Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 30 April 2020 (1)

Case C‑12/19 P

Mylène Troszczynski

v

European Parliament

(Appeal – Law governing the institutions – Member of the European Parliament – Privileges and immunities – Protocol on privileges and immunities – Articles 8 and 9 – Decision waiving parliamentary immunity – Activity not connected to parliamentary duties – Publication on the Member’s Twitter account)

I.      Introduction

1.        By her appeal, the appellant seeks to have set aside the judgment of the General Court of the European Union of 8 November 2018, Troszczynski v Parliament (T‑550/17, not published, ‘the judgment under appeal’, EU:T:2018:754), by which the General Court dismissed her action seeking annulment of the decision of the European Parliament of 14 June 2017 waiving the appellant’s parliamentary immunity (‘the decision at issue’).

2.        In the present case, the Court will be asked to rule on the extent of the immunity enjoyed by all Members of the European Parliament under Protocol No 7 on the privileges and immunities of the European Union, annexed to the EU and FEU Treaties (‘the Protocol’). (2) The Court will have the opportunity to reaffirm its case-law on the matter, in particular the principles laid down in the judgment of 6 September 2011 in Case C‑163/10, Patriciello, (3) thus providing useful guidance and direction which will promote better cooperation between the European Parliament and the judicial authorities of Member States.

II.    Legal framework

3.        Article 8 of the Protocol provides:

‘Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.’

4.        Article 9 of the Protocol provides:

‘During the sessions of the European Parliament, its Members shall enjoy:

(a)      in the territory of their own State, the immunities accorded to members of their parliament;

(b)      in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.’

5.        Rule 5(2) of the Rules of Procedure of the European Parliament (8th  parliamentary term – July 2014) (‘the Rules of Procedure’) states:

‘Parliamentary immunity is not a Member’s personal privilege but a guarantee of the independence of Parliament as a whole and of its Members.’

III. Background to the dispute

6.        The appellant, Ms Mylène Troszczynski (‘the appellant’), was elected as a Member of the European Parliament on 1 July 2014.

7.        On 23 September 2015, a photo was published on the applicant’s Twitter account, which showed a group of women wearing an item of clothing covering up their whole faces other than their eyes and who appeared to wait in front of a caisse d’allocations familiales (family allowances office) (CAF). The photo was accompanied by the following comment: ‘The CAF in Rosny-sous-Bois on 9 December 2014. Wearing a full-face veil is supposed to be prohibited by law …’ (‘the tweet at issue’).

8.        On 27 November 2015, the managing director of the CAF in Seine-Saint-Denis (France) lodged a complaint, together with an application to join the proceedings as a civil party, for public defamation of a public authority.

9.        On 19 January 2016, the procureur de la République de Bobigny (public prosecutor, Bobigny, France) opened a judicial investigation in respect of incitement of hatred or violence with regard to a person or a group of persons on account of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion, and public defamation.

10.      The appellant was summoned by an investigating magistrate to appear for the first time on 20 September 2016. Following her refusal to comply with that summons, on the ground of her European parliamentary immunity, the investigating magistrate, by application of 23 September 2016, submitted a request to the Parliament for the withdrawal of that immunity.

11.      By letter of 1 December 2016, the procureur général près la cour d’appel de Paris (principal public prosecutor attached to the Court of Appeal, Paris, France) forwarded the investigating magistrate’s request, together with a favourable opinion, to the French Minister for Justice in order for him to forward that request to the President of the Parliament. On the same date, the French Minister for Justice forwarded to the President of the Parliament the request for waiver of the appellant’s parliamentary immunity issued by the investigating magistrate of the tribunal de grande instance de Bobigny (Regional Court, Bobigny, France).

12.      On 16 January 2017, the President of the Parliament announced in plenary session that that request would be sent to the Committee on Legal Affairs.

13.      On 11 April 2017, the Committee on Legal Affairs heard the appellant. That committee delivered its report on 12 June 2017.

14.      By decision of 14 June 2017, the Parliament waived the appellant’s immunity.

15.      After the action was brought before the General Court, by order of 26 April 2018, the Vice-President of the tribunal de grande instance de Bobigny (Regional Court, Bobigny), in charge of the investigation, referred the case against the appellant to the tribunal correctionnel (Criminal Court, France).

IV.    Procedure before the General Court and the judgment under appeal

16.      By application lodged at the Registry of the General Court on 12 August 2017, the appellant brought an action seeking annulment of the decision at issue and compensation for the non-material damage allegedly caused by that decision.

17.      In support of the form of order sought by the appellant, she raised four pleas in law: the first, alleging infringement of Article 8 of the Protocol; the second, alleging infringement of Article 9 of the Protocol; the third, alleging breach of the obligation to state reasons and of the principle of equal treatment and the principle of sound administration; the fourth, alleging breach of the rights of the defence and raising a plea of illegality in respect of Article 9(9) and Article 150(2) of the Rules of Procedure.

18.      The General Court dealt with the first two pleas in law together, recalling, by way of an introductory point, case-law according to which, if the Parliament reaches the conclusion that the facts giving rise to the request for waiver of parliamentary immunity are not covered by Article 8 of the Protocol, it must ascertain whether the Member benefits from the immunity provided for by Article 9 of the Protocol in respect of those facts and, if the Member does, it must decide whether or not to waive that immunity.

19.      For the purposes of its analysis, the General Court divided the arguments set out by the appellant in support of those two pleas in law into five complaints: the first, alleging that Article 26 of the French Constitution applied to the tweet at issue; the second, alleging that that tweet constituted an opinion expressed in the performance of the appellant’s parliamentary duties within the meaning of Article 8 of the Protocol; the third, alleging that the Parliament breached the fundamental right to freedom of expression by wrongly waiving the appellant’s parliamentary immunity; the fourth, alleging that the appellant was not the author of the tweet at issue; the fifth, alleging that the independence of the appellant and the Parliament had been detrimentally affected.

20.      With regard to the first complaint, the General Court rejected it as ineffective. It found, in paragraph 41 of the judgment under appeal, that the ground on which the Parliament considered that the appellant could not rely on Article 26 of the French Constitution did not relate to the fact that the statement at issue had been made on Twitter, but rather to the fact that the tweet at issue could not be classified as an opinion expressed or a vote cast in the performance of the appellant’s parliamentary duties within the meaning of Article 8 of the Protocol.

