The Union’s liability for failure to adjudicate within a reasonable time: EU tort law after Gascogne, Kendrion and ASPLA

The non-contractual liability for damages caused by judicial decisions is one of the most disputed domains of tort law.¹ EU law has contributed greatly to the development of this specific domain of State liability law at Member State level. The decisions in Francovich, Brasserie du Pêcheur and Köbler set out the general legal framework for damages actions if national courts misapply EU law.² In the cases of Gascogne, Kendrion and ASPLA the Court of Justice of the EU found itself confronted – for the first time – with a number of separate damages actions for breach of EU law, namely the alleged failure to adjudicate within a reasonable time as required by paragraph 2 of Article 47 of the EU Charter of Fundamental Rights (Charter). All these damages claims followed on a delayed dismissal of annulment actions by the applicants against a Commission Decision finding a violation of Article 101 TFEU (the cartel prohibition) in the Industrial Bags case.³