# C_2011282EN.01003801.xml

| 24.9.2011 | EN | Official Journal of the European Union | C 282/38 |
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24.9.2011

EN

Official Journal of the European Union

C 282/38

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Appeal brought on 27 July 2011 by Livio Missir Mamachi di Lusignano against the judgment of the Civil Service Tribunal of 12 May 2011 in Case F-50/09, Livio Missir Mamachi di Lusignano v Commission

(Case T-401/11 P)

2011/C 282/73

Language of the case: Italian

Parties

Parties

Appellant: Livio Missir Mamachi di Lusignano (Kerkhove-Avelgem, Belgium) (represented by F. Di Gianni, R. Antonini, G. Coppo and A. Scalini, lawyers)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought by the appellant

Form of order sought by the appellant

The appellant claims that the Court should:

| — | Set aside the judgment of the Civil Service Tribunal (First Chamber) of 12 May 2011 in Case F-50/09 Livio Missir Macachi di Lusignano v European Commission rejecting the action brought by Livio Missir Mamachi di Lusignano under Article 236 EC and Article 90(2) of the Staff Regulations for annulment of decision of the appointing authority of 3 February 2009 and an order that the Commission pay compensation for the material and non-material damage arising as a result of the murder of Alessandro Missir Mamachi di Lusignano and his wife; |
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Set aside the judgment of the Civil Service Tribunal (First Chamber) of 12 May 2011 in Case F-50/09 Livio Missir Macachi di Lusignano v European Commission rejecting the action brought by Livio Missir Mamachi di Lusignano under Article 236 EC and Article 90(2) of the Staff Regulations for annulment of decision of the appointing authority of 3 February 2009 and an order that the Commission pay compensation for the material and non-material damage arising as a result of the murder of Alessandro Missir Mamachi di Lusignano and his wife;

Livio Missir Macachi di Lusignano

European Commission

| — | Order the Commission to pay to the appellant and the successors of Alessandro Missir Mamachi di Lusignano represented by the appellant a sum of money by way of compensation for the material and non-material damage sustained by them as well as the non-material damage suffered by the victim before his death; |
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Order the Commission to pay to the appellant and the successors of Alessandro Missir Mamachi di Lusignano represented by the appellant a sum of money by way of compensation for the material and non-material damage sustained by them as well as the non-material damage suffered by the victim before his death;

| — | Order the Commission to pay the costs of the proceedings. |
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Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

The appellant relies on three grounds in support of his appeal:

| 1. | First ground, alleging that the Civil Service Tribunal erred in holding that the claim for compensation for the non-material damage suffered by the appellant, Alessandro Missir and his heirs was inadmissible.
  In support of that ground, the appellant submits, first, that the Civil Service Tribunal applied in an illogical, incorrect and discriminatory manner what is known as the rule on consistency, which requires identity of cause and subject-matter solely between the complaint submitted under Article 90(2) of the Staff Regulations and the appeal lodged under Article 91 of those regulations, not between the request under Article 90(1) and the complaint under Article 90(2). Second, the appellant submits that the Civil Service Tribunal’s interpretation of the rule on consistency gives rise to a limitation on the exercise of the fundamental right to effective judicial protection, enshrined, inter alia, in Article 47 of the Charter of Fundamental Rights of the European Union. |
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1.

First ground, alleging that the Civil Service Tribunal erred in holding that the claim for compensation for the non-material damage suffered by the appellant, Alessandro Missir and his heirs was inadmissible.

In support of that ground, the appellant submits, first, that the Civil Service Tribunal applied in an illogical, incorrect and discriminatory manner what is known as the rule on consistency, which requires identity of cause and subject-matter solely between the complaint submitted under Article 90(2) of the Staff Regulations and the appeal lodged under Article 91 of those regulations, not between the request under Article 90(1) and the complaint under Article 90(2). Second, the appellant submits that the Civil Service Tribunal’s interpretation of the rule on consistency gives rise to a limitation on the exercise of the fundamental right to effective judicial protection, enshrined, inter alia, in Article 47 of the Charter of Fundamental Rights of the European Union.

| 2. | The second ground of appeal, alleging that the Civil Service Tribunal erred in finding that the Commission was only 40 % responsible for the damage caused.
  In support of this ground, the appellant submits that the Civil Service Tribunal made an incorrect assessment of the relationship between the Commission’s unlawful conduct and the possible consequences of that failure to act, since the damage caused to the official was the direct and foreseeable consequence of that institution’s negligent conduct. Moreover, the appellant submits that, while the damage came about as a result of various contributory causes, the Commission is to be held jointly and severally liable with the murderer for the compensation for the damage. It follows that 100 % of the appellant’s claim for compensation to be paid by the Commission should be granted. |
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2.

The second ground of appeal, alleging that the Civil Service Tribunal erred in finding that the Commission was only 40 % responsible for the damage caused.

In support of this ground, the appellant submits that the Civil Service Tribunal made an incorrect assessment of the relationship between the Commission’s unlawful conduct and the possible consequences of that failure to act, since the damage caused to the official was the direct and foreseeable consequence of that institution’s negligent conduct. Moreover, the appellant submits that, while the damage came about as a result of various contributory causes, the Commission is to be held jointly and severally liable with the murderer for the compensation for the damage. It follows that 100 % of the appellant’s claim for compensation to be paid by the Commission should be granted.

| 3. | The third ground, alleging that the Civil Service Tribunal erred in finding that, as a result of the benefits already paid to Alessandro Missir’s heirs, the Commission has fully compensated for the damage for which it is responsible.
  In support of the third ground, the appellant submits that, in the light of the principles to be inferred from European Union case-law, benefits other than those referred to in Article 73 cannot contribute to the compensation for the damage, since such benefits differ from compensation for damage under European Union law on account of the grounds and conditions on which they are granted and their purpose. Consequently, as the Commission has failed to compensate fully for the damage for which it is responsible, it must be ordered to pay to the appellant a sufficient amount to ensure full compensation for the damage suffered by the murdered official and his successors. |
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3.

The third ground, alleging that the Civil Service Tribunal erred in finding that, as a result of the benefits already paid to Alessandro Missir’s heirs, the Commission has fully compensated for the damage for which it is responsible.

In support of the third ground, the appellant submits that, in the light of the principles to be inferred from European Union case-law, benefits other than those referred to in Article 73 cannot contribute to the compensation for the damage, since such benefits differ from compensation for damage under European Union law on account of the grounds and conditions on which they are granted and their purpose. Consequently, as the Commission has failed to compensate fully for the damage for which it is responsible, it must be ordered to pay to the appellant a sufficient amount to ensure full compensation for the damage suffered by the murdered official and his successors.

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