OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 16 December 2021 ( 1 )

Case C‑54/20 P

European Commission

v

Stefano Missir Mamachi di Lusignano,

Maria Letizia Missir Mamachi di Lusignano,

(Appeal – Civil service – Liability of the European Union based on the failure of an institution to fulfil its duty to ensure the protection of its officials – Deceased official – Non-material damage suffered by the official’s brother and sister – Remedy to bring proceedings – Articles 268, 270 and 340 TFEU – Standing)

I. Introduction

1. In September 2006, Mr Alessandro Missir Mamachi di Lusignano (‘the deceased official’) and his wife were murdered in the house rented for them in Rabat (Morocco) by the European Commission. Mr Missir Mamachi di Lusignano was to take up his post as a political and diplomatic adviser to the European Commission’s delegation. He was, therefore, an employee of an EU institution.

2. This case is the latest instance of a judicial saga before the EU Courts, ( 2 ) which arose from this unfortunate and tragic event. It allows the Court to clarify its case-law concerning the right to damages, which arises in the context of staff cases, that is to say, cases related to the employment relationship of a person in the EU institutions or other bodies. This case thereby presents the Court with a possibility to clarify the delimitation between the jurisdiction based on Article 270 TFEU in relation to that based on Article 268 TFEU.

3. The present appeal is brought by the Commission against the judgment of 20 November 2019, Missir Mamachi di Lusignano and Others v Commission (T‑502/16, EU:T:2019:795; ‘the judgment under appeal’). By that judgment the General Court ordered the Commission to pay, on a joint and several basis, EUR 50000 to the deceased official’s mother, and EUR 10000 to each of his sister and brother, by way of compensation for non-material damages in respect of the damage they suffered due to that tragic event.

4. The Commission accepts the part of the judgment which concerns the mother, but disputes the assessments made by the General Court in response to the claims for compensation submitted by the brother and sister. The key issue raised by the appeal is whether the brother and the sister were entitled to bring the actions for non-material damages in their own name on the basis of Article 270 TFEU, which grants jurisdiction in staff cases to the Court, ( 3 ) or if the brother and sister should have used Article 268 TFEU, which governs the general jurisdiction of the Court for actions in damages based on the non-contractual liability of the EU.

II. Legal framework

5. Apart from Articles 268, 270 and 340 TFEU, the provisions listed below are also relevant in the present case.

6. Article 91(1) of the Staff Regulations, to which Article 270 TFEU refers, provides: ‘The Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and any person to whom these Staff Regulations apply regarding the legality of an act affecting such person adversely within the meaning of Article 90(2). In disputes of a financial character the Court of Justice shall have unlimited jurisdiction.’

7. Article 90(2) of the Staff Regulations, read together with Article 91(2) of those regulations, provides that a person to whom the Staff Regulations apply may bring an action before the Court of Justice only if he or she has previously submitted his or her complaint to the appointing authority against an act which affects him or her adversely.

8. Several other provisions of the Staff Regulations were invoked or relied on in the case leading to the judgment under appeal, as well as in the previous proceedings relating to the claims for damages resulting from the death of Mr Missir Mamachi di Lusignano and his wife. It is, therefore, necessary to mention them here.

9. The relevant parts of Article 73 of the Staff Regulations invoked are as follows: ‘1. An official is, from the date of his entry into the service, insured against the risk of occupational disease or accidents in the manner provided for in rules drawn up by common agreement of the appointing authorities of the institutions of the Union after consulting the Staff Regulations Committee. He shall contribute to the cost of insuring against non-occupational risks up to 0.1% of his basic salary. Such rules shall specify which risks are not covered. 2. The benefits payable shall be as follows: (a) In the event of death: Payment to the persons listed below of a lump sum equal to five times the deceased’s annual basic salary calculated by reference to the amounts of salary received during the twelve months before the accident: – to the deceased official’s spouse and children in accordance with the law of succession governing the official’s estate; the amount payable to the spouse shall not, however, be less than 25% of the lump sum; – where there are no persons of the category above, to the other descendant in accordance with the law of succession governing the official’s estate; – where there are no persons of either of the two categories above, to the relatives in the ascending line in accordance with the law of succession governing the official’s estate; – where there are no persons of any of the three categories above, to the institution.’

10. Other provisions of the Staff Regulations invoked are set out as follows.

11. Article 40(2)(iii) of the Staff Regulations, which entitles an official to be granted unpaid leave on personal grounds if this is necessary, inter alia ‘to assist his spouse, a relative in the ascending line, a relative in the descending line, a brother or a sister in the case of medically certified serious illness or disability’.

12. Article 42b of the Staff Regulations, which provides that ‘in the case of medically certified serious illness or disability of an official’s spouse, relative in the ascending line, relative in the descending line, brother or sister, the official shall be entitled to a period of family leave without basic salary’.

13. Article 55a (2)(e) of the Staff Regulations, which authorises an official to work part-time if that is necessary, inter alia, in order ‘to care for a seriously ill or disabled spouse, relative in the ascending line, relative in the descending line, brother or sister’.

III. Background to the dispute, and the judgment under appeal

14. The background to the dispute was set out in detail in the judgment under appeal. ( 4 ) The main points which are of assistance for the purpose of the present Opinion may be summarised as follows.

15. The murder of Mr Missir Mamachi di Lusignano and his wife was committed on 18 September 2006 in a furnished house rented by the European Commission’s delegation for the couple and their four children.

16. Following that tragic event, the children were placed under the guardianship of their grandparents. The Commission paid to the children of the deceased official, in their capacity as his heirs, the insured amount provided for under Article 73 of the Staff Regulations.

