4 December 2015Dina Grego

European Law School, Maastricht University

Violation of the Acte Clair Doctrine: can EU citizens claim damages if the

Supreme Court refuses to refer Preliminary Questions to the Court of

Justice?

Abstract

The aim of this paper is to describe the preliminary reference

procedure and the remedies available for the breach of this

procedure when committed by Supreme Courts of Member

States. Firstly, the procedure itself is described as well as the

justifications for the non-referral with a specific focus on the

Acte Clair doctrine. The principle of State liability as

developed in Francovich and Köbler cases is discussed next.

The availability of remedies is analysed and an alternative

option of claiming damages before the European Court of

Human Rights is presented. Rules and principles are then

applied to a recent case of the Court of Justice of the European

Union, João Filipe Ferreira da Silva e Brito and Others v

Estado português.

The conclusion reached in this paper is that the burden of proof

which individuals bear when claiming damages from the state

is extremely high an thus their theoretical right to damages

becomes almost unattainable in practice, at least in the majority

of cases.

Keywords: preliminary reference procedure, acte clair, state

liability, Köbler case, damages

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Table of Contents

1. Introduction..............................................................................................................1

2.1 Preliminary Reference Procedure under Article 267 TFEU...................................3

2.2 Acte Clair Doctrine................................................................................................7

2.3 State Liability.......................................................................................................11

3. Case Study: Ferreira da Silva.................................................................................19

4. Concluding Remarks..............................................................................................22

5. Bibliography...........................................................................................................25

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1. Introduction

12 years have passed since the Court of Justice gave its

judgement in the famous case of Gerhard Köbler v. Austria, 1

but state liability for judicial errors attributable to courts is

nevertheless a controversial topic. Simply by reading the

proceedings, one could have anticipated this development: next

to the Austrian Government, four more Member States

submitted their observations to the Court, some of them

invoking a few of the fundamental principles of law in order to

prevent the Court from establishing liability for judicial errors.2

The Court however dismissed the observations stating that none

of the fundamental principles of law are infringed by this

development.

The theory behind the concept of state liability for judicial

errors attributable to courts is fairly clear, even though it

encompasses a few very vague and uncertain terms which will

be described in this paper. The practical reality of the doctrine,

however, is far from being well-defined. Although the principle

of state liability exists and is recognised and reiterated by the

Court time and again, it is very hard for individuals to benefit

from it, due to the high threshold of a ‘sufficiently serious

breach’ that needs to be proven in order to hold the state liable.

1 Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239 . Hereinafter also referred to as 'the Köbler case' or 'Köbler'.2 Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239 para. 16-29.

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This paper will firstly seek to describe the preliminary

reference procedure outlined in article 267 TFEU. The

importance of the procedure will be highlighted thereafter. Its

importance is crucial for understanding the rationale behind the

punishment for the non-referral of the preliminary reference.

It will next deal with one of the exceptions to the general

obligation to refer: the Acte Clair doctrine. The case law

dealing with the doctrine will be presented, followed by a short

description of the purpose of the exception and its practical

value.

The focus will then shift to the principle of State Liability.

The portrayal will start with its conception in the case law of

the Court of Justice; next, the conditions for imposition of state

liability will be considered; followed by the analyses of the

Köbler case and the system of liability for the judicial errors as

well as the problems the individuals are facing in obtaining

damages. Alternative source of damages will be considered in

the case recently brought before the European Court of Human

Rights.

Finally, in the last chapter of the paper the aforementioned

rules and principles will be applied to the case 160/14, João

Filipe Ferreira da Silva e Brito and Others v Estado

português.3

3 Case 160/14 João Filipe Ferreira da Silva e Brito and Others v Estado português [2015] not yet published. Hereinafter also referred to as 'the Ferreira da Silva case' or 'Ferreira da Silva'.

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2.1 Preliminary Reference Procedure under Article 267 TFEU

Article 19(1) TFEU provides the Court of Justice of the

European Union 4 with the task of ensuring that the law is

observed in the interpretation and the application of the

Treaties.5 In order to be able to effectively pursue this duty, the

Treaty creators included article 267 TFEU in the treaty system.6

The purpose of this article is to reserve the jurisdiction to give

preliminary rulings for the CJEU. There are essentially two

categories that need to be distinguished in this procedure. The

first concerns preliminary rulings aimed at the interpretation of

the Treaties and other Union acts, while the second aims at

establishing whether a particular Union act is legally valid.

