THE ACTION FOR DAMAGES AGAINST THE EUROPEAN UNION: RECENT DEVELOPMENTS, ONGOING CHALLENGES, FUTURE POSSIBILITIES

Author

Kathleen Gutman*

 

I. INTRODUCTION

The action for damages against the European Union touches many areas of EU law and has great practical importance for the citizens of Bulgaria and other Member States.  The action for damages, also referred to as an action based on the Union’s non-contractual liability, is enshrined in Article 268 TFEU and the second paragraph of Article 340 TFEU.  Generally speaking, under these provisions, a party may bring a case before the Union courts[1] to establish the non-contractual liability of the European Union and thus to obtain compensation for the damage caused by unlawful acts and conduct committed by its institutions and bodies.

As famously prescribed by the second paragraph of Article 340 TFEU, the rules governing the action for damages against the European Union are to be worked out by the Union courts ‘in accordance with the general principles common to the laws of the Member States’.  On the basis of this provision, the Union courts are guided by rules, principles and concepts found in the legal systems of the Member States for the purposes offormulating rules on Union non-contractual liability in the cases brought before them. Conversely, the action for damages impacts the legal systems of the Member States in varying ways, as illustrated by the cross-fertilization of Union and State liability brought about by the Brasserie[2]andBergaderm[3] case law.[4]Moreover, although situated in the context of the liability of public authorities, the case law onthe action for damages and the comparative role played by the Union courts in this context are highly relevant to thedebate about European private law(and vice versa).[5]

Nevertheless, there appears to be a schism between the principle and practice of the action for damages against the European Union.On the one hand, as a matter of principle,the action for damages has a high profile in the Union legal order and carries out several crucial functions.  For instance, as already alluded to, it stands as an important –indeed the first – explicit expression in the Treaties of the comparative law method of the Union courts taking into account the laws of the Member States (and other jurisdictions as the case may be)in the process of deciding cases in various areas of EU law.[6]It is the only action specifically mentioned in the Charter of Fundamental Rights of the European Union (Charter)[7]in the context of the right to good administration[8], thereby filtering into the vibrant discourse on fundamental rights and general principles of Union law within EU constitutional and administrative law.[9]Furthermore, it plays an essential role alongside other actions brought before the Union courts and the national courtsas part of ensuring a complete and coherent system of judicial protection in the European Union.[10]On the other hand, there are severalchallenges associated with the action for damages in practice. In particular, it entails the fulfilment ofcertain conditions that may be considered to constitute high hurdles to be surmounted by claimants for their action to succeed.[11]There are also apparent gaps in thesystem of judicial protection in the European Union as far as actions for damages in the context of the Common Foreign and Security Policy are concerned.[12]Yet, a number of recent landmark cases in combination with the entry into force of the Lisbon Treaty[13] make this an opportune time for fresh reflection on the viability of the action for damages and its functioning in the Union legal order.

The objective of this contribution is therefore to survey the basic contours of the action for damagesagainst the European Union in light of recent jurisprudential and institutional developments.  This will be done in three main parts.  The first part tackles the natureand scope of the action for damages, with emphasis put on the importance of the concept of Union non-contractual liability for delineating the jurisdiction of the Union courts and theapplication to claims involving potential Union liability in the absence of unlawful acts and conduct.  The second part concerns the changes brought by the Lisbon Treaty that impact the action for damages,which relate to the former pillars, the parties and the Charter. The third part takes up the three main conditions governing the action for damages,concerning the existence of a sufficiently serious breach of a rule of EU law that is intended to confer rights on individuals, the occurrence of damage and thecausal link.

To be sure, all issues bearing on the action for damages against the Union cannot be discussed in depth. This contribution offers an overview of the main points governing Union non-contractual liability and certain key issues going forward, as ventilated through salient case law of the Union courts and institutional reforms where relevant.

II. THENATURE AND SCOPE OF THE ACTION OF DAMAGES

A claim for damages grounded in the Union’s non-contractual liability under Article 268 TFEU and the second paragraph of Article 340 TFEU generally denotes unlawful acts and conduct of Union institutions and bodies that have allegedly caused loss or harm to the applicant.[14]Although the term non-contractual liability appears in the text of the second paragraph of Article 340 TFEU (‘In the case of non-contractual liability’)[15], this is not the only terminology found in the literature. For example, some commentators classify Union non-contractual liability as EU institutional liabilityor, along with State liability, as EU public liability law (or similar variant).[16]Others label it under the rubric of tort law or as tortious liability.[17]Yet, as emphasized in the literature, depending on the perspective, the term tort law may be inappropriate or inaccurate because it is too reflective of the common law tradition (as compared to the term delict for the civil law tradition), and strictly speaking, it does not encompass related fields, such as unjust enrichment.[18]Consequently, the term non-contractual liability is preferred here because it tracks the text of the Treaties andmay be considered neutral and all-encompassing.Specifically, it is of seminal importance for delineating the jurisdiction of the Union courts (A) and the scope of Union non-contractual liability (B), especially in connection with the development of potential Union liability in the absence of unlawful acts and conduct.

A.Jurisdiction of the Union Courts

There is an important distinction in the Treaties as regards the Union courts’ jurisdiction to adjudicate actions concerning the non-contractual and contractual liabilityof the European Union vis-à-vis the national courts.[19]As already mentioned, Union non-contractual liability is governed by Article 268 and the second paragraph of Article 340 TFEU. Article 268 TFEU provides: ‘The Court of Justice of the European Union shall have jurisdiction in disputes relating to compensation for damage provided for in the second and third paragraphs of Article 340’ TFEU.  Leaving aside the third paragraph for the moment[20], the second paragraph of Article 340 TFEU states: ‘In the case of non-contractual liability, the Union 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.’ Although Article 268 TFEU does not say so expressly, it has been interpreted as conferring exclusive jurisdiction on the Union courts to decide non-contractual liability claims on the basis of the second paragraph of Article 340 TFEU.[21] Such claimsfall within the first instance jurisdiction of the General Court, with the possibility of appeal to the Court of Justice.[22]

Union contractual liability generally concerns disputes based on a contractbetween a Union institution or body and a third party and is governed by Article 272 TFEU and the first paragraph of Article 340 TFEU.[23]Under these provisions, the Union courts (that is to say, the General Court at first instance, with appeal to the Court of Justice[24]) only have jurisdiction to adjudicate such disputesto the extent that there is an ‘arbitration clause’ within the meaning of Article 272 TFEU conferring jurisdiction on them; otherwise, these disputesare decided by the national courts in accordance with Article 274 TFEU.[25]

Several years ago, two juristsoffered an explanation for this distinction, pointing out that with regard to Union contractual liability: ‘It was not felt necessary to organize special remedies before the Court of Justice for suits concerning such liability. The national legal systems of the Member States are so similar and their courts of such a standing that neither significant national divergences in law nor discrimination against the [Union] was to be expected or feared.’[26] However, the situation involving Union non-contractual liability was different:

Here, courts are not faced with a specific document, the contract, but with a more

general form of behaviour by the party alleged to be liable. The liability may

depend on whether that person committed a wrong or not. The decision on the

non-contractual liability of the governmental authorities will often entail passing

judgment on their policy. As regards the [Union], it was agreed that they should

not benefit from any immunity as regards their non-contractual liability but that

decisions in that respect should not be taken by national courts.[27]

This explanation may be considered somewhat ironicwhen viewed from the perspective of the debate about European private law, which is largely focused on the extent to which there is a need for the adoption of EU legislation to remedy problems allegedly caused by differences between the laws of the Member States in the field of contract law.[28]In any event, this distinction highlights the importance of the concept of non-contractual liability for the division of tasks between the Union courts and the national courts, whereby the regime governing Union non-contractual liability is decided solely by the Union courts on the basis of EU law.

Moreover, with regard to the allocation of jurisdiction between the Union courts themselves, there isan important distinction set forth in the Treaties between cases involving Union non-contractual liability and so-called ‘staff cases’, involving relations between the Union and its civilservants under Article 270 TFEU.[29]It used to be the case that a dispute between a civil servant and the Union institution or body to which he or she is answerable concerning compensation for damage originating in the employment relationship fell within the first instance jurisdiction of the EU Civil Service Tribunal on the basis of Article 270 TFEU and Articles 90-91 of the Staff Regulations and hence outside the sphere of application of Article 268 TFEU and the second paragraph of Article 340 TFEU for which the General Court has first instance jurisdiction.[30]

This has changed with the adoption, on 16 December 2015, of Regulation 2015/2422 amending Protocol No 3 on the Statute of the Court of Justice of the European Union.[31] This Regulationsets forth a three-stage process culminating in an increase in the number of Judges of the General Court to 56 (2 per Member State) by September 2019, thereby adapting the provisions of the Statute accordingly. As part of this process[32], the EU Civil Service Tribunal was dissolved on 1 September 2016, and the first instance jurisdiction in EU civil service cases and the seven posts of the Judges sitting at that Tribunal have been transferred to the General Court.[33]Consequently, the General Courtnow adjudicates at first instance claims for damages in both situations according to the respective basis of jurisdiction and the relevant conditions, which, as recent case law indicates,are not the same.[34]

B.Scope of Union Non-Contractual Liability

Although an action for damages based on Union non-contractual liability generally concernsunlawful acts and conduct of Union institutions and bodies, it is not strictly limited as such.  The extent to which the Union may be held non-contractually liable on the basis of lawful acts and conduct of its institutions and bodies – also referred to as Union no-fault or strict liability – is a perennial issue in the European Union.[35]For many years, the Union courts ‘flirted’ with the principle of Union liability for lawful acts and conduct, framing the issue in hypothetical terms.[36] Thus, it remained unclear whether such a principle wasrecognized in EU law until 2005, when the General Court decided five related cases[37] that established this principle for the first time and in line with previous case law laid down the requirements of unusual and special damage that must be fulfilled for this claim to succeed.[38]

