Infringements of European Law. Judicial Decisions of a National Supreme Court.

In the recent years this reluctance of the Court of Justice of the European Union to reply to the challenges of some national courts has began to give way to another approach: the declaration by the ECJ that State liability would also be applicable for judicial breaches of European law (case Köbler[1]) and the possibility of direct actions against the recalcitrant state started by the Commission by means of infringement actions (cases Traghetti del Mediterraneo[2] and Commission v. Spain[3]).

The Court of Justice  handed down a significant judgment in the case C-154/08 Commission v. Spain ruling that an error of law made by a national Supreme Court can constitute an infringement of European law. Consequently, the Commission can institute proceedings against that member State. As a commentator has put it (www.adjudicatingeurope.com):

 "This practically entails that the Commission can bring a Member State to Luxembourg once a national court of last instance closes a case and gets it wrong. "

 An interesting question is whether this doctrine will be imported to the EEA legal order as well by the EFTA Surveillance Authority and the EFTA Court due to the necessary homogeneity between EU law and EEA law.

 

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A Master´s thesis I strongly recommend on the subject

 

http://skemman.is/handle/1946/4958

 Titill

Judicial Infringements of European Union Law Attributable to National Courts. State liability, remedies for individuals, infringement procedure and the erosion of the principles of legal certainty and res judicata

Höfundur

• Erling Daði Emilsson

Leiðbeinandi

• Maria Elvira Mendez Pinedo

Efnisorð

• Lögfræði
• Evrópuréttur
• Dómstólar
• Ríkisvald

Útdráttur

Through the years the European Court of Justice has by means of judicial activism transformed the EU legal settlement, providing remedies and principles to effectively tackle violations of EU law attributable to Member States’ legislative and executive authority. In this sense, Member States’ judiciaries have maintained their traditionally privileged position as independent and impartial actors in a democratic state, providing the means for the society to put an end to legal disputes, regardless whether one considers a given decisions to be right or wrong. Recently, however, the ECJ has embarked on a new area of jurisprudence, often with limited appreciation from the academic and legal profession, bringing possibilities of remedying judicial infringements of EU law attributable to national courts. This jurisprudence has affected national courts’ decisions, even decisions handed down by Supreme Courts and constitutional courts, as decisions that infringe EU law are, under certain circumstances, no longer under the protective wings of time-honored principles, such as the principles of legal certainty and res judicata.

This thesis is a study on the case-law of the ECJ that composes this creative jurisprudence and the effects it has had and will have.

As for the structure of this thesis, it is organized in four parts. Part I of this thesis features a brief overview of the European procedural law. Part II will focus on the case-law of the ECJ regarding the expansion of the EU law remedy of State liability to breaches attributable to national courts of last instance. This entails that individuals can sue the State for or damages for breach of EU law attributable to national court’s decisions. In Part III we will study the Commission enrollment in tackling non-compliance of national courts, and thus securing the effectiveness of EU law. Parallel to the case-law of the ECJ, expanding the principle of State liability to breaches attributable to national courts, the Commission has taken its role as “guardian of the Treaties” to the next level by instigating infringement procedures, against judicial infringements attributable to national courts. Finally, in Part IV we will examine a certain trend in the Court’s case-law, in which the ECJ both creates a remedy and obliges national courts to set aside national provisions of procedural conditions, in connection with breaches of EU law attributable to national courts. The consequence of this trend is the erosion of the principles of legal certainty and res judicata for judicial decisions, under certain circumstances.

 

 

[1] Case C-224/01 Gerhard Köbler v. Republik Österreich [2003] ECR I-10239.

[2] ECJ, Case C-173/03, Traghetti del Mediterraneo SpA in Liquidation v. Italian Republic [2006] ECR I-5177.

[3] ECJ, Case C-154/08 Commission vs. Spain, judgment of 12 November 2009 [2009] not yet reported, only available in Spanish, French and other languages.