Presidenza del Consiglio dei Ministri v BV.
Date: 2020-07-16
18


In the first place, the referring court considers that, in the judgment of 11 October 2016, Commission v Italy (C‑601/14, EU:C:2016:759, paragraphs 45 and 48 to 50), the Court confirmed its earlier case-law to the effect that Directive 2004/80 regulates only cross-border situations, by ensuring that the victim of a violent intentional crime committed in a Member State other than that of their habitual residence will be compensated by the Member State in which the crime was committed. The referring court concluded from that case-law that Article 12(2) of Directive 2004/80 cannot be invoked, immediately and directly, against the Italian state by victims of violent intentional crime who reside in Italy.
29


Even if the referring court could, at the stage of the appeal on a point of law, take into account facts postdating the decision at issue in that appeal, namely the award to BV, under the Italian compensation scheme, of compensation in the sum of EUR 4800 by way of reparation for the sexual violence that she suffered, it should, in any event, be recalled that the proper and complete retroactive application of measures implementing a directive serve, in principle, to remedy the harmful consequences of its belated implementation and to ensure appropriate reparation for harm suffered by the beneficiaries of that directive as a result of that late implementation, except where those beneficiaries establish that there are complementary losses that they suffered due to the fact that they were unable to benefit at the appropriate time from the financial advantages guaranteed by the directive, which thus must also be made good (see, to that effect, the judgment of 24 January 2018, Pantuso and Others, C‑616/16 and C‑617/16, EU:C:2018:32, paragraph 50 and the case-law cited).
34


In that regard, it must be recalled that, according to the Court’s established case-law, individuals who have been harmed have a right to reparation for damage caused by breaches of EU law attributable to a Member State when three conditions are met, namely, the rule of EU law infringed must be intended to confer rights on individuals, the breach of that rule must be sufficiently serious, and there must be a direct causal link between the breach and the loss or damage sustained by those individuals (see, to that effect, the judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51; of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 51; and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 22).
35


It is, in principle, for the national courts to apply the criteria for establishing the liability of Member States for damage caused to individuals by breaches of EU law, in accordance with the guidelines laid down by the Court for the application of those criteria (judgments of 13 March 2007, Test Claimants in the Thin Cap Group Litigation, C‑524/04, EU:C:2007:161, paragraph 116, and of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 95).
38


Therefore, in order to ascertain whether that premiss is well founded, it is necessary to interpret Article 12(2) of Directive 2004/80. In that regard, in accordance with the settled case-law of the Court, it is necessary to consider not only the wording of that provision, but also its context and the objectives of the legislation of which it forms part (judgment of 26 February 2019, Rimšēvičs and ECB v Latvia, C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 45 and the case-law cited).
47


Furthermore, recital 2 of that directive states, after recalling the case-law according to which, when EU law guarantees to a natural person the freedom to go to another Member State, the protection of that person from harm in the Member State in question, on the same basis as nationals and persons residing there, is a corollary of that freedom of movement (judgment of 2 February 1989, Cowan, 186/87, EU:C:1989:47, paragraph 17), that measures to facilitate compensation to victims of crime should contribute to the realisation of that objective.
53


That finding is not called into question by the case-law of the Court to the effect that Directive 2004/80 provides for a compensation scheme solely in circumstances in which a violent intentional crime has been committed in a Member State in which the victim finds himself or herself in exercising their right to free movement, meaning that a purely internal situation is not covered by the scope of application of that directive (see, to that effect, judgments of 28 June 2007, Dell’Orto, C‑467/05, EU:C:2007:395, paragraph 59, and of 12 July 2012, Giovanardi and Others, C‑79/11, EU:C:2012:448, paragraph 37, and the order of 30 January 2014, C., C‑122/13, EU:C:2014:59, paragraph 12).
54


By that case-law, the Court merely stated that the system of cooperation established by Chapter I of Directive 2004/80 solely concerns access to compensation in cross-border situations, without however determining the scope of application of Article 12(2), which appears in Chapter II thereof (see, to that effect, the judgment of 11 October 2016, Commission v Italy, C‑601/14, EU:C:2016:759, paragraph 49).