Although not expressly mentioned in the Treaty, the

importance of the distinction is visible in the Recommendations

to national courts and tribunals on initiation of preliminary

ruling procedure.7 While the courts and tribunals have some

margin of discretion on whether to refer the preliminary

question in cases where the interpretation of the Union law is at

stake, 8 this is not the case in the procedure for the

determination of validity. In that case, all national courts or

tribunals are under an obligation to submit the preliminary

4 Hereinafter also referred to as ‘the CJEU’ or ‘the Court’.5 Art. 19(1) TFEU.6 Art. 267 TFEU.7 Recommendations to national courts and tribunals on initiation of preliminary ruling procedure [OJ 2012 C338/01].8 Arts. 11, 12 Recommendations to national courts and tribunals on initiation of preliminary ruling procedure [OJ 2012 C338/01].

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ruling to the Court.9 This distinction is particularly important

for this paper: since the Acte Clair doctrine cannot be applied

in cases where the validity is being questioned, the focus will

only be on the interpretation procedure. The emphasis will

moreover be on courts/tribunals against whose judgements no

judicial remedy under national law is available, since the topic

of this paper is concerned with Supreme Courts’ violations.

The procedure of referral is simple: in the course of national

proceedings a party to the case may request the Court to refer a

preliminary question to the CJEU or a national court might

refer it out of its own motion. The fact that a party has

requested a preliminary reference does not bind the national

Court to bring the matter before the CJEU.10 Exceptions to the

obligation will be considered below. The rationale behind this

procedure is to assist the national courts with the interpretation

of EU law, since it is the national judiciary applying it in

practice.

As previously mentioned, the Court of Justice has the task of

ensuring the uniform application of EU law throughout the

Union.11 This is not an easy task, taking into consideration that

EU legislation is drafted in 24 different languages, keeping in

mind that courts across the Union have varying experience with

9 Art. 16 Recommendations to national courts and tribunals on initiation of preliminary ruling procedure [OJ 2012 C338/01].10 P. Craig & G. de Burca, EU Law. Text, Cases and Materials, (Oxford University Press, 2015) p. 471.11 Turičnik, 'Preliminary Reference Procedure – The Right, The Duty and Exceptions', 1 InterEuLawEast 1 (2014), p. 2.

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the application of EU law (and also diverging ideas on how it

should be applied) and observing that the CJEU created its own

legal concepts with autonomous meanings which may have

different meanings from similar concepts in national law

systems of the Member States.12

With a growing number of Member States, whose legal

cultures are not homogenous, it is increasingly important to

ensure that EU law is being applied consistently and uniformly

in order to prevent the Union from breaking apart into different

legal ‘sections’. This is why article 267 TFEU is of such

immense value for the legal system of the Union.

By not referring the preliminary rulings in cases where the

Treaty requires the national courts to do so, the courts are not

only breaching their obligation under the Treaty, but they are

also threatening legal certainty and uniform application of EU

law.

Furthermore, many important EU principles have been

developed through this procedure, such as the doctrine of direct

effect in the legendary case of Van Gend en Loos.13 Failing to

bring such an important question before the CJEU also slows

down the evolution of Union law.

12 Case 77/83 Srl CILFIT and others and Lanificio di Gavardo SpA v Ministero della sanità [1984] ECR 01257 para. 18-20.13 Case 32/84 Van Gend & Loos NV v Inspecteur der Invoerrechten en Accijnzen, Enschede [1985] ECR 00779.

8

Considering the significance of the procedure, it is not

difficult to understand the rationale for punishing a breach of

267 TFEU.

9

2.2 Acte Clair Doctrine

After reflecting on the obligation to bring the matter before the

Court, exceptions to this general rule must also be observed.

