Gerhard Köbler v Republik Österreich.
Date: 2003-09-30
30. First, as the Court has repeatedly held, the principle of liability on the part of a Member State for damage caused to individuals as a result of breaches of Community law for which the State is responsible is inherent in the system of the Treaty (Joined Cases C-6/90 and C-9/90  Francovich and Others [1991] ECR I-5357, paragraph 35;  Brasserie du Pêcheur and Factortame , cited above, paragraph 31; Case C-392/93  British Telecommunications  [1996] ECR I-1631, paragraph 38; Case C-5/94  Hedley Lomas  [1996] ECR I-2553, paragraph 24; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94  Dillenkofer and Others [1996] ECR I-4845, paragraph 20, Case C-127/95  Norbrook Laboratories  [1998] ECR I-1531, paragraph 106 and  Haim , cited above, paragraph 26).
31. The Court has also held that that principle applies to any case in which a Member State breaches Community law, whichever is the authority of the Member State whose act or omission was responsible for the breach ( Brasserie du Pêcheur and Factortame,  cited above, paragraph 32; Case C-302/97  Konle  [1999] ECR I-3099, paragraph 62 and  Haim,  cited above, paragraph 27).
32. In international law a State which incurs liability for breach of an international commitment is viewed as a single entity, irrespective of whether the breach which gave rise to the damage is attributable to the legislature, the judiciary or the executive. That principle must apply  a fortiori  in the Community legal order since all State authorities, including the legislature, are bound in performing their tasks to comply with the rules laid down by Community law which directly govern the situation of individuals ( Brasserie du Pêcheur and Factortame,  cited above, paragraph 34).
33. In the light of the essential role played by the judiciary in the protection of the rights derived by individuals from Community rules, the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by an infringement of Community law attributable to a decision of a court of a Member State adjudicating at last instance.
34. It must be stressed, in that context, that a court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by Community law. Since an infringement of those rights by a final decision of such a court cannot thereafter normally be corrected, individuals cannot be deprived of the possibility of rendering the State liable in order in that way to obtain legal protection of their rights.
35. Moreover, it is, in particular, in order to prevent rights conferred on individuals by Community law from being infringed that under the third paragraph of Article 234 EC a court against whose decisions there is no judicial remedy under national law is required to make a reference to the Court of Justice.
36. Consequently, it follows from the requirements inherent in the protection of the rights of individuals relying on Community law that they must have the possibility of obtaining redress in the national courts for the damage caused by the infringement of those rights owing to a decision of a court adjudicating at last instance (see in that connection  Brasserie du Pêcheur and Factortame,  cited above, paragraph 35).
38. In that regard the importance of the principle of  res judicata  cannot be disputed (see judgment in  Eco Swiss , cited above, paragraph 46). In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called in question.
39. However, it should be borne in mind that recognition of the principle of State liability for a decision of a court adjudicating at last instance does not in itself have the consequence of calling in question that decision as  res judicata . Proceedings seeking to render the State liable do not have the same purpose and do not necessarily involve the same parties as the proceedings resulting in the decision which has acquired the status of  res judicata . The applicant in an action to establish the liability of the State will, if successful, secure an order against it for reparation of the damage incurred but not necessarily a declaration invalidating the status of  res judicata  of the judicial decision which was responsible for the damage. In any event, the principle of State liability inherent in the Community legal order requires such reparation, but not revision of the judicial decision which was responsible for the damage.
40. It follows that the principle of res judicata  does not preclude recognition of the principle of State liability for the decision of a court adjudicating at last instance.
46. According to settled case-law, in the absence of Community legislation, it is for the internal legal order of each Member State to designate the competent courts and lay down the detailed procedural rules for legal proceedings intended fully to safeguard the rights which individuals derive from Community law (see the judgments in Case 33/76  Rewe  [1976] ECR 1989, paragraph 5; Case 45/76  Comet  [1976] ECR 2043, paragraph 13; Case 68/79  Just  [1980] ECR 501, paragraph 25;  Frankovich and Others , cited above, paragraph 42, and Case C-312/93  Peterbroeck  [1995] ECRI-4599, paragraph 12).
47. Subject to the reservation that it is for the Member States to ensure in each case that those rights are effectively protected, it is not for the Court to become involved in resolving questions of jurisdiction to which the classification of certain legal situations based on Community law may give rise in the national judicial system (judgments in Case C-446/93  SEIM  [1996] ECR I-73, paragraph 32 and Dorsch Consult , cited above, paragraph 40).
50. It follows from the foregoing that the principle according to which the Member States are liable to afford reparation of damage caused to individuals as a result of infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance. It is for the legal system of each Member State to designate the court competent to adjudicate on disputes relating to such reparation.
Conditions governing State liability
51. As to the conditions to be satisfied for a Member State to be required to make reparation for loss and damage caused to individuals as a result of breaches of Community law for which the State is responsible, the Court has held that these are threefold: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation incumbent on the State and the loss or damage sustained by the injured parties ( Haim , cited above, paragraph 36).
52. State liability for loss or damage caused by a decision of a national court adjudicating at last instance which infringes a rule of Community law is governed by the same conditions.
53. With regard more particularly to the second of those conditions and its application with a view to establishing possible State liability owing to a decision of a national court adjudicating at last instance, regard must be had to the specific nature of the judicial function and to the legitimate requirements of legal certainty, as the Member States which submitted observations in this case have also contended. State liability for an infringement of Community law by a decision of a national court adjudicating at last instance can be incurred only in the exceptional case where the court has manifestly infringed the applicable law.
