Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

This is the second time that the road accident caused by Mr Sayag, an engineer at Euratom, has led you, on reference from the Belgian Cour de Cassation, to interpret certain provisions of Community law. When criminal proceedings were brought against him in the Belgian courts, Mr Sayag claimed the immunity from legal proceedings open, by virtue of Article 11(a) of the Protocol on the Privileges and Immunities of the EAEC of 17 April 1957, to the servants of that Community in respect of acts performed by them in their official capacity. He claimed that he was acting in this capacity when, in possession of a travel order which provided for the use of his private car, he was driving from Brussels to Mol accompanied by two servants of private firms whom he was to take to visit the installations of the Joint Nuclear Research Centre.

When questioned by the Belgian Cour de Cassation on the scope of this provision of the Protocol, you replied in your judgment of 11 July 1968(Sayag v Leduc, Case 5/68, Rec. 1968, p. 575) that the immunity applied 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. You added that, more especially, driving a motor car 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.

It was clear that the case did not simply raise a question of immunity from criminal proceedings, but also one of third party liability between the person responsible for the accident and the victim, as well as their respective insurers.

For this reason you added to your reply to the question submitted the observation that the designation of an act with regard to the immunity from legal proceedings, and any decision taken with regard to waiver of the immunity, did 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.

Your judgment led the Cour de Cassation to dismiss the appeal against the criminal proceedings. However, it then had to consider two applications against the judgment given in the civil actions against both the person responsible for the accident and his insurer, the Zurich Insurance Company. It was maintained on the basis of the EAEC Treaty that the Community was alone liable to third parties for damage caused by its servants in the performance in their duties, and that your Court alone had jurisdiction in disputes relating to the compensation for such damage. Alternatively, if the servant were liable for damage caused to third parties in such circumstances, this liability must be assessed, like that of the Community, in accordance with the general principles common to the laws of the Member States and also fell within your jurisdiction.

It is in these circumstances that, by judgment of 17 February 1969, the Cour de Cassation requests you to interpret the phrase in the performance of their duties used in Article 188 of the EAEC Treaty. In addition, where an act giving rise to a claim for damages had been committed in the performance of his duties by a servant who was not acting in his official capacity, it asks you whether such an act renders the official concerned personally liable or whether his liability is absorbed by that of the Community. Finally, it asks you, if it is necessary, to specify the law applicable to an action for liability against the servant and his insurer and the court having jurisdiction to entertain such action.

In its two aspects, this last question is contingent and secondary in nature. I consider, however, that the Cour de Cassation was right to submit it to you at this stage, not only because it arises logically out of the first questions, but also because the consideration of difficulties to which it gives rise may to some extent indicate the answer to be given to the main questions. We are in an area in which you will necessarily be creating new case-law and although it is neither possible nor desirable to propound, in relation to this particular case, a general theory concerning the extra-contractual liability of the Communities, the future developments which may be implied by the solutions which you will find today must be borne in mind.

I

The first question refers to the only two Articles of the EAEC Treaty which deal with the extra-contractual liability of the Community and for which exactly corresponding Articles are to be found in the EEC Treaty.

1. First, the second paragraph of Article 188 provides that, in the case of noncontractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties. Secondly, Article 151 gives you jurisdiction in disputes relating to the compensation for damage provided for in the second paragraph of Article 188.

2. Of what do these principles consist and to what extent are they able to guide you?

3. Having drawn this general picture I must now return to Article 188. In what cases must an official of the Community be regarded as acting in the performance of his duties? More precisely, since this is what gave rise to the reference, what is the position in the case of an accident caused by an official who was using his private car for official journeys?

II

I now come to the second question submitted by the Cour de Cassation. Where an act giving rise to a claim for damages was committed in the performance of his duties by a servant who was not acting in his official capacity and the Community was thus rendered liable for it, did such act also make the servant personally liable or was his liability absorbed by that of the Community?

We know that the laws of the Member States resolve this question in different ways, as only certain of them accept that an action may be brought against the servant in respect of his personal action at the same time as it is brought against the public authority. For reasons concerning both the texts and legal and practical expediency, I suggest that in this instance you leave aside the principle of concurrent liability.

III

There remains the third question, which concerns the legal system applicable to the action against the servant and his insurer, and the court which is competent to deal with it.

In the light of my earlier remarks, this problem only arises if the act was not committed in the performance of duties and as this question is subsidiary it is perhaps unnecessary to give any reply to it. It is, at all events, sufficient to point out that in such a case the national court may alone have jurisdiction and that it will apply the national legal principles.

However, in the observations submitted to you on behalf of Mr Sayag it was maintained that the general principles common to the laws of the Member States were to be applied whatever the court which deals with the action for damages. Taking into account certain peculiarities of Belgian case-law, which concern, in particular, the calculation of the loss suffered through permanent incapacity and the compensation for non-material damage and which do not conform with the law of the other Member States, I think that, in spite of the generality of the terms of the judgment referring the matter to you, you should specify the principles applicable to these various points in order to avoid the parties being again obliged to seek the interpretation of the Treaty.

This suggestion no doubt refers to a case in which concurrent liability would be accepted; I must, however, confess that I do not clearly understand the arguments developed on this point. The second paragraph of Article 188 only refers to the general principles common to the laws of the Member States in relation to the liability incurred by the Community as a result of the damage caused by its servants in the performance of their duties. You would thus not be required to give a decision on the possible scope of such general principles regarding the exact extent and manner in which compensation is to be made, and the damage which may have to be taken into account, unless you were dealing with an action brought against the Community and had to give a decision on the substance of the claims of the parties. It is a problem which concerns the application of the Treaty and not its interpretation on a reference for a preliminary ruling. For this reason I think that it is unnecessary to consider the question before you in greater detail.

I have thus come to the end of my consideration of the questions submitted by the Belgian Cour de Cassation. The replies which I suggest you make may, certainly, give rise to criticisms or reservations, but I believe that they have at least the advantage of simplicity. As they set aside in all cases the concept of concurrent liability, they avoid the risk of contradictory decisions being made. Although, on the other hand, a strict interpretation of the concept the performance of duties leads, in the majority of cases, to the national courts being required to deal according to their own laws with the consequences of accidents caused by officials driving their private cars, this solution does not appear to present any practical disadvantages, in fact, quite the reverse. That two accidents have, as a common feature, the fact that they were caused, at Ispra and at Mol, by two servants of Euratom, does not render it necessary for both to be dealt with according to Community law and the general principles common to the laws of the Member States. The victim of the accident expects to be compensated in accordance with the national law.

Finally, I consider that the replies to the questions submitted by the Cour de Cassation might be given on the basis of the following ideas:

1 Translated from the French.

2 La responsabilité extracontractuelle des Communautés Européennes et de leurs agents, Cahiers de droit européen, 1969, p. 37 et seq.

3 The non-contracual liability of the Community in the ECSC and in the EEC, Common Market Law Review, 1965-1966, p. 32.

4 Third congress of the Federation internationale pour le droit europeen. Bulletin des juristes européens No 25-26.