Brasserie du Pecheur SA v Germany 1996
- Reported: [1996] All ER (EC) 301 CASE C-46/93
- Year: 1996
- Court: European Court of Justice
FACTS:
The applicant was a French brewery based at Schiltigheim (Alsace) claiming that it was forced to discontinue exports of beer to Germany because the German authorities considered that the beer it produced did not comply with the purity requirement laid down in the Biersteurgesetz, the German law on beer duty. The EC Commission considered that the purity requirement provisions were contrary to Article 30 of the EEC Treaty on the elimination of quantitative restrictions on imports.
The Court of Justice of the European Communities held that the prohibition on marketing was incompatible with art 30. Thereafter the applicant brought an action against the German state for compensation for the loss suffered by it between 1981 and 1987 as a result of the import restrictions. The Page 1 action was dismissed by the lower courts and the applicant appealed to the Bundesgerichtshof.
By judgment of 12 March 1987 in EC Commission v Germany Case 178/84 [1987] ECR 1227, the court held that the prohibition on marketing beers imported from other member states which did not comply with the provisions in question was incompatible with art 30 of the Treaty.
Brasserie du Pêcheur brought an action against the Federal Republic of Germany for reparation of the loss suffered by it as a result of that import restriction between 1981 and 1987, seeking damages in the sum of DM 1.438m. The EC Commission took the view that the provisions were contrary to art 30 of the EEC Treaty and brought infringement proceedings against the Federal Republic of Germany on two grounds, namely the prohibition on marketing under the designation ‘Bier’ beers lawfully manufactured by different methods in other member states and the prohibition on importing beers containing additives.
The Bundesgerichtshof refers to para 839 of the Bürgerliches Gesetzbuch (the German Civil Code (the BGB)) and art 34 of the Grundgesetz (the Federal Constitution (the GG)). According to the first sentence of para 839 of the BGB:
‘If an official wilfully or negligently commits a breach of official duty incumbent upon him as against a third party, he shall compensate the third party for any damage arising there from.’ Article 34 of the GG provides: ‘If a person infringes, in the exercise of a public office entrusted to him, the obligations incumbent upon him as against a third party, liability therefore shall attach in principle to the state or to the body in whose service he is engaged.’
The Bundesgerichtshof referred four questions to the Court of Justice for a preliminary ruling:
HELD:
In the judgement the European Court of Justice, held:
Where national legislature is contrary to community law, Community law confers a right to reparation where three conditions are met. The right to damages depends on: (i) the rule of law infringed must be intended to confer rights on individuals, (ii) the breach must be sufficiently serious and (iii) 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. The Court held that the obligation to make reparation for loss or damage caused to individuals could not depend on a condition based on any concept of fault going beyond that of a serious breach of Community law. Reparation for loss or damage caused to individuals as a result of breaches of Community law must be commensurate with the loss or damage sustained so as to ensure effective protection for their rights. In the absence of Community law provisions it is for the domestic legal system of each member state to set the criteria to determine the extent of reparation.
The Court held that there was no need to limit the temporal effect of the present judgment and on those grounds the European Court of Justice ruled:
(1) A member state is bound to make reparation for the loss or damage occasioned to individuals as a result of infringements of Community law attributable to that State, even if the infringement consists in the fact that the legislature had omitted to amend a national law in order to bring it into conformity with Community law, providing that the obligation imposed on the state from which the individual’s right is derived is precise in every respect or has been clearly specified by the relevant case law.
(2) A member state is not entitled to make the right to reparation for infringements of Community law subject to the same restrictions laid down for infringements of national constitutional provisions by the legislature where those restrictions have the effect of making the right to reparation virtually impossible.
(3) The obligation on the part of the state to make reparation cannot depend on finding a subjective component (fault or intention) accompanying the infringement of the provision, if the breach was manifest and serious in the sense explained above.
(4) (a) It is for the national legal system to determine the types of injury for which reparation may be awarded and the criteria for quantifying the loss or damage, provided that the requirements laid down to that end are not less favourable than those applying to similar domestic claims and are not such as to make it excessively difficult or virtually impossible for the individual to obtain full reparation for the loss or damage suffered; this would be the case where national law limited the scope of the obligation to legal interests, such as property, although excludes any possibility of obtaining reparation for lost profits.
(b) The obligation on the member state to make reparation for loss or damage occasioned to individuals arose at the time when the event which caused the damage occurred if the provision infringed is clear in the sense specified above or, where the legal situation is doubtful, at the time when it was clarified by Community case law, either by a preliminary ruling or by a judgment pursuant to art 169.
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