PASSIVITY OF AUTHORITIES AND/OR AND REMEDIES AGAINST IT. LIABILITY OF JUDGES

(FOCUS ON EU- CASE TRAGHETTI DEL MEDITERRANEO)

RAFAEL TOLEDANO CANTERO JUDGE OF THE SUPREME OF

European Judicial Training Network 29 June 2020 - AD/2020/06 ( on line class-room ) THE FUNCTIONAL AND CONCEPTUAL APPROACH TO THE PRINCIPLE OF LIABILITY OF THE STATE FOR JUDICIAL INFRINGEMENT

➢European Law is a legal system that conferred rights to the citizens. ➢Art. 4.3 of the Treaty ➢Scheme procedure. ➢Ubi ius ibi remedium (est) where there is a right, there is a remedy. ➢EU law is characterized by the absence of such a procedural and remedial organization ➢Principle of effectiveness ➢Principle of procedural autonomy

RAFAEL TOLEDANO CANTERO. JUDGE OF THE OF SPAIN 3 THREE CONDITION OF LIABILITY STATE

«[41] Those [three] conditions are sufficient to give rise to a right on the part of individuals to obtain reparation, a right founded directly on Community law.» -The conditions are ( see par. 40 Francovich). i. The first condition is that the result prescribed by the EU law should entail the grant of rights to individuals. ii. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the EU law. iii. The third condition is the existence of a causal link between the breach of the State' s obligation and the loss and damage suffered by the injured parties.

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 4 LIABILITY STATE FOR JUDICIAL BREACHES. THE IMPENDIMENTS IN THE VIEW OF STATES CJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01)

➢Background in Köbler: ➢The lack of preliminary ruling ➢The CILFIT doctrine ➢The CJEU declared explicitly that the proceedings of the Austrian court (Verwaltungsgerichtshof) committed a sufficiently serious breach but, however, it did not constitute a manifest and serious infringement of Community law, because the question at stake did not have an obvious answer in Community law, nor did it find an answer in the case-law of the Court of Justice.

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 5 LIABILITY STATE FOR JUDICIAL BREACHES. THE IMPENDIMENTS IN THE VIEW OF STATES CJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01)

(i) the principle of legal certainty and, more specifically, the principle of res judicata. (ii) the independence and authority of the judiciary and (iii) the absence of a court competent to determine disputes relating to State liability for such decisions

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 6 RES IUDICATA AND LIABILITY CJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01)

The principle of legal certainty and, more specifically, the principle of res judicata. The CJEU stated in Köbler: « […] the importance of the principle of res judicata cannot be disputed […]. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called in question.» [ Köbler, 38].

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 7 CJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01)

Liability for judicial infringement and res judicata (i) Proceedings seeking to render the State liable do not have the same purpose (ii) These proceedings do not necessarily involve the same parties as the proceedings resulting in the decision which has acquired the status of res judicata (iii) The applicant in an action to establish the liability of the State will, if successful, secure an order against it for reparation of the damage incurred […] but not necessarily a declaration invalidating the status of res judicata of the judicial decision which was responsible for the damage.

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 8 CJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01) [42]

• As to the independence of the judiciary, the principle of liability in question concerns not the personal liability of the judge but that of the State. • The possibility that under certain conditions the State may be rendered liable for judicial decisions contrary to Community law does not appear to entail any particular risk that the independence of a court adjudicating at last instance will be called in question.

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 9 PROCEDURAL AUTONOMY, PRINCIPLES OF EQUIVALENCE AND EFFECTIVENESS CJEU KÖBLER, 30 SEPTEMBER 2003 (C-224/01) [58]

• [58.] Subject to the existence of a right to obtain reparation which is founded directly on Community law where the conditions mentioned above are met, it is on the basis of rules of national law on liability that the State must make reparation for the consequences of the loss and damage caused, with the proviso that the conditions for reparation of loss and damage laid down by the national legislation must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it in practice impossible or excessively difficult to obtain reparation ( Francovich and Others , paragraphs 41 to 43 and Norbrook Laboratories , paragraph 111).

