Case 5/71 Schöppenstedt [1971] ECR 975

Key point

  • The action for damages under Article 340 TFEU is distinct from action for annulment in that its end is not the abolition of the measure but compensation for damage

Facts

  • The applicant claimed for damages from the Council under Article 215 EEC (now Article 340 TFEU) for losses allegedly caused by Council Regulation No 769/6, which the applicant argued was contrary to the EEC Treaty
  • At the time of the case, individuals could not bring action for annulment since it was not provided for under the EEC Treaty
  • The Council argued that the action is not aimed at compensation of damage but the removal of legal effects arising from the measure, this would circumvent the EEC Treaty

Ruling

  • The case was admissible but failed on substance as the regulation did not infringe the EEC Treaty

Judgment

Admissibility

  • The action for damages is an autonomous remedy which ‘differs from annulment in that its end is not the abolition of the measure but compensation for damage caused by an institution in the performance of its duties’

Substance

  • ‘the community does not incur non-contractual liability for damage suffered by individuals as a consequence of that action, by virtue of the provisions contained in article 215, second paragraph, of the treaty, unless a sufficiently flagrant violation of a superior rule of law for the protection of the individual has occurred’

Commentary

  • In Mulder, the Court introduced the test of sufficiently serious breach as an instance of the Schoppenstedt formula which applies where the EU measure that compensation is sought for lies in an area of discretion