Gerhard Köbler v Republik Österreich.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Date08 April 2003

OPINION OF ADVOCATE GENERAL

M. P. Léger

delivered on 8 April 2003 (1)

Case C-224/01

Gerhard Köbler

v

Republik Österreich

#(Reference for a preliminary ruling from the #)#

«Travailleurs - Egalité de traitement - Rémunération des professeurs d'université - Discrimination indirecte - Indemnité d'ancienneté»






Table of contents


I – The national legal framework

A – The principle of State liability

B – The special length-of-service increment for university professors

II – Facts and main proceedings

III – The questions referred for a preliminary ruling

IV – The subject-matter of the questions referred for a preliminary ruling

V – The principle of State liability for breach of Community law by a supreme court

A – The observations of the parties

B – Analysis

1. Does Community law impose on Member States an obligation to make good the loss or damage caused to individuals by breach of Community law by a supreme court?

a) The scope of the principle established by case-law of State liability for breach of Community law

i) Francovich and Others

ii) Brasserie du pêcheur and Factortame

b) The decisive role of the national court in the implementation of Community law

c) The state of the domestic law of the Member States on State liability for the acts or omissions of courts

2. The obstacles raised by some of the parties to the present proceedings are not such as to preclude State liability for breach of Community law by a supreme court

a) The independence of the judiciary

b) The parallel between the rules governing Member State liability and those governing Community liability

c) Respect for res judicata

d) Guarantees of the national courts' impartiality

VI – The substantive conditions determining imposition of State liability for breach of Community law by a supreme court

A – Observations of the parties

B – Analysis

1. The nature of the rule infringed

2. The nature of the breach of Community law

3. The direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties

VII – The determination of the court or tribunal with jurisdiction to assess the merits of the action for damages

A – Determination of the competent national court or tribunal

B – The respective roles of the Court of Justice and national courts in assessing the merits of the action for damages

VIII – The present case

IX – Conclusion

1. Can a Member State be rendered liable for breach of Community law where that breach is committed by a supreme court? Is the Member State in question required to compensate individuals for the resulting loss or damage? If so, what are the conditions which give rise to such liability?

2. Such are, in substance, the delicate questions which the Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna) (Austria) has referred to the Court in these proceedings. (2) For the first time, the Court is requested to clarify the scope of the principle that a State is liable for loss or damage caused to individuals by breaches of Community law attributable to the State. That principle was established by the Court in Francovich and Others(3) and has been considerably developed since Brasserie du pêcheur and Factortame(4) in respect of State liability for acts or omissions of the legislature or administrative authorities.

3. It is interesting to note that, in parallel, the Court is seised of an action for failure to fulfil obligations in Case C-129/00 Commission v Italy,(5) which particularly calls in question a dominant line of cases decided in the national courts, specifically the Corte suprema di cassazione (Supreme Court of Cassation) (Italy). That case requires the Court to consider issues analogous to those raised in these proceedings: must a Member State be answerable for the acts adopted by its courts (or by some of them) and, if so, to what extent? In addition, the Court is also seised of a request from the Netherlands for a preliminary ruling (6) on whether a national administrative body is required, under Community law, to reopen one of its decisions which has been confirmed by a final judicial decision, where the interpretation of the relevant Community legislation on which that administrative decision was based is belied by the Court in a subsequent preliminary ruling. That question referred for a preliminary ruling is worth mentioning although the issues are relatively different from those which concern us in the present case. I shall soon be delivering my Opinion in that case.

I – The national legal framework

A – The principle of State liability

4. In Austrian law, the principle of State liability is enshrined in the Federal Constitution (7) and defined by the Federal Law of 18 December 1948. (8) Paragraph 2 of that law provides:

(1) It is not necessary to designate a specific body upon an application for damages; it is sufficient to establish that the loss or damage could have been caused only by breach of the law by a person acting on behalf of the defendant.

(2) There shall be no right to redress where the injured party could have avoided the loss or damage by means of a legal remedy, in particular an appeal to the Verwaltungsgerichtshof [Austria (9)].

