Beutler - State Liability for Breaches of Community Law by National Courts

State liability 773Common Market Law Review 46: 773–804, 2009.© 2009 Kluwer Law International. Printed in the Netherlands.

STATE LIABILITY FOR BREACHES OF COMMUNITY LAW BY NATIONAL COURTS: IS THE REQUIREMENT OF A MANIFEST INFRINGEMENT OF THE APPLICABLE LAW AN INSURMOUNTABLE OBSTACLE?

BJÖRN BEUTLER*

1. Introduction

A decade ago, the question whether a State could incur liability as a result of errors made in the application of Community law by its judiciary could still be addressed under the headline “Thinking the Unthinkable?”1 Since then, the perspective has clearly changed. For in 2003 the European Court of Justice decided in Köbler that under certain conditions Member States can indeed be held liable for decisions of their courts,2 a view it confirmed in 2006 when handing down its decision in Traghetti del Mediterraneo.3

Previous judgments had already contained indications which made this out-come seem predictable or at least likely. For as early as 1996 the Court had held in Brasserie that the principle of State liability “holds good for any case in which a Member State breaches Community law, whatever be the organ of the State whose act or omission was responsible for the breach.”4 Yet many Member States had obviously been reluctant to accept the implications of this statement – as can be seen from their concerns voiced during the proceedings in Köbler.5 With regard to these concerns, the ECJ declared that the principle

* Dr. iur., Rechtsanwalt in Düsseldorf. This article is an abbreviated version of my master paper written as part of the Katholieke Universiteit Leuven’s LL.M. programme. I am very grateful to my supervisor, Prof. Dr. Jules Stuyck, and my co-reader, Prof. Dr. Wouter Devroe, for their invaluable advice.

1. Toner, “Thinking the unthinkable? State liability for judicial acts after Factortame (III)”, 17 YEL (1997), 165–190.

2. Case C-224/01, Gerhard Köbler v. Austria, [2003] ECR I-10239.3. Case C-173/03, Traghetti del Mediterraneo SpA, in liquidation v. Italy, [2006] ECR

I-5177.4. Joined Cases C-46 & 48/93, Brasserie du Pêcheur SA v. Germany and The Queen v.

Secretary of State for Transport, ex parte: Factortame Ltd and others, [1996] ECR I-1029, para 32 (emphasis added). See also Case C-302/97, Klaus Konle v. Austria, [1999] ECR I-3099, para 62; Case C-424/97, Salomone Haim v. Kassenzahnärztliche Vereinigung Nordrhein, [2000] ECR I-5123, para 27.

5. See the arguments referred to in Köbler, cited supra note 2, paras. 17, 19, 20, 23, 25.

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of res judicata was not called in question by accepting the possibility of State liability for decisions of a court adjudicating at last instance,6 nor would this diminish the authority of such a court or endanger the independence of the judiciary.7

Nonetheless the Court took the Member States’ concerns seriously. For in Köbler and Traghetti the number of potential cases in which citizens may claim damages for wrongful application of Community law by national courts was narrowed down decisively. To begin with, the ECJ’s rulings so far have been limited to decisions stemming from national courts adjudicating at last instance.8 These are not necessarily the highest courts of a Member State9 but those which deliver the final decision in a given case, thus constituting “the ultimate judicial body where a legal claim can be possibly brought.”10 In addi-tion, there is another boundary which narrows down the number of potential cases still further and whose importance is even greater: “State liability for an infringement of Community law by a decision of a national court adjudicating at last instance can be incurred only in the exceptional case where the court has manifestly infringed the applicable law.”11

The requirement of a manifest infringement clearly constitutes a limitation. Yet its exact meaning has given rise to much speculation and caused consider-able uncertainty. The few judgments which national courts have delivered in this context so far seem to indicate that they would like to limit the possibility of holding a Member State liable to the rarest of circumstances.12 Similar views can be found in scholarly writing.13 Yet these views seem questionable in the light of the following assertion in Köbler:

“[I]t follows from the requirements inherent in the protection of the rights of individuals relying on Community law that they must have the possibil-ity of obtaining redress in the national courts for the damage caused by the

6. Ibid., paras. 39 et seq. Somewhat critical Ruffert, annotation of Case C-173/03, Traghetti del Mediterraneo SpA in Liquidation v. Italian Republic, 44 CML Rev. (2007), 479–486, at 480.

7. Köbler, cited supra note 2, paras. 41 et seq.8. Ibid., para 33; Traghetti, cited supra note 3, paras. 31 et seq.9. Ortlep, “Het arrest Traghetti en een geharmoniseerd criterium voor staatsaansprakelijk-

heid wegens onrechtmatige rechtspraak”, 11 NTER (2006), 227–230, at 227.10. Anagnostaras, “Erroneous judgments and the prospect of damages: The scope of the

principle of governmental liability for judicial breaches”, 31 EL Rev. (2006), 735–747, at 738.11. Köbler, cited supra note 2, para 53 (emphasis added). See also Traghetti, cited supra note

3, para 32.12. Cf. Section 4, infra.13. Krieger, “Haftung des nationalen Richters für Verletzung des Gemeinschaftsrechts: Das

Urteil Köbler des EuGH, EuZW 2003, 718”, 44 Juristische Schulung (2004), 855–858, at 858.

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infringement of those rights owing to a decision of a court adjudicating at last instance …”14

It can thus be inferred that the possibility of being recompensed is not merely theoretical. In fact, the Court emphasized that the full effectiveness of rights which individuals derive from Community law “would be called in question … if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by an infringement of Commu-nity law attributable to a decision of a court of a Member State adjudicating at last instance.”15

Against this backdrop, Classen is right when maintaining that “it is of para-mount importance that the concrete requirements for a liability claim are established.”16 This goes in particular for the prerequisite of a manifest infringe-ment whose outlines, as Hakenberg carefully formulates, are “not yet very clear.”17 It is therefore the aim of this article to analyse the requirement in question and to show that – albeit being a limitation – it cannot be regarded as an insurmountable obstacle. For this purpose, the analysis will begin by placing the requirement within the system of conditions set up by the ECJ in its decisions on State liability (section 2, infra). It is then appropriate to examine the judgments in Köbler and Traghetti in greater detail (section 3, infra) and to look at decisions which national courts delivered in their wake (section 4, infra). Finally, the judg-ments will be placed in a broader context of other liability decisions as well as principles of Community law (section 5, infra).

2. Position of the requirement of a manifest infringement within the system of conditions set up by the ECJ

It follows from the ECJ’s decisions on State liability that Community law con-fers a right to reparation where three conditions are met:18

14. Köbler, cited supra note 2, para 36.15. Ibid., para 33.16. Classen, annotation of Case C-224/01, Gerhard Köbler v. Republik Österreich, Judgment

of 30 September 2003, Full Court, 41 CML Rev. (2004), 813–824, at 819.17. Hakenberg, “Zur Staatshaftung von Gerichten bei Verletzung von europäischem Gemein-

schaftsrecht”, 82 Deutsche Richterzeitung (2004), 113–117, at 117.18. It should be remembered that “this does not mean that the State cannot incur liability

under less strict conditions pursuant to national law,” cf. Traghetti, cited supra note 3, para 4.


a) the rule of law infringed must be intended to confer rights on individuals;b) the breach must be sufficiently serious;c) there must be a direct causal link between the breach of the obligation rest-

ing on the State and the damage sustained by the injured parties.19

These conditions are nowadays well known and have often been subject of scholarly writing.20 An in-depth analysis may therefore be dispensed with at this point. Yet it should be remembered that “those conditions are to be applied according to each type of situation”21 and that prior to Köbler their application had been limited to cases where Community law had been breached either by the executive or the legislature. It therefore comes as no surprise that during the proceedings in Köbler and Traghetti it was highly debated whether the three conditions should also apply when the infringement was attributable to a national court adjudicating at last instance. Some Member States showed themselves convinced that, in such cases, their liability could not be incurred at all.22 Even though this view still seems to be favoured by some scholars,23 it can hardly be upheld any more. For the ECJ clearly retained its finding in Brasserie that the principle of State lia-bility applies to any case in which a Member State breaches Community law, “whichever is the authority of the Member State whose act or omission was responsible for the breach.”24 Other Member States as well as the Commission did not limit their argu-mentation to an outright denial. Instead, they pursued a tactic whose thrust was focused on the conditions of State liability. They considered, in the words of the Court, that liability in these cases “should be limited and subject to differ-ent restrictive conditions additional to those already laid down in the Brasse-rie du Pêcheur and Factortame judgment.”25 Advocate General Léger likewise

19. Brasserie, cited supra note 4, para 51; Case C-392/93, The Queen v. H. M. Treasury, ex parte British Telecommunications plc., [1996] ECR I-1631, para 39; Case C-352/98 P, Berga-derm and Goupil v. Commission, [2000] ECR I-5291, para 42.

20. See e.g. Meijer, “Aansprakelijkheid wegens schending van het EG-recht: lidstaataan-sprakelijkheid”, 15 Maandblad voor Vermogensrecht (2005), 138–142, at 138 et seq.; Saenger, “Staatshaftung wegen Verletzung europäischen Gemeinschaftsrechts”, 37 Juristische Schulung (1997), 865–872, at 869 et seq.

21. Joined Cases C-178, 179, 188, 189 & 190/94, Dillenkofer and others v. Germany, [1996] ECR I-4845 paras. 24–25; Case C-470/04, N v. Inspecteur van de Belastingdienst Oost/kantoor Almelo, [2006] ECR I-7409, para 63.

22. Köbler, cited supra note 2, paras. 20 et seq.; Traghetti, cited supra note 3, para 18.23. Wattel, “Köbler, CILFIT and Welthgrove: We can’t go on meeting like this”, 41 CML

Rev. (2004), 177–190, at 187 and 190 pronounces himself in favour of the principle litis finiri oportet.

