Opinion of Advocate General Ćapeta delivered on 16 December 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:1025
• Date: 16 December 2021
• Celex Number: 62020CC0054
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 16 December 2021(1)

Case C‑54/20 P

European Commission

v

Stefano Missir Mamachi di Lusignano,

Maria Letizia Missir Mamachi di Lusignano,

(Appeal – Civil service – Liability of the European Union based on the failure of an institution to fulfil its duty to ensure the protection of its officials – Deceased official – Non-material damage suffered by the official’s brother and sister – Remedy to bring proceedings – Articles 268, 270 and 340 TFEU – Standing)

I. Introduction

1. In September 2006, Mr Alessandro Missir Mamachi di Lusignano (‘the deceased official’) and his wife were murdered in the house rented for them in Rabat (Morocco) by the European Commission. Mr Missir Mamachi di Lusignano was to take up his post as a political and diplomatic adviser to the European Commission’s delegation. He was, therefore, an employee of an EU institution.

2. This case is the latest instance of a judicial saga before the EU Courts, (2) which arose from this unfortunate and tragic event. It allows the Court to clarify its case-law concerning the right to damages, which arises in the context of staff cases, that is to say, cases related to the employment relationship of a person in the EU institutions or other bodies. This case thereby presents the Court with a possibility to clarify the delimitation between the jurisdiction based on Article 270 TFEU in relation to that based on Article 268 TFEU.

3. The present appeal is brought by the Commission against the judgment of 20 November 2019, Missir Mamachi di Lusignano and Others v Commission (T‑502/16, EU:T:2019:795; ‘the judgment under appeal’). By that judgment the General Court ordered the Commission to pay, on a joint and several basis, EUR 50 000 to the deceased official’s mother, and EUR 10 000 to each of his sister and brother, by way of compensation for non-material damages in respect of the damage they suffered due to that tragic event.

4. The Commission accepts the part of the judgment which concerns the mother, but disputes the assessments made by the General Court in response to the claims for compensation submitted by the brother and sister. The key issue raised by the appeal is whether the brother and the sister were entitled to bring the actions for non-material damages in their own name on the basis of Article 270 TFEU, which grants jurisdiction in staff cases to the Court, (3) or if the brother and sister should have used Article 268 TFEU, which governs the general jurisdiction of the Court for actions in damages based on the non-contractual liability of the EU.

II. Legal framework

5. Apart from Articles 268, 270 and 340 TFEU, the provisions listed below are also relevant in the present case.

6. Article 91(1) of the Staff Regulations, to which Article 270 TFEU refers, provides:

‘The Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and any person to whom these Staff Regulations apply regarding the legality of an act affecting such person adversely within the meaning of Article 90(2). In disputes of a financial character the Court of Justice shall have unlimited jurisdiction.’

7. Article 90(2) of the Staff Regulations, read together with Article 91(2) of those regulations, provides that a person to whom the Staff Regulations apply may bring an action before the Court of Justice only if he or she has previously submitted his or her complaint to the appointing authority against an act which affects him or her adversely.

8. Several other provisions of the Staff Regulations were invoked or relied on in the case leading to the judgment under appeal, as well as in the previous proceedings relating to the claims for damages resulting from the death of Mr Missir Mamachi di Lusignano and his wife. It is, therefore, necessary to mention them here.

9. The relevant parts of Article 73 of the Staff Regulations invoked are as follows:

‘1. An official is, from the date of his entry into the service, insured against the risk of occupational disease or accidents in the manner provided for in rules drawn up by common agreement of the appointing authorities of the institutions of the Union after consulting the Staff Regulations Committee. He shall contribute to the cost of insuring against non-occupational risks up to 0.1% of his basic salary.

Such rules shall specify which risks are not covered.

2. The benefits payable shall be as follows:

(a) In the event of death:

Payment to the persons listed below of a lump sum equal to five times the deceased’s annual basic salary calculated by reference to the amounts of salary received during the twelve months before the accident:

– to the deceased official’s spouse and children in accordance with the law of succession governing the official’s estate; the amount payable to the spouse shall not, however, be less than 25% of the lump sum;

– where there are no persons of the category above, to the other descendant in accordance with the law of succession governing the official’s estate;

– where there are no persons of either of the two categories above, to the relatives in the ascending line in accordance with the law of succession governing the official’s estate;

– where there are no persons of any of the three categories above, to the institution.’

