State liability for damage caused by failure to submit a preliminary reference by a national court - evaluation of current regulation and practice
Abstract
This article focuses on the evaluation of the current state of the EU regulation of the liability of a Member State for damage caused by a breach of the obligation to refer a preliminary question to the Court of Justice of the European Union under Article 267 (3) TFEU.
In addition to evaluating the current legislation, it also discusses the practical applicability of the so-called Köbler doctrine and comes up with proposals on how to increase its usability and effectiveness. This is primarily because, in the author's view, failure to refer a preliminary question by a court of a Member State also constitutes, inter alia, an infringement of the right to effective judicial protection (as one of the general principles of EU primary law) and right to the legal judge. Under current state of law, requiring compensation from a Member State for failure to refer a preliminary question by a court of last instance is the primary instrument for redressing infringements of EU law, which is currently not successfully reflected in the frequency of such disputes or in the applicants' success.
At the end of the thesis, the author presents the possibilities for streamlining the decision of the national court to refer or not to refer a preliminary question in relation to the success of later recovery of damages by individuals according to the Köbler doctrine. This is done with the help of a comparative analysis of primary EU law, the relevant case law of the Court of Justice, the European Court of Human Rights and an analysis of the case law of the Member States.
The aim of the thesis is to approach the procedure of liability of a Member State for damage caused to individuals in cases where the violation of EU law results from a decision of a court of a Member State ruling in the last instance, specifically in the case of not referring a preliminary question to the CJEU, and outlining the possibilities for the full effectiveness of this institute in practice, taking into account current case law within the EU.