Beutler - State Liability For Breaches of Community Law by National Courts

State liability 773
Common Market Law Review 46: 773804, 2009.

2009 Kluwer Law International. Printed in the Netherlands.
STATE LIABILITY FOR BREACHES OF COMMUNITY LAW
BY NATIONAL COURTS: IS THE REQUIREMENT OF A MANIFEST
INFRINGEMENT OF THE APPLICABLE LAW AN INSURMOUNTABLE
OBSTACLE?
BJRN BEUTLER
*
1. Introduction
A decade ago, the question whether a State could incur liability as a result of
errors made in the application of Community law by its judiciary could still be
addressed under the headline Thinking the Unthinkable?
1
Since then, the
perspective has clearly changed. For in 2003 the European Court of Justice
decided in Kbler that under certain conditions Member States can indeed be
held liable for decisions of their courts,
2
a view it confirmed in 2006 when
handing down its decision in Traghetti del Mediterraneo.
3
Previous judgments had already contained indications which made this out-
come seem predictable or at least likely. For as early as 1996 the Court had
held in Brasserie that the principle of State liability holds good for any case
in which a Member State breaches Community law, whatever be the organ of
the State whose act or omission was responsible for the breach.
4
Yet many
Member States had obviously been reluctant to accept the implications of this
statement as can be seen from their concerns voiced during the proceedings
in Kbler.
5
With regard to these concerns, the ECJ declared that the principle
*
Dr. iur., Rechtsanwalt in Dsseldorf. This article is an abbreviated version of my master
paper written as part of the Katholieke Universiteit Leuvens LL.M. programme. I am very
grateful to my supervisor, Prof. Dr. Jules Stuyck, and my co-reader, Prof. Dr. Wouter Devroe, for
their invaluable advice.
1. Toner, Thinking the unthinkable? State liability for judicial acts after Factortame (III),
17 YEL (1997), 165190.
2. Case C-224/01, Gerhard Kbler v. Austria, [2003] ECR I-10239.
3. Case C-173/03, Traghetti del Mediterraneo SpA, in liquidation v. Italy, [2006] ECR
I-5177.
4. Joined Cases C-46 & 48/93, Brasserie du Pcheur SA v. Germany and The Queen v.
Secretary of State for Transport, ex parte: Factortame Ltd and others, [1996] ECR I-1029, para
32 (emphasis added). See also Case C-302/97, Klaus Konle v. Austria, [1999] ECR I-3099, para
62; Case C-424/97, Salomone Haim v. Kassenzahnrztliche Vereinigung Nordrhein, [2000] ECR
I-5123, para 27.
5. See the arguments referred to in Kbler, cited supra note 2, paras. 17, 19, 20, 23, 25.
774 Beutler CML Rev. 2009
of res judicata was not called in question by accepting the possibility of State
liability for decisions of a court adjudicating at last instance,
6
nor would this
diminish the authority of such a court or endanger the independence of the
judiciary.
7
Nonetheless the Court took the Member States concerns seriously. For in
Kbler and Traghetti the number of potential cases in which citizens may
claim damages for wrongful application of Community law by national courts
was narrowed down decisively. To begin with, the ECJs rulings so far have
been limited to decisions stemming from national courts adjudicating at last
instance.
8
These are not necessarily the highest courts of a Member State
9
but
those which deliver the final decision in a given case, thus constituting the
ultimate judicial body where a legal claim can be possibly brought.
10
In addi-
tion, there is another boundary which narrows down the number of potential
cases still further and whose importance is even greater: State liability for an
infringement of Community law by a decision of a national court adjudicating
at last instance can be incurred only in the exceptional case where the court has
manifestly infringed the applicable law.
11
The requirement of a manifest infringement clearly constitutes a limitation.
Yet its exact meaning has given rise to much speculation and caused consider-
able uncertainty. The few judgments which national courts have delivered in
this context so far seem to indicate that they would like to limit the possibility
of holding a Member State liable to the rarest of circumstances.
12
Similar views
can be found in scholarly writing.
13
Yet these views seem questionable in the
light of the following assertion in Kbler:
[I]t follows from the requirements inherent in the protection of the rights
of individuals relying on Community law that they must have the possibil-
ity of obtaining redress in the national courts for the damage caused by the
6. Ibid., paras. 39 et seq. Somewhat critical Ruffert, annotation of Case C-173/03, Traghetti
del Mediterraneo SpA in Liquidation v. Italian Republic, 44 CML Rev. (2007), 479486, at
480.
7. Kbler, cited supra note 2, paras. 41 et seq.
8. Ibid., para 33; Traghetti, cited supra note 3, paras. 31 et seq.
9. Ortlep, Het arrest Traghetti en een geharmoniseerd criterium voor staatsaansprakelijk-
heid wegens onrechtmatige rechtspraak, 11 NTER (2006), 227230, at 227.
10. Anagnostaras, Erroneous judgments and the prospect of damages: The scope of the
principle of governmental liability for judicial breaches, 31 EL Rev. (2006), 735747, at 738.
11. Kbler, cited supra note 2, para 53 (emphasis added). See also Traghetti, cited supra note
3, para 32.
12. Cf. Section 4, infra.
13. Krieger, Haftung des nationalen Richters fr Verletzung des Gemeinschaftsrechts: Das
Urteil Kbler des EuGH, EuZW 2003, 718, 44 Juristische Schulung (2004), 855858, at 858.
State liability 775
infringement of those rights owing to a decision of a court adjudicating at
last instance
14
It can thus be inferred that the possibility of being recompensed is not merely
theoretical. In fact, the Court emphasized that the full effectiveness of rights
which individuals derive from Community law would be called in question
if individuals were precluded from being able, under certain conditions, to
obtain reparation when their rights are affected by an infringement of Commu-
nity law attributable to a decision of a court of a Member State adjudicating at
last instance.
15
Against this backdrop, Classen is right when maintaining that it is of para-
mount importance that the concrete requirements for a liability claim are
established.
16
This goes in particular for the prerequisite of a manifest infringe-
ment whose outlines, as Hakenberg carefully formulates, are not yet very
clear.
17
It is therefore the aim of this article to analyse the requirement in
question and to show that albeit being a limitation it cannot be regarded as
an insurmountable obstacle.
For this purpose, the analysis will begin by placing the requirement within
the system of conditions set up by the ECJ in its decisions on State liability
(section 2, infra). It is then appropriate to examine the judgments in Kbler
and Traghetti in greater detail (section 3, infra) and to look at decisions which
national courts delivered in their wake (section 4, infra). Finally, the judg-
ments will be placed in a broader context of other liability decisions as well as
principles of Community law (section 5, infra).
2. Position of the requirement of a manifest infringement within the
system of conditions set up by the ECJ
It follows from the ECJs decisions on State liability that Community law con-
fers a right to reparation where three conditions are met:
18

14. Kbler, cited supra note 2, para 36.
15. Ibid., para 33.
16. Classen, annotation of Case C-224/01, Gerhard Kbler v. Republik sterreich, Judgment
of 30 September 2003, Full Court, 41 CML Rev. (2004), 813824, at 819.
17. Hakenberg, Zur Staatshaftung von Gerichten bei Verletzung von europischem Gemein-
schaftsrecht, 82 Deutsche Richterzeitung (2004), 113117, at 117.
18. It should be remembered that this does not mean that the State cannot incur liability
under less strict conditions pursuant to national law, cf. Traghetti, cited supra note 3, para 4.
a) the rule of law infringed must be intended to confer rights on individuals;
b) the breach must be sufficiently serious;
c) there must be a direct causal link between the breach of the obligation rest-
ing on the State and the damage sustained by the injured parties.
19

These conditions are nowadays well known and have often been subject of
scholarly writing.
20
An in-depth analysis may therefore be dispensed with at
this point. Yet it should be remembered that those conditions are to be applied
according to each type of situation
21
and that prior to Kbler their application
had been limited to cases where Community law had been breached either by
the executive or the legislature.
It therefore comes as no surprise that during the proceedings in Kbler and
Traghetti it was highly debated whether the three conditions should also apply
when the infringement was attributable to a national court adjudicating at last
instance. Some Member States showed themselves convinced that, in such
cases, their liability could not be incurred at all.
22
Even though this view still
seems to be favoured by some scholars,
23
it can hardly be upheld any more. For
the ECJ clearly retained its finding in Brasserie that the principle of State lia-
bility applies to any case in which a Member State breaches Community law,
whichever is the authority of the Member State whose act or omission was
responsible for the breach.
24

Other Member States as well as the Commission did not limit their argu-
mentation to an outright denial. Instead, they pursued a tactic whose thrust was
focused on the conditions of State liability. They considered, in the words of
the Court, that liability in these cases should be limited and subject to differ-
ent restrictive conditions additional to those already laid down in the Brasse-
rie du Pcheur and Factortame judgment.
25
Advocate General Lger likewise
19. Brasserie, cited supra note 4, para 51; Case C-392/93, The Queen v. H. M. Treasury, ex
parte British Telecommunications plc., [1996] ECR I-1631, para 39; Case C-352/98 P, Berga-
derm and Goupil v. Commission, [2000] ECR I-5291, para 42.
20. See e.g. Meijer, Aansprakelijkheid wegens schending van het EG-recht: lidstaataan-
sprakelijkheid, 15 Maandblad voor Vermogensrecht (2005), 138142, at 138 et seq.; Saenger,
Staatshaftung wegen Verletzung europischen Gemeinschaftsrechts, 37 Juristische Schulung
(1997), 865872, at 869 et seq.
21. Joined Cases C-178, 179, 188, 189 & 190/94, Dillenkofer and others v. Germany, [1996]
ECR I-4845 paras. 2425; Case C-470/04, N v. Inspecteur van de Belastingdienst Oost/kantoor
Almelo, [2006] ECR I-7409, para 63.
22. Kbler, cited supra note 2, paras. 20 et seq.; Traghetti, cited supra note 3, para 18.
23. Wattel, Kbler, CILFIT and Welthgrove: We cant go on meeting like this, 41 CML
Rev. (2004), 177190, at 187 and 190 pronounces himself in favour of the principle litis niri
oportet.
24. Kbler, cited supra note 2, para 31 (emphasis added).
25. Ibid., para 16.
State liability 777
voiced the opinion that it would not be enough purely and simply to transpose
the conditions which have been laid down by the Court in respect of the legis-
lature or the administrative authorities.
26
Yet at the same time he underlined
the importance of maintaining a certain coherence with the system of rules
which have been defined for those other two State organs and which have been
applied on several occasions.
27
It is against this background that the Court had to decide if the three condi-
tions for State liability would also govern cases in which national courts adju-
dicating at last instance infringed rules of Community law. The ECJ answered
the question in the affirmative,
28
stating in unambiguous terms that these con-
ditions have to be regarded as necessary and sufficient to found a right in
favour of individuals to obtain redress.
29
It then went on to say in Kbler:
With regard more particularly to the second of those conditions , regard
must be had to the specific nature of the judicial function and to the legiti-
mate requirements of legal certainty State liability for an infringement
of Community law by a decision of a national court adjudicating at last
instance can be incurred only in the exceptional case where the court has
manifestly infringed the applicable law.
30

