91999E0168

WRITTEN QUESTION E-0168/99

by Ludivina García Arias (PSE) to the Commission

(11 February 1999)

Subject: Established right of undertakings and implications as regards compensation arising from the amendment of legislation in the European Union

Does the Commission take the view that the amendment of legislation or the introduction by the European Union of a new binding legal framework based on the interests of the internal market may give rise to established rights from the point of view of compensation for the undertakings affected?

Answer given by Mr Monti on behalf of the Commission

(16 March 1999)

The Court of First Instance ruled on the question raised by the Honourable Member in its judgment of 29 January 1998 (in Case T-113/96 Dubois ECR II-125)(1), in which it summarised the applicable Community case-law.

The Court found that the Community's non-contractual liability extends, under the terms of the second paragraph of Article 215 of the EC Treaty, to the damage caused by its institutions or by its servants in the performance of their duties. The Treaties establishing the European Communities and the agreements which supplemented or amended those Treaties thus constitute neither an act of the institutions nor an act of the servants of the Community and cannot, therefore, give rise to non-contractual liability on the part of the Community.

With regard to the acts of the institutions or of their servants, in order for the Community to incur non-contractual liability, the applicant must prove the unlawfulness of the alleged conduct of the Community institution concerned, actual damage and the existence of a causal link between that conduct and the alleged damage. In that connection, if the unlawful act complained of concerns a legislative measure, the liability of the Community can be incurred only if there has been a breach of a higher-ranking rule of law for the protection of individuals. Moreover, if the institution has adopted the measure in the exercise of a broad discretion, the Community cannot be rendered liable unless the breach is clear, that is to say, if it is of a manifest and serious nature. Those criteria also apply in the case of a wrongful omission.

Asked for its opinion on the consequences of an amendment to Community legislation required by the implementation of the Single European Act, the Court reiterated that, in cases where the Community authorities have a broad discretion, traders cannot claim a vested right in the maintenance of an advantage which they obtained from the Community rules in issue and which they enjoyed at a given time.

However, the possibility cannot be excluded that an obligation to provide compensation might arise under the domestic law of the Member State on whose territory the businesses affected by the implementation of the single market are located.

(1) An appeal against this judgment has been brought before the Court of Justice.