61968J0005

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1 . OFFICIAL OF THE EAEC - PRIVILEGES AND IMMUNITIES - IMMUNITY FROM LEGAL PROCEEDINGS - OBJECT

( PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES, ARTICLE 12(A ))

2 . OFFICIAL OF THE EAEC - PRIVILEGES AND IMMUNITIES - IMMUNITY FROM LEGAL PROCEEDINGS - EXTENT - DRIVING OF A MOTOR VEHICLE

( PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES, ARTICLE 12(A ))

1 . THE IMMUNITY FROM LEGAL PROCEEDINGS REFERRED TO IN ARTICLE 12(A ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES ( ARTICLE 11(A ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EAEC ) IS INTENDED TO ENSURE THAT THE OFFICIAL ACTIVITY OF THE COMMUNITY AND OF ITS SERVANTS IS SHIELDED FROM EXAMINATION IN THE LIGHT OF ANY CRITERIA BASED ON THE DOMESTIC LAW OF MEMBER STATES SO THAT THE COMMUNITY MAY ACCOMPLISH ITS TASK IN COMPLETE INDEPENDENCE .

2 . ( A ) THE IMMUNITY FROM LEGAL PROCEEDINGS ONLY COVERS ACTS WHICH, BY THEIR NATURE, REPRESENT A PARTICIPATION OF THE PERSON ENTITLED TO THE IMMUNITY IN THE PERFORMANCE OF THE TASKS OF THE INSTITUTION TO WHICH HE BELONGS; IN THIS RESPECT THERE IS NO NECESSITY TO DISTINGUISH BETWEEN THE ACTUAL EXERCISE OF NORMAL DUTIES OR THOSE PRESCRIBED UNDER THE STAFF REGULATIONS AND AN ACT PERFORMED ON THE OCCASION OF THE EXERCISE OF THOSE DUTIES IF THE POSITION IS THAT THE ACT IN QUESTION SERVES DIRECTLY FOR THE ACCOMPLISHMENT OF A COMMUNITY TASK .

( B ) DRIVING A MOTOR VEHICLE CANNOT BE COVERED BY IMMUNITY FROM LEGAL PROCEEDINGS SAVE IN THE EXCEPTIONAL CASES IN WHICH THIS ACTIVITY CANNOT BE CARRIED OUT OTHERWISE THAN UNDER THE AUTHORITY OF THE COMMUNITY AND BY ITS OWN SERVANTS .

IN CASE 5/68

REFERENCE TO THE COURT UNDER ARTICLE 150 OF THE TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY BY THE BELGIAN COUR DE CASSATION ( SECOND CHAMBER ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

CLAUDE MOIESE SAYAG AND S.A . ZURICH

AND

JEAN-PIERRE LEDUC, DENISE LEDUC ( NEE THONNON, THE WIFE OF JEAN-PIERRE LEDUC ) AND S.A . LA CONCORDE

ON THE INTERPRETATION OF ARTICLE 11(A ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES ANNEXED TO THE TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY ( ARTICLE 12(A ) OF THE PROTOCOL ANNEXED TO THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES ),

P . 400

BY JUDGMENT OF 12 FEBRUARY 1968, LODGED AT THE COURT ON 23 FEBRUARY 1968, THE BELGIAN COUR DE CASSATION BY VIRTUE OF ARTICLE 150 OF THE TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY, ASKED THE COURT FOR A PRELIMINARY RULING REGARDING THE INTERPRETATION OF ARTICLE 11(A ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES ANNEXED TO THE TREATY ESTABLISHING THE EAEC - NOW ARTICLE 12(A ) OF THE PROTOCOL ANNEXED TO THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES .

ACCORDING TO THIS JUDGMENT THE COURT IS ASKED TO RULE ' WHETHER THE IMMUNITY FROM LEGAL PROCEEDINGS PROVIDED FOR BY THIS PROVISION IS APPLICABLE TO OFFICIALS AND SERVANTS OF THE COMMUNITY WHEN THE ACTS GIVING RISE TO LEGAL PROCEEDINGS WERE CARRIED OUT BY THEM DURING THE PERFORMANCE OF THEIR DUTIES AND HAVE SOME RELATIONSHIP WITH THEIR VOCATIONAL ACTIVITIES OR WHETHER THE IMMUNITY ONLY COVERS ACTS CONSTITUTING THE ACTUAL PERFORMANCE OF THEIR NORMAL DUTIES OR THOSE PRESCRIBED UNDER THE STAFF REGULATIONS '.

IT APPEARS FROM THE FILE SUBMITTED TO THE COURT THAT THE ACTION BEFORE THE COURT MAKING THE REFERENCE CONCERNS A TRAFFIC ACCIDENT CAUSED BY AN OFFICIAL OF THE COMMUNITY WHEN, IN POSSESSION OF A TRAVEL ORDER, HE WAS DRIVING HIS PRIVATE MOTOR CAR DURING THE PERFORMANCE OF HIS DUTIES .

