PASSIVITY OF AUTHORITIES AND/OR COURTS AND REMEDIES ... Toledano Cantero EJTN … · CJEU,...

PASSIVITY OF AUTHORITIES AND/OR COURTS AND REMEDIES AGAINST IT. LIABILITY OF JUDGES

(FOCUS ON EU-LAW CASE TRAGHETTI DEL MEDITERRANEO)

RAFAEL TOLEDANO CANTERO

JUDGE AT THE SUPREME COURT OF SPAIN

European Judicial Training NetworkBucharest, 15 May 2018

FROM FRANCOVICH TO KÖBLER

Ø Francovich and others versus Italy: 1991ØLiability in general

ØBrasserie du Pêcheur and Factortame: 1996ØLiability in breaches attributable to the Legislative

ØKöbler. 2003ØLiability in breaches attributable to the Judiciary

RAFAEL TOLEDANO CANTERO. JUDGE AT THE SUPREME COURT OF SPAIN 3

AFTER KÖBLER, TRAGHETTI DEL MEDITERRANEO AND FERREIRA DA SILVA

ØTraghetti del Mediterraneo: 2006

ØCommission versus Spain:12 November 2009

ØCommission versus Italy: 24 November 2011

ØFerreira da Silva: 9 September 2015


AFTER TRAGHETTI AND FERREIRA DA SILVA

ØDragoș Constantin Târșia versus Romania: 6 October 2015.

Ø Milena Tomásová: 28 July 2016.


THE FUNCTIONAL AND CONCEPTUAL APPROACH TO THE PRINCIPLE OF LIABILITY OF THE STATE FOR JUDICIAL INFRINGEMENT

ØEuropean Law is a legal system that conferred rights to the citizens.

ØScheme procedure.ØUbi ius ibi remedium (est) where there is a right, there is a remedy.

ØEU law is characterized by the absence of such a procedural andremedial organizationØPrinciple of effectiveness

ØPrinciple of procedural autonomy


7

TREATY OF EUROPEAN UNION (CONSOLIDATED VERSION 2016)

Art. 4.3 of the Treaty. «[P]ursuant to the principle of sincere cooperation, the Unionand the Member States shall, in full mutual respect, assist each other in carrying outtasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, toensure fulfilment of the obligations arising out of the Treaties or resulting from theacts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union's tasks and refrainfrom any measure which could jeopardize the attainment of the Union's objectives.»


CJEU 19 NOVEMBER. 1991 FRANCOVICH AND OTHERS VERSUS ITALIAN REPUBLIC (C- 6/90 AND C/9/90)

• «[32] Furthermore, it has been consistently held that the national courts whose task it is to apply the provisions of Community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals (see in particular the judgments in Case […] Simmenthal [1978] […] and Case C-[… Fac]tortame [1990] )( 31 Francovich)».


CJEU 19 NOVEMBER. 1991 FRANCOVICH AND OTHERS VERSUS ITALIAN REPUBLIC (C- 6/90 AND C/9/90)

• «[37]. It follows from all the foregoing that it is a principle of Community law that the Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible.»


THREE CONDITION OF LIABILITY STATE

«[41] Those [three] conditions are sufficient to give rise to a right on the part of individuals toobtain reparation, a right founded directly on Community law.»

-The conditions are ( see par. 40 Francovich).

i. The first condition is that the result prescribed by the EU law should entail the grant ofrights to individuals.

ii. The second condition is that it should be possible to identify the content of those rights onthe basis of the provisions of the EU law.

iii. The third condition is the existence of a causal link between the breach of the State' sobligation and the loss and damage suffered by the injured parties.


THE CONDITION OF SUFICCIENT SERIOUS BREACHAND THE SPECIFIC NATURE OF THE JUDICIAL FUNCTIONCJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01)

« [52]. State liability for loss or damage caused by a decision of a national court adjudicatingat last instance which infringes a rule of Community law is governed by the same conditions.

[53]. With regard more particularly to the second of those conditions and its application with aview to establishing possible State liability owing to a decision of a national court adjudicatingat last instance, regard must be had to the specific nature of the judicial function and to thelegitimate requirements of legal certainty, as the Member States which submitted observationsin this case have also contended. State liability for an infringement of Community law by adecision of a national court adjudicating at last instance can be incurred only in the exceptionalcase where the court has manifestly infringed the applicable law.»


