liability of EU institutions

Question 1

treaty framework and jurisdiction- for accountability

Answer 1

-article 340 (2) TFEU- governs the liability of the EU institutions
(non contractual liability but goverened by general principles according to the member states)
- the member states shall make good any damage by its institutions or by its servants in the perfromacnce of their duties
-CJEU develops regulations for this issue

-provision governing the liability of EU institutions sets out what would be described as a system of tort liability for acts carried out by EU institutions that cause damage to individuals (a set of rules meaning that the EU institutions pay damages under certain conditions)- illegality, causation, breach

Question 2

regulations for this

Answer 2

-responsibility of a coherent and detailed body of regulations by European Court system (the general court and on appeal the court of justice)
-confirmation that the CJEU has jurisdiction over article 340 as a whole comes from article 268 TFEU
-initial jurisdiction over these claims in the general courts comes from article 256(1)
-possibility of an appeal from the general court to the court of justice on a point of law only- article 256(1) TFEU

Question 3

procedural issues with this topic

Answer 3

1. doesnt define the term ‘institutions’- Etroy has made it clear that this does not simply refer to the EU institutions but also any agency acting under EU law
2. no particular standing rules under art 263
3. article 46 of the statute of court of justice established a five year limitation period for liability claims
   (limitation period does not begin until all the elements of liability have crystalized including materialization of the damage- Birra)
   -article 263 (JR) has limit of 2 years, these are parallell claims procedures, so could potentially use article 340 after 2 years
   -2 procedures have different purposes so different time limits, JR- annulment, art 340- compensation for damage
   -krohn- case against general principle where the illegal act generates damages remedy and which would result in the original act being cancelled out (e.g claiming damages for withholding money would compensate and cancell out the act of withholding) (must bring these cases in JR) Cobrecaf SA v Commission

Question 4

Pre- Bergaderm case law

Answer 4

• European court developed principles on the bases of general principles common to member states
  -overtime case law has changed from one principle to another (a reversal of development)
  -bergadem principles- etablished current framework principles

-prior Bergaderm principles made a distinction between administrative and legislative measures
-legislative- general application (regulations, directives or decisions provided they were in practise of general application)
-schoppenstedt principle (for legislative) applied in cases of legislative action involving measures of economic policy
-above principle- no liability unless the illegality involved a sufficiently serious breach of a superior rule of law for the protection of the individual
-ibid- in cases where the adoption of the legislative act involved discretion there has to be manifest and grave disregard of the limits of the discretionary power before liability was engaged- Mulder case (successfull case)

-administrative acts- those of an individualized nature (illegality could give rise of liability provided there was damage and a causal link between the illegality and the damage)

Question 5

current legal framework- Bergaderm

Answer 5

criticisms of previous principles-
- schoppenstedt rule is too restirctive
- the regime on liability for administrative acts was considered too simple (illegality once proven would give rise to liability)- didnt way the interests of individuals and the public effectively
-considerd out of line with the case law on state liability of EU law
(because of these criticisms a new set of rules were created)

bergaderm principles-
-where an EU institution has acted illegally, its liability will be engaged towards individuals provided 3 conditions are satisfied -
1. the rule of law infringed must be intended to confer rights on individuals
2. the breach must be sufficiently serious (depends on power being discretionary or not)
-discretionary- manifestly and gravely disregarded the limits of its discretion-
-less scope for discretion- a mere breach of law may be considerd sufficiently serious
3. there must be a direct causal link between the breach and the damage sustained
- examples of case applying above- Camar (discretionary powers, and manifestly and gravely disregarded)
-Fresh Marine- sufficienlty serious breach

Question 6

criticisms of bergaderm

Answer 6

craig- the discretionary powers area places a dual burden on litigants-
- they must prove both illegality and the fact that the individual suffered a particular harm as a result of the behaviour (the breach was sufficiently serious)
(usually systems of state liability trigger liability where either of the conditions are met)

Hilson- post Bergaderm case law is too uncertain as to whether a power is to be classed as discretionary or not in nature (prior principles with distinction creates more certainty)
Hilson argues would be appropriate to return to prior distinction principle when applying different standards of review on the grounds of legal certainty