Non-contractual liability of member states for damage caused to individuals by infringements of comm

The ECJ’s decision in Traghetti del Mediterraneo confirmed theprinciple laid down in Köbler (Case C-224/01) under which a MemberState has the obligation to pay compensation for damage caused to individualsthrough infringement of Community law and that this principle applies to anyinfringement of Community law irrespective of the national body whose action oromission caused the infringement to arise.

The ECJ expanded on this principle in its consideration of a Member State’sexclusion from liability when damage is caused through infringement of Communitylaw, specifically in circumstances where the exclusion is incorporated into thenational legislation of a particular Member State. The ECJ expressly held thatthe exclusion from liability on the grounds the infringement occurred due to anational court’s wrong interpretation of Community law denies the principle laiddown in past decisions (Köbler) and inevitably weakens proceduralguarantees of individuals. In its decision, the ECJ stated that nationallegislation generally excludes liability of a Member State for damage caused toindividuals by infringement of Community law through a national court at lastinstance and is therefore inconsistent with Community law.

The ECJ also held the liability of a Member State is not restricted whenconsidering the special position of the court and legitimate requirement forlegal certainty. On the contrary, liability arises only in exceptionalcircumstances where the national court at last instance clearly infringedapplicable law. To determine whether this requirement is fulfilled, the nationalcourt where the compensation claim is filed has the obligation to consider allrelevant matters, inter alia, whether the national court at final instancecommitted a breach of its obligation to seek a preliminary ruling from the ECJ.

On this point, the ECJ confirmed that although national law can define thecriteria for determining the nature and degree of a Member State’s liability ininfringement of Community law by a national court adjudicating at last instance,under no circumstances may such criteria impose requirements stricter than thoseof a manifest infringement of applicable law.

The ECJ held that Community law also precludes national legislation limitingsuch liability solely to cases of intentional fault and serious misconduct onthe part of the court, if such limitation excludes a Member State’s liability incases where manifest infringement of the applicable law has been committed, asset out in the Köbler ruling.

The ECJ judgment in Traghetti del Mediterraneo interpreted Communitylaw in response to an application for a preliminary ruling by the Tribunale diGenova concerning a claim by the administrator in the bankruptcy of Traghettidel Mediterraneo SpA against the Italian State for compensation for damage ongrounds of an erroneous interpretation of Community law by the Italian SupremeCourt and breach of obligation to present relevant questions for interpretationunder Community law for a ruling by the ECJ. The case before the Italian SupremeCourt related to a claim by Traghetti del Mediterraneo SpA for compensation fordamage by a competing company, Tirrenia di Navigazione, which the plaintiffclaimed to have suffered during the preceding years as a result of the low farepolicy operated by Tirrenia ferries between the Italian mainland and the islandsof Sardinia and Sicily.