Opinion of the Advocate-General
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1 The Landgericht (Regional Court) Bonn has asked the Court whether failure to implement Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (1) (`the directive') within the period prescribed constitutes an infringement giving rise to financial liability on the part of the Member State in breach towards individuals who have suffered loss as a result of that infringement.
This is, therefore, a situation corresponding to that on which a decision has already been given in the well-known Francovich (2) judgment, in which the Court, as I scarcely need repeat, held that a State is required to make good damage caused by failure to implement a directive and specified the conditions which are sufficient in such a case to give individuals a right to compensation.
2 This time, the Court is asked, in no fewer than 12 questions, not only to rule as to whether the conditions laid down in Francovich have been fulfilled also in the present case, but also to make it clear whether those conditions are always sufficient, where there is failure to implement a directive, to establish an obligation on the part of the Member State in breach to make good loss and damage. As regards that last point, the Court is asked in particular whether, and if so to what extent, any reasons put forward by the Member State to vindicate itself can possibly exonerate it from the obligation to pay compensation; in short, therefore, whether the infringement which the State is alleged to have committed must, for these purposes, be serious and/or involve fault.
In this context, I would point out forthwith that some of the questions in this case are similar in part to those referred to the Court in Joined Cases C-46/93 (Brasserie du Pêcheur) and C-48/93 (Factortame III), on which also I am delivering an Opinion today. In the course of the following analysis, I shall therefore refer to that Opinion for more detailed consideration of certain points.
Relevant legislation, facts and questions referred
3 According to Article 1, the purpose of the directive is `to approximate the laws, regulations and administrative provisions of the Member States relating to packages sold or offered for sale in the territory of the Community'. Article 7, which the Court is asked to interpret, provides that `the organizer and/or retailer party to the contract shall provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency'. Article 8 states that the Member States may adopt or retain more stringent provisions in the field covered by the directive to protect the consumer. Finally, Article 9(1) provides that `Member States shall bring into force the measures necessary to comply with this Directive before 31 December 1992. They shall forthwith inform the Commission thereof.'
4 The Federal Republic of Germany did not comply with the time-limit imposed by the directive. It was only on 24 June 1994 that it adopted the `Law implementing Council Directive of 13 June 1990 on package travel'. (3) That law inserted in the Civil Code Paragraph 651k, under which `the travel organizer must ensure that the package traveller obtains a refund of (1) the travel price paid if travel services are not provided as a result of the insolvency of the organizer and (2) expenses necessarily incurred by the traveller in repatriating himself as a result of the insolvency of the organizer'. The organizer may fulfil his obligations by means of insurance or a credit institution's promise of payment. Paragraph 651k(4) provides that `apart from a deposit no greater than 10% of the cost of travel, subject however to a maximum of DM 500, the organizer may demand or accept payments from the traveller before completion of the travel only if he has issued a security document'. The law in question came into force on 1 July 1994: it is applicable to contracts entered into after that date which concern travel commenced after 31 October 1994.
Lastly, to complete the picture, I might usefully refer to the case-law on `advance payments', namely the judgments of the Bundesgerichtshof (Federal Court of Justice) of 20 March 1986 (4) and 12 March 1987. (5) For our purposes, those judgments are relevant because they annulled tour organizers' general conditions under which the traveller could be obliged to pay the entire cost of the travel even where he had not yet received his travel documents. Following those cases, therefore, purchasers of package travel are not obliged to pay more than 10% of the total cost of the travel before documents are issued giving them the right to demand the services due from the various providers (airline/hotel).
5 I shall now turn to the facts giving rise to these proceedings. The plaintiffs all bought package travel; because of the insolvency of Mp Travel Line International GmbH and Florida Travel Service GmbH, from which they had bought their respective packages, they were either unable to take the holiday or had to return from their holiday destination at their own expense, and did not succeed in obtaining reimbursement of the sums already paid.
To be more specific, Mr Dillenkofer (Case C-178/94), Mr Erdmann (Case C-179/94), Mr Schulte (Case C-188/94), Ms Heuer (Case C-189/94), and the Knors (Case C-190/94) had booked package travel in the first half of 1993, paying at the time of booking, either the entire cost of the package (Dillenkofer, Schulte, Heuer and Knor), in order to receive a 3% discount, or at least the deposit requested (Erdmann). Some of them never left, because they themselves cancelled the booking, either on health grounds (Dillenkofer) or because of information in the press about the financial difficulties being experienced by the operators from whom they had bought their packages (Erdmann and Heuer). Others were asked to get off the aeroplane before take-off because of the declared insolvency of the tour organizer (Schulte). The luckiest ones, who actually managed to reach their desired holiday destination, had to their surprise to return at their own expense, even though they had a proper return ticket (the Knors).
