Erroneous judgments and the prospect of damages: the scope of the principle of governmental liability for judicial breaches

Abstract:

The present litigation confirms that the violation of the Community law requirements by the supreme national courts may give rise to the imposition of governmental liability. The judgment clarifies that the doctrine extends to all essential aspects of the judicial function, including the interpretation of the law and the assessment of facts and evidence. It is nevertheless submitted that its contribution to the effective protection of individuals will be relatively limited for two basic reasons. First, the payment of damages for judicial breaches appears to be a last resort remedy that is guaranteed solely in circumstances where it constitutes the only form of redress available to the applicant. The decisions of the lower instance courts thus escape its application and have to be challenged directly through the domestic judicial pyramid. Secondly, the liability standard is such that it will usually be difficult to establish the existence of a manifest judicial infringement capable of satisfying the sufficiently serious breach requirement. Notwithstanding this fact, the prospect of holding their governments liable in damages may exercise an indirect pressure on the national courts to be more diligent in the performance of their judicial duties. This is of particular importance with regard to the preliminary reference obligation.