So in this case, as well as in its subsequent decision in Traghetti,
31
the Court
concentrated on the second of the three requirements. Its stipulation that there
must be a manifest infringement of the applicable law constitutes a strict inter-
pretation of this second requirement but it is not to be regarded as an additional
in other words fourth condition.
32

3. The Kbler and Traghetti judgments
Abstract guidelines given by the Court have to be illustrated by concrete
examples about how they should be applied so that they do not remain
26. Opinion of A.G. Lger in Case C-224/01, Gerhard Kbler v. Austria, [2003] ECR
I-10239, para 122.
27. Ibid.
28. Kbler, cited supra note 2, paras. 5152.
29. Ibid., para 57; Traghetti, cited supra note 3, para 45.
31. Traghetti, cited supra note 3, para 32.
32. Wissink, EuGH, 30.9.2003, C-224/01, Gerhard Kbler v. Republik sterreich Liabil-
ity of a Member State for damage caused to individuals by infringements of Community law for
which it is responsible, 13 European Review of Private Law (2005), 419442, at 423.
hollow phrases.
33
Accordingly, it is now time to take a closer look at the
Kbler and Traghetti judgments.
3.1. The Kbler judgment
The underlying facts of the Kbler case can be summarized as follows: Under
Austrian law professors were entitled to a special length-of-service increment.
Among the conditions to be fulfilled was the completion of a 15 years service
as a professor in Austrian universities. Mr Kbler applied for this increment.
He argued that he had completed the requisite length of service if the periods
during which he had taught in universities of other Member States were taken
into consideration. Not taking them into account would amount to an indirect
discrimination unjustified under Community law.
34
In the ensuing lawsuit the Austrian Verwaltungsgerichtshof requested a pre-
liminary ruling from the ECJ. Several months later, the Registrar of the Court
enquired if there was still need to uphold the request given the fact that in the
meantime the judgment in the comparable case Schning-Kougebetopoulou
35

had been delivered. The Verwaltungsgerichtshof asked the parties for their
opinion and subsequently withdrew its request, having first asserted that on a
provisional view the submitted question had been resolved in a way that was
favourable for Mr Kbler. In spite of this assertion, Mr Kblers application
was dismissed. The Verwaltungsgerichtshof argued that it had re-evaluated the
nature of the length-of-service increment and found that it was not a compo-
nent of salary as it had held in its order for reference but a loyalty bonus.
In its opinion such a bonus was recognized by the Court of Justice as justifi-
cation for legislation conflicting with the prohibition on discrimination.
36
Dis-
satisfied with this decision, Mr Kbler brought an action for damages against
Austria before the Landesgericht fr Zivilrechtssachen in Vienna. The latter
decided to stay the proceedings and referred several questions to the ECJ for a
preliminary ruling.
In its decision, the Court first had to deal with the question whether, in Mr
Kblers case, Community law had been breached. It asserted that the Austrian
33. Prechal, Judge-made harmonisation of national procedural rules: A bridging perspec-
tive in Wouters and Stuyck (Eds.), Principles of Proper Conduct for Supranational, State and
Private Actors in the European Union: Towards a Ius Commune: Essays in Honour of Walter
van Gerven (Intersentia, 2001), pp. 3958, at 51.
34. More precisely, he relied on the provisions on freedom of movement for workers laid
down in Art. 39 EC and Art. 7(1) of Regulation (EEC) No. 1612/68.
35. Case C-15/96, Kalliope Schning-Kougebetopoulou v. Freie und Hansestadt Hamburg,
[1998] ECR I-47.
State liability 779
regime was likely to impede the freedom of movement for workers in two
ways. On the one hand, Austria refused to recognize periods of service com-
pleted in non-Austrian universities by university professors coming from other
Member States. On the other hand, university professors established in Austria
were deterred from leaving the country, as the time they spent working in uni-
versities of other Member States would not matter for the length-of-service
increment.
37
The ECJ came to the conclusion that such a measure could not be
justified by pressing reasons of public interest
38
and drew particular attention
to the following fact: [T]he special length-of-service increment at issue in the
main proceedings does not solely have the effect of rewarding the employees
loyalty to his employer. It also leads to a partitioning of the market for the
employment of university professors in Austria and runs counter to the very
principle of freedom of movement for workers.
39
The Court then turned to the judgment of the Verwaltungsgerichtshof and
left no doubt about the fact that the Austrian judges had misread Schning-
Kougebetopoulou.
40
Contrary to their finding, this judgment contained no indi-
cation that a loyalty bonus constituting an impediment to the freedom of
movement for workers could be justified under Community law.
41
Since the
Verwaltungsgerichtshof had altered its interpretation of the national law after
Schning-Kougebetopoulou had been handed down, it should not have with-
drawn its request for a preliminary ruling. In fact, [t]hat court was not entitled
to take the view that resolution of the point of law at issue was clear from the
settled case-law of the Court or left no room for any reasonable doubt. Accord-
ingly, the ECJ came to the conclusion that by its judgment the Verwaltungsger-
ichtshof had infringed Community law
42
and effectively overruled this
decision.
43
However, the ECJ emphasized that a mere infringement of Community law
would not be sufficient to hold a Member State liable for miscarriages of jus-
37. Kbler, cited supra note 2, paras. 72 et seq. See also Classen, op. cit. supra note 16, at
817.
38. Kbler, cited supra note 2, paras. 83 and 87.
39. Ibid., para 86.
40. Ibid., paras. 113116. See also Amtenbrink, ECJ examines State liability for national
judgments: Kbler v. Austria, (2004) EU Focus, 137, 46, at 5.
41. In this respect, the Court made reference to Schning-Kougebetopoulou, cited supra note
35, paras. 81 and 82.
42. Kbler, cited supra note 2, paras. 117 et seq. See also Pfander, Kbler v. Austria: Expo-
sitional supremacy and Member State liability, 17 EBLR (2006), 275297, at 282.
43. Scott and Barber, State liability under Francovich for decisions of national courts,
120 Law Quarterly Review (2004), 403406, at 405.
tice.
44
Instead, this possibility should only exist in the exceptional case where
the court has manifestly infringed the applicable law.
45
This reasoning attracted
some critical remarks in scholarly writing.
46
Yet in the words of the Court
itself, it is owed to the specific nature of the judicial function and to the legit-
imate requirements of legal certainty.
47
The decisive question was therefore
which criteria should be applied to assess the existence of a manifest infringe-
ment. In this respect, the Court first gave some general guidelines:
In order to determine whether that condition is satisfied, the national court
hearing a claim for reparation must take account of all the factors which
characterise the situation put before it. Those factors include, in particular,
the degree of clarity and precision of the rule infringed, whether the
infringement was intentional, whether the error of law was excusable or
inexcusable, the position taken, where applicable, by a Community institu-
tion and non-compliance by the court in question with its obligation to
make a reference for a preliminary ruling under the third paragraph of
Article 234 EC. In any event, an infringement of Community law will be
sufficiently serious where the decision concerned was made in manifest
breach of the case-law of the Court in the matter
48
As can be seen from this statement, it is in principle for the national courts to
decide whether these conditions are fulfilled. In this particular case, however,
the ECJ showed itself convinced that it had all relevant information at its dis-
posal for making the assessment itself.
49
In this context Wenners points out
that the Austrian judges had made not one error, but several so that their
judgment should have cleared the threshold of sufficiently serious breach
with some margin.
50
It is also noteworthy that Advocate General Lger had
voiced the opinion that it is difficult to accept that the Verwaltungsgerichtshof
made an excusable error.
51
Nevertheless, the ECJ came to the conclusion that
44. Kbler, cited supra note 2, para 121. See also Courtial, La responsabilit du fait de
lactivit des juridictions de lordre administratif: un droit sous influence europenne?,
60 Actualit Juridique Droit Administratif (2004), 423431, at 429.
45. Kbler, cited supra note 2, para 36 (emphasis added).
46. See e.g. Zuckerman, Appeal to the High Court against House of Lords decisions on the
interpretation of Community law Damages for judicial error, 23 Civil Justice Quarterly
(2004), 814, at 13.
47. Kbler, cited supra note 2, para 53. The specific nature of the judicial function was also
mentioned in para 59 of that judgment.
48. Ibid., paras. 5456.
49. Ibid., para 101.
50. Wenners, State liability for decisions of courts of last instance in environmental cases,
16 Journal of Environmental Law (2004), 329340, at 336.
51. Opinion of A.G. Lger in Kbler, cited supra note 26, para 170. See with regard to his
statements also Cabral and Chaves, Member State liability for decisions of national courts
State liability 781
in Mr Kblers case the infringement of Community law had not been
manifest.
52

