# 62016TJ0502

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

20 November 2019 (
  *1
  )

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(Civil service — Officials — Murder of an official and his wife — Obligation to ensure the safety of staff in the service of the European Union — Liability of the institution for non-material damage suffered by the family members of a deceased official — Mother, brother and sister of the official — Action for damages — Admissibility — Standing to bring proceedings under Article 270 TFEU — Person covered by the Staff Regulations — Reasonable period of time)

In Case T‐502/16,

Stefano Missir Mamachi di Lusignano, residing in Shanghai (China), and the other applicants whose names are listed in the annex, (
  1
  ) represented by F. Di Gianni, G. Coppo and A. Scalini, lawyers,

Stefano Missir Mamachi di Lusignano

1

applicants,

v

European Commission, represented initially by B. Eggers, G. Gattinara and D. Martin, and subsequently by G. Gattinara and R. Striani, acting as Agents,

European Commission

defendant,

ACTION under Article 270 TFEU seeking, in essence, an order that the Commission pay to the heirs and successors of Mr Alessandro Missir Mamachi di Lusignano, to the heirs and successors of Mr Livio Missir Mamachi di Lusignano, to Ms Anne Jeanne Cécile Magdalena Maria Sintobin, to Mr Stefano Missir Mamachi di Lusignano and to Ms Maria Letizia Missir Mamachi di Lusignano various sums by way of compensation for non-material damage arising from the murder of Mr Alessandro Missir Mamachi di Lusignano and his wife on 18 September 2006 in Rabat (Morocco), where Mr Alessandro Missir Mamachi di Lusignano was present for professional reasons,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins, President, R. Barents and J. Passer (Rapporteur), Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written part of the procedure and further to the hearing on 11 April 2019,

gives the following

Judgment (
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  )

Judgment (
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Background to the dispute

Background to the dispute

| 1 | Mr Alessandro Missir Mamachi di Lusignano (‘Alessandro Missir’ or ‘the deceased official’) was murdered on 18 September 2006 with his wife in Rabat (Morocco), where he was to take up his post as a political and diplomatic adviser to the European Commission’s delegation. The murder was committed in a furnished house rented by that delegation for Alessandro Missir, his wife and their four children. |
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1

Mr Alessandro Missir Mamachi di Lusignano (‘Alessandro Missir’ or ‘the deceased official’) was murdered on 18 September 2006 with his wife in Rabat (Morocco), where he was to take up his post as a political and diplomatic adviser to the European Commission’s delegation. The murder was committed in a furnished house rented by that delegation for Alessandro Missir, his wife and their four children.

| 2 | On 12 May 2009, following a request dated 25 February 2008 and a complaint dated 10 September 2008 pursuant to Article 90(1) and (2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), Mr Livio Missir Mamachi di Lusignano (‘Livio Missir’), father of Alessandro Missir, brought an action, registered as Case F‐50/09, before the European Union Civil Service Tribunal, for compensation, first, for the material damage suffered by the children of Alessandro Missir, in their name, secondly, the non-material damage suffered by those children, in their name, thirdly, the non-material damage suffered by himself as the father of Alessandro Missir, in his own name and, fourthly, the non-material damage suffered by Alessandro Missir, in the name of his children, in their capacity as the heirs and successors of their father. |
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2

On 12 May 2009, following a request dated 25 February 2008 and a complaint dated 10 September 2008 pursuant to Article 90(1) and (2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), Mr Livio Missir Mamachi di Lusignano (‘Livio Missir’), father of Alessandro Missir, brought an action, registered as Case F‐50/09, before the European Union Civil Service Tribunal, for compensation, first, for the material damage suffered by the children of Alessandro Missir, in their name, secondly, the non-material damage suffered by those children, in their name, thirdly, the non-material damage suffered by himself as the father of Alessandro Missir, in his own name and, fourthly, the non-material damage suffered by Alessandro Missir, in the name of his children, in their capacity as the heirs and successors of their father.

| 3 | By judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission (F‐50/09, EU:F:2011:55; ‘the judgment at first instance’), the Civil Service Tribunal dismissed the action as inadmissible in respect of non-material damage (paragraphs 87 to 91) and unfounded in respect of material damage (paragraphs 97 to 227). |
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3

By judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission (F‐50/09, EU:F:2011:55; ‘the judgment at first instance’), the Civil Service Tribunal dismissed the action as inadmissible in respect of non-material damage (paragraphs 87 to 91) and unfounded in respect of material damage (paragraphs 97 to 227).

| 4 | On 27 July 2011, the judgment at first instance was the subject of an appeal before the General Court, registered as Case T‐401/11 P. The judgment of 10 July 2014, Missir Mamachi di Lusignano v Commission (T‐401/11 P, EU:T:2014:625; ‘the judgment on appeal’), which set aside the judgment at first instance, was reviewed and partially set aside by the Court of Justice (judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission, C‐417/14 RX‐II, EU:C:2015:588; ‘the review judgment’). On referral after review, the General Court delivered the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (T‐401/11 P RENV‐RX, EU:T:2017:874; ‘the judgment after referral’), in which it ruled on the pleas in law that it had not examined in the judgment on appeal. |
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4

On 27 July 2011, the judgment at first instance was the subject of an appeal before the General Court, registered as Case T‐401/11 P. The judgment of 10 July 2014, Missir Mamachi di Lusignano v Commission (T‐401/11 P, EU:T:2014:625; ‘the judgment on appeal’), which set aside the judgment at first instance, was reviewed and partially set aside by the Court of Justice (judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission, C‐417/14 RX‐II, EU:C:2015:588; ‘the review judgment’). On referral after review, the General Court delivered the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (T‐401/11 P RENV‐RX, EU:T:2017:874; ‘the judgment after referral’), in which it ruled on the pleas in law that it had not examined in the judgment on appeal.

| 5 | On 16 September 2011, while the dispute comprising the successive proceedings in Cases F‐50/09 and T‐401/11 P was ongoing and following the judgment at first instance in which the Civil Service Tribunal had dismissed the action in Case F‐50/09 as inadmissible, on the ground that the pre-litigation procedure had not been observed, in respect of non-material damage (see paragraph 3 above), without ruling on the jurisdiction of the Civil Service Tribunal to examine such damage, Livio Missir and the children of the murdered official, together with that official’s mother, brother and sister, brought, as a precautionary measure, an action registered as Case T‐494/11 before the General Court, seeking compensation for non-material damage on the basis of Articles 268 and 340 TFEU. However, following the applicants’ withdrawal, 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). |
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5

On 16 September 2011, while the dispute comprising the successive proceedings in Cases F‐50/09 and T‐401/11 P was ongoing and following the judgment at first instance in which the Civil Service Tribunal had dismissed the action in Case F‐50/09 as inadmissible, on the ground that the pre-litigation procedure had not been observed, in respect of non-material damage (see paragraph 3 above), without ruling on the jurisdiction of the Civil Service Tribunal to examine such damage, Livio Missir and the children of the murdered official, together with that official’s mother, brother and sister, brought, as a precautionary measure, an action registered as Case T‐494/11 before the General Court, seeking compensation for non-material damage on the basis of Articles 268 and 340 TFEU. However, following the applicants’ withdrawal, 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).

| 6 | On 17 September 2011, for the same reasons connected with the dismissal in the judgment at first instance of the claims for compensation in respect of non-material damage on procedural grounds connected with the failure to observe the pre-litigation procedure, Livio Missir (replaced after his death by his heirs and successors) and the children of the murdered official, together with that official’s mother, brother and sister (together, ‘the applicants’) once again submitted claims for compensation in respect of non-material damage, in accordance with the procedure laid down in Article 90(1) of the Staff Regulations. |
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6

On 17 September 2011, for the same reasons connected with the dismissal in the judgment at first instance of the claims for compensation in respect of non-material damage on procedural grounds connected with the failure to observe the pre-litigation procedure, Livio Missir (replaced after his death by his heirs and successors) and the children of the murdered official, together with that official’s mother, brother and sister (together, ‘the applicants’) once again submitted claims for compensation in respect of non-material damage, in accordance with the procedure laid down in Article 90(1) of the Staff Regulations.

| 7 | By decision of 17 January 2012, the Commission informed the applicants that it could not uphold the claims for compensation in respect of non-material damage referred to in the request of 17 September 2011, on the grounds, first, of lis pendens, since those claims were pending in the proceedings before the General Court in Cases T‐401/11 P and T‐494/11 and, secondly, that they had already been rejected by the appointing authority and were accordingly inadmissible in the light of the rules of the pre-litigation procedure. |
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7

By decision of 17 January 2012, the Commission informed the applicants that it could not uphold the claims for compensation in respect of non-material damage referred to in the request of 17 September 2011, on the grounds, first, of lis pendens, since those claims were pending in the proceedings before the General Court in Cases T‐401/11 P and T‐494/11 and, secondly, that they had already been rejected by the appointing authority and were accordingly inadmissible in the light of the rules of the pre-litigation procedure.

lis pendens

| 8 | By letter of 13 April 2012, the applicants made a complaint under Article 90(2) of the Staff Regulations against the decision of 17 January 2012. |
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8

By letter of 13 April 2012, the applicants made a complaint under Article 90(2) of the Staff Regulations against the decision of 17 January 2012.

| 9 | By decision of 26 July 2012, notified to the applicants on 31 July 2012, the Commission dismissed the complaint. The Commission maintained its position concerning lis pendens on the ground that the claims for compensation were pending in the proceedings in Cases T‐494/11 and T‐401/11 P, which obliged it to refrain from taking a position on those claims, and concerning the inadmissibility of these claims in the light of the rules of the pre-litigation procedure. In any event, according to the Commission, the claims for compensation are not well founded. |
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9

By decision of 26 July 2012, notified to the applicants on 31 July 2012, the Commission dismissed the complaint. The Commission maintained its position concerning lis pendens on the ground that the claims for compensation were pending in the proceedings in Cases T‐494/11 and T‐401/11 P, which obliged it to refrain from taking a position on those claims, and concerning the inadmissibility of these claims in the light of the rules of the pre-litigation procedure. In any event, according to the Commission, the claims for compensation are not well founded.

lis pendens

Procedure and forms of order sought

Procedure and forms of order sought

| 10 | By document lodged at the Registry of the Civil Service Tribunal on 7 November 2012, the applicants brought the present action. That action was registered as Case F‐132/12. |
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10

By document lodged at the Registry of the Civil Service Tribunal on 7 November 2012, the applicants brought the present action. That action was registered as Case F‐132/12.

| 11 | By this action, the applicants claim that the Civil Service Tribunal should:





  – | annul the appointing authority’s decision of 26 July 2012; |
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11

By this action, the applicants claim that the Civil Service Tribunal should:

–

annul the appointing authority’s decision of 26 July 2012;

| – | order the Commission to pay EUR 463050 to each of the heirs and successors of the murdered official by way of compensation for the non-material damage he suffered; |
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–

order the Commission to pay EUR 463050 to each of the heirs and successors of the murdered official by way of compensation for the non-material damage he suffered;

| – | order the Commission to pay EUR 308700 to Livio Missir, by way of compensation for the non-material damage he suffered; |
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–

order the Commission to pay EUR 308700 to Livio Missir, by way of compensation for the non-material damage he suffered;

| – | order the Commission to pay EUR 308700 to Ms Anne Jeanne Cécile Magdalena Maria Sintobin, by way of compensation for the non-material damage she suffered; |
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–

order the Commission to pay EUR 308700 to Ms Anne Jeanne Cécile Magdalena Maria Sintobin, by way of compensation for the non-material damage she suffered;

| – | order the Commission to pay EUR 154350 to Mr Stefano Missir Mamachi di Lusignano (‘Stefano Missir’), by way of compensation for the non-material damage he suffered; |
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–

order the Commission to pay EUR 154350 to Mr Stefano Missir Mamachi di Lusignano (‘Stefano Missir’), by way of compensation for the non-material damage he suffered;

| – | order the Commission to pay EUR 154350 to Ms Maria Letizia Missir Mamachi di Lusignano (‘Maria Letizia Missir’), by way of compensation for the non-material damage she suffered; |
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–

order the Commission to pay EUR 154350 to Ms Maria Letizia Missir Mamachi di Lusignano (‘Maria Letizia Missir’), by way of compensation for the non-material damage she suffered;

| – | order the Commission to pay to the heirs and successors of the murdered official EUR 574000, by way of compensation for the non-material damage he suffered as he was dying; |
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–

order the Commission to pay to the heirs and successors of the murdered official EUR 574000, by way of compensation for the non-material damage he suffered as he was dying;

| – | order the Commission to pay compensatory interest and default interest accrued; |
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–

order the Commission to pay compensatory interest and default interest accrued;

| – | order the Commission to pay the costs. |
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–

order the Commission to pay the costs.

| 12 | By document lodged at the Civil Service Tribunal on 19 December 2012, the Commission raised, by a separate document and pursuant to Article 78(1) of the Rules of Procedure of the European Union Civil Service Tribunal, an objection to admissibility on the ground of lis pendens in respect of Cases T‐401/11 P and T‐494/11 and proposed that the proceedings be stayed pending the decisions closing the proceedings in those two cases. |
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12

By document lodged at the Civil Service Tribunal on 19 December 2012, the Commission raised, by a separate document and pursuant to Article 78(1) of the Rules of Procedure of the European Union Civil Service Tribunal, an objection to admissibility on the ground of lis pendens in respect of Cases T‐401/11 P and T‐494/11 and proposed that the proceedings be stayed pending the decisions closing the proceedings in those two cases.