24. Köbler, cited supra note 2, para 31 (emphasis added).25. Ibid., para 16.

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voiced the opinion that it would not be enough “purely and simply to transpose the conditions which have been laid down by the Court in respect of the legis-lature or the administrative authorities.”26 Yet at the same time he underlined the importance of maintaining “a certain coherence with the system of rules which have been defined for those other two State organs and which have been applied on several occasions.”27

It is against this background that the Court had to decide if the three condi-tions for State liability would also govern cases in which national courts adju-dicating at last instance infringed rules of Community law. The ECJ answered the question in the affirmative,28 stating in unambiguous terms that these con-ditions have to be regarded as “necessary and sufficient to found a right in favour of individuals to obtain redress.”29 It then went on to say in Köbler:

“With regard more particularly to the second of those conditions …, regard must be had to the specific nature of the judicial function and to the legiti-mate requirements of legal certainty … State liability for an infringement of Community law by a decision of a national court adjudicating at last instance can be incurred only in the exceptional case where the court has manifestly infringed the applicable law.”30

So in this case, as well as in its subsequent decision in Traghetti,31 the Court concentrated on the second of the three requirements. Its stipulation that there must be a manifest infringement of the applicable law constitutes a strict inter-pretation of this second requirement but it is not to be regarded as an additional – in other words fourth – condition.32

3. The Köbler and Traghetti judgments

Abstract guidelines given by the Court have to be illustrated by “concrete examples about how they should be applied” so that they do not “remain

26. Opinion of A.G. Léger in Case C-224/01, Gerhard Köbler v. Austria, [2003] ECR I-10239, para 122.

27. Ibid.28. Köbler, cited supra note 2, paras. 51–52.29. Ibid., para 57; Traghetti, cited supra note 3, para 45.30. Köbler, cited supra note 2, para 53.31. Traghetti, cited supra note 3, para 32.32. Wissink, “EuGH, 30.9.2003, C-224/01, Gerhard Köbler v. Republik Österreich – Liabil-

ity of a Member State for damage caused to individuals by infringements of Community law for which it is responsible”, 13 European Review of Private Law (2005), 419–442, at 423.


hollow phrases.”33 Accordingly, it is now time to take a closer look at the Köbler and Traghetti judgments.

3.1. The Köbler judgment

The underlying facts of the Köbler case can be summarized as follows: Under Austrian law professors were entitled to a special length-of-service increment. Among the conditions to be fulfilled was the completion of a 15 years’ service as a professor in Austrian universities. Mr Köbler applied for this increment. He argued that he had completed the requisite length of service if the periods during which he had taught in universities of other Member States were taken into consideration. Not taking them into account would amount to an indirect discrimination unjustified under Community law.34

In the ensuing lawsuit the Austrian Verwaltungsgerichtshof requested a pre-liminary ruling from the ECJ. Several months later, the Registrar of the Court enquired if there was still need to uphold the request given the fact that in the meantime the judgment in the comparable case Schöning-Kougebetopoulou35 had been delivered. The Verwaltungsgerichtshof asked the parties for their opinion and subsequently withdrew its request, having first asserted that on a provisional view the submitted question had been resolved in a way that was favourable for Mr Köbler. In spite of this assertion, Mr Köbler’s application was dismissed. The Verwaltungsgerichtshof argued that it had re-evaluated the nature of the length-of-service increment and found that it was not a compo-nent of salary – as it had held in its order for reference – but a loyalty bonus. In its opinion such a bonus was “recognized by the Court of Justice as justifi-cation for legislation conflicting with the prohibition on discrimination.”36 Dis-satisfied with this decision, Mr Köbler brought an action for damages against Austria before the Landesgericht für Zivilrechtssachen in Vienna. The latter decided to stay the proceedings and referred several questions to the ECJ for a preliminary ruling. In its decision, the Court first had to deal with the question whether, in Mr Köbler’s case, Community law had been breached. It asserted that the Austrian

33. Prechal, “Judge-made harmonisation of national procedural rules: A bridging perspec-tive” in Wouters and Stuyck (Eds.), Principles of Proper Conduct for Supranational, State and Private Actors in the European Union: Towards a Ius Commune: Essays in Honour of Walter van Gerven (Intersentia, 2001), pp. 39–58, at 51.

34. More precisely, he relied on the provisions on freedom of movement for workers laid down in Art. 39 EC and Art. 7(1) of Regulation (EEC) No. 1612/68.

35. Case C-15/96, Kalliope Schöning-Kougebetopoulou v. Freie und Hansestadt Hamburg, [1998] ECR I-47.

36. Köbler, cited supra note 2, para 11.

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regime was likely to impede the freedom of movement for workers in two ways. On the one hand, Austria refused to recognize periods of service com-pleted in non-Austrian universities by university professors coming from other Member States. On the other hand, university professors established in Austria were deterred from leaving the country, as the time they spent working in uni-versities of other Member States would not matter for the length-of-service increment.37 The ECJ came to the conclusion that such a measure could not be justified by pressing reasons of public interest38 and drew particular attention to the following fact: “[T]he special length-of-service increment at issue in the main proceedings does not solely have the effect of rewarding the employee’s loyalty to his employer. It also leads to a partitioning of the market for the employment of university professors in Austria and runs counter to the very principle of freedom of movement for workers.”39

The Court then turned to the judgment of the Verwaltungsgerichtshof and left no doubt about the fact that the Austrian judges had misread Schöning-Kougebetopoulou.40 Contrary to their finding, this judgment contained no indi-cation that a loyalty bonus constituting an impediment to the freedom of movement for workers could be justified under Community law.41 Since the Verwaltungsgerichtshof had altered its interpretation of the national law after Schöning-Kougebetopoulou had been handed down, it should not have with-drawn its request for a preliminary ruling. In fact, “[t]hat court was not entitled to take the view that resolution of the point of law at issue was clear from the settled case-law of the Court or left no room for any reasonable doubt.” Accord-ingly, the ECJ came to the conclusion that by its judgment the Verwaltungsger-ichtshof had infringed Community law42 and effectively overruled this decision.43

However, the ECJ emphasized that a mere infringement of Community law would not be sufficient to hold a Member State liable for miscarriages of jus-

37. Köbler, cited supra note 2, paras. 72 et seq. See also Classen, op. cit. supra note 16, at 817.

38. Köbler, cited supra note 2, paras. 83 and 87.39. Ibid., para 86.40. Ibid., paras. 113–116. See also Amtenbrink, “ECJ examines State liability for national

judgments: Köbler v. Austria”, (2004) EU Focus, 137, 4–6, at 5. 41. In this respect, the Court made reference to Schöning-Kougebetopoulou, cited supra note

35, paras. 81 and 82.42. Köbler, cited supra note 2, paras. 117 et seq. See also Pfander, “Köbler v. Austria: Expo-

sitional supremacy and Member State liability”, 17 EBLR (2006), 275–297, at 282.43. Scott and Barber, “State liability under Francovich for decisions of national courts”,

120 Law Quarterly Review (2004), 403–406, at 405.


tice.44 Instead, this possibility should only exist “in the exceptional case where the court has manifestly infringed the applicable law.”45 This reasoning attracted some critical remarks in scholarly writing.46 Yet in the words of the Court itself, it is owed “to the specific nature of the judicial function and to the legit-imate requirements of legal certainty.”47 The decisive question was therefore which criteria should be applied to assess the existence of a manifest infringe-ment. In this respect, the Court first gave some general guidelines:

“In order to determine whether that condition is satisfied, the national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it. Those factors include, in particular, the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken, where applicable, by a Community institu-tion and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 234 EC. In any event, an infringement of Community law will be sufficiently serious where the decision concerned was made in manifest breach of the case-law of the Court in the matter …”48

As can be seen from this statement, it is in principle for the national courts to decide whether these conditions are fulfilled. In this particular case, however, the ECJ showed itself convinced that it had all relevant information at its dis-posal for making the assessment itself.49 In this context Wennerås points out that the Austrian judges had made “not one error, but several” so that their judgment should have “cleared the threshold of ‘sufficiently serious breach’ with some margin.”50 It is also noteworthy that Advocate General Léger had voiced the opinion that “it is difficult to accept that the Verwaltungsgerichtshof made an excusable error.”51 Nevertheless, the ECJ came to the conclusion that

44. Köbler, cited supra note 2, para 121. See also Courtial, “La responsabilité du fait de l’activité des juridictions de l’ordre administratif: un droit sous influence européenne?”, 60 Actualité Juridique Droit Administratif (2004), 423–431, at 429.

45. Köbler, cited supra note 2, para 36 (emphasis added).46. See e.g. Zuckerman, “‘Appeal’ to the High Court against House of Lords decisions on the

interpretation of Community law – Damages for judicial error”, 23 Civil Justice Quarterly (2004), 8–14, at 13.

47. Köbler, cited supra note 2, para 53. The specific nature of the judicial function was also mentioned in para 59 of that judgment.

