Opinion of the Advocate General — ECLI:EU:C:2021:86
Date: 2021-02-02
Language of the case: Greek
Subject matter: General provisions;Privileges and immunities
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Greece

summary, for the acts at issue in the main proceedings, absent a waiver by the Commission, the defendant cannot be validly sued before the referring court. In fact, in view of the immunity he enjoys by virtue of Article 11 of Protocol No 7, for such acts, the defendant, in his personal capacity, could not be sued by the applicant before any court. 44. However, pursuant to the first paragraph of Article 340 TFEU, it is for the Union to ‘make good any damage caused by its institutions or by its servants in the performance of their duties’. As the Court has emphasised as far back as 1969, in respect of non-contractual liability, the Treaties provide for a ‘uniform system’ in compensating for damage caused by its institutions and by its servants in the performance of their duties. (15) 45. Thus, an individual such as the applicant is certainly not deprived of the possibility to obtain compensation before a judicial authority. (16) However, in an action based on non-contractual liability for acts such as those at issue in the main proceedings, the proper defendant is the European Union, to be represented by the EU institution whose conduct has allegedly caused the damage claimed to have been suffered. (17) 2. Court having jurisdiction 46. The conclusion set out above already provides an answer to the second point raised by the fourth question posed by the referring court. Indeed, in accordance with Article 268 TFEU, an action such as the one brought by the applicant in the main proceedings is to be brought before the Court of Justice of the European Union. 47. As the Court has consistently stated, the Court of Justice of the European Union has ‘exclusive jurisdiction’ in respect of actions for non-contractual liability against the Union. (18) National courts – such as the referring court – have, therefore, no jurisdiction in these type of actions. (19) The fact that the national legislation governing actions for damage may provide for special rules in certain situations (for example, when the damage flows from a criminal conduct) cannot call that conclusion in question. (20) 48. Having said that, I cannot help but notice that there is another head of jurisdiction that might be relevant in the present case. 49. Article 270 TFEU provides that ‘the Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations of Officials and the Conditions of Employment of other servants of the Union’. Notably, that provision also provides for an exclusive jurisdiction of the Court of Justice of the European Union. 50. In application of Article 270 TFEU, Article 91(1) of the Staff Regulations – made applicable to temporary staff by Article 46 of the CEOS – states: ‘the Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and any person to whom these Staff Regulations apply regarding the legality of an act affecting such person adversely … In disputes of a financial character the Court of Justice shall have unlimited jurisdiction’. 51. In that regard, the Court has consistently stated that ‘a dispute between an official and the institution by whom he is or she was employed, where it originates in the relationship of employment between that person and the institution, falls under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, even if it is a claim for compensation’. (21) 52. Against that backdrop, it seems to me that, on the facts as presented by the referring court, that provision could well be applicable in the case at hand, since the applicant was hired as a member of the Commission’s temporary staff under Article 2(c) of the CEOS. (22) The applicant is in fact contesting the legality of the Commission’s decision to terminate his employment contract, and indirectly of the conduct of a former Member of the Commission which led to the adoption of that decision, and seeks financial compensation for the damages allegedly suffered as the result thereof. In brief, the present dispute possesses a financial character, and originates from the employment relationship between the applicant and the Commission. 