62011TJ0401(01)
JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
7 December 2017 (
*1
)
(Appeal — Civil service — Officials — Murder of an official and his wife — Rule of correspondence between the request for compensation, the complaint and the action for damages — Duty to ensure the safety of EU staff — Causal link — Material damage — Liability in solidum — Extent to which benefits provided for by the Staff Regulations must be taken into account — Non-material damage — Liability of an institution for non-material damage suffered by a deceased official — Liability of an institution for non-material damage suffered by the heirs and successors of the deceased official)
In Case T‑401/11 P RENV-RX,
Stefano Missir Mamachi di Lusignano, residing in Shanghai (China), and the other applicants whose names appear in the annex, (
1
)represented by F. Di Gianni, G. Coppo and A. Scalini, lawyers,
applicants,
v
European Commission, represented by G. Gattinara and D. Martin, acting as Agents,
defendant,
APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 12 May 2011, Missir Mamachi di Lusignano v Commission (F‑50/09, EU:F:2011:55), seeking to have that judgment set aside,
THE GENERAL COURT (Appeal Chamber),
composed of M. Jaeger (Rapporteur), President, S. Frimodt Nielsen and S. Papasavvas, Judges,
Registrar: E. Coulon,
gives the following
Judgment
1
The present proceedings follow on from the judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission (C‑417/14 RX–II, ‘the review judgment’, EU:C:2015:588), by which the Court of Justice, having held that the judgment of 10 July 2014, Missir Mamachi di Lusignano v Commission (T‑401/11 P, the judgment on appeal, EU:T:2014:625), which concerned an appeal against the judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission (F‑50/09, the judgment at first instance, EU:F:2011:55), undermined the unity of EU law, set aside the judgment on appeal in part and referred the case back to the General Court for it to determine those issues which had been left to be determined.
Facts giving rise to the dispute
2
Mr Alessandro Missir Mamachi di Lusignano (‘Alessandro Missir Mamachi’) was murdered on 18 September 2006 together with his wife in Rabat (Morocco), where he was to take up his post as a political and diplomatic counsellor to the delegation from the Commission of the European Communities. The murder was committed in a furnished house rented by the delegation for Alessandro Missir Mamachi, his wife and their four children.
3
Following that event, the children were placed under the guardianship of their paternal grandfather, Mr Livio Missir Mamachi di Lusignano (‘Livio Missir Mamachi’), and their paternal grandmother.
4
The Commission paid the children of Alessandro Missir Mamachi, in their capacity as his heirs, the sum of EUR 414 308.90 by way of death benefit under Article 73 of the Staff Regulations, and the sum of EUR 76 628.40 on account of the death of the spouse under Article 25 of Annex X to the Staff Regulations, amongst other sums. In addition, as from 1 January 2007, the Commission recognised the children’s entitlement to the orphan’s pension under Article 80 of the Staff Regulations and the education allowance referred to in Annex VII to the Staff Regulations.
5
By letter of 25 February 2008, addressed to the Commission, Livio Missir Mamachi expressed his dissatisfaction with the amount paid to his grandchildren. He remained dissatisfied following the decision taken by the Commission in response to that letter, and accordingly, by note dated 10 September 2008, he lodged a complaint against that decision on the basis of Article 90(2) of the Staff Regulations, claiming that the Commission was in breach of its administrative duty by reason of a failure to comply with its obligation to protect its staff. He also relied on the strict liability of the Commission and, in the alternative, infringement by the Commission of Article 24 of the Staff Regulations, pursuant to which the European Union is required jointly and severally to compensate the harm caused by a third party to one of their staff.
6
That complaint was rejected by the Commission by decision of 3 February 2009.
Judgment at first instance
7
Livio Missir Mamachi brought an action before the European Union Civil Service Tribunal, maintaining that the Commission had breached its obligation to protect its staff. The action sought, first, the annulment of the decision of 3 February 2009, rejecting his complaint, and, secondly, compensation, first, for the material damage suffered by the children of Alessandro Missir Mamachi, in their name, secondly, for the non-material damage suffered by the children, in their name, thirdly, for the non-material damage he himself had suffered as the father of Alessandro Missir Mamachi, in his own name, and fourthly, for the non-material damage suffered by Alessandro Missir Mamachi, in the name of his children in their capacity as heirs and successors.
8
By the judgment at first instance, the Civil Service Tribunal dismissed the action as being partly inadmissible, in respect of the alleged non-material damage, and partly unfounded, in respect of the material damage relied on.
9
As regards the material damage relied on, first of all, the Civil Service Tribunal held that, by its wrongful failure to comply with its duty to ensure the protection of Alessandro Missir Mamachi, the Commission committed a fault of such a kind as to incur liability. As regards the causal link between that fault and the alleged material damage, the Civil Service Tribunal held that it was established. The Civil Service Tribunal then observed that the murderer’s share of the responsibility for causing the damage remained to be determined.
10
Taking into account the two heads of damage pleaded, namely the double murder and the loss of a chance of survival, and the fact that the second head was narrower in scope than the first, the Civil Service Tribunal concluded, at paragraph 197 of the judgment at first instance, that the Commission was to be held liable for 40% of the damage suffered.
11
As regards the extent of the material damage, the Civil Service Tribunal held, at paragraph 200 of the judgment at first instance, that the material damage linked to loss of revenue that was to be taken into consideration in the present case amounted to the sum of EUR 3 million.
12
After observing, at paragraph 201 of the judgment at first instance, that the Commission was required to make good 40% of that damage, or EUR 1.2 million, the Civil Service Tribunal stated at paragraph 202 of that judgment that the amounts which the Commission had already paid and which it would continue to pay to the heirs and successors, which exceeded the benefits normally provided under the Staff Regulations, came to around EUR 1.4 million, which could increase to around EUR 2.4 million if the benefits concerned were paid until the 26th birthday of each of the four children. The Civil Service Tribunal therefore stated, at paragraph 203 of the judgment at first instance, that the Commission had already made full reparation for the material damage for which it had to bear liability.
13
On the basis of all of the foregoing, the Civil Service Tribunal held, at paragraph 205 of the judgment under appeal, that the plea advanced in the action, although well founded, did not permit it to accept Livio Missir Mamachi’s arguments for reparation of the material damage suffered.
14
Livio Missir Mamachi brought an appeal against the judgment at first instance.
Judgment on appeal
15
In the judgment on appeal, the General Court examined of its own motion the jurisdiction of the Civil Service Tribunal to hear and determine the action at first instance. Amongst other things, the General Court made a distinction between the damage suffered by Alessandro Missir Mamachi, on the one hand, and the damage suffered by his children and by Livio Missir Mamachi, on the other.
16
Concerning the material and non-material damage suffered by Livio Missir Mamachi and the children of Alessandro Missir Mamachi, the General Court held that the Civil Service Tribunal had erred in law in declaring that it had jurisdiction to hear and determine the action in so far as it sought compensation for such damage, and concluded that the case should be referred to the General Court for it to rule on the applications as a court of first instance.
17
As regards the non-material damage suffered by Alessandro Missir Mamachi and in respect of which Livio Missir Mamachi was claiming compensation in the name of the children, the General Court, after noting that the Civil Service Tribunal had jurisdiction to hear and determine such a claim, held that it had erred in law in upholding a plea of inadmissibility which had been raised by the Commission in relation to that claim, in that it had incorrectly applied the rule of correspondence between the claim for compensation and the complaint against the decision rejecting that claim.
Judgment on review
18
On the proposal of the First Advocate General, the Court of Justice decided to review the judgment on appeal. By the judgment on review, the Court essentially, first, set aside the judgment on appeal as regards the division of jurisdiction between the General Court and the Civil Service Tribunal, secondly, held that that judgment was to be considered definitive in so far as the General Court had thereby determined that the Civil Service Tribunal had erred in law in upholding the first plea of inadmissibility raised by the Commission and in dismissing, on that basis, the claim for compensation for the non-material damage suffered by Alessandro Missir Mamachi, and thirdly, referred the case back to the General Court in order for it to rule on the issues.
Procedure before the General Court following referral and forms of order sought by the parties
19
Following referral of the case back to the General Court, it is for this Court to rule, as stated in paragraph 18 above, on the pleas which it did not examine in the judgment on appeal.
20
In accordance with Article 222(1) of the Rules of Procedure of the General Court, on 12 October 2015 Livio Missir Mamachi and the Commission lodged written observations on the conclusions to be drawn from the review judgment for the outcome of the proceedings.
21
Livio Missir Mamachi reiterated the claims already made in the case giving rise to the judgment on appeal, namely that the Court should:
–
set aside the judgment at first instance;
–
order the Commission to pay the heirs and successors of Alessandro Missir Mamachi the sum of EUR 3975329 by way of compensation for the financial damage suffered;
–
declare the claim for compensation for the non-material damage admissible, and order the Commission to pay:
–
the heirs and successors of Alessandro Missir Mamachi, first, the sum of EUR 250000 by way of compensation for the non-material damage suffered by the victim before his death, and secondly, the sum of EUR 1276512 by way of compensation for the non-material damage suffered by them as children of the victim and witnesses of his tragic murder;
–
Livio Missir Mamachi himself, the sum of EUR 212752 by way of compensation for the non-material damage suffered by him as the father of the victim;
–
order the Commission to pay compensatory interest and default interest accrued in the meantime;
–
order the Commission to pay the costs.
22
The Commission similarly reiterated the contentions set out in the response which it had lodged on 16 December 2011 in the case giving rise to the judgment on appeal, namely that the Court should:
–
in relation solely to the non-material damage suffered by Alessandro Missir Mamachi between the time he was attacked and the time of his death, refer the case back before the Civil Service Tribunal pursuant to Article 13(1) of Annex I to the Statute of the Court of Justice of the European Union;
–
dismiss the appeal as inadmissible or unfounded;
–
order Livio Missir Mamachi to pay the costs.
23
By letter sent to the Court Registry on 11 December 2015, the representative of Livio Missir Mamachi informed the General Court of the latter’s death and indicated that his heirs, namely Anne Sintobin (his wife), Stefano Missir Mamachi di Lusignano (his son), Maria Missir Mamachi di Lusignano (his daughter), Carlo Missir Mamachi di Lusignano (the son of Alessandro Missir Mamachi, who had attained the age of majority during the course of the proceedings) and Filiberto Missir Mamachi di Lusignano, Tommaso Missir Mamachi di Lusignano and Giustina Missir Mamachi di Lusignano (the minor children of Alessandro Missir Mamachi, represented by Anne Sintobin), intended to pursue the proceedings before the General Court. In relation to the non-material damage suffered by the four children of Alessandro Missir Mamachi, the representative of Livio Missir Mamachi stated that Carlo Missir Mamachi di Lusignano, who had attained the age of majority, was acting on his own behalf, and that Anne Sintobin would become the legal representative of the three minor children of Alessandro Missir Mamachi, in place of Livio Missir Mamachi. Furthermore, it is apparent from the file that on 30 July 2016 Guistina Missir Mamachi di Lusignano also attained the age of majority. Thus Anne Sintobin, Stefano Missir Mamachi di Lusignano, Maria Missir Mamachi di Lusignano, Carlo Missir Mamachi di Lusignano, Filiberto Missir Mamachi di Lusignano, Tommaso Missir Mamachi di Lusignano and Giustina Missir Mamachi di Lusignano, the applicants, are acting in various different capacities. The seven heirs of Livio Missir Mamachi act in his name as regards compensation for the non-material damage which he suffered. Carlo Missir Mamachi di Lusignano and Giustina Missir Mamachi di Lusignano, having attained the age of majority during the course of the proceedings, also act in their own name as regards compensation for the damage suffered by them, and compensation for the non-material damage suffered by their father, in their capacity as his heirs. Lastly, Filiberto Missir Mamachi di Lusignano and Tommaso Missir Mamachi di Lusignano, who are minors, are represented by Anne Sintobin as regards the claim for compensation of their material and non-material damage and of the non-material damage suffered by their father.
