Res judicata in the court of justice case-law: Balancing legal certainty with legality?

European Constitutional Law Review

Volumn 3, Issue 3, 2007, Pages 385-417

  Groussot, Xavier ^a   Minssen, Timo ^a  

^a LUND UNIVERSITY   (Sweden)

Author keywords

Acte Clair; European court of justice; K bler; K hne Heitz; Legal certainty; Legality; Res judicata; Revision of decisions; State Liability

Indexed keywords

EID: 37549026879     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019607003859     Document Type: Article

References (144)

1. Case C-224/01 Köbler [2003] ECR I-10139, Case C-453/00 Kühne & Heitz [2004] ECR I- 10239.
2. Ibid.,
3. Köbler, paras. 118-120.
4. Kühne & Heitz, supra n. 1, para. 27. It concerned a decision regarding customs nomenclature of 'chicken legs' given by a national administrative body (Board for poultry and eggs). The decision was confirmed by the administrative for Trade and Industry, using the acte clair doctrine. Nevertheless, the decision appeared inconsistent with a subsequent ruling from the ECJ.
5. Case C-234/04 Rosmarie Kapferer [2006] ECRI-2585, Case C-274/04 EDF Man Sugar [2006] ECRI-3269, Case C-173/03 Traghetti delMediterraneo [2006] ECRI-5177, Joined Cases C-392/04 and C-422/04 i-21 and Arcor [2006] ECRI-8859, Case C-119/05 Lucchini Siderurgica [2007] n.y.r., Opinion of AG Bot in Case C-2/06 Willy Kempter [2007] n.y.r.
6. lat: 'contra rem judicatam non audietur'. Using a comparative analysis, it is worth remarking that the concept of res judicata in the various laws of the member states is generally divided into two sub-concepts: In France (autorité de la chose jugée and force de la chose jugée), in Germany (materielle Rechiskraft and formelle Rechtskraft) and in Sweden (negativ räaskraft and positiv rättskraft). It appears that autorité de la chose jugée, materielle Rechtskraft and negativ rättskraft constitute rather similar concepts. These concepts reflect the view that an adjudicated issue cannot be re-litigated. The other sub-concepts: force de la chose jugée, formelle Rechtskraft and positiv rättskraft arc closer to the notion of exhaustion of remedies and the reliance of the adjudicated issue in other cases. Furthermore, in those three member states, the concept of res judicata can be found in civil law, criminal law and administrative law.
7. See AG Léger in Köbler, sopra n. 1, fn 94. The AG considered that the legal authority of a decision is in principle relative. This stance is confirmed by references to Austrian, French, German and Spanish doctrine.
8. Joined Cases 28, 29 and 30/62 Da Costa [1963] ECR 31, at p. 41.
9. See also AG Léger in Köbler para. 101: '[a]ccording to the prevailing traditional definition, the legal authority of a judicial decision - and, as a consequence, res judicata - is applicable only in certain circumstances, where there is a threefold identity - of subject-matter, legal basis and parties - between a dispute already resolved and a subsequent dispute. The legal authority of a decision is thus in principle relative and not absolute'. It is not a surprise that the two French AGs (Lagrange and Léger) refer to the threefold identity. Indeed, those three elements: Subject-matter (issue), legal remedies (cause of action, claim) and parties are expressly mentioned in Art. 1351 of the French civil code (la chose, la cause and les parties). Similar concepts can also be found in the laws of other member states. In Common law, one finds the notions of claim preclusion and issue preclusion (collateral estoppel). In Germany, the material finality of a judgment has objective, temporal and subjective limits.