53. The case is, therefore, similar to previous cases in which the Court found that actions brought by actual or former members of staff, seeking to have an institution held liable for a certain wrongdoing and be ordered to pay a sum, where the dispute originates from the employment relationship between the person concerned and the institution, fall ratione materiae within the scope of Article 270 TFEU and Article 91(1) of the Staff Regulations. (23) 54. It is thus somewhat surprising that the applicant did not introduce a claim for compensation for non-contractual liability before the General Court, jointly with or in parallel to his actions seeking the annulment of the Commission’s decisions to terminate his contract. (24) The claims brought in the two proceedings appear to be related. In the EU system of legal remedies, the jurisdiction to rule on a priority claim (for example, annulment of an unlawful act) normally implies jurisdiction to rule on any additional claim deriving from the same act or the same fact (for example, damages flowing from the wrongful act). (25) It is thus in the context of those proceedings before the General Court that the applicant could have validly raised any issue he may have against any fact that preceded his dismissal, including all acts of a preparatory nature (including those performed by the defendant). 55. In conclusion, it is clear that an action for non-contractual liability, such as that initiated by the applicant before the referring court, irrespective of whether it is based on Articles 268 and 340 TFEU or on Article 270 TFEU, should be directed against the European Union and brought before the Court of Justice of the European Union. 56. Having said that, I shall now turn to the other questions referred, which can be answered rather concisely, and only for the sake of completeness. B. First question 57. By its first question, the referring court asks whether the terms ‘immunity from legal proceedings’ (‘ετεροδικία’, ‘eterodikia’) and ‘immunity’ (‘ασυλία’, ‘asylia’), included in Article 11(a), of the Greek version of Protocol No 7 have the same meaning. 58. This question was posed in the light of the arguments put forward by the applicant in the main proceedings. He argued that, in view of the two expressions used in the provision at issue, a former Commissioner does not enjoy a full immunity of jurisdiction, but rather a more limited form thereof. In his view, the latter form of immunity cannot, in accordance with national law (especially Article 3(2) of the Greek Code of Civil Procedure), ‘shield’ the defendant from procedures brought before national courts when the damage flows from a criminal offence. 59. Those arguments are ill-founded. As the defendant and the Commission correctly observe in their submissions, the doubts of the national court are merely due to the Greek version of Protocol No 7. 60. According to settled case-law, the need for a uniform interpretation of the provisions of EU law makes it impossible for the text of a provision to be considered in isolation, but requires, on the contrary, that it be interpreted and applied in the light of the versions existing in the other official languages, (26) and by reference to the purpose and general scheme of the rules of which it forms part. (27) 61. In the present case, a simple comparison of the different language versions of the protocol indicates that the two terms are meant to have the same meaning. One may compare the Greek version with, for instance, the Spanish (‘inmunidad de jurisdicción/dicha inmunidad’), German (‘Befreiung von der Gerichtsbarkeit/diese Befreiung’), English (‘immune from legal proceedings/this immunity’), French (‘immunité de jurisdiction/cette immunité’), or Italian (‘immunità di giurisdizione/questa immunità’) versions. 62. The purpose and context of the provision also confirms that reading. The first sentence of Article 11(a), of Protocol No 7 lays down the material scope of the immunity, whereas the second sentence regulates its temporal scope. In both cases, it is the same immunity, possessing the same scope. 63. Consequently, the first question should be answered to the effect that the terms ‘immunity from legal proceedings’ (‘ετεροδικία’, ‘eterodikia’) and ‘immunity’ (‘ασυλία’, ‘asylia’), included in Article 11(a), of the Greek version of Protocol No 7 have the same meaning. C. Second question 64. By its second question, the referring court essentially seeks to know whether the immunity from legal proceedings set out in Article 11 of Protocol No 7 also includes, in addition to criminal prosecutions, civil claims. 65. The answer to this question is also straightforward: as the defendant and the Commission argued (and contrary to what the applicant contended), the immunity granted by Article 11 does extend to civil claims. A textual, systematic and teleological reading of the provision supports that. 66. First, the wording of the provision clearly applies vis-à-vis (any) ‘legal proceedings in respect of acts performed by them in their official capacity’. There is no limitation, in the text of the provision, regarding the type or nature (civil, criminal, administrative or, for that matters, any other) of the proceedings. 