Case T‑502/16

Stefano Missir Mamachi di Lusignano,
as heir of Livio Missir Mamachi di Lusignano and others

v

European Commission

Judgment of the Court (Eighth Chamber), 20 November 2019

(Civil service — Officials — Murder of an official and his wife — Obligation to ensure the safety of staff in the service of the European Union — Liability of the institution for non-material damage suffered by the family members of a deceased official — Mother, brother and sister of the official — Action for damages — Admissibility — Standing to bring proceedings under Article 270 TFEU — Person covered by the Staff Regulations — Reasonable period of time)

1. Actions brought by officials — Actions for damages — Application for annulment of a pre-litigation decision rejecting a request for compensation — Application not independent of the claims for compensation

   (Staff Regulations, Art. 91)

   (see paragraph 29)

2. Actions brought by officials — Standing — Persons referred to in the Staff Regulations — Concept — Actions for damages brought by the brothers and sisters of a deceased official — Admissibility — Conditions

   (Art. 270 TFEU; Statute of the Court of Justice, Annex I, Art. 1; Staff Regulations, Arts 40, 42b, 55a, 73, 90 and 91)

   (see paragraphs 42, 50-57)

3. Actions brought by officials — Request for compensation addressed to an institution — Limitation period — Expiry not constituting an absolute bar to proceeding

   (Art. 340, second para., TFEU; Statute of the Court of Justice, Art. 46(1); Staff Regulations, Art. 90(1))

   (see paragraphs 68, 69)

4. Actions brought by officials — Time limits — Requests for compensation addressed to an institution — Duty to act within a reasonable time — Criteria for assessment

   (Statute of the Court of Justice, Art. 46; Staff Regulations, Art. 90)

   (see paragraphs 77-79)

5. Non-contractual liability — Damage — Damage for which compensation is available — Non-material damage caused by the death of a loved one — Inclusion — Assessment ex aequo et bono

   (Art. 340, second para., TFEU)

   (see paragraphs 146, 147, 167, 168, 171, 172)

Résumé

The brothers and sisters of a murdered European official are entitled to compensation for non-material damage as ‘persons to whom the Staff Regulations apply’

In the judgment Missir Mamachi di Lusignano and Others v Commission (T‑502/16, EU:T:2019:795), handed down on 20 November 2019, the Court considered the action for damages brought by the mother, brother and sister of Alessandro Missir Mamachi di Lusignano (‘the applicants’), an EU official murdered in Rabat (Morocco).

Alessandro Missir Mamachi di Lusignano (‘Alessandro Missir’ or ‘the deceased official’) was murdered on 18 September 2006 with his wife in Rabat, where he was due to take up his post as a political and diplomatic advisor to the European Commission’s delegation. The murder was committed in a furnished house rented by that delegation for Alessandro Missir, his wife and their four children. The action brought by the applicants in this case follows the Court’s judgment of 7 December 2017 in Missir Mamachi di Lusignano and Others v Commission (T‑401/11 P RENV RX, EU:T:2017:874), in which the Court ruled on the application for compensation made by the father and children of the deceased official. In their observations, the applicants considered that although existing judgments had resulted in compensation for certain damages, other damages still had to be assessed in the context of the present action, that is to say, the non-material damage suffered by the mother, brother and sister of the deceased official. The Commission objected that, with regard to the non-material damage alleged by the mother of the deceased official, the claim for compensation was inadmissible because it was late. As regards the non-material damage alleged by Alessandro Missir’s brother and sister, the Commission responded that, in addition to lateness of their application, the applicants could not be regarded as persons covered by the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

In that respect, the Court ruled firstly on the standing of brothers and sisters of a deceased official in relation to an action for damages under Article 270 TFEU. The Court found that the crucial factor for such an action was that the applicant must be a person ‘to whom [the] Staff Regulations apply’ (Article 91(1) of the Staff Regulations). However, Article 73 of the Staff Regulations provides, in the event of the death of the insured official, payment of guaranteed benefits to his or her spouse and children if he or she has any and, where there are no such persons, to other descendants of the official and, where there are no such persons, to relatives of the official in the ascending line and, where there are no such persons, to the institution. Since that article is silent on collateral relatives, the Commission argued that they were not entitled to compensation for the damage suffered. It added that, although collateral relatives were referred to in Articles 40, 42b and 55a of the Staff Regulations, this was irrelevant in the present case, since those articles would not be applicable in the case of an official who died following failure of the institution to exercise its duty of protection. The Court noted that the criterion of being a person ‘to whom [the] Staff Regulations apply’ cannot be regarded as fulfilled on the sole ground that the applicant is referred to in any context by the Staff Regulations. It must be a context that reflects a relevant connection between such a person and the contested act, or that reflects such a connection between that person and the official, the harm to whose interests allegedly causes damage to that person. The Court found that this was the case not only for the relatives in the ascending line, descendants and spouse of the official, but also for his or her siblings. The ‘Staff Regulations’ included those persons, either in Article 73 or Articles 40, 42b and 55a, because the legislature had intended to take note, by means of specific statutory provisions, of their close relationship with an official. Accordingly, siblings must be regarded as persons ‘to whom [the] Staff Regulations apply’ in order to determine the legal procedure to be followed when they sought compensation for the non-material damage suffered as a result of the death of their brother or sister who was an official, for which the institution is, in their view, responsible.

Secondly, the Court ruled on the Commission’s submission that the compensation claims were made late and not within a reasonable time, and on the applicants’ objection that the Commission itself was late in raising this plea of inadmissibility. The Court noted that the Court of Justice’s case-law, under which compliance with the limitation period provided for in Article 46(1) of the Statute of the Court of Justice of the European Union is not examined as a matter of course, also applied, mutatis mutandis, to the limitation period consisting of the reasonable time in which a claim for compensation based on the Staff Regulations had to be made. Consequently, the Commission’s plea of inadmissibility was not a matter of public policy that the Court should have examined as a matter of course. As a result, the Court considered the applicants’ objection that the plea of inadmissibility was late, and rejected it as unfounded. The Court then considered the submission that the application itself was inadmissible because it was made late, which it also rejected, stating that although the limitation period of 5 years laid down for actions in non-contractual liability by Article 46 of the Statute of the Court of Justice of the European Union did not apply in disputes between the European Union and its servants, account must also, however, according to settled case-law, be taken of the point of reference provided by that period in order to assess whether a claim has been made within a reasonable period of time.

Thirdly, regarding the merits of the case, in accordance with the principles applied in the judgment in Missir Mamachi di Lusignano and Others v Commission (T‑401/11 P RENV RX), the Court granted the compensation claim for non-material damage made by the deceased official’s mother. As regards the compensation claim made by the deceased official’s brother and sister and the conditions for awarding that compensation — namely the fault, causal link and non-material damage — the Court noted that the Commission’s liability for Alessandro Missir’s murder, established in a judgment that has become final, and the principle of the Commission’s joint and several liability for the harm resulting from that murder were fully applicable to the present case. As regards the non-material damage suffered by the deceased official’s brother and sister, the Court noted that Article 73 of the Staff Regulations, as interpreted by the case-law, did not preclude the brothers and sisters of an official who has died through the fault of the European Union from obtaining, as appropriate, compensation for the damage suffered by them as a result of that death. While that issue is not addressed by EU law, the Court noted that a common general principle derives from the laws of the Member States under which, in circumstances similar to those of the present case, national courts recognise a right for the siblings of a deceased worker to claim, as appropriate, compensation for non-material damage suffered by them as a result of the death.