Law
24
In support of the appeal, the applicants advance three grounds, the first alleging that the Civil Service Tribunal erred in law in holding that the claim for compensation for the non-material damage suffered by the four children of Alessandro Missir Mamachi and Livio Missir Mamachi was inadmissible, the second alleging that the Tribunal erred in law in limiting the Commission’s liability to 40%, and the third alleging that the Tribunal erred in law in holding that full compensation had been provided for the material damage through the benefits provided under the Staff Regulations.
…
The second ground, alleging that the Civil Service Tribunal erred in law in limiting the Commission’s liability to 40%
51
Essentially, the applicants complain that the Civil Service Tribunal ordered the Commission to pay a proportion of the material damage when it ought to have been ordered to pay the material damage in its entirety, as a primary liability or, in the alternative, in solidum. This ground comprises four parts. The first three parts relate to the Commission’s primary liability and the fourth to its liability in solidum.
52
It is appropriate to consider the first three parts first.
The first three parts of the second ground, alleging primary liability on the part of the Commission
53
In relation to the first branch, the applicants maintain that the reasoning on the basis of which the Civil Service Tribunal concluded that the Commission was not primarily liable is illogical and contradictory. They observe that, after finding that there was a ‘direct and certain’ causal link between the Commission’s fault and the double murder, in paragraph 183 of the judgment at first instance, the Civil Service Tribunal affirmed, in paragraph 192 of that judgment, that the double murder was not the ‘immediate and inevitable’ consequence of that fault, such that the Commission could not be ordered to bear the full primary liability.
54
The Commission argues that the applicants are conflating the fault, the causal link and the consequences arising from liability on its part. In paragraph 175 of the judgment at first instance, it argues, the Civil Service Tribunal found that the Commission was at fault in that it failed to implement certain security measures. In paragraph 183 of the judgment, it maintains, the Civil Service Tribunal went no further than to find that the Commission had created the conditions for the damage to occur and that the causal link was therefore established. In paragraphs 192 to 193 of the judgment at first instance, it argues, the Civil Service Tribunal concluded, in relation to the Commission’s liability, that the double murder was not an immediate and inevitable consequence of the fault of the Commission, but that the acts of the attacker could not entirely absolve the Commission of liability. The Commission argues that the Civil Service Tribunal thus correctly examined the requirements for liability to arise on the part of the Commission, namely fault and the causal link, and went on to determine the consequences in fixing its liability at 40% of the damage caused.
55
By the second part of the second ground, the applicants maintain that the Civil Service Tribunal erred in its assessment, in paragraph 192 of the judgment at first instance, of the relationship between the wrongful conduct of the Commission and its consequences. According to the applicants, the distinction which the Civil Service Tribunal drew in this regard, concerning the lack of security, between ‘normally predictable’ consequences (burglary, possibly accompanied by physical threats to the occupants of the house) and unforeseeable consequences (murder), on the basis of their seriousness, is contrary to the facts of the case as found by the Court of Appeal of Rabat in its judgments of 20 February and 18 June 2007, and is illogical, arbitrary and devoid of any legal basis, since, they argue, it is apparent from paragraph 184 of the judgment at first instance that the risk to staff safety taken into consideration was the threat of terrorist activity, which is a much greater risk than is posed by ordinary criminality. The same accordingly applies, the applicants maintain, to the restriction of the compensation payable by the Commission to the normally foreseeable consequences of the wrongful act for which it is liable, with various acts of ordinary criminality being distinguished for this purpose. According to the applicants, once it is accepted that the Commission did not correctly perform its duty to ensure the protection of its official, the conclusion necessarily follows that any event causing damage is a direct and foreseeable consequence of such conduct.
56
The Commission argues that the second part of the second ground is inadmissible, on the basis that in that part of that ground, the applicants are challenging the Civil Service Tribunal’s assessment of the evidence, more specifically the motive for the crime as found by the Court of Appeal of Rabat, amongst other things, without arguing that that evidence was distorted.
57
In any event, the Commission argues that the Civil Service Tribunal did not distort that evidence in finding that the motive of the murderer of Alessandro Missir Mamachi and his wife was burglary. As to paragraph 184 of the judgment at first instance, it maintains, the Civil Service Tribunal accepted the precise point made by the applicants, in relation to terrorist threat, in rejecting the Commission’s argument.
58
As to the remainder, the Commission emphasises that it manifestly did not cause the death of Alessandro Missir Mamachi and his wife, the murders having been the act of a third party. It argues that the Civil Service Tribunal was right to observe, in paragraph 192 of the judgment at first instance, that the double murder was not an immediate and inevitable consequence of the Commission’s fault. It submits, furthermore, that under the case-law, the mere fact that the unlawful conduct constituted a necessary condition for the damage to arise, in the sense that the damage would not have arisen in the absence of such conduct, is not sufficient to establish a causal link. It relies, in this regard, on the judgment of 30 November 2011, Transnational Company Kazchrome andENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704, paragraph 80). In addition, it argues that in determining the extent of its liability, the Civil Service Tribunal, applying the case-law cited in paragraph 181 of the judgment at first instance, under which damage may have several causes, took account of the fact that the murder was committed by a third party.
59
According to the Commission, the assessment of the foreseeability of the occurrence of the damage, in the light of the probable conduct of a third party, is made by reference to evidence which was produced before the Civil Service Tribunal, and cannot therefore be subject to review on appeal.
60
In the alternative, as regards the first two parts of the second ground, the Commission argues that, if the Court considers that the reasoning of the judgment at first instance is illogical and contradictory, alternative reasons can be substituted which would lead to the present action being dismissed. In this regard, the Commission cites paragraph 134 of the judgment of 13 December 2006, É. R. and Others v Council and Commission (T‑138/03, EU:T:2006:390), where the General Court noted that, in order for a causal link to exist, the conduct complained of must be the definite and direct cause of the alleged damage, and that in cases where the conduct which allegedly causes the damage consists in refraining from taking action, it is particularly necessary to be certain that that damage was actually caused by the inaction complained of and could not have been caused by conduct separate from that alleged against the defendant institution. In the present case, the Commission considers that the causal link between the fault, consisting in the failure to take certain security measures, on the one hand, and the damage, on the other, has been broken, the damage having been caused by conduct separate from that attributed to it. Accordingly, the Commission maintains that it cannot be held liable for the double murder and therefore that the present action must be dismissed.
61
In relation to the third part of the second ground, the applicants argue that the Civil Service Tribunal erred in law in holding that the Commission’s liability can be limited by reference to the principles deriving from Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1), and in particular from Article 5(4) of that directive, which permits the liability of an employer to be limited in respect of occurrences which are due to unusual and unforeseeable circumstances, beyond its control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care. They contend that that provision could not reduce the Commission’s liability in any event, since it presupposes that the employer exercised diligence and that the consequential damage was inevitable, which, they submit, is not so in the present case. Furthermore, the applicants argue that, even accepting that the circumstances were exceptional, the Commission remains responsible for them inasmuch as, in paragraph 183 of the judgment at first instance, the Civil Service Tribunal held that, had the Commission complied with its duty to ensure the protection of its official, the double murder would not have occurred.
62
The Commission submits that the reasoning in paragraph 192 of the judgment at first instance is advanced entirely in the alternative and does not constitute the principal basis of the Civil Service Tribunal’s reasoning. Furthermore, the Commission observes that the Tribunal referred to the ‘principles’ of Directive 89/391, thus giving the impression that that directive was not applicable as such, and submits that this is confirmed by paragraph 131 of the judgment at first instance, where it is expressly stated that accommodation provided for an official who is required to work in a third country ‘cannot be completely equated to a workstation or workplace within the meaning of Directive 89/391’.
63
By the first three parts of the ground, which can be examined together, the applicants, by means of various different arguments, maintain essentially that once it is established that the Commission breached its duty to ensure the protection of Alessandro Missir Mamachi, any occurrence giving rise to damage is the direct and unforeseeable consequence of that conduct. Thus the applicants argue that the distinction which is drawn between unforeseeable acts and foreseeable acts of ordinary criminality, for the purposes of ascertaining the Commission’s liability, is irrelevant inasmuch as the Commission’s breach of duty results in its being liable for any occurrence giving rise to damage which can be shown to have taken place thereafter. Essentially, the applicants challenge the fact that the Civil Service Tribunal did not regard the Commission’s breach as the adequate and decisive cause of the double murder. Furthermore, they argue that the distinction between foreseeable and unforeseeable acts, as drawn by the Civil Service Tribunal, is contradictory in view of the findings of the Court of Appeal of Rabat, and illogical given that the risk taken into consideration with regard to ensuring the safety of members of the Rabat delegation was the threat of terrorist activity. Finally, the applicants challenge the distinction between foreseeable and unforeseeable acts with regard to the Tribunal’s reference to Article 5 of Directive 89/391. The Commission, for its part, does not challenge the Civil Service Tribunal’s finding, in paragraph 183 of the judgment at first instance, that the causal link between its breach of duty and the double murder has been established. In this regard, it should be observed that, as is apparent from paragraph 60 above, the Commission disputes that link only in the event that the Court upholds one of the first two parts of the present ground.
64
As a preliminary observation, it should be observed that, in principle, there are two theories of causation which can be applied where the same damage has more than one cause, namely the theory of ‘equivalence of conditions’ and that of ‘adequate causation’.
65
In relation to the first theory, for the purposes of the present appeal, it is helpful to distinguish two situations, that of simultaneous wrongs and that of successive wrongs. In the first situation, simultaneous wrongs may be committed by a perpetrator and by the victim of the damage or by two or more perpetrators, called joint perpetrators. In the second situation, the wrongs are separated in time and are usually different in nature. Nevertheless, in spite of that difference, both wrongs contribute to producing the same damage. If not for the first, the second would not have been committed, because the person who committed it would not have had the opportunity to do so.
66
By contrast, in relation to the second theory, that of adequate causation, it is necessary to rank the events leading to the damage in order of importance, such that those which ought to be regarded in law as causes must be distinguished from the others. That theory implies that perpetrators of the damage may not all be under the same liability.
67
EU law has been leaning towards the theory of adequate causation. The Courts of the Union have held that it cannot be held liable for any damage other than that which is a sufficiently direct consequence of the misconduct of the institution concerned (see judgments of 24 October 2000, Fresh Marine v Commission, T‑178/98, EU:T:2000:240, paragraph 118 and the case-law cited, and of 19 March 2010, Gollnisch v Parliament, T‑42/06, EU:T:2010:102, paragraph 110 and the case-law cited; see also, to that effect, judgment of 10 July 2012, Interspeed v Commission, T‑587/10, not published, EU:T:2012:355, paragraph 39 and the case-law cited) and that the applicant must show that, had it not been for the breach, the damage would not have occurred, and that the breach was the decisive cause of the damage suffered (see, to that effect, judgment of 30 September 1998, Coldiretti and Others v Council and Commission, T‑149/96, EU:T:1998:228, paragraphs 116 to 121).
68
Furthermore, it is also apparent from the case-law that, where the relevant conduct of the institution — the conduct complained of — is part of a wider process in which third parties have taken part, and the direct cause of the alleged damage is an act of one of those third parties, the Court must examine whether that act had become inevitable solely as a consequence of the conduct complained of, or whether, on the other hand, it was a manifestation of an autonomous intention (see, to that effect, judgments of 30 April 2009, CAS Succhi di Frutta v Commission, C‑497/06 P, not published, EU:C:2009:273, paragraphs 61 and 62, and of 18 December 2009, Arizmendi and Others v Council and Commission, T‑440/03, T‑121/04, T‑171/04, T‑208/04, T‑365/04 and T‑484/04, EU:T:2009:530, paragraphs 92 and 93). In the case of an autonomous intention, the Court must find that the causal link has been broken.
