Descripción general del proceso

General

The Community is an entity which has legal personality. As such, its activities are capable of having civil, as well as administrative and constitutional, implications, which could engage the liability of the Community. This means that the Community could be faced with court actions seeking a private law remedy for any erroneous actions which it may have engaged in, which in the vast majority of cases takes the form of civil damages or compensation. Under this heading, the Community could be faced with two types of action: actions in contract and actions in tort. The first-named are dealt with by Article 288 (ex Art 215) EC Treaty, which provides that contracts involving the Community are governed by the law which applies to the contract concerned.⁵⁵ In the vast majority of cases, contracts to which the Community, or one of its institutions, is a party contain a clause indicating which law of contract applies, usually the provisions of the Belgian Civil Code, as well as the court before which any disputes arising from the contract will be settled (which is never the ECJ). The

53 Cases 31 and 33/62, Milchwerke Wöhrmann v Commission [1962] ECR 501 at 507.

54 See, eg, Case 156/77 Commission v Belgium [1978] ECR 1881.

55 The European Central Bank is subject to specific rules regarding the contracts in which it is involved, which are laid down in Article 35.3 of its Statute.

actions in tort in which the Community can be involved, however, present greater difficulties and challenges, which are examined below.

Tort liability: basic principles

The fundamental rules governing the Community tort liability is the second paragraph of Article 288 (ex Art 215) EC Treaty, which states:

In the case of non-contractual liability, the Community 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.

The third paragraph makes the same principles applicable to any damage caused by the European Central Bank or by its officials. This provision must be supplemented by Article 235 (ex Art 178) EC Treaty, which lays down that it is the ECJ which has jurisdiction in disputes arising from Community liability. As with other judicial remedies at Community law, it is necessary to make a distinction between the admissibility criteria and the substantive grounds on which the action can be awarded. These aspects form the subject matter of the next two sections.

Tort liability: admissibility criteria

In the first instance, it is necessary to establish who has locus standi, ie who has the right to bring the action. It is generally recognised that there are hardly any restrictions which apply here: any natural or legal person may bring an action in tort against the Community, on condition that he or she can make out a prima facie case that he or she has suffered damage through the actions or omissions on the part of a Community institution or one of its officials. However, it is necessary that the applicant him or herself has suffered the damage. Any actions brought by a trade union or staff association on behalf of its members would be held to be inadmissible.⁵⁶

As to the party against whom the action may be brought, the Court has ruled that this can only be the Community as represented by the institution accused of having committed the tortious action, rather than the Community as a whole.⁵⁷ This is in spite of the ECJ ruling in Algera,⁵⁸ which held that only the Community, and not its institutions, possesses legal capacity. It has been suggested that, since the Commission represents the legal persona of the Community, every action in tort should be brought against it, regardless of the institution to which the damage is attributed. This view was not shared by the

56 Constantinho and Dony, 1995, p 103.

57 Cases 63–69/72, Werhahn Hansamühle v Council [1973] ECR 1229 at 1247.

58 Cases 7/56 and 3–7/57, Algera v Common Assembly of the ECSC [1957–58] ECR 39.

Court⁵⁹ in the interests of the proper administration of justice. As for the time limit in which the action can be brought, this is set at five years as from the occurrence of the event which gave rise to the action (Article 43 of the Statute of the Court of Justice).

The CFI has also ruled that only an act of the Community institutions or an act of Community servants acting in the performance of their duties is capable of giving rise to Community liability.⁶⁰ The latter could not be held liable for any loss resulting from an instrument of primary Community law such as the Single European Act, which was not an act emanating from the institutions but an international treaty adopted and approved by the Member States.

Accordingly, the Community was not legally liable for the consequences which the completion of the single market, and the resulting abolition of customs frontiers between Member States, had entailed for customs agents. This decision is particularly important in view of the foreseeable consequences which the introduction of the euro will have for certain types of work in the banking and finance sectors.⁶¹

Tort liability: grounds on which the action may be awarded

Article 288 (ex Art 215) EC Treaty requires the ECJ to settle claims for damages on the basis of the principles of tort liability which are common to the Member States. However, the formative years of the Court’s case law in this regard covered the first 15 years of the operation of the Community, when the latter consisted of six Member States, five of whom applied civil law systems based on the French model. It is therefore the case law of the ECJ has been shaped largely by the French law of torts.⁶² Particularly the formula of Article 1382 of the French Code Civil has dominated the approach of the ECJ on this issue. This is a very general statement of liability, which requires that anyone who, through his or her own fault, has caused damage to another person is under an obligation to repair such damage. Three elements must therefore be established:

(a) the occurrence of damage; (b) the commission of a fault on the part of the defendant; and (c) the causal relationship between (a) and (b). This was confirmed by the ECJ.⁶³

59 Cases 63–69/72, Werhahn Hansamühle v Council [1973] ECR 1229 at 1246.

60 Case T-113/96, Edouard Dubois et Fils v Council and Commission [1998] ECR II-125.

61 General Report 1998, pp 393–94.

62 For a general introduction to these rules, see Cairns and McKeon, 1995, Chapter 5.

63 Case C-358/90, Compagnia Italiana Alcool v Commission [1992] ECR 2457.

Occurrence of damage

In principle, the actionable damage is restricted to economic loss, taking into account both the loss actually incurred (damnum emergens) and any loss of earnings (lucrum cessans).⁶⁴ All that is required is that the damage be certain, real and provable. In some cases, however, the ECJ has hinted that immaterial loss cannot be excluded from the scope of Article 288 (ex Art 215), second paragraph, EC Treaty.⁶⁵The amount of the loss is to be assessed in accordance with the general principles of law as they apply in the systems of the Member States.⁶⁶

