File n° 14 

I. –  Parliamentary immunity

Parliamentary immunity is the term used to refer to the group of provisions which provide parliamentarians with a specific legal framework in their dealings with the Law so as to maintain their independence.

The wish to reconcile the necessary protection of the exercise of parliamentary office with the principle of the equality of citizens before the Law has led to the definition of two categories of immunity: irresponsabilité (immunity from defamation) and inviolabilité (immunity from custodial measures).

1. – Irresponsabilité

Irresponsabilité, or absolute immunity, shields parliamentarians from prosecution concerning acts linked to the exercise of their office. Article 26, paragraph one, of the Constitution states that “no Member of Parliament shall be prosecuted, investigated, arrested, detained or tried in respect of opinions expressed or votes cast in the exercise of his duties”.

Irresponsabilité covers all acts of parliamentary office: speeches and votes, bills, amendments, reports or consultations, questions, any acts carried out during a mission requested by a parliamentary body.

It protects parliamentarians against any legal proceeding, civil or criminal, which could be brought for acts which, when carried out outside of the framework of parliamentary office, could lead to a criminal prosecution or the civil liability of the person responsible for them (defamation or slander for example).

Nonetheless, jurisprudence has excluded from such protection statements made by a parliamentarian during a radio interview or opinions expressed in a report written for a mission requested by the Government.

So, even if irresponsabilité ensures broad protection, it does not imply total immunity, since during their speeches in plenary sitting, M.P.s remain subject to the disciplinary system provided for by the Rules of Procedure of the National Assembly.

As regards its field of application, irresponsabilité has an absolute nature, as it cannot be withdrawn by any procedure. It is permanent since it applies throughout the entire year, including during recess. It is perpetual and is applied to proceedings concerning acts carried out during the term of office even after such a term has come to an end. The implementation of irresponsabilité falls entirely and purely within the remit of the judiciary. It is a matter of public order and the parliamentarian may not abandon it.

2. –  Inviolabilité

Inviolabilité attempts to avoid situations whereby the exercise of parliamentary office is hindered by certain criminal proceedings dealing with deeds carried out by M.P.s acting as normal citizens. It governs the conditions for the application of criminal proceedings concerning acts outside its remit.

Although, since the reform of August 4, 1995, the system of inviolabilité no longer protects M.P.s from the institution of proceedings (indictment), nonetheless no M.P. can be arrested nor be subjected to any other custodial or semi-custodial measure (judicial supervision) without the authorization of the Bureau, except in the case of a serious crime or other major offence committed flagrante delicto or of a definitive conviction. In addition, the detention, subjection to custodial or semi-custodial measures or prosecution of an M.P. are suspended for the duration of the session if the Assembly so requires.

Inviolabilité concerns only the person of the parliamentarian. It only applies in matters concerning the criminal or magistrate’s court.

Unlike irresponsabilité, whose application has no time limit, inviolabilité has a reduced field of application which is limited to the duration of the term of office.

Requests for arrest or for custodial or semi-custodial measures concerning an M.P. are made by the Procureur Général (Principal State Council) to the competent Court of Appeal and are transmitted by the Minister of Justice to the President of the National Assembly. The request is examined by a delegation of the Bureau and then by the Bureau itself. It is not published and the examination is carried out in the strictest confidentiality. Only the decision of the Bureau is published in the Journal Officiel and in the Feuilleton.

The role of the Bureau is simply to assess the serious, fair and sincere nature of the request. It appears from the decisions the Bureau has taken since the 1995 constitutional revision that its power of assessment allows it not only to accept or reject the request overall but, if need be, to only accept part of it.

Requests for the suspension of legal proceedings, of detention or of custodial or semi-custodial measures are addressed to the President of the National Assembly by one or several M.P.s. They are then distributed and referred to the committee set up in accordance with article 80 of the Rules of Procedure. The M.P. in question or the colleague he has requested to represent him must appear before this committee which then draws up a report. Once this report has been distributed the discussion of the request is included on the agenda of the National Assembly. A time-limited debate on the examination of the request is held in plenary sitting and at its conclusion the Assembly reaches its decision. This decision is binding on both the administrative and judicial authorities. It leads, for the duration of the session, to either the suspension of all legal proceedings or to the withdrawal of judicial supervision and the release of the imprisoned M.P.

II. – incompatibility

The notion of incompatibility, which is linked to the constitutional principle of the separation of powers, is the legal impossibility of combining certain offices with that of M.P. Such incompatibilities were first decreed in the public sector but this was later on extended to include certain offices carried out in the private sector. As opposed to the notion of ineligibility to be elected, that of incompatibility does not, in itself, rule out the fact of being elected but requires the elected candidate to make a choice.

1. –  Incompatibility with elected public office

The office of M.P. may not be combined with that of Senator, that of Member of the European Parliament (M.E.P.) and, although no law actually makes provision for it, with that of President of the Republic.

In addition, the institutional law of April 5, 2000 has made it incompatible to combine the office of M.P. with more than one of the following offices: regional councillor, departmental councillor, city councillor of Paris, councillor in the Assembly of Corsica and local councillor in a town of more than 3,500 inhabitants. 

However, it remains possible to combine the office of M.P. with a local executive office (President of the Regional Council, President of the Departmental Council, mayor).

