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Published online by Cambridge University Press: 27 February 2017
1 Since November 1, 1993, the effective date of the Treaty on European Union (TEU), the European Economic Community (EEC) is called European Community (EC).
2 Article 288 para. 2 reads:
In the case of non-contractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
3 See Joined Cases 9/71, and 11/71, Compagnie d’Approvisionnement and Grands Moulins de Paris v. Commission, [1972] ECR391, paras. 45–46; Case 59/83, Biovilac v. EEC, [1984] ECR 4057, para. 28; Case 81/86, De Boer Buizen v. Council and Comm’n., [1987] ECR 3677, paras. 16–17.
4 The English translation of this passage of the court’s decision reads “special damage” (see paragraph 82). This, however, is misleading, as the examination of the existence of a “special damage” does not begin until paragraph 83 of the judgment.
5 Article 25 of the United Nations Charter obliges the “Members of the United Nations” to accept and carry out the decisions of the UNSC. By virtue of Article 133 of the EC Treaty, measures such as trade embargoes fall within the exclusive competence of the Community. Article 301 of the EC Treaty, which was not yet in force at the time of the present case, codifies diis exclusive competence. See Juliane Kokott & Meike Conrads, Case note 91 AJIL 722, 725–26 (1997).
6 See European Court of Justice, Case C-84/95, Bosphorus v. Minister for Transport, Energy and Communications, Ireland and the Attorney General, [1996] ECR 1-3953.
7 See Gerhard Aschenbrenner, Case Note, [1998] European Law Reporter 347, 349.
8 See Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law 23 (1998).
9 See Moshe Hirsch, The Responsibility of International Organizations Toward Third Parties 83 (1995).
10 See Joined Cases 83,94/76 and 4,15,40/77, Bayerische HNL Vermehrungsbetriebe GmbH v. Council and Comm’n., [1978] ECR 1209.
11 See for the U.S. embargo: Executive Order No. 12,722, reprinted in 84 AJIL 903–07 (1990).
12 See Bundesgerichtshof, Case III ZR 42/92, in 47 Neue Juristische Wochenschrbt 858–61 (1994).
13 Article 249 para. 2 of the EC Treaty provides: “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.”
14 See Joined Cases C-104/89 and C-37/90, J.M.Mulder et al. v. Council and Comm’n., [1992] ECR 1-3061.
15 See Fritz Ossenbühl, Staatshaftungsrecht, Fifth Edition 104–07, 233–34 (1998). Concerning legislative acts of member states that are unlawful because of the violation of EC law the European Court of Justice held that a member state can incur “liability inherent in Community law.” Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur v. Federal Republic of Germany and The Queen v. Secretary of State for Transport ex parte: Factortame III, [1996] ECR-11029, paras. 16–36.
16 See 453 U.S. 654 (1981).
17 See Alan Brownstein, The Takings Clause and the Iranian Claims Settlement, 29 UCLAL. REV. 984, 991–92 (1982).
18 See John R. Crook, The United Nations Compensation Commission—A New Structure to Enforce State Responsibility, 87 AJIL 144–57, especially 154–55 (1993).
19 See Sonja Boelaert-Suominen, Iraqi War Reparations and the Laws of War: a Discussion of the Current Work of the United Nations Compensation Commission with Specific Reference to Environmental Damage During Warfare, 50 Austrian Journal of Pub. and Int’l. Law 225, 258 (1996).
