JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(First Chamber)

12 May 2011


Case F‑50/09

Livio Missir Mamachi di Lusignano

v

European Commission

(Civil service — Officials — Action for damages — Rule of correspondence between request, complaint and action regarding compensation — Inter partes nature of proceedings — Use in judicial proceedings of a confidential document classified as ‘EU restricted’ — Non-contractual liability of the institutions — Liability for fault — Causal link — Plurality of causes of damage — Third party fault — No-fault liability — Duty to provide assistance — Obligation on an institution to ensure the protection of its staff — Murder of an official and his spouse by a third party — Loss of a chance of survival)

Application:      brought under Articles 236 EC and 152 EA, in which Mr Missir Mamachi di Lusignano seeks, in particular, first, annulment of the Commission’s decision of 3 February 2009 rejecting his application for compensation for material and non‑material damage resulting from the murder of his son and daughter-in-law on 18 September 2006 in Rabat (Morocco), and, secondly, an order that the Commission pay to him and to his son’s heirs and successors various sums by way of reparation for material and non‑material damage as a result of these murders.

Held:      The action is dismissed. The extracts from the 2006 document on security standards and criteria, sent by the European Commission to the Tribunal in the course of proceedings, are to be returned immediately to the Commission in an envelope marked ‘confidential’ and ‘classified restricted EU’. The European Commission is to pay all the costs.

Summary

1.      Officials — Actions — Action for damages brought without a prelitigation procedure provided for in the Staff Regulations — Inadmissibility

(Staff Regulations, Arts 90 and 91)

2.      Officials — Actions — Actions for damages — Amount of damage altered from that stated in the prelitigation request — Lawfulness — Conditions

3.      Officials — Social security — Occupational accident — Fixed-sum compensation under the rules of the Staff Regulations — Application for additional compensation under ordinary law — Lawfulness — Conditions

(Staff Regulations, Art. 73)

4.      Officials — Actions — Actions for damages — Origin — Employment relationship

(Art. 236 EC; Staff Regulations, Arts 90 and 91)

5.      Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness

(Art. 236 EC)

6.      Officials — Non-contractual liability of the institutions — Conditions — Compensation for harm caused to an official or other staff member — Administration's duty to have regard for the interests of officials — Scope

(Art. 236 EC; Staff Regulations, Arts 90 and 91)

7.      Officials — Protection of health and safety — Obligations of the institutions — Scope — Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work

(Charter of Fundamental Rights of the European Union, Art. 31(1); Staff Regulations, Art. 1e(2); Council Directive 89/391)

8.      Procedure — Measures of organisation of procedure — Application for production of a document — Verification of confidential nature

(Rules of Procedure of the Civil Service Tribunal, Art. 44(1) and (2))

9.      Officials — Non-contractual liability of the institutions — Failure to take minimum security measures for the accommodation of staff posted to third countries — Breach of administrative duty

10.    Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness — Injury — Causal link

11.    Officials — Non-contractual liability of the institutions — Conditions — Unlawfulness — Injury — Causal link

12.    Officials — Non-contractual liability of the institutions — Liability resulting from a lawful act — Principle not recognised in Union law

(Art. 288 EC)

13.    Officials — Obligation of administration to provide assistance — Scope

(Staff Regulations, Art. 24)

14.    Procedure — Costs — Costs caused unreasonably or vexatiously

(Rules of Procedure of the Civil Service Tribunal, Arts 87(2) and 88)

1.      In an action by an official solely seeking compensation for various heads of damage allegedly caused by a series of wrongful acts or omissions which, because they have no legal effect, cannot be described as acts adversely affecting an official, the claims for compensation are admissible before the Tribunal only if they have been preceded, first, by an application to the administration seeking the same relief and based on the same heads of damage and then by a complaint against the decision of the administration that ruled, expressly or impliedly, on that application. Within the system of actions provided for in Articles 90 and 91 of the Staff Regulations, where an action relates strictly to compensation, it is imperative that the administrative procedure commence with a request by the person concerned that the appointing authority compensate him for the damage, and be followed where appropriate by a complaint against the rejection of such request, failing which a subsequent action will be inadmissible.