In the CILFIT case, the Court identified three situations in

which the referral may be seen as unnecessary: (i) the question

is irrelevant or (ii) the question raised before the national court

has already been interpreted by the CJEU (Acte Éclairé

doctrine) or (iii) the correct application is ‘so obvious as to

leave no scope for any reasonable doubt as to the manner in

which the question raised is to be resolved’ (Acte Clair

doctrine). 14 Only the third situation will be considered in this

work.

In the same paragraph in which the Court establishes the

Acte Clair doctrine, it also points out how difficult it is for a

national court to find the correct interpretation of what is

‘obvious’: national courts must be convinced that the correct

interpretation is equally obvious to the courts of other Member

States and the CJEU. This means that judges of the Supreme

Courts must take into account the characteristic features of the

Union law; including the fact that legislation is drafted in 24

languages, which could lead to differing interpretations of the

same provision.15 Moreover, next to different languages, one

14 Case 77/83 Srl CILFIT and others and Lanificio di Gavardo SpA v Ministero della sanità [1984] ECR 01257.15 Ibid para. 18.

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must observe that the EU has its own, separate legal order, with

its own legal concepts whose meanings do not necessarily

perfectly overlap with national legal concepts. 16 Lastly, next to

the text of the provisions, courts must also take into account the

objectives which are pursued by the legislation whose

interpretation is questioned.17

This task is almost impossible to complete.

Firstly, as soon as there is disagreement between the judges

on the same bench, it is hard to conclude that the interpretation

is ‘obvious’. It will be even harder to reach that conclusion if

the lower courts also had diverging opinions on the correct

application. While the disagreement between lower courts and

the last instance court as such will not preclude the latter from

finding that the interpretation is clear, 18 it is certainly an

indicator that the same disagreement is likely to happen on a

Union level as well.19

Furthermore, the majority of national judges do not speak

more than two or three languages of the Union and do not have

big administrative and translation offices which would be

charged with the chore of comparing different language

16 Ibid para. 19.17 Case 77/83 Srl CILFIT and others and Lanificio di Gavardo SpA v Ministero della sanità [1984] ECR 01257 para. 20.18 Case 160/14 João Filipe Ferreira da Silva e Brito and Others v Estado português [2015] para. 41.19 Turičnik, 'Preliminary Reference Procedure – The Right, The Duty and Exceptions', 1 InterEuLawEast 1 (2014), p. 9-10.

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versions. The CJEU is in a significantly better position to

execute those tasks.20

Lastly, the Court of Justice is not bound by its previous case

law and tends to develop its case law in a very ‘dynamic

fashion’, making it even harder for national courts to feel

confident about the correct interpretation. It must be

highlighted here that in cases where Acte Clair is considered,

the CJEU has not yet given their ruling on the correct

interpretation. Therefore, national courts are practically

predicting what the Court might consider as the ‘right’ answer

some time in the future.

Complying with all the guidelines the Court set out for the

correct application of Acte Clair would render this doctrine

completely unusable. In practice few courts could reach a

decision by respecting all of the conditions described above. It

would be less burdensome for the courts to simply refer the

question to the CJEU than to decide on the correct

interpretation on their own initiative.

However, in reality the doctrine is widely applied by

national courts. Instead of following the criteria strictly,

national judges are taking a pragmatic approach. The situation

of parties’ to the proceeding is taken into account and a number

of factors are relevant in their decision on whether to refer the

preliminary ruling to the CJEU. Factors such as the costs

20 Turičnik, 'Preliminary Reference Procedure – The Right, The Duty and Exceptions', 1 InterEuLawEast 1 (2014), p. 10.

12

associated with the making of a reference, the issue of delay for

the national proceedings and the importance of the case to the

parties are taken into account.21

By doing this national courts are often breaching EU law

which requires them to bring the matter before the CJEU, but

they are also risking much more, as it was explained above. It is

thus important for individuals who are affected by the possibly

incorrect application of EU law to receive some kind of

remedy.

