CELEX: 61993CJ0046
Principle of Member State liability for damage caused to individuals by breaches of Community law attributable to the State
Breaches attributable to the national legislature
Conditions for State liability
Extent of reparation

By orders of 28 January 1993 and 18 November 1992, received at the Court on 17 February 1993 and 18 February 1993, respectively,
the Bundesgerichtshof (Federal Court of Justice) (Case C-46/93) and the High Court of Justice, Queen's Bench Division, Divisional
Court (Case C-48/93) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty questions concerning
the conditions under which a Member State may incur liability for damage caused to individuals by breaches of Community law
attributable to that State.
The questions were raised in two sets of proceedings between, on the one hand, Brasserie du Pêcheur SA and the Federal Republic
of Germany and, on the other, Factortame Ltd and others (hereinafter
Factortame) and the United Kingdom of Great Britain and Northern Ireland.
Case C-46/93
Before the national court, Brasserie du Pêcheur, a French company based at Schiltigheim (Alsace), claims that it was forced
to discontinue exports of beer to Germany in late 1981 because the competent German authorities considered that the beer it
produced did not comply with the Reinheitsgebot (purity requirement) laid down in Paragraphs 9 and 10 of the Biersteuergesetz
of 14 March 1952 (Law on Beer Duty, BGBl. I, p. 149), in the version dated 14 December 1976 (BGBl. I, p. 3341, hereinafter
the BStG).
The Commission took the view that those provisions were contrary to Article 30 of the EEC Treaty and brought infringement
proceedings against the Federal Republic of Germany on two grounds, namely the prohibition on marketing under the designation
Bier (beer) beers lawfully manufactured by different methods in other Member States and the prohibition on importing beers containing
additives.  By judgment of 12 March 1987 in Case 178/84
Commission
v
Germany
[1987] ECR 1227, the Court held that the prohibition on marketing beers imported from other Member States which did not comply
with the provisions in question was incompatible with Article 30 of the Treaty.
Brasserie du Pêcheur consequently brought an action against the Federal Republic of Germany for reparation of the loss suffered
by it as a result of that import restriction between 1981 and 1987, seeking damages in the sum of DM 1 800 000, representing
a fraction of the loss actually incurred.
The Bundesgerichtshof refers to Paragraph 839 of the Bürgerliches Gesetzbuch (German Civil Code,
the BGB) and Article 34 of the Grundgesetz (Basic Law,
the GG).  According to the first sentence of Paragraph 839 of the BGB,
If an official wilfully or negligently commits a breach of official duty incumbent upon him as against a third party, he shall
compensate the third party for any damage arising therefrom.  Article 34 of the GG provides that
If a person infringes, in the exercise of a public office entrusted to him, the obligations incumbent upon him as against
a third party, liability therefor shall attach in principle to the State or to the body in whose service he is engaged.
If those provisions are read together, it appears that, in order for the State to be liable, the third party must be capable
of being regarded as beneficiary of the obligation breached, which means that the State is liable for breach only of obligations
conceived in favour of a third party.  However, as the Bundesgerichtshof points out, in the case of the BStG the task assumed
by the national legislature concerns only the public at large and is not directed towards any particular person or class of
persons who could be regarded as
third parties within the meaning of the provisions mentioned above.
In this context, the Bundesgerichtshof has referred the following questions to the Court for a preliminary ruling:
1.
Does the principle of Community law according to which Member States are obliged to pay compensation for damage suffered by
an individual as a result of breaches of Community law attributable to those States also apply where such a breach consists
of a failure to adapt a national parliamentary statute to the higher-ranking rules of Community law (this case concerning
a failure to adapt Paragraphs 9 and 10 of the German Biersteuergesetz to Article 30 of the EEC Treaty)?
2.
May the national legal system provide that any entitlement to compensation is to be subject to the same limitations as those
applying where a national statute breaches higher-ranking national law, for example where an ordinary Federal law breaches
the Grundgesetz of the Federal Republic of Germany?
3.
May the national legal system provide that entitlement to compensation is to be conditional on fault (intent or negligence)
on the part of the organs of the State responsible for the failure to adapt the legislation?
4.
If Question 1 is to be answered in the affirmative and Question 2 in the negative:
(a)
May liability to pay compensation under the national legal system be limited to the reparation of damage done to specific
individual legal interests, for example property, or does it require full compensation for all financial losses, including
lost profits?
(b)
Does the obligation to pay compensation also require reparation of the damage already incurred before it was held in the judgment
of the European Court of Justice of 12 March 1987 in Case 178/84
Commission
v
Germany
[1987] ECR 1227 that Paragraph 10 of the German Biersteuergesetz infringed higher-ranking Community law?
Case C-48/93
On 16 December 1988 Factortame and others, being individuals and companies incorporated under the laws of the United Kingdom,
together with the directors and shareholders of those companies, brought an action before the High Court of Justice, Queen's
Bench Division, Divisional Court (hereinafter
the Divisional Court), in which they challenged the compatibility of Part II of the Merchant Shipping Act 1988 with Community law, in particular
Article 52 of the EEC Treaty.  That act entered into force on 1 December 1988, subject to a transitional period expiring on
31 March 1989.  It provided for the introduction of a new register for British fishing boats and made registration of such
vessels, including those already registered in the former register, subject to certain conditions relating to the nationality,
residence and domicile of the owners.  Fishing boats ineligible for registration in the new register were deprived of the
right to fish.
In answer to questions referred by the Divisional Court, the Court held by judgment of 25 July 1991 in Case C-221/89
Factortame II
[1991] ECR I-3905 that conditions relating to the nationality, residence and domicile of vessel owners and operators as laid
down by the registration system introduced by the United Kingdom were contrary to Community law, but that it was not contrary
to Community law to stipulate as a condition for registration that the vessels in question must be managed and their operations
directed and controlled from within the United Kingdom.
On 4 August 1989 the Commission brought infringement proceedings against the United Kingdom.  In parallel, it applied for
interim measures ordering the suspension of the abovementioned nationality conditions on the ground that they were contrary
to Articles 7, 52 and 221 of the EEC Treaty.  By order of 10 October 1989 in Case 246/89 R
Commission
v
United Kingdom
[1989] ECR 3125, the President of the Court granted that application.  Pursuant to that order, the United Kingdom adopted
provisions amending the new registration system with effect from 2 November 1989.  By judgment of 4 October 1991 in Case C-246/89
Commission
v
United Kingdom
[1991] ECR I-4585, the Court confirmed that the registration conditions challenged in the infringement proceedings were contrary
to Community law.
Meanwhile, on 2 October 1991, the Divisional Court made an order designed to give effect to this Court's judgment of 25 July
1991 in
Factortame II
and, at the same time, directed the claimants to give detailed particulars of their claims for damages.  Subsequently, the
claimants provided the national court with a detailed statement of their various heads of claim, covering expenses and losses
incurred between 1 April 1989, when the legislation at issue entered into force, and 2 November 1989, when it was repealed.
Lastly, by order of 18 November 1992, the Divisional Court gave Rawlings (Trawling) Ltd, the 37th claimant in Case C-48/93,
leave to amend its claim to include a claim for exemplary damages for unconstitutional behaviour on the part of the public
authorities.
In that context, the Divisional Court referred the following questions to the Court for a preliminary ruling:
1.
In all the circumstances of this case, where:
(a)
a Member State's legislation laid down conditions relating to the nationality, domicile and residence of the owners and managers
of fishing vessels, and of the shareholders and directors in vessel-owning and managing companies, and
(b)
such conditions were held by the Court of Justice in Cases C-221/89 and C-246/89 to infringe Articles 5, 7, 52 and 221 of
the EEC Treaty, are those persons who were owners or managers of such vessels, or directors and/or shareholders in vessel-owning and managing
companies, entitled as a matter of Community law to compensation by that Member State for losses which they have suffered
as a result of all or any of the above infringements of the EEC Treaty?
2.
If Question 1 is answered in the affirmative, what considerations, if any, does Community law require the national court to
apply in determining claims for damages and interest relating to:
(a)
expenses and/or loss of profit and/or loss of income during the period subsequent to the entry into force of the said conditions,
during which the vessels were forced to lay up, to make alternative arrangements for fishing and/or to seek registration elsewhere;
(b)
losses consequent on sales at an undervalue of the vessels, or of shares therein, or of shares in vessel-owning companies;
(c)
losses consequent on the need to provide bonds, fines and legal expenses for alleged offences connected with the exclusion
of vessels from the national register;
(d)
losses consequent on the inability of such persons to own and operate further vessels;
(e)
loss of management fees;
(f)
expenses incurred in an attempt to mitigate the above losses;
(g)
exemplary damages as claimed?
Reference is made to the Report for the Hearing for a fuller account of the facts of the main proceedings, the procedure and
the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the
reasoning of the Court.
State liability for acts and omissions of the national legislature contrary to Community law (first question in both Case
C-46/93 and Case C-48/93)
By their first questions, each of the two national courts essentially seeks to establish whether the principle that Member
States are obliged to make good damage caused to individuals by breaches of Community law attributable to the State is applicable
where the national legislature was responsible for the infringement in question.
In Joined Cases C-6/90 and C-9/90
Francovich and Others
[1991] ECR I-5357, paragraph 37, the Court held that it is a principle of Community law that Member States are obliged to
make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible.
The German, Irish and Netherlands Governments contend that Member States are required to make good loss or damage caused to
individuals only where the provisions breached are not directly effective: in
Francovich and Others
the Court simply sought to fill a lacuna in the system for safeguarding rights of individuals.  In so far as national law
affords individuals a right of action enabling them to assert their rights under directly effective provisions of Community
law,  it is unnecessary, where such provisions are breached, also to grant them a right to reparation founded directly on
Community law.
That argument cannot be accepted.
The Court has consistently held that the right of individuals to rely on the directly effective provisions of the Treaty before
national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation
of the Treaty (see, in particular, Case 168/85
Commission
v
Italy
[1986] ECR 2945, paragraph 11, Case C-120/88
Commission
v
Italy
[1991] ECR I-621, paragraph 10, and C-119/89
Commission
v
Spain
[1991] ECR I-641, paragraph 9).  The purpose of that right is to ensure that provisions of Community law prevail over national
provisions.  It cannot, in every case, secure for individuals the benefit of the rights conferred on them by Community law
and, in particular, avoid their sustaining damage as a result of a breach of Community law attributable to a Member State.
As appears from paragraph 33 of the judgment in
Francovich and Others
, the full effectiveness of Community law would be impaired if individuals were unable to obtain redress when their rights
were infringed by a breach of Community law.
This will be so where an individual who is a victim of the non-transposition of a directive and is precluded from relying
on certain of its provisions directly before the national court because they are insufficiently precise and unconditional,
brings an action for damages against the defaulting Member State for breach of the third paragraph of Article 189 of the Treaty.
In such circumstances, which obtained in the case of
Francovich and Others
, the purpose of reparation is to redress the injurious consequences of a Member State's failure to transpose a directive
as far as beneficiaries of that directive are concerned.
It is all the more so in the event of infringement of a right directly conferred by a Community provision upon which individuals
are entitled to rely before the national courts.  In that event, the right to reparation is the necessary corollary of the
direct effect of the Community provision whose breach caused the damage sustained.
In this case, it is undisputed that the Community provisions at issue, namely Article 30 of the Treaty in Case C-46/93 and
Article 52 in Case C-48/93, have direct effect in the sense that they confer on individuals rights upon which they are entitled
to rely directly before the national courts.  Breach of such provisions may give rise to reparation.
The German Government further submits that a general right to reparation for individuals could be created only by legislation
and that for such a right to be recognized by judicial decision would be incompatible with the allocation of powers as between
the Community institutions and the Member States and with the institutional balance established by the Treaty.
It must, however, be stressed that the existence and extent of State liability for damage ensuing as a result of a breach
of obligations incumbent on the State by virtue of Community law are questions of Treaty interpretation which fall within
the jurisdiction of the Court.
In this case, as in
Francovich and Others
, those questions of interpretation have been referred to the Court by national courts pursuant to Article 177 of the Treaty.
Since the Treaty contains no provision expressly and specifically governing the consequences of breaches of Community law
by Member States, it is for the Court, in pursuance of the task conferred on it by Article 164 of the Treaty of ensuring that
in the interpretation and application of the Treaty the law is observed, to rule on such a question in accordance with generally
accepted methods of interpretation, in particular by reference to the fundamental principles of the Community legal system
and, where necessary, general principles common to the legal systems of the Member States.
Indeed, it is to the general principles common to the laws of the Member States that the second paragraph of Article 215 of
the Treaty refers as the basis of the non-contractual liability of the Community for damage caused by its institutions or
by its servants in the performance of their duties.
The principle of the non-contractual liability of the Community expressly laid down in Article 215 of the Treaty is simply
an expression of the general principle familiar to the legal systems of the Member States that an unlawful act or omission
gives rise to an obligation to make good the damage caused.  That provision also reflects the obligation on public authorities
to make good damage caused in the performance of their duties.
In any event, in many national legal systems the essentials of the legal rules governing State liability have been developed
by the courts.
In view of the foregoing considerations, the Court held in
Francovich and Others
, at paragraph 35, that the principle of State liability for loss and damage caused to individuals as a result of breaches
of Community law for which it can be held responsible is inherent in the system of the Treaty.
It follows that that principle holds good for any case in which a Member State breaches Community law, whatever be the organ
of the State whose act or omission was responsible for the breach.
In addition, in view of the fundamental requirement of the Community legal order that Community law be uniformly applied (see,
in particular, Joined Cases C-143/88 and C-92/89
Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest
[1991] ECR I-415, paragraph 26), the obligation to make good damage caused to individuals by breaches of Community law cannot
depend on domestic rules as to the division of powers between constitutional authorities.
As the Advocate General points out in paragraph 38 of his Opinion, in international law a State whose liability for breach
of an international commitment is in issue will be viewed as a single entity, irrespective of whether the breach which gave
rise to the damage is attributable to the legislature, the judiciary or the executive.  This must apply
a fortiori
in the Community legal order since all State authorities, including the legislature, are bound in performing their tasks
to comply with the rules laid down by Community law directly governing the situation of individuals.
The fact that, according to national rules, the breach complained of is attributable to the legislature cannot affect the
requirements inherent in the protection of the rights of individuals who rely on Community law and, in this instance, the
right to obtain redress in the national courts for damage caused by that breach.
Consequently, the reply to the national courts must be that the principle that Member States are obliged to make good damage
caused to individuals by breaches of Community law attributable to the State is applicable where the national legislature
was responsible for the breach in question.
Conditions under which the State may incur liability for acts and omissions of the national legislature contrary to Community
law (second question in Case C-46/93 and first question in Case C-48/93)
By these questions, the national courts ask the Court to specify the conditions under which a right to reparation of loss
or damage caused to individuals by breaches of Community law attributable to a Member State is, in the particular circumstances,
guaranteed by Community law.
Although Community law imposes State liability, the conditions under which that liability gives rise to a right to reparation
depend on the nature of the breach of Community law giving rise to the loss and damage (
Francovich and Others
, paragraph 38).
In order to determine those conditions, account should first be taken of the principles inherent in the Community legal order
which form the basis for State liability, namely, first, the full effectiveness of Community rules and the effective protection
of the rights which they confer and, second, the obligation to cooperate imposed on Member States by Article 5 of the Treaty
(
Francovich and Others
, paragraphs 31 to 36).
In addition, as the Commission and the several governments which submitted observations have emphasized, it is pertinent to
refer to the Court's case-law on non-contractual liability on the part of the Community.
First, the second paragraph of Article 215 of the Treaty refers, as regards the non-contractual liability of the Community,
to the general principles common to the laws of the Member States, from which, in the absence of written rules, the Court
also draws inspiration in other areas of Community law.
Second, the conditions under which the State may incur liability for damage caused to individuals by a breach of Community
law cannot, in the absence of particular justification, differ from those governing the liability of the Community in like
circumstances.  The protection of the rights which individuals derive from Community law cannot vary depending on whether
a national authority or a Community authority is responsible for the damage.
The system of rules which the Court has worked out with regard to Article 215 of the Treaty, particularly in relation to liability
for legislative measures, takes into account,
inter alia
, the complexity of the situations to be regulated, difficulties in the application or interpretation of the texts and, more
particularly, the margin of discretion available to the author of the act in question.
Thus, in developing its case-law on the non-contractual liability of the Community, in particular as regards legislative measures
involving choices of economic policy, the Court has had regard to the wide discretion available to the institutions in implementing
Community policies.
The strict approach taken towards the liability of the Community in the exercise of its legislative activities is due to two
considerations.  First, even where the legality of measures is subject to judicial review, exercise of the legislative function
must not be hindered by the prospect of actions for damages whenever the general interest of the Community requires legislative
measures to be adopted which may adversely affect individual interests.  Second, in a legislative context characterized by
the exercise of a wide discretion, which is essential for implementing a Community policy,  the Community cannot incur liability
unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers (Joined Cases
83/76, 94/76, 4/77, 15/77 and 40/77
HNL and Others
v
Council and Commission
[1978] ECR 1209, paragraphs 5 and 6).
That said, the national legislature ─ like the Community institutions ─ does not systematically have a wide discretion when
it acts in a field governed by Community law.  Community law may impose upon it obligations to achieve a particular result
or obligations to act or refrain from acting which reduce its margin of discretion, sometimes to a considerable degree.  This
is so, for instance, where, as in the circumstances to which the judgment in
Francovich and Others
relates, Article 189 of the Treaty places the Member State under an obligation to take, within a given period, all the measures
needed in order to achieve the result required by a directive.  In such a case, the fact that it is for the national legislature
to take the necessary measures has no bearing on the Member State's liability for failing to transpose the directive.
In contrast, where a Member State acts in a field where it has a wide discretion, comparable to that of the Community institutions
in implementing Community policies, the conditions under which it may incur liability must, in principle, be the same as those
under which the Community institutions incur liability in a comparable situation.
In the case which gave rise to the reference in Case C-46/93, the German legislature had legislated in the field of foodstuffs,
specifically beer.  In the absence of Community harmonization, the national legislature had a wide discretion in that sphere
in laying down rules on the quality of beer put on the market.
As regards the facts of Case C-48/93,  the United Kingdom legislature also had a wide discretion.  The legislation at issue
was concerned, first, with the registration of vessels, a field which, in view of the state of development of Community law,
falls within the jurisdiction of the Member States and, secondly, with regulating fishing, a sector in which implementation
of the common fisheries policy leaves a margin of discretion to the Member States.
Consequently, in each case the German and United Kingdom legislatures were faced with situations involving choices comparable
to those made by the Community institutions when they adopt legislative measures pursuant to a Community policy.
In such circumstances, Community law confers a right to reparation where three conditions are met: the rule of law infringed
must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal
link between the breach of the obligation resting on the State and the damage sustained by the injured parties.
Firstly, those conditions satisfy the requirements of the full effectiveness of the rules of Community law and of the effective
protection of the rights which those rules confer.
Secondly, those conditions correspond in substance to those defined by the Court in relation to Article 215 in its case-law
on liability of the Community for damage caused to individuals by unlawful legislative measures adopted by its institutions.
The first condition is manifestly satisfied in the case of Article 30 of the Treaty, the relevant provision in Case C-46/93,
and in the case of Article 52, the relevant provision in Case C-48/93.  Whilst Article 30 imposes a prohibition on Member
States, it nevertheless gives rise to rights for individuals which the national courts must protect (Case 74/76
Iannelli & Volpi
v
Meroni
[1977] ECR 557, paragraph 13).  Likewise, the essence of Article 52 is to confer rights on individuals (Case 2/74
Reyners
[1974] ECR 631, paragraph 25).
As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches
of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member
State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.
The factors which the competent court may take into consideration include the clarity and precision of the rule breached,
the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage
caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken
by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or
practices contrary to Community law.
On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding
the infringement in question to be established, or a preliminary ruling or settled case-law of the Court on the matter from
which it is clear that the conduct in question constituted an infringement.
While, in the present cases, the Court cannot substitute its assessment for that of the national courts, which have sole jurisdiction
to find the facts in the main proceedings and decide how to characterize the breaches of Community law at issue, it will be
helpful to indicate a number of circumstances which the national courts might take into account.
In Case C-46/93 a distinction should be drawn between the question of the German legislature's having maintained in force
provisions of the Biersteuergesetz concerning the purity of beer prohibiting the marketing under the designation
Bier of beers imported from other Member States which were lawfully produced in conformity with different rules, and the question
of the retention of the provisions of that same law prohibiting the import of beers containing additives.  As regards the
provisions of the German legislation relating to the designation of the product marketed, it would be difficult to regard
the breach of Article 30 by that legislation as an excusable error, since the incompatibility of such rules with Article 30
was manifest in the light of earlier decisions of the Court, in particular Case 120/78
Rewe-Zentral
[1979] ECR 649 (
Cassis de Dijon) and Case 193/80
Commission
v
Italy
[1981] ECR 3019 (
vinegar).  In contrast, having regard to the relevant case-law, the criteria available to the national legislature to determine whether
the prohibition of the use of additives was contrary to Community law were significantly less conclusive until the Court's
judgment of 12 March 1987 in
Commission
v
Germany
, cited above, in which the Court held that prohibition to be incompatible with Article 30.
A number of observations may likewise be made about the national legislation at issue in Case C-48/93.
The decision of the United Kingdom legislature to introduce in the Merchant Shipping Act 1988 provisions relating to the conditions
for the registration of fishing vessels has to be assessed differently in the case of the provisions making registration subject
to a nationality condition, which constitute direct discrimination manifestly contrary to Community law, and in the case of
the provisions laying down residence and domicile conditions for vessel owners and operators.
The latter conditions are prima facie incompatible with Article 52 of the Treaty in particular, but the United Kingdom sought
to justify them in terms of the objectives of the common fisheries policy.  In the judgment in
Factortame II
, cited above, the Court rejected that justification.
In order to determine whether the breach of Article 52 thus committed by the United Kingdom was sufficiently serious, the
national court might take into account,
inter alia
, the legal disputes relating to particular features of the common fisheries policy, the attitude of the Commission, which
made its position known to the United Kingdom in good time, and the assessments as to the state of certainty of Community
law made by the national courts in the interim proceedings brought by individuals affected by the Merchant Shipping Act.
Lastly, consideration should be given to the assertion made by Rawlings (Trawling) Ltd, the 37th claimant in Case C-48/93,
that the United Kingdom failed to adopt immediately the measures needed to comply with the Order of the President of the Court
of 10 October 1989 in
Commission
v
United Kingdom,
cited above, and that this needlessly increased the loss it sustained.  If this allegation ─ which was certainly contested
by the United Kingdom at the hearing ─ should prove correct, it should be regarded by the national court as constituting in
itself a manifest and, therefore, sufficiently serious breach of Community law.
As for the third condition, it is for the national courts to determine whether there is a direct causal link between the breach
of the obligation borne by the State and the damage sustained by the injured parties.
The aforementioned three conditions are necessary and sufficient to found a right in individuals to obtain redress, although
this does not mean that the State cannot incur liability under less strict conditions on the basis of national law.
As appears from paragraphs 41, 42 and 43 of
Francovich and Others
, cited above, subject to the right to reparation which flows directly from Community law where the conditions referred to
in the preceding paragraph are satisfied, the State must make reparation for the consequences of the loss and damage caused
in accordance with the domestic rules on liability, provided that the conditions for reparation of loss and damage laid down
by national law must not be less favourable than those relating to similar domestic claims and must not be such as in practice
to make it impossible or excessively difficult to obtain reparation (see also Case 199/82
Amministrazione delle Finanze dello Stato
v
San Giorgio
[1983] ECR 3595).
In that regard, restrictions that exist in domestic legal systems as to the non-contractual liability of the State in the
exercise of its legislative function may be such as to make it impossible in practice or excessively difficult for individuals
to exercise their right to reparation, as guaranteed by Community law, of loss or damage resulting from the breach of Community
law.
In Case C-46/93 the national court asks in particular whether national law may subject any right to compensation to the same
restrictions as apply where a law is in breach of higher-ranking national provisions, for instance, where an ordinary Federal
law infringes the Grundgesetz of the Federal Republic of Germany.
While the imposition of such restrictions may be consistent with the requirement that the conditions laid down should not
be less favourable than those relating to similar domestic claims, it is still to be considered whether such restrictions
are not such as in practice to make it impossible or excessively difficult to obtain reparation.
The condition imposed by German law where a law is in breach of higher-ranking national provisions, which makes reparation
dependent upon the legislature's act or omission being referable to an individual situation, would in practice make it impossible
or extremely difficult to obtain effective reparation for loss or damage resulting from a breach of Community law, since the
tasks falling to the national legislature relate, in principle, to the public at large and not to identifiable persons or
classes of person.
Since such a condition stands in the way of the obligation on national courts to ensure the full effectiveness of Community
law by guaranteeing effective protection for the rights of individuals, it must be set aside where an infringement of Community
law is attributable to the national legislature.
Likewise, any condition that may be imposed by English law on State liability requiring proof of misfeasance in public office,
such an abuse of power being inconceivable in the case of the legislature, is also such as in practice to make it impossible
or extremely difficult to obtain effective reparation for loss or damage resulting from a breach of Community law where the
breach is attributable to the national legislature.
Accordingly, the reply to the questions from the national courts must be that, where a breach of Community law by a Member
State is attributable to the national legislature acting in a field in which it has a wide discretion to make legislative
choices, individuals suffering loss or injury thereby are entitled to reparation where the rule of Community law breached
is intended to confer rights upon them, the breach is sufficiently serious and there is a direct causal link between the breach
and the damage sustained by the individuals.  Subject to that reservation, the State must make good the consequences of the
loss or damage caused by the breach of Community law attributable to it, in accordance with its national law on liability.
However, the conditions laid down by the applicable national laws must not be less favourable than those relating to similar
domestic claims or framed in such a way as in practice to make it impossible or excessively difficult to obtain reparation.
The possibility of making reparation conditional upon the existence of fault (third question in Case C-46/93)
By its third question, the Bundesgerichtshof essentially seeks to establish whether, pursuant to the national legislation
which it applies, the national court is entitled to make reparation conditional upon the existence of fault (whether intentional
or negligent) on the part of the organ of the State to which the infringement is attributable.
As is clear from the case-file, the concept of fault does not have the same content in the various legal systems.
Next, it follows from the reply to the preceding question that, where a breach of Community law is attributable to a Member
State acting in a field in which it has a wide discretion to make legislative choices, a finding of a right to reparation
on the basis of Community law will be conditional,
inter alia
, upon the breach having been sufficiently serious.
So, certain objective and subjective factors connected with the concept of fault under a national legal system may well be
relevant for the purpose of determining whether or not a given breach of Community law is serious (see the factors mentioned
in paragraphs 56 and 57 above).
The obligation to make reparation for loss or damage caused to individuals cannot, however, depend upon a condition based
on any concept of fault going beyond that of a sufficiently serious breach of Community law.  Imposition of such a supplementary
condition would be tantamount to calling in question the right to reparation founded on the Community legal order.
Accordingly, the reply to the question from the national court must be that, pursuant to the national legislation which it
applies, reparation of loss or damage cannot be made conditional upon fault (intentional or negligent) on the part of the
organ of the State responsible for the breach, going beyond that of a sufficiently serious breach of Community law.
The actual extent of the reparation (question 4(a) in Case C-46/93 and the second question in Case C-48/93)
By these questions, the national courts essentially ask the Court to identify the criteria for determination of the extent
of the reparation due by the Member State responsible for the breach.
Reparation for loss or damage caused to individuals as a result of breaches of Community law must be commensurate with the
loss or damage sustained so as to ensure the effective protection for their rights.
In the absence of relevant Community provisions, it is for the domestic legal system of each Member State to set the criteria
for determining the extent of reparation.  However, those criteria must not be less favourable than those applying to similar
claims based on domestic law and must not be such as in practice to make it impossible or excessively difficult to obtain
reparation.
In particular, in order to determine the loss or damage for which reparation may be granted, the national court may inquire
whether the injured person showed reasonable diligence in order to avoid the loss or damage or limit its extent and whether,
in particular, he availed himself in time of all the legal remedies available to him.
Indeed, it is a general principle common to the legal systems of the Member States that the injured party must show reasonable
diligence in limiting the extent of the loss or damage, or risk having to bear the damage himself (Joined Cases C-104/89 and
C-37/90
Mulder and Others
v
Council and Commission
[1992] ECR I-3061, paragraph 33).
The Bundesgerichtshof asks whether national legislation may generally limit the obligation to make reparation to damage done
to certain, specifically protected individual interests, for example property, or whether it should also cover loss of profit
by the claimants.  It states that the opportunity to market products from other Member States is not regarded in German law
as forming part of the protected assets of the undertaking.
Total exclusion of loss of profit as a head of damage for which reparation may be awarded in the case of a breach of Community
law cannot be accepted.  Especially in the context of economic or commercial litigation, such a total exclusion of loss of
profit would be such as to make reparation of damage practically impossible.
As for the various heads of damage referred to in the Divisional Court's second question, Community law imposes no specific
criteria.  It is for the national court to rule on those heads of damage in accordance with the domestic law which it applies,
subject to the requirements set out in paragraph 83 above.
As regards in particular the award of exemplary damages, such damages are based under domestic law, as the Divisional Court
explains, on the finding that the public authorities concerned acted oppressively, arbitrarily or unconstitutionally.  In
so far as such conduct may constitute or aggravate a breach of Community law, an award of exemplary damages pursuant to a
claim or an action founded on Community law cannot be ruled out if such damages could be awarded pursuant to a similar claim
or action founded on domestic law.
