Brasserie du Pcheur v.

Germany, Joined Cases C-46/93 and C-48/93

Brasserie du Pcheur SA, the appellant in the main proceedings in Case C-46/93, is
a French brewery based at Schiltigheim (Alsace). Until 1981, it exported beer to the
Federal Republic of Germany. In late 1981, however, it was forced to discontinue the
exports because the German authorities objected that the beer it produced did not
comply with the German Reinheitsgebot (purity requirement) laid down in the
Biersteuergesetz (Law on Beer Duty). In the Commissions view, certain provisions
of the Biersteuergesetz were contrary to Article 30 of the EC Treaty, and the
Commission brought an action under Article 169 of the Treaty against the Federal
Republic of Germany for failure to comply with its obligations under the Treaty. By a
decision of March 12, 1987, the Court of Justice held that the German prohibition on
marketing beers imported from Member States which did not comply with the
Biersteuergesetz was incompatible with Article 30 of the Treaty. Brasserie du
Pcheur consequently brought an action against the Federal Republic of Germany
for reparation of the loss suffered by it between 1981 and 1987 as a result of that
import restriction, seeking damages. The action was dismissed by the trial court,
and then appealed by Brasserie du Pecheur to the Bundesgerichtshof (Federal Court
of Justice).

On December 16, 1988 Factortame and a number of other individuals and

companies incorporated under the laws of the United Kingdom brought an action
before the High Court of Justice, Queens Bench Division, Divisional Court
(hereinafter the Divisional Court), in which they challenged the compatibility with
Community law of Part II of the Merchant Shipping Act 1988. The Act provided for
the introduction of a new register for British fishing boats and made registration of
such vessels, including those already registered in the former register, subject to
conditions relating to the nationality, residence and domicile of the owners. Fishing
boats ineligible for registration in the new register lost the right to fish. The new
system entered into force on December 1, 1988, but registration in the new register
was not required until April 1, 1989. The Divisional Court suspended the application
of the new registration system and stayed the proceedings pending a preliminary
ruling by the Court of Justice. In answer to the questions referred by the Divisional
Court, the Court held, in its Factortame II decision, that Part II of the Merchant
Shipping Act was contrary to Community law and, in particular, to Article 52 of the
Treaty (freedom of establishment). In the meantime, on August 4, 1989, the
Commission had brought infringement proceedings against the United Kingdom. By
separate document, it also applied for, and was granted, interim measures ordering
the suspension of the acts nationality conditions on the ground that they were
contrary to the Treaty. Pursuant to that order, the United Kingdom adopted
provisions amending the new registration system with effect from November 2,
1989. By judgment of October 4, 1991, the Court confirmed that the registration

conditions challenged in the infringement proceedings were contrary to Community

law.

On October 2, 1991, the Divisional Court made an order designed to give effect to
the Courts judgment in Factortame II and, at the same time, directed the claimants
to give details of their claims for damages against the Secretary of State for
Transport. The compensation sought by the claimants was based on damage,
including expenses and losses incurred from the entry into force of the new
legislation (on April 1, 1989) until its repeal (on November 2 of the same year).

Both national courts were doubtful as to the interpretation of the principle of State
liability for damage caused to individuals by infringements of Community law
attributable to the State,9 as derived from the Francovich judgment. They decided
to stay the proceedings and to refer a number of questions to the Court for a
preliminary ruling. The Court considered it advisable that the questions asked by
the German and the British national court be dealt with at the same time and
decided to join both cases.