Case C-352/98 P, Laboratoires Pharmaceutiques Bergaderm and Goupil v. Commission, judgment of 4 July 2000, nyr.
Joined Cases C-6 and C-9/90, Francovich and others, [1991] ECR I-5357.
See Francovich, cited supra, paras. 33-36.
Id. para 35.
See Tridimas, "Enforcing Community rights in national courts: Some recent developments", in O'Keeffe and Bavasso (Eds.), Judicial Review in European Union Law, Liber Amicorum in Honour of Lord Slynn of Hadley, (Kluwer Law International, 2000), pp. 465-479, at 466.
See for an extensive discussion, Tridimas, The General Principles of EC Law (Oxford, OUP, 1999) Ch. 9, where further bibliography is given.
In recent years, attention has focused also on the liability of public authorities in a comparative perspective. See Markesinis et al., The Tortious Liability of Statutory Bodies (Hart Publishing, 1999);
Van Gerven et al., Cases, Materials and Text on Tort Law, Jus Communae Casebook (Hart Publishing, 2001, forthcoming).
Joined Cases C-46 & 48/93, Brasserie du Pêcheur v. Germany and the Queen v. Secretary of State for Transport ex parte Factortame, [1996] ECR I-1029.
In Brasserie, the Court held that the principle of State liability is inherent in the system of the Treaty and therefore "holds good for any case in which a Member State breaches Community law, whatever be the organ of the State whose act or omission was responsible for the breach" (para 32). Liability may therefore arise as a result of action by the legislature, the administration, or the judiciary. For the latter, see Toner, "Thinking the unthinkable? State liability for judicial acts after Factortame III", 17 YEL (1997), 165.
Joined Cases C-178, 179, 188-190/94, Dillenkofer and others v. Germany [1996] ECR I-4845, paras. 27-28.
For incorrect implementation of directives, see Case C-392/93, The Queen v. HM Treasury ex parte British Telecommunications plc, [1996] ECR I-1631; Joined Cases C-283, C-291 & C-292/94, Denkavit Internationaal BV et al. v.Bundesamt für Finanzen, [1996] ECR I-5063. For breach by the national administration, see Case C-5/94, The Queen v. Ministry of Agriculture, Fisheries and Food ex parte Hedley Lomas (Ireland) Ltd, [1996] ECR I-2553.
These are the following, in reverse chronological order: Case C-424/97, Salomone Haim v.Kassenzahnärztliche Vereinigung Nordrhein (Haim II), judgment of 4 July 2000, nyr; Case C-140/97, Rechberger and Greindl v. Austria, [1999] ECR I-3499; Case C-321/97, Ulla-Brith Andersson and Susanne Wåkerås-Andersson v. Swedish State, [1999] ECR I-3551; Case C-302/97, Konle v. Republic of Austria, [1999] ECR I-3099; Case C-319/96, Brinkmann Tabakfabriken GmbH v. Skatteministeriet, [1998] ECR I-5255; Case C-127/95, Norbrook Laboratories Limited v. Ministry of Agriculture, [1998] ECR I-1531. In a number of other cases, the Court has referred to State liability as a possible remedy without examining it in detail. See e.g. Joined Cases C-192 to C-218/95, Comateb and Others v. Directeur Général des Douanes et Droits Indirects, [1997] ECR I-165; Case C-90/96, Petrie, [1997] ECR I-6527. For a critique of this trend, see Dougan, "The Francovich right to reparation: The contours of Community remedial competence", 6 European Public Law (2000), 103. Note also that in a distinct but related development, the Court delivered its first judgment under Art. 228 (ex 171) EC imposing a periodic penalty payment on Greece for failure to comply with Directive 75/442 on waste and Directive 78/319 on toxic waste: Case C-387/97, Commission v. Greece, judgment of 4 July 2000, nyr.
