Non-contractual liability268-340, paras. 2 and 3

Chiara Favilli

Roma 7-8 aprile 2014

340

• In the case of non-contractual liability

• he Union shall make good any damage caused by its institutions or by its servants in the performance of their duties

• in accordance with the general principles common to the laws of the Member States

• Both material and legal acts

EU Legal act

• Act to be declared as void, even the failure to act Lutticke

• Causal link• Serious breach of a high level rule: fundamental

rights, principle of non-discrimination – Even in member States non-constractual liability is limited

according to analougous principles

– EU institutions have a margin of discretion according to which they can even identifie who has to suffer economic loss from EU acts

• E.g. Asteris

Annull-failure to act/non-contr. liability

• Different and separated actions

– Different purposes: annulment of an act and declaration of illegality in order to get compensation

– Not necessary to act for annulment before asking for compensation

– Compensation may be asked also by those having legal standing to ask for annulment

Procedure

• Within 5 years since the damage has taking place

• Request to EU institution breaks limitation periods– Then two months to ask for compensation

Requirements

• Action for damages eventually following– Action for failure to act

– Action for annulment

• Illegal Action or failure to act which have produced damages

Illegality of the National Act

• No EU non-contractual responsibility

• Even if it is an act of implementation of an EU measure

• The action lies only with States

• Eventually responsibility of the Commission for failure to check the respect of the EU obligations by member States

Legal national act

• Competence of the ECJ– Correct application of en EU measure– Execution of instrictions from an EU body– Exercise of a binding competence

– Deriving from illegal measures liyng with an EU’s body

• Subsidiary remedy• Not necessary to act in fron the national judge

Co-respondents

• Action in front of the ECJ after having acted in front of national judges in order to avoid double compensations

• One is responsible for damages liyng with itself

Approach

• Equation of EU non-contractual responsibility with that of member Stat for failure to implement EU obligations

EU Offiicial

• Only when he/she acts within the exercise of his/her functions– Otherwise only personal responibility of the EU official

• In certain cases responibility of the EU which can act against the official

• In order to ascertain if the official has acted within the exercise of its functions it could be useful to refer to the ECJ for a preliminary ruling

Damage

• compensation• Existence, effectivity and current

– Admissibile even if not definable – Lack of exavt evaluation of the bias

• Agreement and New proceedings

• No chance to limit effects of the judgment

Contractual liabilityart. 340, para. 1

• Law applicable to the contract with competence of the national judges

• ECJ competent according to an arbitration clause included in the contract

• Law applicable eventually imposed also to the ECJ

• If not choosen the decision is based on the international private law and the ECJ will have to interpret the contract