Brian Hayes (Dublin South West, Fine Gael)

Senators John Gilroy and Thomas Byrne have made the point exactly. It relates to persons acting in an official capacity in so far as he or she is a board member of the ESM. If the former Italian Prime Minister, Mr. Berlusconi, was a member of the board, he would have immunity only for his actions as a board member. It would not apply to anything else, which is the essential point. Senator Thomas Byrne is also correct in that the procedures in this respect are no different from those applicable in any other international organisation such as the IMF or the United Nations. In Europe there is the European Investment Bank and the European Bank for Reconstruction and Development, and the Asian banks are also no different.

The board of the fund will be a separate legal entity and in our case the Minister for Finance will be a member of it. My understanding is that the Minister for Finance in each of the countries that is a signatory to the treaty will be a board member. The Minister for Finance is a public entity and answers questions in the Dáil and the Seanad. It is not a nameless individual. I do not, therefore, have the same concerns as Senator David Norris on the issue.

Section 5 provides that the ESM shall have within the State the legal status, privileges and immunities set out in Article 32 of the treaty and the chairperson of the ESM board of governors, the governors, the alternate governors, directors, alternate directors, the managing director and other staff shall be immune from legal proceedings with respect to acts performed by them in their official capacity and enjoy inviolability in respect of official papers and documents. Article 32 of the treaty sets out that the ESM shall have full legal personality and capacity to acquire and dispose of movable and immovable property, contract, be a party to legal proceedings and enter into a headquarters agreement or protocols, as necessary, for ensuring that its legal status, privileges and immunities are recognised and enforced. It further sets out that the ESM, its property, funding and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process, except to the extent that the ESM expressly waives its immunity for the purposes of proceedings or by the terms of any contract, including the documentation of the funding instrument. It also provides that the property, funding and assets of the ESM shall, wherever located and by whomsoever held, be immune from search, requisition, confiscation, expropriation or any other form of seizure, taking or foreclosure by executive, judicial, administrative or legislative action. The archives of the ESM and all documents belonging to or held by it shall be inviolable. The premises of the ESM shall be inviolable and its official communications shall be accorded by each ESM member and each state which has recognised the legal status and the privileges and immunities of the ESM the same treatment as it accords to the official communications of an ESM member. To the extent necessary to carry out the activities provided for in the treaty, all property, funding and assets of the ESM shall be free from restrictions, regulations, controls and moratoria of any nature. The ESM shall be exempted from any requirement to be authorised or licensed as a credit institution, investment services provider or other authorised licensed or regulated entity under the laws of each ESM member.

As the ESM is an international financial institution, euro area member states agreed to give the ESM and those working for it - the governors, directors etc. - diplomatic privileges and immunities in line with other international financial institutions set up by international treaty. The privileges and immunities mainly relate to diplomatic immunity, taxation and exemption from any requirement to be authorised or licensed as a credit institution, investment services provider or other authorised, licensed or regulated entity under the laws of each ESM member. A Government order under the Diplomatic Relations and Immunities Act 1967 could not address in full the privileges and immunities provided for in the treaty. Therefore, they are provided for in the Bill.