Arguing that if the directive had been transposed within the prescribed period, that is to say, by 31 December 1992, they would have been protected against the insolvency of the operators from whom they had bought the package tours, the plaintiffs brought actions for damages against the Federal Republic of Germany. In essence, they seek reimbursement of the price paid for holidays which were never taken or, in the Knors' case, of the expenses incurred in order to return home from holiday.
6 At this point it should be noted that compensation for damage is governed in Germany by Paragraph 839 of the Buergerliches Gesetzbuch (Civil Code), in conjunction with Article 34 of the Grundgesetz (Basic Law). The latter provides that `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 therefor shall attach in principle to the State or to the body in whose service he is engaged.' Paragraph 839(1) of the Civil Code provides in contrast that if an official wilfully or negligently commits a breach of official duty incumbent upon him as against a third party, he is to make good the damage concerned. If he acted negligently, he is responsible for damage only where the injured party has no other possibility of obtaining compensation.
The applicability of the rules in question depends, therefore, not only on the exercise of a public office and a breach of official duty, but also on the further requirement that the official duty breached should be `referrable to the third party' (Drittbezogenheit). That means that the State is responsible only for breaches of official duties the exercise of which is expressly directed at a third party, and therefore has the aim of protecting a right of the third party. It is however exactly this last requirement which is usually absent in the case of a legislative wrong; (6) especially when the wrong consists of an omission, since in such a situation it must be established that the legislature had a precise legal duty to adopt certain measures vis-à-vis a given citizen or, in any event, a well-defined class of persons. (7)
7 The Landgericht (Regional Court) Bonn, before which the abovementioned cases are pending, considers therefore that German law affords no basis for upholding the plaintiffs' damages claims. Moreover, as it is uncertain whether the State's obligation to pay compensation for damage caused to individuals by failure to transpose the directive within the prescribed period, as required by the Francovich judgment, is also applicable to the cases pending before it, it has referred the following questions to the Court of Justice for a preliminary ruling:
`(1) Is the EC Council Directive of 13 June 1990 on package travel, package holidays and package tours (90/314/EEC) intended to grant individual package travellers, via national transposing provisions, the individual right to security for money paid and repatriation costs in the event of the insolvency of the travel organizer (see paragraph 40 of the judgment in Joined Cases C-6/90 and C-9/90 Francovich)?
(2) Is the content of that right sufficiently identified on the basis of that Directive?
(3) What are the minimum requirements for the "necessary measures" to be taken by the Member States within the meaning of Article 9 of the Directive?
(4) In particular, did it satisfy Article 9 of the Directive if the national legislature by 31 December 1992 provided the legislative framework for imposing a legal obligation on the travel organizer and/or retailer to take measures for security within the meaning of Article 7 of the Directive? Or did the necessary change in the law, taking into account the lead times involved in consultation of the travel, insurance and credit sectors, have to come into effect sufficiently in advance of 31 December 1992 for that security actually to function in the package travel market from 1 January 1993?
(5) Is the protective purpose, if any, of the Directive satisfied if the Member State allows the travel organizer only to require a deposit towards the travel price of up to 10% of the travel price with a maximum of DM 500 before documents of value are handed over?
(6) To what extent are the Member States obliged under the Directive to act (by legislating) in order to protect package travellers against their own negligence?
(7) (a) Could the Federal Republic of Germany, in view of the "advance payment" judgment (Vorkasse-Urteil) of the Bundesgerichtshof (BGH) of 12 March 1987 (BGHZ 100, 157; NJW 86, 1613), have omitted altogether to transpose Article 7 of the Directive by means of legislation?
(b) Is there no "security" within the meaning of Article 7 of the Directive even where, on payment of the travel price, travellers were in possession of documents of value confirming a right to performance against those responsible for providing particular services (airline companies, hotel operators)?
(8) (a) Does the mere fact that the time-limit specified in Article 9 of the Directive has been exceeded suffice to confer a right to compensation involving State liability as defined in the Francovich judgment of the Court of Justice, or can the Member State put forward the objection that the period for transposition proved to be inadequate?
(b) If that objection fails, does the response to the previous question apply even where the Member State concerned cannot achieve the protective purpose of the Directive simply by a change in the law (as for instance with payments in lieu of wages to employees in the event of insolvency), the cooperation of private third parties (travel organizers, the insurance and credit sector) being essential?
(9) Does liability on the part of a Member State for an infringement of Community law presuppose a serious, that is to say a manifest and grave, breach of obligations?