21.      With regard to the second complaint, the General Court rejected it as unfounded in paragraph 54 of the judgment under appeal. It found that the purpose of the tweet at issue was essentially to deplore the failure to respect a French law prohibiting the covering up of the face in public places. Since that tweet referred to a specific occurrence which was supposed to be taking place, in breach of a French law, in front of a body entrusted with a public service in French territory, and could not be equated to the adoption of a more general position on topical issues or issues dealt with by the Parliament, the General Court held that the Parliament did not make a manifest error of assessment in considering that the charges against the appellant did not concern opinions expressed or votes cast in the performance of her duties as a Member of the Parliament, within the meaning of Article 8 of the Protocol.

22.      As to the third complaint, the General Court also rejected it as unfounded, in paragraph 59 of the judgment under appeal, recalling that Article 8 of the Protocol seeks to protect free expression by and the independence of Members and which is therefore ‘closely linked to freedom of expression’. Given that the facts alleged against the appellant did not fall within that article, the General Court thus concluded that the Parliament did not breach that freedom.

23.      With regard to the fourth complaint, the General Court rejected it as ineffective. It pointed out, in paragraphs 61 and 62 of the judgment under appeal, on the one hand, that ‘the question of whether the conditions for waiver of immunity were met at the time when that waiver was requested is distinct from that of whether the facts alleged against the Member in question are established’ and, on the other, that it is not for the Parliament to express an opinion on whether those acts can be imputed to the appellant or to determine whether or not the appellant was the author of the tweet at issue.

24.      Finally, the fifth complaint identified by the General Court in the context of the first and second pleas in law was rejected as unfounded. According to the General Court, in paragraphs 66 and 67 of the judgment under appeal, since Article 9 of the Protocol expressly provides for the possibility of waiving the immunity which Members enjoy under that provision, ‘the Parliament cannot, consequently, be criticised for having taken the view that it was appropriate, in the light of the circumstances of the present case and following the request forwarded by the French Minister for Justice, to waive the appellant’s immunity arising from [the Protocol] in order to allow the investigation conducted by the French judicial authorities to continue’. In any event, according to the General Court, the appellant failed to invoke any circumstances capable of leading to a finding that the Parliament had, in the present case, detrimentally affected her independence as a Member.

25.      Regarding the third plea in law, the first part of which alleged breach of the obligation to state reasons and of the principle of equal treatment, and the second, infringement of the principle of sound administration, the General Court rejected that plea in its entirety in paragraph 102 of the judgment under appeal.

26.      In connection with the first part, the appellant argued, in essence, that she ought to have benefited from ‘Principle 2’ of Notice to Members No 11/2003 of the Parliament’s Committee on Legal Affairs and the Internal Market of 6 June 2003 with the objective of the ‘Waiver of immunity in accordance with Article [9] of the Protocol on privileges and immunities. Principles established on the basis of cases relating to the expression of opinions’ (‘Notice No 11/2003’), in terms of which ‘it is a fundamental principle that in cases in which the acts of which the Member stands accused form part of his or her political activity or are directly related to such activity, immunity will not be waived’.

27.      To reject that claim, the General Court relied on case-law according to which Notice No 11/2003 cannot bind the Parliament inasmuch as it is not an act of the Parliament within the meaning of Article 288 TFEU. (4) The General Court pointed out on the one hand that, inasmuch as the appellant failed to specify either the acts or remarks which were the subject of the complaints against the Members who she indicated had benefited from that notice or the circumstances in which the events in question had taken place, she failed to establish that the situation of those Members was comparable to her own. On the other hand, since, in the present case, there was no direct connection between the tweet at issue and the appellant’s parliamentary duties, she also failed to establish that the Parliament derogated from ‘Principle 2’ (paragraph 81 of the judgment under appeal).

28.      In connection with the second part of the third plea in law, the appellant argued, in essence, that the Parliament breached the principle of sound administration, by failing to find, in the present case, that there was fumus persecutionis, as defined in Notice No 11/2003, namely circumstances in which it would have been necessary to presume that the legal proceedings against the appellant had been brought to damage her political interests. According to the appellant, those proceedings were brought by the then French Minister for Justice, who was an open opponent of the National Front, the political party which she represents. In addition, those proceedings were brought on the eve of an election campaign.

29.      The General Court rejected the second part of the third plea in law, pointing out, in the first place, that the appellant failed to provide ‘any concrete evidence, other than a difference in political ideology, capable of establishing that the French Government, and in particular the French Minister for Justice, was persecuting the National Front’, or that ‘it is solely, or even partly, her membership of the National Front that prompted the opening of a judicial investigation in the present case’.(5)

30.      In the second place, the General Court found that there was no evidence to support a finding that the request for waiver of the appellant’s parliamentary immunity was made in connection with legal proceedings which had been conducted in an irregular manner, in particular with regard to timings.

31.      Thirdly, the General Court, after reiterating that the issue of whether the conditions of waiver of parliamentary immunity are met at the time when that waiver is requested is distinct from that of whether the facts alleged against the Member in question are established, took the view that none of the factors relied upon by the appellant in this context – being (i) that her assistant wrote the tweet at issue without her knowing, (ii) that the image at issue was a photomontage created using a picture which was freely available and had already been distributed and shared on the internet without any legal proceedings’ having been initiated, in particular by the CAF in Seine-Saint-Denis, (iii) that the appellant deleted the tweet as soon as she became aware of it, and (iv) that, in the event of her being convicted, she may be subject to the ancillary penalties of ineligibility and the loss of her mandate as a Member of the European Parliament and of all her elective mandates – is ‘among the circumstances which the Parliament was required to take into account in order to determine whether the conditions for waiver of parliamentary immunity were met in the present case’. (6)

32.      For the sake of completeness, the General Court found that the order for reference to the tribunal correctionnel (Criminal Court), adopted by the Vice-President of the tribunal de grande instance de Bobigny (Regional Court, Bobigny) after the adoption of the decision at issue and produced during the hearing, tended to contradict the appellant’s argument relating to the existence of fumus persecutionis on the part of the French judicial authorities. The General Court emphasised in that regard that, under the terms of that order, the fact that the appellant is not the author of the tweet at issue does not mean that she cannot be the subject of proceedings pursuant to the French Law of 29 July 1881 on the freedom of the press (‘the Law of 29 July 1881’).

