Sirinya SomchingLiability of the European Union for Lawful Acts

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The question of whether European Union law should recognise the liability of the Union in the absence of unlawfulness has been the subject of a significant dispute since the European Economic Community was founded in 1957.

Since the action for damages against the Union was enshrined in the law and parties were able to bring a case before the Union Court to establish non-contractual liability and be compensated for damage caused by actions or measures of EU institutions and bodies, EU liability action occupied a special place in the Union’s system of judicial protection. Hence, in the context of effective judicial protection, the recognition and application of the principle of liability in the absence of unlawfulness would seem to be appropriate to provide justice to the different interests involved and fulfil the special function in the Union’s judicial system of protecting individuals against acts of supranational public authority established by the Treaties.

However, in practice, while the European Union has been repeatedly held liable for its institutions’ unlawful conduct, the European Court has neither explicitly acknowledged nor explicitly excluded the possibility that liability could arise from a Union institution’s lawful conduct. The Court has long been reluctant to find explicit wording that would establish or reject this type of liability regime.

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