Non-contractual liability – Conditions – Actual and certain damage caused by an unlawful act
(Art. 288, second para., EC)
For the Community to become non-contractually liable under the second paragraph of Article 288 EC, the condition relating to damage requires that the damage for which compensation is sought be actual and certain.
In that regard, the fact that the Community institution has a wide discretion in the matter concerned cannot, as such, lead automatically to the damage alleged, which is the result of unlawful conduct by that institution, being regarded as uncertain. Therefore, it is solely having regard to the particular circumstances surrounding the adoption of the measure with which the damage originated that an assessment must be made as to whether the margin of discretion enjoyed by the Community institution is such as to preclude a finding that that damage is certain in character.
It follows that, where the existence of that margin of discretion authorises the Community judicature to find that there is uncertainty with regard to the exact extent of the damage claimed, that does not permit the conclusion that the very existence of the damage is uncertain.
(see paras 27, 30, 33-34, 36)