JUDGMENT OF THE COURT (Grand Chamber)

15 November 2016 ( *1 )

‛(Reference for a preliminary ruling — Fundamental freedoms — Articles 49, 56 and 63 TFEU — Situation confined in all respects within a single Member State — Non-contractual liability of a Member State for damage caused to individuals by breaches of EU law for which the national legislature and courts are to be held responsible’

In Case C‑268/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium), made by decision of 24 April 2015, received at the Court on 8 June 2015, in the proceedings

Fernand Ullens de Schooten

v

État belge,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano, Vice-President, R. Silva de Lapuerta, M. Ilešič, L. Bay Larsen, M. Berger, A. Prechal and E. Regan, Presidents of Chambers, A. Rosas, C. Toader, M. Safjan (Rapporteur), D. Šváby, E. Jarašiūnas, C.G. Fernlund and C. Vajda, Judges,

Advocate General: Y. Bot,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 24 May 2016,

after considering the observations submitted on behalf of:

—

Mr Ullens de Schooten, by E. Cusas, J. Derenne, M. Lagrue and N. Pourbaix, avocats,

—

the Belgian Government, by J.‑C. Halleux, C. Pochet and S. Vanrie, acting as Agents, and L. Grauer, R. Jafferali and R. van Melsen, avocats,

—

the European Commission, by J.‑P. Keppenne and W. Mölls, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 June 2016,

gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Articles 49, 56 and 63 TFEU, Article 4(3) TEU, and the principles of effectiveness and the primacy of EU law.

2The request has been made in proceedings between Mr Fernand Ullens de Schooten and the État belge (Belgian State) concerning an action for non-contractual liability brought against the Belgian State alleging that the Belgian legislative and judicial powers infringed EU law.

Legal context

Belgian law

Royal Decree No 143

3Arrêté royal No 143 fixant les conditions auxquelles les laboratoires doivent répondre en vue de l’intervention de l’assurance maladie pour les prestations de biologie clinique (Royal Decree No 143 laying down the conditions to be met by laboratories with a view to payments by sickness insurance funds for clinical biology services) of 30 December 1982, as amended by Article 17 of the Programme Law of 30 December 1988 ( Moniteur belge , 5 January 1989), (‘Royal Decree No 143’) provides in Article 3(1) that, for clinical biology laboratories to be approved by the Ministre de la Santé publique (Minister for Public Health) and to receive payments from the Institut national d’assurance maladie-invalidité (National Institute for Sickness and Invalidity Insurance, INAMI), they must be operated by persons authorised to provide clinical biology services, in other words doctors, pharmacists or chemical science graduates.

The Civil Code

4Article 2262a(1) of the Code civil (Civil Code) provides:

‘The limitation period for all personal actions shall be 10 years.

By way of derogation from the first subparagraph, the limitation period for any action seeking compensation for damage based on non-contractual liability shall be five years from the day following that on which the person harmed became aware of the damage or its aggravation and the identity of the person responsible for the damage.

In any event, the limitation period for actions of the type referred to in the second subparagraph shall be 20 years from the day following that on which the event giving rise to the damage occurred.’

The Consolidated Laws on State accounting

5Article 100 of the Lois coordonnées sur la comptabilité de l’État (Consolidated Laws on State accounting) of 17 July 1991 ( Moniteur belge , 21 August 1991), in the version applicable in the main proceedings, provided:

‘The following claims shall be statute-barred and wholly extinguished in favour of the State, without prejudice to any cancellation arising from other statutory or regulatory provisions or agreements in the matter:

‘1.

claims, the submission of which, in a form determined by statute or regulation, did not take place within a period of five years running from the first of January of the financial year during which they arose;

…’

6Article 101 of the Consolidated Laws read as follows:

‘Process served by a bailiff and an acknowledgment of debt by the State shall stop the limitation period running.

The institution of proceedings before a court shall suspend the limitation period until such time as a final decision is given.’

