Why is the Köbler Principle Not Applied in Practice?

Abstract

Since the judgment of the Court of Justice of the European Union (CJEU) in Köbler, there has been speculation that state liability for violation of EU law by national supreme courts might remain mere theory. However, more than a decade after the CJEU judgment, there is no study available to confirm or disprove this assumption. This article seeks to fill this gap by providing an analysis on the practice and the impact of the liability principle. According to the research conducted, only about 35 Köbler actions have been reported over the last 13 years from all of the 28 Member States, of which only four have been successful. This article investigates why this enforcement deficit of the liability principle can be observed. Therefore, the article examines the main limitations to the effective 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 principle has contributed to the protection of individual rights and the effective application of EU law over the last thirteen years.