This appraisal was based on two different lines of reasoning. Firstly, the
Court underlined that Community law gave no clear answer to the question
whether a loyalty bonus entailing an obstacle to freedom of movement for
workers could be justified. It also stressed that there was neither a reply to that
question in the Courts case law nor could the reply be regarded as obvious.
53

Secondly, the ECJ declared that even the Verwaltungsgerichtshof s failure to
maintain its request for a preliminary ruling did not amount to a manifest
in fringement. It emphasized that when the Austrian court had withdrawn its
request, it had done so under the impression that its question had been answered
in Schning-Kougebetopoulou, and due to the incorrect perception of this
judgment the Verwaltungsgerichtshof no longer considered it necessary to
refer that question of interpretation to the Court.
54
3.2. Reactions to the Kbler judgment
This judgment inevitably led to a wide variety of reactions. Some writers fully
agree with the outcome
55
or declare that it is both balanced and tenable,
56

proffering various reasons for their evaluation. Wegener, for example, main-
tains that by its restrictive interpretation the ECJ preserved the Rechtsfrieden
(peace under the law) as well as the cooperative relationship between national
and Community courts.
57
Breuer argues that a different result could have been
perceived as a wrong signal and thereby opened the floodgates to litigation.
58

Taking the opposite view, Wattel chides the Court for soliciting an avalanche
of (attempts at) claims, going back who knows how many years, in fifteen
Member States whose judiciaries were already not bored.
59
Other scholars
also take a critical stance but for different reasons. Some content themselves
with voicing their surprise at the Courts benign view
60
or its unusual
adjudicating at last instance: Case C-224/01, Gerhard Kbler v. Republik sterreich, [2003]
ECR I-10239, 13 MJ (2006), 109126, at 120.
53. Ibid., paras. 121122.
55. Breuer, State liability for judicial wrongs and Community law: The case of Gerhard
Kbler v. Austria, 29 EL Rev. (2004), 243254, at 250.
56. Wegener, Staatshaftung fr judikatives Unrecht, 39 EuR (2004), 8491, at 84.
57. Wegener, op. cit. supra note 56, at 91.
58. Breuer, op. cit. supra note 55, at 251.
59. Wattel, op. cit. supra note 23, at 179 et seq.
60. Craig and de Brca, EU Law: Text, Cases, and Materials, 4th ed. (Oxford University
Press, 2008), p. 337.
leniency
61
vis--vis the infringements committed by the Verwaltungsge-
richtshof. Yet other responses are less restrained. Cabral and Chaves, for
instance, declare that the deference shown to Member States seems frankly
excessive.
62
In their opinion, the Court did not live up to its role as constitu-
tional adjudicator and ultimate guardian of fundamental rights and liberties in
the European Union.
63
Perhaps most pointedly, Zuckerman contends that in
the light of the Kbler judgment the full protection of Community rights
depends not on their content but on how far the national court is perceived by
the ECJ to have blundered, in the sense of having made an obvious mistake.
64
A final group of authors makes a special effort of giving a balanced assess-
ment by highlighting both positive and negative aspects of the judgment.
Steyger, for instance, asks if the new development could be regarded as
desirable and is obviously in conflict with herself. On the one hand, she asserts
that one would naturally go crazy if the national judge could withhold the
rights bestowed upon individuals by Community law without their being able
to obtain damages for their losses. On the other hand, she shows herself
concerned about the effects which the Kbler judgment will have with regard
to legal certainty.
65
Classen
66
and Radermacher
67
regard the outcome as con-
vincing, but declare that the Courts argumentation invites a number of criti-
cisms.
In legal practice, however, the main problem after the Kbler judgment was
obviously the following: The Court had confirmed that in theory it is possible
to hold Member States liable for breaches of Community law committed by
their courts adjudicating at last instance. Furthermore, it had outlined the con-
ditions which have to be fulfilled in this respect, and it had especially provided
some guidelines concerning the requirement of a manifest infringement. Yet as
in Mr Kblers case the breach of Community law had allegedly not been
severe enough, it remained unclear at what point the necessary threshold would
be attained. Phrasing it differently, the question was if in practice the require-
ment of a manifest infringement of the applicable law would prove to be an
insurmountable obstacle.
61. Obwexer, EuGH: Staatshaftung fr offenkundig gegen Gemeinschaftsrecht verstoen-
des Gerichtsurteil, 14 EuZW (2003), 718728, at 728.
62. Cabral and Chaves, op. cit. supra note 51, at 124.
63. Ibid.
64. Zuckerman, op. cit. supra note 46, at 13.
65. Steyger, De gevolgen van de aansprakelijkheid van de Staat voor rechterlijke schendin-
gen van EG-recht, 9 NTER (2004), 1822, at 22.
66. Classen, op. cit. supra note 16, at 817.
67. Radermacher, Gemeinschaftsrechtliche Staatshaftung fr hchstrichterliche Entschei-
dungen, 23 Neue Zeitschrift fr Verwaltungsrecht (2004), 14151421, at 1416.
State liability 783
3.3. The Traghetti judgment
Against this background, the subsequent Traghetti case was welcomed as the
first opportunity for adding some clarity to the situation.
68
It was based on the
following facts:
Traghetti del Mediterraneo SpA (TDM) was a maritime transport under-
taking running a ferry service between mainland Italy and the islands of Sar-
dinia and Sicily. So did its competitor Tirrenia di Navigazione which charged
fares well below costs. TDM asserted that in this way Tirrenia infringed Com-
munity law, in particular by abusing its dominant position on the relevant mar-
ket and receiving public subsidies whose legality was doubtful.
69
TDM which
after sustaining considerable losses was finally forced into liquidation
brought an action against Tirrenia before the Tribunale di Napoli in order to
obtain compensation. This court dismissed the action, and the subsequent
appeal before the Corte dappello di Napoli was equally unsuccessful. Both
courts argued that the subsidies had been legally granted, as they were justified
by the public interest of developing the Mezzogiorno and did not adversely
affect the operation of sea links other than and competing with those objected
to by TDM.
Taking the view that these decisions misinterpreted Community law, TDMs
administrator appealed before the Corte Suprema di Cassazione and requested
it to submit the relevant questions of interpretation to the ECJ. The Italian
Supreme Court of Cassation refused this request and maintained that the pre-
ceding judgments had followed the letter of the relevant provisions of Com-
munity law and were consistent with the ECJs case law. As this was erroneous
in the opinion of TDMs administrator, he instituted proceedings against Italy
before the Tribunale di Genova and claimed compensation for the damage
caused by the Corte Suprema di Cassaziones incorrect interpretation and its
failure to make a reference for a preliminary ruling.
When the proceedings were instituted before the Tribunale di Genova,
Italian law already provided for the possibility of obtaining damages for judi-
cial misfeasance. Yet the conditions were so restrictive that in TDMs opinion
they rendered it excessively difficult and even virtually impossible to obtain
damages for miscarriages of justice. The Tribunale di Genova therefore referred
two questions to the ECJ, one of which was upheld after the Kbler judgment
had been delivered. The Court reformulated it as asking in essence
68. Nassimpian, And we keep on meeting: (de)Fragmenting State liability, 32 EL Rev.
(2007), 819838, at 819; Seegers, Haftung der Mitgliedstaaten fr offenkundige Verste ihrer
obersten Gerichte gegen Gemeinschaftsrecht, 17 EuZW (2006), 561566, at 564.
69. See now Arts. 81 EC, 82 EC, 86 EC, and 87 EC.
whether Community law and, in particular, the principles laid down by
the Court in the Kbler judgment preclude national legislation such as that
at issue in the main proceedings which, firstly, excludes all State liability
for damage caused to individuals by an infringement of Community law
committed by a national court adjudicating at last instance, where that in-
fringement is the result of an interpretation of provisions of law or of an
assessment of the facts and evidence carried out by that court, and, secondly,
also limits such liability solely to cases of intentional fault and serious
misconduct on the part of the court.
70
Owing to the scope of this question and unlike in Kbler, the ECJ did not
assess itself if the Corte Suprema di Cassazione had committed a manifest
infringement of Community law. Instead, the Court began by reiterating its
findings in Kbler that the specific nature of the judicial function as well as the
legitimate requirements of legal certainty must be taken into account, so that
the relevant cases would be exceptional in nature.
71
This could not be regarded
as much of a novelty
72
but there is a clarification to be found in the Traghetti
judgment which Ortlep rightly calls the added value of this decision
73
as it is
clearly its most essential aspect.
In Traghetti, the Court stated in unambiguous terms that national criteria
may under no circumstances impose requirements stricter than that of a
manifest infringement of the applicable law, as set out in paragraphs 53 to 56
of the Kbler judgment.
74
There could thus no longer be any doubt that
national laws and national courts must not set the standards too high when
it comes to determining if a breach of Community law clears the threshold of
manifest infringement. As the ECJ vigorously rejected the restrictions
imposed by the Italian Law,
75
it became evident that both in theory and in
practice the Court does not want the requirement in question to be understood
as an insuperable barrier. Otherwise the standards could not possibly be too
high.
As for the legal situation in Italy, the Court first examined the provision
which stipulated that the interpretation of legal provisions in the exercise of
judicial functions should not give rise to liability.
76
In surprisingly clear words,
71. Ibid., para 32.
72. Nassimpian, op. cit. supra note 68, at 826.
73. Ortlep, op. cit. supra note 9, at 227.
75. Albors-Llorens, The principle of State liability in EC law and the supreme courts of the
Member States, 66 CLJ (2007), 270273, at 272.
76. Art. 2(2) of Law No. 117 of 13 April 1988 on compensation for damage caused in the
exercise of judicial functions and the civil liability of judges (legge No. 117 [sul] risarcimento
State liability 785
the ECJ marked this regulation as incompatible with Community law,
77
main-
taining that the exclusion of all State liability in such cases would be tanta-
mount to rendering meaningless the principle laid down by the Court in the
Kbler judgment.
78
It argued in a very similar way with regard to the provision
that excluded in a general manner all State liability for infringements commit-
ted by a court in the assessment of facts and evidence.
79
The ECJ underlined
that it would amount to depriving the principle set out in the Kbler judgment
of all practical effect if in such a situation individuals would be prohibited
from holding a Member State liable for infringements of Community law.
80

