Mrs Frassoni, to mention just the coordinators, and also very many other prominent figures throughout the committee. Our discussions were always at a high level, and were conducted exhaustively and with great sincerity. We always focused primarily on the role of this Parliament, which is a giant in terms of many things that it does and its role in Europe, but a dwarf on some occasions when you want to force it into a procedural corner.
The issue we were discussing comes within this major issue: the facts are known, the withdrawal by Mr Occhetto infringes the European Act, and we cannot give Mr Donnici a positive verdict.
The rules governing the European election procedure fall within the Community's jurisdiction and therefore the reference to national provisions laid down in the 1976 European Act is of a solely supplementary character. The national provisions must, however, conform to the fundamental principals of the Community legal system, its primary rules and the spirit of the wording of the 1976 Act. For these reasons, the relevant legislative and administrative national authorities, as well as the jurisdictional authorities, may not omit to take account of the Community legal framework on election issues.
The admissibility of the withdrawal by Mr Occhetto must be assessed firstly on the basis of Article 4 of the 1976 Act, pursuant to which Members of Parliament may not be bound by instructions and may not receive a binding mandate, and the freedom and independence of parliamentary representatives constitutes a fundamental cornerstone of the freedom of citizens.
This is laid down in the 1976 Act, but the new Statute for Members of the European Parliament, which I now quote, even though it enters into force for the next parliamentary term, is, in the current state of the Community legal system, a legislative act of primary law, adopted by the European Parliament with the approval of the Council and published in the Official Journal. It is perfectly obvious that the withdrawal from election made by Mr Occhetto is the result of an expression of will that has been affected and vitiated by an agreement made prior to the proclamation of those elected in the 2004 European elections, that this agreement was entered into with the other member of the Società civile Di Pietro-Occhetto list, and that this withdrawal must be considered incompatible with the letter and spirit of the Act of 1976, and specifically with Article 6. It could not under any circumstances be validly revoked, as it was revoked. In the grounds for the judgment holding the opposite to be true, the Italian Council of State - I want to confirm this in this Chamber, as an Italian - did not mention or take into account in any way the aforementioned principles of Community law, thereby disregarding not only the spirit and the letter of the Act but also Article 4 and Article 6 of the text.
Pursuant to settled case law by the Court of Justice of the European Communities, the infringement of Community law by the authorities of a Member State, even when committed by a legal body of the highest level, through a final judgment, does not prevent the Court of Justice from holding that the supreme national court is in breach of Community law as mentioned above. This does not, however, constitute a waiver of the responsibility of the State - in this case, Italy - to which the said court belongs, as has been established. I believe that all this clearly demonstrates the situation in which we find ourselves.
I would like to quickly explain two things that are part of Italian law. The act of withdrawal may validly have existing rights as its object, and in such a case the withdrawal made by Mr Occhetto with regard to Mr Chiesa is, because of its explanation, fully valid and effective. The withdrawal also holds valid for future rights, but naturally the withdrawal may certainly be revoked before the event ends, before the withdrawing party finds himself in the actual circumstance of being able to withdraw.
The withdrawal expressed by Mr Occhetto following the proclamation of the electoral results did not alter the classification of the candidates on the Di Pietro-Occhetto list. The final argument, Mr President, is that we must recognise as a basic principle of law the fact that withdrawal can only take effect at the moment in which the necessary prerequisites exist for the right to be realised.
For this very reason, in the decision of 3 July 2006 that is alleged to contradict what we have done - in fact because of that decision by the Committee on Legal Affairs - we have confirmed the election of Mr Occhetto, because at the time the proclamation was in conformity with the European Act, in that we recognised his withdrawal to be invalid, improper and null and void. The exceptions with regard to Mr Donnici were then irrelevant. It is because of this that there is no contradiction.
We took this decision last year, and today we can confirm that decision because it is consistent, thoroughly reflected on by a Committee on Legal Affairs that naturally has no partisan interest, but has every interest in promoting and guaranteeing the autonomy of this Parliament.
Manuel Medina Ortega
on behalf of the PSE Group. - (ES) Mr President, I believe that we are at an important moment in the history of this Parliament. The rapporteur, the Chairman of the Committee on Legal Affairs, Mr Gargani, has explained the legal reasoning, with which we agree. My group has tabled a series of amendments aimed at enhancing this kind of legal reasoning.
