Case C-377/09, Françoise-Eléonor Hanssens-Ensch v European Community

Action for damages brought against the Community on the basis of non-contractual liability not falling within the jurisdiction of the national courts.


This reference for a preliminary ruling concerned the interpretation of Art. 235 EC and the second paragraph of Art. 288 EC. The reference had been made in proceedings which Ms Hanssens-Ensch, in her capacity as insolvency administrator of Agenor SA (‘Agenor’), had brought against the European Community for damages in the amount of EUR 2 million on account of the Community’s alleged misconduct, which – she claims – contributed to Agenor’s insolvency.

Following a call for tenders at the end of 1994, Agenor was given the role of Technical Assistance Office (‘TAO’) for the European “Leonardo da Vinci” programme. To that end, it concluded an initial 12-month contract with the European Communities on 13 June 1995.

On 29 January 1999 the Commission offered Agenor an addendum to the contract then in force, extending it until 15 February 1999. Agenor did not accept that offer. On 11 February 1999 the Commission therefore declared that the contract in question had expired on 31 January 1999. Also on 11 February 1999, Agenor informed the Commission that it disputed that position.

On 3 March 1999 Agenor declared itself insolvent.

On 30 January 2004 Ms Hanssens-Ensch, in her capacity as Agenor’s insolvency administrator, brought an action for damages against the Community before the Tribunal de commerce de Bruxelles (Commercial Court, Brussels), principally on the basis of Art. 530(1) of the Code des sociétés; she accused the Commission of imposing management constraints on Agenor that inevitably led to its insolvency and of “abondening” and “lynching” Agenor, in particular by refusing to renew the contract that had previously existed between the parties.

The Commission challenged the jurisdiction of the Tribunal de commerce de Bruxelles, maintaining that, pursuant to Art. 235 EC and the second paragraph of Art. 288 EC, the Court of Justice alone had jurisdiction to adjudicated on a claim such as that made by Ms Hanssens-Ensch.

By its question, the national court asked, in essence, whether an action for damages brought against the Community under national legislation establishing special statutory rules which differed from the ordinary rules of law governing civil liability in the Member State concerned constituted an action for damages based on non-contractual liability for the purposes of the second paragraph of Art. 288 EC, which – pursuant to Art. 235 EC – did not fall within the jurisdiction of the national courts.

Ms Hanssens-Ensch submitted that, given the reference made therein to “the general principles common to the laws of the Member States’, the second paragraph of Art. 288 EC referred only to proceedings brought on the basis of the Community’s non-contractual liability under the ordinary rules of law, as provided for – under Belgian law, for example – in Art. 1382 of the Code civil (Civil Code). By contrast, an action brought under any other provision fell within the jurisdiction of the national courts, even if the grounds for that action did not related to a contract.

Thus, an action brought under Art. 530 of the Code des sociétés, which constituted the legal basis for the action before the referring court, could not be regarded as an action for damages brought on the basis of non-contractual liability under the ordinary rules of law, notwithstanding the fact that the grounds for that action did not related to a contract.

The Court of Justice held that the EC Treaty provided for jurisdiction to be divided between the Community Courts and the national courts as regards judicial proceedings brought against the Community in which its liability for damage was at issue.

With regard to the Community’s non-contractual liability, such disputes fell within the jurisdiction of the Court of Justice. Article 235 EC provided that the Court of Justice had jurisdiction to hear and determine actions seeking compensation for damage brought under the second paragraph of Art. 288 EC, which covered such non-contractual liability. That jurisdiction of the Community Courts was exclusive (see Case C282/90 Vreugdenhil v Commission [1992], and Case C275/00 First and Franex [2002]).

On the other hand, so far as the Community’s contractual liability was concerned, the only provision of the Treaty which conferred jurisdiction on the Court of Justice to hear and determine such cases was Art. 238 EC, that was to say, under an arbitration clause in a contract concluded by or on behalf of the Community (see, to that effect, Case 426/85 Commission v Zoubek [1986] and Joined Cases C80/99 to C82/99 Flemmer and Others [2001]).

 The Court held where there was no arbitration clause, proceedings concerning the Community’s contractual liability fell within the jurisdiction of the national courts (see Case C214/08 P Guigard v Commission [2009]). The Court held that in order to decide which court had jurisdiction to hear and determine a specific action brought against the Community seeking compensation for damage, it was necessary to determine whether the action in question concerned the Community’s contractual liability or its non-contractual liability.

The Court held that the fact that the national legislation, under which an action for damages had been brought against the Community on the basis of non-contractual liability, consisted in special statutory rules which differed from the ordinary rules of law governing civil liability in the Member State concerned could not have the effect of excluding that action from the scope of Art. 235 EC.

The Court concluded that an action for damages brought against the Community on the basis of non-contractual liability, even if it was brought under national legislation establishing special statutory rules which differed from the ordinary rules of law governing civil liability in the Member State concerned, did not – pursuant to Art. 235 EC, read in conjunction with the second paragraph of Art. 288 EC – fell within the jurisdiction of the national courts.