67. Second, a broad concept of ‘immunity’ is consistent with the rationale of the provision, and more generally with the functional nature of the special prerogatives enshrined in Protocol No 7. Those special prerogatives are intended to ensure that the EU institutions have full and effective protection against hindrances or risks to their proper functioning and independence. (28) More specifically, as follows from Article 17 of Protocol No 7, officials and other servants of the Union are accorded privileges, immunities and facilities ‘solely in the interest of the Union’. (29) Privileges and immunities are, in other words, granted in order to enable EU staff to perform their duties effectively and without external interference, and without having to fear prosecution for the acts they accomplish in the exercise of their duties. (30) 68. If that is so, it can hardly be disputed that the proper execution of the EU staff’s tasks could be hampered not only by criminal proceedings, but also by administrative matters, or civil proceedings (including actions for non-contractual liability, such as that at issue in the main proceedings). 69. Third, the Court has interpreted the term ‘legal proceedings’, contained in Article 8 of Protocol No 7 (which concerns the immunity of the members of the European Parliament) as also precluding civil proceedings. (31) Given the similar wording and purpose of the two provisions, it would hardly be conceivable that that term should be given a different interpretation when used in Article 11 of the same protocol. 70. Fourth, I note, in passing, that the proposed interpretation of Article 11 of Protocol No 7 is also consistent with Article 31(1) of the Vienna Convention on Diplomatic Relations, (32) according to which ‘a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State’ and, save exceptions, also ‘from its civil and administrative jurisdiction’. 71. Therefore, the answer to the second question should be to the effect that the immunity from legal proceedings envisaged in Article 11 of Protocol No 7 covers any legal proceedings, including civil claims. D. Third question 72. Finally, the third question concerns the waiver of the immunity from legal proceedings. The referring court asks whether that waiver may also be requested in the context of a civil action and, if so, who must initiate the procedure in question. 73. Again, the wording of Article 17 of Protocol No 7 contains no limitation as to the type of proceedings initiated vis-à-vis officials and other servants of the Union in respect of which a waiver may be requested. Therefore, I see no reason to consider that a waiver could only be requested in the context of criminal proceedings. 74. Nor do I see any logic for supporting such a distinction. As explained in point 67 above, privileges and immunities are granted to EU staff in the interest of the Union, in order to enable that staff to perform their duties effectively, without having to fear (civil, criminal, administrative or other) legal proceedings for the acts they accomplish in that context. There may thus naturally be situations in which the Union decides that the initiation and carrying out of such legal proceedings – be it of a civil, criminal or other nature – is not contrary to its interest. 75. Accordingly, a waiver may well be requested in the context of a civil action. 76. As regards, then, the body that must initiate the procedure to request a waiver, the provisions of the protocol neither regulate how the procedure for requesting a waiver ought to be carried out at national level, nor identify the national authorities which are competent to that end. I note that the Vienna Convention on Diplomatic Relations equally does not contain any rule in that respect. (33) 77. That is, in view of the possible variety of scenarios in which such a waiver may be requested and by which national body, rather understandable. Who exactly would be the competent body at national level will depend on the (civil, criminal, administrative or other) nature of the proceedings. It follows that, absent any EU rule on this matter, those aspects cannot but be governed by national law, in accordance with the principle of procedural autonomy. 78. Looking at the practice of various Member States, as it can be seen, for example, from the decisions of the European Parliament concerning the waivers requested for its Members, or from the cases which have reached the EU Courts, (34) it appears that waivers are normally requested by the judicial authorities responsible for the matter (in particular, the court having jurisdiction in the dispute, or the public prosecutor in charge of the investigation and/or prosecution). 