Committee on Constitutional Affairs Ordinary meeting
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AFCO European Parliament
Follow its sittingsSpeaker 2
Yes, very good. So it's very important for us that the speaker has in front of him the microphone facing the green light. Okay?
Yes, we're here.
Yes, it is.
Speaker 2
In the bottom left part of the page, you have the button interpretation. From there, you can select the language that you prefer in order to follow the meeting. And we will continue the test in a virtual room. Sorry.
Sven Simon
So, good morning, colleagues, ladies and gentlemen, welcome to this meeting of the European Parliament's Committee on Constitutional Affairs. The draft agenda was circulated on 26 May.
If there are no objections, I declare the agenda adopted. Interpretation for this meeting is available in the following languages: German, English, French, Italian, Dutch, Greek, Portuguese, Spanish, Swedish, Lithuanian, Hungarian, Polish, Slovak, Slovenian, and Romanian. At their meeting of 2nd June, coordinators agreed to invite the JURI coordinators for an exchange on Parliament's Rules of Procedure regarding the role of the JURI committee in the scrutiny of commissioners-designate's declaration of interest and the distinction between financial and other than financial interests.
Coordinators agreed in the same meeting that AFCO will not draw up an opinion on the EU budget 2027, but confirmed the timetable for budgetary amendments in AFCO. The deadline for the tabling of budgetary amendments in AFCO will be on 21st August and the vote in committee will take place on 2nd September.
Coordinators also agreed to request the President of Parliament to share with AFCO the document received from the Authority for European Political Parties and European Political Foundations on ESN members' alleged violation of EU values and to invite the Director of the Authority to an exchange of views at an in-camera coordinators' meeting later today. At their meeting of 3rd June, coordinators agreed not to follow up on a proposal for a modification of the Rules of Procedure concerning restrictions on meetings with representatives of the tobacco industry and to send a letter instead to the signatories of the proposal setting out the constitutional considerations underlying that assessment, including the principles of the free mandate, parliamentary independence and the pluralistic nature of democratic deliberation.
Coordinators also decided to postpone a decision on the course of action to take on the matter of secret ballot until after the presentation of the study commissioned by AFCO on a comparative analysis on modalities of voting in national parliaments and that the chair would send a letter to the president in that sense. Finally, colleagues, coordinators confirmed their previous legal assessment regarding the proposed modification of rule 174 and 210 rules of procedure on the use of Luxembourgish in parliamentary addresses and agreed not to pursue the request further. If there is no objection, these recommendations shall be deemed to be adopted.
Thank you very much. Then we need to adopt the minutes of the committee meetings of April 14, April 27 and May 5. If there are no objections, I also declare the minutes adopted. So, then we can move to the next item on our agenda today, namely the presentation of the study entitled "The Free Mandate of Members of the European Parliament".
This study was initially approved on 14 October 2024 and reconfirmed on 4th September 2025. For that purpose, I warmly welcome the coordinators of the study, Professors Bart and Lachmayer. Maybe you can come up here on the podium sitting next to me and the national experts participating at this meeting who are connected remotely. I would like to underline that the study is still at draft stage and that today's presentation will therefore focus on the experts' preliminary findings. The free mandate, ladies and gentlemen of members of parliament, is a core principle of representative democracy.
It safeguards their independence, parliamentary deliberation and Parliament's democratic legitimacy. Its meaning, however, and you will see that in the presentation, differs across constitutional traditions. This is particularly complex in the European Parliament where members, as you know or might know, are elected nationally, exercise a European mandate, belong to EU-level political groups and remain embedded in national party systems.
This makes the question of how the free mandate is protected not only a matter of parliamentary procedure, but also a broader constitutional question. And we are therefore very pleased to welcome the two lead experts responsible for the study on the free mandate. This is sitting next to me, Professor Petra Bard, Professor of Sustainable Rule of Law at Radboud University Research Centre for State and Law in Nijmegen in the Netherlands. And next to her is Professor Konrad Lachmayer, Professor of Public Law, European Law and Foundations of Law at the Sigmund Freud University in Vienna in Austria. Many thanks for your work and for this study and for being with us today.
In addition, we have remotely joined, we are joined by national experts from the Member States. Not all Member States, but in addition, we have experts from Norway, the United Kingdom and Switzerland, and they will also, we will also listen to their input. Particularly, we thank that they are connected here today, and then we will of course have questions and answers during which members can ask about specific national practices if you like. Also in the room is a bunch of people there in the back.
Those are students of my own university, Philipps University Marburg. They are accompanied by my honorable colleague Hans-Detlef Horn, who is over there, professor of constitutional law, European law. So they are also very much interested in keen what your outcome is. And with that having said that, the floor is yours. I give the floor first maybe to Professor Bart and then Professor Lachmayer for your presentation.
Petra BARD
Thank you so much, Professor Simon. Dear Mr. President, dear members of the AFCO Committee, dear students, dear colleagues.
The study we are presenting today examines the free mandate of members of the European Parliament and that of national parliaments across 30 jurisdictions. The concept of the free mandate is often treated as a settled constitutional principle. Yet, our research suggests otherwise. The free mandate is currently undergoing profound transformation.
So questions that were largely absent from constitutional parliamentary law, such as democratic backsliding, disinformation, the use of social media, are forcing us to reconsider how parliamentary independence should function in contemporary democracies. So our paper, our research, our study asks one simple but profound question, but important question: how can we preserve parliamentary independence without allowing the very same independence to become immunity from accountability? That is the research question.
The project is unusual in both scale and methodology. We examined all 27 EU member states, as well as Norway, Switzerland, and the United Kingdom. More than 30 constitutional law scholars contributed to the national reports, and the vast majority of them are present. The research has been coordinated by the Centre for European Policy Studies. We got useful feedback from ACORIS, and the umbrella report has been written by the two of us with Professor Lachmayer, Sascha Hardt, Julia Pützer, Sofia Russack, and Davide Colombi.
Now, having so many experts, essentially a network of experts, allowed us to move beyond formal constitutional texts and identify actual practices.
One striking finding emerged immediately. While virtually every European democracy recognizes some version of the free mandate, there is enormous variation across jurisdictions how the principle is implemented and how it is constrained. Some systems rely heavily on constitutional guarantees, while others rely more on parliamentary culture and on political practice. Yet all of them share the same fundamental dilemma: how to reconcile independence with accountability.
Now, historically, the free mandate emerged as a rejection of the imperative mandate. Members of Parliament are not delegates mechanically transmitting instructions either from the voters or from their own parties. They are representatives who are expected to exercise judgment. But our comparative analysis demonstrates that the free mandate has never been absolute.
In reality, parliamentary independence always comes with constraints, with constitutional constraints. Last time we met and deliberated with Professor Simon, we talked about the classics: Hanna Pitkin, Joseph Schumpeter, Bernard Manin, the gap between the voter and the representative, a necessary gap that enables politics to be made. Today, however, the tension is rather between parliamentary autonomy and broader democratic objectives. Modern democracies increasingly expect parliamentarians not only to act independently, but also to comply with standards of transparency, integrity, equality, and democratic responsibility. In other words, the contemporary debate is no longer about whether limitations exist.
The debate is about which limitations are compatible with representative democracy. To address this question, we organized the study around five dimensions at two levels: on the one hand at the EU level and on the other hand at the national jurisdictional level. The first set of questions concerns the legal status of the free mandate itself. The second concerns the independence from instructions, the third freedom of speech and immunity, the fourth hate speech and ethics and transparency, and the fifth enforcement.
Importantly, we deliberately combined doctrinal analysis with practical experiences gathered through expert interviews in all 31 jurisdictions. This allowed us to identify 12 promising practices and a series of policy recommendations. I would like to go to five, to slide five if it's possible.
I invite Anna to help me with slide five, please. Thank you. Okay. So parliamentary immunity probably provides the clearest illustration of the idea that parliamentary protection exists to safeguard democratic representation rather than to confer personal privileges on politicians. The European system operates through three different layers.
First, Article 8 of Protocol 7 on the privileges and immunities of the European Union provides absolute protection for parliamentary opinions and votes.
Second, Article 9 of the same document provides waivable procedural immunity. And third, there are the rules of procedure which establish internal disciplinary mechanisms. The Court of Justice consistently treats immunity not as a personal benefit but as an institutional safeguard. I think the best parallel I can draw is with judicial independence, where as judicial independence is not a privilege of the judges but the right of all of us to have access to independent courts, the same applies for the free mandate, this is the right of all of us to have a representative democracy.
So this also corresponds to the Court of Justice's understanding. The objective is to protect the functioning of democratic representation, and this very much appears in the case law that is depicted on the slide. Now, this is not without tensions, however. Next slide, please. Most people assume that MEPs enjoy the same immunity because they sit in the same European Parliament and hold the same European mandate.
In reality, however, this is not the case. Article 9 imports national immunity law.
As a result, the protection enjoyed by an MEP depends largely on the Member State in which the MEP was elected. This means that two members sitting next to each other from different jurisdictions but in the same parliamentary chamber may enjoy very different levels of protection against criminal proceedings. So the mandate is European, but part of the immunity regime remains national. This is what we call the 27 plus 1 problem.
From a constitutional perspective, this is very difficult to justify. The recent Puigdemont judgment is important because it confirms that immunity waiver decisions are not merely political decisions, they are legal decisions subject to standards of legality, impartiality, and judicial review. That doesn't solve the structural problem of 27 plus 1, but it at least introduces stronger legal safeguards. Next slide, please. Freedom of expression presents another important challenge.
A common misconception, again, is that parliamentary immunity protects all political speech. That is not the position of the Court of Justice. The decisive criterion is functional.
There must be a direct and obvious connection between the statement and parliamentary duties in order for speech to be covered. This explains why speeches in parliament are typically within the remit of Article 8, while social media statements are generally not. This distinction has become increasingly important in the digital age. Political communication no longer only occurs in the chamber of parliaments.
It occurs on X, on BlueSky, on Facebook, on YouTube, and you name all the other online platforms. So the practical importance of Article 8 immunity may be decreasing precisely because political communication is increasingly happening outside the walls of parliament. At the same time, fundamental rights protection of course remains available through Article 10 ECHR or Article 11 of the Charter of Fundamental Rights of the European Union. Next slide please. The issue of hate speech perhaps illustrates better than anything else, any other topic, the tensions inherent in the concept of the free mandate.
