Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 12 February 2026 (1)
Case C‑30/25
Auditeur du travail,
ZT,
GQ,
KH,
AN,
FU,
European Economic and Social Committee
v
FR
(Request for a preliminary ruling from the tribunal de première instance francophone de Bruxelles (Court of First Instance (French-speaking), Brussels, Belgium))
( Reference for a preliminary ruling – Privileges and immunities of the European Union – Treaty on the Functioning of the European Union – Protocol (No 7) on the privileges and immunities of the European Union – Second paragraph of Article 10 – Functional immunity – Member of the European Economic and Social Committee (EESC) – Waiver of immunity – Member whose immunity was waived in legal proceedings and who was reappointed as a member for a new term – Need for a new waiver of immunity )
I. Introduction
1. This request for a preliminary ruling concerns the interpretation of Article 10 of Protocol (No 7) on the privileges and immunities of the European Union (2) (‘the Protocol on privileges and immunities’) in the context of a criminal investigation into a member of the European Economic and Social Committee (‘the EESC’).
2. The main proceedings concern the waiver of immunity of FR, a member of the EESC who, in the context of a criminal investigation conducted by a Belgian court, is the accused in the main proceedings. The national authority had already obtained a waiver of FR’s immunity from the EESC for the same alleged offences, before FR was reappointed to serve a new mandate for a new term.
3. The present case provides the Court with the opportunity to rule, for the first time, on the interpretation of the second paragraph of Article 10 of the Protocol on privileges and immunities, in order to determine the system of immunity that applies to a member of the EESC.
II. Legal context
A. European Union law
1. Treaty on the Functioning of the European Union
4. Article 300 TFEU provides:
‘1. The European Parliament, the Council and the Commission shall be assisted by an Economic and Social Committee and a Committee of the Regions, exercising advisory functions.
2. The Economic and Social Committee shall consist of representatives of organisations of employers, of the employed, and of other parties representative of civil society, notably in socio-economic, civic, professional and cultural areas.
…
4. The members of the Economic and Social Committee and of the Committee of the Regions shall not be bound by any mandatory instructions. They shall be completely independent in the performance of their duties, in the Union’s general interest.
…’
5. Under the second paragraph of Article 303 TFEU, the EESC ‘shall adopt its Rules of Procedure’. (3)
6. Article 343 TFEU is worded as follows:
‘The Union shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the [Protocol on privileges and immunities]. …’
2. The Protocol on privileges and immunities
7. Article 10 of the Protocol on privileges and immunities lays down that:
‘Representatives of Member States taking part in the work of the institutions of the Union, their advisers and technical experts shall, in the performance of their duties and during their travel to and from the place of meeting, enjoy the customary privileges, immunities and facilities.
This Article shall also apply to members of the advisory bodies of the Union.’
8. Article 11 of that protocol states:
‘In the territory of each Member State and whatever their nationality, officials and other servants of the Union shall:
(a) subject to the provisions of the Treaties relating, on the one hand, to the rules on the liability of officials and other servants towards the Union and, on the other hand, to the jurisdiction of the Court of Justice of the European Union in disputes between the Union and its officials and other servants, be immune from legal proceedings in respect of acts performed by them in their official capacity, including their words spoken or written. They shall continue to enjoy this immunity after they have ceased to hold office;
…’
9. Article 17 of the protocol provides:
‘Privileges, immunities and facilities shall be accorded to officials and other servants of the Union solely in the interests of the Union.
Each institution of the Union shall be required to waive the immunity accorded to an official or other servant wherever that institution considers that the waiver of such immunity is not contrary to the interests of the Union.’
3. The Staff Regulations of Officials of the European Union
10. Article 1b of the Staff Regulations of Officials of the European Union (4) lays down that:
‘Save as otherwise provided in these Staff Regulations … the European Economic and Social Committee … shall, for the purposes of these Staff Regulations, be treated as [an institution] of the Union.’
11. Article 12a(1) of the Staff Regulations provides:
‘Officials shall refrain from any form of psychological or sexual harassment.’
12. The first paragraph of Article 24 of the Staff Regulations provides:
‘The Union shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties.’
B. International law
13. Article 31(1) of the Vienna Convention on Diplomatic Relations (5) (‘the Vienna Convention’) provides that:
‘A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. …’
14. Article 32(1) of that convention states that:
‘The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State.’
III. The dispute in the main proceedings and the question referred for a preliminary ruling
15. FR had been a member of the EESC since 1 March 2004. In that capacity, he enjoyed immunity under Article 343 TFEU and Article 10 of the Protocol on privileges and immunities.