Two of the General Court’s decisions were appealed in FIAMM and Others v Council and Commission.[39]  In its judgment, the Court of Justice held that the General Court erred in law by affirming the existence of a Union regime of non-contractual liability in the absence of unlawful conduct.[40] It declared: ‘as [Union] law currently stands, no liability regime exists under which the [Union] can incur liability for conduct falling within the sphere of its legislative competence in a situation where any failure of such conduct to comply with the WTO agreements cannot be relied upon before the Union courts’.[41]

Notably, the Court’s judgment in FIAMMwas framed within the particular circumstances of the proceedings, involving the Union institutions’ compliance with the WTO rules and linked to their ‘legislative’ activity. It was also prefaced by the wording ‘as [Union] law currently stands’.  This gives the Courtleeway to refineits position in future case law. Indeed,subsequent judgments of the Union courts continue to refer to the requirements of unusual and special damage[42] and thus hint at the possibility that Union liability in the absence of unlawful conductmay be recognized in other contexts, such as that concerning the Union’s administrative or ‘non-legislative’ activity.[43]

Recently, for example, in Holcim (Romania) v Commission[44], the applicantsought compensation for damage allegedly sustained in connection with the Commission’s administration of the greenhouse gas emission allowance trading scheme set forth in Commission Regulation 2261/2004[45], which was adopted pursuant to EU legislationimplementing the Kyoto Protocol to the United Nations Framework Convention on Climate Change.[46]As regards the applicant’s claim based on Union strict liability[47], the General Court began by reiterating the Court’s judgment in FIAMM, ruling out the existence at present of such a regime.[48] However, it pointed to a later judgment, in which the Court of Justice held that the General Court did not err in law in not resolving the question whether there is strict liability under EU law and rejecting ‘in any event’ the arguments submitted to it in the absence of proof that the damage relied on was unusual and special.[49]It concludedthat the damage alleged was not unusual and dismissed the claim.[50]

In its judgment on appeal[51],the Court of Justice held: ‘A plea alleging that liability is incurred for a lawful act of the European Union must be rejected and the Court does not need to adjudicate on the possibility of liability being incurred on the part of the European Union for such acts, inasmuch as the material and non-material damage alleged by the appellant are not unusual or special.’[52]It rejected this ground of the appeal and dismissed the case in its entirety.[53] Regrettably, the Court did not elaborate on potential Union non-contractual liability in those circumstances, and no mention was madeof the Commission’s non-legislative activity in this regard.[54]

Issues concerning the principle of Union strict liability therefore await clarification in future case law.  In the meantime, as noted by commentators and alluded to by the Court of Justice itself in FIAMM[55], the lack of judicial recognition of such a principle does not necessarily preclude a meaningful solution to be found in the Union legal order if the Union legislature essentially ‘picks up the slack’ in providing for compensation mechanisms through the adoption of Union measures, whichis in line with the approach taken in several Member States.[56]Importantly, however, Union non-contractual liability in the absence of unlawful conduct has not been completely ruled out.

In Masdar (UK) v Commission[57], the Court of Justice was confronted on appeal with the Union’s potential non-contractual liability based on the principles of unjust enrichment and negotiorium gestio (benevolent intervention in another’s affairs).[58]With regard to the unjust enrichment claim, the Court acknowledged that it does not fall under the rules governing non-contractual liability in the strict sense, since it does not require proof of unlawful conduct or in fact any form of conduct at all, on the part of the defendant, but merely proof of enrichment on the part of the defendant for which there is no valid legal basis and of impoverishment on the part of the applicant which is linked to that enrichment.[59] Yet, it reasoned that if Article 268 TFEU and the second paragraph of Article 340 TFEU were construed as excluding the possibility of bringing anclaim for unjust enrichment against the Union, the result would be contrary to the principle of effective judicial protection.[60]Moreover, given that unjust enrichment is a source of non-contractual obligation common to the legal systems of the Member States, the Union cannot be dispensed to itself of the same principles where a natural or legal person alleges that the Union has been  unjustly enriched to the detriment of that person.[61] The Court then upheld the General Court’s rejection of the application of this principle in the proceedings.[62]With respect to the negotiorum gestio claim, it left matters open: ‘Without it being necessary to determine whether the [General Court] made a correct classification of the legal nature of actions based on negotiorum gestio’, the appellant’s arguments could not in any event be upheld.[63]

Although the claim based on unjust enrichmentdid not succeed in Masdar (or in subsequent case law thus far[64]), the Court’s judgmentaffirms Union non-contractual liability on the basis of this principle for the first time and thus paves the way for future claimants. It also raises questions whether other types of claims related to Union non-contractual liability in the absence of unlawful acts and conduct, including the principle of negotiorium gestio, may be recognized in future case law.

III.THE IMPACT OF THE LISBON TREATY

The action for damages against the European Union has been part of the Treaty framework since the founding of the European Communities[65], and aside from renumbering, the provisions were not fundamentally altered through successive amendments to the former EC Treaty. Much the same is true with the entry into force of the Lisbon Treaty. The Lisbon Treaty did not change the substantive content of Article 268 TFEU and the second paragraph of Article 340 TFEU, as compared to former Article 235 EC and the second paragraph of former Article 288 EC, respectively.Yet, taking into account the EU institutional and constitutional framework generally, there are three key changes brought by the Lisbon Treaty that impact the action for damages.[66]These changes relate to the former pillars (A), theparties(B) and the Charter (C).

A.The Former Pillars

The first key changestems from the elimination of the pillar structure and the replacement of the European Community with the Union[67], whereby certain restrictions placed on the Union courts’ jurisdiction in this context have been removed.  With respect to the former third pillar of Police and Judicial Cooperation in Criminal Matters (PJCCM), actions for damages against the Union in this field are no longer precluded[68], as had been the case under the former Treaty framework.[69]

In contrast, with respect to the former second pillar of the Common Foreign and Security Policy (CFSP), the Union courts generally have not been conferred jurisdiction in this field.[70] However, there are certain exceptions carved out in Article 24(1) TEU and Article 275 TFEU[71], which relate to first, monitoring compliance with Article 40 TEU[72] and, secondly, reviewing the legality of decisions providing for restrictive measures against natural and legal persons adopted by the Council on the basis of Chapter 2 of Title V of the TEU (concerning specific provisions on the CFSP) in proceedings brought in accordance with the fourth paragraph of Article 263 TFEU (concerning actions for annulment).[73]This indicates that at leastin principle the Union courts do not have jurisdiction to decideactions for damages against the Union in which compensation is sought for damage allegedly sustained on account of CFSP acts or conduct of the Union institutions and bodies taken on the basis of the Treaty provisions concerning the CFSP. Nevertheless, to the extent that Union action in the CFSP is implemented by measures adopted on the basis of Treaty provisions outside this field that fall within the Union courts’ jurisdiction, an action for damages against the Union is available.[74]

The availability, or not, of an action for damages in the CFSP came to the fore in Opinion 2/13 on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms.[75] This Opinionraised questions concerning the system of judicial protection in the field of CFSP.[76] In this regard, the Court of Justice stated that,notwithstanding the Commission’s broad interpretation of the Court’s jurisdiction in this field including non-contractual liability claims where compensation is sought for damages resulting from CFSP measures[77],it had not yet had the opportunity to define the extent to which its jurisdiction is limited in CFSP matters as a result of Article 24(1) TEU and Article 275 TFEU.[78] For the present Opinion, it was sufficient to declare that, as EU law stands now, certain acts in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice.[79]

In heraccompanying View, Advocate General Kokott disagreed with the Commission’s broad interpretation of the Union courts’ jurisdiction in the CFSP (as did the Council and certain Member States).[80]She contended among other things that it was not supported by the Court’s case law[81] or the drafting history of Article 275 TFEU following from the Convention on the future of Europe.[82]In fact, as indicated in one of the Convention documents cited therein[83], an action for damages was contemplated among the possible approaches for extending the Union courts’ jurisdiction over CFSP measures in the context of the Convention,[84] but was ultimately rejected.[85]

That being said, recent case law demonstrates that just because the CFSP is involved does not necessarily mean that the restrictions placed on the Union courts’ jurisdiction in the CFSP are implicatedand hence that a claim based on Union non-contractual lability is precluded.[86]  For example, in H v Council and Others[87], the Court of Justice was faced with the question whether the General Court had jurisdiction to hearactions for annulment and damages in connection with decisions taken by the Head of an EU Mission established under the CFSP.Under the facts of the case, the applicant, an Italian magistrate, was seconded to the EU Police Mission (EUPM) in Bosnia and Herzegovina. After she informed her superiors that she detected some irregularities in the management of the EUPM, the Head of the EUPM issued decisions that downgraded her position and redeployed her to a regional office.[88]Thus, shelodged an action at the General Court for annulment of the decisions taken by the Head of the EUPM and for damages.[89]The General Court dismissed the action as inadmissible, ruling that it lacked jurisdiction to hear the case.[90]

In its judgment, the Court of Justice held that the General Court erred in ruling that it had no jurisdiction to hear the case.[91]The Court pointed out that although in the present proceedings the contested decisions are set in the context of the CFSP, this does not necessarily lead to the Union judicature’sjurisdiction being excluded.[92]While the decisions adopted by the competent authorities of the EUPM, relating to the allocation of the human resources assigned to it by the Member States and the Union institutions for the purposes of performing activities at theatre level, have an operational aspect falling within the CFSP, they also constitute acts of staff management just like all similar decisions adopted by the Union institutions in the exercise of their competences.[93] In those circumstances, the scope of the limitation, by way of derogation, on the Court’s jurisdiction in the CFSP cannot be considered so extensive as to exclude the Union judicature’s jurisdiction to review acts of staff management relating to staff members seconded by the Member States, the purpose of which is to meet the needs of that mission at theatre level, when the Union judicature has jurisdiction to review such acts where they concern staff members seconded by the Union institutions.[94]Accordingly, the General Court and on appeal the Court of Justice have jurisdiction to review such acts, which stems, as regards the review of the legality of those acts, from Article 263 TFEU, and as regards actions for non-contractual liability, from Article 268 TFEU in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU[95] and Article 47 of the Charter (enshrining the principle of effective judicial protection).[96]

As illustrated by the Court’s judgment in H, the restrictions placed on the Union courts’ jurisdiction in the CFSPin respect of an action for damages must be assessed carefully in relation to the circumstances of the particular case. In other words, there is no blanket exclusion of the Union courts’ jurisdiction just because the CFSP is involved.Therefore, although gaps remain in the system of judicial protection as far as actions for damages, among others, in the CFSP are concerned, the Union courts’ jurisdiction to decide such actions is not automatically foreclosed.

