Infringement of European law (EU and EEA law). Judicial decisions. Case Þór Kolbeinsson vs. The Icelandic State

 

A good researcher of European law has pointed to me a very interesting EFTA Court judgment, Þór Kolbeinsson vs. The Icelandic State, in connection with the topic:

 

Judicial Infringements of European Law Attributable to National Courts.

The judgment can be accessed here in English and in Icelandic. 

The Norwegian State had argued in the case rule of EU State liability for breaches of European law (Köbler) could not work in the EEA legal order.

 

In para 70 the Norwegian State argued:

 

In the alternative, the Norwegian Government argues that unlike EU law,

where decisions by national courts can lead to liability for the State for

incorrect application of EU law, see Case C-224/01 Köbler [2003] ECR

I-10239, EEA law provides no basis for State liability for incorrect

application of EEA law by national courts. The Norwegian Government argues

that in the EU, State liability for decisions by national courts must be

seen as a kind of sanction against national courts of last instance

breaching their duty to request preliminary rulings on the interpretation

of EU law. As there is no such duty under EEA law, there can be no State

liability for incorrect application of EEA law by national courts.

The EFTA Surveillance Authority had submitted that the principles established by the ECJ in Köbler, cited above, with regard to EU law also apply under EEA law. This means that an EEA State is liable for breach of EEA law by its courts provided that EEA law has been “manifestly infringed”, see Köbler, paragraph 53. This is a higher threshold than the criterion of a “sufficiently serious breach” which applies in other cases.

 

The EFTA Court rejects the Norwegian argument in para 77 and draws a paralell with Köbler:

 

The Court notes that it must answer the second question based on the

premise spelled out by the national court, namely that the infringement of

EEA law, if indeed there is any, has been caused by incorrect

implementation of EEA law, i.e. a breach on the part of the legislature.

The issue of State liability for losses resulting from incorrect

application of EEA law by national courts falls outside the scope of this

question. The Court observes, however, that if States are to incur

liability under EEA law for such an infringement as alleged by the

Plaintiff, the infringement would in any case have to be manifest in

character, see for comparison Köbler, cited above, paragraph 53.

 

It is clear from now on that the Köbler doctrine (State liability for Judicial  Infringements of European Union Law) also applies in the EEA legal order.

 

National Courts are not exempted from applying correctly EU and EEA law.