Having regard to the underlying facts of Traghetti, it then went on to say that
this goes especially for cases in the State aid sector, where the protection of the
rights which individuals derive from Community law depends, to a great
extent, on successive operations of legal classification of the facts.
81
In order
to fully answer the question raised by the Tribunale di Genova, the ECJ finally
addressed the Italian legislation limiting State liability solely to cases of inten-
tional fault and serious misconduct on the part of the national court.
82
This lim-
itation was judged to be incompatible with Community law in case it were to
lead to exclusion of the liability of the Member State concerned in other cases
where a manifest infringement of the applicable law was committed.
83
All this can be summarized by referring to the Courts assertion that State
liability for breaches of Community law by national courts is not unlimited.
84

As the use of this double negative which is no peculiarity of the English ver-
sion
85
implies, the prerequisite of a manifest infringement entails restrictions,
but these are not such as to render it impossible or illusionary to obtain dam-
ages. The Traghetti judgment thus gave an answer to the question left open by
Kbler as it became evident that the requirement in question must neither in
theory nor in practice be understood as an insurmountable obstacle.
dei danni cagionati nell esercizio delle funzioni guidiziarie e responsabilit civile dei magistrati
(GURI No. 88 of 15 April 1988, 3; Law No. 117/88).
78. Ibid., para 36. See also Seegers, op. cit. supra note 68, at 565.
79. Art. 2(2) of Law No. 117/88, cited supra note 76.
81. Ibid., para 40.
82. Art. 2(1) of Law No. 117/88, cited supra note 76.
84. Ibid., para 32 (emphasis added).
85. The German (allerdings nicht unbegrenzt), Dutch (niet onbeperkt), and French (nest pas
illimite) versions are worded similarly.
3.4. Reactions to the Traghetti judgment
In spite of its significance, the Traghetti judgment was perceived as less of a
landmark decision than its ground-laying predecessor in Kbler
86
so that the
number of reactions in literature was considerably smaller. Yet the remarks
which can be found are clearly worth looking at.
Lindner maintains that the ECJ in Traghetti practically dispensed with sub-
jective elements when it comes to assessing whether a breach of Community
law is manifest. He deduces this from the fact that the Court did not regard
intentional fault and serious misconduct on the part of a judge as the decisive
factors, but the objective existence of a manifest infringement. This leads him
to the conclusion that the criterion in question has by and large lost its limiting
effect, and he predicts that this is going to be confirmed by future decisions of
the ECJ.
87
The latter, of course, remains to be seen, as for the time being it is
merely a conjecture. Furthermore, it should be noted that the Court did not
deviate from its finding in Kbler that the question whether an infringement is
intentional counts among the factors that must be taken into account. In fact,
this finding was expressly upheld.
88
Whether against this background Lindners prediction is precipitate or not,
it obviously goes much further than Weatherills summary of the intention pur-
sued by the ECJ in Traghetti. He maintains that [t]he Courts concern was
explicitly not to allow Gerhard Kbler to be deprived of all practical effect.
89

For this reason, several authors regard the decision as a logically consistent
development of the Courts previous case law.
90
Seegers welcomes the fact that
the ECJ set a minimum standard which must be kept in the field of State liabil-
ity for judicial misfeasance and declares that this leads in principle to a further
harmonization of the conditions to be fulfilled.
91
However, Nassimpian points out that the Traghetti judgment led only to a
partial clarification of these conditions. She especially disapproves of the fact
that even though the Court had underlined in Kbler the importance of the
failure to make an order for reference, it did not elucidate in Traghetti under
86. The label of landmark judgment is expressly attributed to Kbler by Cabral and Chaves,
op. cit. supra note 51, at 109; Skouris, The position of the European Court of Justice in the EU
legal order and its relationship with national constitutional courts, 60 Zeitschrift fr ffentliches
Recht (2005), 323333, at 329. By contrast, Nassimpian, op. cit. supra note 68, at 819 regards
both Kbler and Traghetti as landmark decisions.
87. Lindner, Rechtsprechung: Europischer Gerichtshof, 52 Bayerische Verwaltungsblt-
ter (2006), 695697, at 697.
89. Weatherill, Cases and Materials on EU Law, 8th ed. (Oxford University Press, 2007), at
p. 180.
90. Ruffert, op. cit. supra note 6, at 484; Seegers, op. cit. supra note 68, at 566.
91. Ibid.
State liability 787
which circumstances this would lead to a successful liability claim.
92
While
this criticism is undeniably justified, the following seems less warranted: [I]f
the conditions set by the Court were in reality so high as to make it virtually
impossible to reach the necessary threshold, is the principle distilled in Kbler
reduced to being token jurisprudence?
93
Reprimanding the ECJ for not shedding light on this point seems unfounded.
For it was shown that the Court did clarify in Traghetti that the criterion of a
manifest infringement must neither in theory nor in practice be treated as an
4. Decisions of national courts
However, while the ECJs position on this point is clear, judgments which
national courts delivered in the wake of Kbler and Traghetti leave a more
ambiguous impression. On the one hand, none of the following decisions con-
tradicts the ECJs finding that it is possible to hold Member States liable for
miscarriages of justice. Yet on the other hand, among these cases there is not a
single one in which a national court regarded the requirement of a manifest
infringement as fulfilled.
4.1. France
In the Gestas judgment delivered by the French Conseil dEtat
94
the plaintiff
had claimed compensation for the damage he sustained due to the excessive
length of the proceedings as well as grave mistakes made by the administrative
courts. His claim was partially successful but only with regard to the fact that
the proceedings had lasted for 15 years and 8 months. In this respect the Conseil
dEtat held that based on general principles governing the functioning of the
administrative courts Mr Gestas was entitled to compensation.
95
Yet it repudi-
ated his allegation that the administrative courts had made grave mistakes
when applying the law. The Conseil dEtat denied in particular that the prin-
ciples of legitimate expectations and legal certainty as guaranteed by Com-
munity law
96
had been infringed.
97
93. Ibid.
94. Gestas, Conseil dEtat, 18 June 2008.
95. Ibid.
96. In this context, it mentioned Council Directive 1999/70/EC of 28 June 1999 concerning
the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, O.J. 1999,
L 175/43.
97. Gestas, cited supra note 94.
It is not the purpose of this article to decide whether that outcome was
correct. Yet it can be retained that even though the Conseil dEtat contradicted
Mr Gestas contention that there had been a manifest breach of Community
law, the judgment can still be perceived as a landmark decision. For the Con-
seil dEtat acknowledged that in principle it is possible to obtain damages
when the content of a judgment is in manifest breach of Community law.
98
It
thus departed from its longstanding Darmont case law
99
in which it had held
that the content of such a judicial decision could not be challenged by way of
a State liability action once it had become final.
100
4.2. Germany
As for decisions delivered by German courts, it is first of all interesting to note
that the Bundesverfassungsgericht confirmed in an obiter dictum that it is pos-
sible to obtain reparation when a national court acts in contravention of its
obligation under Article 234(3) EC to make an order for reference.
101
The first case in which the Bundesgerichtshof (hereinafter: BGH) decided
about a liability action for breaches of Community law by national courts had
a similar result to the Gestas judgment.
102
In this case, German tax consultants
asserted that German courts had breached Community law, in particular by not
making a reference for a preliminary ruling to the ECJ. Beforehand, the tax
consultants who had obtained the permission to work as Revisori Contabili
(auditors) in Italy had attempted in vain to be exempted from any admission
examination for becoming Wirtschaftsprfer in Germany. In the ensuing law-
suits the administrative courts had rejected their claims.
Just like the Conseil dEtat, the BGH expressly acknowledged the possibil-
ity to hold Member States liable for miscarriages of justice based on the prin-
ciples developed by the ECJ in Kbler.
103
Yet after reiterating the conditions
set up by the Court, the BGH came to the conclusion that in the tax consul-
tants case there had been no manifest infringement.
104
It especially rejected
their argument that based on the judgments in Heylens
105
and Vlassopoulou
106

98. Ibid.
99. Darmont, Conseil dEtat, 29 Dec. 1978.
100. Courtial, op. cit. supra note 44, at 423 et seq.; Donnat and Casas, La responsabilit de
lEtat et la justice, 60 Actualit Juridique Droit Administratif (2004), 653656, at 653 et seq.
101. Judgment of 6 May 2008, Bundesverfassungsgericht, reported in 21 NVwZ-Rechtspre-
chungs-Report Verwaltungsrecht (2008), 658660, para 27.
102. Judgment of 28 Oct. 2004, BGH, reported in 15 EuZW (2005), 3032.
103. Ibid., at 31.
104. Ibid.
105. Case 222/86, Union nationale des entraneurs et cadres techniques professionnels du
football (Unectef) v. Georges Heylens and others, [1987] ECR 4097, para 10.
106. Case C-340/89, Irne Vlassopoulou v. Ministerium fr Justiz, Bundes- und Europaan-
gelegenheiten Baden-Wrttemberg, [1991] ECR I-2357, para 9.
State liability 789
it would no longer be permissible to hold an admission examination after the
sector had been harmonized by Directive 84/253/EEC.
107
The BGH affirmed
that the Directive could not be interpreted contrary to its wording as meaning
that Member States would no longer be allowed to hold such examinations. In
the courts opinion this was so obvious that based on the standards set in CIL-
FIT
108
there had been no need for the administrative courts to refer the case to
the ECJ for a preliminary ruling.
109
There are two more German State liability cases to be found in which higher
regional courts had been called upon to decide about infringements of Com-
munity law by national courts. Their decisions are remarkable, as not only
were they argued in a very similar way but each judgment also contained the
same inaccuracy. As for this inaccuracy, both the Oberlandesgericht Karlsruhe
110