THE EVOLUTION IN THE LEGAL BASIS OF THE PRINCIPLETHE PRINCIPLES COMMON TO THE MEMBER STATESCJEU BRASSERIE, 5 MARCH 1996 ( C-46/93 AND C-48/93)

• In Brasserie, the CJEU already pointed out, although basing it on the conclusions of Advocate General, that the principle of State liability was applicable to the infringement by the judiciary:

• «34. As the Advocate General points out in paragraph 38 of his Opinion, in international law a State whose liability for breach of an international commitment is in issue will be viewed as a single entity, irrespective of whether the breach which gave rise to the damage is attributable to the legislature, the judiciary or the executive..»


IS THE LIABILITY FOR JUDICIAL INFRINGEMENT A COMMON PRINCIPLECJEU BRASSERIE, 5 MARCH 1996 ( C-46/93 AND C-48/93)

Ø Brasserie /Factortame. The CJEU referred the basis of liability state to the“principles common to the Member States”:Ø« 29. The principle of the non-contractual liability of the Community expressly laid down

in Article 215 of the Treaty is simply an expression of the general principle familiar tothe legal systems of the Member States that an unlawful act or omission gives rise to anobligation to make good the damage caused. That provision also reflects the obligationon public authorities to make good damage caused in the performance of their duties.»

Ø« […]30. In any event, in many national legal systems the essentials of the legal rulesgoverning State liability have been developed by the courts.»


LIABILITY STATE FOR JUDICIAL BREACHES. THE IMPENDIMENTS IN THE VIEW OF STATESCJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01)

ØBackground in Köbler:ØThe lack of preliminary ruling

ØThe CILFIT doctrine

ØThe CJEU declared explicitly that the proceedings of the Austrian court(Verwaltungsgerichtshof) committed a sufficiently serious breach but, however, it did notconstitute a manifest and serious infringement of Community law, because the question atstake did not have an obvious answer in Community law, nor did it find an answer in thecase-law of the Court of Justice.


LIABILITY STATE FOR JUDICIAL BREACHES. THE IMPENDIMENTS IN THE VIEW OF STATESCJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01)

(i) the principle of legal certainty and, more specifically, the principle of res judicata.

(ii) the independence and authority of the judiciary and

(iii) the absence of a court competent to determine disputes relating to State liability for such decisions


RES IUDICATA AND LIABILITYCJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01)

The principle of legal certainty and, more specifically, the principle of res judicata.

The CJEU stated in Köbler:

« […] the importance of the principle of res judicata cannot be disputed […]. In orderto ensure both stability of the law and legal relations and the sound administration ofjustice, it is important that judicial decisions which have become definitive after allrights of appeal have been exhausted or after expiry of the time-limits provided for inthat connection can no longer be called in question.» [ Köbler, 38].


CJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01)

Liability for judicial infringement and res judicata

(i) Proceedings seeking to render the State liable do not have the same purpose

(ii) These proceedings do not necessarily involve the same parties as the proceedingsresulting in the decision which has acquired the status of res judicata

(iii) The applicant in an action to establish the liability of the State will, if successful,secure an order against it for reparation of the damage incurred […] but notnecessarily a declaration invalidating the status of res judicata of the judicialdecision which was responsible for the damage.


CJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01) [42]

• As to the independence of the judiciary, the principle of liability in question concerns not the personal liability of the judge but that of the State.

• The possibility that under certain conditions the State may be rendered liable for judicial decisions contrary to Community law does not appear to entail any particular risk that the independence of a court adjudicating at last instance will be called in question.


PROCEDURAL AUTONOMY, PRINCIPLES OF EQUIVALENCE AND EFFECTIVENESSCJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01) [58]

• [58.] Subject to the existence of a right to obtain reparation which is founded directly on Community law where the conditions mentioned above are met, it is on the basis of rules of national law on liability that the State must make reparation for the consequences of the loss and damage caused, with the proviso that the conditions for reparation of loss and damage laid down by the national legislation must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it in practice impossible or excessively difficult to obtain reparation ( Francovich and Others , paragraphs 41 to 43 and Norbrook Laboratories , paragraph 111).


PROCEDURAL AUTONOMY AND PRINCIPLE OF EQUIVALENCECJE, DRAGOȘ CONSTANTIN TÂRȘIA (C-69/14) 6. 10. 2015

• Scope of the principle of equivalence: its objective is not the extension of the most protective rulebut the absence of discrimination between national and EU law similar situations

• ECJ, Dragoș Constantin Târșia, C-69/14, 6. 10. 2015 [35] It follows that the principle ofequivalence does not preclude a situation where there is no possibility for a national court torevise a final decision of a court or tribunal made in the course of civil proceedings when thatdecision is found to be incompatible with an interpretation of EU law upheld by the Court after thedate on which that decision became final, even though such a possibility does exist as regards finaldecisions of a court or tribunal incompatible with EU law made in the course of administrativeproceedings.