48. Ibid., paras. 54–56.49. Ibid., para 101.50. Wennerås, “State liability for decisions of courts of last instance in environmental cases”,

16 Journal of Environmental Law (2004), 329–340, at 336.51. Opinion of A.G. Léger in Köbler, cited supra note 26, para 170. See with regard to his

statements also Cabral and Chaves, “Member State liability for decisions of national courts

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in Mr Köbler’s case the infringement of Community law had not been manifest.52 This appraisal was based on two different lines of reasoning. Firstly, the Court underlined that Community law gave no clear answer to the question whether a loyalty bonus entailing an obstacle to freedom of movement for workers could be justified. It also stressed that there was neither a reply to that question in the Court’s case law nor could the reply be regarded as obvious.53 Secondly, the ECJ declared that even the Verwaltungsgerichtshof ’s failure to maintain its request for a preliminary ruling did not amount to a manifest in fringement. It emphasized that when the Austrian court had withdrawn its request, it had done so under the impression that its question had been answered in Schöning-Kougebetopoulou, and due to the incorrect perception of this judgment “the Verwaltungsgerichtshof no longer considered it necessary to refer that question of interpretation to the Court.”54

3.2. Reactions to the Köbler judgment

This judgment inevitably led to a wide variety of reactions. Some writers “fully agree” with the outcome55 or declare that it is “both balanced and tenable,”56 proffering various reasons for their evaluation. Wegener, for example, main-tains that by its restrictive interpretation the ECJ preserved the Rechtsfrieden (peace under the law) as well as the cooperative relationship between national and Community courts.57 Breuer argues that a different result could have been perceived as a wrong signal and thereby opened the floodgates to litigation.58 Taking the opposite view, Wattel chides the Court for soliciting “an avalanche of (attempts at) claims, going back who knows how many years, in fifteen Member States whose judiciaries were already not bored.”59 Other scholars also take a critical stance but for different reasons. Some content themselves with voicing their surprise at the Court’s “benign view”60 or its “unusual

adjudicating at last instance: Case C-224/01, Gerhard Köbler v. Republik Österreich, [2003] ECR I-10239”, 13 MJ (2006), 109–126, at 120.

52. Köbler, cited supra note 2, para 124.53. Ibid., paras. 121–122.54. Ibid., para 123.55. Breuer, “State liability for judicial wrongs and Community law: The case of Gerhard

Köbler v. Austria”, 29 EL Rev. (2004), 243–254, at 250.56. Wegener, “Staatshaftung für judikatives Unrecht”, 39 EuR (2004), 84–91, at 84.57. Wegener, op. cit. supra note 56, at 91.58. Breuer, op. cit. supra note 55, at 251.59. Wattel, op. cit. supra note 23, at 179 et seq.60. Craig and de Búrca, EU Law: Text, Cases, and Materials, 4th ed. (Oxford University

Press, 2008), p. 337.


leniency”61 vis-à-vis the infringements committed by the Verwaltungsge-richtshof. Yet other responses are less restrained. Cabral and Chaves, for instance, declare that “the deference shown to Member States seems frankly excessive.”62 In their opinion, the Court did not live up to its role as “constitu-tional adjudicator and ultimate guardian of fundamental rights and liberties in the European Union.”63 Perhaps most pointedly, Zuckerman contends that in the light of the Köbler judgment “the ‘full’ protection of Community rights depends not on their content but on how far the national court is perceived by the ECJ to have blundered, in the sense of having made an obvious mistake.”64

A final group of authors makes a special effort of giving a balanced assess-ment by highlighting both positive and negative aspects of the judgment. Steyger, for instance, asks if the new development could be regarded as desirable and is obviously in conflict with herself. On the one hand, she asserts that one would “naturally go crazy” if the national judge could withhold the rights bestowed upon individuals by Community law without their being able to obtain damages for their losses. On the other hand, she shows herself concerned about the effects which the Köbler judgment will have with regard to legal certainty.65 Classen66 and Radermacher67 regard the outcome as con-vincing, but declare that the Court’s argumentation invites a number of criti-cisms. In legal practice, however, the main problem after the Köbler judgment was obviously the following: The Court had confirmed that in theory it is possible to hold Member States liable for breaches of Community law committed by their courts adjudicating at last instance. Furthermore, it had outlined the con-ditions which have to be fulfilled in this respect, and it had especially provided some guidelines concerning the requirement of a manifest infringement. Yet as in Mr Köbler’s case the breach of Community law had allegedly not been severe enough, it remained unclear at what point the necessary threshold would be attained. Phrasing it differently, the question was if in practice the require-ment of a manifest infringement of the applicable law would prove to be an insurmountable obstacle.

61. Obwexer, “EuGH: Staatshaftung für offenkundig gegen Gemeinschaftsrecht verstoßen-des Gerichtsurteil”, 14 EuZW (2003), 718–728, at 728.

62. Cabral and Chaves, op. cit. supra note 51, at 124.63. Ibid.64. Zuckerman, op. cit. supra note 46, at 13.65. Steyger, “De gevolgen van de aansprakelijkheid van de Staat voor rechterlijke schendin-

gen van EG-recht”, 9 NTER (2004), 18–22, at 22.66. Classen, op. cit. supra note 16, at 817.67. Radermacher, “Gemeinschaftsrechtliche Staatshaftung für höchstrichterliche Entschei-

dungen”, 23 Neue Zeitschrift für Verwaltungsrecht (2004), 1415–1421, at 1416.

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3.3. The Traghetti judgment

Against this background, the subsequent Traghetti case was welcomed as the first opportunity for adding some clarity to the situation.68 It was based on the following facts: Traghetti del Mediterraneo SpA (“TDM”) was a maritime transport under-taking running a ferry service between mainland Italy and the islands of Sar-dinia and Sicily. So did its competitor Tirrenia di Navigazione which charged fares well below costs. TDM asserted that in this way Tirrenia infringed Com-munity law, in particular by abusing its dominant position on the relevant mar-ket and receiving public subsidies whose legality was doubtful.69 TDM – which after sustaining considerable losses was finally forced into liquidation – brought an action against Tirrenia before the Tribunale di Napoli in order to obtain compensation. This court dismissed the action, and the subsequent appeal before the Corte d’appello di Napoli was equally unsuccessful. Both courts argued that the subsidies had been legally granted, as they were justified by the public interest of developing the Mezzogiorno and did not adversely affect the operation of sea links other than and competing with those objected to by TDM. Taking the view that these decisions misinterpreted Community law, TDM’s administrator appealed before the Corte Suprema di Cassazione and requested it to submit the relevant questions of interpretation to the ECJ. The Italian Supreme Court of Cassation refused this request and maintained that the pre-ceding judgments had followed the letter of the relevant provisions of Com-munity law and were consistent with the ECJ’s case law. As this was erroneous in the opinion of TDM’s administrator, he instituted proceedings against Italy before the Tribunale di Genova and claimed compensation for the damage caused by the Corte Suprema di Cassazione’s incorrect interpretation and its failure to make a reference for a preliminary ruling. When the proceedings were instituted before the Tribunale di Genova, Italian law already provided for the possibility of obtaining damages for judi-cial misfeasance. Yet the conditions were so restrictive that in TDM’s opinion they rendered it excessively difficult and even virtually impossible to obtain damages for miscarriages of justice. The Tribunale di Genova therefore referred two questions to the ECJ, one of which was upheld after the Köbler judgment had been delivered. The Court reformulated it as asking in essence

68. Nassimpian, “…And we keep on meeting: (de)Fragmenting State liability”, 32 EL Rev. (2007), 819–838, at 819; Seegers, “Haftung der Mitgliedstaaten für offenkundige Verstöße ihrer obersten Gerichte gegen Gemeinschaftsrecht”, 17 EuZW (2006), 561–566, at 564.

69. See now Arts. 81 EC, 82 EC, 86 EC, and 87 EC.


“… whether Community law and, in particular, the principles laid down by the Court in the Köbler judgment preclude national legislation such as that at issue in the main proceedings which, firstly, excludes all State liability for damage caused to individuals by an infringement of Community law committed by a national court adjudicating at last instance, where that in-fringement is the result of an interpretation of provisions of law or of an assessment of the facts and evidence carried out by that court, and, secondly, also limits such liability solely to cases of intentional fault and serious misconduct on the part of the court.”70

Owing to the scope of this question and unlike in Köbler, the ECJ did not assess itself if the Corte Suprema di Cassazione had committed a manifest infringement of Community law. Instead, the Court began by reiterating its findings in Köbler that the specific nature of the judicial function as well as the legitimate requirements of legal certainty must be taken into account, so that the relevant cases would be exceptional in nature.71 This could not be regarded as much of a novelty72 but there is a clarification to be found in the Traghetti judgment which Ortlep rightly calls the “added value” of this decision73 as it is clearly its most essential aspect. In Traghetti, the Court stated in unambiguous terms that national criteria may “under no circumstances … impose requirements stricter than that of a manifest infringement of the applicable law, as set out in paragraphs 53 to 56 of the Köbler judgment.”74 There could thus no longer be any doubt that national laws – and national courts – must not set the standards too high when it comes to determining if a breach of Community law clears the threshold of “manifest infringement.” As the ECJ “vigorously rejected the restrictions imposed by the Italian Law,”75 it became evident that both in theory and in practice the Court does not want the requirement in question to be understood as an insuperable barrier. Otherwise the standards could not possibly be too high. As for the legal situation in Italy, the Court first examined the provision which stipulated that the interpretation of legal provisions in the exercise of judicial functions should not give rise to liability.76 In surprisingly clear words,

70. Traghetti, cited supra note 3, para 24.71. Ibid., para 32.72. Nassimpian, op. cit. supra note 68, at 826.73. Ortlep, op. cit. supra note 9, at 227.74. Traghetti, cited supra note 3, para 44.75. Albors-Llorens, “The principle of State liability in EC law and the supreme courts of the

Member States”, 66 CLJ (2007), 270–273, at 272.76. Art. 2(2) of Law No. 117 of 13 April 1988 on compensation for damage caused in the

exercise of judicial functions and the civil liability of judges (legge No. 117 [sul] risarcimento

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the ECJ marked this regulation as incompatible with Community law,77 main-taining that the exclusion of all State liability in such cases would be “tanta-mount to rendering meaningless the principle laid down by the Court in the Köbler judgment.”78 It argued in a very similar way with regard to the provision that excluded in a general manner all State liability for infringements commit-ted by a court in the assessment of facts and evidence.79 The ECJ underlined that it would “amount to depriving the principle set out in the Köbler judgment of all practical effect” if in such a situation individuals would be prohibited from holding a Member State liable for infringements of Community law.80 Having regard to the underlying facts of Traghetti, it then went on to say that this goes especially for cases in the State aid sector, where the protection of the rights which individuals “derive from Community law depends, to a great extent, on successive operations of legal classification of the facts.”81 In order to fully answer the question raised by the Tribunale di Genova, the ECJ finally addressed the Italian legislation limiting State liability solely to cases of inten-tional fault and serious misconduct on the part of the national court.82 This lim-itation was judged to be incompatible with Community law in case it “were to lead to exclusion of the liability of the Member State concerned in other cases where a manifest infringement of the applicable law was committed.”83

All this can be summarized by referring to the Court’s assertion that State liability for breaches of Community law by national courts “is not unlimited.”84 As the use of this double negative – which is no peculiarity of the English ver-sion85 – implies, the prerequisite of a manifest infringement entails restrictions, but these are not such as to render it impossible or illusionary to obtain dam-ages. The Traghetti judgment thus gave an answer to the question left open by Köbler as it became evident that the requirement in question must neither in theory nor in practice be understood as an insurmountable obstacle.

dei danni cagionati nell’ esercizio delle funzioni guidiziarie e responsabilità civile dei magistrati (GURI No. 88 of 15 April 1988, 3; “Law No. 117/88”).

