CELEX: 62003CJ0173
Language: en
Date: 2006-06-13 00:00:00
Title: Judgment of the Court (Grand Chamber) of 13 June 2006.#Traghetti del Mediterraneo SpA v Repubblica italiana.#Reference for a preliminary ruling: Tribunale di Genova - Italy.#Non-contractual liability of Member States - Damage caused to individuals by infringements of Community law attributable to a national court adjudicating at last instance - National legislation limiting State liability to cases of intentional fault and serious misconduct on the part of the court - Liability excluded in connection with the interpretation of provisions of law or assessment of facts or evidence in the exercise of judicial functions.#Case C-173/03.

Case C-173/03
      Traghetti del Mediterraneo SpA, in liquidation
      v
      Repubblica italiana
      (Reference for a preliminary ruling from the Tribunale di Genova)
      (Non-contractual liability of Member States – Damage caused to individuals by infringements of Community law attributable to a national court adjudicating at last instance
         – National legislation limiting State liability to cases of intentional fault and serious misconduct on the part of the court
         – Liability excluded in connection with the interpretation of provisions of law or assessment of facts or evidence in the exercise
         of judicial functions)
      
      Summary of the Judgment
      1.        Community law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to
            individuals 
      2.        Community law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to
            individuals 
      1.        Community law precludes national legislation which excludes State liability, in a general manner, for damage caused to individuals
         by an infringement of Community law attributable to a court adjudicating at last instance by reason of the fact that the infringement
         in question results from an interpretation of provisions of law or an assessment of facts or evidence carried out by that
         court.
      
      To exclude all State liability in such circumstances would be tantamount to rendering meaningless the principle that Member
         States are obliged to make good damage caused to individuals by clear infringements of Community law following upon a decision
         of a national court adjudicating at last instance, since such exclusion would not guarantee effective judicial protection
         to individuals of the rights conferred on them by Community law.
      
      (see paras 33, 36, 40, 44, 46, operative part)
      2.        Member State liability for damage caused to individuals by reason of an infringement of Community law attributable to a national
         court adjudicating at last instance can be incurred in the exceptional case where that court manifestly infringed the applicable
         law. Such manifest infringement is to be assessed, inter alia, in the light of a number of criteria, such as the degree of
         clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable
         or inexcusable, and the non-compliance by the court in question with its obligation to make a reference for a preliminary
         ruling under the third paragraph of Article 234 EC; it is in any event presumed where the decision involved is made in manifest
         disregard of the case-law of the Court on the subject.
      
      In that regard, although it remains possible for national law to define the criteria relating to the nature or degree of the
         infringement which must be met before State liability can be incurred for an infringement of Community law attributable to
         a national court adjudicating at last instance, under no circumstances may such criteria impose requirements stricter than
         that of a manifest infringement of the applicable law, as set out in paragraphs 53 to 56 of the judgment in Case C‑224/01
         Köbler [2003] ECR I-10239.
      
      Accordingly, Community law also precludes national legislation which limits such liability solely to cases of intentional
         fault and serious misconduct on the part of the court, if such a limitation were to lead to exclusion of the liability of
         the Member State concerned in other cases where a manifest infringement of the applicable law was committed.
      
      (see paras 42-44, 46, operative part)
JUDGMENT OF THE COURT (Grand Chamber)
      13 June 2006 (*)
      
      (Non-contractual liability of Member States – Damage caused to individuals by infringements of Community law attributable to a national court adjudicating at last instance
         – National legislation limiting State liability to cases of intentional fault and serious misconduct on the part of the court
         – Liability excluded in connection with the interpretation of provisions of law or assessment of facts or evidence in the exercise
         of judicial functions)
      
      In Case C-173/03,
      REFERENCE for a preliminary ruling under Article 234 EC from the Tribunale di Genova (Italy), made by decision of 20 March
         2003, received at the Court on 14 April 2003, in the proceedings
      
      Traghetti del Mediterraneo SpA, in liquidation
      
      v
      Repubblica italiana,
      THE COURT (Grand Chamber),
      composed of V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur), K. Schiemann and J. Makarczyk, Presidents of Chambers,
         J.N. Cunha Rodrigues,  R. Silva de Lapuerta, K. Lenaerts, P. Kūris, E. Juhász and U. Lõhmus, Judges,
      
