¹ Scherr, K, The Principle of State Liability for Judicial Breaches: The Case of Gerhard Köbler v. Austria under European Community Law and from a Comparative National Law Perspective (European University Institute, Florence, 1998)Google Scholar. For a comparison between national jurisdictions, see Cappelletti, M, ‘Who Watches the Watchmen? A Comparative Study on Judicial Responsibility’ (1983) 31 AmJCompL 1, 14Google Scholar.

² Nassimpian, D, ‘…And we Keep on Meeting: (de)fragmenting State Liability’ (2007) 32 EL Rev 831Google Scholar.

³ On state liability for judicial decisions in international law, see Freeman, AV, The International Responsibility of States for Denial of Justice (Longman, London/New York, 1938)Google Scholar; Paulsson, J, Denial of Justice in International Law (CUP, Cambridge, 2005)CrossRefGoogle Scholar.

⁴ On this subject area, see, among other contributions, Toner, H, ‘Thinking the Unthinkable? State Liability for Judicial Acts After Factortame (III)’ (1996) 17 YB EurL 169Google Scholar; Rodríguez, PM, ‘State Liability for Judicial Acts in European Community Law: The Conceptual Weaknesses of the Functional Approach’ (2004) 11 ColumJEurL 605Google Scholar; Anagnostaras, G, ‘Erroneous Judgments and Prospect of Damages: the Scope of the Principle of Governmental Liability for Judicial Breaches’ (2006) 31 EL Rev 744–5Google Scholar; Beutler, B, ‘State Liability for Breaches of Community Law by National Courts: Is the Requirement of a Manifest Infringement of the Applicable Law an Insurmountable Obstacle?’ (2009) 46 CMLR 781–2Google Scholar;

⁵ Case C–224/01 Köbler v Austria [2003] ECR I–10239.

⁶ ibid para 53.

⁷ Jiménez de Aréchaga, E, International Law in the Past Third of a Century, 159-1 Recueil des Cours (General Course in Public International Law, The Hague, 1978)Google Scholar 278. A similar formulation of the three categories appears in an earlier contribution: E Jiménez de Aréchaga, ‘International Responsibility of States for Acts of the Judiciary’, in W Friedmann, L Henkin and O Lissitzyn (eds) Transnational Law in a Changing Society (Columbia University Press, New York, 1972) 171, 176.

⁸ Available at <http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf>. As noted in the first paragraph of the opening General commentary, the Articles ‘seek to formulate, by way of codification and progressive development, the basic rules of international law concerning the responsibility of States for their internationally wrongful acts’.

⁹ Article 4. Conduct of Organs of a State. 1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. [paragraph 2 omitted]

¹⁰ Para 6 of commentary to Article 2. See also para 5 of commentary to Article 4.

¹¹ Case Concerning the Barcelona Traction, Light and Power Co. Ltd. (Belgium. v. Spain), (Second Phase), (separate opinion of Judge Tanaka) ICJ Reports 1970, 114.

¹² Unlike the majority, Judge Tanaka considered that the third preliminary objection was not fatal to Belgium's claim. Thus he considered that Belgium did have jus standi to protect Belgian shareholders in the Canadian Barcelona Traction Company. Unlike the majority, Tanaka also proceeded to consider, and dismissed, the fourth preliminary objection that the Belgian application was inadmissible by reason of the non-exhaustion of local remedies by the Barcelona Traction Company.

¹³ Barcelona Traction (n 11) 153.

¹⁴ ibid 155–6.

¹⁵ ibid 156.

¹⁶ ibid 157.

¹⁷ ibid 158.

¹⁸ ibid.

¹⁹ ‘Institutional independence’ has been defined as ‘duties to refrain from seeking, taking or giving instructions. Judges cannot seek or take instructions from anyone, and this requires particular sensitivity in relation to the executive where this is seen to be an acute and ever-present danger’. See M Andenas and D Fairgrieve, ‘Judicial Independence and Accountability: National Traditions and International Standards’ in G Canivet, M Andenas and D Fairgrieve (eds) Independence, Accountability, and the Judiciary (BIICL, London, 2006) 23.

²⁰ Toner (n 4) 169.

²¹ In contrast to the absence of state liability for judicial decisions, some degree of personal immunity is legitimately thought of as a means to protect freedom of judicial thought and, therefore, the sound administration of justice. Olowofoyeku writes that it may undermine the administration of justice if ‘instead of hearing parties abstractedly, a considerable portion of the judge's attention must be devoted to himself, i.e. the likelihood of liability if he reaches a particular decision’. Olowofoyeku, AA, Suing Judges: A Study of Judicial Immunity (OUP, Oxford, 1993) 191Google Scholar.