lis pendens

| 13 | On 21 January 2013, the applicants filed their observations, challenging the objection of lis pendens, without objecting to the stay of proceedings. |
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13

On 21 January 2013, the applicants filed their observations, challenging the objection of lis pendens, without objecting to the stay of proceedings.

lis pendens

| 14 | By order of the President of the First Chamber of the Civil Service Tribunal of 6 June 2013, the proceedings were stayed pending delivery of the final decisions in Cases T‐401/11 P and T‐494/11. |
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14

By order of the President of the First Chamber of the Civil Service Tribunal of 6 June 2013, the proceedings were stayed pending delivery of the final decisions in Cases T‐401/11 P and T‐494/11.

| 15 | In the judgment on appeal, the General Court held that the initial claim for compensation of 25 February 2008 (see paragraph 2 above) also included non-material damage (the judgment on appeal, paragraph 111). The Court of Justice, in the review judgment, held that the assessment by the General Court on the error of law committed by the Civil Service Tribunal should be regarded as definitive (the review judgment, paragraph 63, and the judgment after referral, paragraph 18). |
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15

In the judgment on appeal, the General Court held that the initial claim for compensation of 25 February 2008 (see paragraph 2 above) also included non-material damage (the judgment on appeal, paragraph 111). The Court of Justice, in the review judgment, held that the assessment by the General Court on the error of law committed by the Civil Service Tribunal should be regarded as definitive (the review judgment, paragraph 63, and the judgment after referral, paragraph 18).

| 16 | On 21 January 2016, the proceedings were, following the review and referral back to the General Court, once again stayed, by decision of the President of the Second Chamber of the Civil Service Tribunal, until the delivery of the decision closing the proceedings in Case T‐401/11 P RENV RX. In their observations of 8 January 2016 on the stay of proceedings, the applicants informed the General Court of the death of Livio Missir, the father of the murdered official, and of the fact that his successors had replaced him in respect of his rights and intended to pursue the action. |
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16

On 21 January 2016, the proceedings were, following the review and referral back to the General Court, once again stayed, by decision of the President of the Second Chamber of the Civil Service Tribunal, until the delivery of the decision closing the proceedings in Case T‐401/11 P RENV RX. In their observations of 8 January 2016 on the stay of proceedings, the applicants informed the General Court of the death of Livio Missir, the father of the murdered official, and of the fact that his successors had replaced him in respect of his rights and intended to pursue the action.

| 17 | On 2 September 2016, in accordance with Article 3 of 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), the present case was transferred to the General Court as it stood on 31 August 2016. It was registered under number T‐502/16 and assigned to the Eighth Chamber. |
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17

On 2 September 2016, in accordance with Article 3 of 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), the present case was transferred to the General Court as it stood on 31 August 2016. It was registered under number T‐502/16 and assigned to the Eighth Chamber.

| 18 | On 25 January 2018, on expiry of the time limit for review of the judgment after referral, the General Court invited the parties to submit their observations on the implications of the delivery of that judgment in the present case. |
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18

On 25 January 2018, on expiry of the time limit for review of the judgment after referral, the General Court invited the parties to submit their observations on the implications of the delivery of that judgment in the present case.

| 19 | By documents lodged at the Court Registry on 7 and 9 February 2018 respectively, the Commission and the applicants complied with that request. |
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19

By documents lodged at the Court Registry on 7 and 9 February 2018 respectively, the Commission and the applicants complied with that request.

| 20 | In their observations, the applicants considered that, although the decisions already delivered at the time of those observations had led to compensation for certain types of damage, other types of damage remained to be assessed in the context of the present action, namely the non-material damage suffered by Ms Sintobin, Stefano Missir and Maria Letizia Missir, respectively the mother, brother and sister of the deceased official. |
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20

In their observations, the applicants considered that, although the decisions already delivered at the time of those observations had led to compensation for certain types of damage, other types of damage remained to be assessed in the context of the present action, namely the non-material damage suffered by Ms Sintobin, Stefano Missir and Maria Letizia Missir, respectively the mother, brother and sister of the deceased official.

| 21 | In its observations of 7 February 2018, the Commission drew the same conclusions as the applicants concerning compensation for certain types of damage under the decisions already delivered. |
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21

In its observations of 7 February 2018, the Commission drew the same conclusions as the applicants concerning compensation for certain types of damage under the decisions already delivered.

| 22 | As regards the non-material damage claimed by Ms Sintobin, the wife of Livio Missir, the Commission maintained that the claim for compensation was inadmissible on the ground that it was submitted out of time. |
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22

As regards the non-material damage claimed by Ms Sintobin, the wife of Livio Missir, the Commission maintained that the claim for compensation was inadmissible on the ground that it was submitted out of time.

| 23 | As regards the non-material damage claimed by Stefano Missir and Maria Letizia Missir, the brother and sister of Alessandro Missir, the Commission claimed that those applicants could not be regarded as persons covered by the Staff Regulations. The General Court, as the civil service court, lacks jurisdiction and the action is inadmissible in respect of that damage. In any event, the claims for compensation were submitted out of time. |
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23

As regards the non-material damage claimed by Stefano Missir and Maria Letizia Missir, the brother and sister of Alessandro Missir, the Commission claimed that those applicants could not be regarded as persons covered by the Staff Regulations. The General Court, as the civil service court, lacks jurisdiction and the action is inadmissible in respect of that damage. In any event, the claims for compensation were submitted out of time.

| 24 | By order of the General Court of 7 June 2018, the objection to admissibility on the ground of lis pendens made on 19 December 2012 was reserved for the final judgment pursuant to Article 130(7) of the Rules of Procedure of the General Court. |
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24

By order of the General Court of 7 June 2018, the objection to admissibility on the ground of lis pendens made on 19 December 2012 was reserved for the final judgment pursuant to Article 130(7) of the Rules of Procedure of the General Court.

lis pendens

| 25 | By letter of the Registrar of the General Court of 12 June 2018, the General Court invited the Commission to indicate in its defence whether it maintained that objection to admissibility and invited the applicants to submit their observations on the admissibility of the action in view of the time limits. |
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25

By letter of the Registrar of the General Court of 12 June 2018, the General Court invited the Commission to indicate in its defence whether it maintained that objection to admissibility and invited the applicants to submit their observations on the admissibility of the action in view of the time limits.

| 26 | By documents lodged at the Court Registry on 25 July 2018, the parties complied with those requests. |
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26

By documents lodged at the Court Registry on 25 July 2018, the parties complied with those requests.

| 27 | In its defence and as it confirmed at the hearing, the Commission stated that it no longer wished to rely on an objection to admissibility in respect of the present action on the ground of lis pendens, which was formally noted by the General Court. |
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27

In its defence and as it confirmed at the hearing, the Commission stated that it no longer wished to rely on an objection to admissibility in respect of the present action on the ground of lis pendens, which was formally noted by the General Court.

lis pendens

| 28 | The Commission contends that the Court should:





  – | declare that the action has become partially devoid of purpose and, for the remainder, dismiss the action as inadmissible, or, in the alternative, as unfounded; |
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28

The Commission contends that the Court should:

–

declare that the action has become partially devoid of purpose and, for the remainder, dismiss the action as inadmissible, or, in the alternative, as unfounded;

| – | order the applicants to pay the costs. |
| --- | --- |

–

order the applicants to pay the costs.

Law

Law

Subject matter of the dispute

Subject matter of the dispute

| 29 | As regards the first claim referred to in paragraph 11 above, seeking annulment by the General Court of the appointing authority’s decision of 26 July 2012, it should be recalled that such a decision, in which the administration adopted a position on the applicants’ claims for compensation, forms an integral part of the preliminary administrative procedure which precedes an action to establish liability before the General Court and has the sole effect of allowing the applicants to bring a claim for compensation before the General Court. Consequently, the head of claim seeking annulment made in the present case cannot be assessed in isolation from those relating to compensation (see, to that effect, judgment of 18 December 1997, Gill v Commission, T‐90/95, EU:T:1997:211, paragraph 45, and the judgment at first instance, paragraphs 71 and 72). |
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29

As regards the first claim referred to in paragraph 11 above, seeking annulment by the General Court of the appointing authority’s decision of 26 July 2012, it should be recalled that such a decision, in which the administration adopted a position on the applicants’ claims for compensation, forms an integral part of the preliminary administrative procedure which precedes an action to establish liability before the General Court and has the sole effect of allowing the applicants to bring a claim for compensation before the General Court. Consequently, the head of claim seeking annulment made in the present case cannot be assessed in isolation from those relating to compensation (see, to that effect, judgment of 18 December 1997, Gill v Commission, T‐90/95, EU:T:1997:211, paragraph 45, and the judgment at first instance, paragraphs 71 and 72).

| 30 | Moreover, it is apparent from the case file, and the parties agreed on this, in particular at the hearing, that a ruling was previously given in the judgment after referral on the second, third and seventh heads of claim made in the application, as reproduced in paragraph 11 above. There is therefore no need to rule on those heads of claim. As regards the claims for compensation for damage suffered, the fourth, fifth and sixth heads of claim made in the application, reproduced in paragraph 11 above, remain to be examined. |
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30

Moreover, it is apparent from the case file, and the parties agreed on this, in particular at the hearing, that a ruling was previously given in the judgment after referral on the second, third and seventh heads of claim made in the application, as reproduced in paragraph 11 above. There is therefore no need to rule on those heads of claim. As regards the claims for compensation for damage suffered, the fourth, fifth and sixth heads of claim made in the application, reproduced in paragraph 11 above, remain to be examined.

| 31 | Accordingly, the present action must be construed as having as its subject matter, in essence, compensation for the non-material damage which forms the subject matter of the fourth, fifth and sixth heads of claim. |
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31

Accordingly, the present action must be construed as having as its subject matter, in essence, compensation for the non-material damage which forms the subject matter of the fourth, fifth and sixth heads of claim.

Admissibility of the action

Admissibility of the action

| 32 | Since the present action was brought on the basis of Article 270 TFEU, it is necessary, as a first step, to examine whether the applicants had standing to bring proceedings on the basis of that provision. The Commission disputes that the brother and sister of the deceased official have such standing. |
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32

Since the present action was brought on the basis of Article 270 TFEU, it is necessary, as a first step, to examine whether the applicants had standing to bring proceedings on the basis of that provision. The Commission disputes that the brother and sister of the deceased official have such standing.

Standing of the applicants to bring proceedings on the basis of Article 270 TFEU

Standing of the applicants to bring proceedings on the basis of Article 270 TFEU

...

...

| 38 | The Commission rightly does not dispute that the deceased official’s mother has such standing. The deceased official’s mother is, as required by Article 91(1) of the Staff Regulations, a person ‘to whom [the] Staff Regulations apply’, inter alia in Article 73, which refers to relatives in the ascending line. She therefore has standing to bring proceedings, in the present case, on the basis of Article 270 TFEU. |
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38

The Commission rightly does not dispute that the deceased official’s mother has such standing. The deceased official’s mother is, as required by Article 91(1) of the Staff Regulations, a person ‘to whom [the] Staff Regulations apply’, inter alia in Article 73, which refers to relatives in the ascending line. She therefore has standing to bring proceedings, in the present case, on the basis of Article 270 TFEU.

| 39 | By contrast, the Commission disputes that the siblings of a deceased official are persons ‘to whom [the] Staff Regulations apply’, within the meaning of Article 91(1) thereof. It notes that Article 73(2)(a) of the Staff Regulations does not refer to collateral relatives of a deceased official, but merely to relatives in the ascending line and descendants. The fact that other provisions of the Staff Regulations may apply to siblings is, in the Commission’s view, irrelevant in the present case. The Commission adds that, contrary to the applicants’ claims, the impossibility of obtaining compensation for non-material damage such as that claimed in the present action is not contradicted by paragraph 198 of the judgment after referral. |
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39

By contrast, the Commission disputes that the siblings of a deceased official are persons ‘to whom [the] Staff Regulations apply’, within the meaning of Article 91(1) thereof. It notes that Article 73(2)(a) of the Staff Regulations does not refer to collateral relatives of a deceased official, but merely to relatives in the ascending line and descendants. The fact that other provisions of the Staff Regulations may apply to siblings is, in the Commission’s view, irrelevant in the present case. The Commission adds that, contrary to the applicants’ claims, the impossibility of obtaining compensation for non-material damage such as that claimed in the present action is not contradicted by paragraph 198 of the judgment after referral.

| 40 | It should be noted that the Staff Regulations are intended to regulate legal relations between the EU institutions and their officials by establishing a series of reciprocal rights and obligations and by affording certain members of an official’s family rights which they may assert in relation to the European Union (the review judgment, paragraph 31). |
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40

It should be noted that the Staff Regulations are intended to regulate legal relations between the EU institutions and their officials by establishing a series of reciprocal rights and obligations and by affording certain members of an official’s family rights which they may assert in relation to the European Union (the review judgment, paragraph 31).

| 41 | Accordingly, Article 91(1) of the Staff Regulations defines the jurisdiction of the EU Courts in relation to EU civil service disputes, providing that the Court of Justice of the European Union has jurisdiction in ‘any dispute’ between the European Union and ‘any person to whom [those regulations] apply’ and regarding the legality of an act affecting such a person adversely within the meaning of Article 90(2) of those regulations. In accordance with that 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 (the review judgment, paragraph 32). |
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41