(3) A decision of the Verfassungsgerichtshof [Austria (10)], the Oberster Gerichtshof [Austria (11)] or the Verwaltungsgerichtshof shall not give rise to a right to redress.

5. It follows from those provisions that the liability of the Austrian State is expressly precluded in respect of loss or damage caused to individuals by decisions of supreme courts.

6. Moreover, disputes concerning State liability come within the inherent jurisdiction of the courts of first instance in civil and commercial matters (Landesgericht (regional court) (Austria), Handelsgericht Wien (commercial court, Vienna) (Austria)).

B – The special length-of-service increment for university professors

7. Paragraph 50a of the 1956 Gehaltsgesetz (salary law), (12) as amended in 2001, (13)(13) provides that a university professor is eligible for a special length-of-service increment to be taken into account in the calculation of his retirement pension. The grant of that increment is conditional, in particular, on completion of 15 years' service as a professor at Austrian universities.

II – Facts and main proceedings

8. Mr Köbler has been employed since 1 March 1986 under a public-law contract with the Austrian State in the capacity of ordinary university professor in Innsbruck (Austria). By letter of 28 February 1996 to the competent administrative authority, he applied for the special length-of-service increment for university professors. In support of his application, he relied on completion of 15 years' service as an ordinary professor at universities in various Member States of the European Community, in particular Austria. That application was rejected on the ground that Mr Köbler did not fulfil the length-of-service conditions under Paragraph 50a of the 1956 salary law, namely completion of the required service exclusively at Austrian universities.

9. Mr Köbler thus appealed against that decision to the Verwaltungsgerichtshof. He claimed that the length-of-service conditions imposed by that law for eligibility for the increment at issue amount to indirect discrimination contrary to the principle of freedom of movement for workers guaranteed by Article 48 of the EC Treaty (now, after amendment, Article 39 EC) and by Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community.(14)

10. In the light of such an argument, the supreme administrative court referred a question to the Court for a preliminary ruling in order to ascertain whether Article 48 of the Treaty and Articles 1 to 3 of Regulation No 1612/68 are to be interpreted as meaning that, under a pay scheme which provides that salary is dependent, inter alia, on length of service, activities of equal value previously undertaken in another Member State must be treated in the same way as activities previously undertaken in the country under consideration(15).

11. By letter of 11 March 1998, the Court asked the supreme administrative court whether it deemed it necessary to maintain its question submitted for a preliminary ruling in the light of the judgment of 15 January 1998 in Schöning-Kougebetopoulou(16) which had been delivered in the meantime. The national court requested the parties to give their views on the matter, since at first sight the legal issue which was the subject-matter of the question submitted for a preliminary ruling had been resolved by that judgment of the Court in a sense favourable to Mr Köbler's claims. On 24 June 1998, the national court finally withdrew its request for a preliminary ruling, and then dismissed Mr Köbler's application on the ground that the special length-of-service increment is a loyalty bonus which objectively justifies a derogation from the Community law provisions on freedom of movement for workers.

12. On 2 January 2001, Mr Köbler brought an action for damages against the Republic of Austria before the Landesgericht für Zivilrechtssachen Wien.(17) He submits that the judgment of 24 June 1998 of the supreme administrative court infringed directly applicable provisions of Community law. In his submission, the Court's case-law does not treat the increment at issue in the same way as a loyalty bonus. As a consequence, he seeks compensation for the loss which he has unlawfully sustained as a result of the judicial decision in question which refused to grant the special length-of-service increment which he is entitled to claim under Community law. The Republic of Austria opposes that application for compensation on the ground that the judgment of the supreme administrative court is not contrary to Community law and that, in any event, a decision of a...