and the Oberlandesgericht Frankfurt
111
contended that Member State liability
for miscarriages of justice could only be incurred where the infringement was
attributable to a court adjudicating at last instance. In this respect they disre-
garded that the ECJ had never expressly stated that such liability claims would
be excluded for decisions of other judicial bodies. Interestingly enough both
courts did not cite the judgments in Kbler and Traghetti in this context but
referred to articles in German literature instead. Only then did they go on to
say that at any rate there had been no manifest infringement.
112
4.3. Austria
Just as in Germany, it seems that so far there has been no Austrian case in
which the State was successfully held liable for breaches of Community law
attributable to a national court. It is evident that after the ECJs ruling in Mr
Kblers case the national judges would not have decided in his favour. Yet
even though numerous other decisions can be found in which the Verfas-
sungsgerichtshof had to deal with these matters, none of these came to the
conclusion that there had been a manifest infringement.
113
107. Eighth Council Directive 84/253/EEC of 10 April 1984 based on Art. 54(3) (g) of the
Treaty on the approval of persons responsible for carrying out the statutory audits of accounting
documents, O.J. 1984, L 126/20.
108. Case 283/81, Srl CILFIT and Lanicio di Gavardo SpA v. Ministry of Health, [1982]
ECR 3415, para 16.
109. Judgment of BGH, cited supra note 102, at 31.
110. Judgment of 9 March 2006, Oberlandesgericht Karlsruhe, reported in 21 NJW
Rechtsprechungsreport Zivilrecht (2006), 14591462, at 1460.
111. Judgment of 13 March 2008, Oberlandesgericht Frankfurt, Case 1 U 244/07, reported
in juris database, para 17.
112. Judgment of Oberlandesgericht Karlsruhe, cited supra note 110, at 1460; judgment of
Oberlandesgericht Frankfurt, cited supra note 111, para 20.
113. See e.g. judgment of 10 Oct. 2003, Verfassungsgerichtshof, Case A36/00, reported in
RIS database, pdf version, 12; judgment of 12 Dec. 2003, Verfassungsgerichtshof, Case A2/01
4.4. Commentary
This analysis throws into sharp relief that even though the French Conseil
dEtat, the German courts and the Austrian Verfassungsgerichtshof all acknowl-
edged that it is possible to claim damages for breaches of Community law by
national courts, none of the claimants actually obtained compensation. Yet it
cannot be deduced that this analysis contradicts the above-mentioned finding
that the requirement of a manifest infringement must neither in theory nor in
practice be understood as an insurmountable obstacle.
To begin with, it was already pointed out that it is not the purpose of this
article to decide whether the outcome of the French, German, and Austrian
cases in question had been correct. Accordingly, as with any other State liabil-
ity decision, it is possible that these cases were properly decided and that in
none of them the necessary threshold had been attained. This being so, these
judgments could not be used to prove that in cases where Community law had
manifestly been breached, the national courts would not regard the criterion in
question as fulfilled.
Furthermore, experience shows that not all cases in which Member States
were successfully held liable for breaching Community law have subsequently
been published.
114
It stands to reason that this can make the prospects of suc-
ceeding seem lower than they actually are. One should also bear in mind that
the cases mentioned above are just a selection from three Member States. It is
hence conceivable that other claimants have already been successful. More-
over, other cases are still pending before national courts, as for example the
Traghetti case, which was delayed for a variety of reasons. Yet after the clear
words which the ECJ found in its preliminary ruling, it seems likely that Italy
will finally be held accountable for the Corte Suprema di Cassaziones infringe-
ment of Community law.
As the Traghetti judgment led to greater clarification, there is another aspect
which should also be considered. Half of the national decisions mentioned
above were delivered prior to that judgment
115
and could therefore not explore
its possible implications. As for the other decisions, three of them made no
ua, reported in RIS database, pdf version, 21; judgment of 13 Oct. 2004, Verfassungsgerichtshof,
Case A5/04, reported in RIS database, pdf version, 15 et seq.; judgment of 2 Oct. 2006, Verfas-
sungsgerichtshof, Case A27/05, reported in RIS database, pdf version, 6; judgment of 12 March
2008, Verfassungsgerichtshof, Case A7/07, reported in RIS database, pdf version, 6.
114. See e.g. Oberlandesgericht Kln, Case 7 U 23/05, judgment of 3 Nov. 2005, nyr, which
concerned a breach of Community law by the administration.
115. Judgment of BGH, cited supra note 102; judgment of Oberlandesgericht Karlsruhe,
cited supra note 110; judgment of 10 Oct. 2003, Verfassungsgerichtshof, cited supra note 113;
judgment of 13 Oct. 2004, Verfassungsgerichtshof, cited supra note 113.
State liability 791
mention of Traghetti at all.
116
The Oberlandesgericht Frankfurt did refer to it,
but did not examine whether it had brought about any changes from the Kbler
judgment.
117
What remains is one decision in which the Austrian Verfassungs-
gerichtshof stated: According to the ECJs judgment of 30 September 2003,
Case C-224/01, Kbler, [2003] ECR I-10239, the infringement of Community
law attributable to a Member States court adjudicating at last instance has to
be manifest or in obvious disregard of the ECJs case law. What also matters
is the degree of clarity and precision of the rule infringed and the tenability
of the legal opinion. The judgment of 13 June 2006, Case C-173/03, Traghetti
del Mediterraneo, did nothing to alter that principle.
118
The principle which the Verfassungsgerichtshof refers to was reaffirmed by
the ECJ itself in Traghetti.
119
Moreover, the preceding quotation contains noth-
ing to contradict the verdict that the criteria applied by national courts may
under no circumstances impose requirements stricter than that of a mani-
fest infringement of the applicable law.
120
As it is this verdict in particular that
led to the finding that the requirement of a manifest infringement must neither
in theory nor in practice be understood as an insurmountable obstacle, the lat-
ter is not called into question by the judgment of the Verfassungsgerichtshof.
The same is true of the other national decisions which were examined in this
context.
This being said, it is nevertheless necessary to ask why even the judgments
delivered after Traghetti were predominantly based on Kbler. The answer to
that question can be found in what was already described as the ECJs unusual
leniency
121
or benign view
122
in that judgment. The majority of national
judges presumably welcomed this uncharacteristic clemency, for they are
with all due respect well known for being unwilling to carry out substantial
review of their counterparts assessments.
123
Some might try to conceal this
fact by referring to principles such as litis niri oportet.
124
Yet it is probably
nearer the mark to assume that national judges are simply averse to losing what
116. Gestas, cited supra note 94; judgment of Bundesverfassungsgericht, cited supra note
101; judgment of 12 March 2008, Verfassungsgerichtshof, cited supra note 113.
117. Judgment of Oberlandesgericht Frankfurt, cited supra note 111, para 15.
118. Judgment of 2 Oct. 2006, Verfassungsgerichtshof, cited supra note 113, at 13 (translated
by the author).
121. Obwexer, op. cit. supra note 61, at 728.
122. Craig and de Brca, op. cit. supra note 60, at p. 337.
123. Granger, National applications of Francovich and the construction of a European
administrative ius commune, 32 EL Rev. (2007), 157192, at 168.
124. Wattel, op. cit. supra note 23, at 187.
Courtial calls their lot dirresponsabilit.
125
Kbler had still left them with
the impression that this little island was largely unassailable. By contrast, after
Traghetti there can be no more denying that it has come under serious threat of
invasion.
This leads to the question why the Kbler judgment was so indulgent in the
first place. Views on that matter differ to a certain extent. Some authors argue
that the ECJ shied away from holding a supreme court liable in the same case
as it introduced the principle of State liability for decisions of the judiciary.
126

Similarly, but slightly more cynical from the claimants point of view, Haltern
127

and Pfander
128
reason that in Kbler the Court had to convey the principle
which accordingly was more important than the actual outcome. This dovetails
with the conjecture that the ECJ was afraid of damaging its carefully tended
relationship with the national courts by acting too rashly.
129
In this respect,
Classen maintains that liability cases entail the danger of putting at risk the
national courts willingness to make references under Article 234 EC.
130
Finally,
Wenners points out that the Verwaltungsgerichtshof had withdrawn its request
after the Registrar of the ECJ had enquired if it still needed to be upheld, so
that the latter might have indirectly contributed to the wrongful decision of
the Austrian court.
131
All these considerations have their merits, and it is likely
that the ECJ was guided by a combination or even all of them.
Yet be this as it may, it was already mentioned that the outcome of the
Kbler case did not meet with universal approval. Steyger, for instance,
depicted a rather gloomy scenario of how unlikely it would be to successfully
hold the Netherlands liable in the wake of Kbler.
132
What is more, the ECJs
unusual leniency in that judgment might also have been perceived as a certain
lack of determination. For it is conspicuous how the Italian Government tried
in Traghetti to revive arguments which the Court had already refuted in its pre-
vious judgment. By way of example, Italy claimed that the action had to be
dismissed as the judgment of the Corte Suprema di Cassazione, being res judi-
cata, could no longer be challenged.
133
Given the fact that the ECJ had already
125. Courtial, op. cit. supra note 44, at 428.
126. Wenners, op. cit. supra note 50, at 337. Hakenberg, op. cit. supra note 17, at 116
regards that theory as at least tenable.
127. Haltern, Europarecht: Dogmatik im Kontext (Mohr Siebeck, 2005), p. 350.
128. Pfander, op. cit. supra note 42, at 279.
129. Hakenberg, op. cit. supra note 17, at 117; Wegener, op. cit. supra note 56, at 91.
130. Classen, op. cit. supra note 16, at 814.
131. Wenners, op. cit. supra note 50, at 337. Yet he adds that the Registrar should not be
blamed for the subsequent misinterpretation of the Schning case.
132. Steyger, op. cit. supra note 65, at 20.
State liability 793
rebutted this argument in Kbler,
134
the skirmish was most likely aimed at test-
ing its resolve.
It can be presumed that all this led the ECJ to the conclusion that its leniency
in Kbler had gone too far. For it is quite remarkable how it repetitively under-
lined in Traghetti that the principle laid down in Kbler must not be rendered
meaningless.
135
As the ECJ rarely revises itself explicitly,
136
this was probably
as far as it was willing to go in this highly sensitive field of State liability for
miscarriages of justice.
Nevertheless, Traghettis reinforcing of the principle laid down in Kbler is
of even greater importance when another aspect is taken into account. In both
judgments the Court held specifically that a breach of Community law will in
any event be considered as sufficiently serious where it was made in manifest
disregard of the ECJs case law on the subject.
137
National judges who are
called upon to decide in a State liability case for judicial misfeasance should
take careful notice of this. To begin with, it is obvious that they have to deter-
mine if the underlying decision of the other court manifestly disregarded the
ECJs case law. Yet potentially even more important, neither must their own
judgment be in patent breach of what the Court already decided. This means in
particular that if they turn the requirement of a manifest infringement into an
insurmountable obstacle, the intrinsic disregard of the Traghetti judgment in
and of itself entitles the claimant to damages for miscarriages of justice.
This line of thought can be taken one step further. If it should turn out that
any of the Austrian, French, or German judgments examined above were based
on such a misconception of the prerequisite in question, national courts would
have to refrain from relying on these precedents.
138
This means that regardless
of whether their outcome was correct or not, these decisions cannot invalidate
the finding that the requirement of a manifest infringement must neither in the-
ory nor in practice be understood as an insurmountable obstacle.
5. Placing the judgments in a broader context
The problem, however, is that Kbler and Traghetti as the only existing author-
ities still leave many questions unanswered. For the area in question like
134. Kbler, cited supra note 2, paras. 3940.
135. Traghetti, cited supra note 3, paras. 36, 40, and in essence also 44.
136. Among the rare examples, the best known is probably Joined Cases C-267 & 268/91,
Criminal proceedings against Bernard Keck and Daniel Mithouard, [1993] ECR I-6097, para
16.
137. Kbler, cited supra note 2, para 56; Traghetti, cited supra note 3, para 43.
138. This also follows from Art. 10 EC which will be considered in section 5.3, infra.
other liability matters
139
needs to be developed on a case-by-case basis.
140