21 Turičnik, 'Preliminary Reference Procedure – The Right, The Duty and Exceptions', 1 InterEuLawEast 1 (2014), p. 12.

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2.3 State Liability

2.3.1. General Conditions for State LiabilityThe Court proclaimed in the Francovich case that‘[I]t 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’.22

Following from this, the Court established that the

effectiveness of EU laws would be impaired and the protection

would be weakened if no remedy was available for the

individuals whose rights were infringed. That lead the Court to

conclude that a State must be liable for the damage it caused to

individuals.23

The well-known Francovich judgement was later developed

in the subsequent case law. The conditions for state liability

were established in the case of Brasserie du Pêcheur SA:

In such circumstances, Community law confers a right

to reparation where three conditions are met: the rule of

law must be intended to confer rights on individuals;

the breach must be sufficiently serious; and there must

be a direct causal link between the breach of the

22 Joined cases 6/90 and 9/90 Francovich Andrea Francovich and Danila Bonifaci and others v Italian Republic [1991] ECR I-05357 para. 32.23 Joined cases 6/90 and 9/90 Francovich Andrea Francovich and Danila Bonifaci and others v Italian Republic [1991] ECR I-05357 para. 33-35.

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obligation […] and the damage sustained by the injured

parties. 24

The Court described the term of ‘sufficiently serious breach’

as ‘manifestly and gravely disregarding the limits of

discretion’. A number of factors need to be taken into account

in determining whether a breach is sufficiently serious, such as

clarity and precision of the rule breached, measure of discretion

conferred on the Member States, whether the breach was

intentional, whether it was excusable, position of the Union

with regards to the rule and/or the breach and past practices of

the State.25

The Court also made it clear that there is no place for the

concept of fault, which is usually found in national tort law

systems. Involving the requirement of fault in the analyses of

state liability for a breach of EU law by national courts would

be seen as a clear violation of the Court’s principle of state

liability.26

As soon as the three criteria are met, individuals have a right

to obtain reparation.27 It should be stressed that these criteria

are applied and, consequently, damages are awarded by

national courts – not the CJEU.28 24 Joined cases 46/93 and 48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-01029 para. 51.25 Joined cases 46/93 and 48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-01029 para. 56.26 Ibid para. 76, 79-80.27 Ibid para. 66.28 Joined cases 6/90 and 9/90 Francovich Andrea Francovich and Danila Bonifaci and others v Italian Republic [1991] ECR I-05357 para. 42.

15

It was later made clear by the CJEU that a state might be

liable regardless of which of its organs is responsible for the

breach, thus including the judiciary. 29 This finding was not met

without opposition from the Member States, which was

especially visible during the proceedings in the Köbler case.30

29 Davis, 'Liabillity in Damages for a Breach of Community Law: Some Reflection on the Question of Who to Sue and the Concept of „the State' 31 European Law Review (2006) p. 69.30 Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239 para. 20 et seq.

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2.3.2. State Liability for Judicial Errors Attributable to CourtsAlready in cases preceding Köbler, the Court hinted that the

judiciary might be liable for its breaches of EU law.31 The

express confirmation of this finally arose in the Köbler case.

The Court reiterated the importance of ensuring the full

effectiveness of the rules of EU law and the protection of

individuals’ rights, repeating that the importance would be

diminished and the protection weakened if no remedy for

judicial breaches was available to the individuals affected by

the breaches.32 It stressed that it is particularly important to

provide a remedy in case the breach was made by a court of last

instance, since decisions of those courts are final according to

the principle of res judicata, and the decision cannot be

corrected. The only way to provide some sort of remedy for the

individual is indeed through the procedure of establishing state

liability.33

Member States themselves designate the court which is

competent to hear cases regarding state liability, but the courts

are required to apply the conditions that have been stated by the

CJEU in the Brasserie du Pêcheur, mentioned above. They are

not allowed to apply national rules which completely exclude

liability for judicial breaches or which limit the liability to

31 Joined cases 46/93 and 48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-01029 para. 32.32 Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239 para. 31-33.33 Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239 para. 34.

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cases of intentional fault or serious misconduct.34 However,

next to the usual factors that must be examined while

determining whether a breach was ‘sufficiently serious’, 35

‘regard must be had to the specific nature of the judicial

function’ and liability will be incurred ‘only in the exceptional

case where the court has manifestly infringed the applicable

law’. 36 What follows from this is that, even though it has

already been difficult to find a ‘sufficiently serious breach’ in

cases of other state organs, this will be particularly difficult to

achieve when attempting to impose liability on the judiciary.

