CELEX: 62020CJ0054
Appeal
Civil service
Non-contractual liability of the European Union based on a failure of an institution to fulfil its duty to ensure the protection of its officials
Delegation of the European Commission in Morocco
Murdered official
Non-material damage suffered by the official’s brother and sister
Remedy
Articles 270, 268 and 340 TFEU
Staff Regulations of Officials of the European Union
Articles 40, 42b, 55a, 73, 90 and 91
Concept of a ‘person to whom the Staff Regulations apply’
Statement of reasons

By its appeal, the European Commission requests the Court of Justice, first, to set aside the judgment of the General Court of the European Union of 20 November 2019, Missir Mamachi di Lusignano and Others v Commission (
T‑502/16
,
EU:T:2019:795
) (‘the judgment under appeal’), by which the General Court ordered the Commission to pay, on a joint and several basis, the sum of EUR 10000 to Mr Stefano Missir Mamachi di Lusignano and the sum of EUR 10000 to Ms Maria Letizia Missir Mamachi di Lusignano, by way of compensation for the non-material damage suffered by them as a result of the death of Mr Alessandro Missir Mamachi di Lusignano, and, secondly, to dispose of the case itself with a view to dismissing the action at first instance as inadmissible.
Legal context
Article 40 of the Staff Regulations of Officials of the European Union, in the version applicable to the present dispute (‘the Staff Regulations’), provides:
‘1.   An established official may, in exceptional circumstances and at his own request, be granted unpaid leave on personal grounds.
…
2.   Without prejudice to the provisions of Article 15, the duration of such leave shall not exceed one year. Leave may be extended for further periods.
Extensions may be for periods not exceeding one year. The total length of leave on personal grounds may not exceed 12 years in the course of the official’s entire career.
If, however, an official applies for such leave in order to be able:
…
(iii)
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,
the leave may be extended without limits, provided that, at the time of each extension, the conditions which warranted the grant of the leave continue to be fulfilled.
…’
The first paragraph of Article 42b of the Staff Regulations provides:
‘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. The total period of such leave shall not exceed nine months over the official’s entire career.’
According to Article 55a of the Staff Regulations:
‘1.   An official may request authorisation to work part time.
The Appointing Authority may grant such authorisation if this is compatible with the interests of the service.
2.   The official shall be entitled to authorisation in the following cases:
…
(e)
to care for a seriously ill or disabled spouse, relative in the ascending line, relative in the descending line, brother or sister,
…’
Article 73 of those regulations provides:
‘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 [European] 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.
…’
Article 90 of the Staff Regulations provides:
‘1.   Any person to whom these Staff Regulations apply may submit to the appointing authority, a request that it take a decision relating to him. The authority shall notify the person concerned of its reasoned decision within four months from the date on which the request was made. If at the end of that period no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph.
2.   Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him adversely, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. The complaint must be lodged within three months. …
…
… If at the end of that period no reply to the complaint has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91.’
Article 91(1) of the Staff Regulations 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). …’
Background to the dispute
The background to the dispute was set out in paragraphs 1 to 9 of the judgment under appeal and may be summarised as follows.
Mr Alessandro Missir Mamachi di Lusignano, who was due to take up his post as a political and diplomatic adviser to the Commission’s delegation in Morocco, was murdered together with his wife on 18 September 2006 in Rabat (Morocco). Those murders were committed in a house rented by that delegation for Mr Alessandro Missir Mamachi di Lusignano (‘the deceased official’), his wife and their four children.
On 12 May 2009, Mr Livio Missir Mamachi di Lusignano, the father of the deceased official, brought an action before the European Union Civil Service Tribunal seeking an order that the Commission pay compensation, first, for the material damage suffered by the children of the deceased official and, secondly, for the non-material damage suffered by those children, by himself as the father of the deceased official and by that official in the name of his children in their capacity as his heirs and successors.
By judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission (
F‑50/09
,
EU:F:2011:55
), the Civil Service Tribunal dismissed that action as inadmissible in so far as it sought compensation for non-material damage and as unfounded in so far as it sought compensation for material damage.
The father and children of the deceased official brought an appeal against that judgment before the General Court seeking to have it set aside.
The General Court upheld that appeal by judgment of 10 July 2014, Missir Mamachi di Lusignano v Commission (
T‑401/11 P
,
EU:T:2014:625
). That judgment was reviewed by the Court, which set it aside in part by judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission (
C‑417/14 RX‑II
,
EU:C:2015:588
). On referral after review, the General Court, by judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (
T‑401/11 P RENV‑RX
,
EU:T:2017:874
), ruled on the pleas in law that it had not examined in the judgment of 10 July 2014, Missir Mamachi di Lusignano v Commission (
T‑401/11 P
,
EU:T:2014:625
).