33.      Finally, in paragraphs 105 to 120 of the judgment under appeal, the General Court examined and rejected the fourth plea for annulment, alleging breach of the rights of the defence and raising a plea of illegality in respect of Article 9(9) and Article 150(2) of the Rules of Procedure.

V.      Procedure before the Court and forms of order sought

34.      The appellant claims that the Court should:

–        set aside the judgment under appeal;

–        annul the decision at issue;

–        make an appropriate order as to the amount to be awarded to the appellant in respect of the costs of the proceedings;

–        order the Parliament to pay the costs.

35.      The Parliament contends that the Court should:

–        dismiss the appeal in its entirety;

–        order the appellant to pay the costs.

VI.    Legal analysis

A.      Preliminary remarks

1.      Role and status of Members of the European Parliament

36.      Members of the European Parliament represent Union citizens. They listen to the problems of citizens, interest groups and businesses. Elected by direct universal suffrage in a free and secret ballot for a term of five years, they are the link between citizens and the various institutions. As Members of the Parliament, they confer democratic legitimacy on the whole integration process. Not only do Members of the European Parliament play a central role in the legislative process, inter alia having the power to propose amendments to the draft texts on which they are required to vote, but they can also propose resolutions in all the areas of their remit. They also influence the work of the Council and the European Commission, being able to prompt those institutions to take action. They thus play a part in decision making in relation to major contemporary issues such as climate change, migration, human rights throughout the world, agreements with third States or international organisations and the regulation of financial markets. Moreover, Members of the European Parliament exercise significant control inasmuch as they vote on the EU budget, approve the composition of the Commission and can set up committees of inquiry and even censure members of the Commission, who must then resign.

37.      In order to ensure that their mandate is exercised entirely independently and free of any interference, a special status is conferred on Members of the European Parliament. As the Court indicated in the judgment delivered in Joined Cases C‑200/07 and C‑201/07, Marra, (7) the parliamentary immunity of Members of the European Parliament, as provided for in Articles 8 and 9 of the Protocol, comprises the two forms of protection usually afforded to members of national parliaments in the Member States, that is to say, immunity in respect of opinions expressed and votes cast in the exercise of their parliamentary duties, and parliamentary privilege, including, in principle, protection from judicial proceedings. (8) It should be pointed out that, far from seeking to secure a personal benefit for them, the purpose of the immunity conferred on them by the Protocol is to protect the Parliament, in the conduct of its work, against any hindrance to or risk of adverse effect on its proper functioning, as the Court recently recalled in the case which gave rise to the judgment in Junqueras Vies. (9)

38.      It is therefore logical that the Parliament should be given the power to determine itself whether legal proceedings brought against one of its Members aim to adversely affect its functioning. As is apparent from the third paragraph of Article 9 of the Protocol, that special status is not to prevent the Parliament from exercising its right to waive the immunity of one of its Members. It is precisely on the basis of that provision that the Parliament waived the appellant’s immunity following a request by the French authorities. In the dispute before the General Court, the appellant claimed that the Parliament, besides breach of a series of procedural guarantees, incorrectly applied the provisions of the Protocol in misjudging the extent of the parliamentary immunity which she enjoys. In contrast, in the present case, the appellant alleges a ‘manifest error of assessment’ on the part of the General Court, which must be defined from a procedural perspective in order that the appeal may be dealt with appropriately.

2.      Procedural aspects to be taken into account in the present appeal

39.      In support of her appeal, the appellant raises two grounds of appeal, grouped together in a single section entitled ‘Breach by the General Court of EU law – error of law and error in the classification of the legal nature of the facts – manifest error of assessment’. The appellant claims that the General Court made a ‘manifest error of assessment’ in the analysis of both the second and third pleas in law in the action for annulment brought against the decision at issue under Article 263 TFEU. According to the appellant, each of the two alleged errors of assessment has ‘implications for the General Court’s legal classification of the remarks in respect of which proceedings were brought and of the context of those remarks, and for the absence of any benefit for [the appellant] from the provisions of Articles 8 and 9 of the Protocol’.

40.      Before analysing the two grounds of appeal, I would point out that the appellant uses somewhat vague terminology to describe the alleged errors made by the General Court. What is more, as will be seen later, it is not identified clearly to what extent the alleged errors of assessment complained of by the appellant are capable of calling into question the legal validity of certain of the conclusions which the General Court drew in the judgment under appeal. On that basis, it seems to me to be necessary to recall the principles which characterise the appeal procedure and which will serve as points of reference in the analysis to be carried out.

41.      In accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law and is to lie on the grounds of lack of competence of the General Court, a breach of procedure before the General Court which adversely affects the interests of the appellant and the infringement of Union law by the General Court. Save where their clear sense has been distorted, the appraisal of the facts and the evidence does not constitute a point of law which is subject to review by the Court of Justice in the context of an appeal. (10) That said, there is distortion where, without having recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect or manifestly at odds with its wording. (11) The Court is, however, competent to review its legal classification and the legal conclusions drawn from it by the General Court. (12) It is on the basis of those principles that the grounds of appeal invoked by the appellant must be examined below.

B.      First ground of appeal

1.      Arguments of the parties

42.      With regard, first of all, to the error of assessment allegedly made in the analysis of the second plea in law in the action, the appellant criticises the General Court for having found, firstly, that the occurrence commented on by the tweet at issue, because of its geographical location in France, is not among the issues of interest to a Member of the European Parliament, secondly, that an opinion necessarily constitutes the adoption of a general position and cannot refer to a specific occurrence and, thirdly, that ‘the highlighting by a Member of the Parliament of conduct which is contrary to French law is not a topical issue’.

43.      The appellant argues, in opposition to the first allegedly incorrect finding of the General Court, that each Member of the Parliament is an elected representative of his country, that he represents his electorate and that, during his mandate, must maintain a necessary connection with them, ‘in particular by discussing events which interest or concern them’.