17. Mr Livio Missir Mamachi di Lusignano, the father of the deceased official, and guardian of the children, was dissatisfied with the amount paid on the basis of Article 73 of the Staff Regulations. He, therefore, brought an action based on Article 270 TFEU seeking the payment of various sums as compensation for material and non-material damages arising from the tragic event. Those claims were brought both in the children’s capacity as heirs and successors of the deceased official, as well as in their own name and in the name of the father of the deceased official. This led to a series of cases (A), prior to the current line of proceedings (B).

A. The first line of cases

18. As an introduction to this line of cases, it is necessary to explain the context in which they were decided. At the relevant time, there were three judicial institutions within the Court of Justice of the European Union as an EU institution: the Court of Justice, the General Court and the Civil Service Tribunal. The latter enjoyed the jurisdiction to decide at first instance cases brought on the basis of Article 270 TFEU.

19. The question whether a claim in damages was required to be brought under Article 268 TFEU or under Article 270 TFEU was, therefore, relevant not only to deciding the legal basis governing such actions, but also to decide whether the case was to be heard by the Civil Service Tribunal or by the General Court at the first instance. That context, I believe, influenced the decision in the judgment of 10 September 2015, Review Missir Mamachi di Lusignano v Commission (C‑417/14 RX‑II, EU:C:2015:588, ‘the review judgment’) and is important for understanding it.

20. This line of cases was initiated in the Civil Service Tribunal which adopted, on 12 May 2011, the judgment in Missir Mamachi di Lusignano v Commission (F‑50/09, EU:F:2011:55). The Civil Service Tribunal dismissed the application as being in part unfounded – in relation to the material damage claimed – and in part inadmissible – in relation to the alleged non-material damage.

21. On appeal, in the judgment of 10 July 2014, Missir Mamachi di Lusignano v Commission (T‑401/11 P, EU:T:2014:625), which set aside the judgment at first instance, the General Court of its own motion examined the jurisdiction of the Civil Service Tribunal to hear and determine the action at first instance. Amongst other things, the General Court drew a distinction between the damage suffered by the deceased official and by the children as his heirs on the one hand, and the damage suffered by the children and by the father in their own name, on the other hand. The General Court held that the Civil Service Tribunal ‘lacked jurisdiction from the outset’ to hear and determine the action brought by the father and the children in their own name. It had, according to that judgment, jurisdiction only in relation to the claim for compensation of non-material damage suffered by the deceased official and his children as his heirs. The actions for non-material damages in their own name had to be brought by the children and the deceased official’s father before the General Court on the basis of Article 268 TFEU.

22. In order to avoid a lack of uniformity in the procedural requirements, the General Court held that where the heirs and successors of a deceased official claim compensation for various heads of damage caused by the same act, both in their capacity as heirs and successors (on the basis of Article 270 TFEU) and in their own name (on the basis of Article 268 TFEU), they should be allowed to join those claims by bringing a single action. Given the Civil Service Tribunal had no jurisdiction for part of those claims (the claims brought on the basis of Article 268 TFEU), the ‘single action’ could be concentrated only in the General Court. That Court had appellate jurisdiction in cases brought under Article 270 TFEU and first-instance jurisdiction in actions brought on the basis of Article 268 TFEU.

23. That appeal judgment of the General Court was then reviewed and partially set aside by the Court of Justice in the review judgment. By that judgment, the Court essentially ruled that the General Court’s considerations in the appeal judgment misinterpreted the Civil Service Tribunal’s jurisdiction to hear disputes having their origin in the employment relationship.

24. Thus, the Court of Justice considered on review that all claims for damages at issue were within the Civil Service Tribunal’s jurisdiction under Article 270 TFEU. In other words, it was possible for not only the children’s claim in their capacity as heirs of the deceased official, but also the claims for non-material damages introduced in their own name, as well as the claim of the deceased official’s father to be brought under Article 270 TFEU and, therefore, to fall within the jurisdiction of the Civil Service Tribunal.

25. On referral after review, the General Court delivered the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (T‑401/11 P RENV‑RX, EU:T:2017:874), and awarded both material and non-material damages claimed by the children and the father of the deceased official.

B. The present line of cases

26. Concurrent with the first series of proceedings, the father and children of the deceased official, joined by his mother and by his brother and sister, introduced two further actions.

27. On 16 September 2011, they brought an action for non-contractual damages before the General Court relying on Articles 268 and 340 TFEU. However, they subsequently withdrew that action, which was therefore removed from the Court’s register by order of 25 November 2015, Missir Mamachi di Lusignano and Sintobin v Commission (T‑494/11, not published, EU:T:2015:909).

28. On 7 November 2012, the same applicants brought an action for damages under Article 270 TFEU before the Civil Service Tribunal. It was registered under case number F‑132/12. Those proceedings were stayed, first, on 6 June 2013 until the delivery of the decisions closing the proceedings in Cases T‑401/11 P and T‑494/11 and, second, following the Court’s review and referral back to the General Court pending the delivery of the decision closing the proceedings in Case T‑401/11 P RENV RX.

29. On 2 September 2016, following the dissolution of the Civil Service Tribunal, Case F‑132/12 was transferred to the General Court and registered as Case T‑502/16.

30. The Civil Service Tribunal disappearing as an institution eliminated certain parts of concerns underlying the decision reached in the first line of cases.

31. Taking into consideration the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (T‑401/11 P RENV‑RX, EU:T:2017:874), which awarded damages to the father and the children, the General Court considered that it was required to rule solely on the claims of the mother of the deceased official, as well as those of his brother and his sister.

32. On 20 November 2019, the General Court delivered the judgment under appeal in which it awarded, as compensation for the non-material damage suffered as a result of the murder of the deceased official, EUR 50000 to the mother and EUR 10000 to each of the siblings of the deceased official.