The Law on the organisation of the Federal budget and accounts

7In accordance with the second paragraph of Article 131 of the Loi portant organisation du budget et de la comptabilité de l’État federal (Law on the organisation of the Federal budget and accounts) of 22 May 2003 ( Moniteur belge , 3 July 2003):

‘Article 100(1) of the Royal Decree of 17 July 1991 on the coordination of the laws on State accounting shall continue to apply to claims against the Federal State that arose before the entry into force of the present law.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

8Mr Ullens de Schooten operated the BIORIM clinical biology laboratory which was declared insolvent on 3 November 2000.

9Following a complaint to the European Commission, that institution brought an action before the Court on 20 June 1985 seeking a declaration that the Kingdom of Belgium had failed to fulfil its obligations under Article 52 of the EC Treaty (later Article 43 EC) by excluding clinical biology services provided in laboratories operated by a legal person governed by private law whose members, partners or directors were not all natural persons authorised to carry out medical analyses from reimbursement under the social security system.

10By judgment of 12 February 1987, Commission v Belgium ( 221/85 , EU:C:1987:81 ), the Court dismissed the action. In particular, with reference to freedom of establishment, it found that, provided that equal treatment was respected, each Member State was, in the absence of Community rules in this area, free to lay down rules for its own territory governing the activities of laboratories providing clinical biology services. The Court further held that the Belgian legislation concerned did not prevent doctors or pharmacists who were nationals of other Member States from establishing themselves in Belgium and operating there a laboratory to carry out clinical analyses qualifying for reimbursement under the social security system. The Court concluded that the legislation applied without distinction to Belgian nationals and those of other Member States, and that its provisions and objectives did not permit the conclusion that it had been adopted for discriminatory purposes or that it produced discriminatory effects.

11In 1989 the BIORIM laboratory was the subject of a criminal investigation prompted by suspicion of tax evasion. Following the investigation, Mr Ullens de Schooten was prosecuted inter alia for concealment of the illegal operation of a laboratory, contrary to Article 3 of Royal Decree No 143.

12By judgment of 30 October 1998, the Tribunal de première instance de Bruxelles (Court of First Instance, Brussels, Belgium) convicted Mr Ullens de Schooten and sentenced him to five years’ imprisonment and a fine. In addition, that court allowed the claims of the mutual societies which had joined the proceedings as civil parties, and ordered Mr Ullens de Schooten to pay them one euro as a provisional payment.

13The court rejected Mr Ullens de Schooten’s argument that Article 3 of Royal Decree No 143 was not in force at the time of the acts which gave rise to the criminal proceedings against him.

14By judgment of 7 December 2000, the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium) set aside that judgment. It nonetheless convicted Mr Ullens de Schooten of the same offences and sentenced him to five years’ imprisonment, with the part of the sentence exceeding four years being suspended, and a fine. The claims brought by the civil parties were held to be inadmissible or unfounded.

15According to the order for reference, that judgment ‘omitted all mention’ of any breach of Article 3 of Royal Decree No 143 with respect to acts that had taken place before its entry into force. As regards the acts that took place after that provision entered into force, the Cour d’appel de Bruxelles (Court of Appeal, Brussels) rejected Mr Ullens de Schooten’s complaint that the provision was not compatible with EU law, while refusing to make a reference to the Court for a preliminary ruling.

16By judgment of 14 February 2001, the Cour de cassation (Court of Cassation, Belgium) dismissed the appeals against the criminal conviction by the Cour d’appel de Bruxelles, allowed the appeals brought by the civil parties, and referred the case to the Cour d’appel de Mons (Court of Appeal, Mons, Belgium).

17By judgment of 23 November 2005, the Cour d’appel de Mons (Court of Appeal, Mons) ruled that the claim for payment brought by six mutual societies against Mr Ullens de Schooten in connection with the sums wrongly paid to the BIORIM laboratory from 1 August 1989 to 16 April 1992 was in part well founded.

18The Cour d’appel de Mons (Court of Appeal, Mons) rejected Mr Ullens de Schooten’s argument that Article 3 of Royal Decree No 143 was not compatible with EU law. Taking the view that it was bound by the authority of res judicata attaching to the judgment of the Cour d’appel de Bruxelles (Court of Appeal, Brussels) of 7 December 2000, the court ordered Mr Ullens de Schooten to pay those mutual societies the sum of one euro as a provisional payment, while inviting the mutual societies to recalculate their losses as regards the payments made after the entry into force of Article 3 of Royal Decree No 143.