• But what if the case were wrongly allocated at civil jurisdiction, despite its administrative nature ?


LIABILITY OF JUDGES AND PRELIMINARY RULING

• The preliminary reference procedure is considered by the ECJ a case of manifest infringement, and liability

• C-225/01, Köbler, 30.9.2003

• C-173/03, Traghetti del Mediterraneo, 13.6.2006

• C-154/08, Commission v/ Spain

• C-379/10, Commission v/ Italy, 24.11.2011

• C-160/14, Ferreira da Silva, 9.09.2015


CJEU, TRAGHETTI DEL MEDITERRANEO13 JUNE 2006 ( C-173/03)

In Traghetti del Mediterraneo, the CJE reaffirms its case-law on the State liability of Köbler, and adds:

«32. It is true that, having regard to the specific nature of the judicial function and to the legitimate requirements of legal certainty, State liability in such a case is not unlimited. As the Court has held, State liability can be incurred only in the exceptional case where the national court adjudicating at last instance has manifestly infringed the applicable law [...]



• 44. Accordingly, although it remains possible for national law to define the criteria relating to the nature or degree of the infringement which must be met before State liability can be incurred for an infringement of Community law attributable to a national court adjudicating at last instance, under no circumstances may such criteria impose requirements stricter than that of a manifest infringement of the applicable law, as set out in paragraphs 53 to 56 of the Köbler judgment.



«32 [...] 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 characterize the situation put before it, which 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 institution

[...] [the] non-compliance by the court in question with its obligation to make a efference for a preliminary ruling under the third paragraph of Article 234 EC ( Köbler , paragraphs 53 to 55).»RAFAEL TOLEDANO CANTERO. JUDGE AT THE SUPREME COURT OF SPAIN 25

CJEU, COMMISION VERSUS ITALIA(24 NOVEMBER 2011, C-379/10)

ØThe Commission raise a request to Italy on 10 February 2009 questioning thecompatibility of the Italian Law ( Legge Vasalli)

ØNeither this letter, nor the subsequent letter of 22 March 2010, had a response.

ØJudgement of 24 November 2011, CJEU C-379/10 (a non-compliance proceeding)precludes excluding the liability for judicial infringement:Ø when that infringement is derived from the interpretation of the legal rules or of the

assessment of facts or evidence, orØ limiting that liability to cases of intentional fault or serious misconduct


CJEU, FERREIRA DA SILVA VERSUS PORTUGAL(9 SEPTEMBER 2015, C160/14)

• The background in this case was the lack of a reference for a preliminary ruling in Article 267 TFEU in relation to a case concerning the concept of "transfer of a business", in the light of Directive 2001/23, in regards to the sequence in the activity of charter flights operated by the company Air Atlantis (AIA), by the TAP company.

• In the Ferreira da Silva case, the CJEU faced again the question of judicial State liability, and the role of a prerequisite for a judgement about these kind of liability such as the review of the case.



• Again the lack of a reference for a preliminary ruling

• Background: Directive 2001/23, in regards to the sequence in the activity of charter flights operated by the company Air Atlantis (AIA), by the TAP company.

• Judicial State liability and the role of a prerequisite such as the review of the case.



• ECJ stated that European Law precludes a national legislation that requires, as a prerequisite, the review of the unlawful decision issued by that court, when in practice such revocation is not possible.

• It reiterates that the object of the lawsuit of liability and the final judgment in which res iudicata rests are different, and points out that the principle of State liability inherent in the legal order of the Union requires such reparation, but it does not impose a review of the judicial decision that caused the damage, as it had already stated in the Köbler judgment, and will subsequently reiterate later, in the judgment of 6 of October 2015 (Grand Chamber) in Case C -69 / 14 , Dragoș Constantin Târșia .


STATE LIABILITY FOR JUDICIAL INFRINGEMENT.LEGISLATIVE RESTRICTION IN NATIONAL LAW (I)

• The principle of procedural autonomy and effectiveness

• Situation in the different Member States

• According to the comparative research conducted in this field, (1) (2) thesituation, with regard legislative restriction and jurisprudence in the differentmember states is quite diverse.