(10) Is it a precondition of State liability that a judgment in infringement proceedings establishing a breach of Treaty obligations has been delivered before the event giving rise to damage?
(11) Does it follow from the Francovich judgment of the Court of Justice that the right to compensation on grounds of breach of Community law is not dependent on a finding of fault in general, or at any rate of wrongful non-adoption of legislative measures, on the part of the Member State?
(12) If that conclusion is not correct, could the "advance payment" judgment of the Bundesgerichtshof have been an acceptable reason justifying or excusing the Federal Republic of Germany for transposing the Directive, as defined in the answers of the Court of Justice to Questions 4 and 7, only after expiry of the time-limit specified in Article 9?'
General considerations
8 In these proceedings the Court is in essence asked to give a ruling as to whether the State is obliged to compensate individuals who have suffered damage as a result of failure to implement a directive.
As indicated above, the facts of this case are similar to those settled in the Francovich judgment. (8) On that occasion, as I recall, the Court recognized State liability subject to the existence of the three following conditions: `First, the purpose of the directive must be to grant rights to individuals. Second, it must be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, there must be a causal link between the breach of the State's obligation and the damage suffered.' (9)
9 Moreover, the Court stated that those conditions are `sufficient to give rise to a right on the part of individuals to obtain reparation, a right founded directly on Community law'. (10) Accordingly, a Member State which has failed to transpose a directive is in every case obliged to compensate damage suffered by an individual, provided that the conditions set out by the Court have been satisfied.
For our purposes, this means that it would be enough to establish whether the purpose of Article 7 of the directive is to confer on individuals rights whose content is sufficiently precise and well defined; always provided, of course, that there is a causal link between the failure to implement the directive within the period prescribed and the damage suffered by the individuals.
Answers to the individual questions
10 As we have seen, the national court has referred no fewer than twelve questions, some of which are closely connected. For the purposes of the following analysis, I consider that they may reasonably be summarized and arranged as follows: (a) is it possible to infer from Article 7 of the directive the existence of a right appertaining to individuals, having a sufficiently precise content and an identifiable subject-matter? (Questions 1 and 2); (b) what are the measures necessary, for the purposes of Article 9, to ensure that the directive is properly implemented? (Questions 3, 4, 5, 6 and 7); (c) is failure to comply with the time-limit prescribed by the directive sufficient in itself to give rise to compensation for individuals who have suffered damage or must other circumstances be taken into consideration? (Questions 8, 9, 10, 11 and 12).
(a) The existence of an individual right having a sufficiently precise and well-defined content (Questions 1 and 2)
11 By its first two questions the national court seeks to ascertain whether Article 7 of the directive satisfies the first two conditions set forth in the Francovich judgment. Clearly, that court starts from the assumption that what is at issue is, as in Francovich, legislation without direct effect, in the sense that any rights granted thereunder may not be relied on directly by individuals if it has not been implemented in national law.
I would observe, initially, that the first condition, to the effect that result prescribed by the directive should entail the grant of rights to individuals, is concerned with identifying the legal position of the individuals, the infringement of which may give rise to compensation. With regard to the case at issue, it must therefore be established whether Article 7 of the directive confers a right on individuals, that is to say, whether that provision was adopted in order to protect purchasers of package travel.
12 In my view, it is undeniable that the purpose of Article 7 of the directive aims at protecting purchasers of package travel against the risks caused by the insolvency of the organizers from whom they purchased the travel in question.
Article 7 requires the organizer and/or retailer party to the contract to provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency. As can plainly be seen just from a literal reading of that provision, such an obligation is clearly and unambiguously imposed in order to protect consumers, who therefore are the beneficiaries of the provision; nor could it be otherwise. Moreover, the directive clearly identifies those beneficiaries under the definition `consumer', (11) from which it follows that all purchasers of travel or rather all those travelling under a package have the right to reimbursement or repatriation at no extra cost to themselves in the event of the insolvency of the organizer from whom they purchased the travel.
13 That conclusion is not invalidated by the fact, put forward by a number of governments in the course of these proceedings, that since the legal basis of the directive is Article 100a of the Treaty, its objective is essentially to guarantee freedom to provide services and, more generally, freedom of competition, as is borne out by the recitals in the preamble to the directive. (12)
On this point I shall merely note, first, that the statement of reasons on which the directive is based repeatedly stresses the aim of protecting consumers, (13) and, secondly, that the fact that the rules laid down in the directive are intended to safeguard other interests as well, in this case freedom to provide services in the sector in question, does not of itself preclude their being rules adopted for the protection of individuals.