Traditionally, parliamentary speech enjoys the highest level of constitutional protection because democratic representation depends upon open political debate. Restrictions on parliamentary speech therefore raise legitimate constitutional concerns regarding freedom of expression and parliamentary autonomy. At the same time, elected representatives are not ordinary speakers.
Their statements carry institutional weight, institutional authority, democratic legitimacy. So in today's highly mediatized environment, remarks made by parliamentarians may reach millions of citizens almost instantaneously and may contribute to shaping public attitudes, shaping political agendas and ultimately public policy. This creates a distinctive constitutional dilemma.
The justification for protecting parliamentary speech is democratic in nature, yet the same speech may sometimes undermine the values upon which democratic pluralism depends. The European Parliament has responded to the phenomenon of hate speech primarily through internal disciplinary mechanisms rather than criminal law, and I must say that this reflects a broader European understanding that criminal law should remain a measure of last resort, ultima ratio, particularly in the context of political expression. Cases such as the Korwin-Mikke judgment demonstrate both the Parliament's willingness to sanction discriminatory speech, but at the same time also the legal constraints under which such sanctions must operate.
Importantly, the General Court did not question the legitimacy of disciplinary action against the Member of the European Parliament in question as such. Rather, it annulled the sanctions because the applicable rules of procedure did not provide a sufficient legal basis for the penalties imposed at the time. So more broadly, our comparative research suggests that the challenge is not to choose between parliamentary independence and accountability. The challenge is to ensure that parliamentary autonomy remains compatible with democratic values and justify its protection in the first place. I thank you for now and hand over to my colleague Professor Lachmayer.
Thank you.
Konrad Lachmayer
Thank you also for having me here. I will immediately link to the last words of my colleague regarding the first topic I will refer to, which is ethical transparency and accountability. Maybe I will also go on with you, Anna.
So, ethical transparency and accountability, I would say, is one of the most dynamic topics when it comes to free mandate and parliaments, as well as the Europe on the European level as on a member state level. And it's again, as my colleague Professor Bartz said, that we are talking about compatibility between the free mandate on the one side and the professional rules which are necessary for functioning parliament on the other side. And the main approach here, the main instruments are referring to transparency.
Transparency is the main approach when it comes to ethical topics, especially concerning financial integrity. And we can see here that we also have to balance transparency with privacy issues here. So also transparency is not an absolute concept, but it also has to refer to privacy concerns which might be relevant here.
And we can see that there are many topics in the context of ethics and integrity, like the existing regime on lobbying and transparency registers, asset declaration, conflict of interest rules, gifts and hospitality restrictions. So we have a lot of elements here. And what we for example see are concepts of self-declaration, but the problem with it is that there are no verification tools in place. Then it's up regarding transparency to the public to deal with this kind of verification.
We also still have to think about and this is across jurisdictions so not on the EU level alone but also on the member states about the enforcement. And we are usually leaving or the systems are left on transparency but not on real penalties by a competent body. Regarding bodies involved we can see various different mechanisms here from the President of the Parliament and the respective advisory committee.
We are now also, there's now also established the institutional body for ethical standards. So there are various mechanisms in place and there is still the challenge how to create an effective system here. Final point is that ethical and integrity, especially when it comes to sanctions, also when it's already about transparency, that there is the necessity of judicial remedy. Now I will focus more on the comparative part of the study, what we could identify are national comparative findings.
So the overall system is clear, that the free mandate is protected in all the countries in different ways. Usually it's done by constitutional provisions and obviously, at least in certain countries, also through the case law of the courts. It can also refer to constitutional conventions, for example. And, uh, when it comes to the core content of the free mandate, what we can see is that we have a universal prohibition of imperative mandates and a protection of a party-driven loss of a mandate.
And this is the, these are core elements, but as we already have seen and will see in a second, that there are many other issues referring to the free mandate. When it comes to the concept of the free mandate, we can see basically two specific concepts. One is on the institutional side, like the German system, which guarantees the mandate as an institutional guarantee for functioning the parliament as Statusrechte. On the other hand, we have the Spanish concept, which is based on individual rights. Next slide, please.
One of the core topics discussed within the comparative study refers to the party discipline problem. So what we see is a clear legal structure, a clear legal concept, but which cannot prohibit political mechanisms which create party discipline within the different national systems.
So there are different political mechanisms going on here, like the control of candidate lists, committee seat assignments, or only status to parliamentary groups, or even the threat of non-renomination or positive incentives for further political careers. So there are many possibilities that you have as party influence or party pressure.
And usually regarding this kind of party pressure, there are no formal legal consequences that are referring to that. The party discipline, however, creates the question of how legal concepts could help to prohibit binding instructions. Usually there are legal concepts in place, but it does not help against political dependence here. So when it comes to enforcement and sanction mechanism, we can see a broad plurality of such kind of mechanism in place.
Usually there's a broad toolkit of sanctions in place, which start from the call to order and go to financial penalties and even the loss of the mandate could be a possible sanctions here. So there is a broad picture, but usually it's the same kind of sanctions which you will find in the different countries.
When it comes to the bodies enforcing it, the traditional way on a in a comparative perspective are parliamentary ethical or disciplinary committees, as well as the speaker or the president having a sanctionary power here. So the system is always within the parliament and usually these kind of systems lacking a structural independence and it can only also create selective partisan behavior regarding different groups in the parliament. But what we can see are more and more countries creating now independent external oversight bodies.
So this is a clear trend, although many countries still not have this kind of independent bodies in place. Examples might be for this kind of bodies Slovenia or Croatia, France or Romania, where we can see that a stronger enforcement is possible when you have such independent external oversight bodies in place.
Yeah, nevertheless, several countries provide no formal appeal route when it comes to this kind of disciplinary decisions. Next slide. So when we are now finally providing at least at the moment some promising practices, first of all, I would like to mention that all the country reports provide promising practices, so there's a lot of more to look at, and this is also a selection from the selection, so to call, to give you some insights here. The first refers to Romania, where an automatic cross-checking was included into a digital system when it comes to asset declaration.
So it's not just about transparency, but it's also about verification of the specific information provided by the members of parliament. The second example refers to France, which had introduced an independent external transparency authority with certain investigative powers here, which is already in place for several years and which maintains a lobbying register or verifies declaration of assets and interests.
Another example refers to the Netherlands, the College of Investigation, which is established for the second chamber of the Dutch Parliament. And it's again an independent parliamentary integrity body, but it's clearly limited to questions of financial integrity and is not referring to questions of free speech.
Going on with an example from Lithuania, which is a slightly more moderate way of balancing interests within the parliament, is the introduction of an opposition-chaired ethics committee. So still parliamentary proportionality is guaranteed within the committee, but the chair is up to opposition parties here.
Another mechanism was introduced in Estonia, which is a digital system providing legislative footprint mechanism, which is systematically recording all the interrelations of the members of parliament with outside actors regarding a certain proposal. And finally, referring to Germany and developments from 2025 to reconceptualize the disciplinary toolkit in place, which also has clear restrictions for the president not to apply sanctions.
So it's limiting the discretion of the President. So finally coming to our key recommendations, what we see on a comparative level is that we have the questions of oversight, so the necessity for substantial sanctions and appeals should or could be reviewed by an independent body.
And this also links to the right to appeal, that it's necessary to have the possibility for MPs to appeal against disciplinary decision to an apex court or a dedicated tribunal. What's also an open topic here is intra-party coercion, which MPs are obviously facing, and the way would be to develop procedural routes here, again especially complaint mechanism or parliamentary ombudsman to go forward.
And as we heard from my colleague Petra Bard about social media, it's there the necessity exists to update the code of conduct. Also mentioned by her was the problem of the 27 plus one inequality, that the different national systems are working very differently, although the European Parliament on a European level creates in this regard a significant inequality which has to be addressed.
Moreover, it's necessary to ensure objective impartiality regarding immunity waiver proceedings due to the case law of the European Court of Justice. Next slide. So our final conclusions are: the free mandate is recognized universally, but we see very different practices in the different countries. The biggest challenge to the free mandate is still party discipline, but also politicized and selective enforcement, as well as new challenges by social media.
Independence and accountability, and that's also a crucial conclusion for us, are not opposites. On the contrary, it's necessary in a 21st-century parliament to balance a free mandate as well as ethical and integrity frameworks. This also includes structural changes towards the independence of oversight bodies to create an effective and strong enforcement of these rules. And finally, as on a European level cannot be understood alone, it is necessary also to have this comparative look from the different countries, the member states, to put a system together which unites Europe. Thank you.
Sven Simon
Thank you very much for this presentation. Yeah, then we can I think start the questions and answers. We will do one round first to the speakers on the podium here and then we also can of course ask questions to those who are remotely connected and they can also actively participate and contribute if you like. So then raise your hand with this raise your hand button and then you can speak here and we can hear you in the room.
Yeah, I would like to ask colleagues or raise a fundamental conceptual question about the study's overall approach. From the way the project has been presented, I gained the impression that the free mandate is examined primarily through the lenses of transparency, integrity, compliance, accountability and oversight. And as a result, the focus seems to shift from the freedom and independence of the representative to the mechanism designed to monitor and constrain that freedom. And this leads me to my question.
Does the study consciously adopt a governance perspective in which representatives are viewed primarily as objects of transparency, integrity and compliance regimes? If so, how would you justify this normative choice, maybe in the different member states? Obviously, I'm coming from a constitutional lawyer's background from Germany. And you showed that and you said that beside the clear trend, which how you called it, there are different constitutional traditions.
My concern honestly is that the analytical framework of the study as you presented it itself may already presuppose a particular understanding of parliamentary democracy. Throughout the presentation, your concepts, as you repeated again and again, oversight, monitoring, accountability, enforcement, appear to function as the primary reference points, while the free mandate is treated largely as something that must be balanced against them. And from a constitutional perspective, one might start from the opposite premise. The independence of elected representatives is not an exception that requires justification vis-à-vis oversight mechanisms. Rather, oversight mechanisms themselves require justification insofar as they restrict the freedom of the mandate.
