Courts Liability in Europe

Liability for Infringement of Union Law By the Courts

The Court of Justice makes it quite clear that the principles established by it for determining liability also apply to the last of the three central powers, namely the judiciary. Its judgments are now not only subject to review at the successive stages of appeal; if they were delivered in disregard or infringement of Union law, they may also be the subject of an action for damages before the competent courts in the Member States. When ascertaining the facts surrounding a judgment’s infringement of Union law, proceedings of this kind must also reconsider the questions relating to the substance of Union law, in the process of which the court concerned may not merely invoke the binding effects of the judgment of the specialised court to which the case is referred. The court to which the competent national courts would have to refer questions of interpretation and/or the validity of Union provisions, and also the compatibility of national liability regimes with Union law, is again the Court of Justice, to which questions may be referred under the preliminary ruling procedure (Article 267 TFEU).

Context of Courts Liability in the European Union

However, liability for infringement through a judgment will remain the exception. In view of the strict conditions attached, liability can be considered only if a court deliberately disregards Union law or, as in the Köbler case, a court of last instance, in violation of Union law, gives legal force to a decision to the detriment of the individual without having previously asked the Court of Justice to clarify the situation with regard to Union law which is relevant to the decision. In this latter case, it is essential for the protection of the rights of Union citizens who invoke Union law that the damage caused to them by a court of last instance be made good.