Retrench and Reform: The Action for Damages

Summary:

This article discusses the non- contractual liability of the European Community. The article analyses the application of the test of discretion to determine the conditions under which the Community may apply non-contractual liability. The main purpose of the article is to dismiss the view that the test of mere illegality has any application beyond to the breach of good administration.

The article first provides a brief account of the function of compensation in the Community legal regime and the conditions for engaging the non-contractual liability of the Community. The article proceeds to examine moves to reform the claim under Article 288(2) EC in which the Court of First Instance has been concerned to address the perceived limitation of the action in protecting the individual. Consequently, it considers the response of the Court of Justice and the reception of Member State law into the adjudication process.

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