Accordingly, Article 91(1) of the Staff Regulations defines the jurisdiction of the EU Courts in relation to EU civil service disputes, providing that the Court of Justice of the European Union has jurisdiction in ‘any dispute’ between the European Union and ‘any person to whom [those regulations] apply’ and regarding the legality of an act affecting such a person adversely within the meaning of Article 90(2) of those regulations. In accordance with that 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 (the review judgment, paragraph 32).

| 42 | In order for an action brought on the basis of Article 91 of the Staff Regulations and Article 270 TFEU to be admissible, it must therefore concern a dispute between the European Union and a person covered by the Staff Regulations (see, to that effect, judgment of 27 October 1994, C v Commission, T‐47/93, EU:T:1994:262, paragraph 21; orders of 6 September 2011, Alionescu v EPSO, T‐282/11, EU:T:2011:425, paragraphs 4 to 9, and of 9 April 2014, Colart and Others v Parliament, F‐87/13, EU:F:2014:53, paragraph 39). |
| --- | --- |

42

In order for an action brought on the basis of Article 91 of the Staff Regulations and Article 270 TFEU to be admissible, it must therefore concern a dispute between the European Union and a person covered by the Staff Regulations (see, to that effect, judgment of 27 October 1994, C v Commission, T‐47/93, EU:T:1994:262, paragraph 21; orders of 6 September 2011, Alionescu v EPSO, T‐282/11, EU:T:2011:425, paragraphs 4 to 9, and of 9 April 2014, Colart and Others v Parliament, F‐87/13, EU:F:2014:53, paragraph 39).

| 43 | It must be noted that Article 73 of the Staff Regulations and the Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease establish an insurance-type guarantee scheme covering officials, temporary and contract staff against occupational disease and accidents. |
| --- | --- |

43

It must be noted that Article 73 of the Staff Regulations and the Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease establish an insurance-type guarantee scheme covering officials, temporary and contract staff against occupational disease and accidents.

| 44 | That guarantee scheme, of which the official is a beneficiary — Article 1 of the Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease refer to him or her as ‘the insured party’ — provides, in the event of the death of the insured official, for the payment of guaranteed benefits to his or her spouse and children if he or she has any and, where there are no such persons, to other descendants of the official and, where there are no such persons, to relatives of the official in the ascending line and, where there are no such persons, to the institution. |
| --- | --- |

44

That guarantee scheme, of which the official is a beneficiary — Article 1 of the Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease refer to him or her as ‘the insured party’ — provides, in the event of the death of the insured official, for the payment of guaranteed benefits to his or her spouse and children if he or she has any and, where there are no such persons, to other descendants of the official and, where there are no such persons, to relatives of the official in the ascending line and, where there are no such persons, to the institution.

| 45 | It is common ground that collateral relatives, therefore including siblings, are not included in the priority list of persons to whom guaranteed payments may be made in the event of the official’s death. |
| --- | --- |

45

It is common ground that collateral relatives, therefore including siblings, are not included in the priority list of persons to whom guaranteed payments may be made in the event of the official’s death.

| 46 | However, other provisions of the Staff Regulations do apply to siblings, in particular Articles 40, 42b and 55a. Those provisions allow an official to be placed on leave for personal grounds or leave for family reasons or to work part time, in order to, inter alia, help a seriously ill or disabled spouse, a relative in the ascending line, a descendant or a brother or sister. |
| --- | --- |

46

However, other provisions of the Staff Regulations do apply to siblings, in particular Articles 40, 42b and 55a. Those provisions allow an official to be placed on leave for personal grounds or leave for family reasons or to work part time, in order to, inter alia, help a seriously ill or disabled spouse, a relative in the ascending line, a descendant or a brother or sister.

| 47 | The Commission maintains that Articles 40, 42b and 55a of the Staff Regulations are irrelevant in the present case, since they are not applicable in the case of an official who has died following failure of the institution to exercise its duty of protection, thus giving rise to compensation payments, and it points out that those provisions were not applied in the present case. It considers that an approach confined to seeking provisions in the Staff Regulations which refer to potential beneficiaries, even indirect beneficiaries, of obligations on the part of the appointing authority the content of which, however, has no connection with the claim for compensation made, is incorrect. The only disputes which may be the subject of a claim for compensation for non-material damage pursuant to Article 270 TFEU are those concerning compensation for injury ‘for which the Commission may be held liable in its capacity as employer’, as the Court noted in paragraph 22 of the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371; ‘Leussink’), in addition to what is provided for in the Staff Regulations by virtue of Article 73. The Commission notes that compensation for non-material damage claimed in addition to the benefits provided for in Article 73 of the Staff Regulations may not, in any event, give rise to double compensation, as the Court pointed out in paragraph 195 of the judgment after referral. If the claim for compensation for non-material damage brought by Alessandro Missir’s brother and sister were granted, there would be double compensation, since, in their own words, that claim would be based on ‘the same premisses’ as the basis on which the General Court granted compensation for non-material damage to Alessandro Missir’s father and four children and on the basis of which the Commission refers to the ‘same injurious event’, that is to say his death. |
| --- | --- |

47

The Commission maintains that Articles 40, 42b and 55a of the Staff Regulations are irrelevant in the present case, since they are not applicable in the case of an official who has died following failure of the institution to exercise its duty of protection, thus giving rise to compensation payments, and it points out that those provisions were not applied in the present case. It considers that an approach confined to seeking provisions in the Staff Regulations which refer to potential beneficiaries, even indirect beneficiaries, of obligations on the part of the appointing authority the content of which, however, has no connection with the claim for compensation made, is incorrect. The only disputes which may be the subject of a claim for compensation for non-material damage pursuant to Article 270 TFEU are those concerning compensation for injury ‘for which the Commission may be held liable in its capacity as employer’, as the Court noted in paragraph 22 of the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371; ‘Leussink’), in addition to what is provided for in the Staff Regulations by virtue of Article 73. The Commission notes that compensation for non-material damage claimed in addition to the benefits provided for in Article 73 of the Staff Regulations may not, in any event, give rise to double compensation, as the Court pointed out in paragraph 195 of the judgment after referral. If the claim for compensation for non-material damage brought by Alessandro Missir’s brother and sister were granted, there would be double compensation, since, in their own words, that claim would be based on ‘the same premisses’ as the basis on which the General Court granted compensation for non-material damage to Alessandro Missir’s father and four children and on the basis of which the Commission refers to the ‘same injurious event’, that is to say his death.

Leussink

| 48 | It must be noted that the Commission’s objections combine the issue of the admissibility of the action with that of its merits. |
| --- | --- |

48

It must be noted that the Commission’s objections combine the issue of the admissibility of the action with that of its merits.

| 49 | The question, at this stage of the examination of the action, is not whether it is well founded, but, initially, to determine whether Alessandro Missir’s brother and sister had standing to bring an action before the EU Courts under Article 270 TFEU or whether they should have sought compensation on the basis of Article 268 TFEU. |
| --- | --- |

49

The question, at this stage of the examination of the action, is not whether it is well founded, but, initially, to determine whether Alessandro Missir’s brother and sister had standing to bring an action before the EU Courts under Article 270 TFEU or whether they should have sought compensation on the basis of Article 268 TFEU.

| 50 | In that regard, as has been previously stated, the criterion which determines use of the procedural channel set out in Article 270 TFEU rather than that set out in Article 268 TFEU is that of being a ‘person to whom [the] Staff Regulations apply’(Article 91(1) of the Staff Regulations). |
| --- | --- |

50

In that regard, as has been previously stated, the criterion which determines use of the procedural channel set out in Article 270 TFEU rather than that set out in Article 268 TFEU is that of being a ‘person to whom [the] Staff Regulations apply’(Article 91(1) of the Staff Regulations).

| 51 | That condition of being a person to whom the Staff Regulations apply cannot be regarded as fulfilled on the sole ground that an applicant is referred to in any context by the Staff Regulations. It must be a context that either reflects a relevant connection between such a person and the contested act, or reflects such a connection between that person and the official, the harm to whose interests allegedly causes damage in turn to that person. |
| --- | --- |

51

That condition of being a person to whom the Staff Regulations apply cannot be regarded as fulfilled on the sole ground that an applicant is referred to in any context by the Staff Regulations. It must be a context that either reflects a relevant connection between such a person and the contested act, or reflects such a connection between that person and the official, the harm to whose interests allegedly causes damage in turn to that person.

| 52 | However, that is precisely the case not only for relatives in the ascending line, descendants and the spouse of the official, but also for his or her siblings. |
| --- | --- |

52

However, that is precisely the case not only for relatives in the ascending line, descendants and the spouse of the official, but also for his or her siblings.

| 53 | The ‘Staff Regulations apply’ to those persons, either in Article 73 or Articles 40, 42b and 55a, precisely because the legislature intended to take note, by means of specific statutory provisions, of their close relationship with an official. |
| --- | --- |

53

The ‘Staff Regulations apply’ to those persons, either in Article 73 or Articles 40, 42b and 55a, precisely because the legislature intended to take note, by means of specific statutory provisions, of their close relationship with an official.

| 54 | The fact that, at the time of Alessandro Missir’s murder, neither he nor his brother or sister was actually in one of the situations envisaged by Articles 40, 42b and 55a of the Staff Regulations does not in any way affect the recognition in those regulations of the ties between siblings. Those provisions of the Staff Regulations are not therefore relevant because they correspond to the specific situation of the parties at the material time — it should be noted in that regard that the applicants are not claiming any compensation on the ground of loss of support on account of disability — but because they demonstrate that the Staff Regulations recognise the family ties between officials and their siblings. |
| --- | --- |

54

The fact that, at the time of Alessandro Missir’s murder, neither he nor his brother or sister was actually in one of the situations envisaged by Articles 40, 42b and 55a of the Staff Regulations does not in any way affect the recognition in those regulations of the ties between siblings. Those provisions of the Staff Regulations are not therefore relevant because they correspond to the specific situation of the parties at the material time — it should be noted in that regard that the applicants are not claiming any compensation on the ground of loss of support on account of disability — but because they demonstrate that the Staff Regulations recognise the family ties between officials and their siblings.

| 55 | That is corroborated by the assessment of the Court of Justice, to the effect that ‘the Civil Service Tribunal has jurisdiction ratione materiae to hear and determine an action in damages brought by ... anyone who, although not an official, is covered by the Staff Regulations as a result of family ties he has with an official, since the dispute has its origin in the employment relationship between that official and the institution concerned, having regard to the fact that Article 1 of Annex I to the Statute of the Court of Justice, read in conjunction with Article 270 TFEU and Article 91 of the Staff Regulations, confers ... on the Civil Service Tribunal the jurisdiction to hear and determine “any dispute” between the European Union and any “person to whom the Staff Regulations apply”’ (the review judgment, paragraphs 41 and 42). |
| --- | --- |

55

That is corroborated by the assessment of the Court of Justice, to the effect that ‘the Civil Service Tribunal has jurisdiction ratione materiae to hear and determine an action in damages brought by ... anyone who, although not an official, is covered by the Staff Regulations as a result of family ties he has with an official, since the dispute has its origin in the employment relationship between that official and the institution concerned, having regard to the fact that Article 1 of Annex I to the Statute of the Court of Justice, read in conjunction with Article 270 TFEU and Article 91 of the Staff Regulations, confers ... on the Civil Service Tribunal the jurisdiction to hear and determine “any dispute” between the European Union and any “person to whom the Staff Regulations apply”’ (the review judgment, paragraphs 41 and 42).

ratione materiae

| 56 | It follows, more generally, that, contrary to what is argued in essence by the Commission before the General Court, provisions of the Staff Regulations other than Article 73, namely those involving the recognition in the Staff Regulations of family ties with the deceased official, may be taken into consideration in order to determine whether that person is a person ‘to whom [the] Staff Regulations apply’. |
| --- | --- |

56

It follows, more generally, that, contrary to what is argued in essence by the Commission before the General Court, provisions of the Staff Regulations other than Article 73, namely those involving the recognition in the Staff Regulations of family ties with the deceased official, may be taken into consideration in order to determine whether that person is a person ‘to whom [the] Staff Regulations apply’.

| 57 | Accordingly, siblings 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 the 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. |
| --- | --- |

57

Accordingly, siblings 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 the 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.

| 58 | It must be noted, first, that the Commission’s reference to paragraph 22 of Leussink (see paragraph 47 above) does not relate to the admissibility of the action, but at best concerns whether or not it is well founded. That reference must therefore be rejected in the context of the examination of admissibility. Secondly, it must be noted that, as it held in the review judgment (paragraph 45), the Court of Justice recognised, in Leussink, that an action for damages brought by the family members of an official pursuant to Article 178 of the EEC Treaty (now Article 268 TFEU) and seeking compensation for non-material damage that they suffered following an accident at work in which that official was a victim, was an EU civil service dispute. As it states in paragraph 45 of the review judgment, in paragraph 25 of Leussink, concerning the costs of the case, the Court of Justice applied Article 70 of its Rules of Procedure, in the version then in force, in accordance with which costs incurred by institutions in staff cases are to be borne by them, given that the action at issue, although brought under Article 178 of the EEC Treaty, had its origin in the relationship between the official concerned and the institution by which he was employed. |
| --- | --- |

58

It must be noted, first, that the Commission’s reference to paragraph 22 of Leussink (see paragraph 47 above) does not relate to the admissibility of the action, but at best concerns whether or not it is well founded. That reference must therefore be rejected in the context of the examination of admissibility. Secondly, it must be noted that, as it held in the review judgment (paragraph 45), the Court of Justice recognised, in Leussink, that an action for damages brought by the family members of an official pursuant to Article 178 of the EEC Treaty (now Article 268 TFEU) and seeking compensation for non-material damage that they suffered following an accident at work in which that official was a victim, was an EU civil service dispute. As it states in paragraph 45 of the review judgment, in paragraph 25 of Leussink, concerning the costs of the case, the Court of Justice applied Article 70 of its Rules of Procedure, in the version then in force, in accordance with which costs incurred by institutions in staff cases are to be borne by them, given that the action at issue, although brought under Article 178 of the EEC Treaty, had its origin in the relationship between the official concerned and the institution by which he was employed.

