A.G.M.-COS.MET Srl v Suomen valtio and Tarmo Lehtinen.
Date: 2007-04-17
43. It should be recalled that, according to settled case-law, the procedure provided for in Article 234 EC is an instrument of cooperation between the Court of Justice and 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, inter alia, Case C‑112/00 Schmidberger  [2003] ECR I‑5659, paragraph 30, and Case C‑306/03 Salgado Alonso  [2005] ECR I‑705, paragraph 40).
44. In the context of that cooperation, it is for the national court seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see to that effect, inter alia, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59; Case C‑379/98 PreussenElektra  [2001] ECR I-2099, paragraph 38; Case C‑153/00 Der Weduwe  [2002] ECR I‑11319, paragraph 31; Case C‑318/00 Bacardi-Martini and Cellier des Dauphins  [2003] ECR I‑905, paragraph 41; and Schmidberger , paragraph 31).
45. Furthermore, it is clear from the second paragraph of Article 234 EC that it is for the national court to decide at what stage in the proceedings it is appropriate for that court to refer a question to the Court of Justice for a preliminary ruling (see Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others  [1981] ECR 735, paragraph 5; Case C‑236/98 JämO  [2000] ECR I‑2189, paragraph 30; and Schmidberger , paragraph 39).
50. It should be recalled, as a preliminary point, that where a matter has been the subject of exhaustive harmonisation at Community level any national measure relating to that matter must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty (see, to that effect, Case C‑37/92 Vanacker and Lesage  [1993] ECR I‑4947, paragraph 9; Case C‑324/99 DaimlerChrysler  [2001] ECR I‑9897, paragraph 32; Case C‑322/01 Deutscher Apothekerverband  [2003] ECR I‑14887, paragraph 64; and Case C‑309/02 Radlberger Getränkegesellschaft and S. Spitz  [2004] ECR I‑11763, paragraph 53).
55. In the light of paragraph 52 et seq. above, the referring court’s first question should be reformulated so that the court essentially asks whether it is possible to classify the opinions expressed publicly by Mr Lehtinen as obstacles to the free movement of goods for the purposes of Article 4(1) of the Directive, attributable to the Finnish State.
56. Whether the statements of an official are attributable to the State depends in particular on how those statements may have been perceived by the persons to whom they were addressed.
57. The decisive factor for attributing the statements of an official to the State is whether the persons to whom the statements are addressed can reasonably suppose, in the given context, that they are positions taken by the official with the authority of his office.
58. In this respect, it is for the national court to assess in particular whether:
– the official has authority generally within the sector in question;
– the official sends out his statements in writing under the official letterhead of the competent department;
– the official gives television interviews on his department’s premises;
– the official does not indicate that his statements are personal or that they differ from the official position of the competent department; and
– the competent State departments do not take the necessary steps as soon as possible to dispel the impression on the part of the persons to whom the official’s statements are addressed that they are official positions taken by the State.
60. Any measure capable of hindering, directly or indirectly, actually or potentially, intra-Community trade is to be considered as an obstacle (see, to that effect, Dassonville , paragraph 5, and Case C‑383/97 Van der Laan  [1999] ECR I‑731, paragraph 18). That principle applies also where the interpretation of Article 4(1) of the Directive is concerned.
72. Under Article 10(1) of the European Convention on Human Rights, everyone within the jurisdiction of the Member States is guaranteed the right to freedom of expression. That freedom is an essential foundation of any democratic society. Member States, however, cannot rely on their officials’ freedom of expression to justify an obstacle and thereby evade their own liability under Community law.
78. It is clear from the case-law of the Court that three conditions must be satisfied for a Member State to be required to make good the loss and damage caused to individuals: 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 loss or damage sustained by the injured parties. Those conditions are to be applied according to each type of situation (Joined Cases C‑46/93 and C‑48/93 Brasserie du Pêcheur and Factortame  [1996] ECR I‑1029, paragraph 51; Case C‑127/95 Norbrook Laboratories  [1998] ECR I‑1531, paragraph 107; and Case C‑424/97 Haim  [2000] ECR I‑5123, paragraph 36).
