Danske Slagterier v Bundesrepublik Deutschland.
Date: 2009-03-24
19. It is to be recalled first of all that, in accordance with settled case-law, 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 EC Treaty (Joined Cases C-6/90 and C-9/90 Francovich and Others  [1991] ECR I-5357, paragraph 35; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame  [1996] ECR I-1029, paragraph 31; Case C-5/94 Hedley Lomas  [1996] ECR I-2553, paragraph 24; and Joined Cases C-178/94, C‑179/94 and C-188/94 to C‑190/94 Dillenkofer and Others  [1996] ECR I‑4845, paragraph 20).
20. The Court has held that individuals harmed have a right to reparation where three conditions are met: the rule of Community law infringed must be intended to confer rights on them; 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 the individuals (see Brasserie du pêcheur and Factortame , paragraph 51; Hedley Lomas , paragraph 25; and Dillenkofer and Others , paragraph 21).
22. It should be recalled that it is undisputed that Article 28 EC has direct effect in the sense that it confers on individuals rights upon which they are entitled to rely directly before the national courts and that breach of that provision may give rise to reparation ( Brasserie du pêcheur and Factortame , paragraph 23).
25. It is, moreover, apparent from Directive 64/433 in conjunction with Directive 89/662 that measures for the detection of a pronounced sexual odour from uncastrated male pigs have been harmonised at Community level (Case C-102/96 Commission  v Germany , paragraph 29). This harmonisation consequently prevents the Member States, in the field harmonised exhaustively, from justifying an obstacle to the free movement of goods on grounds other than those envisaged by Directives 64/433 and 89/662.
31. In that regard, it is settled case-law that, in the absence of Community legislation, it is for the internal legal order of each Member State to designate the competent courts and lay down the detailed procedural rules for legal proceedings intended fully to safeguard the rights which individuals derive from Community law. It is thus 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, provided that the conditions, including time-limits, for reparation of loss or damage laid down by national law are not less favourable than those relating to similar domestic claims (principle of equivalence) and are not so framed as to make it in practice impossible or excessively difficult to obtain reparation (principle of effectiveness) (see, inter alia, Francovich and Others , paragraphs 42 and 43, and Case C-261/95 Palmisani  [1997] ECR I-4025, paragraph 27).
32. As regards the latter principle, the Court has stated that it is compatible with Community law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty which protects both the taxpayer and the authorities concerned (Case C-228/96 Aprile  [1998] ECR I-7141, paragraph 19 and the case-law cited). Such time-limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by Community law. In that regard, a national limitation period of three years appears to be reasonable (see, in particular, Aprile , paragraph 19, and Case C-62/00 Marks & Spencer  [2002] ECR I-6325, paragraph 35).
33. However, it is also apparent from Marks & Spencer , paragraph 39, that in order to serve their purpose of ensuring legal certainty, limitation periods must be fixed in advance. A situation marked by significant legal uncertainty may involve a breach of the principle of effectiveness, because reparation of the loss or damage caused to individuals by breaches of Community law for which a Member State can be held responsible could be rendered excessively difficult in practice if the individuals were unable to determine the applicable limitation period with a reasonable degree of certainty.
34. It is for the national court, taking account of all the features of the legal and factual situation at the time material to the main proceedings, to determine, in light of the principle of effectiveness, whether the application by analogy of the time-limit laid down in Paragraph 852(1) of the BGB to claims for reparation of loss or damage caused as a result of the breach of Community law by the Member State concerned was sufficiently foreseeable for individuals.
36. As regards interruption or suspension of the limitation period when infringement proceedings are brought, it follows from the foregoing considerations that it is for the Member States to determine detailed procedural matters of this type in so far as the principles of equivalence and effectiveness are observed.
37. It should be observed that reparation of loss or damage cannot be made conditional upon the requirement that there must have been a prior finding by the Court of an infringement of Community law attributable to the State (see Brasserie du pêcheur and Factortame , paragraphs 94 to 96, and Dillenkofer and Others , paragraph 28).
38. The finding of an infringement is admittedly an important factor, but is not indispensable when verifying that the condition that the breach of Community law must be sufficiently serious is met. Nor can rights for individuals depend on the Commission’s assessment of the expediency of taking action against a Member State pursuant to Article 226 EC or on the delivery by the Court of any judgment finding an infringement (see Brasserie du pêcheur and Factortame , paragraphs 93 and 95).
39. An individual may therefore bring an action seeking reparation under the detailed rules laid down for that purpose by national law without having to wait until a judgment finding that the Member State has infringed Community law has been delivered. Consequently, the fact that institution of infringement proceedings does not have the effect of interrupting or suspending the limitation period does not make it impossible or excessively difficult for individuals to exercise the rights which they derive from Community law.
41. As to those submissions, in order to decide whether procedural rules are equivalent, it is necessary to verify objectively, in the abstract, whether the rules at issue are similar taking into account the role played by them in the procedure as a whole, as well as the operation of that procedure and any special features of the rules (see, to this effect, Case C-78/98 Preston and Others  [2000] ECR I-3201, paragraph 63).