77. Traghetti, cited supra note 3, para 46.78. Ibid., para 36. See also Seegers, op. cit. supra note 68, at 565.79. Art. 2(2) of Law No. 117/88, cited supra note 76.80. Traghetti, cited supra note 3, para 39.81. Ibid., para 40.82. Art. 2(1) of Law No. 117/88, cited supra note 76.83. Traghetti, cited supra note 3, para 46.84. Ibid., para 32 (emphasis added).85. The German (allerdings nicht unbegrenzt), Dutch (niet onbeperkt), and French (n’est pas

illimitée) versions are worded similarly.


3.4. Reactions to the Traghetti judgment

In spite of its significance, the Traghetti judgment was perceived as less of a landmark decision than its ground-laying predecessor in Köbler86 so that the number of reactions in literature was considerably smaller. Yet the remarks which can be found are clearly worth looking at. Lindner maintains that the ECJ in Traghetti practically dispensed with sub-jective elements when it comes to assessing whether a breach of Community law is manifest. He deduces this from the fact that the Court did not regard intentional fault and serious misconduct on the part of a judge as the decisive factors, but the objective existence of a manifest infringement. This leads him to the conclusion that the criterion in question has by and large lost its limiting effect, and he predicts that this is going to be confirmed by future decisions of the ECJ.87 The latter, of course, remains to be seen, as for the time being it is merely a conjecture. Furthermore, it should be noted that the Court did not deviate from its finding in Köbler that the question whether an infringement is intentional counts among the factors that must be taken into account. In fact, this finding was expressly upheld.88

Whether against this background Lindner’s prediction is precipitate or not, it obviously goes much further than Weatherill’s summary of the intention pur-sued by the ECJ in Traghetti. He maintains that “[t]he Court’s concern was explicitly not to allow Gerhard Köbler to be deprived of all practical effect.”89 For this reason, several authors regard the decision as a logically consistent development of the Court’s previous case law.90 Seegers welcomes the fact that the ECJ set a minimum standard which must be kept in the field of State liabil-ity for judicial misfeasance and declares that this leads in principle to a further harmonization of the conditions to be fulfilled.91

However, Nassimpian points out that the Traghetti judgment led only to a partial clarification of these conditions. She especially disapproves of the fact that even though the Court had underlined in Köbler the importance of the failure to make an order for reference, it did not elucidate in Traghetti under

86. The label of “landmark judgment” is expressly attributed to Köbler by Cabral and Chaves, op. cit. supra note 51, at 109; Skouris, “The position of the European Court of Justice in the EU legal order and its relationship with national constitutional courts”, 60 Zeitschrift für öffentliches Recht (2005), 323–333, at 329. By contrast, Nassimpian, op. cit. supra note 68, at 819 regards both Köbler and Traghetti as landmark decisions.

87. Lindner, “Rechtsprechung: Europäischer Gerichtshof”, 52 Bayerische Verwaltungsblät-ter (2006), 695–697, at 697.

88. Traghetti, cited supra note 3, para 32.89. Weatherill, Cases and Materials on EU Law, 8th ed. (Oxford University Press, 2007), at

p. 180. 90. Ruffert, op. cit. supra note 6, at 484; Seegers, op. cit. supra note 68, at 566.91. Ibid.

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which circumstances this would lead to a successful liability claim.92 While this criticism is undeniably justified, the following seems less warranted: “[I]f the conditions set by the Court were in reality so high as to make it virtually impossible to reach the necessary threshold, is the principle distilled in Köbler reduced to being ‘token jurisprudence’”?93

Reprimanding the ECJ for not shedding light on this point seems unfounded. For it was shown that the Court did clarify in Traghetti that the criterion of a manifest infringement must neither in theory nor in practice be treated as an insurmountable obstacle.

4. Decisions of national courts

However, while the ECJ’s position on this point is clear, judgments which national courts delivered in the wake of Köbler and Traghetti leave a more ambiguous impression. On the one hand, none of the following decisions con-tradicts the ECJ’s finding that it is possible to hold Member States liable for miscarriages of justice. Yet on the other hand, among these cases there is not a single one in which a national court regarded the requirement of a manifest infringement as fulfilled.

4.1. France

In the Gestas judgment delivered by the French Conseil d’Etat94 the plaintiff had claimed compensation for the damage he sustained due to the excessive length of the proceedings as well as grave mistakes made by the administrative courts. His claim was partially successful but only with regard to the fact that the proceedings had lasted for 15 years and 8 months. In this respect the Conseil d’Etat held that based on general principles governing the functioning of the administrative courts Mr Gestas was entitled to compensation.95 Yet it repudi-ated his allegation that the administrative courts had made grave mistakes when applying the law. The Conseil d’Etat denied in particular that the prin-ciples of legitimate expectations and legal certainty as guaranteed by Com-munity law96 had been infringed.97

92. Nassimpian, op. cit. supra note 68, at 826.93. Ibid.94. Gestas, Conseil d’Etat, 18 June 2008.95. Ibid.96. In this context, it mentioned Council Directive 1999/70/EC of 28 June 1999 concerning

the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, O.J. 1999, L 175/43.

97. Gestas, cited supra note 94.


It is not the purpose of this article to decide whether that outcome was correct. Yet it can be retained that even though the Conseil d’Etat contradicted Mr Gestas’ contention that there had been a manifest breach of Community law, the judgment can still be perceived as a landmark decision. For the Con-seil d’Etat acknowledged that in principle it is possible to obtain damages when the content of a judgment is in manifest breach of Community law.98 It thus departed from its longstanding Darmont case law99 in which it had held that the content of such a judicial decision could not be challenged by way of a State liability action once it had become final.100

4.2. Germany

As for decisions delivered by German courts, it is first of all interesting to note that the Bundesverfassungsgericht confirmed in an obiter dictum that it is pos-sible to obtain reparation when a national court acts in contravention of its obligation under Article 234(3) EC to make an order for reference.101

The first case in which the Bundesgerichtshof (hereinafter: “BGH”) decided about a liability action for breaches of Community law by national courts had a similar result to the Gestas judgment.102 In this case, German tax consultants asserted that German courts had breached Community law, in particular by not making a reference for a preliminary ruling to the ECJ. Beforehand, the tax consultants who had obtained the permission to work as Revisori Contabili (auditors) in Italy had attempted in vain to be exempted from any admission examination for becoming Wirtschaftsprüfer in Germany. In the ensuing law-suits the administrative courts had rejected their claims. Just like the Conseil d’Etat, the BGH expressly acknowledged the possibil-ity to hold Member States liable for miscarriages of justice based on the prin-ciples developed by the ECJ in Köbler.103 Yet after reiterating the conditions set up by the Court, the BGH came to the conclusion that in the tax consul-tants’ case there had been no manifest infringement.104 It especially rejected their argument that based on the judgments in Heylens105 and Vlassopoulou106

98. Ibid.99. Darmont, Conseil d’Etat, 29 Dec. 1978.100. Courtial, op. cit. supra note 44, at 423 et seq.; Donnat and Casas, “La responsabilité de

l’Etat et la justice”, 60 Actualité Juridique Droit Administratif (2004), 653–656, at 653 et seq.101. Judgment of 6 May 2008, Bundesverfassungsgericht, reported in 21 NVwZ-Rechtspre-

chungs-Report Verwaltungsrecht (2008), 658–660, para 27.102. Judgment of 28 Oct. 2004, BGH, reported in 15 EuZW (2005), 30–32.103. Ibid., at 31.104. Ibid.105. Case 222/86, Union nationale des entraîneurs et cadres techniques professionnels du

football (Unectef) v. Georges Heylens and others, [1987] ECR 4097, para 10.106. Case C-340/89, Irène Vlassopoulou v. Ministerium für Justiz, Bundes- und Europaan-

gelegenheiten Baden-Württemberg, [1991] ECR I-2357, para 9.