44.      In opposition to the second allegedly incorrect finding of the General Court, the appellant argues, firstly, that it is contrary to Notice No 11/2003 and in particular Principle 2 of that notice, secondly, that under the Law of 29 July 1881, the tweet at issue is regarded as an opinion and, thirdly, that, according to the European Court of Human Rights, in its judgment of 8 October 2009, Brunet-Lecomte and Tanant v. France, (13) ‘an insulting, defamatory or other remark may become a subject for political debate and be protected on the basis of the fundamental right constituted by freedom of expression, if there is a general interest in discussing it’.

45.      The appellant disputes the third allegedly incorrect finding of the General Court by arguing, on the one hand, that the wearing of a full-face veil in public places, as an external manifestation of adherence to Islam, is an ‘issue of general interest which concerns public life and women’s rights’ and, on the other, that the General Court should have applied the case-law laid down in the Patriciello judgment, inasmuch as, to refuse to waive the parliamentary immunity of a Member, it refers to ‘[the] general interest of his electorate in the framework of his political activity’.

46.      The Parliament argues that those three complaints are based on an incorrect reading of the judgment under appeal. It points out, firstly, by reference to paragraph 53 of the judgment under appeal, that the General Court does not assert that the occurrence commented on, because of its geographical location in France, is not among the issues of interest to a Member of the European Parliament, but rather that the tweet at issue referred to a specific occurrence and could not be equated to the adoption of a more general position on topical issues or issues dealt with by the Parliament.

47.      Secondly, according to the Parliament, the General Court did not find that an opinion must constitute the adoption of a general position which cannot refer to a specific occurrence, but rather that the actual opinion in question had no obvious, direct connection with the appellant’s parliamentary duties.

48.      Thirdly, according to the Parliament, the General Court did not decide that the highlighting by a Member of conduct contrary to national law does not constitute a topical issue, but only that the tweet at issue could not be equated to the adoption of a more general position on topical issues.

49.      Moreover, with regard to the reference to the Patriciello judgment, the Parliament emphasises that the quotation in question comes from paragraph 12 of that judgment, which is part of the presentation of the facts in the case submitted to the Court and not of the reasoning of that case.

2.      Assessment

(a)    Absence of an obvious, direct connection between the activity in question and the duties normally performed by a Member of the European Parliament

50.      I would emphasise at the outset that it is clear from Article 8 of the Protocol that Members of the Parliament ‘shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties’.(14) It can be concluded from a textual analysis of that provision that a Member of the European Parliament can clearly rely on his parliamentary immunity since there is a sufficiently close connection between the opinions expressed or votes cast by him and the duties normally performed. Such a conclusion can also be reached if that provision is analysed taking into account its objective, already mentioned in my preliminary remarks, (15) of protecting the proper functioning of the Parliament from any interference.

51.      That interpretation is confirmed by the judgment in Patriciello, in which the Court interpreted that provision as requiring that ‘the connection between the opinion expressed and parliamentary duties must be direct and obvious’. (16) It should be pointed out in that context that the Court supported a somewhat restrictive interpretation of the concept of ‘immunity’, (17) for reasons which appear to me to be relevant. The Court stated that the immunity provided for in Article 8 of the Protocol ‘is capable of definitively preventing national courts and juridical authorities from exercising their respective jurisdictions in the field of prosecutions and penalties for criminal offences for the purpose of ensuring the observance of law and order in their territory and, as a corollary, capable of thus denying the persons damaged by those statements any judicial remedy whatsoever, including, as the case may be, claiming compensation before the civil courts for the damage suffered’. (18)It is therefore necessary to assess on a case-by-case basis whether the conditions allowing a Member of the European Parliament to legitimately claim immunity are met. (19)

52.      That said, I note some parallels between the circumstances of the present dispute and those of the Patriciello case which I think it is important to point out in this analysis in order to better understand the General Court’s reasoning. In both cases, the Members in question expressed an opinion – either themselves or through a third party – on events assumed to have taken place outside of the Parliament and which had no obvious connection with the duties of a Member of the European Parliament.

53.      In the Patriciello case, the Member in question had made remarks on the allegedly unlawful conduct of a police officer in his Member State of origin, circumstances which the Court regarded as ‘rather far removed from the duties of a Member of the European Parliament and hardly capable, therefore, of presenting a direct link with a general interest of concern to citizens’. Thus, with regard to a reference for a preliminary ruling under Article 267 TFEU, the Court took the view, subject to the assessments which the referring court was required to carry out, that ‘even if such a link could be demonstrated, it would not be obvious’. (20)

54.       In the present case, the French judicial authorities claim that the appellant published on her Twitter account a photo purportedly linked to an occurrence which was supposed to have taken place in a public authority’s building situated in a locality in the appellant’s Member State of origin. More specifically, it is apparent from paragraph 52 of the judgment under appeal that the tweet at issue sought to ‘deplore the failure to respect a French law …, prohibiting the covering up of the face in public places, by a group of women wearing an item of clothing covering up their whole faces other than their eyes and who were supposed to be in front of the CAF in Rosny-sous-Bois’. It seems to me that the link between that activity and the typical duties of a Member of the European Parliament, described in my preliminary remarks, (21) is not particularly obvious. In any case, it is no more so than in the circumstances which gave rise to the Patriciello judgment. There is no discernible link with the objectives or the policies of the European Union which the Parliament is expected to influence in its decision-making role. Nor do the activities in question appear likely to be more than purely local. Consequently, the circumstances of the two cases must be evaluated in the same way in legal terms.

55.      I thus share the General Court’s assessment in paragraph 54 of the judgment under appeal with regard to the absence of a direct and obvious connection between, on the one hand, the acts imputed to the appellant and her colleagues and, on the other, her duties as a Member. It must therefore be concluded that the General Court did not err in law in confirming that the alleged activities did not concern opinions expressed or votes cast by the appellant in the performance of her duties as a Member of the Parliament within the meaning of Article 8 of the Protocol.

