Non-contractual liability , 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 liability art. 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