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In 2006, the European Court of Justice affirmed a view that had been speculated in previous cases for over a decade through the Traghetti del Mediterraneo ruling that under certain circumstances, Member States can be held accountable for decisions made by their courts. As early as 1996, the question of whether a state could be held liable to the errors raised in the application of the Community Law by its judiciary was addressed through the heading “Thinking the Unthinkable?”[1] However, the perspective was revolutionized over time, and a breakthrough came in 2003 when the ECJ decide in Kobler that indeed the Member States could be held liable for mistakes made by their judicial systems.[2] It is the case that set the precedent that inspired the Traghetti del Mediterraneo case ruling by the ECJ.

Previous judgments had indicated that the outcome reached in the judgment were possible since in 1996, in Brasserie, the court held that  the principle of state liability, “holds good for any instance that a Member State breaches Community law, whatever be the organ of the State whose act or omission was responsible for the breach.” However, a majority of the Member States had remained ignorant about it until in Köbler that raised huge concerns among them. The latter case of Traghetti del Mediterraneo set the record clear and set the precedent to rely upon in future. The case offered an opportunity to add weight and strengthen the principle of protecting individuals from their judicial systems.[3]    

CASE C-173/03 acts as a safeguard for the enactment and the Community Law by protecting the rights of the citizens from any form of infringement of their rights. It was presented to support the already present and applicable principles that the Member States are obliged to make good for all the damages caused to an individual as a result of infringement of the Community law. A preclusion of national legislation liability because of rulings made that may cause harm to individuals would be going against the guaranteed judicial protection of an individual, which is a right provided for by the Community Law.[4]

CASE C-173/03 also provided more insight on Member state liability making more clarity on the extent to which the ECJ could intervene. It also set the standards and level of their involvement more into the light through some set-out rulings. The court ruled that the Member State Liability for any form of damage caused by an individual or a group of people through an infringement of Community Law, as a result of a ruling made by a local court, can be incurred in the case where the court distinctly infringed in the applicable law. The infringement of the law must be clear and not just a vague case. The manifested infringement of the Common law is also assessed Inter A, applying the criteria set out by the court. The criteria required that there be:

a)     some evidence on the degree of precision and hence no ambiguity in the rule that is infringed,

b)     a proof as to whether the infringement of the law was intentional or otherwise,

c)      prove whether the error made by the court was excusable or inexcusable and,

d)     that the court should have failed to comply to meet its obligation to refer for a preliminary decision under the third paragraph of Article 234 EC.

Therefore, the liability of a state was only presumed where there was an evident ignorance of the case-law of the ECJ on the matter at hand. The criteria were set so as to ensure that the Member States would see the need for the ruling and also that they would be aware that the court would not infringe on the sovereignty of their courts without a valid cause. It also increased the confidence of the Member States in the ruling made.

In the Traghetti del Mediterraneo ruling, in as much as the court affirmed the Köbler judgement, it avoided making any explanations on the specific implications that came with the decision. It was even more apparent concerning the claim’s relationship to the national liability privileges that were inherent to the legal systems of the virtually all the Member States. It raised issues in the handling of the TDM company case where they had brought legal proceedings to the ECJ claiming that the Italian Court had infringed Community Law by wrongly refusing cartel claim against its competitor. However, the Italian law excluded the compensation claims against the courts, which presented an issue. [5]


A major advantage that comes with the Traghetti del Mediterraneo is that the courts are held accountable by the ECJ, and hence the damages accruing in the case of a breach of the Community law by the Member State are in the state. The judges involved in making such rulings are not accountable personally for such damages and hence are not the ones responsible but rather it is the system. It is crucial because, having judges work in the fear that the ECJ would hold them accountable on their rulings would be an infringement on the sovereignty of the judicial systems. It would compromise the court processes even in cases where the national laws may contravene the Union laws. A judge considers the federal legislation first before the Union rules. However, they can seek for reference from the ECJ on some issues that may be contrary to the national laws. The federal judges act as the gatekeepers of the preliminary reference process despite the primary ruling regime that may be adopted to solve issues arising with contention between national and Community laws. They have the authority to refer to the ECJ and thus the ECJ cannot make any ruling without the request of the national judges. It makes the national judges an important part of the enforcement of the Community laws that are subject to raising concerns across borders. Hence, the need to make sure they remain safeguarded and works with maximum autonomy. Moreover, the ECJ was not created to infringe or overstep on the Member State’s judicial systems but rather to harmonize the laws governing them. [6]

It is important to note that the supremacy of the Community laws over the national legislation is not enshrined in the Treaties that led to the formation of the Union. In fact, no treaties are stating that Community laws take precedence over the individual national laws. Therefore, by having the Traghetti del Mediterraneo judgement overstep the Italian national legislation that does not allow any damages to be paid by the court to individuals was a case of undermining the national laws. The ruling allowing TDM to take damages because the Italian court infringed on Community Laws by wrongly refusing a cartel claim by the plaintiff yet the Court was within its local laws was a first step in showing the supremacy of the ECJ. It is this that raised uproar from sections of the member states which felt that the ruling was not all-inclusive ion that they should have been involved more in setting such a precedence by the court. With such dissatisfaction and lack of support from some of the member states, the ruling may lead to the failure and non-compliance of the Member States to the laws set by the precedence. The precedence sets a stage for a possible failure due to lack of compliance or support from the affected states. Establishment of such a law that would mean that the member states review their laws needed to be done in a more consultative aspect and forum and not just through a court ruling. [7]

In line with a direct effect, the principle was established by a well-renowned decision in Van Gend en Loos, all the rights that are awarded to individuals by the Community laws should be imposed by the national courts of the individuals. However, the national courts of differing member states to the European Union have different systems of interpreting the laws. There are also different settings and circumstances that surround the interpretation and application of the Community laws. As a result, there is a principle risk that the community laws may be interpreted in very divergent ways leading to conflict between national and Community laws. Therefore, for the case of offering damages resulting from infringement of the community laws as was ruled in the TDM case, there may be divergent and consistent issues that may arise. There is, therefore, the need to have a system and set of rules that govern such a clash that may occur. It is because, in case the infringement in Community laws of an individual may be as a result of a fundamental law of a member state that they may not be willing to go against. Hence the need to have the Traghetti del Mediterraneo have a structure and set of rules that anticipate and address such a case.   

The Traghetti del Mediterraneo ruling almost ascribed a legal character on the Köbler judgment putting a vivid limitation on the scope of the applicability of the law. As far the courts adjudicating at the last instance were involved and responsible for a manifestation of infringement of the Union law, all the liability privileges would become impossible to apply due to the supremacy of the Union law. The case in practice extended the liability of the judiciary. [8]


The Traghetti del Mediterraneo ruling offered an opportunity for the ECJ to expand the principle of exclusive protection of the rights of individuals under the Community Laws from any form of infringement by the Member States. It set a fundamental precedent that would lead to awarding of damages to individuals whose fundamental rights had been infringed by a court usually the highest court that cannot be appealed in the member state. However, it presented some issues in its application due to the diversity of interpretation and application of the laws among the member states. The ruling could result in resistance or even continued problems in the European Union if the rules surrounding the implementation of the ruling are not well spelt out. There is also a need to have the member states involved in making the rules and decision on the application of the ruling in future cases.

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