16. On 6 December 2018, the European Anti-Fraud Office (‘OLAF’) opened an investigation into FR regarding allegations of criminal conduct towards a member of the EESC and staff members of the secretariat of Group I.
17. On 10 January 2020, OLAF sent its report to the Belgian Public Prosecutor’s Office.
18. On 10 June 2020, upon the conclusion of the OLAF investigation, the EESC relieved the accused in the main proceedings of his duties and asked him to withdraw his candidacy for the position of President of the EESC, which he did.
19. On 4 June 2020, the auditeur du travail (Office of the Labour Auditor, Belgium) requested that the EESC waive FR’s immunity, which was approved by decision of the plenary assembly of 15 July 2020.
20. However, a new parliamentary term began, and FR was appointed as a member of the EESC to serve a new mandate for the period from 21 September 2020 to 20 September 2025.
21. On 20 March 2024, the Office of the Labour Auditor summoned FR to appear before the referring court on charges of having committed acts of violence or psychological harassment at work against AN, FU, KH, GQ and ZT. Those individuals and the EESC intervened as civil parties. The alleged offences took place during the period between 1 January 2011 and 31 July 2020.
22. Before the referring court, FR argued that, following his reappointment as a member of the EESC for a new term, the Office of the Labour Auditor, before summoning him to appear, should have requested and obtained a new waiver of immunity, failing which criminal proceedings under national law could not be brought.
23. To support his position, the accused in the main proceedings submitted that Article 9 of the Protocol on privileges and immunities, read in the light of the judgment of 19 December 2019, Junqueras Vies, (6) which concerns the scope of the immunities accorded to Members of the European Parliament, was applicable by analogy.
24. The referring court observes that the present case is different from that which gave rise to that judgment, since the accused in the main proceedings is not a Member of Parliament, a category referred to in Article 9 of the Protocol on privileges and immunities, but a representative of a Member State whose mandate is subject to Article 10 of that protocol.
25. In those circumstances, the tribunal de première instance francophone de Bruxelles (Court of First Instance (French-speaking), Brussels, Belgium) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘In order to enable the European institutions and their members to be completely independent in the performance of their tasks and duties, without constraint or undue pressure, Article 10 of the [Protocol on privileges and immunities] requires, before any proceedings are brought before a criminal court against a representative of Member States taking part in the work of the institutions of the [European] Union, that his or her immunity is waived. Must a new request for the waiving of immunity be submitted to the European institution concerned when, after immunity was first waived and in the course of the investigation, but before the commencement of legal proceedings, the person concerned was appointed to serve a new mandate within the same European institution for a new term?’
26. Written observations were submitted by the applicants in the main proceedings, namely AN, FU, KH, GQ and ZT, the Office of the Labour Auditor and the EESC, the accused in the main proceedings, the Belgian Government and the European Commission. In accordance with Article 76(2) of its Rules of Procedure, the Court decided not to hold a hearing. Nevertheless, it sent questions to the parties to the main proceedings, the Belgian Government and the Commission, to which they replied in writing.
IV. Analysis
27. In its question to the Court, the referring court refers to Article 10 of the Protocol on privileges and immunities. The first paragraph of that article provides that representatives of Member States taking part in the work of the institutions of the European Union, their advisers and technical experts enjoy, in the performance of their duties and during their travel to and from the place of meeting, the privileges, immunities and facilities necessary for the performance of their duties. The second paragraph of that article extends that rule to members of the advisory bodies of the European Union, to whom it grants those guarantees under the same conditions and for the same purposes.
28. Although the wording of the question referred for a preliminary ruling concerns the interpretation of Article 10 of the Protocol on privileges and immunities, it is clear from the order for reference and the written answers provided by the parties concerned that only the interpretation of the second paragraph of that article is useful for resolving the dispute in the main proceedings.
29. In those circumstances, the Court considers that, by its question, the referring court is asking, in essence, whether, for the purposes of a criminal investigation conducted under national law, the second paragraph of Article 10 of the Protocol on privileges and immunities must be interpreted as meaning that, where the immunity of a member of an institution or advisory body of the European Union, such as the EESC, has been waived during the investigation into that member and the person concerned has been appointed to serve a new mandate on the same committee before the start of the judicial proceedings, that provision requires that a new request for a waiver of immunity be submitted to that institution or body.
30. First, as regards the relevant date for determining the law applicable ratione temporis to the main proceedings, it should be noted at the outset that that question seeks to establish whether a new request for waiver of immunity must be submitted to the EESC when the person concerned has been appointed to serve a new mandate. In the present case, that mandate began on 21 September 2020, which is therefore the relevant date.