19The Cour de cassation (Court of Cassation), hearing appeals against that judgment, dismissed them by judgment of 14 June 2006.

21By ministerial order of 9 July 1999, the Minister for Public Health dismissed the administrative complaint brought against that decision.

22By decision of 8 June 2000, the Clinical Biology Commission extended the suspension of authorisation for 12 months.

23By ministerial order of 24 July 2000, the Minister for Public Health dismissed the administrative complaint brought against that further decision.

24The Conseil d’État (Belgium), before which two actions were brought for annulment of those ministerial orders, referred a preliminary question to the Cour constitutionelle (Constitutional Court, Belgium) on the constitutionality of Article 3 of Royal Decree No 143.

25At the same time, the Commission, with which Mr Ullens de Schooten had lodged a complaint, issued a reasoned opinion against the Kingdom of Belgium on 17 July 2002, in which it considered that Article 3 of Royal Decree No 143 was contrary to Article 43 EC.

26Following the amendment by Belgium of Article 3 of Royal Decree No 143, the Commission decided to take no further action.

27By judgment No 160/2007 of 19 December 2007, the Cour constitutionelle (Constitutional Court) held that that provision, in the version applicable before the amendment, was consistent with the constitution.

28The Cour constitutionelle (Constitutional Court) also found that, since the legal relationships of the BIORIM laboratory were ‘entirely confined to the internal sphere of a Member State’, the laboratory could not rely on Articles 43, 49 and 56 EC.

29Consequently, by judgments of 10 September and 22 December 2008, the Conseil d’État dismissed the actions.

30By applications of 14 December 2006 and 21 August 2007, Mr Ullens de Schooten brought an action before the European Court of Human Rights claiming that Belgium had infringed the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950.

31By judgment of 20 September 2011, Ullens de Schooten and Rezabek v. Belgium (CE:ECHR:2011:0920JUD000398907), the European Court of Human Rights held that there had been no violation of Article 6(1) of that convention.

32On 17 July 2007 Mr Ullens de Schooten brought proceedings in the Tribunal de première instance de Bruxelles (Court of First Instance, Brussels) against the Belgian State, seeking to be indemnified against, first, all the financial consequences of the orders made against him in the judgment of the Cour d’appel de Mons (Court of Appeal, Mons) of 23 November 2005; secondly, all the consequences of any order made against him at the request of BIORIM or its former manager; and, thirdly, all the consequences of any order made against him in connection with the tax proceedings.

33By that application Mr Ullens de Schooten sought for the Belgian State to be ordered to pay EUR 500000 for non-pecuniary damage, EUR 34500000 as a provisional payment because of his being unable to operate the BIORIM laboratory, and one euro as a provisional payment for lawyers’fees and disbursements.

34Mr Ullens de Schooten requested the Tribunal de première instance de Bruxelles (Court of First Instance, Brussels), should it entertain doubts as to the application of EU law in the case, to refer a question to the Court for a preliminary ruling.

35By judgment of 19 June 2009, the Tribunal de première instance de Bruxelles (Court of First Instance, Brussels) declared the application referred to in paragraph 33 above inadmissible on the ground that it was out of time.

36Mr Ullens de Schooten appealed against that judgment to the referring court, which entertains doubts as to the interpretation and application of EU law in the present case.

37In those circumstances, the Cour d’appel de Bruxelles (Court of Appeal, Brussels) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1.

Does [EU] law, in particular the principle of effectiveness, in certain circumstances … require that the national limitation period, such as that in Article 100 of the Consolidated Laws on State accounting applicable to a claim for compensation made by an individual against the Belgian State for infringement of Article 43 [EC] by the legislature, should not start to run until that infringement has been established or, on the contrary, is the principle of effectiveness sufficiently ensured in those circumstances by the opportunity that is open to that individual to stop the limitation period running by having process served by a bailiff?

