The liability of the EU in damage for delayed EU courts proceedings in antitrust cases -

Presentation on theme: "The liability of the EU in damage for delayed EU courts proceedings in antitrust cases"— Presentation transcript:

Slide1

The liability of the EU in damage for delayed EU courts proceedings in antitrust cases

Assistant professor TUNJICA PETRAŠEVIĆ, PhDJean Monnet professorFaculty of Law, J.J. Strossmayer University of Osijektpetrase@pravos.hr

obligation to cover the damage caused to member states and individuals, on behalf of the institution that caused it

Contractual vs. non-contractualThe aim of this paper is to discuss the non-contractual liability of the EU in damage for delayed EU courts proceedings with the special reference to antitrust cases

Structure of paper:

IntroductionLiability of the EU in damage (in general)Liability of EU courts

Case study

Concluding remarks

2.

Non-Contractual Liability for Damagecontractual v. non-contractualsubject of our interest is non-contractual liability, as stipulated under Article 340(2):

‘’

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

’’

.

answer

s to the following questions: who has active legal standing (locus standi) to bring an action? - member states and natural and legal persons

who is the action brought against

?

– EU i.e. Institution

within what time limit

?

– 5

years

(Art. 46 Statute)

what constitutes a claim

?

– damage (unlawful conduct or faulure to act)

which court is the action brought before

?

– GC for individuals and CJ for Ms

what are the conditions of liability for damage

, (

lllegal conduct, damage, causal link)

interrelation of this action and actions for annulment and actions for failure to act

?

–

an

independent

action

the key question is that of

discretion enjoyed by the respective/liable institutionreduced discretion or none at all = the very violation of the EU law can suffice for determining the existence of a sufficiently flagrant violation. Where the body did have discretion, the decisive factor is whether the EU institution

manifestly and gravely disregarded the limits of its discretion

Key to determining liability of the Union, regardless of whether discretion was enjoyed or not, is the existence of the criterion of “

a sufficiently flagrant violation

’’

3. Liability of the EU for damage made by EU courts

The question is: is it possible possibility to incur liability of the EU for the breaches made by EU judiciary? In order to answer that question we will refer to case Köbler where the CJEU ruled that a member states could be held liable for the acts of its judiciary. In case Köbler

the CJEU established certain criteria for liability of member states.

The question is: does the same criteria applies for the liability of the European courts?

An earlier prevalent understanding of the Court was that it was possible to ask for a damage in appellate procedure before Court of Justice against the judgment of a lower court

(i.e. general Court)The position adopted by the Court today is that it involves an independent action and now it is necessary to initiate an independent action in damage. In 2014 has been noticed an increase of actions in damages against EU because EU courts (mainly against General Court) did not conclude proceedings within a reasonable time.

According to Art. 256 TFEU the competent court for actions of individuals (natural and legal persons) is the General Court.

unusual situation that General Court decides the actions against ‘’himself’’

Case study

Kendrion, Gascogne, ASPLA…Ground? – art. 47 Charter and art. 6 ECHRArticle 52(3) of the Charter, since the rights guaranteed by Article 47 of the Charter correspond to rights guaranteed by the Convention, their meaning and scope are to be construed in the light of Articles 6(1) Convention.‘’excessive length of time before reaching a decision’’

So called ‘’industrial bags cartel’’

Decision of CJ:

CJ held that the GC breached Article 47 of the Charter by failing to adjudicate these cases within a reasonable timeOn the basis of Der Grüne

Punkt

, the

CJ

found that where there are no indications that the excessive length of the proceedings before the

GC

affected the cases’ outcome, failure to deliver judgment within a reasonable time cannot lead to the setting aside of the judgments under appeal

decisions raise a number of interesting

/open questions that the CJEU avoided for the moment: ‘’does it infringe upon Article 6 of the Convention to have the General Court adjudicate on actions for damages that are based on that court’s own previous breach of Article 6 of the Convention – in particular, will this case law survive scrutiny before ECtHR

when the EU finally accedes to the Convention?

’’

Baustahlgewebe v.

Der Grüne Punkt approachBaustahlgewebe ( a reductio

n of fine

)

Reasons of procedural economy

But CJ has no legal basis to reduce the fine on account of procedural irregularity

Is applicable only when EC imposed the fine and GC upheld it

GC do not have any opportunity to explain it conduct before CJ

In Der

Grüne Punkt (a separate action for damages)

GC has to assess its own failure

Breach of right to a fair trail (independent and impartial)!?

Financial implication for the CJEU itsel

additional burden of GC will cause new actions in damage

Thank you for your attention!