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it would no longer be permissible to hold an admission examination after the sector had been harmonized by Directive 84/253/EEC.107 The BGH affirmed that the Directive could not be interpreted contrary to its wording as meaning that Member States would no longer be allowed to hold such examinations. In the court’s opinion this was so obvious that based on the standards set in CIL-FIT108 there had been no need for the administrative courts to refer the case to the ECJ for a preliminary ruling.109

There are two more German State liability cases to be found in which higher regional courts had been called upon to decide about infringements of Com-munity law by national courts. Their decisions are remarkable, as not only were they argued in a very similar way but each judgment also contained the same inaccuracy. As for this inaccuracy, both the Oberlandesgericht Karlsruhe110 and the Oberlandesgericht Frankfurt111 contended that Member State liability for miscarriages of justice could only be incurred where the infringement was attributable to a court adjudicating at last instance. In this respect they disre-garded that the ECJ had never expressly stated that such liability claims would be excluded for decisions of other judicial bodies. Interestingly enough both courts did not cite the judgments in Köbler and Traghetti in this context but referred to articles in German literature instead. Only then did they go on to say that “at any rate” there had been no manifest infringement.112

4.3. Austria

Just as in Germany, it seems that so far there has been no Austrian case in which the State was successfully held liable for breaches of Community law attributable to a national court. It is evident that after the ECJ’s ruling in Mr Köbler’s case the national judges would not have decided in his favour. Yet even though numerous other decisions can be found in which the Verfas-sungsgerichtshof had to deal with these matters, none of these came to the conclusion that there had been a manifest infringement.113

107. Eighth Council Directive 84/253/EEC of 10 April 1984 based on Art. 54(3) (g) of the Treaty on the approval of persons responsible for carrying out the statutory audits of accounting documents, O.J. 1984, L 126/20.

108. Case 283/81, Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health, [1982] ECR 3415, para 16.

109. Judgment of BGH, cited supra note 102, at 31.110. Judgment of 9 March 2006, Oberlandesgericht Karlsruhe, reported in 21 NJW

Rechtsprechungsreport Zivilrecht (2006), 1459–1462, at 1460.111. Judgment of 13 March 2008, Oberlandesgericht Frankfurt, Case 1 U 244/07, reported

in juris database, para 17.112. Judgment of Oberlandesgericht Karlsruhe, cited supra note 110, at 1460; judgment of

Oberlandesgericht Frankfurt, cited supra note 111, para 20.113. See e.g. judgment of 10 Oct. 2003, Verfassungsgerichtshof, Case A36/00, reported in

RIS database, pdf version, 12; judgment of 12 Dec. 2003, Verfassungsgerichtshof, Case A2/01


4.4. Commentary

This analysis throws into sharp relief that even though the French Conseil d’Etat, the German courts and the Austrian Verfassungsgerichtshof all acknowl-edged that it is possible to claim damages for breaches of Community law by national courts, none of the claimants actually obtained compensation. Yet it cannot be deduced that this analysis contradicts the above-mentioned finding that the requirement of a manifest infringement must neither in theory nor in practice be understood as an insurmountable obstacle. To begin with, it was already pointed out that it is not the purpose of this article to decide whether the outcome of the French, German, and Austrian cases in question had been correct. Accordingly, as with any other State liabil-ity decision, it is possible that these cases were properly decided and that in none of them the necessary threshold had been attained. This being so, these judgments could not be used to prove that in cases where Community law had manifestly been breached, the national courts would not regard the criterion in question as fulfilled. Furthermore, experience shows that not all cases in which Member States were successfully held liable for breaching Community law have subsequently been published.114 It stands to reason that this can make the prospects of suc-ceeding seem lower than they actually are. One should also bear in mind that the cases mentioned above are just a selection from three Member States. It is hence conceivable that other claimants have already been successful. More-over, other cases are still pending before national courts, as for example the Traghetti case, which was delayed for a variety of reasons. Yet after the clear words which the ECJ found in its preliminary ruling, it seems likely that Italy will finally be held accountable for the Corte Suprema di Cassazione’s infringe-ment of Community law. As the Traghetti judgment led to greater clarification, there is another aspect which should also be considered. Half of the national decisions mentioned above were delivered prior to that judgment115 and could therefore not explore its possible implications. As for the other decisions, three of them made no

ua, reported in RIS database, pdf version, 21; judgment of 13 Oct. 2004, Verfassungsgerichtshof, Case A5/04, reported in RIS database, pdf version, 15 et seq.; judgment of 2 Oct. 2006, Verfas-sungsgerichtshof, Case A27/05, reported in RIS database, pdf version, 6; judgment of 12 March 2008, Verfassungsgerichtshof, Case A7/07, reported in RIS database, pdf version, 6.

114. See e.g. Oberlandesgericht Köln, Case 7 U 23/05, judgment of 3 Nov. 2005, nyr, which concerned a breach of Community law by the administration.

115. Judgment of BGH, cited supra note 102; judgment of Oberlandesgericht Karlsruhe, cited supra note 110; judgment of 10 Oct. 2003, Verfassungsgerichtshof, cited supra note 113; judgment of 13 Oct. 2004, Verfassungsgerichtshof, cited supra note 113.

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mention of Traghetti at all.116 The Oberlandesgericht Frankfurt did refer to it, but did not examine whether it had brought about any changes from the Köbler judgment.117 What remains is one decision in which the Austrian Verfassungs-gerichtshof stated: “According to the ECJ’s judgment of 30 September 2003, Case C-224/01, Köbler, [2003] ECR I-10239, the infringement of Community law attributable to a Member State’s court adjudicating at last instance has to be ‘manifest’ or in obvious disregard of the ECJ’s case law. What also matters is the ‘degree of clarity and precision of the rule infringed’ and the tenability of the legal opinion. The judgment of 13 June 2006, Case C-173/03, Traghetti del Mediterraneo, did nothing to alter that principle.”118

The principle which the Verfassungsgerichtshof refers to was reaffirmed by the ECJ itself in Traghetti.119 Moreover, the preceding quotation contains noth-ing to contradict the verdict that the criteria applied by national courts may “under no circumstances … impose requirements stricter than that of a mani-fest infringement of the applicable law.”120 As it is this verdict in particular that led to the finding that the requirement of a manifest infringement must neither in theory nor in practice be understood as an insurmountable obstacle, the lat-ter is not called into question by the judgment of the Verfassungsgerichtshof. The same is true of the other national decisions which were examined in this context. This being said, it is nevertheless necessary to ask why even the judgments delivered after Traghetti were predominantly based on Köbler. The answer to that question can be found in what was already described as the ECJ’s “ unusual leniency”121 or “benign view”122 in that judgment. The majority of national judges presumably welcomed this uncharacteristic clemency, for they are – with all due respect – well known for being “unwilling to carry out substantial review of their counterparts’ assessments.”123 Some might try to conceal this fact by referring to principles such as litis finiri oportet.124 Yet it is probably nearer the mark to assume that national judges are simply averse to losing what

116. Gestas, cited supra note 94; judgment of Bundesverfassungsgericht, cited supra note 101; judgment of 12 March 2008, Verfassungsgerichtshof, cited supra note 113.

117. Judgment of Oberlandesgericht Frankfurt, cited supra note 111, para 15.118. Judgment of 2 Oct. 2006, Verfassungsgerichtshof, cited supra note 113, at 13 (translated

by the author).119. Traghetti, cited supra note 3, para 32.120. Ibid., para 44. 121. Obwexer, op. cit. supra note 61, at 728.122. Craig and de Búrca, op. cit. supra note 60, at p. 337.123. Granger, “National applications of Francovich and the construction of a European

administrative ius commune”, 32 EL Rev. (2007), 157–192, at 168.124. Wattel, op. cit. supra note 23, at 187.


Courtial calls their “îlot d’irresponsabilité.”125 Köbler had still left them with the impression that this little island was largely unassailable. By contrast, after Traghetti there can be no more denying that it has come under serious threat of invasion. This leads to the question why the Köbler judgment was so indulgent in the first place. Views on that matter differ to a certain extent. Some authors argue that the ECJ shied away “from holding a supreme court liable in the same case as it introduced the principle of State liability for decisions of the judiciary.”126 Similarly, but slightly more cynical from the claimant’s point of view, Haltern127 and Pfander128 reason that in Köbler the Court had to convey the principle which accordingly was more important than the actual outcome. This dovetails with the conjecture that the ECJ was afraid of damaging its carefully tended relationship with the national courts by acting too rashly.129 In this respect, Classen maintains that liability cases entail the danger of putting at risk the national courts’ willingness to make references under Article 234 EC.130 Finally, Wennerås points out that the Verwaltungsgerichtshof had withdrawn its request after the Registrar of the ECJ had enquired if it still needed to be upheld, so that the latter might have “indirectly contributed to the wrongful decision of the Austrian court.”131 All these considerations have their merits, and it is likely that the ECJ was guided by a combination or even all of them. Yet be this as it may, it was already mentioned that the outcome of the Köbler case did not meet with universal approval. Steyger, for instance, depicted a rather gloomy scenario of how unlikely it would be to successfully hold the Netherlands liable in the wake of Köbler.132 What is more, the ECJ’s unusual leniency in that judgment might also have been perceived as a certain lack of determination. For it is conspicuous how the Italian Government tried in Traghetti to revive arguments which the Court had already refuted in its pre-vious judgment. By way of example, Italy claimed that the action had to be dismissed as the judgment of the Corte Suprema di Cassazione, being res judi-cata, could no longer be challenged.133 Given the fact that the ECJ had already

125. Courtial, op. cit. supra note 44, at 428.126. Wennerås, op. cit. supra note 50, at 337. Hakenberg, op. cit. supra note 17, at 116

regards that theory as at least “tenable”.127. Haltern, Europarecht: Dogmatik im Kontext (Mohr Siebeck, 2005), p. 350.128. Pfander, op. cit. supra note 42, at 279.129. Hakenberg, op. cit. supra note 17, at 117; Wegener, op. cit. supra note 56, at 91.130. Classen, op. cit. supra note 16, at 814.131. Wennerås, op. cit. supra note 50, at 337. Yet he adds that the Registrar should not be

blamed for the subsequent misinterpretation of the Schöning case.132. Steyger, op. cit. supra note 65, at 20.133. Traghetti, cited supra note 3, para 18.

