The Queen v Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Ltd.
Date: 1996-05-23
18 Article 36 of the Treaty allows the maintenance of restrictions on the free movement of goods, justified on grounds of the protection of the health and life of animals, which constitutes a fundamental requirement recognized by Community law. However, recourse to Article 36 is no longer possible where Community directives provide for harmonization of the measures necessary to achieve the specific objective which would be furthered by reliance upon this provision.
19 This exclusion of recourse to Article 36 cannot be affected by the fact that, in the present case, the Directive does not lay down any Community procedure for monitoring compliance nor any penalties in the event of breach of its provisions. The fact that the Directive lays down no monitoring procedure or penalties simply means that the Member States are obliged, in accordance with the first paragraph of Article 5 and the third paragraph of Article 189 of the Treaty, to take all measures necessary to guarantee the application and effectiveness of Community law (see, in particular, the judgment in Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 23). In this regard, the Member States must rely on trust in each other to carry out inspections on their respective territories (see also the judgment in Case 46/76 Bauhuis v Netherlands [1977] ECR 5, paragraph 22).
20 A Member State may not unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any breach by another Member State of rules of Community law (judgment in Joined Cases 90/63 and 91/63 Commission v Luxembourg and Belgium [1964] ECR 625 and judgment in Case 232/78 Commission v France [1979] ECR 2729, paragraph 9).
24 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 (judgment in Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 35, and judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame, not yet published in the ECR, paragraph 31). Furthermore, the conditions under which State liability gives rise to a right to reparation depend on the nature of the breach of Community law giving rise to the loss or damage (judgment in Francovich and Others, cited above, paragraph 38; judgment in Brasserie du Pêcheur and Factortame, cited above, paragraph 38).
25 In the case of a breach of Community law attributable to a Member State acting in a field in which it has a wide discretion to make legislative choices the Court has held, at paragraph 51 of its judgment in Brasserie du Pêcheur and Factortame, cited above, that such a right to reparation must be recognized 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.
27 As regards the first condition, as is clear from the answer given to the first question, the United Kingdom' s refusal to issue an export licence to Hedley Lomas constituted a quantitative restriction on exports contrary to Article 34 of the Treaty which could not be justified under Article 36. Whilst Article 34 imposes a prohibition on Member States, it also creates rights for individuals which the national courts must protect (judgment in Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraphs 66 and 67).
28 As regards the second condition, where, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach.
30 As regards the third condition, it is for the national court to determine whether there is a direct causal link between the breach of the obligation resting on the State and the damage sustained by the applicant in the main proceedings.
31 As appears from paragraphs 41, 42 and 43 of Francovich and Others, cited above, subject to the right to reparation which flows directly from Community law where the three conditions referred to above are satisfied, the State must make reparation in accordance with its domestic law on liability for the consequences of the loss and damage caused. However, the conditions for reparation of loss and damage laid down by domestic law must not be less favourable than those relating to similar domestic claims and must not be such as in practice to make it impossible or excessively difficult to obtain reparation (see also the judgment in Brasserie du Pêcheur and Factortame, cited above, paragraph 67).