IV. The appeal

33. By application lodged at the Registry of the Court of Justice on 30 January 2020, the Commission claims that the Court should: – set aside the judgment under appeal in so far as the General Court ordered the Commission to pay compensation for the non-material harm suffered by Ms Maria Letizia Missir Mamachi di Lusignano and Mr Stefano Missir Mamachi di Lusignano (sister and brother of the deceased official) following the death of Mr Alessandro Missir; – dispose of the case itself and dismiss the action at first instance as inadmissible; – order Mr Stefano Missir Mamachi di Lusignano and Ms Maria Letizia Missir Mamachi di Lusignano to pay the costs of the present proceedings and those at first instance.

34. The defendants contend that the Court should: – dismiss the appeal, and – order the Commission to pay the costs of the present proceedings and those at first instance.

35. Given the intervening COVID-19 pandemic, no hearing took place, but the parties responded to questions put to them by the Court in writing.

36. The appeal includes two grounds: errors of law (first ground) and the infringement of the obligation to state reasons (second ground).

37. At the request of the Court, the present Opinion is limited to an analysis of the first ground of appeal.

38. The appellant divided the first ground into two parts.

39. By its first part, the appellant claims that the General Court erred in law in its interpretation of the concept of the ‘person to whom the Staff Regulations apply’. That part is directed against paragraphs 48 to 64 of the judgment under appeal.

40. By the second part of the first ground of appeal, the appellant claims, in the alternative, that the General Court erred in law by recognising the brother and sister of a deceased official as being entitled to bring a claim for non-material damage on the basis of the Staff Regulations. That part is directed against paragraphs 134 and 135 of the judgment under appeal.

V. Assessment

41. In the judgment under appeal, the General Court considered that it had jurisdiction to decide on the claims of the mother and the siblings of the deceased official on the basis of Article 270 TFEU, and awarded damages.

42. By the first ground of its appeal, the Commission disputes the General Court’s findings on jurisdiction in relation to the claims introduced by the sister and the brother. In substance, the Commission considers that in the event of the death of an official, only those persons mentioned in Article 73 of the Staff Regulations may bring an action for damages on the basis of Article 270 TFEU. The siblings, not being mentioned by that provision, could then introduce a claim for non-material damages only on the basis of Article 268 TFEU.

43. The Commission draws such a conclusion from the review judgment in which the Court, invoking Article 73 of the Staff Regulations, held that the father, as well as the children of the deceased official claiming damages in their own name, may rely on Article 270 TFEU. As I will demonstrate, the interpretation of that case-law offered by the Commission is overly formalistic and difficult to defend.

44. I will offer a different understanding of the same case-law, which leads to the conclusion that Article 270 TFEU is the correct applicable procedure, by which any person may bring an action for damages in his or her own name if his or her claim regarding the liability of the EU institution or other body has its origin in the employment relationship of an official with an EU institution or body.

45. I will first consider the case-law relating to the damages claims under Article 270 TFEU (A), before assessing in a more concrete fashion the arguments raised in the appeal (B).

A. The claims for damages under Article 270 TFEU

46. Article 270 TFEU establishes a special jurisdiction of the Court of Justice in staff cases. It distinguishes such cases from other cases in the Court’s jurisdiction as disputes ‘between the Union and its servants’ and refers to the Staff Regulations as the instrument governing the limits and conditions of such jurisdiction.

47. The reason for singling out staff cases from other heads of jurisdiction of the Court of Justice can be found in the special relationship of trust which must exist between the institution and its employees ‘in order to guarantee to the public that tasks in the public interest entrusted to the institutions are performed effectively’. ( 5 ) That relationship, as explained in the case-law of the Court, is based on reciprocal rights and obligations and entails a duty on the part of the institution to have regard to the welfare of officials. ( 6 ) The specific nature of that relationship demands specific assessment of the liability of the institution toward its employees. ( 7 )

48. The provision in the Staff Regulations which establishes the link to jurisdiction under Article 270 TFEU is Article 91(1) of those regulations. That article provides that ‘the Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and any person to whom these Staff Regulations apply …’.

1. The meaning of the expression ‘any dispute’ in Article 91(1) of the Staff Regulations

49. According to Article 91(1) of the Staff Regulations, any dispute which arises in relation to Staff Regulations may be brought before the Court of Justice on the basis of Article 270 TFEU.

50. However, the text of the Staff Regulations does not envisage liability of an institution for damages caused to that institution’s employee. The question therefore arises whether a claim in damages based on the breach of an institution’s obligations towards its employee may be brought by relying on the Staff Regulations. In other words, is ‘any dispute’ also a dispute concerning a claim for damages owed by an institution as a result of a breach of its obligations towards its employees?

51. Article 73 of the Staff Regulations expressly mentions one type of right to compensation which arises in the event of the harm or death of an official. That right, however, is not a right to damages, but a right to receive an insured amount, which has been determined in advance. It does not depend on the proof of or the amount of the damage suffered. In the case of the official’s death, Article 73(2)(a) of the Staff Regulations provides that such right passes to the deceased official’s spouse and children. If the deceased official did not have a spouse or children at the time of his or her death, the right passes on to other descendants in accordance with the law of succession governing the official’s estate. If there are no persons of either of the two categories above, the right to the insured amount belongs to the relatives in the ascending line. Finally, if there are no persons of any of the three categories mentioned, the insured amount belongs to the institution.

52. The insured amount is not dependent on the amount of actual damages, which might be greater than the insured amount. The Court has, therefore, been faced with claims by injured officials for additional compensation when those officials were of the view that the insured amount did not cover their damages suffered. The Court has found that in such situations, an official does indeed enjoy the right to full compensation. ( 8 )

53. In that way, the Court has recognised that the Staff Regulations do envisage liability for damages arising from the employment relationship. That is why the Court has held that such damages should be claimed under the Article 270 TFEU procedure, rather than the Article 268 TFEU procedure. ( 9 ) Such a right to damages is different from the right to the insured amount provided for in Article 73 of the Staff Regulations. The Court has thus incorporated the non-contractual liability of EU institutions or bodies as employers into the Staff Regulations.