43. In exercising its powers under Article 226 EC the Commission does not have to show that there is a specific interest in bringing an action (see Case 167/73 Commission  v France  [1974] ECR 359, paragraph 15, and Joined Cases C-20/01 and C-28/01 Commission  v Germany  [2003] ECR I-3609, paragraph 29). The Commission's function is to ensure, of its own motion and in the general interest, that the Member States give effect to Community law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (see Commission  v France , paragraph 15, and Joined Cases C-20/01 and C-28/01 Commission  v Germany , paragraph 29).
44. Article 226 EC is not therefore intended to protect the Commission’s own rights. It is for the Commission alone to decide whether or not it is appropriate to bring proceedings against a Member State for a declaration that it has failed to fulfil its obligations and, as the case may be, because of what conduct or omission those proceedings should be brought (Case C-394/02 Commission  v Greece  [2005] ECR I-4713, paragraph 16 and the case-law cited). The Commission consequently has a discretion in this regard which excludes the right for individuals to require it to adopt a specific position (see Case 247/87 Star Fruit  v Commission  [1989] ECR 291, paragraph 11).
53. As regards the possibility of setting the point at which a limitation period begins to run as being before the directive in question has been fully transposed, it is true that the Court held in Case C-208/90 Emmott  [1991] ECR I-4269, paragraph 23, that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual’s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.
54. However, as was confirmed in Case C-410/92 Johnson  [11994] ECR I-5483, paragraph 26, it is clear from the judgment in Case C-338/91 Steenhorst-Neerings  [1993] ECR I-5475 that the solution adopted in Emmott  was justified by the particular circumstances of that case, in which a time-bar had the result of depriving the applicant in the main proceedings of any opportunity whatsoever to rely on her right to equal treatment under a directive (see also Case C-90/94 Haahr Petroleum  [1997] ECR I-4085, paragraph 52; Joined Cases C-114/95 and C‑115/95 Texaco and Olieselskabet Danmark  [1997] ECR I-4263, paragraph 48; and Joined Cases C-279/96 to C-281/96 Ansaldo Energia and Others  [1998] ECR I-5025, paragraph 20).
55. It is not apparent either from the documents before the court or from the hearing which took place in the oral procedure that, in the main proceedings, the existence of the time-limit at issue had the result, as in the proceedings which gave rise to the judgment in Emmott , of depriving the injured parties of any opportunity whatsoever to rely on their rights before the national courts.
56. Accordingly, the answer to the fourth question is that Community law does not preclude the limitation period applicable to an action for damages against the State for incorrect transposition of a directive from beginning to run on the date on which the first injurious effects of the incorrect transposition have been produced and the further injurious effects thereof are foreseeable, even if that date is prior to the correct transposition of the directive.
60. As regards utilisation of the available legal remedies, the Court held in Brasserie du pêcheur and Factortame , paragraph 84, in relation to liability of a Member State for breach of Community law, that the national court may inquire whether the injured person showed reasonable diligence in order to avoid the loss or damage or limit its extent and whether, in particular, he availed himself in time of all the legal remedies available to him.
61. Indeed, it is a general principle common to the legal systems of the Member States that the injured party must show reasonable diligence in limiting the extent of the loss or damage, or risk having to bear the loss or damage himself (Joined Cases C‑104/89 and C-37/90 Mulder and Others  v Council and Commission  [1992] ECR I-3061, paragraph 33, and Brasserie du pêcheur and Factortame , paragraph 85).
62. It would, however, be contrary to the principle of effectiveness to oblige injured parties to have recourse systematically to all the legal remedies available to them even if that would give rise to excessive difficulties or could not reasonably be required of them.
63. In Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others  [2001] ECR I-1727, paragraph 106, the Court indeed held that the exercise of rights conferred on private persons by directly applicable provisions of Community law would be rendered impossible or excessively difficult if their claims for compensation based on Community law were rejected or reduced solely because the persons concerned did not apply for grant of the right which was conferred by Community provisions, and which national law denied them, with a view to challenging the refusal of the Member State by means of the legal remedies provided for that purpose, invoking the primacy and direct effect of Community law. In a case of that kind, it would not have been reasonable to require the injured parties to utilise the legal remedies available to them, since they would in any event have had to make the payment at issue in advance, and even if the national court had held the fact that payment had to be made in advance incompatible with Community law, the persons in question would not have been able to obtain interest on that sum and they would have laid themselves open to the possibility of penalties (see, to this effect, Metallgesellschaft and Others , paragraph 104).
65. As regards the possibility that the legal remedy utilised will give rise to a reference for a preliminary ruling, and the effect which that would have on the reasonableness of that legal remedy, it should be recalled that, in accordance with settled case-law, the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of Community law which they need in order to decide the disputes before them (see Case C-83/91 Meilicke  [1992] ECR I-4871, paragraph 22, and Case C-380/01 Schneider  [2004] ECR I-1389, paragraph 20). The guidance thus obtained by the national court therefore facilitates its application of Community law, so that utilisation of that instrument of cooperation does not in any way contribute to making it excessively difficult for individuals to exercise the rights which they derive from Community law. Accordingly, it would not be reasonable not to utilise a legal remedy solely because that remedy would be likely to give rise to a reference for a preliminary ruling.