National courts have more grounds to excuse their action and

the threshold for establishing their liability is raised higher. 37

This naturally makes it more difficult for an individual to bring

a successful claim for damage caused by an erroneous judicial

act.38

Therefore, while a theoretical duty on Member States to

provide a remedy to individuals whose rights were infringed by

the judiciary does exist, this is in practice exceptionally hard to

achieve. An alternative source of remedy might be found in

Strasbourg, before the European Court of Human Rights.

34 Case 173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-05177 para. 46.35 Joined cases 46/93 and 48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-01029 para. 56.36 Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239 para. 53.37 P. Aalto, Public Liability in EU Law. Brasserie, Bergaderm and Beyond, (Hart Publishing, 2011) p. 187.38 Scherr, 'Comparative Aspects of the Application of the Principle of State Liability for Judicial Breaches', Academy of European Law Forum (2012) p. 570.

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2.3.3. Alternative route: European Court of Human Rights?Advocate-General Léger in his Opinion on the Köbler case

hinted on the possibility for individuals to obtain their remedies

before the European Court of Human Rights (ECtHR):

According to the settled case law of the European

Court of Human Rights, although ‘[t]he right to have a

preliminary question referred to... the Court of Justice is

not absolute..., it is not completely impossible that, in

certain circumstances, refusal by a domestic court trying

a case at final instance might infringe the principle of

fair trial, as set forth in Article 6(1) of the Convention,

in particular where such refusal appears arbitrary’.39

The court in Strasbourg has ruled in a recent case of Dhahbi

v Italy that article 6(1) of the ECHR40 requires domestic courts

to give reasons, in the light of the applicable law, for any

decision refusing to refer a question for a preliminary ruling.41

Even though the applicable law in this case, article 267

TFEU, does not expressly provide for a duty to give reasons for

non-referring the preliminary ruling to the CJEU, such an

obligation can nonetheless be procedurally derived from the

obligation set in article 267 TFEU.42 Moreover, even though the

European Union is not a party to the ECHR, all of its Member 39 Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239 Opinion of AG Léger. 40 Art. 6(1) ECHR.41 Case Dhahbi v Italy (App. No. 17120/09) [2014] para. 31.42 Classen, 'Case C-224/01, Gerhard Köbler v. Republik Österreich, Judgement of 30 September 2003, Full Court' 41 Common Market Law Review (2004) p. 820.

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States are, meaning that they must comply with both Union law

and the ECHR rules.43 ECtHR has already ruled that the

Member States are responsible if EU law violates the

Convention.44

What follows from this is that even though the Union itself

does not expressly oblige national courts to give justifications

for their decisions not to refer the preliminary ruling to the

CJEU, the Member States might have to include such a duty in

their national procedural rules. Failure to give justifications for

the non-referral would be seen as a violation of article 6(1) of

the ECHR and would result in damages for the claimant.

Depending on the court’s willingness, the duty might go

even further. Even in cases where national judges did provide

some justifications for the referral, if the reasoning behind it

nevertheless shows signs of arbitrariness, the ECtHR might

find a violation of article 6(1) as well.

In the Dhahbi v Italy case, the Italian Court of Cassation

failed to provide any reference to the applicant’s request and

did not give reasons why the question did not warrant referral

to the CJEU. This was enough for the Court to find that the

decision of the Court of Cassation appears arbitrary and

therefore in violation of the Convention.45

43 Lock, ‘The ECJ and the ECtHR: The Future Relationship between the Two European Courts’, 8 The Law and Practice of International Courts and Tribunals (2009) p. 377.44 Case Matthews v United Kingdom (App. No. 24833/94) [1999] ECHR 1999-I.45 Case Dhahbi v Italy (App. No. 17120/09) [2014] para. 33.

