Case C-47/07 P

Masdar (UK) Ltd

v

Commission of the European Communities

(Appeal – Second paragraph of Article 288 EC – Action alleging unjust enrichment on the part of the Community – Community assistance programmes – Irregularities on the part of the co-contractor of the Commission – Services provided by a subcontractor – Non-payment – Risks inherent in economic activities – Principle of the protection of legitimate expectations – Duty of care of the Community administration)

Summary of the Judgment

1.        Community law – Principles – Principle of the prohibition of unjust enrichment on the part of the Community

2.        Community law – Principles – Principle of the prohibition of unjust enrichment on the part of the Community

(Arts 235 EC and 288, second para., EC; Charter of fundamental rights of the European Union, Art. 47)

3.        Non-contractual liability – Conditions – Sufficiently serious breach of Community law – Breach of the principle of sound administration – Breach of the duty of care – Included

(Art. 288, second para., EC)

1.        According to the principles common to the laws of the Member States, a person who has suffered a loss which increases the wealth of another person without there being any legal basis for that enrichment has the right, as a general rule, to restitution from the person enriched, up to the amount of the loss. Legal redress for unjust enrichment, as provided for in the majority of national legal systems, is not necessarily conditional upon unlawfulness or fault with regard to the defendant’s conduct. On the other hand, it is essential that there be no valid legal basis for the enrichment.

Given that unjust enrichment is a source of non-contractual obligation common to the legal systems of the Member States, the Community cannot be dispensed from the application to itself of the same principles where a natural or legal person alleges that the Community has been unjustly enriched to the detriment of that person.

(see paras 44-47)

2.        Actions for unjust enrichment do not fall under the rules governing non-contractual liability in the strict sense, which, to be invoked, require a number of conditions to be satisfied, relating to the unlawfulness of the conduct imputed to the Community, the fact of the damage alleged and the existence of a causal link between that conduct and the damage complained of. They differ from actions brought under those rules in that they do not require proof of unlawful conduct – indeed, of any form of conduct at all – on the part of the defendant, but merely proof of enrichment on the part of the defendant for which there is no valid legal basis and of impoverishment on the part of the applicant which is linked to that enrichment.

However, despite those characteristics, the possibility of bringing an action for unjust enrichment against the Community cannot be denied to a person solely on the ground that the Treaty does not make express provision for a means of pursuing that type of action. If Article 235 EC and the second paragraph of Article 288 EC were to be construed as excluding that possibility, the result would be contrary to the principle of effective judicial protection, laid down in the case-law of the Court and confirmed in Article 47 of the Charter of fundamental rights of the European Union.

(see paras 49-50)

3.        The concept of negligence entails an act or omission by which the party responsible breaches the duty of care which it should have discharged, and could have discharged, in view of its attributes, knowledge and abilities. It is therefore possible for the Community administration to be non-contractually liable for wrongful conduct where it fails to act with all necessary care and, as a result, causes harm. That duty of care is inherent in the principle of sound administration. It applies generally to the actions of the Community administration in its relations with the public. However, the duty of care entails that the Community administration must act with care and caution and not that it is required to remove from economic operators all harm flowing from normal commercial risks.

(see paras 90-93)