56.      Before concluding this element, I would like to provide some clarification in relation to paragraph 12 of the judgment in Patriciello, to which the appellant appears to accord particular importance for the interpretation of the Protocol. The appellant argues in her observations that the passage indicated contains ‘principles’ of law which the General Court should have applied to her. However, it must be noted that the passage in question does not form part of the grounds of the judgment but of the summary of the factual context. Consequently, no legal principles capable of binding the General Court can be deduced from it. Moreover, inasmuch as mention is made of the reasons why the Parliament had decided at the time to defend the immunity of the Member of the European Parliament in question, namely the fact that he acted ‘for [the] general interest of his electorate in the framework of his political activity’, it is sufficient to draw attention to the fact that the assessment underlying that decision, based on a recommendation of the Parliament’s Committee on Legal Affairs, had no effect on the Court’s interpretation of Article 8 of the Protocol. Quite to the contrary, it is clear from the operative part of the Patriciello judgment that an activity such as that described above is not covered by the immunity which that provision confers. It follows that the appellant cannot usefully rely on the purely factual findings contained in paragraph 12 of the judgment in Patriciello.

57.      As one of the essential criteria of Article 8 of the Protocol is not fulfilled, it is not necessary, in principle, to examine whether the activity in question constitutes the expression of an ‘opinion’ within the meaning of that provision. The Court merely recalled in the Patriciello judgment that that concept ‘must be understood in a wide sense to include remarks and statements that, by their content, correspond to assertions amounting to subjective appraisal’, (22) without providing the referring court with additional guidance to allow it to ascertain whether the statements of the Member in question fell within that concept. Consequently, the possibility that any statement referring to a specific issue which is at the centre of Europe-wide public debate, such as the issues mentioned in my preliminary remarks, (23) and expressing a personal belief of the Member, may constitute such an opinion cannot be categorically excluded.

58.      It is for the entities responsible for applying the Protocol and ensuring that it is applied correctly, first and foremost for the Parliament when a request for waiver of immunity is submitted to it, to examine that question on a case-by-case basis. (24) In the present case, I note that, in the decision at issue, the Parliament refrains from explicitly classifying the activity in question as the expression of an ‘opinion’, which could be interpreted as meaning that it wished to give the appellant the benefit of the doubt. Such an approach is conceivable in the light of the wide meaning of that concept. (25) Furthermore, I note that that question was not expressly addressed in the proceedings before the General Court either.

59.      In any event, I do not think it is relevant to deal with that question in the present appeal proceedings, in the light of the fact that the complaints raised by the appellant exclusively concern the General Court’s assessment of the criterion relating to the ‘direct and obvious connection’ with the duties of a Member of the European Parliament. To address the question of whether a photomontage related to an occurrence which possibly never arose constitutes the expression of an ‘opinion’ within the meaning of Article 8 of the Protocol would be to go beyond the scope of the judicial review specific to appeal proceedings.

(b)    Examination of the complaints raised by the appellant

60.      The foregoing considerations constitute the basis on which the complaints raised by the appellant must now be analysed. As I will explain in that analysis, those complaints indicate an incorrect reading of the judgment under appeal, casting doubt on the merits (26) of the first ground of appeal.

(1)    First complaint

61.      Contrary to what the appellant argues, the General Court did not assert, in paragraph 53 of the judgment under appeal, that the alleged occurrence commented on in the tweet at issue, because of its geographical location in France, was not among the subjects of interest to a Member of the European Parliament. On the contrary, the General Court did not categorically exclude the possibility that occurrences linked to problems related to Islamism and the breach of women’s rights – which affect a number of countries in the world, including France – may indeed constitute questions of general interest.

62.      It should be added that the General Court in fact explained, in paragraph 53, that ‘the photo and the tweet at issue appear more to reflect a desire to highlight conduct contrary to French law than to express a wish to defend women’s rights’. The General Court thus concluded that ‘the fact that the applicant is a substitute on the Parliament’s Committee on Women’s Rights and Gender Equality cannot allow the tweet at issue to be linked to the duties which she performs as a Member’. That assessment of the facts, falling within the exclusive jurisdiction of the General Court, cannot be called into question in the appeal proceedings, especially given that the appellant did not provide any evidence indicating a possible error of law.

63.      It follows that this complaint must be rejected on the ground that it is based on an incorrect reading of the judgment under appeal.

(2)    Second complaint

64.      Contrary to what the appellant argues, nor did the General Court assert, by way of a principle, that an opinion is necessarily the adoption of a general position and cannot refer to a specific occurrence. It is apparent from paragraph 46 of the judgment under appeal that, in order to examine whether the tweet at issue constituted an opinion expressed by the appellant in the performance of her parliamentary duties, the General Court did not restrict that concept to the adoption of general positions, excluding any reference to a specific occurrence. On the contrary, the General Court relied on the concept of ‘opinion’ developed by the Court and referred to above, (27) according to which that concept must be understood in a wide sense, thus not excluding either of the two scenarios.

65.      That said, while an opinion can certainly refer to a specific occurrence, it is common ground in the present case that the tweet at issue concerns a specific occurrence which is supposed to have taken place in a locality in France, and cannot be equated to the adoption of a more general position on topical issues or issues usually dealt with by the Parliament in debates or the various committees, (28) such as those which I mentioned in my preliminary remarks. (29) It should be borne in mind that, as I established above, the issue has no obvious, direct connection with the appellant’s parliamentary duties, as required by Article 8 of the Protocol.

66.      Inasmuch as this complaint relies on an incorrect reading of the judgment under appeal, I propose that it be rejected.

(3)    Third complaint

67.      The Law of 29 July 1881 invoked by the appellant, who regards the tweet at issue as an ‘opinion’, seems to me to be irrelevant in the present context, especially given that the extent of the immunity provided for in Article 8 of the Protocol must be established on the basis of EU law alone. As the Court has indicated in its case-law, unlike the parliamentary immunity provided by subparagraph (a) of the first paragraph of Article 9 of the Protocol, which depends on national law, the extent of the immunity provided by Article 8 of the Protocol must be established on the basis of EU law alone, for that article makes no reference to national laws. (30)

68.      Consequently, I propose that this complaint also be rejected, inasmuch as it is based on a failure to take account of the autonomous nature of EU law.

(c)    Interim conclusion

69.      In view of the foregoing considerations, the first ground of appeal must be rejected as manifestly unfounded.

C.      Second ground of appeal

1.      Arguments of the parties

70.      With regard to the manifest error of assessment allegedly made by the General Court in the analysis of the third plea in law in the action, the appellant raises three complaints.