(1) Zsófia Varga “ Why is the Köbler principle not applied in practice ? “ Maastrich Journal 6, 2016, (pp.989 to 991)

(2) Kahtrin Marie Scherr “Comparative aspects of the applications of the principle of State Liability forjudicial breaches” ( ERA Forum (2012) ,(pp. 566 to 585) DOI 10.1007/s12027-011-0242-8


STATE LIABILITY FOR JUDICIAL INFRINGEMENT.LEGISLATIVE RESTRICTION IN NATIONAL LAW (II)

Countries that exclude the possibility of liability for judicial activity in purely national cases:• Bulgaria

• Greece

• Ireland

• The Netherlands

• The UK


STATE LIABILITY FOR JUDICIAL INFRINGEMENT.LEGISLATIVE RESTRICTION IN NATIONAL LAW (III)

The importance of res judicata and the unquestionable nature of final judgment is a major impediment in:• Croatia

• France

• Hungary

• Italy

• Luxembourg


STATE LIABILITY FOR JUDICIAL INFRINGEMENT.LEGISLATIVE RESTRICTION IN NATIONAL LAW (IV)

ØPrior reversal of the contested judgment is a prerequisite for liability is required in:

• Belgium

• The Czech Republic

• Cyprus

• Finland

• Portugal

• Slovakia

• Sweden (as far as the supreme court´s liability is concerned)RAFAEL TOLEDANO CANTERO. JUDGE AT THE SUPREME COURT OF SPAIN 33

STATE LIABILITY FOR JUDICIAL INFRINGEMENT.LEGISLATIVE RESTRICTION IN NATIONAL LAW (V)

ØThe declaration of unlawfulness of the final judgment is required before asking for damages from the competent authority is required in:

• Lithuania

• Poland

• Spain


STATE LIABILITY FOR JUDICIAL INFRINGEMENT.LEGISLATIVE RESTRICTION IN NATIONAL LAW (VI)

ØThe establishment of criminal responsibility of the judge seems to be a precondition for state liability in:

• Germany

• Estonia

• Romania

ØThe liability of the highest national court is excluded in Austria ( par. 2 of the Public Liability Act )


STATE LIABILITY FOR JUDICIAL INFRINGEMENT.LEGISLATIVE RESTRICTION IN NATIONAL LAW (VII)

ØLegislative amendments has been introduced at least in: ØItaly: 2015, Amendment in the Legge Vasalli, art. 2 of the legge nº 107

on the compensation for damage caused in the exercise of judicial functions and the civil liability of judges ( in force since 19 March 2015)

ØPoland: unlawfulness based on a flagrant breaches of EU law.

ØSpain: Ley 40/2015 ( in force since October 2016)


THE RECOGNITION OF THE PRINCIPLE OF LIABILITY BY NATIONAL COURTS

ØAcknowledgement of the principle of liability for judicial breaches of EU law in the majority of the supreme courts of the member states:ØAustria, Belgium, Bulgaria, Finland, France, Germany, Italy, Lithuania, The Netherlands,

Spain, Poland, Portugal, Sweden and the UK, Denmark and Latvia.

ØDuplication of the liability regimes: Austria, Bulgaria, Finland, France, Germany, Lithuania, The Netherlands, Portugal, and the UK.

ØBelgium has extended the regimen of liability under EU law infringement to the infraction of national law, by a constitutional judgment.

ØA preliminary ruling about the situation in Hungary is a case in processRAFAEL TOLEDANO CANTERO. JUDGE AT THE SUPREME COURT OF SPAIN 37

LIABILITY CAN NOT ALTER THE PRINCIPLE OF PRIMACYCASE C-441/14, DANSK INDUSTRI (DI ), 19. 04.2016

• « EU law is to be interpreted as meaning that a national court adjudicating in a dispute between private persons falling within the scope of Directive 2000/78 is required, when applying provisions of national law, to interpret those provisions in such a way that they may be applied in a manner that is consistent with the directive or, if such an interpretation is not possible, to disapply, where necessary, any provision of national law that is contrary to the general principle prohibiting discrimination on grounds of age. Neither the principles of legal certainty and the protection of legitimate expectations nor the fact that it is possible for the private person who considers that he has been wronged by the application of a provision of national law that is at odds with EU law to bring proceedings to establish the liability of the Member State concerned for breach of EU law can alter that obligation.»


LIABILITY OF JUDGES AND PRELIMINARY RULING

• CJEU 9 September 2015, T. A. van Dijk, C-72/14, C-197/14 The third paragraph of Article 267 TFEU must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law, such as the referring court, is not required to make a reference to the Court of Justice of the European Union on the sole ground that a lower national court, in a case similar to the one before it and involving the same legal issue, has referred a question to the Court for a preliminary ruling; nor is it required to wait until an answer to that question has been given.


LIABILITY OF JUDGES AND OTHER REMEDIES

• The preliminary reference procedure is considered by the European Court of Human Rights as an element of the fair trial obligation (Art 6 of the Convention). ECtHR, Dhahbi v Italy, 8.04.2014, Schipani v Italy, 21.07.2015• Possibility of constitutional complaint, right to a lawful judge or effective

judicial protection.• Review of the case when it is possible with regard a national law

infringement.


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