10. AG Léger in Köbler, supra n. 1, at para. 96 (fn 91).
11. According to the AG that rule is also shared by the member states in the field of criminal law in the form of the non bis in idem principle (see Joined Cases C-187/01 and C-385/01 Gözütok and Brügge [20031 ECR I-1345) and also in the constitutional field (principle of separation of powers). See, in that respect, Renoux, 'Autorité de chose jugée on autorité de la Constitution' in L'esprit des institutions, l'équilibre des pouvoirs. Mélanges en l'honneur de Pierre Pactet (Dalloz, 2003) p. 835.
12. Ibid.,
13. para. 96
14. and followed by the Court in para. 38.
15. Case C-126/97 Eco Swiss [1999] ECR I-3055, para. 46,
16. Köbler, sopra n. 1.
17. M. Fromont,'Le principe de sécurité juridique', Actualité Juridique Droit Administrative(1996) édition spéciale, p. 178 at p. 178.
18. See, e.g., Case C-63/93 Duff[1996] ECR I-569, para. 20.
19. J. Usher, General Principles of EC Law (Longman, 1998) p. 52.
20. J. Temple Lang, 'Legal Certainty and Legitimate Expectation as General Principles of Community Law', in U. Bernitz and J. Nergelius (eds.), General Principles of European Community Law (Kluwer, 2000) p. 163 at p. 163.
21. They are often associated, in the early case-law, with the principle of revocation of administrative acts (unlawful/favourable administrative acts). For unlawful administrative acts, see Joined Cases 7/56 and 3/57, 4/57, 5/57, 6/57 and 7/57 Algera v. Common Assembly [1957] ECR 39, Joined Cases 42/59 and 49/59 SNUPATv. High Authority [1961] ECR 53. See also Case 14/61 Hoogovens v. High authority [1962] ECR 253, Case 111/63 Lemmerz-Werke v. High Authority [1965] ECR 677, Case 14/81 Alpha Steel. Commission [1982] ECR 749, Case 15/85 Consorzio Cooperative d'Abruzzo v. Commission [1987] ECR 1005, Case C-248/89 Cargillv. Commission [1991] ECR I-2987, Case C-365/89 Cargill [1991] ECR I-3045. For lawful administrative acts, see Case 54/77 Herpels v. Commission [1978] ECR 585, Case C-90/95 P Henride Comptev. European Parliament [1997] ECR 1-1999. For favourable acts that creates an acquired right that cannot be revoked in principle, see Herpels, para. 38,
22. De Compte, para. 35.
23. Ibid., Alpha Steel, Consorzio Cooperative d'Abruzzo, Cargill, Henri de Compte.
24. Algera, supra n. 15.
25. SNUPAT, supra n. 15.
26. J. Dutheil de la Rochère, 'Le Principe de légalité', Actualité Juridique Droit Administrative (1996) édition spéciale, p. 161.
27. See supra n. 15, De Compte, para. 35.
28. The court used the terminology of legitimate expectations in relation to the withdrawal of a favourable administrative act. In principle, the administrative act cannot be revoked. See also, supra n. 15, Algera, at p. 56, Hoogovens para. 5, Alpha Steel paras. 10-12, Consorzio Cooperative d'Abruzzo paras. 12-17, Cargill I para. 20 Cargill II para. 18.
29. See also Case T-118/00 Conserve Italia [2003] ECR II-719, para. 77. A closer look on the national legal systems reveals that the actual situation of the parties involved and the principle of legality may sometimes prevail over the principle of legal certainty. In German Law, e.g., a wrongful judgment that has become res judicata can be challenged under exceptional circumstances, such as serious procedural failures, fraud or in cases where the time limit for legal remedies has expired and there was no failure of the parties involved. It is further possible to file a constitutional complaint (' Verfassungbeschwerde') in order to challenge a specific final judicial decision. Pursuant to §st 90, 93 et seq. BverfGG, this can be done when basic rights ('Grundrechte') have been violated and there was no other means of legal redress available. In the past years, the German Constitutional Court has developed a variety of procedural basic rights ('prozessuale Grundrechte'), such as the right to be heard (Art. 103 GG), the right to be heard by a competent judge/court (Art. 101 I S. 2 GG - interesting in combination with Art. 234 EC), non-discrimination (Art. 3 I GG) and fair trial (Art. 2 I, 20 III GG).
