Case T‑401/11 P-RENV-RX

(publication by extracts)

Stefano Missir Mamachi di Lusignano and Others

v

European Commission

(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)

Summary — Judgment of the General Court (Appeal Chamber), 7 December 2017

Officials — Non-contractual liability of the institutions — Conditions — Damage — Non-material damage suffered by the heirs and successors of a murdered official due to the insufficiency of the benefits payable under the regime established by the Staff Regulations to provide compensation for the injury suffered by them — Reparable damage — Limits

Non-contractual liability — Conditions — Causal link — Murder of an official by a third party following failure of his institution to comply with its obligation to protect its staff — Break of the causal link due to the intervention of the third party — None — Categorisation of the institution as having contributed to bringing about the damage

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. EU law has been leaning towards the theory of adequate causation. The Courts of the Union cannot be held liable for any damage other than that which is a sufficiently direct consequence of the misconduct of the institution concerned and 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. Furthermore, where the relevant conduct of the institution 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. In the event of autonomous intention, it is for the Court to determine the break of the causal link. It is also apparent from the case-law on the second paragraph of Article 340 TFEU that it 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. Following that logic, 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. Nevertheless, those principles following from the case-law do not absolutely rule out the application of the theory of equivalence of conditions, but only establish 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. (see paras 64, 67-70)

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. 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. (see paras 72, 84)

See the text of the decision. (see para. 92)

The premise for the application of Article 24 of the Staff Regulations is the fact that the official suffers damage by reason of his position or duties. Therefore, that provision does not apply in the event that the official did not suffer damage by reason of his position or duties. (see para. 106)

The EU Court 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 wording of Article 24 of the Staff Regulations 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. That article 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. (see para. 113)

A common general principle emerges from the laws of the Member States under which 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. The principle of liability in solidum which applies to material damage is equally applicable to non-material damage. (see paras 118, 195)

See the text of the decision. (see para. 129)

No general principle can be identified in the laws of the Member States under which, in circumstances where an official carrying out his duties in a third country was murdered in the accommodation provided to him, the national court would have awarded compensation for this type of non-material damage consisting in physical and psychological suffering experienced up to the time of his death. (see paras 175, 176)

A common general principle can be identified in the laws of the Member States under which, in circumstances where an official carrying out his duties in a third country was murdered in the accommodation provided to him, 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. 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 Courts of the Union 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. (see paras 194, 195)