4. Action for damages Flashcards
Purpose of the procedure
obligation to make good damages or compensate for damages
legal basis
NLEU: Art. 268 and 340(2) & (3) TFEU + Art. 41(3) Charter
NLMS: case-law (Francovich & Brasserie du pecheur) and national law
procedure of action related to contractual liability of the Union
First: check Art. 340(1), then 274 and then 272
- Art. 340(1): “the contractual liability of the Union shall be governed by the law applicable to the contract in question”
- -> the law applied is not EU law but the law applicable to the contract - Art. 274: “Save where jurisdiction is conferred to the CJEU disputes in which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States.”
- -> if there is a dispute and the jurisdiction is not expressly conferred to CJEU, the dispute goes to a national court. - However, there is an exception in Art. 272: “The CJEU shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract, concluded by on behalf of the Union, whether that contract be governed by public or private law”.
- -> an arbitration clause giving jurisdiction for any dispute relating to the contract to the European Court
- -> BUT REMEMBER Art. 340(1) refers to the applicable law of the contract! Therefore, if there is a contract governed by Belgian law and there is an arbitration clause giving jurisdiction to the GC of the EU, that is a case in which the European court is going to apply national law.
what is the meaning of autonomous action?
The action for damages in European law is autonomous - you can bring an action for damages even if you haven’t brought a prior action.
For instance, an action for annulment does not have to be obtained in order to bring an action for damages caused by this act
However, the action for damages will be considered as inadmissible if it is used improperly as an action for annulment.
issue of exhaustion fo remedies
In case of shared liability of the EU with a MS and if compensation can be obtained through an action brought before a national court (even if the EU is the only one at fault): necessary exhaustion of domestic remedies
The member states give an extensive contribution to the implementation of Union law.
That’s a sort of joint action: An act at the European level and thereafter acts at the national level.
So in a case you can have a shared liability of the Union and a member state.
Therefore, they have to compensate, each of them, for a part.
This part will be decided by the national judge, because in this case the Court has imposed a necessary exhaustion of domestic remedies before going to the European Court.
However, when the MS has only had a purely automatic mission in implementing EU acts, there is no shared liability. Nonetheless, there is a need to go first to the national judge if the compensation can be even partially be obtained from the action before a national court.
- e.g. levies for the EU
- e.g. subsidies
time limit for action for damages?
5 years after the damages (Art. 46 Statute)
definition of breach of EU law in non-contractual liability
Art. 340(2): “general principles common to the laws of the MS” now commonly:
- Sufficiently serious breach
- A damage
- A causal link between the breach and the damage
defining damage
- can be material or moral;
- doesn’t have to be materialised but has to be
certain; - it cannot be only probable or hypothetical;
- it shall be SPECIAL, which is to say that it shall be SERIOUS (very important) and may only affect a small number of persons;
is there a non-fault liability in EU law?
- In general, the GC has established that “if the principle of Union liability for unlawful acts, if this type of liability would be recognized in Union law, there would be a precondition for this type of liability, that would be the existence of an unusual or special damage”.
= a damage which is not proportional with the normal disadvantages or the risks of social/economic life.
–> it seems that the courts are reserving the notion of special damage to cases of no-fault liability - FIAMM: The ECJ held that the EC cannot be called upon to compensate damages resulting from a failure of its institutions to comply with WTO rulings - neither based on liability for unlawful conduct, nor based on liability for a lawful act.
- SVILUPPO: CONTRARY TO FIAMM, The CJEU said there is no need for the Court to adjudicate on the possibility of liability for a damage caused by a lawful act.
margin of appreciation and defining the sufficiently serious breach
Margin of appreciation affects the definition of sufficiently serious breach when establishing NLEU:
- Decided case-by-case analysis, depending on the complexity of the situation to be regulated by the institution, difficulty of appreciation of application of the rules.
- When the Union has a margin of appreciation, has to choose in terms of policy, the breach has to be very serious.
- That’s only when the Union has not little or no margin of appreciation at all that it will be sufficient to have just an illegal conduct
- IF there is a margin of appreciation, the fact that there is something illegal having caused damage will not be sufficient. It will be necessary to demonstrate that the institution has committed a serious breach, on top of the illegality.
reduced or no discretion = mere infringement is enough
margin of appreciation = only when a serious breach
influence of bergaderm
On NLEU:
Bergaderm brought action for damages against EU for prohibiting a bergapten component (carcinogenic) by a directive because:
- it was a non-administrative decision
- it was an individual measure since Bergaderm was the only producer
The Court rejected:
if the institution has brought margin of appreciation, there should be demonstrated sufficient breach.
here, public health = margin of appreciation
–> the distinction between a sufficiently serious breach an a simple breach or illegality NO LONGER DEPENDS on whether the measure is legislative/executive/general/individual BUT on the extent of margin of appreciation
effects of judgment
NLEU: If it is decided that the Union is liable, it must pay damages (art.266(2) and 340(2) TFEU)
- 266(2) institution body agencies whose act is contrary must take all measures to fulfil compliance
- 340(2) the Union shall make good any damages
If it is decided that the Union is not liable, the judgment has only effect on the parties to the proceedings. There can be a very close case that could be somebody else who is successful, there is no contractual liability of the Union towards the applicant. As a peculiarity of this procedure, in some cases, there will be a finding of liability (union found liability) but the court can reserve the question of the amount of damages to pay. In this case, the CJ will invite the parties to try to reach an agreement themselves on the amount of pay for damages. The court can indicate some calculation
–> Mulder case
- Principle of the liability: obligation to pay damages
NLMS: cf national law
competent court?
- NLEU: General Court (action brought
by individuals)
(art. 256 TFEU) - NLMS: national courts
Requirements for NLMS
Has only appeared in the case law - no legal provisions on that
‘corollary of the direct effect’
Conditions ‘must, in principle, be the same as those under which the Community institutions incur liability in a comparable situation’
Notion of ‘sufficiently serious breach’ characterised as ‘per se’
(non-transposition of a directive – persistence of the breach of EU law despite a judgment establishing an infringement)
Who can act?
Who can be attacked: EU or MS
Who can attack:
NLEU - any natural or legal person
NLMS - any claimant authorised to invoke national law pertaining civil liability
