61987J0180

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1 . Officials - Non-contractual liability of the institutions - Cooperation of the institutions with the national police - Communication of information relating to the service which facilitated the arrest of an official - Service-related fault - Non-material damage - Obligation to pay compensation

2 . Officials - Obligation of the administration to assist officials - Scope - Limits

( Staff Regulations, Art . 24 )

1 . Although an institution is bound to provide the police of a Member State with the relevant information concerning an investigation being conducted into a criminal offence in which one of its officials is suspected of being involved, it is not entitled to supply information relating to the service, which as such is extraneous to the subject-matter of the investigation . The communication of information of this kind constitutes a service-related fault for which the institution is liable and obliges it to pay compensation for the non-material damage directly caused to the person concerned, whose arrest was thereby facilitated .

2 . It is clear from the actual terms of Article 24 of the Staff Regulations that the Community institutions are obliged to assist their officials only in the event of actions on the part of third parties to which the officials are subjected by reason of their position or duties . No such duty of assistance may be relied upon in the case of coercive measures taken against an official by national police as a result of the personal conduct of the official, who is prosecuted for an offence unconnected with the performance of his duties .

In Case 180/87

Richard Hamill, an official of the Commission of the European Communities, assisted and represented by Edmond Lebrun, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, avocat, 83 boulevard Grande-Duchesse Charlotte,

applicant,

v

Commission of the European Communities, represented by Peter Kalbe, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of the Commission' s Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for damages,

THE COURT ( Second Chamber )

composed of : O . Due, President of Chamber, K . Bahlmann and T . F . O' Higgins, Judges,

Advocate General : G . F . Mancini

Registrar : D . Louterman, Administrator

having regard to the Report for the Hearing and further to the hearing on 19 April 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 6 July 1988,

gives the following

Judgment

1 By application lodged at the Court Registry on 10 June 1987, Richard Hamill brought an action under Articles 90 and 91 of the Staff Regulations for compensation from the Commission of the European Communities for the damage which he considers that he suffered as a result of unlawful acts or omissions affecting him on the part of the Commission or its servants in the performance of their duties .

2 At the material time the applicant, a British national, was an official in Grade A 6 in the Commission, assigned to the Directorate-General for Competition in which he performed the duties of an inspector of undertakings under the ECSC Treaty .

3 In 1984 the applicant was the subject of an investigation conducted by the British police who suspected that he, together with other persons, had organized an international fraud involving a forged cheque .

4 In the course of this investigation the British police telephoned the Commission' s Security Office on 20 September 1984 in order to obtain certain information concerning the applicant . In reply to this inquiry, the Security Office informed the British police on 1 October 1984 that the applicant was an official and provided them with his address in Brussels and details concerning his motor car, leave which he had requested or was supposed to take and some of his recent movements .

5 On the morning of 9 October 1984 the Security Office informed the British police that the applicant would that day be leaving on mission for the United Kingdom and also supplied them with the applicant' s flight and arrival times .

6 On the same day the applicant was questioned and arrested by the police when he landed at Luton Airport . On the day after his arrest he was visited by a representative of the Commission who had come to collect the documents relating to the applicant' s inspection mission and whom he requested to obtain for him the immediate assistance of a solicitor, which he had been refused by the police; this request was not granted . A solicitor was assigned to defend him by the authorities on 12 October, when he was charged with conspiracy to steal and conspiracy to use a false instrument . After appearing before the magistrates on 13 October, he was held in prison for 10 days and then released . His passport was retained and later returned to him upon payment of security . Finally, by judgment of 14 February 1986, the Central Criminal Court in London acquitted the applicant of the two charges brought against him .

7 The applicant claims essentially that the Commission organized his arrest by cooperating with the British police and failed to comply with its obligation to assist officials under Article 24 of the Staff Regulations by not acceding to his request for the immediate assistance of a solicitor and by not informing his family of his arrest . As a direct result the applicant suffered material and non-material damage for which he seeks compensation .

8 The Commission contends that it did not overstep the limits of its obligation to cooperate with national authorities responsible for conducting investigations whenever its immunities and privileges are not jeopardized and, as in this case, cannot be invoked by the official concerned . In particular, the Security Office refused to answer any question involving information relating to the service . Furthermore, the Commission' s duty to assist its officials extended no further than the obligation to ensure that the applicant was being held for reasons extraneous to the performance of his duties and that he had the benefit of all the safeguards of the British judicial system . Lastly, the Commission denies that there is any causal link between the elements of the alleged damage and its own conduct .

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

The first head of claim

10 The Court acknowledges that the Commission was bound to provide the British police, at the latter' s request, with the relevant information concerning the investigation into a criminal offence in which one of its officials was suspected of being involved . The Court thus considers that the Commission complied with this obligation on 1 October 1984 when it gave the relevant information requested on 20 September .

11 By contrast, the Court cannot accept that the Commission was entitled, on 9 October, to supply information concerning the applicant' s imminent mission to the United Kingdom, the method of transport that he was to use, and the time and place of his arrival . Such information constituted information relating to the service and as such was extraneous to the subject-matter of the investigation .

12 It must therefore be held that the Commission unlawfully cooperated in the investigation conducted by the British police and thus facilitated the applicant' s arrest by them .

13 To that extent the service-related fault on the part of the Commission directly caused the applicant non-material damage for which the Commission must therefore pay compensation .

14 By contrast, the remainder of the first head of the claim for damages must be dismissed in so far as it seeks compensation for the damage suffered by the applicant as a result of his detention in custody and trial . Such damage, even if it were proven, could not, by reason of the intervention of the British authorities, have a direct causal link with the conduct of the Commission .

Second and third heads of claim

15 It is clear from the actual terms of Article 24 of the Staff Regulations and from the judgments of the Court that the Community institutions are obliged under that provision to assist their officials only in the event of actions on the part of third parties to which the officials are subjected by reason of their position or duties .

16 It is not disputed that the British authorities took coercive measures against the applicant by reason of the personal conduct of the applicant, who was suspected of involvement in a criminal offence outside the performance of his duties .

17 Consequently the Commission could not be considered in this case to have committed a service-related fault by failing to obtain for the applicant the immediate legal assistance of a solicitor and by failing to inform his family of his arrest .

18 The second and third heads of claim must therefore be dismissed as unfounded .

Damages

19 It follows from the foregoing that the Commission must be ordered to compensate the applicant for the non-material damage suffered by him as a result of the fact that the Commission facilitated his arrest by the British police .

Costs

20 It is appropriate to allow the parties to reach an agreement as to the amount of the compensation; if they fail to reach an agreement, that amount will be decided by the Court .

On those grounds,

THE COURT ( Second Chamber )

hereby :

( 1 ) Orders the Commission to compensate the applicant for the non-material damage suffered by him as a result of the fact that the Commission facilitated his arrest by the British police;

( 2 ) Dismisses the remainder of the application;

( 3 ) Orders the parties to inform the Court in writing within a period of six months from the date of this judgment of the amount of the compensation agreed between them;

( 4 ) Orders the parties, if no agreement is reached, to send to the Court within the same period their submissions on the quantum of compensation;

( 5 ) Reserves the costs .