30. SNUPAT, supra n. 15, at p. 87.
31. Hoogovens, supra n. 15, para. 5.
32. See Case 33/76 Rewe [1976] ECR 1989, para. 5,
33. Case 45/76 Comet[1976] ECR 2043, paras. 13 and 16,
34. Case C-231/96 Edis [1998] ECR I-4951, paras. 19 and 34,
35. Case C-343/96 Dilexport [1999] ECR I-579, para. 25,
36. Case C-78/98 Preston and Others [2000] ECR I-3201, para. 31,
37. Case C-201/02 Wells [2004] ECR I-723, para. 67,
38. Case C-168/05 Mostaza Claro [2006] ECR 10421, para. 24,
39. Case C-446/04 Test Claimants [2006] ECR I-11753, para. 203, and i-21 and Arcor, supra n. 4, para. 57.
40. AG Léger in Köbler, supra n. 1, para. 98.
41. Case 186/87 Cowan [1989] ECR 195,
42. Case C-43/95 Data Delecta [1996] ECR I-4661,
43. and Case 222/84 Johnston [1986] ECR 165.
44. Infra.
45. Supra n. 1 and 4.
46. Case 106/77 Simmenthal II [1978] ECR 629.
47. Ibid., paras. 17-18.
48. Ibid., paras. 20-21.
49. F. Jacobs, 'The Evolution of the European Legal Order, CMLRev. (2004) p. 303 at p. 315.
50. A. Dashwood, 'The Relationship between the Member states and the European Union/Community', CMLRev. (2004) p. 335 at p. 378, '[i] always read the Simmenthal judgment as authority for the further point that the principle of primacy of Community law does not render a national provision, which is in conflict with Community law, automatically null and void: It merely requires a national judge to refrain from applying the national provision and to give the Community provisions full intended effect.'
51. Joined Cases 10 and 22/97 IN. CO. GE [1998] ECR I-6307.
52. See also, Case C-198/01 Consorzio Industrie Fiammiferi (CIF) [2003] ECR I-8055, para. 53
53. and Case C-119/05 Lucchini Siderurgica [2007] n.y.r., para. 61.
54. Case C-213/89 Factortame [1990] ECR I-2433, para. 20.
55. Ibid., para. 19.
56. Case C-312/93 Peterbroeck [1995] ECR I-4599,
57. Joined Cases C-240 to C-244/98 Océano Grupo [2000] ECR I-4941,
58. and Case C-473/00 Cofidis [2002] ECR I-10875.
59. See, AG Ruiz-Jarabo Colomer in i-21 and Arcor, supra n. 4, para. 120.
60. Case C-118/00 Larsy [2001] ECR I-5063.
61. Case C-144/04 Mangold [2005] ECR I-9981.
62. See AG Léger in Köbler, supra n. 1, paras. 102-103. The AG undertook an analysis of res judicata in light of the principle of equivalence. He concluded that res judicata was relative in national law, and thus there was no breach of principle of equivalence.
63. Ibid., paras. 53-55.
64. Ibid., paras. 118-124.
65. Ibid., AG Léger in Köbler, para. 170. The AG considered that the national court had committed an inexcusable error.
66. P. Wattel, 'Köbler, CILFIT and Welthgrove: We car't go on meeting like this', CMLRev. (2004) p. 177.
67. See Art. 50 ECHR (Case Zullo v. Italy, 10 Nov. 2004).
68. Köbler, supra n. 1, para. 48
69. and AG Léger in Köbler, paras. 77-82. According to the Court, 'application of the principle of state liability to judicial decisions has been accepted in one form or another by most of the Member States ... even if subject only to restrictive and varying conditions.'