B.The Parties

The second key change brought by the Lisbon Treaty relates to the institutions and bodies whose acts and conduct may form the basis of an action for damages against the European Union.Formally, this action concerns the non-contractual liability of the European Union, but under the case law, it is generally the particular Union institution or body to which the unlawful act or conduct is attributable that represents the European Union before the Union courts and serves as the defendant in the action.[97]It had already been the case under the former EC Treaty that this action could be brought against one of the ‘official’ institutions listed in former Article 7(1) EC[98], as well as bodies and agencies active in the sphere of what was then Community law.[99]

With the entry into force of the Lisbon Treaty, the European Council is now recognized as an ‘official’ Union institution in Article 13(1) TEU[100], and thus, an action for damages may now be brought on the basis of its unlawful acts and conduct, which had been precluded under the former EC Treaty.[101]TheEuropean Central Bank (ECB)is also listed asan ‘official’ Union institution under this provision, but on account of its legal personality, there is a separate provision concerning its non-contractual liability set forth inthe third paragraph of Article 340 TFEU, which is worded in nearly identical terms to the second paragraph of Article 340 TFEU.[102]

As far as Union bodies are concerned, in comparisonto other Treaty provisions in which language was added by the Lisbon Treaty to encompass action taken by Union bodies, offices and agencies[103], this was not done in respect of the second paragraph of Article 340 TFEU. Yet, arguably, this does not change the system already worked out in the case law[104], subject to the limits placed on the Union courts’ jurisdiction under the Treaties, such as with respect to the CFSP discussed above.  It may be wondered whether this omission was due in part to the fact that for many Union bodies, offices and agencies with legal personality,specific arrangements concerning their non-contractual liability are provided in the measures establishing them, which often track or are similar to the wording of the second paragraph of Article 340 TFEU.[105]

Importantly, whether the action for damages is brought against a Union institution or body, it is generally the case that the particular act or conduct attributable to that institution or body falls within the scope of EU law. As illustrated by recent events arising out of the financialcrisis, this is not always self-evident. InLedra Advertising and Others v Commission and ECB[106],which came before the Court of Justice on appeal, depositors of two Cypriot banks brought actions for annulment and damages in connection with the Memorandum of Understanding (MoU) concluded with Cyprus under the European Stability Mechanism (ESM) Treaty.[107]The ESM Treaty is an intergovernmental treaty concluded by the Member States whose currency is the euro in order to establish an international financial institution (the ESM) with legal personality, so as to provide financial assistance to Member States, subject to strict conditionality requirements, experiencing or threatened by severe financing problems.[108]The General Court dismissed the actions, ruling in relevant part that it had no jurisdiction to consider the claims for compensation based on the alleged illegality of certain provisions of the MoU.[109]

In its judgment, the Court of Justice set aside the General Court’s rulings, finding that it erred in law by holding that it did not have jurisdiction over an action for damages based on the illegality of the relevant provisions of the MoU.[110]It agreed with the General Court’s finding that the MoU does not constitute an act that can be imputed to the Commission and the ECB.[111] However,it reasoned that while such a finding is liable to have an effect in relation to the conditions governing the admissibility of an action for annulment, it cannot prevent unlawful conduct linked, as the case may be, to the adoption of a MoU on behalf of the ESM from being raised against the Commission and the ECB in an action for damages.[112]The tasks conferred on the Commission and the ECB within the ESM Treaty do not alter the essential character of the powers conferred on those institutions by the TEU and TFEU.[113] Moreover, the tasks allocated to the Commission under the ESM Treaty oblige it to ensure that a MOU concluded by the ESM is consistent with EU law and hence the Commission retains its role as ‘guardian of the Treaties’ under Article 17(1) TEU and should refrain from signing a MoU whose consistency with EU law it doubts.[114]Ultimately, the Court concluded that the conditions to engage the non-contractual liability of the European Union were not satisfied and dismissed the case.[115]Still, its judgment makes clear that even where a Union institution or body is acting outside the EU legal framework, a non-contractual liability claim may be possible depending on the circumstances, though the outcome of future actions for damages in this context remains to be seen.[116]

C.The Charter

The third change brought by the Lisbon Treaty impacting the action for damages relates to the Charter, which following the entry into force of that Treaty has the status of binding primary Union law.[117] The action for damages is mentioned explicitly in Article 41(3) of the Charter concerning the right to good administration: ‘Every person has the right to have the Union 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.’ This provision reiterates the text of the second paragraph of Article 340 TFEUand does not as such modify the Union’s non-contractual liability regime under the Treaties, in terms of the conditions set forth in the case law that must be fulfilled for the action to succeed.[118]

That said,the present author shares the views of certain commentators that the reference to the action for damages in Article 41(3) of the Charter is not superfluous.[119]That reference reflects theimportance of the action for damages for upholding the right to good administration in the Union legal order and remedying breaches of EU law committed by Union institutions and bodies in this context.[120]In particular, that reference may be considered to have special ‘interpretative force’ through its potential to provide further support for the Union courts’ interpretation andformulationof rules governing Union non-contractual liability in circumstances involving the administrative activities of the institutions and bodies.

As a related matter, thisissue highlights the prospect of an action for damages based on a breach of a fundamental right enshrined in the Charter, whether relating to the right to good administration or otherwise, which is presently unfolding in the case law. Generally speaking, there is nothing unique about the assessment of Union non-contractual liability in connection with thealleged violation of fundamental rights recognized inthe Charter in so far as the main conditions set forth in the case law are concerned.[121]  Similar to claims for compensation in respect of other rules of EU primary and secondary law, that assessment proceeds on a case-by-case basis depending on the particular right at issue and other circumstances involved in the proceedings.[122]This leads to the discussion of the main conditions governing the action for damages, which is illustrated in relevant part by case law involving the Charter.

IV.CONDITIONSGOVERNING THE ACTION FOR DAMAGES

There are many requirements governing an action for damages against the European Union, which may be organized into two categories as ‘procedural type’ and ‘substantive’ requirements.[123]On the one hand, there are several procedural-type requirements which generally bear on the admissibility of the action[124], such as the rules concerning the specificity and content of the pleadings[125] and the limitation period.[126] On the other hand, there are the three main conditions or substantive requirements which the Court of Justice identified starting early onrelating to the unlawfulness of the act or conduct of which the Union institution or body concerned is accused,the occurrence of damage and the existence of a causal link between such act or conduct and the damage alleged.[127]With the alignment of Union and State liability in Bergaderm[128], the following three main conditions must be satisfiedto engage Union non-contractual liability: (1) a sufficiently serious breach of a rule of EU law that is intended to confer rights on individuals; (2) the occurrence of damage; and (3) a causal link between the breach attributable to the Union institution or body concerned and the damage sustained by the injured party.[129]In other words, the first condition of unlawfulness encompasses the requirements relating to a sufficiently serious breach and the rule of EU law intended to confer rights on individuals.[130]There is surely ample case law and literature onthese conditions[131], and as just noted, their assessment proceeds on a case-by-case basis, which makes general conclusions, as well as future prognoses, extremely difficult.  Nevertheless, each of these three conditions is examined briefly below (A-C), with a view to highlighting some recent jurisprudential developments that bear on current and future practice.