10. Other provisions of the Staff Regulations invoked are set out as follows.

11. Article 40(2)(iii) of the Staff Regulations, which entitles an official to be granted unpaid leave on personal grounds if this is necessary, inter alia ‘to assist his spouse, a relative in the ascending line, a relative in the descending line, a brother or a sister in the case of medically certified serious illness or disability’.

12. Article 42b of the Staff Regulations, which provides that ‘in the case of medically certified serious illness or disability of an official’s spouse, relative in the ascending line, relative in the descending line, brother or sister, the official shall be entitled to a period of family leave without basic salary’.

13. Article 55a (2)(e) of the Staff Regulations, which authorises an official to work part-time if that is necessary, inter alia, in order ‘to care for a seriously ill or disabled spouse, relative in the ascending line, relative in the descending line, brother or sister’.

III. Background to the dispute, and the judgment under appeal

14. The background to the dispute was set out in detail in the judgment under appeal. (4) The main points which are of assistance for the purpose of the present Opinion may be summarised as follows.

15. The murder of Mr Missir Mamachi di Lusignano and his wife was committed on 18 September 2006 in a furnished house rented by the European Commission’s delegation for the couple and their four children.

16. Following that tragic event, the children were placed under the guardianship of their grandparents. The Commission paid to the children of the deceased official, in their capacity as his heirs, the insured amount provided for under Article 73 of the Staff Regulations.

17. Mr Livio Missir Mamachi di Lusignano, the father of the deceased official, and guardian of the children, was dissatisfied with the amount paid on the basis of Article 73 of the Staff Regulations. He, therefore, brought an action based on Article 270 TFEU seeking the payment of various sums as compensation for material and non-material damages arising from the tragic event. Those claims were brought both in the children’s capacity as heirs and successors of the deceased official, as well as in their own name and in the name of the father of the deceased official. This led to a series of cases (A), prior to the current line of proceedings (B).

A. The first line of cases

18. As an introduction to this line of cases, it is necessary to explain the context in which they were decided. At the relevant time, there were three judicial institutions within the Court of Justice of the European Union as an EU institution: the Court of Justice, the General Court and the Civil Service Tribunal. The latter enjoyed the jurisdiction to decide at first instance cases brought on the basis of Article 270 TFEU.

19. The question whether a claim in damages was required to be brought under Article 268 TFEU or under Article 270 TFEU was, therefore, relevant not only to deciding the legal basis governing such actions, but also to decide whether the case was to be heard by the Civil Service Tribunal or by the General Court at the first instance. That context, I believe, influenced the decision in the judgment of 10 September 2015, Review Missir Mamachi di Lusignano v Commission (C‑417/14 RX‑II, EU:C:2015:588, ‘the review judgment’) and is important for understanding it.

20. This line of cases was initiated in the Civil Service Tribunal which adopted, on 12 May 2011, the judgment in Missir Mamachi di Lusignano v Commission (F‑50/09, EU:F:2011:55). The Civil Service Tribunal dismissed the application as being in part unfounded – in relation to the material damage claimed – and in part inadmissible – in relation to the alleged non-material damage.

21. On appeal, in the judgment of 10 July 2014, Missir Mamachi di Lusignano v Commission (T‑401/11 P, EU:T:2014:625), which set aside the judgment at first instance, the General Court of its own motion examined the jurisdiction of the Civil Service Tribunal to hear and determine the action at first instance. Amongst other things, the General Court drew a distinction between the damage suffered by the deceased official and by the children as his heirs on the one hand, and the damage suffered by the children and by the father in their own name, on the other hand. The General Court held that the Civil Service Tribunal ‘lacked jurisdiction from the outset’ to hear and determine the action brought by the father and the children in their own name. It had, according to that judgment, jurisdiction only in relation...