The Effectiveness of the Köbler Liability in National Courts

Zsófia Varga is Head of Knowledge Management at Loyens & Loeff Avocats, Luxembourg.

Summary 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