²² ICJ Reports 1999, 62.

²³ ibid para 63.

²⁴ (9815/82) (1986) 8 EHRR 407.

²⁵ ibid para 37.

²⁶ ibid para 39.

²⁷ WT/DS332 Brazil – Measures Affecting Imports of Retreaded Tyres adopted 17 December 2007.

²⁸ ibid paras 7.304–5. An omitted note at the end of para 7.305 cites Article 4 of the Articles.

²⁹ This report notes that ‘the Government of Brazil asked the Federal Supreme Court to take note of the WTO decision and to expedite its proceedings.’ WT/DS332/16 Arbitration under Article 21.3(c) of the DSU 29 August 2008 para 13.

³⁰ Paragraph 4 of the opening Commentary to Chapter II on Attribution of Conduct to a State. The importance of the distinction is indicated by the fact of its initial explanation in the very first paragraph of the opening General commentary.

³¹ A statement to this effect was made in Lingens v Austria (n 24) which concerned national court decisions which faithfully applied the Austrian Criminal Code but which breached the Convention. (para 46).

³² For example, in Lingens v Austria (n 24), the ECtHR showed no deference towards the Austrian court decisions when evaluating whether they breached the applicant's right to freedom of expression. In Brazil – Tyres (n 27), a violation was confirmed even though the national court injunctions were not obviously and manifestly in breach of the chapeau of GATT Article XX. The Appellate Body's reasoning was based on an approach which it explicitly rejected in a previous case so that the evolving nature of the Article XX jurisprudence could have been presented as a consideration suggesting the excusable nature of the breach. On the development of the Appellate Body's reasoning, see Davies, A, ‘Interpreting the Chapeau of GATT Article XX in Light of the “New” Approach in Brazil – Tyres’ (2009) 43 JWTL 507Google Scholar.

³³ Paulsson (n 3) 72. Some commentators would take issue with the reference in this passage to the absence of a ‘presumption of compliance with international law’, operating on the international law plane. Writing in 1972 Jiménez de Aréchaga states that ‘it is unanimously agreed that in this subject there is one important presumption: that municipal judicial decisions are in conformity with both municipal and international law.’ See Jiménez de Aréchaga, ‘International Responsibility of States for Acts of the Judiciary’ (n 7) 182. A presumption in both areas would seem to be helpful in terms of fostering cooperation between national and international courts and tribunals, albeit that the presumption of compliance with municipal law is surely stronger than any presumption in relation to international law. A presumption also signals that it is for the complaining state to demonstrate violations.

³⁴ The decision at issue was that of the Austrian Verwaltungsgerichtshof—the supreme administrative court. Mr Köbler had been denied a special length of service increment for university professors by the relevant Minister. While he had completed the required 15 years of service, this had been in a number of Member States rather than exclusively in Austria as required by the applicable salary law. The Minister's decision was appealed to the Verwaltungsgerichtshof claiming indirect discrimination contrary to the free movement of workers guaranteed by Article 45 TFEU (ex 39 TEU). Mr Köbler's complaint was eventually dismissed by the Verwaltungsgerichtshof based on its erroneous understanding of ECJ case law. There followed an action for damages against Austria before the Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna) for breach of Community law by the Verwaltungsgerichtshof judgment. The Regional Civil Court referred a series of questions. Based on the ECJ's responses, Mr Köbler's claim was ultimately unsuccessful.

³⁵ Quoting from its earlier judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I–1029, the Court in Köbler noted that ‘[i]n international law a State which incurs liability for breach of an international commitment is viewed as a single entity, irrespective of whether the breach which gave rise to the damage is attributable to the legislature, the judiciary or the executive’ (para 33).

³⁶ Köbler (n 5) paras 33–4.

³⁷ ibid para 53.

³⁸ [2010] EWCA Civ 464. This appears to be the only case to date subsequent to Köbler in which the sufficiently serious breach test has been addressed in the context of liability for judicial decisions.

³⁹ Case C–173/03 Traghetti del Mediterraneo SpA v Italy [2006] ECR I–5177.

⁴⁰ ibid para 34.

⁴¹ Cooper (n 38) para 70.

⁴² Traghetti (n 39) para 35.

