JUDGMENT OF 10. 7. 1969 — CASE 9/69 SAYAG v LEDUC

In Case 9/69 Reference to the Court under Article 150 of the EAEC Treaty by the Belgian Cour de Cassation for a preliminary ruling in the action pending before that court between

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

JUDGMENT

Issues of fact and of law

I — Facts and procedure

The facts and procedure may be summarized as follows:

On 25 November 1963, Mr Claude Sayag, an official of the European Atomic Energy Community, caused a road accident in Belgium while driving his private car from Brussels to Mol. He was in possession of a travel order which provided for the use of his own car.

Mr Jean Leduc and Mr Arnold van Hassen, who were passengers in Mr Sayag's car, were injured in this accident.

When prosecuted before a Belgian court, Mr Sayag contested the admissibility of the prosecution and claimed the immunity from legal proceedings provided for in Article 11 of the Protocol on the Privileges and Immunities of the EAEC. He referred in addition to the second paragraph of Article 188 of the Euratom Treaty, under which the Community is alone liable for the act of one of its servants in the performance of his duties, and claimed that only the Court of Justice had jurisdiction in this matter.

As these objections were rejected by the Tribunal Correctionnel of Brussels and, on appeal against this decision, by the Cour d'Appel, the Belgian Cour de Cassation first asked the Court of Justice of the European Communities for a preliminary ruling on the problem of immunity from legal proceedings. Judgment on this first question (Case 5/68) was given on 11 July 1968. The Cour de Cassation considered that although it could be concluded from this judgment that when this accident occurred Mr Sayag was not enjoying the immunity from legal proceedings provided for in Article 11(a) of the Protocol on the Privileges and Immunities of the EAEC, the judgment did not rule on any possible liability on the part of the Community. By a judgment of 17 February 1969, therefore, the Court of Cassation decided to stay the proceedings pending a preliminary ruling by the Court of Justice of the European Communities:

‘on the interpretation to be placed on the second paragraph of Article 188 and on Article 151 of the Treaty establishing the European Atomic Energy Community, by defining 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 in the performance of his duties by a servant who was not acting in his official capacity, by ruling whether such an act renders the servant personally liable or whether his liability is absorbed by that of the Community and, if necessary, by specifying the legal system applicable to the action for damages against the servant and his insurer, and by ruling whether the court having jurisdiction to entertain such action is solely that provided for in Article 151 of the Treaty.’

In accordance with Article 21 of the Protocol on the Statute of the Court of Justice of the EAEC the plaintiffs and the defendants in the main action, the Commission of the European Communities and the Belgian Government submitted written observations.

The hearing took place on 11 June 1969.

The Advocate-General delivered his opinion on 1 July 1969.

II — Summary of the observations submitted under Article 21 of the Statute

The observations submitted under Article 21 of the Statute of the Court may be summarized as follows:

A — The interpretation of the term ‘in the performance of their duties’

The plaintiffs in the main action observe that the case-law of the various member countries broadly accepts the concept of a wrongful act committed by administrative bodies in the performance of their duties.

As regards Community law, the plaintiffs emphasize that the scope of the second paragraph of Article 188 of the Euratom Treaty, which refers to acts by officials in the performance of their duties, is wider than that of Article 11(a) of the Protocol on the Privileges and Immunities, which provides for immunity from legal proceedings only in respect of acts performed by officials in their official capacity.

Moreover, it is also apparent from the judgment of the Court of Justice of 11 July 1969 in Case 5/68 that, when the accident in question occurred, Mr Sayag was performing his duties. This judgment finds that ‘he was driving his private motor car during the performance of his duties’. The defendants in the main action observe that the national case-law to which Mr Sayag refers and which readily accepts that the wrongful act forms part of the duties of a servant of an administrative body appears to have been developed in relation to cases concerning vehicles belonging to that body. It could not be maintained that Mr Sayag was obliged to use his private car for the purposes of his mission. The scope of the term ‘in the performance of his duties’ must be limited to a case in which an official performs, albeit wrongfully, an act which in itself forms part of the specific powers conferred on him by the Community.

The Belgian Government consider that the legal scope of the expressions ‘in their official capacity’ and ‘in the performance of their duties’ is the same in the system established by the EAEC Treaty and in the Protocol on the Privileges and Immunities.

The correlation established between Article 11 of the Protocol and the second paragraph of Article 188 of the Euratom Treaty, the purpose of which is to give to those suffering damage who are faced with the immunity from legal proceedings of an official of the Community a right of action against the Community, implies that these two articles refer to the same eventuality, that is, that a servant of the Community acted in the performance of duties which were within his official capacity.

This conclusion is confirmed by the tact that various protocols on the privileges and immunities of international institutions use the two expressions referred to above without distinction.

The voluntary use by an official of his private car cannot therefore be regarded as an act arising out of the performance of his duties.

