Member State Liability for Decisions of National Courts Adjudicating at Last Instance

Abstract

This article comments upon the Köbler judgment of the Court of Justice of 30 September 2003. The decision is of great significance as, for the first time, the Community judicature explicitly spelled out that the principle of State liability for infringement of Community law – a principle well established in the jurisprudence since the early 1990's – is applicable to national courts adjudicating at last instance. Whereas the ruling no doubt represents an important landmark for the protection of the rights which individuals derive from Community law, it nevertheless raises a number of questions. Basing the judgment on its traditional case law on State liability, the Court did not fully take into account the need to adapt this to the specific nature of the judicial function. As a consequence, its definition of the principle of State liability for acts of the judiciary as well as that of the conditions governing its application is not entirely satisfactory. Moreover, as regards the latter, the application of the key notion of ‘sufficiently serious breach’ to the circumstances of the case seems largely incongruous.