14 In the course of these proceedings it has also been asserted, in particular by the German Government, that the actual wording of Article 7 makes it clear that it is confined to imposing on the organizers and/or retailers of package travel the obligation to provide sufficient security. The absence of any reference to a right for consumers to benefit by such security indicates, therefore, that any such right can only be an indirect and derived one.
That situation cannot be so interpreted as to lead to the - indeed sterile - conclusion that the obligation imposed on operators in the relevant sector by the provision in question is an end in itself. The truth is that that obligation has meaning and reason only in so far as the security required is intended, if need be, to make it possible to refund money paid over or the cost of repatriation. In short, it does not seem to me that there can possibly be any serious doubt about this irrefutable fact: the objective of the provision at issue is precisely to protect the financial interests of consumers against the risks involved in the insolvency of the operator from whom they bought the package travel concerned.
15 The second condition laid down in the Francovich judgment, which seems at first sight merely to specify the first, emphasizes the need for the right resulting from the directive to have a precise content, that is to say, its subject-matter must be capable of determination.
It must be acknowledged that the content of the right given to individuals by Article 7 certainly has an identifiable objective. It is only too obvious that the purchaser of package travel is clearly and precisely entitled to receive a refund or be repatriated at no cost to him if the organizer and/or retailer of the travel fails in his obligations in the event of insolvency.
16 It is of course quite true, as the German Government points out, that the security referred to in Article 7 can be provided in many forms, from the provision of a bond by the organizer and/or retailer himself to bank guarantees or sureties, or to insurance, the cost of which could be borne by the numerous undertakings in the insurance sector or jointly by a consortium of travel organizers and/or retailers. Financial securities, moreover, may in their turn take on different forms, for example a fund, reserves, deposits, or cover provided by the undertaking's capital.
This all implies that the Member States are left a wide margin of discretion, but only as regards the means to be adopted in order to make the security work. So, such discretion does not in any way affect the result sought by Article 7, nor can it be used in such a way as to change the substance of the right thus conferred on consumers. In conclusion, the fact is that in the event of the travel organizer's and/or retailer's insolvency, consumers are entitled to reimbursement of sums paid over or to repatriation.
17 Just in case it should be necessary, I would now point out that, despite the distinctions drawn by some Member States, the terms of the problem are exactly the same as in Francovich, in that the directive relating to the protection of employees in the event of the insolvency of the employer, at issue in that case, likewise left Member States a significant margin of discretion. The Court went on to state that `the right of a State to choose among several possible means of achieving the result required by a directive does not preclude the possibility for individuals of enforcing before the national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the directive alone.' (14)
Starting from that premiss, the Court recognized that the content of the guarantee for the benefit of employees as provided for by the directive relating to the protection of employees in the event of the insolvency of the employer was sufficiently clear, since it left the Member State only the choice of the date as from which the guarantee that claims would be paid had to be provided. The Court accordingly reached the conclusion that it was possible at least to determine the minimum guarantee provided for by the employer's insolvency directive, namely by taking the date whose choice entailed the least liability for the guarantee institution.
18 In the case now before the Court, the situation is even simpler. The discretion allowed to the Member States actually relates only to the means by which security may be provided and thus, in the final analysis, to the identity of the person liable to provide the security, whereas the content of the security is in itself clear, precise and unambiguous.
In short, the relevant provisions of the directive are sufficiently precise and unconditional both as regards identification of the persons intended to benefit by the security and as regards the actual content of the security. Accordingly, Article 7 of the directive confers a right appertaining to individuals on consumers (purchasers of package travel), whose subject-matter is easily identified, since quite simply it is the right to reimbursement of sums already paid over and the right to be repatriated in the event of the insolvency of the organizer and/or retailer of the package travel concerned.
(b) The measures necessary for proper transposition of the directive (Questions 3, 4, 5, 6 and 7)
19 In Questions 3 to 7 the national court seeks in essence to ascertain the correct method of complying with the directive at issue. More specifically, it asks: what is to be understood by `necessary measures' for the purposes of Article 9 of the directive (Question 3); whether it was sufficient for the Member State merely to provide a legislative framework for imposing an obligation on the organizer and/or retailer to take measures for security within the meaning of Article 7 (Question 4); whether the directive can be regarded as properly transposed if a Member State allows the travel organizer to require a deposit of 10% of the total travel price, up to a maximum of DM 500 (Question 5); whether the Federal Republic of Germany could omit to transpose Article 7 of the directive, taking into account the national case-law on advance payments referred to above, or whether it must on the contrary be held that there is no security within the meaning of Article 7 even if travellers are in possession of documents evidencing claims against the various providers of services (Question 7), and finally whether the directive requires the Member States to act to protect purchasers of package travel even against their own carelessness (Question 6).