THE ACTION RAISES THE QUESTION WHETHER, IN THE PRESENT CASE, THE ACT CONCERNED WAS CARRIED OUT IN AN OFFICIAL CAPACITY WITHIN THE MEANING OF THE PROVISIONS REFERRED TO .

ARTICLE 191 OF THE TREATY ESTABLISHING THE EAEC PROVIDES THAT :

' THE COMMUNITY SHALL ENJOY IN THE TERRITORIES OF THE MEMBER STATES SUCH PRIVILEGES AND IMMUNITIES AS ARE NECESSARY FOR THE PERFORMANCE OF THEIR TASKS UNDER THE CONDITIONS LAID DOWN IN A SEPARATE PROTOCOL '.

EFFECT WAS GIVEN TO THIS PROVISION BY THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES ANNEXED TO THE TREATY ESTABLISHING THE EAEC, REPLACED AS FROM 1 JULY 1967 BY THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES ANNEXED TO THE TREATY OF 8 APRIL 1965 ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES .

P . 401

IN THE TERMS OF ARTICLE 30 OF THE LATTER TREATY, THE PROVISIONS OF THE TREATY ESTABLISHING THE EAEC RELATING TO THE JURISDICTION OF THE COURT OF JUSTICE AND THE EXERCISE OF THAT JURISDICTION ARE TO BE APPLICABLE TO THE PROVISIONS OF THE TREATY OF 8 APRIL 1965 AND OF THE PROTOCOL ANNEXED THERETO .

THE NEW PROTOCOL DOES NOT DIFFER IN SUBSTANCE, AS FAR AS CONCERNS THE QUESTION SUBMITTED TO THE COURT, FROM THE PROVISIONS OF THE FORMER PROTOCOL .

ARTICLE 12(A ) OF THE PROTOCOL ( ARTICLE 11(A ) OF THE FORMER PROTOCOL ) PROVIDES THAT OFFICIALS AND OTHER SERVANTS OF THE COMMUNITIES SHALL ' BE IMMUNE FROM LEGAL PROCEEDINGS IN RESPECT OF ACTS PERFORMED BY THEM IN THEIR OFFICIAL CAPACITY, INCLUDING THEIR WORDS SPOKEN OR WRITTEN '.

THE FIRST PARAGRAPH OF ARTICLE 16 OF THE PROTOCOL ( THE FIRST PARAGRAPH OF ARTICLE 15 OF THE FORMER PROTOCOL ) PROVIDES THAT THE COUNCIL SHALL, ACTING ON A PROPOSAL FROM THE COMMISSION AND AFTER CONSULTING THE OTHER INSTITUTIONS CONCERNED, DETERMINE THE CATEGORIES OF OFFICIALS AND OTHER SERVANTS OF THE COMMISSION WHO ARE TO BE ENTITLED IN PARTICULAR TO IMMUNITY FROM LEGAL PROCEEDINGS AND THE DETERMINATION OF THESE CATEGORIES WAS EFFECTED BY REGULATION NO 8/63 EAEC AND NO 127/63 OF THE COUNCILS OF 3 DECEMBER 1963 .

ACCORDING TO THE TERMS OF ARTICLE 18 OF THE PROTOCOL ( ARTICLE 17 OF THE FORMER PROTOCOL ) PRIVILEGES, IMMUNITIES AND FACILITIES ARE TO BE ACCORDED TO OFFICIALS AND OTHER SERVANTS OF THE COMMUNITIES SOLELY IN THE INTERESTS OF THE COMMUNITIES .

IN THIS RESPECT THAT ARTICLE PROVIDES, IN THE SECOND PARAGRAPH, THAT THE INSTITUTIONS ARE TO BE REQUIRED TO WAIVE THE IMMUNITY ACCORDED TO AN OFFICIAL OR OTHER SERVANT UNDER ARTICLE 12(A ) OF THE PROTOCOL ( ARTICLE 11(A ) OF THE FORMER PROTOCOL ) WHEREVER THEY CONSIDER THAT THE WAIVER OF SUCH IMMUNITY IS NOT CONTRARY TO THE INTERESTS OF THE COMMUNITIES .

IT FOLLOWS FROM ALL THESE PROVISIONS READ TOGETHER THAT THE APPLICATION OF IMMUNITY FROM LEGAL PROCEEDINGS DEPENDS NOT ONLY ON THE CAPACITY OF THE PERSON CLAIMING IT BUT ALSO ON THE NATURE OF THE ACTIVITY BY VIRTUE OF WHICH IMMUNITY IS CLAIMED .