A.The Sufficiently Serious Breach of a Rule of EULaw Intended to Confer Rights on

         Individuals

To a great extent, much of the attention has focused onthe sufficiently serious breach requirement, although recent case law demonstrates that both components relating to unlawfulness should not be underestimated or counted out.Under the well-known formula set down in the case law, the test for finding that a breach of EU law is sufficiently serious is whether the Union institution or body manifestly and gravely disregarded the limits on its discretion, and under circumstances where that institution or body has considerably reduced, or no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach.[132]  As made clear in Bergaderm and cases that followed, the determining factor for a sufficiently serious breach is the discretion available to the institution or body concerned and not the general or individual nature of the Union act in question as had been the case under the previous regime.[133]Yet, as illustrated by more recent judgments,discretion is a key criterion, but it is not the only one.  After the Union courts have determined the margin of discretion, if any, they may consider certain ‘justifications’ elaborated in the case lawon Union (as well as State) liability in both situations, that is to say, involving considerable or little to no discretion on the part of the Union institution or body concerned.[134] This evidences asubjective approach of the Union courts to the assessment of the sufficiently serious breach requirement.[135]

The ‘companion’ cases of Gascogne Sack Deutschland v Commission[136], Kendrion v Commission[137] and Groupe Gascogne v Commission[138]are salient examples. In these cases, the applicants lodged appeals against the General Court’s rulings dismissing their actions for annulment againstCommission decisions finding that they infringed the EU competition rules, alleging among other things that the General Court breached the second paragraph of Article 47 of the Charter on account of its failure to adjudicate within a reasonable time.[139]  In its judgments, the Court of Justice affirmed that the sanction for a breach, by a Union court, of its obligation to adjudicate within a reasonable time under the second paragraph of Article 47 of the Charter is an action for damages.[140] In its view, such an action constitutes an effective remedy of general application for such a breach and can cover all the situations where a reasonable period of time has been exceeded in the proceedings, as opposed to the remedy of reducing the amount of the fine.[141]It must be brought before the General Court, sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticized, and assessed in accordance with certain criteria.[142]

Specifically, as regards the unlawfulness of the General Court’s conduct, the Court pointed out that the reasonableness of the period for delivering judgment is to be appraised in light of the circumstances specific to each case, such asthe complexity of the case and the conduct of the parties.[143] Moreover, with regard to the causation and damage conditions, the Court stressed that the General Court must, in line with the second paragraph of Article 340 TFEU, take into consideration the general principles applicable in the national legal systems for actions based on similar breaches, and in particular, ascertain whether it is possible to identify, in addition to material loss, any other type of harm sustained by the party that should be compensated.[144]On the basis of that criteria, the Court noted that in the present cases, the length of the procedure before the General Court could not be justified in light of anycircumstances, taking into account the complexity of the dispute, the parties’ conduct and supervening procedural matters, and therefore the General Court breached the second paragraph of Article 47 of the Charter, which constituted a sufficiently serious breach of EU law that is intended to confer rights on individuals.[145]

Although there have been some misgivings about the appropriateness of the remedy of damages in this context[146], the Court’s judgments have been confirmed in subsequent case law.[147]At the time of writing, the first actions for damages based on the General Court’s failure to adjudicate in a reasonable time are pending before that Court.[148] It remains to be seen how it will assess such liability inline with the criteria, especially the types of losses that may be claimed and the extent to which it will draw from solutions in the national legal orders, which dovetailswith the discussion of the other conditions below. Still, the Court’s judgments illustrate not only potential Union non-contractual liability in connection with the alleged breach of a fundamental right recognized in the Charter, but also that the Union courts have the opportunity to utilize various justifications depending on the circumstances, such as here involving the complexity of the case concerned and the conduct of the parties, in their appraisal of the sufficiently serious breach requirement.  Such an approach allows the Union courts to gauge their assessment of this requirement in light of the particular acts or conduct of the institution or body in question. At the same time, as seen below,it may preclude a finding of liability.

Turning to the other component of unlawfulness, the requirement that the rule of EU law must be intended to confer rights on individuals is satisfied where that rule:(1) creates an advantage which could be defined as a vested right, (2) is designed for the protection of the interests of individuals, (3) entails the grant of rights to individuals, the content of those rights being sufficiently identifiable, or (4) while referring essentially to interest of a general nature, also ensures the protection of the individual interests of the persons concerned.[149]In other words, it is sufficient if the rule of law in question is deemed to protect individual as well as general interests,but it is problematic where that rule is not deemed to protect any individual interests, for example,the principle of institutional balance pertaining to the horizontal division of powers between the institutionsfollowing from the Court’s 1992 judgment in Vreugdenhil v Commission.[150]

This was recently revisited inArtegodan v Commission.[151] Pursuant to a Directive approximating national laws on medicinal products, the Commission adopted a decision withdrawing the marketing authorization for such products containing afepramone.[152] The applicant, the holder of a marketing authorization for a medicinal product containing this substance, brought an action for damages seeking compensation for the losses allegedly suffered on account of the decision.[153]TheGeneral Court ruled in respect of certain claims that therelevant provisions of the Directive are not intended to confer rights on individuals, but rather are intended to organize the division of powers between national authorities and the Commission.[154]On appeal, the Court of Justice held that the General Courterred in law on this issue and that the rule in question is intended to confer rights on individuals.[155] It pointed out that, following from Vreugdenhil, while not all rules on the division of powers are intended to protect individuals, the position is different where those rules are accompanied by an infringement of a substantive provision of EU law that is intended to confer rights on individuals, as was the case here.[156]

In his Opinion, Advocate General Botwas more forthcoming. He acknowledged particular difficulties in the assessment of this requirement in cases involving the infringement of rules concerning the allocation of competences, horizontally and vertically, among the institutions and considered that such rules protect the rights of individuals[157], exclaiming:

To accept that the infringement of a rule governing allocation of competences

cannot give rise to non-contractual liability on the part of Union because it is

not a rule protecting the rights of individuals amounts to a presumption that the

choice thus made by the legislature of the Union has no regard for guarantees

of individuals’ rights, or for how those rights may be affected. I reject such a

presumption because, since it impacts on what was decided, the identity of the

author of an act must be considered as being directly at the origin of a possible

violation of the rights of individuals.[158]

Ultimately, however, as the Court held in its judgment[159], the Advocate General concluded that the action must be dismissed for failure to prove a sufficiently serious breach.[160]

B.The Occurrence of Damage

The second condition governing the action for damages concerns the occurrence of damage. Under the case law, this condition requires that the damage must be actual and certain, meaning that it is not merely hypothetical or indeterminate, but rather, it must be shown that damage occurred and its extent.[161]

This condition was at issue inthe recent cases of Giordano v Commission[162] and Buono and Others v Commission.[163]Pursuant to a Council Regulation on the Common Fisheries Policy, the Commission adopted a Regulation establishing emergency measures for bluefin tuna, which prohibited fishing for this type of tuna after a certain date. Several French fishermen (and a trade union[164]) whose fishing activities were brought to an end by the Commission Regulationlodged actions for damages.In both cases, the General Court held that the damage requirement was not satisfied because the alleged damage constituted merely hypothetical, not actual and certain, damage.[165]In its view, the fishing quotas did not provide any guarantee to the applicants of being able to fish the entirety of the quota allocated to them. Thus, it dismissed the actions for damages based on the alleged unlawfulness of the Commission Regulation.[166]The applicants appealed.

In its judgment in Giordano v Commission[167], the Court of Justice held that the General Court erred in law in its assessment of the damage requirementand set aside its ruling.[168]First, by simply referring to the fallacy of the premiss that the appellant had a right to fish and would necessarily have exhausted his quota, the General Court erred in law in considering the condition relating to harm, since the existence of a right conferred on individuals by a rule of law does not relate to the actual nature of the harm alleged, but constitutes a condition for a finding of a sufficiently serious breach of such a rule by an institution in order for the non-contractual liability of the European Union to be incurred.[169] Moreover, in line with its judgment in Agraz and Others v Commission[170], the Court underlined that the exhaustion of the appellant’s quota is only relevant for assessing the extent of the harm alleged, not the very existence of the harm, the certainty of which is not called into question by uncertainty as to its precise extent.[171]It then proceeded to give judgment, finding that the appellant failed to establish the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals and dismissed the case.[172]

Inits judgment in Buono and Others v Commission[173], the Courtof Justice reached a similar result, dismissing the appeal, but by a different route. It ruled that the General Court erred by declaring admissible the applicants’ plea alleging that the European Union was non-contractually liable for unlawful conduct.[174]Since that plea was inadmissible, the appellants’ grounds of appeal relating to the General Court’s assessment of the damages requirement were rejected as ineffective.[175]

The Court’s judgments in these cases were in stark contrast to the Opinions of Advocate General Cruz Villalón, concluding that all of the conditions to engage Union non-contractual liabilitywere satisfied.[176]  In his Opinion in Giordano, the Advocate General analysed the damage requirement and in particular the question whether a loss of opportunity is compensable.[177]On the basis of a comparative examination of the laws of the Member States (as well as other jurisdictions)[178] and analysis of the case law[179], he submitted that the loss of opportunity constitutes one of the ‘general principles common to the laws of the Member States’ pursuant to the second paragraph of Article 340 TFEU and an integral part of the harm for which compensation can be awarded, such that the EU law of damages should compensate for the loss of a strong chance resulting from an unlawful act of an institution[180], as was the case here.[181]

It may be wondered whether the claimants in Giordano and Buono essentially lost the battle, but not the war, in terms of laying the basis for general recognition of the loss of opportunity, despite the dismissal of their cases. Recently, for example, in European Dynamics Luxembourg and Others v EUIPO[182], involving an action for damages based on the loss of opportunity in the public procurement context[183], the General Court ruled that the loss of opportunity suffered by the first applicant constitutes actual and certain damage under the case law, referring among other things to Advocate General Cruz Villalón’s Opinion in Giordano.[184]  It is as yet to be determined whether the Union courts may take up the Advocate General’s invitation to compensate claimants for the loss of opportunity on a more general basis in the context of Union non-contractual liability.