Moreover, the relief sought in the application to the Courts of the European Union must be the same as that set out in the complaint, the application may contain only heads of claim based on the same cause of action as those raised in the complaint, and those heads of claim may be developed before the courts by means of pleas and arguments which did not necessarily appear in the administrative complaint but are closely linked to it. In cases relating strictly to compensation, the concept of ‘cause of action’, which must be given a broad interpretation, is defined by reference to ‘heads of damage’ raised by the official concerned in his claim for compensation. It is these heads of damage that determine the subject‑matter of the compensation sought by the official and, consequently, the relief sought by the claim on which the administration must rule.

(see paras 82-85)

See:

23 April 2002, C‑62/01 P Campogrande v Commission, para. 34

13 July 1995, T‑44/93 Saby v Commission, para. 31

1 July 2010, F‑45/07 Mandt v Parliament, para. 119

2.      In an action for damages, an official may alter, in his application, the amount of the claims stated in his application to the administration, in particular if the loss worsens further or if the extent of the damage is not known or cannot be assessed until after the application has been lodged, but on condition that the heads of damage for which he seeks compensation were listed in the application.

(see para. 86)

See:

23 September 2004, C‑150/03 P Hectors v Parliament, para. 62

3.      In view of the lump-sum nature of the benefits laid down in the Staff Regulations for the heirs and successors of a deceased official, those heirs and successors are entitled to seek additional compensation from the institution where the latter can be held responsible for the death of the official and the benefits payable under the Staff Regulations are insufficient to provide full compensation for the injury suffered.

(see para. 106)

See:

8 October 1986, 169/83 and 136/84 Leussink v Commission, para. 13; 9 September 1999, C‑257/98 P Lucaccioni v Commission, paras 22 and 23

4.      A dispute between an official and the institution to which he is or was answerable concerning compensation for damage is pursued, where it originates in the relationship of employment between the person concerned and the institution, under Article 236 EC and Articles 90 and 91 of the Staff Regulations and lies outside the sphere of application of Articles 235 EC and 288 EC. The same is true of a dispute between the heirs and successors of a deceased official or their legal representative and the institution to which the official was answerable, as such a dispute originates in the relationship of employment between the latter and the said institution.

(see para. 116)

See:

22 October 1975, 9/75 Meyer-Burckhardt v Commission, para. 7; 17 February 1977, 48/76 Reinarz v Commission and Council, para. 10; 10 June 1987, 317/85 Pomar v Commission, para. 7; 7 October 1987, 401/85 Schina v Commission, para. 9;

26 June 2009, T‑114/08 P Marcuccio v Commission, paras 12, 13 and 24

11 May 2010, F‑30/08 Nanopoulos v Commission, paras 130 to 133, on appeal before the General Court of the European Union, Case T‑308/10 P

5.      In order for an institution to incur liability under Article 236 EC, a number of conditions must be met, namely the existence of a fault or unlawful act committed by the institution, the unquestionable existence of quantifiable damage and the existence of a causal link between the fault and the alleged damage.

As regards the first of these conditions, the European Union judicature must take into account, among the relevant factors of the case before it, the discretion available to the administration at the time of the contested facts.

Where an institution has wide discretion, in particular where the applicable legal framework does not require it to act in a predetermined manner, the deciding factor for considering that the first condition is met is whether there was clear and serious disregard for the limits on its discretion. Where the administration has not committed a manifest error, it cannot be accused of unlawful conduct and it therefore does not incur liability.

However, where the discretion of the administration is considerably reduced or non‑existent, the mere infringement of European Union law may be sufficient to establish the existence of a sufficiently serious breach for the institution to incur liability. Hence, if the administration must adopt a particular form of conduct dictated by legislation in force, respect for general principles and fundamental rights or by the rules that it has imposed on itself, the simple failure to fulfil such an obligation is such as to give rise to liability on the part of the institution concerned.