80. As to the second condition, the decisive criterion for a breach of Community law to be regarded as sufficiently serious is whether the Member State has manifestly and gravely disregarded the limits of its discretion (see Brasserie du Pêcheur and Factortame , paragraph 55).
81. It should be recalled here that the Court has held that where, at the time when it committed the infringement, the Member State in question had only considerably reduced, or even no, discretion, the mere infringement of Community law may be enough to establish the existence of a sufficiently serious breach (see Norbrook Laboratories , paragraph 109 and the case-law cited).
83. As to the third condition, it is for the national courts to ascertain whether there is a direct causal link between the breach of the obligation on the State and the damage suffered by the injured parties (see, to that effect, Brasserie du Pêcheur and Factortame , paragraph 65, and Case C‑5/94 Hedley Lomas  [1996] ECR I‑2553, paragraph 30).
85. The three conditions mentioned above are necessary and sufficient to found a right in individuals to obtain redress, although this does not mean that the State cannot incur liability under less strict conditions on the basis of national law (see Brasserie du Pêcheur and Factortame , paragraph 66).
86. In the light of the above considerations, the answer must be that Article 4(1) of the Directive must be interpreted as meaning that, first, it confers rights on individuals and, second, it leaves the Member States no discretion in this case as regards machinery that complies with the Directive or is presumed to do so. A failure to comply with that provision as a result of statements made by an official, assuming that they are attributable to the Member State, constitutes a sufficiently serious breach of Community law for the Member State which has committed that infringement to incur liability.
Limitations of liability under the provisions of national law relating to the liability of the Finnish State (Question 5(e) and Question 6(a) in part)
89. It is settled case-law that, where the conditions for the right to compensation on the basis of Community law are met, the Member State must compensate the damage caused, within the framework of national law on liability. It must also be observed that the material and formal conditions laid down by the various national laws on compensation for damage cannot be less favourable in such a context than those relating to similar domestic claims and cannot be so framed as to make it in practice impossible or excessively difficult to obtain compensation (see, to that effect, Joined Cases C‑6/90 and C‑9/90 Francovich and Others  [1991] ECR I‑5357, paragraphs 42 and 43, and Norbrook Laboratories , paragraph 111).
92. On this hypothesis, a right to obtain redress will therefore arise where it has been established that the rule of law infringed is intended to confer rights on individuals and there is a direct causal link between the sufficiently serious breach of the obligation relied on and the loss or damage sustained by the injured party, since those conditions are necessary and sufficient to found a right for individuals to obtain redress (see, to that effect, Case C‑173/03 Traghetti del Mediterraneo  [2006] ECR I‑5177, paragraphs 44 and 45 and the case-law cited).
94. Furthermore, the compensation which Member States provide for loss or damage which they have caused to individuals by breaches of Community law must be commensurate with the loss or damage sustained. In the absence of relevant Community provisions, it is for the domestic legal system of each Member State to set the criteria for determining the extent of com pensation, but those criteria cannot be less favourable than those applying to similar claims or actions based on domestic law and must in any event not be such as in practice to make it impossible or excessively difficult to obtain redress. National legislation which generally limits the damage for which compensation may be granted to damage done to certain specifically protected individual interests not including loss of profit by individuals is not compatible with Community law (see, to that effect, Brasserie du Pêcheur and Factortame , paragraph 90).
95. It must be noted that total exclusion of loss of profit as a head of damage for which compensation may be awarded in the case of a breach of Community law cannot be accepted. Especially in the context of economic or commercial litigation, such a total exclusion of loss of profit is liable to make it impossible in practice for damage to be compensated (see Brasserie du Pêcheur and Factortame , paragraph 87).
98. Community law does not preclude an individual other than a Member State from being held liable, in addition to the Member State itself, for damage caused to individuals by measures which that individual has taken in breach of Community law (see, to that effect, Haim , paragraph 32).