31. Second, as regards the order of examination of the question referred for a preliminary ruling, it is necessary to establish, before determining the system of immunity applicable to members of the EESC, whether their legal status is more akin to that of officials and other servants of the European Union or to that of representatives of Member States taking part in the work of the institutions of the European Union.
32. In that respect, the second paragraph of Article 10 of the Protocol on privileges and immunities does not define the legal status of EESC members. As argued, in essence, by the parties to the main proceedings and the Commission, with regard to the immunity of EESC members, the second paragraph of Article 17 of that protocol is applicable by analogy by reason of the functional nature of the immunity enjoyed by those members. However, the wording of that provision only refers to officials and other servants of the European Union, whose system of immunity is established by Article 11 of the protocol.
33. It is important, therefore, at this stage, as the EESC has observed, to examine whether the status of EESC members is more akin to that of officials and other servants of the European Union, which is a prerequisite for the application by analogy of the system of immunity provided for in Articles 11 and 17 of the Protocol on privileges and immunities. Indeed, the scope of the immunity provided for depends on the category of institutional actors to which EESC members belong. This requires, first, an examination of the nature of the mandate they serve and the place of the EESC within the institutional framework of the European Union.
A. The nature of the legal status of EESC members
34. As EU law currently stands, the legal status of EESC members is governed by Articles 300 to 304 TFEU. To ascertain the nature of that status, it is first necessary to examine the institutional dimension of that committee, as an advisory body of the European Union, then its composition, and lastly the independence which its members enjoy in the performance of their duties, as well as the possible approximation of their status with that of officials and other servants of the European Union.
1. The institutional nature of the EESC as an advisory body of the European Union
35. It is clear from Article 300(1) TFEU that the EESC was specifically established to assist the Parliament, the Council and the Commission, by exercising advisory functions.
36. That advisory nature of its functions is confirmed by the first paragraph of Article 304 TFEU. Under that provision, the EESC is consulted by the Parliament, by the Council or by the Commission where the Treaties so provide, and may be consulted in all cases in which those institutions consider it appropriate. It may also issue opinions on its own initiative, which confirms its function of contributing to EU policymaking.
37. Moreover, the Court has already held that the EESC, as an advisory body of the European Union, contributes to the institutional balance of the European Union. (7) Although the Court has clarified that the function of the EESC is to advise the Council and Commission on the solutions to be adopted with regard to practical issues of an economic and social nature and to deliver opinions based on its specific competence and knowledge, (8) I believe that this function now also extends to the Parliament, since it can now consult the EESC under Article 304 TFEU. Where consultation is expressly provided for in the Treaties, it is an obligatory stage of the procedure. (9)
38. The integration of the EESC into the institutional framework of the European Union is also confirmed by other provisions of primary law. For example, the sole article of Protocol No 6 on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union, ranks the EESC among the bodies of the European Union. The institutional nature of the EESC stems from the economic and financial framework of the European Union. According to the third paragraph of Article 301 TFEU, it is for the Council to determine the allowances of members of the committee, which confirms that the financial status of the committee is determined directly by an institution and is part of the overall budgetary architecture of the European Union.
39. Lastly, that institutional anchoring of the EESC, already established by primary law, is reinforced by secondary law. Indeed, Article 2(67) of the Financial Regulation of the European Union (10) considers the EESC as a ‘Union institution’ for the purposes of its application. According to Article 7(1) of that regulation, all revenue and expenditure considered necessary for the European Union is entered in the annual budget. On that basis, expenditure relating to the EESC’s institutional activities, including the salaries, wages and allowances of its members, falls under Section VI of the annual budget of the European Union, (11) which strengthens its status as an institutional entity exercising functions recognised by the Treaty.
2. The composition of the EESC
40. Pursuant to the second paragraph of Article 301 TFEU, it is for the Council, acting unanimously on a proposal from the Commission, to adopt a decision determining the composition of the EESC. That power, exercised at EU level, is the first indication that the composition of the committee is based on an institutional rationale specific to the European Union, rather than the rationale of national representation.
41. According to Article 300(2) TFEU, the EESC consists of representatives of organisations of employers, of employed persons, and of other parties representative of civil society, particularly in socio-economic, civic, professional and cultural areas (‘the representatives of the social partners and civil society actors’). The committee’s structure is thus based on the functional and sectoral representation of economic and social interests, which corresponds to its advisory mission: to provide the European Union’s institutions with pluralistic and specialised expertise.
42. The appointment process reinforces that conclusion. Under Article 302(1) TFEU, EESC members are appointed for five years on the basis of proposals submitted by the Member States. However, under Article 302(2) TFEU, the Council acts after consulting the Commission and may seek the opinion of bodies which are representative of the various economic and social sectors and of civil society to which the European Union’s activities are of concern. Thus, the final decision belongs to an EU institution, which ensures the functional coherence of the committee’s composition.
