C-5/68

1. Theimmunity fromlegal proceedings entitled to the immunity in the per­ referred to in Article12(a) of theProtocol formance of the tasks of the institution on thePrivileges and Immunitiesof the to which he belongs; in thisresepct there European Communities (Article11(a) of is nonecessity to distinguish between the the Protocol on thePrivileges andIm­ actual exercise of normal duties or those munities of theEAEC) is intended to prescribed under the Staff Regulations ensure that theofficial activityof the and an actperformedon the occasion of Community andof itsservants is the exercise of those duties if the position shielded from examination inthe lightof is that theact in question serves directly any criteria basedon the domesticlawof for the accomplishment of a Community Member States so that theCommunity task. mayaccomplish its taskincomplete (b) Driving a motorvehicle cannot be independence. covered by immunityfromlegal pro­ ceedings save in the exceptional cases in 2. (a) The immunity from legal proceedings which thisactivity cannot be carried out only covers acts which, by their nature, otherwise than under the authority of the represent aparticipation of the person Community and by its own servants.

In Case5/68

Reference to theCourt under Article150 of the Treatyestablishing the European AtomicEnergy Communityby theBelgian Courde Cassation (Second Chamber) fora preliminary rulingin the actionpending before that court between

1 — Languageof theCase:French. 2 — CMLR.

JUDGMENT OF 11.7. 1968— CASE 5/68

Claude Moïse SAYAG and S. A. Zurich

Registrar:A.Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I— Facts and procedure legal proceedings'and that 'the fact that MrSayag, an official ofthe Commission, The facts and proceduremay besumma­ was driving amotor vehicle does not rized asfollows: constitute an act performed in his official Mr Claude Moïse Sayag,an engineerin capacity within the meaning of Article charge of certainworks at the Commission 11(a)of the Protocol on the Priv­ oftheEAEC, was sentenced on30 March ileges and Immunitiesannexed to the Treaty 1966 bythe Tribunal Correctionnel, Brus­ establishing Euratom. In thisrespect he sels, to various penalties for havingon25 does not, in the opinion of the Commission, November1963 at Herselt, in Belgium, benefit from immunity from legal pro­ caused a road accident with his privatecar, ceedings... in which MrJean-Pierre Leducwas injured. The case then went to the Cour d'Appel, TheTribunal Correctionnel, Brussels, re­ Brussels, which in its judgment of 21 De­ jected Mr Sayag's plea of inadmissibility cember 1966, with particular reference to based on his alleged immunity from legal theimmunity from legal proceedings proceedings; the court based the reasons claimed by Mr Sayag, held as follows: for its decisionin particularon two letters 'The accused maintains that the logical fromthe Commission of the EAEC in interpretation ofthe words "acts per­ whichthe Commission pointedout that formed.. . in an official capacity" is that an 'the relevant departments ofthe Com­ official of Euratom carries out an act in his mission consider that it is not appropriate officialcapacity every time "he is acting in in this casetoinvoke immunityfrom the performance ofhis duties".

This interpretation isonly justified ifthe act oral arguments deliveredmay be summar carried outin theperformance of dutiesis izedas follows: specified in greater detail and if thereis (1)Theappellant inthe main actionMr therebyunderstoodany actwhich byits Sayagpoints out thatit follows fromArti nature arises fromthe duties, that is tosay, cles11 and 17 of the Protocol on the Pri any actcarried out in the actualperform vilegesand Immunities of theEAEC that ance ofduties.' immunity from legal proceedings is justified On appealagainst this decision, the Belgian essentiallyby the necessityof not hampering Cour de Cassation(Second Chamber)on servantsof the Community in accomplish 12February 1968asked the Court, inappli ing theirtasks; itis intended to enablethem cation ofArticle 150 of theTreaty establish toperform their dutiesunder the most ing the EuropeanAtomicEnergy Commun favourableconditionsand ceases when the ity, to rule on theinterpretation to be given officialmay, without prejudicing his tasks, to Article 11(a) ofthe Protocol onthe beconsidered as a private individual. Privileges andImmunities annexedto the Immunityfrom legal proceedingsdoes not Treaty establishing theEAEC—now Article cover traffic offences committed by an offi 12(a) ofthe Protocol annexedto the Treaty cialoutside the performance of his duties. establishing aSingle Council and aSingle Ontheother hand, an official iscovered by Commission oftheEuropean Communities thatimmunitywhere the infringement was —and, moreparticularly, to state 'whether committedwhen he was acting inan official the immunity fromlegal proceedingspro capacity,even whiledriving his private car. vided forby thisprovision is applicable to Therestrictiveinterpretation upheld by the officials andservants of the Community judgment of the Cour d'Appel, Brussels, when theacts giving rise tolegal proceed cannotbe maintained. So that the immunity ings were carried out by themduring the fromlegal proceedings may take effect, it is performanceof their duties andhave some notnecessary for the act inquestion to be relationship withtheirvocational activities inherentin the dutiesperformed by the or whether theimmunity only coversacts servantwithin theinternational organiza constituting the actual performanceof their tion it is sufficient for there tobe a relation

