JUDGMENT OF 11. 7. 1968 — CASE 5/68 SAYAG v LEDUC

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

THE COURT composed of: R. Lecourt, President, A. M. Donner, President of Chamber, A. Trabucchi, J. Mertens de Wilmars and P. Pescatore (Rapporteur), Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted to the Court

Grounds of judgment

Costs

I —. Facts and procedure

II —. Observations submitted to the Court

(1). The appellant in the main action Mr Sayag points out that it follows from Articles 11 and 17 of the Protocol on the Privileges and Immunities of the EAEC that immunity from legal proceedings is justified essentially by the necessity of not hampering servants of the Community in accomplishing their tasks; it is intended to enable them to perform their duties under the most favourable conditions and ceases when the official may, without prejudicing his tasks, be considered as a private individual.

(2). The respondents in the main action maintain that the immunity in favour of officials of Euratom provided for in Article 11(a) of the Protocol is established essentially in the interest of the duty, that is to say, in the interest of the organization itself, and that each institution of the Community is required to waive the immunity accorded to an official or other servant wherever it considers that the waiver of such immunity is not contrary to the interests of the Community.

(3). The Government of the Kingdom of Belgium points out that the Belgian position with regard to immunity is based upon the principle that any exception must be interpreted restrictively; as immunity from legal proceedings constitutes a derogation from ordinary law, it must be given a strict interpretation.

(4). The Commission of the European Communities, after retracing the evolution of the principles governing the grant of privileges and immunities to international officials, maintains that at the present time exemptions from national law granted to international officials, proceed from a purely functional conception of privileges and immunities. Such exemptions are granted exclusively in the interests of the organization. Immunity of international officials from legal proceedings is distinguished from that of diplomatic agents by the fact that it constitutes neither an absolute privilege covering private activities nor a personal privilege.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the appellant Sayag, the respondents in the main action, the Government of the Kingdom of Belgium and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Atomic Energy Community, especially Articles 150, 188 and 191; Having regard to the Protocol on the Privileges and Immunities annexed to the Treaty establishing the European Atomic Energy Community, especially Articles 11, 15 and 17; Having regard to the Treaty establishing a Single Council and a Single Commission of the European Communities, especially Article 30; Having regard to the Protocol on the Privileges and Immunities of the European Communities annexed to the Treaty establishing a Single Council and a Single Commission of the European Communities, especially Articles 12, 16 and 18; Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community, especially Article 21; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, 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 Priveleges 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;