За ролята и отговорността на националния съдия по прилагането на правото на ЕС (Необходимо припомняне на изводите от две исторически решения на Съда на ЕС)
The Role and the Responsibility of the National Judge for the Implementation of the EU Law (A Necessary Recall of the Conclusions from Two Historical Judgements of the Court of EU)

Author(s): Atanas Semov
Subject(s): Law, Constitution, Jurisprudence, EU-Legislation
Published by: Нов български университет
Keywords: EU Law; Court of Justice of the EU
Summary/Abstract: The role and the responsibility of the national judge for the implementation of the EU Law has been described and underlined very clearly by the Court of Justice of the EU (CJEU) in two historical decisions: Köbler and Commission v/ Italie. In Köbler the CJEU underlines the obligation of a member state (MS) for reparation of damages caused by incorrect application (non application) of the EU Law. That principle of the EU Law is applicable 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. The principle does not in itself have the consequence of calling in question that decision as res judicata.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. The CJEU underlines that 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.In Commission v/ Italie (2003) the CJEU stresses on another very important principle of EU Law: an infringement by a member state will be faced only if an incorrect interpretation of an EU rule is a constant jurisprudence. In that regard, isolated or numerically insignificant judicial decisions in the context of case-law taking a different direction, or still more a construction disowned by the national Supreme Court, cannot be taken into account. That is not true of a widely-held judicial construction which has not been disowned by the Supreme Court, but rather confirmed by it. Thus the CJEU engages the State liability in all cases where a negligence of the EU Law is at stake and stipules that the main responsibility for preventing of all infringements lays especially on the national judge.Even if isolated situation of infringement of EU Law can stay out of the scope of the term of infringement under the art. 258 or 259 TFEU (as an exception), in any case the role of the supreme jurisdictions remains decisive – the last should disowne (by a decision or by an interpretation) the establishment of such a practice incompatible with the EU Law.

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