See Tridimas, op. cit. supra note 5; See also the classification of Arnull, The European Union and its Court of Justice (OUP, 1999), at pp. 143 et seq., and the critique of Dougan, op. cit. supra note 11.
According to the classic approach, in the absence of Community rules, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction, and to lay down the detailed procedural rules governing actions for safeguarding the rights which individuals derive from Community law, provided that such rules satisfy two conditions: they are not less favourable that those governing similar domestic actions (the principle of equivalence); and they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness). See Case 33/76, Rewe v. Landwirtschaftskammer für das Saarland, [1976] ECR 1989; Case 45/76, Comet v. Productschap voor Siergewassen, [1976] ECR 2043.
This phase is exemplified, apart from Francovich, by judgments such as Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, [1986] ECR 1651 (national laws must make available effective judicial review for the protection of Community rights); Case C-213/89, Factortame, [1990] ECR I-2433 (interim relief against the State must be available in national courts for the protection of Community rights).
The primary example of this is the demise of Emmott. See the following line of cases: Case C-208/90, Emmott, [1991] ECR 4269; Case C-338/91, Steenhorst-Neerings v. Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen, [1993] ECR I-5475; Case C-188/95, Fantask and Others v. Industriministeriet, [1997] ECR I-6783. Cf. Case C-246/96, Magorrian v. Eastern Health and Social Services Board, [1997] ECR I-7153.
See e.g. Case C-312/93, Peterbroeck v. Belgian State, [1995] ECR I-4599; Case C-326/96, Levez v. Jennings (Harlow Pools) Ltd, [1998] ECR I-7835, and more recently, Case C-78/98, Preston and Other v. Wolverhampton Healthcare NHS Trust and Others and Fletcher and Others v. Midland Bank plc, judgment of 16 May 2000.
See Prechal, "Community law in national courts: The lessons from Van Schijndel", 35 CML Rev., 681, at 691;
see also Biondi, "The European Court of Justice and certain national procedural limitations: Not such a tough relationship", 36 CML Rev., 1271.
See further Van Gerven, "Of rights, remedies, and procedures", 37 CML Rev., 501.
See e.g. Dillenkofer, cited supra note 9, para 20-21; Rechberger, cited supra note 11, para 21; Haim II, cited supra note 11, para 36; Norbrook, cited supra note 11, para 107.
Note however that a Member State may make liability of public authorities for breach of Community law subject to less strict conditions: see Brasserie, cited supra note 7, para 66 and see infra p. 322
See Dillenkofer, para 24, and Opinion of A.G. Mischo in Haim II, cited supra note 11, at para 42.
Cited supra note 11.
Council Directive 79/32, O.J. 1979, L 10/8.
Brinkmann, supra, para 28.
Ibid. para 29.
Ibid. para 31.
See Dillenkofer, cited supra note 9.
British Telecommunications, cited supra note 10.
This begs the question which authority would be the appropriate defendant in an action for damages, i.e. whether it would be the Member State itself or the agency that made the decision on the specific circumstances. On this issue, see infra pp. 317 et seq.
Rechberger, supra note 11.
Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, O.J. 1990, L 158/59.
Dillenkofer, cited supra, para 44.
Rechberger, cited supra note 11, para 51. The Court also confirmed that it has no jurisdiction to rule on whether a Member State is liable under the EEA Agreement for failure to implement a Community directive prior to its accession to the European Union, where the obligation to implement arises under the EEA Agreement. The issue arose because, under the terms of the EEA Agreement, Austria was required to transpose the Package Travel Directive into domestic law on 1 Jan. 1994. See also on the same point, Case C-321/97 Ulla-Brith Andersson and Susanne Wåkerås-Andersson v. Swedish State, cited supra note 11. The liability of an EFTA State for infringement of a directive referred to in the EEA Agreement was examined in the EFTA Court's judgment E-9/97 Sveinbjörnsdóttir, 10 Dec. 1998.