(see paras 117-120)

See:

Lucaccioni v Commission, para. 14; 4 July 2000, C‑352/98 P Bergaderm and Goupil v Commission, para. 44

13 December 1990, T‑20/89 Moritz v Commission, para. 19; 9 February 1994, T‑82/91 Latham v Commission, para. 72; 21 February 1995, T‑506/93 Moat v Commission, para. 46

2 May 2007, F‑23/05 Giraudy v Commission, paras 104, 105 and 167

6.      Proceedings in civil service cases under Article 236 EC and Articles 90 and 91 of the Staff Regulations, including those seeking compensation for damage caused to an official or other member of staff, obey specific and special rules in comparison with those arising from the general principles governing the non-contractual liability of the Union under Article 235 EC and the second paragraph of Article 288 EC. It follows from the Staff Regulations in particular that, unlike any other individual, an official or other member of the Union’s staff is connected to the institution to which he belongs by a legal employment relationship involving a balance of specific reciprocal rights and obligations, which is reflected by the institution’s duty to have regard for the welfare of the person concerned. That balance is essentially intended to preserve the relationship of trust which must exist between the institutions and their officials in order to guarantee to the public that the general interest missions devolved upon the institutions are fulfilled. Consequently, where the Union acts as employer it is subject to increased liability, in the form of the duty to make reparation for damage caused to its staff by any unlawful act committed in its role as employer.

(see para. 123)

See:

29 June 1994, C‑298/93 P Klinke v Court of Justice, para. 38; 6 March 2001, C‑274/99 P Connolly v Commission, paras 44 to 47

12 June 2002, T‑187/01 Mellone v Commission, para. 74; 14 October 2004, T‑1/02 Polinsky v Court of Justice, para. 47

7.      As regards safe working conditions for its staff, an institution, like any public or private employer, has a duty to act. The staff can rely on a right to working conditions that respect their health, safety and dignity, as recalled in Article 31(1) of the Charter of Fundamental Rights of the European Union.

Likewise, it is clear from Article 1e(2) of the Staff Regulations and from several EU directives, and in particular from Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work, that the employer is required to ensure the safety and health of its staff in every aspect related to the work. In that field, the duty of an institution, as employer, to ensure the safety of its staff must be discharged with particular rigour and the administration’s discretion in this area is reduced, although not eliminated.

Although this duty to ensure the safety of its staff is wide, it cannot go as far as to place an absolute duty on the institution to achieve the desired result. In particular, budgetary, administrative or technical constraints to which the administration is subject, and which sometimes make it difficult or impossible to implement urgent and necessary measures swiftly despite the efforts of the competent authorities, cannot be ignored. Moreover, the duty to ensure safety becomes delicate where the official concerned, unlike a worker in a fixed position in a set location, is required to work in a third country and to assume a function comparable to a diplomatic function, exposed to a variety of risks that are less easy to identify and manage.

In that regard, although the accommodation of such an official is provided for him by reason of his duties and is subject to specific protection measures in certain delegations in third countries, it cannot be completely equated to a workstation or work place within the meaning of Directive 89/391. In such a situation, the institution’s duty to ensure safety implies, first, that it must assess the risks to which its staff is exposed and take integrated preventive measures at all levels of the service, secondly that it should inform the staff involved of the risks that have been identified and check that the staff have received appropriate instructions on the risks to their safety, and finally that it should take appropriate protection measures and establish the organisation and means it considers necessary.

(see paras 126, 127, 130-132)

See:

14 June 2007, C‑127/05 Commission v United Kingdom

30 April 2009, F‑65/07 Aayhan and Others v Parliament, para. 116

8.      Where a document is communicated by a party to the Civil Service Tribunal so that the Tribunal can verify its confidential nature within the meaning of Article 44(2) of its Rules of Procedure, the protection of the confidential nature of the document may mean that the other party does not have access to this document other than in the form of a summary drawn up by the Tribunal and, as a consequence, that the proceedings are not fully adversarial. Nevertheless, the other party’s right to effective legal protection can be guaranteed in such a situation only if the Tribunal, in derogation from Article 44(1) of its Rules of Procedure, itself takes account of the relevant extracts of this document in order to be in a position to decide in full knowledge of the facts, even though the institution communicated the extracts in question to the Tribunal only in order that the latter could verify the confidential nature of the document.

(see para. 156)

9.      In failing to observe the minimum security requirements for the accommodation of its staff posted to third countries, an institution commits a breach of administrative duty such as to incur liability. Although, in certain circumstances, particularly in an emergency, the occupation of temporary accommodation that does not have the same security features as permanent accommodation may be contemplated as a temporary measure, the administration cannot dispense with minimum measures to counter the main risks to the safety of the occupants of temporary accommodation or to limit the probability of their occurring, in conditions that are acceptable from the budgetary and administrative points of view. This is all the more true where special circumstances have been brought to the attention of the institution concerned.