⁴³ Case C–379/10, 24 November 2011. ‘48. Par conséquent, il convient de constater que: – en excluant toute responsabilité de l’État italien pour les dommages causés à des particuliers du fait d'une violation du droit de l'Union commise par une juridiction nationale statuant en dernier ressort, lorsque cette violation résulte d'une interprétation des règles de droit ou d'une appréciation des faits et des preuves effectuée par cette juridiction, et – en limitant cette responsabilité aux seuls cas du dol ou de la faute grave, conformément à l'article 2, paragraphes 1 et 2, de la loi n°117/88, la République italienne a manqué aux obligations qui lui incombent en vertu du principe général de responsabilité des États membres pour violation du droit de l'Union par l'une de leurs juridictions statuant en dernier ressort.’

⁴⁴ The term Res judicata pro veritate habetur was defined by Advocate General Léger as ‘a matter adjudicated is held to be true’. Köbler (n 5) point 96.

⁴⁵ ibid point 21.

⁴⁶ ibid point 101. On the ‘triple-identity’ criteria, a report of the International Law Association notes that ‘the [res judicata] doctrine undoubtedly applies in all principal legal systems to prevent the same claimant bringing the same claim against the exact same respondent.’ International Law Association ‘Interim Report: Res Judicata and Arbitration’ Berlin Conference 2004, 3.

⁴⁷ ibid para 39.

⁴⁸ ILA report (n 46) 3.

⁴⁹ Briza, P, ‘Lucchini SpA – is There Anything Left of Res Judicata Principle?’ (2008) 27 CJQ 44Google Scholar.

⁵⁰ Köbler (n 5) para 40.

⁵¹ This matter is discussed more fully in Section IV, A.

⁵² Groussot, X and Minssen, T, ‘Res Judicata in the Court of Justice Case-Law: Balancing Legal Certainty with Legality?’ (2007) 3 EurConstLRev 395Google Scholar.

⁵³ Tridimas, T, General Principles of EU Law (OUP, Oxford, 2006) 528Google Scholar.

⁵⁴ For a brief account of the gradual erosion of this view, see Paulsson (n 3) 53–6.

⁵⁵ Whether identity of legal basis would be present depends on whether the applicant was relying directly on the Convention at the national level. Identity of legal basis would also come close to being satisfied if the applicant was relying on a domestic instrument of incorporation. A leading work notes that ‘[a]ll states parties have incorporated the Convention in one form or another, but this has not been through any legal obligation derived from Article 13 or the Convention generally.’ The authors further note ECtHR case law to the effect that there is no requirement that the Convention be capable of being relied upon directly in domestic courts, the lesser requirement under Article 13 being ‘the possibility of canvassing the substance of the Convention argument before a national authority’. Harris, DJ, Boyle, M O’ and Warbrick, C, Law of the European Convention on Human Rights (2nd edn, OUP, Oxford, 2009)Google Scholar 558–9 and 562.

⁵⁶ Recent cases involving the UK include, Marper v UK (30562/04) (2009) 48 EHRR 50; Gillan and Quinton v UK (4158/05) (2010) 50 EHRR 45.

⁵⁷ See ILA Report on Res Judicata and Arbitration (n 46) 18–19.

⁵⁸ Brownlie states that: ‘There is no effect of res judicata from the decision of a municipal court so far as an international jurisdiction is concerned, since, although the subject matter may be substantially the same, the parties will not be, and the issues will have a very different aspect. In the municipal court the legal person claiming is an individual or corporation: before an international tribunal the claimant will be a state exercising diplomatic protection with respect to its nationals.’ Brownlie, I, Principles of Public International Law (6th edn, OUP, Oxford, 2003) 50Google Scholar.

⁵⁹ To date, the ECtHR has not interpreted Article 13 as applying generally to all possible violations committed by the judicial branch. It has only so far been interpreted as applying to violations by the judiciary of the ‘hearing within a reasonable time’ requirement of Article 6(1). Kudla v Poland (30210/96) (2002) 35 EHRR 11.

⁶⁰ T Barkhuysen and ML van Emmerik, ‘Accountability of the Judiciary on the National Level for Violations of the European Convention on Human Rights’ in Canivet, Andenas and Fairgrieve (eds) (n 19) 419.

