The Effectiveness of the Köbler Liability in National Courts

European Union Law

The Effectiveness of the Köbler Liability in National Courts

By Zsófia Varga
Hart Publishing October 2020

Specifications

ISBN-13
9781509939190
Publisher
Hart Publishing
Publication
October 2020
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Paperback

Details

Over the last 15 years, Köbler liability has resulted in the allocation of damages on only five occasions. Why is that? And what are the practical implications of the Köbler judgment in the Member States?

This book offers a unique analysis of the principle – not from the usual EU-focused point of view but from the view of the practical Member State – and thus follows the track set by earlier books in the 'EU Law in the Member States' series. It thoroughly examines the national jurisprudential and legislative acceptation of the state liability principle and explores the existence of alternative remedies available in the Member States in case of such breaches. The conclusions, based on a systematic assessment of 300 national judgments from the 28 Member States, lead to a reconsideration of the role of the Köbler doctrine in the system of judicial remedies against violation of EU law by national supreme courts.

After the pronouncement of the ECJ judgment in Köbler, legal scholars and practitioners have forecast the eradication of the principle of res judicata and the endangering of judicial independence. The judgment caused a lot of ink to flow; according to the ECJ's records, at least 100 studies are directly devoted to the analysis of this decision. This book is, however, the first to offer a comprehensive analysis on the genuine life of the Köbler liability in the Member States.

Table of Contents

1. Introduction
I. Theoretical Background
II. National Courts and Remedial Competence
III. ECJ Case-Law on State Liability for Breach of EU Law by Courts
A. The Kobler Case
B. The Traghetti del Mediterraneo Case
C. The Ferreira da Silva e Brito e.a. Case
D. The Tomašova Case
2. Conclusions from the Past
I. Difficulties Hindering the Application of the Kobler Principle
II. Problems Inherent to the Principle
A. Criterion of the Manifestly Serious Breach
B. Difficulties in Establishing Causality
III. National Legislative Restrictions and Recognition of the Principle by National Courts
A. Overview of the National Legislative Restrictions
B. National Case-Law
C. Consequences of the Kobler Judgment on National Rules
IV. Alternative Remedies in Use in the Member States
A. Retrial on the Ground of Violation of EU Law
B. Constitutional Complaint on the Ground of Infringement of the Lawful Judge Principle
C. Special Remedies
D. Conclusion on Alternative Remedies
V. Conclusions on the History of the Kobler Liability
3. Perspectives for the Future
I. Adequate Liability Standard Instead of Manifest Infringement
II. Effective Remedial System Instead of Effective Remedies
A. Foundations of the State Liability Principle
B. Effectiveness and Effective Judicial Protection
C. ECJ Case-Law on Alternative Remedies
D. Doctrinal Views on Alternative Remedies
E. ECtHR Case-Law on Effective Judicial Protection
F. Conclusion on the Effective Remedial System
III. Violation of the Referral Duty as a Separate Ground for Liability
A. ECJ Case-Law and the Doctrine
B. Analysis
IV. Damages Liability on the Grounds of Violation of the Charter
A. Referral Duty and the Charter
B. Undue Delay in Proceedings
C. Conclusion on Liability for Violation of the Referral Duty and of the Charter
4. Findings
I. Conclusions from the Past
A. Genuine Life of Kobler Doctrine Before National Courts
B. Impact and Importance of the Kobler Principle
C. Other Means of Remedies in Use
II. Perspectives for the Future
A. Harmonisation of National Remedies at EU Level
B. Effective Judicial Protection in the Event of Violation of EU law by Member State Courts
C. Violation of the Duty to Refer a Preliminary Question to the ECJ as a Ground for a Liability Claim
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