COMPETITION • EUROPEAN LAW • PROCEDURE
Article 340 TFEU establishes a regime of non-contractual liability of the Union according to the general principles common to the laws of the Member States. Three conditions must be fulfilled in order to incur the liability of the Union: unlawful conduct of the institution, actual damage and a causal link between that damage and that conduct. Action may be brought to sanction the Commission’s wrongful failure to take action to enforce a judgment annulling or reducing a fine, such as the reimbursement of default interest on the principal amount of the fine reimbursed. On the other hand, the erroneous disclosure of an undertaking’s confidential price lists does not incur the extra-contractual liability of the Union in the absence of proof of a causal link between such disclosure and the alleged loss characterized by the loss of its main customer. The action for damages is also the only recourse against the General Court for exceeding the reasonable time-limit for adjudicating. The action is brought before the General Court itself (not before the Court of Justice), which will rule in a different formation from the one that handed down the contested judgment. Actual and certain damage is constituted by the costs incurred in respect of the bank guarantee during the period in which the reasonable time for adjudication is exceeded. The non-material loss caused by placing the victim undertaking in a situation of uncertainty beyond that usually caused by a judicial proceeding is also recoverable.