79. However, even if the provisions of Protocol No 7 do not regulate the procedural phase at national level, they do regulate the ‘EU-side’ of the procedure. Indeed, Article 17 thereof indicates that, when a waiver is requested, it is for each institution of the Union to consider whether ‘the waiver of such immunity is not contrary to the interests of the Union’. In the present case, should a waiver be requested, it would be for the European Commission (as the College of Commissioners), to examine that request and take a decision on it. 80. Clearly, the decision of whether or not the granting of a waiver would be contrary to the interests of the Union is a largely political one. It requires an evaluation of the impact that the legal proceedings sought against a member of staff may have on the integrity of the relevant institution. Thus, the competent EU institutions enjoy wide discretion in that assessment. (35) 81. I thus propose to answer the third question to the effect that a waiver of the immunity from legal proceedings may also be requested in the context of a civil action. It is for national law to determine the authorities that have the competence to make such a request. V. Conclusion 82. I propose that the Court answer the questions referred for a preliminary ruling by the Polymeles Protodikeio Athinon (Court of First Instance, Athens, Greece) as follows: (1) The terms ‘immunity from legal proceedings’ (‘ετεροδικία’, ‘eterodikia’) and ‘immunity’ (‘ασυλία’, ‘asylia’), contained in Article 11(a), of the Greek version of Protocol No 7 have the same meaning. (2) The immunity from legal proceedings set out in Article 11 of Protocol No 7 includes civil claims. (3) A waiver of the immunity from legal proceedings, set out in Article 17 of Protocol No 7, may be requested in the context of a civil action. It is for national law to determine the authorities that have the competence to make such a request. (4) An action for non-contractual liability brought by a former member of the temporary staff of the Union for the recovery of damage allegedly caused to him by the improper termination of his contract should be directed against the European Union and brought before the Court of Justice of the European Union. 1 Original language: English. 2 According to that provision, ‘temporary staff’ includes ‘staff, other than officials of the Union, engaged to assist either a person holding an office provided for in the Treaty on European Union or the Treaty on Functioning of the European Union, or the elected President of one of the institutions or organs of the Union, or one of the political groups in the European Parliament or the Committee of the Regions, or a group in the European Economic and Social Committee’. See Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (English Special Edition: Series 1 Volume 1959-1962 P.135), as amended. 3 Judgment of 10 January 2019, RY v Commission (T‑160/17, EU:T:2019:1). 4 RY v Commission (T‑824/19, not published, EU:T:2021:6). 5 Judgment of 10 July 1969, Sayag and Zurich (9/69, EU:C:1969:37, paragraph 7).. 6 Opinion of Advocate General Gand in Sayag and Zurich (9/69, EU:C:1969:31, p. 338). 7 See, to that effect, judgments of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115, paragraphs 76, 77, 87 and 91), and of 12 September 2007, Nikolaou v Commission (T‑259/03, EU:T:2007:254, paragraphs 162, 185 to 188, 192 to 199, 208 and 209). See also Opinion of Advocate General Sharpston in Commission v RQ (C‑831/18 P, EU:C:2019:1143, points 54 and 55), and Opinion of Advocate General Hogan in Auditors v Pinxten (C‑130/19, EU:C:2020:1052, points 28 and 32). 8 See, for example, judgments of 10 July 1969, Sayag and Zurich (9/69, EU:C:1969:37, paragraphs 9 and 10), and of 22 March 1990, Le Pen and Front National (C‑201/89, EU:C:1990:133, paragraph 11). 9 To that effect, by analogy, see judgment of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543, paragraphs 35 and 36). 10 See, to that effect, judgment of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543, paragraphs 22 and 23). Compliance by the national authorities with the rules set out in Protocol No 7 could ultimately also reach the Court indirectly, by way of infringement proceedings pursuant to Articles 258 to 260 TFEU: see, by analogy, order of 15 December 2020, Junqueras i Vies v Parliament (T‑24/20, EU:T:2020:601, paragraph 84 and the case-law cited). 