43. It follows that, although the Member States make proposals, the power to determine the composition of the EESC remains with the Council, exercised within the institutional framework of the European Union and guided by the objectives of the Treaties. The role of the Member States in the preparatory phase does not give the EESC a national representative character, but simply ensures that the socio-economic situation of each Member State is taken into account.
44. In that regard, the fact that EESC members have a socio-economic, civic, professional or cultural background shows that their appointment seeks to ensure a balanced representation of the social partners and civil society actors within the European Union. (12) National proposals merely serve as a vehicle to identify, in each Member State, the relevant actors to represent those collective interests, rather than State interests. The current composition of the EESC, established by Council Decision (EU) 2019/853 determining the composition of the European Economic and Social Committee, (13) illustrates that rationale: the distribution of seats, adjusted after the withdrawal of the United Kingdom, is the result of an intergovernmental compromise that seeks to ensure a functional balance of the interests represented, not a political representation of the Member States.
45. Accordingly, the distribution of seats within the EESC and the appointment process reflect, in my view, the intention to ensure a pluralistic representation of the economic and social interests found within the European Union. The composition of the EESC is not intended to reflect the national interests of the Member States, but to ensure that European socio-professional interests that are fully aligned with the EESC’s structure and advisory functions are taken into account.
46. In the light of the foregoing considerations, that legal framework, based on the representation of European socio-professional interests, makes it possible, in my opinion, to conclude that EESC members have a status that is independent of the Member States. It is now necessary to examine the extent of that independence.
3. The independence enjoyed by EESC members in the performance of their duties and the approximation of their legal status with that of officials and other servants of the European Union
47. It should be recalled that under Article 300(4) TFEU, EESC members are not bound by any mandatory instructions and are completely independent in the performance of their duties, in the general interest of the European Union. To my mind, such independence must extend not only to relationships with the institutions, bodies, offices and agencies of the European Union, but also to the Member States, to enable the EESC to fulfil the advisory role that the Treaties confer on it. (14)
48. That independence stems from the very nature of the mandate exercised by EESC members. Its aim is to promote dialogue between the institutions and representatives of the social partners and civil society actors, (15) so as to allow the latter to take part in the European Union’s decision-making process.
49. The EESC thus has a representative role vis-à-vis the social partners and civil society actors within the EU institutions; it ensures that socio-economic, civic, professional and cultural interests, which its members represent, are part of the decision-making process.
50. This function, which serves the general interest of the European Union, precludes EESC members from being treated as representatives of Member States.
51. That conclusion is also supported by the Court’s case-law, according to which the representatives of Member States do not act as members of an EU institution, but as representatives of their governments, thus collectively exercising the powers of the Member States. (16) By contrast, EESC members do not act as representatives of Member States: their acts, which consist of advisory opinions for the institutions when consultation is obligatory or deemed appropriate, fall within the competences of the EESC and not within those of the Member States. (17)
52. In addition, Article 1b of the Staff Regulations of Officials of the European Union treats the EESC as an institution for the application of those Staff Regulations, which shows that the EU legislature has the intention of bringing the system applicable to its members into line with that of servants of the European Union.
53. It follows, in my view, that the independence that characterises the mandate of EESC members, combined with their treatment, under the Staff Regulations, as being governed by the system applicable to officials and other servants of the European Union, leads to the conclusion that their legal status is similar to that of those officials and other servants, not that of the representatives of Member States taking part in the work of the EU institutions.
54. In the light of those factors, it can be concluded that the EESC is an advisory body of the European Union, within the meaning of primary law, and for the purposes of its functioning as an institution. Indeed, having regard to the composition of the EESC, the procedure for appointing its members and the general interest of the European Union which informs the performance of their duties, it appears that the legal status of EESC members is similar to that of EU officials and other servants, and cannot be likened to that of representatives of Member States taking part in the work of the EU institutions.
B. The system of immunity applicable to EESC members
55. According to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objects of the rules of which it is part. (18)
1. Literal interpretation
56. As I have noted, (19) the second paragraph of Article 10 of the Protocol on privileges and immunities extends the scope of the system of immunity of representatives taking part in the work of the EU institutions to members of the advisory bodies of the European Union. That extension is neither implicit nor accidental: it reflects the intention of the authors of the Treaties to place those members in a legal situation comparable to that of State representatives when they take part in institutional work.