In this case, in fact, Mr Sayag,one of theappellants in the main thereis aparticularly close relationship action,by therespondentsin the main betweenthe journey—and therefore the action, by the Government of theKingdom offencecommitted during that journey— ofBelgium and by the Commissionof the andthe mission with which the servant is European Communities. entrusted,thejourney beingnecessary to The sameparties inthe mainaction andthe the performanceof the mission. Commission presented oral argument atthe Inthis case, Mr Sayag drove to Mol in his hearingin opencourt on29May 1968. privatecar in order to carry out the task The Advocate-General deliveredhis opin mentioned inhis travel order which pro ion at thehearing on11 June 1968. videdfor his using his own car.

JUDGMENTOF 11.7. 1968 — CASE5/68

principle that any exception mustbe inter ities of the EAEC isapplicable to officials preted restrictively; as immunity from legal andservants ofthe Community whenacts proceedings constitutes aderogation from giving rise tolegal proceedings werecarried ordinary law,it must be given a strict inter out bythem in the performance oftheir pretation. duties andhave a relationshipto their offi TheGovernment maintains that the words cial activities. 'acts performed by them in their official (2) The respondentsin the main actionmain capacity' are clearly muchmore restrictive tain that theimmunity in favourof officials than theexpression 'during their official of Euratom provided for in Article 11(a)of activities'.

Such exemptions nature arisesout ofthatduty, that is tosay, are granted exclusively in the interestsof the anact peculiar tothe dutyasdefined by the organization. Immunity of international Community, to theexclusion of anact officials fromlegal proceedings is distin carried outduring the performance of the guished from that of diplomatic agents by duty but whichdoes notform part thereof. the fact that it constitutes neither an abso Finally,the respondents in themain action luteprivilege covering private activities nor

apersonal privilege. such a nature as toremove from thejuris The systemof privilegesand immunities diction ofnational courtsan official who, in provided bythe Treatiesestablishing the a sphere linkedto the application of the Communities isvery clearlyinspired from Treaty or thefunctioning of the institutions, the generaltendency towards restriction carries outan actrelated to the specific sinceit putsin theforeground theinterests, duties conferred upon him by the institution not ofthe official, but of theCommunity. to which he belongs.

Clearly the Court in Case 6/60(Humblet)ruled that offences againstroad traffic regulations, the Protocol createsa subjective right for committed by officials driving their private the benefitof officials of the Communities. cars, do not comewithin this category of (c) Asregards the questionwho isempow acts, even if the journey wascarried out ered to describe theact as officially per during hours of duty in order to travel from formedor not, theCommission takes the one placeof work to another. view thatit is forit, subject to reviewby the (e) The use of a private means of transport Court, to state, inthe firstplace, whether the is not one of the specificduties of an official conditions forthe applicationofimmunity charged with taking part in a meeting or from legalproceedings are met,in other carrying out a task outside his personal words whether the actfor which theofficial place of work. is prosecuted was accomplished oreffected When anofficial uses his private car,he is in his official capacity. acting forreasons of convenience which are When theanswer tothatquestion is in the foreign tothe interests of the service and the affirmative, it isfor the Commission to performance of officialduties.