In some cases, the Austrian rules required the amount of cover to be no less than ten percent of the organizer's turnover or estimated turnover. See para 3(2) of the regulation on security provided by travel agencies, Reisebüro-Sicherungsverordnung, BGB1, No 881 of 15 Nov. 1994, p. 6501.
Rechberger, cited supra, para 64.
Ibid. para 62.
By contrast, A.G. Saggio expressly stated that Austria's defective transposition amounted to a sufficiently serious and clear breach: see paras. 46-48 of the Opinion. Cf. the Austrian Government's submissions in paras. 56-58 of the judgment.
Rechberger, paras. 74-75.
In some cases, however, the imprudent conduct of the person on whom the obligation is imposed may expose that person to other types of proceedings. The issue then could be raised whether the injured party should pursue first an available form of action against that person, rather than a claim against the State for compensation, if the first form of action provides an effective alternative. This issue did not appear to be relevant in Rechberger and, more generally, it has not been raised in the case law. Note however that in Brasserie, the Court held that, in order to determine the right to reparation, the national court may inquire whether the injured party showed reasonable diligence in order to avoid or limit the loss and whether, in particular, he availed himself in time of all the legal remedies available to him: see para 84 of the judgment, cited supra note 7.
See e.g. Brasserie, cited supra note 7, para 51; Norbrook, cited supra note 11, para 107; Brinkmann, cited supra note 11, para 25; Rechberger, cited supra note 11, para 72.
Brasserie, para 65; Norbrook, para 110; Rechberger, para 72.
See the criticism by Van Gerven, "Taking Article 215(2) EC Seriously", in Beatson and Tridimas (Eds.), New Directions in European Public Law (Hart Publishing, 1998), pp. 35-48.
See Brasserie, para 55.
Ibid. paras 56-57. These considerations are the following: the clarity and precision of the rule breached; the measure of discretion left to the national authorities; whether the infringement and the damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable; the fact that the position taken by a Community institution may have contributed towards the omission; the adoption or retention of national measures or practices contrary to Community law. In any event, a breach of Community law will be sufficiently serious if it has persisted despite a judgment of the Court which establishes the infringement in question.
Hedley Lomas, cited supra note 10, para 28; Dillenkofer, cited supra note 9, para 25; Norbrook, cited supra note 11, para 109.
Ibid. para 30. Notably, the Court also found the 1996 Tyrol Law incompatible with the EC Treaty. As stated above, that Law gave an end to the differential treatment of foreigners and extended the requirement of prior authorization also to Austrian citizens. The Court however found that the procedure of authorization was liable to work to the disadvantage of Community nationals and was also disproportionate. See paras. 40 et seq. of the judgment.
Konle, paras. 58-59.
Konle, Opinion of A.G. La Pergola, para 24.
Save perhaps for the exceptional case where it could be said that the Law was so manifestly against the right to property that, on the basis of the rules of domestic law, it could be foreseen with reasonable certainty that it would be annulled with retroactive effect.
Cited supra note 11.
Kassenzahnärztliche Vereinigung Nordrhein (Association of Dental Practitioners of Social Security Schemes in Nordrhein).
Case C-319/92, Haim, [1994] ECR I-425.
Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, O.J. 1987 L 233, p. 1.
Case C-340/89 [1991] ECR I-2357.
Haim II, cited supra note 11, para 38.
Ibid. para 40. It will be noted however that the discretion conferred by national law on a public authority may be relevant for the purposes of determining which body is responsible for making reparation, and therefore for identifying the proper defendant. See below infra p. 319.
Haim II, para 46.
The law was clarified in Haim I and, as we saw, the KVN revised its decision following that judgment. Clearly, if the German authorities had insisted in refusing to recognize Mr Haim's practical experience after that judgment, they would have committed a serious breach. Should the German authorities have revised their view already after Vlassopoulou which was delivered before Haim I? In other words, did the breach become serious as from Vlassopoulou? The answer is probably not. Vlassopoulou did not concern qualifications from third countries and the law did not become crystal clear until Haim I. Notably, after Haim I, the Commission proposed a corresponding amendment to Directive 78/686.