The relevant criterion has only started to gain in shape, and it is by no means
possible to say that it has already been explored in all its intricacies. This is
why Nassimpian justly emphasizes that it would be impossible to compre-
hend the true extent of the Courts reasoning in Kbler and Traghetti if these
judgments are treated in isolation from their wider contextual surroundings.
141

Instead, they have to be placed within a wider framework of other liability
decisions (5.1. and 5.2., infra) as well as principles of Community law (5.3.,
infra).
5.1. Liability of Community institutions
To begin with, further guidance can be obtained from judgments concerning
the liability of Community institutions.
As is well known, the non-contractual liability of Community organs is gov-
erned by Article 288(2) EC which provides that the Community shall, in
accordance with the general principles common to the laws of the Member
States, make good any damage caused by its institutions or by its servants in
the performance of their duties. Decisions based on this provision date back
further than Francovich and Brasserie.
142
In fact, one of the Courts arguments
for introducing the concept of Member State liability was based on Arti-
cle 288(2) EC. The ECJ maintained that this provision reflects the obligation
on public authorities to make good damage caused in the performance of their
duties.
143
A development is thus evident which leads from the area of Com-
munity to that of Member State liability.
In Brasserie as a case dealing with Member State liability, the ECJ drew a
parallel to Community liability decisions by referring to the so-called Schp-
penstedt test
144
which is worded as follows:
Where legislative action involving measures of economic policy is con-
cerned, the Community does not incur noncontractual liability for damage
suffered by individuals as a consequence of that action, by virtue of the
139. Mykolaitis, The other way around: Liability of Community institutions for losses
incurred due to misapplications of EC competition law (Schneider III), 14 International Trade
Law & Regulation (2008), 5260, at 54.
140. Seegers, op. cit. supra note 68, at 565. Somewhat critical Schulze, Gemeinschaftsrech-
tliche Staatshaftung: Das judikative Unrecht, 12 Zeitschrift fr Europisches Privatrecht
(2004), 10491067, at 1058.
142. See e.g. Case 4/69, Alfons Ltticke GmbH v. Commission, [1971] ECR 325.
143. Brasserie, cited supra note 4, para 29.
144. Ibid., paras. 45 et seq.; van Gerven, Lever and Larouche, Cases, Materials and Text on
National, Supranational and International Tort Law, (Hart Publishing, 2000), p. 892.
State liability 795
provision contained in Article 215, second paragraph, of the Treaty, unless
a sufficiently flagrant violation of a superior rule of law for the protection
of the individual has occurred.
145
The Court transposed this in Brasserie to the area of Member State liability,
and it is interesting to note how the Schppenstedt test was interpreted in that
judgment:[I]n a legislative context characterized by the exercise of a wide
discretion, which is essential for implementing a Community policy, the
Community cannot incur liability unless the institution concerned has mani-
festly and gravely disregarded the limits on the exercise of its powers
146
This has to be regarded in the light of the following statement which can be
found both in Brasserie and Bergaderm: As to the second condition, as
regards both Community liability under Article 215 of the Treaty and Member
State liability for breaches of Community law, the decisive test for finding that
a breach of Community law is sufficiently serious is whether the Member State
or the Community institution concerned manifestly and gravely disregarded
the limits on its discretion.
147
It is thus evident that the interpretation of the second Brasserie condition
traces its origins to that of the term sufficiently flagrant violation in Schp-
penstedt. It should also be recalled that the requirement of a manifest infringe-
ment in Kbler and Traghetti constitutes a strict interpretation of the second
Brasserie condition. Accordingly, it is possible to draw inferences from the
Courts case law concerning the term sufficiently flagrant violation to get a
better understanding of the requirement of a manifest infringement in Kbler
and Traghetti. Exigencies of space preclude a detailed account of how this case
law developed but several aspects can still be retained.
As the early case law following Schppenstedt did little to provide cla -
ri fication, the judgment in HNL
148
was the first to offer greater insights.
149

145. Case 5/71, Aktien-Zuckerfabrik Schppenstedt v. Council, [1971] ECR 975, para 11.
146. Brasserie, cited supra note 4, para 45 (emphasis added); van Gerven, Lever and
Larouche, op cit. supra note 144, at p. 892. That interpretation concurred with previous deci-
sions in the field of Community liability where the ECJ had likewise raised the question whether
the Community had manifestly and gravely disregarded the limits on the exercise of its pow-
ers; see e.g. Joined Cases 83/76, 94/76, 4/77, 15/77 & 40/77, Bayerische HNL Vermehrungsbe-
triebe GmbH & Co. KG and others v. Council and Commission, [1978] ECR 1209, para 6;
Joined Cases 116 & 124/77, G. R. Amylum NV and Tunnel Reneries Limited v. Council and
Commission, [1979] ECR 3497, para 13; Case 143/77, Koninklijke Scholten-Honig NV v. Coun-
cil and Commission, [1979] ECR 3583, para 10.
147. Brasserie, cited supra note 4, para 55; Bergaderm, cited supra note 19, para 43 (empha-
sis added).
148. Bayerische HNL, cited supra note 146.
149. Gilsdorf and von Niejahr in von der Groeben and Schwarze (Eds.), Kommentar zum
Vertrag ber die Europische Union und zur Grndung der Europischen Gemeinschaft, 6th ed.
(Nomos, 2003), Art. 288 EC para 55.
Concentrating on the effects of the breach, the Court came to the conclusion
that these were not grave enough.
150
It is often underlined that, from this point
onwards, the ECJ interpreted the requirement of a sufficiently flagrant viola-
tion very narrowly,
151
so that [t]he result was an obstacle only exception-
ally to be successfully overcome.
152
Hence the first steps in the field of
Community liability closely resembled the initial impression left by the Kbler
judgment in the area of State liability for miscarriages of justice.
Claimants in subsequent cases were equally unsuccessful as the ECJ contin-
ued to take a very restrictive approach when determining what constituted a
sufficiently flagrant violation.
153
Yet in Stahlwerke the Court decided to give
up an excessive standard of earlier judgments
154
as it held that conduct verging
on the arbitrary was no necessary condition or formulation for the Commu-
nity to be rendered liable.
155
For the purposes of the present article, this state-
ment must be viewed in the context of the Courts assertion in Bergaderm that
the conditions under which the State may incur liability for damage caused to
individuals by a breach of Community law cannot, in the absence of particular
justification, differ from those governing the liability of the Community in like
circumstances.
156
As for judicial misfeasance, Schulze maintains that the
prerequisite of a manifest infringement ought to be interpreted as requiring
arbitrariness.
157
However, there is no reason discernible why judges who breach
Community law should be privileged to such an extent. For it should be remem-
bered that in Traghetti the ECJ declared the Italian provision which limited
State liability to cases of intentional fault and serious misconduct as incompat-
ible with Community law.
158
If national courts were allowed to interpret the
requirement of a manifest infringement as stipulating arbitrariness, it would be
inexplicable why the Italian rule was not upheld.
To give another example, in Mulder the Court reprimanded the Community
legislature for failing completely, without invoking any higher public interest,
to take account of the specific situation of a clearly defined group of economic
150. Bayerische HNL, cited supra note 146, para 6; Craig and de Brca, op. cit. supra note
60, at p. 581.
152. De Visser, The concept of concurrent liability and its relationship with the principle of
effectiveness: A one-way ticket into oblivion?, 11 MJ (2004), 4770, at 64.
153. Martn Rodrguez, State liability for judicial acts in European Community law: The
conceptual weakness of the functional approach, 11 CJEL (2005), 605621, at 606.
154. Amylum, cited supra note 146, para 19; Scholten-Honig, cited supra note 146, para 16.
155. Case C-220/91 P, Commission v. Stahlwerke Peine-Salzgitter, [1993] ECR I-2393, para
51.
156. Bergaderm, cited supra note 19, para 41.
157. Schulze, op. cit. supra note 140, at 1060.
State liability 797
agents.
159
One could envisage transposing this to the judicature as well. For it
is not inconceivable that a national court, whether on purpose or not, fails to
consider rights which Community law bestows upon individuals.
160
The situa-
tion is not without difficulty when the court would have to raise the point of its
own motion, as this might in certain cases conflict with higher public interests
such as the principle of judicial passivity.
161
As there are conflicting authorities,
162

