Case C-352/98 Bergaderm [2000] ECR I-5291

Key point

  • This case contains a full statement of the conditions for non-contractual liability of EU institutions under Article 340 TFEU
  • In particular, it states that where there is no discretion given to the EU institution, a mere infringement of Community law is sufficient to constitute a sufficiently serious breach


  • Commission Directive 95/34/EC, amending Council Directive 76/768/EEC, required member states to prohibit marketing of cosmetic products containing a chemical substance
  • Bergadem sought compensation for the adoption of Directive 95/34/EC
  • Bergadem argued that since it was the only undertaking affected by the Directive, the directive should be considered an administrative act and its illegality per se would found a damages action


  • Appeal dismissed; there had been no sufficiently serious breach to give rise to non-contractual liability to compensation under the second paragraph of Article 215


  • ‘The Court has stated that the conditions under which the State may incur liability for damage caused to individuals by a breach of Community law cannot, in the absence of particular justification, differ from those governing the liability of the Community in like circumstances. 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 (Brasserie du Pêcheur and Factortame, paragraph 42).’: [41]
  • As regards member state liability for damage caused to individuals, a right to reparation arises where the conditions are met:
    1. The rule infringed confers rights on individuals
    2. The breach is sufficiently serious
    3. A direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties: [42]
  • Meaning of the second condition
    • ‘As to the second condition, as regards both Community liability under Article 215 of the Treaty and Member State liability for breaches of Community law, 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’: [43]
    • ‘Where the Member State or the institution in question has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach’: [44]
  • The general or individual nature of a measure taken by an institution is not a decisive criterion for identifying the limits of the discretion enjoyed by the institution in question: [46]