⁶¹ Analytical tools are therefore required to mediate between national legal orders and possible EU law developments. In this regard, reference was made by the Advocate General to the established distinction between the ‘rule’ to be recognized, and the ‘scope and the conditions of application’ of the rule (point 85). The rule need not be a feature of all Member State legal systems and the fact that the scope and the conditions for applying the rule vary from one Member State to another has no influence. When applying these principles there is considerable scope for flexibility as there is only a hazy distinction between the rule, and its scope and conditions for application. However, the fact of engagement with national law traditions is arguably more significant than the extent to which the process has a true braking effect on the development of EU law. There is at least a conscious effort to relate the EU law development with something comparable which is recognized by some Member States.

⁶² The Advocate General noted that ‘Belgium is the only Member State which has acknowledged, in its case-law, the general principle of the liability of the State for the actions of its courts’ (point 83). The missing element here is that the Cour de Cassation was not discussing its own liability as a court of final appeal, but that of a court lower in the hierarchy. Other Member States are a good deal further away from recognizing all the required elements. For example, under Austrian law, state liability for the decisions of its supreme courts is excluded by statute under art 2(3) of the Amtshaftungsgesetz – Public Tort Liability Act (Bundesgesetzblatt No 20/1949). In the UK, section 2(5) of the Crown Proceedings Act 1947 excludes proceedings against the Crown ‘in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibility of a judicial nature vested in him’.

⁶³ Köbler (n 5) points 53–76.

⁶⁴ ibid point 53.

⁶⁵ ibid point 71.

⁶⁶ ibid point 74.

⁶⁷ ibid point 70. In the same manner, the ECJ (para 34) noted that since a decision of a court adjudicating at last instance ‘cannot thereafter be corrected, individuals cannot be deprived of the possibility of rendering the State liable in order in that way to obtain legal protection of their rights’.

⁶⁸ See Alter, K, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (OUP, Oxford, 2001)Google Scholar. Alter indicates that the ECJ has generally enjoyed a more harmonious relationship with lower national courts than supreme national courts. Lower courts have tended to view the preliminary ruling procedure as a means of expanding their authority within the national legal system while supreme courts view the same procedure as capable of undermining their authority and responsibility to maintain the coherence of the national legal system. See Alter's discussion of a general theory of judicial interests at 45–52.

⁶⁹ This spirit of collegiality is captured in different terms by Anne-Marie Slaughter who describes a ‘community of courts’ within which each ‘is a check on the other, but not a decisive one, asserting their respective claims through dialogue of incremental decisions signalling opposition or cooperation’. Slaughter, A-M, ‘Judicial Globalization’ (2000) 40 VaJIntlL 1108Google Scholar.

⁷⁰ Slaughter refers to this court's ‘long history of engaging and challenging the ECJ as a co-equal rather than a superior court’ (at 1107). Alter's chapter on German Judicial Acceptance of European Law Supremacy could be described as a full exposition of this theme. Alter (n 68) chapter 3. See also B Zwingmann, ’ The Continuing Myth of Euroscepticism? The German Federal Constitutional Court Two Years after Lisbon’, this volume.

⁷¹ This is indicated by one of the earliest recognitions of the link between state liability for judicial conduct and undermining the cooperative relationship between national and Community courts. In a widely cited footnote, it is significant that Steiner was referring to this problem as a reason for regarding even the possibility of state liability for judicial failure as ‘unthinkable’. It is entirely possible therefore that, having recognized the unthinkable, the Court was very mindful of cooperation concerns in setting the conditions. Steiner, J, ‘From Direct Effect to Francovich: Shifting Means of Enforcement of EC Law’ (1993) 18 EL Rev 11Google Scholar at n 48.

⁷² Mr Köbler might himself have elected to challenge in the damages action either the national measure itself or its application by the relevant Minister.

⁷³ Case C–129/00 Commission of the European Communities v Italy [2003] ECR I–14637 para 41.

⁷⁴ See Slaughter (n 68); Slaughter, A-M, ‘A Global Community of Courts’ (2003) 44 HarvIntlLJ 191 (2003)Google Scholar; and M Amos, ‘The dialogue between United Kingdom courts and the European Court of Human Rights’, this volume.

⁷⁵ For a recent contribution to this area, see Roberts, A, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 ICLQ 57CrossRefGoogle Scholar.

⁷⁶ Benvenisti, E and Downs, G, ‘National Courts, Domestic Democracy, and the Evolution of International Law’ (2009) 20 EJIL 69–70Google Scholar.

⁷⁷ Lavranos, N, ‘National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benvenisti and George Downs’ (2010) 21 EJIL 1108Google Scholar (notes omitted).