C.The Causal Link

The third condition governing the action for damages is that there must be a direct causal link between the act or conduct of the Union institution or body and the damage alleged. According to the case law, the main idea is that the damage alleged must be a sufficiently direct consequence of the unlawful act or conduct complained of, meaning that if such damage does not flow directly from such act or conduct and is too indirect or remote, this is not sufficient, since there is no obligation on the part of the Union to make good every harmful consequence of the unlawful situation.[185]  This condition has attracted particularcriticism for the lack of a clear EU concept of causation elaborated in the case law so far.[186]

Kone and Others[187], situated in the context of the Court’s case law on the liability for breach of EU law by private parties[188], may stimulate some developments in this regard.  It involved a request for a preliminary ruling submitted by an Austrian court essentially concerning the question whether EU law precludes national causation rules that categorically exclude the right to compensation in circumstances involving ‘umbrella pricing’, which occurs when undertakings that are not themselves party to a cartel benefit from the protection of the cartel’s practices (hence operating under the cartel’s umbrella) and set their own prices higher than they would have otherwise been able to do under competitive conditions.[189]In its judgment, the Court of Justice ruled in relevant part that the full effectiveness of Article 101 TFEU would be put at risk by national legislation such as that at issue in the proceedings andthus it was precluded by this provision.[190]

In her Opinion, Advocate General Kokott examined the specific EU law conditions applicable to the establishment of a causal link in detail.[191]She considered that the criterion of a sufficiently direct causal link, applicable to Union non-contractual liability, should be applied to all other cases involving claims of compensation for breach of EU law, irrespective of whether such claims are brought by individuals against Member States (State liability) or as here between private parties.[192]Shealso acknowledged that the criterion of directness requires further clarification and contended that in order to define more precisely the meaning ascribed to the phrase ‘sufficiently direct causal link’, recourse should be made to a normative examination, as the national systems of civil law usually do in the context of their respective non-contractual liability regimes.[193]

Drawing from case law on Union non-contractual liability, she stressed that a direct causal link must not be regarded as being the same as a single causal link and that the case law of the Union courts does not always assume that the chain of causality is broken where the action of a third party was a contributory cause of the loss sustained; rather, it is always the specific circumstances of the individual case in question that are decisive.[194] On that basis, she surmised that the criterion of a sufficiently direct causal link is in substance intended, on the one hand,to ensure that a person who has acted unlawfully is liable only for such loss as he or she could reasonably have foreseen, and on the other hand, a person is liable only for loss, the compensation of which is consistent with the objectives of the provision of law that he or she has infringed (in casu Article 101 TFEU).[195] Although her remarks were not taken up by the Court in its judgment, they are helpful for elucidating the causal link requirement for the purpose of the action for damages and may prompt the Courtto elaborate on this requirement in future case law.

 V.CONCLUSION

The action for damages against the European Union may not make up a significant percentage of the work load of the Union courts[196], but in view of the foregoing discussion, that does not make it any less important for the functioning of the Union legal order and in particular for guaranteeing individuals judicial protection at the European level.Admittedly, as illustrated by (too) many of the judgments discussed above, the case law onthe action for damages may be viewed as a letdown, on account of the fact that the applicant in the particular case is deemed to fulfil one condition, only to fail at proving the others.  Yet, that same case law may be viewed in a positive light, as heralding means to facilitate the availability of the action for damages in certain fields, for certain claims or under certain conditions, as in the field of the CFSP, potential Union liability in the absence of unlawful conduct and the types of damage that are compensable, to name a few examples.  Moreover, rules, principles and concepts in the national legal orders continue to guide and nourish the development of Union non-contractual liability, in accordance with the second paragraph of Article 340 TFEU, as seen above in cases involving the recognition, or not, of Union liability in the absence of unlawfulconduct and the causation and damage requirements.Consequently, although ongoing challenges remain, arguably, certain recent developments in the case law hold future possibilities for helping to ensure that the action for damages against the European Union constitutes a meaningful route for claimants and for devising solutions that draw as much as possible from the legal systems of the Member States.

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Link to the summary in Bulgarian language: ИСКЪТ ЗА ВРЕДИ В ПРАВОТО НА ЕС: РАЗВИТИЕ, ТЕКУЩИ ПРЕДИЗВИКАТЕЛСТВА И БЪДЕЩИ ВЪЗМОЖНОСТИ

***

* This contribution is based on Kathleen Gutman, ‘The Non-Contractual Liability of the European Union: Principle, Practice and Promise’, in Paula Giliker (ed), Research Handbook on EU Tort Law (Edward Elgar forthcoming 2016).

* Guest Professor and Senior Affiliated Researcher, Institute for European Law, University of Leuven.

[1] This contribution refers to the Union courts or judicature as denoting the institution of the Court of Justice of the European Union (CJEU), comprising under Art 19(1), first subpara, TEU the Court of Justice (ECJ), General Court (EGC) and specialised courts, of which there used to be the EU Civil Service Tribunal (ECST): see text accompanying ns 31-33.

[2] Judgment of 5 March 1996, Brasserie du Pêcheur and Factortame and Others C-46/93 and C-48/93, EU:C:1996:79.

[3] Judgment of 4 July 2000, Bergaderm and Goupil v Commission C-352/98 P, EU:C:2000:361.

[4] See, eg, Pekka Aalto, Public Liability in EU Law: Brasserie, Bergaderm and Beyond (Hart 2011).

[5] See, eg, Kathleen Gutman, ‘The Evolution of the Action for Damages Against the European Union and Its Place in the System of Judicial Protection’ (2011) 48 CMLRev 695, 738-749. See also n 193.

[6] See, eg, Koen Lenaerts and Kathleen Gutman, ‘The Comparative Law Method and the Court of Justice of the European Union: Interlocking Legal Orders Revisited’ in Mads Andenas and Duncan Fairgrieve (eds), Courts and Comparative Law (Oxford University Press 2015) 141, 150-152 and citations therein.

[7] The Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 [2000] OJ C364/1, was re-enacted by the European Parliament, Council and Commission on the day that the Lisbon Treaty was signed: Charter of Fundamental Rights of the European Union, proclaimed at Strasbourg on 12 December 2007 [2007] OJ C303/1, reprinted alongside the consolidated versions of the TEU and TFEU [2016] OJ C202/389 (Charter).

[8] See Part III.C.

[9] See, eg, Paul Craig and Gráinne de Búrca, EU Law: Text, Cases and Materials(6th edn, Oxford University Press 2015) ch 16; TC Hartley, The Foundations of European Union Law: An Introduction to the Constitutional and Administrative Law of the European Union (8th edn, Oxford University Press 2014) ch 16 §3; Rhita Bousta, ‘Who Said There is a ‘Right to Good Administration’? A Critical Analysis of Article 41 of the Charter of Fundamental Rights of the European Union’ (2013) 19 European Public Law 481; Herwig C.H. Hofmann and Bucura C. Mihaescu, ‘The Relation between the Charter’s Fundamental Rights and the Unwritten General Principles of EU Law: Good Administration as the Test Case’ (2013) 9 European Constitutional Law Review 73.

[10] See, eg, Koen Lenaerts, Ignace Maselis and Kathleen Gutman, EU Procedural Law (Janek Tomasz Nowak (ed), Oxford University Press 2015) ch 11; Alexander Türk, Judicial Review in EU Law (Edward Elgar 2009) ch 4; Jill Wakefield, Judicial Protection through the Use of Article 288(2) EC (Kluwer 2002); Angela Ward, Judicial Review and the Rights of Private Parties in EU Law (2nd edn, Oxford University Press 2007) ch 8.

[11] See, eg, Andrea Biondi and Martin Farley, The Right to Damages in European Law (Kluwer 2009) 160-162.

[12] See Part III.A.

[13]Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/1; consolidated versions of the Treaty on European Union (TEU) [2016] OJ C202/13 and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/47. For brevity’s sake, quoted passages referring to the former Community or former provisions of the EU and EC Treaties may be replaced by the Union or the current provisions of the TEU and TFEU, and reference is made to the General Court (as opposed to the Court of First Instance) for cases decided before the entry into force of the Lisbon Treaty.

[14]Lenaerts, Maselis and Gutman (n 10) para 11.06.

[15] See, in this regard, Lord Mackenzie Stuart, ‘The “Non-Contractual” Liability of the European Economic Community’ (1975) 12 CMLRev 493, 495.

[16] See, eg, Aalto (n 4) 12-14; Chris Hilson, ‘Publication Review: Pekka Aalto, Public Liability in EU Law: Brasserie, Bergaderm and Beyond’ (2013) 38 ELRev 583, 583.

[17] See, eg, Hartley (n 9).

[18] See, eg, Aalto (n 4) 13 fn 46; Paula Giliker, The Europeanisation of English Tort Law (Hart 2014) 5-7. Those who use the term tort law are mindful of its scope: see, eg, Hartley (n 9) 449; Cees van Dam, European Tort Law (2nd edn, Oxford University Press 2013) 4-5.

[19] See, eg, Judgment of 13 April 2013, Commission v Systran and Systran LuxembourgC-103/11 P, EU:C:2013:245, paras 56-68 and citations therein.See further Lenaerts, Maselis and Gutman (n 10) para 11.06.

[20] See text accompanying n 102.

[21]See, eg, Systran (n 19), para 60 and citations therein.

[22]Art 256(1) TFEU; Art 51 of the consolidated version of the Statute of the Court of Justice of the European Union, available at the CJEU website, http://curia.europa.eu (Statute).

[23]See further, eg, Lenaerts, Maselis and Gutman (n 10) ch 19.

[24] Art 256(1) TFEU; Statute (n 22), Art 51.

[25] Art 274 TFEU provides: ‘Save where jurisdiction is conferred on the Court of Justice of the European Union by the Treaties, disputes to 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.’

[26]Henry G. Schermers and Denis F. Waelbroeck, Judicial Protection in the European Union (6th edn, Kluwer 2001) para 1046.

[27]Ibid, para 1047.

[28] See generally, eg, Kathleen Gutman, The Constitutional Foundations of European Contract Law: A ComparativeAnalysis (Oxford University Press 2014) chs 1, 4-6 and citations therein. For recent activities, see the Commission’s website, http://ec.europa.eu/justice/contract/index_en.htm.

[29] See further Lenaerts, Maselis and Gutman (n 10) para 11.05.