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rebutted this argument in Köbler,134 the skirmish was most likely aimed at test-ing its resolve. It can be presumed that all this led the ECJ to the conclusion that its leniency in Köbler had gone too far. For it is quite remarkable how it repetitively under-lined in Traghetti that the principle laid down in Köbler must not be rendered meaningless.135 As the ECJ rarely revises itself explicitly,136 this was probably as far as it was willing to go in this highly sensitive field of State liability for miscarriages of justice. Nevertheless, Traghetti’s reinforcing of the principle laid down in Köbler is of even greater importance when another aspect is taken into account. In both judgments the Court held specifically that a breach of Community law will “in any event” be considered as sufficiently serious where it was made in manifest disregard of the ECJ’s case law on the subject.137 National judges who are called upon to decide in a State liability case for judicial misfeasance should take careful notice of this. To begin with, it is obvious that they have to deter-mine if the underlying decision of the other court manifestly disregarded the ECJ’s case law. Yet potentially even more important, neither must their own judgment be in patent breach of what the Court already decided. This means in particular that if they turn the requirement of a manifest infringement into an insurmountable obstacle, the intrinsic disregard of the Traghetti judgment in and of itself entitles the claimant to damages for miscarriages of justice. This line of thought can be taken one step further. If it should turn out that any of the Austrian, French, or German judgments examined above were based on such a misconception of the prerequisite in question, national courts would have to refrain from relying on these precedents.138 This means that regardless of whether their outcome was correct or not, these decisions cannot invalidate the finding that the requirement of a manifest infringement must neither in the-ory nor in practice be understood as an insurmountable obstacle.

5. Placing the judgments in a broader context

The problem, however, is that Köbler and Traghetti as the only existing author-ities still leave many questions unanswered. For the area in question – like

134. Köbler, cited supra note 2, paras. 39–40.135. Traghetti, cited supra note 3, paras. 36, 40, and in essence also 44.136. Among the rare examples, the best known is probably Joined Cases C-267 & 268/91,

Criminal proceedings against Bernard Keck and Daniel Mithouard, [1993] ECR I-6097, para 16.

137. Köbler, cited supra note 2, para 56; Traghetti, cited supra note 3, para 43.138. This also follows from Art. 10 EC which will be considered in section 5.3, infra.


other liability matters139 – needs to be developed on a case-by-case basis.140 The relevant criterion has only started to gain in shape, and it is by no means possible to say that it has already been explored in all its intricacies. This is why Nassimpian justly emphasizes that “it would be impossible to compre-hend the true extent of the Court’s reasoning in Köbler and Traghetti if these judgments are treated in isolation from their wider contextual surroundings.”141 Instead, they have to be placed within a wider framework of other liability decisions (5.1. and 5.2., infra) as well as principles of Community law (5.3., infra).

5.1. Liability of Community institutions

To begin with, further guidance can be obtained from judgments concerning the liability of Community institutions. As is well known, the non-contractual liability of Community organs is gov-erned by Article 288(2) EC which provides that “the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.” Decisions based on this provision date back further than Francovich and Brasserie.142 In fact, one of the Court’s arguments for introducing the concept of Member State liability was based on Arti-cle 288(2) EC. The ECJ maintained that this provision “reflects the obligation on public authorities to make good damage caused in the performance of their duties.”143 A development is thus evident which leads from the area of Com-munity to that of Member State liability. In Brasserie as a case dealing with Member State liability, the ECJ drew a parallel to Community liability decisions by referring to the so-called Schöp-penstedt test144 which is worded as follows:

“Where legislative action involving measures of economic policy is con-cerned, the Community does not incur noncontractual liability for damage suffered by individuals as a consequence of that action, by virtue of the

139. Mykolaitis, “The other way around: Liability of Community institutions for losses incurred due to misapplications of EC competition law (Schneider III)”, 14 International Trade Law & Regulation (2008), 52–60, at 54.

140. Seegers, op. cit. supra note 68, at 565. Somewhat critical Schulze, “Gemeinschaftsrech-tliche Staatshaftung: Das judikative Unrecht”, 12 Zeitschrift für Europäisches Privatrecht (2004), 1049–1067, at 1058.

141. Nassimpian, op. cit. supra note 68, at 827.142. See e.g. Case 4/69, Alfons Lütticke GmbH v. Commission, [1971] ECR 325.143. Brasserie, cited supra note 4, para 29.144. Ibid., paras. 45 et seq.; van Gerven, Lever and Larouche, Cases, Materials and Text on

National, Supranational and International Tort Law, (Hart Publishing, 2000), p. 892.

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provision contained in Article 215, second paragraph, of the Treaty, unless a sufficiently flagrant violation of a superior rule of law for the protection of the individual has occurred.”145

The Court transposed this in Brasserie to the area of Member State liability, and it is interesting to note how the Schöppenstedt test was interpreted in that judgment:“[I]n a legislative context characterized by the exercise of a wide discretion, which is essential for implementing a Community policy, the Community cannot incur liability unless the institution concerned has mani-festly and gravely disregarded the limits on the exercise of its powers …”146

This has to be regarded in the light of the following statement which can be found both in Brasserie and Bergaderm: “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.”147

It is thus evident that the interpretation of the second Brasserie condition traces its origins to that of the term “sufficiently flagrant violation” in Schöp-penstedt. It should also be recalled that the requirement of a manifest infringe-ment in Köbler and Traghetti constitutes a strict interpretation of the second Brasserie condition. Accordingly, it is possible to draw inferences from the Court’s case law concerning the term “sufficiently flagrant violation” to get a better understanding of the requirement of a manifest infringement in Köbler and Traghetti. Exigencies of space preclude a detailed account of how this case law developed but several aspects can still be retained. As the early case law following Schöppenstedt did little to provide cla -ri fication, the judgment in HNL148 was the first to offer greater insights.149

145. Case 5/71, Aktien-Zuckerfabrik Schöppenstedt v. Council, [1971] ECR 975, para 11.146. Brasserie, cited supra note 4, para 45 (emphasis added); van Gerven, Lever and

Larouche, op cit. supra note 144, at p. 892. That interpretation concurred with previous deci-sions in the field of Community liability where the ECJ had likewise raised the question whether the Community had “manifestly and gravely disregarded the limits on the exercise of its pow-ers”; see e.g. Joined Cases 83/76, 94/76, 4/77, 15/77 & 40/77, Bayerische HNL Vermehrungsbe-triebe GmbH & Co. KG and others v. Council and Commission, [1978] ECR 1209, para 6; Joined Cases 116 & 124/77, G. R. Amylum NV and Tunnel Refineries Limited v. Council and Commission, [1979] ECR 3497, para 13; Case 143/77, Koninklijke Scholten-Honig NV v. Coun-cil and Commission, [1979] ECR 3583, para 10.

147. Brasserie, cited supra note 4, para 55; Bergaderm, cited supra note 19, para 43 (empha-sis added).

148. Bayerische HNL, cited supra note 146.149. Gilsdorf and von Niejahr in von der Groeben and Schwarze (Eds.), Kommentar zum

Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft, 6th ed. (Nomos, 2003), Art. 288 EC para 55.


Concentrating on the effects of the breach, the Court came to the conclusion that these were not grave enough.150 It is often underlined that, from this point onwards, the ECJ interpreted the requirement of a sufficiently flagrant viola-tion very narrowly,151 so that “[t]he result … was an obstacle only exception-ally to be successfully overcome.”152 Hence the first steps in the field of Community liability closely resembled the initial impression left by the Köbler judgment in the area of State liability for miscarriages of justice. Claimants in subsequent cases were equally unsuccessful as the ECJ contin-ued to take a very restrictive approach when determining what constituted a sufficiently flagrant violation.153 Yet in Stahlwerke the Court decided to give up an excessive standard of earlier judgments154 as it held that conduct verging on the arbitrary was no “necessary condition or formulation for the Commu-nity to be rendered liable.”155 For the purposes of the present article, this state-ment must be viewed in the context of the Court’s assertion in Bergaderm “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.”156 As for judicial misfeasance, Schulze maintains that the prerequisite of a manifest infringement ought to be interpreted as requiring arbitrariness.157 However, there is no reason discernible why judges who breach Community law should be privileged to such an extent. For it should be remem-bered that in Traghetti the ECJ declared the Italian provision which limited State liability to cases of intentional fault and serious misconduct as incompat-ible with Community law.158 If national courts were allowed to interpret the requirement of a manifest infringement as stipulating arbitrariness, it would be inexplicable why the Italian rule was not upheld. To give another example, in Mulder the Court reprimanded the Community legislature for failing “completely, without invoking any higher public interest, to take account of the specific situation of a clearly defined group of economic

150. Bayerische HNL, cited supra note 146, para 6; Craig and de Búrca, op. cit. supra note 60, at p. 581.

151. Craig and de Búrca, op. cit. supra note 60, at p. 581.152. De Visser, “The concept of concurrent liability and its relationship with the principle of

effectiveness: A one-way ticket into oblivion?”, 11 MJ (2004), 47–70, at 64.153. Martín Rodríguez, “State liability for judicial acts in European Community law: The

conceptual weakness of the functional approach”, 11 CJEL (2005), 605–621, at 606.154. Amylum, cited supra note 146, para 19; Scholten-Honig, cited supra note 146, para 16.155. Case C-220/91 P, Commission v. Stahlwerke Peine-Salzgitter, [1993] ECR I-2393, para

51.156. Bergaderm, cited supra note 19, para 41.157. Schulze, op. cit. supra note 140, at 1060.158. Traghetti, cited supra note 3, para 46.