      Advocate General: P. Léger,
      Registrar: M. Ferreira, Principal Administrator,
      having regard to the written procedure and further to the hearing on 7 December 2004,
      after considering the observations submitted on behalf of:
      –        Traghetti del Mediterraneo SpA, in liquidation, by V. Roppo, P. Canepa and S. Sardano, avvocati,
      –        the Italian Government, by I.M. Braguglia, acting as Agent, and by G. Aiello and G. De Bellis, avvocati dello Stato,
      –        the Greek Government, by E. Samoni and Z. Chatzipavlou, and by M. Apessos, K. Boskovits and K. Georgiadis, acting as Agents,
      –        Ireland, by D. O’Hagan, acting as Agent, and by P. Sreenan SC and P. McGarry BL, 
      –        the Netherlands Government, by S. Terstal, acting as Agent,
      –        the United Kingdom Government, by R. Caudwell, acting as Agent, and by  D. Anderson QC and M. Hoskins, Barrister, 
      –        the Commission of the European Communities, by D. Maidani and V. Di Bucci, acting as Agents,
      after hearing the Opinion of the Advocate General at the sitting on 11 October 2005,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the principle of and the conditions governing the non-contractual liability
         of Member States for damage caused to individuals by a breach of Community law where that breach is attributable to a national
         court.
      
      2        The reference was made in the context of proceedings brought against the Repubblica italiana by Traghetti del Mediterraneo
         SpA, a maritime transport undertaking currently in liquidation (‘TDM’), for compensation for the damage suffered as a result
         of an incorrect interpretation by the Corte Suprema di Cassazione (Italian Supreme Court of Cassation) of the Community rules
         on competition and State aid and, in particular, because of that court’s refusal to accede to its request that the relevant
         questions of interpretation of Community law be referred to the Court of Justice.
      
       National legal context 
      3        Pursuant to Article 1(1) of Law No 117 of 13 April 1988 on compensation for damage caused in the exercise of judicial functions
         and the civil liability of judges (legge No 117 [sul] risarcimento dei danni cagionati nell’ esercizio delle funzioni guidiziarie
         e responsabilità civile dei magistrati (GURI No 88 of 15 April 1988, p. 3; ‘Law No 117/88’), that Law is to apply ‘to all
         members of the ordinary, administrative, financial, military and special judiciary exercising a judicial function of any type,
         and to other persons participating in the exercise of a judicial function’.
      
      4        Article 2 of Law No 117/88 provides:
      
      ‘1.      Any person who has sustained unjustifiable damage as a result of judicial conduct, acts or measures on the part of a judge
         who is guilty of intentional fault or serious misconduct in the exercise of his functions, or as a result of denial of justice,
         may bring proceedings against the State for compensation for pecuniary damage he has suffered or non-pecuniary damage caused
         to him by being deprived of his personal liberty.
      
      2.      In the exercise of judicial functions the interpretation of provisions of law or the assessment of facts and evidence shall
         not give rise to liability.
      
      3.      The following constitute serious misconduct: 
      (a)      a serious breach of the law resulting from inexcusable negligence;
      (b)      the assertion, due to inexcusable negligence, of a fact the existence of which is indisputably refuted by the case-file;
      (c)      the denial, due to inexcusable negligence, of a fact the existence of which is indisputably established by documents in the
         case-file;
      
      (d)      the adoption of a decision concerning personal liberty in a case other than those provided for by law or without due reason.’
         
      
      5        Under the first sentence of Article 3(1) of Law No 117/88, furthermore, ‘any refusal, omission or delay by a judge in regard
         to the taking of measures for which he is responsible where, after expiry of the statutory time-limit for taking the measure
         in question, a party has submitted a request for such a measure and, without valid reason, no measure has been taken within
         30 days following the date on which the application was lodged with the court registry’ constitutes a denial of justice. 
      
      6        The subsequent articles of Law No 117/88 lay down the conditions and detailed rules under which an action for compensation
         may be brought pursuant to Article 2 or 3 of that Law, and actions which may be brought, subsequently, against a judge guilty
         of intentional fault, serious misconduct in the exercise of his functions or a denial of justice.
      
