Non-contractual liability of member states for damage caused to individuals by infringements of comm29/11/06 / cata_european-union-news

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

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

The ECJ also held the liability of a Member State is not restricted when considering the special position of the court and legitimate requirement for legal certainty. On the contrary, liability arises only in exceptional circumstances where the national court at last instance clearly infringed applicable law. To determine whether this requirement is fulfilled, the national court where the compensation claim is filed has the obligation to consider all relevant matters, inter alia, whether the national court at final instance committed 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 the criteria for determining the nature and degree of a Member State’s liability in infringement of Community law by a national court adjudicating at last instance, under no circumstances may such criteria impose requirements stricter than those of a manifest infringement of applicable law.

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

The ECJ judgment in Traghetti del Mediterraneo interpreted Community law in response to an application for a preliminary ruling by the Tribunale di Genova concerning a claim by the administrator in the bankruptcy of Traghetti del Mediterraneo SpA against the Italian State for compensation for damage on grounds of an erroneous interpretation of Community law by the Italian Supreme Court and breach of obligation to present relevant questions for interpretation under Community law for a ruling by the ECJ. The case before the Italian Supreme Court related to a claim by Traghetti del Mediterraneo SpA for compensation for damage by a competing company, Tirrenia di Navigazione, which the plaintiff claimed to have suffered during the preceding years as a result of the low fare policy operated by Tirrenia ferries between the Italian mainland and the islands of Sardinia and Sicily.