11 Judgment of 10 January 2019, RY v Commission (T‑160/17, EU:T:2019:1, paragraph 38). 12 According to settled EU case-law, there must be a direct causal link between the wrongful act and the damage in order to trigger the non-contractual liability of the Union (one may nonetheless assume that condition to be the same in the majority of other, including national legal orders): see, to that effect, judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union (C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 32 and the case-law cited). 13 As set out above in point 16 of this Opinion. 14 Judgment of 10 January 2019, RY v Commission (T‑160/17, EU:T:2019:1, paragraph 31). 15 Judgment of 10 July 1969, Sayag and Zurich (9/69, EU:C:1969:37, paragraph 5). 16 Indeed, as the International Court of Justice noted in its Advisory Opinion of 29 April 1999 concerning the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (I.C.J. Reports 1999, p. 62, at § 66), ‘the question of immunity from legal process is distinct from the issue of compensation for any damages incurred as a result of acts performed by the United Nations or by its agents acting in their officia1 capacity’. 17 See judgment of 13 December 2018, European Union v Kendrion (C‑150/17 P, EU:C:2018:1014, paragraph 33). 18 See, for example, judgments of 27 September 1988, Asteris and Others (C‑106/87, EU:C:1988:457, paragraphs 14 and 15), and of 29 July 2010, Hanssens-Ensch (C‑377/09, EU:C:2010:459, paragraph 17). 19 See, to that effect, judgments of 13 February 1979, Granaria (C‑101/78, EU:C:1979:38, paragraph 16), and of 27 September 1988, Asteris and Others (C‑106/87, EU:C:1988:457, paragraph 14). 20 See, to that effect, judgment of 29 July 2010, Hanssens-Ensch (C‑377/09, EU:C:2010:459, paragraphs 23 to 26). 21 See, inter alia, judgment of 10 September 2015, Review Missir Mamachi di Lusignano v Commission (C‑417/14 RX-II, EU:C:2015:588, paragraph 38 and the case-law cited). 22 See above, point 9 of this Opinion. 23 See, in particular, judgment of 10 September 2015, Review Missir Mamachi di Lusignano v Commission (C‑417/14 RX-II, EU:C:2015:588, paragraphs 39 to 41 and the case-law cited). 24 See above, points 12 and 14 of this Opinion. 25 Similarly, View of Advocate General Wathelet in Review Missir Mamachi di Lusignano v Commission (C‑417/14 RX‑II, EU:C:2015:593, point 48). 26 See, inter alia, judgment of 27 April 2017, Onix Asigurări (C‑559/15, EU:C:2017:316, paragraph 39 and the case-law cited). 27 See, inter alia, judgment of 19 April 2007, Profisa (C‑63/06, EU:C:2007:233, paragraph 14 and the case-law cited). 28 See, to that effect, judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115, paragraph 82 and the case-law cited). 29 My emphasis. That provision is an expression of the principle laid down in Article 343 TFEU, according to which the Union is to enjoy the privileges and immunities that are ‘necessary for the performance of its tasks’. 30 See, inter alia, Opinion of Advocate General Gand in Sayag and Zurich (9/69, EU:C:1969:31, p. 339), and Opinion of Advocate General Poiares Maduro in Marra (C‑200/07 and C‑201/07, EU:C:2008:369, point 35). 31 See, by analogy, judgments of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579), and of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543, paragraph 34). Similarly, Opinion of Advocate General Jääskinen in Patriciello (C‑163/10, EU:C:2011:379, point 51): ‘it covers all forms of legal liability, in particular criminal and civil liability’. 32 Concluded in Vienna on 18 April 1961, and entered into force on 24 April 1964 (United Nations, Treaty Series, vol. 500, p. 95). Although that convention applies to States only, it is generally considered that International Organisations too must enjoy similar immunities: see, for example, European Court of Human Rights, 18 February 1999, Waite and Kennedy v. Germany (CE:ECHR:1999:0218JUD002608394, §63), and 27 June 2013, Stichting Mothers of Srebrenica and Others v. the Netherlands (CE:ECHR:2013:0611DEC006554212, §139). 33 See above, footnote 32. With regard to waivers, see Article 32 thereof. In general on that provision, see Denza, E., Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4th ed., Oxford University Press, 2016, pp. 273-287. 34 See, for example, judgments of 24 October 2018, RQ v Commission (T‑29/17, EU:T:2018:717, paragraphs 5 and 6); of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115, paragraph 92); and of 17 September 2020, Troszczynski v Parliament (C‑12/19 P, EU:C:2020:7, paragraph 10). 35 See, to that effect, judgment of 8 November 2018, Troszczynski v Parliament (T‑550/17, EU:T:2018:754, paragraph 43 and the case-law cited).