2. – Incompatibility with non-elected public office

So as to free M.P.s from the links which might make them dependent on another power or authority, the office of M.P. may not be combined with the position of member of the Government, of the Constitutional Council or of the Economic and Social Council. Nor may it be combined with the position of judge or member of the High Council of the Judiciary.

More generally, the combination of non-elected public positions with that of the office of M.P. is considered incompatible and civil servants who find themselves in such a situation upon their election must be seconded. Nonetheless, it is possible for M.P.s to continue to hold certain academic positions.

Temporary missions at the Government’s request are also considered compatible with the office of M.P., as long as they do not exceed six months.

3. – Incompatibility with other professional activities

The changing role of the State and the importance of private interests in community life have led to specific positions in certain companies as well as the carrying out of certain actions being forbidden to M.P.s.

Thus it is prohibited to combine the office of M.P. with managerial positions in state-owned companies or in state public entities, i.e. organizations closely dependent upon public authority (unless the M.P.s are appointed as members of the board of management of these bodies in accordance with the provisions governing the corresponding state-owned companies or state public entities).

Similarly, combination is prohibited with managerial positions in certain private companies which have been granted benefits by the State or public authorities in accordance with special regulations. Equally combination is prohibited with positions in companies working exclusively in the financial or public savings sector or those operating mainly for or under the authority of the State or a public body, as well as those carrying out certain activities in the real estate field.

In addition, it is prohibited for M.P.s who are lawyers to plead against the State, state-owned companies, or public bodies and establishments. It is also prohibited for M.P.s to allow their names followed by their positions to be used in any advertisement for a commercial, financial or industrial company.

4. –   Monitoring and penalties

So as to enable the monitoring of professional activities which are incompatible with parliamentary office by the Bureau of the National Assembly, M.P.s must, within two months of taking up office, resign from all incompatible activities and submit to the Bureau a declaration of professional activities or of general interests which they intend to continue. Those M.P.s not providing such a declaration are required to resign.

In the case of doubt or of a challenge, the Bureau refers the matter to the Constitutional Council. The Minister of Justice and the M.P. in question may also refer the matter to it. If the Constitutional Council finds in favour of incompatibility then the M.P. has two weeks to rectify the situation. If he does not do so within this limit, he is declared to have resigned from office by the Constitutional Council.

In the case of the combination of offices, the M.P. has a two-month limit to resign from whichever office he chooses. If he does not comply, he is required to leave the office which created the situation of combination in the first place.

When an act contravening the rules in the field of pleading or the use of the title of M.P. has been committed, the penalty is immediately applied. The M.P. in question is declared to have resigned from office by the Constitutional Council, upon the request of the Bureau or the Minister of Justice. 

III. – obligations AND prohibitions
which apply to M.P.s

1. –   Specific prohibitions

These prohibitions, which deal with very specific acts and situations, aim at raising the moral standards of political life:

—    To shield the parliamentarian from being beholden to the Government, no M.P. nor Senator may receive, except in certain circumstances, any decoration during his term of office;

—    To avoid all violation of the dignity of parliamentary office, an M.P. may not use his position for advertising reasons;

—    To avoid any media organization from hiding behind the immunity of its editor so as to avoid prosecution in the case of a press offence, the company must, if its editor is an M.P., appoint a co-director chosen from a group of people who do not enjoy parliamentary immunity.

2. –   Declaration of estate

The legal and financial status of an M.P. has a counterweight in the obligation of transparency. A monitoring system was thus set up in 1988 to check that the exercise of the office of M.P. has not been an undue source of personal wealth for the member.

The obligation of filling out a declaration of estate at the beginning and at the end of the term aims at ensuring that an M.P. has not taken advantage of his office to become unduly wealthy.

Thus, each M.P. is required, within two months of his election, to submit to the Committee for Financial Transparency in Political Life, a precise and honest declaration on his word of honour, of his estate including all his own property as well as that held jointly. These are valued at the date of the election.

A new declaration of estate must be submitted to the same body at the earliest two months and at the latest one month before the end of the term.

If this obligation is not fulfilled then the Committee for Financial Transparency in Political Life refers the matter to the Bureau of the National Assembly which in turn transmits it to the Constitutional Council. The latter, if need be, may find in favour of ineligibility to be elected and thus declare the M.P. to have resigned from office.

In addition if the committee in charge of carrying out the monitoring considers the explanations put forward by the M.P. to be insufficient, it can refer the matter to the State Counsel’s Office.

IV. –  Offices permitted to m.p.s

M.P.s may be called upon to take on certain offices, other than those exercised within the National Assembly and which have a connection with their position.

Certain prerogatives are carried out as of right either as an individual or in the capacity of the holder of certain specific positions within the National Assembly:

—    Referral to the Constitutional Council concerning the conformity to the Constitution of a law or a treaty (in order to be admissible this request must be made by, at least, 60 M.P.s or 60 Senators);

—    Transmission to the Ombudsman of the Republic or to one of his representatives of claims made by legal entities or natural persons: such claims must be made through a parliamentarian who decides if they fall within the remit of the Ombudsman and attempts to judge their seriousness in order to pass them on;

―       Representation of the National Assembly in extra-parliamentary organizations;

―       Carrying-out, upon the request of Government, a “temporary mission” of a maximum length of six months.