So the freedom of the mandate is the status right and any restriction needs to be justified, not the other way around. And I therefore wonder whether first the study sufficiently reflects on this underlying constitutional tension or whether like you said, that general tension you said on slide three, parliamentary independence versus accountability, transparency, integrity, values, equal pluralism, minorities. And yeah, I wonder whether it risks approaching the free mandate through a conceptual framework that already assumes the primacy of control over independence. And when you ask, you also were talking about the five dimensions.
When you ask those who did the national studies, the country reports, one of the questions is how to balance control over independence. Of course, then you receive a different outcome compared to when you would ask how is the freedom of mandate in the constitutional order dealt with in the respective country. So how do you address that tension in your methodology and overall approach?
That I think is my main question.
Konrad Lachmayer
First of all I would like to agree that the free mandate in itself has an important value and that restrictions of the free mandate have to be justified. So this would be my starting point here. So why so much focusing the other way around? And I think there are certain reasons for that. First of all there are international developments and it was on a slide but I didn't mention it, it's the GRECO committee for example when it comes to anti-corruption.
So we have certain issues coming up like corruption which leads to the question of how to deal with questions of financial integrity.
And I tried to emphasize, but maybe not clearly enough, that this has to work together.
Together, so I don't think that the main issue here is to limit the free mandate, but as we already heard, for example, about the judges and the independence of judges, judges can also not complain to come to the court and do their work when it comes to their independence. So their independence is also safeguarded, but it's also related to a certain element. And one certain element would be free speech, for example, and here the question is, should there be any limits? And just to give you this example, when it comes to the free speech, limitations have to be justified. So the overall starting point is obviously free mandate includes free speech.
If you're limiting it, it has to be justified. And just take the German example here, that interestingly enough, Germany is one of the few countries which is limiting free speech regarding defamation, for example.
By the way, also Austria is doing it like that. And this is done then legally formally on a constitutional level, but in the end, obviously, it's restricting the concept of free speech here. Yeah. And so I would like to give you also another example which shows how the European Union is influencing Member States' concept. For example, in the Austrian Parliament, we had this significant debate about data protection.
And this was the European Court of Justice who declared that also the Austrian Parliament has to be or is part of the regime of the GDPR, the General Data Protection Framework of the European Union. So the Austrian Parliament now introduced an independent parliamentary committee on data protection to deal with infringement of data protection by parliamentarians, by members of parliament. So what we can see is the development of different regimes in the broader concept of ethics and integrity which are referring to the parliament. One element is that the functioning of the parliament has to be guaranteed.
This is not a problem of the free mandate. And if there are direct interferences with the free mandate, it's necessary to justify it.
Sven Simon
A very brief question and then Loránt Vincze for the EPP. So would you say that you mainly described the development? That is something different compared to maybe being critical concerning the recent development.
Konrad Lachmayer
Well, as I said, so there are different steps. First of all, we also had to describe the developments. This is part of a comparative study.
But secondly, we were also asked for promising practices and recommendations. So we cannot only stop doing so.
Loránt Vincze
Thank you, Chair, and thank you for the presentation, dear authors. It's a huge work behind, I realize, because you had many people who worked on this study, a large team. And you presented quite a varied picture on these matters.
And we could see that there are different layers of of regulation. I bit missed the fact that they were not put in a hierarchical approach as well, starting with treaty and European level, then rules of procedure, bureau decisions maybe of the Parliament, then national legislation that is inherently different.
But most striking probably when when when I listen to you was that the 27 plus one problem comes up from time to time. The European Parliament mandate is a single mandate but it has two different levels. When I look to the immunity two levels of protection. The one European that we enjoy here in Brussels and it might be totally different what we have at home and among colleagues there is a difference. Members of the parliament many of them they don't even know what is the regime.
Nobody presents this when you take over your your mandate and they they face when when immunity requests come in.
Do you feel there is any need for, not harmonizing because that would be against the treaties, but to approach this in a critical manner and to say, okay, there is something to address? It was also interesting to listen to you when you spoke about party discipline. And this is an area that is not regulated. It is very flexible, but it has a huge influence on the mandate of the member.
I'm not saying it's not a free mandate anymore, but still it has a large influence on this. And then on transparency, of course, transparency is not absolute, Mr. Laxmeyer, you said that, but I think Romania made it quite absolute. You mentioned this e-DAI platform, it's in place for two years now, but in fact this system works for 10 years since 2007 when the Agency National Agency for Integrity was created, which obliges all elected officials from local counselors to members of the European Parliament and ministers to full disclosure, not only on their incomes and assets, but of the family members as well. And here I don't know if some bells ring for you because it it is also an intrusion in private life and the fundamental rights of spouses, child, they they receive nothing from the state for the fact that they need to comply.
The mandate is not theirs, it's the mandate of the politician. Until recently, there was also a full disclosure of this information, and now not everything is published, but it was reachable for everybody for some time. So, transparency obligations are there and politicians feel that the pressure from the public is stronger and stronger, and then regulatory authorities also add more compliance to politicians. Where is the end of it?
Do you see here some critical moments when we should say yes things are okay? I mean let's check if they if they really work we should not put more more layers on it. So as you see I try to provoke you because you did a nice descriptive study but we would like to engage into into a dialogue with you. Thanks.
Konrad Lachmayer
May I start with the transparency and then I will refer to my Professor Bart. As you said I think it's not a black or white matter when it comes to transparency.
And it also has to be balanced. So that's quite sure for me. And we have certain countries and we have different traditions in Europe. And I would also like to call to our colleague from Sweden, who is hopefully here online, to present maybe the Swedish perspective as it's known as the most transparent system in Europe. But in the end, I think there are also different layers you can apply from a proportionality perspective.
So not all data has to be publicly available, but maybe only to the Parliament or to certain committees.
So when it comes to revelation of certain information, this can also be somehow steered. Nevertheless, and I fully agree and I mentioned that, that data protection is also of great concern and I think especially when it comes to the European Union, a lot of measures has been taken in the last 10 years to improve data protection and this obviously also concerns questions of Parliament. Nevertheless, and I would like to be clear about that, when it comes to parliamentarians, they are representing the people, a certain kind of transparency is obviously necessary.
So I think there's not unlimited transparency is not the solution, okay?
Petra BARD
Thank you very much. And I would I would continue where Professor Lachmayer stopped, namely these national practices. You have mentioned already two jurisdictions, but there is also the good practice from Lithuania, as far as I know, asset declaration regimes are extended to the names and relationship of MPs' family members.
And we actually recommended this as a good practice as long as privacy considerations are taken into account, exactly with view of the Romanian situation. And as far as we were informed by the Romanian experts, but I invite them to, to step in and correct me if I'm wrong, that the Romanian legislation was struck down by the court as unconstitutional in 2025 in the Constitutional Court decision 297/2025. So absolutely these considerations must be taken into, into account. Your next question about the, or it was the first question that you, that you mentioned in, in regard to the hierarchy, legal hierarchy.
Actually this is this is the system that we also implemented. So if you read the national reports we will always start with the constitution laws and and and practices and we did interviews with internal parliamentarians and and people working for the bureau so that we can see how the black letter law is functioning in practice. But this is exactly the method that we are following as well in our country chapters but also in the umbrella report. And finally party discipline. I think this is the most important aspect or one of the most important aspects that is targeting and that is limiting the concept of the free mandate.
We have already talked about constitutional constraint.
I agree with Professor Lachmayer, the rule is the free mandate and the limitation is the exception. The limitation is there exactly because of a constitutional concern, namely constitutional law is a very depressive and pessimistic discipline. Our point of view, or our point of departure is whoever has the power will abuse it, so there has to be certain constraints on this. But, and we make this distinction in the study between models following the status rights, Statusrechtemodell, or other countries following the fundamental rights model, like for example Spain. But this distinction is very subtle and in reality systems are hybrid.
So even in Spain the MPs' rights are linked to their institutional role. It's it's formulated as their fundamental rights, but the fundamental rights notion doesn't mean MPs have extra human rights, but that parliamentary privileges like speech are often framed as extensions of general constitutional rights. In contrast the German model emphasizes that these rights exist to protect the functioning of parliament itself. Now where so this is on the one hand the limitation, the constitutional limitation that Professor Simon also mentioned. But there is the other limitation and this is not coming anymore from the voters as historically it did, but it's much rather coming from what you are saying about party discipline.
There are financial sanctions in most jurisdictions, restrictions on access to parliamentary resources, procedural disadvantages imposed on members leaving political groups. So this is where the tension is coming from, the free mandate versus a rather strict party discipline in many jurisdictions.
Sven Simon
Thank you very much. I will remember the sentence you said, whoever has the power will misuse it. Of course, the independent body immediately came in my mind. Marc Angel for the Socialists and Democrats.
Marc Angel
Often an independent body is constituted of a few people and when a president or a speaker has the, has the, just to react to what you said, has the sanctionary power, it's just one person. So we also have to consider that. But let me come to my question. Thank you very much to the two professors for this interesting presentation and good luck with the finalization of the study. In the beginning, Professor Bart, you mentioned the difference between parliamentary speech and political speech.
And you said parliamentary speech is within the walls of the parliament. Do you, is that when it's in a committee, in a plenary, or because we also have events here, group events, members organize events which are, which are part of their free mandate, etc.?
Is that still parliamentary speech when it's inside the building or political speech? Or can you also say when I'm on my social media, I'm there as a member of parliament, I'm not there as a private person, so it is, is it parliamentary speech or is it political speech? For me, it's very difficult to understand the limits of that. So that's just a question. Then party discipline, of course, in the European Parliament, it's a bit different.
And I was also a member of a national parliament. And of course, there party discipline is much stronger because if you vote against the party, the government might fall if there is a small majority. I was in a coalition government where we had just two seats majority.
I was in coalition government where we had just two seats majority and if two or three people vote on one common issue, a whole government can fall. This is not the case here. And plus, European party discipline, I'd rather think that many have more the national party which gives the instruction, or do you see that there is an evolution where European parties take over? I don't see that, but maybe I am wrong in that. And then, again, yeah, the when the speaker or the president have the sanctuary power, I saw that you came up with promising practices and you also in your recommendation you said you prefer oversight by an independent body.
Did I understand that right? And I must say I really like the French model very much with this Haute Autorité pour la Transparence de la Vie Publique. I like it because it doesn't have this word ethics. Ethics is of I'm very much in favor of the ethics body though, but ethics is often it depends on the translation and how you perceive it. It's a bit linked to morality and things.