70. H. Scott and N. Barber, 'State Liability under Francovich for Decisions of National Courts', Law Quarterly Review (2004) p. 404 at p. 404-405.
71. Going further, it may be said that one witnesses an empowering of the national courts (more powers for the lower national courts and also more responsibilities for the national courts of last resort). Does this mean the end of the judicial dialogue? Not at all. It means, in our view, a better enforcement of EU law, which is necessary in the context of the recent enlargement and the subsequent increased number of national courts.
72. T. Tridimas, General Principles of EU Law (Oxford University Press, 2006) p. 528.
73. See Case C-129/00 Commission v. Italy [2003] ECR 1-14637. That case requires the Court to analyze questions equivalent to those raised in these proceedings, i.e., whether member states should be answerable, and to what extent, for the acts adopted by its courts, in casu the Corte suprema di cassazione (Supreme Court of Cassation in Italy).
74. See supra n. 4, Traghetti del Mediterraneo SpA v. Repubblica italiana.
75. For recent developments, see Case C-470/03 A.G.M.-COS.MET [2007] n.y.r.
76. See supra n. 1.
77. Supra n. 4, Traghetti del Mediterraneo SpA v. Repubblica italiana, paras. 34-35.
78. Ibid., para. 32.
79. Ibid., para. 33.
80. Ibid., para. 37.
81. Ibid., para. 36 (referring to the Opinion of AG Léger, para. 52).
82. Ibid., Opinion of AG Léger in TDM, para. 50.
83. Supra n. 4, Traghetti del Mediterraneo SpA v. Repubblica italiana, paras. 46 and 47.
84. In that context, the ECJ specifically highlighted in para. 32, that liability for manifest infringement of Community law has to be assessed in the light of the existing situation, including 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. An individual's right to obtain redress arises where it had been established that the rule of law infringed was intended to confer rights on individuals and there was a direct causal link between the breach of the obligation incumbent on the state and the loss or damage sustained by the injured parties.
85. Supra n. 4, Traghetti del Mediterraneo SpA v. Repubblica italiana, paras. 46 and 47. Unsurprisingly, AG Léger delivered a similar opinion on this issue in para. 104 of his opinion. However, the AG used quite different wording, which may confuse some readers. In his opinion, he concluded that the principle of state liability for infringement of Community law attributable to a supreme court does not preclude such liability being made subject to the existence of intentional fault or serious misconduct on the part of the supreme court concerned, provided that that condition does not go beyond manifest disregard of the applicable law (compare also para. 102 of his Opinion).
86. Supra n. 1, Kühne & Heitz.
87. Ibid., para. 24.
88. Ibid., para. 26.
89. Ibid., para. 27, '[i]n such circumstances, the administrative body concerned is, in accordance with the principle of cooperation arising from Article 10 EC, under an obligation to review that decision in order to take account of the interpretation of the relevant provision of Community law given in the meantime by the Court. The administrative body will have to determine on the basis of the outcome of that review to what extent it is under an obligation to reopen, without adversely affecting the interests of third parties, the decision in question.'
90. See AG Léger in Köbler, supra n. 1, paras. 65-67. The AG, referring to supremacy and full effectiveness, considered that the solution given in the Larsy case could be transposed here.
91. The withdrawal ensures a better protection for individual rights.
92. Joined Cases C-392/04 and C-422/04 i-21 and Arcor [2006] ECR I-8859.
93. See AG Ruiz-Jarabo Colomer in i-21 and Arcor, paras. 69-70. The AG follows the same reasoning (based on supremacy) used by AG Léger in Kühne & Heitz. However, the Opinion appears much less powerful.
94. Ibid., paras. 46-47.
95. Ibid., paras. 51-52.
96. Ibid., para. 53.
97. Ibid., para. 57.
98. Ibid., paras. 58-61.
99. Ibid., paras. 65-66. Notably, the reasoning is closely associated with the principle of equal treatment. According to the Bundesverwaltungsgericht, since i-21 and Arcot had not exercised their right to challenge the fee assessments, they are not, consequently, in a situation comparable to that of the undertakings having exercised that right. Such an application of the principle of equal treatment does not differ according to whether the dispute relates to a situation arising under national law or to a situation arising under Community law.