54. Actions for damages, material and non-material, arising from the employment relationship are, therefore, within the scope of the Court’s jurisdiction as envisaged by Article 270 TFEU and Article 91(1) of the Staff Regulations and, as the case-law cited above confirms, have indeed been heard by the Court on the basis of Article 270 TFEU.

55. That interpretation has most recently been confirmed in the review judgment, in which the Court explained that a dispute which originates in the employment relationship between an official and the institution falls under Article 270 TFEU, ‘even if it is a claim for compensation’. ( 10 )

56. Therefore, the term ‘any dispute’ which, under Article 91(1) of the Staff Regulations may be brought before the Court under the procedure envisaged by Article 270 TFEU, includes a claim for material and non-material damages arising out of the employment relationship with the EU institution.

57. However, the question of who is entitled to bring an action in damages under Article 270 TFEU remains to be addressed.

2. The meaning of the expression ‘any person to whom these Staff Regulations apply’ in Article 91(1) of the Staff Regulations

58. The answer to the question of who is entitled to bring an action before the Court of Justice under Article 270 TFEU depends on the meaning of the expression ‘any person to whom these Staff Regulations apply’ in Article 91(1) of the Staff Regulations.

59. In its interpretation of EU law, the Court of Justice is guided and constrained by the text, context and the purpose of the provisions to be interpreted as well as by its own previous case-law which has already attributed meaning to the provision(s) under consideration.

60. Relying on the text, the expression ‘to whom these Staff Regulations apply’, does not help in understanding whether an action under Article 270 TFEU may be brought solely by officials or also by other persons, and if so, by which persons.

61. Indications that the text itself is not conclusive are to be found, first, in the differences in language versions of the same provision, and, second, in the choice of the words in translations of earlier judgments of the Court from French into English. As to the former, a comparative analysis demonstrates that different language versions of Article 91(1) of the Staff Regulations use slightly different terms. On the one hand, the German, English, Spanish and Croatian versions use the term ‘apply’. On the other hand, the French and Italian versions use the term ‘visées’ and ‘indicate’, respectively. The term ‘apply’ implies a grant of rights to a person or the imposition of obligations on a person and having an understanding of to whom those rights are granted or on whom those obligations are imposed. The term ‘visées’, on the other hand seems to imply that it is necessary solely to examine who is referred to by the text of the Staff Regulations, irrespective of the capacity or context in which a person is mentioned. That said, it is, of course, possible to attribute different meanings to those expressions. In the end, the meaning cannot be detached from the person interpreting it and the context in which that person assesses it.

62. The second indication that the text in itself is not conclusive for understanding its meaning is the translation into English of the term ‘visées’ used in the French version of the Court’s judgments. It suffices to mention the translation of the review judgment, which demonstrates the difficulty of remaining faithful to either the text or the person interpreting it. Paragraph 33 of the English-language text of the judgment uses the expression ‘any person referred to in these Regulations’. ( 11 ) In paragraphs 34 and 42 thereof, the English version uses the expression ‘persons covered by’, ( 12 ) and in paragraph 50 it uses the expression ‘persons mentioned in the Staff Regulations’. ( 13 ) In the French-language version, only the term ‘visées’ was used in all the quoted paragraphs.

63. Turning to the context, the phrase ‘any person to whom these Staff Regulations apply’ finds its place within the Staff Regulations. Article 1 of those regulations determines their field of application in the following way: ‘these Staff Regulations shall apply to officials of the Union’. If read in relation to that provision, the phrase at issue may be understood as referring only to the officials of the Union. That would mean that only officials, and no other person, may bring disputes before the Court of Justice under Article 270 TFEU.

64. However, if one considers the entire text of the Staff Regulations, a different interpretation is possible. Namely, those regulations also apply directly to other persons, usually members of the official’s family, bestowing certain rights on them directly, ( 14 ) or mentioning them as beneficiaries of the official’s rights. ( 15 ) That fact and the choice made in Article 91(1) of the Staff Regulations not to use the term ‘official’, but rather ‘any person to whom these Staff Regulations apply’ lead to the conclusion that the circle of persons who may rely on that provision is wider. Therefore, the context does not provide a conclusive answer as to the meaning of the term ‘person to whom Staff Regulations apply’.

65. The purpose of the Staff Regulations is to organise the relationship between the EU institutions and its employees so as to enable their mutual trust. ( 16 ) Building such trust may often involve taking into consideration other persons, particularly, but not exclusively, members of their families. Thus, the Court has recognised that although the Staff Regulations are intended only to regulate the legal relations between the European institutions and their officials, they do so not only by establishing a series of reciprocal rights and obligations, but also ‘by affording certain members of an official’s family rights which they may assert in relation to the European Communities’. ( 17 ) From that, it is possible to imply that the phrase ‘any person to whom these Staff Regulations apply’ also encompasses other persons who are concerned by the official’s employment status in an EU institution.

66. Finally, even if a narrow interpretation including solely officials were possible, the Court of Justice has opted for a broader interpretation, which was equally possible. It has already held that the ‘persons to whom the Staff Regulations apply’ are not only officials. Its case-law recognises that, for example, persons claiming the status of officials ( 18 ) or claiming the right to be recruited ( 19 ) may have the right to bring an action on the basis of the Staff Regulations. The case-law has also accepted actions brought under Article 270 TFEU by the ex-spouse of a former official, ( 20 ) and the divorced spouse of a former Member of an EU institution. ( 21 )

67. However, the persons mentioned in the previous paragraph did not claim damages, but other rights which the Staff Regulations expressly bestowed on them directly, such as rights under the common sickness insurance scheme, ( 22 ) or the right to a survivor’s pension. ( 23 )

68. The first and, thus far, the only case in which the Court of Justice has recognised the right of persons other than the official himself to claim damages was the General Court’s judgment in the first Missir Mamachi di Lusignano case (T‑401/11 P RENV‑RX), ( 24 ) decided on referral back to the General Court after the review judgment of the Court of Justice.