Those questions might at first sight seem positively irrelevant with regard to determining whether a Member State is obliged to pay compensation because it has failed to transpose a directive within the prescribed period, in that they seek to establish in general terms the means by which a directive may be correctly transposed into national law.
20 In fact, as is apparent from the order for reference, it is the national court's intention to ascertain, first, whether the damage suffered by the plaintiffs would have occurred even if Article 7 of the directive had been correctly implemented in time (Questions 4 and 5), a hypothesis which can, in the light of the interpretation of that provision which I have already provided, be ruled out straight away; and, secondly, whether the plaintiffs' conduct could be called negligent, taking account of the national case-law on advance payments (Questions 6 and 7). The implication would be, in the first of those hypotheses, that there was no causal link between the failure to transpose the directive and the damage complained of, and in the second, that damages could not be awarded, regard being had to the plaintiffs' own negligence.
Consequently, I consider that those questions call for an answer only in so far as it is relevant to the question of the causal link.
21 Having said that, I would observe first of all that the wording of Article 9 of the directive, which provides that `Member States shall bring into force the measures necessary to comply with this directive before 31 December 1992', is a standard formula. Such a provision indicates that, within the period prescribed, the Member States are required to adopt all the measures necessary to give full effect to the provisions of the directive and thus to ensure that the result required by them is achieved. I would add that, as the Court has held, the provisions of a directive must be implemented `with unquestionable binding force (... and the), precision and clarity required (...) in order to satisfy the requirement of legal certainty'. (15)
It follows, for our purposes, that in order to implement Article 7 properly the Member States were required to take all suitable measures no later than 31 December 1992 in order to ensure that purchasers of package travel are refunded sums paid over or repatriated where the organizer and/or the retailer of such travel fails in his obligations on account of insolvency.
22 The answer just given makes it clear that the Member State's obligation cannot be construed as being confined to providing before the date in question a legislative framework requiring the organizer and/or retailer of package travel to provide evidence of guaranteed reimbursement of deposits and repatriation. What was actually required, since an obligation to achieve a result is at issue, was that within the period prescribed by the directive, the Member State should adopt all measures necessary in order to guarantee individuals effective protection against the risks involved in the insolvency of organizers and/or retailers of package travel.
The answer to the national court's fourth question must therefore be that the Member States were required to adopt, by 31 December 1992, all measures necessary to ensure that the chosen system of guarantees was actually implemented.
23 The fifth question concerns the way in which the directive was then actually transposed into national law by the abovementioned Law of 24 June 1994. Clearly, since that law was adopted after the time-limit prescribed by the directive and after the damage for which the applicants seek compensation occurred, it is irrelevant in these proceedings. As is apparent from the order for reference, however, the national court is uncertain whether the national implementing legislation is satisfactory, precisely because if it is correct, then it follows that consumers are legitimately bound to bear at least the risks connected with the 10% deposit. As a further result, in some of the cases pending before it, it would have to be found that there was no causal link between the failure to transpose the directive and the damage complained of. (16)
In this context, I think one observation, brief and to the point, will suffice. As I have already said more than once, the aim of Article 7 of the directive is to protect consumers against all risks arising from the insolvency of the travel organizer and/or the retailer. This means that legislation allowing travellers to be required to make an advance payment equal to 10% of the total package cost, but no greater than DM 500, before a security document is issued, is consistent with Article 7 only in so far as reimbursement of the deposit in question as well is guaranteed in the event of the insolvency of the travel organizer and/or retailer.
24 The Bundesgerichtshof's case-law on advance payments, which is the subject of Question 7, must be assessed from the same perspective for the present purposes. The Landgericht asks the Court whether, having regard to that case-law, the Federal Republic of Germany could have refrained altogether from implementing Article 7 of the directive.
The answer to this question must be no. I would first remark that it is doubtful whether that case-law is capable of securing proper implementation of the directive, if only on grounds of legal certainty. (17) Furthermore, by virtue of that case-law, consumers are in any case obliged to bear a series of risks; I refer not only to the fact already pointed out that consumers are not guaranteed the refund of deposits paid, but also and above all, to the fact that the full consumer protection guaranteed by Article 7 might be jeopardized if consumers were obliged to make use of documents evidencing claims against third parties, who would then in their turn be exposed to the risk of insolvency. (18)
25 Lastly, and still in relation to the measures necessary to ensure that the directive is correctly implemented, it remains to be considered whether the Member States were also required to adopt measures to protect consumers against their own negligence. This question is related to the preceding one from the point of view of the causal link.
It is clear from the wording of the directive, in particular from Article 7, that this is a provision intended to ensure a minimum level of protection for travellers, so that Member States are not obliged to adopt measures of that kind. This is borne out by Article 8 of the directive, which permits Member States to adopt or retain more stringent provisions in order to protect the consumer.
