The effectiveness of Article 41(3) of Charter of fundamental rights of the European Union

Vukčević Nenad (Pravni fakultet Univerziteta UNION u Beogradu), nenadvukcevic@yahoo.com

Article 41(3) of the Charter of Fundamental Rights of the European Union (EU) guarantees the right to compensation for damage caused by EU institutions or servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. On the other hand, the question arises as to how effective this guaranteed right is in practice. Since the entry into force of the Lisbon Treaty, which made the Charter of Fundamental Rights legally binding, the General Court and the Court of Justice of the EU have continued to apply strict liability criteria, and claims for compensation for damage have rarely been successful before the courts. This paper critically assesses the effectiveness of Article 41(3) of the Charter of Fundamental Rights, which, despite being framed as a “fundamental right”, has had limited impact due to the entrenched doctrine of restrictive liability, according to which the EU courts prioritise institutional discretion over individual rights to compensation for damage. The result is a persistent gap between the symbolic value of Article 41(3) of the Charter of Fundamental Rights and its effectiveness. Nevertheless, some progress has been made in several recent cases before the General Court, which will be discussed in this article.

Keywords: right to good administration, Article 41(3) of the Charter of Fundamental Rights, non‐contractual liability of the European Union, compensation for damages