Leussink

Leussink

Leussink

| 59 | As regards the Commission’s reference to double compensation, it must be noted that it also relates only to the substance of the action. Moreover, there can be no question in the present case of double compensation for the same damage, since the non-material damage alleged by Alessandro Missir’s brother and sister is particular to them and is not the same as that of the other family members. |
| --- | --- |

59

As regards the Commission’s reference to double compensation, it must be noted that it also relates only to the substance of the action. Moreover, there can be no question in the present case of double compensation for the same damage, since the non-material damage alleged by Alessandro Missir’s brother and sister is particular to them and is not the same as that of the other family members.

| 60 | The Commission’s argument that Article 73(2)(a) of the Staff Regulations is the provision that, in accordance with the view of the Court of Justice set out in paragraph 34 of the review judgment, defines the categories of persons entitled to seek additional compensation ‘when the institution is liable and the benefits paid under Article 73 of the Staff Regulations are not sufficient to ensure full compensation for the damage suffered’ must be rejected for the following reasons. |
| --- | --- |

60

The Commission’s argument that Article 73(2)(a) of the Staff Regulations is the provision that, in accordance with the view of the Court of Justice set out in paragraph 34 of the review judgment, defines the categories of persons entitled to seek additional compensation ‘when the institution is liable and the benefits paid under Article 73 of the Staff Regulations are not sufficient to ensure full compensation for the damage suffered’ must be rejected for the following reasons.

| 61 | The fact that the persons covered by Article 73(2)(a) of the Staff Regulations, namely the spouse and children of the deceased official, or, where there are no such persons, his other descendants or, where there are no such persons, his relatives in the ascending line, may seek, by means of Article 270 TFEU, supplementary compensation if they consider first, that the benefits paid do not compensate for the entirety of the harm suffered by them and secondly, that the administration is liable for the damage suffered does not mean in any way that siblings, who are not included in the priority list in Article 73 of the Staff Regulations and are not therefore potential beneficiaries of the payments guaranteed under that article, but who are referred to in other provisions of the Staff Regulations, thereby reflecting a relevant connection with the deceased official, should be deprived of the procedural possibility of seeking, by means of Article 270 TFEU, compensation for their own injury. |
| --- | --- |

61

The fact that the persons covered by Article 73(2)(a) of the Staff Regulations, namely the spouse and children of the deceased official, or, where there are no such persons, his other descendants or, where there are no such persons, his relatives in the ascending line, may seek, by means of Article 270 TFEU, supplementary compensation if they consider first, that the benefits paid do not compensate for the entirety of the harm suffered by them and secondly, that the administration is liable for the damage suffered does not mean in any way that siblings, who are not included in the priority list in Article 73 of the Staff Regulations and are not therefore potential beneficiaries of the payments guaranteed under that article, but who are referred to in other provisions of the Staff Regulations, thereby reflecting a relevant connection with the deceased official, should be deprived of the procedural possibility of seeking, by means of Article 270 TFEU, compensation for their own injury.

| 62 | As has already been set out above, siblings are persons ‘to whom [the] Staff Regulations apply’ precisely because of their family connection with the deceased official. |
| --- | --- |

62

As has already been set out above, siblings are persons ‘to whom [the] Staff Regulations apply’ precisely because of their family connection with the deceased official.

| 63 | The objection to admissibility raised by the Commission against the action brought by Alessandro Missir’s brother and sister on the ground that they do not have standing to bring proceedings by means of Article 270 TFEU must therefore be rejected. |
| --- | --- |

63

The objection to admissibility raised by the Commission against the action brought by Alessandro Missir’s brother and sister on the ground that they do not have standing to bring proceedings by means of Article 270 TFEU must therefore be rejected.

| 64 | It is therefore necessary to examine whether the applicants made their claim for compensation within the time limits. |
| --- | --- |

64

It is therefore necessary to examine whether the applicants made their claim for compensation within the time limits.

The admissibility of the action with regard to the time limit

The admissibility of the action with regard to the time limit

| 65 | The Commission claims that the action is inadmissible on account of the late submission of the claim for compensation, which was not made within a reasonable period of time. There was nothing to prevent Ms Sintobin and Alessandro Missir’s brother and sister from lodging a claim for compensation for non-material damage at the very least in the course of 2009, the year in which the action in Case F‐50/09 was brought. The pre-litigation phase in Case F‐50/09 — and the subsequent judicial stages of that procedure consisting of the judgment at first instance and the lodging of the subsequent appeal — easily allowed enough time for claims for compensation for non-material damage, which were subsequently submitted in the context of the present case, to have been lodged. |
| --- | --- |

65

The Commission claims that the action is inadmissible on account of the late submission of the claim for compensation, which was not made within a reasonable period of time. There was nothing to prevent Ms Sintobin and Alessandro Missir’s brother and sister from lodging a claim for compensation for non-material damage at the very least in the course of 2009, the year in which the action in Case F‐50/09 was brought. The pre-litigation phase in Case F‐50/09 — and the subsequent judicial stages of that procedure consisting of the judgment at first instance and the lodging of the subsequent appeal — easily allowed enough time for claims for compensation for non-material damage, which were subsequently submitted in the context of the present case, to have been lodged.

| 66 | In their observations of 25 July 2018, first, the applicants claim that the plea of inadmissibility on the ground that the claims were submitted out of time had itself been raised out of time by the Commission, on 14 February 2018, that is 5 years after the expiry of the time limit laid down in Article 78(1) of the Rules of Procedure of the Civil Service Tribunal, applicable when the present action was brought. That plea of inadmissibility is, consequently, itself inadmissible. The late submission of the plea of inadmissibility is further unjustified in view of the fact that the Commission previously raised, on 19 December 2012, within the time limit set by Article 78(1) of the Rules of Procedure of the Civil Service Tribunal, another objection to admissibility, on the ground of lis pendens, when all the information was already available. Limitation therefore constitutes a plea of inadmissibility which, unlike procedural time limits, is not absolute. It cannot be relied on systematically at any stage of the proceedings. The applicants therefore ask the General Court to declare inadmissible the plea of inadmissibility raised by the Commission on 14 February 2018. |
| --- | --- |

66

In their observations of 25 July 2018, first, the applicants claim that the plea of inadmissibility on the ground that the claims were submitted out of time had itself been raised out of time by the Commission, on 14 February 2018, that is 5 years after the expiry of the time limit laid down in Article 78(1) of the Rules of Procedure of the Civil Service Tribunal, applicable when the present action was brought. That plea of inadmissibility is, consequently, itself inadmissible. The late submission of the plea of inadmissibility is further unjustified in view of the fact that the Commission previously raised, on 19 December 2012, within the time limit set by Article 78(1) of the Rules of Procedure of the Civil Service Tribunal, another objection to admissibility, on the ground of lis pendens, when all the information was already available. Limitation therefore constitutes a plea of inadmissibility which, unlike procedural time limits, is not absolute. It cannot be relied on systematically at any stage of the proceedings. The applicants therefore ask the General Court to declare inadmissible the plea of inadmissibility raised by the Commission on 14 February 2018.

lis pendens

| 67 | Next, the applicants maintain that the claim for compensation was made by the mother and brother and sister of the deceased official within a reasonable period. |
| --- | --- |

67

Next, the applicants maintain that the claim for compensation was made by the mother and brother and sister of the deceased official within a reasonable period.

| 68 | As regards the nature of the plea of inadmissibility raised by the Commission, it must be noted that the Court has held, in the context of a dispute concerning non-contractual liability, that compliance with the limitation period laid down in Article 46(1) of the Statute of the Court of Justice of the European Union is not to be examined of the Court’s own motion, but must be raised by the party concerned (judgments of 30 May 1989, Roquette Frères v Commission, 20/88, EU:C:1989:221, paragraph 12; of 8 November 2012, Evropaïki Dynamiki v Commission, C‐469/11 P, EU:C:2012:705, paragraph 51; and of 14 June 2016, Marchiani v Parliament, C‐566/14 P, EU:C:2016:437, paragraph 94). |
| --- | --- |

68

As regards the nature of the plea of inadmissibility raised by the Commission, it must be noted that the Court has held, in the context of a dispute concerning non-contractual liability, that compliance with the limitation period laid down in Article 46(1) of the Statute of the Court of Justice of the European Union is not to be examined of the Court’s own motion, but must be raised by the party concerned (judgments of 30 May 1989, Roquette Frères v Commission, 20/88, EU:C:1989:221, paragraph 12; of 8 November 2012, Evropaïki Dynamiki v Commission, C‐469/11 P, EU:C:2012:705, paragraph 51; and of 14 June 2016, Marchiani v Parliament, C‐566/14 P, EU:C:2016:437, paragraph 94).

| 69 | That case-law of the Court also applies, mutatis mutandis, to the limitation arising on expiry of a reasonable period in which, according to the case-law, a claim for compensation based on the Staff Regulations must be made. Since a limitation period of a pre-determined duration (5 years) is not absolute because it affects an individual right to claim compensation for damage suffered and since it fulfils a function of protecting the parties (see, to that effect, judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‐469/11 P, EU:C:2012:705, paragraphs 52 to 54), the same is true, if not even more so, of a limitation period of an indefinite duration (‘reasonable time’). In both cases, it concerns the same limitation of an individual right to claim compensation and the same function of protection of the parties. |
| --- | --- |

69

That case-law of the Court also applies, mutatis mutandis, to the limitation arising on expiry of a reasonable period in which, according to the case-law, a claim for compensation based on the Staff Regulations must be made. Since a limitation period of a pre-determined duration (5 years) is not absolute because it affects an individual right to claim compensation for damage suffered and since it fulfils a function of protecting the parties (see, to that effect, judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‐469/11 P, EU:C:2012:705, paragraphs 52 to 54), the same is true, if not even more so, of a limitation period of an indefinite duration (‘reasonable time’). In both cases, it concerns the same limitation of an individual right to claim compensation and the same function of protection of the parties.

mutatis mutandis

| 70 | Accordingly, since the plea of inadmissibility raised by the Commission, alleging failure to comply with the reasonable period for making a claim for compensation, is not an absolute bar to proceeding to be examined by the Court of its own motion, it is necessary first to examine the applicants’ objection that that plea of inadmissibility was itself raised out of time. |
| --- | --- |

70

Accordingly, since the plea of inadmissibility raised by the Commission, alleging failure to comply with the reasonable period for making a claim for compensation, is not an absolute bar to proceeding to be examined by the Court of its own motion, it is necessary first to examine the applicants’ objection that that plea of inadmissibility was itself raised out of time.

| 71 | In support of their objection alleging late submission of the plea of inadmissibility, the applicants rely on Article 78(1) of the Rules of Procedure of the Civil Service Tribunal, in the version applicable in 2012, which is worded as follows:
  ‘A party applying to the Tribunal for a decision on admissibility, on lack of competence or other preliminary plea not going to the substance of the case shall make the application by a separate document within a month of service of the application.’ |
| --- | --- |

71

In support of their objection alleging late submission of the plea of inadmissibility, the applicants rely on Article 78(1) of the Rules of Procedure of the Civil Service Tribunal, in the version applicable in 2012, which is worded as follows:

‘A party applying to the Tribunal for a decision on admissibility, on lack of competence or other preliminary plea not going to the substance of the case shall make the application by a separate document within a month of service of the application.’

| 72 | It must be noted that the time-limit condition imposed by that provision related to the specific case in which a party asked the Civil Service Tribunal to give a ruling without going to the substance of the case. That provision did not therefore prevent a defendant before the Civil Service Tribunal from claiming that the action was out of time, if appropriate, only at the stage of the defence. |
| --- | --- |

72

It must be noted that the time-limit condition imposed by that provision related to the specific case in which a party asked the Civil Service Tribunal to give a ruling without going to the substance of the case. That provision did not therefore prevent a defendant before the Civil Service Tribunal from claiming that the action was out of time, if appropriate, only at the stage of the defence.

| 73 | In addition, it must be observed that, while Article 78 of the Rules of Procedure of the Civil Service Tribunal was applicable when the Commission, rather than lodging a defence, raised, in 2012, by virtue of that provision, an objection to admissibility by a separate document on the ground of lis pendens, it follows from Article 3 of Regulation 2016/1192 that the cases transferred to the General Court continue to be dealt with by it as it finds them at 31 August 2016, and in accordance with its Rules of Procedure. |
| --- | --- |

73

In addition, it must be observed that, while Article 78 of the Rules of Procedure of the Civil Service Tribunal was applicable when the Commission, rather than lodging a defence, raised, in 2012, by virtue of that provision, an objection to admissibility by a separate document on the ground of lis pendens, it follows from Article 3 of Regulation 2016/1192 that the cases transferred to the General Court continue to be dealt with by it as it finds them at 31 August 2016, and in accordance with its Rules of Procedure.

lis pendens

| 74 | In the present case, when the action in Case F‐132/12 was transferred to the General Court, the proceedings — which, in the absence of being reserved for final judgment by the Civil Service Tribunal, concerned the objection concerning lis pendens raised in 2012 — were stayed pending the judgment after referral. |
| --- | --- |