The Commission of the European Communities emphasizes the marginal nature, in relation to the task of the Communities and the liability which they may assume in the performance of their specific tasks, of the problem before the Belgian court of liability for a road accident. The rules of the Treaty on liability and the jurisdiction conferred on the Court were not conceived in terms of such cases; their essential aim is rather to determine the liability of the Communities in carrying out their tasks of preparing regulations, of administration, supervision and re-adjustment and, only secondarily, to make good damage caused by physical acts.

The fact that since the establishment of the Communities no legal proceedings have been instituted raising the issue of liability of the Communities for accidents caused by officials using their own cars to go to the place in which they are required to carry out their tasks, constitutes, in the view of the Commission, important evidence of the fact that the legal solutions of the problems connected with accidents occurring in such circumstances are adequate from an objective standpoint.

The Commission maintains that its officials and servants are never bound to draw on their own resources in order to carry out the tasks conferred upon them. If an official prefers to use his own car rather than public transport, he does so freely for reasons of personal convenience which cannot involve the liability of his institution. It is for this reason that Article 12(4) of Annex VII to the Staff Regulations provides that an official authorized to use his own car on a mission shall remain fully liable for any accidents to his car or to third parties. This provision constitutes a special rule which is an exception to the general rule contained in Article 22 of the Staff Regulations, under which an official may only be required to make good any damage suffered by the Community as a result of serious misconduct on his part. In the cases covered by the abovementioned Article 12(4), if the Community found itself bound to compensate third parties, it could recover in full from the official concerned any sum which it had paid out.

In order to find the basis of this special rule the Commission seeks, first, to define the scope of the expression ‘general principles common to the laws of the Member States’ can only constitute a common denominator in the national laws and maintains that the general principles common to the laws of the Member States' can only constitute a subsidiary source of Community law, as the liability of the Community must first be determined according to the rules of Community law and the requirements of the European Communities themselves.

As regards the general trends shown by national laws in this matter the Commission acknowledges that, with the exception of German case-law, the courts of the Member States interpret very liberally the concept of ‘performance of duties’, primarily in order to give the victims recourse to a debtor who is solvent. However, in the great majority of cases the decisions of the national courts regarding road accidents concern accidents caused by service vehicles. On the other hand there is very little case-law on accidents caused by the private cars of officials. In the majority of cases claims concerning such accidents remain within the sphere of private law and are absorbed by the machinery of insurance by reason in particular of the special provisions laid down by law or regulation which provide either that the official must accept the risks of third-party liability, or keep the State indemnified against any action for damages.

From an examination of these national regulations the Commission deduces a general trend in law towards finding specific solutions for the problems of road accidents. The exception provided for in Article 12(4) of Annex VII to the Staff Regulations must be placed within the context of this general trend. When an act giving rise to a claim for damages is imputed to the Community, the Community avoids both the jurisdiction of the national court and the application of the national law. As these two exceptions derogate from the common law, it is necessary to interpret restrictively the corresponding competence conferred on the Community in this connexion. When the act which gives rise to a claim for damages is the act of a specific official it is necessary, in order to justify these exceptions to the common law, for the act to have been performed by the Community itself in the exercise of its privileges or for it to have been necessary to the running of the departments.

In the case of an accident caused by an official who is voluntarily using his private car on a mission the link between the requirements of the service and the act giving rise to the claim for damages is broken when such use was not necessitated by the circumstances in which the official was to perform his duties.

Taking into account both this tact and the fact that the rules concerning compensation for injury caused by cars are no concern of the Community at the present stage of European integration, the Commission considers that there is no reason to submit cases of this type to Community law and the jurisdiction of the Court of Justice.

The Commission observes that in the end its interpretation of the concept of ‘performance of duties’ is thus identified with the definition given by the Court in its judgment in Case 5/68 to an act performed ‘in an official capacity’. This identity of meaning, which is also to be found in other agreements setting up international organizations, is likely to simplify the settlement of the problems in question, as each time that the conditions of application of the second paragraph of Article 188 are satisfied, the official is protected by immunity from legal proceedings. The consequence of the waiver of immunity is only to limit proceedings against the official on the ground of his criminal liability.

However, in its oral observations the Commission limited the scope of this identity of meaning and maintained that it was claimed primarily for a case in which an official used his private car, and could not apply to any other cases.

B — The personal liability of a servant who has committed an act giving rise to a claim for damages in the performance of his duties

In the opinion of the plaintiffs in the main action the fact that the member countries amended Article 40 of the ECSC Treaty, which provided for the personal liability of a servant, in order to bring the wording into line with that of Articles 215 of the EEC Treaty and 188 of the EAEC Treaty, shows that in the mind of the authors of the Treaty only the Community can be liable for damage resulting from the wrongful act of a servant in the performance of his duty. The personal liability of servants for the same damage is thus excluded. A different solution would give rise to several difficulties, of which the most serious is the possibility of conflicting legal decisions, once it is accepted that the Court of Justice has no jurisdiction to hear an action for damages against a servant in his personal capacity.