26 In that regard, it should be borne in mind that the Court has recognized, in relation to the non-contractual liability of the Community institutions, that there exists `a general principle common to the legal systems of the Member States to the effect that the injured party must show reasonable diligence in limiting the extent of his loss or risk having to bear the damage himself'. (19) The injured party is therefore required to act diligently, a duty which consists in taking steps to avoid damage or, at any rate, reduce its scale. (20)
Having said that, I must however point out in the light of the answers given to Questions 5 and 7 that a traveller who has paid the full cost of travel without demanding to be given the corresponding document cannot be held to be negligent merely because he has not taken advantage of the opportunity not to pay more than 10% of the total travel cost before being issued with documents evidencing claims against the various providers of services, in accordance with the case-law on advance payments. As pointed out above, that case-law cannot be regarded as constituting sufficient transposition of Article 7 of the directive, with the result that `failure to comply' with it does not justify a reduction in the amount of compensation or an outright refusal of compensation.
(c) Unlawful conduct on the part of the State (Questions 8, 9, 10, 11 and 12)
27 Questions 8 to 12 concern the unlawfulness of the harmful conduct attributed to the State, a matter which the Court is asked to clarify further. More particularly, the national court asks whether merely exceeding the time-limit prescribed by the directive is sufficient to give rise to liability on the part of the State, bearing in mind that in the circumstances of the case the cooperation of private third parties was necessary in order to achieve the protective result sought by the directive (Question 8); or whether on the contrary it is necessary for the State to have committed a manifest and serious breach of its obligations (Question 9) or for a prior finding that the State was in breach of its obligations to have been made (Question 10). Lastly, the national court asks whether it follows from the Francovich judgment that State liability does not depend on conduct constituting fault on the part of the State (Question 11) and, if not, whether the national case-law on advance payments can justify failure to transpose the directive within the prescribed period, thus ruling out conduct involving fault, or in any event, a serious breach (Question 12).
In short, the point is to determine whether, for the purposes of the obligation to pay damages imposed on a Member State in breach, any infringement of Community law whatsoever is enough - in the present case failure to transpose a directive within the prescribed period - or whether something more is needed.
28 I think it enough, in this context, simply to make a few brief remarks, once again starting out from the Francovich judgment. There, as I recall, the Court held that the three conditions, referred to above, which it had identified and laid down were `sufficient to give rise to a right on the part of individuals to obtain reparation, a right founded directly on Community law' (paragraph 41). On the other hand, the Court gave no further clarification of the unlawfulness of the conduct of the perpetrator of the damage, the national court not having been asked to carry out any review in that regard.
In my view, the choice made by the Court in Francovich was due very simply to the fact that in that case there could be no doubt as to whether the omission on the part of the State was unlawful: the result sought by the directive, - in respect of which the State had no margin of discretion, at any rate, not in relation to the period within which the directive had to be implemented - was not attained. This does not mean that the Court took a view on the question whether or not a manifest and serious breach was required. It is significant in this regard that different, even opposite, responses are to be encountered in academic writings: according to some commentators, the Court intended only to target serious infringements involving fault; (21) others, in contrast, take the view that it appears from Francovich that any infringement of Community law gives rise to liability and an obligation to make reparation. (22) In any case, there can be no doubt as to the result arrived at by the Court with regard to the case under consideration: State liability and the obligation to pay damages arise whenever the infringement consists of a failure to transpose a directive within the prescribed period.
29 It is impossible not to reach the same conclusion in this case. The circumstance relied on by the German Government, that the period laid down by the directive proved too short, does not alter the terms of the problem. In that regard, I shall merely point out that, as the Court has held, `if the period allowed for the implementation of a directive proves to be too short the only means of action compatible with Community law available to the Member State concerned consists in taking the appropriate initiatives within the Community in order to obtain the necessary extension of the period by the competent Community institution'. (23)
The fact that other Member States did not transpose the directive within the period prescribed either is likewise irrelevant, (24) as is the alleged lack of cooperation on the part of the sectors of the economy concerned. It is the Member State which is obliged to transpose the directive within the prescribed period, even if the State concerned chooses to consult other persons or traders in the sector or is required to do so by the directive. It follows that the State may not in any event plead `circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits under Community directives'. (25)
30 In short, where the conditions identified and laid down by the Court in Francovich are satisfied, infringement consisting of a failure to transpose a directive is in any case such as to give rise to liability on the part of the State in breach and therefore to an obligation to pay compensation to individuals who have suffered damage, without there being any need to undertake further inquiries.