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Certainly, the alternative proposed here is not a ‘sure win’

for individuals either, considering the cooperative relationship

that currently exists between the CJEU and the ECtHR.46 It

seems unlikely that the ECtHR would ‘overuse’ the power it

has over Member States with regards to EU law. Moreover, the

individual first has to prove that domestic remedies have been

exhausted 47 and nonetheless bears a heavy burden of showing

that a Member State acted arbitrarily in deciding not to refer a

preliminary ruling.

46 Lock, ‘The ECJ and the ECtHR: The Future Relationship between the Two European Courts’, 8 The Law and Practice of International Courts and Tribunals (2009) p. 380-381.47 Art. 35(1) ECHR.

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3. Case Study: Ferreira da Silva

The case concerns Air Atlantis SA (‘AIA’) employees who

were dismissed as a part of a collective redundancy when the

company was wound up. Another company, TAP, which was

the main shareholder in AIA, later began operating at least

some of the flights which AIA had contracted to provide. It also

started offering charter flights on routes previously offered by

AIA, even though TAP was not active in that market prior to

the wounding up of AIA. Furthermore, TAP also started using

some of AIA’s assets, including four aeroplanes, some office

equipment and other moveable property. Lastly, TAP took on a

number of former AIA employees.48

The main issue during the proceedings was the meaning of

the term ‘transfer of a business’ as found in article 1(1)(a) and

(b) of Directive 2001/23. 49 Applicants requested the Supreme

Court to refer the question of interpretation to the CJEU, but

the Supreme Court refused to do so, arguing that in the light of

the CJEU case law concerning the interpretation of EU rules on

the transfer of a business, there was ‘no material doubt’ as to

the correct interpretation of the term.50

The applicants then started the proceedings for establishing

state liability before the Court of First Instance, whose judge 48 Case 160/14 João Filipe Ferreira da Silva e Brito and Others v Estado português [2015] para. 9.49 Arts. 1(1)(a), 1(1)(b) Directive 2001/23 [2001] O.J. L082.50 Case 160/14 João Filipe Ferreira da Silva e Brito and Others v Estado português [2015] para. 16.

22

referred a preliminary question to the CJEU, asking if the

Supreme Court was under an obligation to refer the preliminary

ruling. 51

The Court firstly restated the general principles. There is an

obligation on the last instance courts to refer preliminary

rulings to the CJEU, unless the correct application of EU law is

either irrelevant, or has already been interpreted by the Court,

or the correct application is so obvious as to leave no scope for

reasonable doubt.52

The analysis then focused on the factors that need to be

taken into account when establishing whether the correct

application in fact is ‘obvious’. The Court concluded that even

though in itself the fact that other national courts reach

contradictory decisions is not enough to prevent a finding of

Acte Clair, in this particular case there was a great deal of

uncertainty. The uncertainty showed that reaching the correct

interpretation was difficult and that the risk of diverging

interpretations across the Union exists. Additional support for

the finding of the uncertainty is the fact that across the Union,

national courts had frequently referred the question of

interpretation of the term ‘transfer of a business’ to the CJEU.

The correct application is thus far from obvious. 53

51 Ibid para. 22.52 Ibid para. 36-38. 53 Case 160/14 João Filipe Ferreira da Silva e Brito and Others v Estado português [2015] para. 39-45.

23

What follows from the analysis of the facts is that the

Supreme Court had an obligation in this particular case to refer

the question to the CJEU.

Unfortunately, nothing is said about the consequences of this

finding for the applicants. It is left to the national court to

decide whether the breach of the obligation to refer will

constitute a ‘sufficiently serious breach’. Considering the risks

and dangers the Court outlined in its analyses, the breach seems

serious enough to reach the threshold of ‘sufficiently serious

breach’ and should thus result in a successful claim for

damages.

If the national court nonetheless decides that the threshold

was not reached, the applicants might still try out their luck

before the ECtHR. Their success will depend on the Court’s

willingness and ability to find elements of arbitrariness. Due to

the scope and the limits of this paper, further analysis of this

will be left aside.

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4. Concluding Remarks

The aim of this paper is to provide a short overview of the

system of preliminary referencing for the purposes of clarifying

the correct interpretation, explanation of the correct and

incorrect application of it and some possible consequences of

misuse of the procedure.