On 16 September 2011, the father and children of the deceased official, together with that official’s mother, brother and sister, brought an action before the General Court on the basis of Articles 268 and 340 TFEU. That action was removed from the register by order of 25 November 2015, Missir Mamachi di Lusignano and Others v Commission (
T‑494/11
, not published,
EU:T:2015:909
), following the applicants’ withdrawal.
On 17 September 2011, the deceased official’s father, replaced after his death by his heirs and successors, and the children of that official, together with the latter’s mother, brother and sister, once again submitted requests for compensation in respect of the non-material damage they claimed to have suffered, in accordance with the procedure laid down in Article 90(1) of the Staff Regulations.
By decision of 17 January 2012, the Commission rejected those requests. On 13 April 2012, the heirs and successors of the deceased official’s father and the children, mother, brother and sister of that official lodged a complaint under Article 90(2) of the Staff Regulations against the decision of 17 January 2012. By decision of 26 July 2012, the appointing authority rejected that complaint.
The procedure before the Civil Service Tribunal and the General Court and the judgment under appeal
On 7 November 2012, the heirs and successors of the deceased official’s father and the children, mother, brother and sister of that official brought an action before the Civil Service Tribunal against the decision of 26 July 2012 on the basis of Article 270 TFEU. That action was registered as Case F‑132/12.
By that action, they requested the Civil Service Tribunal to annul that decision, order the Commission to pay compensation for the non-material damage they claimed to have suffered and the non-material damage suffered by the deceased official, and order that institution to pay compensatory interest and default interest. In particular, the brother and sister of the deceased official requested that the Commission be ordered to pay each of them the sum of EUR 154350 by way of compensation for the non-material damage they claimed to have suffered.
The proceedings before the Civil Service Tribunal were stayed, first, in order to take account of the final decisions in Cases T‑401/11 P and T‑494/11 referred to in paragraphs 13 and 14 above, and a second time in order to take into account the review by the Court of Justice in Case C‑417/14 RX‑II and the referral back to the General Court in Case T‑401/11 P RENV‑RX referred to in those paragraphs.
On 2 September 2016, pursuant to Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (
OJ 2016 L 200, p. 137
), Case F‑132/12 was transferred to the General Court and registered as Case T‑502/16.
The Commission disputed both the admissibility and the merits of that action.
As regards admissibility, the Commission maintained that the brother and sister of the deceased official could not be regarded as persons to whom the Staff Regulations apply for the purposes of Article 91(1) thereof, such that the General Court, before which proceedings were brought by virtue of its jurisdiction as the civil service court conferred by Article 270 TFEU, lacked jurisdiction and that the action was inadmissible.
The General Court rejected that plea of inadmissibility in paragraphs 40 to 64 of the judgment under appeal, holding that the deceased official’s brother and sister had standing to bring proceedings under Article 270 TFEU.
In support of that rejection, the General Court noted that an action brought on the basis of Article 270 TFEU and Article 91 of the Staff Regulations is admissible only where it concerns a dispute between the European Union and a person covered by those regulations. In order for an applicant to be regarded as a person to whom the Staff Regulations apply, the General Court held that the person must be so regarded not in any context, but in a context that either reflects a relevant connection between that person and the contested act, or reflects such a connection between that person and the official the harm to whose interests allegedly causes damage to that person. According to the General Court, that is the case for the siblings of an official, since Articles 40, 42b and 55a of the Staff Regulations apply to them. The General Court points out in that regard that the EU legislature intended to take note, by means of specific statutory provisions, of their close relationship with the official. The General Court stated that the fact that, at the time of the murder of the deceased official, his brother and sister were not actually in any of the situations envisaged by Articles 40, 42b and 55a of the Staff Regulations did not in any way preclude the recognition in those regulations of the ties between siblings. Thus, according to paragraph 54 of the judgment under appeal, those provisions of the Staff Regulations are relevant not because they correspond to the specific situation of the parties at the material time but because they demonstrate that those regulations recognise the family ties between officials and their siblings. According to the General Court, that assessment is supported by the findings of the Court of Justice in paragraphs 41 and 42 of the judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission (
C‑417/14 RX‑II
,
EU:C:2015:588
).