       Background to the dispute in the main proceedings and the questions referred for a preliminary ruling
      7        TDM and Tirrenia di Navigazione (‘Tirrenia’) are two maritime transport undertakings which, in the 1970s, ran regular ferry
         services between mainland Italy and the islands of Sardinia and Sicily.  In 1981, when it had entered into an arrangement
         with its creditors, TDM brought proceedings against Tirrenia before the Tribunale di Napoli (Naples District Court) seeking
         compensation for the damage that it claimed to have suffered during the preceding years as a result of the low-fare policy
         operated by Tirrenia. 
      
      8        In that regard, TDM also submitted that its competitor had failed to comply with Article 2598(3) of the Italian Civil Code
         relating to acts of unfair competition and had infringed Articles 85, 86, 90 and 92 of the EEC Treaty (subsequently Articles
         85, 86, 90 and 92 of the EC Treaty and now Articles 81 EC, 82 EC, 86 EC and, after amendment, 87 EC respectively) since, in
         its view, Tirrenia had infringed the basic rules of that Treaty and, in particular, abused its dominant position on the market
         in question by operating with fares well below cost owing to its having obtained public subsidies, the legality of which was
         doubtful under Community law. 
      
      9        By decision of 26 May 1993, upheld on appeal by the Corte d’appello di Napoli (Naples Court of Appeal) of 13 December 1996,
         registered on 7 January 1997, the action for compensation was, however, dismissed by the Italian courts on the ground that
         the subsidies granted by the authorities of that State were legal, since they reflected public interest objectives in connection,
         in particular, with the development of the Mezzogiorno and, in any event, did not adversely affect the operation of sea links
         other than and competing with those objected to by TDM.  Thus it could not be held that Tirrenia was responsible for acts
         of unfair competition.
      
      10      Taking the view, for his part, that those two decisions were vitiated by errors of law since, inter alia, they were based
         on an incorrect interpretation of the Treaty rules on State aid, the administrator of TDM lodged an appeal against the judgment
         of the Corte d’appello, requesting the Corte Suprema di Cassazione to submit the relevant questions of interpretation of Community
         law to the Court of Justice pursuant to the third paragraph of Article 117 of the EC Treaty (now the third paragraph of Article
         234 EC).
      
      11      By its judgment No 5087 of 19 April 2000 (‘the judgment of 19 April 2000’), however, the Corte Suprema di Cassazione refused
         to accede to that request on the ground that the approach adopted by the court ruling on the substance followed the letter
         of the relevant provisions of the Treaty and was, moreover, perfectly consistent with the Court’s case-law, in particular
         its judgment in Case 13/83 Parliament v Council [1985] ECR 1513.
      
      12      In reaching that conclusion, the Corte Suprema di Cassazione noted, firstly, with regard to the alleged breach of Articles
         90 and 92 of the Treaty, that those articles allow, on certain conditions, an exception to the general prohibition of State
         aid, in order to promote the economic development of underprivileged regions or to meet demands for goods or services which
         cannot be fully satisfied by the operation of free competition.  According to that court, those conditions were met exactly
         in the present case since, during the period under consideration (between 1976 and 1980), bulk transport between mainland
         Italy and its main islands could not be operated by sea owing to the costs involved, so that it was necessary to meet the
         ever more pressing demand for that type of service by entrusting the running of such transport to a public concessionary applying
         a set schedule of charges.
      
      13      According to that court, the distortion of competition ensuing from the existence of that concession did not, however, imply
         that the aid granted was automatically unlawful.  The grant of such a public service concession always, by implication, had
         the effect of distorting competition and TDM had not succeeded in demonstrating that Tirrenia had taken advantage of the aid
         granted by the State to make profits from activities other than those for which the subsidies were actually granted.
      
      14      With regard, secondly, to the plea alleging infringement of Articles 85 and 86 of the Treaty, this was dismissed by the Corte
         Suprema di Cassazione as unfounded, on the ground that the activity of maritime cabotage had not been liberalised at the material
         time and that the restricted nature and geographical extent of that activity did not allow for clear identification of the
         relevant market for the purposes of Article 86 of the Treaty.   In that context that court held, however, that although it
         was difficult to identify the market, there could none the less be real competition in the sector in question since the aid
         granted in this case affected only one activity amongst the numerous activities traditionally carried out by a maritime transport
         undertaking and that, furthermore, it was confined to a single Member State.
      