it would be necessary to refer this question for a preliminary ruling. However,
the threshold of manifest infringement is unquestionably cleared where a
claimant relies from the outset on a right which is based on Community law
and the national court still chooses to ignore this.
5.2. Liability of Member States
Further guidance can be found in State liability decisions dealing with breaches
of Community law by the executive or the legislature. For the ECJ referred to
these decisions both in Kbler
163
and in Traghetti,
164
which proves its intention
to relate the latter judgments to its previous case law. In fact, the Court expressly
held in Kbler that national courts must apply the criteria for establishing
Member State liability in accordance with the guidelines laid down by the
Court for the application of those criteria,
165
mentioning judgments such as
Brasserie
166
or British Telecommunications.
167
The decisions in Kbler and
Traghetti thus do not stand in regal isolation but rather form the keystone of
the whole system of Member State liability.
168
As was already underlined, in all these cases, the same conditions apply
for holding Member States liable which goes especially for the necessity of a
sufficiently serious breach of Community law. It is also clear that the latter
159. Joined Cases C-104/89 & 37/90, Mulder and Others v. Council and Commission, [1992]
ECR I-3061, para 16.
160. Judgment of 13 Oct. 2004, Verfassungsgerichtshof, cited supra note 113, at 15; Wissink,
op. cit. supra note 32, at 422.
161. Joined Cases C-430 & 431/93, Jeroen van Schijndel and Johannes Nicolaas Cornelis
van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten, [1995] ECR I-4705, paras. 11 and
21.
162. Case C-312/93, Peterbroeck, Van Campenhout & Cie SCS v. Belgium, [1995] ECR
I-4599, para 20; Case C-72/95, Aannemersbedrijf P.K. Kraaijeveld BV e.a. v. Gedeputeerde
Staten van Zuid-Holland, [1996] ECR I-5403, para 60.
163. See e.g. Kbler, cited supra note 2, para 56.
164. See e.g. Traghetti, cited supra note 3, para 45.
166. Brasserie, cited supra note 4.
167. British Telecommunications, cited supra note 19.
168. Kluth, Die Haftung der Mitgliedstaaten fr gemeinschaftsrechtswidrige hchstrichter-
liche Entscheidungen Schlussstein im System der gemeinschaftsrechtlichen Staatshaftung,
119 DVBL (2004), 393403, at 393; Steyger, op. cit. supra note 65, at 21.
requirement is defined both by the notion of manifest infringement used in
Kbler
169
and Traghetti
170
and by the stipulation in Brasserie
171
and Bergad-
erm
172
that the Member State or the Community institution concerned mani-
festly and gravely disregarded the limits on its discretion. All this warrants
the conclusion that the concept of manifest infringement was no complete nov-
elty of the judgments in Kbler and Traghetti.
However, this does not yet answer the question why the Court used a slightly
different formulation in the latter judgments. Presumably the answer to that
riddle lies in the fact that in Kbler and Traghetti the Court did not make a
distinction which can be found in other State liability decisions. These
differentiate between situations where the authority has only considerably
reduced, or even no discretion, and cases where it has broad discretion. Only
in the latter situations is it inevitable that the legislature or the executive has
manifestly and gravely disregarded the limits on the exercise of its powers,
173

whereas in the former a mere infringement of Community law may be suffi-
cient for holding a Member State liable.
174
It would have been conceivable to make the same distinction in cases of
judicial misfeasance, as in certain situations Community law leaves the national
courts little or even no leeway. However, it is probably owed to the specific
nature of the judicial function and to the legitimate requirements of legal
certainty
175
that the ECJ did not wish a mere breach of Community law to
automatically entail the obligation to pay damages in such cases. The judica-
ture is thus privileged insofar as in its case the breach has always to be mani-
fest, so that the degree of discretion has not the same function of a switch as
in the cases of the legislature and the executive. As a result, the Court could not
transpose the formulation manifestly and gravely disregarded the limits on its
discretion from Brasserie,
176
but had to shorten it to the new notion of
manifestly infringed the applicable law in Kbler.
177
Otherwise the differences between these two concepts are smaller than one
might think, as can best be illustrated by referring to the criteria which the ECJ
named in Brasserie:
172. Bergaderm, cited supra note 19, para 43.
173. Brasserie, cited supra note 4, paras. 45, 47, and 55; Case C-470/03, A.G.M.-COS.MET
Srl v. Suomen valtio, Tarmo Lehtinen, para 80.
174. Case C-446/04, Test Claimants in the FII Group Litigation v. Commissioners of Inland
Revenue, [2006] ECR I-11753, para 212.
176. Brasserie, cited supra note 4, para 55 (emphasis added).
State liability 799
The factors which the competent court may take into consideration include
the clarity and precision of the rule breached, the measure of discretion left by
that rule to the national or Community authorities, whether the infringement
and the damage caused was intentional or involuntary, whether any error of
law was excusable or inexcusable, the fact that the position taken by a Com-
munity institution may have contributed towards the omission, and the adop-
tion or retention of national measures or practices contrary to Community
law.
178
These factors are almost identical to those given in Kbler.
179
The latter
judgment added just one further criterion, namely the non-compliance by a
national court with its obligation under Article 234(3) EC.
180
This criterion still
causes considerable uncertainty as the judgments in Kbler and Traghetti were
far from being comprehensive on this point.
181
It is especially unclear which
effects the case law following CILFIT
182
will have,
183
as it sets certain limits on
the obligation under Article 234(3) EC.
184
Accordingly, further clarity about
this criterion can only be provided by future decisions of the ECJ. As for the
remaining criteria which are used both in Brasserie and in Kbler, it is possi-
ble to refer to other State liability decisions. In this respect it is necessary to
consider the specific nature of the judicial function and the legitimate
requirements of legal certainty.
185
Yet the Courts assertions in Traghetti prove
that this proviso must not be applied too rigidly as otherwise the principle laid
down in Kbler would be rendered meaningless.
186
With all this in mind, other
State liability decisions can serve as reference points in a similar way as the
judgments in Stahlwerke
187
and Mulder
188
for adding clarity to the notion of
manifest infringement.
189
181. Nassimpian, op. cit. supra note 68, at 826; Radermacher, op. cit. supra note 67, at 1417
and 1420; Wenners, op. cit. supra note 50, at 337.
182. CILFIT, cited supra note 108, paras. 1416.
183. Albors-Llorens, op. cit. supra note 75, at 272273; Anagnostaras, op. cit. supra note 10,
at 744745; Davis, Liability in damages for a breach of Community law: Some reflections on
the question of who to sue and the concept of the State, 31 EL Rev. (2006), 6980, at 77.
184. See in this respect Lenaerts, Arts, and Maselis, Procedural Law of the European Union,
2nd ed. (Sweet & Maxwell, 2006), pp. 7277.
186. Traghetti, cited supra note 3, paras. 36, 39, and 46.
187. Stahlwerke Peine-Salzgitter, cited supra note 155.
188. Mulder, cited supra note 159.
189. See e.g. Craig and de Brca, op. cit. supra note 60, at p. 338.
5.3. Principles of Community law
Other State liability decisions also form a good starting point for illustrating
how principles of Community law support the theory that the requirement of a
manifest infringement is no insurmountable obstacle. The Court held in
Brasserie with regard to the conditions named at the beginning of this article:
In order to determine those conditions, account should first be taken of the
principles inherent in the Community legal order which form the basis for
State liability, namely, first, the full effectiveness of Community rules and the
effective protection of the rights which they confer and, second, the obligation
to cooperate imposed on Member States by Article 5 of the Treaty
190
All these principles are intertwined
191
but for the sake of greater clarity they
will still be addressed individually, starting with the principle of effectiveness.
The latter is an overarching principle that pervades every instance of the
Courts lawmaking.
192
Due to its chameleon characteristics and multi-
layered roles
193
it cannot be described in general
194
but it is possible to iden-
tify the aspect
195
which is the most interesting for the purposes of this article.
According to the Courts standing case law, the domestic rules on liability
must not be such as in practice to make it impossible or excessively diffi-
cult to obtain reparation.
196
This reasoning is based on what Wenners calls
the raison dtre for the State liability doctrine: next to protecting the rights
of individuals, it is needed to ensure the effet utile of Community law.
197
This
dovetails with the assertion in Kbler and in Traghetti that the full effective-
ness of Community rules would be called in question if individuals could not
191. Temple Lang, The development by the Court of Justice of the duties of cooperation of
national authorities and Community institutions under Article 10 EC, 31 Fordham Interna-
tional Law Journal (2008), 14831532, at 1483, sees Art. 10 EC as the basis for the duty to give
effective protection; Nassimpian, op. cit. supra note 68, at 828 regards the principle of effective
judicial protection as a correlative notion to the principle of effectiveness.
192. Lenaerts and Gutman, Federal common law in the European Union: A comparative
perspective from the United States, 54 AJCL (2006), 1121, at 18.
193. Ross, Effectiveness in the European legal order(s): Beyond supremacy to constitu-
tional proportionality, 31 EL Rev. (2006), 476498, at 477.
194. De Visser, op. cit. supra note 152, at 48. See also Nebbia, Damages actions for the
infringement of EC competition law: Compensation or deterrence, 33 EL Rev. (2008), 2343,
at 28.
195. Case C-261/95, Rosalba Palmisani v. Istituto Nazionale della Previdenza Sociale
(INPS), [1997] ECR I-4025, para 27; Joined Cases C-397 & 410/98, Metallgesellschaft Ltd and
others v. Commissioners of Inland Revenue, [2001] ECR I-1727, para 85.
196. Brasserie, cited supra note 4, para 67. See also Joined Cases C-6 & 9/90, Andrea Fran-
covich and Danila Bonifaci and others v. Italy, [1991] ECR I-5357, para 43; more recently
A.G.M.-COS.MET, cited supra note 173, para 89.
197. Wenners, op. cit. supra note 50, at 337.
State liability 801
obtain reparation for breaches committed by national courts adjudicating at
last instance.
198
Wattel is therefore right when maintaining that the Kbler judgment is just
a dogmatic consequence, drawn from the earlier Francovich and Brasserie du
pcheur case law.
199
More to the point, Martn Rodrguez infers from Kbler
that the purpose of State liability seems to be to safeguard the effectiveness of
Community law in special serious breaches in a way that it would counteract
manifest infringements.
200
Accordingly, it comes as no surprise that the claim-
ant in Traghetti likewise relied on this principle, arguing that under Italian law
it was excessively difficult, indeed virtually impossible, to obtain
compensation.
201
The ECJ evidently reached the same conclusion as it empha-
sized repeatedly that the principle laid down in Kbler must not be rendered
meaningless.
202
In this respect, it should also be considered that a court adjudicating at last
instance is by definition the last judicial body before which individuals may
assert the rights conferred on them by Community law.
203
It would therefore
be irreconcilable with the principle of effectiveness if the requirement of a
manifest infringement were interpreted as an insurmountable obstacle.
Nothing else can follow from the principle of effective judicial protection
which some regard as a twin
204
and some as an element
205
of the principle of
effectiveness. As early as Van Gend & Loos, the ECJ had stressed the impor-
tance of the vigilance of individuals concerned to protect their rights for an
effective supervision of the Member States.
206
In more recent judgments it par-
ticularly emphasized the principle of effective judicial protection as a funda-
mental right.
207
In both respects the individual depends on national courts for
the enforcement of Community rights,
208
which is why Advocate General
Lger justly declared in his opinion in Kbler: I do not see how the Court
198. Kbler, cited supra note 2, para 33; Traghetti, cited supra note 3, para 31. See also
Obwexer, op. cit. supra note 61, at 726.
199. Wattel, op. cit. supra note 23, at 186187.
200. Martn Rodrguez, op. cit. supra note 153, at 613.
202. Ibid., paras. 36, 40, and in essence also 44.
203. Kbler, cited supra note 2, para 34. See also Bundesverfassungsgericht, cited supra
note 101, para 27; Ruffert, op. cit. supra note 6, at 482.
204. Anagnostaras, op. cit. supra note 10, at 738.
205. Nebbia, op. cit. supra note 194, at 30.
206. Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v.
Netherlands Inland Revenue Administration, [1963] ECR 1, at 13.
207. Case C-263/02 P, Commission v. Jgo-Qur, [2004] ECR I-3425, para 29; Craig and
de Brca, op. cit. supra note 60, at p. 305.
208. See in this respect Jgo-Qur, cited supra note 207, para 31; Lenaerts and Van Nuffel,
Constitutional Law of the European Union, 2nd ed. (Sweet & Maxwell, 2005), p. 677.
could rule otherwise than in favour of State liability for acts or omissions of a
supreme court. [T]he acknowledgement of such liability seems to be the
corollary of the mission conferred on the supreme courts in the direct,
immediate and effective protection of the rights which individuals derive from
Community law.
209
Both the principle of effectiveness
210
and the principle of effective judicial
protection
211
can be seen as based on Article 10 EC. This provision, whose
importance for the Courts case law has grown steadily,
212
imposes on Member
States the duty to take all appropriate measures to ensure fulfilment of their
obligations under the EC Treaty. This duty is binding on all the authorities of
Member States including, for matters within their jurisdiction, the courts.
213