Norbrook Laboratories, cited supra note 11.
Council Directive 81/851/EEC on the approximation of the laws of the Member States relating to veterinary medicinal products (O.J. 1981, L 317/1) and Council Directive 81/852/EEC on the approximation of the laws of the Member States relating to analytical pharmaco-toxicological and clinical standards and protocols in respect of the testing of veterinary medicinal products (O.J. 1981, L 317/16).
Konle, para 62; Haim II, para 27.
Haim II, para 28.
Rewe and Comet, both cited supra note 13.
Haim II, paras. 30, 33; Konle, para 63; Francovich, paras. 41-43; Norbrook Laboratories, para 111.
Konle, para 64.
Haim II, para 31.
Ibid. para 32.
For a detailed analysis, see Tridimas, op. cit. supra note 5, pp. 468-471.
See Preston, cited supra note 16, para 55; Levez, cited supra note 16, para 41; Case C-231/96, Edis v. Ministero delle Finanze, [1998] ECR I-4951, para 15.
Preston, para 56 and Levez, para 43, both cited supra note 16; Case C-261/95, Palmisani v. Istituto Nazionale delle Previdenza Sociale (INPS), [1997] ECR I-4025, paras. 34-38.
See also Hoskins, "Rebirth of the Innominate Tort?" in Beatson and Tridimas (Eds.), op. cit. supra note 42, pp. 91-100, at 100.
See the Opinion of A.G. Mischo in Haim II, para 32. In a different context, the Court has declared that all national authorities are under an obligation to uphold the principle of primacy and ensure the effective protection of Community rights, if necessary, by setting aside any obstacles posed by national law, including national legislation. See e.g. Case 106/77, Simmenthal, [1978] ECR 629 and Case 103/88, Fratelli Costanzo v. Comune di Milano, [1989] ECR 1839. The Court recently reiterated the application of this principle in relation to administrative authorities: see Case C-224/97, Ciola v. Land Vorarlberg, judgment of 29 April 2000, nyr.
Cf. the case law on national measures transposing directives: Case 29/84, Commission v. Germany, [1985] ECR 1661; Case C-119/92, Commission v. Italy, [1994] ECR I-393; Case C-236/95, Commission v. Greece, [1996] ECR I-4459.
This is the case with the Race Relations Act in the United Kingdom.
Brasserie, para 42. Already, in his Opinion in Francovich, A.G. Mischo had sought inspiration from the case law under Art. 215(2) (now 288(2)) EC to establish the right to reparation against the State. In its judgment, the Court did not draw any analogy between Community and Member State liability, probably because the type of breach in issue, namely failure to implement a directive, did not lend itself to such a comparison.
Brasserie, para 45.
See further Tridimas, op. cit. supra note 6, p. 333.
See Van Gerven, op. cit. supra note 42.
Brasserie, para 42.
This was expressly recognized in Brasserie: see para 46 of the judgment.
Case C-352/98 P, cited supra note 1, which confirmed on appeal the CFI's judgment in Case T-199/96, Bergaderm and Goupil v. Commission, [1998] ECR II-2805.
For a detailed analysis, see Hartley, The Foundations of European Community Law, 4th ed. (OUP, 1999), Chapt. 17,
Heukels and McDonnell (Eds.), The Action for Damages in Community Law (Kluwer, The Hague, 1997).
See e.g. Case 4/69, Lutticke v. Commission, [1971] ECR 325, para 10; Case T-575/93, Koelman v. Commission, [1996] ECR II-1, para 89.
