In a judgment (case C-3/20) handed down on Tuesday, 30 November, the Court of Justice of the European Union detailed the terms and conditions of the waiver of privileges and immunities that the governor of a central bank of a Member State has under the specific Protocol (No. 7) in the context of open criminal proceedings against him or her.
In June 2018, the Latvian public prosecutor’s office charged the governor of the country’s central bank, whose term of office ran until the end of 2019, with various offences of corruption—the latter being accused of receiving bribes in connection with the prudential supervision of a Latvian bank and of laundering one of those bribes.
According to the court, each EU institution is obliged to waive immunity from legal proceedings in all cases where it considers that such a waiver is not contrary to the interests of the EU. In this case, the ECB alone has the competence to make such an assessment.
However, in the European court’s opinion, the ECB and the national authority responsible for the criminal proceedings share the competence to assess whether the conduct that is the subject of such proceedings was carried out by a central banker in his or her official capacity as a member of an ECB body and is thus covered by the immunity which he or she enjoys.
The court clarified that, where the competent authority finds that the conduct in question was clearly not carried out by a governor in the performance of his or her duties, the criminal proceedings against him or her may be pursued, since immunity from legal proceedings does not apply. This is the case for acts of fraud, corruption, or money laundering that fall outside the scope of an EU official’s duties.
However, where it finds that the conduct in question was carried out by the governor concerned in his or her official capacity as a member of an ECB body, the national authority must submit a request for the immunity from legal proceedings be waived. If it raises this issue, it must consult the ECB and, if necessary, submit a request for the ECB to waive this immunity. Such requests must be granted, unless a waiver of immunity would be contrary to the interests of the EU.
Observance of the division of these competences is subject to review by the court—either by way of an action for failure of the national authorities to fulfil their obligations (Article 258 TFEU) or by way of a reference for a preliminary ruling or even a direct action by the Member State concerned (Article 263 TFEU).
In February 2019, the court had annulled Latvia’s decision to suspend the governor of the Bank of Latvia, Ilmārs Rimšēvičs (cases C-202/18 and C-238/18) (see EUROPE 12202/23).
See the judgment: https://bit.ly/3FRUDLI (Original version in French by Mathieu Bion)