Garde, Amandine

Amandine Garde

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MEMBER STATES’ LIABILITY FOR JUDICIAL ACTS OR OMISSIONS: MUCH ADO ABOUT NOTHING?

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MEMBER STATES’ LIABILITY FOR JUDICIAL ACTS OR OMISSIONS: MUCH ADOABOUT NOTHING?CASE C-224/01 Gerhard Ko¨bler v. Republic of Austria is the ﬁrstcase before the European Court of Justice (‘‘the Court’’) onMember State liability for judicial acts or omissions.Mr. Ko¨bler applied for the length of service increment payableto university professors in Austria. His application was dismissedon the ground that he had not served ﬁfteen years in the Austrianuniversity system. Mr. Ko¨bler claimed that Austrian law wascontrary to Article 39 of the EC Treaty on the free movement of564 The Cambridge Law Journal [2004]workers, as it did not take into account periods of service in otherMember States and was therefore discriminatory.The Verwaltungsgerichtshof (the Austrian AdministrativeSupreme Court) dismissed Mr. Ko¨bler’s claim. Mr. Ko¨blersubsequently brought an action before the Landesgericht fu¨rZivilrechtssachen (the regional civil court) for damages against theRepublic of Austria in respect of the Verwaltungsgerichtshof ’sdecision. Several questions concerning the liability of the State forjudicial acts or omissions were referred to the Court.Upholding Advocate General Le´ger’s Opinion, the Courtexplicitly ruled for the ﬁrst time that national courts should not, inprinciple, be immune from an action in damages as a result of theiracts or omissions. The State is a subject of international law and itis viewed as a single entity, notwithstanding its internal division ofpowers. Moreover, acknowledging the responsibility of nationalcourts is the necessary corollary of the important role that theyplay in directly, immediately and eﬀectively protecting the rightswhich individuals derive from Community law.In line with previous case law on Member State liability, theCourt then conﬁrmed that three conditions had to be met for adamages action against a Member State to succeed:1. the rule in question must be intended to confer rights onindividuals,2. the breach must be suﬃciently serious, and3. there must be a direct causal link between the breach ofthe obligation resting on the State and the damagesustained by the injured party.The Court ﬁnally held that, on the facts, Austria was not liable indamages, as its breach of Article 39 was not suﬃciently serious.This judgment raises several issues.First, the question arises of how a suﬃciently serious breachshould be assessed. Both the Advocate General and the Courtagreed that the assessment of whether a breach was suﬃcientlyserious should be particularly strict in relation to judicial acts, so asto leave the necessary margin of discretion to national courts toexercise their function eﬀectively. In particular, it appears that theCourt has limited the liability of national courts to courts of lastinstance. Further, it held that State liability could be incurred onlyin the exceptional case where the court had ‘‘manifestly infringedthe applicable law’’. The Court listed several factors which shouldbe considered in making this assessment of manifest infringement:the degree of clarity and the precision of the rule infringed, whetherthe infringement was intentional, the position taken by aC.L.J. Case and Comment 565Community institution, and the non-compliance by the nationalcourt in question with its obligation to make a reference underArticle 234 of the Treaty. However, the application of these factorsto judicial acts or omissions is particularly controversial andcertainly not straightforward. Indeed, the Advocate General andthe Court applied a similar test but nonetheless reached a diﬀerentoutcome on the facts of the case. The duty which courts of lastinstance have to refer questions of interpretation of Community lawunder the third paragraph of Article 234 further complicates theissue. More speciﬁcally, the question arises whether a national courtcould commit a suﬃciently serious breach if it invoked the acteclair doctrine in a case which did not satisfy the CILFIT criteria.Obvious misuses of this doctrine would probably give rise to asuccessful claim in damages. The widely discussed judgment of theFrench Conseil d’Etat (the Administrative Supreme Court) in Cohn-Bendit should fall within this category, especially as the Conseild’Etat had refused to follow the advice of its Commissaire duGouvernement to seek a preliminary ruling from the Court.However, the question is arguably much more delicate when agrossly negligent, as opposed to a wilful, misuse of the doctrine isat stake.Secondly, the requirement that there should be a direct causallink is also likely to cause diﬃculties in claims concerning judicialacts or omissions. If a national court has not applied Communitylaw when required to do so, the problem remains that it is stillnecessary to determine the extent to which this failure hascontributed to the applicant’s loss. It may be that the contentiousquestion of Community law was only one question among severalothers. In such a case, how can an individual establishsuccessfully that he would have been in another position if thenational court had referred the relevant preliminary questions tothe Court?Finally, there is the question of practical enforcement. Stateliability is a Community remedy which is enforced in nationalcourts. Thus, an individual who has suﬀered a loss as a result ofthe act or omission of a court of last instance has to lodge a claimin damages before a national court of ﬁrst instance. Seriousdiﬃculties could arise if this lower court was somehow related tothe court of last instance which took the contentious decision in theﬁrst place. In other words, how could a lower court decide thatnational law did not comply with a speciﬁc provision ofCommunity law if the court of last instance held that it did? Also,how could a lower court rule that the acte clair doctrine did notapply when the court of last instance held that it did? The diﬃculty566 The Cambridge Law Journal [2004]involved in ﬁnding a suitable forum is exacerbated in MemberStates with a strict doctrine of binding precedent. For example, is itrealistic to expect the High Court to rule that the House of Lordscommitted ‘‘a manifest breach of Community law’’ and awarddamages as a result? It is likely that High Court judges willsystematically either dismiss such claims in damages or refer themto the Court under Article 234. Moreover, it can be doubtedwhether an aggrieved individual could seriously contemplatelodging an appeal against the damages judgment of the lower courtif that meant that he would have to appear before the higher courtagainst which his claim in damages was directed.In Ko¨bler, the United Kingdom, which made some observationsto the Court, submitted that the question of enforcement washighly problematic in the context of State liability for judicial actsor omissions. In particular, it pointed to ‘‘the diﬃculties indetermining the court competent to adjudicate on such a case ofState liability, particularly in the United Kingdom where there is aunitary court system and a strict doctrine of stare decisis’’.However, the Court dismissed the argument by simply stating thatdetermining the competent court was a question for Member Statesto resolve.This judgment lays down a principle which ﬂows from theCourt’s previous case law and which unequivocally conﬁrms, ﬁrst,that Member States are single entities and, secondly, that nationalcourts have a duty to ensure that Community law is upheld.However, it is diﬃcult to assess, at this stage, whether the remedyof State liability for judicial acts or omissions will have anypractical impact: not only is the Ko¨bler test extremely restrictive butit is also unlikely to be applied in national courts. It is arguablethat Ko¨bler raises more questions than it provides answers.AMANDINE GARDEC.L.J. Case and Comment 567

Member states' liability for judicial acts or omissions: Much ado about nothing?

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