71.      The first is based on the fact that the General Court found ‘that it is not for the Parliament to say whether the facts alleged against the Member in question are established’, even though the Parliament examined those facts, ‘acknowledging in its decision that [the appellant] is not the author of the tweet’.

72.      By her second complaint, the appellant claims that the General Court failed to draw the correct legal conclusions from certain items in the case file, in particular Article 42 of the Law of 29 July 1881, which, as it establishes a ‘hierarchy of liability’, allows the competent national authorities to bring proceedings against the appellant’s assistant, the author of the tweet, separately from her.

73.      Finally, by her third complaint, the appellant claims that the General Court drew, from the order for reference to the tribunal correctionnel (Criminal Court) of which she was the subject, the ‘opposite legal conclusion to that called for by [that order]’, given that the appellant was not the author of the tweet at issue and removed it as soon as she became aware of it, which proves that she had no intention of committing an offence. In addition, the fact that the appellant was the only person to be referred to a tribunal correctionnel (Criminal Court), whereas the action against the author of the tweet at issue was time-barred, shows her ‘persecution by a magistrate’ and reveals an ‘intention to harm her politically, conduct which is characteristic of fumus persecutionis’.

74.      The Parliament considers that the second ground of appeal is inadmissible. First of all, the appellant fails to specify in what respect the interpretation of Article 9 of the Protocol, adopted by the General Court, according to which it is not for the Parliament to determine whether the facts alleged against the Member in question are established, is incorrect and, consequently, what is the nature of the error made by the General Court. Nor does the appellant state, in a sufficiently precise manner, the legal arguments in support of her criticism, or the legal basis on which the General Court should have reached a different conclusion. The same applies to the criticism in respect of paragraph 100 of the judgment under appeal, in which the General Court found that the Parliament could not be criticised for not having identified any implications of the fact that the appellant was not the author of the tweet at issue and she had deleted it as soon as she had become aware of it.

75.      Next, the Parliament argues that it is unable to discern the legal conclusions which, according to the appellant, the General Court should have drawn from Article 42 of the Law of 29 July 1881, in the absence of legal arguments in support of her criticism and an indication of the legal basis on which the General Court should have reached a different conclusion.

76.      Finally, the Parliament argues that the appellant cannot criticise the assessment, made by the General Court, of the order referring the case against her to the tribunal correctionnel (Criminal Court), inasmuch as it is a piece of evidence. The assessment of the facts and the evidence does not constitute a point of law which is subject, as such, to review by the Court in the context of an appeal, except where the clear sense of those facts and that evidence has been distorted, which the appellant did not allege and which is not evident from the items in the case file.

2.      Assessment

(a)    First complaint

77.      With regard to the first complaint of the second ground of appeal, it should first of all be recalled that, according to the settled case-law of the Court, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned is inadmissible. (31) A complaint which merely comments on a paragraph of the judgment under appeal, without presenting a coherent legal argument specifically seeking to identify the error of law affecting that paragraph, does not satisfy that requirement and must consequently be rejected as manifestly inadmissible. (32)

78.      That said, I note that the appellant does not indicate exactly what is the nature of the error of law made by the General Court. Nor does she state in a sufficiently detailed manner the legal arguments which support her criticism, and does not specify the legal basis on which the General Court should have reached a different conclusion. It would therefore be permissible to take the view that this complaint does not satisfy the abovementioned conditions of admissibility.

79.      To be prudent, it is necessary, however, to examine the passages of the judgment under appeal to which the appellant refers in order to ascertain whether there are manifest defects in their reasoning, in particular in the legal assessment of the facts, which may constitute an error of law.

80.      By way of a preliminary point, it should be noted that an analysis of paragraphs 60 to 62 of the judgment under appeal, to which the appellant apparently refers, does not support the conclusion that the General Court made an error in the assessment of the facts. On the contrary, the General Court merely recalls, correctly, that the question of whether the acts which the Member is alleged to have committed can be imputed to her falls within the jurisdiction of the authorities of the Member State which made the request for waiver of immunity.

81.      What is more, it should be added that the General Court does not assert that the Parliament failed to respect the jurisdiction of those authorities. In fact, the Parliament refrains, in the decision at issue, from carrying out a definitive legal assessment of the facts in the light of French criminal law, and merely reproduces the criminal accusations by the French judicial authorities against the appellant. Moreover, inasmuch as the Parliament indicates that the image disclosed on Twitter was in reality a photomontage published by her assistant, and subsequently removed, the Parliament merely summarises the facts which gave rise to the request for waiver of immunity. The Parliament does not express an opinion on the liability of the appellant for the possible use of her Twitter account by her assistant. It follows that, contrary to what the appellant seems to suggest, the passages of the decision at issue in question merely amount to the Parliament’s familiarising itself with the facts. Furthermore, there is nothing in the judgment under appeal to suggest that the General Court misunderstood the meaning and the legal value of the Parliament’s observations.

82.      As the General Court did not make any errors of assessment capable of distorting the clear sense of the facts, I therefore propose that this complaint be rejected.

(b)    Second complaint

83.      With regard to the second complaint, I share the Parliament’s criticism of the lack of clarity of the argument put forward by the appellant, according to which the General Court should have ‘identified the legal implications of Article 42 of the Law of 29 July 1881’. In the light of the insufficiency of the argument, it seems to me that this complaint also fails to satisfy the conditions of admissibility of an appeal, as laid down by the case-law and referred to above. (33)

84.      In the interests of completeness, I will nevertheless examine this complaint in the light of paragraphs 100 and 101 of the judgment under appeal which, according to the appellant, contain an error of assessment on the part of the General Court, even though she refrains from explaining the nature of that error and what its legal implications are.

85.      I would note, by way of an introductory point, that Article 42 of the Law of 29 July 1881, cited by the appellant, determines the categories of persons liable for offences committed through the press. It must therefore be observed that the French provision in question is part of national criminal law. Even though it is not clearly identified what the appellant specifically expected of the General Court, it seems to me that she is demanding, in essence, that national law be applied to the present case. If that interpretation of the complaint is correct, the appellant would appear to have based her demand on the idea that the national provision in question may confer a benefit on her, allowing her to avoid criminal proceedings. However that idea is not substantiated by evidence or facts. What is more, I think it is doubtful whether that aspect could be relevant for the purposes of the present proceedings.