Case 145/83, Adams v. Commission, [1985] ECR 3539; Case T-390/94, Aloys Schröder et al. v. Commission, [1997] ECR II-501, para 51. For an extensive discussion, see Van der Woude, "Liability for Administrative Acts under Article 215(2) EC" in Heukels and McDonnell (Eds.), op. cit. supra note 88, 109-128. An administrative act in this context is defined as one "by which the administration applies general rules in individual cases or otherwise exercises its executive powers in an individual manner". See Van der Woude, at p. 112 where further references are given.
Case 5/71, Zuckerfabrik Schöppenstedt v. Council, [1971] ECR 975. And see also e.g. Joined Cases 83 & 94/76, 4, 15 & 40/77, HNL v. Council and Commission, [1978] ECR 1209.
HNL, cited supra note 91, para 6.
See e.g. Case C-63/89, Assurances du Crédit v. Council and Commission, [1991] ECR I-1799. In any event, what is a measure of economic policy is difficult to define. See Tridimas, op. cit. supra note 6, p. 320.
See e.g. Case C-152/88, Sofrimport v. Commission, [1990] ECR I-2477; cf. the Opinion of A.G. Tesauro at 2502; Joined Cases 44-51/77, Union Malt v. Commission, [1978] ECR 57.
Joined cases T-481 & T-484/93, Vereniging van Exporteurs in Levende Varkens and Another v. Commission, [1995] ECR II-2941, para 81.
See Case 81/86, De Boer Buizen v. Council and Commission, [1987] ECR 3677 and the Christmas Butter cases (Joined Cases 279, 280, 285 & 286/84, Rau v. Commission, [1987] ECR 1069; Case 27/85, Vandemoortele v. Commission, [1987] ECR 1129; Case 265/85, Van den Bergh en Jurgens v. Commission, [1987] ECR 1155). See further Van der Woude, op. cit. supra note 90, at pp. 113-114.
See Van der Woude, ibid., and see Joined Cases T-458 & T-523/93, ENU v. Commission, [1995] ECR II-2459, para 67 (loss allegedly arising from the Commission's failure to guarantee disposal of the applicant's uranium production pursuant to Art. 53 Euratom). That case however does not provide authority that the CFI rejected the test of manifest and grave disregard in relation to administrative acts.
Council Directive 76/768 of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (O.J. 1976, L 262/169). The Directive has been amended, inter alia, by Council Directive 93/35/EEC of 14 June 1993, O.J. 1993, L 151/32.
Art. 10 of the Cosmetics Directive requires that, when the Adaptation Committee delivers an unfavourable opinion on the draft measures submitted by the Commission, the latter must without delay propose measures to the Council, which acts by a qualified majority. If, within 3 months of the proposal being submitted to it, the Council has not acted, the proposed measures are to be adopted by the Commission. Bergaderm argued that the Commission breached Art. 10 because instead of returning to the Council when the Adaptation Committee delivered an unfavourable opinion on 1 June 1992, concerning its proposal to restrict the maximum level of the substance in issue, it submitted the same proposal some years later.
Bergaderm, para 40.
Ibid., para 44; Brasserie, para 43.
Bergaderm, para 46.
Ibid. para 47.
Ibid. para 62.
Brasserie, para 53.
A.G. Fennelly opined that the Directive in issue was a legislative and not an administrative measure for the purposes of determining the applicable conditions of liability. The requirement therefore that there must be violation of a superior rule of law for the protection of the individual had to be satisfied. He found that the Commission had not committed a violation. Furthermore, in his view, the alleged breach of the procedural requirements of the Cosmetics Directive were not superior rules of law for the protection of the individual since their aim was to protect the division of powers between the various Community institutions and not to protect individuals. See, also in this context, Case C-282/90, Vreugdenhil v. Commission, [1992] ECR I-1937.
See e.g. Case C-13/99 P, TEAM Srl v. Commission, judgment of 15 June 2000, nyr; Case C-237/98 P, Dorsch Consult Ingenieurgesellschaft mbH, judgment of 15 June 2000, nyr. The legal context of neither case lent itself to the unification of the conditions of liability and reversal of influence. Both judgments were delivered by a five member chamber.