31 This makes it unnecessary to consider the other questions referred by the national court. It appears to start from the assumption that the failure to transpose the directive at issue does not constitute a manifest and serious breach of the State's obligations and is not, therefore, a breach capable of giving rise to liability and an obligation to pay compensation. From the same perspective, it adds that if there has to be conduct involving fault on the part of the State in breach in order for there to be an obligation to pay compensation, it remains to be ascertained whether the national case-law on advance payments may be deemed to rule out the existence of such conduct.
Since I have already explored those points at length in my Opinion in Joined Cases C-46/93 (Brasserie du Pêcheur) and C-48/93 (Factortame III), also delivered today, I think it expedient and adequate, apart from their relevance to the outcome of this case, to refer to that Opinion for the relevant reasoning.
32 As regards the questions at issue, therefore, I shall merely outline the following summary:
- failure to transpose a directive within the period prescribed thereunder constitutes a manifest and serious breach (Question 9); (26)
- a finding of manifest and serious breach does not depend on a prior judgment having been given under Article 169 against the Member State in breach (Question 10); (27)
- fault, as a subjective component of unlawful conduct, is without relevance for the purposes of establishing liability on the part of the Member State in breach (Question 11); (28)
- the national case-law on advance payments may not be taken into account in order to exclude fault (Question 12).
33 In the light of the foregoing considerations, I therefore propose that the Court reply as follows to the questions referred by the Landgericht Bonn:
(1) Article 7 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours confers on purchasers of such travel a right to the guaranteed reimbursement of sums already paid over and repatriation costs in the event of the insolvency of the travel organizer and/or retailer; the subject-matter of the content of that right can be identified on the basis of the provisions of the directive itself.
(2) Articles 7 and 9 of Directive 90/314/EEC require the Member States to adopt by 31 December 1992 all measures necessary to guarantee the consumer as of that date the reimbursement of sums deposited or repatriation in the event of the insolvency of the travel organizer and/or retailer party to the contract.
(3) Article 7 of Directive 90/314/EEC must be interpreted as meaning that it does not preclude a Member State from authorizing travel organizers to require consumers to make an advance payment of 10% of the total cost of the travel even before documents evidencing claims are issued, provided that in the event of insolvency reimbursement of that advance payment is likewise guaranteed; inasmuch as the national case-law on `advance payments' leaves consumers to bear both that risk and the risk ensuing from the potential insolvency to which third parties against whom consumers may assert documents evidencing claims are exposed, it does not constitute proper transposition of Article 7 of the directive.
(4) Directive 90/314/EEC does not require Member States to take measures to protect consumers against their own negligence.
(5) Where the other conditions are satisfied, failure to transpose a directive within the period prescribed is of itself sufficient to give rise to an obligation to pay compensation on the part of the State in breach, which may not therefore justify any delay in transposition by claiming either that the period prescribed proved too short or that transposition required interested third parties to be consulted.
(6) Failure to transpose a directive constitutes a manifest and serious breach of the obligations imposed on Member States by Community law; it is not necessary for this purpose that judgment should have been given against the State under Article 169 before the harmful event occurred.
(7) The liability of the Member State in breach and its obligation to pay compensation are not dependent on fault, in the sense of a subjective factor in the unlawful conduct attributable to it; consequently, the national case-law on `advance payments' cannot justify the delay in transposing Directive 90/314/EEC as far as the obligation to pay compensation is concerned.
(1) - OJ 1990 L 158, p. 59.
(2) - Joined Cases C-6/90 and C-9/90 Francovich and Others v Italian Republic [1991] ECR I-5357.
(3) - BGBl., p. 1322.
(4) - NJW 1986, p. 1613 et seq.
(5) - BGHZ 100, p. 157.
(6) - A legislative wrong (legislatives Unrecht) is governed by the same rules as liability of the public authorities (Amtshaftung). It is precisely because of this that the amenability to compensation of damage arising out of a legislative wrong, still a highly controversial subject in Germany, is unquestionably allowed where individual-case laws (Einzelfallgesetze) are involved, or a legislative measure such as a land development plan (Bebauungsplan.) The picture which emerges is not very different from that concerning the distinction between diritti soggettivi (individual rights) and interessi legittimi (protected interests), frequently represented as peculiar to the Italian system.
(7) - In this connection, however, see Papier, `Art. 34, Rn 181', in Maunz-Duerig-Herzog-Scholz, GG Kommentar, Munich, 1987, in which it is argued that there would be a failure to perform official duties and a correlative right to compensation for damage, in the event of a serious omission on the part of the legislature (qualifiziertes Unterlassen).