54. In order to determine whether that condition is satisfied, the national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it.
55. Those factors include, in particular, the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken, where applicable, by a Community institution and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 234 EC.
56. In any event, an infringement of Community 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 to that effect  Brasserie du Pêcheur and Factortame,  cited above, paragraph 57).
57. The three conditions mentioned at paragraph 51 hereof are necessary and sufficient to found a right in favour of individuals to obtain redress, although this does not mean that the State cannot incur liability under less strict conditions on the basis of national law (see  Brasserie du Pêcheur and Factortame,  cited above, paragraph 66).
58. Subject to the existence of a right to obtain reparation which is founded directly on Community law where the conditions mentioned above are met, it is on the basis of rules of national law on liability that the State must make reparation for the consequences of the loss and damage caused, with the proviso that the conditions for reparation of loss and damage laid down by the national legislation must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it in practice impossible or excessively difficult to obtain reparation ( Francovich and Others , paragraphs 41 to 43 and  Norbrook Laboratories , paragraph 111).
59. In the light of all the foregoing, the reply to the first and second questions must be that 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 where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, 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 such a decision, the competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest. It is for the legal system of each Member State to designate the court competent to determine disputes relating to that reparation.
Third question
60. At the outset it must be recalled that the Court has consistently held that, in the context of the application of Article 234 EC, it has no jurisdiction to decide whether a national provision is compatible with Community law. The Court may, however, extract from the wording of the questions formulated by the national court, and having regard to the facts stated by the latter, those elements which concern the interpretation of Community law, for the purpose of enabling that court to resolve the legal problems before it (see, inter alia, the judgment in Joined Cases C-332/92, C-333/92 and C-335/92  Eurico Italia and Others  [1994] ECR I-711, paragraph 19).
73. First, that regime operates to the detriment of migrant workers who are nationals of Member States other than the Republic of Austria where those workers are refused recognition of periods of service completed by them in those States in the capacity of university professor on the sole ground that those periods were not completed in an Austrian university (see, in that connection, with regard to a comparable Greek provision, Case C-187/96  Commission  v Greece  [1998] ECR I-1095, paragraphs 20 and 21).
74. Secondly, that absolute refusal to recognise periods served as a university professor in a Member State other than the Republic of Austria impedes freedom of movement for workers established in Austria inasmuch as it is such as to deter the latter from leaving the country to exercise that freedom. In fact, on their return to Austria, their years of experience in the capacity of university professor in another Member State, that is to say in the pursuit of comparable activities, are not taken into account for the purposes of the special length-of-service increment provided for in Article 50a of the GG.
77. Consequently, a measure such as the grant of a special length-of-service increment provided for in Article 50a of the GG is likely to constitute an obstacle to freedom of movement for workers prohibited in principle by Article 48 of the Treaty and Article 7(1) of Regulation No 1612/68. Such a measure could be accepted only if it pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interest. But even if that were so, application of that measure would still have to be such as to ensure achievement of the aim in question and not go beyond what is necessary for that purpose (see, inter alia, Case C-19/92  Kraus  [1993] ECR I-1663, paragraph 32, Case C-55/94  Gebhard  [1995] ECR I-4165, paragraph 37 and Case C-415/93  Bosman  [1995] ECR I-4921, paragraph 104).
81. At paragraphs 27 of the judgment in  Schöning-Kougebetopoulou , cited above, and 49 of the judgment in Case C-195/98  Österreichischer Gewerkschaftsbund  [2000] ECR I-10497, the Court rejected the arguments advanced in that regard by the German and Austrian Governments respectively. Indeed, the Court there stated that the legislation at issue was not on any view capable of seeking to reward the employee ' s loyalty to his employer, because the increase in salary which that worker received in respect of his length of service was determined by the years of service completed with a number of employers. Since, in the cases giving rise to those judgments, the increase in salary did not constitute a loyalty bonus, it was not necessary for the Court to examine whether such a bonus could in itself justify an obstacle to freedom of movement for workers.
83. Although it cannot be excluded that an objective of rewarding workers ' loyalty to their employers in the context of policy concerning research or university education constitutes a pressing public-interest reason, given the particular characteristics of the measure at issue in the main proceedings, the obstacle which it entails clearly cannot be justified in the light of such an objective.
100. It is clear from the case-law of the Court that it is, in principle, for the national courts to apply the criteria for establishing the liability of Member States for damage caused to individuals by breaches of Community law ( Brasserie du Pêcheur and Factortame , paragraph 58), in accordance with the guidelines laid down by the Court for the application of those criteria ( Brasserie du Pêcheur and Factortame , paragraphs 55 to 57;  British Telecommunications , cited above, paragraph 411; Joined Cases C-283/94, C-291/94 and C-292/94  Denkavit and Others  [1996] ECR I-5063, paragraph 49, and  Konle , cited above, paragraph 58).
109. Finally, the Court had already held at paragraphs 22 and 23 of its  Schöning-Kougebetopoulou  judgment, cited above, that a measure which makes a worker ' s remuneration dependent on his length of service but excludes any possibility for comparable periods of employment completed in the public service of another Member State to be taken into account is likely to infringe Article 48 of the Treaty.
118. That court was not entitled to take the view that resolution of the point of law at issue was clear from the settled case-law of the Court or left no room for any reasonable doubt (Case 283/81  CILFIT and Others  [1982] ECR 3415, paragraphs 14 and 16). It was therefore obliged under the third paragraph of Article 177 of the Treaty to maintain its request for a preliminary ruling.