      15      Consequently, in those circumstances, the Corte Suprema di Cassazione dismissed the appeal before it, having also rejected
         the complaints raised by TDM alleging infringement of the national provisions on acts of unfair competition and complaining
         that the Corte d’appello had failed to rule on TDM’s request that the relevant questions be referred to the Court of Justice.
         The proceedings before the referring court arise from that decision to dismiss the appeal.
      
      16      Taking the view that the judgment of 19 April 2000 was based on an incorrect interpretation of the Treaty rules on competition
         and State aid and on the erroneous premiss that there was settled case-law of the Court of Justice on the matter, the administrator
         of TDM, which had in the meantime been put into liquidation, instituted proceedings against the Repubblica italiana before
         the Tribunale di Genova (Genoa District Court) for compensation for the damage suffered by that undertaking as a result of
         the errors of interpretation committed by the Corte Suprema di Cassazione and of the breach of its obligation to make a reference
         for a preliminary ruling pursuant to the third paragraph of Article 234 EC.
      
      17      Relying, in particular, in that respect, on Commission Decision 2001/851/EC of 21 June 2001 on the State aid awarded to the
         Tirrenia di Navigazione shipping company by Italy (OJ 2001 L 318, p. 9) – a decision relating, it is true, to subsidies granted
         after the period at issue in the main proceedings, but adopted following a procedure instituted by the Commission of the European
         Communities before the hearing before the Corte Suprema di Cassazione in the case which gave rise to the judgment of 19 April
         2000 – TDM submits that, had that court made a reference to the Court of Justice, the outcome of the appeal would have been
         entirely different.  Like the Commission in the abovementioned decision, the Court would have laid emphasis on the Community
         dimension of the maritime cabotage and the difficulties inherent in assessing the compatibility of public subsidies with the
         rules of the Treaty on State aid, which would have led the Corte Suprema di Cassazione to declare that the aid granted to
         Tirrenia was unlawful. 
      
      18      The Repubblica italiana disputes even the admissibility of that action for damages, basing its arguments on the provisions
         of Law No 117/88 and, in particular, on Article 2(2) thereof, pursuant to which the interpretation of provisions of law in
         the context of the exercise of judicial functions cannot give rise to State liability.  If, however, the action should be
         held admissible by the referring court, it submits, in the alternative, that the action must in any event be dismissed since
         the conditions governing references for a preliminary ruling are not met and the judgment of 19 April 2000, being res judicata,
         may no longer be challenged.
      
      19      In reply to those arguments, TDM raises the question of the compatibility of Law No 117/88 in the light of the requirements
         of Community law.  In particular, it submits that the conditions governing the admissibility of actions laid down by that
         Law and the practice of the national courts (including the Corte Suprema di Cassazione) in that connection are so restrictive
         that they make it excessively difficult, indeed virtually impossible, to obtain compensation from the State for damage caused
         by judicial decisions.  Consequently, that legislation disregards the principles laid down by the Court, inter alia, in Joined
         Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357 and Joined Cases C‑46/93 and C‑48/93 Brasserie du Pêcheur and Factortame [1996] ECR I‑1029.
      
      20      In those circumstances, since it was unsure how to decide the dispute before it and whether it was possible to extend to the
         judiciary the principles laid down by the Court in the judgments, cited in the preceding paragraph, concerning infringements
         of Community law committed in the exercise of legislative activity, the Tribunale di Genova decided to stay the proceedings
         and to refer the following questions to the Court for a preliminary ruling:
      
      ‘(1)      Is a Member State liable on the basis of non-contractual liability to individual citizens for errors by its own courts in
         the application of Community law or the failure to apply it correctly and in particular the failure by a court of last instance
         to discharge the obligation to make a reference to the Court of Justice under the third paragraph of Article 234 EC?
      
