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

In this article we examine the cases of Gascogne, Kendrion and ASPLA, in which 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 Charter of Fundamental Rights of the EU. We analyze the meaning and potential impact of the judgments on the non-contractual liability of the EU for damages caused by unlawful judicial conduct of the CJEU. As we show, the constitutive elements of causation and damage have been interpreted in a way that is likely to further limit the (scope of) non-contractual liability of the EU in this context. We consider this a grim outcome for the applicants concerned, which saw a fundamental right violated.