Accordingly, the General Court concludes, in paragraph 57 of the judgment under appeal, that the siblings of an official must be regarded as persons ‘to whom [the] Staff Regulations apply’ in order to determine the legal procedure to be followed when they seek compensation for non-material damage suffered as a result of the death of their brother or sister who was an official, for which the institution is, in their view, responsible. The General Court also stated, in essence, that the fact that the siblings of an official are not included in the priority list in Article 73 of the Staff Regulations and are not therefore potential recipients of the benefits payable under that article, but are referred to in other provisions of the Staff Regulations, thereby reflecting a relevant connection with the deceased official, does not in any way mean that they are deprived of the procedural possibility of seeking, by means of Article 270 TFEU, compensation for their own injury.
As regards the assessment of the merits of the claims for damages made by the brother and sister of the deceased official, the General Court in particular rejected, in paragraphs 134 and 135 of the judgment under appeal, the Commission’s complaints based on paragraphs 33 and 34 of the judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission (
C‑417/14 RX‑II
,
EU:C:2015:588
), on the ground that those paragraphs concerned the jurisdiction of the General Court and not the merits of those claims.
Furthermore, in paragraphs 155 to 172 of the judgment under appeal, the General Court rejected the Commission’s argument that the brother and sister of the deceased official had not sufficiently demonstrated the existence of a causal link between the Commission’s breach of its obligation to protect the deceased official and the damage they suffered. It relied in that regard on the fact that the causal link between that breach and the murder of the deceased official was definitively recognised in the judgments of 12 May 2011, Missir Mamachi di Lusignano v Commission (
F‑50/09
,
EU:F:2011:55
), and of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (
T‑401/11 P RENV‑RX
,
EU:T:2017:874
, paragraph
), and held that the fact that the non-material damage suffered by that official’s brother and sister constituted secondary or indirect damage compared with the damage suffered by that official had no bearing on the fact that such non-material damage should be recognised as compensable in accordance with the general principles common to the Member States.
Finally, on the basis of all the grounds set out in the judgment under appeal, the General Court ordered the Commission to pay, on a joint and several basis, the sum of EUR 10000 to each of the brother and sister of the deceased official by way of compensation for the non-material damage suffered by them, plus default interest.
Forms of order sought
By its appeal, the Commission submits that the Court should:
–
set aside the judgment under appeal in so far as the General Court ordered the Commission to pay compensation for the non-material damage suffered by Mr Stefano Missir Mamachi di Lusignano and Ms Maria Letizia Missir Mamachi di Lusignano following the death of their brother;
–
itself dispose of the case and dismiss the action at first instance as inadmissible; and
–
order Mr Stefano Missir Mamachi di Lusignano and Ms Maria Letizia Missir Mamachi di Lusignano to pay the costs of the proceedings on appeal and at first instance.
Mr Stefano Missir Mamachi di Lusignano and Ms Maria Letizia Missir Mamachi di Lusignano contend that the Court should:
–
dismiss the appeal; and
–
order the Commission to pay the costs of the proceedings on appeal and at first instance.
The appeal
In support of its appeal, the Commission puts forward two grounds of appeal. In the first ground of appeal, it submits that the General Court erred in law in holding that the brother and sister of the deceased official were entitled to bring legal proceedings on the basis of Article 270 TFEU to obtain compensation for the damage resulting from the death of that official. In the second ground of appeal, put forward in the alternative, the Commission claims that the General Court failed to comply with its obligation to state reasons.
The first ground of appeal
The first ground of appeal comprises two parts.
First part of the first ground of appeal
–
Arguments of the parties
The Commission alleges that the General Court erred in law in holding that the brother and sister of the deceased official were entitled to bring an action under Article 270 TFEU since they are persons to whom the Staff Regulations apply for the purposes of Article 91(1) thereof.
In the first place, the Commission submits that, in paragraphs 48 to 64 of the judgment under appeal, the General Court incorrectly set out and applied a circular argument according to which a family member of an official is a person to whom the Staff Regulations apply by virtue of his or her family connection with the official. Article 91(1) of the Staff Regulations refers not to a connection by virtue of which a person is regarded as a person to whom those regulations apply, but to the right of a person to whom those regulations apply to challenge an act affecting him or her adversely. According to the Commission, the General Court was not entitled to infer from Articles 40, 42b and 55a of the Staff Regulations that a brother or sister of an official is a person to whom those regulations apply, for the purposes of Article 91(1) thereof, since the obligations laid down in those articles exist solely in relation to officials, and not in relation to members of their family. The latter are not designated by the EU legislature as eligible for a benefit provided for by the Staff Regulations. Consequently, only officials have a right to bring legal proceedings on the basis of those articles.
