C-9/69

JUDGMENT OF THE COURT 10 JULY 19691

Claude Sayag and Another v Jean-Pierre Leduc and Others (Reference for a preliminary ruling by the Belgian Cour de Cassation)

Case 9/69

Summary

EAEC — Non-contractual liability — Compensation for damage caused by servants of the Community in the performance of their duties — Driving of a private car by a servant while on duty — Activity in principle not included in the performance of the duties of such servant. (EAEC Treaty, Article 188)

The performance of the duties of a ser­ case of force majeure or exceptional cir­ vant of the Community, within the cumstances of such overriding impor­ meaning of the second paragraph of tance that without the servant's using Article 188 of the EAEC Treaty, does private means of transport the Com­ not in principle include the use of his munity would have been unable to carry private car while on duty except in the out the tasks entrusted to it.

1 — Language of the Case: French.

JUDGMENT OF 10. 7. 1969 — CASE 9/69

THE COURT

composed of: R. Lecourt, President, A. Trabucchi (Rapporteur) and J. Mertens de Wilmars, Presidents of Chambers, A. M. Donner, W. Strauß, R. Monaco and P. Pescatore, Judges,

Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

I — Facts and procedure tice of the European Communities for a preliminary ruling on the problem of The facts and procedure may be sum­ immunity from legal proceedings. Judg­ marized as follows: ment on this first question (Case 5/68) On 25 November 1963, Mr Claude was given on 11 July 1968. The Cour Sayag, an official of the European Atomic de Cassation considered that although it Energy Community, caused a road acci­ could be concluded from this judgment dent in Belgium while driving his private that when this accident occurred Mr car from Brussels to Mol. He was in Sayag was not enjoying the immunity possession of a travel order which pro­ from legal proceedings provided for in vided for the use of his own car. Article 11(a) of the Protocol on the Mr Jean Leduc and Mr Arnold van Privileges and Immunities of the EAEC, Hassen, who were passengers in Mr the judgment did not rule on any pos­ Sayag's car, were injured in this acci­ sible liability on the part of the Com­ dent. munity. By a judgment of 17 February When prosecuted before a Belgian court, 1969, therefore, the Court of Cassation Mr Sayag contested the admissibility of decided to stay the proceedings pending the prosecution and claimed the im­ a preliminary ruling by the Court of Jus­ munity from legal proceedings provided tice of the European Communities: for in Article 11 of the Protocol on the on the interpretation to be placed on Privileges and Immunities of the EAEC. the second paragraph of Article 188 and He referred in addition to the second on Article 151 of the Treaty establishing paragraph of Article 188 of the Euratom the European Atomic Energy Com­ Treaty, under which the Community is munity, by defining the meaning of the alone liable for the act of one of its term "in the performance of their servants in the performance of his duties" and, where an act giving rise to duties, and claimed that only the Court a claim for damages has been committed of Justice had jurisdiction in this in the performance of his duties by a matter. servant who was not acting in his official As these objections were rejected by the capacity, by ruling whether such an act Tribunal Correctionnel of Brussels and, renders the servant personally liable or on appeal against this decision, by the whether his liability is absorbed by that Cour d'Appel, the Belgian Cour de of the Community and, if necessary, by Cassation first asked the Court of Jus- specifying the legal system applicable to

opinion on 1 July 1969. which an official performs, albeit wrong­ fully, an act which in itself forms part of the specific powers conferred on him II — Summary of the obser­ by the Community. vations submitted under The Belgian Government consider that Article 21 of the Statute the legal scope of the expressions 'in their official capacity' and 'in the per­ formance of their duties' is the same in The observations submitted under Article 21 of the Statute of the Court may be the system established by the EAEC summarized as follows: Treaty and in the Protocol on the Privi­ leges and Immunities. The correlation established between A — The interpretation of the term 'in Article 11 of the Protocol and the second the performance of their duties' paragraph of Article 188 of the Euratom The plaintiffs in the main action observe Treaty, the purpose of which is to give that the case-law of the various member to those suffering damage who are faced countries broadly accepts the concept of with the immunity from legal proceed­ a wrongful act committed by administra­ ings of an official of the Community a tive bodies in the performance of their right of action against the Community, duties. implies that these two articles refer to As regards Community law, the plain­ the same eventuality, that is, that a ser­ tiffs emphasize that the scope of the vant of the Community acted in the second paragraph of Article 188 of the performance of duties which were within Euratom Treaty, which refers to acts by his official capacity. officials in the performance of their This conclusion is confirmed by the tact duties, is wider than that of Article that various protocols on the privileges 11(a) of the Protocol on the Privileges and immunities of international institu­ and Immunities, which provides for tions use the two expressions referred to immunity from legal proceedings only above without distinction. in respect of acts performed by officials The voluntary use by an official of his in their official capacity. private car cannot therefore be regarded Moreover, it is also apparent from the as an act arising out of the performance judgment of the Court of Justice of 11 of his duties. July 1969 in Case 5/68 that, when the The Commission of the European Com­ accident in question occurred, Mr Sayag munities emphasizes the marginal nature, was performing his duties. This judg- in relation to the task of the Communi-