69
It is also apparent from the case-law that a conception on which, in order for a causal link to exist, it is sufficient for the unlawful conduct to have been a necessary condition of the occurrence of the damage, in the sense that the damage would not have occurred in the absence of that conduct, does not reflect the view which prevails in EU law. Such a broad conception of the causal link does not emerge from the case-law on the second paragraph of Article 340 TFEU. That provision limits the liability of the European Union to damage flowing directly — indeed, sufficiently directly — from the unlawful conduct of the institution concerned, which, in particular, prevents such liability from extending to damage which is only a remote consequence of that conduct (see, to that effect, Order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraphs 39 and 40). Following that logic, the General Court has also held that the mere fact that the unlawful conduct was a necessary condition for the damage to arise, in the sense that the damage would not have arisen in the absence of such conduct, is not sufficient to establish a causal link (judgment of 30 November 2011, Transnational Company Kazchrome and ENRC Marketing v Council and Commission, T‑107/08, EU:T:2011:704, paragraph 80).
70
Nevertheless, it must be held that the case-law cited in paragraphs 67 to 69 above does not absolutely rule out the application of the theory of equivalence of conditions, but only establishes that, if the breach committed by the institution is remote from the damage and if the Court finds that causal link has been broken, the theory of equivalence of conditions cannot be applied. Conversely, where the damage flows directly or sufficiently directly from the institution’s breach and where, therefore, the breach is not so remote from the damage as to break the causal link, the Courts of the Union may apply the theory of equivalence of conditions.
71
Furthermore, it must be recalled that the Courts of the Union have expressly held that the direct and certain origin of the damage may lie not in a single cause but in several causes that contributed decisively to its occurrence. However, that case-law relates to cases of reduction of the liability of the institution concerned by reason of the conduct of the victim himself, where the victim has not taken the necessary care to avoid or minimise the damage (see, to that effect, judgment of 12 June 1986, Sommerlatte v Commission, 229/84, EU:C:1986:241, paragraphs 24 to 27).
72
Finally, in the light of paragraph 70 above, in a situation where an institution is liable for breach of a duty to protect, and where that breach has contributed to causing the very damage which the duty is intended to prevent, it must be held that the breach, even if it cannot be regarded as the sole cause of the damage, contributed to its production in a sufficiently direct manner. Thus the Court may regard the act of a third party, whether foreseeable or unforeseeable, not as being such as to break the causal link or as being a matter which completely exonerates the institution from liability, the two causes (that is, the breach on the part of the institution and the act of the third party) having contributed to the production of the same damage.
73
In the present case, in the considerations set out in the judgment at first instance under the heading ‘The causal link and the existence of a cause exonerating the institution from liability (fault of the victims and act of a third person)’, the Civil Service Tribunal, having found, in paragraph 177 of the judgment at first instance, that the Commission had committed a sufficiently serious breach of its duty to ensure the safety of its staff for liability to arise, proceeded on the basis that it was necessary to establish whether the conduct of Alessandro Missir Mamachi and the act of the murderer were capable of absolving the Commission of liability, whether in whole or in part.
74
At a later point in its reasoning, the Civil Service Tribunal referred to judgments applying both the theory of adequate causation and the theory of equivalence of conditions. The case-law cited in paragraphs 179 and 180 of the judgment at first instance seems to reflect the theory of adequate causation, inasmuch as the Civil Service Tribunal referred, at paragraph 179 of the judgment at first instance, to the case-law under which the Union can be held liable only for damage which is a sufficiently direct consequence of the wrongful conduct of the institution concerned. In paragraph 180 of that judgment, the Civil Service Tribunal also made reference to the case-law under which the applicant must establish that, but for the fault committed, the damage would not have occurred and that the fault is the determining cause of that damage. Furthermore, in paragraph 192 of the judgment at first instance, the Civil Service Tribunal held that ‘although the Commission created the conditions for this damage to occur … the double murder was not the immediate and inevitable consequence of that fault’.
75
On the other hand, in paragraph 181 of the judgment at first instance, the Civil Service Tribunal referred to the judgments of 12 June 1986, Sommerlatte v Commission, 229/84 (EU:C:1986:241, paragraphs 24 to 27), of 3 February 1994, Grifoni v Commission (C‑308/87, EU:C:1994:38, paragraphs 17 and 18), and of 24 October 2000, Fresh Marine v Commission (T‑178/98, EU:T:2000:240, paragraphs 135 and 136), under which the direct and certain origin of the damage may lie not in a single cause but in several causes that contributed decisively to its occurrence.
76
The Civil Service Tribunal went on to determine, in paragraphs 191 to 197 of the judgment at first instance, the murderer’s share in the liability for the occurrence of the damage and, consequentially, the Commission’s share.
77
In relation to the loss of a chance of survival, the Civil Service Tribunal held that the Commission bore direct and exclusive liability for that damage and that Alessandro Missir Mamachi’s chances of surviving his injuries were so faint that they could be assessed at 20%.
78
In relation to the double murder, as noted above, the Civil Service Tribunal held, at paragraph 192 of the judgment at first instance, that the Commission could not be held primarily liable for that damage, because the double murder was not the immediate and inevitable consequence of its fault. In this regard, the Civil Service Tribunal observed that the murders were committed by an individual whose motive was theft and whose behaviour was unforeseeable, stating that that assessment reflected the principles of Directive 89/391, Article 5(4) of which provides that an employer’s responsibility may be limited, in particular where occurrences are due to unusual and unforeseeable circumstances beyond his control. Nevertheless, in paragraph 193 of the judgment at first instance, the Civil Service Tribunal held that the actions of the third party could not entirely absolve the Commission of liability, observing that a solution under which the Commission was entirely absolved would be inconsistent with the case-law under which damage may have several causes. Thus, the Civil Service Tribunal took account of the case-law which applies the theory of equivalence of conditions. In essence, the Civil Service Tribunal was not really, in so doing, treating the murderer’s act as unforeseeable; or rather, it was treating it as unforeseeable in principle, but holding that the case-law applying the theory of equivalence of conditions justified a decision not to absolve the Commission of all liability. Accordingly, the Civil Service Tribunal considered that the Commission was liable as to 30% as regards the double murder and as to 40% as regards the damage as a whole.
79
In spite of the fact that its reasoning drew on both of the different theories of causation, the Civil Service Tribunal essentially gave precedence to the theory of equivalence of conditions over the theory of adequate causation. In paragraph 183 of the judgment at first instance, as regards the causal link between the fault and the double murder, the Tribunal held that Livio Missir Mamachi had established to a sufficient legal standard that the causal link was direct and certain and that, had the Commission complied with its duty to ensure the protection of its official, the double murder would not have occurred. Furthermore, the Civil Service Tribunal held that the Commission had not demonstrated that the causal link had been broken, either by negligence on the part of Alessandro Missir Mamachi, or by actions of a third party (see, respectively, paragraphs 189 and 193 of the judgment at first instance). Finally, and with particular regard to actions of a third party, the Civil Service Tribunal held, again in paragraph 193, that it would be inconsistent with the case-law cited in paragraph 181 of the judgment at first instance, which acknowledges that damage may have several causes, for the Commission to bear no responsibility at all. However, that case-law, which applies the theory of equivalence of conditions, is not relevant in the present case, because it concerns situations in which the liability of the institution is reduced by reason of the conduct of the victim himself. Despite that mistaken reference, for the reasons stated in paragraph 70 above, it appears that the case-law has not absolutely ruled out the application of the theory of equivalence of conditions, in acknowledging that it is for the Court to assess whether the breach should be regarded as a remote cause of the damage. Thus, the Civil Service Tribunal’s reasoning leads to the conclusion that two causes contributed to the double murder, the Commission’s breach of its duty to protect, and the act of a third party. Ultimately, the Civil Service Tribunal applied the theory of equivalence of conditions.
80
In so doing, the Civil Service Tribunal did not err in law.
81
First, it must be observed that, contrary to the applicants’ submissions, it is apparent from the case-law cited in paragraphs 67 to 69 above that, in principle, a breach of duty on the part of an institution is not, in itself, a sufficient basis for holding that its conduct is the certain and direct cause of the damage suffered. In this regard, the case-law also makes clear that where the relevant conduct of the institution — the conduct complained of — is part of a wider process in which third parties have taken part, and where the direct cause of the alleged damage is an act of one of those third parties, the Court must examine whether that act had become inevitable as a consequence solely of the conduct complained of, or whether, on the other hand, it was a manifestation of an autonomous intention. Thus, it is incumbent on the Court to find that the causal link has been broken, and to draw the conclusions which follow from that finding.
82
Secondly, it must also be pointed out that, if the Civil Service Tribunal had applied the theory of adequate causation, that would have led to the applicants’ claim being dismissed. It must be observed that a mechanistic and strict application of the theory of adequate causation would mean that the institution was never liable, since, in accordance with the case-law relating to acts of a third party cited in paragraph 68 above, such acts would always break the causal link, with the consequence that the institution escaped substantive liability.
83
Thirdly, it must be reiterated that it is apparent from the case-law that a conception on which, in order for a causal link to exist, it is sufficient for the unlawful conduct to have been a necessary condition of the occurrence of the damage, in the sense that the damage would not have occurred in the absence of that conduct, does not reflect the view which prevails in EU law. Nevertheless, as stated in paragraph 70 above, that case-law does not absolutely rule out the theory of equivalence of conditions. It is left to the Court to determine whether the causal link is broken by a manifestation of the autonomous intention of a third party. Thus, it may be that the intervention of a third party, even if it is a manifestation of an autonomous intention, does not break the causal link between the breach and the damage, in which case the institution and the third party will both have contributed to the production of the damage. In this regard, in the present appeal, the Commission does not challenge the Civil Service Tribunal’s finding, in the judgment at first instance, that there was a causal link between its breach of duty and the damage suffered, save in the event that the Court upholds one of the first two parts of the present ground. Save in that event, therefore, the appeal court cannot revisit the determination made by the Civil Service Tribunal, which held that the Commission was liable for a breach of its duty to protect its staff which contributed to causing the very damage which that duty was intended to prevent, and accordingly, that the act of a third party, whether foreseeable or unforeseeable, was not capable either of breaking the causal link, or of being regarded as completely absolving the Commission of liability, the two causes, namely the Commission’s breach of duty and the act of the third party, having contributed to the production of the same damage.
84
Thus, the Civil Service Tribunal did not err in law in holding that, where the institution is at fault by reason of a breach of a duty to protect which has contributed to causing the very damage which that duty is intended to prevent, even if it cannot be held to be primarily liable for the damage, it must be regarded as having contributed to bringing it about.
85
That conclusion is not affected by the other arguments which the applicants advance in relation to the first three parts of the ground.
86
First, in relation to the first part, the applicants argue that the reasoning on the basis of which the Civil Service Tribunal held that the Commission was not primarily liable is illogical and contradictory in that, after finding that there was a ‘direct and certain’ causal link between the fault of the Commission and the double murder, in paragraph 183 of the judgment at first instance, it held, in paragraph 192 of that judgment, that the double murder was not the ‘immediate and inevitable’ consequence of that fault, such that the Commission could not be held to be primarily liable.
87
It suffices to observe that the applicants’ argument is based on a mistaken reading of the judgment at first instance. In the first place, in paragraph 183 of the judgment at first instance, the Civil Service Tribunal did not hold that the Commission was solely liable for the damage, but that ‘the Commission … contributed directly to the damage by creating the conditions for it to occur’, by reason of the breach of its duty to protect its staff. Thus, the Civil Service Tribunal, in the following sentence, concluded that ‘the direct and certain nature of the causal link is therefore established’. Ultimately, the Civil Service Tribunal went no further than to hold that the Commission’s breach could be regarded as sufficiently direct to give rise to liability for the murder of Alessandro Missir Mamachi, on the basis of case-law acknowledging that the same damage may have several causes. Although that case-law, which was cited at paragraph 181 of the judgment at first instance and which applies the theory of equivalence of conditions, is not relevant in the present case, because it concerns situations in which the liability of the institution is reduced by reason of the conduct of the victim himself, for the reasons given in paragraph 70 above, it is apparent from the same case-law that it does not absolutely rule out the application of the theory of equivalence of conditions in circumstances where the Court finds that the breach is not a remote cause of the damage.