74

In the present case, when the action in Case F‐132/12 was transferred to the General Court, the proceedings — which, in the absence of being reserved for final judgment by the Civil Service Tribunal, concerned the objection concerning lis pendens raised in 2012 — were stayed pending the judgment after referral.

lis pendens

| 75 | Consequently, the fact that on 19 December 2012 the Commission had raised an objection to admissibility on the ground of lis pendens by way of a separate document, did not in any way mean that it could not raise a plea of inadmissibility before the General Court alleging at the defence stage that the claim for compensation was out of time. |
| --- | --- |

75

Consequently, the fact that on 19 December 2012 the Commission had raised an objection to admissibility on the ground of lis pendens by way of a separate document, did not in any way mean that it could not raise a plea of inadmissibility before the General Court alleging at the defence stage that the claim for compensation was out of time.

lis pendens

| 76 | In the present case, the Commission claimed that the claim for compensation was out of time in February 2018, when the proceedings were resumed. In the circumstances of the present case, relating to its procedural features and, in particular, the successive stays of proceedings, the submission, in February 2018, before lodging the defence, that the claim for compensation was out of time was not made too late. Since the applicants’ objection alleging that the plea of inadmissibility raised by the Commission is unfounded, it is necessary to examine that plea of inadmissibility alleging that the claim for compensation was lodged out of time. |
| --- | --- |

76

In the present case, the Commission claimed that the claim for compensation was out of time in February 2018, when the proceedings were resumed. In the circumstances of the present case, relating to its procedural features and, in particular, the successive stays of proceedings, the submission, in February 2018, before lodging the defence, that the claim for compensation was out of time was not made too late. Since the applicants’ objection alleging that the plea of inadmissibility raised by the Commission is unfounded, it is necessary to examine that plea of inadmissibility alleging that the claim for compensation was lodged out of time.

| 77 | According to settled case-law, it is for officials or other servants to bring before the institution any request for compensation payable by the European Union for loss alleged to be attributable to the institution within a reasonable period, running from the point in time when they became aware of the situation they complain of. The reasonableness of the period of time taken by the institution to adopt a measure at issue is to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case (judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB, C‐334/12 RX‐II, EU:C:2013:134, paragraph 28; see, also, order of 25 February 2014, Marcuccio v Commission, F‐118/11, EU:F:2014:23, paragraph 87 and the case-law cited). |
| --- | --- |

77

According to settled case-law, it is for officials or other servants to bring before the institution any request for compensation payable by the European Union for loss alleged to be attributable to the institution within a reasonable period, running from the point in time when they became aware of the situation they complain of. The reasonableness of the period of time taken by the institution to adopt a measure at issue is to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case (judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB, C‐334/12 RX‐II, EU:C:2013:134, paragraph 28; see, also, order of 25 February 2014, Marcuccio v Commission, F‐118/11, EU:F:2014:23, paragraph 87 and the case-law cited).

| 78 | Although the limitation period of 5 years laid down for actions in non-contractual liability by Article 46 of the Statute of the Court of Justice of the European Union does not apply in disputes between the European Union and its servants, according to settled case-law, account must also be taken of the point of reference provided by that period in order to assess whether a claim has been made within a reasonable period of time (see order of 25 February 2014, Marcuccio v Commission, F‐118/11, EU:F:2014:23, paragraph 88 and the case-law cited). |
| --- | --- |

78

Although the limitation period of 5 years laid down for actions in non-contractual liability by Article 46 of the Statute of the Court of Justice of the European Union does not apply in disputes between the European Union and its servants, according to settled case-law, account must also be taken of the point of reference provided by that period in order to assess whether a claim has been made within a reasonable period of time (see order of 25 February 2014, Marcuccio v Commission, F‐118/11, EU:F:2014:23, paragraph 88 and the case-law cited).

| 79 | In the present case, the claim for compensation was made on 17 September 2011, that is to say 5 years less 1 day after the murder of Alessandro Missir. Furthermore, it should be noted that, as is apparent both from the pre-litigation procedure in the present case and the proceedings previously conducted since 2009 culminating, in 2017, in the judgment after referral, the dispute is significant from a human, financial and legal perspective and the case is rather complex, or, at the very least, was at the time when the claim for compensation was lodged on 17 September 2011. Finally, contrary to what the Commission suggests, the criterion for assessing whether a claim for compensation is out of time is not so much whether the claim could have been made earlier as whether, in the light of all the circumstances of the case, that claim was made within a reasonable period. In the light of all the circumstances relating to the complexity of the case and the issues it raises, it appears that the claim for compensation fulfils that criterion. It follows that the action cannot be regarded as out of time. |
| --- | --- |

79

In the present case, the claim for compensation was made on 17 September 2011, that is to say 5 years less 1 day after the murder of Alessandro Missir. Furthermore, it should be noted that, as is apparent both from the pre-litigation procedure in the present case and the proceedings previously conducted since 2009 culminating, in 2017, in the judgment after referral, the dispute is significant from a human, financial and legal perspective and the case is rather complex, or, at the very least, was at the time when the claim for compensation was lodged on 17 September 2011. Finally, contrary to what the Commission suggests, the criterion for assessing whether a claim for compensation is out of time is not so much whether the claim could have been made earlier as whether, in the light of all the circumstances of the case, that claim was made within a reasonable period. In the light of all the circumstances relating to the complexity of the case and the issues it raises, it appears that the claim for compensation fulfils that criterion. It follows that the action cannot be regarded as out of time.

| 80 | In those circumstances, the Commission’s objection to admissibility must be rejected. |
| --- | --- |

80

In those circumstances, the Commission’s objection to admissibility must be rejected.

Substance

Substance

The claim for compensation for the non-material damage suffered by Alessandro Missir’s mother

The claim for compensation for the non-material damage suffered by Alessandro Missir’s mother

...

...

| 87 | It must be noted, as the parties submit, that the situation of Ms Sintobin, Alessandro Missir’s mother, is identical to that of Livio Missir, Alessandro Missir’s father, to whom compensation for non-material damage on account of the murder of his son in the amount of EUR 50000 was granted by the General Court in the judgment after referral. |
| --- | --- |

87

It must be noted, as the parties submit, that the situation of Ms Sintobin, Alessandro Missir’s mother, is identical to that of Livio Missir, Alessandro Missir’s father, to whom compensation for non-material damage on account of the murder of his son in the amount of EUR 50000 was granted by the General Court in the judgment after referral.

| 88 | In those circumstances, pursuant to the principles applied by the General Court in the judgment after referral (paragraphs 204 and 205) and by assessment ex aequo et bono of the damage suffered by Ms Sintobin, the Commission must be ordered to pay, on a joint and several basis, the amount of EUR 50000 to that applicant, by way of compensation for the non-material damage she suffered as a result of her son’s murder, and the remainder of her claim for compensation must be rejected. |
| --- | --- |

88

In those circumstances, pursuant to the principles applied by the General Court in the judgment after referral (paragraphs 204 and 205) and by assessment ex aequo et bono of the damage suffered by Ms Sintobin, the Commission must be ordered to pay, on a joint and several basis, the amount of EUR 50000 to that applicant, by way of compensation for the non-material damage she suffered as a result of her son’s murder, and the remainder of her claim for compensation must be rejected.

ex aequo et bono

The claim for compensation for the non-material damage suffered by Alessandro Missir’s brother and sister

The claim for compensation for the non-material damage suffered by Alessandro Missir’s brother and sister

...

...

| 127 | It has been established that Alessandro Missir’s brother and sister, in respect of whom it cannot seriously be disputed, nor is it disputed, that they suffered mental distress as a result of the death of their brother, were procedurally obliged to lodge any claim for compensation in that regard under the Staff Regulations, followed, as necessary, by an action lodged on the basis of Article 270 TFEU, and not under Article 268 TFEU. That procedural route having been identified, the question arises as to whether Alessandro Missir’s brother and sister are entitled to obtain compensation from the Commission for their mental distress. |
| --- | --- |

127

It has been established that Alessandro Missir’s brother and sister, in respect of whom it cannot seriously be disputed, nor is it disputed, that they suffered mental distress as a result of the death of their brother, were procedurally obliged to lodge any claim for compensation in that regard under the Staff Regulations, followed, as necessary, by an action lodged on the basis of Article 270 TFEU, and not under Article 268 TFEU. That procedural route having been identified, the question arises as to whether Alessandro Missir’s brother and sister are entitled to obtain compensation from the Commission for their mental distress.

| 128 | The Commission raises a certain number of objections in respect of the substance of the action. |
| --- | --- |

128

The Commission raises a certain number of objections in respect of the substance of the action.

| 129 | The Commission maintains, in essence, that Article 73 of the Staff Regulations, as interpreted by the case-law, defines the scope of persons entitled to receive compensation for damage suffered as the result of the death of an official. The spouse, descendants and relatives in the ascending line may be so entitled, since they are covered by Article 73 of the Staff Regulations. Siblings, who are not covered by that article, may not. |
| --- | --- |

129

The Commission maintains, in essence, that Article 73 of the Staff Regulations, as interpreted by the case-law, defines the scope of persons entitled to receive compensation for damage suffered as the result of the death of an official. The spouse, descendants and relatives in the ascending line may be so entitled, since they are covered by Article 73 of the Staff Regulations. Siblings, who are not covered by that article, may not.

| 130 | The Commission maintains that the role played by the principles of law common to the Member States in the context of the application of the Staff Regulations is to fill any gaps resulting from the legislature’s silence. In the present case, Article 73 of the Staff Regulations, as applied by the case-law, is not silent, but designates solely the persons referred to in that provision as being entitled to receive compensation for non-material damage in the event of the death of an official. The Commission relies on the review judgment in support of its position (paragraphs 33 and 34). |
| --- | --- |

130

The Commission maintains that the role played by the principles of law common to the Member States in the context of the application of the Staff Regulations is to fill any gaps resulting from the legislature’s silence. In the present case, Article 73 of the Staff Regulations, as applied by the case-law, is not silent, but designates solely the persons referred to in that provision as being entitled to receive compensation for non-material damage in the event of the death of an official. The Commission relies on the review judgment in support of its position (paragraphs 33 and 34).

| 131 | The Commission refers, moreover, to paragraphs 134 to 136 and 158 of the judgment after referral, citing Leussink, the judgment of 9 September 1999, Lucaccioni v Commission (C‐257/98 P, EU:C:1999:402; ‘Lucaccioni’), paragraphs 191, 194, 195 and 201 of the judgment after referral and paragraph 22 of Lucaccioni. |
| --- | --- |

131

The Commission refers, moreover, to paragraphs 134 to 136 and 158 of the judgment after referral, citing Leussink, the judgment of 9 September 1999, Lucaccioni v Commission (C‐257/98 P, EU:C:1999:402; ‘Lucaccioni’), paragraphs 191, 194, 195 and 201 of the judgment after referral and paragraph 22 of Lucaccioni.

Leussink

Lucaccioni

Lucaccioni

| 132 | The Commission infers from those citations that it is only in respect of compensation for non-material damage ‘supplementary’ to the amount already paid by the appointing authority under Article 73 of the Staff Regulations that the case-law has recognised a right to compensation for damage in the case of injury. |
| --- | --- |

132

The Commission infers from those citations that it is only in respect of compensation for non-material damage ‘supplementary’ to the amount already paid by the appointing authority under Article 73 of the Staff Regulations that the case-law has recognised a right to compensation for damage in the case of injury.

| 133 | Consequently, according to the Commission, since the siblings of a deceased official are not among the persons to whom that provision applies and cannot therefore claim compensation ‘in addition’ — since they are not entitled to the main compensation — they are not entitled to compensation for non-material damage. |
| --- | --- |

133

Consequently, according to the Commission, since the siblings of a deceased official are not among the persons to whom that provision applies and cannot therefore claim compensation ‘in addition’ — since they are not entitled to the main compensation — they are not entitled to compensation for non-material damage.

| 134 | First, the reference made to paragraphs 33 and 34 of the review judgment appears inappropriate. |
| --- | --- |

134

First, the reference made to paragraphs 33 and 34 of the review judgment appears inappropriate.

| 135 | Those paragraphs concern the Civil Service Tribunal’s personal jurisdiction to hear actions brought by persons referred to in the Staff Regulations. The Court of Justice held that the Staff Regulations applied to the official’s father and children. It thus concluded that the Civil Service Tribunal had jurisdiction. It was therefore a question of identifying the court having jurisdiction and not of the substantive question at issue in the present case, concerning who is entitled to receive compensation. However, in paragraph 35 of the review judgment, the Court of Justice states that the substantive issue, which consists of establishing whether the official’s father and children actually have a right to payments guaranteed by the Staff Regulations, cannot be taken into account in determining the jurisdiction of the Civil Service Tribunal. If it were otherwise, a decision on jurisdiction would first require examination of whether the application is well founded. Thus, the Commission’s reference to paragraph 34 of the review judgment, in support of its claim that Article 73 of the Staff Regulations limits the persons entitled to potential compensation, must be rejected. |
| --- | --- |

135

Those paragraphs concern the Civil Service Tribunal’s personal jurisdiction to hear actions brought by persons referred to in the Staff Regulations. The Court of Justice held that the Staff Regulations applied to the official’s father and children. It thus concluded that the Civil Service Tribunal had jurisdiction. It was therefore a question of identifying the court having jurisdiction and not of the substantive question at issue in the present case, concerning who is entitled to receive compensation. However, in paragraph 35 of the review judgment, the Court of Justice states that the substantive issue, which consists of establishing whether the official’s father and children actually have a right to payments guaranteed by the Staff Regulations, cannot be taken into account in determining the jurisdiction of the Civil Service Tribunal. If it were otherwise, a decision on jurisdiction would first require examination of whether the application is well founded. Thus, the Commission’s reference to paragraph 34 of the review judgment, in support of its claim that Article 73 of the Staff Regulations limits the persons entitled to potential compensation, must be rejected.

| 136 | The references referred to in paragraph 131 above must also be rejected, in so far as none of the precedents (Leussink, Lucaccioni or the judgment after referral) relied on by the Commission concerned the case of siblings or even envisaged such a case. The judgments cited concerned only relatives in the ascending line and descendants. |
| --- | --- |

136

The references referred to in paragraph 131 above must also be rejected, in so far as none of the precedents (Leussink, Lucaccioni or the judgment after referral) relied on by the Commission concerned the case of siblings or even envisaged such a case. The judgments cited concerned only relatives in the ascending line and descendants.

