State Liability for Individuals for the Damage Made by the Acts of National Courts
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Abstract
Doctrine of state liability is the logic consequence of the evolution of effet utile, intended to fill the gap in the system of remedies for protection of individuals in the EC Treaty.
This article analyses the preconditions of this doctrine and its legal foundations. Choosing national courts as the main subject, the doctrine of state liability is analyzed first of all evaluating the arguments of opponents to the extension of this doctrine to judicial acts, in order to show that nor the independence and impartiality of the national courts, nor the principle of res judicata or decrease of authority of courts are well founded arguments to deny the extension of state liability to judicial acts. Secondly, the content of the conditions for state liability to arise are examined to the extent necessary to stress the specifics of the subject who caused the damage. We suggest that the conditions for state liability to arise for judicial acts are not identical to those of the other state authorities – exec- utive and legislative: the state liability for judicial acts could arise just in exceptional cases. The mere breach of duty to apply to the European Court of Justice for the preliminary ruling could not be said to be the manifest infringement itself – only if the subjective right of the individual would be infringed, the breach of the duty to apply to the European Court of Justice would be treated as the qualifying factor. It’s also important to notice that only the actions attributable to the supreme courts of member states could be the bases for state liability, because only courts of last instance have the duty to apply to the European Court of Justice for a preliminary ruling.
Special constitutional status of national courts in the organization of the state authorities presupposes the need to talk and evaluate the possibility to apply this doctrine of state liability for this institution.
This article analyses the preconditions of this doctrine and its legal foundations. Choosing national courts as the main subject, the doctrine of state liability is analyzed first of all evaluating the arguments of opponents to the extension of this doctrine to judicial acts, in order to show that nor the independence and impartiality of the national courts, nor the principle of res judicata or decrease of authority of courts are well founded arguments to deny the extension of state liability to judicial acts. Secondly, the content of the conditions for state liability to arise are examined to the extent necessary to stress the specifics of the subject who caused the damage. We suggest that the conditions for state liability to arise for judicial acts are not identical to those of the other state authorities – exec- utive and legislative: the state liability for judicial acts could arise just in exceptional cases. The mere breach of duty to apply to the European Court of Justice for the preliminary ruling could not be said to be the manifest infringement itself – only if the subjective right of the individual would be infringed, the breach of the duty to apply to the European Court of Justice would be treated as the qualifying factor. It’s also important to notice that only the actions attributable to the supreme courts of member states could be the bases for state liability, because only courts of last instance have the duty to apply to the European Court of Justice for a preliminary ruling.
Special constitutional status of national courts in the organization of the state authorities presupposes the need to talk and evaluate the possibility to apply this doctrine of state liability for this institution.
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Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
