GoJIL Vol. 1, No. 1 (2009)
EC Liability in the Absence of Unlawfulness – The FIAMM Case –
While the European Community has been repeatedly held liable for its non-contractual unlawful acts on the basis of Art. 288.2 EC, the European courts have long been reluctant to find explicit wording that would establish or reject a liability regime for unlawful EC action. Finally in FIAMM, the Court of First Instance (CFI) took the decisive step of accepting such liability in principle and developed the criteria for its application. The judgement of the CFI represents a remarkable innovation in two respects. First, it makes reviewable all conduct of the Community and its institutions for the purposes of compensation and thus opens the door to a vast area of liability. Second, it is the very first indication that the EC is to pay compensation for behaviour which is deemed lawful (merely) from the European perspective. In other words, the CFI has undercut the European sovereignty shield that the European Court of Justice (ECJ) so carefully installed in order to protect the European legal order from being pierced by Public International Law. As remarkable and thought provoking this suggestion is, the door has been shut by the ECJ on its recent review of the FIAMM decision. In its judgement of 9 September 2008, the Court made it explicitly clear that as of now, there is no such liability of the European Community.
For many, the decision comes a no surprise; for the European industries subject to WTO retaliatory measures like FIAMM, it does not worsen their already low standing before EC courts. Why the judgement of the ECJ must, in fact, be welcomed and preferred to that of the CFI is laid down in the following.
 Already the ECJ in Lütticke v. Commission, C-4/69, (1971) E.C.R. 325; Zuckerfabrik Schöppenstedt v. Council, C-5/71, (1971) E.C.R. 975; HNL v. Council and Commission, Joined C-83, 94/76, 4, 15, 40/77, (1978) E.C.R. 1209; Mulder et al. v. Council and Commission, Joined C-104/89, 37/90, (1992) E.C.R. I-3061; also the Court of First Instance in African Fruit Company v. Council and Commission, Joined T-64/01, 65/01, (2004) E.C.R. II-521.
 See, for instance, Compagnie d’approvisionnement v. Commision, Joined C-9, 11/71, (1972) E.C.R. 391; Développement SA et Clemessy v. Commission, C-267/82, (1986) E.C.R. 1907; Dorsch Consult v. Council, C-237/98 P, (2000) E.C.R. I-4549 and Förde-Reederei v. Council and Commission, C-170/00, (2002) E.C.R. II-515.
 FIAMM, T-69/00, (2005) E.C.R. II-5393, paras 157, 158.
 FIAMM, Joined C-120, 121/06 P, para. 176.
Download the full text as a PDF