88
In the second place, in paragraph 192 of the judgment at first instance, the Civil Service Tribunal held that it could not seriously be argued that the Commission should be held primarily liable for the damage, on the basis that, although it had created the conditions for the damage to occur, the double murder had not been the immediate and inevitable consequence of its fault, the murders having been the act of an individual whose motive was theft and whose behaviour was unforeseeable. In this regard, the Civil Service Tribunal referred to the fact that that assessment did not deviate from the principles of Directive 89/391, Article 5(4) of which provides that an employer’s responsibility may be limited, in particular where occurrences are due to unusual and unforeseeable circumstances beyond his control. In this regard, it should be observed that that provision grants Member States the option to absolve employers of liability for unforeseeable events altogether, or to limit their liability. Thus, it was against the background of that reasoning that the Civil Service Tribunal held that the double murder was not the immediate and inevitable consequence of the Commission’s fault.
89
Nevertheless, at paragraph 193 of the judgment at first instance, the Civil Service Tribunal stated that the solution consisting in entirely absolving the Commission of liability, which would have been the consequence of a strict application of what it had stated in paragraph 192 of the judgment at first instance, would have been inconsistent with the case-law acknowledging that damage may have several causes. Ultimately, what was said by the Civil Service Tribunal in paragraph 192 of the judgment at first instance was only one stage in its reasoning, and it was only in paragraph 193 of the judgment at first instance that it drew conclusions from its analysis in deciding not to apply the principle referred to in paragraph 192, which would have meant entirely absolving the Commission of liability, and in concluding that the Commission and the third party had both contributed to the production of the damage. Furthermore, that conclusion of the Civil Service Tribunal is consistent with the interpretation of the judgment at first instance on which, in the case of a breach of a duty to protect which has contributed to causing the very damage which that duty is intended to prevent, the institution must be regarded as having contributed to the damage which has occurred, and an act of a third party cannot be regarded as absolving it entirely of liability.
90
Secondly, it is necessary to reject several arguments advanced by the respondents in relation to the second and third parts of this ground, concerning the Civil Service Tribunal’s assessment of whether the consequences of the Commission’s breach were foreseeable or unforeseeable as regards, in particular, the third party’s motive, which was theft and murder. In this regard, the applicants maintain that the distinction concerning the nature of the motive is not only contradictory, in the light of the findings of the Court of Appeal of Rabat, but also illogical, given that the risk taken into consideration with regard to ensuring the safety of members of the Rabat delegation was the threat of terrorist activity. Furthermore, the applicants argue that it is incorrect to limit the Commission’s liability on the basis of the principles of Directive 89/391, Article 5(4) of which provides that an employer’s responsibility may be limited, in particular where occurrences are due to unusual and unforeseeable circumstances beyond his control. They assert that, even accepting that the circumstances were exceptional, the Commission is liable inasmuch as, in paragraph 183 of the judgment at first instance, the Civil Service Tribunal held that if the Commission had complied with its duty to ensure the protection of its official, the double murder would not have occurred.
91
In the first place, the argument based on contradictory and illogical reasoning, concerning the nature of the motive must fail. As the Commission rightly observes, the Civil Service Tribunal held, at paragraph 184 of the judgment at first instance, that the distinction between a risk linked to terrorist threat and one linked to ordinary criminality had no effect on the assessment of the direct and certain nature of the causal link. Furthermore, the Civil Service Tribunal held, in that same paragraph, that it was reasonable to consider that measures to prevent a terrorist attack should provide effective protection, a fortiori, against intrusion into the home of an official. Accordingly, even accepting that the Civil Service Tribunal made a finding which was contradictory and illogical in the light of the facts found by the Court of Appeal of Rabat, concerning the motive of the murderer, that finding had no effect on its assessment of the Commission’s liability.
92
In the second place, it is necessary to reject the argument advanced in relation to the Civil Service Tribunal’s reference to Article 5 of Directive 89/391. Contrary to the applicants’ submission, the Civil Service Tribunal, in paragraph 192 of the judgment at first instance, did not base its assessment on that provision. The Civil Service Tribunal, having found that the Commission had created the conditions for the damage to occur by breaching its duty to protect its staff, added it could not be held primarily liable for the double murder, since it was the result of an unforeseeable occurrence. The Civil Service Tribunal went on to conclude that that assessment did not deviate from the principles of Directive 89/391 or, in particular, Article 5(4) of that directive. Thus, as such, the applicants’ argument relates to an additional and, strictly speaking, superfluous reason for the judgment at first instance, and may therefore be dismissed in accordance with the settled case-law that a ground of appeal which relates to such a reason must be dismissed (see judgment of 25 February 2015, Walton v Commission, T‑261/14 P, EU:T:2015:110, paragraph 75 and the case-law cited).
93
In any event, it must be observed that, even supposing that the reference to that provision was erroneous because the act of the third party was not unforeseeable, the error had no effect on the outcome of the Civil Service Tribunal’s reasoning. It is apparent from the above examination that the Civil Service Tribunal correctly held that the Commission and the third party both contributed to the production of the damage, which implied that neither one nor the other could be regarded as primarily liable.
94
Thirdly, and finally, it is necessary to reject the argument that, even accepting that the circumstances were exceptional, the Commission should have been held liable inasmuch as, in paragraph 183 of the judgment at first instance, the Civil Service Tribunal held that, had it complied with its duty to ensure the protection of its official, the double murder would not have occurred. By that argument, the applicants’ submit, once again, that since the Commission breached its duty to protect its staff, all consequences arising from succeeding events are attributable to it. In this regard it should be observed that, if the Civil Service Tribunal had applied the case-law relating to the theory of adequate causation, it would have been driven to the conclusion that the Commission’s breach was not, in itself, a sufficient basis for holding it to be liable. Thus the Civil Service Tribunal did not err in law in holding, on the basis of the nature of the fault — namely the breach of a duty to protect which contributed to causing the very damage which that duty was intended to prevent — that, essentially, the Commission and the third party had both contributed to the production of the same damage.
95
Accordingly, in the light of the considerations developed above, the first three parts of the second ground must be rejected.
The fourth part, concerning liability in solidum on the part of the Commission
96
By the fourth ground of the second plea, the applicants allege that, even supposing that the Commission should not be regarded as primarily liable for the act giving rise to the damage, it must be held liable in solidum to pay compensation in respect of the entirety of that damage. Essentially, the applicants challenge the Civil Service Tribunal’s apportionment of liability, maintaining that the Commission and the murderer should be held to be liable in solidum.
97
In this regard, the applicants argue that liability in solidum arises on the part of the Commission, first, from principles common to the laws of the Member States, secondly, from the general scheme of the Staff Regulations and, thirdly, from secondary EU legislation.
98
First, the applicants submit that, in the absence of specific rules or judicial precedent, it is necessary to refer to general principles common to the laws of the Member States. In this regard, they cite German, Spanish, French, Belgian and Italian case-law which acknowledges that, where several acts have contributed to the production of damage, those responsible for those acts are each liable in solidum for the entirety of damage caused. Furthermore, they argue that it is possible to impose liability in solidum notwithstanding that the obligations arise from different sources. On this point, they refer to paragraph 12 of the Opinion of Advocate General Van Gerven in Spie–Batignolles v Commission (201/86, not published, EU:C:1989:300), where he observed that ‘it appears from comparative research into the legal situation in the Member States effected by the Court’s Research and Documentation Division that in the great majority of the Member States it is accepted that where it is proved that a breach of contract … and an act or omission giving rise to non-contractual liability … gave rise to the same damage, the perpetrators of both the contractual and non-contractual faults may be held liable in solidum for the damage’.
99
Secondly, in relation to the scheme of the Staff Regulations, the applicants argue that a correct interpretation of Article 24 of those regulations suggests that the principle of liability in solidum should apply a fortiori where the act giving rise to the damage has been made possible by wrongful conduct on the part of the institutions. The applicants maintain that Article 24 of the Staff Regulations covers the particular case where the Commission is not liable on its own account but, pursuant to its duty to provide help and comfort to its staff, is answerable in solidum together with the person responsible for the act giving rise to the damage, against whom it can then bring an action. In the present case, the Civil Service Tribunal held that the Commission was fully liable for the act giving rise to the damage. It would thus be totally illogical to hold that the Commission is answerable in solidum where it is not liable on its own account, but not, on the other hand, in a much more serious case such as the present one, where it has contributed to the occurrence of the act giving rise to the damage.
100
Thirdly, in relation to secondary EU law, the applicants argue that the principles of EU legislation in the field of compensation for victims of violent crime, as they emerge from Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15), point towards liability in solidum. According to the applicants, that directive, which draws on the European Convention on the Compensation of Victims of Violent Crimes, signed in Strasbourg on 24 November 1983, is based on the principle that where the person who has committed the offence cannot pay full compensation for it, the Member States are required to contribute to such compensation. The applicants maintain that it seems illogical if no such obligation applies to the Commission, in a situation where the Commission itself has contributed to bringing about the act giving rise to the damage. While that piece of EU legislation is only binding on Member States, the applicants consider that the principle of solidarity laid down, in particular, by Directive 2004/80, must apply a fortiori to the EU institutions, especially in a situation where the act giving rise to the damage was made possible by misconduct on the part of the Commission.
101
The Commission maintains that, with regard to the rule governing contribution as between the action of an institution and the act of a third party, the reference to principles drawn from the national legal systems of Member States is irrelevant. First, the only legislative text that relevant in determining whether the institutions are liable in solidum is, the Commission submits, the Staff Regulations, since Article 270 TFEU provides that the Courts of the Union have jurisdiction in any dispute between the Union and its servants ‘within the limits and under the conditions laid down in the Staff Regulations’. In this regard, the Commission argues that the Staff Regulations only refer to joint and several liability in the first paragraph of Article 24, under which the Union is jointly and severally to compensate the official for damage suffered, in so far as the official did not either intentionally or through grave negligence cause damage, and has been unable to obtain compensation from the person who did cause it. Furthermore, the Staff Regulations provide, in Article 85a, for the Union to be subrogated to the rights, including rights of action, of the official who is the victim, or of those entitled under him, against the third party (with some exceptions in relation to actions against the third party) in respect of an act of a third party giving rise to damage and leading to death, accident or sickness. Secondly, the Commission argues that, in the judgments of the Italian and Belgian courts cited by the applicants, liability in solidum was justified because the source of the obligation was the same, or in other words the ‘acts giving rise to damage’ were matters of civil law, whereas in the present case, the murderer’s liability arises from the commission of the offence of murder, a matter of criminal law, whereas the liability of the Commission, as employer, is ‘administrative/civil’ in nature.
102
It is appropriate to consider, first of all, the argument that liability in solidum arises from the scheme of the Staff Regulations. The applicants maintain that Article 24 of the Staff Regulations covers the particular case where the Commission is not liable on its own account but, pursuant to its duty to provide help and comfort to its staff, is answerable in solidum, together with the perpetrator of the act giving rise to the damage (against whom it can then bring an action), in cases where an official has suffered damage by reason of his position or duties. In the present case, the Civil Service Tribunal held that the Commission was liable for the act giving rise to the damage. Accordingly, it would be illogical for the Tribunal to hold that the Commission is answerable in solidum where it is not liable, but not, on the other hand, in a much more serious case such as the present one, where it has contributed to the occurrence of the act giving rise to the damage. The applicants propose, essentially, an alternative interpretation of Article 24 of the Staff Regulations, under which the application of the principle of liability in solidum does not depend on whether the official has suffered damage by reason of his position and duties, but on whether the institution is or is not at fault. Ultimately, the applicants maintain that whether Alessandro Missir Mamachi suffered damage by reason of his position and duties is irrelevant in determining whether the Commission is liable in solidum. They submit that the question is whether or not the institution is at fault.
