CELEX: C1996/145/01
Language: en
Date: 1996-05-18 00:00:00
Title: JUDGMENT OF THE COURT of 5 March 1996 in Joined Cases C-46/93 and C-48/93 (references for a preliminary ruling from the Bundesgerichtshof and from the High Court of Justice, Queen's Bench Division, Divisional Court): Brasserie du Pêcheur SA v. Federal Republic of Germany and the Queen v. Secretary of State for Transport, ex parte Factortame Ltd and Others (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)

18 . 5 . 96           EN                 Official Journal of the European Communities                                    No C 145/ 1
                                                                    I
                                                              (Information)
                                               COURT OF JUSTICE
                                                         COURT OF JUSTICE
                JUDGMENT OF THE COURT                                   2 . Where a breach of Community law by a Member State is
                        of 5 March 1996                                     attributable to the national legislature acting in a field in
                                                                            which it has a wide discretion to make legislative
in Joined Cases C-46/93 and C-48/93 ( references for a                      choices, individuals suffering loss or injury thereby are
preliminary ruling from the Bundesgerichtshof and from the                  entitled to reparation where the rules of Community law
High Court of Justice, Queen's Bench Division, Divisional                   breached is intended to confer rights upon them, the
Court ): Brasserie du Pêcheur SA v. Federal Republic of                     breach is sufficiently serious and there is a direct causal
Germany and the Queen v. Secretary of State for Transport,                  link between the breach and the damage sustained by the
             ex parte Factortame Ltd and Others ( 1 )                       individuals. Subject to that reservation, the State must
(Principle of Member State liability for damage caused to                   make good the consequences of the loss or damage
individuals by breaches of Community law attributable to                    caused by the breach of Community law attributable to
the State — Breaches attributable to the national legislature               it, in accordance with its national law on liability.
  — Conditions for State liability — Extent of reparation)                  However, the conditions laid down by the applicable
                          ( 96/C 145/01 )                                   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
        (Languages of the cases: German and English)                        difficult to obtain reparation.
In Joined Cases C-46/93 and C 48/93 : reference to the Court
under Article 177 of the EC Treaty by the Bundesgerichtshof            3 . Pursuant to the national legislation which it applies,
( Case C-46/93 ) and by the High Court of Justice, Queen's                  reparation of loss or damage cannot be made
Bench Division, Divisional Court ( Case C-48/93 ) for a                     conditional upon fault (intentional or negligent) on the
preliminary ruling in the proceedings pending before those                  part of the organ of the State responsible for the breach,
courts between Brasserie du Pêcheur SA and Federal                          going beyond that of a sufficiently serious breach of
Republic of Germany and The Queen v. Secretary of State                     Community law.
for Transport ex parte: Factortame Ltd and Others — on the
interpretation of the principle of the liability of the State for      4 . Reparation by Member States of loss or damage which
damage caused to individuals by breaches of Community                       they have caused to individuals as a result of breaches
law attributable to the State — the Court composed of: G. C.                of Community law must be commensurate with the
Rodriguez Iglesias ( Rapporteur), President, C. N. Kakouris,                loss or damage sustained. In the absence of relevant
D. A. O. Edward and G. Hirsch ( Presidents of Chambers ),                   Community provisions, it is for the domestic legal
G. F. Mancini, F. A. Schockweiler, J. C. Moitinho de                        system of each Member State to set the criteria for
Almeida, C. Gulmann and J. L. Murray, Judges; G. Tesauro,                   determining the extent of reparation. However, those
Advocate-General; H. von Holstein, Deputy Registrar and                     criteria must not be less favourable than those applying
H. A. Riihl, Principal Administrator, gave a judgment on                    to similar claims or actions based on domestic law and
5 March 1996 , in which it rules :                                          must not be such as in practice to make it impossible or
                                                                            excessively difficult to obtain reparation. National
I. The principle that Member States are obliged to make                     legislation which generally limits the damage for which
     good damage caused to individuals by breaches of                       reparation may be granted to damage done to certain,
     Community law attributable to the State is applicable                  specifically protected individual interests not including
     where the national legislature was responsible for the                 loss of profit by individuals is not compatible with
     breach in question.                                                    Community law. Moreover, it must be possible to award
 ---pagebreak--- No C 145/2              EN                    Official Journal of the European Communities                                       18 . 5 . 96
    specific damages, such as the exemplary damages                      Reference for a preliminary ruling by the Consiglio di Stato
    provided for by English law, pursuant to claims or                   by order of that court of 6 December 1995 in the cases of 1 .
    actions founded on Community law, if such damages                    Maria Antonella Garofalo, 2 . Giovanni Pagano, 3 . Rosa
    may be awarded pursuant to similar claims or actions                 Bruna Vitale, 4 . Francesca Nuccio, 5 . Giacomo Cangialosi,
    founded on domestic law.                                             6. Giacoma D'Amico, 7. Giulia Lombardo, 8 . Emanuela
                                                                         Giovenco, 9. Caterina Lo Gaglio, 10. Daniela Guerrera, 11 .