[30] See, eg, Judgment of 10 September 2015, Missir Mamachi di Lusignano v Commission C-417/14 RX-II, EU:C:2015:588, paras 29-41.  In that case, the ECJ held that the EGC erred in ruling that a claim for compensation brought by family members resulting from the death of a deceased official fell within its jurisdiction and not that of the ECST:  ibid, paras 42-53.

[31] Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union [2015] OJ L341/14.

[32]Ibid, recital 9.

[33] Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants [2016] OJ L200/137; Amendments to the Rules of Procedure of the General Court [2016] OJ L217/73.

[34] Under a developing line of case law, a sufficiently serious breach (Part IV.A) is not required for claims in civil service cases: see, eg, Decision of 8 February 2011, Review of Judgment T-143/09 P Commission v PetrilliC-17/11 RX, EU:C:2011:55; Judgment of 12 July 2012, Commission v Nanopoulous T-308/10 P, EU:C:2012:370. See also Opinion of AG Cruz Villalón in Commission v Systran and Systran LuxembourgC-103/11 P, EU:2012:714, point 147 fn 55.

[35] See, eg, Sean Van Raepenbusch, ‘La convergence entre les régimes de responsabilité extracontractuelle de l’Union européenne et des États membres’ (2012) 12 ERA Forum 671, 680-681.

[36] See, eg, Judgment of 15 June 2000, Dorsch Consult v Council and Commission C-237/98 P, EU:C:2000:321, para 18 and citations therein; see also Judgment of 28 April 1998, Dorsch Consult v Council and Commission T-184/95, EU:T:21998:74, paras 76-79 (summarizing some previous judgments).

[37] Judgment of 14 December 2005, FIAMM and FIAMM Technologies v Council and Commission T-69/00, EU:T:2005:449; Judgment of 14 December 2005, Laboratoire du Bain v Council and Commission T-151/00, EU:T:2005:450; Judgment of 14 December 2005, CD Cartondruck v Council and Commission T-320/00, EU:T:2005:452; Judgment of 14 December 2005, Beamglow v European Parliament and Others T-383/00, EU:T:2005:453; Judgment of 14 December 2005, Fedon & Figli and Others v Council and Commission T-135/01, EU:T:2005:454. As these judgments are similar, only FIAMM is cited.

[38]FIAMM T-69/00 (n 37), paras 157-160.  Those requirements were not fulfilled: ibid, paras 202-214.

[39] Judgment of 9 September 2008, FIAMM and Others v Council and Commission C-120/06 P and C-121/06 P, EU:C:2008:476. For detailed discussion, see, eg, Marco Dani, ‘Remedying European Legal Pluralism: The FIAMM and Fedon Litigation and the Judicial Protection of International Trade Bystanders’ (2010) 21 EJIL 303; Anne Thies, ‘The Impact of General Principles of EC Law on its Liability Regime Towards Retaliation Victims after FIAMM’ (2009) 34 ELRev 889.

[40]FIAMM (n 39), para 179.

[41] Ibid, paras 176, 188.  The AG took the opposite view: Opinion of AG Poiares Maduro in FIAMM and Others v Council and Commission C-120/06 P and C-121/06 P, EU:C:2008:98, points 54-83.

[42] See, eg, Order of 11 September 2013, Melkveebedrijf Overenk and Others v Commission T-540/11, EU:T:2013: 492, point 12 (appeal dismissed in C-643/13 P); Judgment of 16 September 2013, ATC and Others v Commission T-333/10, EU:T:2013:451, paras 195-197; Judgment of 7 October 2015, Accorinti and Others v ECB T-79/13, EU:T:2015:756, paras 117-122. But compare, eg, Judgment of 6 May 2010, Comune di Napoli vCommission T-388/07, EU:T:2010:177, paras 184-189.

[43] See, eg, Judgment of 25 March 2010, Sviluppo Italia Basilicata v Commission C-414/08 P, EU:C:2010:165, paras 140-141 and Opinion of AG Trstenjak in Sviluppo Italia Basilicata v Commission C-414/08 P, EU:C:2009:677, points 236-237; Judgment of 14 October 2014, Buono and Others v Commission C-12/13 P and C-13/13 P, EU:C:2014:2284, paras 43-48 and Opinion of AG Cruz Villalón in Buono and Others v Commission C-12/13 P and C-13/13 P, EU:C:2014:194, points 61-74.  See also Opinion of AG Kokott in Gogos v CommissionC-583/08 P, EU:C:2010:118, point 68 fn 38.

[44] Judgment of 18 September 2014, Holcim (Romania) v Commission T-317/12, EU:T:2014:782.

[45]Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council [2004] OJ L386/1.

[46] See Holcim (n 44), paras 1-21.

[47] The applicant’s claim based on Union liability for unlawful conduct was also dismissed: ibid, paras 190, 226-227.

[48] Ibid, para 234.

[49] Ibid, para 235.

[50] Ibid, paras 236-239.

[51] Judgment of 7 April 2016, Holcim (Romania) v Commission C-556/14 P, EU:C:2016:207.

[52]Ibid, para 105.

[53]Ibid, paras 106-109.

[54] The case was decided without an AG Opinion. See Statute (n 22), Art 20, fifth para.

[55] See FIAMM (n 39), para 181.

[56] See Michiel Tjepkema, ‘Between Equity and Efficiency: the European Union’s No-Fault Liability’ (2013) 6 Review of European Administrative Law 7. With particular regard to the FIAMM litigation, see also Marco Bronckers and Sophie Goelen, ‘Financial Liability of the EU for Violations of WTO Law – A Legislative Proposal Benefiting Innocent Bystanders’ in Marise Cremona et al. (eds), Reflections on the Constitutionalisation of International Economic Law: Liber Amicorum for Ernst-Ulrich Petersmann (Nijhoff 2014) 173.

[57] Judgment of 16 December 2008, Masdar (UK) v Commission C-47/07 P, EU:C:2008:726. For detailed discussion, see, eg, the case note by Rebecca Williams (2010) 47 CMLRev 555. With particular regard to reconciling the Court’s judgments in Masdar and FIAMM, see Gutman (n 5) 740-747.

[58] Although unjust enrichment claims had arisen in other settings, this case was the first time that such a claim was brought on the basis of Articles 268 and 340, second para, TFEU: see further Hartley (n 9) 447-450.

[59]Masdar (n 57), para 49.

[60] Ibid, para 50.  As noted therein, the principle of effective judicial protection is enshrined in Article 47 of the Charter and generally pertains to matters concerning effective access to a court and effective judicial review at the European and national levels. See further, eg, Lenaerts, Maselis and Gutman (n 10) ch 4 and citations therein; Marek Safjan and Dominik Düsterhaus, ‘A Union of Effective Judicial Protection: Addressing a Multi-level Challenge through the Lens of Article 47 CFREU’ (2014) 33 YEL 3.

[61]Masdar (n 57), para 47.

[62] Ibid, paras 52-61. The EGC accepted that claims for unjust enrichment and negotiorum gestio could in principle be brought within the context of an action based on Union non-contractual liability, but held that they could not succeed under the factual and legal context of that case: Judgment of 16 November 2006, Masdar (UK) vCommission T-333/03, EU:T:2006:348, paras 91-104.

[63]Masdar (n 57), para 66.

[64] See, eg, Judgment of 11 December 2013, EMA v Commission T-116/11, EU:T:2013:634, paras 282-290 (appeal dismissed in C-100/14 P); Judgment of 6 October 2015, Technion and Technion Research & Development Foundationv Commission Case T-216/12, EU:T:2015:746, paras 103-105.

[65] This includes the Treaties of the European (Economic) Community (Arts 178 E(E)C and 215, second para, E(E)C, renumbered Arts 235 and 288, second para, EC by the Amsterdam Treaty), the European Atomic Energy Community (Arts 151 and 188, second para, EAEC) and the now-expired European Coal and Steel Community (Arts 34 and 40 ECSC).  In the consolidated version of the EAEC Treaty ([2016] OJ C203/1), Art 151 EAEC is repealed and replaced by Art 268 TFEU, but Art 188, second para, EAEC (which is virtually identical to Art 340, second para, TFEU) remains.

[66] Gutman (n 5) 698-703.

[67] Art 1, third para, TEU.

[68] There was a five-year provisional period, subject to certain exceptions, in respect of actions based on PJCCM acts adopted before the entry into force of the Lisbon Treaty, which expired on 1 December 2014. See Art 10 of Protocol (No 36), annexed to the TEU, TFEU and EAEC Treaty, on transitional provisions [2016] OJ C202/321; Declaration (No 50), annexed to the Lisbon Treaty, concerning Art 10 of the Protocol on transitional provisions [2016] OJ C202/354.

[69] Judgment of 27 February 2007, Gestoras Pro Amnistía and Others v CouncilC-354/04 P, EU:C:2007:115; Judgment of 27 February 2007, Segi and Others v Council C-355/04 P, EU:C:2007:116.

[70]Art 24(1), second subpara, TEU; Art 275, first para, TFEU.

[71]Art 24(1), second subpara, TEU; Art 275, second para, TFEU.

[72] See, eg, Judgment of 14 June 2016, European Parliament v Council C-263/14, EU:C:2016:435, para 42.

[73] See, eg, Judgment of 17 September 2015, Petro Suisse Intertrade v Council T-156/13, EU:T:2015:646, paras 42-43.  Incidentally, the issue of an indirect route of legality control, ie, preliminary rulings on validity, in respect of such restrictive measures is the subject of pending case, Rosneft Oil C-72/15; AG Wathelet’s Opinion supports such a reading: see Opinion of AG Wathelet in Rosneft Oil C-72/15, EU:C:2016:381, points 36-93.

[74] See, eg, Judgment of 18 February 2016, Jannatian v Council T-328/14, EU:T:2016:86, paras 1-9, 30-33.