Leussink, Lucaccioni

| 137 | The judgment after referral (paragraphs 131 to 136) states as follows with regard to Leussink and Lucaccioni:





  ‘131. | In the case which gave rise to [Leussink], the Court of Justice had occasion to rule on the question of whether[, as the Commission claimed (paragraph 10 of that judgment),] the insurance against risks of accident provided for by Article 73 of the Staff Regulations constituted an exhaustive compensation scheme which, in the event of an accident at work, had the effect of preventing any other claim for damages based on the principles of ordinary law. Mr Leussink, his wife and their four children had brought a supplementary claim for damages, arguing that the compensation provided for in Article 73 of the Staff Regulations covered only the economic consequences of the accident, and not the non-material damage. The Court first held, in paragraph 11 of the judgment, that the cover provided for by Article 73 of the Staff Regulations was based on a general contributory scheme of insurance against risks of accident during or outside working hours, and that entitlement to benefit did not depend on who caused the accident or on whether that person was liable. In paragraph 13 of the judgment, the Court went on to hold that, in the absence of any express provision concerning supplementary claims against the institution in the rules, no argument could be derived from those rules for the purpose of denying to the official and his family the right to seek additional compensation where the institution was responsible for the accident according to ordinary law, and the benefits payable under the scheme established under the Staff Regulations were insufficient to provide full compensation for the injury suffered. ... |
| --- | --- | --- |

137

The judgment after referral (paragraphs 131 to 136) states as follows with regard to Leussink and Lucaccioni:

Leussink

Lucaccioni

‘131.

In the case which gave rise to [Leussink], the Court of Justice had occasion to rule on the question of whether[, as the Commission claimed (paragraph 10 of that judgment),] the insurance against risks of accident provided for by Article 73 of the Staff Regulations constituted an exhaustive compensation scheme which, in the event of an accident at work, had the effect of preventing any other claim for damages based on the principles of ordinary law. Mr Leussink, his wife and their four children had brought a supplementary claim for damages, arguing that the compensation provided for in Article 73 of the Staff Regulations covered only the economic consequences of the accident, and not the non-material damage. The Court first held, in paragraph 11 of the judgment, that the cover provided for by Article 73 of the Staff Regulations was based on a general contributory scheme of insurance against risks of accident during or outside working hours, and that entitlement to benefit did not depend on who caused the accident or on whether that person was liable. In paragraph 13 of the judgment, the Court went on to hold that, in the absence of any express provision concerning supplementary claims against the institution in the rules, no argument could be derived from those rules for the purpose of denying to the official and his family the right to seek additional compensation where the institution was responsible for the accident according to ordinary law, and the benefits payable under the scheme established under the Staff Regulations were insufficient to provide full compensation for the injury suffered. ...

Leussink

| 133. | In relation to [Lucaccioni], the Court confirmed, in paragraph 23 [of that judgment], that benefits received under Article 73 of the Staff Regulations following an accident or the onset of an occupational disease must be taken into account by the Courts of the Union for the purposes of assessing the harm eligible for reparation in an action for damages brought by an official on the basis of a fault capable of rendering the institution by which he was employed liable. |
| --- | --- |

133.

In relation to [Lucaccioni], the Court confirmed, in paragraph 23 [of that judgment], that benefits received under Article 73 of the Staff Regulations following an accident or the onset of an occupational disease must be taken into account by the Courts of the Union for the purposes of assessing the harm eligible for reparation in an action for damages brought by an official on the basis of a fault capable of rendering the institution by which he was employed liable.

Lucaccioni

| 134. | Thus, [Leussink and Lucaccioni] clarified the relationship between the benefits received under Article 73 of the Staff Regulations, following an accident or the onset of an occupational disease, and the system of compensation under ordinary law. |
| --- | --- |

134.

Thus, [Leussink and Lucaccioni] clarified the relationship between the benefits received under Article 73 of the Staff Regulations, following an accident or the onset of an occupational disease, and the system of compensation under ordinary law.

Leussink

Lucaccioni

| 135. | In the first place, the system provided for in Article 73 of the Staff Regulations and that existing under ordinary law are complementary, such that it is possible to make a claim for additional compensation where the institution is responsible for the accident under ordinary law and the benefits payable under Article 73 of the Staff Regulations are insufficient to provide full compensation for the injury suffered ([Leussink], paragraph 13). |
| --- | --- |

135.

In the first place, the system provided for in Article 73 of the Staff Regulations and that existing under ordinary law are complementary, such that it is possible to make a claim for additional compensation where the institution is responsible for the accident under ordinary law and the benefits payable under Article 73 of the Staff Regulations are insufficient to provide full compensation for the injury suffered ([Leussink], paragraph 13).

Leussink

| 136. | In the second place, in applying that principle, the case-law has also made clear that the benefits received under Article 73 of the Staff Regulations, following an accident or the onset of an occupational disease, must be taken into account for the purposes of assessing the harm eligible for reparation in an action for damages brought by an official on the basis of a fault capable of rendering the institution by which he was employed liable. If it were otherwise, there would be double compensation ([Lucaccioni]).’ |
| --- | --- |

136.

In the second place, in applying that principle, the case-law has also made clear that the benefits received under Article 73 of the Staff Regulations, following an accident or the onset of an occupational disease, must be taken into account for the purposes of assessing the harm eligible for reparation in an action for damages brought by an official on the basis of a fault capable of rendering the institution by which he was employed liable. If it were otherwise, there would be double compensation ([Lucaccioni]).’

Lucaccioni

| 138 | It follows from the foregoing that the purpose of Leussink and Lucaccioni was not to rule on the outcome of a claim made by siblings, which was not at issue in those cases, but merely to rule on the outcome of a claim for compensation made by an official and his spouse and children and on the relationship between such a claim and the fixed compensation already provided for in Article 73 of those regulations. It is within that limited context that the Court of Justice’s reference to the ‘complementarity’ of the claim for compensation with the insurance payments under Article 73 of the Staff Regulations must be understood. |
| --- | --- |

138

It follows from the foregoing that the purpose of Leussink and Lucaccioni was not to rule on the outcome of a claim made by siblings, which was not at issue in those cases, but merely to rule on the outcome of a claim for compensation made by an official and his spouse and children and on the relationship between such a claim and the fixed compensation already provided for in Article 73 of those regulations. It is within that limited context that the Court of Justice’s reference to the ‘complementarity’ of the claim for compensation with the insurance payments under Article 73 of the Staff Regulations must be understood.

Leussink

Lucaccioni

| 139 | It cannot therefore be inferred from the abovementioned judgments that a brother or sister would not be entitled to plead non-material damage for which compensation can be paid. By definition, since siblings are not included in the list in Article 73 of the Staff Regulations and cannot therefore receive anything under that provision, a claim for compensation on their part cannot be supplementary, but singular. No ruling on the possibility of such a claim, which was not at issue in those cases, was given in those judgments. |
| --- | --- |

139

It cannot therefore be inferred from the abovementioned judgments that a brother or sister would not be entitled to plead non-material damage for which compensation can be paid. By definition, since siblings are not included in the list in Article 73 of the Staff Regulations and cannot therefore receive anything under that provision, a claim for compensation on their part cannot be supplementary, but singular. No ruling on the possibility of such a claim, which was not at issue in those cases, was given in those judgments.

| 140 | To consider, as the Commission maintains, that the institutions, by drawing up the list of persons entitled to receive insurance payments in the event of the accidental death of an official, sought to limit the scope of persons towards whom they considered themselves, where appropriate, potentially financially liable for fault, is an interpretation which cannot be made, as such, on the basis of Luessink and Lucaccioni. |
| --- | --- |

140

To consider, as the Commission maintains, that the institutions, by drawing up the list of persons entitled to receive insurance payments in the event of the accidental death of an official, sought to limit the scope of persons towards whom they considered themselves, where appropriate, potentially financially liable for fault, is an interpretation which cannot be made, as such, on the basis of Luessink and Lucaccioni.

Luessink

Lucaccioni

| 141 | Next, it is necessary to examine paragraphs 157 and 158 of the judgment after referral, in which the General Court states as follows:





  ‘157. | [As regards the claims for compensation for non-material damage suffered by Alessandro Missir’s four children and by his father], it follows ... from the judgment at first instance that ... the Commission had raised ... a plea of inadmissibility ... alleging, in essence, that ... Article 73 of the Staff Regulations precluded the possibility of [Alessandro Missir’s] four children and Livio Missir making a claim for compensation for non-material damage. The Commission claimed ... that, on the basis [of Article 73 of the Staff Regulations], the four children of Alessandro Missir Mamachi were not entitled to make a claim for compensation for non-material damage suffered by them and ... that Livio Missir Mamachi was not among the beneficiaries covered by that article. |
| --- | --- | --- |

141

Next, it is necessary to examine paragraphs 157 and 158 of the judgment after referral, in which the General Court states as follows:

‘157.

[As regards the claims for compensation for non-material damage suffered by Alessandro Missir’s four children and by his father], it follows ... from the judgment at first instance that ... the Commission had raised ... a plea of inadmissibility ... alleging, in essence, that ... Article 73 of the Staff Regulations precluded the possibility of [Alessandro Missir’s] four children and Livio Missir making a claim for compensation for non-material damage. The Commission claimed ... that, on the basis [of Article 73 of the Staff Regulations], the four children of Alessandro Missir Mamachi were not entitled to make a claim for compensation for non-material damage suffered by them and ... that Livio Missir Mamachi was not among the beneficiaries covered by that article.

| 158. | The pleas of inadmissibility raised against the claims for compensation for non-material damage suffered by Livio Missir and by Alessandro Missir’s four children cannot succeed. It is sufficient, first, to note that, in paragraph 34 of the review judgment, the Court held that Article 73(2)(a) expressly identified the “descendants” and the “ascendants” of the official as the individuals who may, in the event of the death of that official, receive a benefit and that, accordingly, Livio Missir and Alessandro Missir’s four children were persons covered by that provision. Secondly, it must be borne in mind that, according to settled case-law, the rules laid down in Article 73 of the Staff Regulations and the rules of ordinary law are complementary, with the result that it is possible to make an additional claim for compensation when the institution is liable and that payments made on the basis of Article 73 of the Staff Regulations are not sufficient to ensure full compensation for the damage suffered ([Leussink], paragraph 13, and [Lucaccioni], paragraph 22). Accordingly, in the light of the considerations set out above, the family members of an official who are covered by Article 73 of the Staff Regulations are entitled to bring a supplementary action if they consider that the payments under the Staff Regulations are not sufficient to ensure full compensation for damage suffered by them.’ |
| --- | --- |

158.

The pleas of inadmissibility raised against the claims for compensation for non-material damage suffered by Livio Missir and by Alessandro Missir’s four children cannot succeed. It is sufficient, first, to note that, in paragraph 34 of the review judgment, the Court held that Article 73(2)(a) expressly identified the “descendants” and the “ascendants” of the official as the individuals who may, in the event of the death of that official, receive a benefit and that, accordingly, Livio Missir and Alessandro Missir’s four children were persons covered by that provision. Secondly, it must be borne in mind that, according to settled case-law, the rules laid down in Article 73 of the Staff Regulations and the rules of ordinary law are complementary, with the result that it is possible to make an additional claim for compensation when the institution is liable and that payments made on the basis of Article 73 of the Staff Regulations are not sufficient to ensure full compensation for the damage suffered ([Leussink], paragraph 13, and [Lucaccioni], paragraph 22). Accordingly, in the light of the considerations set out above, the family members of an official who are covered by Article 73 of the Staff Regulations are entitled to bring a supplementary action if they consider that the payments under the Staff Regulations are not sufficient to ensure full compensation for damage suffered by them.’

Leussink

Lucaccioni

| 142 | Here too, the EU Court had only to consider specifically the father and children of the official. It was with reference to Leussink and Lucaccioni that it recalled the possibility of supplementary compensation in the event of the administration’s liability where the insurance payments are insufficient to ensure full compensation for the damage suffered by those persons. The ‘family members’ in question were persons ‘to whom Article 73 of the Staff Regulations apply’. The judgment after referral makes no finding with regard to family members not covered by Article 73 of the Staff Regulations, a matter which was not brought before the Court, and does not therefore alter the finding made in paragraph 140 above. |
| --- | --- |

142

Here too, the EU Court had only to consider specifically the father and children of the official. It was with reference to Leussink and Lucaccioni that it recalled the possibility of supplementary compensation in the event of the administration’s liability where the insurance payments are insufficient to ensure full compensation for the damage suffered by those persons. The ‘family members’ in question were persons ‘to whom Article 73 of the Staff Regulations apply’. The judgment after referral makes no finding with regard to family members not covered by Article 73 of the Staff Regulations, a matter which was not brought before the Court, and does not therefore alter the finding made in paragraph 140 above.

