JUDGMENT OF 27.10.1982 — CASE 1/82 D. v LUXEMBOURG

In Case 1/82

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

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the submissions and arguments of the parties may be summarized as follows:

I — Facts and procedure

According to Article 12 (b) of the Protocol on the Privileges and Immunities of the European Communities, officials and other employees of the Communities and their spouses are not to be subject to immigration restrictions or to formalities for the registration of aliens.

The applicant, Mr. D., is an official of one of the institutions and is employed in Luxembourg, the city in which he resides. He is a national of one of the Member States of the Community other than the Grand Duchy of Luxembourg.

In 1981 he married Miss M., who was then a national of a nonmember country. His wife elected to adopt her husband's nationality.

Before her marriage an expulsion order had been issued against Mrs D. (née M.). The Luxembourg authorities, despite having been informed of her change of civil status, decided to maintain the prohibition on her residence.

The applicants then brought an action against the Grand Duchy of Luxembourg by an application received at the Court Registry on 4 January 1982.

On the same day Mr D. submitted a request for assistance, in accordance with Article 24 of the Staff Regulations, to the institution employing him.

Before the Court, the Luxembourg, Government raised an objection of inadmissibility pursuant to Article 91 of the Rules of Procedure.

The applicants lodged written submissions and conclusions relating to their application and the Court decided, upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, to open the oral procedure regarding admissibility without any preparatory inquiry. The Court nevertheless asked the Council, the Commission and the Parliament to express their view regarding the admissibility of the application.

II — Conclusions of the parties

The applicants claim that the Court should:

Declare that it has jurisdiction in this case;

Accede to their claims; and

Declare that a Member State cannot evade its duty to admit officials and other employees of the European Communities together with their spouses and dependent members of their families, which is embodied in Article 12 of the Protocol on the Privileges and Immunities;

Consequently declare that since the refusal to admit the wife of an official to the territory of the country in which the official performs his duties is contrary to the said Protocol, the government in question has taken a decision contrary to Community law;

Therefore declare that the Grand Duchy of Luxembourg must rescind the administrative measure refusing to admit Mrs D. to the national territory;

Order the Grand Duchy of Luxembourg to pay the costs.

The Luxembourg Government contends that the Court should:

Declare that it is unnecessary to examine the substance of the case and that a decision should be given only with regard to jurisdiction;

Declare that in this case it lacks jurisdiction;

Dismiss the applicant's claims outright;

Order Mr and Mrs D., jointly and severally, to pay the costs in their entirety.

As regards the question of admissibility, the applicants claim that the Court should:

Primarily, declare that it has jurisdiction;

In the alternative, order that the procedural issue and the substance of the case should be considered together.

Ill — Submissions of the parties

The applicants have already stated their views on admissibility in their application. They refer to the judgment of the Court of 16 December 1960 in Case 6/60 Humblet v Belgian State [1960] ECR 559, in which the Court held that an official of the ECSC who considered that he had suffered because a Member State had breached the privileges and immunities conferred on that official might bring an action against that State before the Court pursuant to Article 16 of the Protocol on the Privileges and Immunities of the ECSC (hereinafter referred to as “the ECSC Protocol”); the fact that the applicant had not exhausted the legal remedies open to him before the courts in his country did not render an action based on that provision inadmissible.

Article 16 of the ECSC Protocol, which provided that any dispute concerning the interpretation or application of the Protocol should be submitted to the Court, was not retained when the Merger Treaty of 8 April 1965 was concluded but the same jurisdiction is provided for in Article 30 of that Treaty which states as follows:

“The provisions of the Treaties establishing the European Economic Community and the European Atomic Energy Community relating to the jurisdiction of the Court of Justice and to the exercise of that jurisdiction shall be applicable to the provisions of this Treaty and of the Protocol annexed thereto”.

The Luxembourg Government maintains that Article 16 of the ECSC Protocol was repealed by the second paragraph of Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities of 8 April 1965, known as the Merger Treaty, which repeals the Protocols on the Privileges and Immunities annexed to the Treaties of the three Communities. The new Protocol on the Privileges and Immunities (hereinafter referred to as “the sole Protocol”) contains no provision attributing jurisdiction to the Court.

Article 30 of the Merger Treaty contains no provision attributing jurisdiction to the Court for a direct action by an individual against a Member State.

In their reply to the objection of inadmissibility, the applicants make a number of criticisms relating to the unsatisfactory application of Article 177 on the part of the administrative courts in Luxembourg.

As regards the provisions attributing jurisdiction to the Court, the applicants submit that the ECSC Treaty confers jurisdiction on the Court for “the interpretation and application of this Treaty, and of rules laid down for the implementation thereof”. Since the ECSC Protocol was neither a treaty nor a rule for implementation, it was necessary to include a provision in the Protocol itself conferring jurisdiction on the Court. The same result was achieved in the Merger Treaty by inclusion of the sole Protocol amongst the matters for which the Court has jurisdiction. The Merger Treaty confers direct jurisdiction on the Court to adjudicate on all questions regarding the “provisions of this Treaty and of the Protocol annexed thereto”, which at least preserves the jurisdiction attributed by the ECSC Treaty.

The possibility of a direct application to the Court is also provided for in the sole Protocol for those seeking the Court's authorization for a measure of constraint in respect of property of the Communities.

If the government of a Member State were to refuse a member of the European Parliament access to its territory to attend a meeting of the Parliament, the member of Parliament would have to be allowed to make a direct application to the Court. Officials must have the same right. The Protocols limit the sovereignty of the Member States. In order to ensure their effectiveness, a body separate from the authorities of the Member State concerned must adjudicate with regard to privileges and immunities. In its judgment in the Humblet case the Court was moved by concern for respect of the rights conferred on officials as individuals.