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4 practice notes
  • Ewaen Fred Ogieriakhi v Minister for Justice and Equality and Others.
    • European Union
    • Court of Justice (European Union)
    • 14 May 2014
    ...del Mediterraneo, C‑173/03, EU:C:2006:391, paragraph 32 and cited case-law. 32 – See point 66 of his Opinion in Köbler, C‑224/01, EU:C:2003:207. 62013CC0244 CONCLUSIONS DE L’AVOCAT GÉNÉRAL M. YVES BOT présentées le 14 mai 2014 ( 1 ) Affaire C‑244/13 Ewaen Fred Ogieriakhi contre Minister for......
  • Opinion of Advocate General Bobek delivered on 23 September 2020.
    • European Union
    • Court of Justice (European Union)
    • 23 September 2020
    ...punto 52). 45 Per la situazione di alcuni anni fa, vedi conclusioni dell’avvocato generale Léger nella causa Köbler (C‑224/01, EU:C:2003:207, paragrafi da 77 a 84). Da tale analisi, egli ha concluso che «il principio della responsabilità dello Stato per atti degli organi giurisdizionali sup......
  • Conclusiones del Abogado General Sr. Y. Bot, presentadas el 16 de mayo de 2019.
    • European Union
    • Court of Justice (European Union)
    • 16 May 2019
    ...(C‑173/03, EU:C:2005:602): «Además, como ya señalé en mis conclusiones en el asunto en el que recayó la sentencia Köbler [C‑224/01, EU:C:2003:207], (punto 38), si, ante la imposibilidad de interponer un recurso contra una resolución dictada por un tribunal supremo, la acción de responsabili......
  • Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira.
    • European Union
    • Court of Justice (European Union)
    • 6 October 2009
    ...disponibles o tras expirar los plazos previstos para el ejercicio de dichos recursos (sentencias de 30 de septiembre de 2003, Köbler, C‑224/01, Rec. p. I‑10239, apartado 38; de 16 de marzo de 2006, Kapferer, C‑234/04, Rec. p. I‑2585, apartado 20, y de 3 de septiembre de 2009, Fallimento Oli......
4 cases
  • Ewaen Fred Ogieriakhi v Minister for Justice and Equality and Others.
    • European Union
    • Court of Justice (European Union)
    • 14 May 2014
    ...del Mediterraneo, C‑173/03, EU:C:2006:391, paragraph 32 and cited case-law. 32 – See point 66 of his Opinion in Köbler, C‑224/01, EU:C:2003:207. 62013CC0244 CONCLUSIONS DE L’AVOCAT GÉNÉRAL M. YVES BOT présentées le 14 mai 2014 ( 1 ) Affaire C‑244/13 Ewaen Fred Ogieriakhi contre Minister for......
  • Opinion of Advocate General Bobek delivered on 23 September 2020.
    • European Union
    • Court of Justice (European Union)
    • 23 September 2020
    ...punto 52). 45 Per la situazione di alcuni anni fa, vedi conclusioni dell’avvocato generale Léger nella causa Köbler (C‑224/01, EU:C:2003:207, paragrafi da 77 a 84). Da tale analisi, egli ha concluso che «il principio della responsabilità dello Stato per atti degli organi giurisdizionali sup......
  • Conclusiones del Abogado General Sr. Y. Bot, presentadas el 16 de mayo de 2019.
    • European Union
    • Court of Justice (European Union)
    • 16 May 2019
    ...(C‑173/03, EU:C:2005:602): «Además, como ya señalé en mis conclusiones en el asunto en el que recayó la sentencia Köbler [C‑224/01, EU:C:2003:207], (punto 38), si, ante la imposibilidad de interponer un recurso contra una resolución dictada por un tribunal supremo, la acción de responsabili......
  • Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira.
    • European Union
    • Court of Justice (European Union)
    • 6 October 2009
    ...disponibles o tras expirar los plazos previstos para el ejercicio de dichos recursos (sentencias de 30 de septiembre de 2003, Köbler, C‑224/01, Rec. p. I‑10239, apartado 38; de 16 de marzo de 2006, Kapferer, C‑234/04, Rec. p. I‑2585, apartado 20, y de 3 de septiembre de 2009, Fallimento Oli......

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