State liability for breaches of Community law by national courts: Is the requirement of a manifest infringement of the applicable law an insurmountable obstacle?

Abstract

This paper deals with the requirement of a manifest infringement of the applicable law which the European Court of Justice has named in its Köbler and Traghetti del Mediterraneo judgments as a necessary prerequisite for holding Member States liable for breaches of Community law attributable to national courts adjudicating at last instance. The requirement is first placed within the system of conditions set up in Brasserie du Pêcheur. It is shown that it constitutes no additional condition, but a strict interpretation of the second Brasserie condition which stipulates that the breach must be sufficiently serious. An analysis of the relevant statements made in Köbler and Traghetti reveals that the prerequi-site constitutes a limitation as the specific nature of the judicial function and the legitimate requirements of legal certainty must be taken into account. Yet at the same time it follows notably from Traghetti that the requirement of a manifest infringement must not be under-stood as an insurmountable obstacle. This finding is corroborated by placing the aforementioned judgments in a broader context of Community and State liability decisions as well as principles of Community law which form the basis for State liability.