ACCORDING TO ARTICLE 12(A ) OF THE PROTOCOL ( ARTICLE 11(A ) OF THE FORMER PROTOCOL ) AN ACT PERFORMED BY AN OFFICIAL OR OTHER SERVANT DOES NOT GIVE RISE TO IMMUNITY FROM LEGAL PROCEEDINGS UNLESS IT WAS PERFORMED IN AN OFFICIAL CAPACITY, THAT IS TO SAY, WITHIN THE FRAMEWORK OF THE TASK ENTRUSTED TO THE COMMUNITY .

P . 402

IN EXCLUDING THE JURISDICTION OF THE NATIONAL COURTS OF MEMBER STATES, SUBJECT TO THE APPLICATION OF THE SECOND PARAGRAPH OF ARTICLE 18 OF THE PROTOCOL ( THE SECOND PARAGRAPH OF ARTICLE 17 OF THE FORMER PROTOCOL ) THE PROVISIONS REFERRED TO ABOVE ARE INTENDED TO ENSURE THAT THE OFFICIAL ACTIVITY OF THE COMMUNITY AND OF ITS SERVANTS IS SHIELDED FROM ANY EXAMINATION IN THE LIGHT OF ANY CRITERIA BASED ON THE DOMESTIC LAW OF MEMBER STATES, SO THAT SUCH ACTIVITY MAY BE CARRIED OUT IN FULL FREEDOM IN ACCORDANCE WITH THE TASK ENTRUSTED TO THE COMMUNITY .

THE IMMUNITY FROM LEGAL PROCEEDINGS CONFERRED ON OFFICIALS AND OTHER AGENTS OF THE COMMUNITY THUS ONLY COVERS ACTS WHICH, BY THEIR NATURE, REPRESENT A PARTICIPATION OF THE PERSON ENTITLED TO THE IMMUNITY IN THE PERFORMANCE OF THE TASKS OF THE INSTITUTION TO WHICH HE BELONGS .

ON THE OTHER HAND IT MATTERS LITTLE WHETHER IT IS A QUESTION OF THE ACTUAL EXERCISE OF ' NORMAL DUTIES OR THOSE PRESCRIBED UNDER THE STAFF REGULATIONS ', ONLY OF AN ACT PERFORMED ON THE OCCASION OF THE EXERCISE OF THOSE DUTIES IF THE POSITION IS THAT THE ACT IN QUESTION SERVES DIRECTLY FOR THE ACCOMPLISHMENT OF A COMMUNITY TASK IN THE SENSE DEFINED ABOVE .

HENCE, DRIVING A MOTOR VEHICLE IS NOT IN THE NATURE OF AN ACT PERFORMED IN AN OFFICIAL CAPACITY SAVE IN THE EXCEPTIONAL CASES IN WHICH THIS ACTIVITY CANNOT BE CARRIED OUT OTHERWISE THAN UNDER THE AUTHORITY OF THE COMMUNITY AND BY ITS OWN SERVANTS .

FINALLY IT IS APPROPRIATE TO EMPHASIZE THAT THE DESIGNATION OF AN ACT WITH REGARD TO IMMUNITY FROM LEGAL PROCEEDINGS, AND ANY DECISION TAKEN BY THE COMPETENT INSTITUTION WITH REGARD TO WAIVER OF THE IMMUNITY, DO NOT PREJUDGE ANY LIABILITY ON THE PART OF THE COMMUNITY, THIS BEING GOVERNED BY SPECIAL RULES DESIGNED FOR A PURPOSE SEPARATE FROM THAT OF THE PROVISIONS OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES .

THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF BELGIUM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE BELGIAN COUR DE CASSATION, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BELGIAN COUR DE CASSATION BY A JUDGMENT OF THAT COURT OF 12 FEBRUARY 1968, HEREBY RULES :

1 . THE IMMUNITY FROM LEGAL PROCEEDINGS LAID DOWN BY ARTICLE 11(A ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EAEC ( ARTICLE 12(A ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES ) APPLIES EXCLUSIVELY TO ACTS WHICH, BY THEIR NATURE, REPRESENT A PARTICIPATION OF THE PERSON CLAIMING IMMUNITY IN THE PERFORMANCE OF THE TASKS OF THE INSTITUTION TO WHICH HE BELONGS;

2 . MORE ESPECIALLY, DRIVING A MOTOR VEHICLE IS NOT IN THE NATURE OF AN ACT PERFORMED IN AN OFFICIAL CAPACITY SAVE IN THE EXCEPTIONAL CASES IN WHICH THIS ACTIVITY COULD NOT BE ACCOMPLISHED OTHERWISE THAN UNDER THE AUTHORITY OF THE COMMUNITY AND BY ITS OWN SERVANTS;

AND DECLARES :

IT IS FOR THE BELGIAN COUR DE CASSATION TO MAKE A DECISION ON THE COSTS OF THE PRESENT PROCEEDINGS .