57. To determine the exact scope of the system thus extended, it is necessary to consider the wording of that article, which states that representatives of Member States taking part in the work of the institutions of the European Union, their advisers and technical experts, in the performance of their duties and during their travel to and from the place of meeting, enjoy the customary privileges, immunities and facilities. That wording demonstrates that immunity is not intended as a personal benefit, but as a functional guarantee to ensure that institutional business is conducted independently and smoothly.
58. Furthermore, the Court has already had occasion to clarify the nature of those ‘customary immunities’, concluding that they refer to the immunities provided for by the Vienna Convention. Such diplomatic immunities, which are granted to diplomats in order to ensure that the functions of diplomatic and consular missions in the territory of the State of residence are carried out effectively, are based first and foremost on a functional rationale and cannot by nature be relied on by their beneficiaries as against the States which they represent. (20) That essential feature confirms that the immunities concerned are not aimed at protecting individual interests, but at ensuring the proper functioning of the institutions within which those representatives perform their duties.
59. Since the reference to international law stems from an interpretation of the first paragraph of Article 10 of the Protocol on privileges and immunities, it seems essential to examine the second paragraph of that article in the light of that interpretative context and the objectives it pursues.
2. Contextual interpretation
(a) The relationship between the second paragraph of Article 10 of the Protocol on privileges and immunities and Article 343 TFEU
60. Under Article 343 TFEU, the European Union enjoys in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, on the conditions laid down in the Protocol on Privileges and Immunities. That provision of the TFEU thus constitutes the primary basis of the system of immunity of the European Union, defining both its object (to allow the European Union to perform its tasks) and its regulatory framework (the protocol).
61. It follows from the wording of Article 343 TFEU that the system of immunity recognised by the European Union does not have a general purpose, but pursues a functional objective, namely to ensure the proper functioning of the European Union for the performance of its tasks. (21) That purpose already serves to clarify the framework within which the immunities provided for by the Protocol on privileges and immunities must be interpreted.
62. As the legal source of the system of immunities of the European Union, (22) Article 343 TFEU refers to the 1965 version of the Protocol on privileges and immunities, which was codified in a consolidated version in 2016. (23) That reference implies that the interpretation of the system of immunity of the European Union must now be based on that consolidated version, which reflects the current intention of the authors of the Treaties and ensures the coherence of the applicable legal framework. (24)
63. In that regard, the Court has already pointed out that the privileges and immunities recognised by the Protocol on privileges and immunities have a purely functional character, inasmuch as they are intended to avoid any interference with the functioning and independence of the European Union. (25) In other words, those immunities are justified solely by the institutional requirements that inform the action of the European Union.
64. However, although Article 343 TFEU refers to the Protocol on privileges and immunities to define the scope of the immunities, that reference, in itself, does not clarify the system of immunity applicable to members of the EESC. Indeed, the exact scope of that system depends on the precise interpretation of the provisions of that protocol.
(b) The application by analogy of Article 9 of the Protocol on privileges and immunities
65. In order to determine the system of immunity applicable to members of the EESC, FR, the defendant in the main proceedings, submits that Article 9 of the Protocol on privileges and immunities, as interpreted by the Court in the judgment in Junqueras Vies, should be applied by analogy, in so far as it accords immunities to Members of Parliament. Such an approach would consist of examining whether the system of immunity recognised for Members of Parliament could be transposed mutatis mutandis to members of an advisory body of the European Union. The referring court expresses doubts about that solution in its request for a preliminary ruling.
66. Nevertheless, it should be recalled at the outset that the judgment in Junqueras Vies focused solely on the question whether a person remanded in custody at the time of the official declaration of European Parliament election results enjoyed, with effect from that declaration, immunity under Article 9(2) of the Protocol on privileges and immunities – which would have entailed the lifting of the measure of detention, rather than the waiver of parliamentary immunity. The question of the waiver of immunity was thus not at issue in that case. (26)
67. In addition, the judgment in Junqueras Vies specifically sought to define the concept of ‘sessions of the European Parliament’, within the meaning of Article 9 of the Protocol on privileges and immunities. By contrast, in the case under consideration, the referring court seeks an interpretation of Article 10 of the protocol relating to the waiver of immunity of a member of an advisory body. The direct application of that judgment to the main proceedings must therefore be rejected. The defendant’s argument must be understood not as direct reliance on that judgment, but as a question about whether its reasoning can be used to extend to EESC members, by analogy, the guarantees granted to Members of the European Parliament.
68. However, such an analogy can only be envisaged if the legal status of EESC members is substantially similar to that of Members of Parliament. Indeed, the application by analogy of Article 9 of the protocol would presuppose that the institutional purpose and rationale of protection are the same, failing which that transposition would be irrelevant.
