Inalca SpA - Industria Alimentari Carni and Cremonini SpA v European Commission.
Date: 2013-02-28
46. As the General Court pointed out in paragraphs 45 and 84 of the order under appeal, without being contradicted by the Commission in that regard, the non-contractual liability of the Community and the exercise of the right to compensation for damage suffered under the second paragraph of Article 288 EC depend on the satisfaction of a number of conditions relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see, inter alia, Birra Wührer and Others  v Council and Commission , paragraph 9; Case 26/81 Oleifici Mediterranei  v EEC  [1982] ECR 3057, paragraph 16; Joined Cases C-120/06 P and C-121/06 P FIAMM and Others  v Council and Commission  [2008] ECR I-6513, paragraph 106; and Case C-419/08 P Trubowest Handel and Makarov v Council and Commission  [2010] ECR I-2259, paragraph 40).
47. At paragraph 46 of the order under appeal, the General Court noted that it follows, according to well-established case-law, that the limitation period for actions for non-contractual liability begins to run once the requirements governing the obligation to provide compensation for damage are satisfied and, in particular, once the damage to be made good has materialised (see Birra Wührer and Others  v Council and Commission ; Case C-282/05 P Holcim (Deutschland)  v Commission , paragraph 29; Commission  v Cantina sociale di Dolianova and Others , paragraph 54; and Case C-469/11 P Evropaïki Dynamiki v Commission [2012] ECR, paragraph 34).
48. Again relying on the established case-law of the Court of Justice, the General Court noted, in paragraph 47 of the order under appeal, that where the liability of the Community has its origin in a legislative measure, the limitation period does not begin until the damaging effects of that measure have arisen (see Birra Wührer and Others  v Council and Commission , paragraph 10; Case C-282/05 P Holcim (Deutschland)  v Commission , paragraph 29) and that, similarly, in disputes arising from individual measures, the limitation period does not begin until the damage has actually materialised (Case C-282/05 P Holcim (Deutschland)  v Commission , paragraph 30; Transports Schiocchet – Excursions v Commission , paragraph 33; and Evropaïki Dynamiki v Commission , paragraph 38).
52. Consequently, contrary to the Commission’s submissions, the decisive criterion for determining the starting point for the limitation period is not the occurrence of the act giving rise to the damage, since, inter alia, it may not be claimed, as against the applicant, that the limitation period began before the date on which those injurious effects were produced ( Birra Wührer and Others  v Council and Commission , paragraph 11).
55. The Court has also recently confirmed that, in the case of disputes arising from individual measures, the limitation period begins to run as soon as the decision has produced its effects vis-à-vis the persons concerned by it (see, to that effect, Evropaïki Dynamiki  v Commission , paragraph 38).
60. Contrary to what is alleged by the Commission, the limitation period does not begin to run on the date on which the harmful event occurred, but from the moment at which the decision produces its effects vis-à-vis the persons concerned by it, namely as soon as the loss actually materialises in relation to those persons (see judgment in Case C-282/05 P Holcim (Deutschland) v Commission , paragraph 30).
70. As regards the General Court’s alleged distortion of the order in Case T-124/99 Autosalone Ispra dei Fratelli Rossi  v Commission , suffice it to note that the Court held that specific and detailed awareness by the victim of the facts is not one of the conditions which must be met in order for the limitation period to begin running (order in Case C-136/01 P Autosalone Ispra dei Fratelli Rossi  v Commission , paragraph 31; Evropaïki Dynamiki v Commission , paragraph 37). Similarly, the subjective appraisal of the reality of the damage by the victim cannot be taken into consideration for the purpose of determining the moment at which the limitation period begins to run in proceedings brought against the European Union for non-contractual liability ( Commission  v Cantina sociale di Dolianova and Others , paragraph 61; Evropaïki Dynamiki v Commission , paragraph 37).
71. Furthermore, in so far as it has been held that it is irrelevant, as regards the commencement of the limitation period, that the Community’s unlawful conduct was established by a judicial decision (judgment in Case C-282/05 P Holcim (Deutschland) v Commission , paragraph 31), the fact that an institution itself recognises that its conduct was unlawful also cannot affect the determination of the point in time at which the limitation period starts to run.
80. However, contrary to the allegations of Inalca and Cremonini, damage is considered to be ongoing in nature due to the fact that the amount of the alleged damage increases in proportion to the number of days which have elapsed (Case C-282/05 P Holcim (Deutschland)  v Commission , paragraph 35).
99. In so doing, the General Court rejected the argument of Inalca and Cremonini that that damage was ongoing in nature until the delivery of the judgment of the Tribunale civile di Roma in 2005. It stated that the non-material damage alleged, even if it were accepted that it continued up to that date, materialised in full when Inalca and Cremonini and their directors were implicated in those proceedings in 1999 and in 2000. Referring to the characteristics that damage must possess in order to be classified as ‘ongoing damage’, as set out in paragraphs 56 and 57 of the order under appeal, the General Court held that the non-material damage alleged could not be treated as ongoing damage.
104. As regards the argument of Inalca and Cremonini that it is impossible to quantify the non-material damage, it must be pointed out that the Court has, it is true, acknowledged that, in certain cases, particularly where it is difficult to express the alleged loss in figures, it is not absolutely necessary to particularise its exact extent in the application or to calculate the amount of the compensation claimed (see, inter alia, Case 90/78 Granaria  v Council and Commission  [1979] ECR 1081, 1090, and Case C-150/03 P Hectors  v Parliament  [2004] ECR I-8691, paragraph 62). However, Inalca and Cremonini have not established, or even alleged, that there were special circumstances justifying the omission to calculate that head of damage in the application.
118. The General Court also noted, in paragraph 91 of the order under appeal, that, when a decision requiring the payment of a fine is coupled with the option of lodging a security intended to ensure that payment along with interest on late payment, pending the outcome of an action brought against that decision, the loss consisting of the guarantee fees results, not from that decision, but from the interested party’s own choice to lodge a security rather than to fulfil its repayment obligation immediately.
120. Consequently, in paragraph 93 of the order under appeal, the General Court was correctly able to deduce that, even if the intervention of the Italian authorities had not been capable of breaking the causal link between the conduct complained of on the part of the Commission and the damage alleged, there is no direct causal link between that conduct and the damage alleged.