So but I I must say I I follow a bit what they do in France and I think this is this is a very promising practices. And then last thing is the problem of the 27 plus one.
And in your recommendations, you said this has to be done together at European level and national level, but seems to me very complicated how we could solve that problem together. I mean, we cannot have a moment where every 27 member states change their electoral law and we change our electoral law. How do you see a solution for this 27 plus one problem, or do we just have to live with it?
Sven Simon
To give you a little bit more time to think about the answer, we visited with the committee this high authority for something in France. And it's really one of the worst examples I can think about.
It's an it's an old politician who is the president with really enforcement powers unbelievable. Of course he's member of a party, Socialist Party in that but to the time when we went there. And when you for example in France buy an apartment, you have to make it public. And then the debate starts. And when you publish a book, then you have to make public about the the income out of the book, which leads to a situation that politicians in France don't tend to publish books because when they do not sell enough books, they seem to be not very successful.
Things like that. This is the slippery slope and the development we have to keep in mind. And this authority where we went with the committee was really one of the worst examples we have seen.
Marc Angel
Books in French libraries, bookshops are now full of books published by politicians, especially this year.
Petra BARD
I can reiterate as a scholar what the court was saying and the court was very clear on this matter in a number of case law saying that statements were not connected to parliamentary duties sometimes on social media within the meaning of Article 8 and the fact that the statement appears on a public account of a member of the European Parliament, for example, does not in itself suffice to establish the direct and obvious connection, this is the legal test, the direct and obvious connection to parliamentary duties required by the court. Also some of the fellow Hungarians may remember a case from the Strasbourg court, it was declared to be inadmissible I think, it was the Keller case where a member of the Hungarian parliament said something in the Hungarian parliament for which he was challenged in court, but he said the same thing on television. Well he didn't say it, the interviewer asked did you say this sentence in parliament and he said yes.
And that wasn't considered to be political speech because he said it outside the premises of the Hungarian parliament. To me, that doesn't make sense, but this is the tension, the case law that might perhaps need some adjustment to social media reality these days. But I must say that we have an expert with us in the room. I'm not sure whether the president allows us to ask Professor Sascha Hardt to come in with the immunity questions and the 27 plus one questions.
Sascha Hardt
Yes, thank you very much, Professor Bard and thank you very much for the question. I agree that this is problematic and the problem is aggravated by the transformation of political communication that you have been referring to in the presentation already, because it is a reality that more and more of the political communication with voters, with citizens, takes place outside the immediate remit of parliament.
So the notion of Article 8 is not a spatial one, so it doesn't restrict parliamentary speech to speech in Parliament physically. Still, the clear and obvious link test that has been introduced by the Court of Justice is a very strict one. And in the few cases that we had that related, for example, to social media, the Trzaskowski case and the Fest case, this link was denied.
So we must for now assume that most statements made on through outlets like social media for now remain outside the the scope of Article 8. So they do not qualify as parliamentary speech, while they do qualify as political speech, but political speech is not absolutely immunised as parliamentary speech is. And therefore may remain subject to to proceedings. And then the 27 plus 1 problem becomes becomes very valid because it imports the law that applies to national parliamentarians. And there we have member states which are very protective of parliamentarians' conduct including speech.
And there are there are member states where this layer of protection does not exist at all. And the complete lack of existence is also a problem when it comes to thinking about harmonization through practice or harmonization through working with the rules. Because in a system like the Netherlands, where this additional layer of immunity that in other systems might exist but could be lifted, so where where practice is relevant, is completely absent, the rules cannot be cannot be well, cannot be invented. They are simply not there. So this is why this 27 plus one problem is exists and is aggravated.
It is historically a remnant of times when members of the European Parliament were delegates of national parliaments and not members with a, with a an elected mandate, a European elected mandate themselves. So the historical origin is clear, but also the outdatedness of the system is quite clear.
Sven Simon
Thank you very much. And now Marieke Ehlers on behalf of the Patriots for Europe.
Marieke Ehlers
Thank you very much, Chair. Many thanks to both of you for presenting at least your draft study. I have two questions. The first relates to what has now been referred in the room a lot as free speech and then finally by Dr. Hardt mentioned as parliamentary speech, because I think the difference between the two is significant and we need to emphasize that.
And the second question relates to party discipline within the European Parliament. So when it comes to parliamentary speech, you mentioned that there are sanction mechanisms within the European Parliament for speech that is considered to be hate speech or discriminatory.
My big concern is that lately everything is being labeled as hate speech or discriminatory speech to the extent that that speech loses or the the term hate speech or discriminatory speech loses its legal significance. And the point is that any speech that is labeled as hate speech or discriminatory speech is subject to a legal check which I am not entirely sure can be conducted by the president of this house and it is something that should be checked in a court of law. So if we are sanctioning members for so-called hate speech or discriminatory speech, I don't believe that is something that can be done within this house because we have a again not only free speech rights but parliamentary speech rights which is a higher level of protection.
That is not something that can be determined by the president of this house but should then be referred to a court of law in my opinion. I would be interested to hear what you are saying in this regard and whether or not, because you also mentioned earlier that there was case law where the rules of procedure did not provide a sufficient legal basis for sanctioning certain acts or omissions, and whether that would also be the case in these hate speech cases where I think many of us have received letters from the president asking us to refrain from speech that would affect the dignity of this house. The point is, we do, we are protected by parliamentary speech and we can say things at a more extensive level than the ordinary population, barring illegal speech, which of course then has to be challenged in a court of law.
My second question relates to party discipline because, as my colleague Mr. Angel already mentioned, there's this question of national parties limiting what, what their delegates can do here, but there's also the question of what the European political parties do. And what we see in this house is, for example, when it came to voting on the motion of censure on the President of the Commission, the members in one political party who did not vote according, or political group, who did not vote according to the group line were sanctioned where they could not get rapporteurships or speaking time within the hemicycle. My question in this regard is, would you say that that falls within a reasonable and proportionate limitation of the free mandate as enumerated by you? Thank you very much.
Petra BARD
Thank you very much for for these important questions. And indeed there is an inherent tension in the regulation of hate speech especially when it comes to politicians and especially when it comes to members of parliament or members of the European Parliament. And the European Union institutions do not have a sui generis definition or a definition for themselves of what hate speech constitutes.
And we haven't advised in the study to have a strict definition for the reason that there are already a plethora of European bodies actually having a say on what hate speech, what constitutes hate speech. We refer to the Committee on the Elimination of Racial Discrimination, warning that politicians and other public figures may contribute to the creation of hostile climate towards protected groups when they engage in exclusionary rhetoric. They have a particular responsibility. This is the same idea represented in the United Nations Rabat Action Plan.
The status of the speaker is one of the six elements in the Rabat Action Plan relevant to addressing whether expression reaches the threshold of incitement or discrimination, hostility, or violence, although it's less relevant. The European Court of Human Rights of course has a huge case law on Article 10 on freedom of expression and its limits. I may also invoke Article 17 of the ECHR, which excludes from convention protection expression aimed at the destruction of the rights and freedoms guaranteed by the convention. So in other words, this is an abuse of rights provision and there is also a case law which we do reproduce in the study.
And then there is, of course, the Charter of Fundamental Rights, Article 11, Article 21, and the Council Framework Decision targeting racism and xenophobia. We also see on the side of the European Union a willingness to address hate speech and hate crimes even more seriously. There are plans to list these crimes as particularly serious crimes with a cross-border dimension, or as we say it, there are plans to create Eurocrimes out of these crimes.
So I personally don't think that the given this plethora of institutions already engaging in a definition of hate crime, an additional there is no additional need for the European Parliament to develop its own hate crime understanding, but it can refer back mainly to the to the two apex courts in Europe, but also to other institutions that I have mentioned. The European Parliament so far has been following the the trend in Europe, namely that speech in general shouldn't be criminally protected. There are huge debates, of course, about whether criminal protect sorry, criminally prosecuted.
But the but the main idea, and this is also reflected in the Council of Europe, is that non-criminal measures are supposed to take place when it comes to when it comes to hate speech, and the European Parliament seems to follow that. The case that we have both mentioned indeed underlines the importance of the of a clear legal basis for sanctioning, especially in this particular case against Mr. Korwin-Mikke. There were particularly substantive sanctions imposed. So there was loss of daily subsistence for 30 days, suspension from parliamentary activities for 10 days except voting, and then one year ban on representing the European Parliament. So these are substantive limitations on the rights, and in such cases, obviously, the the legal basis must be there.
I do not want to judge, especially in the negative, the ability of the European Parliament to tell what hate speech is and what is not. It is happening, for example, in immunity waiver cases. This is business as usual for the European Parliament to determine what constitutes, what reaches the criminal threshold and what does not.
Konrad Lachmayer
I would like to answer the question on party discipline.
So I think the underlying topic and it refers to the theoretical outline here is the big question about the separation of the legal limits and the legalization of parliaments and the political sphere on the other side. So there's an inherent tension, yeah, if you're legalizing too much, then you're limiting the political sphere and the governance approach is taking over. On the other hand, if there are no legal limits, the operationality and the functionality is not working anymore.
So the usual approach here when it comes to party discipline, and I already mentioned that, is a political approach. So there are certain legal limits like loss of mandate, this is not what the parties can do. But when it comes to political sphere, there are not so many limitations. But here comes the challenge. Obviously from a legal perspective, if I'm looking at it from a legal perspective, it's possible to legalize these problems and to create new rules and bodies then to enforce it.
But then obviously it would be crucial that you have court proceedings afterwards to get a safeguard.
But that's the inherent tension which we again see here in the context of party discipline. And maybe because it was mentioned before by Mr. Angel about ethics and you were mentioning you are skeptical about this ethics in the body, coming from Austria and following a Kelsenian perspective here, I'm in favor of clear legal provisions instead of vague ethical norms. So, but again, this means that the law part or the legal part of this concept is growing and is not limited.
Sven Simon
So, the next suspect, Sander Smit. Sorry, ah, he's not here anymore. Then it is Sabine Verheyen, please.
Sabine Verheyen
Ja, vielen Dank, ich werde das auf Deutsch machen, damit unsere Dolmetscher auch ihre Arbeit machen können.