69. The review judgment recognised the right of the father and of the children of the deceased official to claim non-material damages in their own name, and not in their capacity as heirs of the deceased official. The Court has, therefore, recognised their status as ‘persons to whom the Staff Regulations apply’.

3. The source of the procedural right to bring an action in damages under Article 270 TFEU

70. Where does the entitlement of persons other than officials to bring an action in damages in their own name on the basis of Article 270 TFEU and Article 91(1) of the Staff Regulations originate?

71. In my opinion it results from the incorporation into the Staff Regulations of the liability of an institution for damages whenever that liability arises from the employment relationship. As a consequence of such incorporation, rights to damages which result from such non-contractual liability are to be claimed using the procedure envisaged by the Treaty for staff cases – Article 270 TFEU. The right to bring actions in damages using that procedure, rather than the Article 268 TFEU procedure, has already been justified in this way when the actions were brought by officials themselves. ( 25 )

72. In my understanding, the same applies when persons other than officials bring actions in damages where those damages were allegedly caused by the institution’s breach of the obligations arising under an employment relationship. That is what brings such persons within the scope of the term ‘person to whom the Staff Regulations apply’. If the claim in damages arises out of such an employment relationship, it may only be introduced on the basis of Article 270 TFEU, and may not be introduced on the basis of Article 268 TFEU.

73. That understanding, I believe, also follows from the case-law. Some confusion arose because the Court, in the review judgment, ( 26 ) relied on Article 73(2)(a) of the Staff Regulations in confirming that both the father and the children had standing to bring an action for damages under Article 270 TFEU. ( 27 )

74. However, the review judgment does not suggest that the right to damages and therefore the adjacent procedural right to bring an action in damages are based on Article 73 of the Staff Regulations. The reference to Article 73 of the Staff Regulations, or other articles of those regulations, such as Articles 40, 42b, or 55a, serves only as an indication that persons mentioned in those provisions might have standing to bring a claim in damages, because, due to their close relationship to an official, recognised by those provisions, they might have suffered the non-material damages they are claiming.

75. The source of their potential right to damages, which brings them within the scope of the term ‘persons to whom Staff Regulations apply’, is the liability of the institution for the breach of the obligation owed under the employment relationship to the official with whom persons claiming non-material damages had a close connection.

76. Reliance on those other provisions should not, however, be understood to exclude other persons. If a person is not mentioned anywhere in the Staff Regulations, that does not mean that he or she cannot be a ‘person to whom the Staff Regulations apply’ in such a way that the Staff Regulations bestow on him or her rights to damages in the event of the death of an official for which the employing institution is responsible and with whom a person claiming damages had close relations.

77. If, for example, a niece of a deceased official claims damages under Article 270 TFEU, her action cannot be rejected on the sole ground that she is not mentioned anywhere in the Staff Regulations. She would establish standing with more difficultly than a sibling, as for siblings the Court can rely on the express recognition of their close relationship with the official when deciding whether to allow the action. However, if a niece can establish the close relationship with the deceased official for which reason she could have indeed suffered non-material damage, she would be in the same position as the father, mother, children or siblings suing in their own name. She would, therefore, be entitled to introduce an action in damages on the basis of Article 270 TFEU.

4. Justification for the proposed understanding of the jurisdiction in damages under Article 270 TFEU

78. There are a number of reasons which argue in favour of the proposed broad meaning of the expression ‘person to whom Staff Regulations apply’ in Article 91(1) of the Staff Regulations, which results in jurisdiction under Article 270 TFEU for all claims in damages related to the employment relationship.

79. First, the case-law has already opted for a broad interpretation of jurisdiction for claims for damages under Article 270 TFEU. Inasmuch as its own case-law constrains the Court’s interpretation, narrowing the scope of Article 270 TFEU would demand an express overruling of the first series of Missir Mamachi di Lusignano cases. ( 28 ) In those cases the Court recognised the father’s and children’s right to claim damages on the basis of Article 270 TFEU, without such right being expressly provided anywhere in the Staff Regulations, including Article 73 thereof. Reliance on that provision cannot, therefore, be understood as pointing to the legal basis for such damages. It is, rather, only an indication that those persons enjoy close relations to the official, which entitles them to demand non-material damages in the event of his or her death where the institution employing the official is liable.

80. The judgments of the Court in the first line of cases (both the review judgment and the General Court’s judgment following review) could best be understood as providing that Article 270 TFEU and Article 91(1) of the Staff Regulations establish the Court’s jurisdiction to hear actions in damages whenever they are related to the employment relationship between an official and an EU institution, notwithstanding the identity of the person bringing such an action.

81. In the review judgment, the Court’s interpretation was motivated by the then existing context, in which the Civil Service Tribunal enjoyed first instance jurisdiction to hear cases initiated on the basis of Article 270 TFEU procedure. ( 29 ) The broad interpretation of that jurisdiction therefore enabled cases related to the employment relationship with an EU institution to be concentrated in one judicial institution. That contributed to the efficiency of judicial protection.

82. Although the Civil Service Tribunal was subsequently dismantled and jurisdiction given back to the General Court, ( 30 ) the same reasoning is still valid. Therefore, the second justification for the broad interpretation of jurisdiction for claims in damages under Article 270 TFEU is the efficiency of judicial protection, which is achieved if actions which relate to the same event arising from the employment relationship may be concentrated in one judicial proceeding, heard by the same court, or the same chamber of the court.

