61982CJ0001_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 1/82
MR D ., AN OFFICIAL OF THE EUROPEAN COMMUNITIES RESIDING IN LUXEMBOURG, AND MRS D ., HIS WIFE, REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS, 18 A RUE DES GLACIS,
APPLICANTS,
V
GRAND DUCHY OF LUXEMBOURG, REPRESENTED BY ITS MINISTER OF JUSTICE, COLETTE FLESCH, REPRESENTED IN TURN BY GUY SCHLEDER, CONSEILLER DE DIRECTION, ACTING AS AGENT, ASSISTED BY JACQUES LOESCH, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS, 2 RUE GOETHE,
DEFENDANT,
Subject of the case
APPLICATION CONCERNING THE SCOPE OF ARTICLE 12 ( B ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 4 JANUARY 1982 MR D ., AN OFFICIAL OF THE EUROPEAN COMMUNITIES RESIDING IN LUXEMBOURG, AND MRS D ., HIS WIFE, BROUGHT AN ACTION FOR A DECLARATION THAT, BY WITHHOLDING FROM MRS D . THE RIGHT OF RESIDENCE, THE GRAND DUCHY OF LUXEMBOURG HAD CONTRAVENED ARTICLE 12 ( B ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES ( THE SOLE PROTOCOL ).
2 THE GRAND DUCHY OF LUXEMBOURG RAISED AN OBJECTION OF INADMISSIBILITY IN ACCORDANCE WITH ARTICLE 91 OF THE RULES OF PROCEDURE . IT STATED THAT ALTHOUGH THE COURT HAD EARLIER RECOGNIZED THAT AN INDIVIDUAL MIGHT BRING AN ACTION BEFORE THE COURT AGAINST A MEMBER STATE IN A DISPUTE CONCERNING THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COAL AND STEEL
COMMUNITY ( THE ECSC PROTOCOL ), PURSUANT TO ARTICLE 16 THEREOF, THAT PROTOCOL HAD BEEN REPEALED BY THE SECOND PARAGRAPH OF ARTICLE 28 OF THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES ( KNOWN AS THE ' ' MERGER TREATY ' ' ).
3 ACCORDING TO THE GRAND DUCHY OF LUXEMBOURG, THE COURT ' S JURISDICTION IS LIMITED TO THE POWERS SPECIFICALLY CONFERRED ON IT . NEITHER THE NEW PROTOCOL ON THE PRIVILEGES AND IMMUNITIES ANNEXED TO THE MERGER TREATY NOR ARTICLE 30 OF THAT TREATY CONTAINS ANY PROVISIONS GIVING THE COURT JURISDICTION TO ENTERTAIN A DIRECT ACTION BY AN INDIVIDUAL AGAINST A MEMBER STATE .
4 THE APPLICANTS DO NOT DISPUTE THAT ARTICLE 16 OF THE ECSC TREATY HAS BEEN REPEALED, BUT THEY MAINTAIN THAT THE COURT HAS JURISDICTION PURSUANT TO ARTICLE 30 OF THE MERGER TREATY, WHICH REFERS TO THE PROVISIONS OF THE EEC TREATY AND OF THE EAEC TREATY CONCERNING THE COURT ' S JURISDICTION . THE COURT ALSO HAS GENERAL JURISDICTION ON THE BASIS OF ARTICLE 164 OF THE EEC TREATY WHICH PROVIDES THAT THE COURT OF JUSTICE IS TO ENSURE OBSERVANCE OF THE LAW IN THE INTERPRETATION AND APPLICATION OF THE TREATY . THOSE RESPONSIBLE FOR PREPARING THE MERGER TREATY THEREFORE ATTRIBUTED DIRECT JURISDICTION TO THE COURT IN ALL MATTERS RELATING TO THE PROVISIONS OF THE SOLE PROTOCOL AND THEREFORE EXTENDED, OR AT LEAST MAINTAINED, THE JURISDICTION PREVIOUSLY ATTRIBUTED TO IT .