69. Still, the purpose of the system established by Article 9, which confers immunity on Members of the European Parliament for the duration of parliamentary sessions, is closely linked to the democratic nature of the parliamentary mandate.
70. In that regard, the Court has pointed out that, under Article 10(1) TEU, the functioning of the European Union is founded on the principle of representative democracy. (27) On that basis, Article 14(3) TEU provides that Members of Parliament are elected by direct universal suffrage in a free and secret ballot. That electoral procedure is the main attribute of their mandate, (28) giving it direct democratic legitimacy and justifying the enhanced protection they enjoy. It follows that the system of immunity enshrined in Article 9 of the Protocol on privileges and immunities is primarily intended to ensure the proper functioning and independence of the Parliament and the effectiveness of the right to stand as a candidate at elections guaranteed in Article 39(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). (29) The purpose of that immunity is thus intrinsically linked to the elective and representative nature of the parliamentary mandate.
71. However, as I have already pointed out, (30) the EESC is a strictly advisory body, whose members are not elected but appointed in accordance with Article 300(2) TFEU. Their mandate is representative of economic and social interests, not direct democratic legitimacy.
72. In that regard, the purpose of the EESC is therefore not to perform a legislative function in the name of the European people, but to provide expertise and opinions in the context of the European Union’s decision-making process. Accordingly, the status of EESC members has no relevant similarity to that of Members of the European Parliament. That divergence applies both to the nature and scope of the functions of EESC members and the procedure for their appointment.
73. Therefore, on account of those structural and functional differences, the system of immunity applicable to EESC members cannot be analysed by analogy with that provided for in Article 9 of the Protocol on the privileges and immunities for Members of the European Parliament, as interpreted in the judgment in Junqueras Vies, and hence it cannot be applied in a situation such as that at issue in the main proceedings.
(c) The application by analogy of the first paragraph of Article 17 of the Protocol on privileges and immunities, read in conjunction with the second paragraph of Article 10 of that protocol
74. In view of the fact that, under Article 343 TFEU, the privileges and immunities granted within the framework of the European Union must be assessed in the light of the requirements relating to the performance of its tasks, I am of the view that the first paragraph of Article 17 of the Protocol on privileges and immunities is an appropriate basis for interpreting, by analogy, the second paragraph of Article 10 of that protocol in a situation such as that in the main proceedings. Such an analogy is justified by reason of the common purpose pursued, which is to ensure the independence and proper functioning of the institutions and bodies of the European Union in the performance of their tasks.
75. Indeed, the first paragraph of Article 17 of the Protocol on privileges and immunities states expressly that privileges, immunities and facilities are to be accorded to officials and other servants of the European Union solely in the interests of the European Union.
76. As previously mentioned, in accordance with the second sentence of Article 300(4) TFEU, members of the advisory bodies of the European Union (including the EESC) are not bound by any mandatory instructions and are completely independent in the performance of their duties, in the general interest of the European Union. Their role thus also contributes to the attainment of the European Union’s objectives. Accordingly, although the first paragraph of Article 17 of the Protocol on privileges and immunities justifies the granting of immunities to officials and other servants of the European Union when the interests of the European Union so require, the same must, in my view, also apply to members of the EESC. As for the question of the waiver of their immunity, it is necessary to determine whether that waiver of immunity would be likely to compromise the interest of the European Union or the independence necessary for performing their advisory role.
77. I therefore conclude that the system of immunity applicable to EESC members is solely in the interest of the European Union, according to the rationale of the first paragraph of Article 17 of the Protocol on privileges and immunities, and must be interpreted in such a way as to guarantee the performance of the tasks of the European Union as enshrined in Article 343 TFEU.
3. Teleological interpretation
78. In view of the interest of the European Union, which justifies the application of the system of immunity to EESC members, it should be recalled that, according to the case-law of the European Court of Human Rights, the attribution of privileges and immunities to international organisations is an essential means of ensuring the proper functioning of such organisations, free from unilateral interference by individual governments. (31) That approach highlights the close connection between immunity and institutional independence.
79. In that regard, as noted by the Commission, it is important to distinguish the system of immunity of diplomats, who enjoy immunity from the criminal jurisdiction of the receiving State, from the system of immunity of international organisations, which is strictly limited to ensuring their proper functioning and independence. (32) The nature, origin and purpose of those immunities differ fundamentally.