Article 12. of Annex VII to the Staff Regulations of Officials is unlawful in that it conflicts with paragraph 2 of Article 188 of the Euratom Treaty.

Secondly, the plaintiffs in the mam action maintain that the abovementioned provision only refers to the case of an official who is authorized to use his private car and that, by reason of its being in the nature of an exception, it cannot apply to the case of an official who, like Mr Sayag, was ordered to use his private car.

On the other hand the defendants in the main action consider that the abolition of the personal liability of the servant marks a retrograde step in relation to the general trend of national laws, which provide for the concurrent personal liability of the official and the public authorities; this helps to keep the official conscious of his duties.

The problem which might arise through two actions' being open to third parties is not such that the abolition of the personal liability of the official is to be favoured.

Article 12 of Annex VII to the Staff Regulations of Officials merely confirms that an official who voluntarily uses his private car is no longer acting in the performance of his duties. Thus, this provision does not conflict with the second paragraph of Article 188 of the Treaty.

The Commission of the European Communities considers that an injury which does not show an indissoluble and necessary connexion with the duties of the official concerned only renders liable the party who is liable before the national courts. On the other hand, an injury caused in the performance of duties renders the Community exclusively liable vis-à-vis the third party; the Community will have no recourse against an official except in a case of serious misconduct, in accordance with Article 22 of the Staff Regulations of Officials.

The bringing of proceedings against officials before national courts for wrongful acts committed in the performance of their duties would give rise to a duality of jurisdiction and it is to avoid this serious disadvantage that actions for damages against a servant must not be allowed, before national courts, at least to the extent that the act was committed in the performance of his duties. The Commission observes that the Union Internationale des Magistrates held the same view.

C — The legal system applicable to the action for damages against the servant and his insurer, and the choice of the competent court

The plaintiffs in the main action observe that the absorption of Mr Sayag's liability by the Community automatically presupposes that the Court of Justice alone has jurisdiction in actions for damages. Not to exclude the personal liability of the servant would give rise to new problems as regards jurisdiction. It would in fact open the door to the ‘legal chaos’ referred to in recent academic legal writing on this subject.

To avoid this danger even in the event of the personal liability of the servant for a wrongful act committed in the performance of his duties not being regarded as absorbed by the Community, it is necessary to accept the jurisdiction of the Court of Justice in actions for damages against the servant concerned.

As regards the legal system applicable, the plaintiffs in the main action consider that the general principles common to the laws of the Member States constitute wider and more comprehensive directives than the positive rules of the national laws, and that these principles must apply, whatever the court which hears the action for damages.

These parties emphasize the differences existing in national laws, in particular as regards the method of calculating the damage caused by permanent incapacity.

The plaintiffs in the main action consider that in spite of the generality of the terms used in the judgment of the Belgian Cour de Cassation, the judgment of the Court of Justice should set out in detail the principles applicable in this instance and should, in particular, determine whether physical injury itself constitutes damage, or whether the damage is only constituted by the effects of such physical injury.

The defendants in the main action observe that the reference in Article 151 of the EAEC Treaty to the second paragraph of Article 188 can only concern claims for damages brought against the Community, with the result that there can be no reason to apply the general principles common to the laws of the Member States to the action against the servant.

Even should this not be so, none of the factors which are taken into consideration by the Belgian law may be disregarded in fixing the compensation payable in respect of the injury caused by 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.

4. This gives rise to the first question whether, while not acting in his official capacity within the meaning of Article 11 of the Protocol on the Privileges and Immunities annexed to the EAEC Treaty, such an official may be considered to be acting in the performance of his duties within the meaning of the second paragraph of Article 188 of that Treaty.

5. As regards non-contractual liability, the Treaty subjects the Community to rules forming part of the Community legal system and which impose on it a uniform system in compensating for damage caused by its institutions and by its servants in the performance of their duties.

6. The Treaty ensures the uniform application of this system and the independence of the institutions of the Community by giving the Court of Justice jurisdiction in disputes in this matter.

7. By referring at one and the same time to damage caused by the institutions and to that caused by the servants of the Community, Article 188 indicates that the Community is only liable for those acts of its servants which, by virtue of an internal and direct relationship, are the necessary extension of the tasks entrusted to the institutions.

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.

11. Only in the case of force majeure or in exceptional circumstances of such overriding importance that without the servant's using private means of transport 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.

15. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Belgian Cour de Cassation, the decision as to costs is a matter for that court;

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the applicants and defendants in the main action, the Government of the Kingdom of Belgium and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Atomic Energy Community, especially Articles 150, 151 and the second paragraph of Article 188; Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community, especially Article 21; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT 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: