# C_2006326EN.01003602.xml

| 30.12.2006 | EN | Official Journal of the European Union | C 326/36 |
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30.12.2006

EN

Official Journal of the European Union

C 326/36

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2006 — Danske Slagterier v Federal Republic of Germany

(Case C-445/06)

(2006/C 326/77)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Danske Slagterier

Applicant:

Defendant: Federal Republic of Germany

Defendant:

Questions referred

| 1. | Do Article 5(1)(o) and Article 6(1)(b)(iii) of Council Directive 64/433/EEC (1) of 26 June 1964 on health problems affecting intra-Community trade in fresh meat, as reenacted by Council Directive 91/497/EEC (2) of 29 July 1991, in conjunction with Article 5(1), Article 7 and Article 8 of Council Directive 89/662/EEC (3) of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market place producers and distributors of pigmeat in a legal position which can give rise to a claim seeking to establish State liability under Community law in the event of errors of transposition or application? |
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1.

Do Article 5(1)(o) and Article 6(1)(b)(iii) of Council Directive 64/433/EEC (1) of 26 June 1964 on health problems affecting intra-Community trade in fresh meat, as reenacted by Council Directive 91/497/EEC (2) of 29 July 1991, in conjunction with Article 5(1), Article 7 and Article 8 of Council Directive 89/662/EEC (3) of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market place producers and distributors of pigmeat in a legal position which can give rise to a claim seeking to establish State liability under Community law in the event of errors of transposition or application?

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| 2. | May the producers and distributors of pigmeat — irrespective of the answer to the first question — rely on an infringement of Article 30 of the EC Treaty (Article 28 EC) in order to substantiate a claim seeking to establish State liability under Community law where the transposition and application of the abovementioned directives are contrary to Community law? |
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2.

May the producers and distributors of pigmeat — irrespective of the answer to the first question — rely on an infringement of Article 30 of the EC Treaty (Article 28 EC) in order to substantiate a claim seeking to establish State liability under Community law where the transposition and application of the abovementioned directives are contrary to Community law?

| 3. | Does Community law require the limitation period for a claim seeking to establish State liability under Community law to be interrupted in the light of Treaty infringement proceedings under Article 226 EC or to be suspended pending the end of those proceedings at least where there is no effective domestic legal remedy to compel the Member State to transpose a directive? |
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3.

Does Community law require the limitation period for a claim seeking to establish State liability under Community law to be interrupted in the light of Treaty infringement proceedings under Article 226 EC or to be suspended pending the end of those proceedings at least where there is no effective domestic legal remedy to compel the Member State to transpose a directive?

| 4. | Does the limitation period for a claim which seeks to establish State liability under Community law and is based on the inadequate transposition of a directive and an accompanying (de facto) import ban commence, irrespective of the applicable national law, only with the full transposition of the directive, or can the limitation period begin to run, in accordance with national law, when the first injurious effects have already been produced and further injurious effects are foreseeable? If full transposition has a bearing on the commencement of the limitation period, is this true in general or only if the directive confers a right on individuals? |
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4.

Does the limitation period for a claim which seeks to establish State liability under Community law and is based on the inadequate transposition of a directive and an accompanying (de facto) import ban commence, irrespective of the applicable national law, only with the full transposition of the directive, or can the limitation period begin to run, in accordance with national law, when the first injurious effects have already been produced and further injurious effects are foreseeable? If full transposition has a bearing on the commencement of the limitation period, is this true in general or only if the directive confers a right on individuals?

| 5. | Given that the Member States may not frame the conditions for reparation of loss and damage in respect of claims seeking to establish State liability under Community law less favourably than those relating to similar domestic claims and it may not be made virtually impossible or excessively difficult to obtain reparation, are there, generally, objections to a national rule under which liability for damages does not arise where the injured party has wilfully or negligently failed to avert the damage by employing a legal remedy? Are there also objections to this ‘primacy of primary legal protection’ where it is subject to the proviso that it must be reasonable for the party concerned? Is the fact that the relevant court is likely to be unable to answer the questions of Community law at issue without making a reference to the Court of Justice of the European Communities or that Treaty infringement proceedings under Article 226 EC are already pending sufficient to make it unreasonable under European Community law? |
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5.

Given that the Member States may not frame the conditions for reparation of loss and damage in respect of claims seeking to establish State liability under Community law less favourably than those relating to similar domestic claims and it may not be made virtually impossible or excessively difficult to obtain reparation, are there, generally, objections to a national rule under which liability for damages does not arise where the injured party has wilfully or negligently failed to avert the damage by employing a legal remedy? Are there also objections to this ‘primacy of primary legal protection’ where it is subject to the proviso that it must be reasonable for the party concerned? Is the fact that the relevant court is likely to be unable to answer the questions of Community law at issue without making a reference to the Court of Justice of the European Communities or that Treaty infringement proceedings under Article 226 EC are already pending sufficient to make it unreasonable under European Community law?

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(1)  OJ, English Special Edition 1963-64, p. 185.

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(2)  OJ 1991 L 268, p. 69.

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(3)  OJ 1989 L 395, p. 13.

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