• In the case of Case c 224 01 Köbler 2003 ECR i 10239, it was held that decisions of a national Supreme Court are not immune from state liability.

Facts of the Case

  • K was a university professor who applied for a long service leave increment after 10 years’ service at an Australian university and five years spent in other Member States.
  • His application was refused on the ground that the Law on Salaries 1956 Art.50a stipulated that the increment was only available after 15 years’ service in Austrian universities.
  • When deciding this matter, the Austrian Supreme Court held that the increment was a bonus designed to attract academics rather than a salary component and was therefore a permitted exception to the prohibition on discrimination in the EC Treaty Art.39 and Council Regulation 1612/68 Art.7(1).
  • Köbler sought damages from the Regional Civil Court, contending that the law was in fact discriminatory.  

Issues in Case c 224 01 Köbler 2003 ECR i 10239

  • Could K enforce their rights after a Court’s wrongdoing?

Held by European Court of Justice

  • Held that Supreme Courts are subject to state liability. Member states were obliged to make reparations for the State’s breaches of Community law.


  • Member States are to make reparations for breaches of community law if three criteria are met: EC law must confer individual rights, the national court’s decision must be a manifest breach of EC law and there must be a direct causal link between the breach and the damage.
  • “The principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties. In order to determine whether the infringement is sufficiently serious when the infringement at issue stems from such a decision, the competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest. It is for the legal system of each Member State to designate the court competent to determine disputes relating to that reparation. 
  • Article 48 of the EC Treaty (now, after amendment, Article 39 EC) and Article 7(1) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community are to be interpreted as meaning that they preclude the grant, under conditions such as those laid down in Article 50a of the Gehaltsgesetz 1956 (law on salaries of 1956), as amended in 1997, of a special length-of-service increment which, according to the interpretation of the Verwaltungsgerichtshof (Austria) in its judgment of 24 June 1998, constitutes a loyalty bonus.” [1-2]