An Analysis of the Relationship between National Courts and the Court of
Justice of the European Union – Shifting from Cooperation to Superiority
been amended by the decision in the Köbler where the CJEU once again
exercised its power to regulate the relations with national courts. In this
case Professor Köbler had an age addition rejected, on the basis that
he had not achieved the fifteen years of required service. However, Köbler believed he was eligible, as he had worked in another EU country
for a long period. He argued that this breached European Union law on
the basis of free movement of workers, but the Supreme Administrative
Court in Austria withdrew its application for preliminary reference and
interpreted the law to find against Mr Köbler. He brought his case before the Regional Civil Court in Austria, which asked the CJEU whether
State liability can also be incurred for judicial wrongs. The CJEU answered in the affirmative, as well as pointing out that such liability will
arise where the breach of EU law is sufficiently serious. An example the
CJEU gave was the failure to comply with the obligation to refer. The
Supreme Administrative Court, however, was not found to be in breach
in this instance. Taking into account the earlier observation that the Acte
Clair doctrine has been largely overused, it could be suggested that the
CJEU introduced the concept of State liability for judicial errors in order
to restrict national courts’ liberty to rely on the doctrine, as supported
by Groussot and Minssen (2007: 386). Komarek (2005: 15) argues that
by exposing the judiciary to scrutiny in this way, it gave national courts
more incentive to make references to the CJEU. These conclusions can
be drawn by examining the practical outcomes of the Köbler judgment.
To begin with, such liability might not be as novel as pronounced, because in international law the State is viewed as an entity, and can incur
liability no matter whether the legislature, executive or judiciary is in
breach. The principle of State liability had been introduced in Francovich and Bonifaci v Italy [1991]. Under this principle, a State will be liable
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