Vielen Dank übrigens für die Unterstützung hier. Ich habe noch mal eine tiefergehende Sprache zum Frage zum Thema Hate Speech und Conduct Rules. Als Vizepräsidentin, und ich weiß das auch von vielen anderen, haben wir immer wieder das Problem, dass wir in der Sitzung abwägen müssen, was ist Hate Speech, was geht gegen Grundwerte, was geht gegen, ich sag mal, die Dignity anderer Mitglieder oder auch von Menschen insgesamt, was geht gegen die Werte der Europäischen Union und was nicht.
Und was kann oder sollte sanktioniert werden, fällt ja nachher in die Entscheidungen, die dann auch die Präsidentin am Ende oder die Dienste dann vorbereiten und fällen. Die Frage ist, Sie sagen in Ihrer Empfehlung, es wäre sinnvoll hier klarere Regeln aufzustellen, Code of Conduct mit mit klareren Vorgaben, weil die interne Disziplin eben nicht ja ich sag mal immer greift. Und ich würde gerne auf einen Punkt noch eingehen. Wir haben auch hier ja ein sehr starkes 27 plus 1 Problem. Während in Deutschland zum Beispiel bestimmte Begrifflichkeiten, bestimmte Aussagen schlichtweg verboten sind, gerade wenn es um Holocaustleugnung geht, wenn es um Nazibegrifflichkeiten geht und so weiter, so ist das in vielen anderen Ländern nicht der Fall.
Trotzdem fällt es ja eigentlich hier auch wieder in eine ja ich sag mal Abwägung, was ist erlaubt auf der europäischen Ebene und was nicht. Wenn ich einen deutschen Abgeordneten habe, der Holocaustleugnung betreibt, dann habe ich ja schon eine gewisse Verpflichtung, da auch zu sagen: Stopp, das geht nicht, weil das ist eigentlich für jemanden aus Deutschland verboten, das zu sagen. Und wie kann man da eine ja ich sag mal Balance finden oder einen Ausgleich finden zwischen den Rechten, die dann zum Beispiel ein anderer hätte, weil er es sagen dürfte, und in Deutschland ist es sogar ich sag mal kriminalrechtlich also strafrechtlich verboten.
Petra BARD
Erlauben Sie mir, das auf Englisch zu beantworten. Vielen Dank, Frau Vizepräsidentin. Yes, so, this is a tension that can be resolved in courtrooms. And the previous question was also directed to it. And I just listed the case law around hate speech.
But I also agree with what Professor Lachmayer just said about the judicialization of the issue. The more we judicialize, the less political room the European Parliament has.
So this is always a matter of balancing. I understand the difficult position you are in, but then if we are shifting it too much to the legal judicial arena, then we are taking away part of your free mandate in a way. Now, when it comes to the denial or relativization of the Holocaust, which is a crime according to the Strafgesetzbuch in Germany, right? I would assume that anything that is criminalized in the German criminal code would be problematic for the European Union level as well.
So, of course, there are specific historical connotations that must be taken into account in various jurisdictions. I understand that, and some are more sensitive to issues than others.
But once any member state, not just Germany, prohibits criminally a certain conduct, this should reach a threshold where there are very serious ethics and accountability considerations at the EU level.
Speaker 23
Ja, also ich glaube, das ist auch noch mal ein Sonderproblem in der, in der Praxis ist die Lage ja ziemlich komplex. Was Vizepräsidentin Verheyen anspricht, die parlamentarische Indemnität hat zwar den besonderen Schutz für Äußerungen im Plenum. Gleichzeitig gibt's aber Fälle, glaube jedenfalls mindestens einen, nicht, wo die Holocaustleugnung als qualifizierte Auschwitzleugnung strafrechtlich verfolgt wurde und das wurde vom Europäischen Gerichtshof für Menschenrechte auch gehalten. Also, das ist aber auch einer der Sonderfälle, der wenigen oder der einzigen Sonderfälle. So.
Sabine Verheyen
Es ging auch um weitere Begrifflichkeiten, wo es dann schwieriger wird.
Speaker 23
Natürlich, das ist auf jeden Fall so. Jetzt bitte ich um Verzeihung, weil eigentlich hätte ich Christine Anderson von der ESN-Fraktion zunächst das Wort erteilen müssen und hab die zweite Rednerin der EVP drangenommen, aber sie verzeiht mir das. Christine Anderson von der ESN-Fraktion.
Christine Anderson
Well, your tendency to keep skipping me, maybe I should start to take it personally. No. Thank you so much for the presentation on that very interesting issue and there seems to be problems in balancing it out. I fully appreciate that. And I would like to touch on something that you also mentioned and my colleague Marieke Ehlers already mentioned and Sabine Verheyen just now kind of touched on that too.
That is the issue about the disinformation.
You mentioned it and I kind of got the notion that you consider disinformation to be something that needs to be tackled with. However, we do have the phenomenon in this house that I mean everything nowadays is disinformation and ironically enough, disinformation is always disinformation when it kind of contradicts the politically desired narrative. You know, going way back, we had the discussions about heliocentrism and geocentrism and you know, the heliocentrists of course they were evil doers and you know, tortured.
Nowadays we know they were the only ones that were right actually. We don't need to go that far back. Just think about the discussion in early 2020, the origin of COVID. Was it a lab leak or was it a zoonotic? And here too, we had you know, scientists that said well it might have originated from a lab.
I mean their careers were destroyed simply because it was not allowed to even ask the question, could it have been from a lab? Now we all know it did come from a lab. And we face the same situation in this house.
So if I were to question, to simply ask a question about some thesis or some theory, you're ridiculed, lectured to, scolded. As an MEP, you get scolded by the chairs of the committees, present chairs are excluded from my remarks in this case. But I mean, you know, and then you're even opinion checked. So it's not like, given well, that is a legitimate question, let's find an answer, you're basically shut down. Your mic gets shut off, whatever it is.
So the question is, if disinformation is something that needs to be tackled with, who should be the arbiter of this said disinformation? And considering that Ursula von der Leyen, the Commission President, she is now setting out to not only debunk what she perceives to be disinformation, but pre-bunk disinformation. And interestingly enough, she calls it vaccination against disinformation. I wonder if Pfizer already has an mRNA shot going for that. So basically, should there be an arbiter of disinformation?
And if so, should that be elected officials? Or wouldn't you agree that the best way to actually identify disinformation would be simply to allow open and free debate on pretty much any given subject? And in the end, hopefully, there will be, you know, the truth is always kind of in the middle, but you need to discuss it to finally get there. And then finally, I would like to touch on a totally new concept, which is called mal-information. Now, mal-information is factually, objectively factually true, a true statement, but it's considered harmful.
And that too I mean if I were to bring a statement that is considered harmful let's say I were to say there is exactly two sexes men and women and for simply saying so you could possibly be the subject of or the accusation of having committed a hate crime. So these are all things that we need to consider and given the ever increasing concept of disinformation and malinformation and how it actually muffles speech and restricts free speech how are you then expected to exercise your free mandate if you're faced with disciplinary actions for simply stating a true statement but it is considered malinformation.
I would really be interested in how you would balance that with the subject given today. Thank you.
Konrad Lachmayer
Well, first of all, we have to come back to the starting point. This is within the political sphere from the starting point and not within the legal sphere. So if you are fully protecting free speech, we have this open debate. Yeah.
And if it's misinformation, malinformation, wrong information, whatsoever, it's part of the debate. I think the only outer limit I can see is if it's not participating somehow in the debate at all. So if you're just destroying debate in the parliament, then you definitely have reached a limit when it comes to the functioning of the parliament, which is not there anymore. And this is the starting point. And then there's the question how far should we start to restrict these kind of things?
I already mentioned, for example, in Germany and Austria, you have defamation as an exemption of free speech. But when it comes to all other cases of criminal law, when it's just referring to free speech, it's not limited there. In the end, we can always make a disclaimer: please be aware of that this is a parliamentary debate which can also contain misinformation or malinformation. But obviously, this is a democracy or a democratic debate, so different perspectives must be possible. I maybe also refer to our colleague Professor Hart again if he maybe would like to add in here on on this matter.
Sascha Hardt
Well, thank you very much for the question. I think, well, it, as you said already, Professor Lachmayer, the qualification of parliamentary speech happens fully inside the political sphere.
Because as long as something is parliamentary speech, and as we discussed earlier when it comes to communication outside the parliament on social media, in the media, in public debate, the threshold there is a different one. But when it comes to proper parliamentary speech inside parliamentary debates, the freedom is in principle absolute from a legal point of view, bar the sanctioning powers of the chambers and of parliament itself. Then it does become, of course, a difficult weighing exercise at times that the speakers and the parliamentary authorities have to conduct.
However, here, as Professor Lachmayer said, the I think the ultimate limit, the real threshold is the rules of engagement in parliamentary debate. So if parliamentary debate or if the dignity is severely affected, if parliamentary debate is threatened to break down because of the way in which statements are made or also the very extreme nature of statements being made, then these sanctions would take a hold. But in principle, statements in parliamentary debate proper are enjoy the highest level of protection under Article 8 of the Protocol.
Sven Simon
So, the next speaker is our new colleague, the successor of the Prime Minister of Hungary, who was our former colleague and Vice-President of this committee, Péter Magyar, and now I give the floor to his successor, Csaba Bogdán. Welcome in our committee.
Speaker 25
Thank you. May I switch to Hungarian also, because it would be easier for me and for your sake also, sirs.
Én a szabad mandátum legnagyobb gyakorlati korlátjával kapcsolatban szeretnék egy-két megjegyzést tenni, illetve kérdést. Eszembe jutott, hogy annak idején, amikor két évvel ezelőtt Magyarországon a Talpra Magyarok Egyesület közössége felhívást intézett, hogy jelentkezzünk európai parlamenti képviselőnek, ugye ez egy egyedülálló kiválasztási folyamat volt annak idején, és bárki jelentkezhetett, akkor kértek egy motivációs levelet, egy önéletrajzot és egy programot, egy várható programot, hogy ki-ki mivel foglalkozna. Én, amíg önök beszéltek, nekem a motivációs levelem jutott eszembe, illetve az, hogy mi szerepelt ott, mert hogy én nagyon csodálkoztam a pályázatom benyújtását követően, hogy behívtak egy ilyen beszélgetésre.