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agents.”159 One could envisage transposing this to the judicature as well. For it is not inconceivable that a national court, whether on purpose or not, fails to consider rights which Community law bestows upon individuals.160 The situa-tion is not without difficulty when the court would have to raise the point of its own motion, as this might in certain cases conflict with higher public interests such as the principle of judicial passivity.161 As there are conflicting authorities,162 it would be necessary to refer this question for a preliminary ruling. However, the threshold of manifest infringement is unquestionably cleared where a claimant relies from the outset on a right which is based on Community law and the national court still chooses to ignore this.

5.2. Liability of Member States

Further guidance can be found in State liability decisions dealing with breaches of Community law by the executive or the legislature. For the ECJ referred to these decisions both in Köbler163 and in Traghetti,164 which proves its intention to relate the latter judgments to its previous case law. In fact, the Court expressly held in Köbler that national courts must apply the criteria for establishing Member State liability “in accordance with the guidelines laid down by the Court for the application of those criteria,”165 mentioning judgments such as Brasserie166 or British Telecommunications.167 The decisions in Köbler and Traghetti thus do not stand in regal isolation but rather form the keystone of the whole system of Member State liability.168

As was already underlined, in all these cases, the same conditions apply for holding Member States liable which goes especially for the necessity of a sufficiently serious breach of Community law. It is also clear that the latter

159. Joined Cases C-104/89 & 37/90, Mulder and Others v. Council and Commission, [1992] ECR I-3061, para 16.

160. Judgment of 13 Oct. 2004, Verfassungsgerichtshof, cited supra note 113, at 15; Wissink, op. cit. supra note 32, at 422.

161. Joined Cases C-430 & 431/93, Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten, [1995] ECR I-4705, paras. 11 and 21.

162. Case C-312/93, Peterbroeck, Van Campenhout & Cie SCS v. Belgium, [1995] ECR I-4599, para 20; Case C-72/95, Aannemersbedrijf P.K. Kraaijeveld BV e.a. v. Gedeputeerde Staten van Zuid-Holland, [1996] ECR I-5403, para 60.

163. See e.g. Köbler, cited supra note 2, para 56.164. See e.g. Traghetti, cited supra note 3, para 45.165. Köbler, cited supra note 2, para 100.166. Brasserie, cited supra note 4.167. British Telecommunications, cited supra note 19.168. Kluth, “Die Haftung der Mitgliedstaaten für gemeinschaftsrechtswidrige höchstrichter-

liche Entscheidungen – Schlussstein im System der gemeinschaftsrechtlichen Staatshaftung”, 119 DVBL (2004), 393–403, at 393; Steyger, op. cit. supra note 65, at 21.


requirement is defined both by the notion of manifest infringement used in Köbler169 and Traghetti170 and by the stipulation in Brasserie171 and Bergad-erm172 that “the Member State or the Community institution concerned mani-festly and gravely disregarded the limits on its discretion.” All this warrants the conclusion that the concept of manifest infringement was no complete nov-elty of the judgments in Köbler and Traghetti. However, this does not yet answer the question why the Court used a slightly different formulation in the latter judgments. Presumably the answer to that riddle lies in the fact that in Köbler and Traghetti the Court did not make a distinction which can be found in other State liability decisions. These differentiate between situations where the authority has only considerably reduced, or even no discretion, and cases where it has broad discretion. Only in the latter situations is it inevitable that the legislature or the executive has manifestly and gravely disregarded the limits on the exercise of its powers,173 whereas in the former a mere infringement of Community law may be suffi-cient for holding a Member State liable.174

It would have been conceivable to make the same distinction in cases of judicial misfeasance, as in certain situations Community law leaves the national courts little or even no leeway. However, it is probably owed to the “specific nature of the judicial function and to the legitimate requirements of legal certainty”175 that the ECJ did not wish a mere breach of Community law to automatically entail the obligation to pay damages in such cases. The judica-ture is thus privileged insofar as in its case the breach has always to be mani-fest, so that the degree of discretion has not the same function of a “switch” as in the cases of the legislature and the executive. As a result, the Court could not transpose the formulation “manifestly and gravely disregarded the limits on its discretion” from Brasserie,176 but had to shorten it to the “new” notion of “manifestly infringed the applicable law” in Köbler.177

Otherwise the differences between these two concepts are smaller than one might think, as can best be illustrated by referring to the criteria which the ECJ named in Brasserie:

169. Köbler, cited supra note 2, para 53.170. Traghetti, cited supra note 3, para 32.171. Brasserie, cited supra note 4, para 55.172. Bergaderm, cited supra note 19, para 43.173. Brasserie, cited supra note 4, paras. 45, 47, and 55; Case C-470/03, A.G.M.-COS.MET

Srl v. Suomen valtio, Tarmo Lehtinen, para 80.174. Case C-446/04, Test Claimants in the FII Group Litigation v. Commissioners of Inland

Revenue, [2006] ECR I-11753, para 212.175. Köbler, cited supra note 2, para 53; Traghetti, cited supra note 3, para 32.176. Brasserie, cited supra note 4, para 55 (emphasis added).177. Köbler, cited supra note 2, para 53.

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“The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Com-munity institution may have contributed towards the omission, and the adop-tion or retention of national measures or practices contrary to Community law.”178

These factors are almost identical to those given in Köbler.179 The latter judgment added just one further criterion, namely the non-compliance by a national court with its obligation under Article 234(3) EC.180 This criterion still causes considerable uncertainty as the judgments in Köbler and Traghetti were far from being comprehensive on this point.181 It is especially unclear which effects the case law following CILFIT182 will have,183 as it sets certain limits on the obligation under Article 234(3) EC.184 Accordingly, further clarity about this criterion can only be provided by future decisions of the ECJ. As for the remaining criteria which are used both in Brasserie and in Köbler, it is possi-ble to refer to other State liability decisions. In this respect it is necessary to consider the “specific nature of the judicial function and … the legitimate requirements of legal certainty.”185 Yet the Court’s assertions in Traghetti prove that this proviso must not be applied too rigidly as otherwise the principle laid down in Köbler would be rendered meaningless.186 With all this in mind, other State liability decisions can serve as reference points in a similar way as the judgments in Stahlwerke187 and Mulder188 for adding clarity to the notion of manifest infringement.189

178. Brasserie, cited supra note 4, para 56.179. Köbler, cited supra note 2, para 55.180. Craig and de Búrca, op. cit. supra note 60, at p. 337.181. Nassimpian, op. cit. supra note 68, at 826; Radermacher, op. cit. supra note 67, at 1417

and 1420; Wennerås, op. cit. supra note 50, at 337.182. CILFIT, cited supra note 108, paras. 14–16.183. Albors-Llorens, op. cit. supra note 75, at 272–273; Anagnostaras, op. cit. supra note 10,

at 744–745; Davis, “Liability in damages for a breach of Community law: Some reflections on the question of who to sue and the concept of ‘the State’”, 31 EL Rev. (2006), 69–80, at 77.

184. See in this respect Lenaerts, Arts, and Maselis, Procedural Law of the European Union, 2nd ed. (Sweet & Maxwell, 2006), pp. 72–77.

185. Köbler, cited supra note 2, para 53; Traghetti, cited supra note 3, para 32.186. Traghetti, cited supra note 3, paras. 36, 39, and 46.187. Stahlwerke Peine-Salzgitter, cited supra note 155.188. Mulder, cited supra note 159.189. See e.g. Craig and de Búrca, op. cit. supra note 60, at p. 338.


5.3. Principles of Community law

Other State liability decisions also form a good starting point for illustrating how principles of Community law support the theory that the requirement of a manifest infringement is no insurmountable obstacle. The Court held in Brasserie with regard to the conditions named at the beginning of this article: “In order to determine those conditions, account should first be taken of the principles inherent in the Community legal order which form the basis for State liability, namely, first, the full effectiveness of Community rules and the effective protection of the rights which they confer and, second, the obligation to cooperate imposed on Member States by Article 5 of the Treaty …”190

All these principles are intertwined191 but for the sake of greater clarity they will still be addressed individually, starting with the principle of effectiveness. The latter is an “overarching principle that pervades every instance of the Court’s lawmaking.”192 Due to its “chameleon characteristics and multi-layered roles”193 it cannot be described in general194 but it is possible to iden-tify the aspect195 which is the most interesting for the purposes of this article. According to the Court’s standing case law, the “domestic rules on liability … must not be such as in practice to make it impossible or excessively diffi-cult to obtain reparation.”196 This reasoning is based on what Wennerås calls the “raison d’être for the State liability doctrine”: next to protecting the rights of individuals, it is needed to ensure the effet utile of Community law.197 This dovetails with the assertion in Köbler and in Traghetti that the full effective-ness of Community rules would be called in question if individuals could not

190. Brasserie, cited supra note 4, para 39.191. Temple Lang, “The development by the Court of Justice of the duties of cooperation of

national authorities and Community institutions under Article 10 EC”, 31 Fordham Interna-tional Law Journal (2008), 1483–1532, at 1483, sees Art. 10 EC as the basis for the duty to give effective protection; Nassimpian, op. cit. supra note 68, at 828 regards the principle of effective judicial protection as a “correlative notion” to the principle of effectiveness.

192. Lenaerts and Gutman, “‘Federal common law’ in the European Union: A comparative perspective from the United States”, 54 AJCL (2006), 1–121, at 18.

193. Ross, “Effectiveness in the European legal order(s): Beyond supremacy to constitu-tional proportionality”, 31 EL Rev. (2006), 476–498, at 477.

194. De Visser, op. cit. supra note 152, at 48. See also Nebbia, “Damages actions for the infringement of EC competition law: Compensation or deterrence”, 33 EL Rev. (2008), 23–43, at 28.

195. Case C-261/95, Rosalba Palmisani v. Istituto Nazionale della Previdenza Sociale (INPS), [1997] ECR I-4025, para 27; Joined Cases C-397 & 410/98, Metallgesellschaft Ltd and others v. Commissioners of Inland Revenue, [2001] ECR I-1727, para 85.