In the second place, the Commission argues that the criterion set out and applied by the General Court in paragraphs 51 to 62 of the judgment under appeal, according to which a person is referred to in a context which reflects a connection between that person and the official the harm to whose interests allegedly causes damage to that person, is contrary to the wording of Article 91(1) of the Staff Regulations, which refers to a person to whom those regulations apply who challenges an act affecting such person adversely. The decisive criterion for the General Court is the harm to the interests of the official and not the harm to the interests of the person exercising his or her right to obtain a judicial determination. Thus, the criterion used by the General Court results in a discretionary assessment of the relevance of the connection between the applicant and the measure which he or she is challenging and thus broadens the access to the courts referred to in Article 91(1) of the Staff Regulations. Such a criterion renders meaningless the condition of admissibility relating to the existence of an act affecting the applicant adversely, since, in the case of a provision of the Staff Regulations of any kind, even one that does not apply to a particular person, that person could always be regarded as a person to whom those regulations apply, irrespective of any connection between the act which he or she is challenging and the obligations laid down in those regulations.
In the third place, contrary to what was found in the judgment under appeal, paragraphs 30 to 35 of the judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission (
C‑417/14 RX‑II
,
EU:C:2015:588
), do not support the General Court’s interpretation of the concept of a ‘person to whom the Staff Regulations apply’ for the purposes of Article 91(1) thereof. Thus, in paragraph 34 of that judgment, the Court found that a person is covered by the Staff Regulations where he or she falls within the scope of those regulations, which is determined by specific provisions of the Staff Regulations referring to persons other than officials as potential recipients of a specific benefit, such as Article 73 thereof which provides that members of an official’s family are potential recipients of certain benefits in the event of the death of that official. Thus, the Court held that Article 73 of the Staff Regulations is relevant for determining whether or not the siblings of an official are persons to whom those regulations apply not because it demonstrates a connection between an official and his or her family in general, but because it is capable of applying to certain specific members of an official’s family in the event of his or her death. According to the Commission, since, in support of their action, the brother and sister of the deceased official allege non-material damage as a result of his death, Article 73 of the Staff Regulations is the only provision that is relevant for determining whether or not they are persons to whom those regulations apply. Under that article, they are not such persons.
Mr Stefano Missir Mamachi di Lusignano and Ms Maria Letizia Missir Mamachi di Lusignano submit that the first part of the first ground of appeal must be rejected as unfounded.
–
Findings of the Court
Under Article 270 TFEU, the Court of Justice is to have jurisdiction in any dispute between the European Union and its servants within the limits and under the conditions laid down in the Staff Regulations and the Conditions of Employment of Other Servants of the European Union. In accordance with Article 256(1) TFEU and Articles 50a and 56 of the Statute of the Court of Justice of the European Union, that jurisdiction is to be exercised at first instance by the General Court and on appeal by the Court of Justice.
Article 270 TFEU thus creates a means of legal redress for civil service disputes distinct from general remedies such as actions for annulment governed by Article 263 TFEU and actions for damages governed by Article 268 TFEU and the second and third paragraphs of Article 340 TFEU.
For the purposes of determining the jurisdiction of the EU Court before which proceedings are brought under Article 270 TFEU, it is appropriate to take into account, in addition to the wording of that article, the provisions of the Staff Regulations, having regard to the reference in that article to those regulations, and, in particular, Articles 90 and 91 of the Staff Regulations, which implement Article 270 TFEU (see, to that effect, judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission,
C‑417/14 RX‑II
,
EU:C:2015:588
, paragraph
and the case-law cited). Those provisions define that jurisdiction both
ratione materiae
and
ratione personae
.
As regards the jurisdiction
ratione materiae
of the EU Courts under Article 270 TFEU, it should be noted that the Staff Regulations are intended to regulate legal relations between the EU institutions and their officials, by establishing, inter alia, a series of reciprocal rights and obligations (judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission,
C‑417/14 RX‑II
,
EU:C:2015:588
, paragraph
and the case-law cited). The Staff Regulations thus govern the conditions of employment of officials by the EU institutions. Consequently, Article 270 TFEU grants the EU Courts substantive jurisdiction to rule on disputes which have their origin in the employment relationship between those persons and the EU institutions.
Since, under Article 270 TFEU, as implemented by Article 91(1) of the Staff Regulations, the Court has jurisdiction to rule on ‘any dispute’ between the EU and persons to whom those regulations apply, it is settled case-law that any dispute between an official and the institution to which he or she belongs, even in the case of an action for compensation, falls within the scope of those provisions where that dispute has its origin in the employment relationship between that official and that institution (see, to that effect, judgment of 15 July 2021, OH (Immunity from jurisdiction),
C‑758/19
,
EU:C:2021:603
, paragraph
and the case-law cited).
