Workshop Private Law at KU Leuven on European Tort Law

CJEU, Competition law, Effective judicial protection, EU law, European private law, Geen categorie, State liability, Tort lawComments are off for this post.

You Are Here:, Competition law, Effective judicial protection, EU law, European private law, Geen categorie, State liability, Tort lawWorkshop Private Law at KU Leuven on European Tort Law

November 5th I had the great honor to present a new paper to my colleagues in Leuven. The paper (co-authored with my Tilburg colleague Katarzyna Kryla-Cudna) concerns the extra-contractual liability of the European Union for the failure to adjudicate within a reasonable time, as addressed in the cases of Gascogne, Kendrion and ASPLA (December 2018).

The non-contractual liability for damages caused by judicial decisions is one of the most disputed domains of tort law. EU law has contributed greatly to the development of this specific domain of state liability law at Member State level. The decisions in Francovich, Brasserie du Pêcheur and Köbler set out the general legal framework for damages actions if national courts misapply EU law. In the cases of Gascogne, Kendrion and ASPLA the Court of Justice of the EU (CJEU) found itself confronted – for the first time – with a number of separate damages actions for breach of EU law, namely the alleged failure to adjudicate within a reasonable time as required by paragraph 2 of Article 47 of the Charter of Fundamental Rights of the EU (Charter).

All these damages claims followed on an overdue dismissal of annulment actions by the applicants against a Commission Decision finding a violation of Article 101 TFEU (the cartel prohibition) in the Industrial Bags case. Throughout those appeal proceedings, which lasted almost six years, the applicants had not directly paid the fine as imposed by the Commission. Instead, they had opted – on their own motion – to provide security for the payment of the fine via a bank guarantee on the condition that they would pay interest on the fine over the period during which the proceedings were pending. The damage claims were in part awarded at first instance by (another chamber of) the General Court. The Court held that the delay in adjudication constituted a sufficiently serious breach of a rule of EU law intended to confer rights on individuals. As this unlawful conduct had led the applicants to incur periodical charges for the bank guarantee in excess of the reasonable time for adjudication, these costs should be compensated, the General Court held. However, on appeal before the Court of Justice (ECJ), the judgments were quashed and the damages actions dismissed for lack of a sufficiently direct causal link between the unlawful judicial inactivity and the losses alleged by the applicants.


In the paper Katarzyna and myself analyze the meaning and potential impact of the judgments in Gascogne, Kendrion and ASPLA on the non-contractual liability of the EU for damages caused by unlawful judicial conduct of the CJEU. We focus on the substantive parameters of EU tort law at play, namely unlawfulness, causation and damage. In the cases under review here, as we show in the paper, also the constitutive elements of causation and damage were interpreted in a way that is likely to further limit the (scope of) non-contractual liability of the EU in this context. We consider this a grim outcome for the applicants concerned, which saw their fundamental right to have their case adjudicated within a reasonable time clearly violated.


The manuscript of the paper, which was later accepted for publication by the Common Market Law Review, can be accessed here

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