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 10 LIABILITY OF JUDGES AND PRELIMINARY RULING

• The preliminary reference procedure is considered by the ECJ a case of manifest infringement, and liability • C-225/01, Köbler, 30.9.2003 • C-173/03, Traghetti del Mediterraneo, 13.6.2006 • C-154/08, Commission v/ Spain, 12-11-2009 • C-379/10, Commission v/ Italy, 24.11.2011 • C-160/14, Ferreira da Silva, 9.09.2015 • C-416/17, Commission v/ France, 4-10-2018

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 11 CJEU, TRAGHETTI DEL MEDITERRANEO 13 JUNE 2006 ( C-173/03)

In Traghetti del Mediterraneo, the CJE reaffirms its case-law on the State liability of Köbler, and adds: «32. It is true that, having regard to the specific nature of the judicial function and to the legitimate requirements of legal certainty, State liability in such a case is not unlimited. As the Court has held, State liability can be incurred only in the exceptional case where the national court adjudicating at last instance has manifestly infringed the applicable law [...]

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 12 CJEU, TRAGHETTI DEL MEDITERRANEO 13 JUNE 2006 ( C-173/03)

«32 [...] In order to determine whether that condition is satisfied, the national court hearing a claim for reparation must take account of all the factors which characterize the situation put before it, which 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 [...] [the] non-compliance by the court in question with its obligation to make a efferenceRAFAEL TOLEDANO CANTERO. for aJUDGE preliminary OF THE SUPREME COURT ruling OF SPAIN under the third paragraph of Article 234 EC 13 ( Köbler , paragraphs 53 to 55).» CJEU, COMMISION VERSUS ITALIA (24 NOVEMBER 2011, C-379/10)

➢The Commission raise a request to Italy on 10 February 2009 questioning the compatibility of the Italian Law ( Legge Vasalli) ➢Neither this letter, nor the subsequent letter of 22 March 2010, had a response. ➢Judgement of 24 November 2011, CJEU C-379/10 (a non-compliance proceeding) precludes excluding the liability for judicial infringement: ➢ when that infringement is derived from the interpretation of the legal rules or of the assessment of facts or evidence, or ➢ limiting that liability to cases of intentional fault or serious misconduct ➢ Last?? judgement of Traghetti´s secuence is CJEU-387/17, 23-01-2019

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 14 CJEU, FERREIRA DA SILVA VERSUS PORTUGAL (9 SEPTEMBER 2015, C160/14)

• ECJ stated that European Law precludes a national legislation that requires, as a prerequisite, the review of the unlawful decision issued by that court, when in practice such revocation is not possible. • It reiterates that the object of the lawsuit of liability and the final judgment in which res iudicata rests are different, and points out that the principle of State liability inherent in the legal order of the Union requires such reparation, but it does not impose a review of the judicial decision that caused the damage, as it had already stated in the Köbler judgment, and will subsequently reiterate later, in the judgment of 6 of October 2015 (Grand Chamber) in Case C -69 / 14 , Dragoș Constantin Târșia .

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 15 STATE LIABILITY FOR JUDICIAL INFRINGEMENT. LEGISLATIVE RESTRICTION IN NATIONAL LAW

• The principle of procedural autonomy and effectiveness • The situation in the different Member States is quite diverse • The preliminary reference procedure is considered by the European Court of Human Rights as an element of the fair trial obligation (Art 6 of the Convention). ECtHR, Dhahbi v Italy, 8.04.2014, Schipani v Italy, 21.07.2015 • Possibility of constitutional complaint, right to a lawful judge or effective judicial protection. • Review of the case when it is possible with regard a national law infringement. Case C-620/17, Hochtief Solutions AG Magyarországi Fióktelepe

RAFAEL TOLEDANO CANTERO. JUDGE OF THE SUPREME COURT OF SPAIN 16