C-1/82

JUDGMENT OF THE COURT 27 OCTOBER 1982 1

Mr and Mrs D. v Grand Duchy of Luxembourg

(Immigration — Privileges of officials and their spouses)

Case 1/82

Jurisdiction of the Court — Action by individuals against a Member State — Lack of jurisdiction

Privileges and immunities of the European Communities — Actions by officials — Action against a Member State — Lack of jurisdiction of the Court ofJustice

JUDGMENT OF 27. 10. 1982 — CASE 1/82

APPLICATION concerning the scope of Article 12 (b) of the Protocol on the Privileges and Immunities of the European Communities,

THE COURT ,

composed of: J. Mertens de Wilmars, President, A. O'Keeffe, U. Everling and A. Chloros (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges,

Advocate General: F. Capotorti Registrar: P. Heim

gives the following

by an application received at the Court Therefore declare that the Grand Duchy Registry on 4 January 1982. of Luxembourg must rescind the administrative measure refusing to admit On the same day Mr D. submitted a Mrs D. to the national territory; request for assistance, in accordance with Article 24 of the Staff Regulations, to Order the Grand Duchy of Luxembourg the institution employing him. to pay the costs.

Before the Court, the Luxembourg, Government raised an objection of The Luxembourg Government contends inadmissibility pursuant to Article 91 of that the Court should: the Rules of Procedure. Declare that it is unnecessary to examine the substance of the case and that a The applicants lodged written decision should be given only with submissions and conclusions relating to regard to jurisdiction; their application and the Court decided, upon hearing the report of the Judge- Declare that in this case it lacks Rapporteur and the views of the jurisdiction; Advocate General, to open the oral procedure regarding admissibility with­ Dismiss the applicant's claims outright; out any preparatory inquiry. The Court nevertheless asked the Council, the Order Mr and Mrs D., jointly and Commission and the Parliament to severally, to pay the costs in their express their view regarding the entirety. admissibility of the application. As regards the question of admissibility, the applicants claim that the Court should: II — Conclusions of the parties Primarily, declare that it has jurisdiction; The applicants claim that the Court In the alternative, order that the pro­ should: cedural issue and the substance of the Declare that it has jurisdiction in this case should be considered together. case;

Article 16 of the ECSC Protocol, which As regards the provisions attributing provided that any dispute concerning the jurisdiction to the Court, the applicants interpretation or application of the submit that the ECSC Treaty confers Protocol should be submitted to the jurisdiction on the Court for "the in­ Court, was not retained when the terpretation and application of this Merger Treaty of 8 April 1965 was Treaty, and of rules laid down for the concluded but the same jurisdiction is implementation thereof". Since the provided for in Article 30 of that Treaty ECSC Protocol was neither a treaty nor which states as follows: a rule for implementation, it was necessary to include a provision in the Protocol itself conferring jurisdiction on "The provisions of the Treaties the Court. The same result was achieved establishing the European Economic in the Merger Treaty by inclusion of the Community and the European Atomic sole Protocol amongst the matters for Energy Community relating to the which the Court has jurisdiction. The jurisdiction of the Court of Justice and Merger Treaty confers direct jurisdiction to the exercise of that jurisdiction shall on the Court to adjudicate on all be applicable to the provisions of this questions regarding the "provisions of Treaty and of the Protocol annexed this Treaty and of the Protocol annexed thereto". thereto", which at least preserves the jurisdiction attributed by the ECSC Treaty.