(8) - For specific observations concerning the Francovich case, as well as the basis and scope of the principle of liability on the part of a Member State which has failed to fulfil obligations and its duty to pay compensation, as laid down in that judgment, I refer to my Opinion in Joined Cases C-46/93 (Brasserie du Pêcheur) and C-48/93 (Factortame III), also delivered today, in particular points 15 to 22.
(9) - The three conditions in question, set out by the Court in Francovich (paragraph 40), are however quoted here as repeated and summarized by the Court in its judgment in Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 27, and in Case C-334/92 Wagner Miret v Fondo di Garantía Salarial [1993] ECR I-6911, paragraphs 22 and 23.
(10) - Francovich, cited above, paragraph 41.
(11) - Article 2(4) of the directive defines `consumer' as `the person who takes or agrees to take the package ("the principal contractor"), or any other person on whose behalf the principal contractor agrees to purchase the package ("the other beneficiaries") or any person to whom the principal contractor or any of the other beneficiaries transfers the package ("the transferee")'.
(12) - See, in particular, the first three recitals, which emphasize the importance of harmonizing the relevant national laws in order to eliminate obstacles to the freedom to provide services and distortions of competition amongst operators established in different Member States.
(13) - See, in particular, the eighth to eleventh recitals which point out for example that `disparities in the rules protecting consumers in different Member States are a disincentive to consumers in one Member State from buying packages in another Member State' and that `the consumer should have the benefit of the protection introduced by this Directive'; see also the last two recitals specifically concerning consumer protection in the event of the travel organizer's insolvency.
(14) - Francovich, cited above, paragraph 17.
(15) - Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 24.
(16) - For instance, since Mr Erdmann (Case C-179/94) had paid only the 10% deposit on the total travel cost, following the national legislation there would be no compensation for his loss, precisely because the directive allows individuals to be obliged to carry the risk of losing their deposits in the event of insolvency. I need hardly add that that would also be the result even if the directive had been implemented in time.
(17) - On the subject, see for example the judgment in Commission v Germany, cited above, paragraph 28, where the Court held that `the fact that a practice is in conformity with the requirements of a directive may not constitute a reason for not transposing that directive into national law by provisions capable of creating a situation which is sufficiently clear, precise and transparent to enable individuals to ascertain their rights and obligations. As the Court held (...), in order to secure the full implementation of directives in law and not only in fact, Member States must establish a specific legal framework in the area in question.'
(18) - In this regard, it is scarcely necessary to add that a purchaser of package travel cannot, of course, claim to be entitled to compensation from the State if he has already succeeded in asserting against the providers of the relevant services the claims evidenced in the documents in his possession.
(19) - See the judgment in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061, paragraph 33.
(20) - For an application of that principle in case-law on Article 215, see, inter alia, the judgment in Joined Cases 5/66, 7/66 and 13/66 to 24/66 Kampffmeyer and Others v Commission [1967] ECR 245, in particular at 265; see also the judgment in Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, paragraph 14. More generally, for a more detailed examination of the various aspects of the causal link, see my Opinion delivered today in Joined Cases C-46/93 Brasserie du Pêcheur and C-48/93 Factortame III, especially points 97 to 100.
(21) - It shows, among other things, that failure to implement a directive constitutes a conscious breach, consequently a deliberate one and for that very reason one involving fault, Temple Lang, `New Legal Effects Resulting from the Failure of States to Fulfil Obligations under European Community Law: The Francovich judgment', in Fordham International Law Journal, 1992-1993, p. 1 et seq.
(22) - In the sense that strict liability is involved in which fault plays no part, see for example Caranta, `Governmental Liability after Francovich', in Cambridge Law Journal, 19923, p. 272 et seq.; see also Tatham, `Les recours contre les atteintes portées aux normes communautaires par les pouvoirs publics en Angleterre', in Cahiers de Droit Européen, 1993, p. 597 et seq.
(23) - See the judgment in Case 52/75 Commission v Italy [1976] ECR 277, paragraph 12/13.
(24) - To this effect, see for example the judgment cited in the previous footnote, where it states that `any delays there may have been on the part of other Member States in performing obligations imposed by a directive may not be invoked by a Member State in order to justify its own, even temporary, failure to perform its obligations' (paragraph 11).
(25) - See the judgment cited in footnote 23, paragraph 14.
(26) - As to the manifest and serious nature of the breach of Community provisions, see points 74 to 84 of the Opinion in Joined Cases C-46/93 (Brasserie du Pêcheur) and C-48/93 (Factortame III).
(27) - See, in particular, point 81 of the Opinion cited in the previous footnote.
(28) - See, in this connection, points 85 to 90 of that Opinion.
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