Opinion of the Advocate General — ECLI:EU:C:2003:207
Date: 2003-04-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Community law — Rights conferred on individuals — Infringement by a Member 
State — Obligation to make good damage caused to individuals — Infringement 
attributable to a supreme court — No effect — Court competent to decide a case 
relating to such compensation — Application of national law 
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SUMMARY — CASE C-224/01 
2. Community law — Rights conferred on individuals — Infringement by a Member 
State — Obligation to make good damage caused to individuals — Conditions in the 
event of infringement attributable to a supreme court — Manifest character of the 
infringement — Criteria 
3. Freedom of movement for persons — Workers — Equal treatment — Remuneration 
of university professors — Indirect discrimination — Length-of-service increment 
which takes into account only the length of service in the universities of the Member 
State concerned — Not permissible — Whether justifiable — No justification 
(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC); Council Regulation 
No 1612/68, Art. 7(1)) 
4. Community law — Infringement by a Member State — Obligation to make good 
damage caused to individuals — Infringement attributable to a supreme court — 
Particular circumstances — Lack of manifest character of the infringement 
1. The principle that Member States are 
obliged to make good damage caused 
to individuals by infringements of 
Community law for which they are 
responsible is also applicable when the 
alleged infringement stems from a 
decision of a court adjudicating at last 
instance. 
That principle, inherent in the system 
of the Treaty, applies to any case in 
which a Member State breaches Com­
munity law, whichever is the authority 
of the Member State whose act or 
omission was responsible for the 
breach. 
It is for the legal system of each 
Member State to designate the court 
competent to adjudicate on disputes 
relating to such reparation. Subject to 
the reservation that it is for the 
Member States to ensure in each case 
that those rights are effectively pro­
tected, it is not for the Court to become 
involved in resolving questions of juris­
diction to which the classification of 
certain legal situations based on Com­
munity law may give rise in the 
national judicial system. 
(see paras 30-31, 33, 46-47, 50, 
operative part 1) 
2. Member States are obliged to make 
good damage caused to individuals by 
infringements of Community law for 
which they are responsible where the 
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KÖBLER 
rule of Community law infringed is 
intended to confer rights on individ­
uals, the breach is sufficiently serious 
and there is a direct causal link 
between that breach and the loss or 
damage sustained by the injured 
parties. In order to determine whether 
the infringement is sufficiently serious 
when the infringement at issue stems 
from a decision of a court adjudicating 
at last instance, the competent national 
court must, taking into account the 
specific nature of the judicial function 
and the legitimate requirement of legal 
certainty, determine whether that 
infringement is manifest. 
In particular, the national court must 
take account of all the factors which 
characterise the situation put before it. 
Those factors include, in particular, the 
degree of clarity and precision of the 
rule infringed, whether the infringe­
ment was intentional, whether the 
error of law was excusable or inexcus­
able, the position taken, where appli­
cable, by a Community institution and 
non-compliance by the court in ques­
tion with its obligation to make a 
reference for a preliminary ruling under 
the third paragraph of Article 234 EC. 
In any event, an infringement of Com­
munity law will be sufficiently serious 
where the decision concerned was 
made in manifest breach of the case-
law of the Court in the matter. 
(see paras 51-56, operative part 1) 
3. Article 48 of the Treaty (now, after 
a m e n d m e n t , Article 39 EC) and 
Article 7(1) of Regulation No 1612/68 
on freedom of movement for workers 
within the Community are to be inter­
preted as meaning that they preclude 
the grant by a Member State qua 
employer, of a special length-of-service 
increment to university professors 
which secures a financial benefit in 
addition to basic salary, the amount of 
which is already dependent on length 
of service, and which a university 
professor receives if he has carried on 
that profession for at least 15 years 
with a university in that Member State 
and if, furthermore, he has been in 
receipt for at least four years of the 
normal length-of-service increment. 
As it precludes, for the purpose of the 
grant of the special length-of-service 
increment for which it provides, any 
possibility of taking into account 
periods of activity completed by a 
un ive r s i ty p ro fesso r in a n o t h e r 
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SUMMARY — CASE C-224/01 
Member State, such a regime is clearly 
likely to impede freedom of movement 
for workers. 
Although it cannot be excluded that an 
objective of rewarding workers' loyalty 
to their employers in the context of 
policy concerning research or univer­
sity education constitutes a pressing 
public-interest reason, the obstacle 
which such a measure entails clearly 
cannot be justified in the light of such 
an objective. 
(see paras 70-72, 83, 
operative part 2) 
4. An infringement of Community law 
does not have the requisite manifest 
character for liability under Commu­
nity law to be incurred by a Member 
State for a decision of one of its courts 
adjudicating at last instance when, 
firstly, Community law does not 
expressly cover the issue of law in 
question, there is no answer to be 
found in the Court's case-law and the 
answer is not obvious and secondly, the 
infringement is not deliberate in nature 
but results from the incorrect reading 
of a judgment of the Court. 
(see paras 122-123, 126, 
operative part 3) 
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