ties and the liability which they may sate third parties, it could recover in full assume in the performance of their from the official concerned any sum specific tasks, of the problem before the which it had paid out. Belgian court of liability for a road acci In order to find the basis of this special dent. The rules of the Treaty on liability rule the Commission seeks, first, to de and the jurisdiction conferred on the fine the scope of the expression 'general Court were not conceived in terms of principles common to the laws of the such cases; their essential aim is rather Member States' can only constitute a to determine the liability of the Com common denominator in the national munities in carrying out their tasks of laws and maintains that the general preparing regulations, of administration, principles common to the laws of the supervision and re-adjustment and, only Member States' can only constitute a secondarily, to make good damage caused subsidiary source of Community law, as by physical acts. the liability of the Community must first The fact that since the establishment of be determined according to the rules of the Communities no legal proceedings Community law and the requirements of have been instituted raising the issue of the European Communities themselves. liability of the Communities for acci As regards the general trends shown by dents caused by officials using their own national laws in this matter the Com cars to go to the place in which they mission acknowledges that, with the ex are required to carry out their tasks, ception of German case-law, the courts constitutes, in the view of the Commis of the Member States interpret very sion, important evidence of the fact that liberally the concept of 'performance of the legal solutions of the problems con duties', primarily in order to give the nected with accidents occurring in such victims recourse to a debtor who is sol circumstances are adequate from an vent. However, in the great majority of objective standpoint. cases the decisions of the national courts The Commission maintains that its regarding road accidents concern acci officials and servants are never bound to dents caused by service vehicles.

When mentioned Article 12(4), if the Com an act giving rise to a claim for damages munity found itself bound to compen- is imputed to the Community, the Com-

munity avoids both the jurisdiction of However, in its oral observations the the national court and the application of Commission limited the scope of this the national law. As these two excep­ identity of meaning and maintained tions derogate from the common law, it that it was claimed primarily for a case is necessary to interpret restrictively the in which an official used his private car, corresponding competence conferred on and could not apply to any other cases. the Community in this connexion. B — The personal liability of a servant When the act which gives rise to a claim who has committed an act giving for damages is the act of a specific rise to a claim for damages in the official it is necessary, in order to justify performance of his duties these exceptions to the common law, for the act to have been performed by the In the opinion of the plaintiffs in the Community itself in the exercise of its main action the fact that the member privileges or for it to have been necess­ countries amended Article 40 of the ary to the running of the departments. ECSC Treaty, which provided for the In the case of an accident caused by an personal liability of a servant, in order official who is voluntarily using his to bring the wording into line with that private car on a mission the link between of Articles 215 of the EEC Treaty and the requirements of the service and the 188 of the EAEC Treaty, shows that act giving rise to the claim for damages is in the mind of the authors of the Treaty broken when such use was not necessi­ only the Community can be liable for tated by the circumstances in which the damage resulting from the wrongful act official was to perform his duties. of a servant in the performance of his Taking into account both this tact and duty. The personal liability of servants the fact that the rules concerning com­ for the same damage is thus excluded. pensation for injury caused by cars are A different solution would give rise to no concern of the Community at the several difficulties, of which the most present stage of European integration, serious is the possibility of conflicting the Commission considers that there is legal decisions, once it is accepted that no reason to submit cases of this type to the Court of Justice has no jurisdiction Community law and the jurisdiction of to hear an action for damages against a the Court of Justice. servant in his personal capacity. The Commission observes that in the Article 12. of Annex VII to the Staff