80. Admittedly, the concept of ‘customary immunities’ in the first paragraph of Article 10 of the Protocol on privileges and immunities must be understood pursuant to the reference to the Vienna Convention. (33) Nevertheless, that reference cannot be interpreted as conferring full diplomatic immunity on members of the advisory bodies. Indeed, the first sentence of Article 31(1) of that convention establishes that diplomatic agents are to enjoy immunity from the criminal jurisdiction of the receiving State. International law does not permit any exception to that immunity. The International Court of Justice has moreover clarified that any desire to subject a diplomat to criminal proceedings would constitute a serious infringement of the obligations incumbent on the receiving State under that provision. (34)
81. Similarly, Article 32(1) of the Vienna Convention provides that immunity from jurisdiction of diplomatic agents may only be waived by the sending State. That mechanism, based on the prerogative of that State, reflects the purpose of diplomatic immunity – namely, to ensure the effective performance of the functions of diplomatic missions as representatives of States. (35)
82. Such a system of immunity under international law, specific to the status of diplomats as representatives of States, cannot, in my opinion, be transposed to EESC members. They do not act as representatives of States, but operate within the institutional framework of the European Union, and their legal status is more akin to that of officials and other servants of the European Union.
83. In that regard, Article 11(a) of the Protocol on privileges and immunities provides that officials and other servants of the European Union are immune from legal proceedings in respect of acts performed by them in their official capacity. The rationale of that immunity is therefore functional: it seeks to protect the performance of the institutional tasks conferred on the European Union.
84. The Court of Justice has confirmed this by clarifying that the system of immunity granted to international organisations falls within the scope of functional immunity, (36) inasmuch as it is intended to avoid any interference with the functioning and independence of the European Union. The privileges, immunities and facilities of officials and other servants of the European Union accorded by the Protocol on privileges and immunities are accorded solely in the interests of the European Union, (37) not in the interests of the individuals who benefit from them.
85. The same rationale applies to members of the EESC, who, in accordance with Article 300(4) TFEU, are completely independent in the performance of their duties, in the interest of the European Union, and are not bound by any mandatory instructions. If the authors of the Treaties had intended to grant them personal diplomatic immunity, the second paragraph of Article 10 of the Protocol on privileges and immunities would have been worded differently. (38)
86. Therefore, although the first paragraph of Article 10 of the Protocol on privileges and immunities applies to the members of advisory bodies, this does not mean that they enjoy diplomatic immunity in the strict sense. On the contrary, their immunity must be understood in the light of the functional rationale that governs the immunities of international organisations.
87. As observed by the parties to the main proceedings, the Belgian Government and the Commission, the system of immunity applicable to EESC members must, in my opinion, ensure the proper functioning of that committee as an advisory body embedded within the institutional framework, responsible for ensuring that representatives of the social partners and civil society actors take part in the European Union’s decision-making process.
88. Having regard to the foregoing considerations, the system flowing from the second paragraph of Article 10 of the Protocol on privileges and immunities must be linked to the exercise of the institutional advisory functions that the Treaties confer on the EESC in the general interest of the European Union. That system thus falls under the functional immunity of the European Union, accorded solely in the interest of the latter. Nevertheless, a teleological interpretation implies that the extent of that immunity may still be reconciled with the fundamental rights guaranteed by the Charter, which are also an inherent aspect of the interest of the European Union. Functional immunity therefore cannot operate to the detriment of the structural requirements of the legal order of the European Union.
89. In that regard, it is apparent from the Court’s case-law that the fundamental rights guaranteed in the legal order of the European Union are thus applicable in all situations governed by EU law, not outside such situations. (39) To that end, the concept of ‘implementing Union law’, within the meaning of Article 51(1) of the Charter, presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other. (40) In the present case, the criminal procedure in the main proceedings falls within the scope of EU law as it potentially involves the application of the immunities provided for EESC members by the Protocol on privileges and immunities. The Charter therefore applies.
90. Moreover, the protection of fundamental rights is a legitimate interest which may justify restrictions of the obligations imposed by EU law, (41) including in the case of derogations permitted under that law. (42) Respect for fundamental rights is a condition of the lawfulness of EU acts, so that measures that are incompatible with those rights are not acceptable in the European Union. (43) Therefore, in my opinion, that legitimate interest takes precedence a fortiori over functional immunity, which is merely a guarantee accorded to EESC members solely in the interest of the European Union.
91. In that regard, Article 47 of the Charter, which guarantees the right to effective judicial protection, must be taken into account where the exercise of that right by victims might be impeded. An extension of the immunity of EESC members beyond its strictly functional character would undermine that right. Functional immunity, while pursuing a legitimate public interest, is not absolute and must be reconciled with the need to avoid criminal impunity and to ensure independent and impartial investigations and judgments. (44) Therefore, where the alleged offences are not in the interest of the European Union, their coverage by immunity would create a risk of impunity incompatible with that provision, by depriving the victims of an effective remedy.
