Phantom Menace or New Hope: Member State Public Tort Liability after the Double-Bladed Light Saber Duel between the European Court of Justice and the German Bundesgerichtshof in Brasserie Du Pecheur

Article excerpt


This Article examines the interactions between European Community and national law, in the context of Member State public tort liability. Specifically, the Article analyzes Brasserie du Pecheur v. Federal Republic of Germany, a case that pitted German beer purity legislation against requirements of Community law. In that case, the European Court of Justice (ECJ) ruled that acts or omissions of the national legislator may, under certain conditions, give rise to Member State public tort liability, which is adjudicated in the national court systems. The German Federal Court of Justice dismissed the case after finding that the conditions of state liability were not met under either German or Community law.

The Article discusses in detail the nature and characteristics of the Member State liability principle conceived by the ECJ; despite the silence of treaty law on this issue, the ECJ has long supported the notion that a Member State may incur tort liability for breaching community law. As a result of ECJ jurisprudence, supranational judge-made law may deeply permeate domestic legal orders. However, the German court's dismissal of the damages claim in Brasserie du Pecheur demonstrates that Member State liability is not open-ended. Rather, a balance may be achieved between European Community (EC) compliance interests and Member State domestic institutional prerogatives.

Wie das Pier Summer vie Winter auf dem Land sol geschenkt und prauen werden"([dagger])


On October 24, 1996, the highest civil court in Germany, the Federal Court of Justice (Bundesgerichtshof (BGH)), rejected a claim for damages levied by Brasserie du Pecheur against the Federal Republic of Germany.(1) The decision drew the final curtain on a drama of serial litigation(2) pitting German legislation against requirements of European Community (Community) law.(3) The German laws had confined the use of the designation "beer" (Bier) to products brewed from certain raw materials and prohibited the use of additives, basically codifying the ancient Purity Requirement for Beer (Reinheitsgebot fur Bier)--the hallmark of German beer brewing tradition--which stipulates malted barley, hops, yeast, and water as the only permitted ingredients for brewing beer.(4) Under European Court of Justice (ECJ) case law, beers that do not conform to the German beer recipe legislation may still be sold under the designation of beer in Germany.(5) They may contain other raw ingredients and additives, but must be unequivocally labeled.(6)

In contrast, the matter of damages to parties allegedly injured as a result of the Purity Requirement for Beer was not raised until Brasserie du Pecheur (hereinafter Brasserie), which involved proceedings before the German civil courts and the ECJ. The ECJ's preliminary ruling, which the BGH had requested, held that Member State public tort liability may be triggered by domestic legislation violative of Community law.(7) Nevertheless, the BGH, finding that the conditions of state liability were not met under German or Community law, dismissed the case.(8)

This Article employs the beer litigation as a case study to analyze the interactions and fault lines between Community and national law, as exhibited in the context of Member State public tort liability. Part I juxtaposes the ECJ's and the BGH's Brasserie decisions. Part II analyzes the content, characteristics, and nature of the state liability doctrine conceived by the ECJ. Part III assesses the effects of the ECJ's jurisprudence on the national legal orders. Finally, Part IV provides findings and conclusions.


A. Factual Background(9)

The plaintiff, the French beer brewery of Brasserie du Pecheur based at Schiltigheim (Alsace), alleged that, until 1981, it exported significant amounts of beer into the Federal Republic of Germany. …