Case involving a claim for damages due to a directive that unlawfully banned certain products in cosmetics. ECJ upheld the test for C liability, but referred to the test for MS by way of analogy.
ECJ: “As regards Member State liability for damage caused to individuals, the Court has held that Community law confers a right to reparation where three conditions are met: 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 (Brasserie du Pêcheur and Factortame, paragraph 51)…the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion (ibid, para 55).” A lower amount of discretion for MS/C means that a breach is more likely to be deemed sufficiently serious. KEY POINT: “The conditions under which the Community may incur non-contractual liability for damage caused by its institutions or by its servants in the performance of their duties cannot, in the absence of particular justification, differ from those governing the liability of the State for damage caused to individuals by a breach of Community law. The protection of the rights which individuals derive from Community law cannot vary depending on whether a national authority or a Community authority is responsible for the damage.” NB fusion of approach to state liability in Brasserie du Pecheur (see tutorial 4 notes) with approach to Community liability here