⁷⁸ In the US, see the Uruguay Round Agreements Act, section 102(c)(1)(A)–(B). In the EU, see the last recital of the Preamble of the Council Decision of 22 December 1994 concerning the conclusion on behalf of the European Union, as regards matters within its competence, of the agreements reached in the Uruguay Round of multilateral negotiations (1986–1994), [I994] OJ L 336/1 of 23 December 1994.

⁷⁹ On the case law here, see Gattinara, G, ‘The Relevance of WTO Dispute Settlement Decisions in the US Legal Order’ (2009) 36 Legal Issues Economic Integration 285Google Scholar.

⁸⁰ Bronckers, M, ‘From “Direct Effect” to “Muted Dialogue” Recent Developments in the European Courts’ Case Law on the WTO and Beyond’ (2008) 11 JIEL 889–90CrossRefGoogle Scholar.

⁸¹ Mancini and Keeling evoke the image of the doctrines of direct effect and supremacy as the ‘twin pillars of the EU's legal system’ and the preliminary reference procedure as the ‘keystone in the edifice; without [which] the roof would collapse and the two pillars would be left as a desolate ruin’. Mancini, GF and Keeling, DT, ‘From CILFIT to ERT: The Constitutional Challenge Facing the European Court’ (1991) 11 YB EurL 2–3Google Scholar.

⁸² Anagnostaras (n 4) 290–1, 295–6.

⁸³ Köbler (n 5) point 111.

⁸⁴ The eventual state liability action originated from planning decisions of a London council in connection with the White City Development. Judicial review of these decisions was unsuccessfully sought by The Council for the Protection of Rural England (CPRE) on the basis that procedures required by the Environmental Impact Assessment Directive had not been followed. The Court of Appeal decisions which exonerated the council's actions were challenged in the liability action by Mr Cooper who was a trustee of the London branch of CPRE. Mr Cooper claimed that the decisions met all the conditions for Köbler liability and caused him loss in the form of adverse orders for costs.

⁸⁵ Upon closer examination, however, it is not so clear that the case is a good example of the problems described. As for why neither the High Court nor the Court of Appeal made a reference, it is suggested that, on the sufficiently serious breach requirement, the case was nowhere near as close to the threshold as Köbler. Pivotal in the liability action was the meaning of ‘development consent’ in the Environmental Impact Assessment Directive. At the time of the decisions which exonerated the council's actions, the Court of Appeal had considered the meaning of this term to be acte clair. Foremost among the reasons was that the Court of Appeal's understanding of the term was not at odds with the Commission's understanding (para 112). The Court of Appeal's understanding also appeared to be consistent with the text of the Directive, up to ECJ judgments which post-dated the impugned decisions. At first instance in the liability action, Plender, J warned against comparing ‘the gravity of error made by one court with that of another’. ([2008] EWHC 2178Google Scholar (QB) para 55) However, I would hazard that the ECJ in Köbler forgave far more of the Verwaltungsgerichtshof than the Court of Appeal did of itself in Cooper. A further point is that the Court of Appeal was only sitting as the court of last instance when it reached the decisions which were later challenged in the liability action, rather than also in the liability action itself. Therefore, the Court of Appeal did not have the last say in confirming the legality of its own contested action.

⁸⁶ This phrase is a reference to the title of Beutler's article cited at n 4.

⁸⁷ For example, the ECJ's case law from the late 1970s in the analogous context of the EU's own non-contractual liability could once be read as requiring conduct which verged on the arbitrary. In 1993, the Court clarified that, ‘…the concept of arbitrary conduct as mentioned only in the judgments in Joined Cases 116/77 and 124/77 Amylum v Council and Commission [1979] ECR 3497 and in Case 143/77 Koninklijke Scholten-Honig v Council and Commission [1979] ECR 3583 … does not provide a basis for holding that a finding of conduct verging on the arbitrary represents a necessary condition or formulation for the Community to be rendered liable within the framework of the EEC Treaty…’ (Case C–220/91 P) Commission v Stahlwerke Peine-Salzgitter ECR I–2393 para 51.

⁸⁸ The Court considered the Italian legislation which precluded state liability in relation to the judicial interpretation of provisions of law or assessment of facts and evidence to be ‘tantamount to rendering meaningless the principles laid down by the Court in the Köbler judgment’. Traghetti (n 34) para 36.

⁸⁹ n 38.