open access

Abstract

This paper discusses the Köbler case, in which the 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.