¹ Case C-173/03, Traghetti del Mediterraneo SpA in Liquidation v. Italian Republic, Judgement of the Court (Great Chamber) of 13 June 2006, published in Recueil 2006 p. I-5177.Google Scholar

² See joined Cases C-6/90 and C-9/90, Andrea Francovich and Others v. Italian Republic, 1991 E.C.R. I-5357.Google Scholar

³ Case 26/62, Van Gend en Loos v. Administratie der Belastingen, 1962 E.C.R. 1.Google Scholar

⁴ Case 6/64, Costa v. ENEL, 1964 E.C.R. 585.Google Scholar

⁵ Case 106/77, Amministrazione delle finanze dello Stato v. Simmenthal 1978 E.C.R. 629.Google Scholar

⁶ ECJ judgment of 16 December 1976 in Case 33/76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer für das Saarland, 1976 E.C.R. 1989, para. 5; ECJ judgment of 16 December 1976 in Case 45/76, Comet BV v. Produktschap voor Siergewassen, 1976 E.C.R. 2043, paras. 12; ECJ judgment of 27 February 1980 in Case 68/79, Hans Just I/S v. Danish Ministry for Fiscal Affairs, 1980 E.C.R. 501, para. 25; ECJ judgment of 7 July 1981 in Case 158/80, Rewe-Handelsgesellschaft Nord mbH et Rewe-Markt Steffen v. Hauptzollamt Kiel, 1981 E.C.R. 1805; ECJ judgment of 19 November 1991 in Joined Cases C-6/90 and C-9/90, Andrea Francovich and Danila Bonifaci and others v. Italian Republic, 1991 E.C.R. I-5357, paras. 42–43; ECJ judgment of 9 June 1992 in Case C-96/91, Commission v. Spain, 1992 E.C.R. I-3789, para. 12; ECJ judgment of 14 December 1995 in Case C-312/93. Peterbroeck, Van Campenhout & Cie SCS v. Belgian State, 1995 E.C.R. I-4599, para. 12; ECJ judgment of 24 September 2002 in Case C-255/00, Grundig Italiana SpA v. Ministero delle Finanze, 2002 E.C.R. I-8003, para. 33; ECJ judgment of 21 February 2008 in Case C-426/05, Tele2 Telecommunication GmbH, formerly Tele2 UTA Telecommunication GmbH v. Telekom-Control-Kommission, not yet reported, para. 51.Google Scholar

⁷ See article 258 of the Treaty on European Union, 7 February 1992, O.J. C 224/1 (1992), [1992] 1 Common Market Law Review (CMLR) 719, 31 ILM, Vol. 247, 1992, [hereinafter TEU] (amending Treaty Establishing the European Economic Community, 25 March 1957, 298 UNTS 11, Gr. Brit. T.S. No. 1 (Cmd. 5179-II), as amended by Single European Act, O.J. L 169/1 (1987), [1987] 2 C.M.L.R. 741 [hereinafter SEA], in Treaties Establishing the European Communities (EC Off ‘l Pub. Off. 1987)), incorporating changes made by the Treaty of Lisbon, Dec. 13, 2007, O.J. C 306/1 (2007) [hereinafter Lisbon Treaty].Google Scholar

⁸ See in this regard a recent judgement of the ECJ on 15 September 2009, in Case 405/03, Intermodal Transports BV v. Staatsecretaris van Financiën, 2005 E.C.R. I-8151 emphasizing the importance of there being no duty imposed on the lower courts.Google Scholar

⁹ The correct application of community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the court of justice and take upon itself the responsibility for resolving it. See Judgement of the ECJ on 6 October 1982, Case C-283/81, CILFIT v. Ministero della Sanità, 1982 E.C.R. 3415 and more recently on 15 September 2009, Case 495/03, Intermodal Transports see, supra, note 8.Google Scholar

¹⁰ “Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.”Google Scholar

¹¹ For a concise summary of the main ideas of Montesquieu, see Montesquieu, The Spirit of Laws, in DEMOCRACY AND THE RULE OF LAW, 13, 26, 223–224 (Adam Przeworski, J.M Maravall eds., 2003)Google Scholar

¹² This is the case under English, American and Dutch lawGoogle Scholar

¹³ This is the case of France and Greece: for the former, see J. Van Compernolle and G. Glosset-Marchal, La responsabilitè du fait des actes du service public de la justice: Elements de droit comparè et perspectives de “lege ferenda', in LA RESPONSABILITE’ DE POUVOIRS PUBLICS, 413–438 (Bruylant ed., 1981). For the latter, see the decisions of the Athens Court of Appeal in Case 6044/79, (1980) NoB 308±9 and Case 6772/87, (1987) NoB 1630. Both citations are taken from Georgios Anagnostasos, The Principle of State Liability for Judicial Breaches: The Impact of European Community Law, 7 EUROPEAN PUBLIC LAW 281 (2001)Google Scholar

¹⁴ See Carrè De Malberg, CONTRIBUTION A LA THEORIE GENERALE DE L'ET 174 (1920).Google Scholar

¹⁵ Case C-173/03, Traghetti del Mediterraneo SpA in Liquidation v. Italian Republic, Judgment of the Court (Great Chamber) of 13 June 2006Google Scholar