100. Ibid., paras. 70-71.
101. Ibid., paras. 71-72.
102. Supra n. 4.
103. The criteria No. 3 states that a judgment should be based on an interpretation of Community law which, in the light of a subsequent judgment of the Court of Justice was incorrect and which had been adopted without a question referred to the Court of Justice for a preliminary ruling. The criteria No. 4 establishes that the person concerned should complain to the administrative body immediately after becoming aware of the judgment of the Court of justice.
104. AG Bot in Willy Kempter, supra n. 4, paras. 51-52
105. Ibid., paras. 92-94, the AG considered that the importance of the third condition lies in whether the judicial decision is based on an incorrect interpretation of Community law.
106. Ibid., paras. 95-96.
107. Ibid., paras. 140-143. Notably, the AG does not propose to establish a time limit based on Community law. As put by the Commission (para. 123), that would encroach on the principle of procedural autonomy of the member states.
108. See supra n. 4, Rosmarie Kapferer v. Schlank & Schick GmbH.
109. BGBI. I, 1979, p. 140. Para. 5j of the KSchG was inserted in the Consumer Protection Law by para. 4 of the Fernabsatz-Gesetz (Austrian Law on Distance Contracts - BGBI. I, 1999, p. 185) when Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (Oj [1997] L 144/19) was transposed into Australian law.
110. Council Regulation (EC) No. 44/2001 of 22 Dec. 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ [2001] L 12/1; hereinafter referred to as 'Regulation No. 44/2001' or simply as 'the Regulatior').
111. The national court observed, however, that Schlank & Schick could have challenged the dismissal of the plea of lack of jurisdiction because it could have been adversely affected by that decision alone.
112. Compare para. 530 and 534 of the Austrian Code of Civil Procedure ( Zivilprozessordnung, 'the ZPO') on the conditions governing the revision of judgments.
113. In particular, the Landesgericht asked whether a misleading promise of financial benefit calculated to induce a contract, and therefore to prepare the ground for that contract, has a connection with the consumer contract intended to result from it sufficiently close to give rise to consumer contract jurisdiction.
114. Supra n. 1, Kühne & Eeitz.
115. Since the purpose of this article is to analyze the appliance of the resjudicata principle in the case-law of the ECJ, we will in the following focus on the questions concerning Art. 10 EC and the principle of res judicata. However, it should be mentioned that the referring court also asked for an evaluation of the period given under Art. 534 ZPO and for an interpretation of the Art. 15 of Council Regulation (EC) No. 44/2001 but these questions were not answered by the ECJ and they are not the focus of this article.
116. Opinion of AG Tizzano in Case C-234/04 Rosmarie Kapferer v. Schlank & Schick GmbH [2006] ECR I-2585.
117. Referring to its judgment in Köbler the ECJ stressed once again that 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 into question. See supra n. 1, Köbler, para. 38.
118. Supra n. 10, Eco Swiss, paras. 46 and 47. Yet, once again the ECJ stressed that one requirement would still remain: By laying down the procedural rules for proceedings designed to ensure protection of the rights which individuals acquire through the direct effect of Community law, member states would have to ensure that the domestic rules in question and their application comply with the principles of equivalence and effectiveness of Community law (see to that effect, Case C- 78/98 Preston and Others [2000] ECR I-3201, para. 31 and the case-law cited). However, according to the ECJ, these principles have not been called into question in the main proceedings as regards appeal proceedings.