Thus, the jurisdiction
ratione materiae
of the EU Courts under Article 270 TFEU derives from the origin of the dispute at issue, as defined in paragraph 41 above, and not from the legal basis giving rise to the right to compensation as such (see, to that effect, judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission,
C‑417/14 RX‑II
,
EU:C:2015:588
, paragraph
).
As regards the jurisdiction
ratione personae
of the EU Courts under Article 270 TFEU, it relates only to individual disputes. Articles 90 and 91 of the Staff Regulations establish a procedure designed to deal exclusively with individual disputes (see, to that effect, judgment of 8 October 1974, Union syndicale – Service public européen and Others v Council,
175/73
,
EU:C:1974:95
, paragraph
).
In addition, Article 91(1) of the Staff Regulations states that the Court of Justice is to have jurisdiction in any dispute between the European Union and ‘any person to whom [the] Staff Regulations apply’ regarding the legality of an act affecting such person adversely, within the meaning of Article 90(2) of those regulations. In accordance with the latter provision, ‘any person to whom [the] Staff Regulations apply’ may submit to the appointing authority a complaint against an act affecting him or her adversely.
Those provisions which refer, in general terms, to any person to whom the Staff Regulations apply do not, as such, permit a distinction to be made between an application brought by an official and one brought by any other person referred to in the regulations (judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission,
C‑417/14 RX‑II
,
EU:C:2015:588
, paragraph
). Thus, under those provisions, the jurisdiction
ratione personae
of the EU Courts under Article 270 TFEU is not limited solely to applications brought by officials, but includes those brought by any other person to whom the Staff Regulations apply.
With a view to determining the persons other than an official who may be regarded as persons ‘to whom the Staff Regulations apply’ for the purposes of Article 91(1) thereof, it must be borne in mind, as is apparent from paragraph 41 above, that the Staff Regulations are intended to regulate legal relations between the EU institutions and their officials.
In order to achieve that aim, the Staff Regulations not only establish a series of reciprocal rights and obligations between those institutions and their officials but also confer rights and benefits on certain members of the families of those officials.
Thus, Article 73 of the Staff Regulations grants the surviving spouse, children, other descendants and/or relatives in the ascending line of the official, under certain conditions, entitlement to benefits in the event of that official’s death.
In addition, Articles 40, 42b and 55a of the Staff Regulations allow the spouse, a relative in the ascending line, a relative in the descending line, a brother or a sister of an official who are suffering from a serious illness or disability, to receive that official’s assistance where the latter exercises, for the purposes of that assistance, his or her right to apply for leave on personal grounds, for family leave or to work part time respectively. Those provisions, which are intended to enable an official to reconcile his or her professional life with certain requirements of his or her private life, accordingly confer on certain members of his or her family who are in difficulty a benefit when that official is granted time to care for them.
The grant of such rights and benefits to those designated members of the official’s family constitutes recognition of the close family ties between those persons and the official, and of the potential influence of those family ties on the conditions in which the official is required to carry out his or her work.
The fact that the Staff Regulations take account of those members of the official’s family in that way means that they are persons ‘to whom the Staff Regulations apply’ for the purposes of Article 91(1) thereof, irrespective of whether an applicant does in fact have, in the particular case under consideration, a right or benefit conferred by the Staff Regulations such as those referred to in paragraphs 49 and 50 above. The determination of the jurisdiction
ratione personae
of the EU Courts under Article 270 TFEU and Article 91(1) of the Staff Regulations is a matter separate from the actual grant of a right or benefit to the person to whom those regulations apply who brings an action before those courts. If it were otherwise, it would be necessary, in order to rule on that jurisdiction to hear and determine an application brought before those courts, first to examine the merits of that application (see, to that effect, judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission,
C‑417/14 RX‑II
,
EU:C:2015:588
, paragraph
).
The assessment that the members of an official’s family referred to in Articles 40, 42b and 55a of the Staff Regulations are persons to whom those regulations apply, for the purposes of Article 91(1) thereof, is not called into question by the fact that the latter provision provides that the dispute must relate to the legality of an act adversely affecting a person to whom the Staff Regulations apply, for the purposes of Article 90(2) thereof. Article 90 of the Staff Regulations establishes a compulsory procedure intervening prior to the bringing of an action, with the result that an action may be brought on the basis of Article 270 TFEU only after the complaint lodged by the applicant has been rejected following an express or implied decision of the appointing authority rejecting his or her request. An action for annulment or an action for damages brought on the basis of Article 270 TFEU is therefore admissible only where there is an express or implied decision rejecting the administrative complaint, which is the act adversely affecting the person to whom the Staff Regulations apply, for the purposes of Article 91(1) thereof. Nothing precludes a member of an official’s family designated by Articles 40, 42b and 55a of the Staff Regulations from being the addressee of a decision rejecting a complaint relating to an initial decision affecting him or her adversely, in accordance with Articles 90 and 91 of those regulations.
