KöBler V. Austria: Expositional Supremacy and Member State Liability

Abstract:     
In a series of cases beginning with Francovich v. Italy, the European Court of Justice has recognized that individuals have a right to sue member states in their own courts for violation of the treaties that create the European Community. The most recent decision in that line, Köbler v. Austria, extends this right to individuals who claim that the member state's highest court wrongly applied European law. The Köbler decision continues a trend toward expanded member state liability that looks relatively adventuresome both in terms of European law (which makes no explicit provision for such suits) and when compared to the situation in the United States, where the Supreme Court has developed a judge-made body of sovereign immunity law that protects the member states from many individual suits.

This article examines the way the high courts of Europe and the United States approach the task of securing member state compliance with higher law. Despite many differences, the article finds that a theme of expositional supremacy helps to explain the approach of both bodies. Although the Supreme Court has been reluctant to approve direct suits against member states, it oversees a system of federal remedies that provides a number of entry points for litigants who wish to question the constitutionality of state action. European Community law, by contrast, provides fewer opportunities for individuals to challenge member state action and no opportunity for the ECJ to review member state court decisions directly by way of appeal. Viewed in the context of a relatively weak set of alternative remedies, the Köbler decision encourages member state courts to facilitate ECJ review through the preliminary reference procedure. In the end, member state liability may thus help to secure a place for the ECJ comparable to that of the Supreme Court in expounding the meaning of higher law.

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