¹⁶ Carrè de Malberg (note 14), 234; and GEORGE Jellinek, GESETZ UND VERHORDNUNG: STAATSRECHTLICHE UNTERSUCHUNGEN AUF RECHTSGESCHICTIGLICHER GRUNDLAGE 198 (1887)Google Scholar

¹⁷ See, supra, note 15 at 47.Google Scholar

¹⁸ “A judgment by the Court under Articles 169 and 171 of the Treaty may be of substantive interest as establishing the basis of a responsibility that a Member State can incur as a result of its default, as regards other Member States, the Community or private parties.” Case 39/72, Commission v. Italy, 1973 E.C.R. 101, para. 11.Google Scholar

¹⁹ This can be traced back to the judgement delivered on 21 October 1970, in the case Transports Lesage et Cie c. Hauptzollamt Freiburg, C-23/70, 1970 E.C.R. 861Google Scholar

²⁰ Judgement of the ECJ on 5 March 1996, in Case C-48/93, Brasserie du Pěcheur SA v. Germany, R. v. Secretary of State for Transport 1996 E.C.R. I-1029Google Scholar

²¹ See Case C-224/01, Kobler v. Austria, 2003 E.C.R. I-10239, para. 62.Google Scholar

²² Case C-424/97, Salomone Haim v. Kassenzahnärztliche Vereinigung Nordrhein, 2000 E.C.R. I-5123.Google Scholar

²³ See Peter H. Schuck, Civil Liability of Judges in the United States, 37 AMERICAN JOURNAL OF COMPARATIVE LAW (Am. J. Comp. L.) 677 (1989).Google Scholar

²⁴ See, supra, note 21.Google Scholar

²⁵ In this light, see Anagnostasos (note 13) at notes 3 and 4, CARRE’ DE MALBERG (note 14); JELINEK (note 16), 198 and following, and PROKOPIS PAVLOPULOS, CIVIL LIABILITY OF THE STATE 74 (1986).Google Scholar

²⁶ The Court specified that “[…]Those factors 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 and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 234 EC.” Also, as a rule of thumb, that “In any event, an infringement of Community law will be sufficiently serious where the decision concerned was made in manifest breach of the case-law of the Court in the matter.” See Kobler, supra, note 21, at 56.Google Scholar

²⁷ Id., at 53.Google Scholar

²⁸ Mark H. Wissink, EuGH, 30.9.2003, C-224/01, Gerhard Köbler v. Republik Österreich – Liability of a Member State for Damage Caused to Individuals by Infringements of Community law for Which It is Responsible, 3 EUROPEAN REVIEW OF PRIVATE LAW (E.R.P.L.), 419–442 (2005).Google Scholar

²⁹ J.H. Jans, R. De Lange, A. Prechal and R.J.G.M. Widdershoven, EUROPEANISATION OF PUBLIC LAW (2007).Google Scholar

³⁰ See, Kobler, supra note 21, at 23Google Scholar

³¹ See judgment of the ECJ on 1 June 1999, in Case C-126/97 Eco Swiss China Time Ltd v. Benetton International NV, 1999 E.C.R. I-3055.Google Scholar

³² See, Kobler, supra note 21, paras. 43–46.Google Scholar

³³ Id., at 39Google Scholar

³⁴ Id., at 43Google Scholar

³⁵ See Peter J Wattel, Kobler, CILFIT and Welthgrove, We can't go on meeting like this, 41 CMLR 177–190, (2004).Google Scholar

³⁶ See, supra, note 21, at 46Google Scholar

³⁷ Id., at 42Google Scholar

³⁸ A reform that would be quite difficult to implement, since it would disrupt with the legal tradition of most Member States concerning liability of civil servants and public employees: see for example in Italy the Presidential Decree 10 January 1957 n.3, art. 22Google Scholar

³⁹ Safeguards which include, but are not limited to, the right to appeal judgement and the various “due process” minimum rights imposed by the European Court of Human Rights (ECHR).Google Scholar

⁴⁰ See, supra, note 27.Google Scholar

⁴¹ For similar conclusions, see Aspasia Tsaoussi and Eleni Zervogianni, Judges as Satisficers: A Law and Economics Perspective on Judicial Liability available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1009455 on 10/01/2010.Google Scholar

⁴² Id., 8Google Scholar

⁴³ This would be something that would not require substantial reforms to take place, since that is the basic rule governing professional liability in Italy, a regime to which the law n. 117 of 1988 on the compensation of damages caused by magistrates in the discharge of judicial duties and civil liability of magistrates (G.U. 15 April 1988, n. 88) creates an exception.Google Scholar

⁴⁴ As a consequence, it has been argued that the ECJ will increasingly recur to Article 104(3) of its Rules of Procedure, which provides the following “special procedure” allowing the Court to “bounce back” references for preliminary ruling without answering the question: ‘Where a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled, where the answer to such a question may be clearly deduced from existing case-law or where the answer to the question admits of no reasonable doubt, the Court may, after informing the court or tribunal which referred the question to it, hearing any observations submitted by the per-sons referred to in Article 23 of the Statute and hearing the Advocate General, give its decision by reasoned order in which reference is made to its previous judgements or the relevant case-law.”Google Scholar