In fact, national courts play a particularly important role as Community law is
primarily applied and enforced by them, not the Community institutions,
214
so
that individuals must claim before national courts the full enforcement and
protection of the rights which they derive from Community law.
215
With regard to the system of State liability, Article 10 EC became one of its
pillars
216
when the ECJ declared in Francovich that the provision imposes on
Member States the obligation to nullify the unlawful consequences of a breach
of Community law.
217
As for the possibility of obtaining damages for judicial
misfeasance, it should be noted that the ECJ has consistently held that national
courts must bear the responsibility for their judicial decisions.
218
Wenners
therefore has a point when arguing that [t]he most important function of
Kbler is giving courts of last instance in the Member States a strong incen-
tive to respect its duties under Article 10 EC.
219
Such an incentive would not
exist if the requirement of a manifest infringement were to prove to be an
209. Opinion of A.G. Lger in Kbler, cited supra note 26, para 52 (emphasis added).
210. Lenaerts and Gutman, op. cit. supra note 192, at 19.
212. For an account of the historic development, see Temple Lang, op. cit. supra note 191, at
14831532.
213. Joined Cases C-397-403/01, Pfeiffer and others v. Deutsches Rotes Kreuz, Kreisver-
band Waldshut eV, [2004] ECR I-8835, para 110.
214. Temple Lang, op. cit. supra note 191, at 1484.
215. Lenaerts, Arts and Maselis, op. cit supra note 184, at pp. 8485.
216. De Visser, op. cit. supra note 152, at 6162.
217. Francovich, cited supra note 196, para 36.
218. Case C-67/91, Direccin General de Defensa de la Competencia v. Asociacin Espa-
ola de Banca Privada and others, [1992] ECR I-4785, para 25; Case C-36/02, Omega Spielhal-
len- und Automatenaufstellungs-GmbH v. Oberbrgermeisterin der Bundesstadt Bonn, [2004]
ECR I-9609, para 19; Case C-119/05, Ministero dellIndustria, del Commercio e dellArtigianato
v. Lucchini SpA, formerly Lucchini Siderurgica SpA, [2007] ECR I-6199, para 43.
State liability 803
Yet the importance of this provision is not limited to the system of State lia-
bility. It also leads to a better understanding of the duties imposed on national
courts.
220
According to standing case law, national courts must ensure that the
rules of Community law take full effect and must protect the rights which
they confer on individuals.
221
This means that they have to apply Community
law in its entirety and set aside any provision of national law which may con-
flict with it.
222
One of the best examples in this respect is the Factortame case
where the ECJ held that an English court had to disregard a rule of national law
which prevented it from suspending, provisionally, an act of the U.K. Parlia-
ment.
223
National courts are also required, so far as possible, to interpret and
apply national procedural rules governing the exercise of rights of action in a
way that enables natural and legal persons to challenge before the courts the
legality of any decision or other national measure relative to the application to
them of a Community act of general application, by pleading the invalidity of
such an act.
224
In this respect, it should particularly be remembered that a
manifest infringement might be committed precisely in the exercise of such
work of interpretation.
225
These examples illustrate that Community law imposes far-reaching duties
on national courts. Yet only when they are fulfilled is it justified to speak of a
Community that is based on the rule of law
226
and to maintain that the Trea-
ties establish a complete system of legal remedies.
227
Accordingly, the possi-
bility of holding Member States liable for manifest infringements of Community
law committed by national courts adjudicating at last instance is necessary to
protect what the ECJ refers to in the context of Article 10 EC as the very basis
of the Community legal order.
228
220. Temple Lang, op. cit. supra note 191, at 14891490.
221. Case C-453/99, Courage Ltd v. Bernard Crehan, [2001] ECR I-6297, para 25; Lucchini,
cited supra note 218, para 61; Lenaerts and Van Nuffel, op. cit. supra note 208, at p. 671.
222. Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA, [1978]
ECR 629, para 21; Eilmansberger, The relationship between rights and remedies in EC law: In
search of the missing link, 41 CML Rev. (2004), 11991246, at 1208.
223. Factortame, cited supra note 4, paras. 1921.
224. Case C-50/00 P, Unin de Pequeos Agricultores v. Council, [2002] ECR I-6677, para
42; Jgo-Qur, cited supra note 208, para 32; Ross, op. cit. supra note 193, at 496.
226. Case 294/83, Parti cologiste Les Verts v. Parliament, [1986] ECR 1339, para 23.
227. Lenaerts and Van Nuffel, op. cit. supra note 208, at p. 16.
228. Case C-101/91, Commission v. Italy, [1993] ECR I-191, para 23.
6. Conclusion
In closing, the findings of this article can be summarized as follows:
In its judgments in Kbler and Traghetti, the ECJ held that State liability
for an infringement of Community law by a decision of a national court adju-
dicating at last instance can be incurred only in the exceptional case where the
court has manifestly infringed the applicable law.
229
This requirement is a
strict interpretation of the second Brasserie condition which stipulates that the
breach of Community law must be sufficiently serious.
230
In this function the
prerequisite constitutes a limitation. For the specific nature of the judicial
function and the legitimate requirements of legal certainty
231
must be taken
into account. Yet the requirement of a manifest infringement must neither in
theory nor in practice be understood as an insurmountable obstacle.
This has first and foremost been clarified by the ECJs finding in Traghetti
that the criteria applied by national courts may under no circumstances
impose requirements stricter than that of a manifest infringement.
232
It is also
evident from its repeated assertions that the principle laid down in Kbler must
not be rendered meaningless.
233
Further corroboration can be found in other
Community and State liability decisions of the Court which prove in particular
that the requirement of a manifest infringement does not require arbitrariness.
Finally, it is evident that any other outcome would be irreconcilable with the
principles of effectiveness and effective judicial protection as well as the obli-
gation to cooperate imposed on Member States by Article 10 EC. For all these
reasons the answer to the question raised in the title of this article has to be in
the negative.
Accordingly, both the ECJ and the national courts are now called upon to
prove by continuing along the lines of the Traghetti judgment that obtaining
damages for breaches of Community law by national courts is neither un -
thinkable
234
nor unfeasible.
229. Kbler, cited supra note 2, para 53 (emphasis added). See also Traghetti, cited supra
note 3, para 32.
231. Supra note 229.
233. Ibid., paras. 36, 40, and in essence also 44.
234. Toner, op. cit. supra note 1, at 165.

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State liability 773

Common Market Law Review 46: 773804, 2009.

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