Inter-Court Constitutional Dialogue After the Enlargement - Implications of the Case of Professor Köbler

Croatian Yearbook of European Law and Policy, Vol. 1, p. 75, 2005

20 Pages Posted: 3 Oct 2006

See all articles by Jan Komárek

Jan Komárek

iCourts, Faculty of Law, University of Copenhagen

Abstract

This paper discusses the Köbler case, in which the European Court of Justice confirmed that the principle of Member States' liability for breaches of Community law (the "Francovich" Principle) also applies to breaches committed by national judiciaries. The author looks at this decision and, more importantly, at the Court's reasoning from the point of view of the concept of multi-constitutionalism, which, he believes, is a viable model for a pluralistic entity such as the European Union. Several shortcomings of the decision are discussed in this paper, including the Court's avoidance of difficult questions by reference to the principle of national procedural autonomy, or its unpersuasive comparative reasoning. One further shortcoming is the lack of any balancing argumentation, which would have seemed appropriate in a case where two legal principles (the effectiveness of Community law, on the one hand, and legal certainty and res judicata, on the other) stood in opposition. In the final part of the paper, the author points out that the problem of gaining acceptance for this decision may be even more difficult with regard to judges in the new Member States, as their legal systems are simultaneously undergoing not only Europeanisation but also transition.

Keywords: European law, judicial system, European Court of Justice, national courts, appeal, precedent, hierarchy, control, Enlargement, Köbler case

JEL Classification: K10

Suggested Citation

Komárek, Jan, Inter-Court Constitutional Dialogue After the Enlargement - Implications of the Case of Professor Köbler. Croatian Yearbook of European Law and Policy, Vol. 1, p. 75, 2005, Available at SSRN: https://ssrn.com/abstract=934357

Jan Komárek (Contact Author)

iCourts, Faculty of Law, University of Copenhagen ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/icourts/staff/profile/?pure=en/persons/591330

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