2.Must Articles 43, 49 and 56 EC and the concept of a “purely internal situation”, which is liable to limit reliance on those provisions by an individual in proceedings before a national court, be interpreted as precluding the application of EU law in proceedings between a Belgian national and the Belgian State in which redress is sought for damage caused by an alleged infringement of [EU] law resulting from the adoption and maintaining in force of Belgian legislation such as Article 3 of Royal Decree No 143 … which applies without distinction to Belgian nationals and nationals of other Member States?

3.Must the principle of the primacy of EU law and Article 4(3) TEU be interpreted as not allowing the rule establishing the authority of res judicata to be disapplied in connection with the review or setting aside of a judicial decision which has become res judicata and which proves to be contrary to EU law but, on the contrary, as allowing a national rule establishing the authority of res judicata to be disapplied when the rule would require the adoption, on the basis of that judicial decision which has become res judicata but is contrary to EU law, of another judicial decision which would perpetuate the infringement of EU law by the first judicial decision?

4.Could the Court confirm that the question whether the rule establishing the authority of res judicata must be disapplied in the case of a judicial decision which has become res judicata but is contrary to EU law in the context of an application for review or setting aside of that decision is not a question materially identical, within the meaning of the judgments [of 27 March 1963 in DaCosta and Others ( 28/62 to 30/62 , EU:C:1963:6 ) and 6 October 1982 in Cilfit and Others ( 283/81 , EU:C:1982:335 )], to the question whether the rule establishing the authority of res judicata is contrary to EU law in the context of an application for a (new) decision which would repeat the infringement of EU law, so that the court giving judgment at last instance cannot escape its obligation to make a reference for a preliminary ruling?’

Consideration of the questions referred

Jurisdiction of the Court

39It should be observed, however, that by its questions the referring court seeks essentially to know whether the non-contractual liability of the State for damage allegedly caused to individuals as a result of a breach of EU law may be pleaded in a case which is confined in all respects within a single Member State.

42The non-contractual liability of a Member State for damage caused by a decision of a national court adjudicating at last instance which infringes a rule of EU law is governed by the same conditions (see judgments of 30 September 2003, Köbler, C‑224/01 , EU:C:2003:513 , paragraph 52 , and of 28 July 2016, Tomášová, C‑168/15 , EU:C:2016:602 , paragraph 23 and the case-law cited).

43Consequently, the principle of the non-contractual liability of the State is within the interpretative jurisdiction of the Court.

44In those circumstances, the Court has jurisdiction to rule on the present request for a preliminary ruling.

Question 2

45By its second question, which should be considered first, the referring court essentially asks whether EU law must be interpreted as meaning that the system of non-contractual liability of a Member State for damage caused by a breach of that law is to apply in the case of damage allegedly caused to an individual as a result of an alleged breach of a fundamental freedom laid down in Article 49, 56 or 63 TFEU by national legislation that is applicable without distinction to the State’s own nationals and those of other Member States, in a case which is confined in all respects within that single Member State.

58Having regard to all the above considerations, the answer to Question 2 is that EU law must be interpreted as meaning that the system of non-contractual liability of a Member State for damage caused by a breach of that law does not apply in the case of damage allegedly caused to an individual as a result of an alleged breach of a fundamental freedom laid down in Article 49, 56 or 63 TFEU by national legislation that is applicable without distinction to the State’s own nationals and those of other Member States, where, in a situation which is confined in all respects within a single Member State, there is no link between the subject or circumstances of the dispute in the main proceedings and those articles.

Questions 1, 3 and 4

59Since Questions 1, 3 and 4 are based on the incorrect premiss that EU law is capable of founding the non-contractual liability of the Member State concerned in a dispute such as that in the main proceedings, there is no need to answer them.

Costs

60Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

European Union law must be interpreted as meaning that the system of non-contractual liability of a Member State for damage caused by a breach of that law does not apply in the case of damage allegedly caused to an individual as a result of an alleged breach of a fundamental freedom laid down in Article 49, 56 or 63 TFEU by national legislation that is applicable without distinction to the State’s own nationals and those of other Member States, where, in a situation which is confined in all respects within a single Member State, there is no link between the subject or circumstances of the dispute in the main proceedings and those articles.

[Signatures]

( *1 ) Language of the case: French.