Moreover, contrary to what the Commission maintains, the assessment that the jurisdiction
ratione personae
of the EU Courts before which proceedings are brought on the basis of Article 270 TFEU may be founded on Articles 40, 42b and 55a of the Staff Regulations, which confer benefits on certain members of an official’s family, is not based on a discretionary assessment of the connection between the applicant and the act he or she is challenging. It is incorrect to take the view that, in the case of a provision of the Staff Regulations of any kind, an applicant could always be regarded as a person to whom those regulations apply, irrespective of any connection between the act he or she is challenging and the obligations laid down by the Staff Regulations. An action brought on the basis of Article 270 TFEU is admissible only where, first, the applicant is a person to whom the Staff Regulations apply and challenges a decision rejecting his or her administrative complaint, for the purposes of Articles 90 and 91 of those regulations, and, secondly, the dispute has its origin in an employment relationship between an official or servant and an institution or agency of the European Union.
Thus, the members of an official’s family referred to in Articles 40, 42b and 55a of the Staff Regulations, although not officials, are persons to whom those regulations apply, for the purposes of Article 91(1) thereof, as a result of their family ties with that official, and who may therefore bring an action for damages where the dispute has its origin in the employment relationship referred to in paragraph 54 above (see, to that effect, judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission,
C‑417/14 RX‑II
,
EU:C:2015:588
, paragraph
).
Accordingly, the General Court did not err in law when it held, in essence, in paragraphs 48 to 64 of the judgment under appeal, that, in the light of the content of Articles 40, 42b and 55a of the Staff Regulations, which implies that those regulations recognise the ties between an official and his or her siblings, the latter are persons to whom the Staff Regulations apply, for the purposes of Article 91(1) thereof.
For all the foregoing reasons, the first part of the first ground of appeal must be rejected as unfounded.
Second part of the first ground of appeal
–
Arguments of the parties
The Commission submits, in essence, that if the Court were to consider that the siblings of a deceased official are persons to whom the Staff Regulations apply, for the purposes of Article 91(1) thereof, it should nevertheless take account of the fact that it follows from paragraphs 31 to 35 of the judgment of 10 September 2015, Missir Mamachi di Lusignano vCommission (
C‑417/14 RX‑II
,
EU:C:2015:588
), that, in the event of the death of an official, only the persons expressly designated in Article 73 of the Staff Regulations are persons to whom those regulations apply for the purposes of bringing an action for damages resulting from that death.
Consequently, in paragraphs 134 and 135 of the judgment under appeal, the General Court erred in law in recognising the brother and sister of the deceased official as having standing to bring proceedings under Article 270 TFEU in order to seek compensation for non-material damage on the basis of a provision of the Staff Regulations other than Article 73 thereof, and in stating that the reference made in paragraphs 33 and 34 of the judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission (
C‑417/14 RX‑II
,
EU:C:2015:588
), was inappropriate and should be disregarded.
Mr Stefano Missir Mamachi di Lusignano and Ms Maria Letizia Missir Mamachi di Lusignano submit that the second part of the first ground of appeal must be rejected as unfounded.
–
Findings of the Court
It should be recalled that, in paragraphs 33 to 35 of the judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission (
C‑417/14 RX‑II
,
EU:C:2015:588
), the Court recognised the jurisdiction
ratione personae
of the Civil Service Tribunal to hear and determine the claim for compensation brought by the father of the deceased official in his own name and in the name of that official’s children. It noted in that regard that those persons were covered by Article 73(2)(a) of the Staff Regulations since that provision expressly designates the children of the official and his or her relatives in the ascending line as persons who may, in the event of that official’s death, receive the benefits provided for in that provision. However, as is apparent from paragraph 52 above, the Court also stated that the question whether those persons were actually entitled to benefits guaranteed by the Staff Regulations could not be taken into consideration for the purposes of determining the jurisdiction
ratione personae
of that tribunal, since, if it were otherwise, it would be necessary, for the purposes of ruling on that jurisdiction, first to examine the merits of an application brought before it.