In this case, Mr and Mrs D. could not protect their legitimate interests otherwise than by a direct application to the Court. Mr D. had no loots standi, since he was not yet married when the decisions prohibiting residence were adopted and Mrs D. (then Miss M.) was not able to claim the privileges conferred by the Protocol.

In its judgment of 25 February 1969 in Case 23/68 Klomp v Inspektie der Belastingen [1969] ECR 43, the Court attached importance to the principle, which is common to the Member States, of continuity of legal institutions. Although the matter had been referred to the Court of Justice by the court of a Member State pursuant to Article 16 of the ECSC Protocol the Court gave judgment, but it did so on the basis of Articles 177 of the EEC Treaty and 150 of the EAEC Treaty. The purpose of those provisions is identical, namely to ensure uniform interpretation and application of the provisions of the Protocol in the Member States.

The Court should also take into account the principle tit res magis valent quam pereat. Since the applicants could not refer a question to the Court for a preliminary ruling only one course was open to them, that of a direct action for an interpretation.

If the Court has any doubts as to its jurisdiction it should consider the procedural issue together with the substance of the case so as to assure itself of the fact that the applicants had no other way of ensuring the right of unrestricted immigration for Mrs D., the wife of an official, than to bring the present action.

Replies given by the institutions to the question put by the Court

The Council considers that, as regards the substance, this case concerns the obligations of a Member State under Article 12 of the European Communities Protocol and, as regards admissibility, the question whether the Court has jurisdiction to entertain a direct action brought by an individual against a Member State. In those circumstances the Council was unwilling to express its view on that question. The Court's question was passed on to the Permanent Representations of the Member States.

The Council did not subsequently forward observations from the Member States and the Court has not received any such observations direct from them.

The Commission supports the views of the Grand Duchy of Luxembourg in their entirety.

The Court's jurisdiction regarding the sole Protocol is determined by Article 30 of the Merger Treaty, which means that it is governed by Articles 164 to 188 of the EEC Treaty (and the corresponding provisions of the EAEC Treaty).

That does not in any way mean that no legal remedy exists whereby a ruling may be secured from the Court in the dispute between the applicants and the Grand Duchy of Luxembourg. The authors of the Merger Treaty certainly took the view that the legal remedies provided by the EEC Treaty were sufficient. The reference for a preliminary ruling on interpretation which, under the procedure provided for in Article 177 of the EEC Treaty, must emanate from the national court before which an action has been brought, probably appeared to them to be a legal remedy which could be substituted with advantage for the procedure provided for in Article 16 of the ECSC Protocol, a procedure which did not necessarily allow an action before a national court to be dispensed with.

Without prejudice to other possibilities, an action might also be brought before the Court by the Commission pursuant to Article 169 of the EEC Treaty and by Mr D. pursuant to Article 179 for an alleged breach of the duty to provide assistance which is incumbent upon the institution employing Mr D. by virtue of Article 24 of the Staff Regulations. The Parliament states that the Court has jurisdiction to rule on the interpretation and application of the sole Protocol, in particular by way of preliminary rulings

in response to references from the national courts. Since Article 16 of the ECSC Protocol has been repealed, a direct action is no longer admissible and the applicant's action should be brought before the national courts. In that respect, the objection of inadmissibility is well founded.

The Parliament emphasizes that the applicants' claim that the Grand Duchy of Luxembourg should be ordered to reverse an administrative measure falls manifestly outside the jurisdiction of the Court.

IV — Oral procedure

At the sitting on 14 September 1982 oral argument was presented for Mr and Mrs D. by Victor Biel of the Luxembourg Bar and for the Luxembourg State by Jacques Loesch of the Luxembourg Bar.

The Advocate General delivered his opinion at the sitting on 5 October 1982.

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 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.

4. The applicants do not dispute that Article 16 of the ECSC Treaty has been repealed, but they maintain that the Court has jurisdiction pursuant to Article 30 of the Merger Treaty, which refers to the provisions of the EEC Treaty and of the EAEC Treaty concerning the Court's jurisdiction. The Court also has general jurisdiction on the basis of Article 164 of the EEC Treaty which provides that the Court of Justice is to ensure observance of the law in the interpretation and application of the Treaty. Those responsible for preparing the Merger Treaty therefore attributed direct jurisdiction to the Court in all matters relating to the provisions of the sole Protocol and therefore extended, or at least maintained, the jurisdiction previously attributed to it.

5. According to the applicants, despite the repeal of the ECSC protocol it is necessary, in the absence of any contrary intention expressed by the legislature, to ensure the continuity of legal institutions. The defendant's view would lead to insoluble problems and the protection of the privileges and immunities conferred by the Protocol would be rendered completely ineffective.

6. In order to establish whether the action is admissible it is necessary to consider the scope of the relevant provisions of the Merger Treaty. The second paragraph of Article 28 repealed the three Protocols on the Privileges and Immunities of the Communities, including Article 16 of the ECSC Protocol which conferred jurisdiction on the Court in the case of a dispute on the interpretation or application thereof. Article 30 of the Merger Treaty 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.

11. Moreover, an official and the members of his family may avail themselves of the legal remedies against administrative decisions provided by the law of each Member State. The court of competent jurisdiction may, if appropriate, refer to the Court a question on the interpretation of the Protocol pursuant to Article 177 of the Treaty.

12. It is apparent from the foregoing that the action is inadmissible.

Costs

13. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. As the applicants have failed in their submissions they must be ordered to pay the costs.

On those grounds, THE COURT hereby:

1 Dismisses the action as inadmissible;

2 Orders the applicants to pay the costs.