                                                                         Cesare Di Marco v. Ministero della Sanità and Locai Health
5 . The obligation for Member States to make good loss                                       Authority No 58 , Palermo
    or damage caused to individuals by breaches of
                                                                                           ( Cases C-69/96 to C-79/96 )
     Community law attributable to the State cannot be
    limited to damage sustained after the delivery of a                                             ( 96/C 145/03 )
    judgment of the Court finding the infringement in
    question.
                                                                         Reference has been made to the Court of Justice of the
(') OJ No C 92 , 2 . 4 . 1993 .                                          European Communities by orders of the Consiglio di Stato
    OJ No C 94, 3 . 4 . 1993 .                                           of 6 December 1995 , which were received at the Court
                                                                         Registry on March 1996 , for a preliminary ruling in the
                                                                         cases of 1 . Maria Antonella Garofalo, 2 . Giovanni Pagano,
                                                                         3 . Rosa Bruna Vitale, 4 . Francesca Nuccio, 5 . Giacomo
                                                                         Cangialosi , 6 . Giacoma D'Amico, 7. Giulia Lombardo, 8 .
                                                                         Emanuela Giovenco, 9 . Caterina Lo Gaglio, 10 . Daniela
                                                                         Guerrera , 11 . Cesare Di Marco v. Ministero délia Sanità
                                                                         ( Ministry of Health ) and Local Health Authority No 58 ,
    ORDER OF THE PRESIDENT OF THE COURT                                  Palermo, on the following questions :
                     of 26 February 1996
in Case C- 1 8 1/95 : Biogen Inc. v. Smithkline Beecham
                         Biologicals SA ( 1 )                            ( a ) Must the term 'court or tribunal' in Article 177 of the
                                                                               Treaty be interpreted extensively so as to include not
(Articles 20 and 37 of the Statute of the Court ofJustice of                   only judicial proceedings specifically defined as such in
the European Communities — Participation in proceedings                        national    law    but    also  contentious-administrative
            under Article 1 77 of the EC Treaty)                               proceedings characterized not only by impartiality, the
                          ( 96/ C 145/02 )                                     guarantee of full disclosure between parties, and so
                                                                               forth, but also by the fact that the decision cannot be
                                                                               revoked or amended by any other administrative of
                (Language of the case: French)                                 judicial authority ?
(Provisional translation; the definitive translation will be
         published in the European Court Reports)                        ( b ) Does the expression 'all those doctors who on
                                                                               31 December 1994 possess such a right' in Article 7 ( 2 )
                                                                               of Directive 86/457/EEC ( 1 ) refer to those who had
In Case C-181 /95 : reference to the Court under Article 177                   theoretically obtained entitlement to enter into a
of the EC Treaty from the Tribunal de Commerce                                 service relationship ( as employees, under contractual
( Commercial Court), Nivelles, Belgium, for a preliminary                      arrangements, as members of temporary staff, etc .)
ruling in the proceedings pending before that court between                    with the national health service, or only those who had
Biogen Inc . and Smithkline Beecham Biologicals SA — on                        already in fact entered into such a relationship ?
the interpretation of Council Regulation ( EEC ) No 1768/92
of 1 8 June 1 992 concerning the creation of a supplementary
protection certificate for medicinal products ( OJ 1992                   'c ) If the answer to the second question upholds the second
L 182 , p . 1 ) — the President of the Court, after hearing                    possibility, is the Directive to be interpreted as meaning
the Advocate-General, N. Fennelly, made an order on                            that the national authority is in any event entitled to
26 February 1996 , the operative part of which is as                           extend the term 'acquired rights' so as to include all
follows :                                                                      those who, on the date indicated, had acquired an
                                                                               ordinary certificate of entitlement to practise medicine,
                                                                               or as meaning that an 'acquired right' must be taken to
1 . The application to intervene by Research Corporation                       refer to a higher level of qualification than an ordinary
     Technologies Inc. is dismissed as inadmissible.                           certificate of entitlement to practise medicine ?
2.   There is no need to rule on costs.
                                                                         (') OJ No L 267, 19 . 9 . 1986 , p . 26 .
(!) OJ No C 208 , 12 . 8 . 1995 .