Res Judicata in the ECJ Case Law: Balancing Legal Certainty with Legality?
European Constitutional Law Review, Issue 3, pp. 385-417, 2007
33 Pages Posted: 6 Oct 2009 Last revised: 2 Sep 2015
Date Written: March 5, 2007
The recent jurisprudence of the Court of Justice in Köbler and Kühne & Heitz has made clear that the Court is willing to establish legal principles that will make it possible to effectively tackle the abuse of the acte clair doctrine. As to the former case, the Court established the possibility of engaging member state liability in a case where the national court of last instance (in casu the Supreme Administrative Court), using the acte clair doctrine, commits a manifest breach of Community law. As to the latter, the Court concluded that an administrative body, in accordance with the principle of co-operation arising from Article 10 EC, is under an obligation to review a decision in order to take into account the interpretation of the relevant Community law provision given in the meantime by the Court. Though of a procedural nature, this jurisprudence captures many constitutional issues related, for instance, to the scope of Articles 10 EC (duty of loyalty) and 234 EC (preliminary ruling). It is also striking that these two cases embody the same rationale for the Court, i.e., the quest for a fair balance between legal certainty and legality. Notably, these significant rulings of the Court of Justice have touched upon the principle of res judicata in the context of both state liability and revision of decisions. However, the range of res judicata is still rather ambiguous, since the case-law is in statu nacendi and thus appears to be of particular complexity. It is well-known that the Court of Justice reinforces or/and clarifies a new established principle through its subsequent case-law. Cases and Opinions from 2006 and 2007, such as Traghetti del Mediterraneo, EDF Man Sugar, Kapferer, i-21 and Arcor, Lucchini and Kempter, that may illuminate the decisions de principe of 2003 (Köbler) and 2004 (Kühne & Heitz), therefore should be thoroughly analyzed.4 Is there something new under the sun? Or, do those recent cases merely confirm the previous jurisprudence? The aim of this article is to determine the scope of res judicata in light of the recent jurisprudence of the Court. In this respect, two main lines of cases may be discerned, i.e., the cases on member state liability and the reopening of final decisions. This jurisprudence is intricately related and must be read together. Furthermore, it is argued that the Köbler doctrine appears subsidiary to the Kühne and Heitz line of case-law. If this is true, many criticisms against the Köbler line of cases might appear less valid. First, it is necessary to give a definition of res judicata. We will scrutinize this concept in relation to the principle of legal certainty and then analyze it in the light of Community legality. Secondly, this article focuses on the line of cases concerning res judicata and member state liability. This section will look at the cases relating to the elaboration of the principle and then to its confirmation. Thirdly, we have assessed the scope of res judicata in connection with the jurisprudence dealing with the reopening of final decisions. In that respect, two areas will be analyzed: on the one hand, the reopening of final administrative decisions; on the other hand, the reopening of final judicial decisions.
Keywords: Res Judicata, European Court of Justice, Legal Certainty, Legality, Revision of Decisions, State Liability, Acte Clair; Kühne & Heitz, Köbler
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