The Queen v H. M. Treasury, ex parte British Telecommunications plc.
Date: 1996-03-26
38. It should be recalled, as a preliminary point, that the principle of State liability for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty (judgments in Joined Cases C-6/90 and C-9/90  Francovich and Others  [1991] ECR I-5357, paragraph 35, and in Joined Cases C-46/93 and C-48/93  Brasserie du Pêcheur and Factortame  [1996] ECR I-0000, paragraph 31).  It follows that that principle holds good for any case in which a Member State breaches Community law (judgment in  Brasserie du Pêcheur and Factortame , cited above, paragraph 32).
39. In the latter judgment the Court also ruled, with regard to a breach of Community law for which a Member State, acting in a field in which it has a wide discretion in taking legislative decisions, can be held responsible, that Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties (paragraphs 50 and 51).
40. Those same conditions must be applicable to the situation, taken as its hypothesis by the national court, in which a Member State incorrectly transposes a Community directive into national law.  A restrictive approach to State liability is justified in such a situation, for the reasons already given by the Court to justify the strict approach to non-contractual liability of Community institutions or Member States when exercising legislative functions in areas covered by Community law where the institution or State has a wide discretion ─ in particular, the concern to ensure that the exercise of legislative functions is not hindered by the prospect of actions for damages whenever the general interest requires the institutions or Member States to adopt measures which may adversely affect individual interests (see, in particular, the judgments in Joined Cases 83/76, 94/76, 4/77, 15/77 and 40/77  HNL and Others  v  Council and Commission  [1978] ECR 1209, paragraphs 5 and 6, and in  Brasserie du Pêcheur and Factortame , paragraph 45).
41. Whilst it is in principle for the national courts to verify whether or not the conditions governing State liability for a breach of Community law are fulfilled, in the present case the Court has all the necessary information to assess whether the facts amount to a sufficiently serious breach of Community law.
42. According to the case-law of the Court, a breach is sufficiently serious where, in the exercise of its legislative powers, an institution or a Member State has manifestly and gravely disregarded the limits on the exercise of its powers (judgments in  HNL and Others  v  Council and Commission , cited above, paragraph 6, and in  Brasserie du Pêcheur and Factortame , paragraph 55).  Factors which the competent court may take into consideration include the clarity and precision of the rule breached (judgment in  Brasserie du Pêcheur and Factortame , paragraph 56).
45. In those circumstances, the fact that a Member State, when transposing the directive into national law, thought it necessary itself to determine which services were to be excluded from its scope in implementation of Article 8, albeit in breach of that provision, cannot be regarded as a sufficiently serious breach of Community law of the kind intended by the Court in its judgment in  Brasserie du Pêcheur and Factortame .