      (2)      Where a Member State is deemed liable for the errors by its own courts in the application of Community law and in particular
         for failure by a court of last instance to make a reference to the Court of Justice under the third paragraph of Article 234
         EC, is affirmation of that liability impeded in a manner incompatible with the principles of Community law by national legislation
         on State liability for judicial errors which:
      
      –        precludes liability in relation to the interpretation of provisions of law and assessment of facts and of the evidence adduced
         in the course of the exercise of judicial functions,
      
      –        limits State liability solely to cases of intentional fault and serious misconduct on the part of the court?’
      21      Following delivery of the judgment in Case C‑224/01 Köbler [2003] ECR I‑10239, the Registrar of the Court sent a copy of that judgment to the referring court asking it whether, in
         the light of the content thereof, it considered it necessary to continue its reference for a preliminary ruling.
      
      22      By letter of 13 January 2004, received by the Court Registry on 29 January 2004, the Tribunale di Genova, having heard the
         parties to the main proceedings, took the view that the Köbler judgment gave a comprehensive answer to the first of the two questions which it had referred, so that it was no longer necessary
         for the Court to give a ruling on that question. 
      
      23      However, it considered it necessary to continue with its second question, in order that the Court give a ruling ‘also in the
         light of the principles set out … in the Köbler judgment’ on the question whether ‘national legislation on State liability for judicial errors impedes affirmation of that
         liability where it precludes liability in relation to the interpretation of provisions of law and assessment of facts and
         of the evidence adduced in the course of the exercise of judicial functions and limits State liability solely to cases of
         intentional fault and serious misconduct on the part of the court’.
      
       The question referred for a preliminary ruling
      24      A preliminary point to note is that the aim of the proceedings pending before the referring court is to have the State held
         liable in respect of a decision of a supreme court that is not subject to appeal.  The question which the referring court
         wished to maintain must therefore be understood as concerning, in essence, the question whether Community law and, in particular,
         the principles laid down by the Court in the Köbler judgment preclude national legislation such as that at issue in the main proceedings which, firstly, excludes all State liability
         for damage caused to individuals by an infringement of Community law committed by a national court adjudicating at last instance,
         where that infringement is the result of an interpretation of provisions of law or of an assessment of the facts and evidence
         carried out by that court, and, secondly, also limits such liability solely to cases of intentional fault and serious misconduct
         on the part of the court.
      
      25      In the view of TDM and the Commission, that question calls clearly for an affirmative answer.  Since assessment of facts and
         evidence and interpretation of provisions of law are inherent in the judicial function, the exclusion, in such cases, of State
         liability for damage caused to individuals by reason of the exercise of that function amounts, in practice, to exonerating
         the State from all liability for infringements of Community law attributable to the judiciary.
      
      26      Furthermore, with regard to the limitation of that liability solely to cases of intentional fault or serious misconduct on
         the part of the court, that is also likely to lead to de facto exclusion of all State liability since, firstly, the court
         called upon to rule on an action for compensation for damage caused by a judicial decision is not left free to construe the
         actual concept of ‘serious misconduct’ itself but is bound by the strict definition laid down by the national legislature
         which sets out in advance – and exhaustively – what constitutes serious misconduct.
      
      27      According to TDM, it follows, secondly, from experience gained in Italy in the implementation of Law No 117/88, that that
         State’s courts and, in particular, the Corte Suprema di Cassazione adopt a very narrow reading of that law and of the concepts
         of ‘serious misconduct’ and ‘inexcusable negligence’.  Those concepts are interpreted by that court as ‘manifest, gross and
         large-scale infringement of the law’ or as containing a construction of the law ‘in terms contrary to all logical criteria’,
         which leads in practice to the virtually systematic dismissal of complaints brought against the Italian State. 
      
      28      However, according to the Italian Government, supported on this point by Ireland and the United Kingdom Government, national
         legislation such as that at issue in the main proceedings is perfectly compatible with the very principles of Community law
         since it creates a fair balance between the need to preserve the independence of the judiciary and the essential requirements
         of legal certainty, on the one hand, and the provision of effective judicial protection of individuals in the most flagrant
         cases of infringement of Community law attributable to the judiciary, on the other.
      
      29      On that view, if it were to be accepted, Member States’ liability for damage resulting from such infringements ought therefore
         to be restricted solely to those cases in which there is a sufficiently serious infringement of Community law.  However, liability
         could not be incurred where a national court has ruled on a dispute on the basis of an interpretation of articles of the Treaty
         which is adequately reflected in the reasons given by that court. 
      