Contrary to what the Commission claims, it is not apparent from paragraphs 33 and 34 of the judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission (
C‑417/14 RX‑II
,
EU:C:2015:588
), that the only persons, other than officials, who may bring an action for damages on the basis of Article 270 TFEU following the death of an official are those referred to in Article 73(2)(a) of the Staff Regulations. The designation, made in that provision, of the spouse, descendants and relatives in the ascending line of the official as persons who may, in the event of the death of that official, receive a benefit constitutes only one situation, among others, in which persons other than officials are persons to whom the Staff Regulations apply, for the purposes of Article 91(1) thereof, and may therefore bring an action for damages on the basis of Article 270 TFEU. The designation made in Article 73(2)(a) of the Staff Regulations, which provides for the payment of certain financial benefits on a lump-sum basis to specific persons in the event of the death of an official, does not therefore limit the persons to whom those regulations apply who may bring an action seeking payment of compensation, distinct from those benefits, on the basis of Article 270 TFEU for damage resulting from the death of an official.
Accordingly, the General Court did not err in law in its assessment of the merits of the claims for compensation made to the Commission by the brother and sister of the deceased official in holding, in paragraphs 134 and 135 of the judgment under appeal, that paragraphs 33 and 34 of the judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission (
C‑417/14 RX‑II
,
EU:C:2015:588
), concerned the determination of the court having jurisdiction
ratione personae
and that, therefore, the reference to those paragraphs was inappropriate and should be disregarded.
The second part of the first ground of appeal must therefore be rejected as unfounded and, accordingly, that ground of appeal must be rejected in its entirety.
The second ground of appeal
Arguments of the parties
By the second ground of appeal, put forward in the alternative, the Commission submits that the General Court failed to comply with its obligation to state reasons.
First, according to the Commission, in paragraphs 154 to 168, 171, 172 and 181 of the judgment under appeal, the General Court did not state reasons for its conclusion that there was a causal link between the Commission’s conduct and the non-material damage caused to the brother and sister of the deceased official. The reasons given in paragraphs 155 and 161 of the judgment under appeal, according to which the Commission did not dispute the existence of that causal link and that link can be inferred from the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (
T‑401/11 P RENV-RX
,
EU:T:2017:874
), are not relevant because they are incorrect.
Secondly, the Commission submits that the General Court’s reasoning is contradictory in that, in paragraphs 161 and 162 of the judgment under appeal, it considered itself bound by the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (
T‑401/11 P RENV‑RX
,
EU:T:2017:874
), which establishes the Commission’s liability in the death of the official in question, whereas, in paragraph 166 of the judgment under appeal, it ruled out the possibility that the establishment of that liability might be relevant in the present case. Therefore, the General Court was not entitled to conclude, in paragraphs 172 and 181 of the judgment under appeal, that the Commission was liable for the non-material damage suffered by the brother and sister of the deceased official.
Mr Stefano Missir Mamachi di Lusignano and Ms Maria Letizia Missir Mamachi di Lusignano submit that the second ground of appeal is unfounded.
Findings of the Court
According to settled case-law, the obligation of the General Court to state reasons, pursuant to the second paragraph of Article 296 TFEU and Article 36 of the Statute of the Court of Justice of the European Union, is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded (see, to that effect, judgment of 30 November 2016, Commission v France and Orange,
C‑486/15 P
,
EU:C:2016:912
, paragraph
).
Thus, also according to settled case-law, that obligation requires the General Court to express in a clear and unequivocal manner the reasoning that it has followed, in a way that allows the interested parties to understand the justification for the decision taken and permits the Court of Justice to exercise its powers of review (see, to that effect, judgments of 26 July 2017, Staatliche Porzellan-Manufaktur Meissen v EUIPO,
C‑471/16 P
, not published,
EU:C:2017:602
, paragraph
, and of 25 November 2020, Commission v GEA Group,
C‑823/18 P
,
EU:C:2020:955
, paragraph
and the case-law cited).
In the present case, in paragraphs 153 to 155 of the judgment under appeal, the General Court considered that, in paragraphs 182 to 190 of the judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission (
F‑50/09
,
EU:F:2011:55
), the Civil Service Tribunal had held that there was a causal link between the Commission’s wrongful failure to comply with its duty to ensure the protection of the official in question and his murder, and that that assessment was definitive in the absence of an appeal brought by the Commission against that judgment. It also recalled that, in the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (
T‑401/11 P RENV‑RX
,
EU:T:2017:874
), it had noted that the Commission did not dispute that assessment of the Civil Service Tribunal.
Furthermore, in paragraphs 156 to 161 of the judgment under appeal, the General Court stated, inter alia, that the discussion concerning the relationship between the theories of equivalence of conditions and adequate causation which took place in the course of the proceedings culminating in the judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission (
F‑50/09
,
EU:F:2011:55
), and in the course of the proceedings which led to the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (
T‑401/11 P RENV‑RX
,
EU:T:2017:874
), had been conducted solely for the purposes of determining whether the Commission could be held liable for the death of the official in question.
