The background of the case concerns the workload of the GC and the length of proceedings. Kendrion, a Dutch company operating in the plastic industrial bags sector, claims it suffered damages as a result of delay in GC proceedings. In 2006 the company asked the GC to annul a decision of the European Commission decision stating, in brief, that Kendrion had infringed EU competition rules and imposing on it a fine of EUR 34 million. It was only in 2011, so after almost six years, that the GC ended proceedings and dismissed the action. In the subsequent appeal case, the CJEU upheld the ruling of the GC, but it did agree with Kendrion that the proceedings had taken far too long. In fact, the CoJ concluded that the principle of effective judicial protection, which is enshrined in Article 47 of the EU Charter of Fundamental Rights (EUCFR) and requires from courts to adjudicate within a reasonable period of time, had been breached. The appropriate sanction for such a breach, the CoJ concluded, is an action for damages.

This is in itself an important conclusion. It reflects the basic notion that the European courts themselves are bound by the EUCFR and that individuals should not be the victim of undue delay in judicial proceedings in Luxembourg. At the same time, however, the conclusion certainly is not an uncontroversial one.

For example, problems concerning the excessive length of GC proceedings are not incidental but structural in nature. Kendrion is not the only one who claims to have suffered damages as a result of it. There are more companies who claim the same and who have brought actions for damages, which taken together involve tens of millions of Euros.

A curious aspect in this regard is the fact that individuals must bring actions for damages before the GC. Thus, it is the GC that, at least at first instance, will have to assess claims concerning damages caused by the GC itself. Inevitably, questions of independence or impartiality arise. The mere fact that the damages action are handled by a different GC chamber (of formation) than the one that caused the delay and the resulting damages, as well as the fact that the rulings are subject to appeal before the CoJ, may not suffice for taking away the perception that the values of independence and impartiality might not be fully respected.

A next issue concerns the question who is to be held liable. Formally that is the European Union (EU), but it is well established case law that in damages cases the EU will be represented by the institution which is accused of having caused the claimed damage. So, Kendrion has initiated its action for damages against the European Union, as represented the CJEU. The latter, however, firmly opposes this and holds the view that the EU, in a case such as the one at hand, should rather be represented by the EU institution generally entrusted with the task of representing the EU: the European Commission.

In response to an application of inadmissibility lodged by the CJEU, the GC last January rejected the view that the EU had to be represented by the Commission rather than the CJEU itself.

Interestingly, among the CJEU’s arguments dismissed by the GC in its order, was one concerning the question of who should pay the damages that may have to be paid to individuals or companies like Kendrion. The GC held that such damages must be paid out of the CJEU’s budget and not, as the CJEU claimed, the Commission’s budget.

The CJEU has now brought an appeal against that GC order before the CoJ, which is likely to give EU lawyers more food for academic thought. Whatever the outcome will be, two things must be hoped for. First, legal certainty on the issues addressed above and others are needed. Disputes within the CJEU, and between the courts it is composed of, can affect the reputation and legitimacy of the CJEU, and its constituent courts. Second, and essentially much more important, the roots of the problem, ie the unacceptably long duration of the GC proceedings, must be tackled. It is hoped that the political institutions and or the Member States take responsibility soon and increase the capacity of the GC, for example, by increasing the number of GC judges.