      30      In that regard, it should be noted that, in the Köbler judgment, delivered after the date on which the national court made the reference to the Court, the Court held that the principle
         that a Member State is obliged to make good damage caused to individuals as a result of breaches of Community law for which
         it is responsible applies to any case in which a Member State breaches Community law, whichever is the authority of the Member
         State whose act or omission was responsible for the breach (see paragraph 31 of that judgment).
      
      31      Basing its reasoning in that respect, inter alia, on the essential role played by the judiciary in the protection of the rights
         derived by individuals from Community rules and on the fact that a court adjudicating at last instance is by definition the
         last judicial body before which individuals may assert the rights conferred on them by Community law, the Court infers that
         the protection of those rights would be weakened – and the full effectiveness of the Community rules conferring such rights
         would be brought into question – if individuals were precluded from being able, under certain conditions, to obtain reparation
         when their rights are affected by an infringement of Community law attributable to a decision of a court of a Member State
         adjudicating at last instance (see Köbler, paragraphs 33 to 36).
      
      32      It is true that, having regard to the specific nature of the judicial function and to the legitimate requirements of legal
         certainty, State liability in such a case is not unlimited.  As the Court has held, State liability can be incurred only in
         the exceptional case where the national court adjudicating at last instance has manifestly infringed the applicable law. 
         In order to determine whether that condition is satisfied, the national court hearing a claim for reparation must take account
         of all the factors which characterise the situation put before it, which include, in particular, the degree of clarity and
         precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable,
         the position taken, where applicable, by a Community institution and non-compliance by the court in question with its obligation
         to make a reference for a preliminary ruling under the third paragraph of Article 234 EC (Köbler, paragraphs 53 to 55). 
      
      33      Analogous considerations linked to the need to guarantee effective judicial protection to individuals of the rights conferred
         on them by Community law similarly preclude State liability not being incurred solely because an infringement of Community
         law attributable to a national court adjudicating at last instance arises from the interpretation of provisions of law made
         by that court.
      
      34      On the one hand, interpretation of provisions of law forms part of the very essence of judicial activity since, whatever the
         sphere of activity considered, a court faced with divergent or conflicting arguments must normally interpret the relevant
         legal rules – of national and/or Community law – in order to resolve the dispute brought before it.
      
      35      On the other hand, it is not inconceivable that a manifest infringement of Community law might be committed precisely in the
         exercise of such work of interpretation if, for example, the court gives a substantive or procedural rule of Community law
         a manifestly incorrect meaning, particularly in the light of the relevant case-law of the Court on the subject (see, in that
         regard, Köbler, paragraph 56), or where it interprets national law in such a way that in practice it leads to an infringement of the applicable
         Community law.
      
      36      As the Advocate General observed in point 52 of his Opinion, to exclude all State liability in such circumstances on the ground
         that the infringement of Community law arises from an interpretation of provisions of law made by a court would be tantamount
         to rendering meaningless the principle laid down by the Court in the Köbler judgment.  That remark is even more apposite in the case of courts adjudicating at last instance, which are responsible,
         at national level, for ensuring that rules of law are given a uniform interpretation.
      
      37      An analogous conclusion must be drawn with regard to legislation which in a general manner excludes all State liability where
         the infringement attributable to a court of that State arises from its assessment of the facts and evidence.
      
      38      On the one hand, such an assessment constitutes, like the interpretation of provisions of law, another essential aspect of
         the judicial function since, regardless of the interpretation adopted by the national court seised of a particular case, the
         application of those provisions to that case will often depend on the assessment which the court has made of the facts and
         the value and relevance of the evidence adduced for that purpose by the parties to the dispute. 
      
      39      On the other hand, such an assessment – which sometimes requires complex analysis – may also lead, in certain cases, to a
         manifest infringement of the applicable law, whether that assessment is made in the context of the application of specific
         provisions relating to the burden of proof or the weight or admissibility of the evidence, or in the context of the application
         of provisions which require a legal characterisation of the facts.  
      
      40      To exclude, in such circumstances, any possibility that State liability might be incurred where the infringement allegedly
         committed by the national court relates to the assessment which it made of facts or evidence would also amount to depriving
         the principle set out in the Köbler judgment of all practical effect with regard to manifest infringements of Community law for which courts adjudicating at
         last instance were responsible.
      
