OH v ID.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:603
• Date: 15 July 2021
• Docket Number: C-758/19
• Celex Number: 62019CJ0758
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

15 July 2021 (*)

(Reference for a preliminary ruling – Articles 268, 270, 340 and 343 TFEU – Protocol (No 7) on the privileges and immunities of the European Union – Articles 11, 17 and 19 – Former member of the European Commission – Immunity from jurisdiction – Claim for non-contractual liability – Waiver of immunity – Jurisdiction of the Court of Justice of the European Union)

In Case C‑758/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Polymeles Protodikeio Athinon (Court of First Instance, Athens, Greece), made by decision of 18 June 2019, received at the Court on 16 October 2019, in the proceedings

OH

v

ID,

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, L. Bay Larsen, C. Toader, M. Safjan and N. Jääskinen (Rapporteur), Judges,

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– OH, by G. Trantas, dikigoros,

– ID, by E. Politis, dikigoros,

– the European Commission, by M. Konstantinidis, T.S. Bohr and S. Delaude, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 February 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 343 TFEU and of Articles 11, 17 and 19 of the Protocol (No 7) on the privileges and immunities of the European Union (OJ 2016 C 202, p. 266; ‘the Protocol on privileges and immunities’).

2 The request has been made in proceedings between OH, a former member of the temporary staff of the European Commission, and ID, a former European Commissioner of Greek nationality (‘the member of the Commission’) concerning wrongful conduct which OH attributes to ID and which, it is claimed, led the Commission to terminate OH’s employment contract.

Legal context

EU law

3 Under Article 11(a) of the Protocol on privileges and immunities:

‘In the territory of each Member State and whatever their nationality, officials and other servants of the Union shall:

(a) subject to the provisions of the Treaties relating, on the one hand, to the rules on the liability of officials and other servants towards the Union and, on the other hand, to the jurisdiction of the Court of Justice of the European Union in disputes between the Union and its officials and other servants, be immune from legal proceedings in respect of acts performed by them in their official capacity, including their words spoken or written. They shall continue to enjoy this immunity after they have ceased to hold office.’

4 Article 17 of the Protocol provides:

‘Privileges, immunities and facilities shall be accorded to officials and other servants of the Union solely in the interests of the Union.

Each institution of the Union shall be required to waive the immunity accorded to an official or other servant wherever that institution considers that the waiver of such immunity is not contrary to the interests of the Union.’

5 Article 19 of that protocol states:

‘Articles 11 to 14 and Article 17 shall apply to the President of the European Council.

They shall also apply to Members of the Commission.’

Greek law

6 In accordance with Article 3(2) of the Kodikas Politikis Dikonomias (Code of Civil Procedure), foreign nationals who enjoy immunity from jurisdiction fall outside the jurisdiction of the Greek courts, unless the dispute concerns substantive rights in immovable property.

7 Furthermore, pursuant to Article 24 of the Code of Civil Procedure, Greek nationals who enjoy jurisdictional immunity and employees of the State serving abroad are subject to the jurisdiction of the courts of their place of residence before they were expatriated or, if they were not resident in Greece, the courts of the capital of that Member State.

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 On 1 November 2014, OH was recruited as a member of the temporary staff by the Commission, pursuant to Article 2(c) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), to serve as Deputy Head of Cabinet in the office of the member of the Commission, classifying him in grade AD 12, step 2.

9 From 1 October 2015, OH was given the post of expert in that cabinet, and was classified in grade AD 13, step 2.

10 By letter of 27 April 2016, the Commission notified OH of the termination of his employment contract as a member of the temporary staff with effect from 1...