196. Brasserie, cited supra note 4, para 67. See also Joined Cases C-6 & 9/90, Andrea Fran-covich and Danila Bonifaci and others v. Italy, [1991] ECR I-5357, para 43; more recently A.G.M.-COS.MET, cited supra note 173, para 89.

197. Wennerås, op. cit. supra note 50, at 337.

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obtain reparation for breaches committed by national courts adjudicating at last instance.198

Wattel is therefore right when maintaining that “the Köbler judgment is just a dogmatic consequence, drawn from the earlier Francovich and Brasserie du pêcheur case law.”199 More to the point, Martín Rodríguez infers from Köbler that “the purpose of State liability seems to be to safeguard the effectiveness of Community law in special serious breaches in a way that it would counteract manifest infringements.”200 Accordingly, it comes as no surprise that the claim-ant in Traghetti likewise relied on this principle, arguing that under Italian law it was “excessively difficult, indeed virtually impossible, to obtain compensation.”201 The ECJ evidently reached the same conclusion as it empha-sized repeatedly that the principle laid down in Köbler must not be rendered meaningless.202

In this respect, it should also be considered that “a court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by Community law.”203 It would therefore be irreconcilable with the principle of effectiveness if the requirement of a manifest infringement were interpreted as an insurmountable obstacle. Nothing else can follow from the principle of effective judicial protection which some regard as a twin204 and some as an element205 of the principle of effectiveness. As early as Van Gend & Loos, the ECJ had stressed the impor-tance of the “vigilance of individuals concerned to protect their rights” for an effective supervision of the Member States.206 In more recent judgments it par-ticularly emphasized the principle of effective judicial protection as a funda-mental right.207 In both respects the individual depends on national courts for the enforcement of Community rights,208 which is why Advocate General Léger justly declared in his opinion in Köbler: “I do not see how the Court

198. Köbler, cited supra note 2, para 33; Traghetti, cited supra note 3, para 31. See also Obwexer, op. cit. supra note 61, at 726.

199. Wattel, op. cit. supra note 23, at 186–187. 200. Martín Rodríguez, op. cit. supra note 153, at 613.201. Traghetti, cited supra note 3, para 19.202. Ibid., paras. 36, 40, and in essence also 44.203. Köbler, cited supra note 2, para 34. See also Bundesverfassungsgericht, cited supra

note 101, para 27; Ruffert, op. cit. supra note 6, at 482.204. Anagnostaras, op. cit. supra note 10, at 738.205. Nebbia, op. cit. supra note 194, at 30.206. Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v.

Netherlands Inland Revenue Administration, [1963] ECR 1, at 13.207. Case C-263/02 P, Commission v. Jégo-Quéré, [2004] ECR I-3425, para 29; Craig and

de Búrca, op. cit. supra note 60, at p. 305.208. See in this respect Jégo-Quéré, cited supra note 207, para 31; Lenaerts and Van Nuffel,

Constitutional Law of the European Union, 2nd ed. (Sweet & Maxwell, 2005), p. 677.


could rule otherwise than in favour of State liability for acts or omissions of a supreme court. … [T]he acknowledgement of such liability seems to be the corollary of the mission … conferred on the supreme courts in the direct, immediate and effective protection of the rights which individuals derive from Community law”.209

Both the principle of effectiveness210 and the principle of effective judicial protection211 can be seen as based on Article 10 EC. This provision, whose importance for the Court’s case law has grown steadily,212 imposes on Member States the duty to take all appropriate measures to ensure fulfilment of their obligations under the EC Treaty. This duty is “binding on all the authorities of Member States including, for matters within their jurisdiction, the courts.”213 In fact, national courts play a particularly important role as Community law is primarily applied and enforced by them, not the Community institutions,214 so that individuals must “claim before national courts the full enforcement and protection of the rights which they derive from Community law.”215

With regard to the system of State liability, Article 10 EC became one of its pillars216 when the ECJ declared in Francovich that the provision imposes on Member States “the obligation to nullify the unlawful consequences of a breach of Community law.”217 As for the possibility of obtaining damages for judicial misfeasance, it should be noted that the ECJ has consistently held that national courts must bear the responsibility for their judicial decisions.218 Wennerås therefore has a point when arguing that “[t]he most important function of Köbler is … giving courts of last instance in the Member States a strong incen-tive to respect its duties under Article 10 EC.”219 Such an incentive would not exist if the requirement of a manifest infringement were to prove to be an insurmountable obstacle.

209. Opinion of A.G. Léger in Köbler, cited supra note 26, para 52 (emphasis added).210. Lenaerts and Gutman, op. cit. supra note 192, at 19.211. Wennerås, op. cit. supra note 50, at 334.212. For an account of the historic development, see Temple Lang, op. cit. supra note 191, at

1483–1532.213. Joined Cases C-397-403/01, Pfeiffer and others v. Deutsches Rotes Kreuz, Kreisver-

band Waldshut eV, [2004] ECR I-8835, para 110.214. Temple Lang, op. cit. supra note 191, at 1484.215. Lenaerts, Arts and Maselis, op. cit supra note 184, at pp. 84–85.216. De Visser, op. cit. supra note 152, at 61–62.217. Francovich, cited supra note 196, para 36.218. Case C-67/91, Dirección General de Defensa de la Competencia v. Asociación Espa-

ñola de Banca Privada and others, [1992] ECR I-4785, para 25; Case C-36/02, Omega Spielhal-len- und Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, [2004] ECR I-9609, para 19; Case C-119/05, Ministero dell’Industria, del Commercio e dell’Artigianato v. Lucchini SpA, formerly Lucchini Siderurgica SpA, [2007] ECR I-6199, para 43.

219. Wennerås, op. cit. supra note 50, at 339.

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Yet the importance of this provision is not limited to the system of State lia-bility. It also leads to a better understanding of the duties imposed on national courts.220 According to standing case law, national courts must ensure that the rules of Community law “take full effect and must protect the rights which they confer on individuals.”221 This means that they have to apply Community law in its entirety and set aside any provision of national law which may con-flict with it.222 One of the best examples in this respect is the Factortame case where the ECJ held that an English court had to disregard a rule of national law which prevented it from suspending, provisionally, an act of the U.K. Parlia-ment.223 National courts are also required, “so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application, by pleading the invalidity of such an act.”224 In this respect, it should particularly be remembered that a manifest infringement “might be committed precisely in the exercise of such work of interpretation.”225

These examples illustrate that Community law imposes far-reaching duties on national courts. Yet only when they are fulfilled is it justified to speak of a “Community that is based on the rule of law”226 and to maintain that “the Trea-ties establish a complete system of legal remedies.”227 Accordingly, the possi-bility of holding Member States liable for manifest infringements of Community law committed by national courts adjudicating at last instance is necessary to protect what the ECJ refers to in the context of Article 10 EC as the “very basis of the Community legal order.”228

220. Temple Lang, op. cit. supra note 191, at 1489–1490.221. Case C-453/99, Courage Ltd v. Bernard Crehan, [2001] ECR I-6297, para 25; Lucchini,

cited supra note 218, para 61; Lenaerts and Van Nuffel, op. cit. supra note 208, at p. 671.222. Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA, [1978]

ECR 629, para 21; Eilmansberger, “The relationship between rights and remedies in EC law: In search of the missing link”, 41 CML Rev. (2004), 1199–1246, at 1208.

223. Factortame, cited supra note 4, paras. 19–21.224. Case C-50/00 P, Unión de Pequeños Agricultores v. Council, [2002] ECR I-6677, para

42; Jégo-Quéré, cited supra note 208, para 32; Ross, op. cit. supra note 193, at 496.225. Traghetti, cited supra note 3, para 35.226. Case 294/83, Parti écologiste “Les Verts” v. Parliament, [1986] ECR 1339, para 23.227. Lenaerts and Van Nuffel, op. cit. supra note 208, at p. 16.228. Case C-101/91, Commission v. Italy, [1993] ECR I-191, para 23.


6. Conclusion

In closing, the findings of this article can be summarized as follows: In its judgments in Köbler and Traghetti, the ECJ held that “State liability for an infringement of Community law by a decision of a national court adju-dicating at last instance can be incurred only in the exceptional case where the court has manifestly infringed the applicable law”.229 This requirement is a strict interpretation of the second Brasserie condition which stipulates that the breach of Community law must be sufficiently serious.230 In this function the prerequisite constitutes a limitation. For “the specific nature of the judicial function and … the legitimate requirements of legal certainty”231 must be taken into account. Yet the requirement of a manifest infringement must neither in theory nor in practice be understood as an insurmountable obstacle. This has first and foremost been clarified by the ECJ’s finding in Traghetti that the criteria applied by national courts may “under no circumstances … impose requirements stricter than that of a manifest infringement.”232 It is also evident from its repeated assertions that the principle laid down in Köbler must not be rendered meaningless.233 Further corroboration can be found in other Community and State liability decisions of the Court which prove in particular that the requirement of a manifest infringement does not require arbitrariness. Finally, it is evident that any other outcome would be irreconcilable with the principles of effectiveness and effective judicial protection as well as the obli-gation to cooperate imposed on Member States by Article 10 EC. For all these reasons the answer to the question raised in the title of this article has to be in the negative. Accordingly, both the ECJ and the national courts are now called upon to prove by continuing along the lines of the Traghetti judgment that obtaining damages for breaches of Community law by national courts is neither un -thinkable234 nor unfeasible.

229. Köbler, cited supra note 2, para 53 (emphasis added). See also Traghetti, cited supra note 3, para 32.

230. Brasserie, cited supra note 4, para 51.231. Supra note 229. 232. Traghetti, cited supra note 3, para 44.233. Ibid., paras. 36, 40, and in essence also 44.234. Toner, op. cit. supra note 1, at 165.

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