A következőt írtam a pályázatba. Elkötelezettségem alapja a politikai függetlenség és az outsider szemlélet, és ebben bármiféle párt számomra csupán egy keretet jelent, amelyen belül lehetőség van a közös ügyek méltó, szervezett és eltúlzott kompromisszumokat mellőző képviseletére. Ez egyben azt is jelenti, hogy elkötelezettségem konkrét ügyek mögött áll, nem pedig pártok vagy egyéni érdekek mögött.
Pártpolitikai háttérrel nem rendelkezem. Ezzel a naiv gondolattal mentem bele ebbe az egész pályázati rendszerbe, és most ott tartok, hogy végül is kiválasztottak, sőt bejutottam ide az Európai Parlamentbe is, és azzal a szándékkal, hogy kihozzam azt a maximumot, amit az én tudásom és személyiségem még ebből a mandátumból megenged.
És ebben nekem az eszközöm az az, az egyik eszközöm az az, hogy megpróbálom megtalálni a harmóniát a a párt saját céljai, a delegáció saját céljai, a pártcsoport, tehát itt a Néppárt saját céljai és a szakma szakmai megfontolások között, mert úgy gondolom, hogy van egy közös metszet, de legalábbis egy olyan metszet, ami valamilyen középpont felé mutat. Nyilván azt önök is jól tudják, hogy olyan döntések nincsenek, amik minden résztvevő számára mindig megadja a megfelelő elégedettségi szinteket. Szóval rátérve a kérdéseimre.
Az első kérdés, ami felmerült, hogy hol húzódik az a határ, ahol a pártfegyelem összeegyeztethetetlenné válik a szabad mandátum elvével? Másfelől, hogyha a tanulmány szerint a szabad mandátum legnagyobb gyakorlati korlátja a pártfegyelem, és hogyha ez így van, akkor elegendő védelmet nyújtanak-e a mai európai parlamenti rendszerek azoknak a képviselőknek, akik a saját pártjuk részéről informális politikai nyomás alá kerülnek, még akkor is, ha formális jogi szankció nem éri őket?
Vagy zárójeles kérdés, vagy a képviselő saját hatókörében kellene lennie adott esetben annak, hogy ő kiálljon saját magáért és azért, amit ő képvisel. És egy alapelvi kérdés a végére, és ez kevésbé technikai, hogyha a szabad mandátum lényege a képviselőnek a függetlensége, akkor a mai Európában valójában mitől kell jobban védenünk a képviselőt, az államtól vagy a saját politikai közösségétől? Köszönöm.
Konrad Lachmayer
So I think it refers back to what Mrs. Illas already asked. Should there be stronger legal restraints to parties when it comes to pressure on members of the parliament? The moment, the situation at the moment is the following, that only, the only thing which is really protected is the loss of the mandate. So as long as you are convincing your party colleagues with your approach and you are renominated for the next elections, nothing happens.
Yeah.
Konrad Lachmayer
But obviously, if you are then not voting within the lines, they might not renominate you. And this obviously cannot be changed. So and this is a political concept and it cannot be legally enforced that you can get a new candidate status on the list. So this is the clear limitation which is there. But obviously it would be possible, it would be theoretically possible to strengthen the members of parliament against political party pressure.
Then again, here comes the complicated part. Who should decide about it? Who is the supervisory body here?
Then obviously you would need some kind of a possibility to go to a court. You need legal protection and in the end the courts would have to decide on if the clear legal rules are violated or not. This would legalize this kind of political sphere which is there at the moment.
That's the legal concept to approach it, which is usually not done in the member states of the European Union.
Sven Simon
Yeah, I think there's one element which is important, this is electoral law. We see that here in the house, we have 27 different electoral laws and there are some member states where the party president decides one day before the deadline who can run for the European elections. So very depending members. Also, for example, in Germany you see a tendency when we had a functioning electoral law and so forth that half of the members have been elected, is still the case, but first past the post in constituencies, they are of course much more independent from the party than when they depend on a list which is in one or the other way presented by the party. So, next speaker, Alexandre Varaut.
Alexandre Varaut
Oui, merci beaucoup, Monsieur le Président. Je veux aborder deux sujets. D'abord le discours de haine. Alors c'est bien commode parce que personne n'est pour la haine. Donc ça fait l'unanimité immédiatement.
La difficulté, c'est que comme vous nous l'avez dit, il n'y a pas de définition de la haine qui soit proposée. Il n'y a pas de définition, mais par contre il y a des sanctions. Pour l'avocat français, juriste de droit romain que je suis, la possibilité de sanction sans définition de l'infraction, c'est une monstruosité.
C'est totalement inimaginable. Donc c'est mon premier sujet d'inquiétude. Le deuxième c'est que vous renvoyez à des institutions paraparlémentaires qui ont toutes trait à l'immigration. Comme si la haine ne pouvait s'exprimer qu'au travers de ce sujet-là.
Et moi, je vois venir le moment, pour le moment ça reste encore assez raisonnable, mais au détour d'une fluctuation de majorité, où tout discours hostile à une augmentation de l'immigration, toute volonté de contrôler l'immigration pourra commencer à être tenu pour un discours de haine. Je vous rappelle que nous sommes dans un Parlement qui n'a pas hésité à piétiner la règle d'Hondt il y a deux ans pour empêcher le groupe des patriotes de participer à la plus petite partie du pouvoir. Donc l'idée de dérapage n'est pas totalement inconnue de l'institution. Ça, c'était la première observation. La deuxième sur le mandat impératif, je pense qu'il ne faut pas le prendre par le droit comme vous le faites, mais c'est un défaut de juriste, mais par le fait.
Nous sommes élus. La souveraineté populaire c'est la base de tout pouvoir. Nous sommes là et d'ailleurs en droit français le député européen n'existe pas. Nous sommes des représentants au Parlement européen. On emploie le terme de député européen habituellement en France mais c'est un abus de langage.
Nous sommes des représentants, ça dit bien ce que ça veut dire. Nous sommes des représentants du peuple qui nous a élus. Concrètement personne n'a voté pour Alexandre Varaut. À part peut-être ma femme, mes enfants j'espère, deux ou trois amis. Les gens ils ont voté pour Bardella et pour le Rassemblement National.
On aurait mis une vache à ma place, elle aurait été élue également. Donc ça a un sens. Ça veut dire que j'ai une obligation qui n'est peut-être pas juridique mais qui est morale. Si demain je me mets à penser, pourquoi pas, que The Left a raison sur tous les sujets et que je vote avec eux systématiquement, ben je trahis mes électeurs. Alors je n'ai pas de mandat impératif.
J'ai la possibilité juridique de le faire, mais j'ai une impossibilité morale absolue.
La seule voie qui s'offre à moi c'est de démissionner pour laisser la place à quelqu'un d'autre de ma liste qui respectera les électeurs. Et on ne peut pas discuter de ce sujet sans rappeler sans cesse l'aspect moral des choses et pas simplement les libertés juridiques qui nous sont offertes avec quelques nuances. Voilà, merci.
Petra BARD
Thank you very much. And indeed the imperative mandate, it would oblige you to follow whatever the voter is wishes you to take or what position the voter wishes you to take in every single decision.
First of all, there is no voter. This is a group of people who are who have voted for you. And second, there is absolutely no obligation on your part to follow whatever the voter says because otherwise you wouldn't be allowed to do politics, to deliberate, to make compromises and so on and so forth. Of course, there are sanctions in case you don't follow your voter's wishes and the sanctions are political. You will not be re-elected.
But a group of people, a group of voters cannot force you into making a certain vote in in any any specific specific question.
Konrad Lachmayer
Maybe just one sentence to the morality. For me, morality is an individual concept. So it's up to your personal morality, and maybe your neighbor would have another morality how to approach these challenges. And if you think you're leaving this concept, or you're not voting according to your voters, and then you resign, you're free to do so.
But obviously, this depends on your concept of morality which you're following.
Bartłomiej Sienkiewicz
Thank you. Please take a phone. I will speak in Polish.
Ta dyskusja, którą tutaj przechodzimy, powinna nam chyba uświadomić, że problem wolnego mandatu jest bardziej skomplikowany w obecnych czasach niż kiedykolwiek. No cóż, jeśli chodzi o państwa zalecenia, bo chciałbym się trzymać prezentacji, na trzecim miejscu w kluczowych zaleceniach państwo wymienili przymus wewnątrzpartyjny.
Czy po tej dyskusji państwo nie mają takiego przekonania, że w porządku problemów dotyczących wolnego mandatu, problemu 27 i 1, to nie powinien być chyba ostatni punkt? Bo co tu dużo mówić, jest to element pewnego procesu, w którym próbujemy zbiorowo za pomocą prawa zastąpić politykę. Ja zwracam uwagę, że ten mechanizm uważam go za trochę rodzaj choroby, między innymi zdewastował polityczność i prawo w Stanach Zjednoczonych, które powinny być troszeczkę takim ostrzeżeniem, co się dzieje wtedy. Ale jeśli chodzi o wolny mandat i dyscyplinę partyjną, no co tu dużo mówić, to nie jest indywidualna obecność.
Polityka jest zbiorowa, demokracja jest zbiorowa. W związku z tym nie można tworzyć czy myśleć o mechanizmach, które uregulują relacje między wybranym posłem a partią polityczną. To jest próba okiełznania, czy takiego zawężenia żywiołu politycznego do przepisu prawa i tak rozumiem te wyjaśnienia pana profesora Lackmayera.
No tu się nie da wszystkiego uregulować. No to wydaje mi się jest rzecz, którą chyba trzeba zostawić zdrowemu rozsądkowi bardziej niż prawu i próbie zacieśnienia tego. Inaczej mamy ekspansję prawa pozytywnego w sytuację, która absolutnie się nie nadaje do zastosowania prawa pozytywnego. Podobnie jest z mową nienawiści, która się tutaj pojawiła w tej dyskusji.
Szanowni koledzy, jeśli się zastanawiamy, czym jest nienawiść i co spełnia jej kryteria, to znaczy, że ta umowa społeczna, która leży wokół powszechnego poczucia zła i dobra i moralności i niemoralności, już nie pracuje. Jesteśmy w pewnym momencie, w którym pewne wyłączniki zadziałały. I jeśli się zastanawiamy nad mową nienawiści, czy ona powinna być penalizowana czy nie, co nią jest, to rozmawiamy o pewnym odruchu moralnym niezgody na zło. I okazuje się, że nie jesteśmy w stanie wypracować wspólnej formuły. To oznacza, że prawo w tej sprawie jest coraz bardziej bezradne, a jeśli zostanie włączone, to tylko i wyłącznie nakręci konflikt.