83. Finally, the interpretation according to which all damages claims arising from the employment relationship with an EU institution must be brought under Article 270 TFEU provides more clarity and predictability regarding the rules of jurisdiction before the EU Courts, enhancing respect for the rule of law. ( 31 ) In offering a clear delineation between jurisdiction under Articles 268 and 270 TFEU for actions in damages on the basis of non-contractual liability of the European Union, such an interpretation helps to define the judicial architecture of the European Union ( 32 ) and enhances individual access to the EU Courts.

84. In the light of the preceding considerations, I shall now assess the arguments put forward by the Commission in the present appeal.

B. Assessment of the first ground of the appeal

1. First part of the first ground of appeal

85. In the first part of the first ground of the appeal, the Commission claims that the General Court (in paragraphs 48 to 64 of the judgment under appeal) erred in law in its interpretation of Article 91(1) of the Staff Regulations, and that such interpretation runs contrary to the position of the Court of Justice as adopted in the review judgment.

86. In the first place, the Commission considers that the General Court’s understanding that ‘siblings are persons to whom Staff Regulations apply precisely because of their family connection with the deceased official’, ( 33 ) as well as the reasoning leading to it, are an erroneous interpretation of relevant law.

87. In the Commission’s understanding, the right of siblings to introduce an action by which they claim non-material damages on the basis of Article 270 TFEU could only be founded in Article 73 of the Staff Regulations. That is based on the Commission’s understanding of the findings of the Court of Justice in the review judgment. In that respect, the Commission argues that the General Court’s findings are contrary to paragraph 34 of that judgment.

88. The Court of Justice stated in paragraph 34 of the review judgment: ‘Article 73(2)(a) of the Staff Regulations expressly identifies the “descendants” and the “ascendants” of the official as the individuals who may, in the event of the death of that official, receive a benefit. Therefore, both the appellant and the children of the deceased official are persons covered by that provision.’

89. Yet, the defendants argue that that same paragraph does not rule out persons not referred to in Article 73 of the Staff Regulations from also bringing an action on the basis of Article 270 TFEU and Article 91(1) of those regulations, nor has the Court claimed so in the review judgment. Instead, that part of the Court’s reasoning only states that descendants and ascendants are persons entitled to insurance benefits (but not damages!).

90. The interpretation according to which Article 73 of the Staff Regulations is relevant for indicating close relations between the applicant and an official, but is not essential for a right to bring an action in damages to exist, explains the case-law of the Court in a coherent fashion. ( 34 ) Such an interpretation is corroborated by other parts of the Court’s review judgment, notably paragraphs 38 and 42. Those paragraphs confirm that the central issue for establishing the right to bring an action is that the claim originates in the employment relationship, ‘even if it is a claim for compensation’. Therefore, jurisdiction under Article 270 TFEU arises when ‘an action for damages [is] brought by anyone who, although not an official, is covered by the Staff Regulations as a result of family ties he [or she] has with an official, since the dispute has its origin in the employment relationship between that official and the institution concerned’. ( 35 )

91. I have already discussed why the formalistic interpretation of the Court’s position in the review judgment is incorrect. In essence, that judgment cannot be understood as the Court considering that the father’s and children’s right to damages is governed by Article 73 of the Staff Regulations. That provision regulates the right to insurance up to a certain amount, but not the right to damages. Relying on Article 73 of the Staff Regulations in the review judgment can only be understood, as correctly explained by the General Court, as an indication of the applicants’ close relationship with the deceased official.

92. Relying on either Article 73 or Articles 40, 42b or 55a of the Staff Regulations, none of which regulates liability in damages, when assessing either the father’s, mother’s, children’s or siblings’ rights to bring a damages action on the basis of Article 270 TFEU, is only indicative of the likely prima facie standing of those claimants. The reason for the choice of Article 270 TFEU rather than Article 268 TFEU for their claims lies in the fact that they are ‘persons to whom Staff Regulations apply’ because they claim damages which allegedly arise from the institution’s liability based on the employment relationship of an official with whom they had a close relationship.

93. The General Court was, therefore, right to substantiate its finding that siblings had the right to claim non-material damages by relying on their close relationship with the deceased official, which is recognised in certain provisions of the Staff Regulations.

94. The Commission characterised such understanding as a ‘statement of principle’ which requires an explanation of how a ‘family relationship can be invoked on the basis of Article 91(1) of the Staff Regulations’. If by ‘statement of principle’, the Commission meant a generally applicable legal interpretation of the jurisdiction of the Court in staff cases, I believe that the General Court sufficiently explained its understanding by repeating that the reason for the Court’s jurisdiction under Article 270 TFEU and Article 91(1) of the Staff Regulations is found in the claim’s link with the employment relationship and the corresponding liability of the EU institution.

95. As liability in damages was incorporated into the Staff Regulations in the earlier case-law of the Court, anyone who can reasonably claim to have a close relationship with the official whose employment relationship is involved is entitled to bring an action based on Article 270 TFEU. Persons whose close relationship is recognised expressly by the Staff Regulations, in whatever context, are in a good position to establish their standing, but their being mentioned in those provisions is neither a condition of nor gives a legal title to their procedural rights. It is merely the legislative recognition that those persons most probably have close ties with the official and may, therefore, claim non-material damages in the event of that official’s death.

96. The General Court did, therefore, not err in law when it considered that the procedural rights of siblings to bring an action for non-material damages on the basis of Article 270 TFEU are justified by their close relationship with the official in whose employment relationship with the Commission their claim has its origin.

97. The General Court also did not err when it insisted that the fact that the brother and the sister are not mentioned in Article 73 of the Staff Regulations should not deprive them of ‘the procedural possibility of seeking, by means of Article 270 TFEU, compensation for their own injury’. ( 36 ) Finally, neither did the General Court err in concluding that the review judgment permits such an interpretation.