Bergaderm, para 40.
Ibid. para 46. On that basis, the Court proceeded to find that the first ground of appeal, which was based exclusively on the categorization of the Adaptation Directive as an individual measure, had in any event no bearing on the issue and should be rejected. See para 47.
Notably, the Court treats as a legislative measure for the purposes of determining the conditions of liability in an action for damages under Art. 288(2) any measure of general application irrespective of whether it may be of individual concern for the purposes of Art. 230(4) (ex 173(4)) EC: see Sofrimport, supra note 94; see Joined Cases T-480 & T-483/93, Antillean Rice Mills and Others v. Commission, [ 1995] ECR II-2305, confirmed on this point on appeal in Case C-390/95 P, [1999] ECR I-769. See also the Opinion of the A.G. in Bergaderm.
Adams, cited supra note 90; Case T-514/93, Cobrecaf v. Commission, [1995] ECR II-624.
Bergaderm, para 62. Emphasis added.
See Arnull, "Liability for legislative acts under Article 215(2) EC", in Heukels and McDonell (Eds.), op. cit. supra note 88, pp. 129-151 at 136 and see A.G. Darmon's Opinion in Vreugdenhil, supra note 106, 1956.
See Joined Cases 5, 7 & 13-24/66, Kampfmeyer v. Commission, [1967] ECR 245, at 263; See also Schoppenstedt, cited supra note 91; Joined Cases 9 & 12/60, Vloeberghs v. High Authority, [1961] ECR 195; Case 9/56, Meroni v. High Authority, [1958] ECR 133; Joined Cases 9 & 11/71, Compagnie d'Approvisionnement v. Commission, [1972] ECR 391.
Vreugdenhil, supra note 106.
Case 106/81, Kind v. EEC, [1982] ECR 2885, para 14, and see more recently the CFI's case law: Case T-167/94, Nölle v. Council and Commission, [1994] ECR II-2589, para 57; Schröder et al. Cited supra note 90, para 66.
See e.g. Case 294/81, Control Data v. Commission, [1983] ECR 911, para 14, Case 250/84, Eridania v. Cassa Conguaglio Zucchero, [1986] ECR 117, para 37.
In exceptional circumstances, an applicant may be entitled to compensation for "unusual" and "special" damage occurring as a result of a valid legislative act. See Case T-184/95, Dorsch Consult Ingenieurgesellschaft v. Council, [1998] ECR II-667; confirmed on appeal: C-237/98, cited supra note 107. So far, however, no such action has been successful.
See Craig and De Burca, EU Law, Text, Cases, and Materials, 2nd. ed. (OUP, 1998), p. 518.
See above p. 323.
See above e.g. Joined cases C-104-89 and C-37/90, Mulder [1992] ECR I-3061, para 13.
See Van Gerven, op. cit. supra note 42.
Case T-178/98, Fresh Marine Company AS v. Commission, judgment of 24 Oct. 2000, nyr.
Fresh Marine, para 57, and see Nölle cited supra note 116.
Fresh Marine, paras. 58-60. The CFI also distinguished previous case law, i.e. T-167/94, Nölle, [1995] ECR II-2589 and C-122/86, Metallefticon, [1989] ECR 3959.
Fresh Marine, para 61.
Ibid.
See supra note 94.
The term "internalization" is used to connote the process by which doctrines of Community law, such as direct effect and liability in damages, are assimilated by the national legal orders and are applied by the national courts as an integral part of national law. This is a two-way process. On the one hand, it means that national rules of substantive law, procedure, and remedies are reformed in line with Community requirements. On the other hand, principles of EC law are supplemented by, and applied within, the framework of national law.
For a similar tendency with regard to the standards of judicial review, see Case C-120/97, Upjohn Ltd v. The Licensing Authority established by the Medicines Act 1968 and Others, [1999] ECR I-223.