bility of the official and the public liability by the Community automatically authorities; this helps to keep the official presupposes that the Court of Justice conscious of his duties. alone has jurisdiction in actions for The problem which might arise through damages. Not to exclude the personal two actions' being open to third parties liability of the servant would give rise is not such that the abolition of the to new problems as regards jurisdiction. personal liability of the official is to be It would in fact open the door to the favoured. 'legal chaos' referred to in recent aca Article 12 of Annex VII to the Staff demic legal writing on this subject. Regulations of Officials merely confirms To avoid this danger even in the event that an official who voluntarily uses his of the personal liability of the servant private car is no longer acting in the for a wrongful act committed in the performance of his duties. Thus, this performance of his duties not being provision does not conflict with the regarded as absorbed by the Com second paragraph of Article 188 of the munity, it is necessary to accept the Treaty. jurisdiction of the Court of Justice in The Commission of the European Com

capacity. officials before national courts for wrong The plaintiffs in the main action con ful acts committed in the performance sider that in spite of the generality of of their duties would give rise to a the terms used in the judgment of the duality of jurisdiction and it is to avoid Belgian Cour de Cassation, the judg this serious disadvantage that actions for ment of the Court of Justice should set damages against a servant must not be out in detail the principles applicable in allowed, before national courts, at least to the extent that the act was committed this instance and should, in particular, determine whether physical injury itself in the performance of his duties.

SAYAG v LEDUC

Member States to the action against the tion by the Belgian law may be dis­ servant. regarded in fixing the compensation pay­ Even should this not be so, none of the able in respect of the injury caused by factors which are taken into considera- Mr Sayag.

Grounds of judgment

1 By judgment of 17 February 1969, received at the Court Registry on 20 February 1969, the Belgian Cour de Cassation has referred to the Court, under Article 150 of the Treaty establishing the EAEC, questions concerning the interpretation of the second paragraph of Article 188 and Article 151 of the Treaty.

2 This judgment requests the Court to define the meaning of the term 'in the performance of their duties' and, where an act giving rise to a claim for damages has been committed by a servant who was not acting in his official capacity, to rule whether such an act renders the servant personally liable or whether his liability is absorbed by that of the Community and, if necessary, to specify the legal system applicable to the action for damages against the servant and his insurer, and to rule whether the court having jurisdiction to entertain such action is solely that provided for in Article 151 of the Treaty.

3 It appears from the file that the questions referred concern the case of an official of the EAEC who, being in possession of a travel order, caused an accident while driving his private car in the performance of a mission.

8 In the light of the special nature of this legal system, it would not therefore be lawful to extend it to categories of acts other than those referred to above. 9 A servant's use of of his private car for transport during the performance of his duties does not satisfy the conditions set out above.

10 A reference to a servant's private car in a travel order does not bring the driving of such car within the performance of his duties, but is basically intended to enable any necessary reimbursement of the travel expenses involved in the use of this means of transport to be made in accordance with the standards laid down for this purpose.

1 Only in the case of force majeure or in exceptional circumstances of such overriding importance that without the servant's using private means of trans­ port the Community would have been unable to carry out the tasks entrusted to it, could such use be considered to form part of the servant's performance of his duties, within the meaning of the second paragraph of Article 188 of the Treaty.

12 It follows from the above that the driving of a private car by a servant cannot in principle constitute the performance of his duties within the meaning of the second paragraph of Article 188 of the EAEC Treaty. 13 It is, therefore, unnecessary to consider the questions submitted in the alternative.

Costs

14 The costs incurred by the Commission of the European Communities and the Government of the Kingdom of Belgium, which have submitted their observations to the Court, are not recoverable.

in answer to the questions referred to it by the Belgian Cour de Cassation, by judgment of that court dated 17 February 1969, hereby rules:

The phrase 'the performance of their duties' in the second paragraph of Article 188 of the EAEC Treaty, does not, in principle, include the use by servants of the Community of their private cars in the course of their employment.

Lecourt Trabucchi Mertens de Wilmars

Donner Strauß Monaco Pescatore

Delivered in open court in Luxembourg on 10 July 1969.

A. Van Houtte R. Lecourt Registrar President