MEPs AND LOSS OF IMMUNITY

The Rules of Procedure of the European Parliament precisely determines the way the MEP can lose his or her immunity: 

• After a competent authority of a Member State asks the EP President to waive the immunity of the MEP, this request is announced in plenary. MEPs have right to defend their immunities.
• The EP Committee of Legal affairs recommends the adoption or rejection of the request for the waiver of immunity or for the defence of immunity and privileges. The committee may ask the requesting authority clarify or to explain its demand.
• The committee presents the report where it may decide whether the requesting MS authority is competent and the request acceptable. The committee must not judge the MEP concerned, neither the opinions nor acts attributed to him or her that have been used by the authority to justify the request.
• The members discuss the reasons for and against each proposal on the next plenary session. After the debate, an individual vote is taken.
• The President immediately communicates Parliament's decision to the Member concerned and to the competent authority of the Member State concerned.

An MEP keeps their seat even if he loses his immunity

Firstly, a waiver of immunity is not a "guilty" verdict, it merely enables national judicial authorities to proceed. Second, even if found guilty, entitlement to sit as an MEP is a separate issue from that of immunity, with different Member States having different criteria for disqualifying members from holding an electoral mandate. As MEPs are elected under national electoral law, if an MEP is found guilty of a criminal offence, it is for the member state's authorities to inform the Parliament if the individual is disqualified from office.

INELIGIBILITIES CRITERIA IN SOME MEMBER STATES

Countries have set requirements determining who is entitled to run for office. These requirements usually involve age, nationality, place of residence, among others. Countries have also set disqualifying conditions. Within this framework, ineligibilities are circumstances which prevent a person from standing for elections. Ineligibilities may arise from the holding of certain posts or the exercise of certain activities. For example, in some countries, officers of the armed and security forces, Magistrates of the Constitutional Court, or members of the Audit Court are not allowed to run for elections. Ineligibilities can also arise from an individual civil law or criminal law decision.

One of the most common conditions preventing a person from being eligible for office is having a criminal record. Countries often consider factors such as severity of the crime, the time that has elapsed since the crime was committed, and the nature of the punishment. Some countries have also established specific ineligibility conditions concerning corruption practices (e.g. United Kingdom, France). The period of ineligibility may be prescribed by law, or may be decided on a case by case basis, where the judge will take into consideration the specific circumstances and the gravity of the case (e.g. Germany). In other cases, the ineligibility will last for the period of the sentence, which is the case in Spain and Ireland, for example. Other countries have taken a different approach and have not established any causes of ineligibility. Hence, the requirements for standing at elections are based only on ‘positive’ qualifications, such as age or citizenship (e.g. Sweden). In other countries, such as Finland, the lack of ineligibility criteria does not preclude the Parliament from deciding whether an elected candidate convicted of a crime is still worthy of the trust and respect required, but unfortunately there is no information available on whether the parliament has ever made use of such prerogative.

Denmark:  Any person who is entitled to vote in Parliamentary elections (18 years of age, legal capacity and permanently resident in the realm) is eligible to the Folketing (Denmark Parliament), unless s/he has been convicted of an act which in the view of the public makes him/her unworthy to become a member of Parliament (Sections 30 of the Constitution). The decision of whether a member of the Parliament has lost his eligibility is made by the Parliament (Section 33).

Finland: In Finland, since the amendment of the penal code in 1995, offences to the Code no longer lead to ineligibility. As a result, the right to candidacy is granted to all eligible voters, with the only requirement of being at least 18 years old. Nevertheless, if an elected Member has been sentenced to a term of imprisonment for certain types of offence, parliament can still vote whether the offence is still worthy of the trust and respect required.

France: In France the following persons are considered debarred from entering the electoral roll and therefore ineligible:

• Any person who is deprived of the right to vote and to stand for election in criminal cases for the period set in the judgment, (e.g. up to 10 years in the case of a serious crime);
• Any person convicted of offences against the public administration (accepting bribes, illegal promotion of interests, embezzlement, misappropriation, etc) for a period of 5 years from the date of the final conviction;
• Any person who has failed to return a declaration of assets, or failed to deposit his/her campaign accounts as required by the Electoral Code for a period of one year from the Constitutional Council’s decision determining the ineligibility.
• Likewise, any person who exceeds the limit for election expenses may be declared ineligible for the period of one year (Art. 128, Electoral Code)

Germany:  In Germany, candidates can be disqualified from holding pubic or elected office, including taking part in elections, in case of a criminal offence:

1. Automatically (during a period of 5 years) for any serious criminal offence sanctioned by the judge with at least one year imprisonment (Section 45 Criminal Code -CC);
2. (ii) Optionally for certain criminal offences such as breach of state secret, hindering elections, use of violence against voters, and certain bribery offences (bribery of voters under Section 108b CC, active and passive bribery of members of parliament under Section 108e CC, passive bribery of public officials under Section 332 CC). In this case, the judge will analyse the specific circumstances and decide whether the disqualification criteria applies and for how long

Ireland:  In Ireland, a person is precluded by the Constitution to stand for elections if by the time of the elections s/he is undergoing a sentence of imprisonment for any term exceeding 6 months.

Luxembourg:  According to the Article 53 [Non-Qualification] of the Constitution of Luxembourg, the following persons may not be electors or eligible for the time of the sentence or as determined by the Court:

• persons sentenced to criminal punishment;
• persons sentenced for minor offenses depriving them of the right to vote;
• persons of full age under guardianship.

Spain:  All Spanish citizens under the age of 18 years old are allowed to vote and to stand for elections, excluding those sentenced to imprisonment, who then are ineligible for the period of their sentence

Sweden: In Sweden, a criminal conviction is not an impediment to stand for elections. According to the law, any person who is entitled to vote is eligible for a seat in the Swedish Parliament. This means that every Swedish citizen, above the age of 18 years old, who is or has ever been domiciled within the Realm is entitled to vote and therefore entitled to run for office.

United Kingdom: In the United Kingdom, certain people are disqualified from becoming a Member of the Parliament, including those:

• serving a prison sentence of more than one year;
• found guilty of certain electoral offences (i.e.: corrupt or illegal practices) by the Electoral Court.
• The disqualification for membership of the House of Commons lasts for the time of pursuance of the sentence.