Leussink

Lucaccioni

| 143 | As regards paragraph 194 of the judgment after referral, about which the Commission claims that the General Court expressly recalled the existence of a general principle allowing for the possibility of compensation for non-material damage when such damage is not covered in full or in part by the rules ensuring the automatic payment of benefits, it should be noted that that paragraph does not set out the solution to be applied to a person not covered by those rules, such as, in the present case, siblings. That paragraph merely states that ‘a common general principle can be identified in the laws of the Member States under which, in circumstances such as those of [Case T‐401/11 P RENV RX], the existence of a scheme which guarantees automatic payment of benefits to the heirs and successors of a deceased official does not prevent those same people, if they consider that the damage which they have suffered is not covered, or not completely covered, by that scheme, from obtaining compensation for their non-material damage by means of an action before a national court’. |
| --- | --- |

143

As regards paragraph 194 of the judgment after referral, about which the Commission claims that the General Court expressly recalled the existence of a general principle allowing for the possibility of compensation for non-material damage when such damage is not covered in full or in part by the rules ensuring the automatic payment of benefits, it should be noted that that paragraph does not set out the solution to be applied to a person not covered by those rules, such as, in the present case, siblings. That paragraph merely states that ‘a common general principle can be identified in the laws of the Member States under which, in circumstances such as those of [Case T‐401/11 P RENV RX], the existence of a scheme which guarantees automatic payment of benefits to the heirs and successors of a deceased official does not prevent those same people, if they consider that the damage which they have suffered is not covered, or not completely covered, by that scheme, from obtaining compensation for their non-material damage by means of an action before a national court’.

| 144 | As regards paragraph 195 of the judgment after referral in which the Court notes the existence of a general principle common to the laws of the Member States under which there cannot be double compensation for non-material damage suffered, it should be noted, as the applicants submit, that the question in the present case does not concern double compensation for the same damage, since the non-material damage alleged by Alessandro Missir’s brother and sister is particular to them and is not the subject of payments laid down in Article 73 of the Staff Regulations. |
| --- | --- |

144

As regards paragraph 195 of the judgment after referral in which the Court notes the existence of a general principle common to the laws of the Member States under which there cannot be double compensation for non-material damage suffered, it should be noted, as the applicants submit, that the question in the present case does not concern double compensation for the same damage, since the non-material damage alleged by Alessandro Missir’s brother and sister is particular to them and is not the subject of payments laid down in Article 73 of the Staff Regulations.

| 145 | It follows from the above considerations that, contrary to what the Commission maintains, it is not possible to consider that Article 73 of the Staff Regulations, as interpreted by the case-law, precludes siblings of an official who has died through the fault of the European Union from obtaining, as appropriate, compensation for the damage suffered by them as a result of that death. |
| --- | --- |

145

It follows from the above considerations that, contrary to what the Commission maintains, it is not possible to consider that Article 73 of the Staff Regulations, as interpreted by the case-law, precludes siblings of an official who has died through the fault of the European Union from obtaining, as appropriate, compensation for the damage suffered by them as a result of that death.

| 146 | While that issue is not addressed by EU law as it stands, it must be noted that a common general principle derives from the laws of the Member States under which, in circumstances similar to those of the present case, national courts recognise a right for the siblings of a deceased worker to claim, as appropriate, compensation for non-material damage suffered by them as a result of the death. |
| --- | --- |

146

While that issue is not addressed by EU law as it stands, it must be noted that a common general principle derives from the laws of the Member States under which, in circumstances similar to those of the present case, national courts recognise a right for the siblings of a deceased worker to claim, as appropriate, compensation for non-material damage suffered by them as a result of the death.

| 147 | In those circumstances, it must be concluded not only that the Commission is wrong to claim that Article 73 of the Staff Regulations, as interpreted by the case-law, precludes the siblings of a deceased official from being entitled to receive, where appropriate, compensation for the non-material damage suffered on account of that death, but also that it follows from the general principles common to the laws of the Member States that the brothers and sisters of the person whose death is caused by a third party may, as appropriate, receive compensation from that party for the non-material damage they suffered. |
| --- | --- |

147

In those circumstances, it must be concluded not only that the Commission is wrong to claim that Article 73 of the Staff Regulations, as interpreted by the case-law, precludes the siblings of a deceased official from being entitled to receive, where appropriate, compensation for the non-material damage suffered on account of that death, but also that it follows from the general principles common to the laws of the Member States that the brothers and sisters of the person whose death is caused by a third party may, as appropriate, receive compensation from that party for the non-material damage they suffered.

| 148 | As regards the conditions for that compensation, the applicants claim, in essence, that the findings already made by the General Court, in the judgment after referral, as regards the fault, causal link and non-material damage, also apply to the claims of the deceased official’s brother and sister and that in the present case there is no double compensation. |
| --- | --- |

148

As regards the conditions for that compensation, the applicants claim, in essence, that the findings already made by the General Court, in the judgment after referral, as regards the fault, causal link and non-material damage, also apply to the claims of the deceased official’s brother and sister and that in the present case there is no double compensation.

| 149 | The Commission contests the applicants’ position. It maintains that, as regards the causal link between the infringement of the obligation to protect an official and the damage, given the fact that siblings are not in the same position with regard to the deceased person as relatives in the ascending line and descendants, the theory of adequate causation should be preferred to that of equivalence of conditions. However, the applicants have not demonstrated adequate causation. |
| --- | --- |

149

The Commission contests the applicants’ position. It maintains that, as regards the causal link between the infringement of the obligation to protect an official and the damage, given the fact that siblings are not in the same position with regard to the deceased person as relatives in the ascending line and descendants, the theory of adequate causation should be preferred to that of equivalence of conditions. However, the applicants have not demonstrated adequate causation.

| 150 | In any event, according to the Commission, even if the theory of equivalence of conditions were applied, the fact remains that the alleged non-material damage is sufficiently ‘distant’ from the fault committed to exclude all compensation. The damage is indirect and cannot be attributed to the Commission as an immediate and direct consequence of the breach of the specific obligation to protect an official. |
| --- | --- |

150

In any event, according to the Commission, even if the theory of equivalence of conditions were applied, the fact remains that the alleged non-material damage is sufficiently ‘distant’ from the fault committed to exclude all compensation. The damage is indirect and cannot be attributed to the Commission as an immediate and direct consequence of the breach of the specific obligation to protect an official.

| 151 | Moreover, the Commission maintains that it is not possible to consider that there is a general principle common to the laws of the Member States establishing the existence of a presumption of non-material damage in the event of the death of a sibling. |
| --- | --- |

151

Moreover, the Commission maintains that it is not possible to consider that there is a general principle common to the laws of the Member States establishing the existence of a presumption of non-material damage in the event of the death of a sibling.

| 152 | The applicants refute the Commission’s position, noting that the link between the theories of adequate causation and equivalence of conditions was only relevant for the purpose of establishing the Commission’s liability for the death of Alessandro Missir, which is no longer at issue in the present case, and not for the purposes of establishing a link between that death and the non-material damage suffered on account of that fact by the deceased official’s relatives, where that non-material damage has been considered to be self-evident. |
| --- | --- |

152

The applicants refute the Commission’s position, noting that the link between the theories of adequate causation and equivalence of conditions was only relevant for the purpose of establishing the Commission’s liability for the death of Alessandro Missir, which is no longer at issue in the present case, and not for the purposes of establishing a link between that death and the non-material damage suffered on account of that fact by the deceased official’s relatives, where that non-material damage has been considered to be self-evident.

| 153 | It must be held that the examination of the reasoning of the EU Courts in the judgment at first instance and in the judgment after referral confirms, in essence, the position of the applicants. |
| --- | --- |

153

It must be held that the examination of the reasoning of the EU Courts in the judgment at first instance and in the judgment after referral confirms, in essence, the position of the applicants.

| 154 | It must be recalled that, in the judgment at first instance, the Civil Service Tribunal held that, through its failure to fulfil the obligation to ensure protection of Alessandro Missir, the Commission had acted wrongfully in such a way as to incur liability (the judgment at first instance, paragraph 176, and the judgment after referral, paragraph 9). |
| --- | --- |

154

It must be recalled that, in the judgment at first instance, the Civil Service Tribunal held that, through its failure to fulfil the obligation to ensure protection of Alessandro Missir, the Commission had acted wrongfully in such a way as to incur liability (the judgment at first instance, paragraph 176, and the judgment after referral, paragraph 9).

| 155 | The Civil Service Tribunal held that the causal link between that fault and the murder of the official was established (the judgment at first instance, paragraphs 182 to 190). The Commission did not appeal against the judgment at first instance. The General Court, in its judgment after referral (paragraph 63, sixth sentence), moreover, found that the Commission did not dispute the assessment of the Civil Service Tribunal in that regard. |
| --- | --- |

155

The Civil Service Tribunal held that the causal link between that fault and the murder of the official was established (the judgment at first instance, paragraphs 182 to 190). The Commission did not appeal against the judgment at first instance. The General Court, in its judgment after referral (paragraph 63, sixth sentence), moreover, found that the Commission did not dispute the assessment of the Civil Service Tribunal in that regard.

| 156 | As the applicants correctly maintain, the relationship between the theories of equivalence of conditions and adequate causation (the judgment at first instance, paragraphs 178 to 190, and the judgment after referral, paragraph 63, third sentence, and paragraphs 64 to 95) was discussed exclusively for the purposes of establishing whether the Commission, which evidently was not the perpetrator of the murder, could nonetheless be held liable, in other words whether the Commission’s fault could be considered to have caused the death of Alessandro Missir. If not, the Commission would not have been liable in any way. If so, as the EU Courts held, it was, at least partly, liable for that death. |
| --- | --- |

156

As the applicants correctly maintain, the relationship between the theories of equivalence of conditions and adequate causation (the judgment at first instance, paragraphs 178 to 190, and the judgment after referral, paragraph 63, third sentence, and paragraphs 64 to 95) was discussed exclusively for the purposes of establishing whether the Commission, which evidently was not the perpetrator of the murder, could nonetheless be held liable, in other words whether the Commission’s fault could be considered to have caused the death of Alessandro Missir. If not, the Commission would not have been liable in any way. If so, as the EU Courts held, it was, at least partly, liable for that death.

| 157 | Once that causal link was established by the Civil Service Tribunal — on the basis of the theory of equivalence of conditions and without erring in law, as the General Court expressly stated in paragraphs 79 and 80 of the judgment after referral — the Civil Service Tribunal held that the murderer’s share of the responsibility for causing the damage remained to be determined (the judgment at first instance, paragraph 191, and the judgment after referral, paragraph 9). |
| --- | --- |

157

Once that causal link was established by the Civil Service Tribunal — on the basis of the theory of equivalence of conditions and without erring in law, as the General Court expressly stated in paragraphs 79 and 80 of the judgment after referral — the Civil Service Tribunal held that the murderer’s share of the responsibility for causing the damage remained to be determined (the judgment at first instance, paragraph 191, and the judgment after referral, paragraph 9).

| 158 | In that context, the Civil Service Tribunal considered that the Commission should be held liable for 40% of the damage suffered (the judgment at first instance, paragraph 197, and the judgment after referral, paragraph 10). |
| --- | --- |

158

In that context, the Civil Service Tribunal considered that the Commission should be held liable for 40% of the damage suffered (the judgment at first instance, paragraph 197, and the judgment after referral, paragraph 10).

| 159 | That approach to the division of liability, which was challenged in their appeal by the applicants, who claimed that the Commission should be held liable on a joint and several basis with the murderer, was rejected by the General Court, which upheld the appeal on that point and attributed liability on a joint and several basis to the Commission (thus for 100% of the damage) (the judgment after referral, paragraphs 96 to 119). |
| --- | --- |

159

That approach to the division of liability, which was challenged in their appeal by the applicants, who claimed that the Commission should be held liable on a joint and several basis with the murderer, was rejected by the General Court, which upheld the appeal on that point and attributed liability on a joint and several basis to the Commission (thus for 100% of the damage) (the judgment after referral, paragraphs 96 to 119).

| 160 | The General Court applied that liability on a joint and several basis of the Commission in accordance with a general principle common to the Member States under which, in circumstances such as those of the present case, the national court holds persons who have contributed to bringing about the same damage liable on a joint and several basis, regarding it as fair for the individual who has been wronged not to have to ascertain the proportion of damage for which each of those persons is liable, or to bear the risk of bringing proceedings against one of them and finding that he is insolvent (the judgment after referral, paragraph 118). |
| --- | --- |

160

The General Court applied that liability on a joint and several basis of the Commission in accordance with a general principle common to the Member States under which, in circumstances such as those of the present case, the national court holds persons who have contributed to bringing about the same damage liable on a joint and several basis, regarding it as fair for the individual who has been wronged not to have to ascertain the proportion of damage for which each of those persons is liable, or to bear the risk of bringing proceedings against one of them and finding that he is insolvent (the judgment after referral, paragraph 118).

| 161 | It should be noted, first, that the Commission’s liability for the murder, which was established in a final decision, is not contested (see paragraph 155 above) and, secondly, that the principle that the Commission is liable on a joint and several basis for the damage resulting from that murder is in no way called into question and, moreover, cannot reasonably be called into question. |
| --- | --- |