5 ACCORDING TO THE APPLICANTS, DESPITE THE REPEAL OF THE ECSC PROTOCOL IT IS NECESSARY, IN THE ABSENCE OF ANY CONTRARY INTENTION EXPRESSED BY THE LEGISLATURE, TO ENSURE THE CONTINUITY OF LEGAL INSTITUTIONS . THE DEFENDANT ' S VIEW WOULD LEAD TO INSOLUBLE PROBLEMS AND THE PROTECTION OF THE PRIVILEGES AND IMMUNITIES CONFERRED BY THE PROTOCOL WOULD BE RENDERED COMPLETELY INEFFECTIVE .
6 IN ORDER TO ESTABLISH WHETHER THE ACTION IS ADMISSIBLE IT IS NECESSARY TO CONSIDER THE SCOPE OF THE RELEVANT PROVISIONS OF THE MERGER TREATY . THE SECOND PARAGRAPH OF ARTICLE 28 REPEALED THE THREE PROTOCOLS ON THE PRIVILEGES AND IMMUNITIES OF THE COMMUNITIES, INCLUDING ARTICLE 16 OF THE ECSC PROTOCOL WHICH CONFERRED JURISDICTION ON THE COURT IN THE CASE OF A DISPUTE ON THE INTERPRETATION OR APPLICATION THEREOF . ARTICLE 30 OF THE MERGER TREATY
STATES THAT THE PROVISIONS OF THE EEC TREATY AND OF THE EAEC TREATY AND, IN PART, THOSE OF THE ECSC TREATY CONCERNING THE JURISDICTION OF THE COURT ARE TO BE APPLICABLE TO THE PROVISIONS OF THE TREATY AND OF THE SOLE PROTOCOL .
7 SINCE THE PROVISIONS OF THE ECSC TREATY WHICH REMAIN APPLICABLE PURSUANT TO ARTICLE 30 OF THE MERGER TREATY AND THE EAEC TREATY ARE NOT AT ISSUE, THE JURISDICTION OF THE COURT IS DETERMINED IN THIS CASE BY THE EEC TREATY .
8 IT IS APPARENT FROM THE PROVISIONS ON LEGAL REMEDIES IN THE EEC TREATY THAT THEY DO NOT GIVE THE COURT JURISDICTION TO ENTERTAIN A DIRECT ACTION BROUGHT BY AN INDIVIDUAL AGAINST A MEMBER STATE .
9 IT SHOULD NEVERTHELESS BE EMPHASIZED THAT THE ABOLITION OF THE LEGAL REMEDY PROVIDED FOR IN ARTICLE 16 OF THE ECSC PROTOCOL DOES NOT MEAN THAT OFFICIALS ARE DEPRIVED OF ANY LEGAL PROTECTION .
10 IN THAT REGARD, IT SHOULD BE NOTED THAT IN THE EVENT OF ANY BREACH OF THE PRIVILEGES, IMMUNITIES AND FACILITIES ACCORDED TO OFFICIALS - AND CONFERRED ON THEM SOLELY IN THE INTERESTS OF THE COMMUNITIES, ACCORDING TO ARTICLE 18 OF THE PROTOCOL - IT IS PRIMARILY THE RESPONSIBILITY OF THE COMPETENT INSTITUTION TO RESOLVE THE QUESTION BY COOPERATION WITH THE RESPONSIBLE AUTHORITIES OF THE MEMBER STATE CONCERNED, PURSUANT TO ARTICLE 19 OF THE PROTOCOL .
11 MOREOVER, AN OFFICIAL AND THE MEMBERS OF HIS FAMILY MAY AVAIL THEMSELVES OF THE LEGAL REMEDIES AGAINST ADMINISTRATIVE DECISIONS PROVIDED BY THE LAW OF EACH MEMBER STATE . THE COURT OF COMPETENT JURISDICTION MAY, IF APPROPRIATE, REFER TO THE COURT A QUESTION ON THE INTERPRETATION OF THE PROTOCOL PURSUANT TO ARTICLE 177 OF THE TREATY .
12 IT IS APPARENT FROM THE FOREGOING THAT THE ACTION IS INADMISSIBLE .
Decision on costs
COSTS
13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS THEY MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DISMISSES THE ACTION AS INADMISSIBLE ;
2 . ORDERS THE APPLICANTS TO PAY THE COSTS .