The present note is concerned with what the appropriate remedy is when the European courts breach Article 47 of the Charter of Fundamental Rights (the “Charter”) and Article 6 of the European Convention of Human Rights (the “Convention”) by taking an excessive length of time before reaching a decision.
It looks at three recent judgments by the Court of Justice of the European Union (“CJEU”) (Case C-40/12 P Gascogne Sack Deutschland GmbH v European Commission; Case C‑50/12 P Kendrion NV v European Commission; Case C-58/12 P Group Gascogne v European Commission) on appeal from decisions by the General Court regarding the industrial bags cartel. The decisions were to the effect that:
- whenever a European court breaches Article 47 of the Charter and/or Article 6 of the Convention by taking too long to take a decision, the appropriate remedy is an action for damages against the EU;
- in the light of Treaty provisions, this action will need to be brought before the General Court, even if it was this court’s delay that provides the basis for the action for damages.
Beyond the relevance of these developments in themselves, these decisions also raise a number of interesting questions that the CJEU avoided for the moment but that seem destined to raise their head in the future – including:
- does it infringe upon Article 6 of the Convention to have the General Court adjudicate on actions for damages that are based on that court’s own previous breach of Article 6 of the Convention – in particular, will this case law survive scrutiny before the European Court of Human Rights (the “Strasbourg Court”) when the EU finally accedes to the Convention?
- what will be the consequences if this case law is found to infringe the Convention? In particular, what happens when two different sources of EU primary law (namely, Treaty provisions and the Charter) conflict? Continue reading