[75] Opinion 2/13 of 18 December 2014, EU:C:2014:2454.

[76]Ibid, paras 249-258. The ECJ concluded that such arrangement entrusting the judicial review of certain CFSP acts exclusively to a court falling outside the EU framework fails to have regard to the specific characteristics of EU law in the CFSP and along with other problems is not compatible with the Treaties.  See further, eg, Paloma Plaza Garcia, ‘Accession of the EU to the ECHR: issues raised with regard to EU acts on CFSP matters’ (2015) 16 ERA Forum 481.

[77] See Opinion 2/13 (n 75), paras 99-100. Compare ibid, para 133.

[78] Ibid, para 251.

[79]Ibid, para 252.

[80] View of AG Kokott in Opinion 2/13, EU:C:2014:2475, points 86-95. She considered that such a broad interpretation was not necessary for ensuring effective judicial protection in the CFSP: see ibid, points 96-103.

[81] Ibid, points 92-93.

[82] Ibid, point 90.  For further discussion of the genesis of the Convention on the future of Europe, also referred to as the European Convention, and the preparation of the draft Treaty establishing a Constitution for Europe, see, eg, Koen Lenaerts and Piet Van Nuffel (Robert Bray and Nathan Cambien (eds), European Union Law (3rd edn, Sweet & Maxwell 2011) paras 4.001-4.002.

[83] See View of AG Kokott in Opinion 2/13, n 80, point 90 fn 51.

[84] Secretariat of the European Convention, Supplementary report on the question of judicial control relating to the common foreign and security policy, CONV 689/1/03 of 16 April 2003, Annex: Working Document 10 Judicial control relating to the common foreign and security policy, point 3, second indent.

[85] Secretariat of the European Convention, Articles on the Court of Justice and the High Court, CONV 734/03 of 12 May 2003, proposed Article 240a.

[86] See, eg, Judgment of 24 June 2014, European Parliament v Council C-658/11, EU:C:2014:2025, paras 69-74; Judgment of 12 November 2015, Elitaliana v Eulex Kosovo C-439/13 P, EU:C:2015:753, paras 41-50.

[87] Judgment of 19 July 2016, H v Council and Others C-455/14 P, EU:C:2016:569.

[88] Order of 22 July 2010, H v Council and Commission T-271/10 R, EU:T:2010:315, paras 1-7.

[89]Ibid, para 8.

[90] Order of 10 July 2014, H v Council and Others T-271/10, EU:T:2014:702.

[91]H (n 87), paras 60-62. The AG took the opposite view: Opinion of AG Wahl in H v Council and Others C-455/14 P, EU:C:2016:212. The ECJ concluded that the contested decisions were imputable to the Council and referred to the case back to the EGC for judgment; it dismissed the case as inadmissible as far as it was directed against the Commission and the EUPM: H (n 87), paras 63-71.

[92]H (n 87), paras 42-43.

[93] Ibid, para 54.

[94]Ibid, para 55.  This was supported by additional considerations: see ibid, paras 56-57.

[95] See ibid, paras 40-41.

[96]Ibid, para 58.  Regarding the principle of effective judicial protection, see n 60.

[97]Lenaerts, Maselis and Gutman (n 10) para 11.19.  See, eg, Judgment of 26 January 2006, Medici Grimm vCouncil T-364/03, EU:T:2006:28, para 47; Judgment of 15 January 2015, Ziegler and Ziegler Relocationv Commission T- 539/12 and T-150/13, EU:T:2015:15, paras 51-57.  See also n 148.

[98] Ex Art 7(1) EC listed the European Parliament, Council, Commission, Court of Justice and Court of Auditors.

[99]Lenaerts, Maselis and Gutman (n 10) para 11.20.

[100] Art 13(1) TEU lists the European Parliament, European Council, Council, Commission, CJEU, Court of Auditors and European Central Bank (ECB).

[101] Order of 17 December 2003, Krikorian and Others v European Parliament and Others T-346/03, EU:T:2003:348, para 17 (appeal dismissed in C-18/04 P).

[102] The conditions governing Union non-contractual liability apply mutatis mutandis to the ECB:  see, eg, Accorinti (n 42), para 65.

[103]Eg, Arts 263, 265 and 267 TFEU.

[104] See Opinion of AG Jääskinen in United Kingdom v Council C-270/12, EU:C:2013:562, point 73.

[105] See Lenaerts, Maselis and Gutman (n 10) para 11.20. See, eg, Judgment of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO T-556/11, EU:T:2016:248, para 264 (appeals pending in C-376/16 P, C-379/16 P).

[106] Judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB C-8/15 P to C-10/15 P, EU:C:2016:701.

[107]Ibid, paras 14-25.

[108]Ibid, paras 2-9.  See further the Commission’s website, http://ec.europa.eu/economy_finance/index_en.htm.

[109] Order of 10 November 2014, Ledra Advertising v Commission and ECB T-289/13, EU:T:2014:981, paras 43-47; Order of 10 November 2014, Eleftheriou and Papachristofi v Commission and ECB T-291/13, EU:T:2014:978, paras 43-47; Order of 10 November 2014, Theophilou v Commission and ECB T-293/13, EU:T:2014:979, paras 43-47.

[110]Ledra Advertising (n 106), paras 60-61.  The AG took a different view, though stressing that the ESM framework was not a ‘legal vacuum’ and envisioning circumstances in which an action for damages was conceivable: see Opinion of AG Wahl in Ledra Advertising and Others v Commission and ECB C-8/15 P to C-10/15 P, EU:C:2016:290, points 93-107.

[111]Ledra Advertising (n 106), paras 52-54.

[112] Ibid, para 55.

[113] Ibid, paras 56-57.

[114] Ibid, paras 58-59.

[115] Ibid, paras 62-76.  The ECJ held that Article 17(1) of the Charter, concerning the fundamental right to property, is a rule of law intended to confer rights on individuals, but that the Commission did not contribute to a sufficiently serious breach of that provision (see further Part IV).  In doing so, the ECJ declared that while the Member States do not implement EU law in the context of the ESM Treaty so that the Charter is not addressed to them in that context, the Charter is addressed to the EU institutions, including when they act outside the EU legal framework. Thus, in the context of the adoption of a MoU such as that at issue in the proceedings, the Commission is bound to ensure that it is consistent with the fundamental rights enshrined in the Charter. Ibid, para 67.

[116]See, in this regard, Alexander Kornezov, ‘Social Rights, the Charter and the ECHR – Caveats, Austerity and Other Disasters’, in Frank Vandenbroucke, Catherine Barnard and Geert De Baere (eds), A European Social Union after the Crisis (Cambridge University Press forthcoming 2016).

[117] Art 6(1), first subpara, TEU.

[118] See Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/17, Explanation on Article 41 – Right to good administration, second para: ‘Paragraph 3 reproduces the right now guaranteed by Article 340’ TFEU; Art 51(2) Charter (n 7); Declaration (No 1), annexed to the Lisbon Treaty, concerning the Charter of Fundamental Rights of the European Union [2016] OJ C202/337. See also, eg, Paul Craig, ‘Article 41 – Right to Good Administration’ in Steve Peers et al. (eds), The EU Charter of Fundamental Rights: A Commentary (Hart 2014) paras 41.18-41.19.

[119] See, eg, Aalto (n 4) 125. For an example, see Judgment of 16 December 2015, Chart v EEAS T-138/14, EU:T:2015:981, para 111.

[120] See further, eg, Jill Wakefield, ‘The changes in liability of EU institutions: Bergaderm, FIAMM and Schneider’ (2012) 12 ERA Forum 625; citations in ns 9, 121-122.

[121] Angela Ward, ‘Damages under the EU Charter of Fundamental Rights’ (2012) 12 ERA Forum 589, 590.

[122] See further, eg, Pekka Aalto, ‘Article 47 – Right to an Effective Remedy and to a Fair Trial – V. Damages for Breach of the Charter’ in The EU Charter of Fundamental Rights: A Commentary (n 118) 1235; Ward (n 121).

[123] Gutman (n 5) 710-712.  As noted therein, these two sets of requirements are interlinked.

[124] See Lenaerts, Maselis and Gutman (n 10) para 11.33.

[125] Statute (n 22), Art 21; consolidated version of the Rules of Procedure of the General Court, available at the CJEU website (n 22), Art 76(d).

[126]Statute (n 22), Art 46. As made clear by recent case law, it is not the same thing as a procedural time limit under EU law: see Judgment of 8 November 2012, Evropaïki Dynamiki v Commission C-469/11 P, EU:C:2012:705 paras 48-59.

[127]See, eg, FIAMM (n 39), para 106; Ledra Advertising (n 106), para 64 and citations therein.

[128]Bergaderm (n 3), paras 41-42, 62.

[129] See, eg, Judgment of 20 July 2016, Oikonomopoulous v Commission T-483/13, EU:C:2016:421, para 26 and citations therein.

[130] See, eg, Judgment of 14 October 2014, Giordano v Commission C-611/12 P, EU:C:2014:2282, para 44 and citations therein.

[131] For detailed surveys, see, eg, Aalto (n 4) ch 5; Biondi and Farley (n 11) ch 3; Ton Heukels and Alison McDonnell (eds), The Action for Damages in Community Law (Kluwer 1997); citations in ns 9-10.

[132]Bergaderm (n 3), paras 43-44.

[133] See, eg, ibid, paras 46-47; Judgment of 10 July 2003, Commission v Fresh Marine C-472/00 P, EU:C:2013:399, para 27; Judgment of 19 April 2007, Holcim (Deutschland) v Commission C-282/05 P, EU:C:2007:226, para 48. For a critical analysis, see, eg, Jill Wakefield, ‘Retrench and Reform: The Action for Damages’ (2009) 29 YEL 390.

