* Reproduced from the Judgment of the Court in Joined cases C–178/94, C–179/94, C–188/94, C–189/94 and C– 190/94, Erich Dillenkofer v. Federal Republic of Germany [1996] I ECR 4867 and Opinion of the Advocate General in Joined cases C–178/94, C–179/94, C–188/94, C–189/94 and C–190/94, Erich Dillenkofer v. Federal Republic of Germany [1996] I ECR 4848.

[The Introductory Note was prepared by Jean-Francois Bellis, Partner at the law firm of Van Bael & Bellis in Brussels and I.L.M. Corresponding Editor for the European Communities.]

1 Joined cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v. Federal Republic of Germany and The Queen v. Secretary of State for Transport, ex parte Factortame Ltd and Others [1996] I ECR 1131.

2 Joined cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94, Erich Dillenkofer v. Federal Republic of Germany [1996] I ECR 4867.

3 26/62 Van Gend en Loos v. Nederlandse Administrate der Belastingen [1963] ECR 1.

4 6/60 Humblet [1960] ECR 559.

5 C-6/60 and C-9/90 Francovich & Bonifaci v. Italian Republic [1990] I ECR 5357.

6 C-392/93 The Queen v. H.M.Treasury ex parte British Telecommunications plc [1996] IECR1654, ‘and C-5/94 R v. MAFF ex parte Hedley Lomas Ltd [1996] I ECR 2604.

1 OJ 1990 L 155. p. 59.,

2 Joined Cases C-6/90 and C-9190 Francovich and Others ’ v Italian Republic |1991J ECR 1-5357.

3 BGB1. 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 ‘(Amtschafiung). It is precisely because of (his 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 (Einzelgesene) 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 dirini soggtuiii (individual rights) and interessi legiirimi (protected interests), frequently represented as peculiar to the Italian system.

7 In this connection, however, see Papier, ‘Art. 34. Rn 181'. in Maunz-DUrig-Hcnog-Scholz. GG Kommenmr, Munich. 1957. 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 ol a serious omission on the pan of the legislature (qualijuiata Unicrtassen)

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 par compensation, as laid down in that judgment, 1 refer to my Opinion in Joined Cases C-46/93 (Brasserie du Pecheur) and C-48/93 (Factoname III), also delivered today, in particular sections IS to 221

9 The three conditions in question, set out by the Court in Francovich (paragraph 40). arc however quoted here as repeated and summarized by the Court in its judgment in Case C-91(92 Faccini Don v Recreb [1994] ECR1-3325, paragraph 27, and in Case C-334/92 Wafrer Mirei v Fondo di Caramia Salarial [1993] ECR 1-6911. paragraphs 22 and 23. ‘

10 Francovich. cited above, paragraph 41

11 Arlicle 2(4) of the directive defines ‘consumer’ as ‘the person who takes or agrees to take the package1 (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 (he 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 area 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 or the travel organizer's insolvency

14 Francovich. cited above, paragraph

15 Case C-59/S9 Commission v Germany (1991) ECR 1-2607, paragraph

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 Tor example the judgment in Commission v Germany, cited above, paragraph 28, where the Court held that ‘the fan 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, ii 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 1-3061, paragraph 33.

20 For an application of that principle in case-law on Article 21S, see, inter alia, the judgment in Joined Cases 5, 7 and 13 to 24/66 Kampffmeyer 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 295S, 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 Picheur and C-48/93 Factortame III. especially paragraphs 97 to 100.

21 It shows, among other things, that failure lo 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 el 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 Taiha'm, Les recours contre les atteintes ponies aux normes communautaires par les pouvoirs publics en Angleterre. in Cahiendedroit européen. 1993. p. 597et 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 78 to 84 of the Opinion in Joined Cases C-46/93 (Brasserie du Pécheur) and C-48/93 \Factoname 111).

27 Sec, in particular, section SI of the Opinion cited in the previous footnote.

28 Sec. in this connection, sections 85 to 90 of that Opinion.