103
The Commission argues that the Staff Regulations only refer to joint and several liability on the part of the institutions where the official, by reason of his position and duties, falls victim to one of the events mentioned in the first paragraph of Article 24 of the Staff Regulations. Accordingly, it submits, the Commission is only liable in a case where the official suffers the damage by reason of his position and duties. Furthermore, the Commission notes that the Civil Service Tribunal ruled out the application of Article 24 of the Staff Regulations in the present case, in paragraphs 220 to 225 of the judgment at first instance. It also submits that Article 85a of the Staff Regulations provides for the Union to be subrogated to the rights, including rights of action, of the official or those claiming under him against the third party, and moreover that it has sought compensation in the criminal proceedings before the Moroccan court.
104
As a preliminary observation it must be noted that, as the Commission points out, in the judgment at first instance the Civil Service Tribunal rejected a plea alleging that the Commission was required, pursuant to Article 24 of the Staff Regulations, to pay compensation in solidum for the damage suffered, in so far as Alessandro Missir Mamachi had not been murdered by reason of his position and duties.
105
While the Civil Service Tribunal was correct in refusing to apply Article 24 of the Staff Regulations in the present case, it must be observed that that provision does not have the effect of excluding liability in solidum for damage suffered by an official which is caused by misconduct on the part of an institution.
106
The two paragraphs which make up Article 24 of the Staff Regulations must be interpreted together. They provide, in the version applicable to this dispute, that ‘the Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties’, and that ‘they shall jointly and severally compensate the official for damage suffered in such cases, in so far as the official did not either intentionally or through grave negligence cause damage and has been unable to obtain compensation from the person who did cause it’. Accordingly, the Civil Service Tribunal was right to dismiss the plea raised at first instance, given that Alessandro Missir Mamachi was not killed in the performance of his duties. Thus, contrary to the applicants’ submission, the application of this provision is premised on the official having suffered damage by reason of his position or duties.
107
However, it must be observed that while, on the one hand, in the case of an official who has suffered damage by reason of his position and duties, the Communities must jointly and severally compensate him for the damage suffered, whether or not they are at fault, and while, on the other, there is no reason for the concept of liability in solidum to be invoked where an official suffers damage outwith the performance of his duties, and there is no unlawful conduct with a causal link to that damage which can be alleged against the institution, nevertheless, the fact that the Staff Regulations are silent as regards the situation where an institution has contributed, wrongfully, to damage which has been suffered by an official outwith the performance of his duties cannot be interpreted, as the Commission seeks to interpret it, as ruling out liability in solidum on the part of the institution.
108
In this regard, in paragraph 13 of the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), the Court of Justice held that no argument could be derived from the lack of any express provision in the Staff Regulations and the relevant rules for the purpose of denying to the official and those claiming under him the right to seek additional compensation where the institution is responsible for the accident according to general law, and the benefits payable under the regime established by the Staff Regulations are insufficient to provide full compensation for the injury suffered. While it is true that that judgment concerned a situation where the institution’s breach had been committed in the course of the performance of the official’s duty, it establishes the principle that the fact that the Staff Regulations are silent does not mean that anything for which they do not make express provision is ruled out. That principle is thus transferable to the circumstances of the present case.
109
Moreover, the Commission’s argument as to Article 85a of the Staff Regulations does not affect that conclusion. That provision concerns the subrogation of the Union in a situation where damage can be ascribed to a third party, whereas in the present case, the Union must be regarded as having contributed to the production of the damage. Accordingly, the fact that it has sought compensation in the criminal proceedings before the Moroccan courts is irrelevant in determining whether it should be held liable in solidum with the murderer.
110
Having established that the fact that the Staff Regulations are silent does not rule out liability in solidum for damage suffered by an official which is caused by misconduct on the part of an institution, and before turning to the question of whether such liability can be founded on the principles common to the laws of the Member States, it is necessary to address two objections put forward by the Commission.
111
The Commission maintains, first, that with regard to the rule governing contribution as between the action of an institution and the act of a third party, the reference to principles drawn from the national legal systems of Member States is irrelevant inasmuch as, in accordance with Article 270 TFEU, the jurisdiction of the Courts of the Union to hear and determine any dispute between the Union and its servants is exercised within the framework of the Staff Regulations and, secondly, that since the source of the obligation to compensate differs, that of the murderer arising from the commission of the offence of murder, governed by Moroccan criminal law, and that of the Commission, as an employer, being ‘administrative/civil’ in nature, liability in solidum cannot be held to arise, the two obligations not having the same source.
112
As regards the first objection, this must be rejected on the basis of the reasoning developed in paragraphs 106 and 107 above. The fact that the Staff Regulations do not contain rules relating to liability in solidum on the part of an institution which has contributed to producing damage suffered by an official outwith the performance of his duties does not have the effect of automatically ruling out the principle of such responsibility.
113
As to the second objection, this must also be rejected. While it is indisputable that the Courts of the Union have no jurisdiction in respect of the murderer’s unlawful conduct, which is a matter of Moroccan criminal law, it retains jurisdiction in respect of the liability of the institution where, solely or together with a third party, it has caused damage to an official. The Staff Regulations themselves can be interpreted in a way which entails the rejection of the Commission’s argument. If Alessandro Missir Mamachi had been killed by reason of his duties, the Commission would have been jointly and severally liable with the murderer, within the meaning of Article 24 of the Staff Regulations. Indisputably, the fact that Alessandro Missir Mamachi was not killed by reason of his duties precludes the application of that provision, but its wording shows that the nature of the liability of a third party has no impact on the in solidum obligation incumbent on an institution which has contributed to damage. Article 24 of the Staff Regulations shows that the act of a third party may lead to the Courts of the Union hearing a dispute as to liability in solidum on the part of an institution, the nature of the third party’s liability having no impact on the jurisdiction of the Courts of the Union to rule on the liability in solidum of an institution.
114
In this regard, it must be pointed out that the second paragraph of Article 24 of the Staff Regulations provides that the Communities are jointly and severally to compensate the official for the damage suffered if he has been unable to obtain compensation from the person who caused it. That provision has been interpreted by the General Court as making the admissibility of an action for damages brought by an official conditional on national remedies having been exhausted, provided that they protect the persons concerned effectively and may culminate in compensation for the alleged damage (judgment of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 67). However, that case-law cannot be applied by analogy in the present case. That interpretation was developed in a situation where the institution was not at fault, whereas in the present case, fault on the part of the Commission contributed to the production of the damage. Thus, while, in a situation where the institution is not at fault, the Court made the official’s ability to seek compensation from that institution for damage caused by a third party conditional on the official having taken the steps necessary to obtain the compensation which is due before a national court, so as to prevent the official turning immediately to the institution, without first attempting to obtain the compensation payable by the third party, the application of that principle to the circumstances of the present case would be highly unsatisfactory and unfair, given that the Commission contributed, along with the third party, to the act which caused the damage suffered. Furthermore, it is apparent from the file that, in the criminal proceedings against the third party who committed the murder, the Court of Appeal of Rabat has made a finding that he is insolvent and ordered him to pay a symbolic dirham (MAD) to the Union, which had sought compensation in the proceedings. Thus, in the present case, the third party being insolvent, it would seem even more unsatisfactory if the applicants’ action was inadmissible by reason of the fact that they had not exhausted the causes of action provided for by the Moroccan legal system.
115
That conclusion is not affected by the judgment of 14 July 1967, Kampffmeyer and Others v Commission (5/66, 7/66, 13/66 to 16/66 and 18/66 to 24/66, not published, EU:C:1967:31), which was cited in the Opinion of Advocate General Wahl in Ledra Advertising and Others v Commission and ECB (C‑8/15 P to C‑10/15 P, EU:C:2016:290, paragraph 106), in which the Court of Justice held essentially that, where the Union and a Member State are liable in solidum, the individuals allegedly wronged are required first to launch proceedings before the competent national courts if it is the Member States’ authorities that are mainly or primarily responsible for the alleged breaches. Those cases of liability in solidum concern situations of joint administration by the Union and a Member State whereas, in the present case, the factual circumstances are different.
116
It is therefore necessary to consider whether a general principle can be identified in the laws of the Member States which acknowledges that those who have contributed to bringing about the same damage are liable in solidum, and which is capable of being applied in the present case, where an institution has contributed to the production of damage suffered by an official outwith the performance of his duties.
117
First of all, it must be noted that, under the second paragraph of Article 340 TFEU, ‘in the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’.
118
In this regard, it must be observed that a common general principle does emerge from the laws of 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 in solidum, 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.
119
In the light of those considerations, it must be held that the Civil Service Tribunal erred in law in limiting to 40% the proportion of the material damage suffered by the children of Alessandro Missir Mamachi for which the Commission is liable to pay compensation. The fourth part of the second ground must therefore be upheld, and it is unnecessary to consider the argument based on secondary EU legislation.
The third ground, alleging that the Civil Service Tribunal erred in law in holding that full compensation had been provided for the material damage through the benefits payable under the Staff Regulations
120
As a preliminary observation, the applicants argue that, as indicated in Table 2 in Annex A.2 to the appeal, the amount stated in paragraph 202 of the judgment at first instance represents the total of the benefits to which the children of Alessandro Missir Mamachi will be entitled up to their 18th birthdays (an amount of EUR 1381077), and those to which they may be entitled, if they remain dependent on the family and continue in education up to their 26th birthdays (an amount of EUR 1097298). Furthermore, the applicants add that, in the country of residence of the four children of Alessandro Missir Mamachi, the Kingdom of Belgium, university studies normally come to an end between the ages of 22 and 23. Consequently, leaving aside the purely hypothetical nature of the amount of EUR 1097298, the payment of which is subject to a series of conditions which may very well not be fulfilled, the applicants submit that, in any event, those amounts cannot be deducted from the amount of the compensation payable to the four children of Alessandro Missir Mamachi.
121
The applicants go on to submit that the Civil Service Tribunal erred in law in holding that all of the benefits payable under the Staff Regulations, including those other than the lump sum compensation provided for by Article 73 of the Staff Regulations, should be taken into account in determining whether compensation has already been provided for the damage caused by the Commission.
122
In support of this ground, the applicants maintain, first, that the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), which is relied on by the Commission and was cited by the Civil Service Tribunal in paragraph 204 of the judgment at first instance, cannot be applied to the circumstances of the present case. They submit that that judgment does not relate to all the benefits payable under the Staff Regulations, but only to the lump sum compensation provided for by Article 73 of those regulations.
123
Secondly, the applicants maintain that the pension benefits paid to the four children of Alessandro Missir Mamachi pursuant to the Staff Regulations cannot be deducted from the compensation for the damage attributable to the Commission, since benefits in the nature of a pension are granted on the basis of a right which the official acquired by virtue of his employment relationship and which, as a right belonging to the official, passes automatically to his heirs. In this regard, the applicants state that any other conclusion would amount to discrimination against the four children of Alessandro Missir Mamachi, given that they should receive, in practice, the same amount as the children of an official who has died of natural causes. Furthermore, the applicants maintain that, in the absence of rules at the level of the EU legal system, the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), at paragraph 22, makes reference to the legal systems of most Member States as regards the extra-contractual liability of the institution to an official.
124
Thirdly, as regards the fact that, as the Civil Service Tribunal observed in paragraph 111 of the judgment at first instance, Livio Missir Mamachi ‘has made no claim for loss of pension rights that his son would have acquired’, the applicants submit that they ‘quantified the material damage suffered by the Missir Mamachi heirs without regard to the social benefits to which official would have been entitled, on the basis that compensation was provided for the pension rights acquired by the deceased through the orphan’s pension which had been granted’ to his children. In this regard, the applicants contend that the benefits paid to the children of Alessandro Missir Mamachi pursuant to the pension insurance correspond to the sums which he would have been likely to receive once he had reached the pension age fixed by the Staff Regulations. In the light of those considerations the applicants observe that, if the pension rights were deducted from the compensation, the amounts relating to those rights would be deducted twice. They would be excluded from the quantification of the material damage, and would also be deducted from the amount payable to the heirs of the murdered official.
