by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

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Keywords: liability of the state; legislator; claims; repair; individual’s rights

Court: CJEU | Date: March 5th 1996 | Cases: C46/93 and C-48/93 | Applicants: Brasserie du Pêcheur vs Federal Republic of Germany

Summary: This judgment contains two similar cases connected to the same matter: liability of the State.

In the first case, the French company Brasserie du Pêcheur was obliged to cease their exportations from Germany due to German authorithies’ allegations that the beer did not fulfill purity requirement. European Comission interfered in this case and stated that this provisions were contrary to article 30 of EEC Treaty and brought an infringement proceedings against German Federal Republic. On 12th March 1987, the court confirmed EC’s arguments and consequently condemned the German act. Therefore, Brasserie du Pêcheur moves another action to reclaim their losses. The Court had doubts related to the limits of liability of the State and internal law and so they decided to send a question to the CJEU.

In the second case, Factortame intented an action in High Court of Justice with the purpose to challenge the compatibility of Part II of the Merchant Shipping Act with article 52 of the EEC Treaty. This law predicted a new register for British fishing boats and it pretended to obligate vessel’s registration, including those already registered, according to some conditions relating to nationality. The boats that couldn’t be registered were forbidden to fish. In another previous judgement, CJEU considered that this law was contrary to Communitary law, but it was not contrary that all the boats in UK suffered more controled by the authorities. On 4th August 1989, European Comission brought infringement proceedings against UK to suspend nationality requests because they were contrary to articles 7, 52 and 221 of the EEC Treaty. Afterwards, the Court decided to call the intervenients to show the amount of claims, however the Court had doubts in what refers to include a claim for inconstitutional behaviour and send a question to CJEU.

State liability for acts and omissions of the national legislature contrary to Community law

CJEU stated that it’s competence of the state to repair particular losses in case of failure to adopt a directive and violation of communitary law. In this case, CJEU remembered Francovich to support their conclusion. As the treaty hadn’t got any provision to determine the consequences for a violation of Community Law, CJEU summoned article 164 of the EEC Treaty to answer this question according to the usual and accepted interpretation method (principles of the Community legal system).

The principle of non-contractual liability of the Comunity, expressed in article 215 of the Treaty is an expression of the general principle that is familiar with state’s jurisdictions and it refers that when there is an illegal action or omission, it results in an obligation to repair the losses. This provision is also applied for public powers. So, this principle is accepted for any violation(s) of Communitary Law by a Member State, whatever be the organ of the State that infringed the law.

Conditions under which the State may incur liability for acts and omissions of the national legislature contrary to Community law

About this matter, CJEU argued that although the Community law imposes state liability, the inherent conditions depend on the nature of the violation. To determine these conditions it is necessary to consider their own communitary legal system principles which form the basis of state liability and the Court’s case-law about this matter is also important. The protection of the particulars can’t change according to national or communitary nature of the authority that provoke the damage, but it could change according to areas that weren’t regulated by Communitary Law. When a Member State has wide discretion to legislate, the liability conditions should be the same as those which depends of the Community Law.

For CJEU three requirements are needed to aprove the right to reparations: 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 (see all the explications by the Court in the judgement below between n.51 and n.74).

The possibility of making reparation conditional upon the existence of fault

With this question, Bundesgerichtshof wanted to know if there is any chance to depute the reparation of the losses to the organ of the state to which those damages are attributable. CJEU denied that hypothesis justifying that reparation for losses caused to individuals cannot depend upon a condition based on any concept of fault.

The actual extent of the reparation

Firstly, reparation of losses must be adequable to the damage suffered by the individuals. However, there is no Communitary specific descrition in this domain, which makes that the national courts have the competence to judge upon this matter, taking into acount that the decision must not be less favorable as the same decisions already ruled.

The decision can be acessed here and the opinion of the AG here.