Judicial Infringements of European Union Law Attributable to National Courts. State liability, remedies for individuals, infringement procedure and the erosion of the principles of legal certainty and res judicata

Through the years the European Court of Justice has by means of judicial activism transformed the EU legal settlement, providing remedies and principles to effectively tackle violations of EU law attributable to Member States’ legislative and executive authority. In this sense, Member States’ judiciaries have maintained their traditionally privileged position as independent and impartial actors in a democratic state, providing the means for the society to put an end to legal disputes, regardless whether one considers a given decisions to be right or wrong. Recently, however, the ECJ has embarked on a new area of jurisprudence, often with limited appreciation from the academic and legal profession, bringing possibilities of remedying judicial infringements of EU law attributable to national courts. This jurisprudence has affected national courts’ decisions, even decisions handed down by Supreme Courts and constitutional courts, as decisions that infringe EU law are, under certain circumstances, no longer under the protective wings of time-honored principles, such as the principles of legal certainty and res judicata. This thesis is a study on the case-law of the ECJ that composes this creative jurisprudence and the effects it has had and will have. As for the structure of this thesis, it is organized in four parts. Part I of this thesis features a brief overview of the European procedural law. Part II will focus on the case-law of the ECJ regarding the expansion of the EU law remedy of State liability to breaches attributable to national courts of last instance. This entails that individuals can sue the State for or damages for breach of EU law attributable to national court’s decisions. In Part III we will study the Commission enrollment in tackling non-compliance of national courts, and thus securing the effectiveness of EU law. Parallel to the case-law of the ECJ, expanding the principle of State liability to breaches attributable to national courts, the Commission has taken its role as “guardian of the Treaties” to the next level by instigating infringement procedures, against judicial infringements attributable to national courts. Finally, in Part IV we will examine a certain trend in the Court’s case-law, in which the ECJ both creates a remedy and obliges national courts to set aside national provisions of procedural conditions, in connection with breaches of EU law attributable to national courts. The consequence of this trend is the erosion of the principles of legal certainty and res judicata for judicial decisions, under certain circumstances