86.      In that regard, it is important to emphasise that, as the General Court recalled in paragraph 62 of the judgment under appeal, it is not for the Parliament to express an opinion on the question of whether the acts which the Member in question is alleged to have committed can be imputed to her, as such jurisdiction belongs to the authorities of the Member State which made the request for waiver of immunity. Those authorities alone have the power to interpret and apply the criminal law of the Member State in question, exercising State sovereignty (‘ius puniendi’). (34) Those considerations apply a fortiori  to the General Court, whose jurisdiction is limited to examining the action for annulment brought against the decision at issue. It follows that, contrary to the view taken by the appellant, the General Court did not have the power to apply Article 42 of the Law of 29 July 1881 to the present case.

87.      Consequently, in the absence of an error of law, this complaint must also be rejected.

(c)    Third complaint

88.      With regard to the third complaint, I agree with the position of the Parliament, according to which the mere allegation of a manifest error allegedly made by the General Court in the assessment of a piece of evidence – namely the order of 26 April 2018, by which the Vice-President of the tribunal de grande instance de Bobigny (Regional Court, Bobigny), in charge of the investigation, referred the case against the appellant to the tribunal correctionnel (Criminal Court) – does not satisfy the abovementioned criteria for the specification of a ground of appeal. It is not apparent, inter alia, what error was made or what are the ‘legal conclusions’ which the General Court should have drawn from the assessment of that evidence.

89.      In the interests of completeness, I will nevertheless ascertain whether the General Court erred in law in paragraph 101 of the judgment under appeal, to which the appellant refers in her observations.

90.      As I indicated in my preliminary remarks, the jurisdiction of the Court in appeal proceedings is limited to points of law, which implies, with regard to the judicial review of an assessment of the facts and the evidence, among other things, that the Court must ascertain whether the General Court applied the right criteria, whether it classified them correctly from a legal perspective and whether it drew conclusions with a sound legal basis from that. (35)

91.      It seems to me that the appellant relies on the information contained in the abovementioned order of 26 April 2018 as evidence in order to substantiate the idea that she should not have been the subject of legal proceedings, given that it was her assistant who had published the tweet at issue. The appellant complains in her written pleadings of being ‘the only person referred to the tribunal correctionnel [(Criminal Court)], the action against her assistant having been time-barred’. Assuming that that interpretation of the appellant’s position is correct, she seems to criticise the General Court for having failed to draw the ‘legal conclusions’ from it, that is to say for having failed to annul the decision at issue on the ground that it was based on an allegedly incorrect premiss, namely the criminal liability of the appellant.

92.      The response to that argument must be that, as I have already set out, the General Court does not have jurisdiction to rule on the question of whether the acts which the Member in question is alleged to have committed can be imputed to her, given that that question is exclusively a matter of national law. (36) Consequently, regardless of the outcome of the ongoing criminal proceedings, the purpose of which is precisely to clarify that question, as they can lead to the conviction or the acquittal of the appellant, the General Court could not have taken the place of the national judicial authorities by annulling the decision at issue because of a potential absence of criminal liability. The General Court was therefore correct to refrain from ruling on the appellant’s criminal liability, merely referring to the order in question, from which it is apparent that the investigating magistrate had sufficient evidence to justify referring the case against the appellant to the tribunal correctionnel (Criminal Court).

93.      Inasmuch as the appellant’s argument is manifestly based on a failure to take account of the division of jurisdiction between the national judicial authorities and the Courts of the European Union, it must be rejected.

94.      The appellant also seems to criticise the reasoning of the General Court, in paragraph 101 of the judgment, in relation to the alleged absence of fumus persecutionis. According to the appellant, the order in question ‘shows the persecution by a magistrate of an elected representative whom it is desired at all costs to drag before a tribunal correctionnel [(Criminal Court)]’ with ‘the intention to harm her politically’. It can thus be inferred that the appellant criticises the General Court for having failed to correctly assess the circumstances of the present case and for having failed, consequently, to annul the decision at issue.

95.      In that regard, I note at the outset that it is clear from the decision at issue that the Parliament had concluded, on the basis of an assessment of the facts, that there was no suspicion of fumus persecutionis. The report on the request for waiver of immunity prepared by the Parliament’s Committee on Legal Affairs explicitly states that ‘there is no … evident attempt to obstruct the parliamentary work of [the appellant] behind the judicial inquiry which was opened following a complaint alleging defamation of a public administration, lodged by the [CAF]’. Consequently, the General Court had no objective reason to call into question the veracity or the validity of that assessment. On the contrary, that assessment was rather confirmed for the General Court by the information contained in the order of 26April 2018 indicating that there was sufficient evidence to justify referring the case against the appellant to the tribunal correctionnel (Criminal Court). The appellant was therefore wrong to consider that the General Court erred in law in refusing to acknowledge that there was a risk that the proceedings were brought purely in order to harm her.

96.      For the sake of completeness, it should be emphasised that the General Court carried out a meticulous analysis in paragraphs 83 to 101 of the judgment under appeal, of the arguments invoked by the appellant in support of the existence of fumus persecutionis,  at the end of which it rejected those arguments in their entirety. In the light of the fact that the assessment of the facts falls within the exclusive jurisdiction of the General Court and that the appellant did not present any coherent and sufficiently well-founded arguments capable of calling into question the conformity of the reasoning of the General Court with the procedural principles governing the assessment of the facts and the evidence in an action for annulment, the General Court’s conclusions as to the absence of indications of fumus persecutionis in the present case must be upheld.

97.      It follows that, in the absence of any errors of assessment of the order of 26 April 2018 as a piece of evidence, the argument invoked by the appellant must be regarded as unfounded.

98.      It follows from all of the foregoing that this complaint must be rejected.

(d)    Interim conclusion

99.      Following this analysis, I consider that the second ground of appeal cannot succeed. I propose that it be rejected as manifestly inadmissible or, in any event, as manifestly unfounded.

VII. Conclusion

100. In the light of the foregoing considerations, I propose that the Court:

–        dismiss the appeal; and

–        order the appellant to pay the costs.