Accordingly, the reply to the national courts must be that reparation by Member States of loss or damage which they have caused
to individuals as a result of breaches of Community law must be commensurate with the loss or damage sustained.  In the absence
of relevant Community provisions, it is for the domestic legal system of each Member State to set the criteria for determining
the extent of reparation. However, those criteria must not be less favourable than those applying to similar claims or actions
based on domestic law and must not be such as in practice to make it impossible or excessively difficult to obtain reparation.
National legislation which generally limits the damage for which reparation may be granted to damage done to certain, specifically
protected individual interests not including loss of profit by individuals is not compatible with Community law.  Moreover,
it must be possible to award specific damages, such as the exemplary damages provided for by English law, pursuant to claims
or actions founded on Community law, if such damages may be awarded pursuant to similar claims or actions founded on domestic
law.
Extent of the period covered by reparation (question 4(b) in Case C-46/93)
By this question, the Bundesgerichtshof asks whether the damage for which reparation may be awarded extends to harm sustained
before a judgment is delivered by the Court finding that an infringement has been committed.
Following from the reply to the second question, the right to reparation under Community law exists where the conditions set
out in paragraph 51 above are satisfied.
One of those conditions is that the breach of Community law must have been sufficiently serious.  The fact that there is a
prior judgment of the Court finding an infringement will certainly be determinative, but it is not essential in order for
that condition to be satisfied (see paragraphs 55, 56 and 57 of this judgment).
Were the obligation of the Member State concerned to make reparation to be confined to loss or damage sustained after delivery
of a judgment of the Court finding the infringement in question, that would amount to calling in question the right to reparation
conferred by the Community legal order.
In addition, to make the reparation of loss or damage conditional upon the requirement that there must have been a prior finding
by the Court of an infringement of Community law attributable to a Member State would be contrary to the principle of the
effectiveness of Community law, since it would preclude any right to reparation so long as the presumed infringement had not
been the subject of an action brought by the Commission under Article 169 of the Treaty and of a finding of an infringement
by the Court.  Rights arising for individuals out of Community provisions having direct effect in the domestic legal systems
of the Member States cannot depend on the Commission's assessment of the expediency of taking action  against a Member State
pursuant to Article 169 of the Treaty or on the delivery by the Court of any judgment finding an infringement (see, to this
effect, Joined Cases 314/81, 315/81, 316/81 and 83/82
Waterkeyn and Others
[1982] ECR 4337, paragraph 16).
Accordingly, the reply to the national court's question must be that the obligation for Member States to make good loss or
damage caused to individuals by breaches of Community law attributable to the State cannot be limited to damage sustained
after the delivery of a judgment of the Court finding the infringement in question.
The request that the temporal effects of the judgment should be limited
The German Government requests the Court to limit any damage to be made good by the Federal Republic of Germany to loss or
damage sustained after delivery of judgment in this case, in so far as the victims did not bring legal proceedings or make
an equivalent claim before.  It considers that such a temporal limitation of the effects of this judgment is necessary owing
to the scale of its financial consequences for the Federal Republic of Germany.
It must be borne in mind that, were the national court to find that the conditions for liability of the Federal Republic of
Germany are satisfied in this case, the State would have to make good the consequences of the damage caused within the framework
of its domestic law on liability.  Substantive and procedural conditions laid down by national law on reparation of damage
are able to take account of the requirements of the principle of legal certainty.
However, those conditions may not be less favourable than those relating to similar domestic claims and must not be such as
in practice to make it impossible or excessively difficult to obtain reparation (
Francovich and Others
, paragraph 43).
In view of the foregoing, there is no need for the Court to limit the temporal effects of this judgment.
Costs
The costs incurred by the Danish, German, Greek, Spanish, French, Irish and Netherlands Governments, the United Kingdom and
the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these
proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national courts, the
decision on costs is a matter for those courts.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Bundesgerichtshof, by order of 28 January 1993, and by the High Court of
Justice, Queen's Bench Division, Divisional Court, by order of 18 November 1992, hereby rules:
Rodríguez Iglesias
Kakouris
Edward
Hirsch
Mancini
Schockweiler
Moitinho de Almeida
Gulmann
Murray
Delivered in open court in Luxembourg on 5 March 1996.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
–
Languages of the cases: Englishand German.