No to są te problemy, które ja tutaj widzę wyraźnie w przebiegu tej dyskusji. Na koniec chciałem tylko wyrazić swoją ogromną wdzięczność za państwa pracę, o tytaniczną w pewnym sensie i bardzo prekursorską. Niemniej proszę o pamięć o moich zastrzeżeniach, co jest możliwe, a co nie jest możliwe w wolnym mandacie. I proszę też o pamięć, że trop w trop za demokracją taką, jaką znamy, idzie jej cień, który jest fałszem demokracji, to jest złudzenie demokracji bezpośredniej.
Jest ona tak samo groźna w działaniach populistycznych i oddziaływaniu na prawo jak jej odwrotność to znaczy żądanie aby tak naprawdę prawo zastąpiło politykę a artykuł zastąpił umowę społeczną która jest podstawą przestrzegania prawa.
Konrad Lachmayer
I fully agree.
Democracy and parliaments need a basic consensus. A basic consensus about values, about rules of procedure, if they're legalized or not. So I think that's the starting point. And law as a second part or a second dimension is a conflict mechanism.
So, law cannot solve all the conflicts if the basic consensus is lacking.
Petra BARD
Also, the more you are diverting the situation to the legal field and the judicial field, the more you are taking politics away from this consensus. And this is absolutely not the objective to legalize all political deliberations. Also, when it comes to the question what is the greatest threat, that was your question. Of course, we may debate whether one is greater than the other, but I do think that there are, coming also back to Mr. Bodnar's, Bogdan's question, there is very little that law can do about party discipline. There are certain attempts to regulate the role and the rights of members who leave their political party or who leave their political party family.
So this is an extra protection that law actually gives them. There are also rules in certain jurisdictions not to penalize additionally members who are not belonging to a political party group, to a faction. Not to feed even more the idea that it's just basically one entity with one mouth, with one voice, but that we are talking about individual members of the national parliament or the European Parliament.
But this is only so far law can go. And I understand your concern also Mr. Bognar, that this is, this is not enough in your view, but this is, this is how, this is how party discipline currently works. And the limits come in when there are justiciable issues, rights are being taken away, then the courts might jump in, but this is already a very high threshold that I agree with you doesn't solve most of the political problems within a party family.
Sven Simon
So now I would like to ask those who are remotely connected if they, if they still are.
We don't see them, but hopefully, how many do we have? Twenty-five. So yeah, perfect. Okay.
I mean, I'm still thinking around this question, in which member states is the free mandate understood as a constitutional status right of members of parliament with a consequence that limitations on that right must themselves be constitutionally justified? That is my main question. And I mean, I'm still missing the central constitutional argument that would justify the establishment of an external oversight body as a legitimate restriction of the free mandate. This I don't see.
That there are examples like in France where they do it like that, okay. But if the free mandate is understood as a constitutional guarantee of parliamentary independence, where exactly is the balance struck between that principle and the significant constraints that external oversight mechanisms inevitably impose on elected representatives? In other words, why should such constraints be regarded as justified rather than as an undue interference with parliamentary autonomy? And furthermore, according to which substantive standards would an ethics body exercise its oversight? And who determines these standards?
And what source of democratic legitimacy do they rest?
So, yeah, that is my main point, honestly. So, now, colleagues, those who are remotely connected, just raise your hand and if you are still there and if you want to answer that question. Jolita Miliuvienė from Lithuania, please.
Jolita Miljuviene
Yes, hello. First of all, thank you very much for this discussion.
As Lithuania was mentioned a few times during the discussion, I decided that I will join it. And in fact, one of your questions that you posed to the national experts now links us to the beginning of the discussion when the president of the committee, the chair, asked why do we speak more today about the constraints to the free mandate than the free mandate itself. But in fact, I would think that we recognize the free mandate of the parliamentarian as something natural that comes with democracy itself, that it cannot be dissociated from the activities of the parliamentarian functions.
And I agree very much with your questions and with your suggestions that all the limitations and constraints must stem from the constitution. And namely, at least in Lithuania, the jurisdiction which I represent now, the Constitutional Court was the first institution that shifted the perspective in interpreting the constitutional provisions linked to the free mandate of the parliamentarians.
In the very early years, it was necessary to strengthen it, to recognize it, and to say to everybody that it is the institutional guarantee necessary to ensure the independence and the possibility to act as a representative of the nation. But very, but after the few years, there was a real necessity while deciding the constitutional justice cases to draw alongside some limits to the free mandate and to make the parliamentarians, the lawyers, and the state understand that there are also the limits, and those limits stem from the Constitution.
And in all the cases that we have in Lithuania, the constitutional cases, we have several of them on a very different aspects, all the restraints were grounded on the provisions of the constitution, on the separate constitutional values. And it's the privilege to be the part of this project because what you debate now in the EU level, a lot of questions, a lot of aspects, we do it at the national level, so I do hope that all the study will be helpful for all of us. Thank you.
Speaker 34
Thank you very much. Any other speaker who would like to come in?
Luca Ciubotaru from Romania.
Luca Ciubotaru
Chairs, Simon, distinguished participants, indeed also Romania was mentioned and thank you for this opportunity. First of all, I have to mention that in Romania we have a express provision regarding the prohibition of imperative mandate. So from a constitutional point of view, we have this prohibition of imperative mandate. We don't have an express mention of the representative mandate and it is not regarded as a right of the members of the national parliament.
When it comes to oversight bodies in Romania we have for example the National Integrity Agency which was established back before Romania joined the European Union. And the law establishing this oversight agency was challenged before the Constitutional Court several times regarding its powers, regarding its mandate and so on. And in all this case law the powers of the oversight agency were related to the value of the rule of law in the constitutional case law.
So it was not necessarily a balance between the free mandate and a constitutional justification of an oversight body. But in several cases, for example, the Constitutional Court of Romania limited the powers of the oversight agency when it comes, for example, to jurisdictional powers or when it comes to the access to a court because in the end these acts of the oversight agency are administrative acts which can be challenged before a regular court. And the most recent decision which was also mentioned at the beginning of this discussion was the one regarding the asset declarations and interest declarations and the publication of the whole data.
After this decision indeed the MPs don't have to declare anymore data regarding their spouses for example or other relatives. But the agency still processes all this data and we certainly need more clarity on the governance of this big data, the procedures, the guarantees, the safeguards.
And at the same time, even though the Constitutional Court did not mention that every declaration that would be published would contradict, for example, the right to privacy, it left some space for a future legislative bill where certain categories of persons could be included in this modification. So from a broader view, in the constitutional framework, we don't have any national practice where there was a balance between the rule protecting free mandates and, for example, the existence of an oversight agency, but there were limitations that were drawn during the years in each case that was challenged before our national Constitutional Court. So yeah, thank you for this opportunity once again.
Catherine Warée
Yes, good morning, Mr. Chairman, dear participants, can you hear me? Okay, sorry, thank you very much. I want to add one suggestion maybe when it comes to your question. We have something in the Luxembourgish Constitution, Article, sorry, Article 62, which says that members of parliament vote without referring to their constituents, so this is the free mandate part of the sentence.
And then there is a second part to this provision which says that members of Parliament may consider only the general interest. And I think, I don't have unfortunately any constitutional case law that would come to support this suggestion, but I think this is actually where we can find, at least on the Luxembourgish constitutional law, a justification for any limitations or adjustments that would be made to the principle of free mandate. So it would be this consideration for the general interest, which is an obligation for the members of Parliament.
Sven Simon
Yes, but wouldn't be the interpretation the exact opposite? It protects the free mandate. And what we try here is that somebody tells me what I must not do or who I do not have to meet or whether I'm rich or not and run or not.
Catherine Warée
Yes, so I'm not saying this provides like a full practical answer, but I think when if you have this requirement, so or this limitation, may only consider the general interest, you still need tools to ensure that precisely this general interest remains the main consideration.
Sven Simon
I mean the problem we face as members is that there are tensions and there is a trend to establish external bodies who tell us who to meet and what to say and whether we arrive here by plane or by train because for moral standards it's unacceptable that too many members take the plane and this is leading in this direction. So and there I cannot find the the constitutional argument why that should be justified to restrict this Article 62 of the Luxembourger Constitution where I think the free mandate is is contained and and also this general serving in the general interest makes it even stronger in a way because it is not like sometimes people may think that when I have a discussion with the tobacco industry then I follow their recommendations. No, I have to wage balance, listen to others and then in the sense of common interest take my choice.
And this is exactly what I think is the free mandate about. Okay, do we have any other speakers remotely connected? Who wants to take the floor? If that is not the case, then I would pass the floor to our two speakers in the room.
Maybe you focus in your final words on that central question, constitutional argument that would justify the limited restrictions on the free mandate, and who determines the standards and on what source of democratic legitimacy do they rest if there is an external body who defines standards.
Petra BARD
I think you touch upon such an obviously fundamental point that hasn't been addressed by national constitutional courts because it was taken for granted, but it shouldn't. So I very much welcome your question about that. And putting on my hat as a national expert, the fundamental law in Hungary explicitly prohibits binding instructions to members of parliament and protects MPs against recall and party-driven loss of mandate. But this is it.
I don't have a proper answer from the jurisprudence of the constitutional court to your question. So in that regard, I almost see the concept of the free mandate versus accountability as two sides of the same coin, as we have emphasized they are not excluding each other. It's more like a militant democracy approach.
So the idea is to ensure that the free mandate rests in place, there is still parliamentary autonomy, but it's still compatible with democratic values that justify the democratic principle of the free mandate in the first place. Because if we are internally killing democracy by speech that is going against our values that are enshrined in Article 2 of the Treaty on the European Union, then we contribute to the killing of democracy, which would allow and which would oblige members of the European Parliament to have a free mandate. So if there is not a general underlying consensus about these democratic principles, then the whole system collapses in a way. I'm not sure whether...
Sven Simon
My problem is what I always hear between the lines when you say that there needs to be an external authority which protects members.