98. In the second place, the Commission argues that the solution reached by the General Court is contrary to the requirement of Article 91(1) of the Staff Regulations that the action is to concern the legality of an act adversely affecting the applicant.

99. That argument must be rejected as the action for damages brought by the applicants is based on the claim that such an act is unlawful. Before introducing the action, the brother and sister have, indeed, as required by Article 90 of the Staff Regulations to which Article 91(1) thereof refers, requested the Commission to pay damages to them, which the Commission has refused. It was after the Commission’s negative response, that they introduced the actions for damages before the General Court. Even though damages are sought due to the European Commission’s unlawful omission in relation to the deceased official, the action at the same time requires the Commission’s refusal to be set aside.

100. The procedural requirement demanding prior exhaustion of the administrative procedure before the competent EU institution is a necessary step when the action for damages is brought under the Article 270 TFEU procedure. However, in actions for damages, and the same is true when such actions are brought by the officials themselves, sometimes the very act under challenge, by which the institution refused certain benefits to the official gives rise to the damage, but sometimes, some other act or failure to act on the part of the institution gives rise to the damage. ( 37 ) In the latter situation, however, the action for damages may be brought only after such damages have been sought from and refused by the relevant institution. ( 38 ) Therefore, one unlawful act (or omission) may give rise to damages, but an action will have to be brought against the act refusing the compensation sought. ( 39 ) That was the situation in the present case.

101. I would like to add that precisely the fact that the same underlying unlawful act (omission) triggered the damages claims in all the cases at issue, whether the claim initiated by the children as the official’s heirs, or by the father, mother and children in their own name, or by the siblings also demanding the compensation for their personal non-material damages, militates in favour of concentrating those claims under the same procedural device.

102. In conclusion, enabling persons other than officials to rely procedurally on Article 270 TFEU does not eliminate the procedural requirements envisaged by the Staff Regulations, nor does it remove the requirement that the action must concern the legality of an act which adversely affects the applicant. The General Court’s interpretation is not, therefore, contrary to the wording of Article 91(1) of the Staff Regulations, as claimed by the Commission. That argument, therefore, must be rejected.

103. In the third place, the Commission contends that basing the possibility to claim damages on a person’s close link with the official grants the Court the discretionary power to assess whether there is an act which adversely affects the applicant.

104. That argument is based on the Commission’s erroneous understanding of the reason for reliance on other articles of the Staff Regulations in addition to Article 91(1) thereof. Namely, the Commission states that if the standing of an applicant is based only on a provision which demonstrates its close link with the official, ‘an applicant could always be considered as a person to whom Staff Regulations apply, independently of the link of the act which she contests and the obligations envisaged in the Staff Regulations’.

105. In the present case the applicants’ procedural capacity to bring an action is not based on articles of the Staff Regulations which demonstrate their close link with the official (such as Articles 40, 42b, or 55a). Such procedural capacity arises out of the connection between the alleged damages and the employment relationship with the institution. Therefore, deceased official’s siblings are able to bring an action in damages based on Article 270 TFEU because of the link between the damages they claim and the contested act by which the Commission breached its obligation arising from the employment relationship with the deceased official.

106. Inasmuch as the claim in damages is linked to the employment relationship of the official with whom the applicant must demonstrate close links, I believe that the Court’s discretion is properly oriented and limited. The Court’s discretion in assessing whether the person at issue might be prima facie entitled to the damages claimed does not differ from the power of assessment which courts generally enjoy when deciding any action for damages.

107. In consequence, the arguments that the General Court’s power to assess the standing of the applicants is discretionary should be rejected.

108. As far as concerns the Commission’s claim that accepting the General Court’s position results in also allowing trade unions to bring an action, suffice it to say that it is settled case-law that Article 91 of the Staff Regulations applies solely to individual disputes. In other words, claims considered to be collective in essence, such as those lodged by a trade union are excluded. ( 40 )

109. For all the above reasons, I consider that the first part of the first ground of appeal should be rejected.

2. Second part of the first ground of appeal

110. In the second part of its first ground the Commission criticises paragraphs 134 and 135 of the judgment under appeal and, in substance, argues that only the persons expressly mentioned in Article 73 of the Staff Regulations are covered by those regulations for the purposes of obtaining compensation from the Commission for non-material damages arising from the death of an official. Brothers and sisters are not covered by that provision and their claim ought to have been rejected.

111. Paragraph 134 of the judgment under appeal is solely a cross-reference to paragraphs 33 and 34 of the review judgment. As that issue was already raised in the first part of the first ground of the Commission’s appeal, the same arguments as already submitted in relation to the first part of the first ground apply.

112. Paragraph 135 of the judgment under appeal explains that the motivation underlying paragraphs 33 and 34 of the Court of Justice’s review judgment was to keep all claims in damages which are based in the employment relationship with an EU institution under the jurisdiction of the Civil Service Tribunal. For that reason, those cases were interpreted as pertaining to the jurisdiction envisaged by Article 270 TFEU. That assessment appears correct to me.

113. The contested paragraph further explains that paragraph 35 of the review judgment clarified that it was not relevant to establishing his right to bring an action in damages under Article 270 TFEU whether the father actually had a right to the insured amount. If one accepts the interpretation under which Article 73 of the Staff Regulations solely demonstrates the close relationship of a person to the official, and does not establish that person’s right to bring the action, the General Court’s explanation in that paragraph does not constitute an error in law.

114. Accordingly, the second part of the first ground of appeal should also be rejected.

VI. Conclusion

115. In the light of all the foregoing, I am of the opinion that the first ground of the appeal should be rejected, without prejudice to the merits of the other ground of the appeal.

( 1 ) Original language: English.

( 2 ) See section 3 of the present Opinion.

( 3 ) Millet, T., ‘Staff cases in the judicial architecture of the future’, Liber amicorum in honour of Lord Slynn of Hadley, Kluwer Law International, 2000, 221-231.

