**Joined Cases C-46/93 and C-48/93****Brasserie du Pêcheur SAvFederal Republic of Germany****and****The QueenvSecretary of State for Transport,ex parte Factortame Ltd and Others**(References for a preliminary ruling from the Bundesgerichtshof and the High Court of Justice, Queen's Bench Division, Divisional            Court)         

«(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)»

Report for the Hearing     
Opinion of Advocate General Tesauro delivered on 28 November 1995     
Judgment of the Court, 5 March 1996      
Summary of the Judgment
*1..
Community law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals – Directly applicable nature of the provision infringed – No effect*
*2..
Community law – Breach by Member States – Consequences – No express, specific provisions in the Treaty – Definition by the Court of Justice – Method  
(EEC Treaty, Art. 164)*
*3..
Community law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals – Infringement attributable to the national legislature – No effect*
*4..
Community law – Rights conferred on individuals – Infringement by a Member State – Infringement attributable to the national legislature having a wide discretion to make legislative choices – Obligation to make good damage caused to individuals – Conditions – Manner of reparation – Application of national law – Limits  
(EEC Treaty, Arts 5 and 215, second para.)*
*5..
Community law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals – Determination of the damage for which reparation may be granted – Application of national law – Limits*
*6..
Community law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals – Conditions – Reparation limited to damage sustained after delivery of a judgment finding the relevant infringement – Not permissible*
- 1.
 The application of the principle 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 cannot be discarded where the breach relates to a provision of directly         applicable Community law. The right of individuals to rely on directly effective provisions before national courts is only a minimum guarantee and is         not sufficient in itself to ensure the full and complete implementation of Community law.  That right, whose purpose is to         ensure that provisions of Community law prevail over national provisions, 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.          
- 2.
 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.          
- 3.
 The principle that Member States are obliged to make good loss or damage caused to individuals by breaches of Community law         for which they can be held responsible is applicable where the national legislature was responsible for the breaches. That principle, which is inherent in the system of the Treaty, 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, and, in view of the fundamental         requirement of the Community legal order that Community law be uniformly applied, the obligation to make good damage enshrined         in that principle cannot depend on domestic rules as to the division of powers between constitutional authorities.          
- 4.
 In order to define the conditions under which a Member State may incur liability for damage caused to individuals by a breach         of Community law, account should first be taken of the principles inherent in the Community legal order which form the basis         for State liability, namely, the full effectiveness of Community rules and the effective protection of the rights which they         confer and the obligation to cooperate imposed on Member States by Article 5 of the Treaty.  Reference should also be made         to the rules which have been defined on non-contractual liability on the part of the Community, in so far as, under the second         paragraph of Article 215 of the Treaty, they were constructed on the basis of the general principles common to the laws of         the Member States and it is not appropriate, in the absence of particular justification, to have different rules governing         the liability of the Community and the liability of Member States in like circumstances, since 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. Accordingly, 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. In particular, pursuant to the national legislation which it applies, the national court cannot make reparation of loss or         damage 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 decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State 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 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.          
- 5.
 Reparation from Member States for loss or damage 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 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.         
- 6.
 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. Since the right to reparation under Community law exists where the requisite conditions are satisfied, to allow 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 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 the Member State concerned         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.       

-    JUDGMENT OF THE COURT5 March 1996  (1) 

((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))

In Joined Cases C-46/93 and C-48/93, 
REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesgerichtshof (Case C-46/93) and by the High Court of            Justice, Queen's Bench Division, Divisional Court (Case C-48/93) for a preliminary ruling in the proceedings pending before            those courts between             **Brasserie du Pêcheur SA**
and
**Federal Republic of Germany**and between  **The Queen**
and
**Secretary of State for Transport****ex parte: Factortame Ltd and Others**on the interpretation of the principle of the liability of the State for damage caused to individuals by breaches of Community            law attributable to the State,
THE COURT,,
composed of: G.C. Rodríguez Iglesias (Rapporteur), President, C.N. Kakouris, D.A.O. Edward and G. Hirsch (Presidents of Chambers), G.F. Mancini, F.A. Schockweiler, J.C. Moitinho de Almeida, C. Gulmann and J.L. Murray, Judges,             Advocate General: G. Tesauro,