We should look at the issue from a rather broader perspective, however. The European Parliament - the Committee on Legal Affairs - has always recognised the decisions of the national authorities with regard to the appointment of an MEP, and has also recognised electoral dispute procedures.
What is not acceptable is for the Italian judiciary, practically three years after the last elections, a year after Mr Occhetto was accepted as a Member of this Parliament, to suddenly tell us that that appointment was not valid.
Mr Gargani has explained the reasons from a legal point of view, but there is a fundamental political aspect: Parliament is made up of Members appointed in accordance with national law, by means of decisions by national authorities: administrative, electoral or judicial.
Once we are in this Parliament, however, Parliament constitutes a body in its own right, with its own personality, with the right to defend itself. I believe that the Occhetto case is going to set a great parliamentary precedent. From this point onwards, the national administrative or judicial authorities will know that Parliament has the power, at a given moment, to declare that a national decision does not comply with the law, that it has been arbitrary.
Parliament has the right and the duty to protect its Members. If we do not do so, Mr President, we shall be exposed to a situation in which, as a result of an arbitrary decision by a national authority or national court, you or any other Member of this Parliament can have their status as MEP taken away. It is essential to our parliamentary work that Members of Parliament should feel secure when carrying out their work.
I believe that Mr Gargani has done a great job as chairman - we have discussed many issues over many years - and in this case we have an agreement that is accepted by all of the parties, which does not reflect any party-political interest, but which responds to the need to defend the very status of the European Parliament.
The European Parliament, the body that represents the people of Europe, is established as a body in its own right and makes its own decisions. It is not like the Council, which is subject to the vicissitudes of national politics. We MEPs have a mandate, a fixed-term mandate that cannot be interrupted by means of an arbitrary national decision.
I shall therefore say once again that the Occhetto decision will be an historic decision in the history of Parliament, in the history of the affirmation of the personality of Parliament and of the rights of MEPs.
Luigi Cocilovo
on behalf of the ALDE Group. - (IT) Mr President, ladies and gentlemen, if there is one thing with which I agree, it is that there is a risk that the decision by this Parliament may mark a genuinely historic step, in that it will compromise issues, problems, principles and rules that go far beyond this specific event. This Parliament has never cast doubt upon the principle and rule laid down by the provisions of the Treaty on the national jurisdiction to settle disputes relating to electoral procedure and, thus, to proclaim those elected, with regard to whom Parliament then proceeds to carry out the so-called 'verification of credentials' - in other words, verification of electoral offices.
To confirm what I am saying, instead of commenting on it I would like to quote word for word the content of Parliament's decision, adopted on 14 December 2004 by this plenary, validating the mandate of all of us who were elected in those European elections. The mandate was declared valid, and I quote exactly '...subject to any decisions by the competent authorities of Member States in which the election results have been disputed'. This plenary confirmed a rule that is well-known to all!
I would like to add that in support of its decision the Committee on Legal Affairs refers to several articles both from the European Election Act and from the Rules of Procedure, referring to Parliament's jurisdiction to intervene in the event of resignations. We are not talking about any resignations! The issue on which the Italian courts handed down a judgment relates to the dispute or the resolution of the dispute regarding the election, once Mr Di Pietro had resigned as a Member of this Parliament, his replacement being Mr Occhetto or Mr Donnici. The dispute was resolved by means of a provisional judgment, subject to appeal, which resulted in the proclamation of Mr Occhetto as the successful candidate; then came the judgment by the Italian Council of State - the Electoral Office, it is the same thing, Mr Gargani, it is not important - then came the judgment on the dispute, the final judgment by the Council of State, which proclaimed Mr Donnici as the successful candidate. Let us not discuss the resignations by Mr Occhetto, their compatibility with the wording, with the letter or with the mandate - let us simply discuss the prerogative and the jurisdiction of the national authorities to proclaim a Member, whose electoral credentials are then verified.
The consequences of the vote that we are about to make would involve a serious institutional conflict, breach of the provisions of the Treaty, and a possible empty seat, because in any case it would be for the national authorities to proclaim the person elected to replace the person whose mandate was not validated.