125
The Commission argues that the Civil Service Tribunal was right to hold that the courts, in determining whether or not the institution had provided compensation for the damage suffered, take all of the benefits payable under the Staff Regulations into account. In support of that argument, the Commission cites the judgments of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), and of 9 September 1999, Lucaccioni v Commission (C‑257/98 P, EU:C:1999:402), in which it is stated that the right of an official to compensation under general law is purely supplementary and exists only if the official demonstrates that the benefits payable under regime provided for by the Staff Regulations are insufficient to provide him with full compensation for the damage suffered. It follows, according to the Commission, that if the benefits paid pursuant to the pension insurance were not deducted from the compensation, those claiming under Alessandro Missir Mamachi would receive double compensation, through the orphan’s pensions and through the amount due by way of compensation for the damage.
126
The Commission maintains that, as the Civil Service Tribunal stated at paragraph 202 of the judgment at first instance, it has already paid sums to those claiming under Alessandro Missir Mamachi which exceed the benefits normally provided under the Staff Regulations. That demonstrates, according to the Commission, that it took the particular circumstances of the death of Alessandro Missir Mamachi into account in granting the benefits, such that there can be no question of discrimination.
127
In relation to the applicants’ reliance on the reference to the legal systems of Member States in the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), the Commission observes that, in paragraph 22 of that judgment, the Court of Justice does not refer to provision made by the legal systems of most Member States in relation to the extra-contractual liability of the institution to the official in question, but to compensation for the consequences which the accident had for the wife and daughters of Mr Leussink, compensation which, in any event, the Court refused. The Commission adds, furthermore, that in the light of the case-law of the Court of Justice and the General Court establishing that an action for compensation based on a breach of general law is supplementary in nature, it cannot be maintained, contrary to the applicants’ submissions, that there are no EU legal rules governing the right to compensation of damage suffered by officials. Consequently, the reference to the case-law of Member States is, according to the Commission, inapposite.
128
Finally, as regards the risk of double deduction, the Commission observes that what the Civil Service Tribunal stated in paragraph 111 of the judgment at first instance is ‘entirely ancillary and alternative and, therefore, inoperative’.
129
As a preliminary observation, it should be noted that, although in their pleadings the applicants seek compensation for material damage in the sum of EUR 3975329, on appeal they do not challenge the amount of EUR 3 million assessed by the Civil Service Tribunal on the basis of the remuneration that Alessandro Missir Mamachi would have received up to retirement age, less the amount that he and he wife would have spent on their own needs. By the present ground, the applicants go no further than to challenge the Civil Service Tribunal’s conclusion that all of the benefits payable under the Staff Regulations, including those which are distinct from the lump sum compensation provided for by Article 73 of the Staff Regulations, should be taken into account in addressing compensation for the material damage. Furthermore, even supposing that, in seeking compensation for material damage in the sum of EUR 3975329, the applicants are challenging Civil Service Tribunal’s assessment of the amount at EUR 3 million, it should be observed that, under settled case-law, where the Civil Service Tribunal has found that damage has been caused, it alone has jurisdiction to assess, within the limits of the claim, how and to what extent that damage should be compensated for, subject to the proviso that, in order to enable the General Court to exercise its power of judicial review over the judgments of the Civil Service Tribunal, those judgments must contain adequate statements of reasons and, in relation to the assessment of damage, must state the criteria used to determine the amount at which the compensation has been assessed (see, to that effect, judgment of 5 November 2014, Commission v Thomé, T‑669/13 P, EU:T:2014:929, paragraph 79 and the case-law cited). Thus, since the applicants have not explained how the Civil Service Tribunal erred in applying the criteria used to determine the amount of EUR 3 million, that amount must be held to represent compensation for the material damage suffered by the four children of Alessandro Missir Mamachi.
130
Next, it is necessary to clarify the scope of the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), to which the Civil Service Tribunal referred in paragraph 204 of the judgment at first instance, and which the applicants consider to be inapplicable to the circumstances of the present case, and that of the judgment of 9 September 1999, Lucaccioni v Commission (C‑257/98 P, EU:C:1999:402), to which the Commission refers in its observations.
131
In the case which gave rise to the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), the Court of Justice had occasion to rule on the question of whether 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 general 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 general law, and the benefits payable under the scheme established under the Staff Regulations were insufficient to provide full compensation for the injury suffered.
132
After finding that the accident was an accident at work and that it was due to negligence for which the Commission was liable (judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371, paragraphs 15 to 17), the Court awarded Mr Leussink additional compensation of 2 million Belgian francs (BEF). In relation to Mr Leussink’s wife and four children, the Court held that the effects of the accident on their family life were the indirect result of the injury suffered by Mr Leussink and did not constitute part of the harm for which the Commission could be held liable in its capacity as employer.
133
In relation to the judgment of 9 September 1999, Lucaccioni v Commission (C‑257/98 P, EU:C:1999:402), cited by the Commission in its defence, the Court confirmed, in paragraph 23, 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.
134
Thus, the judgments of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371) and of 9 September 1999, Lucaccioni v Commission (C‑257/98 P, EU:C:1999:402), 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 general law.
135
In the first place, the system provided for in Article 73 of the Staff Regulations and that existing under general law are complementary, such that it is possible to make a claim for additional compensation where the institution is responsible for the accident under general law and the benefits payable under Article 73 of the Staff Regulations are insufficient to provide full compensation for the injury suffered (judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371, paragraph 13).
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 (judgment of 9 September 1999, Lucaccioni v CommissionC‑257/98 P, EU:C:1999:402, paragraph 22).
137
Those two judgments do not, however, address the question of whether all social insurance benefits should be taken into account in assessing the harm eligible for reparation. Nevertheless, in the present case, the Civil Service Tribunal did not err in law in referring, in paragraph 204 of the judgment at first instance, to the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371).
138
While the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371) concerned the relationship between the compensation due under Article 73 of the Staff Regulations and the compensation due on the basis of general law, it does not follow from that judgment that any other benefit for which the Staff Regulations provide is not to be taken into account in determining the amount due by way of compensation for the damage suffered. Furthermore, as the Commission submits, if the pension insurance benefits, or in other words the orphans’ pensions, were not deducted from the amount due by way of compensation for the damage, those claiming under Alessandro Missir Mamachi would receive double compensation, once in the form of the orphan’s pensions and once by way of compensation for the damage. Furthermore, the orphan’s pensions received by the heirs and successors of Alessandro Missir Mamachi are equivalent to those which he would have received himself, had he not died. They must therefore be deducted, as such, from the amount of the compensation for material damage. Lastly, the third subparagraph of Article 73(2) of the Staff Regulations provides that the compensation due in the case of death may be paid in addition to the benefits provided for in Chapter 3 and, therefore, in addition to the orphan’s pension provided for in Article 80, which is contained in that chapter. Thus, the applicants’ argument that the principle established in the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371) does not apply in the present case and must fail.
139
That conclusion is not affected by the applicants’ argument that it would be discriminatory to hold that the orphan’s pensions paid to the four children of Alessandro Missir Mamchi pursuant to the Staff Regulations can be deducted from the compensation for the damage attributable to the Commission, inasmuch as it would involve treating the four children of Alessandro Missir Mamachi like the children of an official who had died of natural causes. In this regard, it suffices to observe that, contrary to the applicants’ submissions and as the Civil Service Tribunal held in paragraph 204 of the judgment at first instance, the Commission took the very particular circumstances of the case into account in paying benefits to the four children of Alessandro Missir Mamachi benefits exceeding those it would have been obliged to pay, under the Staff Regulations, to the heirs and successors of an official who had died of natural causes. The Commission granted the deceased official a posthumous promotion and calculated the benefits payable to his heirs on that basis. Furthermore, the Commission granted each child, pursuant to Article 76 of the Staff Regulations, a monthly sum corresponding to twice the dependent child allowance. Lastly, it should be observed that the applicants’ argument is based on a mistaken premiss, in that the children of an official who had not died as a result of an occupational disease or accident, but of natural causes, would not receive the compensation which is paid, under Article 73 of the Staff Regulations, to the children of an official who has died as a result of an occupational disease or accident. Thus, the applicants cannot legitimately argue that the Civil Service Tribunal erred in law, inasmuch as it cannot be criticised for finding that the four children of Alessandro Missir Mamachi had been treated like the children of an official who had died of natural causes.
140
Equally, it is necessary to reject the applicants’ argument that, in the absence of rules at the level of the EU legal system, the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), makes reference to the legal systems of most Member States as regards the extra-contractual liability of the institution to an official. In paragraph 22 of that judgment, the Court does not refer to provision made by the legal systems of most Member States in relation to extra-contractual liability to the official, or more particularly to the deductibility of social security benefits which have been paid, but to compensation for the consequences which the accident had on family life, compensation which the Court, in any event, refused to order.
141
It is also necessary to reject, as inoperative, the applicants’ argument that the Civil Service Tribunal erred in law, in paragraph 111 of the judgment at first instance, in holding that they had made no claim for loss of pension rights. The applicants maintain that they were not required to seek compensation in respect of those rights, on the basis that they cannot be taken into account in determining the amount of compensation for material damage. However, contrary to the applicants’ submission, in paragraph 111 of the judgment at first instance, the Civil Service Tribunal went no further than to find that no claim for loss of pension rights had been made, despite the fact that the case-law, and more particularly the judgments of 5 October 2004, Sanders and Others v Commission (T‑45/01, EU:T:2004:289, paragraph 167), and of 12 July 2007, Sanders and Other v Commission (T‑45/01, EU:T:2007:221, paragraphs 87 to 90), acknowledges that those rights may be taken into account when assessing material damage. Accordingly, the fact that the applicants consider that they were not required to make a claim for loss of pension rights has no impact on the assessment which was correctly made by the Civil Service Tribunal — and which has not been challenged — in finding that no claim had been made in that respect.
142
Lastly, the applicants maintain that the amount due to the four children of Alessandro Missir Mamachi, if they continue in education up to their 26th birthdays, is hypothetical in nature, in that the payment of that amount is subject to a series of conditions which may very well not be fulfilled, and thus cannot be taken into account as a benefit received by them.
143
The Civil Service Tribunal held, in paragraph 202 of the judgment at first instance, that the amount which the Commission had already paid and was continuing to pay was EUR 1.4 million, and that that amount could increase to around EUR 2.4 million if the benefits concerned were paid until the 26th birthday of each of the four children. It must therefore be observed that the Civil Service Tribunal did not make any express ruling as to whether those sums were deductible from the amount due by way of compensatable damage.
144
In the light of those considerations, the argument that the Civil Service Tribunal erred in law, having regard to the hypothetical nature of the amount received by the four children of Alessandro Missir Mamachi if they continued in education up to their 26th birthdays, must be rejected as inoperative, and the third ground must be rejected in its entirety as unfounded.
145
Having regard to all of the considerations developed above, the judgment at first instance must be set aside in so far as the Civil Service Tribunal rejected the claims for compensation for non-material damage brought by Livio Missir Mamachi and the four children of Alessandro Missir Mamachi and limited the Commission’s liability to 40% of the material damage suffered by those claiming under Alessandro Missir Mamachi, when it ought to have ordered the Commission to pay compensation in solidum for the damage.
The action at first instance
…
The claim for compensation for the material damage suffered by the four children of Alessandro Missir Mamachi
148
It follows from paragraphs 118 and 119 that the Commission will be ordered to pay compensation in solidum for the material damage suffered by the four children of Alessandro Missir Mamachi. The amount of compensation for that damage has been set at EUR 3 million.
149
It must be observed that, in paragraphs 138 and 139 above, it has also been held that the Civil Service Tribunal was right to hold that the orphan’s pensions were to be taken into account in assessing compensation for the material damage.