concerned must adjudicate with regard of ensuring the right of unrestricted to privileges and immunities. In its immigration for Mrs D., the wife of an judgment in the Humblet case the Court official, than to bring the present action. was moved by concern for respect of the rights conferred on officials as individuals. Replies given by the institutions to the question put by the Court In this case, Mr and Mrs D. could not protect their legitimate interests otherwise than by a direct application to The Council considers that, as regards the Court. Mr D. had no loots standi, the substance, this case concerns the since he was not yet married when the obligations of a Member State under decisions prohibiting residence were Article 12 of the European Communities adopted and Mrs D. (then Miss M.) was Protocol and, as regards admissibility, not able to claim the privileges conferred the question whether the Court has by the Protocol. jurisdiction to entertain a direct action brought by an individual against a Member State. In those circumstances In its judgment of 25 February 1969 in the Council was unwilling to express its Case 23/68 Klomp v Inspektie der view on that question. The Court's Belastingen [1969] ECR 43, the Court question was passed on to the Permanent attached importance to the principle, Representations of the Member States. which is common to the Member States, of continuity of legal institutions. Although the matter had been referred to The Council did not subsequently the Court of Justice by the court of a forward observations from the Member Member State pursuant to Article 16 of States and the Court has not received the ECSC Protocol the Court gave any such observations direct from them. judgment, but it did so on the basis of Articles 177 of the EEC Treaty and 150 of the EAEC Treaty. The purpose of The Commission supports the views of those provisions is identical, namely to the Grand Duchy of Luxembourg in ensure uniform interpretation and their entirety. application of the provisions of the Protocol in the Member States. The Court's jurisdiction regarding the sole Protocol is determined by Article 30 The Court should also take into account of the Merger Treaty, which means that the principle tit res magis valent quam it is governed by Articles 164 to 188 of pereat. Since the applicants could not the EEC Treaty (and the corresponding refer a question to the Court for a pre­ provisions of the EAEC Treaty). liminary ruling only one course was open to them, that of a direct action for an interpretation. That does not in any way mean that no legal remedy exists whereby a ruling may be secured from the Court in the dispute If the Court has any doubts as to its between the applicants and the Grand jurisdiction it should consider the pro­ Duchy of Luxembourg. The authors of cedural issue together with the substance the Merger Treaty certainly took the of the case so as to assure itself of the view that the legal remedies provided by fact that the applicants had no other way the EEC Treaty were sufficient. The

Decision

1 By an application lodged at the Court Registry on 4 January 1982 Mr D., an official of the European Communities residing in Luxembourg, and Mrs D., his wife, brought an action for a declaration that, by withholding from Mrs D. the right of residence, the Grand Duchy of Luxembourg had contravened Article 12 (b) of the Protocol on the Privileges and Immunities of the European Communities (the sole Protocol).

2 The Grand Duchy of Luxembourg raised an objection of inadmissibility in accordance with Article 91 of the Rules of Procedure. It stated that although the Court had earlier recognized that an individual might bring an action before the Court against a Member State in a dispute concerning the Protocol on the Privileges and Immunities of the European Coal and Steel

D. v LUXEMBOURG

Community (the ECSC Protocol), pursuant to Article 16 thereof, that Protocol had been repealed by the second paragraph of Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities (known as the "Merger Treaty").

3 According to the Grand Duchy of Luxembourg, the Court's jurisdiction is limited to the powers specifically conferred on it. Neither the new Protocol on the Privileges and Immunities annexed to the Merger Treaty nor Article 30 of that Treaty contains any provisions giving the Court jurisdiction to entertain a direct action by an individual against a Member State.

JUDGMENT OF 27. 10. 1982 — CASE 1/82

states that the provisions of the EEC Treaty and of the EAEC Treaty and, in part, those of the ECSC Treaty concerning the jurisdiction of the Court are to be applicable to the provisions of the Treaty and of the sole Protocol.

7 Since the provisions of the ECSC Treaty which remain applicable pursuant to Article 30 of the Merger Treaty and the EAEC Treaty are not at issue, the jurisdiction of the court is determined in this case by the EEC Treaty.

8 It is apparent from the provisions on legal remedies in the EEC Treaty that they do not give the Court jurisdiction to entertain a direct action brought by an individual against a Member State.

9 It should nevertheless be emphasized that the abolition of the legal remedy provided for in Article 16 of the ECSC Protocol does not mean that officials are deprived of any legal protection.

10 In that regard, it should be noted that in the event of any breach of the privileges, immunities and facilities accorded to officials — and conferred on them solely in the interests of the Communities, according to Article 18 of the Protocol — it is primarily the responsibility of the competent institution to resolve the question by cooperation with the responsible authorities of the Member State concerned, pursuant to Article 19 of the Protocol.

THE COURT

hereby:

1. Dismisses the action as inadmissible;

2. Orders the applicants to pay the costs.

Mertens de Wilmars O'Keeffe Everling Chloros

Pescatore Mackenzie Stuart Bosco Koopmans Due