1      Original language: French.

2      OJ 2016 C 202, p. 266.

3      Judgment of 6 September 2011, Patriciello (C‑163/10, ‘the Patriciello judgment’, EU:C:2011:543).

4      Judgment of 17 January 2013, Gollnisch v Parliament (T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 107).

5      Paragraphs 88 and 99 of the judgment under appeal.

6      Paragraph 96 of the judgment under appeal.

7      Judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579).

8      Judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 24).

9      Judgment of 19 December 2019 (C‑502/19, EU:C:2019:1115, paragraphs 82 to 84).

10      Orders of 16 September 2010, Dominio de la Vega v OHIM (C‑459/09 P, not published, EU:C:2010:533, paragraph 44), and of 21 March 2019, Gollnisch v Parliament (C‑330/18 P, not published, EU:C:2019:240, paragraph 109).

11      Order of 21 March 2019, Gollnisch v Parliament (C‑330/18 P, not published, EU:C:2019:240, paragraph 110).

12      Opinion of Advocate General Jääskinen in Belgium v Deutsche Post and DHL International (C‑148/09 P, EU:C:2010:726, point 76).

13      ECtHR, 8 October 2009, CE:ECHR:2009:1008JUD001266206.

14 Italics are my own.

15      See point 38 of this Opinion.

16      Patriciello, paragraph 35. Italics are my own.

17      See, to that effect, Mehta, R., ‘Sir Thomas’s blushes: protecting parliamentary immunity in modern parliamentary democracies’, European Human Rights Law Review, 2012, No 3, p. 309. The author indicates that it is not easy to precisely define the duties of a Member given that their role changes over time and adapts to different circumstances arising in practice. According to the author, the reluctance to accept that a Member should express an opinion on local matters is understandable, given that the European Union is ultimately a ‘creature of limited powers’. On the other hand, to accept only activities linked to supranational issues would constitute too restrictive an approach, in particular where local and regional dimensions are relevant to EU policies, for example in the fields of agricultural aid, regional development and the rules of migration law.

18      Patriciello, paragraph 34.

19      Patriciello, paragraphs 37 and 38.

20      Patriciello, paragraph 36. Italics are my own.

21      See point 36 of this Opinion.

22      Patriciello, paragraph 32.

23      See point 36 of this Opinion.

24      As the Court indicates in the judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraphs 32 to 42), the assessment of the conditions for applying the immunity of a Member of the European Parliament is within the exclusive jurisdiction of the national courts. If, in applying Article 8 of the Protocol, those courts have doubts concerning the interpretation of that article, they may refer a question to the Court under Article 267 TFEU on the interpretation of that article of the Protocol, courts of final instance being, in such circumstances, obliged to make such a reference to the Court. However, the Court emphasised that the Parliament and the national judicial authorities have a duty to cooperate sincerely in order to avoid any conflict in the interpretation and application of the provisions of the Protocol, which in practice means that where an action has been brought against a Member of the European Parliament before a national court and that court is informed that a procedure for defence of the privileges and immunities of that Member has been initiated, that court must stay the judicial proceedings and request the Parliament to issue its opinion as soon as possible.

25      As Advocate General Jääskinen indicates in his Opinion in Patriciello (C‑163/10, EU:C:2011:379, points 80 to 87), to establish a clear distinction between ‘value judgements’ and ‘statements of fact’ in the area of the law is, from a conceptual point of view, difficult, if not impossible. He raises, in addition, the fact that the European Court of Human Rights does not apply a simple dichotomy between the two concepts, that is to say, it distinguishes not between a ‘pure opinion’ and a ‘factual statement’, but between ‘pure factual statements’ and ‘mixed statements’, expressing both fact and opinion. The Advocate General supports the view that a Member of the Parliament must be able to express the concerns and defend the interests of his constituents. For that reason, he must, while being protected by substantive immunity, be free to make statements of fact that have not been established or that may be incorrect. More often than not, they will be ‘mixed expressions’ within the meaning of the case-law of the European Court of Human Rights. A Member of the Parliament must therefore be given the ‘benefit of the doubt’.

26      See orders of 13 September 2012, Total and Elf Aquitaine v Commission (C‑495/11 P, not published, EU:C:2012:571, paragraph 21); of 19 June 2019, Linak v EUIPO (C‑820/18 P, not published, EU:C:2019:514, paragraphs 15 and 18); and of 2 July 2019, Seven v Shenzhen Jiayz Photo Industrial (C‑31/19 P, not published, EU:C:2019:554, paragraphs 9 and 13).

27      See point 57 of this Opinion.

28      See, to that effect, the Opinion of Advocate General Jääskinen in Patriciello (C‑163/10, EU:C:2011:379, point 97), in which he proposes to classify as at the heart of immunity activities constituting the exercise par excellence of the duties of a Member of the Parliament. These would cover, inter alia, opinions expressed and votes cast in the forum of the Parliament, in the Parliament’s committees, delegations and political organs and also in the political groups. He suggests including activities such as participation in conferences, missions and other political meetings outside the Parliament, as a Member of the Parliament.

29      See point 36 of this Opinion.

30      Judgments of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 26), and in Patriciello, paragraph 25.

31      Judgments of 28 February 2018, mobile.de v EUIPO (C‑418/16 P, EU:C:2018:128, paragraph 35); of 20 September 2016, Mallis and Others v Commission and ECB (C‑105/15 P to C‑109/15 P, EU:C:2016:702, paragraphs 33 and 34); of 24 March 2011, ISD Polska and Others v Commission (C‑369/09 P, EU:C:2011:175); and of 22 November 2007, Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council (C‑6/06 P, not published, EU:C:2007:702, paragraph 34).

32      Order of 21 March 2012, Fidelio v OHIM (C‑87/11 P, not published, EU:C:2012:154, paragraph 62).

33      See point 77 of this Opinion.

34      See, to that effect, the Opinion of Advocate General Ruiz-Jarabo Colomer in Van Straaten (C‑150/05, EU:C:2006:381, point 63), who maintains that all judicial decisions, whether convictions or acquittals, involve the court’s ‘expressing the ius puniendi’.

35      See, to that effect, Wathelet, M., Contentieux européen, 2nd edition, Brussels, 2014, p. 479.

36      See point 86 of this Opinion.

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