150
In this respect, it is necessary to refer to the provisions of the Staff Regulations which may have an impact in the present case, as regards the benefits which can be regarded as a form of compensation for the material damage (namely the loss of Alessandro Missir Mamachi’s remumeration) and which, therefore, must be deducted from the amount of EUR 3 million.
151
First, the first paragraph of Article 70 of the Staff Regulations provides that, in the event of an official’s death, the surviving spouse or dependent children shall receive the deceased’s full remuneration until the end of the third month after the month in which the death occurred. Secondly, Article 73(2)(a) of the Staff Regulations provides for the family members referred to in that provision to receive, in the event of death, a lump sum equal to five times the deceased’s annual basic salary, calculated by reference to the amounts of salary received during the previous twelve months. Thirdly, Article 76 of the Staff Regulations provides that gifts, loans or advances may be made, where an official has died, to those entitled under him who are in a particularly difficult position as a result of various different matters, including family circumstances. Fourthly, Article 80 of the Staff Regulations provides that, where an official dies leaving no spouse entitled to a survivor’s pension, the children dependent on the deceased within the meaning of Article 2 of Annex VII at the time of his death are entitled to orphans’ pension in accordance with Article 21 of Annex VIII. In this regard, it should be observed that, under the second subparagraph of Article 21(2) of Annex VIII, orphans are entitled to education allowance in accordance with Article 3 of Annex VII. Fifthly, it is apparent from Article 67(2) and (4) of the Staff Regulations that dependent child allowances may be paid to a person other than the official.
152
In the present case, it is apparent from the file, first, that, in accordance with the first paragraph of Article 70 of the Staff Regulations, the Commission paid the four children of Alessandro Missir Mamachi his full remuneration from 1 October to 31 December 2006. Secondly, the Commission paid them the total sum of EUR 414 308.90 by way of death benefit under Article 73(2)(a) of the Staff Regulations, as well as the total sum of EUR 76 628.40 by reason of the death of the spouse, under Article 25 of Annex X to those regulations. Thirdly, the Commission acknowledged that the four children were entitled to receive, from 1 January 2007, the orphan’s pension provided for by Article 80 of the Staff Regulations, amounting to a total of EUR 4 376.82 per month, and the education allowance referred to in Annex VII of the Staff Regulations, amounting to a total of EUR 2 287.19 per month. Fourthly, pursuant to Article 76 of the Staff Regulations, by decision of 14 May 2007, the Commission granted each of the four children, up to the age of 19, an extraordinary monthly benefit on social grounds equal to a dependent child allowance, in a total sum of EUR 1 332.76 per month. By decision of 4 July 2008, the latter sum was doubled with effect from 1 August 2008. Fifthly, it is apparent from Annex 4 of the file relating to the proceedings at first instance that Livio Missir Mamachi was receiving a dependent children allowance in a total sum of EUR 1 453.84 per month and a reduction of tax consequent upon the deduction of four rebates for the dependent children which, having regard to the tax which would have been payable had there been no dependent children and the tax actually paid, was equivalent to payment by the Commission of the sum of EUR 1 015.78.
153
It must be held that it is necessary to deduct from the amount of EUR 3 million, besides the amount of EUR 76 628.40 received by reason of the death of the spouse under Article 25 of Annex X, which cannot be regarded as a mechanism by which the Commission is required to comply with its obligation to provide compensation for the material damage consisting in the loss of Alessandro Missir Mamachi’s remuneration, the amount paid pursuant to the first paragraph of Article 70 of the Staff Regulations, the death benefit granted under Article 73(2)(a) of the Staff Regulations, the orphan’s pensions due on the basis of Article 80 of the Staff Regulations, the education allowances referred to in Annex VII of the Staff Regulations, the extraordinary monthly benefit granted pursuant to Article 76 of the Staff Regulations, the dependent child allowances and the amount relating to the tax rebate.
154
In relation to the orphan’s pensions, it has been observed in paragraph 138 above that, if they were not deducted from the amount due by way of compensation for the material damage suffered, those claiming under Alessandro Missir Mamachi would receive double compensation. In relation to the amount paid pursuant to Article 70 of the Staff Regulations, this represents three months of Alessandro Missir Mamachi’s salary, and must therefore be taken into account as regards the payment of compensation for the loss of his remuneration. In relation to the death benefit paid under Article 73(2)(a) of the Staff Regulations, it has been stated in paragraph 136 above that, in accordance with settled case-law, that compensation must be taken into account in determining the amount of the damages payable (judgments of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371, paragraph 13, and of 9 September 1999, Lucaccioni v Commission (C‑257/98 P, EU:C:1999:402, paragraph 22). That conclusion also applies to the extraordinary monthly benefit granted pursuant to Article 76 of the Staff Regulations. As has been pointed out in paragraph 139 above, that benefit is closely linked to the compensation paid under Article 73(2)(a) of the Staff Regulations. Finally, in relation to the education allowances, the dependent child allowances and the amount received by way of tax rebates, it must be observed that, if Alessandro Missir Mamachi had not died, he would have received these sums through his salary. Accordingly, they can also be regarded as a payment for the loss of his remuneration.
155
In this regard, it must be observed that it is undoubtedly the case, as the applicants point out, that certain benefits due to the four children of Alessandro Missir Mamachi are subject to future conditions, namely that they remain dependent and continue in education until their 26th birthdays, which may not be fulfilled by one, two, three, or even all four of the children. Furthermore, as the applicants also argue, it may equally turn out that the four children pursue university studies which come to an end before their 26th birthdays. Nevertheless, in those scenarios, if the benefits paid under the Staff Regulations were less than EUR 3 million, the Commission would be obliged to make up the shortfall, since that amount of compensation corresponds to the material damage suffered. The payment of the amount of the benefits due if the four children remain dependent and continue in education until their 26th birthdays, or complete their studies before then, represents a mechanism by which the Commission is required to comply with its obligation to provide compensation for the material damage, the amount of EUR 3 million due in respect of compensation for the material damage being definitively fixed.
…
The claims for compensation for the non-material damage suffered by Alessandro Missir Mamachi, his four children and Livio Missir Mamachi
171
In the present case, the General Court has available to it all the material necessary to determine the claims for compensation of the non-material damage suffered by Alessandro Missir Mamachi, his four children and Livio Missir Mamachi. As a preliminary observation, it should be observed that, as in the case of the material damage, the Commission breached its duty to protect its staff and must be regarded as having contributed to the production of the non-material harm suffered.
The claim for compensation for the non-material damage suffered by Alessandro Missir Mamachi
172
The applicants argue that, as a result of the Commission’s unlawful conduct, Alessandro Missir Mamachi suffered genuine and actual non-material damage. According to the applicants, that damage consists in the physical pain he experienced from the beginning of the attack until his death, which probably occurred due to loss of blood after the murderer had left him at the scene of the crime. The applicants say that it also consists in the state of shock and psychological trauma caused by having to look on helplessly as his beloved wife was barbarically killed, the dreadful knowledge that his own death was imminent, and the feeling of insecurity, worry and terrible anguish for the fate of his four young children, who would be orphans if indeed they survived the attack. The applicants submit that such a right to compensation for the non-material damage suffered by Alessandro Missir Mamachi arises from EU law and from Italian law.
173
The Commission maintains that the recognition of this type of damage is particular to the Italian legal system, which provides for it in Article 2059 of the Italian Civil Code and the case-law relating to property which is constitutionally protected under the Italian constitution. The Commission submits that, in EU civil service law, there is no legal basis for reliance on this type of damage.
174
As a preliminary observation, the objection raised by the Commission, to the effect that there is no legal basis in EU civil service law for reliance this type of damage, cannot be upheld. It suffices to note that, as has already been pointed out in paragraph 107 above, the fact that the Staff Regulations are silent does not mean that anything for which they do not make express provision is ruled out, and that a legal basis may arise out of the legal systems of the Member States.
175
It is therefore necessary to consider whether a general principle can be identified in the legal systems of the Member States under which a victim is entitled to compensation for non-material damage consisting in physical and psychological suffering experienced up to the time of his death.
176
In this regard, it must be observed that, contrary to the applicants’ submission, no general principle can be identified in the laws of the Member States under which, in circumstances similar to those of the present case, the national court would have awarded compensation for this type of non-material damage.
177
Accordingly, the claim for compensation for the non-material harm suffered by Alessandro Missir Mamachi must be dismissed, and it is unnecessary to rule on the plea of inadmissibility advanced by the Commission in this regard.
The claims for compensation for the non-material damage suffered by the four children of Alessandro Missir Mamachi
178
According to the applicants, by reason of the death of Alessandro Missir Mamachi, his four children suffered, in their own right, genuine and actual non-material damage, including damage to their on-going quality of life, which was in addition to the damage consisting in the loss of the parental relationship, and in respect of which there is a right of compensation based on EU law and Italian law.
179
The applicants argue that the psychological damage they allege arises out of the tragic events of the night of 18 September 2006 and reflects the terrible psychological and emotional trauma which the four children of Alessandro Missir Mamachi suffered as a result of having witnessed the terrible and shocking sight of their parents’ suffering and death, and of having then spent the entire night in the presence of their bodies, too young to be able to take any other steps. That trauma is also said to have given rise to the damage to ongoing quality of life suffered by the four children, who, for the rest of their lives, will carry with them the terrible and harrowing experience of their childhood — an experience which may have serious repercussions on the quality of their future interpersonal and social relationships. Lastly, the damage arising from the loss of the parental relationship is said to lie in re ipsa and to consist in the unfair pain and suffering, not only of having lost both of their beloved parents, but to have lost them at a very tender age.
180
As regards the assessment of the non-material harm suffered by the four children, the applicants refer, out of an abundance of caution, to Italian case-law, and particularly to the latest update of the tables produced for that purpose by the Tribunale di Milano (District Court of Milan, Italy). Those tables indicate, for ordinary cases of compensation for damage suffered by each of the surviving parents or children, a bracket of between EUR 106376 and EUR 212752, enabling the compensation to be adjusted to meet the actual circumstances of the case, including, in particular, whether or not other persons close to the claimant survived, whether or not those persons live with the claimant, the nature and strength of the familial emotional ties which remain, and the nature and strength of the emotional ties involved in the parental relationship with the deceased.
181
The applicants add that, in accordance with settled case-law of the Italian courts, the sums referred to in paragraph 180 above are nonetheless purely indicative and can be increased, in particularly serious cases, at the discretion of the court. In this regard, the applicants observe that where a surviving minor has lost both parents, the amount of compensation is normally increased by 25%. According to the applicants, having regard to the singular and utterly exceptional nature of the present case, and of the especially atrocious and tragic circumstances of Alessandro Missir Mamachi’s death, the sum so determined should be increased by a further 25%.
182
In the light of all of those considerations, the applicants seek, by way of compensation for the non-material damage suffered by the four children of Alessandro Missir Mamachi, an amount of EUR 319128 each, or EUR 1276512 in total.
183
The Commission submits, first, that it was not the perpetrator of the damage suffered by Alessandro Missir Mamachi. Accordingly, it contends, the Italian case-law cited by the applicants is not relevant, in that it concerns cases where an award of compensation for non-material damage is made against the perpetrator of a legal wrong which has caused the victim’s death, whereas in the present case, the Commission maintains, it has a potential secondary liability by reason of a breach committed with regard to the alleged lack of adequate security measures.
184
Secondly, the Commission argues that, in EU civil service law, there is no right to compensation for non-material damage suffered by members of an official’s family. In this regard, the Commission argues that, in the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), where, it submits, the link between the conduct of the institution and the event affecting the official was manifestly more direct than in the present case, the Court of Justice held that the consequences for family members were an indirect result of the injury suffered, and did not constitute part of the harm for which the institution could be held liable.