Commission of fault

Here, it is necessary to demonstrate both that a certain duty was owed to the applicant, and that the duty was breached. Both these elements were found to be present in the Stanley Adams decision.⁶⁷ In this case, the plaintiff was an employee of a Swiss pharmaceuticals firm who surreptitiously communicated to the Commission documents which proved conclusively that his employer had breached Community competition law. The Commission communicated the relevant documents to the firm (Hoffmann-LaRoche), in spite of Mr Adams’s request to keep his identity confidential. This allowed the firm to conclude that the information in question had emanated from Mr Adams, causing him to be charged with economic espionage. The Court held that there was indeed a duty of confidentiality on the part of the Commission, given that Article 287 (ex Art 214) EC Treaty requires Community officials not to disclose any information covered by the obligation of professional secrecy. Since the Commission must have been aware of the risk involved in handing over photocopies of the relevant documents to the Swiss firm, it must also have breached this duty.⁶⁸

The Community institutions are sometimes required to make difficult policy choices when enacting their rules. These choices have been known to be mistaken, and to cause damage to individuals. Do such mistakes engage the liability of the Community? The Court has, on the whole, been disinclined to reply in the affirmative, and has set extremely stringent conditions for allowing such actions to succeed. In Schöppenstedt,⁶⁹ the act complained of was a regulation laying down the measures which were required in order to offset the difference between national sugar prices and Community reference prices which applied as from a certain date (1 July 1968). The applicant complained

64 Cases 5, 7 and 13–24/66, Kampffmeyer et al v Commission [1967] ECR 245 at 266.

65 Case 145/83, Adams v Commission [1985] ECR 3539 at 3556.

66 Cases 261 and 262/78, Interquell Stärke-Chemie v Council and Commission [1979] ECR 3045.

67 Case 145/83, Adams v Commission [1985] ECR 3539.

68 Ibid, at 3590.

69 Case 5/71, Zuckerfabrik Schöppenstedt v Council [1971] ECR 975.

that this regulation had been based on criteria which ran counter to those which should have been applied under Article 34(3) (ex Art 40(3)) EC Treaty. This had caused a mistaken assessment of the difference between the reference price and the former German price of raw sugar, causing the plaintiff to incur severe losses. The action was dismissed by the ECJ because the plaintiff’s case did not meet the criteria which, according to the Court, must be satisfied if legislative action involving measures of economic policy is to give rise to tort liability. In what has now become known as the ‘Schöppenstedt formula’, the Court ruled that an action brought on these grounds will not succeed:

... unless a sufficiently flagrant violation of a superior rule of law for the protection of the individual has occurred.⁷⁰

This criterion is extremely difficult to meet, and most actions in tort brought in respect of such economic policy choices have foundered,⁷¹ although the odd action has been known to succeed.⁷² It is not difficult to see why the ECJ has been very strict in such matters, since policy-making would become an almost impossible task for the Community institutions if they were hampered in this task by constant considerations of tort liability.

Yet there are occasions when the EU judiciary has been criticised for being too protective of its institutions. This was the case when the CFI gave its ruling in the action brought by a consortium of Italian farmers against the EU authorities over their handling of the outbreak of bovine spongiform encephalopathy (BSE).⁷³ The applicants had claimed that the Commission and Council had been slow to act against the epidemic, and were thus liable for the crisis affecting the beef industry. The Court ruled that not only the Community institutions, but also the Member States had acted with sufficient speed and urgency. This was not a view universally shared by specialists in this area.

Causal link between fault and damage

The applicant must establish a direct link between the action complained of and the damage which he or she claims to have incurred. Therefore the remoteness and speculative nature of the causal link will be factors which limit the plaintiff’s chances of success. In Pool v Council,⁷⁴ an English cattle farmer claimed that the conversion rates of the Pound Sterling in the agricultural sector

70 Case 5/71, Zuckerfabrik Schöppenstedt v Council [1971] ECR 975 at 984.

71 Case 83/76, Bayerische HNL Vermehrungsbetriebe v Council [1978] ECR 1209; Case 143/77, Koninklijke Scholten-Honig v Council and Commission [1979] ECR 3583.

72 Cases C-104/89 and C-37/90, Mulder et al v Commission [1992] ECR 2337.

73 Case T-149/96, Confederazione Nazionale Coltivatori Diretti and Others v Council and Commission [1998] ECR II-3841.

74 Case 49/79 [1980] ECR 569.

(the so called ‘green rates’) had caused him damage. The Court dismissed his claim, on the grounds that the unrealistic and speculative nature of his claims made it impossible to establish a causal link.⁷⁵

75 Case 49/79 [1980] ECR 569 at 581–82.

I Introduction

EU law is aimed principally at the individual, who is encouraged to enforce it and rely upon it before his or her national courts. However, to have allowed the latter to interpret and apply Community law independently of each other or of any other judicial authority would soon have led to a sizeable body of widely divergent case law. It is in order to avoid this contingency that the domestic courts were given the opportunity to call upon the assistance of the ECJ whenever they were faced with issues of EU law. This will ensure that the domestic courts will apply the necessary degree of unity when dealing with such questions.

The provision which regulates this judicial co-operation between the national and the European judiciary is Article 234 (ex Art 177) EC Treaty, which reads:

The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of this Treaty;

(b) the validity and interpretation of acts of the institutions of the Community and the ECB;

(c) the interpretation of the statutes and bodies established by an act of the council, where those statutes so provide.

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.

The issues and questions which arise from this procedure are many and complex. They can be summarised as follows:

(a) What is actually meant by a ‘court or tribunal’ for the purpose of this procedure?

(b) What is the place of the national law, national courts and national procedures in the preliminary rulings procedure?