      41      As the Advocate General observed in points 87 to 89 of his Opinion, that is especially the case in the State aid sector. 
         To exclude, in that sector, all State liability on the ground that an infringement of Community law committed by a national
         court is the result of an assessment of the facts is likely to lead to a weakening of the procedural guarantees available
         to individuals, in that the protection of the rights which they derive from the relevant provisions of the Treaty depends,
         to a great extent, on successive operations of legal classification of the facts.  Were State liability to be wholly excluded
         by reason of the assessments of facts carried out by a court, those individuals would have no judicial protection if a national
         court adjudicating at last instance committed a manifest error in its review of the above operations of legal classification
         of facts. 
      
      42      With regard, finally, to the limitation of State liability to cases of intentional fault and serious misconduct on the part
         of the court, it should be recalled, as was pointed out in paragraph 32 of this judgment, that the Court held, in the Köbler judgment, that State liability for damage caused to individuals by reason of  an infringement of Community law attributable
         to a national court adjudicating at last  instance could be incurred in the exceptional case where that court manifestly infringed
         the applicable law. 
      
      43      Such manifest infringement is to be assessed, inter alia, in the light of a number of criteria, such as the degree of clarity
         and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable,
         and the non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the
         third paragraph of Article 234 EC; it is in any event presumed where the decision involved is made in manifest disregard of
         the case-law of the Court on the subject (Köbler, paragraphs 53 to 56). is  
      
      44      Accordingly, although it remains possible for national law to define the criteria relating to the nature or degree of the
         infringement which must be met before State liability can be incurred for an infringement of Community law attributable to
         a national court adjudicating at last instance, under no circumstances may such criteria impose requirements stricter than
         that of a manifest infringement of the applicable law, as set out in paragraphs 53 to 56 of the Köbler judgment.
      
      45      A right to obtain redress will therefore arise, if that latter condition is met, where it has been established that the rule
         of law infringed is intended to confer rights on individuals and there is a direct causal link between the breach of the obligation
         incumbent on the State and the loss or damage sustained by the injured parties (see inter alia, in that regard, Francovich and Others, paragraph 40; Brasserie du Pêcheur and Factortame, paragraph 51; and Köbler, paragraph 51).  As is clear, in particular, from paragraph 57 of the Köbler judgment, those three conditions are necessary and sufficient to found a right in favour of individuals to obtain redress,
         although this does not mean that the State cannot incur liability under less strict conditions pursuant to national law.
      
      46      In the light of the foregoing considerations, the answer to the question referred by the national court for a preliminary
         ruling, as reformulated in its letter of 13 January 2004, must be that Community law precludes national legislation which
         excludes State liability, in a general manner, for damage caused to individuals by an infringement of Community law attributable
         to a court adjudicating at last instance by reason of the fact that the infringement in question results from an interpretation
         of provisions of law or an assessment of facts or evidence carried out by that court.  Community law also precludes national
         legislation which limits such liability solely to cases of intentional fault and serious misconduct on the part of the court,
         if such a limitation were to lead to exclusion of the liability of the Member State concerned in other cases where a manifest
         infringement of the applicable law was committed, as set out in paragraphs 53 to 56 of the Köbler judgment.
      
       Costs
      47      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court.  Costs incurred in submitting observations to the Court, other than the
         costs of those parties, are not recoverable.
      
      On those grounds, the Court (Grand Chamber) hereby rules:
      Community law precludes national legislation which excludes State liability, in a general manner, for damage caused to individuals
            by an infringement of Community law attributable to a court adjudicating at last instance by reason of the fact that the infringement
            in question results from an interpretation of provisions of law or an assessment of facts or evidence carried out by that
            court.
      Community law also precludes national legislation which limits such liability solely to cases of intentional fault and serious
            misconduct on the part of the court, if such a limitation were to lead to exclusion of the liability of the Member State concerned
            in other cases where a manifest infringement of the applicable law was committed, as set out in paragraphs 53 to 56 of the
            judgment in Case C‑224/01 Köbler [2003] ECR I‑10239. 
      [Signatures]
      * Language of the case: Italian.