European Union

Summary

INTRODUCTION

OVERVIEW

The rules for liability of the European Union for damage committed by its institutions and servants have several features that render them incomparable to the rules of state liability which exist in domestic legal systems.

EU law does not contain an extensive system of tort liability rules that could serve as a foundation for specific rules of liability incurred by public authorities. None of the primary questions of liability for damage (the concepts of unlawfulness, fault, damage, causality) are answered in European law. Thus, liability rules for the conduct of bodies and servants of the EU are not merely one element of European tort law, but rather its main element.

These rules are formulated very generally. The conditions of liability have not been expressly laid down in law (art 340 TFEU), as reference is made to the general principles common to the laws of the Member States. As a result, detailed rules of liability borne by the EU for damage are created in judicial rulings made by the CJEU, both the Court of Justice and the General Court (previously the CFI). Furthermore, the courts themselves do not provide more than a general formula for the conditions of liability. They thus avoid a precise definition of the conditions for compensating loss by using abstract formulae, preferring an elastic application of general criteria to particular facts in a case. The reference to ‘general (common) principles’ is not treated as a requirement to undertake detailed comparative argumentation, nor even to examine the contents of individual states’ legal systems. The idea is rather to seek common primary characteristics in domestic legal systems and to confront them with the aims and tasks of the European Union.

The most important characteristics of EU liability are:

– liability for unlawful conduct, without regard to personal (subjective) fault (see however no 26 ff and 37 ff. for a more detailed account of the concept of unlawfulness and its relation to fault);

– the infringement must fulfil two conditions simultaneously: the rule of law infringed must be intended to confer rights on individuals and the breach must be sufficiently serious; and

– the necessity of a direct causal link between the conduct and damage.