61979O0114

ACTION FOR DAMAGES - ACTION BY MEMBERS OF AN OFFICIAL ' S FAMILY FOR COMPENSATION FOR THE DAMAGE SUFFERED ARISING OUT OF UNLAWFUL CONDITIONS OF EMPLOYMENT OF THE OFFICIAL - INADMISSIBILITY

( EEC TREATY , ART . 178 ; RULES OF PROCEDURE , ART . 92 ( 1 ))

IN JOINED CASES 114 , 115 , 116 AND 117/79

SUZANNE FOURNIER , NEE MAZIERE , AUDE FOURNIER , FRANCOIS FOURNIER AND CLOTILDE FOURNIER , REPRESENTED BY EDMOND LEBRUN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , AVOCAT-AVOUE , 34B RUE PHILIPPE II ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DENISE SORASIO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

UNDER ARTICLE 175 OF THE EEC TREATY A NATURAL PERSON MAY COMPLAIN TO THE COURT OF JUSTICE THAT AN INSTITUTION OF THE COMMUNITY HAS FAILED TO ADDRESS TO HIM ANY ACT OTHER THAN A RECOMMENDATION OR AN OPINION . IN THESE CASES THE APPLICANTS HAVE NOT STATED WHAT ACT , WITHIN THE MEANING OF THAT ARTICLE , THE COMMISSION HAS FAILED TO ADDRESS TO THEM .

ACCORDING TO ARTICLE 178 OF THE TREATY THE COURT OF JUSTICE HAS JURISDICTION IN DISPUTES RELATING TO COMPENSATION FOR DAMAGE PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 215 CONCERNING THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY . THESE ACTIONS , HOWEVER , ARE FOR COMPENSATION FOR DAMAGE ALLEGED TO HAVE BEEN CAUSED BY THE CONDUCT OF AN INSTITUTION AFFECTING THE PROGRESS OF THE CAREER OF ONE OF ITS OFFICIALS OR SERVANTS , EVEN THOUGH THE LATTER HAS BEEN IN A POSITION TO AVAIL HIMSELF OF THE OPPORTUNITIES AFFORDED BY THE TREATY TO CHALLENGE ANY DECISION OF THE INSTITUTION CONCERNED WHICH WAS INTENDED TO , OR IN FACT DID , PLACE OR KEEP HIM IN UNLAWFUL CONDITIONS OF EMPLOYMENT AND , IF NEED BE , FOR THIS PURPOSE TO BRING AN ACTION BEFORE THE COURT . IT WOULD BE CONTRARY TO THE SYSTEM OF LEGAL REMEDIES ADOPTED BY COMMUNITY LAW FOR RECTIFYING IRREGULARITIES IN CONDITIONS OF EMPLOYMENT TO CONCEDE THAT BY A MISUSE OF PROCEDURE AN ACTION FOR DAMAGES BASED ON THE SAME FACTS MAY BE BROUGHT BY THE MEMBERS OF THE FAMILY OF AN OFFICIAL OR OTHER SERVANT ACTING ON THEIR OWN BEHALF , EVEN IF THEY ALLEGE THAT THEY HAVE PERSONALLY SUFFERED DAMAGE IN THIS CONNEXION . THESE ACTIONS DO NOT THEREFORE FALL WITHIN THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .

IN THESE CIRCUMSTANCES THE COURT PLAINLY HAS NO JURISDICTION TO TAKE COGNIZANCE OF THE APPLICATIONS . CONSEQUENTLY IT IS NECESSARY FOR THE COURT TO APPLY ARTICLE 92 ( 1 ) OF THE RULES OF PROCEDURE AND TO DECLARE OF ITS OWN MOTION WITHOUT OPENING THE ORAL PROCEDURE THAT THE ACTIONS ARE INADMISSIBLE .

UNDER ARTICLES 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANTS HAVE BEEN UNSUCCESSFUL THEY MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY ORDERS AS FOLLOWS :

1 . THE ACTIONS ARE DISMISSED AS INADMISSIBLE .

2 . THE APPLICANTS SHALL PAY THE COSTS .