119. Once again: The basic four conditions laid down by Kühne & Heitz which Tizzano referred to were that: (1) under national law, the administrative body has the power to reopen the decision; (2) the administrative decision has become final due to a national court judgment at final instance; (3) the judgment is, in light of a subsequent ECJ decision, founded upon a misinterpretation of EU law, adopted without a preliminary reference under Art. 234 EC; and (4) the request to reopen the decision was received by the administrative body immediately after becoming aware of the relevant ECJ judgment. See supra n. 1, Kühne & Heitz.
120. Opinion of AG Tizzano in Kapferer, supra n. 4, para. 27.
121. With regard to the answer given to the first question, the ECJ held further that there would be no need to answer the subsequent questions, which essentially dealt with the interpretation of Regulation No. 44/ 2001. Those questions had, however, and for completeness of analysis, been considered by Tizzano, who concluded that in his opinion there was no breach of Community law in the instant case by reason of lack of jurisdiction.
122. Another case where questions similar to Kühne & Heitz was recently decided by the ECJ is the German case EDF Man Sugar [2006], see supra n. 4.
123. See Case C-119/05 Lucchini Siderurgica [2007] n.y.r.
124. Ibid., Opinion of AG Geelhoed in Lucchini.
125. The Italian state aid in question covered a subvention of 765 million ITL. Moreover, 367 million ITL were supposed to cover a part of the interest rates which resulted from a previously granted credit. That credit was granted in 1986 on request by the predecessor of Lucchini and its interest rate had already been previously lowered by state aid.
126. Supra n. 99.
127. Ibid., at 'Standpunkt der Beteiligten', para. 17.
128. Ibid., para. 36.
129. Ibid., para. 37, mentioning the case of fraud or if a judgment, that has become final and conclusive, obviously violates fundamental rights.
130. Ibid., para. 38.
131. Ibid., paras. 39-46.
132. Ibid., para. 47.
133. Ibid., para. 48.
134. Ibid., para. 70.
135. Ibid., paras. 72-73.
136. Ibid., paras. 86-87.
137. Ibid., para. 74.
138. See also paras. 14 -16, '[a]rticle 2909 of the Italian Codice Civile (Civil Code), entitled "Final judgments", provides as follows: "Findings made in judgments which have acquired the force of res judicata shall be binding on the parties, their lawful successors and assignees". According to the Consiglio di Stato (Council of State), that provision covers not only the pleas in law actually invoked in the course of the proceedings in question but also those which could have been invoked. In procedural terms, that provision precludes all possibility of bringing before a court a dispute in respect of which another court has already delivered a final judgment.'
139. Ibid., para. 59.
140. It is interesting to note that the duty to apply Community law ex officio is not backed up by any case-law since the Simmenthal line of case-law only concerns the duty to set aside conflicting national legislation in order to ensure the full effectiveness of Community. Moreover, it is worth remarking that the Court does not mention the expression 'to set aside' and prefers instead, the phrasing: 'refusing ... to apply' (para. 61) or 'precludes the application of Community law' (para. 64).
141. Ibid., paras. 62-63.
142. In that context, it might also be speculated to what extent the ECJ takes into account what the subject of legal protection is, and in how far this subject is involved in the legal process. The more the individual is involved in the process that might lead to an EC decision, the more weight might be given to the individual right that had been infringed and the more importance might be awarded, i.e., to the need for state liability.
143. See J.H. Jans e.a., Europeanisation of Public Law (Europa Law Publishing, 2007) at p. 296-300. The authors describe the rise and fall of Emmot and consider that this decision, appraised as an exception, has been considerably limited in later case-law. Therefore, it is very doubtful that this case could still be efficiently relied on. It is also argued that, 'the story of the rise and fall of Emmot provides a good illustration of the ups and downs that are so characteristics of the process of europeanisation of national procedural law by the case law of the European Court of Justice.' A parallel can be drawn with the Kühne & Heitz jurisprudence.
144. Case C-334/92 Miret [1993] ECR I-6911, para. 22, Case C-91/92 Faccini Dori [1994] ECR I-3325, para. 27.