It is action on the part ofthe State when he only a question of a simplemeans of estab makes a statement, orally or in writing, or lishing the cost of transport to be borne by carries out anact within his powerson the Community. behalf of the Community and its interests. In conclusionthe Commission takesthe Article 11(a) oftheEAEC protocol is of view that the immunity from legal proceed-

According to this judgment the Courtis askedto rule 'whether the immunity from legal proceedings provided for by this provisionis applicable to officials and servants of theCommunity whenthe acts giving rise to legal proceedings were carried outbythem duringthe performance of their duties and havesome relation­ shipwith their vocational activities orwhether the immunity only covers acts constituting theactual performance oftheir normal duties or thoseprescribed under theStaff Regulations'.

It appearsfromthe file submitted to theCourt that the actionbefore the court making thereference concernsa traffic accident causedby an official of the Com­ munity when, inpossession of a travelorder, hewas driving his private motor car during the performance of his duties.

The action raises the questionwhether, inthe present case, theact concerned was carried out in anofficial capacity withinthe meaning ofthe provisions referred to.

Article191of theTreaty establishingthe EAEC provides that: 'TheCommunity shallenjoy in the territories ofthe Member States suchprivileges andimmunities as arenecessary forthe performance of their tasks under the con­ ditions laid down in aseparate protocol'.

Effect was givento this provision bythe Protocolonthe Privileges and Immunities

SAYAG v LEDUC

Inthis respect that article provides, in thesecond paragraph,that the institutions are tobe required towaive theimmunity accorded to an officialor otherservant underArticle12(a) ofthe Protocol (Article 11(a) ofthe former Protocol) wherever they considerthat the waiver of suchimmunity isnot contrary to the interests of the Communities.

Itfollows from all these provisions read together that the application of immunity fromlegal proceedings dependsnot only onthe capacity of the person claiming it but alsoon the nature of theactivity byvirtue ofwhich immunity is claimed.

According to Article12(a) of theProtocol (Article11(a) of the former Protocol) an act performed by an official or other servantdoes not give rise to immunity from legalproceedingsunlessit wasperformed inan official capacity, that isto say, within the frameworkof thetask entrustedto the Community.

JUDGMENT OF 11. 7.1968 —CASE 5/68

In excluding thejurisdictionof thenational courts of Member States, subjectto the application of the second paragraph ofArticle 18of the Protocol (thesecond paragraph of Article17 ofthe former Protocol) the provisions referred to above are intended toensure that the officialactivity of the Community and ofits servants is shieldedfrom any examination inthelight ofany criteria based on the domestic lawof Member States,so that such activity may be carried out in full freedom in accordancewith the taskentrusted to the Community.

Theimmunity from legalproceedingsconferred on officials and other agents of the Community thusonly covers actswhich, bytheir nature, represent a participa­ tionof the personentitled to the immunity inthe performance of the tasksof the institution to which hebelongs.

Upon readingthe pleadings; Upon hearingthe report of theJudge-Rapporteur; Upon hearing the observations of theappellant Sayag, the respondentsin the main action, theGovernment ofthe Kingdom of Belgium and the Commission of the

SAYAGv LEDUC

European Communities; Upon hearing the opinion of the Advocate-General; Having regard tothe Treatyestablishing theEuropean Atomic Energy Com­ munity, especiallyArticles 150, 188and 191; Having regardto theProtocol on the Privileges andImmunitiesannexed to the Treaty establishing theEuropean AtomicEnergy Community,especially Articles 11, 15 and17; Having regardto theTreatyestablishing a Single Council anda SingleCommission of the European Communities,especially Article 30; Having regard to the Protocol onthe Privilegesand Immunities of the European Communities annexed to theTreatyestablishing aSingle Council and a Single Commission of theEuropean Communities,especially Articles 12, 16 and18; Having regard tothe Protocol on theStatute of the Courtof Justice of the Euro­ peanAtomicEnergy Community,especially Article 21; Havingregard tothe Rulesof Procedure ofthe Court of Justice of theEuropean Communities,

THE COURT

in answerto the question referred toit bythe Belgian Cour deCassation by a judgmentof that courtof 12 February1968, herebyrules:

1. Theimmunity from legalproceedingslaid down by Article 11(a) of the Pro­ tocolon the Privileges and Immunities of theEAEC (Article 12(a) of the Protocol onthePriveleges and Immunities ofthe European Communities) applies exclusively toacts which, bytheir nature,represent a participation of the personclaiming immunityin the performanceof thetasks of the in­ stitution to whichhe belongs;

A. Van Houtte R. Lecourt

Registrar President