The Review Procedure’s Swan Song

Last week the Court of Justice rendered its judgment in the case of Missir Mamachi di Lusignano vs. Commission (C-408/14). The case was raised in the context of a review procedure, a tool used ex officio by the Court of Justice, whose purpose is to guarantee the “unity or consistency” of EU Law, as a result of having granted to the General Court an appellate jurisdiction in staff cases. The review procedure is, as is well known, the result of the creation of the Civil Service Tribunal, which will soon be put to rest.

As the reform of the General Court carries on its course, it is very probable that the judgment delivered in the case of Missir Mamachi di Lusignano vs. Commission will be the last decision of the Court in a review procedure. Seen in this light, the case appears to be the review procedure’s swan song, but with a strange irony attached.

In Missir Mamachi di Lusignano vs. Commission, the Court reviewed the General Court’s decision to hear in one single procedure all the remedies used by the grandparent and legal guardian of the orphans of a EU civil servant, brutally murdered in Morocco while in service. The grandparent and legal guardian of the children challenged the Commission’s decision granting payments under article 73 of the Staff Regulations. The plaintiff claimed further reparations on different grounds and for several victims: the civil servant’s, his children’s and his own, as father of the victim. Therefore, the question rose as to the remedies available and the appropriate jurisdiction/s to hear the case/s. The damages involved in the specific case of Mr. Missir Mamachi di Lusignano would be subject to article 270 TFEU, but the damages of the other victims, the grandfather and the children, would come under article 268 TFEU. The Civil Service Tribunal ruled that it was competent to hear all the claims of all the victims.

In a rather audacious decision, the General Court came to the opposite conclusion. It first stated that the plaintiff would have had to use two different remedies depending on the victim concerned (270 or 268 TFEU). However, because it made no sense for the plaintiff to bring two actions before two different courts, the General Court, declaring itself the “general law court”, stated its jurisdiction to hear all the claims, annulled the Civil Service Tribunal’s judgment and decided on the substance.

In the judgment rendered on 10 September 2015, the Court of Justice could not disagree more with the General Court: it refused that damages actions, resulting in their origin in the relationship between a staff member and an Institution, must come under different jurisdictions depending on the victim concerned. It then stated that the solution reached by the General Court breached the “unity” of EU Law, it annulled the judgment and sent it back to the General Court.

In an odd twist of events, the last review procedure decision of the Court of Justice has resulted in the recognition of the full competence of the Civil Service Tribunal to hear a case like the one raised in Missir Mamachi di Lusignano. However, this specialized jurisdiction will soon become part of EU history, so, as a result of it, the decision of the General Court will eventually be vindicated: damages actions in staff cases in which other victims are involved will be heard, again, entirely by the General Court.

The review procedure has not been so difficult to implement, at least not as difficult as the Court of Justice claimed in its last proposal on the General Court’s reform. In fact, it has worked quite well. It might have been a nuisance for the First Advocate General, for the other Advocates General and for the so-called Review Procedure Chamber. But, all in all, it can hardly be claimed that it has been a source of controversy. Nor has the General Court given the Court of Justice too many reasons to review too many of its judgments in staff cases. The review procedure might not be perfect, but it has certainly not been a failure.

But this will all soon be over. Articles 256.2 and 257 TFEU will become another dormant clause, a sleeping beauty (like article 262 on intellectual property, as several others), waiting for better days to come. And in the meantime, the sad case of Missir Mamachi di Lusignano vs. Commission will rest as the review’s procedure’s swan song.

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