In paragraphs 162 to 166 of the judgment under appeal, the General Court held, in essence, that the definitive finding by the EU Courts that there was a causal link between the wrongful conduct of the Commission and the murder of the official in question was fully applicable to the present case. It held in particular that the fact that the applicants at first instance were not the children or parents of the deceased official but his brother and sister was irrelevant since Article 73 of the Staff Regulations did not preclude an official’s siblings from the possibility of obtaining compensation, and that it followed from the general principles common to the Member States that siblings were entitled to seek, where appropriate, compensation for non-material damage for the loss of their brother. In addition, it stated that the fact that the non-material damage suffered by an official’s siblings constituted secondary or indirect damage compared with the damage suffered by the official himself did not preclude that non-material damage from being recognised as compensable in accordance with the general principles common to the Member States.
Finally, in paragraphs 167 to 169 of the judgment under appeal, the General Court noted that the applicants at first instance had put forward specific considerations for the purposes of establishing the genuineness and severity of the non-material damage they suffered as a result of the death of their brother by referring to the unique and particularly tragic circumstances of that death, the family’s severe anxiety for the future of the children of that official and the undue pain and suffering resulting from the loss of their brother. The General Court recognised that those considerations were in fact such as to have caused the deceased official’s brother and sister uncommonly intense emotional suffering, but that, apart from that suffering, they had not adduced proof of the existence of emotional ties between the official and his siblings which exceed the ordinary emotional ties between adult siblings leading independent lives.
In the light of those factors, it must be held that the General Court properly stated the reasons for its conclusion that there was a causal link between the Commission’s breach of its duty to protect the deceased official and the non-material damage suffered by that official’s brother and sister following his murder. Paragraphs 153 to 169 of the judgment under appeal set out in a sufficiently clear and unequivocal manner the reasoning followed by the General Court and allow the Commission in particular to understand the justification for the decision taken and the Court to exercise its powers of review.
That assessment is not called into question by the Commission’s arguments that, first, it had disputed, in the proceedings which led to the judgment under appeal, the existence of a causal link between its conduct and the non-material damage suffered by the brother and sister of the deceased official; that, secondly, it could not bring an appeal against the judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission (
F‑50/09
,
EU:F:2011:55
), since it had not been unsuccessful in its claims and it therefore could not be inferred from the absence of such an appeal that it did not dispute the findings set out in that judgment; and that, thirdly, the considerations referred to in the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (
T‑401/11 P RENV‑RX
,
EU:T:2017:874
), did not make it possible to exempt the General Court from its obligation to set out the reasons for finding that there was a causal link between the Commission’s conduct and the non-material damage caused to the brother and sister of the deceased official.
By those arguments, the Commission disputes the merits of the General Court’s assessment relating to the existence of that causal link and not the fact that the General Court did not express in a clear and unequivocal manner the reasoning it followed in the judgment under appeal. As stated in paragraph 69 above, the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded.
Furthermore, the assessment that the judgment under appeal is properly reasoned cannot be called into question by the Commission’s argument alleging a contradiction between the reasons given in paragraphs 161 and 162 of the judgment under appeal and those given in paragraph 166 of that judgment. The General Court was entitled, without contradicting itself, to find, first, that the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (
T‑401/11 P RENV‑RX
,
EU:T:2017:874
), was relevant for the purpose of establishing a causal link between the wrongful conduct of the Commission and the murder of the official in question and, secondly, that the consideration that the non-material damage suffered by the siblings of an official as a result of the latter’s death is damage recognised as compensable in accordance with the general principles common to the Member States was not called into question by the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (
T‑401/11 P RENV‑RX
,
EU:T:2017:874
), since, in the case which gave rise to that judgment, the General Court was not asked to rule on whether the brother and sister of the deceased official were entitled to compensation for non-material damage.
It follows that the second ground of appeal must be rejected as unfounded and that, consequently, the appeal must be dismissed in its entirety.
Costs
In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded the Court is to make a decision as to the costs.
Under Article 138(1) of those rules of procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since Mr Stefano Missir Mamachi di Lusignano and Ms Maria Letizia Missir Mamachi di Lusignano have applied for costs to be awarded against the Commission and the latter has been unsuccessful, the Commission must be ordered to bear its own costs and to pay those incurred by Mr Stefano Missir Mamachi di Lusignano and Ms Maria Letizia Missir Mamachi di Lusignano.

On those grounds, the Court (Second Chamber) hereby:

1.
Dismisses the appeal;

2.
Orders the European Commission to bear its own costs and to pay those incurred by Mr Stefano Missir Mamachi di Lusignano and Ms Maria Letizia Missir Mamachi di Lusignano.

[Signatures]
(
*1
)	Language of the case: Italian.