I will end by expressing my full appreciation for the members of the committee. Mr Gargani, nobody is casting doubt on the competence of the members; on the contrary, you have all my admiration, because the real skill of a jurist can be seen not when he is defending just causes, but when he is defending lost causes. I have every appreciation and respect for the way in which you have succeeded in obtaining this result.
Salvatore Tatarella
on behalf of the UEN Group. - (IT) Mr President, ladies and gentlemen, with all respect to the multitude of authoritative jurists with which the Committee on Legal Affairs is swarming, more modestly, I believe that if this Chamber were to approve the Gargani report tomorrow, the European Parliament would be committing a very serious and unprecedented act. It would be an unheard-of abuse of a Member who would see himself illegitimately deprived of his parliamentary mandate, and an unprecedented and unique breach of the treaties which, on electoral matters, clearly recognise the pre-eminence of the laws, procedures and authority of the Member States. This would be a serious conflict with a Member State, which would be deprived of a Member recognised as such by the laws and the legal authority of that country.
Mr President, the Committee on Legal Affairs has usurped powers that do not belong to it. I do not side with either of the two contenders. I am politically indifferent because they are both from the centre left; I understand Mr Occhetto's personal problem, for which I have empathy in purely human terms. What is at stake here, though, is the law, the correct composition of the European Parliament and the credibility of the highest Community institution. Justice, and only justice, must therefore be done, and any hint of politics and petty political party calculations must be left aside. What sort of trust can the citizens place in a European Parliament that distorts its own composition by excluding a Member who is eminently qualified to be a part of it?
Let us look at the facts: the legal authority proclaimed Mr Donnici as the successful candidate, in an unappealable judgment. The Italian State notified the European Parliament of his election. The committee was charged with verifying Mr Donnici's credentials. It was supposed to verify the offices he held and any incompatibility in them. It is of course true that it could examine appeals by third parties and therefore it legitimately examined the challenges put forward by Mr Occhetto. What it could not do was to declare null and void an act delivered before a public official of a Member State. This is a legal act that may be carried out solely by the legal authority of the Member State that has dealt with the matter and that has handed down an irrevocable and unappealable judgment.
Nicola Zingaretti
(IT) Mr President, ladies and gentlemen, I would like first of all to thank Mr Gargani, because the issue has been very complex and difficult, and the work has been completed with great wisdom and with a sense of responsibility, in accordance with just one criterion: safeguarding, above all, the rights and prerogatives of this Parliament.
The main or crucial point of the decisions taken is right and, above all, it avoids a precedent being set, namely the recognition of acts or initiatives that restrict the choices of candidates or of those who are about to become MEPs.
It is true that this is a first, and probably also sets a precedent, but this precedent and this first are fair and guarantee the prerogatives of the European Parliament. The decisions that we are taking are linked to a function and to a prerogative that is granted to us, giving us the right to express ourselves, to accept, to assess or to reject credentials and acts that are put before us. So this is not a case of going beyond our territory, but just the right to express an opinion that is given to us by this Parliament itself.
President
It is necessary firstly to protect the rights of our colleagues and secondly the rights of the European Parliament.
The debate is closed.
The vote will take place on Thursday at 12 noon.
Written statements (Rule 142)
Carlo Casini
in writing. - (IT) I will vote against the proposal for a decision, for the following reasons which, I am certain, will be accepted by the Court of Justice. The proposal is misguided because:
1) in general, the appointment of those elected is the province of national bodies, as provided by Articles 7 and 11 of the Act of 20 September 1976;
2) in letter C: Mr Occhetto did not withdraw from the mandate at all, but from nomination by the Italian central electoral office and his position in the list of the candidates voted for; the withdrawal referred to in Rule 3(5) of the Rules of Procedure is that of a Member who has already been appointed and does not refer to acts preceding appointment;
3) in letter D: the prohibition on a binding mandate relates to the exercise of a mandate already received, and not to events preceding the appointment;
4) in letters E, F and G: the reference to the Statute for Members that has not yet entered into force is irrelevant, and so is the reference to Members subsequent to appointment;
5) in letters J, I, K and L: the Italian Council of State not only annulled but also amended the previous decision by the regional administrative tribunal, in a judgment not subject to appeal;
6) point 2: Parliament cannot replace the Italian office appointing a Member of Parliament.