And this protection is done through, I mean, moral, ethical standards which are recommendations or can even be enforced to protect the member. And that leads to the situation the free mandate can only be really free if an external body explains the members what to do and what not. And this doesn't make sense for me because they are generally free. This party thing is another question, yeah, but all the others who I meet, what I do, this puts such a pressure on members that they are not free anymore.
You cannot imagine what in I think in some member states you in in those transparency registers that you have to make public with whom with which lobbyists you speak. That is such an I I really feel bad in a way that that takes all the freedom away because of course it is in the end used or misused to for political justifications or not. Because of course the political opponent will later say, oh he took that decision because he met XYZ. And freedom would mean I'm responsible and I have to justify my decision and to whom I talked to I'm accountable, held accountable in the end.
And and the whole methodology is also that we are not participating in the in the human rights catalogue in a way. No, the freedom of of the freedom of mandate is is a status right which guarantees the freedom and in the end we can be held accountable.
In the form of elections.
Konrad Lachmayer
As you said, freedom comes with accountability. I fully agree.
And here's the question how to guarantee this accountability. I think this is this is one of the the core issues because... In the elections. Just a second. Because here again comes party politics in because maybe the party will be accountable but the individual member of parliament might be still be on the list but will not be held accountable although violating all these standards.
But just to start with an example here which refers to corruption, yeah? Free mandate does not protect corruption. Because why?
Because corruption is destroying the functionality of the parliament. So it's not the aim that members of parliament uses their freedom to be bought by other actors, that they can influence the parliament in the way we do not want a parliament to work. So, and here's the question, how can we protect the parliament for corruption, for example? And I think, as you know, all these kind of lobby register transparency, all these other assets topics, they are not just there to limit you in your personal freedom.
It's there to guarantee, for example, not only, but for example, to prohibit corruption. So transparency, the verification of transparency, these are all kind of mechanism who should support democracy in parliaments and should not distract parliamentary democracy. I would just also like to answer your question about external supervisory bodies.
For me, they are not somehow out of a constitutional system, but they have to be integrated in a constitutional understanding of checks and balances, of institutional balance between different powers. So when it comes to an establishment of such an external oversight body, it has to be the parliament who has to clear the rules of this external supervisory bodies and limit the powers of the external body. It's the parliament who is nominating the members of this oversight bodies. It's the parliament and who will these oversight bodies be accountable to? The parliament.
So the democratic legitimation has to be directly linked to the parliament, although it has an oversight over the parliament, but it's interrelated to the parliament.
And then there is the last dimension, which are the courts. So it's a more complex system of checks and balances, so the oversight bodies, they should not have the final say. So in the end, then the courts also come in to clarify that rule of law standards, which are established by the Parliament, are complied with by these oversight bodies.
And I know, here this is the question of limitation of power overall and how we are able to manage power in a complex democracy, but I think this would be the way to justify external oversight bodies.
Sven Simon
Yeah, but in theory maybe, these are theoretical thoughts, but you must keep in mind that the member lost the mandate already before the court can take the decision, like in Eva Kaili's case. The other transparency cases which we have, we have meanwhile I think 56 immunity cases in the house in this term, two years, 56.
And part of them comes through those transparency law where members are accused that they participated in a cocktail reception by a lobby group. They did not. They have been in Italy. But it takes them political credit or they are fighting and focusing in their mandate for one year on defending themselves in the press, in the media, in front of our committees here, and they cannot do their job. They don't have any free mandate anymore.
This is the problem we face much more than the scandals are really there. That is my problem, that the balance is out of order.
Petra BARD
From the voter's perspective, I think it is absolutely important to be able to make informed choices. And if we only see the outcome of a policy choice, then we don't know how it was reached, maybe via corruption, maybe the goods that are imported into the European Union are done in sweatshops, whatever.
We don't have access to enough information. This is also the answer to my question regarding disinformation, even though parliamentary speech should be the most protected speech and I think this should be taken out of the equation. But in general, disinformation has its limits when people are not able to make democratic choices, when they cannot meaningfully participate in democratic deliberation because they don't have access to information. And how do you have access to information if you don't have all these bodies here, as an ordinary citizen you cannot scrutinize your representative, can you?
Sven Simon
I don't want to have it in a bilateral. I mean, information, yes and no, because if in the transparency register you see that I met a lobbyist from VW Automobile, so then they would say, ah, this is the reason why he's in favor of the combustion engine. But the whole conversation, one hour, was about electric cars and why we should support that.
And this is why my impression is more and more, all under the flagship of this transparency, is more and more to, in a way, not be better informed as the voter, but to manipulate the kind of information flow.
Gabriele Bischoff.
Gabriele Bischoff
First of all, I would like to highlight that these rules on transparency were not imposed by any agency, but it was a decision with a majority of component members to do so, and with a lot of deliberations beforehand. And I think it makes a difference also the way the rules are done. And on the other hand, if we say freedom of mandate and accountability always has to be brought in a good balance.
And I think this is the attempt and was the attempt especially after huge cases were debated publicly. And this question, is there enough accountability, was there? I have to say personally, I find transparency a very helpful, you said, informed decisions because my constituency, they can see whom I meet and that I meet also different sides to also come to balanced decisions when we do legislation.
They can see that you hear different sides. So this can also be part of increasing in a democracy that also your voters can have a look or anyone in the constituency to get a balanced picture. And we don't have cases and we don't have problems at the moment if we look, as you mentioned, indeed, recently, not because they met a company. I mean, the cases or the questions are about then other things connected to it.
And I think here I think there is not a perfect balance. It will always be something that has to be seen and re-evaluated but is very important as we can see that many people out there have the feeling that democracy is not delivering for them. And that is politically very dangerous. And this is also why our house needs to develop mechanisms.
And I think you can always, we always have to evaluate, does it deliver what we intend to or not? But I see it as an added value to have this and also to evaluate after some time, does it work, does it not work? And also to see that transparency for me is something different. And if the rules are done by the members of this house, then it would be imposed from the outside, which is not the case here.
Sven Simon
Okay, thank you very much. Now we have the last final remote speaker, Mr. Spieker from Germany.
Luke Dimitrios Spieker
Thank you very much. I just because you were thank you Mr. Chairman I was just thinking maybe about your conceptual framework with regard to status rights. Because as far as I understood you're you're seeing status rights as a certain you're opposing the free mandate with regard to other interests. But if we actually look into the jurisprudence of the German Constitutional Court where the system of status rights actually emerged or the German constitutional system we see actually that the concept of status rights serves one purpose.
It actually tries to integrate the free mandate into the broader functioning of representative democracy and the functioning of parliament. So why does the German Constitutional Court refer to status rights to actually say well what's their purpose they serve actually or the free mandate needs to serve the functioning of parliament and representative democracy. And that's then also the rationale where the limits come from or how actually the free mandate needs to be concretized.
So I wouldn't, if you're actually relying on the concept of status rights, I would say it's actually maybe not the best approach to kind of have these two sides and balance them as conflicting with each other, but it's rather the other way around. The free mandate is subjugated, as the German Constitutional Court said, to the functioning of parliament. And I think that's very important. And then always the central question is what does functioning of representative democracy and parliament require specifically? That's obviously a context-dependent question and analysis.
But I mean, obviously because we were referring to transparency, there are multiple studies that show that transparency requirements increase trust in parliament. And the German Constitutional Court for instance, again I'm just speaking for one jurisdiction here, said: "Die Wähler müssen wissen, wen sie wählen."
The voters need to know whom they vote for. And that then concerns also the interests they're representing and the people they meet probably. But again, this is a context-dependent assessment that then requires specific studies probably in each of these limitations. Maybe one last point, and I think that's, Mr. Chairman, where your biggest concern lies as far as I'm aware, is who enforces this?
And again, maybe the German system can be illuminating here, because in Germany this system is enforced mainly through parliament itself, the president. Obviously in Germany we had a discussion whether this leads to under-enforcement because it is enforced by parliamentarians themselves who maybe have not an interest to be bound themselves, or it could lead to selective or politicized over-enforcement because they actually want to punish other parties or limit their freedom. In Germany at least we cannot see neither, we cannot observe neither an over- or an under-enforcement. And why is that? Because in the presidium of the Bundestag, actually all major parties are represented, except one, but all major parties are represented.
So there are some internal checks and balances that lead to a, I would say, an equilibrium in enforcement of these rules and a certain, well, check on the other parties.
So there is a certain let's let's say equilibrium established through these parliamentary mechanisms. And obviously at the very end there's always judicial review. Thank you.
Sven Simon
Thank you very much. So, now a final word from our two panelists, Professor Bart, Professor Lachmayer, who wants to be first and the very last word, I don't know, it's up to you.
Konrad Lachmayer
Thank you so much. I would like to stress that and it was mentioned in the discussion that these challenges are increasing.
So I think it's a very important topic to address it and to stick, to find solutions. And what we maybe have seen is that solutions cannot be only legal, but law has also to deliver and to contribute to the challenges which we are facing.
We also need some kind of a basic consensus of democracy that people or also members of parliament would like to keep up democracy, which is the core topic here. But due to, yeah, more complex society, technological tools, just thinking about AI, this situation will not go away but will get more and more complex. And still decisions have to be made and democracy has to be kept up. Thank you so much.
Petra BARD
Thank you very much. I think Professor Simon put a finger on a very important point, that whichever rules we implement and introduce, it can be abused. And of course, every single law that the European Parliament passes or co-passes with other institutions has to be, has to be made abuse-proof in a way.
And of course, you can challenge the abuses via political means, for example, going to the media and challenging the abuse, or in extreme cases, of course, you can judicialize and there is always the protection of the law. I would just like to thank all our colleagues in 30 jurisdictions for their excellent country reports that they provided so that we could do the comparative analysis. And I would give a special thank to our colleagues from the Centre for European Policy Studies. So we've been some 40-plus people working in this report. I thank you very much for your feedback.
We will take this into consideration when drafting the final report. Thank you very much.
Sven Simon
Yes, indeed. Thank you very much. The draft study will be further developed in light of today's discussion.
Once again, I'd like to thank our experts and all participants for their valuable contributions. I'd like to thank the interpreters. I'd like to thank the audience, who was a bit broader today than usual. Thank you very much. Our next meeting takes place on 15 July.
The meeting is closed.
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