(see paras 173, 174, 176)

10.    Only a fault leading to the damage by means of a direct link of cause and effect renders the institution liable. The Union can be held liable only for damage which is a sufficiently direct consequence of the wrongful conduct of the institution concerned. In that respect, it must be established by the applicant that, but for the fault committed, the damage would not have occurred and that the fault is the determining cause of that damage. Where the damage is an inevitable and immediate consequence of the fault committed, the causal link is established. Furthermore, the direct and certain origin of the damage may lie not in a single cause but in several causes that contributed decisively to its occurrence.

Regarding a fault consisting of an institution’s breach of its duty to observe the minimum security requirements for the accommodation of an official posted to a third country, the causal link between that fault and the official’s murder is established where it is proved to a sufficient legal standard that, had the institution complied with its duty to ensure the protection of its official, the murder would not have occurred. The same is true of the causal link between the fault and the loss of a chance of survival for the official.

(see paras 179-181, 183, 190)

See:

12 June 1986, 229/84 Sommerlatte v Commission, paras 24 to 27; 27 March 1990, C‑308/87 Grifoni v EAEC, paras 17 and 18

30 September 1998, T‑149/96 Coldiretti and Others v Council and Commission, paras 116 and 122; 9 July 1999, T‑231/97 New Europe Consulting and Brown v Commission, paras 57 to 60; 24 October 2000, T‑178/98 Fresh Marine v Commission, para. 118 and the case‑law cited therein

19 March 2010, T‑42/06 Gollnisch v Parliament, para. 110 and the case‑law cited therein

11.    The direct and certain origin of damage may lie not in a single cause but in several causes that contributed decisively to its occurrence. The case‑law does not necessarily require that the administration bear sole responsibility for the damage for it to incur liability. Where the faults are shared between an institution and a third party, the institution is required to compensate for only part of the damage suffered by the victim.

That is true where an institution creates the conditions for this damage to occur by failing to take adequate security measures to prevent the entry of an attacker into the private accommodation of a delegation official. However, since the murder was not the immediate and inevitable consequence of that fault, and the institution cannot be held primarily liable for the damage, its share of the liability is limited to 30% of the damage suffered.

(see paras 181, 192-194)

See:

Sommerlatte v Commission, paras 24 to 27, and Grifoni v EAEC, paras 17 and 18

12.    As European Union law currently stands, Article 288 EC, which refers to the ‘general principles common to the laws of the Member States’, cannot be interpreted as meaning that the Union can incur no-fault liability by reason of a lawful act or omission.

Consequently, the Union Courts cannot discern reasons why, in their relations with their staff, the institutions of the Union can be held liable on the basis of conditions that are radically different from those obtaining under Article 288 EC and far removed from the general principles common to the laws of the Member States.

(see paras 209, 212)

13.    The purpose of Article 24 of the Staff Regulations is to provide officials and other servants in active employment with protection both at the present time and in the future in order to enable them to carry out their duties better in the general interest of the service. It is clear from that article and from the associated case-law that under that provision the institutions of the Union are obliged to assist their officials only in the event of actions on the part of third parties to which the officials are subjected by reason of their position or duties.

Consequently, where an official was not murdered by reason of his position and duties, his heir or successor cannot legitimately rely on Article 24 of the Staff Regulations.

(see paras 220, 221, 224, 225)

See:

Sommerlatte v Commission, para. 19; 5 October 1988, 180/87 Hamill v Commission, para. 15

27 June 2000, T‑67/99 K v Commission, para. 32

14.    Under Article 87(2) of its Rules of Procedure the Civil Service Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any. Furthermore, under Article 88 of the Rules of Procedure, a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the other party incur costs which are held to be unreasonable or vexatious.

In that respect, where an institution has considerably delayed the proceedings by initially refusing to forward certain documents and information to the Tribunal and by obliging the Tribunal to arrange a second hearing, as well as by giving the Tribunal inaccurate answers, a fair assessment of the circumstances of the case requires that the institution be ordered to pay, in addition to its own expenses, the reasonable and duly justified expenses of the other party.

(see paras 229, 230, 232)