185
Thirdly, and in the alternative, the Commission maintains, in the first place, in relation to the psychological trauma suffered by the four children of Alessandro Missir Mamachi by reason of having witnessed as shocking and atrocious a spectacle as the death of their parents, that it is not apparent from the trial papers that the children did in fact witness their parents’ murder and that, accordingly, the damage in question has not been proved to the requisite legal standard.
186
In the second place, in relation to the damage to quality of life which was caused by the trauma and which, according to the applicants, may have serious repercussions on the quality of the future interpersonal and social relationships of the four children, the Commission observes that, according to the Italian case-law cited by the applicants, damage to quality of life is not a separate category of damage, and that compensation is only payable in respect of it where it has been suffered directly by the victim, or in other words the person against whom the offender committed the legal wrong — which, in the present case, is not the Commission.
187
In the third place, in relation to the damage arising from the loss of the parental relationship which, according to the applicants, lies in re ipsa, the Commission submits, on the basis of the same case-law of the Corte suprema di cassazione (Supreme Court of Cassation, Italy) which is cited by the applicants, that that claim must be dismissed. According to the Commission, such a claim distorts the purpose of compensation, which is not awarded as a result of a finding that damage has indeed occurred, but as a measure of a private nature relating to harmful conduct. In any event, it contends, compensation has already been provided for the damage in question, in the form of the benefits granted under Article 73 of the Staff Regulations, the precise effect of which is to provide for lump sum compensation to be payable in the event of the death of an official.
188
In the fourth — and final — place, the Commission disputes the applicability of the tables produced by the Tribunale di Milano (District Court of Milan), for the purposes of assessing the non-material damage alleged to have been suffered by the four children of Alessandro Missir Mamachi. The Commission submits that the tables relate to compensation payable by the perpetrator of the legal wrong, and cannot apply in the present case because the Commission was not the perpetrator. Furthermore, it argues, the tables only show a tendency which exists in one Member State, and indeed in one court in that Member State. Lastly, it maintains that to apply the tables produced by the Tribunale di Milano (District Court of Milan), as proposed by the applicants, would run counter to settled Italian case-law — cited by the applicants in relation to biological damage, but transposable to psychological damage — under which it is always necessary, in applying those tables, to make an adequately individualised assessment which reflects the facts of the case.
189
Accordingly, the Commission submits that the claim for compensation of the non-material damage suffered by the four children of Alessandro Missir Mamachi must be dismissed.
190
It is appropriate to consider, first of all, the two objections essentially raised by the Commission, which submits, as has been stated in paragraphs 183 and 184 above, that it is only secondarily liable for the non-material damage suffered by the four children, and also that the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), demonstrates that consequences for members of an official’s family are an indirect result of the damage suffered by the official, and do not constitute part of the harm for which the institution can be held liable.
191
As regards the first objection it should be reiterated that, as stated in paragraph 84 above, the Civil Service Tribunal correctly held that, where the institution is at fault by reason of a breach of a duty to protect which has contributed to causing the very damage which that duty is intended to prevent, even if the institution cannot be held to be primarily liable for the damage, it must be regarded as having contributed to bringing it about. Accordingly, the Commission’s argument that it is only secondarily liable for the damage must be rejected.
192
As regards the second objection, the Commission argues that the principle established in the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), namely that consequences for members of an official’s family are an indirect result of the damage suffered by the official, and do not constitute part of the harm for which the institution can be held liable, applies a fortiori in the present case.
193
First, in contrast to the case which gave rise to the judgment of 8 October 1986, Leussink v Commission (169/83 and 136/84, EU:C:1986:371), in which the official, who had been involved in an accident at work and survived, received additional compensation, in the present case Alessandro Missir Mamachi died without having acquired the right to such compensation, as is apparent from paragraph 177 above, and hence the consequences for the family members of a deceased official cannot be the same as the consequences for the family members of an official who has survived.
194
Secondly, it must be observed that a common general principle can be identified in the laws of the Member States under which, in circumstances such as those of the present case, 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.
195
In this regard, a common general principle can also be identified in the laws of the Member States under which there cannot be double compensation for the non-material damage suffered. Accordingly, the court must establish the extent to which a scheme which guarantees automatic payment of benefits covers the non-material damage suffered by the heirs and successors of the official, be it wholly, partly or not at all, before assessing the amount of compensation due in respect of that damage. Finally, it is apparent from the laws of the Member States that the principle of liability in solidum which applies to material damage in circumstances such as those of the present case is equally applicable to non-material damage.
196
Accordingly, the Commission’s second objection must also be rejected.
197
As regards the matters to be taken into account in determining the amount of compensation payable in respect of the non-material damage suffered by the four children of Alessandro Missir Mamachi, the applicants maintain that that amount must be calculated having regard, first, to the psychological and emotional trauma which the four children suffered as a result of having witnessed the awful and shocking sight of their parents’ death, and having then spent the entire night in the presence of their bodies, being too young to be able to take any other steps, secondly, to the damage to ongoing quality of life suffered by the four children, who, for the rest of their lives, will carry with them the terrible and harrowing experience of their childhood, and thirdly, to the damage arising from the loss of the parental relationship, consisting in the unfair pain and suffering not only of having lost both parents, but of having lost them at a very tender age
198
Without its being necessary to rule on the various matters put forward by the applicants — by reference, moreover, to principles emerging from Italian case-law — it must be observed that a common general principle can be identified in the laws of the Member States under which, in circumstances such as those of the present case, it is recognised that the heirs and successors of the deceased, in particular his children and parents, have suffered compensatable non-material damage consisting in the psychological suffering caused by the death of a person close to them, and that the various matters put forward by the applicants can be related to that principle.
199
In this regard, it must be pointed out that, contrary to the Commission’s submissions, compensation for the non-material damage suffered by the four children has not already been provided by means of benefits granted under Article 73 of the Staff Regulations, which provides for lump sum compensation in the event of an official’s death. As is apparent from paragraph 153 above, the lump sum compensation was taken into account as compensation for the material damage consisting in the loss of Alessandro Missir Mamachi’s remuneration only. The non-material damage caused by the death of Alessandro Missir Mamachi relates on the other hand to the suffering of the four children, and, therefore, is not covered by the benefits granted under Article 73 of the Staff Regulations.
200
As regards the determination of the amount of the non-material damage, it must be held that, contrary to the applicants’ submission, the tables produced by the Tribunale di Milano (District Court of Milan) cannot be used in the present case. As the Commission rightly observes, the Courts of the Union cannot use tables produced in one Member State in determining the amount of compensation payable in respect of damage suffered by the heirs and successors of a deceased official of the Union. In this regard, it should be recalled that the Courts of the Union assess the amount ex æquo et bono (see, to this effect, judgment of 5 June 1980, Oberthür v Commission, 24/79, EU:C:1980:145, paragraph 15), setting out the matters taken into account in doing so (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; of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 35, and of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 51).
201
Taking account of the circumstances of the case and of the principles set out in paragraphs 194 and 195 above, and in the light of the consideration referred to in paragraph 198 above, it is appropriate to order the Commission to pay to each of the children of Alessandro Missir Mamachi, in solidum, by way of compensation for the non-material damage suffered by reason of the loss of their parents and the fact that they were present at the scene of the double murder, the sum, assessed ex æquo et bono, of EUR 100000.
The claim for compensation for the non-material damage suffered by Livio Missir Mamachi
202
The applicants submit that the parents of Alessandro Missir Mamachi must also be awarded fair compensation for the non-material harm consisting in the unfair pain and the suffering arising from the loss of their son in such tragic and atrocious circumstances. To that suffering there must be added, they submit, in respect of damage to their quality of life, the physical and psychological fatigue and the worry and disturbance due to having to take over, despite their advanced age, the maintenance and education of their four orphaned grandchildren. Thus, in the light of the singular circumstances of the case and of the particularly appalling and tragic nature of the matter, the applicants seek an award of compensation of EUR 212752 in favour of Livio Missir Mamachi, in respect of the non-material damage suffered by him.
203
The Commission has merely raised a plea of inadmissibility in relation to that claim, which has been considered and rejected in paragraph 170 above.
204
It is sufficient to observe that, as stated in paragraph 198 above, a common general principle can be identified in the laws of the Member States under which, in circumstances such as those of the present case, it is recognised that the parents of the deceased have suffered compensatable non-material damage, consisting in the psychological suffering caused by the death of a person close to them.
205
Taking account of the circumstances of the case and of the principles set out in paragraphs 194 and 195 above, and in the light of the consideration referred to in paragraph 198 above, it is appropriate to order the Commission to pay to the applicants collectively, as the heirs of Livio Missir Mamachi and by way of compensation for the non-material damage he suffered by reason of the loss of his son, Alessandro Missir Mamachi, in solidum, the total amount, assessed ex æquo et bono, of EUR 50000.
…
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:
1.
Sets aside the judgment of 12 May 2011, Missir Mamachi di Lusignano
v Commission
(F‑50/09) in so far as the European Union Civil Service Tribunal upheld the plea of inadmissibility raised by the European Commission in relation to the claim for compensation of the non-material damage suffered by Carlo Missir Mamachi di Lusignano, Giustina Missir Mamachi di Lusignano, Filiberto Missir Mamachi di Lusignano and Tommaso Missir Mamachi di Lusignano, the last two of whom are represented by Anne Sintobin;
2.
Sets aside the judgment of 12 May 2011, Missir Mamachi di Lusignano
v Commission
(F‑50/09) in so far as the European Union Civil Service Tribunal upheld the plea of inadmissibility raised by the European Commission in relation to the claim for compensation of the non-material damage suffered by Livio Missir Mamachi di Lusignano;
3.
Sets aside the judgment of 12 May 2011, Missir Mamachi di Lusignano
v Commission
(F‑50/09) in so far as the European Union Civil Service Tribunal limited the Commission’s liability to 40% of the material damage suffered by Carlo Missir Mamachi di Lusignano, Giustina Missir Mamachi di Lusignano, Filiberto Missir Mamachi di Lusignano and Tommaso Missir Mamachi di Lusignano, the last two of whom are represented by Anne Sintobin;
4.
Dismisses the appeal as to the remainder;
5.
Orders the Commission to pay, in solidum, the amount of EUR 3 million, after deduction of those benefits paid or to be paid under the Staff Regulations which are regarded as forming part of that amount, to Carlo Missir Mamachi di Lusignano, Giustina Missir Mamachi di Lusignano, Filiberto Missir Mamachi di Lusignano and Tommaso Missir Mamachi di Lusignano, the last two of whom are represented by Anne Sintobin, in respect of the material damage suffered by them;
6.
Orders the Commission to pay, in solidum, the amount of EUR 100000 to Carlo Missir Mamachi di Lusignano, in respect of the non-material damage suffered by him;
7.
Orders the Commission to pay, in solidum, the amount of EUR 100000 to Giustina Missir Mamachi di Lusignano, in respect of the non-material damage suffered by her;
8.
Orders the Commission to pay, in solidum, the amount of EUR 100000 to Tommaso Missir Mamachi di Lusignano, represented by Anne Sintobin, in respect of the non-material damage suffered by him;
9.
Orders the Commission to pay, in solidum, the amount of EUR 100000 to Filiberto Missir Mamachi di Lusignano, represented by Anne Sintobin, in respect of the non-material damage suffered by him;
10.
Orders the Commission to pay, in solidum, the total amount of EUR 50000 to Stefano Missir Mamachi di Lusignano and the other applicants named in the annex, in their capacity as heirs of Livio Missir Mamachi di Lusignano, in respect of the non-material damage suffered by him;
11.
Orders that default interest is to be added to the compensation referred to in paragraphs 6 to 10 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;
12.
Dismisses the action as to the remainder;
13.
Orders the Commission to pay the costs relating to the appeal proceedings;
14.
Orders the Commission to pay the costs relating to the proceedings at first instance.
Jaeger
Frimodt Nielsen
Papasavvas
Delivered in open court in Luxembourg on 7 December 2017.
[Signatures]
(
*1
)	Language of the case: Italian.
(
1
)	The list of the other applicants is annexed only to the version sent to the parties.