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Non-Compliance of National Courts

Remedies in European Community Law and Beyond

By: Bernhard Hofstotter

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Hardcover | 27 October 2005

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240 Pages

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23.5 x 15.88 x 1.91

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National courts take a pivotal role in making European Community law a living truth for citizens. Individuals may turn to the courts in order to invoke rights derived from Community law. However, the capacity of individuals to effectively enforce their Community law rights depends crucially on the correct application of Community law by national courts.

In line with developments in international law, and in particular with the jurisprudence of the European Court of Human Rights, the ECJ has recently stepped up itslevel of scrutiny with regard to national courts incorrectly applying Community law. As a consequence of a sequence of strong rulings, there is now a clear trend towards holding states accountable for their courts. By contrast, national laws traditionally tend to shield states from accountability for judicial conduct.

This book is the first to deal with possible legal responses in the Community legal order and beyond, when national courts incorrectly apply Community law. Rooted in a rigorous contextual analysis of recent jurisprudence, this work discusses various alternatives for future developments in the Court?s case law. The author explains the often uneasy nature of the relationship betweennational courts and the ECJ. He explores common concerns voiced against an excessive degree of accountability for judicial conduct.

This work is based on extensive research on European Community law and adjacent areas of public international law. It is highly recommended to academics and advanced law students, as well as practitioners in the field of Community law, including national judges, policy makers and government officials.

Bernhard Hofstoetter studied law at the Universities of Vienna, Oslo, Leuven (magna cum laude) and St. Gallen (magna cum laude). He is presently an Assistant Professor of European Law at the University of Fribourg and a visiting lecturer at the Academia Istropolitana Nova in Bratislava.

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Non-Fiction Law Jurisprudence & General Issues Comparative Law International Law

Preface	p. VII
Acknowledgements	p. IX
Abbreviations	p. XV
Introduction	p. 1
Effectuating Effectiveness in European Community Law	p. 7
The 'Transformation of Europe' and a Prior Transformation in Public International Law	p. 9
National Courts and 'National Procedural Autonomy'	p. 14
A strategy of minimum interference	p. 24
A growing concern over effectiveness	p. 26
Setting aside national 'remedies'	p. 27
Creating new remedies	p. 28
Creating new remedies and spelling out minimum conditions for their exercise	p. 31
A more balanced approach	p. 33
Critique and conclusion	p. 34
State Liability for Judicial Wrongs - Basic Notions	p. 39
Extension to judicial acts - the problem	p. 39
Non-compliant courts	p. 41
Primary and secondary proceedings	p. 43
Three Hypotheses on the Necessity of State Liability for Judicial Acts in the Community Legal Order	p. 45
International Law Hypothesis I: State Liability As Refined 'State Responsibility' Tailored to the Individualising Nature of the Community Legal Order	p. 49
Community law refers to public international law	p. 50
Attribution of courts to the State in public international law	p. 55
From the early days to the twentieth century	p. 55
Contemporary practice	p. 57
Separation of attribution from substantive issues	p. 57
The ILC's Draft Articles on State Responsibility	p. 58
Practice of international courts concerning the attribution of national courts to the State	p. 61
Scholarly comment	p. 63
Conclusion	p. 64
Transferability to Community law?	p. 65
Conclusion	p. 70
International Law-Hypothesis II: The Imperatives of the Protection of Fundamental Rights Are Such As to Require State Liability for Judicial Acts	p. 71
Procedural guarantees - Articles 6 and 13 of the ECHR	p. 71
Substantive guarantees - Article 1 of Protocol No. 1	p. 75
Conclusion	p. 78
Comparative Law-Hypothesis: State Liability for Judicial Acts Is a General Principle Common to the Legal Traditions of the Member States	p. 79
Alleging a general principle	p. 80
Conclusion	p. 84
Conclusion	p. 86
Reservations for Community Law	p. 89
Grounds Causing Hesitation	p. 91
Judicial independence	p. 91
The doctrine of res judicata	p. 95
Impartiality of the judiciary	p. 107
Endangering the spirit of co-operation between the ECJ and national courts?	p. 108
Litis finiri opportet or endless litigation within 'reasonable time' (Article 6 of the ECHR)?	p. 112
The parallelism between State liability and the community's extra-contractual liability regime	p. 114
Undesirable power gain for the ECJ?	p. 118
Conclusion	p. 120
Which Standard of Liability for Judicial Acts?	p. 123
The Additional Standard of 'Manifest Infringement' of Community Law	p. 126
Criteria to Be Taken into Account by National Courts	p. 131
Breach of the duty to refer pursuant to Article 234(3) of the EC Treaty	p. 132
Conclusion	p. 135
The Application of the Standard of Manifest Infringement in Kobler	p. 136
Need to Delimit the Judiciary from the Other State Functions	p. 142
What is a court for the purposes of State liability?	p. 144
Do only courts of last instance trigger State liability?	p. 144
What is a court of last instance for the purposes of State liability?	p. 146
Conclusion	p. 150
Conclusion	p. 150
Necessary Institutional Arrangements in the Member States to Facilitate State Liability for Judicial Acts - A Case Study on Austria	p. 153
Community Law Background	p. 155
State Liability for Judicial Acts under Austrian law	p. 161
State liability pursuant to the law on official liability (Amtshaftungsgesetz - AHG)	p. 161
State liability pursuant to Article 137 of the Austrian Federal Constitutional Law	p. 170
Concluding assessment	p. 171
Alternative Remedies	p. 177
Kuhne & Heitz and an Approach of 'Try Again'?	p. 179
The Action for Infringement	p. 181
Deficiencies	p. 182
Commission v. Italy	p. 183
Relationship between Kobler liability and the action for infringement	p. 188
The Residuary Role of the ECrtHR	p. 189
Conclusion	p. 191
Epilogue	p. 195
Bibliography	p. 207
Table of Cases	p. 217
Table of Contents provided by Ingram. All Rights Reserved.

Non-Compliance of National Courts

Remedies in European Community Law and Beyond

At a Glance

Hardcover

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How to return your order

Defective items

You Can Find This Book In

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