3.

Having drawn this general picture I must now return to Article 188. In what cases must an official of the Community be regarded as acting ‘in the performance of his duties’? More precisely, since this is what gave rise to the reference, what is the position in the case of an accident caused by an official who was using his private car for official journeys? In order to justify its point of view the Commission, by a rather extraordinary approach, begins with a consideration of the practice followed by the institutions which it considers satisfactory to the extent that the practice appears neither to hurt judicial feelings nor to offend the sense of justice of either those responsible for the damage or their victims; it then proceeds to review the legal foundation of the solutions thus found. Although the practice followed is not a factor which can be neglected, I consider that the opposite approach must be adopted. It is the rules of the Treaty and the situations with which they are intended to deal, as well as the special nature of the Community, which must determine the extent to which it shall be held liable for the acts of its servants and the conditions under which such servants must be regarded as acting in the performance of their duties. I have just said that the Community — and among its institutions your Court — has powers which, however far-reaching they may be, are none the less “conferred”. The texts which concern these powers must, therefore, receive, if not a restrictive interpretation, at least an interpretation which has regard for the independence of the Community and the States alike and holds the balance fairly between them. Both your jurisdiction and the Community's involvement in liability on the basis of its own rules are necessarily fully justified when the damaging consequences of the legal measures whereby the Community manifests its power are at issue. To return to the example of the Kampffmeyer case, it would be inconceivable for the EEC to be declared liable (or not liable) according to German law for the damage caused to the importers of that country by the improper decision of the Commission, or for such damage to be assessed by a German court. These are measures which are binding on the Community and can only be considered according to Community law. The situation may be different when one is dealing with physical acts connected with the running of its departments. Let me leave aside the point, which may be very important in the case of Euratom, of damage caused by nuclear installations; nuclear risk is the the subject of international conventions which are as yet incomplete and raises delicate problems as regards the competent court and the law applicable. ( 4 ) On the more day-today level of the running of the departments, the actions of officials which give rise to a claim for damages cannot give rise to liability on the part of the Community except to the extent that a more or less close connexion, which must be defined, exists between such acts and the performance of the official's duties. Taking into account the nature of the Community whose functions are primarily advisory, administrative and supervisory, I consider that this connexion must be well established. One cannot accept purely external links based on coincidence or concomitance and it is not sufficient that the act which gives rise to the claim for damages takes place during employment or in the place of employment, that is, during the performance of duties. A direct, internal link must exist between this act and the performance of the duties. From this point of view what is the position as regards an accident caused by a servant driving his private car on a journey or on a mission? It appears that the reply must be that normally it does not render the Community liable, since no direct link exists between the act giving rise to the claim for damages and the servant's duties. Certainly the servant is obliged to carry out his mission and must first get to the place where it is to be performed, but if he uses his car for this purpose, he does so by virtue of a free choice, for personal reasons which are not related to the requirement of the service. It must, in fact, be accepted that in the absence of any express provision to the contrary, an official can never be compelled to use private means in carrying out his mission; in particular, to get to the place involved in the performance of his mission he must be able to use service vehicles or public transport. I consider that on this point the Commission's argument is correct and is sufficient to dictate the solution to this problem without any need to stop to consider the other arguments which have been put forward. In particular, I shall not consider the provision contained in the final paragraph of Article 12(4) of Annex VII to the Staff Regulations, by which a servant authorized to use his own car shall remain fully liable for any accidents to third parties, as a regulation cannot add to a rule which derives from the text of the Treaty or from the interpretation which you considered that it should be given. Similarly, in my opinion, the fact that the use of the private car is referred to and authorized in the travel order cannot have any bearing on the solution of this problem, since the main purpose of this authorization is to fix the basis for the reimbursement of travel expenses which the administration has to effect. It is, however, possible to imagine situations in which the use of the private car might have a sufficiently direct connexion with the servant's duties to render the Community liable; where, for example, contrary to all appearances, this choice is not free because no other means exists of carrying out the mission. The Commission may well say that the servant is then justified in refusing the mission; this principle may be valid in theory but it is one which officials would no doubt be well advised not to apply. It is possible — this is a rather different hypothesis — that, without any suggestion on his part, a servant be called upon by his superiors to take in his car other officials of the Community or persons connected with the Community, in which case his position would be very close to that of the “service driver”. These are special cases which may give rise to difficult problems of evidence in which I must not become involved. Having said this, the definition which I propose of “the performance of duties” is very similar to that which you gave last year concerning an act which is “performed in an official capacity”, although it is not identical to it. I had said at that time that no necessary parallelism existed between these two concepts; however, a more careful study of the question leads me to believe that they may overlap in the majority of cases, whatever may be the difference in the aims which they are intended to achieve. However, a definition is necessarily only an outline and it is not impossible that certain cases might arise in which the two situations are not the same.