Rosalba Palmisani v Istituto nazionale della previdenza sociale (INPS).
Date: 1997-07-10
6 Furthermore, in Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357 (hereinafter `Francovich I'), the Court held, first, that the provisions of the Directive which determine the rights of employees must be interpreted as meaning that the persons concerned could not enforce those rights against the State in proceedings before the national courts where no implementing measures were adopted within the prescribed period and, secondly, that the Member State was required to make good loss or damage caused to individuals by failure to transpose the Directive.
18 According to settled case-law, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the particular facts of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (see, in particular, Case C-297/94 Bruyère and Others v Belgian State [1996] ECR I-1551, paragraph 19).  Only where it is quite obvious that the interpretation of Community law or examination of the validity of a Community rule sought by a national court bears no relation to the actual facts of the main action or its purpose may a reference for a preliminary ruling be held to be inadmissible (see, in particular, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61).
20 Furthermore, Article 177 of the Treaty gives national courts the power and, where  appropriate, imposes on them the obligation to refer a case for a preliminary ruling, once the judge perceives either of his own motion or at the request of the parties that the substance of the dispute raises a point referred to in the first paragraph of Article 177.  It follows that national courts have the widest discretion in referring matters to the Court of Justice if they consider that a case pending before them raises questions involving interpretation, or consideration of the validity, of provisions of Community law, necessitating a decision on their part (Case 166/73 Rheinmühlen v Einfuhr-und Vorratsstelle Getreide [1974] ECR 33, paragraphs 3 and 4).
21 Lastly, under Article 177, the Court has jurisdiction to give preliminary rulings concerning the interpretation of acts of the Community institutions, regardless of whether they are directly applicable (Case 111/75 Mazzalai v Ferrovia del Renon [1976] ECR 657, paragraph 7).
24 In that connection, the Court has repeatedly held that the principle of State liability for loss or 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 (Francovich I, cited above, paragraph 35; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 31; Case C-392/93 British Telecommunications [1996] ECR I-1631, paragraph 38; and Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 24; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-4845, paragraph 20).
25 With regard to the conditions under which a Member State is required to make reparation for the loss or damage thus caused, it follows from the case-law cited above that these are three in number, namely that the rule of law infringed must have been 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 (Brasserie du Pêcheur and Factortame, paragraph 51; British Telecommunications, paragraph 39; Hedley Lomas, paragraph 25; and Dillenkofer and Others, paragraph 21).  Those conditions are to be applied according to each type of situation (Dillenkofer and Others, paragraph 24).
26 As for the extent of the reparation payable by the Member State responsible for the breach of Community law, it follows from Brasserie du Pêcheur and Factortame, cited above, paragraph 82, that reparation must be commensurate with the loss or damage sustained, that is to say so as to ensure effective protection for the rights of the individuals harmed.
27 Lastly, it follows from consistent case-law since Francovich I, cited above, at paragraphs 41 to 43, that subject to the foregoing, it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss or damage caused; further, the conditions, in particular time-limits, for reparation of loss or damage laid down by national law must not be less favourable than those relating to similar domestic claims (principle of equivalence) and must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation (principle of effectiveness).
28 As regards the compatibility of a time-limit of the kind provided for in the Legislative Decree with the principle of the effectiveness of Community law, the setting of reasonable limitation periods for bringing proceedings satisfies that requirement in principle, inasmuch as it constitutes an application of the fundamental principle of legal certainty (see, in particular, Case 33/76 Rewe, cited above, paragraph 5).
29 Furthermore, a time-limit of one year commencing from the date of the entry into force of the measure transposing the Directive into national law, which not only enables the beneficiaries to ascertain the full extent of their rights but also specifies the conditions under which loss or damage sustained as a result of the belated transposition will be made good, cannot be regarded as making it excessively difficult or, a fortiori, virtually impossible to lodge a claim for reparation.
31 As the Advocate General stated in paragraph 30 of his Opinion, it follows from settled case-law that Article 177 of the Treaty instituted a system of direct cooperation between the Court of Justice and the national courts by way of a non-contentious procedure which is completely independent of any initiative by the parties, who are merely invited to state their case within the legal limits laid down by the national court (see, in particular, Case 62/72 Bollmann [1973] ECR 269, paragraph 4).  In this case the national court, in the order for reference, expressly rejected the plaintiff's allegations; they cannot therefore be taken into account in the context of the reference for a preliminary ruling.
32 As regards the question whether a time-limit of the kind provided for by the Legislative Decree complies with the principle that it must be equivalent to the conditions relating to similar domestic claims, it should be noted that the national court refers more specifically to the procedural rules governing applications for benefits submitted to the guarantee body under the Legislative Decree, actions for obtaining social security benefits (other than pensions) pursuant to Law No 438 of 14 November 1992 and ordinary actions for damages governed by Article 2043 et seq. of the Italian Civil Code.
34 First, as Rosalba Palmisani and the Commission emphasize, the measures implementing the Directive contained in the Legislative Decree pursue an objective that differs from that of the compensation scheme established by that Decree.  While the former aim to provide employees, by means of specific guarantees of payment of unpaid remuneration, with protection under Community law in the event of the insolvency of their employer, the latter seeks, by definition, to make good to a sufficient extent the loss or damage sustained by the beneficiaries of the Directive as a result of its belated transposition.
35 In that connection, moreover, the Court has stated, in its judgments of today's date in Joined Cases C-94/95 and C-95/95 Bonifaci and Others and Berto and Others [1997] ECR I-0000, at paragraph 53, and Case C-373/95 Maso and Others [1997] ECR I-0000, at paragraph 41, that reparation cannot always be wholly ensured by retroactive and proper application in full of the measures implementing the Directive.  It is for the national court to ensure that reparation of the loss or damage sustained by the beneficiaries is adequate.  Retroactive and proper application in full of the measures implementing the Directive will suffice for that purpose unless the beneficiaries establish the existence of complementary loss sustained on account of the fact that they were unable to benefit at the appropriate time from the financial advantages guaranteed by the Directive with the result that such loss must also be made good.
36 Since applications made in connection with the implementation of the Directive and those made under the compensation scheme laid down by it differ as to their objective, there is no need to undertake a comparison of the procedural rules governing them.
37 For the same reason, that must also be true of actions under national law for obtaining social security benefits other than pensions.
38 As far as the ordinary system of non-contractual liability is concerned, it must be pointed out that, unlike the procedures examined under paragraphs 34 to 37 of this judgment, that system is on the whole, in terms of its objective, similar to that introduced by Article 2(7) of the Legislative Decree, inasmuch as it is intended to guarantee reparation of the loss or damage sustained as a result of the conduct of the perpetrator.  However, in order to establish the comparability of the two systems in question, the essential characteristics of the domestic system of reference must be examined.  In that regard the Court does not have all the information necessary to determine more specifically whether an action for damages brought by an individual pursuant to Article 2043 of the Italian Civil Code is capable of being directed against public authorities on the ground that they have failed to act or have committed an unlawful act for which they can be held responsible in the exercise of their powers.  It falls therefore to the national court to undertake that examination.