( 4 ) Judgment under appeal, paragraphs 1 to 28.

( 5 ) Judgment of 6 March 2001, Connolly v Commission (C‑274/99 P, EU:C:2001:127, paragraph 44). See also judgments of 24 March 2011, Dover v Parliament (T‑149/09, not published, EU:T:2011:119, paragraph 46), and of 11 June 2019, De Esteban Alonso v Commission (T‑138/18, EU:T:2019:398, paragraph 46).

( 6 ) Judgment of 29 June 1994, Klinke v Court of Justice (C‑298/93 P, EU:C:1994:273, paragraph 38). See also judgments of 24 March 2011, Dover v Parliament (T‑149/09, not published, EU:T:2011:119, paragraph 46), and of 11 June 2019, De Esteban Alonso v Commission (T‑138/18, EU:T:2019:398, paragraph 46).

( 7 ) Van Raepenbusch, S., ‘La convergence entre les régimes de responsabilité extracontractuelle de l’Union européenne et des États membres’, ERA-Forum, vol. 12,2012, No 4. 671-684, p. 681; Božac, I., ‘Odgovornost za štetu u okviru službeničkog prava Europske unije’, Doktorski rad, Sveučilište u Zagrebu, 2019. (‘Liability for damages in European Union civil service law’, Doctoral Thesis, University of Zagreb, 2019), pp. 20 and 206-208.

( 8 ) 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).

( 9 ) Judgment of 22 October 1975, Meyer-Burckhardt v Commission (9/75, EU:C:1975:131, paragraph 7); order of 10 June 1987; Pomar v Commission (317/85, EU:C:1987:267, paragraph 7); and the review judgment, paragraphs 48 and 50.

( 10 ) Review judgment, paragraphs 38 and 42 and the case-law cited.

( 11 ) Review judgment, paragraph 33; emphasis added.

( 12 ) Review judgment, paragraphs 34 and 42; emphasis added.

( 13 ) Review judgment, paragraph 50; emphasis added.

( 14 ) For example, under Article 70 of the Staff Regulations, the spouse and dependent children of the deceased official are entitled to three months of his or her salary, or pension, under Article 80 of those regulations. Under Article 72 of the same regulations, the spouse (under certain conditions) and children of an official are entitled to sickness insurance.

( 15 ) For example, under Article 24 of the Staff Regulations, an official is entitled to the institution’s assistance in a case when he or she or a member of his or her family is subjected to any attacks to his or her person or property by reason of the official’s position or duties. Further, the spouse, sick children or relatives may, on the basis of Article 40 of the Staff Regulations, benefit from the official’s right to take unpaid leave on personal grounds. Similarly, children may benefit from the official’s right to parental leave under Article 42a, and the spouse and certain relatives may, on the basis of Article 42b, benefit from the official’s right to family leave in the event of their illness, or of the official’s right to work part-time on the basis of Article 55a.

( 16 ) See the explanation in point 47 of the present Opinion.

( 17 ) Judgment of 10 June 1999, Johannes (C‑430/97, EU:C:1999:293), paragraph 19. This was repeated in paragraph 31 of the review judgment.

( 18 ) Judgment of 11 March 1975, Porrini and Others (65/74, EU:C:1975:38).

( 19 ) Judgment of 15 January 1987, Ainsworth and Others v Commission and Council (271/83, 15/84, 36/84, 113/84, 158/84, 203/84 and 13/85, EU:C:1987:7).

( 20 ) Judgment of 16 April 1997, Kuchlenz-Winter v Commission (T‑66/95, EU:T:1997:56).

( 21 ) Judgment of 21 April 2004, M v Court of Justice (T‑172/01, EU:T:2004:108).

( 22 ) As was the case in the judgment of 16 April 1997, Kuchlenz-Winter v Commission (T‑66/95, EU:T:1997:56).

( 23 ) As was the case in the judgment of 21 April 2004, M v Court of Justice (T‑172/01, EU:T:2004:108).

( 24 ) Judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (T‑401/11 P RENV‑RX, EU:T:2017:874).

( 25 ) See cases listed in footnote 8.

( 26 ) Review judgment, paragraph 34.

( 27 ) In the appeal, the Commission concluded that Article 73(2)(a) of the Staff Regulations lists the persons entitled to damages under those regulations in the case of the death of an official, such that solely they, and no other persons, are ‘persons to whom Staff Regulations apply’.

( 28 ) Both the review judgment and judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (T‑401/11 P RENV‑RX, EU:T:2017:874).

( 29 ) Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7).

( 30 ) Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137).

( 31 ) Foreseeability of legal rules is understood by the Venice Commission as part of the rule of law requirements. European Commission for Democracy through Law (Venice Commission), Rule of Law Checklist, Strasbourg, 2016, p. 15.

( 32 ) View of Advocate General Wathelet in Review Missir Mamachi di Lusignano v Commission (C‑417/14 RX‑II, EU:C:2015:593, points 60 to 62).

( 33 ) Judgment under appeal, paragraph 62.

( 34 ) See the explanation in points 70 to 77 of the present Opinion.

( 35 ) Review judgment, paragraph 42; emphasis added.

( 36 ) Judgment under appeal, paragraph 61.

( 37 ) See, for example, judgment of 11 June 2019, De Esteban Alonso v Commission (T‑138/18, EU:T:2019:398).

( 38 ) See, for example, judgment of 12 July 2012, Commission v Nanopoulos (T‑308/10 P, EU:T:2012:370, paragraph 61).

( 39 ) See, for example, judgment of 23 October 2003, Sautelet v Comission (T‑25/02, EU:T:2003:285).

( 40 ) Judgment of 8 October 1974, Union syndicale – Service public européen and Others v Council (175/73, EU:C:1974:95, paragraph 19).