92. In any event, customary immunity, by virtue of the reference to the first sentence of Article 31(1) of the Vienna Convention, does not permit any derogation from national criminal jurisdiction, whereas the immunity applicable to EESC members is, under EU law, limited to what is strictly necessary for the proper functioning of the European Union.
93. Furthermore, Article 41 of the Charter, which enshrines the right to good administration and includes the duty to have regard for the welfare of officials which stems from that right, is binding only on the institutions, bodies, offices and agencies of the European Union, not on the national courts. Its content supports the teleological interpretation of the system of functional immunity. Indeed, that duty to have regard for the welfare of officials requires the EU administration, when deciding on the situation of an official or servant, to act diligently, taking into account not only the interest of the service, but also that of the person affected. (45) By analogy, when an EU institution is called upon to decide on the waiver of immunity of a member of the EESC, it must have the necessary information and balance the interest of the European Union, which justifies functional immunity, with the rights of potential victims, in accordance with Article 24 of the Staff Regulations of Officials of the European Union, (46) and with the prohibition, set out in Article 12a of the Staff Regulations, on any form of harassment or violence. (47) To my mind, that confirms that such behaviour, which is, moreover, prohibited by the EESC itself under Article 4 of the Code of Conduct of the Members of the EESC, (48) cannot fall under the official functions covered by functional immunity. Thus, although Article 41 of the Charter does not govern the jurisdiction of the national court, it clarifies the purpose of the system of functional immunity in so far as it confirms that it cannot be interpreted in a way that would disregard the fundamental requirements of diligence and protection, inherent in the EU legal order.
94. It follows from the foregoing considerations that, under the second paragraph of Article 10 of the Protocol on privileges and immunities and Article 343 TFEU, the functional immunity of EESC members must be limited solely to situations where it is necessary for the protection of the interest of the European Union.
4. The procedures for renewing the waiver of immunity of EESC members
95. Having regard to the system of functional immunity of EESC members, and given that they operate within an advisory body of the European Union, as noted by ZT and the Commission, the procedure for waiving immunity always falls within the competence of the advisory body to which the member in question belongs, not within the competence of the Member State. (49) Under the second paragraph of Article 17 of the Protocol on privileges and immunities, each EU institution is required to waive the immunity accorded to an official or other servant wherever that institution considers that the waiver of such immunity is not contrary to the interests of the European Union. In view of the proximity between the legal status of EESC members and that of officials and servants of the European Union, I consider that that mechanism also applies to EESC members, which implies that the EESC should be competent to waive the immunity of its members.
96. However, EU law does not expressly guarantee such competence, since the waiver of immunity in the main proceedings was carried out on the basis of a non-binding act, namely Article 9 of the EESC Members’ Statute. (50) However, in view of the independence conferred on EESC members under Article 300(4) TFEU, and to prevent its advisory function from being subject to external pressure, an implied competence to waive immunity must, in my view, be inferred from the interpretation of primary law.
97. That being the case, the assessment carried out for the first waiver of immunity cannot, in my opinion, be called into question by the mere fact of renewal of the composition of the EESC at the start of a new parliamentary term. That assessment, carried out in the light of the interests of the European Union and taking into account the objective prohibition, as recalled above, of acts of harassment and violence, cannot be affected by the new composition of the EESC formed of representatives of the social partners and civil society actors. Indeed, under the functional system of immunity applicable to EESC members, the decision to waive immunity is independent of the internal composition of the EESC, which is inevitably subject to change, and falls exclusively under the protection of the interests of the European Union in the performance of its duties.
98. It follows that, when the EESC decided, following an initial assessment, that the waiver of immunity did not affect the interest of the European Union, and specifically the completely independent performance of the duties of EESC members, without any mandatory instructions, that interest cannot be assessed differently in regard to the alleged offences. Subject to review by the referring court, if the alleged offences are already covered by the EESC’s first decision, there is no reason to send it a new request for waiver of immunity for the same offences.
V. Conclusion
99. In the light of the foregoing considerations, I propose that the Court of Justice should answer the question referred by the tribunal de première instance francophone de Bruxelles (Court of First Instance (French-speaking), Brussels, Belgium) as follows:
The second paragraph of Article 10 of Protocol (No 7) on the privileges and immunities of the European Union, read in conjunction with Article 343 TFEU, must be interpreted as meaning that the system of functional immunity which it provides implies that, where a waiver of immunity has already been granted by the European Economic and Social Committee for one of its members for specific offences, on the ground that such a waiver was not contrary to the interest of the European Union, it is not necessary to submit a new request for waiver of immunity in respect of those offences. It is for the referring court to ascertain whether the offences alleged in the main proceedings are indeed covered by the committee’s original decision to waive immunity.