When last instance courts are concerned, there is a general

obligation to refer preliminary rulings to the Court of Justice of

the European Union. This obligation can be waived in three

situations. The subject matter of this paper was the justification

of Acte Clair. It is used in cases when courts believe that the

correct application of EU law is so obvious, that there is no

possibility for any other interpretation to be reasonably

understood as being correct. The criteria for establishing that a

term is in fact ‘obvious’ is incredibly strict, so that in practice it

can rarely be applied properly. If the courts nonetheless refuse

to refer the preliminary ruling, they are in breach of article 267

TFEU and they might incur liability for it.

The criteria for state liability were discussed with specific

focus on the conditions for incuring liability for judicial

breaches. The most difficult criterion for individuals to satisfy

is the one of a ‘sufficiently serious breach’. Without satisfying

that condition, liability cannot be imposed on the state.

25

The alternative source of remedies was presented.

Applicants who are unsuccessful in obtaining damages from

their national states might, under certain conditions, attempt to

obtain them before the European Court of Human rights. The

case analysed in this paper was an example of a successful

claim, but it should not be taken as a representative example.

The criteria are still difficult to satisfy and the individuals must

still bear a heavy burden of proof.

One more question is left to be answered: can EU citizens

claim damages if the Supreme Court refuses to refer

Preliminary Questions to the Court of Justice? The answer is

unfortunately not as straightforward as the question. The

response that is the closest to the truth is: maybe, it depends.

And as it often is in matters of EU law, the factors which

determine its application are not entirely legal. Non-legal

aspects such as the political climate, the relationship between a

Member State and the Union and the atmosphere towards the

EU ‘at home’ could potentially affect the finding of liability

and, consequently the awarding of damages to individuals.

Conditions which must be satisfied in order to establish liability

are frustratingly vague. No one truly knows what ‘sufficiently

serious breach’ entails or how ‘obvious’ Acte Clair must be.

For the time being, the citizens of the European Union will

have to be satisfied with the answer ‘maybe’. This answer

should motivate them to ask for preliminary references before

26

their national courts as often as possible. Even when their

requests are refused, some hope is left that their remedies might

be awarded in Strasbourg.

27

5. Bibliography

1. Case Law

1) CJEUJoined cases 46/93 and 48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-01029

Case 77/83 Srl CILFIT and others and Lanificio di Gavardo SpA v Ministero della sanità [1984] ECR 01257

Case 160/14 João Filipe Ferreira da Silva e Brito and Others v Estado português [2015]

Joined cases 6/90 and 9/90 Francovich Andrea Francovich and Danila Bonifaci and others v Italian Republic [1991] ECR I-05357

Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239

Case 173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-05177

Case 32/84 Van Gend & Loos NV v Inspecteur der Invoerrechten en Accijnzen, Enschede [1985] ECR 00779

2) ECtHRCase Dhahbi v Italy (App. No. 17120/09) [2014]

Case Matthews v United Kingdom (App. No. 24833/94) [1999] ECHR 1999-I

2. EU Documents

Recommendations to national courts and tribunals on initiation of preliminary ruling procedure [OJ 2012 C338/01]

Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239 Opinion of AG Léger

3.Academic Sources

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P. Aalto, Public Liability in EU Law. Brasserie, Bergaderm and Beyond, (Hart Publishing, 2011)

Classen, 'Case C-224/01, Gerhard Köbler v. Republik Österreich, Judgement of 30 September 2003, Full Court' 41 Common Market Law Review (2004)

P. Craig & G. de Burca, EU Law. Text, Cases and Materials, (Oxford University Press, 2015)

Davis, 'Liabillity in Damages for a Breach of Community Law: Some Reflection on the Question of Who to Sue and the Concept of „the State' 31 European Law Review (2006)

Lock, ‘The ECJ and the ECtHR: The Future Relationship between the Two European Courts’, 8 The Law and Practice of International Courts and Tribunals (2009)

Scherr, 'Comparative Aspects of the Application of the Principle of State Liability for Judicial Breaches', Academy of European Law Forum (2012)

Turičnik, 'Preliminary Reference Procedure – The Right, The Duty and Exceptions', 1 InterEuLawEast 1 (2014)

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