3.

By the third question the Netherlands court asks specifically whether the second paragraph of Article 215 of the EEC Treaty must be interpreted as meaning that, because the Community enacted the regulation which was then declared void by the Court of Justice, it is directly liable to a person who has suffered damage as a consequence of the normal application of that regulation by the competent national agency. I shall begin by pointing out that the Court in its decisions (and in particular in the above-mentioned judgment of 25 May 1978, HNL), has already clarified the conditions which must be fulfilled in order that the Community may be held liable for damage arising from invalid legislation. I do not consider it necessary to repeat those conditions here. In fact the court making the reference is not seeking fresh details regarding the principles evolved in the case-law of the Court of Justice concerning the liability of the Community for damage suffered by third parties as a result of the enactment of unlawful legislative measures. It wishes rather to ascertain whether an infringement of the kind which the Court found in its judgments of 5 July 1977 in Cases 114/76 Bela-Mühle, 166/76 Granaría and Joined Cases 119 and 120/76 Ölmühle and Becher ([1977] ECR 1211 1247 and 1269,) in relation to the said regulation of the Council may render liable not only the Community but also the Member States whose agencies applied the invalid Community legislation. This is made clear by the fourth question, which is closely connected to that preceding it in that it presupposes that the Community has been found directly and principally liable and merely hypothesizes as to whether a Member State may be held liable in solidum or pro quota. In this connexion it should first of all be emphasized that the factors which give rise to liability on the part of the Communities and on the part of the Member States are not identical: The Community may be held liable for having enacted a measure of economic policy contrary to specified principles of Community law; such conduct entails the obligation laid down in the second paragraph of Article 215 to make good damage caused to individuals — provided, naturally, that the conditions specified most recently in the said judgment of 25 May 1978, HNL, are present. As regards the Member State, on the other hand, the question is whether it may be held jointly and severally liable for having applied the Community legislative measure which is contrary to those principles and which has subsequently been declared invalid by the Court. Such conduct is different and certainly falls outside the rule contained in the second paragraph of Article 215, which deals solely with damage caused by the Community institutions or by its servants in the performance of their duties. This leads me to a second and important point: there is no provision of Community law governing the non-contractual liability of the Member States. It is, of course, conceivable that a Member State might be required to make good damage suffered by individuals as a result of an unlawful, non-contractual measure which constitutes an infringement of Community provisions or is the result thereof; that liability, however, must be established by the national courts ‘in the context of the provisions of national law relating to the liability of the State’ (although it is clear that the existence of an infringement of Community law must be ascertained on the basis of Community law). This was made clear by the Court of Justice in its judgment of 22 January 1976 in Case 60/75 Russo v AIMA ([1976] ECR 45, cf. in particular paragraph 9 of the judgment). It is accordingly necessary to establish within each national legal system whether the State is required to make good the damage caused by its failure to comply with Community measures; however, and I emphasize this point, it must be a failure for which such State is responsible. Such a situation is quite different from that in the present case. In fact in the present case there has been no infringement of Community law by a Member State; accordingly, there is no reason to suppose that the State has incurred liability. I have already said that under Community law a binding measure of general application which contains a defect which may lead to its annulment (in particular, infringement of the Treaty or of any rule of law relating to its application) continues in force with regard to the persons concerned until it is declared invalid by the Court of Justice. This amounts to stating that an unlawful provision remains, notwithstanding its unlawfulness, binding until the time I have indicated. It is therefore impossible to refer to unlawful measures on the part of a Member State, or by an agency subject to its control, in relation to measures in implementation of Community provisions in force. In setting out these considerations I have had regard to Community regulations which are not only unlawful but which, by way of hypothesis, may also give rise to liability on the part of the Community. It is clear that the same considerations apply a fortiori where, as in the present case, the unlawful and invalid regulation does not display characteristics which render the Community liable for the damage caused. Ultimately, there are in this case a number of reasons for discounting the view that a Member State which has applied a Community regulation subsequently declared to be invalid is liable jointly and severally or pro quota with the Community. There is the difference between the courses of conduct of the Community and of the Member State which, it is maintained, are preconditions for liability; there is the difference between the legal orders which govern respectively the non-contractual liability of the Community and that of the State; finally, and most important, there is the fact that the Member State has not committed a wrongful act by implementing a regulation in force, even if it is defective because it is at variance with higher rules of Community law. Two factors, however, appear to be relevant (although they do not affect the reply to be given to the national court). First: in certain cases the Member States, in applying a regulation, enjoy a margin of discretion; this is so above all where such application requires the enactment of national implementing or organizational provisions. The exercise of that discretionary power may lead a State to enact specific provisions which are at variance with Community law, even if only in the sense of misapplying it. It is clear that in that case it would no longer be sufficient to maintain that those provisions were in implementation of a Community regulation for the State to be considered to be exempt from liability. In so far as implementing measures by a State give rise to infringements of Community law which may be imputed to specific options chosen by the State it may be held to be answerable therefor. In specific cases the solution to the above-mentioned problem of liability will depend, then, not only on establishing that there has been an infringement of Community law but also on the existence of the preconditions for the liability of the State under national law. Secondly, even those measures which the Member State is obliged to enact under a regulation may be described as ‘implementing provisions’ only whilst that regulation is in force and accordingly must be applied. When a regulation is declared invalid it ceases to have effect. Accordingly, the conduct of a Member State which continues thereafter to give effect to provisions adopted in implementation of that regulation may no longer be justified in terms of its obligation to respect Community provisions in force.