Why is the Köbler Principle Not Applied in Practice?
| Published date | 01 December 2016 |
| Author | Zsó;fia Varga |
| DOI | 10.1177/1023263X1602300605 |
| Date | 01 December 2016 |
| Subject Matter | Article |
984 23 MJ 6 (2016)
WHY IS THE KÖBLER PRINCIPLE
NOT APPLIED IN PRACTICE?
Z V*
ABSTRACT
Since the judgment of the Court of Justice of th e European Union (CJEU) in Köbler, there
has been speculation that state li ability for violation of EU law by national supreme courts
might remain m ere theory. However, more tha n a decade a er the CJEU judgment, there is
no study available to con r m or disprove this assumption. is article seek s to ll this gap
by providing an analysis on the practice and the impac t of the liability principle. According
to the research conducted, only about 35 Köbler actions have been repor ted over the last
13 years from all of the 28 Member States, of which only four have been successful. is
article investigates why this enforcement de cit of the liability principle can be observed .
erefore, the article examines the main limitations to the e ective application of the
Köbler doctrine in order to understand their actual role in hindering the establishment
of liability and the allocation of damages. In this context, it also examines whether, and
to what extent, the liability princ iple has contributed to the protection of individual right s
and the e ective ap plication of EU law over the last thirteen years.
Keywords: Köbler judg ment; res judicata; state liability ; supreme courts; violation of
EUlaw
§1. IN TRODUCTION
e Court of Justice of t he European Union (CJEU) held in its judgment in Köbler1 that
Member States are obliged to make good t he damage caused to individua ls in cases where
* PhD, Référendaire at t he General Court of the Eu ropean Union, Luxembourg. e opinions expre ssed
are strict ly personal. Any com ments are welcome at the author ’s email address: zso a.varga@curia.
europa.eu.
1 Case C-224/01 Köbler, EU:C:2003:513. Since then, the CJEU rendered th ree other judgments conc erning
judicial liability. See Case C-173/03 Traghetti del Mediterraneo, EU:C: 2006:391; Case C-160/14 Ferreira
da Silva e Brito e.a., EU:C: 2015:565; Case C-168/15 Tomá šov á, EU:C:2 016:602.
Why is the Köbler Pri nciple Not Applied in Practice?
23 MJ 6 (2016) 985
the infri ngement of EU law stems from a decision of a Member State court adjudicati ng
at last instance.2 e cond itions of liability are, in principle, t he same as those governing
state liability u nder EU law in general; that is, where the rule of law inf ringed is intended
to confer rights on individuals, the breach is su cient ly serious and there is a direct
causal lin k between that breach and the loss or damage susta ined by the injured parties.3
However, taking into account the speci c nature of the judicial function, the CJEU held
that state liabilit y for infringement of EU law by a national supreme court can b e incurred
only in the exceptiona l case where the court has ‘mani festly infringed t he applicable law’.4
However, in the absence of its own procedural and remedial organizat ion, EU law
must rely on respective national legal a rrangements. is means that liabi lity of the state
is t o be enf orc ed b efor e na tio nal cou rt s, a nd , in pri nci ple , ac cord in g to n at iona l r ule s. e
problem is that, based on national r ules and in purely domestic cases , liability for judicial
acts cannot be inc urred or could only be incurred under str ict conditions. Nevertheless,
as the principle of state liability for violation of EU law by the supreme courts of the
Member States originates directly from EU law, those infringed must be able to rely on
this remedy, regardless of any eventual limitations to such an action in national law.
According to the CJEU, the principle of state liabi lity under EU law precludes provisions
of national law which in practice make the application of Köbler liability impossible.5
eref ore, i n ter ms of the pr inc iple of prim acy o f EU l aw, nat iona l cour ts a djudi cati ng on
Köbler claims a re required to set aside domestic rules hi ndering the e ective application
of the Köbler pri nciple.6 is is of the utmost i mportance as under the remedial r ules of
the EU, state liability is generally the only avai lable remedy for a violation of EU law by
Member State supreme courts.
Moreover, Member States’ courts play a particu larly important role in the applicat ion
of EU law.7 As EU law is primarily given e ect by national courts, individuals are
obliged to claim the f ull enforcement and protection of their rights der ived from EU law
before national benches. It is, therefore, essential that Member State courts ful l t heir
obligations in this re gard and apply EU law correctly.
Since the semina l CJEU judgment in Köbler, delivered in 2003, the principle of state
liability for breaches of EU law by national court s has received considerable attention in
2 In Case C-224/01 Köbler, the CJEU held for the rst time th at the principle of state li ability for breaches
of EU law also applies whe n a breach is attributable t o the court of a Member Stat e. e Köbler
judgment was therefore a n extension of the previous ly established state li ability doctri ne for violations
of EU law by Member State supreme cou rts. See Joint Cases C -6/90 and C-9/90 Francovich andothers,
EU:C:1991:428.
3 Case C-224/01 Köbler, para. 51–52.
4 Ibid., para . 53; Case C-173/03 Traghetti del Mediterran eo, para. 32, 42; C ase C-168/15 Tomá šo vá, pa ra. 24.
6 e CJEU orig inally esta blished the principle of pr imacy of EU law in Ca se 106/77 Simmenthal,
EU:C:1978:49.
7 For furthe r example, refer to M. De Visser, ‘ e Conc ept of Concurrent Liability a nd Its Relationship
with the Principle of E ectiveness: A One-Way Ticket into Obl ivion’, 11 MJ (2004), p.61–62; and J.
Temp le La ng , ‘ e Duties of National C ourts under Com munity Constit utional Law’, 22 ELR (199 7), p. 3.
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