Raphael De Dapper and Julieta Marques De Almeida (épouse De Rapper) v Grand Duchy of Luxembourg (1/82)

Ill —Submissions of the parties

The applicants have already stated their views on admissibility in their application. They refer to the judgment of the Court of 16 December 1960 in Case 6/60 Humblet v Belgian State [1960] ECR 559, in which the Court held that an official of the ECSC who considered that he had suffered because a Member State had breached the privileges and immunities conferred on that official might bring an action against that State before the Court pursuant to Article 16 of the Protocol on the Privileges and Immunities of the ECSC (hereinafter referred to as “the ECSC Protocol”); the fact that the applicant had not exhausted the legal remedies open to him before the courts in his country did not render an action based on that provision inadmissible.Article 16 of the ECSC Protocol, which provided that any dispute concerning the interpretation or application of the Protocol should be submitted to the Court, was not retained when the Merger Treaty of 8 April 1965 was concluded but the same jurisdiction is provided for in Article 30 of that Treaty which states as follows:“The provisions of the Treaties establishing the European Economic Community and the European Atomic Energy Community relating to the jurisdiction of the Court of Justice and to the exercise of that jurisdiction shall be applicable to the provisions of this Treaty and of the Protocol annexed thereto”.The Luxembourg Government maintains that Article 16 of the ECSC Protocol was repealed by the second paragraph of Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities of 8 April 1965, known as the Merger Treaty, which repeals the Protocols on the Privileges and Immunities annexed to the Treaties of the three Communities. The new Protocol on the Privileges and Immunities (hereinafter referred to as “the sole Protocol”) contains no provision attributing jurisdiction to the Court.Article 30 of the Merger Treaty contains no provision attributing jurisdiction to the Court for a direct action by an individual against a Member State.In their reply to the objection of inadmissibility, the applicants make a number of criticisms relating to the unsatisfactory application of Article 177 on the part of the administrative courts in Luxembourg.As regards the provisions attributing jurisdiction to the Court, the applicants submit that the ECSC Treaty confers jurisdiction on the Court for “the interpretation and application of this Treaty, and of rules laid down for the implementation thereof”. Since the ECSC Protocol was neither a treaty nor a rule for implementation, it was necessary to include a provision in the Protocol itself conferring jurisdiction on the Court. The same result was achieved in the Merger Treaty by inclusion of the sole Protocol amongst the matters for which the Court has jurisdiction. The Merger Treaty confers direct jurisdiction on the Court to adjudicate on all questions regarding the “provisions of this Treaty and of the Protocol annexed thereto”, which at least preserves the jurisdiction attributed by the ECSC Treaty.The possibility of a direct application to the Court is also provided for in the sole Protocol for those seeking the Court's authorization for a measure of constraint in respect of property of the Communities.If the government of a Member State were to refuse a member of the European Parliament access to its territory to attend a meeting of the Parliament, the member of Parliament would have to be allowed to make a direct application to the Court. Officials must have the same right. The Protocols limit the sovereignty of the Member States. In order to ensure their effectiveness, a body separate from the authorities of the Member State concerned must adjudicate with regard to privileges and immunities. In its judgment in the Humblet case the Court was moved by concern for respect of the rights conferred on officials as individuals.In this case, Mr and Mrs D. could not protect their legitimate interests otherwise than by a direct application to the Court. Mr D. had no loots standi, since he was not yet married when the decisions prohibiting residence were adopted and Mrs D. (then Miss M.) was not able to claim the privileges conferred by the Protocol.In its judgment of 25 February 1969 in Case 23/68 Klomp v Inspektie der Belastingen [1969] ECR 43, the Court attached importance to the principle, which is common to the Member States, of continuity of legal institutions. Although the matter had been referred to the Court of Justice by the court of a Member State pursuant to Article 16 of the ECSC Protocol the Court gave judgment, but it did so on the basis of Articles 177 of the EEC Treaty and 150 of the EAEC Treaty. The purpose of those provisions is identical, namely to ensure uniform interpretation and application of the provisions of the Protocol in the Member States.The Court should also take into account the principle tit res magis valent quam pereat. Since the applicants could not refer a question to the Court for a preliminary ruling only one course was open to them, that of a direct action for an interpretation.If the Court has any doubts as to its jurisdiction it should consider the procedural issue together with the substance of the case so as to assure itself of the fact that the applicants had no other way of ensuring the right of unrestricted immigration for Mrs D., the wife of an official, than to bring the present action.