Actions for damages

An action for damages is a direct action brought before the European Union’s (EU) General Court by any individual or legal person (including an EU Member State) seeking to obtain compensation for damage caused by the EU institutions or bodies or by their servants in the performance of their duties, which results from their administrative or legislative activity.

Article 268 of the Treaty on the Functioning of the European Union (TFEU) states that the jurisdiction of the Court of Justice of the European Union is exclusive in disputes relating to compensation for damage against the EU. In other words, it is not possible to sue the EU before Member States’ national or international courts.

The second and third paragraphs of Article 340 TFEU refer to the liability of the EU for public torts (or wrongs), in the form of action for damages against the EU. They state that, in accordance with the general principles common to the laws of the Member States, the EU must make good any damage caused by its institutions or by its servants in the performance of their duties.

Although an action for damages is, in principle, intended to award compensation for the damage suffered, it may also be aimed solely at establishing that the EU is liable, by means of an interlocutory judgment (a provisional judgment given at an intermediate stage where the damage cannot yet be quantified). Such an action is an independent remedy, in particular in relation to the action for annulment or the action for failure to act. Consequently, the inadmissibility of an action for annulment does not in itself entail the inadmissibility of an action for damages.

An action for damages must be filed within 5 years of the occurrence of the harmful event. The limitation period can be interrupted in either of two situations:

if an application initiating proceedings is lodged with the Court of Justice or the Tribunal;
if the victim makes a prior application to the competent institution.

In the latter case, the application must be made within 2 months or, if the institution concerned fails to respond, under the conditions laid down for bringing an action for failure to act. The lodging of an appeal before a national court does not constitute a ground for interrupting the limitation period.

As for the Court deciding on the admissibility of the action, this is conditional on the fact, on the one hand, that the damage is attributable to an institution and, on the other hand, that it was caused by an institution or one of its staff in the performance of their duties.

With respect to the substantive conditions for engaging the EU’s extra-contractual liability, the claimant must prove that all three of the following elements cumulatively prevail:

illegal conduct of the institutions or their servants, in the light of EU law (conduct consisting of a positive action or an omission or abstention);
the existence of real and certain damage;
the existence of a causal link between the conduct and the damage claimed.