161

It should be noted, first, that the Commission’s liability for the murder, which was established in a final decision, is not contested (see paragraph 155 above) and, secondly, that the principle that the Commission is liable on a joint and several basis for the damage resulting from that murder is in no way called into question and, moreover, cannot reasonably be called into question.

| 162 | In those circumstances the Commission’s objection ... to the effect that adequate causation should be preferred to equivalence of conditions must be rejected, since the definitive finding by the EU Courts of the causal link between the Commission’s fault and the murder of Alessandro Missir is fully applicable in the present case. |
| --- | --- |

162

In those circumstances the Commission’s objection ... to the effect that adequate causation should be preferred to equivalence of conditions must be rejected, since the definitive finding by the EU Courts of the causal link between the Commission’s fault and the murder of Alessandro Missir is fully applicable in the present case.

| 163 | The only distinction in the present case as compared with Case F‐50/09 derives, following that definitive finding, that the applicants are not the children or parents of the deceased official but his siblings. |
| --- | --- |

163

The only distinction in the present case as compared with Case F‐50/09 derives, following that definitive finding, that the applicants are not the children or parents of the deceased official but his siblings.

| 164 | It has previously been held that Article 73 of the Staff Regulations, as interpreted by the case-law, does not constitute a substantive limit precluding siblings from the possibility of obtaining compensation (see paragraph 145 above) and that, that matter being unresolved in EU law, it follows from the general principles common to the Member States that siblings have a right to seek, where appropriate, compensation for non-material damage for the loss of their brother (see paragraph 146 above). |
| --- | --- |

164

It has previously been held that Article 73 of the Staff Regulations, as interpreted by the case-law, does not constitute a substantive limit precluding siblings from the possibility of obtaining compensation (see paragraph 145 above) and that, that matter being unresolved in EU law, it follows from the general principles common to the Member States that siblings have a right to seek, where appropriate, compensation for non-material damage for the loss of their brother (see paragraph 146 above).

| 165 | For the same reasons, it is necessary to reject the Commission’s arguments ... that the non-material damage suffered by siblings is too distant or is merely a repercussion that is not compensable. The fact that non-material damage suffered by siblings constitutes, secondary — or indirect — non-material damage, compared with the direct damage suffered by the deceased official, namely loss of life, does not detract from the fact that that non-material damage is recognised as compensable in accordance with the general principles common to the Member States. |
| --- | --- |

165

For the same reasons, it is necessary to reject the Commission’s arguments ... that the non-material damage suffered by siblings is too distant or is merely a repercussion that is not compensable. The fact that non-material damage suffered by siblings constitutes, secondary — or indirect — non-material damage, compared with the direct damage suffered by the deceased official, namely loss of life, does not detract from the fact that that non-material damage is recognised as compensable in accordance with the general principles common to the Member States.

| 166 | The Commission’s views on the scope of paragraph 198 of the judgment after referral ... do not call into question the previous finding, since, as has already been stated, the General Court, in its judgment after referral was not asked to rule on whether siblings could be entitled to compensation for non-material damage. |
| --- | --- |

166

The Commission’s views on the scope of paragraph 198 of the judgment after referral ... do not call into question the previous finding, since, as has already been stated, the General Court, in its judgment after referral was not asked to rule on whether siblings could be entitled to compensation for non-material damage.

| 167 | As regards the Commission’s observations to the effect that it is not possible to consider that there is a general principle recognised by the Member States establishing a presumption of non-material damage in the event of the death of a sibling ..., it is sufficient to note that the applicants have not merely claimed that there is a presumption of non-material damage as regards siblings, but have put forward specific considerations for the purposes of establishing the genuineness and severity of the non-material damage affecting Alessandro Missir’s brother and sister. |
| --- | --- |

167

As regards the Commission’s observations to the effect that it is not possible to consider that there is a general principle recognised by the Member States establishing a presumption of non-material damage in the event of the death of a sibling ..., it is sufficient to note that the applicants have not merely claimed that there is a presumption of non-material damage as regards siblings, but have put forward specific considerations for the purposes of establishing the genuineness and severity of the non-material damage affecting Alessandro Missir’s brother and sister.

| 168 | Accordingly, the applicants set out the particularly tragic circumstances of Alessandro Missir’s death and the family’s severe anxiety for the future of the children (page 7, last paragraph of the application of 17 September 2011, and page 9, second paragraph of the prior administrative complaint) and, similarly, referred to ‘the undue pain and suffering resulting from the loss of their brother in such tragic and atrocious circumstances’ and to the unique circumstances of the case and its particularly devastating and tragic nature. |
| --- | --- |

168

Accordingly, the applicants set out the particularly tragic circumstances of Alessandro Missir’s death and the family’s severe anxiety for the future of the children (page 7, last paragraph of the application of 17 September 2011, and page 9, second paragraph of the prior administrative complaint) and, similarly, referred to ‘the undue pain and suffering resulting from the loss of their brother in such tragic and atrocious circumstances’ and to the unique circumstances of the case and its particularly devastating and tragic nature.

| 169 | Apart from those considerations, which are in fact such as to have caused the siblings of the deceased official uncommonly intense emotional suffering, the applicants have 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. |
| --- | --- |

169

Apart from those considerations, which are in fact such as to have caused the siblings of the deceased official uncommonly intense emotional suffering, the applicants have 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.

| 170 | The evidence adduced by the applicants at the reply stage, in relation to the psychological and psychiatric treatments undergone by Alessandro Missir’s siblings must be rejected as out of time under Article 85(2) of the Rules of Procedure. |
| --- | --- |

170

The evidence adduced by the applicants at the reply stage, in relation to the psychological and psychiatric treatments undergone by Alessandro Missir’s siblings must be rejected as out of time under Article 85(2) of the Rules of Procedure.

| 171 | In so far as concerns setting the amount of the non-material damage, it must be recalled that it is for the EU Courts to determine the amount ex aequo et bono (see, to that effect, judgment of 5 June 1980, Oberthür v Commission, 24/79, EU:C:1980:145, paragraph 15), setting out the criteria taken into account for that purpose (see, to that effect, judgment of 14 May 1998, Council v De Nil and Impens, C‐259/96 P, EU:C:1998:224, paragraphs 32 and 33; Lucaccioni, paragraph 35; and judgment of 6 June 2006, Girardot v Commission, T‐10/02, EU:T:2006:148, paragraph 51). |
| --- | --- |

171

In so far as concerns setting the amount of the non-material damage, it must be recalled that it is for the EU Courts to determine the amount ex aequo et bono (see, to that effect, judgment of 5 June 1980, Oberthür v Commission, 24/79, EU:C:1980:145, paragraph 15), setting out the criteria taken into account for that purpose (see, to that effect, judgment of 14 May 1998, Council v De Nil and Impens, C‐259/96 P, EU:C:1998:224, paragraphs 32 and 33; Lucaccioni, paragraph 35; and judgment of 6 June 2006, Girardot v Commission, T‐10/02, EU:T:2006:148, paragraph 51).

ex aequo et bono

Lucaccioni

| 172 | Given the facts of the case and, in particular, the particularly tragic circumstances of Alessandro Missir’s death, described in paragraph 2 of the judgment on appeal, the evidence referred to in paragraph 168 above, the undisputed existence of an ordinary degree of emotional ties between adult siblings leading independent lives, and in the light of the principles set out in paragraphs 146, 147 and 164 above, the Commission must be ordered, on a joint and several basis, to pay Alessandro Missir’s siblings, in respect of compensation for non-material damage suffered on account of his death, the amount, assessed ex aequo et bono, of EUR 10000 each.
  ... |
| --- | --- |

172

Given the facts of the case and, in particular, the particularly tragic circumstances of Alessandro Missir’s death, described in paragraph 2 of the judgment on appeal, the evidence referred to in paragraph 168 above, the undisputed existence of an ordinary degree of emotional ties between adult siblings leading independent lives, and in the light of the principles set out in paragraphs 146, 147 and 164 above, the Commission must be ordered, on a joint and several basis, to pay Alessandro Missir’s siblings, in respect of compensation for non-material damage suffered on account of his death, the amount, assessed ex aequo et bono, of EUR 10000 each.

ex aequo et bono

...

Conclusion

Conclusion

| 181 | It follows from all the above considerations that the Commission must be ordered to pay on a joint and several basis, in respect of the non-material damage suffered as a result of the death of Alessandro Missir, the amount of EUR 50000 to the mother of the deceased official, Ms Sintobin, and the amount of EUR 10000 to each of the two siblings of the deceased official, Stefano Missir and Maria Letizia Missir, together with interest, and to dismiss the action as to the remainder. |
| --- | --- |

181

It follows from all the above considerations that the Commission must be ordered to pay on a joint and several basis, in respect of the non-material damage suffered as a result of the death of Alessandro Missir, the amount of EUR 50000 to the mother of the deceased official, Ms Sintobin, and the amount of EUR 10000 to each of the two siblings of the deceased official, Stefano Missir and Maria Letizia Missir, together with interest, and to dismiss the action as to the remainder.

Costs

Costs

...

...

| | On those grounds,
  THE GENERAL COURT (Eighth Chamber)
  hereby: |
| --- | --- |

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

| | 1. | Declares that there is no longer any need to rule on the claims that the European Commission be ordered to pay, by way of compensation for non-material damage, EUR 463050 to each heir and successor of Mr Alessandro Missir Mamachi di Lusignano, EUR 574000 to the same heirs and successors and EUR 308700 to the heirs and successors of Mr Livio Missir Mamachi di Lusignano; |
| --- | --- | --- |

1.

1.

Declares that there is no longer any need to rule on the claims that the European Commission be ordered to pay, by way of compensation for non-material damage, EUR 463050 to each heir and successor of Mr Alessandro Missir Mamachi di Lusignano, EUR 574000 to the same heirs and successors and EUR 308700 to the heirs and successors of Mr Livio Missir Mamachi di Lusignano;

Declares that there is no longer any need to rule on the claims that the European Commission be ordered to pay, by way of compensation for non-material damage, EUR 463050 to each heir and successor of Mr Alessandro Missir Mamachi di Lusignano, EUR 574000 to the same heirs and successors and EUR 308700 to the heirs and successors of Mr Livio Missir Mamachi di Lusignano;

| | 2. | Orders the Commission to pay on a joint and several basis the amount of EUR 50000 to Ms Anne Jeanne Cécile Magdalena Maria Sintobin, in respect of the non-material damage suffered by her; |
| --- | --- | --- |

2.

2.

Orders the Commission to pay on a joint and several basis the amount of EUR 50000 to Ms Anne Jeanne Cécile Magdalena Maria Sintobin, in respect of the non-material damage suffered by her;

Orders the Commission to pay on a joint and several basis the amount of EUR 50000 to Ms Anne Jeanne Cécile Magdalena Maria Sintobin, in respect of the non-material damage suffered by her;

| | 3. | Orders the Commission to pay on a joint and several basis the amount of EUR 10000 to Ms Maria Letizia Missir Mamachi di Lusignano, in respect of the non-material damage suffered by her; |
| --- | --- | --- |

3.

3.

Orders the Commission to pay on a joint and several basis the amount of EUR 10000 to Ms Maria Letizia Missir Mamachi di Lusignano, in respect of the non-material damage suffered by her;

Orders the Commission to pay on a joint and several basis the amount of EUR 10000 to Ms Maria Letizia Missir Mamachi di Lusignano, in respect of the non-material damage suffered by her;

| | 4. | Orders the Commission to pay on a joint and several basis the amount of EUR 10000 to Mr Stefano Missir Mamachi di Lusignano, in respect of the non-material damage suffered by him; |
| --- | --- | --- |

4.

4.

Orders the Commission to pay on a joint and several basis the amount of EUR 10000 to Mr Stefano Missir Mamachi di Lusignano, in respect of the non-material damage suffered by him;

Orders the Commission to pay on a joint and several basis the amount of EUR 10000 to Mr Stefano Missir Mamachi di Lusignano, in respect of the non-material damage suffered by him;

| | 5. | Orders that default interest is to be added to the compensation referred to in paragraphs 2 to 4 above, for the period from delivery of this judgment until payment in full, at a rate two percentage points above that set by the European Central Bank for main refinancing operations; |
| --- | --- | --- |

5.

5.

Orders that default interest is to be added to the compensation referred to in paragraphs 2 to 4 above, for the period from delivery of this judgment until payment in full, at a rate two percentage points above that set by the European Central Bank for main refinancing operations;

Orders that default interest is to be added to the compensation referred to in paragraphs 2 to 4 above, for the period from delivery of this judgment until payment in full, at a rate two percentage points above that set by the European Central Bank for main refinancing operations;

| | 6. | Dismisses the action as to the remainder; |
| --- | --- | --- |

6.

6.

Dismisses the action as to the remainder;

Dismisses the action as to the remainder;

| | 7. | Orders the Commission to pay the costs. |
| --- | --- | --- |

7.

7.

Orders the Commission to pay the costs.

Orders the Commission to pay the costs.

| | Collins


  Barents


  Passer


  Delivered in open court in Luxembourg on 20 November 2019.
  [Signatures] |
| --- | --- |

Collins

Barents

Passer

Delivered in open court in Luxembourg on 20 November 2019.

[Signatures]

---

(
  *1
  )	Language of the case: Italian.

*1

(
  1
  )	The list of the other applicants is annexed only to the version sent to the parties.

1

(
  2
  )	Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.

2