[134] See, eg, Judgment of 23 November 2011, Sison v Council T-341/07, EU:T:2011:687, paras 36-40 and citations therein; ATC(n 42), para 63; Jannatian(n 74), paras 44-46.

[135]Lenaerts, Maselis and Gutman (n 10) para 11.45.

[136] Judgment of 26 November 2013, Gascogne Sack Deutschland v Commission C-40/12 P, EU:C:2013:768.

[137] Judgment of 26 November 2013, Kendrion v Commission C-50/12 P, EU:C:2013:771.

[138] Judgment of 26 November 2013 Group Gascogne v Commission C-58/12 P, EU:C:2013:770.

[139] Art 47, second para, Charter (n 7) states in relevant part: ‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previous established by law.’

[140]Gascogne Sack (n 136), para 89; Kendrion (n 137), para 94; Group Gascogne (n 138), para 83. See also Opinion of AG Sharpston in Groupe Gascogne C-58/12 P, EU:C:2013:360, points 3, 70-150.  For further discussion, see, eg, Tom Jenkins and Gavin Bushell, ‘Justice Denied or Simply Delayed?Consequences of Excessive Delay at the EU’s General Court’ (2015) 6 Journal of European Competition Law & Practice 3; Safjan and Düsterhaus (n 60) 29-31.

[141]Gascogne Sack (n 136), paras 86-88; Kendrion (n 137), paras 91-93; Group Gascogne (n 138), paras 80-82.

[142]Gascogne Sack (n 136), paras 90, 96; Kendrion (n 137), paras 95, 101; Group Gascogne (n 138), paras 84, 90.

[143] Gascogne Sack (n136), paras 91-93; Kendrion (n 137), paras 96-98; Group Gascogne (n 138), paras 85-87.

[144]Gascogne Sack (n 136), paras 94-95; Kendrion (n 137), paras 99-100; Group Gascogne (n 138), paras 88-89.

[145]Gascogne Sack (n 136), paras 97-102; Kendrion (n 137), paras 102-106; Group Gascogne (n 138), paras 91-96.

[146] See, eg, Opinion of AG Wathelet in Guardian Industries and Guardian Europe v Commission C-580/12 P, EU:C:2014:272, points 110-129.

[147] See, eg, Judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission C-580/12 P, EU:C:2014:2363, paras 17-21; Judgment of 9 June 2016, CEPSA v Commission C-608/13 P, EU:C:2016:414, paras 64-69 and citations therein; Judgment of 9 June 2016, PROAS v Commission C-616/13 P, EU:C:2016:415, paras 81-85; Judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission C-617/13 P, EU:C:2016:416, paras 98-102.

[148] See, eg, pending case, Kendrion v EU T-479/14; pending case, Gascogne Sack Deutschland and Gascogne v EU T-577/14; pending case, Aalberts Industries v EU T-725/14. Of note, the CJEU argued that the actions concerned should have been brought against the EU as represented by the Commission, not the CJEU, which was rejected by the EGC: see, eg, Order of 6 January 2015, Kendrion v EU T-479/14, EU:T:2015:2  (appeal in C-71/15 P removed from register); Order of 2 February 2015, Gascogne Sack Deutschland and Gascogne v EU T-577/14, EU:T:2015:80 (appeal in C-125/15 P removed from register); Order of 13 February 2015, Aalberts Industries v EU T-725/14, EU:T:2015:107 (appeal in C-132/15 P removed from register).

[149] See, eg, Judgment of 29 April 2015, Staelen v European Ombudsman T-217/11, EU:C:T:2015:238, para 73 and citations therein (appeal pending in C-337/15 P; appeal dismissed in C-338/15 P).

[150] Judgment of 13 March 1992, Vreugdenhil v Commission C-282/90 EU:C:1992:124, paras 20-25; see also Opinion of AG Darmon in Vreugdenhil v Commission C-282/90 EU:C:1992:12, points 57-59.

[151] Judgment of 19 April 2012, Artegodan v Commission C-221/10 P, EU:C:2012:216.

[152]Ibid, para 17.

[153]Ibid, paras 16, 28.

[154] Judgment of 3 March 2010, Artegodan v Commission T-429/05, EU:T:2010:60, paras 71-78.

[155]Artegodan (n 151), para 82.

[156]Ibid, paras 81, 96. As that case was decided in 1992, the Court referred to the pre-Bergaderm formula on which the requirement is based. See further Lenaerts, Maselis and Gutman (n 10) paras 11.48-11.50.

[157] See Opinion of AG Bot in Artegodan v Commission C-221/10 P, EU:C:2011:744, points 40-43.

[158] Ibid, point 44.

[159]Artegodan (n 151), paras 108-111.

[160]Opinion of AG Bot in Artegodan (n 157), points 54, 109.

[161] See, eg, Judgment of 9 November 2006, Agraz and Others v Commission C-243/05 P, EU:C:2006:708, para 27 and citations therein.

[162]Giordano (n 130).

[163]Buono (n 43).

[164]The EGC held the action inadmissible in respect of the applicant trade union on standing grounds:Judgment of 7 November 2012, Syndicat des thoniers méditerranéens (STM) and Others v Commission T-574/08, EU:T:2012:583, paras 20-30. On appeal, the ECJ upheld the dismissal, albeit on different grounds relating to the failure to satisfy the procedural rules on the specificity and content of the pleadings:Buono (n 43), paras 33-39.

[165] Judgment of 7 November 2012, Giordano v Commission T-114/11, EU:T:2012:585, paras 17-20; STM (n 164), paras 61-64.

[166]Giordano (n 130), paras 21-22; STM (n 164), paras 65-66.  In the latter case, the applicants’ claim based on Union strict liability was also dismissed: STM (n 164), paras 67-88 (upheld on appeal: see n 43).

[167]Giordano (n 130).

[168] Ibid, paras 37-39, 41.

[169] Ibid, para 40.

[170]Agraz (n 161), para 36.

[171]Giordano (n 129), para 40.

[172] Ibid, paras 42-54.

[173]Buono (n 43).

[174] Ibid, paras 55-63.

[175]Ibid, paras 68-70.

[176] Opinion of AG Cruz Villalón in Giordano v Commission C-611/12 P, EU:C:2014:195, points 86-104; Opinion of AG Cruz Villalón in Buono(n 43), points 54-56, 79-95, 98 (also considering that the claim based on Union strict liability should be dismissed: points 74-75).

[177]Opinion of AG Cruz Villalón in Giordano (n 176), points 2-3, 38-69.

[178] Ibid, points 44-48

[179] Ibid, points 49-61.

[180] Ibid, points 62-68.

[181]Ibid, points 69-81, 97-100; Opinion of AG Cruz Villalón in Buono (n 43), points 90-93.

[182]European Dynamics Luxembourg(n 105). See also, eg, Judgment of 7 October 2015, European DynamicsLuxembourg and Others v OHIM T-299/11, EU:T:2015:757, paras 137, 144-157 (appeal pending in C-677/15 P).

[183]European Dynamics Luxembourg (n 105), para 262.  Regarding this area of the case law, see further, eg, Opinion of AG Cruz Villalón in Giordano (n 176), points 55-56; Saulius Lukas Kaleda, ‘Claims for damages in EU procurement and effective protection of individual rights’ (2014) 39 ELRev 193.

[184]European Dynamics Luxembourg (n 105), para 270. In doing so, the EGC stressed the particular circumstances of the proceedings and the principle of effective judicial protection: see ibid, paras 271-282.

[185] See, eg, Judgment of 26 September 2014, Flying Holding and Others v Commission T-91/12 and T-280/12, EU:T:2014:832, para 118 and citations therein.

[186] See, eg, van Dam (n 18) 321; Wakefield (n 120) 627.

[187] Judgment of 5 June 2014, Kone and Others C-557/12, EU:C:2014:1317. For detailed discussion, see, eg, Niamh Dunne, ‘It never rains but it pours? Liability for “umbrella effects” under EU competition law in Kone’ (2014) 51 CMLRev 1813; Ioannis Lianos, ‘Causal Uncertainty and Damages Claims for the Infringement of Competition Law in Europe’ (2015) 34 YEL 170;Jules Stuyck, ‘Damages for the Loss Caused by a Cartel: The Causal Link’ (2015) 23 ERPL 459.

[188]Kone (n 187), paras 20-26. See further, eg, Kathleen Gutman, ‘Liability for breach of EU law by the Union, Member States and individuals: damages, enforcement and effective judicial protection’ in Adam Łazowski and Steven Blockmans (eds), Research Handbook on EU Institutional Law (Edward Elgar 2016) 441 and citations therein.

[189] Opinion of AG Kokott in Kone and Others C-557/12, EU:C:2014:45, points 1-4.

[190]Kone (n 187), paras 32-37.

[191]Opinion of AG Kokott in Kone (n 189), points 31-40.

[192] Ibid, point 34.

[193] Ibid, point 35. In an accompanying footnote, she referred to a provision of the Draft Common Frame of Reference to support her point: see ibid, point 35 fn 24. For further discussion of the use of this and other comparative European private law materials in the case law, see, eg, Gutman (n 28) 84-91 and citations therein. With particular regard to the action for damages, see also Gutman (n 5) 747-749.

[194]Opinion of AG Kokott in Kone (n 189), points 36-37.

[195] Ibid, point 40. She fleshed this out further in respect of the issues raised in the proceedings: ibid, points 41-83.

[196]See, eg,Court of Justice of the European Union, Annual Report 2015 – Judicial Activity (Publications Office of the European Union 2016), available at the CJEU website, n 22.

Hristo Kirilov

Реферандер в Общия съд на Европейския съюз.